Supreme Court hears arguments in Trump immunity case

The Supreme Court is hearing oral arguments over the unprecedented question of whether Donald Trump is immune from prosecution for actions taken while in office to try to retain power after losing the 2020 election.

Much of the discussion has so far focused on whether there is immunity for official acts, and which allegations in the indictment involve potentially official acts.

The high court’s decision will determine whether and how quickly the former president faces trial in Washington on charges of election interference — and shape presidential power and accountability for future officeholders.

The justices are reviewing a unanimous lower court ruling that said Trump could be prosecuted for his alleged efforts to overturn the election he lost to Joe Biden.

Trump’s pretrial proceedings in Washington remain on hold until a ruling is issued, giving the justices a direct role in influencing the timing of the election-interference trial for the presumptive Republican presidential nominee in this year’s election.

Justice Samuel A. Alito Jr. asked the government lawyer if he really thought presidents should be prosecuted if they make a mistake while doing their jobs.

Justice Department lawyer Michael R. Dreeben suggested that presidents wouldn’t just make a simple mistake that would result in prosecution.

“He has had access to legal advice about everything that he does,” Dreeben responded. “The laws of the United States and the Constitution of the United States, and making a mistake is not what lands you in a criminal prosecution.”

Dreeben then said that Trump’s alleged actions around Jan. 6 should not be immune from prosecution, in part because the president does not have any official role in certifying the election results. He also said Trump was using deception to undermine a function of the government.

“It’s difficult for me to understand how there could be a serious constitutional question about saying you can’t use fraud to defeat that function. You can’t obstruct it through deception,” Dreeben said. “You can’t deprive millions of voters of their right to have their vote counted for the candidate who they chose.”

Justices Neil M. Gorsuch and Elena Kagan sparred over the fundamental question of the reach of criminal statutes over the conduct of presidents. Gorsuch asked if a president could be prosecuted for sending supporters to peacefully protest and impede Congress from passing a law.

In response, Justice Department attorney Michael R. Dreeben walked through a series of tests. Is there an applicable criminal statute? Can prosecutors prove the president’s intent? Did the president get the attorney general’s blessing, or opposition?

Gorsuch pressed, but Dreeben demurred, saying: “Well, so then we are down at that level. I think what we are really asking is whether the president is subject to the criminal law. And our answer is yes, he is subject to the criminal statute.”

Dreeben said presidents should have immunity for acts expressly provided for by the Constitution, such as issuing pardons, vetoing legislation and making presidential appointments.

Justice Samuel Alito pressed special counsel lawyer Michael Dreeben about whether past acts by presidents could be prosecuted under current law, using the historical example of Franklin D. Roosevelt’s internment of Japanese Americans during World War II.

That internment is a particularly grim moment in history, both for the country and the Supreme Court at the time, which allowed it.

To Alito’s question, Dreeben said, yes, under current law Roosevelt could have been pursued by prosecutors, based partly on a 2017 ruling, Trump vs. Hawaii, over the Trump administration’s controversial travel ban.

Michael Dreeben, arguing for the government, brought up a question raised repeatedly during the debate over presidential immunity — if it exists, why did President Richard M. Nixon have to cover up his involvement in the Watergate burglary, and why was he pardoned by President Ford?

“It’s common ground that all former presidents have known that they could be indicted and convicted,” Dreeben argued. “And Watergate cemented that understanding. The Watergate smoking gun tape involved President Nixon and H.R. Haldeman talking about and then deciding to use the CIA to give a bogus story to the FBI to shut a criminal investigation.”

Usually it’s the lawyers arguing a case who dodge questions from the justices, but here Justice Samuel Alito ignored that point and instead pointed to other uncharged conduct by past presidents that was arguably criminal.

Trump’s lawyers have urged the court to look at a 1982 decision in a case involving Nixon. A divided court recognized “absolute presidential immunity” from private civil lawsuits for “acts within the ‘outer perimeter’ of his official responsibility.”

But that case did not address criminal liability. The special counsel’s office has pointed to a different decision involving Nixon from 1974. In that case, a unanimous court refused to “sustain an absolute, unqualified presidential privilege of immunity from judicial process,” and said Nixon had to comply with a subpoena for tapes of his White House conversations.

Chief Justice John G. Roberts Jr. blasted the D.C. Circuit court’s decision rejecting Donald Trump’s immunity claim, calling its central finding an example of circular reasoning and asking why the Supreme Court should not send the case back for reconsideration — which would doom chances of a trial before the election.

“The court of appeals below, whose decision we’re reviewing, said, ‘A former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has allegedly acted in defiance of the laws,’” Roberts said. “It is the clearest statement of the court’s holding, which is why it concerns me. As I read, it says simply: A former president can be prosecuted because he’s being prosecuted.”

“Now, 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 the some cases,” Roberts continued. “Why shouldn’t we either send it back to the Court of Appeals or issue an opinion making clear that that’s not the law?”

Justice Clarence Thomas, in the first question to special counsel attorney Michael Dreeben, pointed out that the U.S. government has been involved in coups and attempted coups abroad.

“In not so distant past, the president or certain presidents have engaged in various activity, coups or operations like Operation Mongoose when I was a teenager,” Thomas said, referencing a U.S. scheme to try to overthrow or assassinate Fidel Castro in the 1960s. “And yet there were no prosecutions yet. Why? If what you’re saying is right, it would seem that that would have been ripe for criminal prosecution of someone.”

Dreeben responded that in that case the president, having consulted with his attorney general, would have a “public authority defense” — meaning he relied on an understanding that government officials had authorized him to engage in otherwise illegal activity. The courts would be a safeguard in cases “when there is a serious constitutional question about applying a criminal statute to the president’s actions,” Dreeben said.