WASHINGTON (CN) — After nearly two and a half hours of arguments Thursday morning, the Supreme Court seemed no closer to resolving Donald Trump’s presidential immunity claim — signaling further delay of the former president’s D.C. trial.
Trump’s absolute immunity claim appeared to fall flat with the court, but the conservative justices were receptive to some level of liability protection for presidents and cited concerns over political prosecutions.
“I’m not focused on the here and now of this case,” said Justice Brett Kavanaugh, a Donald Trump appointee. “I’m very concerned about the future.”
There was agreement across the bench and both counsels’ tables that presidents’ private actions are not exempt from criminal prosecution. The question that remained was how to separate official presidential duties and the private actions of a presidential candidate.
Several justices seemed interested in creating a test for determining whether actions fell into the presidential or private bucket. Justice Neil Gorsuch, a Trump appointee, said bribery statutes include clear statements about their applicability to presidents.
This suggestion — which garnered support from several of his conservative colleagues — could create a test that only allows presidents to be prosecuted for breaking laws that explicitly implicate the executive office.
Not everyone on the bench seemed to agree, however. Justice Ketanji Brown Jackson, a Joe Biden appointee, said it didn’t make sense for the court to answer a question on statutory interpretation when the justices agreed to answer a constitutional question.
“What’s confusing to me about this case is that we're not being asked to avoid the constitutional question,” Jackson said. “In fact, the question of whether or not the president can be held liable consistent with the Constitution or does he have immunity is the question that's being presented to us.”
Jackson said it was “completely tautological” to her for the court to rule that a clear statement from Congress was needed to criminally prosecute the president.
The court’s decision on whether to create a clear statement test could decide if Trump’s trial begins before the 2024 election. It seemed possible that the justices could issue a ruling that would have to be sent back to the lower courts to be litigated, further delaying the trial that was scheduled to begin last month.
It was clear that the liberal justices thought Trump was not entitled to presidential immunity. Justice Sonia Sotomayor, a Barack Obama appointee, said Trump is asking the court to hold that presidents are entitled to use the trappings of executive office for personal gain without facing criminal liability.
Justice Elena Kagan, another Obama appointee, asked Trump’s attorney if presidential immunity would allow the commander-in-chief to stage a coup. John Sauer, an attorney with James Otis Law Group representing Trump, refused to take a position on whether a coup would be considered an official act but suggested the president would need to be impeached and convicted before facing any criminal charges.
“That answer sounds to me as though it's like, yeah, under my test, it's an official act, but that sure sounds bad, doesn't it?” Kagan responded.
Sauer said presidents needed this broad immunity so they don’t face de facto blackmail and extortion by political rivals. He used actions by other former presidents to suggest the broad reach of liability for presidents.
“Could President George W. Bush have been sent to prison for obstructing an official proceeding or allegedly lying to Congress to induce war in Iraq?” Sauer asked. “Could President Obama be charged with murder for killing U.S. citizens abroad by drone strike? Could President Biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policies?”
In a very rare move, Sauer waived his time for rebuttal, seeming to think that the court had heard everything it needed to rule.
There wasn’t clear consensus across the bench about how to rule in the case but several justices noted that the D.C. trial could move forward regardless of presidential immunity on official acts.
“Even if the court were inclined to recognize some immunity for a former president's official acts, it should remand for trial because the indictment alleges substantial private conduct?” Justice Amy Coney Barrett, a Donald Trump appointee, asked prosecutors.
Michael Dreeben, counselor to the special counsel at the Justice Department, said the case could proceed on Trump’s private actions absent any contested conduct that could fall under presidential immunity. Dreeben hedged whether prosecutors are presenting an integrated conspiracy and that Trump had used his official authority to make his conspiracies more likely to succeed.
While the conservative justices showed concern for the future of the executive office, Dreeben stressed there was also a concern with allowing presidents to be above the rule of law.
“[Trump’s] novel theory would immunize former presidents from criminal liability for bribery, treason, sedition, murder, and, here, conspiring to use fraud to overturn the results of an election and perpetuate himself in power,” Dreeben said. “Such presidential immunity has no foundation in the Constitution.”
The gravity of the court’s decision in this case was not lost on the court. Justice Samuel Alito, a George W. Bush appointee, said allowing former presidents to be prosecuted would destabilize the country’s democratic system.
“If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”
Sotomayor said the judicial system had layers and layers of protections to prevent defendants from being wrongfully prosecuted and in the vast majority those systems make sure those who are innocent go free. However, she acknowledged that sometimes that isn’t the case.
“Justice Alito went through step by step all of the mechanisms that could potentially fail,” Sotomayor said. “In the end, if it fails completely, it's because we destroyed our democracy on our own, isn't it?”
The court will issue a ruling by the end of June.
Follow @KelseyReichmann
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