Special counsel attorney warns of ‘sea change’ if supreme court expands presidential immunity – as it happened

After nearly three hours of oral arguments, the supreme court appeared divided over Donald Trump’s claim that he can’t be charged for his alleged attempt to overturn his 2020 election loss because he was acting in his capacity as president. It did not seem like the conservative-dominated court was ready to accept his defense entirely, but several justices signaled they may decide to send the case back to a lower court to sort out which parts of his indictment concerned his presidential duties, and which his private actions. Such a decision would likely delay his trial further, potentially until after the 2024 election. A decision could come as late as June.

Here’s a look back at the day’s highlights:

• Michael Dreeben, who argued on behalf of special counsel Jack Smith, warned that a finding of immunity for Trump would mark a “sea change” in the president’s relationship with the law.

• Samuel Alito, a conservative stalwart on the court, fretted over whether prosecuting a president would create a slippery slope that would undermine America’s “stable, democratic society”.

• At least two conservative justices, including Trump-appointee Neil Gorsuch, wondered whether, without immunity, all president would pardon themselves for fear of prosecution by a future administration.

• Amy Coney Barrett, a conservative justice appointed by Trump, signaled an interest in finding a way for Trump’s trial to continue even if some charges were dropped.

• Sonia Sotomayor, a liberal justice, sparred with Trump lawyer John Sauer over the legality of his attempt to create alternate slates of presidential electors.

Now that the dust has settled on the supreme court’s nearly three hours of oral arguments over whether Donald Trump is immune from criminal charges related to attempting to overturn the 2020 election, a few things appear likely to happen.

The first is that the justices, despite the fact that conservatives outnumber liberals six to three, do not seem likely to accept Trump’s sweeping claim that he can’t be charged for his alleged post-election plot, because he was simply acting in his capacity as president. But that doesn’t necessarily means special counsel Jack Smith carried the day.

As the Guardian’s Hugo Lowell and Martin Pengelly report, the justices seemed open to sending the case back to the lower courts to determine which charges concern Trump’s actions as president, and which were done in his private capacity – the latter being what he’d have to stand trial on. If something like that does indeed wind up being the court’s decision, it could mean more delays in the case, potentially until after the November election, which would further delay the possibility that a jury would find him guilty in the case and strike a blow to his presidential ambitions.

Here’s more:

The US supreme court on Thursday expressed interest in returning Donald Trump’s criminal case over his efforts to overturn the 2020 election back to a lower court to decide whether certain parts of the indictment were “official acts” that were protected by presidential immunity.

During oral arguments, the justices appeared unlikely to grant Trump’s request for absolute immunity from criminal prosecution, with both Trump’s lawyer and the justice department’s lawyer agreeing there were certain private acts that presidents would have no protection for.

But the chief justice, John Roberts, and the conservative justices suggested that presidents should have some level of immunity and would favor the presiding trial judge in the case deciding whether any acts in the indictment were official and should be expunged.

The subsequent questions explored how to decide what actions were official and what actions were purely private, potentially to develop a test for a lower court to apply to the indictment, and whether a test should consider Trump’s motives or purely objective facts.

If the supreme court remands the matter back to the presiding US district court judge Tanya Chutkan, it would almost certainly inject new delay into the case that could preclude it from going to trial before the November election .

Such an outcome would itself be a win for Trump, whose overarching legal strategy against the cases brought by the special counsel Jack Smith has been to seek delay. If he prevails in the election, he could appoint as the attorney general a loyalist who would drop the charges against him.

The outcome of a remand would also give Trump a material legal win, as it would pave the way for some parts of the indictment to be expunged. Excising some of the conduct as alleged in the indictment could reduce his criminal exposure and undercut the remaining charges.

The supreme court’s conservative justices appeared to have concluded during the argument that there must be some immunity because some “core functions” of the presidency – issuing pardons, veto power – cannot be regulated by Congress and so criminal statutes cannot apply.

25 Apr 202415.27 EDT

Joanna Walters

Joe Biden told the audience that he went to law school in Syracuse and “for decades it was a manufacturing boom town” but that “over the years trickle down economics stripped it all away”, from the Ronald Reagan years.

Biden said the decline continued under the Trump administration, where more “manufacturing left and 22,000 local jobs disappeared in Syracuse, exacerbating a trend which Biden’s hammered for his whole presidency, how such decline “hollowed out” the middle class in regions like upstate New York.

“But not on my watch,” he said, to cheers, citing government partnerships with the private sector like the $6bn federal grant to Micron Technology, adding: “American manufacturing is back, it’s the great American comeback story.”

A throwback to dampen the celebrations: almost two years ago, Bernie Sanders Sanders, the Vermont independent Senator, stood against the-then $280bn bill funding scientific research and giving computer chip manufacturers financial incentives to build more production in the US.

He was chiming with conservative think tanks when he said on the Senate floor in July, 2022: “The question we should be asking is this: should American taxpayers provide the microchip industry with a blank check of over $76bn at a time when semiconductor companies are making tens of billions of dollars in profits and paying their executives exorbitant compensation packages? I think the answer to that question should be a resounding no.” The legislation passed.

But talking of our favorite socialists, get this post from @Potus earlier with AOC and Ed Markey:

25 Apr 202414.53 EDT

Joanna Walters

Joe Biden has just praised union member Shannon Thomas, who introduced him at the event, and acknowledged that Randi Weingarten, president of the American Federation of Teachers union is at the gathering in Syracuse to mark a huge public-private investment in a new microchip factory.

Biden started with a one of his droll mini-digs at rival Donald Trump and the Republicans.

“The ‘other team’ keep criticizing me for making investments in infrastructure,” Biden said.

“We are having an infrastructure decade, the last guy had ‘infrastructure week’ and he never showed up,” Biden said, to chuckles from the crowd.

He added, to louder laughs: “They say ‘government intervention’ and I say it sure as hell is.”

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25 Apr 202414.41 EDT

Joanna Walters

As we wait for Joe Biden to speak, Micron Technology’s CEO Sanjay Mehrota is talking about the company’s plans to invest $100bn in Syracuse’s northern suburbs to build a high-tech manufacturing campus.

And Schumer, who was central to the passing of the Chips and Science Act in 2022, and is lauding the investment in his home state, said it is the single largest private investment in New York history, NPR reported earlier today. Micron is also building a factory in Boise, Idaho.

Biden has just been introduced by engineering apprentice and IBEW union member Shannon Thomas, who said the campus will be built by unionized workers.

25 Apr 202414.26 EDT

Joanna Walters

US Senate majority leader Chuck Schumer is in Syracuse to introduce Joe Biden, who is in the city in central New York to talk about a $6bn federal government grant provided to Idaho-based Micron Technology to build a massive microchip plant in the northern suburbs.

Schumer is talking about the sustained efforts to reinvigorate the economy in post-industrial upstate New York.

“It was not easy” to get the 2022 bipartisan Chips and Science Act through Congress, Schumer said.

Schumer said that the subsidy would be used “to build the most advanced memory chip factory in the world” and, not to underplay the geopolitics and world trade issue, here, Schumer added a bit of alliteration with the declaration that the investment would help ensure that the future of the industry “is built in Syracuse, not in Shanghai.”

The gathering, which includes New York governor Kathy Hochul, is at the Milton J Rubenstein Museum of Science and Technology in Syracuse.

On a tour of the building earlier Biden was shown a model of the future Micron site and said: “When I look at this I think about how consequential this will be.”

The US president will take the podium soon.

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25 Apr 202413.57 EDT

The day so far

Joanna Walters

Hello again, live blog readers, it’s been a dramatic morning at the US Supreme Court as the justices heard oral arguments over Donald Trump’s claim that he is immune from prosecution for trying to overturn his defeat in the 2020 election because he was acting in his capacity as president. He’s been charged in a federal election interference case.

This as Trump is currently sitting as a defendant in the entirely separate New York criminal case, which we are live blogging here.

Here’s where things stand:

• After more than two hours and forty minutes of deliberations, the supreme court wrapped up oral arguments in the immunity claim. The court’s three liberal justices appeared skeptical of the arguments brought by John Sauer, Trump’s attorney, but at least some of the six conservatives on the bench seemed open to his requests. It is unclear when the court could rule, and until it does, Trump’s federal trial in Washington, DC, being prosecuted by special counsel Jack Smith, remains on hold, with the 2024 presidential election racing towards us.

• Michael Dreeben, the lawyer representing Smith at the supreme court today, indicated that Trump’s trial on charges related to trying to overturn his 2020 election loss to Joe Biden could continue even if he was granted immunity from some of the charges he faces.

• Conservative justice Samuel Alito questioned Dreeben, wondering if prosecutions of presidents would not undermine the country’s governance – a sign he was partial to Trump’s immunity claim. Alito asked if a president knows that if he loses a hotly contested election he “may be criminally prosecuted by a bitter political opponent” would that not put America in a cycle “that destabilizes the functioning of our country as a democracy?” Dreeben disagreed.

• Alito also appeared to be concerned that a finding against Trump (ie that he’s not immune from prosecution for actions taken as president) would incentivize presidents to pardon themselves – something of unclear legality. Dreeben responded that he doubted that and that it “sort of presupposes a regime that we have never had except for President Nixon.” Associate justice Neil Gorsuch wondered the same thing as Alito.

• The special counsel’s office warned that Trump’s ‘novel theory’ that he is immune from prosecution, using the presidency as his shield, has ‘no foundation in the constitution’. Michael Dreeben, an attorney representing special counsel Jack Smith, argued that agreeing with Trump’s immunity claim means president could not be found liable for all sorts of criminal acts.

• Conservative justice Amy Coney Barrett signaled she thought Trump could still face trial on some election interference charges brought by Smith, even if the supreme court agrees with his claims of immunity. She argued this in an exchange with Trump attorney John Sauer.

• Liberal justice Sonia Sotomayor, in an exchange with Sauer, heard him defend the legality of sending slates of fake electors – as Trump is alleged to have done to stop Biden from winning the White House. The allegation is at the heart of the charges against Trump, both in Smith’s federal case, and in the case brought in Georgia by Fulton county district attorney Fani Willis.

• Legal scholar Michael Waldman, president of the Brennan Center for Justice at the New York University School of Law, has commented that the supreme court ‘engineered one of history’s most egregious political interventions’ by even agreeing to hear the Trump immunity case.

• Thursday is yet another big day at the supreme court, just this week, and perhaps the biggest of its term so far. The nine justices hear oral arguments over whether Donald Trump is immune from prosecution for acts done while he was in office. The former president has made the claim as part of a bid to blunt special counsel Jack Smith’s case against him for allegedly trying to overturn the 2020 election. The case has already had one concrete effect: delaying his federal trial in Washington DC, potentially until after the November election. There is no trial date yet.

Just before oral arguments at the supreme court finished, liberal justice Ketanji Brown Jackson asked Michael Dreeben, who was arguing on behalf of special counsel Jack Smith, about the implications of the court dramatically expanding presidential immunity.

She cited an amicus brief received by the court that warned of the consequences of a president who believed they would never face criminal liability for actions taken while in office. “I see that is a concern that is at least equal to the president being so worried about criminal prosecution that he, you know, is a little bit limited in his ability to function,” Jackson said.

Dreeben agreed:

I think it would be a sea change to announce a sweeping rule of immunity that no president has had or has needed. I think we have also had a perfectly functioning system that (has) seen occasional episodes of presidential misconduct, the Nixon era is the paradigmatic one. The indictment in this case alleges another. For the most part, I believe that the legal regime and the constitutional regime that we have works and to alter it poses more risks.

Jackson also offered her thoughts on concerns expressed by the court’s conservatives that allowing Trump’s prosecution creates a slippery slope that will haunt future presidents to come.

“I do take as a very legitimate concern about prosecutorial abuse, about future presidents being targeted for things that they have done in office,” Jackson said. “But I wonder whether some of it might also be mitigated by the fact that existing administrations have a self interest in protecting the presidency, that they understand that if they go after the former guy, soon, they’re going to be the former guy and they will have created precedent, that will be problematic.”

After more than two hours and forty minutes of deliberations, the supreme court has wrapped up oral arguments over whether or not Donald Trump is immune from prosecution for trying to overturn the 2020 election because he was acting in his capacity as president.

The court’s three liberal justices appeared skeptical of the arguments brought by John Sauer, Trump’s attorney, but at least some of the six conservatives on the bench seemed open to his requests.

It is unclear when the court could rule, and until it does, his trial in Washington DC remains on hold.

Michael Dreeben, the lawyer representing special counsel Jack Smith at the supreme court, indicated that Donald Trump’s trial on charges related to trying to overturn his 2020 election loss could continue even if he was granted immunity from some of the charges he faces.

Dreeben answer came in response to questions from conservative justice Amy Coney Barrett, who Trump appointed. “The special counsel has expressed some concern for speed and wanting to move forward,” Barrett said. She then wondered if it would be possible for the trial “to proceed based on the private conduct and drop the official conduct”.

Dreeben indicated that the special counsel would like to ask a jury to decide if Trump is guilty for the full gamut of his attempt to overturn the elections:

There’s really an integrated conspiracy here that had different components as alleged in the indictment, working with private lawyers to achieve the goals of the fraud, and, as I said before, the petitioner reaching for his official powers to try to make the conspiracies more likely to succeed. We would like to present that as an integrated picture to the jury, so that it sees the sequence and the gravity of the conduct and why each step occurred.

But, if the supreme court determines some of the allegations against Trump concern actions taken in his capacity as president, and orders those charges thrown out, Dreeben believes they can still use those decisions as evidence, based on previous similar legal cases:

We still think … that we could introduce the interactions with the justice department, the efforts to pressure the vice-president, for their evidentiary value as showing the defendant’s knowledge and intent, and we would take a jury instruction that would say, you may not impose criminal culpability for the actions that he took. However, you may consider it insofar as it bears on knowledge and intent. That’s the usual rule with protected speech.

Conservative justice Brett Kavanaugh, one of three Donald Trump appointees on the bench, is asking Michael Dreeben if a president could be prosecuted for making false statements.

He poses the hypothetical of Lyndon B Johnson, the president who presided over America’s escalation of its involvement in the Vietnam war. Had he made a false statement about his Vietnam policy, would there be “prosecution after he leaves office”, Kavanaugh asked.

“I think not,” Dreeben said. “Statements that are made by a president to the public are not really coming within the realm of criminal statutes. They’ve never been prosecuted.”

Following up on Samuel Alito, liberal justice Sonia Sotomayor repurposed the conservative’s questions implying that a finding against Donald Trump’s presidential immunity claim would undermine America’s “stable, democratic society”.

“The stable democratic society needs the good faith of its public officials, correct?” Sotomayor asked.

“Absolutely,” special counsel’s office attorney Michael Dreeben replied.

“And that good faith assumes that they will follow the law?” the justice continued.

“Correct,” Dreeben said.

Then Sotomayor made her point:

Now, putting that aside, there is no failsafe system of government, meaning we have a judicial system that has layers and layers and layers of protection for accused defendants in the hopes that the innocent will go free. We fail routinely. But we succeed, more often than not, in the vast majority of cases, the innocent do go free. Sometimes they don’t and we have some post-conviction remedies for that. But we still fail, and we’ve executed innocent people. Having said that, 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?

In his answer, Dreeben noted that “there are additional checks in the system,” and “the constitutional framers designed a separated power system in order to limit abuses.”

“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. And crimes that are alleged in this case … are the antithesis of democracy,” he added.

Conservative justice Samuel Alito continued his questioning of special counsel attorney Michael Dreeben by wondering if prosecutions of presidents would not undermine the country’s governance – a sign he was partial to Donald Trump’s immunity claim.

“I’m sure you would agree with me that a stable, democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully, if that candidate is the incumbent,” Alito said.

“Of course,” Dreeben replied.

“All right. Now, if a 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? Alito asked. “And we can look around the world and find countries where we have seen this process, where the loser gets thrown in jail.”

Here’s what Dreeben had to say about that:

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 … [the] petitioner and his allies filed dozens of electoral challenges and my understanding is they lost all but one. That was not outcome determinative in any respect. There were judges that that said, in order to sustain substantial claims of fraud that would overturn … election results … certified by a state, you need evidence, you need proof, and none of those things were manifested. So, there was an appropriate way to challenge things through the courts with evidence, if you lose, if you accept the results. That has been the nation’s experience. I think the court is well familiar with that.

Conservative justice Samuel Alito also appears to be concerned that a finding against Donald Trump would incentivize presidents to pardon themselves – something of unclear legality.

If “the 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 in office, are going to pardon themselves from anything that they might have been conceivably charged with committing?” Alito asked Michael Dreeben, who is representing special counsel Jack Smith.

He replied:

I really doubt that, Justice Alito, and it’s sort of presupposes a regime that we have never had except for President Nixon and as alleged in the indictment.

Special counsel attorney Michael Dreeben is now tangling with Samuel Alito, one of the court’s conservative stalwarts, who sounds sympathetic to Donald Trump’s immunity claims.

“Presidents have to make a lot of tough decisions about enforcing the law and they have to make decisions about questions that are unsettled. And they have to make decisions based on the information that’s available … Did I understand you to say well, you know, if he makes a mistake, he makes a mistake, he’s subject to the criminal laws just like anybody else?” Alito asked.

Dreeben replied by noting that what Trump is accused of is no simple mistake:

He’s in a special position for a number of reasons. One is that he has access to legal advice about everything that he does. He’s under a constitutional obligation to do he’s supposed to, be faithful to the laws of the United States and the constitution of the United States and making a mistake is not what lands you in a criminal prosecution.

Before the special counsel’s office began presenting its case, Neil Gorsuch, a conservative justice, pondered whether rejecting Donald Trump’s claim of immunity would cause presidents to preemptively pardon themselves, in fear that a successor could decide to prosecute them.

“What would happen if presidents were under fear, fear that their successors would criminally prosecute them for their acts in office,” asked Gorsuch, who Trump appointed, in an exchange with his attorney John Sauer.

“It seems to me like one of the incentives that might be created as for presidents to try to pardon themselves,” Gorsuch continued, adding, “We’ve never answered whether a president can do that. Happily, it’s never been presented to us.”

“And if the doctrine of immunity remains in place that’s likely to remain the case,” Sauer replied.

Trump’s lawyer went on to argue that a finding against his immunity claim would weaken all future presidents:

The real concern here is, is there going to be bold and fearless action? Is the president going to have to make a controversial decision where his political opponents are going to come after him the minute he leaves office? Is that going to unduly deter, or is that going to dampen the ardor of that president to do what our constitutional structure demands of him or her, which is bold and fearless action in the face of controversy?

“And perhaps, if he feels he has to, he’ll pardon himself every four years from now on,” Gorsuch pondered.

“But that, as the court pointed out, wouldn’t provide the security because the legality of that is something that’s never been addressed,” Sauer replied.

Arguing before the court now is Michael Dreeben, an attorney representing special counsel Jack Smith, who indicted Donald Trump on federal charges relating to conspiring to overturn the 2020 election.

He told the court that agreeing with Trump’s immunity claim means president could not be found liable for all sorts of criminal acts:

His novel theory would immunize former presidents for criminal liability for bribery, treason, sedition, murder, and here for conspiring to use fraud to overturn the results of an election and perpetuate himself in power.

Such presidential immunity has no foundation in the constitution. The framers knew too well the dangers of a king who could do no wrong. They therefore devised a system to check abuses of power, especially the use of official power for private gain. Here the executive branch is enforcing congressional statutes and seeking accountability for petitioners’ alleged misuse of official power to subvert democracy.

Conservative justice Amy Coney Barrett continues to sound somewhat flummoxed by John Sauer arguments in favor of Donald Trump’s immunity.

“So how can you say that he would be subject to prosecution after impeachment, while at the same time saying that he’s exempt from these criminal statutes?” Barrett asked.

Apparently unsatisfied with his answer, Barrett posed another hypothetical to Sauer: In the “example of a president who orders a coup, let’s imagine that he is impeached and convicted for ordering that coup and let’s just accept for the sake of argument, your position that that was official conduct. You’re saying that he couldn’t be prosecuted for that even after conviction and an impeachment proceeding?”

Sauer responded by arguing the law must specify that a president who has been impeached and convicted by Congress can still face criminal prosecution for a coup:

If there was not a statute that expressly referenced the president and made it criminal for the president. There would have to be a statute that made a clear statement that Congress purported to regulate the president’s conduct.