Key Takeaways from Trump’s immunity arguments at the Supreme Court

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The Supreme Court spent over three hours on Thursday hearing oral arguments in the historic case involving former president Donald Trump’s claims of presidential immunity from prosecution.

On the final day of arguments for this term, the nine justices questioned lawyers for Mr Trump and the Justice Department’s special counsel and toyed with whether or not presidents should be awarded broad, some, or no immunity from criminal prosecution.

The former president is asking the court to award broad-sweeping immunity from criminal charges, claiming that without protections the president would effectively be unable to do their job without fear of politically-motivated retribution.

Meanwhile, attorneys with the special counsel argue that no person, even the president, is above the law.

The case stems from Mr Trump’s motion to dismiss special counsel Jack Smith’s federal election interference indictment against him, charging him over his efforts to overturn the 2020 presidential election and stay in the White House.

Here are the key takeaways from Thursday’s arguments:

A majority of the justices – notably the conservative men – seemed inclined to award some immunity to Mr Trump and future presidents when it comes to criminal prosecution.

Chief Justice John Roberts, Justice Clarence Thomas, Samuel Alito and Brett Kavanaugh all raised concerns about political opponents using the loophole to go after the president. Michael Dreeben, the attorney arguing on behalf of the special counsel, reiterated to justices it was not the problem in Mr Trump’s case.

John Sauer, Mr Trump’s attorney, seemed to convince these judges that the prospect of charges, trial and imprisonment could “distort the president’s decision-making, precisely when bold and fearless action is most needed”.

Liberal justices, however, were extremely sceptical of broad immunity.

"If the potential for criminal liability is taken off the table, wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they’re in office?" Justice Ketanji Brown Jackson said.

The justices do not appear to be in a rush to issue a ruling in the case and, the longer the legal wrangling goes on, the longer it takes for Mr Trump’s federal election interference trial to make it to trial. 

But further delays could be in store if the Supreme Court asks a lower court to remand their ruling. They would need to conduct more proceedings and issue a decision, likely pushing the trial past the November election.

Additionally, a ruling in favour of Mr Trump could undermine the other federal classified documents case and Georgia election interference case – possibly dismissing them or delaying those.

Much of the debate surrounded what exactly an “official act” is and if the alleged actions laid out in Mr Smith’s indictment constituted those.

Justices ran through several scenarios – appointing an ambassador, creating documents, pardoning individuals and more were offered. Mr Dreeben said that certain powers, exclusive to the presidency, were protected from criminal statutes because Congress cannot regulate them.

The chief justice specifically criticised a lower court ruling, which ruled that Mr Trump was not immune from prosecution.

Conservative justices seemed happy with the idea of asking a lower court to remand their ruling – spelling out directly what “official” acts are versus private.

“Why shouldn’t we either send it back to the court of appeals or issue an opinion making clear that that’s not the law?” he said.

As part of the debate surrounding what an “official” act is, justices and the lawyers seemed to agree that some of the actions described in Mr Smith’s indictment constituted “private” acts like asking personal lawyers and private actors to engage in the alleged fake electors scheme or calling on supporters to go to the US Capitol on January 6.

Those “private” actions would not be protected by theoretical presidential immunity, allowing the court to move forward with some prosecution.

Justice Amy Coney Barrett offered a suggestion that should the court rule narrowly, Mr Smith could still prosecute Mr Trump for those private actions.

Despite the justices weighing the possibility of granting immunity, several emphasised how crucial a ruling would be for future presidencies.

"We’re writing a rule for the ages," Justice Gorsuch said to the court.

Justice Kavanaugh later added, “This case has huge implications for the presidency, for the future of the presidency, for the future of the country.”

The last time the United States considered prosecuting a president was Richard Nixon after the Watergate scandal. While the court did weigh in on whether a president had to participate in the judicial process, Nixon was never criminally prosecuted.

As typical in Supreme Court arguments, justices invoked several unique metaphors to describe certain actions.

Justice Roberts said expunging “official” acts from Mr Smith’s indictment would make the case a “one-legged stool.”

When exchanging points with Mr Dreeben, Justice Alito described an “old saying” about “indicting a ham sandwich” – indicating that indictments are easy to bring forth.

When Mr Dreeben asked if Justice Alito came across a lot of instances of a grand jury refusing to indict a case, Justice Alito responded: “Every once in a while, there’s an eclipse too.”

At one point in the arguments, Justice Gorsuch pondered if a president could pardon themselves, but neither attorney offered a clear answer.

Mr Sauer circumvented the question.