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Washington — The Supreme Court’s conservative majority on Thursday appeared open to recognizing some level of immunity from federal prosecution for the official acts of former presidents as they weighed a blockbuster dispute that will be critical to the fate of former President Donald Trump’s 2020 election case in Washington, D.C. But the court expressed skepticism toward Trump’s broad argument that he should be absolutely immune from charges related to conduct that occurred while he was in office.
Across nearly three hours of arguments, several members of the court’s six-member conservative bloc signaled that they believed a former president should be shielded from criminal charges for some actions undertaken within the duties of their office. But it was unclear whether there is enough support on the court to establish a test for determining when conduct crosses the line from official into private.
The justices signaled they could send the dispute back to the lower courts for proceedings over whether Trump’s alleged actions surrounding the 2020 election were taken in his capacity as an office-seeker or office-holder.
Trump was charged with four criminal counts in connection with what special counsel Jack Smith claims was a scheme to subvert the transfer of presidential power after the 2020 election. He has pleaded not guilty. Smith attended the arguments.
Throughout the hearing, sharp divisions emerged as the justices wrestled with a previously untested question: whether the doctrine of presidential immunity extends to criminal prosecution for acts undertaken by a former president while he was in office. Justices across the ideological spectrum expressed concern as they weighed the competing fears of leaving presidential power unchecked with the costs of constraining sitting presidents who could face threats of criminal charges after leaving office.
The liberal justices warned that recognizing that a former president is entitled to sweeping immunity might embolden sitting presidents to commit crimes while in the White House, while the conservative justices indicated they are worried that charges could be brought against future presidents.
“It’s not going to stop,” Justice Brett Kavanaugh, appointed by Trump, told Michael Dreeben, who argued on behalf of the special counsel. “It’s going to cycle back and be used against the current president or the next president and the next president and the next president after that.”
But Justice Ketanji Brown Jackson suggested the greater danger could lie in the other extreme, posing the possibility that a decision in Trump’s favor might embolden others to turn “the Oval Office into the seat of criminal activity in this country.”
“Why is it that the president would not be required to follow the law when he is performing his official acts,” she asked.
The stakes in the case
The Supreme Court has never before addressed whether a former president is immune from criminal prosecution, and the outcome of the legal battle will determine whether Smith’s case heads to trial. The court has a 6-3 conservative majority, and Trump appointed three of its members.
The high court said that a president is immune from civil liability for acts taken within the “outer perimeter” of his official duties. A decision from the Supreme Court in this case is expected by the end of June.
If Trump prevails, it would bring his federal prosecution in Washington to an end. But if the Supreme Court sides with the special counsel — who has succeeded before two lower courts — and the justices reject Trump’s claims of broad immunity, proceedings in the case could resume. It remains unclear, however, how soon afterward a trial would begin.
A victory for Smith would also further raise the stakes of the 2024 election for Trump, since he could order the Justice Department to drop the criminal charges against him if he retakes the White House.
The arguments were the last of the Supreme Court’s current term, during which the justices have taken up numerous disputes that have directly or indirectly involved Trump. The Supreme Court in March said states cannot keep Trump from the 2024 ballot using a rarely invoked provision of the 14th Amendment, overturning a blockbuster decision from Colorado’s highest court that deemed him ineligible for the presidency because of his actions surrounding the Jan. 6, 2021, assault on the U.S. Capitol..
The proceedings are also taking place alongside the historic criminal trial involving Trump taking place in Manhattan, where he is charged with 34 state felony counts for falsifying business records. The former president pleaded not guilty to those charges, and unsuccessfully attempted to have them tossed out on immunity grounds. The judge overseeing that trial denied Trump’s request to be excused to attend the Supreme Court arguments.
Oral arguments
During the arguments, the justices focused on what constitutes an official act that a president performs under the authority of the elected office, which some suggested might constitute a line for criminal charges. Justices Elena Kagan and Amy Coney Barrett raised some of the specific allegations in Smith’s indictment, with Kagan questioning D. John Sauer, who argued on behalf of Trump, how some of his actions could have been taken within his official duties.
“The allegation is that he was attempting to overthrow the election,” Kagan said. The framers of the Constitution, she said later, “did not put an immunity clause in the Constitution.”
Under questioning by Barrett, Trump’s attorney conceded that while the former president’s legal team disputes the allegations in the indictment, some of the conduct described in the charges — like hiring private attorneys and implementing post-election campaign plans — are private acts.
Several of the liberal justices pressed Sauer on the scope of his push for sweeping immunity. Could a president be criminally charged for ordering the assassination of a political rival, Sotomayor asked.
Sauer told the court that if a former president is not entitled to sweeping immunity, “there can be no presidency as we know it,” and he warned that the “looming threat” of criminal charges “will distort the president’s decision-making.”
Justice Neil Gorsuch raised the possibility of further proceedings before the federal district court judge assigned to oversee the case to determine what part of the alleged conduct in the Trump indictment might be official in nature — an outcome that seemed more likely as the arguments continued.
He later suggested that absent immunity for a president’s official actions, an outgoing commander-in-chief could pardon himself to head off prosecutions by any successor. The Supreme Court has never addressed before the constitutionality of a so-called self-pardon.
Dreeben, meanwhile, argued that a former president has no “permanent” immunity from criminal charges. He later asserted that prosecutors were “not endorsing” a “regime” in which a former president could be prosecuted after leaving office for all conduct.
But the criminal allegations against Trump, Dreeben said — that he engaged in a fraudulent conspiracy to hold on to power after losing the election — are the “antithesis of democracy.”
At different points during the justices’ questioning of Dreeben, several of the conservative justices warned that their decision in the case involving Trump would have effects that reach beyond his prosecution.
“I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives,” Gorsuch said.
Kavanaugh, meanwhile, said the case has “huge implications for the presidency, and the future of the presidency, for the future of the country.”
Chief Justice Roberts, Justice Clarence Thomas and Alito pressed Dreeben on the safeguards that exist to protect presidents from being unduly charged. Roberts took issue with the lower court’s opinion that allowed the prosecution to go forward, calling its reasoning “tautological.”
In his view, the lower court held, “A former president can be prosecuted because he’s being prosecuted.” He added, “I would not suggest that that’s either a proper approach in this case or certainly not the government’s approach.”
Dreeben said the grand jury process and the legal doctrine that dictates the sitting president’s public authority deter undue prosecutions. And under questioning from Gorsuch, Dreeben conceded that there was a “small set” of “core” activities or conduct for which presidents can’t be prosecuted.
Alito pushed further, asking Dreeben if he believed that a president would be vulnerable to criminal charges if he made a mistake while in office: “You don’t think he is in a particularly precarious position?”
Sotomayor reflected during the arguments that the judicial system “has layers and layers of protection for accused defendants, in hopes that the innocent will go free.” She conceded, “We fail routinely, but we succeed more often than not.”
“Justice Alito went step by step through all the mechanisms that could potentially fail,” Sotomayor continued. “In the end, if it fails completely, it’s because we’ve destroyed our democracy on our own, isn’t it?”
The Trump immunity case
Proceedings in the case against Trump have been on hold for months while the immunity matter has gone through the federal courts.
Two lower courts in Washington rejected his claim that he’s shielded from criminal charges tied to conduct that happened while he was still president. His attorneys called on the Supreme Court to reverse those rulings.
Pointing to the historic charges against Trump, his lawyers said that their unprecedented nature is evidence that presidents are broadly shielded from criminal charges.
“From 1789 to 2023, no former, or current, president faced criminal charges for his official acts — for good reason,” they wrote in a filing last month. “The president cannot function, and the presidency itself cannot retain its vital independence, if the president faces criminal prosecution for official acts once he leaves office.”
Trump’s lawyers claim his actions between the November 2020 election and Jan. 6 Capitol attack were undertaken as part of his official duties, not in his capacity as a presidential candidate.
“Once our nation crosses this Rubicon, every future president will face de facto blackmail and extortion while in office, and will be harassed by politically motivated prosecution after leaving office, over his most sensitive and controversial decisions,” Sauer warned the Supreme Court in the filing. “That bleak scenario would result in a weak and hollow President, and would thus be ruinous for the American political system as a whole.”
Trump’s legal team has also asserted that presidents can only be prosecuted if they were first impeached by the House and convicted by the Senate. He was impeached by the House on a single article of incitement of insurrection after the Jan. 6, 2021, attack on the U.S. Capitol but acquitted by the Senate.
The special counsel, meanwhile, argues that the Constitution does not vest a president with absolute immunity from criminal prosecution, especially when tied to the private act of campaigning.
In a brief filed to the Supreme Court earlier this month, Smith’s team wrote, “No presidential power at issue in this case entitles the president to claim immunity from the general federal criminal prohibitions supporting the charges: fraud against the United States, obstruction of official proceedings, and denial of the right to vote.”
The special counsel alleges that Trump engaged in a criminal conspiracy to hold onto power, and his actions were all taken to achieve a private goal: to remain in the White House for a second term.
The special counsel wrote earlier this month that there are “layered safeguards” when a criminal case is brought that “provide assurance that prosecutions will be screened under rigorous standards and that no president need be chilled in fulfilling his responsibilities by the understanding that he is subject to prosecution if he commits federal crimes.”
Smith’s team refuted the claim from Trump’s lawyers that the charges against the former president lacked historic legal precedent.
“The absence of any prosecutions of former presidents until this case does not reflect the understanding that presidents are immune from criminal liability; it instead underscores the unprecedented nature of petitioner’s alleged conduct,” the special counsel argued.
Prosecutors wrote in their filing that even if the Supreme Court finds that a former president cannot be criminally prosecuted for official acts, Trump’s alleged conduct was a “private scheme with private actors to achieve a private end: petitioner’s effort to remain in power by fraud.”
A plan to overturn the outcome of the presidential election is the “paradigmatic example of conduct that should not be immunized, even if other conduct should be,” they said.
