WASHINGTON – The U.S. Supreme Court on Thursday expressed skepticism about former President Donald Trump's claim that he is immune from criminal charges for trying to overturn his 2020 presidential election loss.
But conservatives who control the court appear willing to send key questions back to the trial court, which could delay the prosecution of Mr. Trump until after the November election and effectively will assist the former president as he battles legal issues.
Trump, the presumptive Republican presidential nominee, has been challenged in federal trial courts and the District of Columbia Court of Appeals for his actions from after the 2020 election to the violent attack on the United States on January 6, 2021. insisted. The Capitol attack is not subject to criminal prosecution because it was an “official act” taken during his time in office.
Case law provides that U.S. presidents are immune from civil damages for acts of official conduct and from criminal prosecution while in office, but the justices will now consider the unresolved question of whether former presidents are completely immune from criminal law. The problem needs to be determined.
During oral arguments in Trump v. United States on Thursday, much of the discussion centered on what should be considered formal presidential law.
Several conservative justices suggested that lower courts try to determine what aspects of the charges against Trump arose solely from his private conduct.
Such a detour could take weeks or months more as the trial date approaches Election Day.
A decision from the court may not arrive until late June or early July. If the ruling calls for additional fact-finding at the trial court level, President Trump's election interference trial likely won't take place before the November election.
Mr. Trump's lawyer, D. John Sauer of St. Louis, argued that nearly everything a president does while in office could be considered an official act, including ordering a military coup and hypothesizing about assassinating political opponents. .
Although many on the court seemed skeptical of this broad view of official conduct, several conservative justices decided to let trial courts decide what conduct should be considered official. I asked about that. They also suggested that prosecutors may drop the official conduct portion of the four counts against Trump.
The court's three liberal justices expressed serious concerns about President Trump's immunity claims, and Justice Ketanji Brown Jackson said that the court's acceptance of a broad view of presidential immunity would leave the Oval Office vulnerable to He voiced his doubts about whether it would become a “base for criminal activity.”
The lawsuit is one of four criminal charges filed against Trump in state and federal courts. On Thursday, he was in a New York courtroom facing charges in an ongoing hush money trial. Judges there did not allow him to attend Supreme Court arguments.
Decision of the court of first instance
The conservative justices asked whether the constitutional problem could be avoided by letting the trial court, presided over by U.S. District Judge Tanya Chutkan, decide which parts of the complaint are considered official or unofficial acts. Ta.
Special Counsel Jack Smith and his prosecution team need only prosecute Mr. Trump's private conduct, Judge Amy Coney Barrett said.
“The normal process that Mr. Sauer sought would be to remand if we determined that there was some kind of official exemption, and we'll sort that out below,” Barrett said, referring to the litigation process. . The case was remanded to the lower court. “An option is for the special prosecutor to proceed based on the private action and withdraw the official action.”
“Absolute immunity”
As he has done in recent months, Sauer has advocated for “absolute immunity” from criminal prosecution for presidents acting in their official capacities.
Sauer broadly interpreted the meaning of official acts, saying a president who has not been impeached and removed from office cannot be prosecuted for official acts.
The liberal justices asked Sauer how far the definition of official action extends. Mr. Trump's lawyers were reluctant to make exceptions.
Justice Sonia Sotomayor asked about hypotheticals that arose in lower courts. “Is it an official act for a president to order the assassination of a political opponent?”
“It could very well be an official act,” Sauer replied.
He also told Justice Elena Kagan that a president ordering a military coup could be an official act, but Sauer said “it depends on the circumstances.”
Michael R. Dreeben, representing the U.S. Department of Justice, argued that Trump's sweeping views on presidential immunity would undermine a fundamental element of American democracy: no one is above the law. .
“His novel theory would absolve the former president from criminal liability for bribery, treason, sedition, murder, and, here, conspiracy to use fraud to overturn election results and perpetuate power.” said Dreeben.
Mr. Jackson questioned Mr. Sauer and appeared to agree with the assertion.
He said Sauer was worried that the president would be “chilled out” by the possibility of criminal prosecution, but “if the president is not chilled out, there will be a real and serious opposite problem.” said.
“Once you say, 'There is no criminal liability, Mr. President, you can do whatever you want,' you have a much deeper problem than the problem of the president feeling obligated to obey the law while in office.” I'm worried about that,” Jackson said.
“A special and extremely precarious position.”
But other members of the court were more likely to follow Mr. Sauer's argument that criminally indicting the president would be binding on him.
Justice Samuel Alito, one of the court's conservatives, asked Mr. Dreeben about Mr. Trump's argument that the office of president requires a broader view of immunity.
Alito said presidents sometimes have to make difficult decisions in unresolved areas of the law.
“It's understandable to say, 'If he made a mistake, he made a mistake. He's subject to criminal law like everyone else,'” Alito said. “Don't you think he's special and in a strangely precarious position?”
Dreeben responded that presidents have access to sophisticated legal advice and that it is not common for presidents to face criminal charges for making mistakes.
He also pointed out that the allegations against Trump include overstepping his powers as president and obstructing the certification of the election, which is not the president's power under the Constitution.
Retirement of incumbent councilor
Justice Alito appeared to be the justice most sympathetic to President Trump's argument that allowing the president to be prosecuted would undermine presidential power, but he also noted that the incumbent, who lost the election, is the very person awaiting prosecution. He also raised the prospect that he could try to stay in power illegally just because he is in the country. They leave the office.
“In a stable democratic society, candidates who lose elections, even close and hard-fought elections, are expected to step down peacefully,” he said.
“If an incumbent who loses a close, hard-fought election knows that there is a real possibility that he will be criminally prosecuted by his political opponents after leaving office, then that is what makes us a nation. Aren't we falling into a vicious cycle that destabilizes the functioning of a democratic country?
“Quite the contrary,” Dreeben responded, as there are well-established legal options available to contest the election results, including court challenges.
Trump posted multiple times on his social media platform, Truth Social, Thursday morning, saying that without absolute immunity, the president has “no power at all.”
“It's the end of the presidency and our country as we know it, and it's just one of many possible traps for a president without executive privilege. Obama, Bush, and soon-to-be perverse Joe Biden.” “Everyone will be in big trouble,” he wrote.
“Write rules that will last through the ages”
Some justices have indicated they intend to look beyond this issue in relation to President Trump's election interference charges, which could indicate a lengthy opinion.
Conservative Justice Neil Gorsuch suggested that criminal charges against the former president could be based on motives such as re-election or other personal gain.
“While I'm not concerned about this case, I am concerned about the future use of criminal law based on accusations of the motives of political opponents,” Gorsuch said in a lengthy exchange with Dreeben. Ta.
“I'm going to say something that I don't normally say, which is that it has absolutely nothing to do with this case,” Dreeben said, drawing laughter from Gorsuch.
“We understand that. We appreciate that. But we also understand that we are creating rules that will stand the test of time,” Gorsuch responded.
At other points, Dreeben tried to steer the justices into specific details of the Trump case, including pointing out that the judicial system has safeguards against purely politically motivated and retaliatory legal actions.
Dreeben will detail to Alito that the Justice Department functioned “as it should” when Trump's plan to ask officials to send fraudulent letters to states about election results failed. And so.
Alito pushed back, saying he wanted to discuss the case “in the abstract.”
“I understand that, Mr. Dreven. But, like I said, this case will have an impact far beyond this particular prosecution,” Alito said.
George Washington University law professor Alan Morrison, who has argued 20 cases before the Supreme Court, said in a phone interview after oral arguments that he wrestled with the scope of what the justices would consider. Therefore, the court said it would not be able to reach a “quick decision.” official acts of the president.
“Neither side can get everything they want,” Prime Minister Scott Morrison said. “And the most difficult question to answer will be what is an official act and what is an unofficial act.”
“Reaction to the monarch”
Kagan insisted on the details of the charges against Trump, asking Sauer to go through the list of allegations and determine what constitutes official conduct.
“Defendants asked the Speaker of the Arizona House of Representatives to convene Congress to hold hearings based on their claims of election fraud,” Kagan said, citing the indictment.
“It is absolutely an official act for the president to communicate with state officials on matters of great interest and concern to the federal government,” Sauer said. “We are trying to protect the integrity of federal elections by encouraging people to watch it.” As a function of state and federal law. ”
Kagan turned to a hypothetical question, asking whether a president who orders a military coup but is not impeached or convicted by Congress would be immune from U.S. criminal law.
“He was the president. He was the commander in chief. He talked to the generals all the time, and he said to the generals, 'I'm not going to step down.' I want to stage a coup. ” Is that something you’re immune to? ”
Sauer pointed to the defense's reliance on the Constitution's impeachment clause, saying, “If it is an official act, impeachment and conviction are necessary beforehand.''
“That's the wisdom of the framers (of the Constitution),” he added.
“The Framers did not put an immunity clause in the Constitution,” she quickly responded. “…They didn't give the president immunity, and you know, it's not that surprising. They were rebelling against a monarch who claimed to be above the law.”
“Isn't the bottom line: the president is not a monarch, and the president shouldn't be above the law?” she said.
federal election interference charges
A federal grand jury indicted Trump on four felonies in August 2023, accusing him of collaborating with multiple co-conspirators to overturn election results in seven states.
The indictment charges the former president with crimes including conspiracy to defraud the United States and obstructing official proceedings.
According to the indictment, Trump worked with several others to replace legitimate electors with fraudulent electors in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin. There is a suspicion that
Prosecutors also used the Justice Department to pressure states to shuffle their electoral rolls and pressured Vice President Mike Pence to alter the results during a joint session of Congress to certify the results on January 6, 2021. He claims that he tried to
