In the biggest test of the presidency's power since President Richard Nixon's resignation in 1974, members of the U.S. Supreme Court grilled attorneys Thursday on whether a president can be prosecuted for actions taken while in office.
Lawyers for former President Donald Trump — currently on trial in a separate case in New York — argued that allegations he had illegally attempted to prevent President Joe Biden from taking office in 2021 were acts taken as president and are subject to absolute immunity from criminal prosecution. His attorneys added that this argument would not apply to a president who was impeached and convicted for those acts. Trump was impeached by the House in 2021, but he was acquitted by the Senate.
Lawyers for the Justice Department special counsel’s office prosecuting Trump in two criminal cases argued a former president cannot use his office as a shield for clearly illegal conduct taken for personal motives during his time in office.
Many legal experts said the questions justices asked suggested they would reject Trump's total immunity claim but find some level of immunity for some official acts. The Supreme Court could then ask lower courts to review the case based on their finding, which would likely push any federal trial past the November election.
“Whatever it takes, I believe the majority of this court is going to ensure that there is not a trial before the election,” said Richard Bernstein, a conservative appellate attorney who clerked for the late Justice Antonin Scalia, during a panel hosted by the Society for the Rule of Law.
Members across the court’s ideological spectrum directed skeptical — sometimes incredulous — questions toward Trump’s attorney John Sauer, asking whether a president could sell ambassadorships, order a political rival assassinated, stage a military coup or sell nuclear secrets to a hostile foreign power.
In each case, Sauer argued that the official acts were not subject to criminal prosecution.
Michael Dreeben, an attorney representing special counsel Jack Smith’s office, argued against that conclusion, noting that prosecution for bribery, treason, murder and — in Trump’s case — attempting to overturn the results of the election through fraud was in direct conflict with the country’s founding principles.
“The framers knew too well the dangers of a king who could do no wrong. They, therefore, devised a system to check abuses of power — especially the use of official power for private gain,” Dreeben argued.
Dreeben faced tough questions as well, largely from the court’s Republican appointees — starting with one from Justice Clarence Thomas, whose wife, Ginni Thomas, was involved in spreading election fraud conspiracy theories about the 2020 election.
“Over the not-so-distant past, the presidents, or certain presidents, have engaged in various activity: coups or operations like Operation Mongoose when I was a teenager, and yet there were no prosecutions. Why?” Thomas asked Dreeben.
“The reason that there have not been prior criminal prosecutions is that there have not been crimes,” Dreeben said.
Indeed, members of the court’s conservative wing repeatedly seemed to avoid the case in front of them in favor of questioning how future presidents and prosecutors might misuse powers against former presidents.
“They constantly cut off the government attorney every time he wanted to talk about this case,” Bernstein said.
The focus on future cases and crafting a broad rule is likely to make it hard for the court to coalesce around a clear decision, observers said.
“The bottom line is that Trump is likely to get what he wants — a further delay of this election subversion case, maybe pushing it to after the election,” said professor Rick Hasen, a constitutional law expert at the University of California Los Angeles.
The Supreme Court gave no indication of when it would issue a ruling.
