Supreme Court Conservatives Could Grant Trump Further Delay

In shocking arguments Thursday before the U.S. Supreme Court, at least five conservative justices suggested that they would create a new rule providing some form of immunity from criminal prosecution for former presidents and require lower courts to hold additional hearings to judge whether the indictment of former President Donald Trump for trying to overturn the 2020 election met that new standard.

The case arrived before the court after the Department of Justice charged Trump with four felonies related to his effort to overturn his 2020 election loss through a scheme involving the submission of false elector slates to Congress on Jan. 6, 2021. Trump asserted that as president he had an “absolute immunity” from criminal prosecution for all official acts committed while in office, and he asked the courts to confirm his claim. The case ended up at the Supreme Court after a panel of judges from the U.S. Court of Appeals for the District of Columbia Circuit ruled against his absolute immunity claim.

During Thursday’s arguments, five of the six conservative justices appeared more concerned about hypothetical restraints on future presidents that could flow from hypothetical future prosecutions rather than the actual case at hand. Nor did they appear to consider the hypothetical crimes future presidents could commit if granted “absolute immunity.” And though a majority of the court did appear to reject Trump’s full claim of “absolute immunity,” this suggested a desire to craft a ruling that would grant some form of immunity to presidents in some cases, and then remanding Trump’s case back to the lower courts for more hearings.

Though this may deny Trump the “absolute immunity” that would lead to the dismissal of his charges, it would give him what he may have wanted even more: a further delay of his trial past the Nov. 5 election. If Trump, the presumptive Republican Party presidential nominee, wins that election, he would become effectively immune from prosecution because of the Department of Justice’s policy not to prosecute a sitting president. It is possible that Trump could even pardon himself, although the justices noted in arguments that the court has never ruled on the constitutionality of a self-pardon.

Delay has been the chief strategy deployed by Trump since he was indicted in four different courts for crimes including trying to overturn the 2020 election, taking classified documents from the White House and paying to quash damaging stories from alleged mistresses.

Repeatedly, the conservative justices noted that they were not concerned with the case at hand but rather with their hypothetical concerns about how the threat of criminal sanction could restrain a president in the future.

“I’m not concerned about this case so much as future ones, too,” said Justice Neil Gorsuch, a Trump nominee.

“Like Justice Gorsuch, I’m not focused on the here and now of this case; I’m very concerned about the future,” said Justice Brett Kavanaugh, another Trump nominee.

“I’m not discussing the particular facts of this case,” said Justice Samuel Alito, a George W. Bush nominee.

The conservatives instead largely focused on the difference between an official act and an unofficial act, and whether the two could be realistically separated. In doing so, they went far afield to ask whether, after leaving office, President Lyndon Johnson could have been indicted for lying about the Vietnam War, if President Franklin Roosevelt could have faced criminal charges for incarcerating Japanese Americans or whether President John F. Kennedy could have been charged for trying to overthrow Fidel Castro in Cuba. (Kennedy, of course, died in office, so the question would be moot.)

In one jarring instance, Alito seemingly turned the case against Trump entirely on its head by suggesting that, without immunity, it was the threat of criminal sanction that would destabilize democracy by encouraging presidents to use force or fraud to stay in office.

“If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?” Alito asked. The case before Alito was, of course, already about a president who tried to overturn an election he lost.

When the arguments did veer back to the actual facts of Trump’s case, a majority of justices could be seen to coalesce around the view that the charges in the indictment, or at least some of them, did not qualify as official acts and, therefore, could be brought against him.

D. John Sauer, Trump’s lawyer, agreed that Trump’s actions in organizing the fake electors scheme ― in which Republican officials in six states submitted fake slates of electors to Congress in a scheme to overturn the election ― and acts involving private campaign officials or private lawyers did not constitute official acts, although Sauer disagreed about the facts surrounding them.

But Sauer also argued that elements of the indictment included official acts, such as Trump’s conversations with Vice President Mike Pence, his submission of the false electors and his effort to fire his attorney general and appoint Assistant Attorney General Jeffrey Clark because he would carry out his order to declare an investigation into nonexistent election fraud.

Were the court to not grant Trump absolute immunity, Sauer argued, the court should impose a rule to determine what is or isn’t an official act and require a lower court to review the indictment against Trump to excise any reference to official acts.

At the same time, Sauer expanded his argument beyond the initial absolute immunity claim to argue that presidents cannot be charged under any statute that does not specifically state that they apply to the president. This new logic would excuse the charges against Trump even if he did not obtain immunity for his official acts.

The conservatives entertained all of this, with Alito, Gorsuch, Kavanaugh and Justice Clarence Thomas seeming to be most firmly in Sauer’s corner. In ignoring the specific question presented to the court about absolute immunity for the charges Trump faced, they all focused on what they deemed the bigger question of creating a standard for future cases that would protect the president from interference in the difficult decision-making required for the office.

And so, the debate focused on what standard the court could adopt that would immunize presidents from prosecution for official acts, or some official acts, while perhaps allowing prosecution for non-official acts, those taken in pursuit of private gain.

Sauer wanted the court to extend its 1982 precedent in Fitzgerald v. Nixon, which granted presidents absolute immunity from civil liability, to cover criminal acts. In Fitzgerald, the court set a standard that included everything within the “outer perimeter” of the president’s official role as official acts. But Fitzgerald’s “outer perimeter” test should not be applied if the court seeks to create a new standard for presidential immunity in this case, Michael Dreeben, the lawyer representing special prosecutor Jack Smith, argued.

The justices discussed other possibilities, including the adoption of the standard set by the D.C. Circuit in Blassingame v. Trump, which denied Trump immunity from civil liability related to harms caused during the Jan. 6, 2021, insurrection by distinguishing between his dual roles as “office-holder” and “office-seeker.”

Dreeben was more amenable to the Blassingame standard, arguing that Trump’s alleged acts in the indictment were done in furtherance of his campaign and not as part of his duty as president, but Dreeben added that the government would look “more at the content of that actual interaction in order to make that determination than Blassingame suggested” by examining the “objective of the activity as opposed to the subjective motive.”

While the conservatives were more focused on creating a standard to protect future presidents, the liberal justices were concerned about the harms that could ensue by granting those future presidents absolute, or even qualified, immunity from prosecution for criminal acts.

“If the president decides that his rival is a corrupt person and he orders the military to assassinate him, is that within his official acts to which he has immunity?” Justice Sonia Sotomayor asked.

“That could well be an official act,” Sauer replied.

“How about if the president orders the military to stage a coup?” Justice Elena Kagan asked.

“I think it would depend on the circumstances,” Sauer said, after a pause.

“You seem to be worried about the president being chilled,” Justice Ketanji Brown Jackson said to Sauer. “I think that we would have a really significant opposite problem if the president wasn’t chilled. If someone with those kind of powers ― the most powerful person in the world with the greatest amount of authority ― could go into office knowing 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 only conservative justice who appeared strongly opposed to Trump’s arguments for some kind of immunity or the prospect of further delay of his federal trial was Justice Amy Coney Barrett. She was the only conservative justice to directly press Sauer on the actual alleged acts in the indictment and, in questioning Dreeben, she repeatedly noted her agreement with his analysis of the case.

Near the end of the arguments, Barrett appeared to be looking for a way out of both granting absolute immunity and further delaying the trial. She pressed Dreeben on the special prosecutor’s desire to move the case forward quickly but noted that if the court were to adopt a new standard on immunity, “the normal process would be to remand” to the lower courts “if we decided there was some ‘official acts’ immunity.”

“It is another option for special counsel to proceed on ‘unofficial conduct’ based on the private conduct and drop the ‘official conduct,’” Barrett said.

Dreeben replied that his understanding is that the indictment does not charge Trump with anything that could be construed as an official act. Where the indictment does mention events that Sauer claimed to be official acts (the effort to elevate Clark, for example), it did so to present supporting material as evidence that Trump abused his office to advance a scheme to overturn the election. Perhaps, he suggested, the trial court could allow the introduction of these potentially official acts as “evidence of intent” and instruct the jury that they could not be interpreted for the purpose of “criminal culpability.”

Jackson also homed in on whether the court should again delay Trump’s trial by arguing that the court need only rule on the question before it: whether presidents have absolute immunity from criminal prosecution.

“I thought he was arguing that all official acts get immunity?” Jackson asked. “And so I didn’t understand us having to drill down on which official acts do. My question is, why isn’t it enough, for the purposes of this case given what the petitioner has argued, to just answer the question of whether all official acts get immunity?”

“We should probably wait for a vehicle that allows us to test the different sides of the standard that we’d be creating,” she added.

There are two possible ways the court could go. With five conservative justices seemingly laser-focused on hypothetical future dangers imposed on the presidency by the threat of criminal charges, the case appeared headed to a result that would provide another Trump another delaying tactic. But the three liberals could join Barrett and Chief Justice John Roberts, the most skeptical of the other five conservatives, and send the case back to trial with jury instructions limiting how the prosecution could use certain official acts in their case. That would allow the election interference case to go forward quickly.

But it appeared that Trump’s lawyer believed he had won the day’s arguments. Following Dreeben’s responses, Sauer declined to give a rebuttal.

The court will decide the case by the end of its term, on June 30.