SCOTUS approach to Trump's immunity claim likely to delay D.C. case further

Although Trump appeared likely to lose his argument for absolute immunity, the court's handling of the case will likely give him something else he desperately wants: Delay.

A majority of the U.S. Supreme Court seemed likely Thursday to reject Donald Trump’s request for absolute criminal immunity from criminal prosecution for life for acts taken in office. And yet, as a result of both how the justices framed the case and where the conservative justices focused their questions, the end result appeared just as likely to be more delay of Trump’s prosecution on charges relating to his efforts to overturn the 2020 election.

In the last day of scheduled arguments at the U.S. Supreme Court this term, the justices considered “whether and … to what extent” a former president has immunity from criminal prosecution for official acts in more than two-and-a-half hours of arguments.

“There is no immunity that is in the Constitution, unless this Court creates it today,” Michael Dreeben, arguing for the government against Trump’s claims on Thursday, bluntly told the justices of that court.

Although Trump’s absolute immunity argument looks poised to fail, Thursday’s arguments nonetheless were a disconcerting vision of how far afield the conservative majority is willing to go — and push cases — to turn the law into what they want it to be.

Coming out of Special Counsel Jack Smith’s prosecution of Trump in federal court in D.C. for actions in the lead up and aftermath of January 6, 2021, Trump raised the issue of absolute presidential immunity in an effort to have the case dismissed. Both the district court and U.S. Court of Appeals for the D.C. Circuit rejected the claim out of hand.

When Trump asked to the Supreme Court to consider the issue, he repeated that argument — asking the court whether “absolute presidential immunity” applies to Trump to bar his criminal prosecution.

When the court agreed to hear Donald Trump v. United States, however, the justices expanded the issue, asking “[w]hether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

Even with that, though, Trump’s lawyers spent 27 of 40 pages of their arguments in their merits brief pressing their fundamental claim that “a former President has absolute immunity from criminal prosecution for acts within the ‘outer perimeter’ of his official responsibility.” When John Sauer began his arguments for Trump on Wednesday morning, he continued that: “Without presidential immunity from criminal prosecution, there can be no presidency as we know it.”

That could have — and should have — been the end of it. Trump argued he has absolutely immunity. That was the entirety of his motion to dismiss the case filed in district court.

He either does or doesn’t have absolute immunity, and text, history, and practice strongly support the view of the special counsel’s office — as detailed in their brief at the court — that he does not.

Moreover, if he doesn’t — and as Dreeben made clear in his argument for the government — any other challenge based on Trump having been president could either be raised as an as-applied challenge to some specific element of the prosecution, through consideration of a public authority defense, or in connection with jury instructions addressing how evidence presented is to be considered by the jury.

Despite that, the vast majority of the 130 minutes of arguments went much further than that, with Justices Sam Alito, Neil Gorsuch, and Brett Kavanaugh in particular focused on questions relating to whether there is any immunity for former presidents — or immunity for some acts — and what happens here and in other cases if the court decides that.

The end result likely will come down to where Chief Justice John Roberts and Amy Coney Barrett land on those issues — with most possible outcomes likely to delay any trial in the Trump’s D.C. case beyond the 2024 election.

Throughout all of it, though, perhaps Justice Sonia Sotomayor put the counterargument to Trump’s legal claim best when she remarked, “Hard to imagine that a president who breaks the law is faithfully executing the law.”

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Attention on everything but Trump’s claim

As Dreeben reminded the justices near the end of his argument of Trump’s claim here, “He's put all of his eggs in the absolute immunity basket.”

And yet, much of the morning was spent with justices asking questions about how to distinguish official acts from unofficial or private acts, considerations of “office-seeker” versus “officeholder,” the “outer perimeter” of official presidential acts, the “core powers” of the presidency, and other matters that should not have been necessary to consider if the justices rejected Trump’s absolute immunity question.

But, with the expanded question presented — which neither Trump nor Smith had sought — this was what we got. And, as made clear through a question Roberts asked, what this means for Trump is that, a decision that there is any immunity could end in more delay of his criminal trial.

When Roberts asked about the consequences of what appeared to be a concession from Sauer to Barrett that some acts alleged in the indictment against Trump are private acts, Sauer said that “the Court should remand — or address itself — but remand for a … determination [of] what's official and what's private.”

In short: More delay.

Not only were the conservatives, for the most part, looking far afield of Trump’s actual claims — many questions were outright looking away from Trump.

Rather than focusing on the problem of a president committing crimes, both Gorsuch and Alito asked questions that focused concerns about what might happen after a ruling that former presidents do not have absolute criminal immunity — with Gorsuch asking about self-pardons and Alito later following up on that.

In a particularly astounding moment, Alito raised a concern, not about Trump’s effort to hold on to power, but about how holding Trump accountable for doing so in 2020 might result in … a later president doing exactly what Trump did.

Talking about “what is required for the functioning of a stable democratic society,” Alito asked, “if an incumbent who loses a very 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?”

Dreeben responded, “I think it's exactly the opposite, Justice Alito.”

Several justices, often explicitly, were trying to take attention off of Trump — and, implicitly, off of how their decision would affect him and his trial.

“I'm not concerned about this case so much as future ones, too,” Gorsuch told Dreeben at one point.

“[L]ike Justice Gorsuch, I'm not focused on the here and now of this case. I'm very concerned about the future,” Kavaugh soon thereafter echoed.

“[A]s I said, I'm not discussing the particular facts of this case,” Alito told Dreeben, later adding, “I want to talk about this in the abstract because what is before us, of course, does involve this particular case, which is immensely important, but whatever we decide is going to apply to all future presidents.”

It is, of course, true that every Supreme Court case and arguments look beyond the facts of the case because of the effects of a ruling. But the decision to move beyond Trump’s argument to another set of arguments altogether was not only unnecessary but, as Justice Ketanji Brown Jackson pointed out, not wise to rule on given these facts.

“[W]e've a lot of talk about drawing the lines,” she told Dreeben, summarizing those discussions, then asking, “[I]f we were going to do this kind of analysis, try to figure out what the line is, we should probably wait for a vehicle that actually presents it in a way that allows us to test the different sides of the standard that we'd be creating, right?”

Dreeben, who has argued before the justices more than 100 times, responded simply, “I don't see any need in this case for the Court to embark on that analysis.”

If a majority of the court — which likely will depend on where Roberts and Barrett land — does decide to lay out answers to these questions that go beyond the absolute immunity claim that Trump has been arguing, the result could have far-reaching effects with no real fact pattern or lower-court ruling to help make clear why the court is drawing the lines wherever it chooses to draw them.

As at the D.C. Circuit, many of Sauer’s answers to hypotheticals — and even his view of what elements of the indictment are official acts — would, if affirmed by courts, lead to a hyper-empowered, largely unaccountable presidency. An office for which Trump is running yet again.

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The deception continues

One day after fake Trump 2020 electors in Arizona — and several Trump campaign officials and allies — were indicted in connection with the fake electors scheme in that state, Sauer continued Trump’s 2020 election deception on Thursday.

When Sotomayor asked him a question about the “president insisting and creating a fraudulent slate of electoral candidates … knowing that the slate is fake, that they weren't actually elected, that they weren't certified by the state,” Sauer responded, “I dispute that characterization.”

Although the indictment calls them “fraudulent,” he continued, “On the face of the indictment, it appears that there was no deceit about who had emerged from the relevant state conventions, and this was being done as an alternative basis.”

This is circular reasoning that would not be seen that way had then-Vice President Mike Pence done as Trump wished on Jan. 6, 2021. Sauer could only argue on Thursday that that was “no deceit” because the rule of law won the day and Pence refused to cave.

And yet, more than three years later, Trump’s allies — including his lawyer in response to a question at the Supreme Court — continue to deny that reality.

Although Sauer, with the help of a lopsided bench, might have secured more delay on Thursday for his client’s trial, he also made the case for why Trump must face accountability for his actions trying to overturn the 2020 election.