When the Supreme Court rules on whether Donald Trump is entitled to some degree of immunity from prosecution for alleged acts in the White House as he pushed to overturn his 2020 election loss, it could potentially reshape the contours of presidential power, as several justices acknowledged during a high-stakes hearing on Thursday.
With protestors gathered outside, the justices debated arguments for almost three hours on Thursday from the lawyers for Donald Trump and special counsel Jack Smith, who has accused the president of trying to retain his position in light of his defeat to the current president, Joe Biden.
Donald Trump argues that certain activities were within the scope of his presidential authority, but he denies any misconduct and contests several of the accusations made against him.
There were numerous noteworthy and significant exchanges during the oral arguments. These ten significant moments are listed.
The court is anticipated to render a verdict by the end of June.
Could a president kill his opponent?
One of the most provocative hypothetical questions in Trump’s fight for “absolute immunity” from prosecution over actions he claims were official was addressed by Justices Sonia Sotomayor and Samuel Alito: Could a commander-in-chief order SEAL Team 6 to assassinate a political rival and escape prosecution?
When Sotomayor was questioning Trump’s lawyer, John Sauer, she brought it up first. She brought up a previous exchange Sauer had in a subordinate court case.
“I’m going to give you a chance to say …if you stay by it: The president decides that his rival is a corrupt person and he orders the military, or orders someone, to assassinate him — is that within his official acts for which he can get immunity?” she said.
Sauer said, “That would depend on the hypothetical.” “We could see that could well be an official act.”
“Immunity says even if you did it for personal gain, we won’t hold you responsible — what do you — how could that be?” Sotomayor pressed the issue.
Sauer gestured to a U.S. According to Sauer, the Supreme Court’s 1980 decision holding that a president is exempt from civil accountability for official activities serves as the foundation for their current position regarding criminal liability.
“That’s an extremely strong doctrine in this court’s case law in cases like Fitzgerald,” added the judge.
Later, on the question of whether “plausibleness” was a better yardstick for examination than “reasonable,” Alito and Sotomayor disagreed, bringing up a hypothetical presidential employment of the military as elite assassins.
“One might argue that it isn’t plausible to order SEAL Team 6 — and I don’t want to slander SEAL Team 6 because they’re — no, seriously — they’re honorable, they’re honorable officers and they are bound by the uniform code of military justice not to obey unlawful orders — [but] I think one could say it’s not plausible … that that action would be legal,” Alito stated.
According to Sauer, “I’m sure you’ve thought of lots of hypotheticals where a president could say, ‘I’m using an official power,’ and yet the power uses it in an absolutely outrageous manner.”
What was the deal with President Nixon’s pardon?
Justice Ketanji Brown Jackson questioned Sauer about his claim that in the absence of immunity, all presidents in the future would be too afraid to perform official actions that may place them in danger of criminal prosecution.
“I mean, I understood that every president from the beginning of time essentially has understood that there was a threat of prosecution [upon leaving office],” Jackson stated.
Jackson appeared dubious when Sauer replied by citing Ben Franklin from the constitutional convention.
“But since Benjamin Franklin everybody has presidents who have held the office [who knew] that they were taking this office subject to potential criminal prosecution, no?” she responded.
She gave a well-known instance of a prior president who faced legal challenges.
“What was up with the pardon for President [Richard] Nixon? … If everybody thought that presidents couldn’t be prosecuted, then what — what was that about?” she responded.
“At the time, he was being investigated for both private and public conduct – official acts and private conduct,” stated Sauer, adding that it was well-established that presidents may face legal consequences for their private deeds.
“Counsel on that score, there does seem to be some common ground between you, your colleague on the other side, that no man’s above the law and that the president can be prosecuted after he leaves office for his private conduct, is that right?” Justice Gorsuch responded.
“That’s something we agree with,” Sauer said.
“And then the question becomes, as we’ve been exploring here today, a little bit about how to segregate private from official conduct that may or may not enjoy some immunity,” Gorsuch stated.
That highlighted a crucial issue that may come up in the court’s final ruling: how to distinguish between Trump’s actions that fall under executive immunity and those that are alleged to be outside the scope of his presidential authority and are subject to prosecution.
However, Trump’s lawyer admits that some of his actions were private.
Soon after, Sauer was questioned by Justice Amy Coney Barrett over the exact boundaries between official and private activity, as well as whether it is protected or not.
“You concede that private acts don’t get immunity,” she responded.
“We do,” replied Sauer.
Barrett went on to specifically mention a number of alleged actions that, according to prosecutors, were part of Trump’s effort to rig the 2020 election.
Barrett, citing court documents, stated, “I want to know if you agree or disagree about the characterization of these acts as private. Petitioner turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results. Private?”
“We dispute the allegation, but that sounds private to me,” added Sauer.
Barrett went on: “Petitioner conspired with another private attorney who caused the filing in court of a verification, signed by petitioner, that contained false allegations to support a challenge. Private?”
Sauer added, “Also sounds private.”
“Three private actors, two attorneys, including those mentioned above, and a political consultant, helped to implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding and petitioner and a co-conspirator attorney directed that had effort.” Barrett stated.
“I think that’s confidential,” Sauer answered.
Barrett remarked, “You would not dispute those acts.” “Those were private and you wouldn’t raise a claim that they were official.”
With a reply from Sauer, “As characterized.”
That resembles a stool with one leg, correct?”
Sauer’s request for the justices to return the case back to the lower courts to sort out which charges in the indictment amount to a protected “official act” under the presidency drew a remarkable response shortly after from Chief Justice Roberts.
“The official stuff has to be expunged completely from the indictment before the case can go forward,” Sauer said.
Roberts questioned, “That’s like a one-legged stool, right?” “I mean, giving somebody money isn’t bribery unless you get something in exchange. If what you get in exchange is to become the ambassador to a particular country, that is official, the appointment, it’s within the president’s prerogatives. The unofficial part is — ‘I’m going to get a million dollars for it.'”
Following this conversation, Justice Clarence Thomas asked without being asked if Trump’s legal team was contesting the legitimacy of special counsel Jack Smith’s appointment—a dubious idea that had previously been advanced by right-wing attorneys like former Attorney General Ed Meese.
According to Sauer, Trump’s legal team was putting up that defense in a different federal case in Florida where he is charged with improperly handling classified material while in office, but they weren’t doing it specifically in this case, which Thomas didn’t pursue.
Sauer said that any official activities claimed in the indictment dated January 6 should be excluded from trial when Justice Alito questioned him about it.
However, Justice Sotomayor resisted the idea of remanding the case, contending that even in the cases where Trump took actions that might be deemed official, they did so while advancing his “private” goal to stay in office.
“I don’t think the indictment is charging that the obstruction occurred solely because of conversations with the Justice Department,” she stated. “They’re saying — you look at all of the private acts and you look in the context of some of the public acts and you can infer the intent, the private intent from them.”
Fear that the Oval Office may become the “hub of crime”
Justice Jackson appeared to issue a warning when she questioned Sauer about why she believed that presidents should not be held criminally responsible for whatever illegal acts they committed while in office. According to Jackson, granting presidents total immunity may become the White House “the seat of criminal activity in this country.”
In response, Sauer said that although a president shouldn’t be prosecuted criminally, they may be impeached or subject to other consequences for any illegal behavior.
Jackson pushed, “If there’s no threat of criminal prosecution, what prevents the president from just doing whatever he wants?” to start the conversation.
Sauer spoke to “impeachment, oversight by Congress, public oversight, there’s a long series.”
“You seem to be worried about the president being chilled. I think that we would have a really significant opposite problem if the president wasn’t chilled,” Jackson stated.
“If someone with those kinds of powers, the most powerful person in the world, with the greatest amount of authority, could go into office knowing that there would be no potential penalty for committing crimes — I’m trying to understand what the disincentive is from turning the Oval Office into the seat of criminal activity in this country,” said Jackson.
She questioned Sauer, “If the potential for criminal liability is taken off the table, wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they’re in office?”
However, Sauer said that there had not yet been any issues of this kind.
“I respectfully disagree with that because the regime you described is the regime we operated under for 234 years,” he replied.
Can the president forgive himself?
Gorsuch pressed Sauer to clarify the Trump team’s stance on the hypothetical possibility of a president pardoning oneself. He explained that this would occur if presidents were concerned that their successors might bring charges against them for decisions they made while in office.
“I didn’t think of that until your honor asked it. That is certainly incentive that might be created,” Sauer replied.
In response, Gorsuch stated, “We’ve never answered whether a president can do that. Fortunately, it’s never been presented to us.”
Subsequent to his defense of the government, Michael Dreeben was questioned on whether the president possesses this kind of power later on in the hearing.
“I don’t believe the department of justice has taken a position,” Dreeben stated. There isn’t any self-pardon authority, as far as I can tell, according to a memo written by an Office of Legal Counsel member. To the best of my knowledge, neither the department nor the court have addressed it further.”
Will the case be postponed until the following year and remanded?
In the second portion of the hearing, Roberts started probing Dreeben by expressing worries about the D.C. Circuit Court of Appeals’ broad rejection of Trump’s claims of immunity.
The assertion that “a former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has allegedly acted in defiance of the laws” worried him as “as I read it, it says a former president can be prosecuted because he’s being prosecuted.”
Roberts questioned whether the Supreme Court should send the decision back down to the circuit court so that it is made plain that this is not the law, arguing that such a position could place too much trust in the legal system to behave impartially and in good faith.
In response, Dreeben said that “layered safeguards” guard against prosecutions that are malicious.
“We are not endorsing a regime that we think would expose former presidents to criminal prosecution in bad faith, for political animus, without adequate evidence, or politically driven prosecution that would violate the Constitution,” Dreeben stated.
Barrett also mentioned near the close of the session that the justices might return the case to the lower court to determine whether of the acts against Donald Trump in the indictment were official and hence not subject to prosecution, and which were carried out in his personal capacity.
A trial before the end of the year and the election in November could not be possible if such a result occurs.
Dreeben stressed that the DOJ would rather present the full case to a jury, saying, “This is an integrated conspiracy with a variety of components, as the indictment claims. collaborating with private attorneys to fulfill the fraud’s objectives and… In an attempt to increase the chances of the plots succeeding, the petitioner is clinging to his official authority.
“We would like to present that as an integrated picture to the jury so that it sees … [the] gravity of the conduct.”
Dreeben, however, stated that prosecutors would still like to reveal some of the alleged conduct in the indictment to the jury in order to demonstrate Trump’s mental state when he engaged in actions deemed private, even if some of the actions were deemed official in character and not prosecutable.
Presidents are free to err without facing consequences
Alito questioned Dreeben on whether or not presidents may make a “mistake” given the several conflicting demands they face on a daily basis.
“Leaders must decide how to enforce the law and how to handle unresolved issues,” Alito stated, before posing the question of whether a “mistake” renders a commander in chief legally accountable.
“Making a mistake is not what lands you in a criminal prosecution,” Dreeben stated.
Afterwards, he brought up a few specific allegations made against him: “It is difficult for me to understand how there could be a serious constitutional question about saying, ‘You can’t use fraud to defeat the [certification of the winner of the presidential election], you can’t obstruct it through deception, you can’t deprive millions of voters of their right to have their vote counted for the candidate who they chose.'”
FDR being charged for camps of internment?
A large portion of the justices’ questioning of the lawyers on Thursday focused on hypotheticals in an attempt to delve deeper into each of their claims on the propriety of presidents’ immunity from prosecution.
Apart from Sotomayor’s inquiry regarding a possible military takeover for assassination, Justice Elana Kagan questioned if immunity would be granted in the event that a president gave orders for soldiers “to stage a coup.”
According to Sauer, it “may well be an official act” in that hypothetical situation, requiring impeachment and conviction prior to any legal action being taken.
When Sotomayor questioned whether Trump’s support of “fraudulent” alternate electors in 2020—as detailed in the indictment—to attempt to reverse the votes was also a part of his official duties, he made a similar statement. Sauer answered, “Your honor, without a doubt.”
As he asked Dreeben, Alito added his own hypothetical scenario involving the government.
“Mr. Sauer and others have identified events in the past where presidents have engaged in conduct that might have been charged as a federal crime, and you say, ‘Well, no, that’s not really true.’ … So, what about president Franklin D. Roosevelt’s decision to inter Japanese Americans during World War II. Couldn’t that have been charged under conspiracy against civil rights?” Alito responded.
Dreeben had several worries about potentially trying to file charges, but he refrained from providing a clear response other than pointing out the complexity and controversy.
Fear of a never-ending trail of prosecutions and what comes next
Justice Brett Kavanaugh’s questions during the arguments today aligned with his concerns about the potential effects of prosecution on the presidency. He expressed concern about the possibility of a vicious cycle of malicious prosecutions that could hinder presidents for years to come if immunity is not granted.
He compared the current situation to a contentious ruling on the authority of independent counsels made by the Supreme Court following the Watergate scandal, in which the late Justice Antonin Scalia wrote one of his most well-known dissents in support of the president.
“That’s the concern going forward is that the system will — when former presidents are subject to prosecution in the history of Morrison v. Olsen tells us, it’s going to cycle back and be used against the current president or the next president or and the next president and after that,” Kavanaugh stated.
In the conversation, he added, “Most people now look upon President Gerald Ford’s pardon of Richard Nixon as one of the finer moves in presidential history, even if it was “extremely controversial in the period.”
Notably, though, Kavanaugh and Gorsuch both stated that the details of the case against Donald Trump that was filed on January 6 were not included in their worries about overreaching prosecutions.
The justices made it apparent during their arguments that they were considering the implications of their decision for the presidency’s future rather than just the immediate case of Trump.
Gorsuch declared, “We’re writing a rule for the ages.”
Kavanuagh concurred: “This case has huge implications for the presidency, for the future of the presidency and for the future of the country, in my view.”
And Alito said, “Whatever we decide is going to apply to all future presidents.”
