At today’s hearing on Donald Trump’s claim of absolute immunity from criminal prosecution, the Republican-appointed Supreme Court majority appeared poised to give him what he most desires in the case: further delays that virtually preclude the chance that he will face a jury in his election-subversion case before the November election.
But the nearly three hours of debate may be even more significant for how they would shape a second Trump term if he wins reelection. The arguments showed that although the Court’s conservative majority seems likely to reject Trump’s claim of absolute immunity from criminal prosecution, four of the justices appear predominantly focused on limiting the possibility that future presidents could face such charges for their actions in office, with Chief Justice John Roberts expressing more qualified sympathy with those arguments. Among the GOP-appointed justices, only Amy Coney Barrett appeared concerned about the Court potentially providing a president too much protection from criminal proceedings.
The conservative majority appeared determined to draw a lasting line between presidential actions that could and could not be subject to criminal prosecution; Justice Neil Gorsuch at one point insisted, “We’re writing a rule for the ages.” But many observers fear that any grant of immunity, no matter how the majority tries to limit it, would enormously embolden a reelected Trump to barrel through constraints of custom and law in pursuing his self-described agenda of “retribution.”
“The Supreme Court may be inclined to split hairs, but Donald Trump is not,” Deana El-Mallawany, the counsel for the bipartisan group Protect Democracy, told me after the hearing. “The arguments today made clear that Trump seeks absolute unchecked power. Trying to rein in an imperial vision of presidential power like that with an opinion that draws fine lines would be akin to trying to hold water with a net.”
After today’s hearing, the hope that a trial could proceed expeditiously now “seems fruitless, and the question is whether the Court will issue an opinion that will provide expansive, albeit not unlimited, immunity, which would be a giant step toward rejecting the idea the president is not a king, a fundamentally anti-constitutional principle,” the former federal prosecutor Harry Litman, the host of the podcast Talking Feds, told me.
In claiming absolute immunity from criminal prosecution, Trump’s lawyers relied heavily on the 5–4 1982 Supreme Court decision Nixon v. Fitzgerald, which ruled that former presidents could face civil suits only for actions that could not be defined as official, even under a very broad definition of that term.
Although providing that expansive protection from civil litigation, the Court in that earlier case did not address whether the president should enjoy comparable immunity from criminal prosecution. The majority opinion dropped only fleeting and somewhat contradictory breadcrumbs about the Court’s view on criminal prosecution. At one point, the decision implied that the president deserves less protection from criminal charges. But later, the decision omitted criminal charges when it listed means other than civil suits that could hold a president accountable for his actions.
The three-judge panel on the Washington, D.C., Circuit Court of Appeals, in its ringing ruling earlier this year denying Trump’s immunity claim, concluded that the Nixon v. Fitzgerald limits on civil cases should not apply to criminal allegations against a former president. At the hearing, though, Roberts openly disparaged the circuit-court opinion for failing to provide enough protection to a president.
Groups of both constitutional-law scholars and historians of early America filed briefs to the Supreme Court arguing that there is no evidence that the Founders intended to provide the sweeping protection Trump is seeking and asserting that they had consciously omitted from the Constitution any grant of immunity to the president for official acts. “The President’s susceptibility to prosecution was an express theme of the ratification debates,” the historians wrote in their brief. “Critical figures in multiple [state ratifying] conventions converged on the same understanding: The President can be prosecuted.”
To varying degrees, the Republican-appointed justices seemed to accept the idea that former presidents could be prosecuted in theory, while devoting much of their question time to minimizing the circumstances in which they actually would be. Today’s hearing validated the predictions of legal analysts who told me earlier this week that the conservative majority would be drawn to a version of the Fitzgerald distinction immunizing the president against legal challenge for some circle of acts within his official responsibilities but not against acts that fall outside that boundary.
“I think they will do what they should do, which is they will hold that Nixon v. Fitzgerald applies to criminal as well as civil matters against the president, which means that Trump will get part but not all of what he wants,” Michael McConnell, the director of the Constitutional Law Center at Stanford Law School, told me before the hearing. “Nixon v. Fitzgerald distinguishes between presidential acts that are within ‘the outer perimeter’ of his presidential authority and acts that are private. I think it is clear that some of what he is being charged with falls into each category.”
If, as seems likely after today’s hearing, the Court majority seeks to establish such a distinction between some official acts that are protected and private acts that are not protected, it would virtually extinguish the chances that Trump will face a trial before the November election on the charges that he tried to overturn the 2020 election.
“Even if it’s pellucidly clear that the standard [for immunity] wouldn’t apply to Trump, I do think he likely would get another trip back up and down the federal courts, very likely dooming the prospect of a trial in 2024,” Litman said.
The longer-term implications of a ruling providing immunity for some substantial portion of official conduct, though, could be even more profound. The hearing suggested that the conservative Supreme Court majority is unwilling to consider, or simply unconcerned, that the real-world political context of a second Trump term could undermine any distinction it draws between presidential behavior that is and is not protected from criminal prosecution.
“As we heard today, Donald Trump is trying to take the most maximal approach to executive power,” El-Mallawany told me. “If the Supreme Court is willing to give an inch, then I think he’ll take a mile in a second term.”
Trump has already made clear that he views presidential authority as essentially unlimited. Responding to the dramatic hypothetical that Judge Florence Pan raised during the proceedings in the D.C. Circuit Court, Trump’s lawyer D. John Sauer said that a president could not be criminally prosecuted unless first impeached and convicted even if he ordered SEAL Team Six to assassinate a political rival.
At today’s hearing, Sauer again insisted that Trump could not be criminally prosecuted for killing a rival, selling nuclear secrets to an enemy, or even staging a coup unless he was first impeached and convicted. “They took assassinating an opponent and upped it to a full-bore coup,” John Dean, the White House counsel under Richard Nixon who helped expose the Watergate scandal, told me after the hearing.
Even short of that extreme, Trump has indicated that in a second term he intends to send federal forces into blue states and cities over the objections of local officials and deploy the Justice Department and the FBI against his political opponents.
If he wins in November, Trump would inevitably interpret the victory as a public endorsement, or at least acceptance, of his views about presidential power. And all signs suggest Trump has already concluded that hardly any elected officials in his party have the stomach to confront him. That degree of loyalty functionally eliminates the possibility that Congress could impeach him and remove him from office, almost no matter what he does.
As El-Mallawany told me, that means the reality facing the Supreme Court as it considers this case is that a second Trump term would come only after “defeat at the ballot box, impeachment by Congress, and self-policing by the party” are all effectively eliminated as prospective checks on Trump’s actions.
If, against that backdrop, the Court also chooses to weaken rather than fortify the last legal barriers against egregious presidential actions, Trump could easily conclude that he faces few practical limits on his authority. Given Trump’s baseline inclination to view his presidential authority as virtually unlimited, Dean said he didn’t think the Court could distinguish between protected and unprotected presidential actions in a manner that will constrain Trump’s behavior if he wins again.
“That’s why it is very troublesome for the Court to try to fashion some sort of immunity even with the core functions [of the presidency], because it’s all hypothetical and speculative at this point as to what it would mean, and lawyers have a wonderful facility for finding permission for actions that are not really permissible,” Dean told me.
Justice Ketanji Brown Jackson, echoing such concerns, forcefully raised the risk in the hearing that broad immunity from criminal prosecution could leave a president “emboldened” to undertake illegal acts, because he would arrive in office aware that he was immune from criminal accountability. Maintaining the possibility of criminal charges, she argued, was essential to deterring a president inclined to misuse his or her authority.
But several justices in the conservative majority seemed more concerned, however implausibly, about the opposite risk. Justice Samuel Alito argued that opening a president to criminal liability would not deter illegal activity but actually increase the risk that he or she would break the law. In Alito’s somewhat head-spinning logic, a president who feared potential criminal prosecution after he left office would undertake illegal acts to stay in power and avoid that legal exposure.
After the hearing, the prospect that Trump would face trial before November seemed minimal. Barrett surprisingly joined Jackson in suggesting that while the courts sorted out which of a president’s official actions deserved immunity, a trial could proceed around the elements of Trump’s behavior that were clearly private in nature. However, four of the other Republican-appointed justices appeared entirely uninterested in that idea, and Roberts seemed more inclined to send the case back to lower courts.
As Harry Litman noted, those who went into the hearing wishing to preserve a preelection trial against Trump emerged from the proceedings reduced to hoping that the Court doesn’t eviscerate the possibility of criminal consequences for any president who breaks the law. Even a decision that allows Trump to delay any further criminal trials until after the election could look relatively small next to the consequences of a ruling that causes him to conclude that, if he wins again, the Supreme Court would lack the will to restrain him.
