At a quarter to ten on Thursday morning at the Supreme Court of the United States, the current and several former U.S. Solicitors General milled about in the well between the counsel’s tables and the front rows, shaking hands with attorneys who were about to make oral arguments and chatting with veteran reporters who have covered the Court for decades. Special Counsel Jack Smith came in and took his seat. A U.S. marshal sternly shushed some prominent figures, and they went silent.
It was the third argument before the Court in three months related to Donald Trump’s attempt to overturn his loss of the 2020 Presidential election. This one (Trump v. U.S.) was about his claim that Smith’s prosecution of him for election interference (U.S. v. Trump) must be dismissed because a former President is immune from criminal liability for any official acts he undertook in office. When the Justices took the bench at 10 A.M. and looked out at the not-quite-full courtroom, their grumpy countenances seemed to reflect the Trump fatigue that many Americans are feeling.
As the Justices ground through nearly three hours of arguments, my mind went into split-screen mode: the gray decorum of constitutional debate over executive power in Washington, D.C., and the sordid vividness of Trump’s criminal trial about hush money happening at the same time in New York City. Trump himself was not at the Supreme Court hearing, because he had to be present as a defendant in a gritty lower Manhattan criminal courtroom, where David Pecker, the former publisher of the National Enquirer, was testifying that, in order to aid Trump’s 2016 campaign, he paid a hundred and fifty thousand dollars for a Playboy model’s story about having sex with Trump, with no intent to publish it, and sought reimbursement from Trump. The contrast between the two proceedings could not have better underscored the distinction that the Justices were puzzling through that day: between the person who is President and the institution of the Presidency.
“Without Presidential immunity from criminal prosecution, there can be no Presidency as we know it,” Trump’s lawyer John Sauer began. His brief argued that “a denial of criminal immunity would incapacitate every future President with de facto blackmail and extortion while in office, and condemn him to years of post-office trauma at the hands of political opponents.” The rhetoric was histrionic, but every Justice seemed to take seriously the concern that a sitting President’s worry about future personal liability would impair his ability to fulfill his constitutional duties. This concern led the Supreme Court, in 1982, to hold that a President is forever and absolutely immune from civil-damages lawsuits for any official act he undertakes as President. The Department of Justice has also long taken the view that the President cannot be criminally prosecuted for federal crimes while he is in office, though it has assumed that he is not entirely immune from prosecution once he leaves office.
In the current case, Trump asserts that the same concerns that warrant a President’s absolute immunity from civil-damages lawsuits for his official acts also warrant absolute criminal immunity for his official acts. The government points out that, though the likelihood of a former President being attacked with myriad civil lawsuits justifies blanket immunity, the risk of unjustified criminal prosecutions by the Department of Justice is not so worrisome, because federal prosecutors are regulated by legal and ethical norms that serve as sufficient safeguards. Justice Alito, who noted that he “served in the Justice Department for a long time,” was skeptical that it was enough to protect former Presidents.
Michael Dreeben, arguing for the government, said, “The Framers knew too well the dangers of a king who could do no wrong.” To that point, Justice Elena Kagan asked Sauer whether a President who “ordered the military to stage a coup” would be immune from prosecution. After an uncomfortable beat of silence, he answered, “I think it would depend on the circumstances whether it was an official act.” When Kagan flatly asked, “Is it an official act?” he said that “it could well be,” but that it would depend on the specific facts and context.
Although at first blush there appeared to be an enormous gulf between Trump’s position and that of the Justice Department, it turned out to be not as wide as all that. Both sides clearly agree that a former President can be prosecuted for his unofficial or personal acts. Trump even admits that some of the conduct that Smith alleged in the indictment, such as conspiring with private attorneys to create fraudulent slates of electors, are unofficial acts—meaning that if Smith decided to pursue only those allegations, Trump would claim no immunity. Moreover, the government agrees with Trump that some official acts are in the core of power that the Constitution exclusively assigns to the President, such as “the pardon power, the power to recognize foreign nations, the power to veto legislation, the power to make appointments,” and that Congress cannot regulate them at all—meaning that it would be unconstitutional to prosecute the President under federal criminal statutes that interfere with that power.
The dispute that remains concerns the President’s official acts that fall outside that core of exclusive Presidential power; Trump argues that those acts are criminally immune; the government, that they are not. Given the concerns the Justices displayed in their questioning, and the Justice Department’s own moderate position, the Justices are likely to put some limits on the ability to prosecute a former President. The Court’s ruling will make little practical difference for Smith’s prosecution of Trump, because the chances of a trial being completed by the November election even in the most expedited scenarios are slim. Smith’s best hope, though, may be to move forward quickly with allegations that both sides agree involve Trump’s unofficial acts.
One clue that the Justices are going to take their time and resist the pressure of the election schedule was that, during the hours of oral argument, none of them uttered the name “Trump.” His name was mentioned exactly once by Sauer, and by Dreeben only in reference to a case called Trump v. Hawaii. Sauer’s opening statement named George W. Bush, Barack Obama, and Joe Biden, but not Trump. And discussions of the President tended to default to a President in the abstract, a hypothetical President, or multiple former Presidents other than Trump. It was as if there were an unspoken understanding about “He who must not be named.”
A further clue that the Court will not coöperate with any plans to get this prosecution resolved before November was the conservative Justices’ insistence that Trump (again, not named) was not their concern. Justice Alito: “I want to talk about this in the abstract because what is before us, of course, does involve this particular case, which is immensely important, but whatever we decide is going to apply to all future Presidents.” Justice Gorsuch: “I’m not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents.” Justice Kavanaugh: “Like Justice Gorsuch, I’m not focussed on the here and now of this case. I’m very concerned about the future.”