Remarks from Supreme Court justices during oral argument on April 25 indicated they would adopt a narrower version of immunity than President Trump requested and send the case back to a trial court, experts told The Epoch Times.
“It seemed likely at the end of the argument that the Justices would reject the broad immunity argument being asserted by Trump,” Heritage Foundation Vice President John Malcolm told The Epoch Times via email.
He further speculated that they would “try to craft standards that would permit the prosecution of a lawless president while minimizing the likelihood that a president would constantly second-guess himself at times when action is most needed out of fear of potential prosecution once he leaves office.”
Much of the oral argument focused on the boundaries of immunity—both in how far a president could go in their criminality and the types of acts covered by immunity.
“I think the Justices will send the case back to the lower courts to determine whether the fake electors and events leading up to the Capitol riots were official acts,” former federal prosecutor Neama Rahmani told The Epoch Times via email.
“Justice Roberts was upset that the DC Court of Appeals ruled that a former president doesn’t enjoy immunity instead of addressing the official acts issue,” he added.
President Trump’s attorney, D. John Sauer, argued that presidents should enjoy immunity from criminal prosecution for acts that fell within the outer perimeter of their official duties. A caveat he added was that prosecution could proceed for official acts only if Congress had impeached and convicted the president over those allegations.
It’s unclear how the justices will define official acts, and during oral argument, Mr. Sauer clarified that not all of the acts covered in special counsel Jack Smith’s indictment were official. Some were private and therefore vulnerable to prosecution, in his view.
“I was a little surprised that Mr. Sauer for President Trump, particularly in his back and forth with Justice [Amy Coney] Barrett, was willing to concede that any number of the allegations in the indictment were private conduct,” Mark Miller, a senior attorney with Pacific Legal Foundation, told The Epoch Times.
However the justices define presidential immunity, remanding the case could lead to further delay in the trial, which was set to start in March.
“SCOTUS seems inclined to let this case go to trial, but wants to draw clear lines for future cases,” University of Michigan Law Professor Barbara McQuade said on X. She left the Trump administration as part of a wave of departures at the beginning of his term.
“Real question is timing. If Court is slow in deciding or demands findings of private vs official action, which themselves could be appealed, trial could be delayed past the election, and then Trump could derail case if he returns to office.”
Criminal Justice System
Both Justice Roberts and Michael Dreeben, who was representing Mr. Smith’s office, suggested that the appellate court decision contained a central holding that was tautological or redundant.“The court of appeals below, whose decision we’re reviewing, said, ‘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,’” Justice Roberts said.
“I think it sounds tautologically true ... and that, I think, is the clearest statement of the court’s holding, which is why it concerns me. As I read it, it says simply a former president can be prosecuted because he’s being prosecuted.”
Mr. Dreeben argued the Supreme Court should hold that presidents don’t enjoy absolute criminal immunity for official acts but instead could assert certain Article II arguments as defenses while facing prosecution.
Some of the justices’ questions focused on whether the criminal justice system was sound enough not to allow politicized prosecutions of presidents in the absence of some kind of immunity.
Justice Samuel Alito had an extended exchange with Mr. Dreeben in which he expressed concern about this and reiterated President Trump’s concern about cycles of recrimination occurring in future administrations.
“I think the Assistant Special Counsel [Michael Dreeben] did well in arguing that the current legal system works well,” Mr. Rahmani told The Epoch Times.
“Trump’s lawyers overreached by arguing that Trump has absolute immunity, especially when the justices presented the question in terms of official acts.”
John Shu, a constitutional law expert who served in both Bush administrations, suggested that Mr. Sauer could have pushed back on some of the justices’ hypotheticals, such as whether a president could order SEAL Team Six to assassinate a rival.
“I really felt like he could have pushed back with counter-hypotheticals such as, should a president have immunity if he essentially gives the Iranian government, which repeatedly has declared America to be a mortal enemy and the Great Satan, tens of billions of dollars that they can then use to fund terrorist groups and exploding suicide drones to be used against us and our allies?”
Eventual Opinion
Justice Neil Gorsuch underscored the stakes involved when he told Mr. Dreeben that the court would be “writing a rule for the ages.” In making their decision, the justices will likely consider its effect on separation of powers and how future presidents could face prosecution.“One thing was clear from the oral argument,” constitutional attorney Gayle Trotter told The Epoch Times via text. “The Justices view this case as bigger than Donald Trump. There were several themes that emerged in the argument, and the Court’s ruling in this case will need to navigate a number of challenging issues.”
She added that “the question of presidential immunity has profound implications for the Presidency under the Constitution. Does the President need to do his job looking over his shoulder and wondering if the next Administration will try to put him in jail for his choices?”
In remanding the case, the justices could direct the district court to analyze President Trump’s argument in light of their new standard for immunity. According to Mr. Miller, the district court could also use a special verdict form in which the jury is asked to distinguish between official and nonofficial conduct in weighing President Trump’s case.
“I can see the chief justice saying that there needs to be a special interrogatory verdict, and then maybe it comes up on appeal again if President Trump is convicted, which is a big if. But if he were to be convicted, he'll have a right to appeal that.”
Mr. Shu indicated to The Epoch Times that the Supreme Court’s decision could be messy whereby justices file multiple concurrences and a plurality, rather than majority, governs. More specifically, he speculated that at least one of the concurrences may focus on how courts should weigh a president’s intent, if at all, when deciding immunity, assuming it is even ascertainable.
Mr. Sauer had argued that inquiry into intent was inappropriate.
Justice Gorsuch waded into the issue of intent when he told Mr. Dreeben that all of a president’s activities “can be seen through the prism, by critics at least, of his personal interest in reelection.”
Mr. Miller told The Epoch Times: “I think that Justice Gorsuch [got] to the heart of that distinction of actions by the President to get himself reelected, versus actions by the president that are official. ... I mean, everything he does, if it’s in his first term in office, he wants to be reelected. And so it could be the most humdrum decision but at some level, he wants it to be well-received by the public.”
He added that “it’s easy to say that what ... President Trump did, between the Election Day, and January 6, was all designed to overturn the election, or alternatively to, as he would see it, to show that the election actually did go to him. But every president wants to win reelection.”
