Supreme Court appears set to give Trump a victory in presidential immunity case

Trump claims he cannot be criminally prosecuted for his actions as president.

Donald Trump asked the Supreme Court to give him presidential immunity in the pending federal criminal cases, and the conservative Justices seemed inclined to grant Trump’s request.

Trump has been indicted on 91 felony charges, including allegedly conspiring to overturn the 2020 election and inciting the Jan. 6 riot at the Capitol.

Appealing to the Supreme Court to stop his criminal trials, Trump argued that he has absolute presidential immunity from prosecution because his actions were a part of his official duties as president.

The Supreme Court Justices were skeptical about the absolute immunity claim during oral arguments on April 25, 2024, but the conservative majority seemed interested in granting Trump at least some presidential immunity.

Trump’s attorney argued that that the president has absolute immunity from criminal prosecution unless they are impeached and convicted while in office. Some of the more conservative justices seemed to agree with this concept of presidential immunity and contemplated how much immunity presidents should have. However, the progressive justices seemed skeptical of presidential immunity, raising concerns about the breadth of the proposed immunity and the consequences of granting immunity to the most powerful office in the government

Justice Neil Gorsuch seemed to agree that presidents have immunity from official acts, stating that "the president can be prosecuted after he leaves office for his private conduct" and that the question is "how to segregate private from official conduct that may or may not enjoy some immunity."

Assuming that the president has full immunity from official acts, Justice Samuel Alito considered possible ways in which courts could distinguish between a president’s private and official acts.

Justice Alito proposed a test in which a president would be granted immunity if, based "on purely objective grounds", the president was invoking "an official power in taking the action." Under this test, a president would be granted immunity for any official actions, even if the action cannot be plausibly viewed as lawful.

Justice Brett Kavanaugh suggested a rule further specifying under what circumstances a president can be prosecuted. He proposed that a president cannot be prosecuted for any law unless the law had "a clear statement in the statute referencing the president." He emphasized that none of the laws Trump has been accused of breaking "have a clear statement covering the president, therefore, meaning that the president can't be charged for any official acts under these statutes." Though, it's important to note that Congress didn't mention the president in almost any criminal law, as a result, Justice Kavanaugh’s proposed immunity would be extremely broad.

Trump’s attorney agreed, saying "that's absolutely correct" in response to Justice Kavanagh.

However, Justice Amy Coney Barrett—generally considered part of the conservative wing—seemed skeptical of Justice Kavanagh's proposed rule that presidents are immune from laws that don't explicitly refer to the president.

Justice Barrett considered the rule in the hypothetical context of a military coup ordered by the president. "Let's imagine that he is impeached and convicted for ordering that coup", said Justice Barrett, asking Trump’s attorney to clarify that the president could not be prosecuted in that situation “even after a conviction and impeachment proceeding, if there was not a statute that expressly referenced the president and made it criminal for the president?"

Trump’s attorney confirmed that is their position, claiming "there would have to be a statute that made a clear statement that Congress purported to regulate the president's conduct."

In light of the conservatives discussion of presidential immunity, Justice Ketanji Brown Jackson seemed concerned about the breadth of the immunity being proposed, recognizing the catastrophic consequences that can arise from applying this concept of presidential immunity for all official actions.

“Once we say no criminal liability", Justice Jackson asserted, "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."

Expressing concern about the consequences of broad immunity, Justice Jackson asked, "if 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?"

Trump’s attorney responded that the president does have to follow the law, but they cannot be prosecuted for breaking it. Instead, Trump's attorney argued, the only methods to hold presidents accountable for illegal actions are by impeachment, oversight by Congress, and public oversight.

Raising similar concerns as Justice Jackson, Justice Sonia Sotomayor considered the implications of granting the president immunity from official acts as suggested by the conservative justices.Justice Sotomayor pointed out that absolute immunity means that "even if you did it for personal gain, we won't hold you responsible." Justice Sotomayor expressed concern that the Supreme Court adopting this principle of presidential immunity for official acts would create a situation where "a president is entitled, for total personal gain, to use the trappings of his office” to commit crimes "without facing criminal liability."

While it is difficult to predict from the argument what the outcome of the case will be, it seems likely that at least five justices will be convinced to hold that some level of immunity exists for official acts taken by the president while in office.  The key will be whether there are five votes in favor of the expansive views of immunity espoused by Justices Kavanaugh and Alito.  Given the skepticism expressed by Justice Barrett, and the expected views of the three more liberal justices, it seems likely that Chief Justice John Roberts, who did not say much at the argument, will end up being the swing vote on that issue.

It also seems likely that the Supreme Court, after articulating a standard for judging whether certain actions taken by a president enjoy immunity, will remand the case to the lower courts for further proceedings–which would benefit Trump by almost certainly delaying any trial in the federal criminal cases until after the election this fall.