Supreme Court justice says Trump immunity decision will have ‘huge implications’

Chief Justice John Roberts, Justice Samuel Alito and Justice Clarence Thomas raised concerns that without protections, presidents could face politically motivated prosecution for actions they took while in office.

“This case has huge implications for the presidency, for the future of the presidency, for the future of the country,” Justice Brett Kavanaugh said while weighing arguments.

At the conclusion of Mr Dreeben’s questioning, Justice Roberts asked Mr Sauer if he would like to rebuttal which he declined.

The case is now submitted to the court and will be considered.

It is unclear when the court will issue a decision – typically they make final rulings in mid-late June.

Justice Jackson suggested that the Supreme Court should not rule extremely narrowly in the case and only decide if presidents have absolute immunity or not.

Throughout arguments, justices have suggested that they would offer some criminal prosecution immunity to presidents whether that be immunity from prosecution regarding “core” duties awarded specifically to the presidency or “official acts”.

“Is this the right vehicle to hammer out that test?” Justice Jackson asked Mr Dreeben, saying that the actions alleged indictment had “no plausible argument” that they fall under that “core”.

“We don’t think there are any core act alleged indictment,” Mr Dreeben said, agreeing that this was not the right case to rule narrowly.

Justice Barrett asked Mr Dreeben how they Justice Department would go forward if the court found that much of the alleged actions in the indictment were considered private action.

Mr Dreeben said that the Special Counsel would still “like to present [the private action] as an integrated picture to the jury” – hinting that it would not stop them from going forward with an indictment.

“We still think we could introduce the actions with the Justice Department for their evidentiary value,” Mr Dreeben said.

The second half of today’s arguments has been a bit of a struggle for Mr Dreeben, who is being grilled and, often, interrupted by conservative justices.

In the moments Mr Dreeben has had uninterrupted time to speak, he says Mr Trump’s actions as laid out in the indictment were conducted as a presidential candidate, not the president – meaning they are not protected as “official” acts.

Justice Alito, one of the most conservative on the court, and Justice Sotomayor, one of the most liberal, both argue how protections from criminal prosecution incentivize a president’s approach their job.

Justice Alito suggests that without protections, presidents cannot fulfill their duties without worrying about politically motivated criminal prosecutions.

Justice Sotomayor says that, “a stable democratic society needs the good faith of its public officials and that good faith assumes that they will follow the law.”

Justice Alito, and other justices, have raised concerns about political opponents going after presidents without criminal protections.

“Presidents have to make a lot of tough decisions about enforcing the law…. Did I understand you say… if he makes a mistake he’s subject to the criminal laws?”

The Supreme Court is made up of nine justices, eight Associate Justices and one Chief Justice.

John Roberts, 69, is currently the Chief Justice, he was appointed by George W Bush in 2005.

Clarence Thomas, 75, was appointed by George H W Bush in 1991.

Samuel Alito, 73, was appointed by George W Bush in 2006.

Sonia Sotomayor, 69, was appointed by Barack Obama in 2009.

Elena Kagen, 63, was Barack Obama in 2010.

Neil Gorsuch, 56, was appointed by Donald Trump in 2017.

Brett Kavanaugh, 59, was appointed by Donald Trump in 2018.

Amy Coney Barrett, 52, was appointed by Donald Trump in 2020.

Kentaji Brown Jackson, 53 was appointed by Joe Biden in 2022.

Mr Gorsuch offered somewhat of a hypothetical to Mr Dreeben when asking what actions are protected from immunity, what if a president is charged with corruptly impeding an official proceeding after staging a protest in front of Congress due to a piece of legislation that delays proceedings in Congress.

The court is looking into that issue in Fischer v United States – the statute is central to criminal indictments against more than 300 rioters who attacked the Capitol on January 6

In questioning Mr Dreeben, justices have heavily indicated they believe presidents deserve some immunity from criminal prosecution – but now, they need to determine what is protected.

Mr Roberts joined Mr Gorsuch and Mr Kavanaugh in saying the lower courts should determine which of the alleged acts laid out on the indictment are “official” versus private.

“The court of appeals did not get into a focused consideration of what facts we’re talking about or what documents we’re talking about… they did not look at what courts usually look at when… taking away immunity,” Mr Roberts said.