--- title: Supreme Court Wrestles With Implications of Granting Trump Immunity description: The Justices seemed skeptical of Donald Trump’s argument that a former President has absolute immunity from criminal prosecution for official acts. canonical: https://time.com/6971072/supreme-court-donald-trump-immunity-case-arguments/ author: Nik Popli article:opinion: false article:content_tier: free article:published_time: 2024-04-25T18:17:39.000Z article:modified_time: 2026-10-19T07:41:59.171Z article:section: Politics og:title: From Military Coups to Selling Nuclear Secrets, Supreme Court Wrestles With Implications of Granting Trump Immunity og:description: “This case has huge implications for the presidency, for the future of the presidency, for the future of the country,” said Justice Brett Kavanaugh. og:url: https://time.com/6971072/supreme-court-donald-trump-immunity-case-arguments/ og:site_name: TIME og:image: https://static.time.com/v3/assets/bltea6093859af6183b/blt411879bf658897dd/698a560686f68e23a36f5095/GettyImages-2149546420.jpg?branch=production&width=1024&quality=75&auto=webp&crop=16:9 og:image:width: 1024 og:image:height: 576 og:image:alt: US-VOTE-JUSTICE-TRUMP-IMMUNITY og:type: article twitter:card: summary_large_image twitter:title: From Military Coups to Selling Nuclear Secrets, Supreme Court Wrestles With Implications of Granting Trump Immunity twitter:description: “This case has huge implications for the presidency, for the future of the presidency, for the future of the country,” said Justice Brett Kavanaugh. twitter:image: https://static.time.com/v3/assets/bltea6093859af6183b/blt411879bf658897dd/698a560686f68e23a36f5095/GettyImages-2149546420.jpg?branch=production&width=1024&quality=75&auto=webp&crop=16:9 ---  # From Military Coups to Selling Nuclear Secrets, Supreme Court Wrestles With Implications of Granting Trump Immunity > Sponsored content. 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It explains the politics, personalities and power dynamics behind the headlines, twice a week. #### Where can I get analysis of Washington politics by email? D.C. Brief is TIME's free Washington politics newsletter, available at time.com/newsletters. It is written by a TIME senior correspondent who covers the capital full time. #### Who writes TIME's D.C. Brief? Philip Elliott, a senior correspondent at TIME, writes D.C. Brief. #### Is D.C. Brief free? Yes. D.C. Brief is free at time.com/newsletters. ### Sources * TIME Newsletters: [time.com/newsletters](/c/time-nl-dcbrief-2026q3/newsletters?i=9d00e407-5830-4c12-ad72-a574d7bc74be&cr=time-nl-dcbrief-2026q3-v1) ## Video: Supreme Court to Decide Whether Donald Trump Can Be Criminally Prosecuted [Watch (HLS stream): Supreme Court to Decide Whether Donald Trump Can Be Criminally Prosecuted](https://cdn.jwplayer.com/manifests/mO4XFifj.m3u8) (10:59)  _Published 2024-04-25. Donald Trump is currently a criminal defendant in a New York state trial. But on Thursday, his lawyers will argue before the Supreme Court that as a former President he's largely immune from criminal prosecution, setting the stage for one of the most pivotal decisions on presidential power in a generation._  by [Nik Popli](https://time.com/author/nik-popli/)  ## Nik Popli Staff Writer Apr 25, 2024 6:17 PM UTC Donald Trump is currently a criminal defendant in a New York state trial. But on Thursday, his lawyers will argue before the Supreme Court that as a former President he's largely immune from criminal prosecution, setting the stage for one of the most pivotal decisions on presidential power in a generation.  by [Nik Popli](https://time.com/author/nik-popli/)  ## Nik Popli Staff Writer Apr 25, 2024 6:17 PM UTC 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](https://time.com/6970029/donald-trump-supreme-court-immunity-case/) 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](https://time.com/6301112/trump-criminal-cases-status/) 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](https://time.com/6965419/trump-hush-money-trial-legal-questions/), 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](https://time.com/6837476/supreme-court-donald-trump-ballot-colorado/). 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 criminalprosecution 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. ## Transcript we will hear argument this morning in case 23939 Trump versus United States, which is our Mr. Chief justice, and may it please the court. Without presidential immunity from Criminal prosecution there can be no presidency as we know it. For 234 years of American history. No president was ever prosecuted for his official Acts. The framers of our constitution viewed and energetic executive as essential to securing Liberty. If a president can be charged put on trial and imprisoned for his most controversial decisions. As soon as he leaves office that looming threat will distort the president's decision-making precisely when bold and fearless action is most needed Mr. Chief justice, and may it please the court. This court has never recognized absolute criminal immunity for any public official petition or however claims that a former president has permanent criminal immunity for his official acts unless he was first impeached and convicted his novel Theory would immunize former presidents for criminal liability for bribery treason and Sedition murder and hear conspiring to use fraud to overturn the results of an election and perpetuate himself in power. Such presidential immunity has no foundation in the Constitution the framers Knew Too Well, the dangers of a king who could do no wrong. They therefore devised a system to check abuses of power, especially the use of a pixel power for private gain pure. The executive branch is enforcing Congressional statutes and seeking accountability for petitioners alleged misuse of official power to subvert democracy that has a compelling public interest in response petitioner raises concerns about potential abuse has but established legal safeguards provide layers of protections with the article three courts providing the ultimate check. The existing system is a carefully balanced framework that protects the President but not at the high constitutional cost of blanket criminal immunity that has been the understanding of every president from the framing through Watergate and up to today. This court should preserve it. I welcomed the Court's questions. Mr. Driven odd, does the president have immunity or are you saying that there's no immunity presidential immunity even for official a yes stuff is Thomas, but I think that it's important to put in perspective the position that we are offering the court today. What petitioner is asking for is a broad blanket immunity that would protect the president a former president from any criminal exposure absent impeachment and conviction, which is never happened in our history. And we submit that is not necessary in order to assure that the president can perform all of the important tasks that the constitution were posted in him either send it back to the court of appeals or issue an opinion making clear that that's not the law in the court of appeal's judgment and I do think that there are layered safeguards that the court can take into account that will ameliorate concerns about unduly chilling presidential conduct that concerns us. We are not endorsing a regime that we think will expose former presidents to criminal prosecution in bad faith for political Economist without adequate evidence a politically driven prosecution would violate the constitution underweight versus United States. What concerns me is as you know, the court of appeals did not get into a focus consideration of what Acts were talking about. Where what documents were talking about because of its adoption of what you turned in? I agree quite correctly as a tautological statement because the fact of prosecution was enough enough to take away any official Community the fact of prosecution they had no need to look at what course is normally look at when you're talkin about a privilege or immunity questions. I think I would take a shower Master Chief Justice with the idea of taking away immunity. There is no immunity that is in the Constitution unless this cord creates it today there certainly is no textual Community. We do not submit that that's the end of the story United States vs. Nixon wasn't to text Julie based case. Neither was Nixon vs Fitzgerald we endorse both of those Holdings, but what is important is that no public official has ever had the kind of absolute criminal immunity that my friend speaks of even with respect to the speech or debate clause. It's very narrow its focus on legislative acts. It's not focused on everything that a congressman does and it responds to a very specific historical circumstances that basically involved the two other branches of potentially harassing legislators and preventing them from doing their jobs. That's why it ended up in the Constitution nothing like that ended up in in the constitution for the president and that's because one of the chief concerns of the framers was the risk of presidential misconduct make a lot of tough decisions about enforcing the law and they have to make decisions about questions that are unsettled and that make decisions based on the information available. You really did did I understand you to say well, you know, he makes a mistake. He makes a mistake. He's subject to the criminal laws. Just like anybody else, you know that he's in his special. Do yearly precarious position? He's in a special position for a number of reasons one is that he has access to legal advice about everything that he does. He's under a constitutional obligation to these supposed to be faithful to the laws of the United States and the Constitution of the United States and making a mistake is not what lands you in a criminal prosecution. There's been some talk about the statutes order a shoe. In this case. I think they are fairly described as malaman say statutes engaging in conspiracy to defraud the United States with respect to one of the most important functions namely the certification of the next president to dispute that particular application of the conspiracy behind states of the particular facts here, but would you not agree that that is a peculiarly open ended. Statutory provision in that that fraud under that provision unlike under most other flight Provisions does not have to do it doesn't require any impairment of a property interest and is designed to protect the functions of the United States government and it's difficult to think of a more critical function than the certification of who won. The election is accepting the bribe is in an official app, but appointing an ambassador is certainly within the official responsibilities of the president. So, how could you how does your official Acts or the official acts border Foundry coming to play when it's going to be official assuming that the present is Innocent? But the whole question is whether he's going to be found innocent or guilty. I am having a hard time thinking. That creating false documents that submitting false documents that are ordering the assassination of arrival that accepting a bribe and a countless other laws that could be broken for personal gain that anyone would say that it would be reasonable for president or any public official to do that. Very persuasively in Fitzgerald that the allegation that this particular Act Would be done for an unlawful purpose or was unlawful could be made in every case. And therefore if that were the doctrine that the allegation of improper purpose is what the prize be objective when the president is using the trappings of his office to achieve a personal a game then he's actually not acting officially even if the doctrine was absolute immunity the potential for criminal liability is taken off the table wouldn't there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they're in office is right. Now the fact that we're having this debate because oh well see his said that presidents might be prosecuted presidents from the beginning of time have understood that that's a possibility that might be what has kept this office from turning into the kind of crime Center that I'm envisioning. Once we say no criminal liability. Mr. President, you can do whatever you want. I'm worried that we would have a worse problem than the problem of the president feeling constrained to follow the law while he's in office. I respectfully disagree with that because it is that we would have a really significant opposite problem. If the president wasn't show 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 crimes. I'm trying to understand what the distance sensitive from turning the Oval Office into you know, that the seat of criminal activity in this country to question is community at least expects to extent that it raises the Green Cross usual question that triggers the clear statement rule to show question. You are asking us a constitutional question here. So it doesn't even make sense to talk about clear statement and rule the way that it's come up in the context of an immunity question. ```json [{"@context":"https://schema.org","@type":"NewsArticle","@id":"https://time.com/6971072/supreme-court-donald-trump-immunity-case-arguments/","mainEntityOfPage":{"@type":"WebPage","@id":"https://time.com/6971072/supreme-court-donald-trump-immunity-case-arguments/"},"headline":"From Military Coups to Selling Nuclear Secrets, Supreme Court Wrestles With Implications of Granting Trump Immunity","datePublished":"2024-04-25T18:17:39.000Z","dateModified":"2026-10-19T07:41:59.171Z","description":"“This case has huge implications for the presidency, for the future of the presidency, for the future of the country,” said Justice Brett Kavanaugh.","url":"https://time.com/6971072/supreme-court-donald-trump-immunity-case-arguments/","keywords":["Supreme Court","News","News Desk"],"thumbnailUrl":"https://static.time.com/v3/assets/bltea6093859af6183b/blt411879bf658897dd/698a560686f68e23a36f5095/GettyImages-2149546420.jpg?branch=production&width=1200&quality=75&auto=webp&crop=1200:675&height=675","author":[{"@type":"Person","name":"Nik Popli","jobTitle":"Staff Writer","url":"https://time.com/author/nik-popli/"}],"articleSection":"Politics","image":[{"@type":"ImageObject","url":"https://static.time.com/v3/assets/bltea6093859af6183b/blt411879bf658897dd/698a560686f68e23a36f5095/GettyImages-2149546420.jpg?branch=production&width=1200&quality=75&auto=webp&crop=1200:675&height=675","width":1200,"height":675,"headline":"US-VOTE-JUSTICE-TRUMP-IMMUNITY","caption":"US-VOTE-JUSTICE-TRUMP-IMMUNITY","creditText":"MANDEL NGAN—AFP/Getty Images","representativeOfPage":true}],"publisher":{"@type":"Organization","name":"Time","url":"https://time.com/","logo":{"@type":"ImageObject","url":"https://time.com/images/logo.png","width":528,"height":156},"foundingDate":"March 3, 1923","sameAs":["https://www.facebook.com/time","https://www.instagram.com/time/?hl=en","https://twitter.com/time","https://www.pinterest.com/timemagazine"]}},{"@context":"https://schema.org","@type":"BreadcrumbList","itemListElement":[{"@type":"ListItem","position":1,"item":{"@id":"/section/politics/","name":"Politics"}},{"@type":"ListItem","position":2,"item":{"@id":"/tag/supreme-court/","name":"Supreme Court"}},{"@type":"ListItem","position":3,"item":{"@id":"https://time.com/6971072/supreme-court-donald-trump-immunity-case-arguments/","name":"From Military Coups to Selling Nuclear Secrets, Supreme Court Wrestles With Implications of Granting Trump Immunity"}}]},{"@context":"https://schema.org","@type":"VideoObject","name":"Supreme Court to Decide Whether Donald Trump Can Be Criminally Prosecuted","description":"Donald Trump is currently a criminal defendant in a New York state trial. 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