As former President Donald Trump sat in Manhattan criminal court Thursday for the seventh day of his hush money trial, the U.S. Supreme Court heard oral arguments on another criminal case against him – and whether he is immune from criminal prosecution because of the actions he took as president.
The Supreme Court’s decision will determine whether three of his other criminal trials can proceed in Washington, DC, Florida and Georgia.
Conservative justice Neil Gorsuch emphasized the historical significance of the case and what a ruling on presidential immunity means for the future. “We’re writing a rule for the ages,” Gorsuch said during the hearing.
Although the justices appeared poised to rule that Trump does not have blanket immunity, there are ways the Supreme Court could rule that could hand Trump a strategic victory.
What Trump claims
Trump is asking the Supreme Court to decide whether he can claim presidential immunity from a special prosecutor Jac Smith‘s federal election subversion case for his alleged role in trying to overturn the 2020 election. Smith’s indictment against Trump in August 2023 includes both official and private actions by the former president.
Trump has pleaded not guilty to the four charges against him and wants the charges dropped. He argues that he is immune from criminal prosecution because the actions he took were within the scope of his official acts as president.
What Special Prosecutor Jack Smith claims
Meanwhile, Smith wants the Supreme Court to reject Trump’s claims of sweeping presidential immunity. Smith argues that Trump’s actions are fair game for criminal prosecution because they were done for personal gain as a candidate on behalf of his presidential campaign, rather than a president taking action for the country. “The effective functioning of the presidency does not require that a former president be immune from liability for these alleged violations of federal criminal law,” Smith wrote in a letter to the Supreme Court.
Smith is also urging the court to prevent the former president from delaying a trial until after the November election.
Trump’s attorney D. John Sauer argued the former president’s case before the Supreme Court, while attorney Michael Dreeben argued Smith’s case.
Here are some of the key takeaways from Thursday’s historic hearing before the Supreme Court.
The justices seemed to agree that Trump does not have blanket immunity
Based on the Supreme Court’s questions, including from the Court’s conservatives, the justices suggested that they want to make a clear distinction between official acts, which could entitle Trump to immunity, and private acts, which are unlikely to do so. would do.
Justice Clarence Thomas initiated the line of questioning to Trump’s lawyer about how the justices would determine what constitutes an “official act,” while Chief Justice John Roberts asked a hypothetical question about what happens when a president appoints an ambassador in exchange for a bribe.
“How do you analyze that?” Roberts asked. Sauer responded that this would be up to the court’s discretion.
Judge Sonia Sotomayor asked another hypothetical question: If the president orders the military to kill a rival they consider corrupt, “is that within his official acts for which he can receive immunity?”
Sauer responded that “it would depend on the hypothetical, but we can see that this could very well be an official act.”
Sotomayor emphasized that the president would hypothetically do it for “personal gain.” She pressed Sauer, saying, “Isn’t that the nature of the allegations here? … A president has the right to use the trappings of his office for total personal gain — that’s what you’re trying to get us to do — without incurring criminal liability.” Trump’s lawyer responded that the law “does not address the allegedly improper motivation or purpose” of the act.
In a remarkable series of questions from Judge Amy Coney Barrett, she asked Trump’s lawyer to agree or disagree with a characterization of private actions. He admitted that several of the claims in Smith’s case were private acts.
“So you admit that private acts do not enjoy immunity?” Barrett asked. “We do,” Sauer said.
Sauer’s acknowledgment of this means that Trump’s trial in Smith’s case can partially proceed.
Smith suggested a backup for the case, writing in a legal brief: “Even if the court were inclined to recognize some immunity for the official acts of a former president, it should be remanded for trial because the indictment concerns engages in substantial private conduct in service of petitioner’s private purpose. .”
If judges push the case back to lower courts, it could be a strategic victory for Trump
During the hearing, Roberts denounced a lower court’s ruling that rejected Trump’s immunity claim.
“The appellate court below, whose decision we are reviewing, said: ‘A former president can be prosecuted for his official actions because the fact of the prosecution means that the former president allegedly acted contrary to the laws’ ” says Roberts. said.
“It is the clearest ruling of the court and that is why it concerns me. As I read it, it simply says: a former president can be prosecuted because he is being prosecuted.”
Roberts suggested sending the Trump case back to the appeals court to determine what exactly constitutes an official versus a private act. If the Supreme Court sends the case back to the lower court, it would likely delay Trump’s trial until after the November election, which would be a strategic victory for Trump. If elected to a second term, a Trump-appointed attorney general could drop the federal charges.
What’s next
The Supreme Court could rule anytime between Thursday’s hearing and the end of the term in late June or early July.
Trump’s trial in the Smith case, originally scheduled to begin on March 4, has been suspended. The trial chairman said pre-trial issues could take up to three months, and the trial itself could take up to 12 weeks, leaving little room for an outcome before the November election.
