Trump’s Eerie Immunity Hearing
Terry H. Schwadron
April 27, 2024
Simply put, it was other-worldly to listen to Supreme Court justices debating what self-serving acts are sufficiently “official” for a former president while the same former president was in a courtroom in New York where witnesses were presenting evidence of falsifying election campaign documents.
To most of us, the claim by Donald Trump for absolute immunity for any act as president — or as former president — up to and including murder sounds crazy. At times, it was impossible to tell whether the justices found anything wrong with a former president putting himself above the law even for selling an ambassadorship or a political assassination order of a rival.
It was a hearing that promised both an historic view of presidential power and our democratic rules, and the possible dismissal of criminal charges against Trump — or at least further delay towards reducing the charges that he faces.
For the nine Supreme Court justices, though, the claim was a chance to jump into a detailed stew over how to go about separating “private” or “official” acts as part of public authority as president, as if anything “official” means the president can be exempt from the threat of criminal prosecution for breaking the law.
What was unstated, but clear throughout the debate, was the running election timeclock. The Supreme Court’s tardiness in takin up the immunity claim on its last day of arguments — and the likelihood that there will be no decision until this summer — will mean that there will be no trial on charges against Trump related to schemes and actions related to the Jan. 6, 2021, riots before the November elections.
Even if the justices favor a more detailed review at the district court level to sort out the official-private acts differences, it will become difficult to conduct a trial before the election. The timeclock is relevant because Trump vows to kill the case against himself should he win the election.
It’s difficult to see set of claims more “private” — meaning for his own personal gain rather than for the sake of the nation.
Narrowing the Differences
Lawyers for both sides agreed that there is a “core” of official acts by a president that are beyond criminal consideration, but they disagreed about how big that core is definitionally. The argumentative questions from the justices were, as always, replete with hypotheticals that grew increasingly strange.
Several justices suggested through their questions that presidents should indeed enjoy some level of immunity from criminal prosecution. The questions seem to be how to decide what actions are protected from criminal charges.
Through the murkiness of the language of law, both sides also agreed that the law provides for various levels of narrowing facts, intentions, and adjudicating the officialness of the acts for the purpose of limits of immunity. But they disagreed widely about whether campaigning or conversations with Congress or state officials about campaigns fall within that core.
Of course, much of the substance of the several criminal cases filed against Trump revolve around running for office or remaining in office or acting to affect elections and results.
Michael Dreeben, speaking for the government, came under harsh questioning from the court’s more conservative justices, based on cases real and imagined that might impinge on presidential ability to act. Justices Samuel Alito and Brett Kavanaugh suggested that the fraud conspiracy statute — central to the charges Trump is facing — is vague. Justice Neil Gorsuch questioned an obstruction statute should apply to Trump’s alleged disruption of the certification of the election.
Likewise, questions seemed to pinpoint determining motive or intentions in applying criminal prosecution to actions, and concern about limiting prosecutions by political opponents. No one asked, but Trump clearly uses just such arguments to pursue criminal charges against Joe Biden, his family, and administration, as part of his campaign.
By contrast, questions from more liberal justices seemed to focus on worries about the dangers of a rogue president who might see a finding of absolute immunity as a lure to “embolden” a lawless president, as Justice Ketanji Brown Jackson said.
Revisiting the Question
In voting to hear the immunity claim, the justices said it would decide “Whether 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.” That wording is beyond what either Trump or the government had asked.
There is a suggestion there that the justices could reject absolute immunity but call for some limited protections. It also points to sending the case back to lower courts for language to distinguish acts that are official and beyond reach of prosecutors and those that promote private concerns.
There was a lot of talk about future presidents rather than focus on the current charges against this former president.
Justice Amy Conant Barrett suggested that if prosecutors want to take Trump to trial quickly, they could drop those parts of the indictment that seem to be about “official” acts as president and proceed with those that reflect Trump’s private actions taken as a candidate for office.
Overall, however, it seemed clear only that conservatives concerns on the court will end up delaying resolution of issues facing Trump before this election.
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