In the opening minutes of the U.S. Supreme Court hearing oral arguments Thursday in a landmark case over whether former President Donald Trump is immune from criminal prosecution in a federal case for his efforts aimed at overturning the results of the 2020 election, a hypothetical question surrounding a president ordering an assassination was asked.
“If the president decides that his rival is a corrupt person and he orders the military or someone to assassinate him, is that one of his official acts for which he can get immunity ?” Justice Sonia Sotomayor asked Trump lawyer D. John Sauer.
Sauer argued that it was possible.
“It would depend on the hypothesis. We see that it could well be an official act,” replied Saur.
Sotomayor interjected: “It’s possible, and why? Because he’s doing it for personal reasons.”
“And isn’t that the nature of the allegations here, that he’s not doing these acts as part of an official responsibility, but he’s doing it for personal gain?” » asked Sotomayer.
Sauer continued: “I agree with this characterization of the indictment and it confirms immunity.”
Sauer and the justices spent time Thursday morning debating whether certain hypothetical situations would be considered “private acts” or “official acts” under Sauer’s argument.
Justice Elena Kagan asked Saur: “If a president sells nuclear secrets to a foreign adversary, is he immune?
Saur argued that if she was “structured as a public servant, he should first be impeached and convicted.”
From the beginning, Saur argued before the nine justices of the Supreme Court: “Without presidential immunity from criminal prosecution, there can be no presidency as we know it.”
“If a president can be indicted, tried, and imprisoned for his most controversial decisions as soon as he leaves office, this looming threat will distort the president’s decision-making, precisely when bold and fearless action is most needed” , said Saur.
Saur continued: “Could President George W. Bush have been sent to prison for obstructing an official proceeding or allegedly lying to Congress to provoke the war in Iraq? Could President Obama be charged with murder for killing American citizens abroad in a drone strike? will he ever be accused of illegally enticing immigrants to enter the country illegally because of his border policies? »
“The answer to all of these questions is no,” he said.
The nation’s highest court will consider whether to fully or even partially uphold Trump’s unprecedented claim of presidential immunity, which protects former presidents from criminal charges if their actions were work-related.
It is unclear when the Supreme Court will issue its ruling on Trump’s allegations. If the judges follow their usual schedule, a judgment would be rendered at the end of June. Special counsel Jack Smith urged the justices to quickly deal with the former president’s case so the trial on Trump’s underlying charges related to the attempt to overturn the 2020 presidential election can proceed.
Trump’s trial was supposed to begin last month, but depending on the Supreme Court’s ruling in the case, it could be delayed until after the election. Legal observers have repeatedly pointed out that the former president could view this as a victory even if judges reject his broad requests for immunity if their decision takes longer. If Trump wins the election in November, he might even find a way to completely derail the case against Smith.
So far, Trump’s secret trial in Manhattan is his only criminal trial to have begun. Trump was unable to attend oral arguments before the Supreme Court because of the New York trial, in which he is charged with 34 counts of corporate fraud related to secret payments made to porn star Stormy Daniels.
His other cases, including another case led by Smith focused on Trump’s hoarding of classified documents, do not yet have a trial date and are unlikely to go to trial before the election.
The justices could also fundamentally alter the presidency itself. Never before has a former president been criminally prosecuted. Their decision could have far-reaching effects on the future of the presidency, particularly if they accept part of Trump’s argument that a Nixon-era Supreme Court ruling on civil immunity applies also to criminal charges. Smith and many legal scholars have argued that such immunity could give the presidency such power that the nation’s highest office would be above the law that the executive branch is required to enforce.
Trump and his allies have repeatedly suggested that if immunity is not granted, they may attempt to sue President Joe Biden in retaliation.
The former president never hesitated to suggest that his political rivals be sent to prison.
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