WASHINGTON — The Supreme Court heard arguments Thursday over whether former President Donald Trump is immune from criminal prosecution as he faces charges that he conspired to overturn the results of the 2020 presidential election.
Trump has claimed presidential immunity in a case related to the Jan. 6, 2021, violence at the U.S. Capitol because he says the case stems from conduct that fell within his official responsibilities as president. Special counsel Jack Smith’s office, which brought the case against Trump, has argued that the president is not entitled to absolute immunity and should face criminal trial.
Oral arguments wrap, court adjourns
Update 12:50 p.m. EDT April 25: Michael Dreeben, an attorney for the special counsel’s office, has finished giving the state’s arguments before the Supreme Court on Thursday. Trump attorney John Sauer declined to give a rebuttal.
Court has been adjourned for the day. It was not immediately clear when a decision on the case might come down.
Gorsuch shares concerns about criminal law being used to target political opponents
Update 12:45 p.m. EDT April 25: Justice Neil Gorsuch indicated Thursday that he was wary of the court setting a precedent that empowers future politicians to target their opponents for political reasons.
“I’m not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives,” Gorsuch told Justice Department attorney Michael Dreeben.
He said he was worried about “the dangerousness of accusing your political opponent of having bad motives, and if that’s enough to overcome your core powers or any other limits.”
He added, “We’re writing a rule for the ages.”
Trump was acting as campaigner, not office holder, in fake electors plot, DOJ attorney says
Update 12:40 p.m. EDT April 25: Michael Dreeben, a Justice Department attorney representing the special counsel’s office, argued Thursday that Trump was acting as a presidential hopeful and not an office holder when he tried to get officials to overturn the results of the 2020 election.
Under questioning from Justice Neil Gorsuch, Dreeben appeared to point to a January 2021 call between Trump and Georgia Secretary of State Brad Raffensberger in which Trump tried to pressure officials to overturn the state’s election results.
“In one of the interactions between petitioner and a state official, petitioner is alleged to have said, ‘All I need you to do is to find me 11,000 votes and change,’” Dreeben said. “I think if you look at that content, it’s pretty clear that petitioner is acting in the capacity as office seeker, not as president.”
In a transcript of the call in January 2021, Trump said, “All I want to do is this. I just want to find 11,780 votes, which is one more than we have. ... Because we won the state,” according to WSB-TV.
President Joe Biden won Georgia in 2020 by a 11,779 margin.
Alito, special counsel’s attorney debate self-pardoning
Update 12:10 p.m. EDT April 25: Justice Samuel Alito pressed Justice Department attorney Michael Dreeben on whether a president could conceivable self-pardon themselves before leaving office, a question that Dreeben said the Justice Department had yet to take a position on.
“Don’t you think we need to know the answer to at least the Justice Department’s position on that issue in order to decide this case?” Alito asked. “Because if a president has the authority to pardon himself before leaving office and the D.C. circuit is right that there is no immunity from prosecution, won’t the predictable result be that presidents on the last couple of days of office are going to pardon themselves from anything that they might have conceivably be charged with committing?”
Dreeben said he doubted such a situation would take place.
“I mean, it sort of presupposes a regime that we have never had, except for President (Richard) Nixon and as alleged in the indictment here — presidents who are conscious of having engaged in wrongdoing and seeking to shield themselves,” he said.
“I think the political consequences of a president who asserted a right of self-pardon that has never been recognized, that seems to contradict a bedrock principle of our law that no person shall be the judge in their own case — those are adequate deterrents I think, so that this kind of dystopian regime is not going to evolve.”
Kavanaugh: A ‘creative prosecutor’ could use same charge ‘to go after a president’
Update 11:35 a.m. EDT April 25: Justice Brett Kavanaugh questioned Michael Dreeben, the attorney for the special counsel’s office, about the conspiracy charge leveled against Trump, calling it “vague” and saying that it “can be used against a lot of presidential activities historically with a creative prosecutor who wants to go after a president.”
Dreeben acknowledged the importance of looking at the risk, but said, “For the executive branch, our view is that there is a balanced protection that better serves the interest of the constitution that incorporates both accountability and protection for the president.”
President has no immunity ‘unless the court creates it today,’ special counsel’s attorney says
Update 11:25 a.m. EDT April 25: Under questioning by Chief Justice John Roberts, Michael Dreeben, an attorney for the special counsel’s office, emphasized that the Constitution does not lay out that a president is immune from criminal prosecution.
“I think I would take issue, Mr. Chief Justice, with the idea of taking away immunity. There is no immunity that is in the Constitution unless the court creates it today. There certainly is no textual immunity,” he said.
Later, he added, “What is important is that no public official has ever had kind of absolute criminal immunity that my friend speaks of, even with respect to the speech or debate clause.”
Special counsel attorney: Absolute immunity not necessary
Update 11:15 a.m. EDT April 25: An attorney for the special counsel’s office told the Supreme Court on Thursday that presidents do not need absolute immunity in order to carry out their duties.
“What petitioner is asking for is a broad, blanket immunity that would protect the president — a former president — from any criminal exposure absent impeachment and conviction, which has never happened in our history,” Michael Dreeben said under questioning from Justice Clarence Thomas. “We submit that is not necessary in order to assure that the president can perform all of the important tasks that the Constitution reposes in him.”
Attorney for special counsel’s office begins arguments
Update 11:10 a.m. EDT April 25: Michael Dreeben, an attorney for the Justice Department, gave the government’s opening statement on Thursday ahead of questioning from Supreme Court justices.
“This court has never recognized absolute criminal immunity for any public official,” he said.
“Petitioner, however, claims that a former president has permanent criminal immunity for his official acts unless he was first impeached and convicted. His novel theory would immunize former presidents for criminal liability for bribery, treason, sedition, murder and here, conspiring to use fraud to overturn the results of an election and perpetuate himself in power.”
Trump attorney says president must follow the law but remedy is at issue
Update 11:05 a.m. EDT April 25: Justice Ketanji Brown Jackson zeroed in on Trump attorney John Sauer’s argument for presidential immunity on Thursday, asking why the president would not be required to follow the law in his official acts.
“Why is it, as a matter of theory — and I’m hoping you can sort of zoom way out here — that the president would not be required to follow the law when he is performing his official acts?” she asked.
“There are lots of folks who have very high-powered jobs who make a lot of consequential decisions and they do so against the backdrop of potential criminal prosecution if they should break the law in that capacity.”
Sauer said he wasn’t arguing that the president could break the law at-will.
“The president absolutely does have responsibility, he absolutely is required to follow the law in all of his official acts, but the remedy for that is the question,” Sauer said. “Could he be subject to personal vulnerability, sent to prison for making a bad decision after he leaves office?”
Ex-presidents can face criminal prosecution if they were first impeached, Trump attorney says
Update 10:55 a.m. EDT April 25: Trump attorney John Sauer repeated a claim he made during arguments before the U.S. Court of Appeals for the D.C. Circuit, telling the Supreme Court that a former president could only face criminal charges for official conduct if they were first impeached by Congress.
Asked about whether a president could face charges for ordering a military coup, Sauer said it could be an official act, and, “If it’s an official act, there needs to be impeachment and conviction beforehand.”
“That sure sounds bad, doesn’t it?” Justice Elena Kagan said in response.
Trump attorney acknowledges private acts are included in indictment
Update 10:50 a.m. EDT April 25: Under questioning from Justice Amy Coney Barrett, Trump attorney John Sauer acknowledged that some alleged acts listed by Smith in court records related to Trump appeared to be private and would not be subject to immunity.
Barrett listed the acts as:
- Petitioner turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results.
- Petitioner conspired with another private attorney who caused the filing in court of a verification signed by petitioner that contained false allegations to support a challenge.
- Three private actors, two attorneys — including those mentioned above — and a political consultant helped to implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding and petitioner and a co-conspirator attorney directed that effort.
“What we would say is official is things like meeting with the Department of Justice to deliberate about who’s going to be the acting attorney general of the Untied States, communicating with the American public, communicating with Congress,” Sauer said.
Justices seek to determine difference between private, official acts
Update 10:30 a.m. EDT April 25: Justices sought to draw a line between a president’s private and official acts on Thursday as Trump attorney John Sauer acknowledged that private acts would not be subject to immunity.
“If you look at the indictment here, there’s a bunch of acts that we think are just clearly official,” he said.
Sotomayor asks about if a president could hypothetically face charges for assassination
Update 10:20 a.m. EDT April 25: Justice Sonia Sotomayor asked Trump attorney John Sauer about a hypothetical that came up in arguments in lower courts: whether a president could face charges for ordering the assassination of a rival.
Sotomayor asked if a president believed a rival to be corrupt and ordered their death, “Is that within his official act for which he can get immunity?”
Sauer said that “it would depend” but added, “We can see that could well be an official act.”
In response, Sotomayor said, “I am having a hard time thinking that creating false documents, that submitting false documents, that ordering the assassination of a rival, that accepting a bribe and countless other laws that could be broken for personal gain, that anyone would say that it would be reasonable for a president or any public official to do that.”
Trump attorney: ‘There can be no presidency as we know it’ without absolute immunity
Update 10:15 a.m. EDT April 25: Trump attorney John Sauer opened his argument before the Supreme Court by saying that absolute immunity is essential to the presidency.
“Without presidential immunity from criminal prosecution, there can be no presidency as we know it,” he said.
He added, “If a president can be charged, put on trial and imprisoned for his most controversial decisions as soon as he leaves office, that looming threat will distort the president’s decision making precisely when bold and fearless action is most needed. Every current president will face de facto blackmail and extortion by his political rivals while he is still in office.”
Supreme Court begins hearing on Trump’s immunity claim
Update 10:02 a.m. EDT April 25: The Supreme Court has gaveled in and begun to hear an opening statement from Trump’s attorney John Sauer.
Trump: ‘This has nothing to do with me’
Update 9:45 a.m. EDT April 25: Speaking with reporters outside a New York courthouse where he is facing unrelated criminal charges, Trump said the presidential immunity case is bigger than him.
“A president has to have immunity,” he said. “This has nothing to do with me. This has to do with a president in the future or 100 years from now. If you don’t have immunity, you’re not going to do anything — you’re going to become a ceremonial president. You’re just going to be doing nothing. You’re not going to take any of the risks, both good and bad.”
The former president has argued that without immunity, a president could hesitate to take action for fear of later facing trial.
Trump will not be in Washington on Thursday to hear arguments before the Supreme Court. He is in New York, where he is facing charges related to hush money payments made to silence allegations of marital infidelity ahead of the 2016 presidential election.
Original report: The Supreme Court is set to hear arguments on the case beginning at 10 a.m. Thursday.
Lower courts have sided with Smith, including the U.S. Court of Appeals for the D.C. Circuit, which found in February that “any executive immunity that may have protected (Trump) while he served as President no longer protects him against this prosecution.”
Trump is accused of carrying out three criminal conspiracies in an attempt to stay in power, including one aimed at delaying the Jan. 6, 2021, certification of electoral votes.
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