Howe on the Court 4/25/2024
The Supreme Court on Thursday appeared skeptical of a ruling by a federal appeals court that rejected former President Donald Trump’s claim that he has absolute immunity from criminal charges based on his official acts as president. During more than two-and-a-half hours of oral argument, some of the court’s conservative justices expressed concern about the prospect that, if former presidents do not have immunity, federal criminal laws could be used to target political opponents. However, the justices left open the prospect that Trump’s trial in Washington, D.C., could still go forward because the charges against him rest on his private, rather than his official, conduct. However, the timing of the court’s eventual opinion and the resulting trial remains unclear, leaving open the possibility that the court’s decision could push Trump’s trial past the November election.
Trump was indicted in August 2023 on four counts, arising from Special Counsel Jack Smith’s investigation into the Jan. 6, 2021, attacks on the U.S. Capitol, alleging that he conspired to overturn the results of the 2020 election. Trump asked U.S. District Judge Tanya Chutkan to throw out the charges against him, arguing that he could not be held criminally liable for his official acts even after leaving office.
Chutkan denied Trump’s request, and in February the U.S. Court of Appeals for the District of Columbia Circuit upheld that ruling. Trump went to the Supreme Court, which agreed in late February to weigh in. Trump’s trial, which was originally scheduled for March 4, is now on hold waiting for the Supreme Court’s decision.
Representing Trump, John Sauer told the justices that without presidential immunity from criminal charges, the “presidency as we know it” will be changed. The “looming threat,” he contended, will “destroy presidential decisionmaking precisely when” the president needs to be bold. And the impact of the court’s decision, he suggested, will have an impact far beyond Trump’s case. He pointed to the prospect, for example, that President Joe Biden could be charged with unlawfully inducing immigrants to enter the United States illegally through his border control policies.
Michael Dreeben, a lawyer from Smith’s office, represented the United States. He emphasized that the Supreme Court has never recognized absolute criminal immunity for any public official. Trump, he contended, seeks permanent criminal immunity for a president’s official acts unless he has first been impeached and convicted by the Senate.
Several justices pressed Sauer on how to distinguish official acts, for which a former president would enjoy immunity under his theory, from private acts, for which he could still face criminal charges. Chief Justice John Roberts asked Sauer about a scenario involving a president’s official act – appointing an ambassador – that he does in exchange for a bribe. When Sauer conceded that accepting the bribe is private conduct, Roberts urged Sauer to explain how the boundary between an official act and a private one would “come into play.” Prosecutors could bring charges against the former president for accepting a million dollars, Roberts queried, but they can’t say what it’s for?
Justice Elena Kagan lobbed a series of examples, some taken from the indictment, at Sauer and asked him to identify them as involving private or official conduct. Sauer agreed that some, like signing a form affirming false election allegations, would be private, but he asserted that others – like calling the chair of the Republican Party – would be official. When asked whether ordering the military to stage a coup so that the president could remain in office was private or official, Sauer suggested that it would depend on the circumstances, prompting Kagan to say, “that sure sounds bad, doesn’t it?”
More:
https://amylhowe.com/2024/04/25/supreme-court-appears-likely-to-side-with-trump-on-some-presidential-immunity/
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