A majority of the Supreme Court justices expressed interest in offering Donald Trump and future presidents some form of immunity from criminal prosecution based on actions they took while in office – while rejecting broad absolute immunity.
During oral arguments on Thursday, the conservative male majority of the court toyed with the idea of awarding some protections to the former president in his case arguing he has presidential immunity from charges brought by Special Counsel Jack Smith regarding election interference.
Chief Justice John Roberts, Justice Samuel Alito and Justice Clarence Thomas raised concerns that without protections, presidents could face politically motivated prosecution for actions they took while in office.
“This case has huge implications for the presidency, for the future of the presidency, for the future of the country,” Justice Brett Kavanaugh said while weighing arguments.
A narrow decision that aligns with that conservative justice’s line of thinking would outline certain types of “official acts” that justices believe are protected from criminal prosecution
That could send Mr Trump’s case back down to a lower court for review on which of his alleged actions are considered “official” versus private and thus not subject to protections.
That would hand the former president a win by further delaying the federal election interference case from going to trial potentially before the November election.
Meanwhile, the liberal justices of the court, and Justice Amy Coney Barrett, seemed highly skeptical of awarding sweeping criminal protections to presidents and questioned the attorney arguing on behalf of Mr Smith how they could rule narrowly.
Justice Ketanji Brown Jackson questioned if the court should even issue a narrow ruling in this case and instead answer the broader question of whether a president has immunity from all criminal prosecution with a simple “yes” or “no.”
Mr Trump is accused of attempting to overturn the 2020 presidential election results by making false claims of election fraud, conspiring to install fake electors and pressuring ex-vice president Mike Pence.
Michael Dreeben, the prosecutor arguing on behalf of Mr Smith, suggested that some of the allegations laid out in the indictment, like speaking to private actors in the alleged fake electorate scheme, would constitute private actions.
John Sauer, the attorney representing Mr Trump, agreed that some of the alleged acts were private actions.
Mr Trump previously contended that all the allegations were “official” acts thus protected by immunity.
Justices struggled to differentiate what is considered “official” acts versus private. That debate could be handed to a lower court to decipher.
It is unclear when the Supreme Court could rule in the case. Mr Smith asked the court to expedite the decision to help move the federal election interference trial along – but already the justices have signaled they are in no rush.
Most Supreme Court decisions are handed down between late April and mid-June.
