The nine Supreme Court justices spent almost three hours Thursday parsing oral arguments in former President Donald Trump’s case demanding absolute immunity from charges related to his actions after the 2020 presidential election.
Their decision in the case could alter the fundamental understanding of a president’s constitutional powers for generations to come, stakes that were not lost on the justices.
Here are nine key exchanges during oral arguments in Trump v. United States.
Was FDR a criminal?
Michael Dreeben, Justice Department counselor to the special counsel:
“It’s common ground that all former presidents [knew] that they could be indicted and convicted. And Watergate cemented that understanding. The Watergate smoking gun tape involved President Nixon and H.R. Haldeman talking about and then deciding to use the CIA to give a bogus story to the FBI to shut down a criminal investigation.”
Justice Samuel Alito:
“Mr. Sauer and others have identified events in the past where presidents have engaged in conduct that might have been charged as a federal crime. And you say, ‘Well, no, that’s not really true.’ This is page 42 of your brief. So what about President Franklin D. Roosevelt’s decision to intern Japanese Americans during World War II? Couldn’t that have been charged under 18 USC 241 conspiracy against civil rights?
Dreeben: “Today? Yes, given this court’s decision in Trump versus United States.”
What about Bush, Obama, and Biden?
Trump lawyer John Sauer:
“Could President George W. Bush have been sent to prison for obstructing an official proceeding or allegedly lying to Congress to induce war in Iraq? Could President Obama be charged with murder for killing US citizens abroad by drone strike? Could President Biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policies?”
Much later during the oral arguments, Justice Bret Kavanaugh:
“How about President Obama’s drone strikes?”
Dreeben:
“The Office of Legal Counsel looked at this very carefully and determined that number one, the federal murder statute does apply to the executive branch. The president wasn’t personally carrying out the strike. But the aiding and abetting laws are broad, and it determined that a public authority exception that’s built into statutes … did not apply to the drone strike.”
‘Loser gets thrown in jail’
Alito:
“If an incumbent who loses a very close, hotly contested election, knows that [there’s] a real possibility after leaving office … 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? And we can look around the world and find countries where we have seen this process where the loser gets thrown in jail.”
Dreeben:
“So I think it’s exactly the opposite, Justice Alito. There are lawful mechanisms to contest the results in an election. And outside the record, but I think of public knowledge, petitioner and his allies filed dozens of electoral challenges and my understanding is lost all but one.”
” … There is an appropriate way to challenge things through the courts with evidence. If you lose, you accept the results. That has been the nation’s experience.”
Justice Sonia Sotomayor:
” … Justice Alito went through step by step all of the mechanisms that could potentially fail. In the end, if it fails completely, it’s because we’ve destroyed our democracy on our own, isn’t it?”
Dreeben:
“It is, Justice Sotomayor and I also think that there are additional checks in the system … I think one of the ways in which abuses are limited is accountability under the criminal law for criminal violations, but the ultimate check is the goodwill and faith in democracy.”
Presidential appointments for sale
Chief Justice John Roberts:
“What if you have, let’s say the official act is appointing ambassadors, and the president appoints a particular individual to a country but it’s in exchange for a bribe … How do you analyze that?”
Sauer:
“That I think would fall under this Court’s discussion in Brewster, where the Court held with respect to legislative acts that bribery is not an official act, which also matches the common law background … accepting the bribe and the agreement to accept the bribe are not official acts. That’s private conduct …”
Roberts:
“Accepting the bribe isn’t an official act, but appointing an ambassador is certainly within the official responsibilities of the president. So … how does your ‘official acts’ border or boundary come into play…?”
Sauer:
“…Brewster and Johnson say the indictment has to be expunged of all the immune official acts. So there has to be a determination of what’s official, what’s not official.”
Presidential coup
Justice Elena Kagan:
“How about if a president orders the military to stage a coup?”
Sauer:
“I think that, as the Chief Justice pointed out earlier, where there is a whole series of, sort of, guidelines against that, so to speak, like the [Uniform Code of Military Justice] prohibits the military from following a [plainly] unlawful act…”
Kagan:
“Well he’s gone — let’s say this president who ordered the military to stage a coup, he’s no longer president. He wasn’t impeached, he couldn’t be impeached. But he ordered the military to stage a coup and you’re saying that’s an official act? That’s immune?”
Sauer:
“I think it would depend on the circumstances whether it was an official act. If it were an official act, again, he would have to be impeached.”
Overzealous prosecutors
Roberts:
“That I think, is the clearest statement of the [DC appeals] court’s holding, which is why it concerns me. As I read it, it says simply, a former president can be prosecuted because he’s being prosecuted.”
Dreeben:
“Well, I would not suggest that’s either the proper approach in this case or certainly not the government’s approach. Prosecution does, of course, invoke federal criminal law. The allegations have to be presented to a grand jury, which votes upon the indictment.”
Roberts:
” … Now you know how easy it is in many cases for a prosecutor to get a grand jury to bring an indictment and reliance on the good faith of the prosecutor may not be enough in some cases — I’m not suggesting here.”
Dreeben:
” … We are not endorsing a regime that we think would expose former presidents to criminal prosecution in bad faith for political animus without adequate evidence.”
Criminal empire in the White House
Justice Ketanji Brown Jackson:
“You seem to be worried about the president being chilled. I think we would have a really significant opposite problem if the president wasn’t chilled, if someone with those kinds of powers — the most powerful person in the world with the greatest amount of authority — could go into office knowing that there would be no potential penalty for committing crimes. I’m trying to understand what the disincentive is from turning the Oval Office into, you know, the seat of criminal activity in this country.”
Sauer:
“I don’t know if there’s any allegation of that in this case. And … what Benjamin Franklin said is we view the prosecution of a chief executive as something that everybody cried out against as unconstitutional. And what George Washington said is we’re worried about factional strife.”
Jackson:
“Well let me put this worry on the table. If the potential for criminal liability is taken off the table, wouldn’t there be a risk that future presidents would be emboldened to commit crimes … while they’re in office? … Presidents, from the beginning of time have understood that — that’s a possibility. That might be what has kept this office from turning into the kind of crime center that I’m envisioning.”
Sauer:
“I respectfully disagree with that, because the regime you’ve described is the regime we’ve operated under for 234 years.”
Assassinating rivals
Sotomayor:
“If the president decides that his rival is a corrupt person, and he orders the military or orders someone to assassinate him, is that within his official acts for which he can get immunity?”
Sauer:
“It would depend on the hypothetical but we can see that could well be an official act.”
Sotomayor:
“It could? And why? Because he’s doing it for personal reasons. He’s not doing it, as President Obama is alleged to have done it, to protect the country from a terrorist. He’s doing it for personal gain. And isn’t that the nature of the allegations here?”
Sauer:
“I agree with that characterization of the indictment. And that confirms immunity.”
Presidents pardoning themselves
Alito:
“If a President has the authority to pardon himself before leaving office, and the DC Circuit is right that there is no immunity from prosecution, won’t the predictable result be that presidents on the last couple of days … pardon themselves from anything that they might have been conceivably charged with committing?
Dreeben:
“I really doubt that, Justice Alito. I mean it sort of presupposes a regime that we have never had, except for President Nixon. And as alleged in the indictment here [with] presidents who are conscious of having engaged in wrongdoing and seeking to shield themselves. I think the political consequences of a president who asserted a right of self-pardon that has never been recognized — that seems to contradict a bedrock principle of our law that no person shall be the judge in their own case.”
