Conservative Justices Appear Poised to Rule
Ex-Presidents Have Some Level of Immunity
Such a ruling would probably send the case back to a
lower court and could delay any trial until after the November election.
Adam Liptak
By Adam
Liptak
Reporting
from Washington
https://www.nytimes.com/2024/04/25/us/politics/trump-supreme-court-immunity-case.html
April 25,
2024
The Supreme
Court’s conservative majority appeared ready on Thursday to rule that former
presidents have some degree of immunity from criminal prosecution, a move that
could further delay the criminal case against former President Donald J. Trump
on charges that he plotted to subvert the 2020 election.
Such a
ruling would most likely send the case back to the trial court, ordering it to
draw distinctions between official and private conduct. It would amount to a
major statement on the scope of presidential power.
Though
there was seeming consensus among the justices that the case could eventually
go forward based on Mr. Trump’s private actions, the additional proceedings
could make it hard to conduct the trial before the 2024 election.
There were
only glancing references to the timing of the trial and no particular sense of
urgency among the more conservative justices at Thursday’s argument. Instead,
several of them criticized what they suggested was a political prosecution
brought under laws they said were ill suited to the case at hand.
If the
court effectively blocks a prompt trial, particularly after it acted quickly in
March to restore Mr. Trump to the ballot in Colorado, it will surely ignite
furious criticism from liberals and others who view the former president’s
actions as an assault on democracy and the rule of law.
Chief
Justice John G. Roberts Jr., who understands himself to be the custodian of the
court’s prestige and legitimacy, did not tip his hand very much, though he
seemed deeply skeptical of the decision from a unanimous three-judge panel of
an appeals court in Washington rejecting Mr. Trump’s immunity claim.
The appeals
court ruled, he said, quoting from its decision, that 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.”
Michael R.
Dreeben, a lawyer on the special counsel’s team, said the passage was
tautological, a term the chief justice seized on.
“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?” Chief Justice Roberts asked.
Such
further proceedings would take time, of course. If Mr. Trump prevails in the
election, he could order the Justice Department to drop the charges.
The
argument, which lasted more than two and a half hours, was largely focused on
whether Mr. Trump and other presidents could be prosecuted for their official
conduct and on how to tell the difference between those actions and private
ones.
D. John
Sauer, Mr. Trump’s lawyer, argued for an expansive understanding. In answer to
hypothetical questions, he said that presidential orders to murder political
rivals or stage a coup could well be subject to immunity.
But several
of the conservative justices seemed disinclined to consider those questions or
the details of the accusations against Mr. Trump. Instead, they said the court
should issue a ruling that applies to presidential power generally.
“We’re
writing a rule for the ages,” Justice Neil M. Gorsuch said.
Justice
Brett M. Kavanaugh also said the court should think about the larger message of
its decision. “This case has huge implications for the presidency, for the
future of the presidency, for the future of the country,” he said, adding:
“It's going to cycle back and be used against the current president or the next
president.”
Justice
Samuel A. Alito Jr., in an inversion of the conventional understanding of the
Jan. 6, 2021, attack on the Capitol, said that a ruling for Mr. Trump could
enhance democratic values.
“A stable,
democratic society requires that a candidate who loses an election, even a
close one, even a hotly contested one, leave office peacefully,” he said,
adding that the prospect of criminal prosecution would make that less likely.
“Will that
not lead us into a cycle that destabilizes the functioning of our country as a
democracy?” he asked. “And we can look around the world and find countries
where we have seen this process, where the loser gets thrown in jail.”
Justice
Gorsuch identified what he said was another negative consequence of allowing
prosecutions of former presidents. “It seems to me like one of the incentives
that might be created is for presidents to try to pardon themselves,” he said.
Justice
Sonia Sotomayor said she had a different understanding. “A stable democratic
society,” she said, “needs the good faith of its public officials.”
If there
was a member of the court’s six-justice conservative majority who seemed ready
to send at least a part of the case to trial in the near future, it was Justice
Amy Coney Barrett. She elicited concessions from Mr. Sauer that, for instance,
Mr. Trump’s use of “a private attorney who was willing to spread knowingly
false claims of election fraud to spearhead his challenges to new election
results” was private conduct.
Mr.
Dreeben, the government lawyer, said it was beyond question that parts of the
case concerned private conduct.
“When
working with private lawyers and a private public relations adviser to gin up
fraudulent slates of electors,” Mr. Dreeben said, “that is not any part of a
president’s job.”
Mr. Trump
is accused of a sprawling effort to overturn the outcome of the 2020 election,
including by seeking to recruit bogus slates of electors in a bid to alter vote
counts and pressuring an array of officials, like Vice President Mike Pence, to
subvert the results. Mr. Trump faces a count of conspiring to defraud the
government, another of conspiring to disenfranchise voters and two counts
related to corruptly obstructing a congressional proceeding.
The case
before the court involves just one of four sets of pending criminal charges
against Mr. Trump, including those at issue in a trial underway in state court
in Manhattan over accusations of hush-money payments meant to skew the 2016
election. Whatever happens after Thursday’s argument, the 2024 election will
take place in the shadow of the criminal justice system.
Justice
Alito proposed a broad principle to distinguish official and unofficial
conduct. “Suppose,” he said, “the rule were that a former president cannot be
prosecuted for official acts unless no plausible justification could be
imagined for what the president did, taking into account history and legal
precedent.”
Justice
Sotomayor objected, saying that “plausible” is little different from absolute.
“What is plausible about the president insisting and creating a fraudulent
slate of electoral candidates?” she asked.
The two
lawyers on Thursday faced many questions about which of Mr. Trump’s acts were
official and which private. They drew different lines, but neither took a
categorical position.
Justice
Kavanaugh said more work needed to be done.
“The
president is subject to prosecution for all personal acts, just like every
other American for personal acts,” he said. “The question is acts taken in an
official capacity.”
Lower
courts, he said, should sort out which is which.
The court
has heard two other cases this term concerning the Jan. 6 attack on the
Capitol.
In March,
the court unanimously rejected an attempt to bar Mr. Trump from the ballot
under Section 3 of the 14th Amendment, which made people who engage in
insurrection ineligible to hold office. The court, without discussing whether
Mr. Trump was covered by the provision, ruled that states may not use it to
exclude candidates for the presidency from the ballot.
Last week,
the court heard arguments in a challenge to the use of a federal obstruction
law to prosecute members of the mob that stormed the Capitol. Two of the four
charges against Mr. Trump are based on the obstruction law.
The justice
seemed skeptical that the law, which was a reaction to an accounting scandal,
applied to the rioters’ actions.
That
skepticism was evident on Thursday, too, with Justice Gorsuch recasting the
Jan. 6 assault to illustrate what he suggested was a misuse of the law.
“Let’s say
a president leads a mostly peaceful protest sit-in in front of Congress because
he objects to a piece of legislation that’s going through,” Justice Gorsuch
said. “And it, in fact, delays the proceedings in Congress.”
He added:
“So a president then could be prosecuted for the conduct I described after he
leaves office?” His tone suggested that the answer must be no.
Adam Liptak
covers the Supreme Court and writes Sidebar, a column on legal developments. A
graduate of Yale Law School, he practiced law for 14 years before joining The
Times in 2002. More about Adam Liptak
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