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

In an exchange with attorney John Sauer, conservative justice Amy Coney Barrett signaled she thought Donald Trump could still face trial on some election interference charges brought by special counsel Jack Smith, even if the supreme court agrees with his claims of immunity.

“So, you concede that private acts don’t get immunity?” Barrett asked.

“We do,” Sauer replied. Barrett then referred to Smith’s brief in the immunity case:

He urges us even if we … assume that there was some sort of immunity for official acts, that there were sufficient private acts in the indictment … for the case to go back and the trial to begin immediately. And I want to know if you agree or disagree about the characterization of these acts.

She then posed a series of scenarios to Sauer, and asked him whether the acts were official or private. Sauer said most would be considered private, not official, acts.

“So those acts, you would not dispute those were private, and you wouldn’t raise a claim that they were official as characterized?” Barrett asked. It’s a telling statement from the Trump-appointed justice, because the court could find that Trump is immune for official acts – but must face trial for acts done in his capacity as a private citizen.

Another liberal justice, Elena Kagan, debated the specifics with Donald Trump’s attorney John Sauer of his alleged misconduct, and whether he would be immune from prosecution.

Kagan asked for Sauer’s views on Trump’s attempt to get Republican lawmakers in Arizona to help him disrupt Joe Biden’s election victory there: “The defendant asked the Arizona House Speaker to call the legislature into session to hold a hearing based on their claims of election fraud.”

“Absolutely an official act for the president to communicate with state officials on a matter of enormous federal interest and concern, attempting to defend the integrity of a federal election to communicate with state officials,” Sauer replied.

In an exchange with liberal justice Sonia Sotomayor, Donald Trump’s attorney John Sauer defended the legality of sending slates of fake electors – as Trump is alleged to have done to stop Joe Biden from winning the White House.

The allegation is at the heart of the charges against Trump, both in special counsel Jack Smith’s federal case, and in the case brought in Georgia by Fulton county district attorney Fani Willis.

“What is plausible about the president insisting and creating a fraudulent slate of electoral candidates, assuming you accept the facts of the complaint on their face? Is that plausible that that would be within his right to do?” Sotomayor asked.

“Absolutely, your honor,” Sauer replied. “We have the historical precedent we cite in the lower courts of president Grant sending federal troops to Louisiana and Mississippi in 1876 to make sure that the Republican electors got certified.”

Liberal justice Sonia Sotomayor sounded sharply skeptical of John Sauer’s arguments as she harkened back to the country’s early days in exploring the situations where a president could be prosecuted.

Referring to amicus, or “friend of the court”, briefs filed in the case by outside groups, Sotomayor said:

There are amica here who tell us that the founders actually talked about whether to grant immunity to the president. And in fact, they had state constitutions that granted some criminal immunity to governors. And yet, they didn’t take it up. Instead, they fought to pass an impeachment clause that basically says you can’t remove the president from office, except by a trial in the Senate, but you can impeach him after so … you can impose criminal liability.

We would be creating a situation in which … a president is entitled not to make a mistake, but more than that, a president is entitled for total personal gain, to use the trappings of his office. That’s what you’re trying to get us to hold? Without facing criminal liability?

Up first before the court is attorney John Sauer, who is representing Donald Trump.

He’s currently in a back-and-forth with chief justice John Roberts, a conservative who has occasionally acted as a swing vote on the rightward-leaning court, as to whether a president accepting a bribe would be legal.

The nine supreme court justices are seated and have begun hearing arguments over whether or not Donald Trump is immune from prosecution for allegedly trying to overturn the 2020 election because he was acting in his official capacity as president.

Follow along here for live updates.

Should the supreme court throw out Donald Trump’s immunity claim, when might his trial on federal election subversion charges begin?

Or, if it is delayed further, which is the next criminal case to go before jurors? And what of the many civil suits against him?

For a rundown of the former-perhaps-next president’s multitudinous legal troubles, check out our regularly updated case tracker:

Protesters often turn up by the dozens outside the supreme court in Washington DC when it hears high-profiles cases, and Donald Trump’s occasional appearances in the Capitol also typically attract demonstrations.

But for whatever reason, the exterior of the high court appears relatively quiet this morning, at least based on the photos on the wire, with few protesters present:

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The supreme court has not yet even heard arguments in Donald Trump’s claim that he is immune from charges related to attempting to overturn the 2020 election because his alleged actions were taken while serving as president. But legal scholar Michael Waldman, president of the Brennan Center for Justice at the New York University School of Law, said the conservative-dominated body has already done the ex-president’s bidding by agreeing to hear the case – and therefore delaying the start of a trial that could prove pivotal to his chances of returning to the White House.

“The justices have already done great damage,” Waldman wrote recently. “They engineered one of history’s most egregious political interventions – not with an ugly ruling, at least not yet, but by getting ‘the slows’. At the very least they should issue this ruling in three weeks. That would give trial judge Tanya Chutkan enough time to start the trial [before the election], if barely.”

Here’s more on why Waldman thinks the high court erred, and what we can expect in today’s arguments, from the Guardian’s Martin Pengelly:

Good morning, US politics blog readers.

It’s another big day at the supreme court – perhaps the biggest of its term so far. Beginning at 10am ET, the nine justices will hear 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, and while there’s no telling how the court will rule, it has already had one concrete effect: delaying his trial in Washington DC, potentially until after the November election, and therefore preventing a potential guilty verdict that could have damaged his campaign.

The supreme court is composed of a six-justice conservative supermajority – three of whom Trump appointed – and a three-justice liberal minority, and the fact that they took this case up at all has raised eyebrows among some legal scholars. A ruling in his favor could lead to at least some of the charges Smith has brought to be dropped. If the court rejects arguments from Trump’s attorneys, his trial may be cleared to proceed – but there is still no telling when it will actually kick off.

The former president will not be in Washington DC for today’s oral arguments. He’s in New York City, where his trial is underway on charges of falsifying business documents related to hush money payments made before his 2016 election victory, the first of his four criminal cases to go before jurors. We have a separate live blog covering all that.

Here’s what else is going on today:

• Joe Biden is heading to Syracuse, New York to tell the tale of how the 2022 Chips act and other policies are helping turn around the local economy, then heading to New York’s ritzy suburbs for a campaign event.

• Arizona has indicted 18 former top Trump officials, including Mark Meadows, his ex-chief of staff, and attorney Rudy Giuliani for their attempts to overturn Biden’s victory in the state four years ago, the AP reports.

• And in Michigan, a state investigator said he considered Trump and Meadows as unindicted co-conspirators in a plot to interfere with Biden’s victory there in 2020, according to the AP.