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ARGUMENT ANALYSIS


SUPREME COURT APPEARS LIKELY TO SIDE WITH TRUMP ON SOME PRESIDENTIAL IMMUNITY

By Amy Howe
on Apr 25, 2024 at 5:35 pm
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John Sauer argues for former President Donald Trump on Thursday. (William
Hennessy)

The Supreme Court on Thursday appeared skeptical of a ruling by a federal
appeals court that rejected former President Donald Trump’s claim that he has
absolute immunity from criminal charges based on his official acts as president.
During more than two-and-a-half hours of oral argument, some of the court’s
conservative justices expressed concern about the prospect that, if former
presidents do not have immunity, federal criminal laws could be used to target
political opponents. However, the justices left open the prospect that Trump’s
trial in Washington, D.C., could still go forward because the charges against
him rest on his private, rather than his official, conduct. However, the timing
of the court’s eventual opinion and the resulting trial remains unclear, leaving
open the possibility that the court’s decision could push Trump’s trial past the
November election.

Trump was indicted in August 2023 on four counts, arising from Special Counsel
Jack Smith’s investigation into the Jan. 6, 2021, attacks on the U.S. Capitol,
alleging that he conspired to overturn the results of the 2020 election. Trump
asked U.S. District Judge Tanya Chutkan to throw out the charges against him,
arguing that he could not be held criminally liable for his official acts even
after leaving office.

Chutkan denied Trump’s request, and in February the U.S. Court of Appeals for
the District of Columbia Circuit upheld that ruling. Trump went to the Supreme
Court, which agreed in late February to weigh in. Trump’s trial, which was
originally scheduled for March 4, is now on hold waiting for the Supreme Court’s
decision.

Representing Trump, John Sauer told the justices that without presidential
immunity from criminal charges, the “presidency as we know it” will be changed.
The “looming threat,” he contended, will “destroy presidential decisionmaking
precisely when” the president needs to be bold. And the impact of the court’s
decision, he suggested, will have an impact far beyond Trump’s case. He pointed
to the prospect, for example, that President Joe Biden could be charged with
unlawfully inducing immigrants to enter the United States illegally through his
border control policies.

Michael Dreeben, a lawyer from Smith’s office, represented the United States. He
emphasized that the Supreme Court has never recognized absolute criminal
immunity for any public official. Trump, he contended, seeks permanent criminal
immunity for a president’s official acts unless he has first been impeached and
convicted by the Senate.

Several justices pressed Sauer on how to distinguish official acts, for which a
former president would enjoy immunity under his theory, from private acts, for
which he could still face criminal charges. Chief Justice John Roberts asked
Sauer about a scenario involving a president’s official act – appointing an
ambassador – that he does in exchange for a bribe. When Sauer conceded that
accepting the bribe is private conduct, Roberts urged Sauer to explain how the
boundary between an official act and a private one would “come into play.”
Prosecutors could bring charges against the former president for accepting a
million dollars, Roberts queried, but they can’t say what it’s for?

Justice Elena Kagan lobbed a series of examples, some taken from the indictment,
at Sauer and asked him to identify them as involving private or official
conduct. Sauer agreed that some, like signing a form affirming false election
allegations, would be private, but he asserted that others – like calling the
chair of the Republican Party – would be official. When asked whether ordering
the military to stage a coup so that the president could remain in office was
private or official, Sauer suggested that it would depend on the circumstances,
prompting Kagan to say, “that sure sounds bad, doesn’t it?”

Justice Neil Gorsuch observed that, with the concession that a former president
could be prosecuted for his private conduct, the two sides had found “some
common ground.” He noted that the D.C. Circuit had “expressed some views about
how to” separate private and official conduct, including the possibility of
further proceedings to do so.

But when Roberts asked Sauer about the effect of that concession, and Sauer
suggested that the Supreme Court should send the case back to the lower court to
determine what conduct is official and what conduct is private, Roberts retorted
that, without the official conduct, it would be like a “one-legged stool.”

Michael Dreeben argues for the United States. (William Hennessy)

Dreeben contended that, even if presidents have immunity for their official
acts, in this case the federal government could still introduce evidence of
Trump’s interactions with the Department of Justice. But he maintained that
there was enough private conduct to allow the charges against Trump to go
forward even under that standard.

Justice Ketanji Brown Jackson acknowledged that distinguishing between official
and private conduct might sometimes pose a “difficult line-drawing problem.” But
if a president’s official acts are not entitled to absolute immunity, she
suggested, the problem is eliminated. Why, she asked, would the president not be
required to follow the law when performing his official acts?

Justice Brett Kavanaugh appeared sympathetic to the former president’s argument
that criminal statutes do not apply to the president unless they say so
specifically. He told Dreeben that it’s a “serious constitutional question
whether a criminal statute can apply to the president’s criminal acts.”

Justice Amy Coney Barrett was less persuaded by this argument. She observed that
if a president who orders a coup is impeached and convicted by the Senate, but
ordering the coup is determined to be part of his official conduct, he could not
be prosecuted after leaving office under Trump’s theory if there were not a
statute that explicitly applied to the president.

Dreeben sought to assuage some of the justices’ concerns by suggesting that,
although former presidents should not have absolute immunity from criminal
charges relating to their official acts, there are some core constitutional
powers of the presidency – such as the powers to pardon, veto, make
appointments, and recognize foreign governments – that are entitled to special
protection.

Justice Samuel Alito, however, was skeptical, noting that – in contrast with
immunity – the issue of special protection would have to be litigated at a trial
and “may involve great expense,” as well as the possibility that the former
president (who is currently both running for office and on trial in a Manhattan
courtroom) “might not be able to engage in other activities.”

And more broadly, both Gorsuch and Kavanaugh worried aloud about the wider
impact of the court’s decision. Telling Dreeben that the justices were “writing
a rule for the ages,” and that he was “not concerned about this case as much as
future ones,” Gorsuch, who, like Kavanaugh, was nominated to the court by Trump,
expressed concern about the use of the law to target political opponents.
Emphasizing that virtually all first-term presidents will be concerned about
being reelected, he pressed Dreeben on whether his theory would include
consideration of a president’s motives.

Dreeben assured Gorsuch that his theory would not sweep in ordinary presidential
conduct. “Wanting to get reelected is not an illegal motive,” Dreeben said.

But Kavanaugh was not reassured. Echoing Gorsuch, he told Dreeben that this case
has “huge implications for the” presidency, and that he was “very concerned
about the future.” Kavanaugh – who served as a deputy to Ken Starr during his
investigation of then-President Bill Clinton – cited the Supreme Court’s 1988
decision in Morrison v. Olson, upholding the constitutionality of the
independent counsel statute, as “one of the Court’s biggest mistakes” because it
“hampered” presidential administrations. When former presidents are subjected to
prosecution, Kavanaugh said, “history tells us it’s not going to stop.”

Jackson had a different view. Without the threat of criminal liability, she told
Sauer, “future presidents will be emboldened to commit crimes.”

With four of the court’s conservative justices – Thomas, Alito, Gorsuch, and
Kavanaugh – appearing to lean toward some form of immunity for Trump, the ruling
may hinge on Roberts, who although relatively quiet seemed dubious about the
reasoning of the D.C. Circuit’s opinion, which he summarized as saying that “a
former president can be prosecuted because he is being prosecuted.” And although
Dreeben stressed the “layers of protection” available to shield a former
president from unwarranted prosecutions, such as the assumption that prosecutors
will act in good faith and the need for a grand jury to return an indictment,
Roberts asked Dreeben why the court shouldn’t send the case “back or issue an
opinion saying that’s not the law?”

The court is expected to issue all of its decisions for the current term by the
end of June or early July. Even if the justices leave open the possibility that
Trump can still face criminal charges in some form or another, the timing of the
court’s ruling and whether its decision requires additional proceedings in the
lower courts – for example, to determine which of the acts alleged in Smith’s
complaint involve official or private conduct – could complicate Smith’s efforts
to move the D.C. trial forward before the 2024 election.

This article was originally published at Howe on the Court. 

Posted in Featured, Merits Cases

Cases: Trump v. United States

Recommended Citation: Amy Howe, Supreme Court appears likely to side with Trump
on some presidential immunity, SCOTUSblog (Apr. 25, 2024, 5:35 PM),
https://www.scotusblog.com/2024/04/supreme-court-appears-likely-to-side-with-trump-on-some-presidential-immunity/



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