Supreme Court Appears Open to Some of Trump’s Immunity Claims

A majority of justices didn’t appear to embrace all of Trump’s arguments, and they spent little time discussing the specifics of his case. But the court did signal a clear interest in broadly protecting the presidency for the future. Any high court decision embracing that position could further delay Trump’s trial, if not end it completely.

“I’m not focused on the here and now” of the Trump allegations, said Justice Brett Kavanaugh, a 2018 Trump appointee. “I’m focused on the future,” and how the court’s decision could impose limits on presidential discretion.

The court’s conservative majority expressed sympathy for Trump lawyer John Sauer’s argument that future presidents might be paralyzed into inaction by the potential of prosecution after leaving office for bold decisions they think are in the nation’s interest. While former presidents remain liable for crimes committed in their personal capacity, Sauer said that official acts that break the law couldn’t be subject to prosecution.

In response to questions from the court, Sauer said that ordering the military to stage a coup or assassinate a political opponent could be official acts for which a president couldn’t be criminally prosecuted. Other safeguards, such as congressional inquiry or public opinion, would restrain the president from wrongdoing, he said.

Several justices suggested that further court proceedings could be necessary to sift Trump’s private acts from official ones in the indictment handed up by a federal grand jury—a process that would likely to delay commencement of Trump’s trial for months, and almost surely past the Nov. 5 election that he hopes will enable him to regain the presidency.

The same process likely would apply to the state prosecution pending against Trump in Georgia, where he is charged with attempting to take electoral votes that Joe Biden won.

Liberal justices argued that the greater risk to the American system came from giving the president carte blanche to disregard the law.

Declaring that presidents could never face prosecution could turn “the Oval Office into the seat of criminal activity in this country,” said Justice Ketanji Brown Jackson.

Chief Justice John Roberts said there was flawed reasoning in a lower court decision from February that allowed the Trump case to move forward.

Roberts said safeguards are needed to ensure that an overzealous prosecutor doesn’t charge a president for acts that fall within the scope of his duties. The decision earlier this year from the U.S. Court of Appeals for the District of Columbia Circuit didn’t provide enough of those protections, Roberts said.

Still, justices in the court’s conservative majority stopped short of endorsing the absolute immunity endorsed by Sauer.

“My question is whether the very robust form of immunity that you’re advocating is really necessary,” Justice Samuel Alito said.

The Supreme Court has given Trump the time and space to make his best case. The court turned down requests from special counsel Jack Smith to hear the matter sooner. To accommodate Trump’s appeal, the court extended its calendar by a day, making this Thursday the final argument of the current term.

Some have suggested the court’s deliberate pace could help Trump regardless of the case’s ultimate outcome by adding weeks or months of delay that could push off trial proceedings potentially past November’s election, when Trump hopes to reclaim control of the federal government and could kill the prosecution.

The court’s defenders counter that the country wouldn’t be served by hasty disposition of a major constitutional dispute, and that the justices need time to resolve a case sure to leave much of a polarized nation dissatisfied.

Trump denies wrongdoing of any kind. But even if he did break the law, Trump argues that the Constitution’s framers preferred to let a president get away with crimes than place the potential of future prosecution in the mind of the chief executive.

Trump’s lawyers rely heavily on a 1982 precedent, Nixon v. Fitzgerald, in which a 5-4 court ruled that an ex-president had “absolute immunity” from a civil lawsuit filed by an Air Force employee who alleged retaliation for testifying before Congress over cost overruns in a defense program. The court then reasoned that allowing such suits to proceed exposed a former president to harassment over actions within the “outer perimeter” of his authority.

The same reasoning, Trump’s lawyers argue, should extend to criminal prosecution. No former president before Trump has faced prosecution for crimes committed while in office, they observe, arguing that an unwritten constitutional principle has been broken by the indictment that a federal grand jury handed up last year.

Smith argues that not even Richard Nixon, who asserted a robust vision of executive privilege, disputed the possibility of prosecution after leaving office. After resigning in 1974, rather than facing a House impeachment vote over Watergate, Nixon accepted from President Gerald Ford a pardon for crimes he might have committed.

Justice Jackson cited that pardon Thursday, saying it illustrates “every president from the beginning of time essentially has understood that there was a threat of prosecution.”

Trump appointed three members of the Supreme Court, and they have at times sided with him.

More frequently, however, the court, including his own appointees, has ruled against him. In 2020, the court rejected Trump’s bid to stop a New York prosecutor investigating potential crimes from obtaining financial records from Trump’s accountants.

In January 2022, the court denied without comment Trump’s request to prevent the House Jan. 6 committee from obtaining White House records related to the Capitol riot.

Get More of our proprietary news and analysis as MoneyCentral is now on WhatsApp Channels  Follow the MoneyCentral Nigeria channel on WhatsApp: Click here!