April 25 (UPI) — The U.S. Supreme Court on Thursday heard oral arguments on former President Donald Trump‘s claims of presidential immunity from the election interference case against him.
Much of the three-hour hearing focused on whether there is a distinction between official presidential acts and private conduct regarding Trump’s alleged attempts to overturn the 2020 election.
After a series of hostile questions, Trump attorney D. John Sauer conceded that some of the former president’s alleged conduct were private, contradicting Trump’s earlier claims that the entire prosecution ought to be thrown out.
Justice Amy Coney Barrett, a Trump judicial nominee in 2020, was the first to hone in on Sauer’s distinction between official and private acts.
When asked whether Trump’s alleged conspiring with attorneys to spread bogus election fraud claims was an official or private act, Sauer conceded such conduct was private and not subject to legal immunity.
Justice Department attorney Michael Dreeben, who argued on behalf of special counsel Jack Smith, told justices it would be possible to prosecute Trump even if official acts were omitted.
Conservative justices raised questions about the broad implications for the office of president, arguing that without some form of presidential immunity, past and future presidents could be unjustly subject to politically motivated prosecutions.
Conservative Justice Samuel 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?”
Justice Brett Kavanaugh, another Trump appointee who also was part of the Ken Starr special prosecutor team that investigated President Bill Clinton in the 1990s, shared similar concerns, arguing that if former presidents are subject to prosecution, “it’s not going to stop.”
Dreeben acknowledged that some criminal statutes might need to be interpreted differently for former presidents.
While conservative justices questioned the scope of a president’s legal immunity, the court’s three liberal justices targeted Trump’s “absolute” immunity claims.
Justice Elena Kagan asked Sauer if a president hypothetically ordered a military coup, whether that could be prosecuted under Trump’s claim.
Sauer said a president would have to be impeached and convicted before he could be charged criminally, but the president could be immune if it were to happen in their final days in office and there was not enough time to impeach or convict.
When Kagan asked if it then counted as an “official” act, Sauer replied, “it could well be.”
Justice Ketanji Brown Jackson argued that Trump’s claim would put presidents above the law.
“I’m trying to understand what the disincentive is from turning the Oval Office into the seat of criminal activity in this country,” she said.
Smith’s indictment alleged Trump “organized fraudulent slates of electors” in states that he lost in 2020 to “obstruct the certification of the presidential election.”
When asked by Justice Sonia Sotomayor if putting forward fake electors might fall under an official act, Sauer said Trump “absolutely” has the right to do so.
Saurer, who used the term “so-called fraudulent electors,” referenced the 1876 presidential election, where there were well-founded cases of fraud and multiple slates of electors in several key states.
With oral arguments over, the Supreme Court indicated it’s unlikely to issue a ruling soon, making it even less likely that Smith can bring his case against Trump to trial before the November election.
Trump, meanwhile, is confined to New York City due to his ongoing criminal hush-money trial. He has been holding campaign events throughout the city when not in court.
The former president earlier on Thursday visited a midtown Manhattan construction site, where he told reporters “a president has to have immunity, otherwise you just have a ceremonial president.”
