ARGUMENT ANALYSIS

Supreme Court appears likely to side with Trump on some presidential immunity

The Supreme Court on Thursday appeared skeptical of a ruling by a federal appeals court that rejected former President Donald Trump’s claim that he has absolute immunity from criminal charges based on his official acts as president. During more than two-and-a-half hours of oral argument, some of the court’s conservative justices expressed concern about the prospect that, if former presidents do not have immunity, federal criminal laws could be used to target political opponents. However, the justices left open the prospect that Trump’s trial in Washington, D.C., could still go forward because the charges against him rest on his private, rather than his official, conduct. However, the timing of the court’s eventual opinion and the resulting trial remains unclear, leaving open the possibility that the court’s decision could push Trump’s trial past the November election.

Trump was indicted in August 2023 on four counts, arising from Special Counsel Jack Smith’s investigation into the Jan. 6, 2021, attacks on the U.S. Capitol, alleging that he conspired to overturn the results of the 2020 election. Trump asked U.S. District Judge Tanya Chutkan to throw out the charges against him, arguing that he could not be held criminally liable for his official acts even after leaving office.

Chutkan denied Trump’s request, and in February the U.S. Court of Appeals for the District of Columbia Circuit upheld that ruling. Trump went to the Supreme Court, which agreed in late February to weigh in. Trump’s trial, which was originally scheduled for March 4, is now on hold waiting for the Supreme Court’s decision.

Representing Trump, John Sauer told the justices that without presidential immunity from criminal charges, the “presidency as we know it” will be changed. The “looming threat,” he contended, will “destroy presidential decisionmaking precisely when” the president needs to be bold. And the impact of the court’s decision, he suggested, will have an impact far beyond Trump’s case. He pointed to the prospect, for example, that President Joe Biden could be charged with unlawfully inducing immigrants to enter the United States illegally through his border control policies.

Michael Dreeben, a lawyer from Smith’s office, represented the United States. He emphasized that the Supreme Court has never recognized absolute criminal immunity for any public official. Trump, he contended, seeks permanent criminal immunity for a president’s official acts unless he has first been impeached and convicted by the Senate.

Several justices pressed Sauer on how to distinguish official acts, for which a former president would enjoy immunity under his theory, from private acts, for which he could still face criminal charges. Chief Justice John Roberts asked Sauer about a scenario involving a president’s official act – appointing an ambassador – that he does in exchange for a bribe. When Sauer conceded that accepting the bribe is private conduct, Roberts urged Sauer to explain how the boundary between an official act and a private one would “come into play.” Prosecutors could bring charges against the former president for accepting a million dollars, Roberts queried, but they can’t say what it’s for?

Justice Elena Kagan lobbed a series of examples, some taken from the indictment, at Sauer and asked him to identify them as involving private or official conduct. Sauer agreed that some, like signing a form affirming false election allegations, would be private, but he asserted that others – like calling the chair of the Republican Party – would be official. When asked whether ordering the military to stage a coup so that the president could remain in office was private or official, Sauer suggested that it would depend on the circumstances, prompting Kagan to say, “that sure sounds bad, doesn’t it?”

Justice Neil Gorsuch observed that, with the concession that a former president could be prosecuted for his private conduct, the two sides had found “some common ground.” He noted that the D.C. Circuit had “expressed some views about how to” separate private and official conduct, including the possibility of further proceedings to do so.

But when Roberts asked Sauer about the effect of that concession, and Sauer suggested that the Supreme Court should send the case back to the lower court to determine what conduct is official and what conduct is private, Roberts retorted that, without the official conduct, it would be like a “one-legged stool.”

Dreeben contended that, even if presidents have immunity for their official acts, in this case the federal government could still introduce evidence of Trump’s interactions with the Department of Justice. But he maintained that there was enough private conduct to allow the charges against Trump to go forward even under that standard.

Justice Ketanji Brown Jackson acknowledged that distinguishing between official and private conduct might sometimes pose a “difficult line-drawing problem.” But if a president’s official acts are not entitled to absolute immunity, she suggested, the problem is eliminated. Why, she asked, would the president not be required to follow the law when performing his official acts?

Justice Brett Kavanaugh appeared sympathetic to the former president’s argument that criminal statutes do not apply to the president unless they say so specifically. He told Dreeben that it’s a “serious constitutional question whether a criminal statute can apply to the president’s criminal acts.”

Justice Amy Coney Barrett was less persuaded by this argument. She observed that if a president who orders a coup is impeached and convicted by the Senate, but ordering the coup is determined to be part of his official conduct, he could not be prosecuted after leaving office under Trump’s theory if there were not a statute that explicitly applied to the president.

Dreeben sought to assuage some of the justices’ concerns by suggesting that, although former presidents should not have absolute immunity from criminal charges relating to their official acts, there are some core constitutional powers of the presidency – such as the powers to pardon, veto, make appointments, and recognize foreign governments – that are entitled to special protection.

Justice Samuel Alito, however, was skeptical, noting that – in contrast with immunity – the issue of special protection would have to be litigated at a trial and “may involve great expense,” as well as the possibility that the former president (who is currently both running for office and on trial in a Manhattan courtroom) “might not be able to engage in other activities.”

And more broadly, both Gorsuch and Kavanaugh worried aloud about the wider impact of the court’s decision. Telling Dreeben that the justices were “writing a rule for the ages,” and that he was “not concerned about this case as much as future ones,” Gorsuch, who, like Kavanaugh, was nominated to the court by Trump, expressed concern about the use of the law to target political opponents. Emphasizing that virtually all first-term presidents will be concerned about being reelected, he pressed Dreeben on whether his theory would include consideration of a president’s motives.

Dreeben assured Gorsuch that his theory would not sweep in ordinary presidential conduct. “Wanting to get reelected is not an illegal motive,” Dreeben said.

But Kavanaugh was not reassured. Echoing Gorsuch, he told Dreeben that this case has “huge implications for the” presidency, and that he was “very concerned about the future.” Kavanaugh – who served as a deputy to Ken Starr during his investigation of then-President Bill Clinton – cited the Supreme Court’s 1988 decision in Morrison v. Olson, upholding the constitutionality of the independent counsel statute, as “one of the Court’s biggest mistakes” because it “hampered” presidential administrations. When former presidents are subjected to prosecution, Kavanaugh said, “history tells us it’s not going to stop.”

Jackson had a different view. Without the threat of criminal liability, she told Sauer, “future presidents will be emboldened to commit crimes.”

With four of the court’s conservative justices – Thomas, Alito, Gorsuch, and Kavanaugh – appearing to lean toward some form of immunity for Trump, the ruling may hinge on Roberts, who although relatively quiet seemed dubious about the reasoning of the D.C. Circuit’s opinion, which he summarized as saying that “a former president can be prosecuted because he is being prosecuted.” And although Dreeben stressed the “layers of protection” available to shield a former president from unwarranted prosecutions, such as the assumption that prosecutors will act in good faith and the need for a grand jury to return an indictment, Roberts asked Dreeben why the court shouldn’t send the case “back or issue an opinion saying that’s not the law?”

The court is expected to issue all of its decisions for the current term by the end of June or early July. Even if the justices leave open the possibility that Trump can still face criminal charges in some form or another, the timing of the court’s ruling and whether its decision requires additional proceedings in the lower courts – for example, to determine which of the acts alleged in Smith’s complaint involve official or private conduct – could complicate Smith’s efforts to move the D.C. trial forward before the 2024 election.

This article was originally published at Howe on the Court.