Activist Stephen Parlato of Boulder, Colo., right, joins other protesters outside the Supreme Court as the justices prepare to hear arguments over whether Donald Trump is immune from prosecution in a case charging him with plotting to overturn the results of the 2020 presidential election, on Capitol Hill in Washington, Thursday, April 25, 2024. (AP Photo/J. Scott Applewhite)
As oral arguments at the Supreme Court on the question of Donald Trump’s immunity from criminal prosecution got underway Thursday, Trump’s lawyer started out by saying a president could assassinate a political rival if it could be considered an “official act.”
“If the president decides that his rival is a corrupt person and he orders the military … to assassinate him, is that within his official acts for which he can get immunity?” Justice Sonia Sotomayor asked Trump attorney John Sauer.
Sauer, invoking an argument he made previously before Thursday replied: “It could well be an official act.”
When Sotomayor pressed him if it mattered if the former president was doing it for his “personal gain,” Sauer offered a condition.
“A president is entitled for total personal gain to use the trappings of his office … without facing criminal liability.”
The content of the alleged improper act isn’t what the liability hinges on anyway, according to Sauer.
At the start of arguments Thursday, the attorney said if a president can be charged, put on trial and imprisoned for his “most controversial decisions as soon as he leaves office, that looming threat will distort the presidency’s decision-making precisely when bold and fearless action is needed.”
Former presidents like George W. Bush and Barack Obama and current President Joe Biden could be prosecuted for their conduct while in office if the court rules against Trump here, Sauer argued.
Historically, Trump has argued that because Obama used drone strikes that killed American citizens abroad, he should have been prosecuted but was not. He has also pointed to former President George W. Bush and has said that he could be held to account for dragging the United States into war in Iraq.
Sotomayor told Sauer she was having a “hard time” with this line of reasoning and others.
“I’m having a hard time thinking that creating false documents, that submitting false documents, that ordering the assassination of a rival, that accepting a bribe and a countless other laws that could be broken for personal gain, that anyone would say it would be reasonable for a president, or any public official to do that,” she said.
Justice Elena Kagan also asked Trump’s lawyer, rather pointedly, how immunity might apply to a president who orders the military to “stage a coup.”
“There’s a whole series of guidelines against that,” Sauer said, noting that the U.S. military is already legally forbidden from following plainly unlawful acts.
If the president were to stage a coup with the military’s help, or attempt to, he could be impeached for it, the attorney conceded, but there may also be circumstances in which this could be deemed an “official act” of the presidency.
“What does that mean?” Kagan asked abruptly. “He was the president, he is the commander in chief, he talks to generals all the time and told the generals, ‘I don’t feel like leaving office, I want to stage a coup.’ That sure sounds bad, doesn’t it?”
Sauer pushed back, saying this is why the Framers of the Constitution made “structural checks” to guard against that scenario.
Kagan stopped the attorney.
“The Framers did not put an immunity clause into the Constitution but they knew how to. There were some in state constitutions, they knew how to get legislative immunity,” Kagan said.
Would it really be “so surprising” that the framers were “reacting to a Monarch” who believed itself to be above the law?
“Wasn’t the whole point that the president is not a monarch and not above the law?”
Sauer said the Constitution did include it, if indirectly, through the “executive vesting clause”
When Justice Brett Kavanaugh went to shore up Sauer’s claims, he remarked that while the president is not above the law and “not a king,” the “point” Sauer was trying to make it seemed, was that the president is subject to criminal liability for personal acts — just like every other American.
The question hinges on whether he can be prosecuted for “official acts,” Kavanaugh said.
Arguing on behalf the government Thursday was Michael Dreeben, Justice Department counselor to special counsel Jack Smith.
Trump’s novel theory of immunity would mean immunity for former presidents for a range of crimes, including some of the most serious like treason, bribery, sedition and murder.
“And here,” Dreeben said, “conspiring to use fraud to overturn the results of an election and perpetuate himself in power.”
This sort of immunity has “no foundation” in the Constitution though there is in fact a “carefully balanced framework that protects the president but not at the high institutional cost of blanket immunity.”
Trying to pick apart Trump’s claim that criminal liability vulnerabilities would mean all presidents going forward would be infringed upon from taking swift action on legitimate policy decisions, Dreeben noted that the Office of Legal Counsel has already addressed this with something known as a “public authority exception.”
This has been read into federal law unless Congress takes action to “oust it, which it has never done, ” Dreeben said.
“In a case in which a president sought to engage in overseas activity that would engage in taking of life, OLC didn’t say federal murder statute didn’t apply. That would be thrust of my friend’s argument on clear statement. Instead, OLC went through analysis on why public authority defense would prevent it from being considered a violation of law to go after a terrorist, for example,” he said.
Notably, Justice Clarence Thomas drew a curious comparison Thursday when Dreeben was up.
“In the not so distant past, presidents engaged in coups. Like Operation Mongoose when I was a teenager and there were no prosecutions then. Why? If what you’re saying is right, it would seem that would have been right for the criminal prosecution of someone [then?]” Thomas said.
Operation Mongoose is not quite a 1-for-1 comparison, however. Operation Mongoose purported to remove Fidel Castro from power in Cuba. The charges against Trump allege that he tried to conspire against the overturning of his own government.
“This is a central question. The reason why there has not been prior criminal prosecutions is there were not crimes,” Dreeben said.
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