The U.S. Supreme Court on Thursday took up Donald Trump’s bid to avoid prosecution over his efforts to overturn his 2020 election loss to Democrat Joe Biden. Trump’s lawyers argue that former presidents are entitled to absolute immunity for their official acts. Otherwise, they say, politically motivated prosecutions of former occupants of the Oval Office would become routine and presidents couldn’t function as the commander in chief if they had to worry about criminal charges.
Here’s the latest:
Quick Read
- Extended Arguments: The Supreme Court heard extended arguments, lasting over 2.5 hours, in Donald Trump’s case concerning his efforts to overturn his 2020 election loss. Originally scheduled for an hour, the discussions delved deep into the nuances of presidential immunity.
- Rejection of Absolute Immunity: Lower courts, including a unanimous decision by a three-judge panel, have rejected Trump’s argument for absolute immunity. The Supreme Court’s decision, expected by June, could affirm this stance, impacting the timing of Trump’s trial, which he seeks to delay until after the November election.
- Presidential Implications: The case has significant implications for the presidency and the future, as underscored by Justices Neil Gorsuch and Brett Kavanaugh. The outcome could define the scope of immunity for former presidents, potentially requiring lower courts to decide its application to Trump.
- Special Counsel’s Arguments: The Special Counsel’s team, led by attorney Michael Dreeben, argued that Trump’s actions as a candidate do not warrant immunity. The team emphasized that not all presidential acts are protected, particularly those unrelated to official duties.
- Judicial Skepticism: Several justices, including Chief Justice John Roberts and Justice Amy Coney Barrett, expressed skepticism about the broad immunity claimed by Trump. The justices explored various scenarios, indicating a critical view of the arguments for absolute immunity.
- Legal Metaphors and Humor: Throughout the serious legal discussions, the justices used metaphors and humor to illustrate their points, with references to “one-legged stools,” “ham sandwiches,” and solar eclipses, adding a lighter tone to the proceedings.
- Implications for Future Prosecutions: The decision will have broader implications for how former presidents can be held accountable for actions taken while in office, particularly those that might be deemed criminal post-presidency.
The Associated Press has the story:
Supreme Court arguments conclude in Trump’s immunity case
WASHINGTON (AP) —
The U.S. Supreme Court on Thursday took up Donald Trump’s bid to avoid prosecution over his efforts to overturn his 2020 election loss to Democrat Joe Biden.
Trump’s lawyers argue that former presidents are entitled to absolute immunity for their official acts. Otherwise, they say, politically motivated prosecutions of former occupants of the Oval Office would become routine and presidents couldn’t function as the commander in chief if they had to worry about criminal charges.
Lower courts have rejected those arguments, including a unanimous three-judge panel on an appeals court in Washington. And even if the high court resoundingly follows suit, the timing of its decision may be as important as the outcome.
That’s because Trump, the presumptive 2024 Republican presidential nominee, has been pushing to delay the trial until after the November election, and the later the justices issue their decision, the more likely he is to succeed.
The court typically issues its last opinions by the end of June, which is roughly four months before the election.
ARGUMENTS CONCLUDE
Arguments before the U.S. Supreme Court have ended after more than 2 1/2 hours in Donald Trump’s bid to avoid prosecution over his efforts to overturn his 2020 election loss to Joe Biden.
The arguments had been scheduled to last for an hour but ran more than double the allotted time.
The case delved deep into the nuances of immunity, and key questions of when the high court might rule remain unclear.
The court usually releases its opinions by the end of June, and the timing of the ruling could be as important as the outcome.
At least five justices appeared likely to reject the claim of absolute immunity, but some also suggested that former presidents might have some immunity.
If their ruling reflects that and requires lower courts to then sort out whether immunity applies to Trump, it could push the trial past the November election.‘
A RULE FOR THE AGES’
The Supreme Court justices are keenly aware their decision on whether former commanders in chief have immunity will have huge implications not just for this case, but also far beyond this prosecution.
During arguments Thursday in Donald Trump’s bid to avoid prosecution over his efforts to overturn his 2020 election loss, Justice Neil Gorsuch told special counsel team lawyer Michael Dreeben they are “writing a rule for the ages.”
Justice Brett Kavanaugh concurred, adding: “This case has huge implications for the presidency, for the future of the presidency, for the future of the country.”
Dreeben is working hard throughout the arguments to make clear that a prosecution in this case would not open the floodgates to other criminal charges against future ex-presidents.
In response to a question about drone strikes authorized by former President Barack Obama, Dreeben said the U.S. government already analyzed that fact pattern and concluded that there was “no risk of prosecution for that course of activity.”
THE HEART (AND THE TIMING) OF THE CASE
As Supreme Court arguments over immunity for Donald Trump stretched near the two-hour mark Thursday, special counsel team attorney Michael Dreeben got to the heart of the government’s case.
He ticked through the acts Trump is charged with, including a slate to elevate fake electors in battleground states, that he said were undertaken in Trump’s status as a presidential candidate and not a president.
Dreeben did, however, note that Trump’s interactions with Justice Department officials in his administration were perhaps protected acts.
The justices appeared highly skeptical of Trump’s claims of absolute immunity, but with arguments still underway, the essential question of when they might decide the case remains unclear.
The timing of their ruling could be as important as the outcome. At least five justices appeared likely to reject the claim of absolute immunity, but some also suggested that former presidents might have some immunity.
If their ruling reflects that and requires lower courts to then sort out whether immunity applies to Trump, it could push the trial past the November election. The court usually releases opinions by the end of June.
ONE-LEGGED STOOLS, HAM SANDWICHES AND AN ECLIPSE
In oral arguments that have involved a lot of elevated legal jargon, the Supreme Court justices also sneaked in a few fun metaphors Thursday during Donald Trump’s bid to avoid prosecution over his efforts to overturn his 2020 election loss to Joe Biden.
Striking a skeptical note while questioning Trump lawyer D. John Sauer, Chief Justice John Roberts argued that expunging from the indictment acts that are official rather than personal would hobble the case, making it a “one-legged stool.”
Later, in conversation with special counsel team lawyer Michael Dreeben, Justice Samuel Alito brought up “the old saw about indicting a ham sandwich.” He was referring to the belief that indictments are easy to secure, and that they don’t necessarily indicate any likelihood of guilt.
Alito asked Dreeben whether he had come across a lot of cases in which a federal prosecutor wanted to indict a case and the grand jury refused. Dreeben said there are such cases, before Alito cut him off.
“Every once in a while there’s an eclipse, too,” Alito said, drawing some laughs in the courtroom.
SPECIAL COUNSEL’S TEAM IS UP BEFORE THE COURT
The team under Special Counsel Jack Smith, which wrote that a lack of previous criminal charges “underscores the unprecedented nature” of what Donald Trump is accused of, is up before the Supreme Court in Trump’s bid to avoid prosecution over his efforts to overturn his 2020 election loss to Democrat Joe Biden.
Michael Dreeben, a lawyer for the Smith team, said the court has never before recognized absolute immunity for a former president. “Such presidential immunity,” he said, “has no foundation in the Constitution.”
Justice Clarence Thomas asked Dreeben whether he was saying that there was no immunity even for official acts.
Dreeben said yes and also that impeachment and conviction before the Senate is not a prerequisite for a courtroom prosecution. Dreeben said there are plenty of checks to prevent politically motivated prosecutions.
Thomas said that other presidential acts in the past would have seemed ripe for prosecution and yet none occurred. Dreeben responded that the core distinction is that those other acts were not crimes.
Dreeben said the Smith team was not endorsing a system in which presidents would be exposed to prosecution for mistakes or bad judgments.
GORSUCH POSES FRIENDLY QUESTIONS
Justice Neil Gorsuch posed a line of questions Thursday that appeared friendly to arguments by Trump’s lawyers in his bid to avoid prosecution over his efforts to overturn his 2020 election loss to Democrat Joe Biden.
Gorsuch suggested that if presidents fear they could be prosecuted after they leave office, they could begin preemptively pardoning themselves.
“We’ve never answered whether a president can do that. And happily, it’s never been presented to us,” he said.
But Justice Amy Coney Barrett took issue with a key argument of the Trump team — that under the Constitution, former presidents must be impeached and convicted before the Senate before they can be prosecuted in court.
Barrett said no one has ever suggested the justices would need to be impeached and convicted before they could be prosecuted. Trump lawyer D. John Sauer responded that under the Constitution, the sequence is only mandatory as it relates to former presidents.
JUSTICES POSE SCENARIOS AND EXPRESS SKEPTICISM
Some Supreme Court justices posed scenarios or expressed skepticism Thursday as arguments started in Donald Trump’s bid to avoid prosecution over his efforts to overturn his 2020 election loss to Democrat Joe Biden.
Conservative Justice Samuel Alito said he considered it “implausible” that a president could legally order Navy SEALs to order the assassination of a political rival. That skepticism matters because the hypothetical is something the Trump team, which includes attorney D. John Sauer, has suggested could theoretically be protected from prosecution.
Conservative Justice Amy Coney Barrett asked Sauer a question that cut to the heart of the case, reading aloud allegations from the indictment and asking him to respond whether Trump’s actions in each instance were private or official.
Trump’s attorneys concede that immunity does not extend to personal actions but instead protects official acts. Sauer said he believed most of the acts are unquestionably official.
Chief Justice John Roberts, who could be a key swing vote, struck a skeptical note about the idea of expunging from the indictment acts that are official rather than personal, saying such a move would render the case a “one-legged stool.”
Liberal Justice Ketanji Brown Jackson said Sauer was asking for a change in the immunity law. She raised Richard Nixon’s pardon, asking, “I think that if everybody thought that presidents couldn’t be prosecuted, then what was that about?”
Liberal Justice Elena Kagan noted the Founding Fathers did not insert an immunity clause for presidents into the Constitution — but, she said, “they knew how to.”
Currently:
— What to listen for during Supreme Court arguments on Donald Trump and presidential immunity
— The Supreme Court will decide whether Trump is immune from federal prosecution. Here’s what’s next
— What to know in the Supreme Court case about immunity for former President Trump
— Trump is in New York for the hush money trial while the Supreme Court hears his immunity case in DC
— Follow the AP’s coverage of the U.S. Supreme Court at https://apnews.com/hub/us-supreme-court
