The Supreme Court seemed skeptical on April 25 of former President Donald Trump’s claim that he should receive absolute criminal immunity, but open to allowing some level of immunity for presidents.
Conservative justices seemed poised to remand the case back to the district court in Washington with instructions on what constitutes official and private acts for further fact-finding proceedings. This would further delay President Trump’s trial in Washington, and possibly other proceedings in Georgia, Florida, and New York, handing him a strategic win as he seeks to hold up cases until after the November election.
Attorney D. John Sauer argued for President Trump while former Deputy Solicitor General Michael Dreeben argued for Special Counsel Jack Smith. The case stemmed from President Trump’s attempt to dismiss Mr. Smith’s indictment related to his activities on and leading up to Jan. 6, 2021.
Justice Clarence Thomas kicked off questions by asking Mr. Sauer to pinpoint where in the Constitution he derives his concept of immunity. Mr. Sauer pointed to the Executive Vesting clause in Article II, which vests executive power in the president.
The justices spent much time wrestling with what constitutes an official act for which presidents should receive immunity. Justice Ketanji Brown Jackson, for example, wondered whether an act could be considered immunity if the president was acting in pursuit of private gain. It was her understanding, she added, that prior presidents understood they were vulnerable to potential prosecution.
Justice Jackson also asked why former President Gerald Ford would need to pardon former President Richard Nixon if he enjoyed immunity. Mr. Sauer responded that some of President Nixon’s conduct occurred in his personal capacity.
In defending his broad scope of immunity, Mr. Sauer pointed to Mississippi v. Johnson and Marbury v. Madison—two cases that have come up in legal debate over this topic.
Presidential immunity isn’t explicitly mentioned in the Constitution and therefore often provokes debate about what the founders of the nation intended. Justice Elena Kagan and Mr. Sauer sparred over the historical intent for presidential power with the former noting that the founders were opposing a monarch at the time and didn’t include an immunity clause in the Constitution.
‘Fundamentally Evil’ Acts
Justice Sonia Sotomayor told Mr. Sauer that there are some things “so fundamentally evil” that they have to be addressed. She further asked whether the president could order the military to assassinate someone.
“It’s hard to imagine,” she told Mr. Dreeben, that a president could faithfully execute the laws while violating them.
A similar hypothetical came from Judge Florence Pan in the U.S. Court of Appeals for the D.C. Circuit. She specifically asked about an assassination by SEAL Team Six—something Justice Alito suggested was not plausibly legal. He also cautioned against “slander[ing]” the military unit, saying that it had to disobey unlawful orders.
Mr. Sauer said it could be an official act and asserted that inquiry into a president’s intent was inappropriate for determining immunity. He added that the indictment in question cut to the heart of conduct that should be covered by immunity.
Justice Kagan was also critical, suggesting that Mr. Sauer’s argument went way “beyond” what the Justice Department’s Office of Legal Counsel had advanced. At one point, she asked about whether the president was immune from prosecution for selling nuclear secrets to a foreign power or using the military to stage a coup. Mr. Sauer responded that allegations of criminal wrongdoing must first go through Congressional impeachment and conviction.
Justice Amy Coney Barrett seemed skeptical of this point, noting that other government officials—such as the nine justices—are similarly subject to impeachment. She also wondered about the possibility that criminal conduct wouldn’t be discovered until after the president left office, raising the prospect that impeachment and conviction wouldn’t occur. According to Mr. Sauer, the founders assumed that risk and the nation couldn’t right every wrong with its system of separation of powers.
Justice Jackson wondered why the president would be able to violate the law through his official acts while other officials had to follow the law. “Lots of people,” she said, have to make life-and-death decisions. She worried that “the most powerful person in the world” could act without the threat of prosecution. The incentives of absolute immunity, she suggested, could turn the presidency into “the seat of criminal activity” in the country.
Justice Brett Kavanaugh, generally seen as a proponent of executive power, seemed to defend Mr. Sauer’s position by suggesting that he wasn’t trying to place the president above the law but rather was trying to distinguish between official and unofficial acts. He also worried that a charge in Mr. Smith’s indictment—conspiracy to defraud the United States—could be applied in a broad fashion.
Crafting a New Standard
The oral arguments underscored the pressure facing the justices as they decide whether and how to craft a new standard for presidential immunity.
In a colloquy with Justice Kavanaugh, Mr. Sauer asserted that a statute used to charge a president must contain an explicit provision mentioning his office.
Justice Samuel Alito asked whether the “robust” form of immunity Mr. Sauer advocated was “necessary.” He suggested a standard by which courts considered the plausibility of justifications for the president’s actions—something Mr. Sauer also criticized for wading into presidents’ intents.
Both Justices Alito and Sotomayor previewed a potential standard by leveling questions about whether reasonableness or plausibility should govern the evaluation of a president’s actions. Justice Sotomayor told Mr. Sauer that plausibility is generally applied in cases of qualified immunity, which law enforcement typically enjoys.
Justice Barrett honed in on whether Mr. Sauer believed private acts were exempt from immunity. He said he did but suggested the court could remand the case for further consideration of how to view the specific acts. Justice Roberts wondered about creating a “one-legged stool” by expunging official acts from the indictment. “How does that go forward?” he asked Mr. Sauer.
In exchanges with Justices Barrett and Justice Elena Kagan, he specified which indicted acts he thought were official. For example, he defended communicating with state officials about the election as official.
Mr. Dreeben suggested that while presidents don’t enjoy immunity for official acts, they could raise Article II defenses while facing prosecution. Justice Thomas asked him why prior criminal prosecutions hadn’t taken place against presidents. Mr. Dreeben claimed in response that crimes weren’t involved in previous acts.
Justice Alito worried that Mr. Dreeben’s view of immunity was “diluted.” He also seemed frustrated with Mr. Dreeben’s position, telling him that he essentially believed presidents have a form of special protection—namely that statutes applicable to everyone must be interpreted differently when applied to them. Mr. Dreeben agreed, arguing that courts followed a general principle of construing statutes to avoid serious constitutional questions.
Implications for Trump’s Cases
President Trump has argued that he should receive absolute immunity from criminal prosecution for acts that fell within the outer perimeter of his official duties. The exception to this immunity, he argues, is if Congress impeaches and convicts him on charges.
The justices decided to tackle a narrower question: “Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office?”
The U.S. Court of Appeals for the D.C. Circuit and D.C. District Judge Tanya Chutkan rejected that argument, instead claiming that presidents must face prosecution for alleged criminal wrongdoing.
Justice Roberts said he was concerned about the lower court’s holding, which both he and Mr. Dreeben suggested was tautological. He also worried about “how easy” it would be for prosecutors to bring a case through a grand jury.
Mr. Dreeben also defended his position, saying that it wouldn’t allow politically driven prosecutions given that the Constitution precludes that type of case. The “vast majority” of Justice Department prosecutors were ethical, Justice Alito indicated. However, he told Mr. Dreeben that not all were like that.
Experts have speculated to The Epoch Times that the Supreme Court will likely broaden the scope of presidential immunity to include criminal liability but to a more limited extent than what President Trump has requested. If the justices took this course, they could remand or send the case back to Judge Chutkan for further review and refinement of the case.
The case is expected to have potentially far-reaching implications for the presidency and the nation’s separation of powers.
“It may be the most read opinion in the history of this country,” criminal defense attorney Keith Johnson told The Epoch Times. He added that “it will be the kind of thing that students will be talking about for decades to come.”
The last time the Supreme Court issued a major ruling on presidential immunity was in 1973 with Nixon v. Fitzgerald. In that case, the court ruled that presidents enjoyed absolute immunity from civil liability for actions that fell within the outer perimeter of their official duties.
The outcome of this appeal could delay lower court proceedings in President Trump’s Washington trial as well as his cases in Georgia and Florida. It’s unlikely that the Supreme Court, which is expected to release a decision in June, will write an opinion that delays his ongoing criminal “hush money” trial in New York.
Justice Gorsuch asked Mr. Sauer about presidents potentially pardoning themselves, something that has been raised as a prospect in President Trump’s cases. Mr. Sauer told him that the law is unclear on that issue.
From The Epoch Times