Supreme Court appears skeptical of blanket immunity for a former president
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Today, a majority of the Supreme Court's conservatives signaled their support for President Trump's claim that he is immune from prosecution for his official acts while President. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: It's never smart to make predictions about what the Supreme Court will do. But after nearly 3 hours of oral argument, it certainly looked as though, at minimum, the conservative majority would send the case back to the trial judge to determine which of the charges against Trump involve private acts for which he can be prosecuted. That would make it realistically all but impossible for Trump to be tried prior to the election.
As for the larger question - whether a former president is immune for his prior official acts - five of the conservative justices seemed to embrace some version of such immunity. Trump maintains that the only way to prosecute a former president is for him to be impeached and convicted by the Senate first. The devil, of course, today, was in the details. Chief Justice Roberts, for instance, asked whether the act of appointing an ambassador in exchange for a million dollars could be a crime.
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JOHN ROBERTS: Giving somebody money isn't bribery unless you get something in exchange. And if what you get in exchange is to become the ambassador to a particular country, that is official - the appointment.
TOTENBERG: Justices Alito, Gorsuch, Thomas and Kavanaugh all seemed, to one degree or another, to voice support for the idea of immunity for a former president. Here, for instance, is Alito questioning the special counsel's lawyer, Michael Dreeben.
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SAMUEL ALITO: I mean, presidents have to make a lot of tough decisions.
MICHAEL DREEBEN: Well, I...
ALITO: You don't think he's in a special - a peculiarly precarious position?
DREEBEN: Making a mistake is not what lands you in a criminal prosecution.
TOTENBERG: Justice Kavanaugh, who served as staff secretary for President George W. Bush, suggested that, generally, applicable criminal laws should not apply to a former president for his official acts unless the law specified that it applied to former presidents, too.
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BRETT KAVANAUGH: Conspiracy to defraud the United States can be used against a lot of presidential activities historically with a creative prosecutor who wants to go after a president.
TOTENBERG: Of the conservative justices, only Amy Coney Barrett expressed skepticism about the breadth of Trump's immunity claim. Addressing the former president's lawyer, she rattled off some of the charges against Trump, asking whether each would be a private or official act. What about using a private lawyer to spread false claims in order to spearhead challenges to the election results? And what about organizing a scheme to submit fake electors to obstruct congressional certification of the election results? Trump's lawyer said that both of those sounded private, prompting this from Barrett.
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AMY CONEY BARRETT: So those acts you would not dispute - those were private, and you wouldn't raise a claim that they were official.
TOTENBERG: Trump's lawyer John Sauer hedged at that point, eventually saying that the indictment should not go forward. Justice Kagan, one of the court's three liberal justices, posed this question.
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ELENA KAGAN: How about if a president orders the military to stage a coup?
JOHN SAUER: That might well be an official act, and he would have to be - as I'll say in response to all these kinds of hypotheticals - has to be impeached and convicted before he can be criminally prosecuted. But I emphasized to the court that...
KAGAN: Well, he's gone. He's no longer president.
TOTENBERG: Lawyer Sauer reiterated a president could not be prosecuted unless he's been impeached and convicted by the Senate.
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KAGAN: And he told the generals, I don't feel like leaving office. I want to stage a coup. Is that immune?
SAUER: If it's an official act, there needs to be impeachment and conviction beforehand.
KAGAN: That sure sounds bad, doesn't it?
TOTENBERG: Justice Barrett followed up.
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BARRETT: There are many other people who are subject to impeachment, including the nine sitting on this bench, and I don't think anyone has ever suggested that impeachment would have to be the gateway to criminal prosecution for any of the many other officers subject to impeachment. So why is the president different when the impeachment clause doesn't say so?
TOTENBERG: As Kagan had indicated, the court's liberals were far more concerned with the possibility that a president would abuse his power if he were free from any realistic possibility of criminal prosecution. Here's Justice Jackson.
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KETANJI BROWN JACKSON: I'm trying to understand what the disincentive is from turning the Oval Office into, you know, the seat of criminal activity in this country.
TOTENBERG: Defending the charges against Trump, lawyer Michael Dreeben disputed the notion that prosecutors would run wild at all levels of government in seeking to prosecute former presidents.
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DREEBEN: There is no perfect system here. We are trying to design a system that preserves the effective functioning of the presidency and the accountability of a former president under the rule of law.
TOTENBERG: Justice Sotomayor chimed in.
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SONIA SOTOMAYOR: In the end, if it fails completely, it's because we've destroyed our democracy on our own, isn't it?
TOTENBERG: A decision in the case won't come until June, at the earliest.
Nina Totenberg, NPR News, Washington.
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