Takeaways from Supreme Court Arguments on Trump’s Immunity Claim

Several justices signaled interest in some protections for official acts, which could impede a swift trial in the federal election subversion case.

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By Charlie Savage and Alan Feuer

Charlie Savage reported from Washington, and Alan Feuer from New York.

April 25, 2024Updated 4:53 p.m. ET

The Supreme Court heard arguments on Thursday about Donald J. Trump’s claim that the federal charges accusing him of plotting to overturn the 2020 election must be thrown out because he is immune from being prosecuted for any official act he took as president.

Here are some takeaways.

Several justices seemed to want to define some level of official act as immune.

Although Mr. Trump’s claim of near-absolute immunity was seen as a long shot intended primarily to slow the proceedings, several members of the Republican-appointed majority seemed to indicate that some immunity was needed. Some of them expressed worry about the long-term consequences of leaving future former presidents open to prosecution for their official actions.

Among others, Justice Brett Kavanaugh compared the threat of prosecution for official acts to how a series of presidents were “hampered” by independent counsel investigations, criticizing a 1984 ruling that upheld a now-defunct law creating such prosecutors as one of the Supreme Court’s biggest mistakes. Chief Justice John G. Roberts Jr. criticized an appeals court ruling rejecting immunity for Mr. Trump, saying he was concerned that it “did not get into a focused consideration of what acts we are talking about or what documents are talking about.”

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“It’s a serious constitutional question whether a statute can be applied to the president’s official acts. So wouldn’t you always interpret the statute not to apply to the president, even under your formulation, unless Congress had spoken with some clarity?” “I don’t think across the board that as serious constitutional question exists on applying any criminal statute to the president.” “The problem is the vague statute — obstruction and 371, 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.” “I think that the question about the risk is very serious. And obviously it is a question that this court has to evaluate. For the executive branch, our view is that there is a balanced protection that better serves the interests of the Constitution that incorporates both accountability and protection for the president.”

CreditCredit…Supreme Court of the United States

The Democrat-appointed justices — Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — asked questions indicating greater concern about opening the door for presidents to commit official crimes with impunity.

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“This is what you’re asking us to say, which is that a president is entitled not to make a mistake — but more than that, a president is entitled for total personal gain to use the trappings of his office. That’s what you’re trying to get us to hold — without facing criminal liability.” “Your honor, I would say three things in response to that. First, the doctrine that immunity does not turn on the allegedly improper motivation or purpose is something that this court has reaffirmed in at least nine or 10 —” “That’s absolute immunity. But qualified immunity does say that whatever act you take has to be within what a reasonable person would do. I’m having a hard time thinking that creating false documents, that submitting false documents, that ordering the assassination of a rival, that accepting a bribe, and countless other laws that could be broken for personal gain, that anyone would say that it would be reasonable for a president or any public official to do that.”

CreditCredit…Supreme Court of the United States

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