On Thursday, the nine justices on the U.S. Supreme Court tackled a question “for the ages” in the Trump v. United States immunity case arguments. But after nearly two hours and 40 minutes of questioning, the case’s outcome seems uncertain.
The case came to the Court on an accelerated basis. In August 2023, a grand jury indicted former President Donald Trump on four charges related to his actions after the 2020 presidential election. On Feb. 6, 2024, the U.S. Court of Appeals for the D.C. Circuit ruled that Special Counsel Jack L. Smith could move forward with a trial. On Feb. 28, 2024, the Supreme Court granted a stay of that decision, and accepted review of the case, holding oral arguments in the case on April 25.
Link: Read the Court’s Transcript of Arguments
The justices began their questioning by asking Trump’s counsel what defines the official acts of a president; which acts are within the president’s official duties; and what is the extent of liability of former presidents to criminal prosecution for conduct occurring while in office.
Justice Clarence Thomas posed the first question to Trump’s attorney John D. Sauer, by asking him to define how the justices could define what constitutes official presidential acts. That started a series of hypothetical debates about what presidential conduct could fall into this category, from a president appointing an ambassador in exchange for a bribe; to a president issuing a self-pardon, or pardoning a former president, such as Gerald Ford’s pardon of Richard Nixon; to a president ordering the assassination of a political opponent or ordering the military to stage a coup.
The justices were attempting to determine where to draw the line in order to determine how an official act—such as appointing an ambassador—could be disentangled from a private action that could be subject to prosecution, like accepting a bribe, and how a court could evaluate a criminal indictment accordingly.
For example, Justice Elena Kagan posed an unusual hypothetical to Sauer related to his argument that the impeachment conviction was required before a former president faced criminal charges. “Let’s say [a] president who ordered the military to stage a coup, he’s no longer president, he wasn’t impeached, he couldn’t be impeached. But he ordered the military to stage a coup. And you’re saying that’s an official act?”
Justice Sonia Sotomayor offered a similar hypothetical to Sauer: “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?”
Justice Amy Coney Barrett also asked Sauer if acts related to the Trump indictment were private acts taken by the former president. “Petitioner conspired with another private attorney who caused the filing in court of a verification signed by Petitioner that contained false allegations to support a challenge. Private?” she asked Sauer. “That also sounds private,” he responded.
Defining the Immunity Question
The justices further drilled down on the difference between absolute versus limited immunity for a president, and the difficulty of defining actions taken in extraordinary circumstances while president that could otherwise be seen as illegal if done for personal reasons.
Justice Ketanji Brown Jackson asked how Trump’s absolute immunity claim related to the precedent of the Nixon pardon, and how it related to a seeming longstanding understanding that presidents could be subject to prosecution, and might need a pardon to prevent it: “So what was up with the pardon for President Nixon?” she asked. “I mean, if everybody thought that presidents couldn’t be prosecuted, then what was that about?
Another line of questioning from Justice Neil Gorsuch was about a possible set of immunity rules based on a District of Columbia appeals court decision, Blassingame v. Trump, when two U.S. Capitol Police officers sued Trump for damages after the Jan. 6 riot.
The issue in Blassingame was whether Trump had demonstrated an entitlement to total “official-act immunity” for his actions leading up to and on Jan. 6, 2021. The court held in Blassingame that Trump did not have civil immunity for actions taken as a political candidate, and it drew a civil immunity distinction the president as an office holder and actions taken in an unofficial capacity, which did not qualify for official-act immunity.
Justice Gorsuch also noted the importance of any action taken by the Court in the immunity case. “We’re writing a rule for the ages,” he told Justice Department Counselor Michael Dreeben. Justice Brett Kavanaugh made similar comments: “This case has huge implications for the presidency, for the future of the presidency.”
Chief Justice John Roberts also questioned the appeals court decision presented to the Court. “The Court of Appeals below, whose decision we are 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,” said Roberts, who told Dreeben he was concerned about the court’s logic.
A telling moment came at the end of the arguments, when Chief Justice Roberts asked Trump’s attorney, Sauer, if he wanted time for a final rebuttal. “I have nothing further, Your Honor,” he responded.
The Court now faces a question of timing with its decision, since absent a clear-cut quick ruling on the immunity question, the case could head back to the lower courts for reconsideration or for trial. If the decision comes in late June, experts do not expect the proceedings to conclude before the presidential election.
There was some consensus from Court watchers that Chief Justice Roberts could cast the deciding vote.
Scott Bomboy is the editor in chief of the National Constitution Center.
