WASHINGTON, D.C. – A majority of the Supreme Court justices sympathized with attorney Donald Trump’s argument that the president enjoys a degree of immunity that lasts beyond his term.
The court heard oral arguments on whether Trump is immune from prosecution on charges of trying to overturn the results of the 2020 election, as special counsel Jack Smith has argued.
A federal trial court ruled in Smith’s favor that Trump is not immune from prosecution, but Smith’s prosecution in Washington, D.C., was put on hold until the Supreme Court considers it, likely in late June.
WASHINGTON, DC – JUNE 9: Special Counsel Jack Smith speaks about the recently unsealed indictment against former President Donald Trump at the Department of Justice on June 9, 2023 in Washington, DC. Former US President Donald Trump has been indicted on 37 felonies as a result of the special counsel’s investigation into classified documents. (Photo by Alex Wong/Getty Images)
As a result of the debate, it became clear that while a majority seemed to agree that presidents enjoy a certain range of immunity after their term, the ultimate issue was establishing standards.
If the court takes the case, it would reverse (i.e., reverse) the lower court’s decision that the former president does not have immunity and send the case back to the trial court. The court will conduct a thorough point-by-point analysis of each fact to determine whether immunity exists.
This process may take several months. And it seems likely that the Supreme Court will decide that this judgment itself can be appealed.
If the court accepts the ruling, it would ensure that the final outcome of the Trump trial in Washington, D.C., will be well after Election Day, Nov. 5, 2024, and that Smith and Smith’s boss, the It will be a blow to Trump’s opponent, President Joe Biden.
The justices on Thursday considered several scenarios in which the president could be charged with a crime.
Justice Neil Gorsuch pressed the administration’s Michael Dreeben about a hypothetical scenario in which the president led a “mostly peaceful” civil rights movement and could disrupt official proceedings. “So does that mean the president could be indicted for the actions I described after he leaves office?” he asked.
September 19, 2019, U.S. Supreme Court Justice Neil Gorsuch speaks at the LBJ Presidential Library
“Probably not,” Dreeben said, arguing that such actions would not fall within the “core activities” of a president’s official duties.
The justices also examined whether the institution of the presidency would be crippled if the president were subject to criminal prosecution for anything he did while in office by someone who could accuse him of wrongdoing. . This would effectively create “open season” for the president after he leaves office.
Justice Samuel Alito asked whether the president is in an “unusually precarious position” due to the nature and consequences of his job.
U.S. Supreme Court Associate Justice Samuel Alito poses for an official portrait in the East Conference Room of the Supreme Court Building on October 7, 2022 in Washington, DC. The Supreme Court began its new term in September with the formal addition of Associate Justice Ketanji Brown Jackson to the bench. (Alex Wong/Getty)
“The president has to make a lot of tough decisions about law enforcement. He has to make decisions on unresolved issues and he has to make decisions based on the information that is available,” he said. “Really, I understand you say, well, if he makes a mistake, he makes a mistake, he makes a mistake.” Is it subject to criminal law? ”
Dreeben pushed back, arguing that the president “is entitled to legal advice on everything he does.”
“Just because you made a mistake doesn’t mean you’ll be prosecuted criminally,” Dreeben argued.
Mr. Alito was skeptical of Mr. Dreven’s assertion that the president enjoys certain protections because federal grand juries do not indict without evidence. Citing the “old practice of indicting ham sandwiches,” Alito said, “We often come across cases where the U.S. attorney or other federal prosecutors really wanted to indict, but the grand jury refused to do so. “Will I do it?” he kept asking.
Mr. Dreeben acknowledged that, but then Mr. Alito drew laughs by joking, “Sometimes there are solar eclipses.”
While the arguments were positive for Trump, he did not say whether the court fully agreed with his position. There is no indication that a majority of the justices would agree that there is any immunity that would immediately end the current prosecution.
However, if there were some standard for determining immunity, the normal practice would be to reverse the lower court’s opinion and remand it back to the lower court for review. A remand would undoubtedly be a victory for Trump’s legal team.
Even better news for Trump is that even the three liberal justices seemed open to the existence of some degree of executive privilege that would survive his term. These judges may partially agree with the decision to conduct an immunity test, while dissenting partially.
The case is trump vs usaUnited States Supreme Court No. 23-939.
Bradley Jay is Breitbart News’ Capitol Hill correspondent. Follow him on X/Twitter. @BradleyAJay.
