WASHINGTON (AP) — The U.S. Supreme Court on Thursday took up Donald Trump’s bid to avoid prosecution over his efforts to overturn his 2020 election loss to Democrat Joe Biden.
Trump’s lawyers argue that former presidents are entitled to absolute immunity for their official acts. Otherwise, they say, politically motivated prosecutions of former occupants of the Oval Office would become routine and presidents couldn’t function as the commander in chief if they had to worry about criminal charges.
Lower courts have rejected those arguments, including a unanimous three-judge panel on an appeals court in Washington. And even if the high court resoundingly follows suit, the timing of its decision may be as important as the outcome.
That’s because Trump, the presumptive 2024 Republican presidential nominee, has been pushing to delay the trial until after the November election, and the later the justices issue their decision, the more likely he is to succeed.
The court typically issues its last opinions by the end of June, which is roughly four months before the election.
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Here’s the latest:
THOMAS GETS FIRST QUESTION; SOTOMAYOR SKEPTICAL
Supreme Court Justice Clarence Thomas pressed Donald Trump’s lawyer D. John Sauer at the outset of arguments Thursday, asking where the principle of absolute immunity comes from.
The question was the first during arguments at the Supreme Court in Trump’s bid to avoid prosecution over his efforts to overturn his 2020 election loss to Democrat Joe Biden.
Sauer fell back quickly on a Supreme Court case that’s core to the defense — a 1982 decision that held that former presidents are immune from civil lawsuits.
A skeptical Justice Sonia Sotomayor pointedly noted to Sauer that the indictment alleges that Trump acted for personal gain.
She said the Founding Fathers had contemplated the idea of immunity for presidents but had explicitly decided against it.
She made clear her opposition to the Trump legal team’s position, saying she was having a hard time envisioning immunity for a president who creates and submits false documents, orders the assassination of a political rival, and any number of other criminal acts.
SUPREME COURT ARGUMENTS ARE UNDERWAY
First up on Thursday was D. John Sauer, making Donald Trump’s argument that he’s immune from criminal prosecution. A former Missouri solicitor general and onetime Supreme Court clerk, Sauer also represented Trump at the appeals court level.
Trump went to those arguments even though he wasn’t required to be there, but he won’t be in the audience at the Supreme Court today. He’s required to be in New York for his hush money trial.
About 30 demonstrators gathered outside the Supreme Court before arguments, some wearing judicial robes with kangaroo masks and others holding signs like “Justice Delayed Is Justice Denied.” That’s an apparent reference to the the timing of the high court’s ultimate decision in the case, which could determine whether a trial can be held before the election in November.
TRUMP TAKES TO SOCIAL MEDIA BEFORE ARGUMENTS
Shortly before arguments were slated to begin, Trump fired off a few posts Thursday on his social media network.
In one, he declared in all caps, “WITHOUT PRESIDENTIAL IMMUNITY, IT WOULD BE IMPOSSIBLE FOR A PRESIDENT TO PROPERLY FUNCTION, PUTTING THE UNITED STATES OF AMERICA IN GREAT AND EVERLASTING DANGER!”
Trump also said that without immunity, a president would just be “ceremonial” and the opposing political party “can extort and blackmail the President by saying that, ‘if you don’t give us everything we want, we will Indict you for things you did while in Office,’ even if everything done was totally Legal and Appropriate.”
EXPECT A FULL BENCH ON THE COURT
Of the nine justices hearing the case, three were nominated by Trump — Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh. But it’s the presence of a justice confirmed decades before Trump’s presidency, Justice Clarence Thomas, that’s generated the most controversy.
Thomas’s wife, Ginni Thomas, urged the reversal of the 2020 election results and then attended the rally that preceded the Capitol riot. That has prompted calls for the justice to step aside from several court cases involving Trump and Jan. 6.
But Thomas has ignored the calls, taking part in the unanimous court decision that found states cannot kick Trump off the ballot as well as last week’s arguments over whether prosecutors can use a particular obstruction charge against Capitol riot defendants.
COURT HAS MULTIPLE PATHS TO DECIDE THE CASE
The justices will probably meet in private a short time after arguments to take a preliminary vote on the outcome. Chief Justice John Roberts would be a prime candidate to take on the opinion for the court, assuming he is in the majority.
They could simply reject Trump’s immunity claim outright, permitting the prosecution to move forward and returning the case to U.S. District Judge Tanya Chutkan to set a trial date.
They could also reverse the lower courts by declaring for the first time that former presidents may not be prosecuted for conduct related to official acts during their time in office. Such a decision would stop the prosecution in its tracks.
There are other options, too, including ruling that former presidents do retain some immunity for their official actions but that, wherever that line is drawn, Trump’s actions fall way beyond it.
Yet another possibility is that the court sends the case back to Chutkan with an assignment to decide whether the actions Trump is alleged to have taken to stay in power constitute official acts.
