As former President Donald Trump presses the Supreme Court to recognize broad presidential immunity, legal experts and justices spar over historical precedent and constitutional interpretations. Trump, facing criminal charges, has asked the highest court to enforce a norm of presidential immunity he himself has long been accused of threatening to undermine.
During nearly three hours of oral arguments, legal analysts noted a “shocking” openness from several justices to consider some degree of protection for former presidents from criminal liability. Yet, the court seemed poised to reject Trump’s more sweeping claim of “absolute” immunity, with the real challenge being how to define what official acts are exempt from prosecution.
“That is a whole new territory for the court that we’ve never seen before,” Schultz said, “and will make major new law in the United States.”
“It was surprising to hear, at least from some of the justices, the possibility that a president could somehow commit criminal misconduct for which they could never be held liable in court,” Michael Gerhardt, a constitutional expert at the University of North Carolina, told ABC News. “I think that has struck many people as just, up until now, inconceivable.”
Justice Neil Gorsuch called their upcoming decision a “rule for the ages,” acknowledging the unprecedented nature of the case. Justice Samuel Alito posited if, without immunity, presidents would be incentivized to commit crimes in order to stay in power rather than peacefully retire because of concern they will be prosecuted by a “bitter political opponent” after leaving office.
On the other side of the bench, Justice Sonia Sotomayor questioned whether Trump’s attorney’s argument would essentially bar the Senate from impeaching a president for high crimes, leading to a form of unchecked presidential power. This argument was contested by Michael Dreeben on behalf of Special Counsel Jack Smith, the argument could prevent criminal prosecution of a former president just because of timing. If a president committed a crime near the end of their term, Congress may not be able to “crank up the machinery” in time to impeach, Dreeben said, and it’s an open question about whether presidents can be impeached after they have left office.
Relevant articles:
– Trump Wants to Prosecute Biden. He Also Thinks Presidents Deserve Immunity., nytimes.com, 05/01/2024
– ‘Surprising’ and ‘disturbing’: Legal experts react to Supreme Court arguments on Trump’s immunity claim, ABC News, 04/30/2024
– Supreme Court ruling on Trump immunity could alter impeachment, Roll Call, 04/29/2024
– Read Brett Kavanaugh’s Opinion on Presidential Immunity, Newsweek, 04/29/2024
– Hey, SCOTUS — your hypocrisy is showing, The Hill, 04/29/2024