Supreme Court hears arguments on Trump immunity case

Justice Brett Kavanaugh asked the special counsel’s lawyer whether a “creative prosecutor” could have charged previous presidents with the same charges Trump is facing in the federal election subversion case.

“The problem is the vague statute,” Kavanaugh said, citing the obstruction and conspiracy to defraud the United States charges that Trump is facing in this case.

The charges, Kavanaugh said, “can be used against a lot of presidential activities, historically, with a creative prosecutor who wants to go after a president.”

Chief Justice John Roberts asked a series of questions suggesting he is skeptical of an appeals court decision earlier this year that found Trump did not have immunity. He also undercut a central argument raised by special counsel Jack Smith throughout the case.

The Supreme Court ruled in 1982 that former presidents are immune from civil litigation. But Smith has argued that immunity shouldn’t be extended to criminal cases. In making that argument, Smith has called attention to what he has described as “safeguards,” including the need for a grand jury to bring charges and institutional norms within the Justice Department that would counsel against political prosecutions.

Roberts seemed concerned with that position. And that's a good sign for Trump.

Donald Trump’s claim that he is entitled to sweeping immunity from criminal charges is a novel theory, but it doesn’t come out of thin air. He partly rests his argument on a 1982 Supreme Court decision that found former presidents are entitled to immunity from civil litigation for their actions in office.

The case has come up several times Thursday morning, including a mention from Chief Justice John Roberts.

Nixon v. Fitzgerald involved a former Air Force employee, A. Ernest Fitzgerald, who was fired after he provided damaging testimony to Congress about production problems with the C-5A transport plane. Fitzgerald sued Nixon for damages.

In a 5-4 decision, the Supreme Court ruled that former presidents are entitled to immunity from such lawsuits in part because of their “unique office.”

That immunity, the court ruled, extended to the “outer perimeter” of a president’s authority. In other words, the protection was broad.

Trump argues the same protections should apply to a former president for criminal charges because the same concerns about the “functioning of government” should apply. But special counsel Jack Smith says criminal charges are different, in part because the Justice Department has a strong interest in enforcing criminal laws and also because of “safeguards against unfounded” prosecutions he says are built into the system.  

In the first question to special counsel Jack Smith’s attorney Michael Dreeben, Justice Clarence Thomas remained focused on the question of whether presidents are protected for conducting “official acts.”

“Are you saying there is no presidential immunity even for official acts?” Thomas asked.

Dreeben responded yes, but said that a president could assert immunity to “objections to criminal laws that interfere with an exclusive power possessed by the president, or that prevent the president from accomplishing his constitutionally assigned functions.”

“That is the constitutional doctrine that currently governs” immunity, he said.

Justice Ketanji Brown Jackson warned that absolute immunity could turn the Oval Office into "the seat of criminal activity in this country."

She said there would no incentive for presidents to follow the law while in the White House if they could never face criminal prosecution.

Her stinging remarks came after she pressed Donald Trump's attorney D. John Sauer on why presidents should not be required to follow the law when acting in their official capacity.

After the justices had spent several exchanges trying to decipher the line between a president's private and public acts, Jackson aimed to challenge the assumption that officials acts should be immune.

"You seem to be worried about the president being chilled. I think that we would have a really significant opposite problem if the president wasn’t chilled," she said. 

Justice Amy Coney Barrett pressed Trump’s attorney on why a president alone should be required to be impeached in the Senate before being subjected to criminal prosecution.

“You’ve argued that the impeachment clause suggests or requires impeachment to be a gateway to criminal prosecution, right?” Barrett asked.

“Yes,” Trump’s attorney, John Sauer, said of the impeachment clause.

“So why is the president different when the impeachment clause doesn’t say so?” Barrett asked.

Sauer cited an opinion from former Solicitor General Robert Bork, who – Sauer said – found the sequence of impeachment in the Senate was required before criminal prosecution only for a president.

It's worth noting that when Trump was impeached in early 2021, there were several Republicans who argued at the time that it was unnecessary because Trump could face criminal charges for his conduct.

Now Michael Dreeben, a veteran Supreme Court advocate who is representing special counsel Jack Smith, will take his position behind the lectern to address the court. 

Dreeben will argue that nothing in the nation’s history or law suggests that a former president should have immunity from prosecution. If his written briefs are any indication, Dreeben will attempt to drive home the broad point for the nine justices that no one – not even former presidents – are above the law. 

Like Trump’s attorney, Dreeben will speak for about two minutes uninterrupted and will then begin fielding questions from the justices.

Dreeben has argued more than 100 cases before the Supreme Court.

Dreeben became among the nation’s foremost authorities on criminal law during more than three decades with the solicitor general’s office, the section of the Justice Department that handles appellate cases on behalf of the federal government.

It’s not Dreeben’s first run representing a special counsel. In 2017, Dreeben he joined special counsel Robert Mueller’s investigation into Russian interference in the 2016 election.

In often-told story underscoring his fluency with the high court and its members, Dreeben argued his first case in 1989. The opposing lawyer in the case was John Roberts, who would go to become chief justice. 

No matter the close reading of the justices' questions, Trump attorney D. John Sauer has dialed back much of what Trump's team has tried to argue in court before — about the presidency, and even in Trump's own case.

Previously, Trump's team argued the entire indictment against him should be dismissed. But now Sauer is outlining pieces of the indictment that could be tested in court, while some could not.

So far, he has said:

This is a new aspect of Trump's arguments, where Sauer appears to be leaning into the justices wanting to set up a test for official acts versus non-official acts, potentially as a way to elongate pre-trial proceedings in this case.

In the bigger picture of the presidency, Sauer and Trump's team previously took the position in court that no federal criminal charges were possible about a president's time in office, unless Congress convicted the president in an impeachment proceeding.

Now, Sauer said to Justice Brett Kavanaugh that would only be the process that would allow a criminal case if the impeachment was about official acts.

Justice Brett Kavanaugh offered several friendly questions to Donald Trump’s attorney, potentially signaling support for at least some of the former president’s arguments.

Kavanaugh, for instance, seemed to push back on the special counsel’s position that there’s no reference in the Constitution about immunity for former presidents.

“It’s not explicit in the Constitution but also executive privilege is not explicit in the Constitution,” Kavanaugh said, referencing an established idea that presidents may withhold documents and information from the other branches.

Kavanaugh, appointed by Trump in 2018, is always a key vote to watch in major Supreme Court disputes and his questions signaled he may be more supportive of Trump’s arguments than some of his conservative colleagues, including Chief Justice John Roberts and Justice Amy Coney Barrett.