Supreme Court struggles with immunity for presidents over official acts

Supreme Court justices clashed Thursday over former President Donald Trump’s claims of “absolute immunity” from prosecution for his official acts in the White House as they sorted through competing dangers of an unleashed president on the one hand or a crippled commander in chief on the other.

Justices seemed to agree that some presidential conduct is immune from prosecution, but they sparred over where to draw the line and what it would mean for presidents long after Mr. Trump’s case is decided.

“We’re writing a rule for the ages,” said Justice Neil M. Gorsuch, a Trump appointee.

The court’s liberal-leaning justices were the most skeptical of Mr. Trump’s claims.

“The founders did not put an immunity clause in the Constitution,” said Justice Elena Kagan, an Obama appointee. “Not so surprising. They were reacting against a monarch who claimed to be above the law. Wasn’t the whole point the president was not a monarch, and the president was not supposed to be above the law?”

Justice Brett M. Kavanaugh, a Trump appointee, countered that immunity has limits.

“The president is subject to prosecution for all personal acts,” he said.

The case before the justices involves Mr. Trump’s challenge to the 2020 election results and his efforts to submit alternative slates of electoral votes to shift the election from Joseph R. Biden. Special counsel Jack Smith is prosecuting the case.

Legal experts say the ruling will likely reverberate across other criminal cases against Mr. Trump, including Mr. Smith’s separate prosecution over allegations that he mishandled government secrets and perhaps a Georgia prosecutor’s case that Mr. Trump meddled in the state’s 2020 election results.

As with so much else about Mr. Trump, the case enters new and tricky territory. The justices were troubled by the implications on both sides of the case, raising horror stories from either outcome.

Justice Kagan wondered whether ordering the military to stage a coup or selling nuclear secrets to a foreign government would be considered official acts.

Justice Samuel A. Alito Jr., a Bush appointee, pondered a situation in which the president ordered SEAL Team 6 to assassinate a rival.

Chief Justice John G. Roberts Jr., a Bush appointee, wondered whether the president could be prosecuted for naming a particular ambassador in exchange for a bribe.

The court’s Democratic-appointed justices worried about the danger of a president unchecked. Republican appointees fretted over the governmental chaos that could result from unfettered prosecutions.

Justice Ketanji Brown Jackson, a Biden appointee, envisioned a White House turned into a “crime center.”

“If the potential for criminal liability is taken off the table, wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they are in office?” Justice Jackson said. “Once we say, ‘No criminal liability, Mr. President, you can do whatever you want,’ I’m worried that we would have a worse problem than the problem of the president feeling constrained to follow the law while he’s in office.”

Justice Gorsuch wondered whether a president wouldn’t just pardon himself if prosecutions were allowed. The high court has never decided whether a self-pardon is allowed, but Justice Gorsuch suggested the court could be inviting that issue.

“Perhaps if he feels he has to, he’ll pardon himself every four years,” he said.

Michael Dreeben, arguing the case for the special counsel, acknowledged that a president carries some immunity after office but said it’s narrow and applies only to “core” constitutional powers, such as vetoing legislation or issuing pardons.

“The president has no function with respect to the verification of the winner of the presidential election,” Mr. Dreeben said. “So it’s difficult for me to understand how there could be a serious constitutional question to say you can’t use fraud to defeat that function.”

John Sauer, Mr. Trump’s attorney, said presidents can be prosecuted only if they are first impeached by the House and convicted by the Senate.

Otherwise, he said, a later administration might have prosecuted former President George W. Bush for inducing the country into the Iraq War based on false evidence, former President Barack Obama for ordering a drone strike overseas that killed a U.S. citizen, or a future former President Biden for enticing illegal immigrants to enter the U.S.

“If it’s an official act, there needs to be impeachment and conviction beforehand,” Mr. Sauer said.

Mr. Trump lost in the lower courts. The U.S. Circuit Court of Appeals for the District of Columbia ruled that a president has no immunity from prosecution, even for official acts. The appeals court said prosecutors’ good faith would prevent flawed prosecutions.

Chief Justice Roberts said that the ruling goes too far.

“It concerns me,” he said. “As I read it, it says a former president can be prosecuted because he’s being prosecuted.”

If the justices were to create a test on what constitutes an official act for the sake of a former president receiving immunity, the case would be remanded back to lower courts to sort out the charges, which would create more litigation and further delay ahead of any trial starting.

“You’d agree further proceedings would be required?” Justice Gorsuch said.

“That is correct. There would have to be,” Mr. Sauer said.

Any delay would be viewed as a victory for Mr. Trump as he tries to delay his federal trials from beginning ahead of the November election.

Mr. Trump was not present for the oral argument. He was in a courtroom in Manhattan, where he is facing a trial on charges that he falsified business documents to hide hush money to an adult-film actress ahead of the 2016 election.

The former president complained about missing the Supreme Court arguments. He said the New York judge did not allow him a leave of absence from the trial.

“He puts himself above the Supreme Court, which is unfortunate,” Mr. Trump said.

Mr. Trump said he is fighting before the justices for the broad principle of immunity.

“It’s nothing to do with me. This has to do with a president in the future, one hundred years from now. If you don’t have immunity, you’re not going to do anything. You’re going to become a ceremonial president,” he said.

During oral arguments, Justice Clarence Thomas, a George H.W. Bush appointee, wondered whether Mr. Smith was even in a position to prosecute the case.

Some high-profile legal scholars have said Mr. Smith was a private citizen when Attorney General Merrick Garland appointed him special counsel. The law allows only current U.S. attorneys to be appointed, such as David Weiss, the U.S. attorney in Delaware who was appointed special counsel to investigate Hunter Biden.

The case is Trump v. United States. A decision is expected by the end of June.