Trump case: Supreme Court reluctant to grant full immunity to former president

The Republican’s lawyer argues that a president can order a coup or the murder of a political rival without facing criminal prosecution

Protesters outside the Supreme Court, this Thursday in Washington.J. Scott Applewhite (AP)
Miguel Jiménez

Can the president of the United States order the assassination of a political rival? Donald Trump believes that they can. That’s what his lawyer, John Sauer, argued on Thursday in the solemn courtroom of the Supreme Court in the case Donald Trump vs. the United States. Saur also argued that a president is protected by presidential immunity even if they order a coup. Given Trump is the presumptive Republican nominee in the presidential elections in November, leading in the polls against Joe Biden, is calling for revenge and has said that he would be a “dictator” for just a day, these arguments are chilling. The Supreme Court justices — even the conservative ones — were reluctant on Thursday to agree with these claims, but they did appear open to limiting or delaying the case against the former president.

What is at stake in this Supreme Court case is not a murder accusation, but rather whether Trump can be tried for his role in trying to subvert the 2020 presidential elections — which he lost to Biden — clinging to power with underhanded maneuvers and preventing the certification of that victory. Although the justices appeared skeptical about Trump’s claims of full immunity, the conservatives on the bench also expressed concern that a former president can be charged like a normal citizen.

The sentence will arrive in the coming weeks and will mark Trump’s judicial future. The justices can admit or reject his immunity outright, but conservatives seemed more in favor of taking a middle path, establishing general criteria for which official actions could be protected from persecution and under what circumstances, and referring the case to the lower courts. For Trump, having the election subversion case delayed until after the November election would be a major win. His team’s defense that Trump was protected by presidential immunity has already succeeded in delaying the start of the trial, which was scheduled for March 4.

The hearing — which lasted more than two and a half hours — took place in Washington while the former president sat in the dock in New York, where he is being tried for alleged crimes committed before he was president. In the Supreme Court, his immunity was being discussed in a historic case that will define the scope of presidential power for the future. No president or former president has been indicted before Trump, so the Supreme Court has never ruled on the issue. “This case has huge implications for the presidency, for the future of the presidency and for the future of the country, in my view,” said Justice Brett Kavanaugh.

Private vs official acts

Donald Trump does not actually claim absolute immunity. His lawyer admitted that he could be charged for his private conduct, but not for acts carried out in the exercise of his position, while arguing that the murder of political rivals and a coup d’état may fall into that category.

“I think it would depend on the circumstances whether it was an official act,” Sauer said in reference to a hypothetical coup d’état. “That could well be an official act,” he insisted, eliciting an astonished response from progressive Justice Elena Kagan. Trump’s lawyer pointed out that, in any scenario, he would have to be impeached and convicted by the Senate before he could be criminally prosecuted.

Even the conservative Justice Amy Coney Barrett pointed out that other positions, including Supreme Court justices, can be impeached, and that this is not the “gateway to criminal prosecution.” “Why is the president different?” she asked.

The president’s claim that he would be protected by immunity if he ordered special forces to assassinate a political rival first emerged in the Court of Appeals. In that instance, Judge Samuel Alito, one of the most conservative judges in the country, used it as an example and was skeptical that it could be covered by presidential immunity.

The blurred line between what constitutes personal and official acts occupied a large part of the hearing, but the justices were reluctant to grant absolute immunity even for official acts, since that would give the president of the United States almost unlimited power. Nor were they willing to accept any act in the exercise of office is official.

Trump maintains that if a president can be persecuted after leaving the White House, that will condition their actions. Progressive Justice Ketanji Brown Jackson, on the other hand, warned that absolute immunity could turn the Oval Office into “the seat of criminal activity in this country,” arguing that there would be no incentive for “the most powerful person in the world” to follow the law.

Sauer argued that the president must be free from obstacles to make important decisions. To which Jackson replied: “There are lots of people who have to make life and death decisions,” and still face the risk of criminal prosecution.

The conservative justices, however, were more receptive on that point of Trump’s argument. Neil Gorsuch suggested that if presidents fear they could be impeached after leaving office, they could begin preemptively pardoning themselves. “We’ve never answered whether a president can do that. And happily, it’s never been presented to us,” he said.

Kavanaugh, one of three Supreme Court members appointed by Trump, said he was concerned about the possibility of a “creative prosecutor” going after a president. Samuel Alito, one of the most conservative justices on the bend, went further, arguing that if presidents could not leave office with the peace of mind that they were going to retire peacefully, they may be tempted to cling on to power. This is the opposite of what happened: instead of walking away, Trump refused to recognize Biden’s victory and is accused of violating the law by trying to hold on to office.

In his turn, Michael Dreeben, the attorney for the special counsel, rejected the possibility of a “creative prosecutor.” “The reason why there have not been prior criminal prosecution [of a president] is that there have not been crimes.”

John Roberts, chief justice of the Supreme Court, criticized the circular argument of the Court of Appeals decision that ruled that Trump does not have immunity, which the former president appealed. “As I read it, it says simply, ‘a former president can be prosecuted because he’s being prosecuted.’ You know how easy it is in many cases for a prosecutor to get a grand jury to bring an indictment and reliance on the good faith of the prosecutor may not be enough in some cases,” he said.

Along these lines, Alito referred to the old saying that the criteria is so lax, prosecutors can convince a grand jury to “indict a ham sandwich.” He asked the prosecutor if he had encountered many cases in which a grand jury rejected an indictment by prosecutors. When Dreeben tried to answer that it had been like that on some occasion, Alito cut him off. “Every once and a while there’s an eclipse too,” he retorted, to some laughter.

Roberts had previously highlighted the difficulty of separating official acts and private acts. If a president accepts a million-dollar bribe to appoint someone as ambassador, can he argue that the appointment of ambassadors is an official act to claim immunity?

Attorney Dreeben said that what Trump was seeking was “widespread criminal immunity” and that his alleged abuse of official power to subvert democracy should not go unpunished.

The three progressive justices agreed with his position. Jackson mentioned Richard Nixon’s pardon to try to demonstrate that Trump’s immunity claim did not hold up: “I think that if everybody thought that presidents couldn’t be prosecuted, then what was that about?” she said, referring to the pardon.

The Founding Fathers did not insert an immunity clause for presidents in the Constitution, even though “they knew how to,” Kagan argued. “They were reacting against a monarch who claimed 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 above the law?”

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