Supreme Court Cautious Over Claims of Absolute Immunity for Trump
WASHINGTON — Comments from Supreme Court justices Thursday indicated former President Donald Trump is likely to face criminal and civil charges despite his claim of immunity while he was president.
Trump’s efforts to overturn the 2020 presidential election led to felony charges against him that include obstructing an official proceeding and conspiracy to defraud the United States.
He also is being sued by police officers and members of Congress who were in the Capitol when it was invaded by rioters on Jan. 6, 2021.
Most of the Supreme Court justices expressed concern about how a lack of accountability by the president could lead to irresponsible and even criminal behavior, perhaps including bribery and attempts to overthrow the government.
Conservative justices added, however, that presidents could endure reprisals from adversaries for their policy decisions unless they have immunity for their official acts.
“The concern going forward” is where it stops, said Justice Brett Kavanaugh.
Before the attorneys’ arguments Thursday, Trump said in a media interview, “A president has to have immunity. If you don’t have immunity, you just have a ceremonial president.”
So far, he has lost in two previous federal court decisions in Washington, D.C.
Both the district court and the Court of Appeals said Trump’s interference with vote counts after the election and inciting insurrectionists on Jan. 6 to prevent Congress from certifying Joe Biden’s victory were not “official acts” of a president.
As a result, he should be personally liable for both criminal charges and lawsuit damages, the lower courts ruled.
Michael Dreeben, a Justice Department lawyer, made a similar argument when he said, “Such presidential immunity has no foundation in the Constitution.”
The absolute immunity Trump seeks could lead presidents to get away with murder and sedition, he said.
Trump attorney D. John Sauer said adequate controls over the president’s behavior already exist.
Congress could impeach misbehaving presidents, remove them from office or use legislative action to invalidate their unauthorized actions, he said.
“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,” Sauer added.
Conservative justices showed only guarded agreement with the idea of broad presidential immunity.
Justice Samuel Alito asked, “If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent — will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”
He also asked whether the absolute immunity Trump sought was necessary to protect “the proper functioning of the presidency,” or whether a lesser form of immunity would be adequate.
The liberals, such as Justice Elena Kagan, asked Trump’s attorney about scenarios he believed represented official acts of presidents that should be granted immunity.
“If a president sells nuclear secrets to a foreign adversary, was that immune?” Kagan asked.
She also asked, “How about if the president orders the military to stage a coup?”
The Supreme Court normally would release its decision in June but has indicated it might take longer in Trump’s case because of the upcoming presidential election in November.
If the Supreme Court rules before the election, Trump could be put on trial for election interference. If Trump ultimately wins the election, he could grant himself immunity under authority of the presidency.
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