From Military Coups to Selling Nuclear Secrets, Supreme Court Wrestles With Implications of Granting Trump Immunity

Can a President order a political rival’s assassination and avoid criminal prosecution? What if he sold nuclear secrets to a foreign adversary or staged a coup?

These are some of the hypothetical questions posed during oral arguments at the Supreme Court on Thursday as the Justices wrestled with the practical implications of what could happen if they grant former President Donald Trump immunity from criminal prosecution in special counsel Jack Smith’s election interference case against him.

“This case has huge implications for the presidency, for the future of the presidency, for the future of the country,” said Justice Brett Kavanaugh.

During nearly three hours of arguments in Trump v. United States, the Supreme Court Justices raised concerns about the broad implications for future Presidents depending on how they rule in this historic presidential power case, often avoiding discussing the specific allegations against Trump. 

"We're writing a rule for the ages," Justice Neil Gorsuch said. 

Many of the Justices seemed skeptical of Trump’s lawyer’s argument that a former President has absolute immunity from criminal prosecution for official acts related to the presidency. That, they suggested, could violate the bedrock legal principle that no one is above the law, and could turn the Oval Office into “the seat of criminal activity,” as Justice Ketanji Brown Jackson called it. She argued in a line of questioning that Presidents would have no incentive to follow the law they are duty bound to uphold if the Supreme Court granted them immunity from criminal prosecution. “I think that we would have a really significant opposite problem if … someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority, could go into office knowing that there would be no potential penalty for committing crime,” Jackson said.

Justice Elena Kagan offered hypothetical scenarios in which a President ordered his military to conduct a coup, or sold nuclear secrets to a hostile power abroad. Trump’s lawyer D. John Sauer argued the President couldn’t be held criminally accountable for those actions unless he were to be impeached by the House and convicted by the Senate first. “That sure sounds bad, doesn’t it?” Kagan replied.

Yet Justices also worried about the practical effects of the government’s argument that a President isn’t immune from such criminal liability. Justice Samuel Alito noted that a President is in a “peculiarly precarious position” given the high-stakes decisions he has to make and enormous amount of power he wields, and Justices Kavanaugh and Gorsuch both raised the specter of overzealous prosecutors targeting former Presidents after they leave office. “I’m not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives,” Gorsuch said. He raised a hypothetical scenario in which a President staged a peaceful civil-rights protest outside the Capitol that inadvertently delayed legislative business, and could be held criminally liable for that action. The Justices and Sauer also discussed whether the threat of criminal prosecution might constrain a President’s decision making or ability to govern.

At the heart of Trump’s argument before the Supreme Court was that his actions after the 2020 election fell under official conduct that should be protected rather than private actions, which all parties agree do not enjoy criminal immunity.

If the Supreme Court does find that there is at least some presidential immunity, the question that follows is where to draw the line between official and private actions—and into which category Trump’s actions in the Smith case fall.

In response to questioning from Justice Amy Coney Barrett, who seemed wary about granting absolute immunity, Sauer admitted that some of the allegations against Trump in the indictment are indeed “private” acts. Michael Dreeben, arguing on behalf of the government, said even if the Supreme Court finds some presidential immunity, Smith’s case could go forward against Trump with the charges that amount to “private” actions, including his alleged involvement in the fake electors scheme.

The high court’s decision—and how quickly it arrives—will help determine whether Trump will go to trial in his Washington, D.C. case before the November election.

Chief Justice John Roberts asked a series of questions suggesting he is skeptical of the appeals court decision earlier this year that found Trump did not have immunity. He raised the prospect of returning the case to the appeals court to make a determination of whether some of Trump’s acts are immune from prosecution, which would further delay the trial. “Why shouldn’t we send it back to the court of appeals?” Roberts asked Dreeben. “What concerns me is, as you know, the court of appeals did not get into a focused consideration of what acts we’re talking about or what documents we’re talking about.”

The Justices have already come under criticism for their delay in taking up Trump's appeal, waiting until the last day of the term for oral arguments. Some legal experts viewed the delay as a win for Trump, potentially jeopardizing the possibility of a trial before the upcoming election.

“The fact that the Court has now taken this case makes it exceedingly unlikely that the former President will be tried for his offenses on January 6 before the election in November 2024,” says J. Michael Luttig, former U.S. Court of Appeals Judge and assistant attorney general under George H.W. Bush. “Of course, the Court can decide cases quickly when it has to. It could hear this case tomorrow and could fairly easily produce an opinion one week later. That is not going to happen. The Court has all but told us and assured us that that will not happen.”

The election case in Washington is one of four felony cases Trump is facing while he challenges President Joe Biden for re-election. The Supreme Court’s ruling will almost certainly apply to Trump’s other federal cases in Florida and Georgia, where he also faces the prospect of criminal prosecution should the Justices rule against his immunity bid. (It will not affect his hush-money case in New York, which doesn’t concern official actions Trump made while President.)

The immunity case has added more pressure on the Supreme Court, which has a 6-3 conservative majority that includes three Justices Trump appointed. Just last month, the court gave Trump an election-year boost when it ruled that Colorado could not kick him off the ballot.

Trump took to social media on Thursday morning to echo arguments from his court brief, claiming that by denying a President immunity he would be subjected to "extortion" from political opponents. "If a President doesn’t have IMMUNITY, he/she will be nothing more than a 'Ceremonial' President, rarely having the courage to do what has to be done for our Country," Trump wrote.

Trump’s legal team has often cited a 1982 Supreme Court ruling—Nixon v. Fitzgerald—that recognized absolute immunity from civil suits for Presidents. But a federal appeals court had previously rejected Trump’s immunity claim, asserting that as a private citizen, he is not shielded from criminal prosecution like he is during his presidency.

Originally, U.S. District Judge Tanya Chutkan had set Trump’s trial in the Smith case to begin on March 4, but Trump’s appeal to the Supreme Court resulted in a delay in the proceedings, paving the way for his New York hush-money case to be the first to reach trial.

The federal indictment from Washington, D.C. charges Trump with four counts: conspiracy to defraud the United States, obstruction of an official proceeding, and two other charges related to his efforts to overturn the 2020 election results, culminating in the Capitol riot on January 6, 2021. Prosecutors allege that Trump participated in a plot to submit fake election certificates to Congress, aiming to invalidate Biden’s win. Trump has pleaded not guilty to all charges.