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The US Supreme Court on Thursday wrestled with how to define the scope of presidential immunity from criminal prosecution as Donald Trump fights charges of interfering in the 2020 election.
During oral arguments the court sought to draw the boundaries between a president’s personal and official acts, suggesting the matter might need to be sent back to lower courts to evaluate the nature of Trump’s actions.
Such a move could further delay one of the most serious criminal trials against Trump, the presumptive Republican nominee in November’s election. A decision is expected before the end of the high court’s term, typically in late June.
Trump has argued for a broad interpretation of immunity, saying presidents may only be indicted if previously impeached and convicted by Congress for similar crimes — even in some of the most extreme circumstances.
The court’s decision will affect a pillar of his defence and reverberate more broadly throughout the US government, having a long-lasting impact on the country’s balance of power and on presidents’ accountability.
John Sauer, Trump’s lawyer, told the court that allowing a president to be prosecuted for his official actions would be “incompatible with our constitutional structure”. There would be “no presidency as we know it”, he added, although he conceded a president’s private actions could be subject to criminal charges.
Michael Dreeben, who represented the Department of Justice, countered there was no constitutional basis for the kind of expansive immunity Trump has sought, and such a “novel theory would immunise former presidents for criminal liability for bribery, treason, sedition, murder”.
Several justices questioned what would qualify as an official act. Justice Ketanji Brown Jackson pushed back on that distinction. If “the most powerful person in the world . . . could go into office knowing that there would be no potential penalty for committing crimes, I’m trying to understand what the disincentive is from turning the Oval Office into the seat of criminal activity in this country”, she said.
The court’s liberal wing pushed back against the breadth of legal protection Trump sought. “Wasn’t the whole point that the president was not a monarch and the president was not supposed to be above the law?” Elena Kagan asked, citing the constitution.
Amy Coney Barrett, a member of the court’s conservative wing and a Trump appointee, also appeared sceptical. She challenged Sauer’s argument that some laws may not apply to the president: “How can you say that he would be subject to prosecution after impeachment, while at the same time saying that he’s exempt from these criminal statutes?”
Other conservative justices seemed more sympathetic to Trump’s claims. Samuel Alito said presidents were in “a peculiarly precarious position”. Brett Kavanaugh said presidents were “subject to prosecution for all personal acts just like every other American . . . the question is acts taken in an official capacity”.
Philip Bobbitt, a professor at Columbia Law School, said there could be enough votes to return the case to the lower courts “with instructions” on which acts are immune from prosecution. But there could also be a strong minority saying that presidents are “never empowered to act outside the law” and immunity does not apply to “non-official acts”.
“Even a relatively favourable ruling [for Trump] . . . doesn’t mean that the case is over. Not at all,” he added. “But it does not also mean that the prosecution can break out the champagne,” saying it was “not likely” the lower court’s ruling would be affirmed.
The case before the Supreme Court stems from a federal indictment brought by the justice department’s special counsel, Jack Smith, which accused Trump of seeking to overturn the result of the 2020 presidential election.
Trump has called the criminal case, and the three others he is facing in various courts across the US, a political witch hunt.
The former president said he wanted to attend Thursday’s hearing but could not, as he is required to be in Manhattan criminal court where he is standing trial for allegedly falsifying business records to conceal an affair.
The justices are weighing in on a particularly complex aspect of US law. No statute grants presidential immunity from criminal charges, and case law is limited. The high court has ruled on presidential immunity from civil liability, but has never determined whether it stretches to criminal cases.
The Supreme Court has recently decided another politically sensitive case involving Trump. Last month, it reversed a decision by the state of Colorado to throw the former president off its ballots on the basis he had engaged in insurrection when a group of his supporters stormed the US Capitol on January 6 2021.
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