In historic Trump hearing, Supreme Court suggests presidents may have some criminal immunity

(WASHINGTON) — In historic Trump hearing, Supreme Court suggests presidents may have some criminal immunity

Alexandra Hutzler,Meredith Deliso,Alexander Mallin, andMike Levine

The U.S. Supreme Court heard arguments Thursday on whether former President Donald Trump can be criminally prosecuted over his efforts to overturn his 2020 election loss.

The justices grappled with the monumental question of if — and if so, to what extent — former presidents enjoy immunity for conduct alleged to involve official acts during their time in office.

Trump claims “absolute” protection for what he claims were official acts, though he denies all wrongdoing. The high court divided over this, but many of the conservative-leaning justices seemed open to some version of it while still excluding a president’s “private” conduct.

The high court’s ruling will determine if Trump stands trial before the November election on four charges brought by special counsel Jack Smith, including conspiracy to defraud the United States. A decision is expected by June.

Here’s how the news developed:

Apr 25, 12:50 PM

Supreme Court’s decision will directly impact when, if, Trump stands trial

How fast the justices move in making a determination will impact whether Trump stands trial before the November election — if at all.

Experts point to how the court handled Bush v. Gore, when the justices intervened to end a ballot recount and effectively hand George W. Bush the presidency in the 2000 election. In United States v. Nixon, the Watergate scandal tapes case, the Supreme Court heard arguments July 8, 1974, and issued its opinion rejecting his claim of executive privilege 16 days later.

It’s not clear whether the court will move with such speed. The opinions are expected to be released before the court’s term ends in June.

The justices could uphold the lower court decision rejecting immunity in its entirety, clearing the way for a trial this summer. Or they could kick the can down the road by sending the case back to lower courts for further proceedings — which some conservative justices floated during arguments. Such an outcome could rule out a trial before the end of the year.

Apr 25, 12:44 PM

Court adjourns

Oral arguments came to an end after two hours and 40 minutes.

Trump attorney declined to give a rebuttal, and the case was submitted.

Apr 25, 12:16 PM

‘We’re writing a rule for the ages’

Throughout arguments, multiple of the justices made clear they were looking past the immediate example of Trump to what their decision will mean for the future of the presidency.

“We’re writing a rule for the ages,” Justice Neil Gorsuch said.

“This case has huge implications for the presidency, for the future of the presidency and for the future of the country, in my view,” said Justice Brett Kavanaugh.

“Whatever we decide is going to apply to all future presidents,” said Justice Samuel Alito.

Apr 25, 12:09 PM

Alito suggests some sympathy toward Trump’s position

Justice Samuel Alito has multiple times over the course of questioning sounded sympathetic toward Trump’s positions.

He also seemed to raise concerns about former presidents suffering the burden of having to go through a trial if they are criminally charged.

“That may involve great expense, and it may take up a lot of time, and during the trial the former president may be unable to engage in other activities that the former president would want to engage in, and then the outcome is dependent on the jury, the instructions to the jury and how the jury returns a verdict, and then it has to be taken up on appeal,” Alito said at one point.

In his final question to government attorney Michael Dreeben, Alito seemed to suggest that Trump’s prosecution could serve to incentivize future presidents to try and unlawfully remain in office in order to avoid prosecution by their successors.

“Now, if an incumbent who loses a 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?” Alito asked.

“I think it is exactly the opposite, Justice Alito,” Dreeben replied, noting Trump and his allies filed dozens of lawful challenges to the results of the election and lost.

“There is an appropriate way to challenge things through the courts with evidence,” Dreeben said. “If you lose, you accept the results, that has been the nation’s experience, I think the court is well familiar with that.”

Apr 25, 11:58 AM

DOJ on what executive functions have ‘absolute protection’

Asked by Justice Elena Kagan what “core” executive functions have “absolute protection,” government attorney Michael Dreeben said they include pardon power, veto, foreign recognition and appointments.

“Congress cannot say you can’t appoint a federal judge who hasn’t received a certain diploma, hasn’t achieved a certain age,” he said.

Commander in chief is also on the list, he said, though added that Congress has “substantial authority in the national security realm.”

“I think that there may be some aspects like directing troops on the field in which the president’s power is completely unreviewable,” he said.

Apr 25, 11:41 AM

Justices ask attorneys if presidents can pardon themselves

As the justices wrestle with immunity, they are posing another question to lawyers: Can presidents pardon themselves?

Justice Neil Gorsuch asked Trump attorney John Sauer about the possibility, saying presidents could be incentivized to do so if they fear their successors could prosecute them for actions they took while in office.

“I didn’t think of that until your honor asked it,” Sauer said. “That is certainly incentive that might be created.”

Michael Dreeben, arguing for the government, was later asked for his view on whether the president has such authority.

“I don’t believe the Department of Justice has taken a position,” Dreeben said. “The only authority that I’m aware of is a member of the Office of Legal Counsel wrote on a memorandum that there is no self-pardon authority. As far as I know, the department has not addressed it further, and the court had not addressed it either.”

Apr 25, 11:36 AM

Alito asks how ‘robust’ protection against bad faith prosecution is

Justice Samuel Alito addressed the “layers of protection” against bad faith prosecutions raised by the DOJ.

“I’m going to start with what the D.C. Circuit said. So, the first layer of protection is that attorneys general and other justice department attorneys can be trusted to act in a professional and ethical manner, right?” Alito said. “How robust is that protection?”

Alito continued that the “vast majority” of attorneys general and justice department attorneys “take their professional ethical responsibilities seriously” but that there have been exceptions.

In response, DOJ attorney Michael Dreeben agreed that there have been “rare exceptions” and said that “we’re talking about layers of protection.”

“I do think this is the starting point, and if the court has concerns about the robustness of it, I would suggest looking at the charges in this case,” he said.

“The allegations about the misuse of the Department of Justice to perpetuate election fraud show exactly how the Department of Justice functions in the way that it is supposed to,” Dreeben said. “Petitioner is alleged to have tried to get the Department of Justice to send fraudulent letters to the states to get them to reverse electoral results.”

Apr 25, 11:29 AM

‘Making a mistake’ as president doesn’t result in charges: DOJ

Michael Dreeben, arguing for Smith’s team, faced questions from Justice Samuel Alito on whether or not presidents can make a “mistake” given the many competing pressures they are under in their day to day duties.

“Presidents have to make a lot of tough decisions about enforcing the law and they have to make decisions about questions that are unsettled,” Alito said, then asking if a “mistake” makes a commander in chief criminally liable.

“Making a mistake is not what lands you in a criminal prosecution,” Dreeben said.

Later he raised some of the specific accusations in the charges against Trump: “It is difficult for me to understand how there could be a serious constitutional question about saying, ‘You can’t use fraud to defeat the [certification of the winner of the presidential election], you can’t obstruct it through deception, you can’t deprive millions of voters of their right to have their vote counted for the candidate who they chose.'”

Apr 25, 11:21 AM

Kavanaugh raises question of ‘risk’ of ‘vague’ statutes to go after a president

In a recurring point of interest for the court as it questioned the government, Justice Brett Kavanaugh raised the question of the “risk” of a “creative prosecutor” using “vague” criminal statutes — including obstruction and conspiracy, which Trump faces — against any president if they can’t claim immunity.

In response, Department of Justice attorney Michael Dreeben said the question about the risk is “very serious” and “obviously it is a question that this court has to evaluate.” He argued there is a “balanced protection” with “accountability” for the presidency.

Both Kavanaugh and Justice Samuel Alito appeared skeptical of Smith’s use of at least some of the conspiracy and fraud-related charges in the case against Trump. Alito said to Dreeben: “I don’t want to dispute the particular application of that [conspiracy statute] to the particular facts here, but would you not agree that is a peculiarly open-ended statutory prohibition? And that fraud under that provision, unlike under most other fraud provisions, does not have to do — doesn’t require any impairment of a property interest?”

Dreeben responded: “It is designed to protect the functions of the United States government and it is difficult to think of a more critical function than the certification of who won the election.”

Apr 25, 11:18 AM

Justice Roberts raises concern of bad faith prosecutions against a president

Justice John Roberts began his line of questioning by raising concerns about the opinion issued by the D.C. Circuit Court of Appeals in their rejection of Trump’s claims of immunity.

Roberts said the statement that “a former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has allegedly acted in defiance of the laws” concerned him because “as I read it, it says a former president can be prosecuted because he’s being prosecuted.”

Roberts said such a position could put too much faith in the justice system to act non-politically and out of good faith, and he asked whether the Supreme Court should send the opinion back down to make clear to the circuit court that that is not the law.

Michael Dreeben, arguing for the government, responded that there are “layered safeguards” that protect against malicious prosecution.

“We are not endorsing a regime that we think would expose former presidents to criminal prosecution in bad faith, for political animus, without adequate evidence or politically driven prosecution that would violate the Constitution,” Dreeben said.

Apr 25, 11:20 AM

Prosecutor on why there haven’t been prior criminal prosecutions for presidents

Asked by Justice Clarence Thomas why previous presidents were not prosecuted for controversial actions, prosecutor Michael Dreeben said “this is a central question.”

“The reason why there have not been prior criminal prosecutions is that there were not crimes,” he said.

He said there are “layers of safeguards” that ensure that former presidents do not have to “lightly assume criminal liability for any of their official acts.”

Apr 25, 11:04 AM

DOJ begins its argument

After about an hour of questioning, Trump’s attorney concluded his presentation before the court and Department of Justice attorney Michael Dreeben, representing Smith’s team, began his argument with a short opening statement followed by what is expected to be approximately an hour of facing questions.

Dreeben called Trump’s immunity claim a “novel theory [that] would immunize former presidents for criminal liability for bribery, treason, sedition, murder and, here, conspiring to use fraud to overturn the results of an election and perpetuate himself in power.”

“Such presidential immunity has no foundation in the Constitution,” Dreeben said. “The framers knew too well the dangers of a king who could do no wrong.”

-ABC News’ Adam Carlson

Apr 25, 10:51 AM

What if the president staged a coup?

Justice Elena Kagan and Amy Coney Barrett raised the hypothetical of a potential presidential coup with Trump’s attorney, who said that under their theory of immunity, ordering a coup could be considered an official act.

John Sauer maintained that impeachment and conviction are needed before a criminal prosecution in the hypothetical case of a coup raised by the justices.

And even then, Sauer said there would have to be a criminal statute expressly referencing the president, prompting an incredulous response from Barrett, who appeared to express a concern that Suer’s argument was paradoxical.

“There would have to be a statute that made a clear statement that Congress purported to regulate the president’s conduct,” he said.

Apr 25, 11:00 AM

KBJ says granting Trump’s position would ’embolden’ POTUS to act criminally ‘with abandon’

Justice Ketanji Brown Jackson said she was worried that granting Trump’s position for presidential immunity would “embolden” a president to act criminally “with abandon.”

“If someone with those kinds of powers, the most powerful person in the world, with the greatest amount of authority, could go into office knowing that there would be no potential penalty for committing crimes, I’m trying to understand what the disincentive is from turning the Oval Office into, you know, the seat of criminal activity in this country. … I worry that we would have a worse problem than the problem of the president feeling constrained to following the law while he’s in office,” she said.

John Sauer responded by suggesting that history has shown that this hasn’t happened so far. “I respectfully disagree with that because the regime you described is the regime we operated under for 234 years,” he said.

Apr 25, 10:39 AM

Kagan notes founding fathers didn’t put in immunity clause: ‘President was not a monarch’

As the questioning of Trump’s attorney continues, Justice Elena Kagan noted that the framers of the Constitution consciously did not put in an explicit presidential immunity clause.

“They didn’t provide immunity to the president,” she told lawyer John Sauer. “And you know, not so surprising, they were reacting to a monarch who claimed to be against the law. Wasn’t the whole point that the president was not a monarch and the president was not supposed to be above the law?”

In response, Sauer argued that the framers did put in an immunity clause “in a sense” with the executive vesting clause and that they adopted impeachment as a “structural check,” which is a major part of Trump’s defense against his federal charges.

“They did discuss and consider what would be the checks on the presidency and they did not say we would have criminal prosecution,” Sauer said. “Everybody cried out against that as unconstitutional.”

Apr 25, 10:48 AM

Expunging Trump charges of official behavior would be ‘one-legged stool, right?’

A notable response came from Chief Justice John Roberts when Trump’s attorney pushed for the justices to remand the case back down to the lower courts to sort through which allegations in the indictment amount to an “official act” under the presidency versus those that were private and outside the office’s authority — and potentially criminally liable.

“The official stuff has to be expunged completely from the indictment before the case can go forward,” John Sauer said.

“That’s like a one-legged stool, right?” Roberts responded. “I mean, giving somebody money isn’t bribery unless you get something in exchange. If what you get in exchange is to become the ambassador to a particular country, that is official, the appointment, it’s within the president’s prerogatives. The unofficial part is ‘I’m going to get a million dollars for it.'”

In an unusual moment after this exchange, Justice Clarence Thomas raised unprompted whether Trump’s legal team was challenging the legality of the appointment of special counsel Jack Smith — a questionable theory previously pushed by right-wing lawyers like former Attorney General Ed Meese.

Sauer said Trump’s legal team was making that argument in his separate Florida federal case, in which Trump is accused of mishandling classified information while out of office, but they weren’t doing so directly in this case, to which Thomas did not follow up.

Justice Samuel Alito then asked Sauer if all official acts alleged in the indictment should be excluded from trial, to which Sauer answered they should.

But Justice Sonia Sotomayor pressed back on the notion of remanding the case, which outside observers see as one potential outcome that would likely draw out the lower court proceedings for many months, past the November election.

Sotomayor argued that even in the instances of acts that could be considered official, they came in the context of Trump pushing forward in his “private” intent of remaining in office despite losing to Joe Biden.

“I don’t think the indictment is charging that the obstruction occurred solely because of conversations with the Justice Department,” she said. “They’re saying you look at all of the private acts and you look in the context of some of the public acts, and you can infer the intent, the private intent, from them.”

Apr 25, 10:48 AM

Trump attorney concedes indictment includes some unprotected actions

Justice Amy Coney Barrett read aloud from special counsel Smith’s brief, in which he made the case that even if the Supreme Court were to decide there was some immunity from official acts, there were sufficient private acts in the indictment for the trial to proceed immediately.

“I want to know if you agree or disagree about the characterization of these acts as private,” she said.

“You concede that private acts don’t get immunity,” she told John Sauer, Trump’s lawyer, who said, “We do.”

He went on to say that some purported actions in the indictment were indeed “private” — including Smith’s allegation that Trump turned to a private attorney who knowingly spread false claims of election fraud to spearhead his challenges to 2020 election results and that he conspired with others to implement a plan to obstruct the certification of President Joe Biden’s win.

“So those acts you would not dispute,” Barrett said. “Those were private and you would not raise a claim that they were official?”

Sauer agreed.

Other justices returned to that line of questioning while pressing Sauer over the rest of his questioning.

Apr 25, 10:32 AM

Trump was within his rights as president to back alleged ‘fraudulent’ electors: Attorney

“So apply it to the allegations here,” she said, referring to a key part of Smith’s case against Trump. “A fraudulent slate of electoral candidates, assuming you accept the facts of the complaint on their case — is that plausible that would be within his right to do?”

Trump’s attorney replied, “Absolutely.”

Sotomayor pushed back: “Knowing that the slate is fake. Knowing that the slate is fake, that they weren’t actually elected, that they weren’t certified by the state.”

John Sauer said he disputed the characterization the electors were “fake.”

“This was being done as an alternative basis,” he argued of the competing, alleged electors put forth in various states as part of a push to reverse Trump’s 2020 defeat.

Apr 25, 10:28 AM

Justice Gorsuch floats idea of sending issue back to lower courts

Justice Neil Gorsuch was the first on the bench to raise the idea of sending the immunity question back to the lower courts.

Gorsuch said a key question is how to segregate private conduct and official conduct that may, or may not, enjoy some immunity.

The justice said the appeals court “left open in that case the possibility of further proceedings and trial.”

“Exactly right. And that would be a very natural course for this court to take in this case,” Trump’s attorney responded.

Apr 25, 10:18 AM

Justice Sotomayor raises assassination hypothetical

Minutes into arguments, Justice Sonia Sotomayor raised the question of whether immunity extends to political assassinations.

The issue was discussed at length in a lower court hearing. Then, Trump attorney John Sauer suggested Trump could be immune, under certain circumstances.

“I’m going to give you a chance to say if you stay by it,” Sotomayor said. “If the president decides that his rival is a corrupt person and he orders the military, or orders someone to assassinate him, is that within his official acts for which he can get immunity?”

“It would depend on the hypothetical, but we could see that could well be an official act,” Sauer said.

Apr 25, 10:13 AM

Justice Brown Jackson: Every president ‘has understood that there was a threat of prosecution’

Justice Ketanji Brown Jackson pressed Trump attorney John Sauer on his contention that without immunity all future presidents would feel paralyzed to take official acts while in office that could put them in criminal jeopardy.

“I mean, I understood that every president from the beginning of time essentially has understood that there was a threat of prosecution [upon leaving office],” Jackson said.

Sauer responded by quoting Benjamin Franklin from the constitutional convention, to which Jackson seemed skeptical.

“But since Benjamin Franklin everybody has presidents who have held the office [who knew] that they were taking this office subject to potential criminal prosecution, no?” she said.

Apr 25, 10:11 AM

1st questions from Thomas: Where does immunity come from?

Justice Clarence Thomas opened questioning by getting to the heart of the case: where is the “source” of presidential immunity and how would the court come to decide what acts fall under that scope.

First, he asked Trump’s attorney to be “more precise as to the source” of supposed presidential immunity.

John Sauer responded that it comes from the executive vesting clause of the Constitution.

Thomas then pressed how exactly the court would “determine what an official act is,” to which Sauer said acts fall within the “outer perimeter” of a president’s official duties.

Apr 25, 10:11 AM

Trump’s attorney: ‘Every current president will face de facto blackmail’

Trump’s attorney, John Sauer, addressed the justices first, saying in his opening statement that unless presidents are granted the absolute immunity that Trump seeks, “Every current president will face de facto blackmail and extortion by his political rivals while he is still in office.”

Sauer also called out controversial policies of other commanders in chief, such as George W. Bush’s regarding the Iraq War and a Barack Obama-approved drone strike against a U.S. citizen as part of anti-terrorism operations overseas, while saying the implications of the court’s decision here “extend far beyond the facts of this case.”

Apr 25, 10:02 AM

Arguments are underway

Oral arguments have begun in Donald J. Trump v. United States.

Arguing for Trump is attorney D. John Sauer. Presenting for Smith is Michael R. Dreeben, who has argued more than 100 cases before the nation’s high court.

Apr 25, 9:59 AM

Trump, on trial in New York, contends president ‘has to have immunity’

As Trump headed into court on Thursday morning for his ongoing trial in New York (he has pleaded not guilty), he continued to weigh in on the presidential immunity case.

“I think that the Supreme Court has a very important argument before it today,” he told reporters as he entered the hallway inside a Manhattan courtroom for his hush money trial. “I would have loved to have been there but this judge would not allow me to be there.”

Trump argued that the president “has to have immunity,” repeating a claim that federal prosecutors and some judges have so far said would upend the rule of law.

“This has to do with a president in the future for 100 years from now,” he said. “If you don’t have immunity, you’re not going to do anything. You’re going to become a ceremonial president. It’s just going to be doing nothing, you’re not going to take any of the risks, both good and bad.”

-ABC News’ Kelsey Walsh and Michael Pappano

Apr 25, 9:53 AM

What the Constitution, framers said about presidential immunity

There is “nothing in the text of the Constitution that speaks to immunity in one way or another,” said David Schultz, a national expert in constitutional law.

But there is textual evidence from the Constitution’s framers — including Benjamin Franklin and Alexander Hamilton — about how they viewed the issue.

“We have language from some framers indicating that even if there might have been some immunity while a person was president of the United States, once they’ve left office there’s no immunity and they could be charged with the crime,” Schultz said.

Apr 25, 9:43 AM

The scene outside, with a few anti-Trump demonstrators

Just a few demonstrators stood in front of the Supreme Court — which is wrapped in security fencing — ahead of the hearing Thursday morning.

They held signs including ones that read “Absolute immunity = absolute tyranny” and “Loser.”

-ABC News’ Devin Dwyer

Apr 25, 9:31 AM

What Americans have said of Smith’s indictment, Trump’s immunity claim

When Smith handed down his charges in August 2023, a majority of Americans (51%) thought the indictment was very serious, according to an ABC News/Ipsos poll taken shortly after. Overall, 65% of adults thought then that the charges were serious, including 51% who said they were very serious and 14% who said they were somewhat serious.

At the time, a plurality of Americans (49%) said Trump should suspend his presidential campaign, while 36% said he shouldn’t.

On Trump’s immunity claim, an overwhelming number of Americans (66%) thought in that poll that the former president should not be immune to criminal prosecution for actions he took while president, according to an ABC News/Ipsos February poll. That included 45% of Republicans and 83% of Democrats. Independents fell in between at 66%.

Apr 25, 9:24 AM

Trump’s attorneys reverse their stance on prosecuting a president

As Smith’s team has noted in arguing against Trump, the former president’s lawyers during his second Senate impeachment trial said in very clear terms that they believed a president could in fact be criminally prosecuted by the Department of Justice — the opposite of what his legal team is currently arguing.

“If my colleagues on this side of the chamber actually think that President Trump committed a criminal offense — and let’s understand, a high crime is a felony and a misdemeanor is a misdemeanor; the words haven’t changed that much over time — after he is out of office, you go and arrest him,” one of his attorneys said in opening statements during his impeachment trial in 2021, shortly after Jan. 6.

“We have a judicial process in this country, we have an investigative process in this country, to which no former officeholder is immune,” Trump’s attorney said then.

But now, facing federal charges related to Jan. 6, Trump’s lawyers argue a president can only be prosecuted if he is impeached, convicted by the Senate and removed from office.

The Senate in his second impeachment trial acquitted, though a majority of lawmakers voted to convict him.

-ABC News’ Katherine Faulders

Apr 25, 9:24 AM

Trump projects confidence ahead of hearing

Trump appeared confident while addressing the presidential immunity hearing during remarks Thursday morning in Manhattan.

“We have a big case today — this judge wouldn’t allow me to go, but we have a big case today at the Supreme Court on presidential immunity, a president has to have immunity,” Trump said at a construction site where he met with union members, workers and supporters. “If you don’t have immunity, you just have a ceremonial president,” he insisted.

When asked about the justices, three of whom he named to the high court, Trump said, “They’re very talented people, they’re very smart, they know what they’re doing.”

Trump stopped by the midtown Manhattan site, where the new JPMorgan headquarters is under construction, before heading to the courthouse for his hush money trial. He denies all wrongdoing.

-ABC News’ Lalee Ibssa, Soo Rin Kim and Mike Pappano