Trump's immunity arguments and the experiences of the justices who might support it
LEILA FADEL, HOST:
Prosecutors and lawyers for former President Donald Trump spent nearly three hours arguing before the Supreme Court yesterday. At a minimum, it seems apparent there will be no Trump trial on charges of obstructing the 2020 election until well after this year's election. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: Perhaps it's Trump derangement syndrome that led lots of legal eagles, from liberal to conservative, to believe that former President Trump's claim of immunity from criminal prosecution was preposterous, but it's more likely that court observers didn't properly account for the personal experiences of the conservative justices. Five of the six conservatives spent much of their lives as denizens of the Beltway. As young men, the five served in the White House and Justice Department, working for Republican presidents, often seeing their administrations as targets of unfair harassment by Democratic majorities in the House and Senate.
You can hear the echoes of those experiences in some of yesterday's questions about the conspiracy to defraud charge against Trump. Here, for instance, is Justice Kavanaugh, who worked for George W. Bush for five years - three of them as staff secretary, a position that's been described as the nerve center of the White House.
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: Neil Gorsuch had a much more personal taste of Washington as a blood sport. His mother was the Reagan administration's first EPA administrator, and ultimately became the first agency director in U.S. history to be cited for contempt of Congress. At the time, her son, now a Supreme Court justice, was just a teenager and reportedly felt the rebuke keenly. Fast forward to yesterday. Here's Gorsuch questioning the lawyer defending the indictment of Trump.
NEIL GORSUCH: I'm not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives.
TOTENBERG: Then, too, there's Justice Samuel Alito, who held increasingly senior Justice Department positions for the entirety of the Reagan administration in the 1980s. Here he is questioning Michael Dreeben, the lawyer defending the Trump indictment.
SAMUEL ALITO: Presidents have to make a lot of tough decisions. Did I understand you to say, well, you know, if he makes a mistake, he makes a mistake - he's subject to the criminal laws just like anybody else? You don't think he's in a special, a peculiarly precarious position?
TOTENBERG: Replied Dreeben, making a mistake is not what lands you in a criminal prosecution. Alito went on to suggest that barring criminal prosecutions of a former president would be a good thing for democracy.
ALITO: If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?
TOTENBERG: Chief Justice John Roberts was more careful in his questioning, but when he served as a top aide to the attorney general in the Reagan administration, he was often the point man on political controversies. Then, too, there's the fact that Roberts sailed through the Senate confirmation hearings, unlike many of his conservative colleagues, including Kavanaugh, Alito and Clarence Thomas. Only one of the court's conservatives expressed doubts yesterday about the breadth of Trump's immunity claim.
Justice Amy Coney Barrett, ironically the last of President Trump's three appointees to the court, was the lone skeptic of his immunity claims. And she is a relative Washington newbie, having spent most of her adult life in academia at Notre Dame Law School. She challenged the idea that a president could not be prosecuted for submitting a slate of fake electors to thwart the certification of a new president. And she challenged the assertion from Trump's lawyer that no president can be criminally prosecuted if he has not first been impeached, convicted and removed from office.
AMY CONEY BARRETT: There are many other people who are subject to impeachment, including the nine sitting on this bench.
TOTENBERG: Nobody's ever suggested that we couldn't be prosecuted, she observed.
CONEY BARRETT: So why is the president different when the impeachment clause doesn't say so?
TOTENBERG: Nina Totenberg, NPR News, Washington.
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