By Will Dunham
WASHINGTON (Reuters) – When the U.S. Supreme Court ultimately rules Donald Trump‘s claim of presidential immunity from prosecution, one-third of those deciding the case will be judges he appointed to their lifetime posts.
Those three – Amy Coney Barrett, Brett Kavanaugh And Neil Gorsuch – asked questions from several angles as the country’s highest judicial body heard arguments Thursday in a case that poses a crucial test of the power of the presidency. They comprise half of the court’s 6-3 conservative majority.
“We’re writing a rule for the ages,” conservative Justice Neil Gorsuch said during arguments.
An important question, Gorsuch said, is “how to separate private conduct from official conduct that may or may not enjoy some immunity.”
Gorsuch also said that “the fear that their successors would prosecute them criminally for their actions while in office” could be an incentive for presidents “to try to pardon themselves.”
“I mean, we’ve never answered whether a president can do that,” Gorsuch said.
Trump appealed after lower courts rejected his claim for presidential immunity in a criminal case brought against him by special counsel Jack Smith on four charges related to efforts to overturn Trump’s 2020 election loss. Trump is the Republican candidate challenging Democratic President Joe Biden in the November 5 US elections, in a repeat of the elections four years ago.
Barrett questioned D. John Sauer, the lawyer who argued for Trump, about his claim that a president must be impeached by Congress and removed from office — something that has never happened in U.S. history — in order to face charges for an official act committed during his term of office. office.
“Okay,” Barrett said to Sauer. “So there are many other people who are subject to impeachment, including the nine who sit on this bench, and I don’t think anyone has ever suggested that impeachment should be the gateway to criminal prosecution for any of the many other officers who are subject are of impeachment. “So why is the president any different if the impeachment clause (of the Constitution) doesn’t say so?”
Sauer cited the reasoning of a Justice Department official from the 1970s.
Barrett succeeded Liberal Judge Elena Kagan‘s hypothetical question about prosecuting a president who orders a coup.
“You’re saying,” Barrett asked Sauer, “that he couldn’t be prosecuted for that, even after a conviction (in an) impeachment if there wasn’t a statute that expressly referred to the president and made it punishable to the president. ?”
In that scenario, a president could only be prosecuted, Sauer said, if the criminal law specifically states it applies to a president.
Sauer cited Article II of the Constitution, which defines presidential powers, as the “source” of immunity from prosecution, even though it is not specifically mentioned in the 18th century document that laid out the American form of government.
“So as to the source of immunity, isn’t it explicitly stated in the Constitution?” Kavanaugh asked Sauer.
Kavanaugh noted that executive privilege — the legal principle that allows certain presidential documents and communications to be shielded from lawmakers and courts — is not explicitly written into the Constitution, even though the Supreme Court has ruled that Article II allows it.
“And the same principle would presumably apply to executive immunity within that executive branch, as it has historically?” Kavanaugh asked.
“That is absolutely correct,” Sauer replied.
Kavanaugh asked Michael Dreeben, the attorney representing the special counsel, “Do you agree that some aspects of Article II presidential power are exclusive and that Congress cannot regulate and therefore cannot criminalize?”
“Absolutely,” Dreeben said.
As for other official actions the president may take that are not within the exclusive presidential power established in the Constitution, Kavanaugh asked whether “Congress should speak clearly to criminalize official acts of the president by specific reference.”
Dreeben said he felt the Supreme Court’s precedents on the issue did not “speak as broadly.”
Barrett’s appointment in 2020, after the death of liberal Justice Ruth Bader Ginsburg, pushed the court’s conservative majority to 6-3, from 5-4.
Gorsuch was appointed in 2017 to fill a vacancy left by the death of conservative Justice Antonin Scalia in 2016, after the Republican-led Senate rejected Democratic President Barack Obama’s nomination of Merrick Garland for the post to consider. Kavanaugh was appointed in 2018 after conservative Justice Anthony Kennedy announced his retirement.
(Reporting by Will Dunham; Editing by Daniel Wallis)
