Supreme Court justices Thursday appeared highly skeptical of former President Donald Trump’s claim of absolute immunity from prosecution for his efforts to remain in office following the 2020 election.
But how and when the court decides the historic case could be as important as the substance of its findings, and it’s far from certain the Georgia and federal election interference cases against the former president will move forward anytime soon.
The justices’ questions and comments suggest they could send the case back to a federal judge in Washington so she can decide which of Trump’s alleged acts were official, and possibly shielded by immunity, or were personal, which could be subject to prosecution. And the justices’ decision may not come until the end of June — making it almost impossible for Trump to face trial in either case before voters decide whether to re-elect him in November.
If the high court does give Trump what he’s asking for — absolute immunity — it would almost certainly lead to the dismissal of charges against him in Fulton County. This became clear when Justice Department attorney Michael Dreeben responded to a question posed by Justice Amy Coney Barrett, who cited the article of the U.S. Constitution that governs presidential power.
“Let me ask you about state prosecution, because if the president has some kind of immunity that’s implicit in Article II, then that immunity would protect him from state prosecution as well,” Barrett noted.
“Of course,” Dreeben replied.
A majority of the court’s justices appeared likely to reject Trump’s claim of absolute immunity from prosecution over election interference.
Chief Justice John Roberts — who has sometimes served as the court’s swing vote — was among at least five members of the court on Thursday who did not appear to embrace the claim of absolute immunity that would stop special counsel Jack Smith’s prosecution of Trump on charges that he conspired to overturn his 2020 election loss to Democrat Joe Biden.
Justice Elena Kagan got what could be an important concession from Trump attorney D. John Sauer when she pressed him on what constituted official acts, which might be shielded from prosecution.
One allegation in the indictment obtained by Smith involves Trump signing a verification of a lawsuit filed on his behalf against Gov. Brian Kemp on Dec. 31, 2020. The suit falsely contended there was widespread election fraud during the presidential election here.
When Kagan asked Sauer if this was part of Trump’s official duties, Sauer acknowledged it was “nonofficial” and presumably subject to prosecution.
Trump is also charged in the Fulton indictment for verifying that lawsuit, which falsely claimed more than 2,500 felons and as many as 10,315 dead people voted in the 2020 presidential election. This week, however, Trump’s Atlanta lawyers sought to get that count against the former president dismissed.
Later in the arguments, Dreeben referenced the Jan. 2, 2021, phone call during which Trump told Secretary of State Brad Raffensperger, “I just want to find 11,780 votes,” which was one more than his losing margin. Trump and his former chief of staff, Mark Meadows, who also was on the call, are charged in the Fulton case for allegedly soliciting Raffensperger to violate his oath of office.
“I think if you look at that content, it’s pretty clear that (Trump) is acting in the capacity as office seeker, not as president,” Dreeben told the justices, meaning he could not claim immunity for an official act.
A decision by the justices to send the case back to a lower court would be a win for Trump who could benefit from delay. Some legal observers worry the delay could allow Trump to terminate the prosecutions if he defeats Biden in this year’s rematch — giving Trump de facto immunity regardless of how the court rules.
“The absolute immunity case has already taken far too long,” said Norm Eisen, who served as special counsel to the House Judiciary Committee majority during the first Trump impeachment. “If the Supreme Court does not address this case on an expedited basis, that will represent a miscarriage of justice irrespective of the outcome.”
But John Malcolm, senior legal fellow at the conservative Heritage Foundation, said Trump has raised important issues about how the potential for prosecution could hinder presidents making tough decisions.
“You don’t want them or anyone who’s advising them to be wondering in the back of their minds whether what they’re doing could subject them to criminal prosecution,” Malcolm said.
In both the Georgia and federal election cases, Trump is accused of illegally plotting to remain in power despite losing to Biden. He has denied the allegations and, in both cases, claimed the U.S. Constitution grants former presidents absolute immunity from prosecution for official acts they took while in office.
Trump’s lawyers argue that without absolute immunity, politically motivated prosecutions of former occupants of the Oval Office would become routine and presidents couldn’t function as the commander in chief if they had to worry about criminal charges. Lower courts have rejected those arguments, including a unanimous three-judge panel on an appeals court in Washington, D.C.
Justice Department special counsel Jack Smith’s team says the men who wrote the U.S. Constitution never intended for presidents to be above the law and that, in any event, the acts Trump is charged with — including participating in a scheme to enlist fake electors in battleground states won by Biden — aren’t in any way part of a president’s official duties.”
One of the main points of discussion turned on the question of which situation would be worse: a world in which presidents, shorn of any legal protections against prosecution, were ceaselessly pursued in the courts by their rivals in a never-ending cycle of political retribution, or allowing presidents to be unbounded by criminal law and permitted to do whatever they wanted with impunity.
“This case has huge implications for the presidency, for the future of the presidency, for the future of the country,” said Justice Brett M. Kavanaugh.
Justice Samuel A. Alito Jr. said that a ruling for Trump could enhance democratic values. ”A stable, democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully,” he said, adding that the prospect of criminal prosecution would make that less likely.
”Will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?” he asked.
Justice Sonia Sotomayor said she had a different understanding. “A stable democratic society,” she said, “needs the good faith of its public officials.”
Justice Ketanji Brown Jackson said she worries about the consequences of granting presidents absolute immunity.
“If the potential for criminal liability is taken off the table, wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they’re in office?” she asked. Because presidents have always known they could be held accountable for their illegal actions, she added, “that might be what has kept this office from turning into the type of crime center that I’m envisioning.”
Fulton County prosecutors are waiting for the Supreme Court to resolve the immunity issue before they respond to Trump’s motion to dismiss the Georgia case on immunity grounds. It’s unlikely Superior Court Judge Scott McAfee will schedule a trial in the case until the immunity issue is resolved.
The Associated Press and The New York Times contributed to this report
