The Supreme Court on Thursday appeared skeptical of former President Donald Trump's claim that he enjoys absolute immunity from criminal prosecution for official acts he took while in office, but several justices expressed doubts about the details of charges brought against him in a pending federal trial.
Trump faces criminal charges in four jurisdictions in the United States, but the case at issue on Thursday was his federal indictment on charges that as part of his effort to overturn President Joe Biden's victory in the 2020 presidential election, he committed fraud against the United States, attempted to obstruct an official government proceeding, and illegally pressured public officials to help him block certification of the election results.
While the former president would clearly prefer a ruling that agrees with his claims of blanket immunity from criminal prosecution, a decision that significantly delays the progress of his criminal trial could benefit him as well, by pushing resolution of the case past the presidential elections in November.
Should Trump win the presidency again, it would be within his power to direct the Department of Justice to drop the case against him.
Opposing arguments
The basis of Thursday's hearing was a request by Trump that the high court review a unanimous appeals court decision that rejected his claim of absolute immunity out of hand.
Attorney D. John Sauer, representing Trump, took the position that presidential immunity from criminal prosecution has, in fact, always existed, and argued that without it, a president would be unable to take decisive action while in office.
"Without presidential immunity from criminal prosecution, there can be no presidency as we know it," Sauer said.
"If a president can be charged, put on trial and imprisoned for his most controversial decisions the moment he leaves office, that looming threat will distort the president's decision-making precisely when bold and fearless action is most needed," he said. "Every current president will face de facto blackmail and extortion by his political rivals while he is still in office."
Making the case for the government, attorney Michael Dreeben pointed out that despite Trump's claims, the courts have never recognized the existence of absolute immunity from criminal prosecution and warned of the potential consequences of doing so.
"His novel theory would immunize former presidents for criminal liability for bribery, treason, sedition, murder and here — conspiring to use fraud to overturn the results of an election and perpetuate himself in power," Dreeben said.
"Such presidential immunity has no foundation in the Constitution," he said. "The framers knew too well the dangers of a king who could do no wrong. They therefore devised a system to check abuses of power, especially the use of official power for private gain."
'Official acts'
Much of the discussion during the nearly three-hour hearing focused on what constitutes "official acts" by the president.
Early on, Chief Justice John Roberts pointed out the difficulty in drawing that distinction, presenting a hypothetical case in which a president accepts a bribe in return for nominating a particular person to an ambassadorship.
"Accepting the bribe isn't an official act, but appointing an ambassador is certainly within the official responsibilities of the president," Roberts said, asking the president's attorney how he would propose drawing the distinction.
Sauer, under questioning from several justices, insisted that presidents enjoy broad immunity from prosecution for official acts, even when prosecutors believe they can demonstrate that the official act was taken for personal benefit.
"That's a situation which, of course, could be alleged in any indictment," he argued.
Several of the conservative-leaning justices on the court appeared willing to consider at least some degree of presidential immunity from criminal prosecution for official acts, if not the absolute variety claimed by Trump.
"You believe that immunity from criminal prosecution is essential for the proper functioning of the presidency," said Justice Samuel Alito. "But my question is whether the very robust form of immunity that you're advocating is really necessary in order to achieve that result."
Other conservatives on the court, including Justices Neil Gorsuch and Brett Kavanaugh, both Trump appointees, also seemed willing to consider at least some sort of limited immunity from criminal prosecution for presidents.
Liberal justices weigh in
Justice Elena Kagan, one of the court's liberal-leaning members, expressed incredulity at the idea that the Constitution should be read as placing a president beyond the reach of the criminal law.
"The framers did not put an immunity clause into the Constitution," she said. "They knew how to; there were immunity clauses in some state constitutions. They knew how to give legislative immunity. They didn't provide immunity to the president."
The reason, she said, was that the government of the United States was founded in reaction against the monarchy in the United Kingdom.
"They were reacting against a monarch who claimed to be above the law," she said. "Wasn't the whole point that the president was not a monarch, and the president was not supposed to be above the law?"
Justice Ketanji Brown Jackson, a Biden appointee and the court's newest member, expressed concern about the impact of agreeing to Trump's claims of absolute immunity.
"If the potential for criminal liability is taken off the table, wouldn't there be significant risk that future presidents would be emboldened to commit crimes with abandon while they are in office?" Jackson asked.
Possible changes
While it is not possible to know how the court will rule, Thursday's hearing suggested that there are several conservative justices — perhaps enough to constitute a five-vote majority — who are open to requiring at least some changes to the way the government has charged the case.
That could include restricting the actions for which Trump can be charged to those that are plainly outside the bounds of his official duties. Doing so would require the trial court to hear evidence and make a determination as to whether the various actions by Trump enumerated in the indictment constitute official or unofficial conduct.
Such a ruling would almost certainly create a sufficient delay in the progress of the case to ensure that no resolution is reached until after the election takes place in November, and possibly after the winner of the next election is sworn in as president in January 2025.
Trump in New York
Despite the stakes of Thursday's hearing, Trump was not in attendance at the Supreme Court. He was required to be in a different courtroom, in New York, where he is on trial for falsifying business records as part of an arrangement to guarantee the silence of an adult film actor who in 2016 claimed she had engaged in a sexual affair with Trump several years prior.
However, on Thursday morning, Trump addressed the question of his immunity claim in a series of posts on his social network, Truth Social.
"If a President does not have Immunity, the Opposing Party, during his/her term in Office, can extort and blackmail the President by saying that, "if you don't give us everything we want, we will Indict you for things you did while in Office," even if everything done was totally Legal and Appropriate," he wrote.
"That would be the end of the Presidency, and our Country, as we know it, and is just one of the many Traps there would be for a President without Presidential Immunity," he added.
