The conservative Supreme Court Thursday sounded surprisingly open to former President Donald Trump’s claim of blanket presidential immunity in make-or-break oral arguments over the federal Jan. 6 election interference case.
Several members of the right-wing majority seemed open to Trump’s claim, which lower courts have rejected as outlandish, that he should have some protection from being prosecuted for alleged crimes committed while in office.
Justice Samuel Alito echoed Trump’s claim that blanket immunity is needed to prevent political tit-for-tat prosecutions of ex-presidents.
“We could see this process where the loser in an election gets thrown in jail,” Alito remarked.
Liberal justices furiously hit back at the idea that Trump could be let off the hook for allegedly trying to overturn his loss in the 2020 election and stay in power.
“If the potential for criminal liability is taken off the table, wouldn’t there be significant risk that future presidents would be emboldened to commit crimes with abandon while they are in office?” Justice Ketanji Brown Jackson said.
Many court watchers were surprised at the vehemence of the conservative justices’ defense of Trump’s claim that presidents must be immune from prosecution to carry out their duties.
Although it’s difficult to read the tea leaves from oral arguments, at least four conservative justices, including Justice Brett Kavanaugh, appeared to be considering granting Trump some sort of immunity and perhaps ordering a lower court to hold further proceedings to determine its scope.
That would leave Chief Justice John Roberts and Justice Amy Coney Barrett as crucial swing votes to determine whether Trump ever faces accountability for his alleged crimes.
Special Counsel Jack Smith’s team of prosecutors argued that nothing in the Constitution or any law says former presidents cannot be charged and tried for alleged criminal acts carried out while they were in the White House.
Trump’s team countered that he cannot be charged for doing his job as president, which he claims included casting doubt on the 2020 election and trying to have the results overturned.
The top court sparred with lawyers for Trump and Smith for more than two hours as they weighed lower court rulings that a former president does not have what District Court Justice Tanya Chutkan famously derided as a “lifetime get-out-of-jail-free card” for alleged crimes committed while in office.
Trump was originally scheduled to go on trial March 4. The case, which is widely considered the most consequential of Trump’s four pending cases, has been stalled ever since by his appeals.
Ironically, the hearing unfolded as Trump continues to face a criminal trial in Manhattan tied to hush money payments made to porn star Stormy Daniels. The Supreme Court’s decision is not expected to affect that case, because the alleged crimes mostly took place before he assumed office in January 2017.
The Supreme Court, including three conservative justices appointed by Trump, is not expected to make any ruling immediately. It could rule anytime but most likely won’t say anything till the end of its term around June 30.
The justices have already boosted the former president by stalling the case.
Even if the top court sides with Smith, a trial would be unlikely to start until Labor Day at the earliest because Chutkan has said she would give Trump extra time to prepare.
