The Supreme Court’s conservative majority seemed prepared on Thursday to decide that former presidents are to some extent immune from criminal prosecution. This decision could potentially cause further delays in the criminal case against former President Donald J. Trump, who is facing charges related to alleged efforts to undermine the 2020 election.
If this ruling is made, the case may be sent back to the trial court to distinguish between official and private conduct, ultimately making a significant statement about the extent of presidential power.
While there was a general agreement among the justices that the case could move forward based on Trump’s private actions, the additional proceedings could hinder the trial process before the 2024 election.
During Thursday’s argument, there was little emphasis on the timing of the trial, and the more conservative justices did not exhibit a sense of urgency. Instead, some of them criticized what they perceived as a politically motivated prosecution under laws they deemed unsuitable for the case.
Should the court impede a prompt trial, following its swift action in March to reinstate Trump on the Colorado ballot, it is likely to face strong criticism from liberals and others who view Trump’s actions as a threat to democracy and the rule of law.
Chief Justice John G. Roberts Jr., who sees himself as the guardian of the court’s credibility, did not reveal his stance much during the proceedings. However, he appeared skeptical of a unanimous decision by a three-judge panel of an appeals court in Washington that rejected Trump’s immunity claim.
The appeals court argued, quoting from its ruling, that a former president can be prosecuted for official acts because being prosecuted implies defiance of the law. Justice Roberts questioned this assertion.
Michael R. Dreeben, a lawyer representing the special counsel, criticized the passage, calling it tautological, a point that Chief Justice Roberts seized upon.
“Why shouldn’t we either send it back to the court of appeals or issue an opinion clarifying that this is not the law?” Chief Justice Roberts inquired.
Further legal proceedings would inevitably take time. If Trump wins the election, he could instruct the Justice Department to drop the charges against him.
The discussion, which lasted over two and a half hours, primarily focused on whether presidents, including Trump, could be prosecuted for their official actions and how to differentiate between official and private conduct.
D. John Sauer, Trump’s attorney, argued for a broad interpretation, suggesting that presidential orders to assassinate political opponents or orchestrate a coup might also be eligible for immunity.
However, several conservative justices seemed unwilling to entertain such scenarios or delve into the specifics of the allegations against Trump. Instead, they advocated for a ruling that establishes a precedent for presidential authority.
“We’re setting a rule for future generations,” commented Justice Neil M. Gorsuch.
Justice Brett M. Kavanaugh also stressed the importance of the court’s decision. “This case carries significant implications for the presidency and the future of our country,” he remarked, adding, “It could come back to haunt the current or future president.”
Justice Samuel A. Alito Jr., in a departure from the conventional view of the January 6, 2021, Capitol attack, suggested that a ruling in Trump’s favor could uphold democratic values.
“A stable, democratic society requires that a losing candidate, even in a closely contested election, peacefully relinquish power,” he argued, warning that the threat of prosecution could undermine this principle.
“Wouldn’t that lead to a cycle that undermines our country’s democratic functioning?” he questioned. “We can see examples around the world where losers are imprisoned.”
Justice Gorsuch pointed out another potential consequence of allowing prosecution of former presidents. “It seems that one possible incentive for presidents would be to pardon themselves,” he noted.
In contrast, Justice Sonia Sotomayor offered a different perspective. “A stable democratic society relies on the good faith of its public officials,” she stated.
Among the conservative majority of six justices, Justice Amy Coney Barrett appeared inclined to send a portion of the case to trial in the near future. She extracted concessions from Mr. Sauer, indicating that Trump’s use of a private attorney to promote false claims of election fraud was considered private conduct.
Mr. Dreeben, the government lawyer, affirmed that some aspects of the case pertained to private conduct.
“Engaging with private attorneys and a public relations advisor to fabricate fraudulent elector slates is not part of a president’s duties,” Mr. Dreeben argued.
Trump is accused of orchestrating a broad scheme to overturn the 2020 election results, including attempts to manipulate electoral votes and pressure officials such as Vice President Mike Pence to alter the outcome. He faces charges related to conspiracy, defrauding the government, disenfranchising voters, and obstructing congressional proceedings.
The case being considered by the court is just one of four sets of pending criminal charges against Trump, including those in a current trial in Manhattan state court involving allegations of illegal payments to influence the 2016 election. Regardless of the court’s decision, the 2024 election will be overshadowed by the legal proceedings.
Justice Alito proposed a broad principle to differentiate between official and unofficial conduct. “Imagine if the rule was that a former president could only be prosecuted for official acts if there was no plausible justification, taking into account history and legal precedent,” he posited.
Justice Sotomayor objected, suggesting that the term “plausible” was akin to absolute certainty. “What is plausible about a president creating a fraudulent slate of candidates?” she questioned.
During the session, the two attorneys fielded numerous questions about Trump’s official versus private actions. While they drew different lines, neither took a definitive stance.
Justice Kavanaugh emphasized the need for further clarification. “The president can be prosecuted for personal actions, just like any other citizen, but the focus should be on acts performed in an official capacity,” he stated.
He suggested that lower courts should be responsible for determining the distinction between the two.
This term, the court has addressed two other cases related to the January 6 Capitol attack.
In March, the court unanimously dismissed an effort to prevent Trump from appearing on the ballot in Colorado under Section 3 of the 14th Amendment, which prohibits those involved in insurrection from holding office. The court ruled that states cannot use this provision to exclude presidential candidates from the ballot.
Last week, the court heard arguments in a case challenging the use of a federal obstruction law to prosecute individuals involved in the Capitol riot. Two of the charges against Trump are based on this law.
The justices appeared skeptical about the applicability of this law, originally enacted in response to a financial scandal, to the actions of the rioters.
This skepticism was evident on Thursday as well, with Justice Gorsuch reimagining the January 6 attack to illustrate what he believed was a misapplication of the law.
“Let’s say a president leads a mostly peaceful protest sit-in in front of Congress to oppose a piece of legislation,” Justice Gorsuch hypothesized. “And it actually delays congressional proceedings.”
He continued, “So could a president be prosecuted for such conduct after leaving office?” His tone implied that the answer should be no.
