Supreme Court hears arguments on Trump immunity case

We’ve wrapped up our live coverage for the day. You can relive today’s Supreme Court proceedings as they happened by scrolling through the posts below.

The Supreme Court appeared ready to reject former President Donald Trump’s claims of sweeping immunity and the broad protections he has sought to shut down his federal election subversion case, but also reluctant to give special counsel Jack Smith carte blanche to pursue those charges.

After nearly three hours of oral arguments, several of the justices seemed willing to embrace a result that could jeopardize the ability to hold a trial before the November election.

Much of the hearing focused on whether there should be a distinction between official acts by Trump pursuant to his presidential duties and his private conduct.

Here are key takeaways from today’s oral arguments:

Continue reading more takeaways from the arguments.

While it appears the majority of Supreme Court justices are not willing to dismiss special counsel Jack Smith’s case outright, they may punt it back to lower courts, which would delay a trial and hand a strategic win to former President Donald Trump, CNN chief legal correspondent Paula Reid said.

“It’s pretty clear from what we heard that the majority of justices are not willing to just toss out the special counsel’s case,” Reid said.

But, she continued, Chief Justice John Roberts “clearly believes that the lower courts did not do enough to suss out exactly what is an official act versus a private act. So what they’re setting up here is likely the justices are going to come up with some sort of test, and then send it back down to the lower courts for more litigation.”

There is a possibility the case could be brought back to the justices a year from now, “after more litigation at the lower-court level, or if Trump is reelected, he can make this case go away. So, even if he’s not likely poised for a legal win at the high court, strategically, it sounded like this is going to be a win for him,” Reid said.

Remember: The issue of determining whether Trump’s actions were “private” or “official” is central to the former president’s claim that his efforts to overturn the 2020 election were part of his official duties as president — and therefore subject to immunity from prosecution.

With Chief Justice John Roberts announcing that the “case is submitted,” the court has finished hearing arguments in Trump’s immunity case. 

And that raises an important question that is largely unanswerable: Just how much time will the high court take to hand down its opinion? Usually, a major case argued in April wouldn’t be decided until the end of June.

But in the Trump immunity appeal, the court is already facing criticism for the weeks it took to decide whether to take the case. There is concern, particularly on the left, that the slow pace benefited Trump’s broader legal strategy to delay a trial until after his election. 

On the other hand, the justices operate on their own schedule, and the court was designed to resist external pressures on their work.

In a lengthy and crucial exchange between Justice Amy Coney Barrett and the Justice Department’s Michael Dreeben, the Supreme Court heard how Trump’s case could see a path to trial this year.

Barrett sketched out that the case could go to trial, and how, if the Supreme Court sends it back to the trial level, it could be heard by a jury without further appeals court involvement.

That would mean no further delays in Donald Trump’s case before a trial, once the Supreme Court rules.

She asked Dreeben if the trial-level could sort out what’s official or private acts of the presidency in this key, or is there “another option for the special counsel just to proceed on the private conduct?”

Dreeben told her the indictment is substantially about private conduct. He says the special counsel’s office would like to present a full picture of the allegations to the jury.

But in Trump’s legal world, leaving determinations about his allegations in the case could be disastrous before the election, according to polls as well as the jury pool makeup in Washington, DC.

Justice Ketanji Brown Jackson says in an “ordinary” case, a trial would move forward even if a criminal defendant had immunity for certain actions.

“There is sufficient allegations in the indictment, in the government’s view, that fall into the ‘private acts’ bucket that the case should be allowed to proceed,” Jackson said.

“Because in an ordinary case, it wouldn’t be stopped just because some of the acts are allegedly immunized. Even if people agree that some are immunized. If there are other acts that aren’t, the case would go forward.”

“That is right,” Michael Dreeben, the special counsel’s attorney, said.

Dreeben has repeatedly said many of Trump’s actions around the 2020 election were part of his presidential duties, and therefore aren’t protected by immunity – even if the high court said the former president had some level of protection.

The attorney for special counsel Jack Smith suggested that if the Supreme Court found that presidential immunity was implicit, it could also protect the president from state prosecution.

“If the president has some kind of immunity that’s implicit in Article Two (of the Constitution) then that immunity would protect him from state prosecution as well?” Justice Amy Coney Barrett asked.

“Of course,” attorney Michael Dreeben said.

Trump has been charged in a widespread conspiracy case in Fulton County, Georgia, for his actions to subvert the 2020 election results.

In New York on Thursday, a federal judge upheld the E. Jean Carroll defamation verdict and $83 million damages award, denying Donald Trump’s motion for a new trial.

Judge Lewis Kaplan, in a written opinion Thursday, said Trump’s legal arguments are without merit. The judge also found that the punitive damages the jury awarded Trump “passes constitutional muster.”

Trump is also separately appealing the verdict.

When discussing the issue of determining motivation in the case, Justice Neil Gorsuch highlighted the historical importance of the Supreme Court’s ruling on the matter of presidential immunity.

The justice added: “We’re writing a rule for the ages.”

Justice Brett Kavanaugh echoed that sentiment, noting that the case has future implications for the presidency and the country as a whole. 

The attorney for special counsel Jack Smith pushed back against claims that Donald Trump’s efforts to overturn the 2020 election amounted to “official acts” as president.

Michael Dreeben, representing Smith, said he disagreed with Trump’s attorney, D. John Sauer, on what he claimed were official acts alleged in the indictment against Trump — namely efforts to create a fake slate of electors to replace votes for Joe Biden in key states.

“Organizing fraudulent slates of electors, creating false documentation that says, ‘I’m an elector, I was appointed properly,’” Dreeben said, before listing more elements of the fake electors scheme. “That is not official conduct, that is campaign conduct,” he concluded.

“When working with private lawyers and a private public relations adviser to gin up fraudulent slates of electors — that is not any part of a president’s job,” Dreeben added. 

That will be the all-important question for the courts following this Supreme Court hearing.

With the justices appearing during oral arguments to congeal around the need to sketch out the lines of protection around the presidency for official acts, the high court seems poised to direct lower courts to work on the issues in the Trump federal criminal case around January 6, 2021, more.

But that could go in several directions. It could mean District Judge Tanya Chutkan makes decisions following this Supreme Court case opinion, and moves Trump quickly to trial, potentially even before the election. Another possibility is the Supreme Court’s decision could set up a process for a trial potentially months from now, after additional appeals court reviews — and, as Trump hopes, delays.

Not every legal question in a criminal case can be appealed before trial, and most questions could not delay a jury from hearing a case.

Presidential immunity is one of the rare questions the courts need to figure out before a trial. (The other relates to double jeopardy issues.)

In this case, if the justices send Trump back down to the trial court helmed by Chutkan, she may need to work out if the allegations in the indictment fall under official acts of the presidency or not.

Theoretically, Trump could then potentially appeal a decision. But for another round of appeals to be helpful to his delay strategy, Trump would need to convince appellate judges — perhaps at both the DC Circuit Court of Appeals and the Supreme Court — to put an emergency hold on his trial to prevent it from taking place. He may also need to convince the appeals courts they have the ability – called jurisdiction – to hear the legal questions again before a trial.

There are many ways this could go and every step could be a nail-biter for timing, from the Supreme Court decision in this case on.

In a striking moment, Justice Sonia Sotomayor pushed back against her colleague, conservative Justice Samuel Alito, saying the justice system will only fail completely if “we’ve destroyed our democracy on our own.”

“There is no failsafe system of government,” Sotomayor said, noting that the judicial system has “layers and layers and layers of protection for accused defendants in the hopes that the innocent will go free.”

But, the justice said, “we fail routinely.”

“In the vast majority of cases the innocent do go free,” she said. “Sometimes they don’t, and we have some post-conviction remedies for that. But we still fail. We’ve executed innocent people.”

Sotomayor added that Alito discussed all the ways the system could fail.

The Supreme Court appeared to be searching for a middle ground Thursday in response to former President Donald Trump’s claims of sweeping immunity, unwilling to grant him the broad protections he has sought but also unwilling to give special counsel Jack Smith carte blanche to pursue his election subversion charges.

Trump’s attorney, D. John Sauer, acknowledged some of his client’s actions following the 2020 election were private, and likely not entitled to immunity — an important concession that could help the special counsel.

But the justices also aggressively pressed Smith’s attorney on his own position, suggesting they would likely send the case back to a District Court for more review — and, potentially, far more delay.

Michael Dreeben, representing Smith, came under heavy fire from several of the court’s conservatives, including Chief Justice John Roberts and Justice Brett Kavanaugh, who questioned whether the laws Trump is accused of violating can be applied to a former president and whether an appeals court decision that found Trump was not entitled to immunity would have dramatic consequences for democracy.

Justice Samuel Alito pressed Dreeben on whether his position would “not lead us into a cycle that destabilizes the functioning of our country as a democracy.”

Alito, a conservative, said the nation could look to other countries where, after an election, “the loser gets thrown in jail.”

The court’s liberals, including Justice Sonia Sotomayor, appeared to align behind Smith’s position. “A stable democratic society needs the good faith of its public officials,” Sotomayor said.

As he considers immunity in a case centered on a president’s refusal to accept his electoral defeat, Justice Samuel Alito suggested that not giving presidents immunity will actually discourage peaceful transfers of power.

Alito pressed Michael Dreeben, the attorney for the special counsel, on the idea that an outgoing president who looses a hotly-contested election will be disincentivized from leaving office peacefully because he will fear prosecution by the administration of his successor, a “bitter political opponent.”

Would that not “lead us into a cycle that destabilizes the functioning of our country as a democracy?” Alito asked.

Justice Samuel Alito told the special counsel’s lawyer, Michael Dreeben, that he wanted to scrutinize “the lawyers of protection that you think exist” in the criminal justice system.

This exchange suggests that Alito is sympathetic to Donald Trump’s arguments that there aren’t enough safeguards in the justice system to stop him from being improperly prosecuted by the Justice Department.

One of those protections, Trump has claimed, would be immunity for official actions. Moments later, Alito pointed out how easy it is to secure an indictment from a grand jury.

Dreeben responded by saying that sometimes a grand jury doesn’t approve charges.

“Every once and a while there’s an eclipse too,” Alito retorted, to some laughter.

Earlier in the hearing, Dreeben said “a politically-driven prosecution would violate the Constitution,” and said built-in protections are sufficient to make sure the process has been fair to Trump. 

Alito also stressed that he was interested in these questions because the court, in this case, will be setting the standard for criminal liability for all future presidents.

In his broader jurisprudence over his nearly 20-year term, Alito has been seen as being less sympathetic to criminal defendants than some of his conservative colleagues.

The Supreme Court hearing so far is a mixed bag for both sides.

On the one hand, its seems clear that the court is unwilling to dismiss the case against Donald Trump outright, as he ostensibly is asking the justices to do, based on his sweeping theory of presidential immunity.

On the other hand, several justices appear skeptical of how the special counsel is framing the case.

It’s possible they will render a ruling that could require several more months of lower court proceedings before the case against Trump can go to trial. That could put the possibility of a pre-election trial fully out of reach, raising the possibility that Trump will be reelected and make the case against him go away.

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.

“You know how easy it is in many cases for a prosecutor to get a grand jury to bring an indictment and reliance on the good faith of the prosecutor may not be enough in the some cases,” he said.

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.

Justice Neil Gorsuch asked Donald Trump’s attorney about what fears different presidents might have if they believed they could be criminally charged by their successors once leaving office.

“It seems to me like one of the incentives that might be created is for presidents to try to pardon themselves,” Gorsuch said, adding that the high court has “never answered whether the president can do that” because “happily it’s never been presented to us.”

Justice Elena Kagan pushed Trump’s attorney on just how far presidential immunity could go, raising the hypothetical scenario of a military coup by an ex-president.

“How about if a president orders the military to stage a coup?” Kagan asked.

“If it’s an official act, there needs to be impeachment and conviction beforehand” through Congress, Trump’s attorney, D. John Sauer, said.

Kagan asked if Sauer believed such a coup would be an “official act.”

“On the way you described that hypothetical, it could well be,” Sauer said.

“That sure sounds bad, doesn’t it?” Kagan said.

This story has been updated to reflect it was Justice Elena Kagan’s line of questioning.

The high court is by no means bound by how other federal courts have interpreted the legitimacy of Trump’s post-election conduct.

But if the justices decide that Trump’s attempts to reverse his loss were in the realm of official presidential conduct, they’ll be rebuffing the assessments of a broad swath of lower court judges – appointed by Democratic and Republican presidents alike – who have concluded otherwise.

The justices will be hearing arguments on Trump’s claims that the protections of the presidency immunize his alleged election subversion conduct. The case will decide whether the federal criminal case brought by special counsel Jack Smith against Trump for his 2020 election schemes can go forward.

At the heart of the issue is whether Trump was acting within the “outer perimeters” of his presidential duties in a campaign that allegedly included urging state officials to reverse his election loss, pressuring his vice president to disrupt Congress’ certification of the electoral results and falsifying presidential electors to rival those from the states that Joe Biden won.

Courts in Washington, DC, Georgia and California have considered from a variety of angles the potential legal consequences that Trump and some allies could face for their 2020 gambits. They’ve approached it in disputes over the congressional probe into the Trump actions preceding and during the attack on Capitol, and in the context of civil January 6, 2021-related litigation against Trump and his allies.

Keep reading here about what other judges are saying.

Justice Elena Kagan cited the framers of the US Constitution, saying they didn’t want a “monarch” to rule the country.

“They were reacting against a monarch who claimed to be above the law,” Kagan said.

The justices have been forcefully questioning Trump’s attorney over what acts – if any – should be liable for criminal prosecution.

The Supreme Court in early questioning seems skeptical of former President Donald Trump’s claim that he is entitled sweeping or absolute immunity from criminal prosecution.

Virtually all of the questioning, including from several of the court’s conservatives, suggested that the court was leaning toward drawing a distinction between official acts, which might be entitled to immunity, and private acts, which likely would not.

Tellingly, Trump’s attorney appeared to concede that several of the claims involved in Trump’s case were private acts. Special counsel Jack Smith has argued that if that’s the case, then it should return to a federal district court in Washington, DC, for a speedy trial.

Justice Amy Coney Barrett — a Donald Trump appointee — got Trump attorney D. John Sauer to agree with characterizations by special counsel Jack Smith that several of the Trump acts alleged in the indictment are “private” acts.

“So you concede the private acts don’t get immunity?” Barrett said.
“We do,” Sauer said. 

Barrett went through four particular acts by Trump — including his alleged involvement in the fake electors scheme — and Sauer did not dispute Smith’s arguments, in briefs filed to the court, that they were not official conduct.

Getting Sauer to make the concession that there are private acts alleged in the indictment suggests the trial could go forward at least in part, CNN’s Steve Vladeck, a professor at the University of Texas School of Law, says.

Trump lawyer D. John Sauer said Thursday that his client “absolutely” had the right to put forward Republican electors in states that he lost in 2020, commonly called “fake electors.”

He made these comments under questioning from liberal Justice Sonia Sotomayor, who asked if “it’s plausible” that a president might have the right to help create a “fraudulent slate” of electors.

In response, Sauer said there was historical precedent for presidents to get involved with these matters, pointing to the contested election of 1876. He used the term “so-called fraudulent electors.”

Federal and state prosecutors clearly disagree with this view. The Justice Department charged Trump with federal crimes in connection with the fake electors scheme. And state prosecutors in Michigan, Georgia, Nevada and Arizona have also charged many of the illegitimate GOP electors and some Trump campaign officials who were involved in the plot.

Arizona prosecutors announced their sweeping indictment on Wednesday night.

Justice Clarence Thomas questioned whether Donald Trump’s team believed there was a difference between actions taken as president and actions taken as a candidate for reelection.

Lower courts have said that an act as a candidate would likely not be protected under presidential immunity.

In bringing up the hypothetical of whether a president would be protected by immunity if he used the military to assassinate an individual, Justice Samuel Alito noted that he did not want to slander Seal Team Six in the theoretical situation.

The hypothetical assassination scenario has been brought up throughout this case, including in the DC Circuit Court of Appeals. Trump’s attorney, John Sauer, has continued to say a president could be protected from prosecution for such an act.

US Circuit Judge Florence Pan cited it earlier this year testing the boundaries of Trump’s argument.

Sauer at the time acknowledged that under the sweeping immunity claims his client has put forth, prosecution for that crime likely would not happen.

But the exchange prompted a series of amici briefs at the Supreme Court debating the relationship between the civilian leader of the US military and the service members who are usually bound to follow orders from their commander-in-chief. Some of those briefs note that members of the military are barred from following an illegal order.

Other told the high court that the reality is more complicated.

“Receiving an unlawful order thus places service members – already pushed to extremes by virtue of their vocation – in a nearly impossible position,” according to one brief filed by several retired four-star admirals and generals.

“On the one hand, disobeying a lawful order is punishable by court-martial and contrary to everything service members have been trained to do,” the generals and admirals argued. “On the other hand, the duty to disobey imposes on them the obligation not to rationalize obedience of an unlawful order simply out of deference to one’s superiors.”

Justice Neil Gorsuch pointed to an appeals court decision about Trump’s civil immunity, asking how a court should determine which acts a former president can be held responsible for in court.

In the decision Gorsuch is asking about, called Blassingame, the DC Circuit Court of Appeals decided campaign activity is not part of the presidency in a civil lawsuit. This is a case where several people are suing Trump for fueling the harm they suffered on January 6, 2021.

Trump’s team didn’t take that decision to the Supreme Court for more challenges, and the January 6 lawsuits are back before the trial court for further proceedings, to figure out if Trump’s behavior around January 6 would be campaign activity or presidential work.

The appeals court in DC, Gorsuch said, created a test that “expressed some views about how to segregate private conduct, for which no man is above the law from official acts.”

Trump’s attorney, D. John Sauer, said that that court created a “very persuasive test” that “would be a great source for this court to rely on.”

Justice Samuel Alito noted that former President Donald Trump is demanding “very robust” protections from prosecution, and asked Trump’s lawyer if that sweeping immunity claim is “necessary.”

This suggests that Alito, who is one of the most conservative justices on the high court, might be considering supporting a narrower immunity protection than what Trump is seeking.

The justices are pushing on the idea there could be a test they set up for determining if a president’s actions are part of his official conduct.

Trump’s team in briefs has argued that if the Supreme Court goes this route, they should send the case back to the lower courts for more rounds of legal determination — which could result in extensive further delays to a trial.

The Justice Department doesn’t want this, which could result in more rounds of appeals before a trial.

This is what has happened in the civil lawsuits against Trump for January 6, 2021, however.

Justice Ketanji Brown Jackson turned Donald Trump’s historical arguments on immunity on their head, pressing his attorney on evidence that, historically, presidents assumed they could be subject to criminal prosecution.

She cited the assertions of the Justice Department’s Office of Legal Counsel, as well as comments made by the Founding Fathers.

If a president can’t be prosecuted, why did Richard Nixon need to be pardoned after Watergate to prevent him from being prosecuted, Jackson asked.

Justice Sonia Sotomayor pushed Trump’s attorney on whether the former president should be protected from prosecution for acts of “personal gain” as opposed to official acts, raising the hypothetical of an ordered assassination of a political rival.

“If the president decides that his rival is a corrupt person and he orders the military … to assassinate him, is that within his official acts for which he can get immunity?” Sotomayor asked.

“That could well be an official act,” Trump’s attorney, D. John Sauer, said.

But, Sotomayor retorted, he’s doing it for “personal gain,” adding, “Isn’t that the nature of the allegations here?”

“A president is entitled for total personal gain to use the trappings of his office — that’s what you’re trying to get us to hold — without facing criminal liability,” Sotomayor said. Sauer argued the law does not “turn on the allegedly improper motivation or purpose” of the act.

In a potentially key early exchange, Chief Justice John Roberts questioned the scope of Trump’s argument when it comes to official acts: Would a president really have immunity if they appointed an ambassador, Roberts asked, in exchange for bribe?

A bribe, Roberts said, wouldn’t appear to be an official act. The question at least signals that Roberts may have concerns with Trump’s argument that his conduct after the 2020 election was an official act.

Trump’s attorney, D. John Sauer, is arguing that any “official act” that an executive does as president would be protected by presidential immunity.

“Let say the official act is appointing ambassadors, and the [resident appoints that particular individual to a country but it’s in exchange for a bribe,” Roberts said. “Somebody says ‘I’ll give you a million dollars if I made the ambassador to whatever.’ How do you analyze that?”

WHAT TO KNOW: In early questioning, several conservative justices are skeptically questioning the scope of Trump’s arguments.

Justice Clarence Thomas asked Trump’s lawyer how the justices should weigh what is an “official act” of a president.

The debate over what is – and what isn’t – an “official act” is important because Trump is arguing that everything he’s accused of doing in the federal election subversion indictment was actually an official action in furtherance of his presidential duties.

If Trump’s right, that could give him protection from prosecution.

The Justice Department, through special counsel Jack Smith, strongly disagrees with that interpretation. They say Trump’s actions were done as a candidate to benefit his campaign – not as a president acting for the country – and therefore, they’re fair game for prosecution. 

Trump attorney John Sauer started off the arguments with opening remarks that said that if the Supreme Court did not endorse the former president’s absolute immunity claim, “there can be no presidency as we know it.”

“The implications of the court’s decision here extend far beyond the facts of this case,” he said.

Sauer cited examples of conduct by former presidents George W. Bush and Barack Obama, as well as President Joe Biden, that could otherwise be prosecuted.

Prosecuting a president for his official acts is “incompatible with our constitutional structure,” Sauer said.

Arguments in what has the potential to be the most significant question before the high court this year – whether former President Donald Trump is immune from criminal prosecution – are now underway. 

Leading off is D. John Sauer, representing Trump. A former Missouri solicitor general, Sauer will broadly argue that without some form of immunity future presidents would be inundated with prosecutions that would hamstring their ability to serve in the White House. 

The justices will start quizzing Sauer with rapid-fire questions after roughly two minutes.

Former President Donald Trump has repeatedly cited George Washington’s farewell address in the immunity case to argue that even the Founding Fathers understood allowing presidents to be prosecuted would be bad for the nation.

But special counsel Jack Smith has drawn on another, less revered figure from American history: Richard Nixon.

Why, Smith has argued repeatedly, did Nixon need President Gerald Ford’s pardon in 1974 if he couldn’t have been prosecuted in the first place?

In part because the Constitution is silent about whether former presidents may claim immunity from criminal prosecution, attorneys for both Trump and Smith have relied heavily on history to gain an upper hand. The strategy is savvy for a Supreme Court where conservatives have placed a heavy emphasis on historical practices when it comes to disputes over abortion and guns.

Trump being Trump, some of his historic references have been more barbed. He has, for instance, argued that President Barack Obama could have been prosecuted for drone strikes that killed American citizens (but wasn’t) and that President Franklin Delano Roosevelt could have been charged with unlawfully detaining Japanese Americans during World War II (but wasn’t). At bottom, Trump’s argument is that if he doesn’t receive immunity, politically motivated prosecutions for such actions will become commonplace.

Smith has argued that none of those historic actions involved a sitting president attempting to hold onto power after losing an election.  

Former President Donald Trump said that the federal immunity case has nothing to do with him, but is important for future presidents, in his remarks outside of his criminal hush money trial courtroom in Manhattan on Thursday.

“I think that the Supreme Court has a very important argument before it today. I would’ve loved to have been there, but this judge would not let that happen. I should be there,” Trump said. He added that he thinks that the president has to have immunity.

“If you don’t have immunity you’re not going to do anything. You’re going to become a ceremonial president,” Trump said. “You’re not going to be taking any of the risks, both good and bad.”

Trump claims that if the Supreme Court doesn’t grant him immunity then other presidents will be prosecuted once they leave office.

Ahead of today’s Supreme Court arguments, a federal appeals court ruled on February 6 that Donald Trump is not immune from prosecution for alleged crimes he committed during his presidency to reverse the 2020 election results.

The ruling was a major blow to Trump’s key defense thus far in the federal election subversion case brought against him by special counsel Jack Smith.

The former president had argued that the conduct Smith charged him over was part of his official duties as president and therefore shield him from criminal liability.

“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution,” the court wrote.

The ruling from the three-judge panel was unanimous. The three-judge panel who issued the ruling included two judges, J. Michelle Childs and Florence Pan, who were appointed by Joe Biden and one, Karen LeCraft Henderson, who was appointed by George H.W. Bush.

Read more about the February ruling.

About 56% of US adults in a March Marquette Law School poll believe former President Donald Trump should not have immunity from criminal prosecution for actions taken during his presidency.

That’s compared to the 28% of those polled who do believe Trump should be granted immunity and 17% who were not sure.

Pollsters asked half of respondents whether “former presidents” should receive immunity and the other half whether “former President Donald Trump,” specifically, should be shielded from prosecution.

The difference, the poll’s director said, appeared to be due largely to Republicans who generally oppose immunity for “former presidents” but who were more willing to support such protections for Trump, the presumptive GOP presidential nominee.

The poll found that 55% of Republicans polled thought Trump should be granted immunity, while 32% thought the same with the “former presidents” wording. Across the aisle, 4% of Democrats thought Trump should be granted immunity and 9% thought the same of “former presidents.”

“The striking finding is that Republicans reverse themselves when asked about Trump rather than ‘former presidents,’” said Charles Franklin, a professor of law and public policy and the director of the Marquette Law School poll.

Other polls have also found little public support for giving Trump immunity. Across three surveys conducted earlier this year – from ABC/Ipsos, NPR/PBS NewsHour/Marist and CBS/YouGov, only about one-third of Americans supported giving Trump immunity, with roughly two-thirds saying he shouldn’t be immune from prosecution.

Read more about the Marquette poll.

The Supreme Court will likely produce thousands of words when it decides this year whether former President Donald Trump may claim immunity from special counsel Jack Smith’s election subversion charges.

But for now, court watchers are stuck parsing the first 29.

That’s how many words the court used to lay out the “question presented” in Trump’s immunity appeal — the question that the nine justices will focus on when they meet this week to hear arguments and then sit down to craft an opinion that will either greenlight Smith’s prosecution of the former president or shut it down.

More than two weeks after Trump requested that the Supreme Court block a lower court ruling against him, the justices announced on February 28 they would decide the dispute.

In a terse, one-page order, the court expedited review and said it would hear arguments during the week of April 22. It also defined the question it intended to answer.

“Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office,” the court wrote.

Every time the Supreme Court grants an appeal, it settles on a specific legal question to resolve. Often, the court will adopt the question crafted by the party appealing. Other times, it will limit the question or recast it in a different way.

Read the full story.

Amid calls for Justice Clarence Thomas to recuse himself from the high-stakes case over whether Donald Trump has presidential immunity from criminal prosecution, the conservative jurist has made clear he doesn’t plan to step aside – or even respond publicly to the appeals from Democrats and others.

The justice’s critics are all citing past efforts by his wife, Virginia “Ginni” Thomas, to reverse the 2020 presidential election in Trump’s favor and her attendance at the rally Trump held on January 6, 2021, shortly before the US Capitol attack.

Thus far, Thomas has given no sign that he intends to recuse himself from Trump v. US – or explain his reasoning for remaining on the case, which the nine justices will hear arguments in on Thursday.

Judicial ethics experts say that Thomas has an obligation to explain his decision not to recuse himself, given the precedent set by other justices in the past.

“Reasonable people are questioning Justice Thomas’ partiality and I think I think he definitely owes the American people an explanation of why he is unbiased in these cases,” said Gabe Roth, executive director of Fix the Court, which has pushed for more transparency from the federal judiciary.

“I think that’s a fairly low bar,” Roth added. “You think you’re unbiased, OK, tell us why.”

Read more about Thomas’ decision to stay on the case.

Special counsel Jack Smith urged the Supreme Court earlier this month to reject Donald Trump’s claims of sweeping immunity and to deny the former president any opportunity to delay a trial on charges that he attempted to subvert the results of the 2020 election.

Smith told the court that Trump’s position has no grounding in the Constitution, the nation’s history, or Americans’ understanding that presidents are not above the law.

Even if the Supreme Court finds that former presidents are entitled to some form of immunity, Smith asserted, at least some of Trump’s actions were private conduct—far removed from “official acts”—and could be prosecuted.

“The Framers never endorsed criminal immunity for a former President, and all Presidents from the Founding to the modern era have known that after leaving office they faced potential criminal liability for official acts,” Smith told the court.

Smith’s filing landed in what has emerged as the most closely watched case of the Supreme Court’s current term. A broad ruling for Trump could undermine not only the special counsel’s election subversion case, but a litany of other criminal charges pending against him.

Read more about Smith’s court filing.

One person missing from the Supreme Court today is Donald Trump, who is currently sitting on trial in New York City on state criminal charges related to falsifying business records.

Trump wanted to attend the oral arguments in Washington, DC, his lawyer told New York Judge Juan Merchan last week, but as a criminal defendant he would need special permission or for the trial to be in recess.

Merchan declined the request.

“Your client is a criminal defendant,” the judge said. “He’s required to be here.”

In addition to battling over whether former presidents are entitled to sweeping immunity from criminal charges, former President Donald Trump and special counsel Jack Smith have taken fundamentally different views of what is one of the Supreme Court’s most important decisions.

In Marbury v. Madison, Chief Justice John Marshall established the Supreme Court’s power to strike down laws enacted by Congress. According to Trump, the decision also stands for the proposition that courts are barred from reviewing official acts of a president.

“This court held that a president’s official acts ‘can never be examinable by the courts,’” Trump’s attorneys argued in briefs to the Supreme Court, “a doctrine that this court has reaffirmed over two centuries.”

Not so, countered Smith.

“Marbury did not hold that a president’s official acts can never be examined in a court, and a host of cases from the founding to the present refute that claim,” the special counsel argued.

Instead, Smith said, that and subsequent cases established that courts would not review the acts of a sitting president. “That principle,” he argued, “has no application to criminal prosecution of a former president.”

The Supreme Court will hear arguments Thursday about whether Donald Trump can claim immunity from special counsel Jack Smith’s election subversion charges. The case could dramatically alter the course of the former president’s legal troubles – and this year’s election. These are the key players today:

The justices:

 Arguing on Trump’s behalf:

Arguing on behalf of the special counsel:

Order of proceedings: Sauer, representing Trump, will be up first. He is scheduled for 25 minutes. After Sauer delivers a brief opening statement, the justices will ask questions in a free-form manner. After about 20 minutes, Chief Justice Roberts will invite each justice to ask a few additional questions in order of seniority. Then Dreeben, who is representing the special counsel, will be up. He is scheduled for 30 minutes and will face the same format. Finally, Sauer will return to the lectern for a roughly 5-minute rebuttal. 

Former President Donald Trump is represented by D. John Sauer, a former federal prosecutor and solicitor general of Missouri who clerked for the late Justice Antonin Scalia.

A Rhodes Scholar, Sauer joined Trump’s legal team last year and argued the same case at the US Court of Appeals for the DC Circuit.

Sauer was one of the attorneys involved with an effort in late 2020 to ask the Supreme Court to void millions of votes in four battleground states that President Joe Biden won. The high court ultimately rejected that effort.

Though he has argued before several federal appeals courts, Sauer is relative newcomer to the Supreme Court. He represented Missouri in an important death penalty case at the high court in 2018 – and won.