When Donald Trump began claiming presidential immunity from criminal punishment in connection with his efforts to overturn his 2020 election defeat, many legal scholars interviewed by ABC News thought it was a poor argument.
However, during nearly three hours of oral arguments last week, some Supreme Court justices appeared to be amenable to some limited protection for past presidents from criminal prosecution for official activities committed while in the White House.
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Some senior court observers described it as a surprising turn of events.
“It was surprising to hear, at least from some of the justices, the possibility that a president could somehow commit criminal misconduct for which they could never be held liable in court,” Michael Gerhardt, a constitutional specialist at the University of North Carolina, told ABC News. “I think that has struck many people as just, up until now, inconceivable.”
“That’s exactly the part that I think most of the American public is going to find fairly incredulous,” said David Schultz, a University of Minnesota professor and national constitutional law expert. “The idea of saying that the president of the United States is above the law compared to the rest of us.”
While the justices appeared to be ready to reject Trump’s more broad claim of “absolute” immunity, how they try to determine what official acts are and are not exempt from criminal prosecution will set a new norm for presidential power.
“That is a whole new territory for the court that we’ve never seen before,” Schultz told reporters, “and will make major new law in the United States.”
During the hearing on Thursday, the justices grappled with the case’s unusual nature. Justice Neil Gorsuch stated that what they decide will be a “rule for the ages.”
While Trump is the first president to face criminal charges, the arguments mainly ignored the former president and the specific allegations against him.
Special counsel Jack Smith raised the immunity issue before the Supreme Court in a case alleging election interference. The court charges Trump with four felonies: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy to violate rights. He pleaded not guilty and denied any misconduct.
Surprisingly, “in some sense, Trump did not seem to be important in this case,” Schultz remarked.
Instead, justices worried about the consequences of giving future presidents too much or too little protection, focusing the debate mostly on hypothetical scenarios.
“The question rapidly emerged: ‘What’s the extent of official behavior?’ And that’s where I believe the justices’ disagreements were most evident,” said Gerhardt.
At one point, Justice Elena Kagan questioned Trump attorney John Sauer about whether a president could instruct the military to stage a coup and be immune. Sauer stated that they believe a president can do it.
“The answer that she got was one of the most disturbing I’ve ever heard at the Supreme Court,” Gerhardt added.
Justice Sonia Sotomayor also questioned Sauer about whether a president could command the military or someone else to assassinate a political foe, which Sauer acknowledged may be considered an official act depending on the circumstances.
“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?” Justice Ketanji Brown Jackson asked a question.
On the other hand, several conservative justices appeared to be primarily concerned about future bad faith trials of former presidents and how this would affect their capacity to make the “tough decisions” required by their job.
Trump’s counsel made the same point in his opening statement, claiming that the possibility of prosecution would “distort the president’s decision-making precisely when bold and fearless action is most needed.”
Justice Samuel Alito even conjectured that without immunity, presidents might be inclined to commit crimes to maintain their power, instead of quietly resigning, due to the fear of facing prosecution by a “bitter political opponent” after leaving office.
“Will that not lead us into a cycle that destabilizes our country’s functioning as a democracy?” Alito asked.
One analyst compared Alito’s line of inquiry to passing through a looking glass into an alternative universe.
“The fact that we haven’t had something like this happen before is consistent with the government’s position that there are institutional norms that have largely held,” said Ray Brescia, an Albany Law School professor. “So, to upset that delicate balance because, in Justice Alito’s words, we can’t hold the president accountable for trying to subvert democracy in the fear that a future president might try to subvert democracy, is just completely unrealistic.”
Stanley Brand, a former House general counsel who now represents many former Trump officials, said Alito’s question was “timely.”
“What happens when Joe Biden leaves office? Is the Republican Department of Justice going to suggest that some of his actions were illegal? So I don’t believe that was an exaggerated or imaginary fear,” Brand stated.
The conservative justices also questioned whether previous presidents’ controversial actions, such as Franklin D. Roosevelt’s decision to intern Japanese Americans during World War II and John F. Kennedy’s scheme to undermine Fidel Castro’s rule in Cuba, could have been prosecutable.
“Presidents have to do a lot of things that, in retrospect or under the microscope of a lawsuit, might not look very good,” Brand said. “You have to look carefully at those, and I think that’s certainly what at least five of the justices expressed concern over.”
The back-and-forth highlighted the court’s arduous journey ahead in developing an opinion.
“The path that they went down the other day is a very messy one, and I don’t know how they’re going to come up with a clean answer to it,” Schultz added.
The courts have postponed the trial for Trump’s election subversion case, originally scheduled for March 4, while they resolve the immunity issue. The Supreme Court’s decision to hear Trump’s immunity claim and its method of producing an opinion, which is not expected until well into June, is widely regarded as a victory for the former president, as it makes it less likely than ever that the trial will take place before the November election.
The Supreme Court ruled unanimously in some previous high-profile opinions involving presidential authority, including U.S. v. Nixon (in which the court stated that a president does not have executive privilege in immunity from subpoenas or other civil court actions) and Clinton v. Jones.
Analysts, however, predict that the court’s decision in this case will undoubtedly divide opinion.
“It’s clear to me that this will likely be a split decision,” Schultz remarked. “I saw clear divisions, and that’s just not good for the court, and it’s not good for America in such an important case like this.”
