U.S. Supreme Court

Takeaways from the Supreme Court argument on Trump's criminal immunity

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Former President Donald Trump and supporters

Former President Donald Trump greets construction workers and union members at the construction site for the new JPMorgan Chase headquarters in midtown Manhattan before going to Manhattan criminal court in New York. (Jabin Botsford/The Washington Post)

The Supreme Court spent hours Thursday morning debating former president Donald Trump’s claim of immunity from prosecution for allegedly conspiring to undo the results of the 2020 election. The ruling, which could come in June, could do far more than chart the course of Trump’s case; it may forever alter the boundaries of presidential power.

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

As they try to write such a rule, here are the big takeaways from the oral argument:

The justices seemed to generally agree, in broad terms, that Trump does not have blanket immunity

“There is no perfect system,” assistant special counsel Michael Dreeben told the high court as he argued for them to allow the prosecution of Trump, the presumptive 2024 Republican presidential nominee, to proceed. He faces four felony counts for allegedly trying to block Joe Biden’s 2020 victory.

Dreeben told the justices the current legal system “works pretty well.” It may need some fine tuning in the form of whatever ruling the court makes, he said, but not “the radical proposal” offered by Trump’s lawyer—that Trump, and all presidents, operate with broad protection from criminal prosecution.

“I agree,” said Amy Coney Barrett, a Trump appointee.

The chief justice does not like the appeals court ruling on this issue

Chief Justice John G. Roberts Jr. slammed the sweeping decision by the U.S. Court of Appeals for the D.C. Circuit that denied Trump’s immunity claim. If a majority of the nine-justice panel agrees with him, that could push Trump’s trial well past the election.

Roberts characterized the February decision reached by the appeals court as saying in essence that “a former president can be prosecuted because he’s being prosecuted.” He called that “circular” reasoning and added, “it concerns me.”

The chief justice then floated a proposal that could make the entire issue more complicated and time-consuming, rather than less.

“Now, you know how easy it is in many cases for a prosecutor to get a grand jury to bring an indictment,” Roberts said. “Why shouldn’t we either send it back to the Court of Appeals or issue an opinion making clear that that’s not the law?”

If the Supreme Court did send the question of presidential immunity back to the appeals court, that would likely eat up weeks or months—potentially opening a can of legal worms that could take a lot of time for judicial debate and decisions.

Conservative justices seem more focused on future presidents than Trump’s future

The Supreme Court ruling is considered hugely important to Trump’s political and legal chances, but conservative justices kept insisting they were more worried about all future White House officeholders than the specific fate of the 45th president.

Justice Brett Kavanaugh said their ruling will have “huge implications” for the future of the presidency, and the country, adding: “I’m not as concerned about the here and now, I’m more concerned about the future.”

Kavanaugh said he was worried that the trend of prosecutors investigating presidents is only growing. “It’s not going to stop, it’s going to cycle back and be used against the current president and the next president and the next president after that,” he said.

Liberal justices say Trump’s immunity claims would create a lawless king

The three liberal justices also focused much of their attention on the future implications of an immunity ruling—but they worried most that granting Trump protection in this case would subvert the very premise of the founding of the United States, to escape the tyranny of kings.

“The Framers did not put an immunity clause into the Constitution. They knew how to,” said Justice Elana Kagan. “They were reacting against a monarch who claimed to be above the law. Wasn’t the whole point that the president was not supposed to be above the law?”

Trump lawyer John Sauer said the Constitution was designed to build “checks on the presidency,” and did not describe a format for criminal prosecution of a president.

While the conservatives fretted that ruling against Trump would create a permanently hobbled presidency, the liberals fretted that giving him significant immunity would encourage a new kind of criminal presidency without consequence.

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