Supreme Court Grapples With ‘Official’ vs. ‘Private’ Acts in Trump Immunity Appeal
The high court considers whether Trump is immune from prosecution in the federal election case in a decision that could delay his trials further into the year.
The Supreme Court in Washington on April 25, 2024. Mandel Ngan/AFP via Getty Images
The Supreme Court seemed skeptical on April 25 of former President Donald Trump’s claim that he should receive absolute criminal immunity, but it appeared to be open to allowing some level of immunity for presidents.
Conservative justices seemed poised to remand the case back to the district court in Washington with instructions on what constitutes official and private acts for further fact-finding proceedings. This would further delay President Trump’s trial in Washington and possibly other proceedings in Georgia, Florida, and New York, handing him a strategic win as he seeks to hold up cases until after the November presidential election.
Attorney D. John Sauer argued for President Trump, and former Deputy Solicitor General Michael Dreeben argued for Special Counsel Jack Smith. The case stems from President Trump’s attempt to dismiss Mr. Smith’s indictment related to his activities on and leading up to Jan. 6, 2021.
Supreme Court Seems Open to Allowing Some Presidential Immunity, May Delay Trump Trial
The Supreme Court in Washington on April 25, 2024. Mandel Ngan/AFP via Getty Images
The Supreme Court seemed skeptical on April 25 of former President Donald Trump’s claim that he should receive absolute criminal immunity, but it appeared to be open to allowing some level of immunity for presidents.
Conservative justices seemed poised to remand the case back to the district court in Washington with instructions on what constitutes official and private acts for further fact-finding proceedings. This would further delay President Trump’s trial in Washington and possibly other proceedings in Georgia, Florida, and New York, handing him a strategic win as he seeks to hold up cases until after the November presidential election.
Attorney D. John Sauer argued for President Trump, and former Deputy Solicitor General Michael Dreeben argued for Special Counsel Jack Smith. The case stems from President Trump’s attempt to dismiss Mr. Smith’s indictment related to his activities on and leading up to Jan. 6, 2021.
Jackson Asks If This Case Is the Right Vehicle to Question Presidential Immunity
Justice Ketanji Brown Jackson questioned attorney for the special counsel Michael Dreeben about whether this case was the "right vehicle" to answer the question about how possible presidential criminal activity and immunity interact.
Mr. Dreeben responded, saying, "I don't see any need in this case for the court to embark on that analysis," harkening to his previous comments that he believes there are "no acts that have been alleged in the indictment that would be off limits as a matter of Article II."
Special Counsel Attorney Alleges ‘Integrated Conspiracy’
Justice Amy Coney Barrett asked attorney for the special counsel Michael Dreeben if he could proceed based on private conduct rather than official conduct.
“There’s really an integrated conspiracy here that has different components as alleged in the indictment,” Mr. Dreeben said, arguing that President Donald Trump worked with private lawyers to “achieve the goals of the fraud” while reaching for his official powers.
“We would like to present that as an integrated picture to the jury so that it sees the sequence and the gravity of the conduct and why each step occurred,” Mr. Dreeben said.
Protestors in front of the Supreme Court in Washington on April 25, 2024. Madalina Vasiliu/The Epoch Times
Kavanaugh Questions Relaxing Article II For the ‘Needs of the Moment’
Justice Brett Kavanaugh questioned Special Counsel Michael Dreeben about the implications of relaxing the application of the areas of the Constitution, namely Article II, that govern how the president functions and is governed by the other branches of government “for the needs of the moment.”
Justice Kavanaugh questioned how the president would function if he is “routinely subjected to investigation going forward.”
Mr. Dreeben attempted to put those concerns to rest, saying that while there were previously “flaws in the independent counsel system,” that system has been changed and that “We now are inside the Justice Department with full accountability resting with the attorney general, so the Special Counsel Regulations.”
Kavanaugh: Are We Facing a Morrison v. Olson redux?
Justice Brett Kavanaugh raised concerns about the present case reviving issues raised in Morrison v. Olson, which ruled the Independent Counsel Act was constitutional and established the scope of Congress’s authority to impede a president's authority to remove appointees from office.
He asked special counsel lawyer Michael Dreeben if former presidents are subject to prosecution, whether that would “cycle back” and be used against the current or other future presidents.
“So we've lived from Watergate through the precedent through the independent counsel era with all of its flaws, without these prosecutions having gone off on a runaway train,” Mr. Dreeben replied.
Justice Gorsuch emphasized, “We’re writing a rule for the ages,” and “stressed the dangerousness of accusing your political opponent of having bad motives”
“I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives, whether it's reelection,” he said.
“I'm gonna say something that I don't normally say, which is—that's really not involved in this case: We don't have a bad political motive in that sense,” attorney for the special counsel Dreeben replied.
Gorsuch Questions the Role of Motives in Determining Criminality
Justice Neil Gorsuch expressed concern over how the court’s decision could affect future presidents—specifically whether they might fall prey to politically motivated prosecution.
In that vein, the justice asked special counsel attorney Michael Dreeben what role a president’s motives might play in determining the criminality of his actions.
While Mr. Dreeben noted that the question doesn’t apply to this specific case, he said he would start by examining the statutes in question to see what restrictions they place on the president’s conduct.
Alito Questions Special Counsel's Position on Self Pardon
Justice Samuel Alito questioned special counsel lawyer Michael Dreeben about the Justice Department's official position on a president pardoning himself. The special counsel said that his department hasn't "taken a position" on that issue.
Justice Alito further questioned whether the court could decide without knowing the Justice Department's opinion on whether the pardon could be used, saying, "Won't the predictable result be that presidents have in the last couple of days of office are going to pardon themselves from anything that they might have been conceivably charged with committing?"
Mr. Dreeben responded, saying, "I really doubt that Justice Alito." The attorney went on to say the question "presupposes a regime that we have never had except for President Nixon and as alleged in the indictment here."
Special Counsel Lawyer: ‘False Electors Scheme’ is Campaign Activity, Not Official Duties
Special counsel lawyer Michael Dreeben argued that former President Donald Trump went outside his official duties when he organized a “fraudulent slate of electors” in multiple states to challenge the results of the 2020 election.
“That is not an official conduct, that is campaign conduct,” Mr. Dreeben said.
“We think that aggravates the nature of this offense, seeking as a candidate to oust the lawful winner of the election and have oneself certified with private actors, is a private scheme to achieve a private end,” the lawyer added, and that using his presidential powers to do this “makes the crime in our view worse.”
Alito: Could Prosecuting an Outgoing President ‘Destablize’ Democracy?
Justice Samuel Alito posed a hypothetical scenario to special counsel lawyer Michael Dreeben about an outgoing president facing prosecution by his “bitter political opponent” after losing a “hotly contested election.”
“Will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”
Justice Alito said there are examples around the world where political rivals put their opponents in jail after defeating them in elections.
Sotomayor: ‘Democratic Society Needs the Good Faith of Its Public Officials’
Justice Sotomayor emphasized that a stable democratic society needs to have good faith in the assumption that its public officials follow the law, but acknowledged that “there is no failsafe system of government.”
She also referred back to Justice Alito’s comments about the destabilizing effect this decision could have and said if the system fails, it’s because we’ve destroyed our democracy on our own.”
Special Counsel Dreeben agreed but argued “that there are additional checks in the system” and “the ultimate check is the goodwill and faith in democracy and crimes that are alleged in this case that are the antithesis of democracy.”
Dreeben: ‘The President Has No Functions’ in Certifying Presidential Elections
Justice Alito suggested that the charge of conspiracy to defraud the United States is a “peculiarly open-ended statutory prohibition,” adding that “it's difficult to think of a more critical function than the certification of who won the election.”
Special Counsel Dreeben said that the government needs to show “any intent to impede, interfere or defeat a lawful government of function by deception.”
He also argued that “the president has no functions with respect to the certification of the winner of the president of the election” and that the way states conduct elections explains the potential for self-interest.”
Alito Questions How Robust are the ‘Layers of Protection’
Former President Donald Trump’s position is that presidents need absolute immunity to prevent “chilling” their ability to perform official acts, but special counsel lawyer Michael Dreeben says there are “layers of protection” to safeguard against those concerns and prevent prosecutors from acting with impropriety.
However, Justice Samuel Alito questioned how robust those protections are if there exists a possibility prosecutors could act unethically, and suggested there have been “exceptions to that.”
"So as for attorneys general, there have been two who were convicted of criminal offenses while in office, there were others," Justice Alito said.
Gorsuch Raises Hypothetical of President Leading Peaceful Protest
During an exchange with Justice Neil Gorsuch, special counsel attorney Michael Dreeben conceded that there were some acts that the president should be immune from prosecution over.
Those acts, Mr. Dreeben said, would be those “core” to the president’s role as defined by the Constitution, such as issuing pardons, recognizing foreign nations, vetoing legislation, and making appointments.
Justice Gorsuch asked whether a president could be prosecuted over an act outside of those core activities, like leading a “mostly peaceful” sit-in outside the Capitol that delays a congressional proceeding.
Justice Brett Kavanaugh brought up the “serious constitutional question” about the risk of every statute being applied to the presidential official acts, saying, “Conspiracy of fraud the United States can be used against a lot of presidential activities historically with a creative prosecutor who wants to go after a president.”
Special counsel lawyer Michael Dreeben responded, saying it was the Justice Department’s view that “there is a balanced protection that better serves the interests of the Constitution that incorporates both accountability and protection for the President,” than the immunity being requested by former President Donald Trump’s attorney.
Sotomayor: Impeachment Before Criminal Charges Creates Contradiction
While questioning Special Counsel Lawyer Michael Dreeben, Justice Sonia Sotomayor suggested that there is a tautological issue with former President Donald Trump’s claim that he must first be impeached before prosecutors charge him with criminal law.
Mr. Dreeben argued that approach would mean there would be nothing to prosecute him for via impeachment if the criminal allegations have to come after.
“That's the point, which is if he's not covered by the criminal law, he can't be impeached for literally violating it,” Justice Sotomayor replied.
Special Counsel Lawyer: Politically Driven Prosecution Would Violate the Constitution
Special Counsel Lawyer Michael Dreeben defended the Court of Appeals judgment and argued that it would not have a “chilling effect” on presidents.
He said there are “layered safeguards” the court can take into account to address concerns of “chilling” a president’s conduct.
“[W]e are not endorsing a regime that we think would expose former presidents to criminal prosecution in bad faith for political animus without adequate evidence of politically driven prosecution would violate the constitution,” Mr. Dreeben added.
Dreeben: No Prior Prosecutions Because ‘There Were Not Crimes’
Justice Thomas mentioned that presidents have engaged in various activities and coups, such as Operation Mongoose, and yet there were no prosecutions. However, he said, Special Counsel Dreeben does not recognize presidential immunity for official acts, such actions would “be ripe for criminal prosecution.”
The special counsel said, “The reason why there have not been prior criminal prosecutions is that there were not crimes,” adding that “there are layers of safeguards that assure that former presidents do not have to lightly assume criminal liability for any of their official acts.”
But, he said, there is a principle that “courts will strive to construe the statute so it does not apply to the president” if there is a serious constitutional question.
Special Counsel Lawyer Says Absolute Immunity Not Constitutional
Attorney Michael Dreeben, arguing on behalf of the special counsel, noted that the Supreme Court has never recognized absolute criminal immunity for any public official.
Granting such immunity to former President Donald Trump, Mr. Dreeben argued, would immunize presidents for criminal liability for bribery, treason, sedition, murder, and “conspiring to use fraud” to keep themselves in power.
He also argued that the Constitution does not support absolute criminal immunity for the president. The framers, he said, “knew too well the dangers of a king who could do no wrong” and designed the U.S. government with a mind to prevent future abuses of power.
Jackson: Absolute Immunity Could Turn Oval Office into ‘Seat of Criminal Activity’
Justice Ketanji Brown Jackson rejected former President Donald Trump's Lawyer, D. John Sauer’s claim that without absolute immunity, there would be a “chilling effect” on a president’s ability to perform official duties.
She suggested that giving absolute immunity would have a reverse problem if the “president wasn’t chilled.”
“If someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority could go into office knowing that there would be no potential penalty for committing crimes.
Jackson: What Is the Presidential Motivation to Follow the Law With Immunity?
Justice Ketanji Brown Jackson questioned what motivation a president would have to follow the law in his official acts if he were given immunity.
"The president of the United States has the best lawyers in the world when he's making a decision. He can consult with pretty much anybody as to whether or not this thing is criminal or not … so why would we have a situation in which we would say that the president should be making official acts without any responsibility for following the law?
Former President Trump's attorney, D. John Sauer, responded saying that the "president absolutely does have responsibility" to follow the law in "all official acts."
Barrett: Does Impeachment Necessarily Precede Criminal Prosecution?
Justice Amy Coney Barrett asked former President Donald Trump’s lawyer D. John Sauer about his argument that impeachment and conviction by Congress is the necessary “gateway to criminal prosecution.”
She said many, including the nine Supreme Court justices, are subject to impeachment.
“I don't think anyone has ever suggested that impeachment would have to be the gateway to criminal prosecution for any of the many other officers subject to impeachment,” Justice Barrett said.
Justice Elena Kagan said the framers did not put an immunity clause in the Constitution.
Some state constitutions had immunity clauses, and the framers “knew how to get legislative immunity,” but “they didn’t provide immunity to the president,” she said.
“They were reacting against a monarch who claims to be above the law. Wasn't the whole point that the President was not a monarch, and the President was not supposed to be about the law?” Justice Kagan asked.
Kagan: Would Selling Nuclear Secrets Warrant Immunity
Justice Elena Kagan put a number of hypotheticals to former President Donald Trump’s attorney, D. John Sauer, asking what actions would be considered an official act and what would be personal.
Justice Kagen asked, “If a president sells nuclear secrets to a foreign adversary,” would that be considered an official act in light of presidential immunity.
Mr. Sauer responded, saying that much like his response to the question of bribery, would “likely not” be seen as an official act.
Trump Counsel Argues that ‘Defending Election Integrity’ in Arizona was Official Act
Justice Kagan brought up President Trump’s request to the Arizona House Speaker to call the legislature into session to hold a hearing based on claims of election fraud, and Mr. Sauer confirmed that it was an official act.
It was “absolutely an official act for the President to communicate with state officials on a matter of enormous federal interest and concern, attempting to defend the integrity of a federal election to communicate with state officials and urge them to view what he views as their job under state law and federal law,” he said.
Justice Kagan acknowledged that defending election integrity was President Trump’s defense, but the allegation is that he was attempting to overthrow the election.
Trump lawyer D. John Sauer, asked for a remand to determine what constitutes official and private acts as a president.
Chief Justice John Roberts queried the possibility of expunging official acts from the indictment, saying that it would turn the case into a “one-legged stool.”
Mr. Sauer said the case, therefore shouldn’t go forward in seeking to separate the official from unofficial acts in the indictment’s allegations.
Justice Samuel Alito suggested that presidential immunity might only cover “plausibly” legal acts undertaken by the president.
As an example, he noted that it probably would not be “plausibly legal” to order SEAL Team 6 to obey an unlawful order. This hypothetical was brought up during argument before the appeals court, when Mr. Saur was questioned whether a president directing SEAL Team Six to kill a political opponent would still have immunity.
“I don’t want to slander SEAL Team 6 because … they’re honorable officers, and they are bound by the Uniform Code of Military Justice not to obey unlawful orders,” he said. “But no one is—I think one could say that’s not plausible, that that action would be legal.”
Justice Sonia Sotomayor questioned D. John Sauer, the attorney for former President Donald Trump, about absolute immunity, questioning what actions a president could take that would warrant prosecution.
Justice Sotomayor said she was “having a hard time thinking that creating false documents, that submitting false documents, that ordering the assassination of a rival, that accepting a bribe, and countless other laws that could be broken for personal gain, that anyone would say that it would be reasonable for a president or any public official to do that.”
Mr. Sauer responded to the hypothetical, saying that “the allegation that this particular act would be done for an unlawful purpose.” He also asserted that in a case like the one Justice Sotomayor presented, the difference would be the intention, or “improper purpose,” in the actions listed.
Justice Jackson Suggests Pursuing ‘Personal Gain’ is Not ‘Acting Officially’ as President
Supreme Court Justice Ketanji Brown Jackson seemed skeptical that former President Donald Trump was acting within the “official duties” in the allegations around his case.
“One could say that when the president is using the trappings of his office to achieve a personal gain, then he's actually not acting officially, even if the doctrine was absolute immunity. So what do you say about that?” she asked President Trump’s lawyer, D. John Sauer.
Mr. Sauer suggested that presidential actions could always be alleged to be “motivated by an improper private purpose.”
Justice Roberts asked what is an official act, and used the hypothetical situation of a bribe. If a president appointed an ambassador to get a bribe, since appointing an ambassador would be considered an official act.
Mr. Sauer argued that the bribery part of the justice’s hypothetical is not an official act and that it would be separated as a matter of private conduct.
Citing a past case called “Brewster and Johnson,” President Trump’s counsel said that “the indictment has to be expunged” from the official acts.
Justices Ask About 'Official Acts
Justices Sonya Sotomayer and Ketanji Brown Jackson asked Trump attorney D. John Sauer whether a president should be immune from prosecution when he uses the office for personal gain.
"One could say that when the president is using the trappings of his office to achieve a personal gain, then he's actually not acting officially, even if the doctrine was absolute immunity," Justice Jackson said.
Trump Criticizes New York Judge After His Request to Attend Supreme Court Presidential Immunity Hearing Denied
Former President Donald Trump sits in the courtroom during the second day of his criminal trial at Manhattan Criminal Court in New York City on April 16, 2024. Justin Lane-Pool/Getty Images
Former President Donald Trump has criticized a New York Judge for barring him from attending a Supreme Court hearing on whether he has presidential immunity from prosecution for acts committed while he was in the White House.
The Supreme Court in Washington, D.C., will start hearing arguments in the case on Thursday. A ruling on presidential immunity is expected by late June. However, New York State Supreme Court Justice Judge Juan Merchan denied former President Trump’s request for leave, saying he is needed in the New York Supreme Court for his so-called “hush money” trial.
In an April 24 interview with Fox News Digital, the former president claimed the judge thinks he is above the highest court in the land.
The Supreme Court will hear oral argument today over former President Donald Trump’s claim that he’s immune from criminal prosecution for official acts he undertook while in office.
Besides altering longstanding precedent, the decision could bear and delay the criminal prosecutions President Trump is facing before the election.
An appeals court in Washington rejected his attempt to claim immunity in the Justice Department’s prosecution of his activity on Jan. 6 and in response to the 2020 presidential election. The Supreme Court is set to review that decision and potentially establish a broader definition of presidential immunity.
Supreme Court to Hear Trump Immunity Appeal That Could Further Delay Cases
Former President Donald Trump speaks to the media after leaving the courtroom for the day at Manhattan Criminal Court during his trial for allegedly covering up hush money payments linked to extramarital affairs in New York on April 19, 2024. Sarah Yenesel/Pool/AFP via Getty Images
The Supreme Court, in its upcoming immunity case filed by former President Donald Trump, may rule to send the case back to the district court in Washington, allowing him to further delay proceedings as desired, according to experts.
April 25 is the date the justices set for oral arguments over President Trump’s claims of immunity from prosecution under the indictment brought by special counsel Jack Smith in Washington. It’s unclear how the justices will rule, but a decision, expected in June, will alter the course of the former president’s case and potentially complicate his others as well.
Representing President Trump will be attorney D. John Sauer, who also argued for him in the D.C. Circuit. Former Deputy Solicitor General Michael Dreeben is expected to argue for Mr. Smith’s team.
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