The Supreme Court heard arguments on April 25 in a politically charged case about whether former President Donald Trump enjoys immunity from prosecution for official acts carried out during his time in office.
Generally, the Supreme Court tries to wrap up its annual term, which begins in October, and issue rulings in the scores of cases it heard during the term by the end of June each year, but the court could release its opinion in Trump v. United States at any time. The timing of the opinion will have political repercussions, especially if the Supreme Court remands the case to a lower court for reconsideration.
The lower court may not rule promptly and this would presumably help the Trump legal team, which is trying to delay the various prosecutions.
Democrats say President Trump must be prosecuted because he supposedly violated norms while in office, and they are concerned that if he secures a win on presidential immunity, criminal cases pending against him in the District of Columbia, New York, Florida, and Georgia could be slowed down or even dismissed.
Republicans say the various Trump prosecutions are nakedly partisan political exercises orchestrated by his electoral opponent, Democrat President Joe Biden, that are intended to harm the GOP presidential candidate’s 2024 campaign.
After the U.S. Court of Appeals for the District of Columbia Circuit refused to halt special counsel Jack Smith’s historically unprecedented election interference prosecution against President Trump in December 2023, the Supreme Court agreed to expedite the case at hand. The prosecution in Washington, which has been placed on hold in federal district court at the pretrial stage, encompasses the Jan. 6, 2021, security breach at the U.S. Capitol when lawmakers were voting to certify the 2020 presidential election results.
The prosecution claims that President Trump unlawfully attempted to undermine the democratic process by challenging the results of the 2020 election.
The precise question the Supreme Court agreed to consider is, “Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
Trump Attorney Warns About Undermining Presidents
President Trump’s attorney, D. John Sauer, said the presidency cannot function properly unless the president is assured he will not be prosecuted for his policy decisions after leaving office.“The implications of the court’s decision here extend far beyond the facts of this case,” Mr. Sauer said in his opening statement.
“For 234 years of American history, no president was ever prosecuted for his official acts. The framers of our Constitution viewed an energetic executive as essential to securing liberty,” he said.
“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.”
With no immunity, every president will be subject to extortion by his political rivals while he is still in office, the lawyer said.
Gorsuch: ‘Writing a Rule for the Ages’
Two justices worried that subjecting a former president to criminal charges would set a bad precedent that would hurt the country.Justice Brett Kavanaugh told Department of Justice attorney Michael Dreeben that the case has made him “concerned about future uses of the criminal law to target political opponents based on accusations about their motives.”
“This case has huge implications for the presidency, for the future of the presidency, for the future of the country, in my view,” Justice Kavanaugh said.
After noting “the dangerousness of accusing your political opponent of having bad motives,” Justice Neil Gorsuch said the Supreme Court had a weighty responsibility to future generations to get it right.
Alito: Prosecution for Sincere Mistakes?
Justice Samuel Alito said “presidents have to make a lot of tough decisions about enforcing the law, and they have to make decisions about questions that are unsettled.”“I understand you to say, ‘Well, you know, if he makes a mistake, he makes a mistake, he’s subject to the criminal laws just like anybody else.’ You don’t think he’s in a special, a peculiarly precarious position?” the justice said to Mr. Dreeben.
Mr. Dreeben suggested it was unlikely a president would make a mistake.
“He has had access to legal advice about everything that he does,” the attorney said. “The laws of the United States and the Constitution of the United States, and making a mistake is not what lands you in a criminal prosecution.”
President Trump’s acts surrounding Jan. 6 should not be immune because the president doesn’t actually participate in the process of Congress certifying the election results, Mr. Dreeben said.
“It’s difficult for me to understand how there could be a serious constitutional question about saying you can’t use fraud to defeat that function. You can’t obstruct it through deception,” he said.
Jackson: ‘Absolute Immunity’ Could Encourage Criminality
After Mr. Sauer said the prospect of presidents being prosecuted after leaving office may chill their behavior while in office, Justice Ketanji Brown Jackson said the possibility didn’t worry her.“I think that we would have a really significant opposite problem if the president wasn’t chilled. If … the most powerful person in the world … could go into office knowing that there would be no potential penalty for committing crimes, I’m trying to understand what the disincentive is from turning the Oval Office into … the seat of criminal activity in this country,” the justice said.
“If the potential for criminal liability is taken off the table, wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they’re in office?”
Presidents have known “from the beginning of time” that they might later be prosecuted, and “that might be what has kept this office from turning into the kind of crime center that I’m envisioning,” she said.
“Once we say ‘No criminal liability, Mr. President, you can do whatever you want,’ I’m worried that we would have a worse problem than the problem of the president feeling constrained to follow the law while he’s in office.”
Mr. Dreeben said the Supreme Court “has never recognized absolute criminal immunity for any public official.”
President Trump claims he “has permanent criminal immunity for his official acts, unless he was first impeached and convicted,” the lawyer stated.
This “novel theory” of “presidential immunity has no foundation in the Constitution,” he said.
No Past Ruling on Presidential Self Pardons
Although the U.S. Constitution doesn’t explicitly say a president cannot pardon himself, the Supreme Court has never actually ruled on the issue.“We’ve never answered whether a president can do that,” Justice Gorsuch said. “Happily, it’s never been presented to us.”
But if presidents know they lack immunity for acts performed while in office and they fear their successors will criminally prosecute them when they return to private life, they may start preemptively pardoning themselves before they leave office, he said.
“Perhaps, if he feels he has to, he'll pardon himself … every four years from now on,” the justice said.
Mr. Dreeben said the Justice Department has no position on the issue of self-pardoning, although a member of the Office of Legal Counsel wrote a paper saying a president cannot pardon himself.
What About Obama and Roosevelt’s Actions?
Justice Alito wondered if President Franklin D. Roosevelt’s executive order to intern Japanese Americans during World War II could have led to a charge of conspiracy against civil rights. The internment policy has been scathingly criticized in the post-war years.Mr. Dreeben answered “today, yes,” given that the Supreme Court has repudiated its decision in Korematsu v. United States (1944). Korematsu, in which the court upheld the Roosevelt policy, has been said to be among the worst Supreme Court decisions of all time.
Chief Justice John Roberts wrote the majority opinion in Trump v. Hawaii (2018), upholding President Trump’s policy of excluding individuals from terrorism-afflicted regions of the world, which the justice described as “a facially neutral policy denying certain foreign nationals the privilege of admissions.” That Trump policy, which critics called a “Muslim ban,” is different from “the forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race,” Justice Roberts wrote.
But then Mr. Dreeben seemed to hedge, saying President Roosevelt “made the decision with the advice of his attorney general. That’s a layer of safeguard.”
Justice Kavanaugh asked if President Gerald Ford could have been prosecuted for pardoning President Richard Nixon. Although the decision was unpopular at the time and likely led to President Ford’s defeat at the polls in 1976, it is “now looked upon as one of the better decisions in presidential history, I think, by most people.”
Maybe President Ford was thinking, “‘well, if I grant this pardon to Richard Nixon, could I be investigated myself for obstruction of justice on the theory that I’m interfering with the investigation of Richard Nixon?’” the justice said.
Mr. Dreeben replied that “this would fall into that small core area … of presidential responsibilities that Congress cannot regulate.”
Justice Kavanaugh asked if President Barack Obama could have been prosecuted for ordering drone strikes that killed U.S. citizens.
“There is no risk of prosecution for that course of activity,” Mr. Dreeben said.
The Office of Legal Counsel examined the question and found that there was “a public authority exception built into statutes and that applied particularly to the murder statute, because it talks about unlawful killing, [and] did not apply to the drone strike.”
