The Supreme Court hears oral argument on Thursday over former President Donald Trump’s claim that he’s immune from criminal prosecution for official acts he undertook while in office.
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Supreme Court Seems Open to Allowing Some Presidential Immunity, May Delay Trump Trial
By Sam Dorman
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 acts constitute 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 former 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.
Jackson Asks If This Case Is the Right Vehicle to Question Presidential Immunity
By Savannah Hulsey Pointer
Justice Ketanji Brown Jackson questioned attorney for the special counsel Michael Dreeben about whether this case was the “right vehicle” to answer the question about how possible presidential criminal activity and immunity interact.
Mr. Dreeben responded, saying, “I don’t see any need in this case for the court to embark on that analysis,” harkening to his previous comments that he believes there are “no acts that have been alleged in the indictment that would be off limits as a matter of Article II.”
Special Counsel Attorney Alleges ‘Integrated Conspiracy’
By T.J. Muscaro
Justice Amy Coney Barrett asked attorney for the special counsel Michael Dreeben if he could proceed based on private conduct rather than official conduct.
“There’s really an integrated conspiracy here that has different components as alleged in the indictment,” Mr. Dreeben said, arguing that President Donald Trump worked with private lawyers to “achieve the goals of the fraud” while reaching for his official powers.
“We would like to present that as an integrated picture to the jury so that it sees the sequence and the gravity of the conduct and why each step occurred,” Mr. Dreeben said.
However, if the Court ruled that, what the special counsel called, “the functional electoral scheme” was private conduct, as well as the reaching out to state officials as a candidate and “trying to explicit the violence after Jan. 6” by calling on senators to delay the certifications, he was confident that his team could still introduce interactions with the Justice Department and with the vice president to the Department of Justice.
He also added that “the concerns about the use of evidence of presidential conduct that might otherwise be official and subject to executive privilege is already taken care of by United States vs. Nixon.”
Kavanaugh Questions Relaxing Article II For the ‘Needs of the Moment
By Savannah Hulsey Pointer
Justice Brett Kavanaugh questioned Special Counsel Michael Dreeben about the implications of relaxing the application of the areas of the Constitution, namely Article II, that govern how the president functions and is governed by the other branches of government “for the needs of the moment.”
Justice Kavanaugh questioned how the president would function if he is “routinely subjected to investigation going forward.”
Mr. Dreeben attempted to put those concerns to rest, saying that while there were previously “flaws in the independent counsel system,” that system has been changed and that “We now are inside the Justice Department with full accountability resting with the attorney general, so the Special Counsel Regulations.”
Kavanaugh: Are We Facing a Morrison v. Olson redux?
By Jacob Burg
Justice Brett Kavanaugh raised concerns about the present case reviving issues raised in Morrison v. Olson, which ruled the Independent Counsel Act was constitutional and established the scope of Congress’s authority to impede a president’s authority to remove appointees from office.
He asked special counsel lawyer Michael Dreeben if former presidents are subject to prosecution, whether that would “cycle back” and be used against the current or other future presidents.
“So we’ve lived from Watergate through the precedent through the independent counsel era with all of its flaws, without these prosecutions having gone off on a runaway train,” Mr. Dreeben replied.
Justice Kavanaugh said former Presidents Ronald Reagan, George H.W. Bush, and Bill Clinton would have suggested otherwise.
“I think nobody likes being investigated for a crime,” Mr. Dreeben said.
Gorsuch: ‘We’re Writing a Rule for the Ages’
By T.J. Muscaro
Justice Gorsuch emphasized, “We’re writing a rule for the ages,” and “stressed the dangerousness of accusing your political opponent of having bad motives”
“I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives, whether it’s reelection,” he said.
“I’m gonna say something that I don’t normally say, which is—that’s really not involved in this case: We don’t have a bad political motive in that sense,” attorney for the special counsel Dreeben replied.
Gorsuch Questions the Role of Motives in Determining Criminality
By Samantha Flom
Justice Neil Gorsuch expressed concern over how the court’s decision could affect future presidents—specifically whether they might fall prey to politically motivated prosecution.
In that vein, the justice asked special counsel attorney Michael Dreeben what role a president’s motives might play in determining the criminality of his actions.
While Mr. Dreeben noted that the question doesn’t apply to this specific case, he said he would start by examining the statutes in question to see what restrictions they place on the president’s conduct.
He cited the example of a statute that bars fraud “to defeat the lawful function of the United States. The statute defines what the purpose is that the defendant has to have in mind. It has to be to defeat something that the United States is doing, and it has to be by deception.”
He added, though, that “wanting to get reelected is not an illegal motive, and you don’t have to worry about prosecuting presidents for that.”
Alito Questions Special Counsel’s Position on Self Pardon
By Savannah Hulsey Pointer
Justice Samuel Alito questioned special counsel lawyer Michael Dreeben about the Justice Department’s official position on a president pardoning himself. The special counsel said that his department hasn’t “taken a position” on that issue.
Justice Alito further questioned whether the court could decide without knowing the Justice Department’s opinion on whether the pardon could be used, saying, “Won’t the predictable result be that presidents have in the last couple of days of office are going to pardon themselves from anything that they might have been conceivably charged with committing?”
Mr. Dreeben responded, saying, “I really doubt that Justice Alito.” The attorney went on to say the question “presupposes a regime that we have never had except for President Nixon and as alleged in the indictment here.”
Special Counsel Lawyer: ‘False Electors Scheme’ is Campaign Activity, Not Official Duties
By Jacob Burg
Special counsel lawyer Michael Dreeben argued that former President Donald Trump went outside his official duties when he organized a “fraudulent slate of electors” in multiple states to challenge the results of the 2020 election.
“That is not an official conduct, that is campaign conduct,” Mr. Dreeben said.
“We think that aggravates the nature of this offense, seeking as a candidate to oust the lawful winner of the election and have oneself certified with private actors, is a private scheme to achieve a private end,” the lawyer added, and that using his presidential powers to do this “makes the crime in our view worse.”
Alito: Could Prosecuting an Outgoing President ‘Destablize’ Democracy?
By Jacob Burg
Justice Samuel Alito posed a hypothetical scenario to special counsel lawyer Michael Dreeben about an outgoing president facing prosecution by his “bitter political opponent” after losing a “hotly contested election.”
“Will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”
Justice Alito said there are examples around the world where political rivals put their opponents in jail after defeating them in elections.
Mr. Dreeben said it’s “exactly the opposite,” and that after the courts affirmed the election results after former President Donald Trump challenged them, he should follow history and “accept the results.”
Sotomayor: ‘Democratic Society Needs the Good Faith of Its Public Officials’
By T.J. Muscaro
Justice Sotomayor emphasized that a stable democratic society needs to have good faith in the assumption that its public officials follow the law, but acknowledged that “there is no failsafe system of government.”
She also referred back to Justice Alito’s comments about the destabilizing effect this decision could have and said if the system fails, it’s because we’ve destroyed our democracy on our own.”
Special Counsel Dreeben agreed but argued “that there are additional checks in the system” and “the ultimate check is the goodwill and faith in democracy and crimes that are alleged in this case that are the antithesis of democracy.”
He argued that it was an assumption of the Constitution that no man is above the law.
Dreeben: ‘The President Has No Functions’ in Certifying Presidential Elections
By T.J. Muscaro
Justice Alito suggested that the charge of conspiracy to defraud the United States is a “peculiarly open-ended statutory prohibition,” adding that “it’s difficult to think of a more critical function than the certification of who won the election.”
Special Counsel Dreeben said that the government needs to show “any intent to impede, interfere or defeat a lawful government of function by deception.”
He also argued that “the president has no functions with respect to the certification of the winner of the president of the election” and that the way states conduct elections explains the potential for self-interest.”
“It’s difficult for me to understand how there could be a serious constitutional question about saying, ‘You can’t use fraud to defeat that function. 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.”
Alito Questions How Robust are the ‘Layers of Protection’
By Jacob Burg
Former President Donald Trump’s position is that presidents need absolute immunity to prevent “chilling” their ability to perform official acts, but special counsel lawyer Michael Dreeben says there are “layers of protection” to safeguard against those concerns and prevent prosecutors from acting with impropriety.
However, Justice Samuel Alito questioned how robust those protections are if there exists a possibility prosecutors could act unethically, and suggested there have been “exceptions to that.”
“So as for attorneys general, there have been two who were convicted of criminal offenses while in office, there were others,” Justice Alito said.
Gorsuch Raises Hypothetical of President Leading Peaceful Protest
By Samantha Flom
During an exchange with Justice Neil Gorsuch, special counsel attorney Michael Dreeben conceded that there were some acts that the president should be immune from prosecution over.
Those acts, Mr. Dreeben said, would be those “core” to the president’s role as defined by the Constitution, such as issuing pardons, recognizing foreign nations, vetoing legislation, and making appointments.
Justice Gorsuch asked whether a president could be prosecuted over an act outside of those core activities, like leading a “mostly peaceful” sit-in outside the Capitol that delays a congressional proceeding.
“Probably not,” Mr. Dreeben replied. But he went on to argue that the president could potentially be prosecuted for that action if it was determined that the violated statute applied to him.
Risk of ‘Creative’ Prosecution of the President
By Savannah Hulsey Pointer
Justice Brett Kavanaugh brought up the “serious constitutional question” about the risk of every statute being applied to the presidential official acts, saying, “Conspiracy of fraud the United States can be used against a lot of presidential activities historically with a creative prosecutor who wants to go after a president.”
Special counsel lawyer Michael Dreeben responded, saying it was the Justice Department’s view that “there is a balanced protection that better serves the interests of the Constitution that incorporates both accountability and protection for the President,” than the immunity being requested by former President Donald Trump’s attorney.
Sotomayor: Impeachment Before Criminal Charges Creates Contradiction
By Jacob Burg
While questioning Special Counsel Lawyer Michael Dreeben, Justice Sonia Sotomayor suggested that there is a tautological issue with former President Donald Trump’s claim that he must first be impeached before prosecutors charge him with criminal law.
Mr. Dreeben argued that approach would mean there would be nothing to prosecute him for via impeachment if the criminal allegations have to come after.
“That’s the point, which is if he’s not covered by the criminal law, he can’t be impeached for literally violating it,” Justice Sotomayor replied.
Special Counsel Lawyer: Politically Driven Prosecution Would Violate the Constitution
By Jacob Burg
Special Counsel Lawyer Michael Dreeben defended the Court of Appeals judgment and argued that it would not have a “chilling effect” on presidents.
He said there are “layered safeguards” the court can take into account to address concerns of “chilling” a president’s conduct.
“[W]e are not endorsing a regime that we think would expose former presidents to criminal prosecution in bad faith for political animus without adequate evidence of politically driven prosecution would violate the constitution,” Mr. Dreeben added.
Special Counsel Lawyer Says Absolute Immunity Not Constitutional
By Samantha Flom
Attorney Michael Dreeben, arguing on behalf of the special counsel, noted that the Supreme Court has never recognized absolute criminal immunity for any public official.
Granting such immunity to former President Donald Trump, Mr. Dreeben argued, would immunize presidents for criminal liability for bribery, treason, sedition, murder, and “conspiring to use fraud” to keep themselves in power.
He also argued that the Constitution does not support absolute criminal immunity for the president. The framers, he said, “knew too well the dangers of a king who could do no wrong” and designed the U.S. government with a mind to prevent future abuses of power.
Jackson: Absolute Immunity Could Turn Oval Office Into ‘Seat of Criminal Activity’
By Jacob Burg
Justice Ketanji Brown Jackson rejected former President Donald Trump’s Lawyer, D. John Sauer’s claim that without absolute immunity, there would be a “chilling effect” on a president’s ability to perform official duties.
She suggested that giving absolute immunity would have a reverse problem if the “president wasn’t chilled.”
“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,” Justice Jackson asked.
Barrett: Does Impeachment Necessarily Precede Criminal Prosecution?
By Jacob Burg
Justice Amy Coney Barrett asked former President Donald Trump’s lawyer D. John Sauer about his argument that impeachment and conviction by Congress is the necessary “gateway to criminal prosecution.”
She said many, including the nine Supreme Court justices, are subject to impeachment.
“I don’t think anyone has ever suggested that impeachment would have to be the gateway to criminal prosecution for any of the many other officers subject to impeachment,” Justice Barrett said.
She then asked Mr. Sauer why the president would be any different when the impeachment clause doesn’t explicitly suggest that.
Kagan: No Immunity Clause in the Constitution
By Jacob Burg
Justice Elena Kagan said the framers did not put an immunity clause in the Constitution.
Some state constitutions had immunity clauses, and the framers “knew how to get legislative immunity,” but “they didn’t provide immunity to the president,” she said.
“They were reacting against a monarch who claims to be above the law. Wasn’t the whole point that the President was not a monarch, and the President was not supposed to be about the law?” Justice Kagan asked.
Kagan: Would Selling Nuclear Secrets Warrant Immunity
By Savannah Hulsey Pointer
Justice Elena Kagan put a number of hypotheticals to former President Donald Trump’s attorney, D. John Sauer, asking what actions would be considered an official act and what would be personal.
Justice Kagen asked, “If a president sells nuclear secrets to a foreign adversary,” would that be considered an official act in light of presidential immunity.
Mr. Sauer responded, saying that much like his response to the question of bribery, would “likely not” be seen as an official act.
Trump Counsel Argues that ‘Defending Election Integrity’ in Arizona Was Official Act
By T.J. Muscaro
Justice Kagan brought up President Trump’s request to the Arizona House Speaker to call the legislature into session to hold a hearing based on claims of election fraud, and Mr. Sauer confirmed that it was an official act.
It was “absolutely an official act for the President to communicate with state officials on a matter of enormous federal interest and concern, attempting to defend the integrity of a federal election to communicate with state officials and urge them to view what he views as their job under state law and federal law,” he said.
Justice Kagan acknowledged that defending election integrity was President Trump’s defense, but the allegation is that he was attempting to overthrow the election.
She called it an “extremely strong precedent from this court” that neither allegation of what the purpose is should make a difference as to what falls under immunity.
Mr. Sauer disagreed.
Expunging ‘Official Acts’
By Jacob Burg
Trump lawyer D. John Sauer, asked for a remand to determine what constitutes official and private acts as a president.
Chief Justice John Roberts queried the possibility of expunging official acts from the indictment, saying that it would turn the case into a “one-legged stool.”
Mr. Sauer said the case, therefore shouldn’t go forward in seeking to separate the official from unofficial acts in the indictment’s allegations.
Alito Brings Up SEAL Team 6 Example
By Samantha Flom
Justice Samuel Alito suggested that presidential immunity might only cover “plausibly” legal acts undertaken by the president.
As an example, he noted that it probably would not be “plausibly legal” to order SEAL Team 6 to obey an unlawful order. This hypothetical was brought up during argument before the appeals court, when Mr. Saur was questioned whether a president directing SEAL Team Six to kill a political opponent would still have immunity.
“I don’t want to slander SEAL Team 6 because … they’re honorable officers, and they are bound by the Uniform Code of Military Justice not to obey unlawful orders,” he said. “But no one is—I think one could say that’s not plausible, that that action would be legal.”
He added that he could think of lots of other hypothetical situations where a president could claim to be acting in his official capacity and then use his power “in an absolutely outrageous manner.”
Sotomayor Questions Absolute Immunity
By Savannah Hulsey Pointer
Justice Sonia Sotomayor questioned D. John Sauer, the attorney for former President Donald Trump, about absolute immunity, questioning what actions a president could take that would warrant prosecution.
Justice Sotomayor said she was “having a hard time thinking that creating false documents, that submitting false documents, that ordering the assassination of a rival, that accepting a bribe, and countless other laws that could be broken for personal gain, that anyone would say that it would be reasonable for a president or any public official to do that.”
Mr. Sauer responded to the hypothetical, saying that “the allegation that this particular act would be done for an unlawful purpose.” He also asserted that in a case like the one Justice Sotomayor presented, the difference would be the intention, or “improper purpose,” in the actions listed.
Justice Jackson Suggests Pursuing ‘Personal Gain’ Is Not ‘Acting Officially’ as President
By Jacob Burg
Supreme Court Justice Ketanji Brown Jackson seemed skeptical that former President Donald Trump was acting within the “official duties” in the allegations around his case.
“One could say that when the president is using the trappings of his office to achieve a personal gain, then he’s actually not acting officially, even if the doctrine was absolute immunity. So what do you say about that?” she asked President Trump’s lawyer, D. John Sauer.
Mr. Sauer suggested that presidential actions could always be alleged to be “motivated by an improper private purpose.”
Justice Jackson reaffirmed her belief that President Trump was not “acting in his official capacity,” but was instead doing something “personal.”
Justices Ask About ‘Official Acts’
Justices Sonya Sotomayer and Ketanji Brown Jackson asked Trump attorney D. John Sauer whether a president should be immune from prosecution when he uses the office for personal gain.
“One could say that when the president is using the trappings of his office to achieve a personal gain, then he’s actually not acting officially, even if the doctrine was absolute immunity,” Justice Jackson said.
Supreme Court Arguments Underway
First up on Thursday was D. John Sauer, making President Trump’s argument that he’s immune from criminal prosecution. A former Missouri solicitor general and onetime Supreme Court clerk, Mr. Sauer also represented Trump at the appeals court level.
President Trump went to those arguments even though he wasn’t required to be there, but he won’t be in the audience at the Supreme Court today. He’s required to be in New York for his hush money trial.
About 30 demonstrators gathered outside the Supreme Court before arguments, some wearing judicial robes with kangaroo masks and others holding signs like “Justice Delayed Is Justice Denied.” That’s an apparent reference to the timing of the high court’s ultimate decision in the case, which could determine whether a trial can be held before the election in November.
Trump Takes to Socioal Media Before Arguments
Shortly before arguments were slated to begin, President Trump fired off a few posts Thursday on his social media network.
In one, he declared in all caps, “WITHOUT PRESIDENTIAL IMMUNITY, IT WOULD BE IMPOSSIBLE FOR A PRESIDENT TO PROPERLY FUNCTION, PUTTING THE UNITED STATES OF AMERICA IN GREAT AND EVERLASTING DANGER!”
President Trump also said that without immunity, a president would just be “ceremonial” and the opposing political party “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.”
What to Know
By Sam Dorman
The Supreme Court will hear oral argument today over former President Donald Trump’s claim that he’s immune from criminal prosecution for official acts he undertook while in office.
Besides altering longstanding precedent, the decision could bear and delay the criminal prosecutions President Trump is facing before the election.
An appeals court in Washington rejected his attempt to claim immunity in the Justice Department’s prosecution of his activity on Jan. 6 and in response to the 2020 presidential election. The Supreme Court is set to review that decision and potentially establish a broader definition of presidential immunity.
Amid the options available to the justices are redefining the scope of immunity while sending the case back to the district court for reconsideration. It could also outright reject either President Trump’s claims to immunity, or Special Counsel Jack Smith’s argument that he doesn’t enjoy immunity from criminal prosecution.
Nixon v. Fitzgerald, a Supreme Court case from 1973, established that presidents enjoy absolute immunity from civil liability for actions that fell within the “outer perimeter” of their official duties. Experts speculated to The Epoch Times that the justices could extend that same framework to criminal liability.
This is the second major oral argument the justices are hearing about attempts to punish President Trump for his conduct following the 2020 presidential election. They heard oral argument in February over Colorado’s attempt to disqualify him from the state’s ballot, and issued a unanimous judgment in opposition.
A week before President Trump’s appeal is reaching the Supreme Court, the justices also heard oral argument over how the DOJ applied a financial reform law to Jan. 6 defendants. That same law forms part of DOJ’s indictment against President Trump.
Separation of Powers is a major issue that will likely loom large in both the oral argument and eventual opinion. President Trump has argued that judicial review of his official acts would be inappropriate, while Special Counsel Jack Smith said granting criminal immunity would upset the balance of power and allow presidents to get away with egregious wrongdoing.
The Associated Press contributed to this report.
From The Epoch Times
