WASHINGTON — There was talk of drone strikes and presidential bribes, of a possible ruling “for all time” and also of the Founding Fathers. The presidential race went unmentioned, but was not far from the mind.
The Supreme Court heard more than 2.5 hours of arguments on the key question of whether former President Donald Trump is immune from prosecution in a case accusing him of plotting to overturn the 2020 presidential election.
Although the justices were likely to reject Trump’s immunity claim, it seemed possible that he could still benefit from a lengthy trial delay, possibly after the November election.
A look at some of the many notable moments:
Justice Neil Gorsuch expressed concern that prosecutors, or political opponents, might have bad motives in pursuing political rivals. Michael Dreeben, attorney for special counsel Jack Smith’s team, responded that this fear did not apply in this case.
“I appreciate that,” Gorsuch said. “But you also appreciate that we’re writing a rule for the ages.”
Other justices were no less lofty in describing the historic stakes of the case and the potential for a precedent that will stand the test of time well beyond Trump. To conservative judges, that approach seemed like a way to set aside the facts of the Trump indictment and the brazen abuse of power it alleges and focus instead on the implications of a court ruling on cases yet to be charged — but In theory that could be the case.
“This case, in my opinion, has enormous implications for the presidency, for the future of the presidency and for the future of the country,” said Judge Brett Kavanaugh, a Trump appointee who served in George W. Bush’s White House and generally seen as a staunch protector of presidential power.
Overall, the court seemed more interested in the future than the present as it pondered the upcoming ruling. There were also numerous historical callbacks, with frequent invocations of the country’s Founding Fathers.
There was no reference to ‘November’ in the arguments. Not even for ‘2024’. Even Trump’s name was barely spoken, and especially in the context of the formal title of lawsuits.
Yet there is no doubt that the 2024 election was the proverbial elephant in the room, and in that sense, the words that were not spoken were almost as loud as the words that were.
Hovering in the background of Thursday’s hearing was a tacit acknowledgment that the court will help decide not only whether Trump is immune from prosecution, but also whether he can stand trial before the vote.
The uncomfortable reality for an institution that doesn’t like to be seen as a political actor is that a decision won’t be made until late June or early July, or a lower court may order additional analysis on what actions Trump might be entitled to on immunity. because, could postpone the process until after the elections.
Dreeben was careful not to note the consequences of the court’s ruling on the elections and, for political purposes, to push for a speedy ruling.
The closest, if still oblique, reference to the election came from Judge Amy Coney Barrett, who at one point told Dreeben, “The special counsel has expressed some concern about speed and wanting to move forward.”
Although the court appeared deeply skeptical of Trump’s attempt to dismiss the case, several judges suggested the case may have to be sent back for more legal wrangling before it can go to trial.
Such a ruling would almost certainly postpone the trial until after the election. That would be a victory for Trump because if he defeats President Joe Biden in November, he could presumably order his new attorney general to dismiss the case or pardon himself.
Barrett and others repeatedly sought to get Trump’s attorney and Smith’s team to determine whether the actions mentioned in the indictment were official acts — and therefore potentially shielded from prosecution — versus private actions.
And even as Chief Justice John Roberts made clear his opposition to Trump’s sweeping absolute immunity claims, he also said he was “concerned” by an appeals court ruling that rejected Trump’s immunity arguments but did not provide a detailed analysis of whether the actions in the indictment were official or private.
The lower court, Roberts said, appears to be simply saying that “a former president can be prosecuted because he is prosecuted.”
“Why not send it back to the Court of Appeal or issue an opinion making it clear that this is not the law?” Roberts asked Dreeben.
Smith’s team told the court that even if it finds there is some degree of immunity from official actions, the indictment cites enough private actions — such as schemes to submit fake voter registrations — to immediately bring the case to trial. to bring justice.
“The president has no functions related to the certification of the winner of the presidential election,” Dreeben said. “So it’s hard for me to see how there could be a serious constitutional question about the statement ‘you can’t use fraud to undermine that function, you can’t impede it through deception, you can’t deprive millions of voters deprive them of their rights’. to make their vote count for the candidate they chose.’”
The liberal justices seemed likely to side with Smith’s team in ruling that the trial should proceed, suggesting that Trump’s argument turned the Constitution on its head.
“The Framers did not include an immunity clause in the Constitution. They knew how to do it,” Justice Elena Kagan said. “And, you know, not surprisingly, they reacted against a monarch who claimed to be above the law. Wasn’t the whole point that the president was not a monarch and that the president should not be above the law?”
Meanwhile, Kavanaugh and fellow conservative Samuel Alito seemed more receptive to Trump’s claims, particularly the suggestion that not granting immunity could open the door to former presidents being prosecuted for political reasons.
But ultimately the case may come down to Roberts, who at one point questioned whether the case could move forward if official actions were removed from the indictment, saying it could create a “one-legged stool.”
Barrett’s nuanced questioning suggested she is one to watch, too.
Barrett, who was appointed by Trump, got Trump’s lawyer to admit that former presidents could be prosecuted for private actions. And Sauer acknowledged that some of Trump’s alleged behavior around the 2020 election was not the official act of a president.
Trump “turned to a private attorney,” he was willing to knowingly spread false claims of election fraud to address his challenges to the election results. Private?” Barrett asked Sauer.
“That seems private to me,” he replied.
To be sure, the justices pressed the lawyers about the actual actions in the indictment, wanting to know which of the steps Trump took in his failed but frantic bid to cling to power might merit legal protection.
But there were also plenty of hypothetical scenarios, which isn’t surprising given that judges and courts like to test the outer limits of lawyers’ arguments as they determine where to draw the line.
Trump attorney D. John Sauer opened the door by saying that President George W. Bush could have been prosecuted without immunity for “allegedly lying to Congress to cause war in Iraq” and Biden for “unlawfully inciting of immigrants to enter the country illegally for his border policies.”
Roberts took it up there and asked whether a president who took bribes for an ambassadorial appointment could be prosecuted.
And so it went. What about selling nuclear secrets to a foreign adversary? Kagan wanted to know. A drone strike on an American citizen abroad, authorized by then-President Barack Obama? Kavanaugh asked.
A particularly notable hypothesis came from Alito, who raised the prospect that an outgoing president who loses a closely contested race but fears indictment upon leaving office might try to cling to power, creating “a cycle that could undermine the functioning of our country.” when democracy destabilizes? “