Takeaways from the Supreme Court arguments on Trump’s absolute immunity claims

CNN

By John Fritze, Tierney Sneed and Marshall Cohen, CNN

(CNN) — The Supreme Court appeared ready to reject former President Donald Trump’s claims of sweeping immunity and the broad protections he has sought to shut down his federal election subversion case, but also reluctant to give special counsel Jack Smith carte blanche to pursue those charges.

After nearly three hours of oral arguments, several of the justices seemed willing to embrace a result that could jeopardize the ability to hold a trial before the November election.

The court’s conservatives aggressively questioned the lawyer representing the special counsel, seemingly embracing a central theme that had been raised by Trump that without at least some form of immunity future presidents would over time be subjected to politically motivated prosecutions.

Much of the hearing focused on whether there should be a distinction between official acts by Trump pursuant to his presidential duties and his private conduct.

How the court decides the dispute could determine Trump’s legal fate and will likely set the rules of criminal exposure for future presidents.

Here are the key takeaways:

Supreme Court seems unlikely to fully resolve the immunity question

As the justices wrestled with the nuances of the case and a series of complicated hypotheticals, it seemed increasingly unlikely the court would offer a clear answer on whether Trump may be prosecuted for his effort to overturn the 2020 election.

The upshot is that the Supreme Court appeared likely to leave much of that work to lower courts, proceedings that could take months and further delay a trial that had originally been set for March 4.

That outcome would play into Trump’s strategy of delay and jeopardize a trial before the election.

Chief Justice John Roberts at one point criticized the unanimous and scathing ruling against Trump from the US Court of Appeals for the DC Circuit that would have allowed his case to quickly move to a trial. Roberts suggested the appeals court didn’t lay out an adequate reason for why virtually all of Trump’s actions were subject to prosecution.

“As I read it, it says simply a former president can be prosecuted because he’s being prosecuted,” Roberts said skeptically. “Why shouldn’t we either send it back to the court of appeals or issue an opinion making clear that that’s not the law?”

Trump attorney concedes some acts may be ‘private’ and not official

In a notable series of concessions, Trump’s attorney John Sauer acknowledged that some of the alleged conduct supporting the criminal charges against the former president were private.

The admission shows how much ground Sauer gave up during the hearing, after Trump had made more sweeping claims in his legal briefs earlier this year, asserting that the entire prosecution should be thrown out.

Trump himself has continued to lobby for absolute immunity, including before his appearance at a New York court where he’s on trial for business fraud.

Justice Amy Coney Barrett was the first to pin Sauer down on the distinction between official and personal acts alleged in the charges. He tentatively agreed with how, in court filings, the special counsel had labeled particular acts as private – acts that alleged that Trump plotted with his private attorneys and campaign advisers to spread bogus election fraud claims, to file false court filings and to put forward fraudulent sets of electors. As part of the exchange, he conceded those private acts would not be covered by presidential immunity.

In a later back and forth with Justice Elena Kagan, Sauer muddied the waters.

He said that Trump’s phone call with Georgia Secretary of State Brad Raffensperger , in which he requested Raffensperger “find” enough votes to flip the results, was not an official act. But Sauer claimed Trump was acting in an official capacity in his conversation with the Republican National Committee about assembling slates of so-called “fake electors” and his call for the Arizona lawmakers to hold a hearing on election fraud.

Sauer’s willingness to commit to the idea that some allegations in the indictment weren’t protected by immunity was an extraordinary walk back of what had been the former president’s position up to that point.

But the Trump lawyer may be hoping that the move will encourage the justices to order more proceedings on deciding what’s private and what’s public in the indictment, a move that could seriously delay the case’s march to trial.

Justice Barrett brings up issue of ruling scope and timing

Several members of the court’s conservative majority – including Barrett – appeared concerned about the scope of Trump’s claim that he is entitled to “absolute” immunity.

Trump’s attorney, Sauer, faced a series of hostile questions in the early moments of the hearing about that position.

What will likely prove critical – and what was not clear from the arguments – is how the Supreme Court sends the case back to lower courts for more review.

Barrett at one point sketched out how the case could move to trial quickly: Smith could simply focus on Trump’s actions that were private and not official.

“The special counsel has expressed some concern for speed,” Barrett said. She asked DOJ attorney Michael Dreeben if the trial court can sort out what’s official or private acts of the presidency or whether there “another option for the special counsel just to proceed on the private conduct?”

Prosecutors could, hypothetically, draft a slimmed-down superseding indictment that strips out the potentially official acts.

Dreeben told Barrett that the indictment against Trump is substantially about private conduct, meaning that a trial could proceed even if the Supreme Court finds some immunity for Trump’s official actions.

Liberal justices weren’t impressed with Trump’s absolute immunity claims

It was pretty clear where the court’s three liberals will be when the opinion lands.

Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson spent much of the argument quizzing the attorneys on the potential implications of Trump’s absolute immunity position.

In one of the many hypotheticals the liberals tossed at Trump’s attorney, Kagan asked what would happen if a president ordered the military to stage a coup. Could that be prosecuted under Trump’s theory?

Sauer responded that a president would first have to be impeached and convicted before he could be charged criminally. Kagan fired back by asking what would happen if the order came on the final days of a presidency and there was not time to impeach or convict.

“You’re saying that’s an official act? That’s immune?” Kagan asked.

Sauer had to acknowledge that, under Trump’s theory, “it could well be.”

“That sure sounds bad, doesn’t it?” Kagan responded.

Echoing a more fundamental argument the special counsel raised earlier in the case, Jackson said she was concerned Trump’s argument would put presidents above the law.

“If there’s no threat of criminal prosecution, what prevents the president from just doing whatever he wants?” Jackson said. “I’m trying to understand what the disincentive is from turning the Oval Office into the seat of criminal activity in this country.”

Conservatives worry about subjecting ex-presidents to illegitimate criminal proceedings

There was some handwringing by conservatives about the possibility that an ex-president would be subjected to criminal proceedings for conduct that might ultimately be covered by immunity or some form of presidential protection.

Alito went as far as to suggest that denying ex-presidents immunity would discourage peaceful transfers of power, because outgoing presidents who lost hotly contested elections would not want to depart peacefully if they were concerned they’d be prosecuted by their political rival.

Multiple Republican appointees on the court pushed back at the special counsel’s claim that there are ample protections in the criminal justice system to prevent abusive prosecutions.

“You know how easy it is in many cases for a prosecutor to get a grand jury to bring an indictment and reliance on the good faith of the prosecutor may not be enough in some cases,” Roberts said at one point.

Alito, a former federal prosecutor himself, invoked the famous saying that grand jury would indict a ham sandwich if a prosecutor asked them to, while pointing to historic examples of Justice Department officials acting criminally in their roles.

Alito also seized on the acknowledgement by Dreeben that some criminal statutes might need to be interpreted differently when applied to former presidents. Alito suggested that going through a trial to settle those questions would be an unfair burden to a former president.

“That may involve great expense, and it may take up a lot of time,” Alito said, “And during the trial, the former president may be unable to engage in other activities that the former president would want to engage in.”

Trump ‘absolutely’ had a right to put forward fake electors, his lawyer says

Underscoring the sweep of Trump’s claims, Sauer said that his client “absolutely” had a right to put forward Republican electors in states that he lost in 2020, commonly called “fake electors.”

He made these comments under questioning from liberal Justice Sonia Sotomayor, who asked if “it’s plausible” that a president might have the right to help create a “fraudulent slate” of electors, which would mean that it would be an official government act that might be covered by immunity.

In response, Sauer said there was historical precedent for presidents to get involved with these matters, pointing to the contested presidential election of 1876, where there were well-founded claims of fraud, and multiple slates of electors in several key states. (Sauer used the term “so-called fraudulent electors.”)

These comments were a remarkable embrace of a plot that many see as a corrupt scheme to overturn the will of the voters. And it’s clear that federal and state prosecutors clearly disagree with Sauer – they consider the Trump campaign’s seven-state ploy to be a criminal scheme.

The Justice Department charged Trump with federal crimes in connection with the fake electors scheme. (He pleaded not guilty.)  Smith’s indictment says Trump “organized fraudulent slates of electors” to “obstruct the certification of the presidential election.”

And state prosecutors in Michigan, Georgia, Nevada and Arizona have also charged many of the illegitimate GOP electors and some Trump campaign officials who were involved in the plot.

Arizona prosecutors announced their sweeping indictment Wednesday night, which targeted the electors themselves and members of Trump’s inner circle, including Mark Meadows and Rudy Giuliani. Michigan investigators also revealed Wednesday that Trump is an unindicted co-conspirator in their case.

With arguments over, focus shifts to timing for decision

The arguments about Trump’s immunity claim are over. Now the clock starts ticking.

Even before the justices took their seats Thursday, the high court was facing enormous pressure – particularly from the left – over its slow pace getting to this point. Every day the court doesn’t issue a decision will play into Trump’s strategy of delay, jeopardizing the likelihood that Smith can bring his case to trial before the November election.

The Supreme Court has moved quite quickly in similar high-profile matters in the past. In 1974, for instance, when a unanimous court ordered President Richard Nixon to turn over the tapes of surreptitious recordings he made in the White House, it did so after roughly two weeks after arguments. In another often-cited example, the court decided the Bush v. Gore election dispute in 2000 a day after it heard arguments.

Earlier this year, the justices heard arguments February 8 about whether Trump had disqualified himself from Colorado’s presidential ballot under the 14th Amendment “insurrectionist ban.” It took the justices just under a month to hand down a decision March 4 that concluded he had not.

In the immunity case, the court already helped Trump by denying the special counsel request last December to leapfrog the appeals court and resolve the question quickly. The court’s decision ensured that the original March 4 date for Trump’s Washington, DC, trial would never become a reality.

And yet the court has been particularly slow releasing far more mundane opinions this year. And, critics note, it took more than two weeks for the court to agree to hear the Trump dispute in the first place. While that is remarkably speedy by Supreme Court standards, it is slower than many of the court’s detractors would like.

This story has been updated with additional developments.

CNN’s Katelyn Polantz, Hannah Rabinowitz and Holmes Lybrand contributed to this report.

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