US Supreme Court justices in Trump case lean toward some level of immunity

The Supreme Court’s conservative justices signalled support on Thursday for US presidents having some level of protection from criminal charges for certain acts taken in office as it tackled Donald Trump’s claim of immunity from prosecution for trying to undo his 2020 election loss.

During about 2.5 hours of arguments in the case, most of the justices seemed unlikely to embrace Trump’s most far-reaching argument that presidents have “absolute immunity” for official acts – an assertion that appeared to wilt under hypothetical questions involving selling nuclear secrets, taking a bribe or ordering a coup or political assassination.

But the conservative justices, who hold a 6-3 majority on the nation’s top judicial body, indicated concern about presidents lacking any degree of immunity, especially for less egregious acts. The contours of such a ruling, though, were not clear after arguments probing the extent of presidential powers.

Trump, seeking this year to regain the White House, appealed after lower courts rejected his request to be shielded from four election-related criminal charges on the grounds that he was serving as president when he took the actions that led to the indictment obtained by Special Counsel Jack Smith.

The Supreme Court’s eventual ruling may narrow the special counsel’s allegations against Trump, but it appeared that at least parts of the indictment would survive. The decision could further delay Trump’s trial, however, if the Supreme Court instructs lower courts to determine how to apply its newly formulated view of immunity. Smith attended the arguments.

Conservative Justice Samuel Alito said incumbent presidents who lose re-election would be in a “peculiarly precarious position” if they are vulnerable to vindictive prosecution by the next presidential administration.

“Will that not lead us into a cycle that destabilises the functioning of our country as a democracy?” Alito asked Michael Dreeben, the lawyer representing Smith.

“We can look around the world and find countries where we have seen this process where the loser gets thrown in jail,” Alito added.

Conservative Chief Justice John Roberts signalled concern about abusive prosecutions of presidents, absent immunity.

“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,” Roberts told Dreeben, while indicating he was not suggesting Trump’s indictment in this case was improper.

Trump, the Republican candidate challenging Democratic President Joe Biden in the Nov. 5 election in a rematch from four years ago, is the first former U.S. president to be criminally prosecuted.

He has pleaded not guilty in this case and in three other criminal cases, including an ongoing trial on New York state charges related to hush money paid to a porn star shortly before the 2016 U.S. election that made him president. Trump did not attend the arguments because he was in a Manhattan courtroom in the hush money case.

‘WHAT WAS THAT ABOUT?’

D. John Sauer, the lawyer arguing for Trump, said that without presidential immunity from criminal prosecution, “there can be no presidency as we know it.”

“For 234 years of American history, no president was ever prosecuted for his official acts,” Sauer added.

Liberal Justice Ketanji Brown Jackson pushed back on Sauer’s argument in a question about President Gerald Ford’s pardon of Richard Nixon following Nixon’s 1974 resignation amid the Watergate political scandal.

“If everybody thought that presidents couldn’t be prosecuted,” Jackson asked, “then what was that about?”