Supreme Court Appears Open to Some of Donald Trump’s Immunity Claims

WASHINGTON—The Supreme Court, hearing a last-ditch appeal from Donald Trump, appeared open Thursday to granting some level of immunity to protect former presidents from being prosecuted for alleged crimes committed while in office.

Over nearly three hours of oral argument, the court’s conservative majority expressed greater concern that a future president might flinch from bold action for fear of prosecution than the possibility that Trump could avoid accountability on charges he attempted to steal the 2020 presidential election from Joe Biden.

The risk, said Justice Brett Kavanaugh, was that a Trump trial could open the door to a new era of American politics where prosecution of ex-presidents became routine, much as the use of special counsels accelerated after the Watergate scandal.

“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,” Kavanaugh said.

Trump himself amplified that concern before arguments began Thursday. “Crooked Joe deserves life in prison!” Trump said in an email to supporters. “Put Biden on trial.”

The court seemed unlikely to accept all of Trump’s arguments, which seek “absolute immunity” for alleged crimes committed while in office. But most justices agreed that former presidents deserve strong protection from prosecution.

Any high court decision embracing that position could further delay Trump’s trial, if not end the prosecution entirely. And it likely would cloud other prosecutions Trump is facing, including charges before a Georgia state court that he pressured officials there to fraudulently deliver to him electoral votes Biden won.

“If a president can be charged, put on trial, and imprisoned for his most controversial decisions as soon as he leaves office, that looming threat will distort the president’s decision-making precisely when bold and fearless action is most needed,” Trump’s lawyer, D. John Sauer, told the court.

Liberal justices, however, suggested the greater threat to democracy was a decision that effectively placed the president above the law, not one holding him to the same rules that apply to other high officials as well as ordinary Americans.

Telling “the most powerful person in the world” that there was no possibility of punishment for breaking the law, could turn “the Oval Office into the seat of criminal activity in this country,” said Justice Ketanji Brown Jackson.

Sauer did little to assuage such concerns. Posed various hypotheticals, he suggested that a president might face no penalty for such acts as selling nuclear secrets to a foreign adversary, ordering the assassination of a political opponent or directing the military to stage a coup.

“The framers did not put an immunity clause into the Constitution,” said Justice Elena Kagan. “Not so surprising—they were reacting against a monarch who claimed to be above the law.”

Sauer said that the president remained obligated to follow the law, but that accountability came from forces outside the judicial system, such as Congress and public opinion.

But if the high court rejected wholesale immunity, Sauer said that the district judge should be required to sift Trump’s official acts which couldn’t be subject to prosecution from private ones that could before trial began. Under such an approach, the judge’s decisions could be appealed to the circuit court and then the Supreme Court, likely putting any trial date far into the future, if ever.

Michael Dreeben, a Justice Department lawyer representing special counsel Jack Smith, sought to focus attention on the antidemocratic crimes alleged against Trump, actions he said had no relation to a president’s legitimate powers.

Siding with Trump “would immunize former presidents from criminal liability for bribery, treason, sedition, murder, and, here, conspiring to use fraud to overturn the results of an election and perpetuate himself in power,” Dreeben said.

He told the court that the justice system had adequate safeguards to protect ex-presidents from politically motivated prosecutions.

Following a grand jury investigation, Smith brought a four-count indictment against Trump last year, accusing him of a criminal scheme to subvert the presidential election. The charges included conspiring to submit fake slates of Trump electors for states Biden won, pressuring Vice President Mike Pence to fraudulently alter the electoral count at the Jan. 6, 2021, congressional session to certify the election, and directing his followers to obstruct that proceeding, culminating in a riot at the U.S. Capitol.

Chief Justice John Roberts said the grand jury process wasn’t enough to protect the presidency.

“You know how easy it is in many cases for a prosecutor to get a grand jury to bring an indictment,” he said, adding that he wasn’t speaking of the Trump case in particular. “Reliance on the good faith of the prosecutor may not be enough in some cases.”

Dreeben allowed that the unique role of the president meant that some laws applied differently to holders of the office, something a former chief executive could raise in defense if put on trial.

Justice Samuel Alito suggested that still exposed ex-presidents to unwarranted retribution.

Under Dreeben’s approach, “there has to be a trial, and that may involve great expense and it may take up a lot of time, and during the trial, the former president may be unable to engage in other activities that the former president would want to engage in,” Alito said.

“We are trying to design a system that preserves the effective functioning of the presidency and the accountability of a former president under the rule of law,” Dreeben said. “And the perfect system that calibrates all of those values probably has not been devised.”

That didn’t stop justices from trying. Justice Amy Coney Barrett suggested a middle ground between Dreeben and Sauer’s positions, in which the trial would proceed, the district judge would rule on objections, but Trump would be allowed to seek immediate review from an appeals court rather than wait until he is convicted.

The Supreme Court’s decision is expected by the end of June.

Trump appointed three members of the Supreme Court, and they have at times sided with him. In March, for instance, they joined all other justices in deciding that Colorado overstepped its authority when it ruled Trump ineligible for future office after engaging in an insurrection on Jan. 6, 2021. States lacked authority to enforce the 14th Amendment provision disqualifying former officials who engaged in insurrection from future office, the court then found.

To date, however, the court, including Trump’s own appointees, more frequently has ruled against him. In 2020, the court rejected Trump’s bid to stop a New York prosecutor investigating potential crimes from obtaining financial records from Trump’s accountants. In January 2022, the court denied without comment Trump’s request to prevent the House Jan. 6 committee from obtaining White House records related to the Capitol riot.

Most consequentially, the court in December 2020 rejected a Trump-backed suit to throw out the electoral votes of four states that supported Biden. Trump complained at the Jan. 6 rally preceding the Capitol riot that the three justices he appointed, Neil Gorsuch, Kavanaugh and Barrett, hadn’t stepped up to help him.

Trump wasn’t present to watch the high court in action. In New York, where he is on trial over state charges of falsifying business records, the judge declined to pause proceedings so the defendant could attend oral arguments in Washington.

Write to Jess Bravin at [email protected] and Jan Wolfe at [email protected]