Justices seem unwilling to give Trump absolute immunity, but may not immediately green-light criminal trial (2024)

The Supreme Court appeared to be searching for a middle ground Thursday in response to former President Donald Trump’s claims of sweeping immunity, unwilling to grant him the broad protections he has sought but also unwilling to give special counsel Jack Smith carte blanche to pursue his election subversion charges.

Trump’s attorney, D. John Sauer, acknowledged some of his client’s actions following the 2020 election were private, and likely not entitled to immunity — an important concession that could help the special counsel.

But the justices also aggressively pressed Smith’s attorney on his own position, suggesting they would likely send the case back to a District Court for more review — and, potentially, far more delay.

Michael Dreeben, representing Smith, came under heavy fire from several of the court’s conservatives, including Chief Justice John Roberts and Justice Brett Kavanaugh, who questioned whether the laws Trump is accused of violating can be applied to a former president and whether an appeals court decision that found Trump was not entitled to immunity would have dramatic consequences for democracy.

Justice Samuel Alito pressed Dreeben on whether his position would “not lead us into a cycle that destabilizes the functioning of our country as a democracy.”

Alito, a conservative, said the nation could look to other countries where, after an election, “the loser gets thrown in jail.”

The court’s liberals, including Justice Sonia Sotomayor, appeared to align behind Smith’s position. “A stable democratic society needs the good faith of its public officials,” Sotomayor said.

As he considers immunity in a case centered on a president's refusal to accept his electoral defeat, Justice Samuel Alito suggested that not giving presidents immunity will actually discourage peaceful transfers of power.

Alito pressed Michael Dreeben, the attorney for the special counsel, on the idea that an outgoing president who looses a hotly-contested election will be disincentivized from leaving office peacefully because he will fear prosecution by the administration of his successor, a "bitter political opponent."

Would that not "lead us into a cycle that destabilizes the functioning of our country as a democracy?" Alito asked.

Justice Samuel Alito told the special counsel’s lawyer, Michael Dreeben, that he wanted to scrutinize “the lawyers of protection that you think exist” in the criminal justice system.

One of those protections, Trump has claimed, would be immunity for official actions. Moments later, Alito pointed out how easy it is to secure an indictment from a grand jury.

Dreeben responded by saying that sometimes a grand jury doesn’t approve charges.

“Every once and a while there’s an eclipse too,” Alito retorted, to some laughter.

Earlier in the hearing, Dreeben said “a politically-driven prosecution would violate the Constitution,” and said built-in protections are sufficient to make sure the process has been fair to Trump.

Alito also stressed that he was interested in these questions because the court, in this case, will be setting the standard for criminal liability for all future presidents.

In his broader jurisprudence over his nearly 20-year term, Alito has been seen as being less sympathetic to criminal defendants than some of his conservative colleagues.

The Supreme Court hearing so far is a mixed bag for both sides.

On the one hand, its seems clear that the court is unwilling to dismiss the case against Donald Trump outright, as he ostensibly is asking the justices to do, based on his sweeping theory of presidential immunity.

On the other hand, several justices appear skeptical of how the special counsel is framing the case.

It's possible they will render a ruling that could require several more months of lower court proceedings before the case against Trump can go to trial. That could put the possibility of a pre-election trial fully out of reach, raising the possibility that Trump will be reelected and make the case against him go away.

Justice Brett Kavanaugh asked the special counsel’s lawyer whether a “creative prosecutor” could have charged previous presidents with the same charges Trump is facing in the federal election subversion case.

“The problem is the vague statute,” Kavanaugh said, citing the obstruction and conspiracy to defraud the United States charges that Trump is facing in this case.

The charges, Kavanaugh said, “can be used against a lot of presidential activities, historically, with a creative prosecutor who wants to go after a president.”

Chief Justice John Roberts asked a series of questions suggesting he is skeptical of an appeals court decision earlier this year that found Trump did not have immunity. He also undercut a central argument raised by special counsel Jack Smith throughout the case.

The Supreme Court ruled in 1982 that former presidents are immune from civil litigation. But Smith has argued that immunity shouldn’t be extended to criminal cases. In making that argument, Smith has called attention to what he has described as “safeguards,” including the need for a grand jury to bring charges and institutional norms within the Justice Department that would counsel against political prosecutions.

Roberts seemed concerned with that position. And that's a good sign for Trump.

Donald Trump’s claim that he is entitled to sweeping immunity from criminal charges is a novel theory, but it doesn’t come out of thin air. He partly rests his argument on a 1982 Supreme Court decision that found former presidents are entitled to immunity from civil litigation for their actions in office.

The case has come up several times Thursday morning, including a mention from Chief Justice John Roberts.

Nixon v. Fitzgerald involved a former Air Force employee, A. Ernest Fitzgerald, who was fired after he provided damaging testimony to Congress about production problems with the C-5A transport plane. Fitzgerald sued Nixon for damages.

In a 5-4 decision, the Supreme Court ruled that former presidents are entitled to immunity from such lawsuits in part because of their “unique office.”

That immunity, the court ruled, extended to the “outer perimeter” of a president’s authority. In other words, the protection was broad.

Trump argues the same protections should apply to a former president for criminal charges because the same concerns about the “functioning of government” should apply. But special counsel Jack Smith says criminal charges are different, in part because the Justice Department has a strong interest in enforcing criminal laws and also because of “safeguards against unfounded” prosecutions he says are built into the system.

In the first question to special counsel Jack Smith’s attorney Michael Dreeben, Justice Clarence Thomas remained focused on the question of whether presidents are protected for conducting “official acts.”

“Are you saying there is no presidential immunity even for official acts?” Thomas asked.

Dreeben responded yes, but said that a president could assert immunity to “objections to criminal laws that interfere with an exclusive power possessed by the president, or that prevent the president from accomplishing his constitutionally assigned functions.”

“That is the constitutional doctrine that currently governs” immunity, he said.

Justice Ketanji Brown Jackson warned that absolute immunity could turn the Oval Office into "the seat of criminal activity in this country."

She said there would no incentive for presidents to follow the law while in the White House if they could never face criminal prosecution.

Her stinging remarks came after she pressed Donald Trump's attorney D. John Sauer on why presidents should not be required to follow the law when acting in their official capacity.

After the justiceshad spent several exchanges trying to decipher the line between a president's private and public acts, Jackson aimed to challenge the assumption that officials acts should be immune.

"You seem to be worried about the president being chilled. I think that we would have a really significant opposite problem if the president wasn’t chilled," she said.