When Donald Trump started asserting that he was immune to criminal prosecution as a result of his attempts to overturn his defeat in the 2020 election, numerous legal analysts whom ABC News consulted regarded it as a feeble argument.
During last week’s oral arguments, the Supreme Court justices displayed a degree of openness towards providing limited protection for former presidents from criminal liability for their official acts during their time in the White House. The discussion lasted for nearly three hours, indicating the significance of the topic at hand.
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According to seasoned court observers, the recent turn of events came as quite a shock.
According to Michael Gerhardt, a constitutional expert at the University of North Carolina, it was astonishing to learn that some of the justices entertained the idea that a president could potentially engage in criminal wrongdoing without facing any legal consequences. He believes that this notion has been perceived as unimaginable by many individuals until now.
David Schultz, a professor at the University of Minnesota and a national expert in constitutional law, expressed his disbelief regarding the notion that the president of the United States is above the law. He stated, “That’s exactly the part that I think most of the American public is going to find fairly incredulous. The idea of saying that the president of the United States is above the law compared to the rest of us.”
The justices appeared ready to dismiss Trump’s broader assertion of “absolute” immunity, but they face the challenge of defining which official actions can be exempted from criminal prosecution. This decision will establish a new benchmark for presidential authority.
Schultz expressed that the court is venturing into uncharted territory, which has never been witnessed before. According to Schultz, this will result in the establishment of groundbreaking laws in the United States.
During Thursday’s hearing, the justices were faced with the unique nature of the case. Justice Neil Gorsuch emphasized the significance of their decision, stating that it would establish a “rule for the ages.”
In the impeachment trial, the focus was not on the specific allegations against former President Trump, making it a unique situation as he became the first president to face criminal charges.
The Supreme Court had to address the issue of immunity in a case filed by special counsel Jack Smith, who accused Trump of election interference. Trump is currently facing four felony charges, including conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an attempt to obstruct an official proceeding, and conspiracy against rights. Despite the charges, he maintains his innocence and denies any wrongdoing.
According to Schultz, it is somewhat puzzling that Trump did not appear to be significant in this particular case.
The debate, instead, predominantly centered around hypothetical scenarios, with justices expressing their worries about the potential outcomes of excessive or insufficient protection for future presidents.
According to Gerhardt, the justices’ disagreements were revealing as they delved into the question of the scope of official conduct.
During the Supreme Court hearing, Justice Elena Kagan raised a crucial question to Trump’s attorney, John Sauer. She inquired whether a president could potentially order the military to execute a coup and still remain immune. In response, Sauer expressed their belief that a president would indeed have the authority to do so.
Gerhardt described the response as one of the most unsettling that he has ever heard at the Supreme Court.
Justice Sonia Sotomayor posed a thought-provoking question to Sauer, inquiring about the possibility of a president issuing an order to eliminate a political opponent. Sauer acknowledged that under certain circumstances, such an action could be deemed an official act.
Justice Ketanji Brown Jackson raised an important concern during the discussion – if we remove the possibility of criminal liability, wouldn’t it increase the risk of future presidents feeling confident to engage in unlawful activities while in office?
Several conservative justices expressed their primary concern about potential future prosecutions motivated by bad faith against former presidents. They raised reservations about how such prosecutions could impede the ability of presidents to make the necessary “tough decisions” required by their role.
In his opening statement, Trump’s attorney emphasized the potential distortion of the president’s decision-making due to the looming threat of prosecution, particularly during crucial moments that require bold and fearless action.
Justice Samuel Alito raised the question of whether presidents, without immunity, might be motivated to engage in criminal activities in order to remain in power. This concern arises from the fear that they may face prosecution from a “bitter political opponent” once they leave office.
“Will this not create a cycle that disrupts the functioning of our democracy?” questioned Alito.
According to one expert, Alito’s line of questioning took a step into an alternate reality, resembling a journey through the looking glass.
According to Ray Brescia, a professor at Albany Law School, the absence of a situation like this in the past aligns with the government’s belief in the preservation of institutional norms. Brescia expresses concern that disrupting this delicate balance, as mentioned by Justice Alito, merely to avoid holding the president accountable for undermining democracy, is reminiscent of a scenario from “Alice in Wonderland.”
Stanley Brand, a former House general counsel and now an attorney for several former Trump aides, finds Alito’s question to be timely.
“What happens to Joe Biden after he steps down from office? Will a Republican Department of Justice accuse him of illegal activities? According to Brand, this is not an exaggerated or unfounded concern.
The conservative justices also brought attention to past controversial actions by previous presidents. For example, they mentioned Franklin D. Roosevelt’s decision to intern Japanese Americans during World War II and John F. Kennedy’s plan to undermine Fidel Castro’s rule in Cuba. They questioned whether these actions could have subjected the presidents to prosecution.
According to Brand, presidents often find themselves in situations where their actions may not appear favorable, especially when scrutinized later or in the context of a legal case. He believes that it is important to examine these situations closely, as evidenced by the expressed concerns of at least five justices.
Crafting an opinion proved to be a challenging endeavor for the court, evident in the back-and-forth exchanges that took place.
Schultz expressed his concern about the messy path they took recently, stating that he is uncertain about how they will find a clean answer to the situation.
The trial for Trump’s election subversion case, initially scheduled for March 4, has been postponed due to the ongoing deliberation over the immunity question in the courts. The fact that the Supreme Court has agreed to consider Trump’s immunity claim and is taking its time to craft an opinion, expected to be released in June, is widely regarded as a victory for the former president. This development further diminishes the likelihood of the trial taking place before the November election.
In previous high-profile cases involving presidential authority, such as U.S. v. Nixon and Clinton v. Jones, the Supreme Court made unanimous rulings. In U.S. v. Nixon, the court stated that a president does not have executive privilege to be immune from subpoenas or civil court actions. Similarly, in Clinton v. Jones, it was determined that a president does not have immunity from civil damages for acts committed before taking office or unrelated to the office.
According to experts, the court’s decision in this case is expected to be highly contentious and controversial.
“It seems evident to me that this case will probably result in a divided decision,” expressed Schultz. “I observed distinct divisions, and that is certainly detrimental to both the court and the nation, especially in a crucial matter like this.”
