Closing summary
After nearly three hours of oral arguments, the supreme court appeared divided over Donald Trump’s claim that he can’t be charged for his alleged attempt to overturn his 2020 election loss because he was acting in his capacity as president. It did not seem like the conservative-dominated court was ready to accept his defense entirely, but several justices signaled they may decide to send the case back to a lower court to sort out which parts of his indictment concerned his presidential duties, and which his private actions. Such a decision would likely delay his trial further, potentially until after the 2024 election. A decision could come as late as June.
Here’s a look back at the day’s highlights:
Michael Dreeben, who argued on behalf of special counsel Jack Smith, warned that a finding of immunity for Trump would mark a “sea change” in the president’s relationship with the law.
Samuel Alito, a conservative stalwart on the court, fretted over whether prosecuting a president would create a slippery slope that would undermine America’s “stable, democratic society”.
At least two conservative justices, including Trump-appointee Neil Gorsuch, wondered whether, without immunity, all president would pardon themselves for fear of prosecution by a future administration.
Amy Coney Barrett, a conservative justice appointed by Trump, signaled an interest in finding a way for Trump’s trial to continue even if some charges were dropped.
Sonia Sotomayor, a liberal justice, sparred with Trump lawyer John Sauer over the legality of his attempt to create alternate slates of presidential electors.
Supreme court could send Trump immunity claim to lower courts — potentially further delaying trial
Now that the dust has settled on the supreme court’s nearly three hours of oral arguments over whether Donald Trump is immune from criminal charges related to attempting to overturn the 2020 election, a few things appear likely to happen.
The first is that the justices, despite the fact that conservatives outnumber liberals six to three, do not seem likely to accept Trump’s sweeping claim that he can’t be charged for his alleged post-election plot, because he was simply acting in his capacity as president. But that doesn’t necessarily means special counsel Jack Smith carried the day.
As the Guardian’s Hugo Lowell and Martin Pengelly report, the justices seemed open to sending the case back to the lower courts to determine which charges concern Trump’s actions as president, and which were done in his private capacity – the latter being what he’d have to stand trial on. If something like that does indeed wind up being the court’s decision, it could mean more delays in the case, potentially until after the November election, which would further delay the possibility that a jury would find him guilty in the case and strike a blow to his presidential ambitions.
Here’s more:
The US supreme court on Thursday expressed interest in returning Donald Trump’s criminal case over his efforts to overturn the 2020 election back to a lower court to decide whether certain parts of the indictment were “official acts” that were protected by presidential immunity.
During oral arguments, the justices appeared unlikely to grant Trump’s request for absolute immunity from criminal prosecution, with both Trump’s lawyer and the justice department’s lawyer agreeing there were certain private acts that presidents would have no protection for.
But the chief justice, John Roberts, and the conservative justices suggested that presidents should have some level of immunity and would favor the presiding trial judge in the case deciding whether any acts in the indictment were official and should be expunged.
The subsequent questions explored how to decide what actions were official and what actions were purely private, potentially to develop a test for a lower court to apply to the indictment, and whether a test should consider Trump’s motives or purely objective facts.
If the supreme court remands the matter back to the presiding US district court judge Tanya Chutkan, it would almost certainly inject new delay into the case that could preclude it from going to trial before the November election .
Such an outcome would itself be a win for Trump, whose overarching legal strategy against the cases brought by the special counsel Jack Smith has been to seek delay. If he prevails in the election, he could appoint as the attorney general a loyalist who would drop the charges against him.
The outcome of a remand would also give Trump a material legal win, as it would pave the way for some parts of the indictment to be expunged. Excising some of the conduct as alleged in the indictment could reduce his criminal exposure and undercut the remaining charges.
The supreme court’s conservative justices appeared to have concluded during the argument that there must be some immunity because some “core functions” of the presidency – issuing pardons, veto power – cannot be regulated by Congress and so criminal statutes cannot apply.
