US Supreme Court weighs Trump claim of ‘absolute immunity’

Police hold back supporters of US president Donald Trump outside the US Capitol on January 6, 2021 – Copyright AFP Olivier DOULIERY

Chris Lefkow

The US Supreme Court heard arguments on Thursday on whether a former president is immune from criminal prosecution and appeared poised to issue a ruling that could further delay Donald Trump’s trial on charges of conspiring to overturn the 2020 election.

The historic case — the last in the court’s current term — has far-reaching implications for executive power and Trump’s multiple legal issues as he seeks the White House again.

“We’re writing a rule for the ages,” said Justice Neil Gorsuch, one of three conservative justices appointed to the nation’s highest court by the former Republican president.

At least four, and possibly five, of the conservative justices on the nine-member court appeared to take issue with a lower court ruling that a former president does not enjoy “absolute immunity” from criminal prosecution after leaving office.

Chief Justice John Roberts, a conservative, told Michael Dreeben, representing Special Counsel Jack Smith, who brought the election conspiracy charges against Trump, that he had “concerns” with the lower court ruling.

“As I read it, it says simply, ‘a former president can be prosecuted because he’s being prosecuted,’” Roberts said.

“Why shouldn’t we either send (the case) back to the Court of Appeals or issue an opinion making clear that that’s not the law?”

Sending the case back to the lower court for further review would almost certainly delay Trump’s election conspiracy trial until after the November vote, when he is expected to face off once again against Democrat Joe Biden.

Justice Samuel Alito, another conservative, asked why — without immunity — a president won’t just “pardon themselves from anything that they might have been conceivably charged with committing?”

– ‘There were not crimes’ –

Justice Clarence Thomas, another conservative, asked Dreeben why there had not been any previous prosecutions of a former president.

“The reason why there have not been prior criminal prosecutions is that there were not crimes,” Dreeben said.

He said granting “absolute immunity” to former presidents would “immunize” them from criminal liability for “bribery, treason, sedition, murder” and, in Trump’s case, “for conspiring to use fraud to overturn the results of an election and perpetuate himself in power.”

John Sauer, representing Trump, told the court that “without presidential immunity from criminal prosecution there can be no presidency as we know it.”

“Every current president will face de facto blackmail and extortion by his political rivals while he is still in office,” Sauer said.

The three liberals on the court — Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — and to some extent conservative justice Amy Coney Barrett pushed back against blanket presidential immunity.

“Wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon?” Jackson asked.

Kagan asked whether a president who “sells nuclear secrets to a foreign adversary” should be immune from prosecution.

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

Sauer responded that those hypotheticals “sound very bad” but “if it’s an official act, there needs to be impeachment and conviction” by Congress before a president could be prosecuted.

– Trial delays –

By taking the case, the Supreme Court has already significantly delayed the start of Trump’s election conspiracy trial.

Smith, the special counsel, filed the case against 77-year-old Trump in August and had pushed for a March trial start date.

But Trump’s lawyers filed a blizzard of motions seeking to postpone the case against him, including the “absolute immunity” claim.

Speaking to reporters in New York before entering a Manhattan courtroom for his separate hush-money criminal trial, Trump complained that the judge presiding over his case did not allow him to attend the Supreme Court hearing.

“I would have loved to have been there,” the Republican presidential candidate said, adding that without immunity “you’re going to become a ceremonial president.”

In addition to the New York case, Trump faces charges in Washington for conspiring to overturn the 2020 election.

He faces similar election charges in Georgia and has been indicted in Florida for allegedly mishandling classified documents.