U.S. Supreme Court justices in Trump case signal some support for presidential criminal immunity

Conservative justices on the U.S. Supreme Court signalled they may rule that American presidents are entitled to some form of immunity from criminal liability, a move that could thwart the prosecution of Donald Trump for trying to overturn the 2020 election.

In three hours of oral arguments Thursday, Mr. Trump’s lawyer asked the court to find that presidents enjoy absolute immunity for anything they do in office as part of their official duties. Under questioning, he acknowledged that this could hypothetically allow a president to order a military coup, sell nuclear secrets to an enemy country or assassinate a political rival.

While the court’s six-to-three conservative majority seemed disinclined to fully grant Mr. Trump’s request, several justices showed interest in a narrower form of immunity that would shield some presidential actions from criminal liability.

Such a ruling could ultimately send the federal criminal prosecution of Mr. Trump for his postelection actions back to an appeals court for further litigation. This would delay any trial until after the November election, where Mr. Trump is aiming to reclaim the White House from President Joe Biden.

It could also set a significant precedent for future presidents by affirming more expansive executive power.

Conservative Justice Samuel Alito raised the possibility of prosecutions of former presidents becoming routine, creating an incentive for incumbents to stay in office illegally, in order to avoid being indicted.

“Will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?” he asked Michael Dreeben, a lawyer for Jack Smith, the special counsel prosecuting Mr. Trump.

Mr. Dreeben argued the opposite: that a lack of criminal penalty would allow a president to get away with trying to cling to power after losing an election, as Mr. Trump did. He contended that there are already checks in the U.S. justice system to ensure former presidents do not face frivolous prosecution. Mr. Trump is the first former president in history to be charged criminally.

“His novel theory would immunize former presidents from criminal liability for bribery, treason, sedition, murder and, here, conspiring to use fraud to overturn the results of an election,” he said of Mr. Trump’s argument.

John Sauer, the former president’s lawyer, said the possibility of prosecution would hamper executive action. He floated, for instance, the notion of charging former president Barack Obama over a 2011 drone strike that killed a U.S. citizen in Yemen, or Mr. Biden for his handling of the border with Mexico.

“Without presidential immunity from criminal prosecution, there can be no presidency as we know it,” he said, adding that the “looming threat” of an indictment “will distort the president’s decision making precisely when bold and fearless action is most needed.”

Mr. Sauer said immunity should apply to any presidential action taken in an official, rather than personal, capacity. The only way to get around immunity would be for the House of Representatives to impeach and the Senate to convict a president and remove him or her from office first, he said. Mr. Trump was twice impeached but not convicted.

Liberal justices Elena Kagan and Sonia Sotomayor asked Mr. Sauer about various crimes, from killing a political opponent to selling nuclear secrets, and whether these would constitute official actions that would be shielded from prosecution. Mr. Sauer replied yes.

“How about if the president orders the military to stage a coup?” Justice Kagan asked. Mr. Sauer replied: “That may well be an official act.”

Chief Justice John Roberts, a conservative, mused that this could lead to a president selling ambassadorships for US$1-million bribes. But he suggested that he was unconvinced that prosecutors could be trusted not to bring questionable indictments of presidents.

He also floated the possibility of creating a narrow immunity standard and then having a lower court decide which of the allegations against Mr. Trump are or aren’t covered by it. “Why shouldn’t we send it back to the court of appeals?” he said.

This possibility – that the Supreme Court decides presidents have immunity for some acts but not others – would almost certainly lead to more litigation, further pushing back any potential trial for Mr. Trump.

The former president, who has sought to delay all of his court cases, is widely expected to order the Department of Justice to stop prosecuting him if he returns to office. The Supreme Court has already denied Mr. Smith’s requests to decide the immunity question swiftly. It may not issue a ruling until late June or early July.

Mr. Trump spent the day at his separate hush-money trial in Manhattan, possibly the only one of his four criminal prosecutions to go ahead before the election. The case involves actions he took before he became president, meaning it will likely be unaffected by the Supreme Court’s immunity ruling.

Another indictment, for refusing to return classified documents, may also be untouched, as it concerns events after he left office. The judge in that case, a Trump appointee, has held off on scheduling key dates, making it unlikely to come to trial soon.

The Supreme Court decided in the 1980s that presidents, judges and prosecutors are immune from civil lawsuits over official acts, in a bid to deter an avalanche of frivolous litigation.

The Department of Justice, meanwhile, has long held that it would be too debilitating to the government to charge a sitting president criminally, but that a prosecution can start once he or she leaves office. This has never previously been tested. “We’re writing a rule for the ages,” said Justice Neil Gorsuch, a conservative.

In Mr. Trump’s election-related cases – Mr. Smith’s at the federal level and a state-level indictment in Georgia – he is accused of breaking the law through a sweeping plan to have state officials, the Department of Justice and then-vice-president Mike Pence throw out election results in swing states that went for Mr. Biden.

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