- Donald Trump appears unlikely to get the sweeping presidential immunity he wants.
- But a majority of Supreme Court justices appear ready to hand the former president an immediate victory.
- The justices appear likely to further delay a trial on Trump’s efforts to overturn the election.
Donald Trump might not get the sweeping immunity he wants.
Still, the Supreme Court justices do not appear likely to dismiss the former president’s claims quickly, raising the likelihood that Trump may not face trial for trying to overturn the 2020 election before November.
During arguments Thursday, Justices repeatedly underlined the historic weight of the case before them.
But for Trump the most immediate effect is that the significant issues at play will likely cause the criminal case against him to be delayed until after he wins or loses his next election.
Special counsel Jack Smith wanted justices to quickly deal with Trump’s claims and then move the case to trial, which was originally scheduled to begin last month.
A back-and-forth in oral arguments underlined that enough justices would rather kick the case back to a lower court level to determine which of Trump’s acts, as alleged in the indictment, are officially related to his job.
“I think you’ve acknowledged in response to others’ questions that some of the acts in the indictment are private, and your view is that some are official,” Justice Brett Kavanaugh told Sauer. “Is it your position then that that analysis of which is which should be undertaken, in the first instance, by either the DC circuit or the District Court?”
As Kavanaugh suggested, further arguments over the official and private line between Trump’s actions could fall to US District Court Judge Tanya Chutkan, in DC, who could be charged to hear and rule on the case.
A delay of this kind would make it almost impossible for Smith to try Trump before the November election. If Trump were to beat President Joe Biden, it’s not hard to see how Trump would use his presidential powers to wiggle out of the case.
Smith’s prosecution of Trump is the main avenue for the former president to face repercussions for his actions to overturn the 2020 election.
John Sauer, Trump’s lawyer, argued that a former president should hold absolute immunity for actions that might only be tangentially related to a president’s actual job. He drew his arguments from an earlier Supreme Court case that mapped the line for presidential immunity in civil matters.
Jabin Botsford/The Washington Post via Getty Images
Some of the court’s conservative justices, especially Justice Samuel Alito, seemed especially sympathetic to Sauer’s related point that there should be an extremely high bar for a court or prosecutor to question, after the fact, whether a president was truly doing their job when they ran afoul of the law.
Not every justice appeared as sold as Alito.
But even Justice Amy Coney Barrett, who appeared skeptical of some of Sauer’s other arguments, suggested that Smith’s team may have to alter the current indictment against Trump significantly if they want to proceed with the case quickly.
Barrett indicated the special counsel could focus solely on actions that Trump was doing outside his job.
Michael Dreeben, who argued on behalf of Smith’s team, seemed hesitant to agree to such a fix.
“There’s really an integrated conspiracy here that had different components, as alleged in the indictment — working with private lawyers to achieve the goals of the fraud, and as I said before, the petitioner reaching for his official powers to try to make his conspiracies more likely to succeed,” Dreeben said in response. “We would like to present that as an integrated picture to the jury so that it sees the sequence and the gravity of the conduct and why each step occurred.”
Barrett and other justices pressed both Sauer and Dreeben to go line-by-line through some of Trump’s conduct as outlined in the indictment.
It is possible that the Supreme Court could rule that a more detailed review of Trump’s conduct is best left to a lower court.
Justice Ketanji Brown Jackson offered what was almost a last-minute plea to her colleagues, questioning whether the case before them is really the one they want to use to draw a definitive line for every future president on what exactly is an “official act” in the scope of their job.
“If we see the question presented as broader than that, and we do say, ‘let’s engage in the core official versus not core and try to figure out the line,’ is this the right vehicle to hammer out that test?” Jackson asked.
But Jackson’s colleagues seem unlikely to be receptive to such a view based on Thursday’s arguments, and recent history.
In June 2022, Chief Justice John Roberts admonished the court’s other conservative justices for not limiting their decision in Dobbs v. Jackon to just the facts of the abortion rights case before the court. Justice Alito led a 5-4 majority that explicitly overturned Roe v. Wade. Conservative justices expressed similar concerns about Justice Anthony Kennedy’s majority opinion in Obergefell v. Hodges that found there is a nationwide right to same-sex marriage.
Throughout history, justices have reached for more sweeping language than the facts of the case before them.
Multiple conservative justices, including Alito and Kavanaugh, stressed they were concerned about more than just Trump’s conduct as alleged in the indictment.
“I appreciate that, but you also understand that we’re writing a rule for the ages,” Justice Neil Gorsuch told Dreeben at one point.
Trump would benefit from waiting for such a rule.
Because it would take so long to craft such a standard and then figure out how it applies to him, Trump could effectively avoid prosecution for any post-2020 election offenses at the federal level.
