The US Supreme Court does not appear to be willing to accept that former President Donald Trump has complete immunity and could be protected from the federal accusation in Washington that he tried to overturn the 2020 elections. However, the conservative-majority court (which includes three judges chosen by Trump himself) also showed reluctance to leave the door open for prosecutors to pursue all charges against the former president. And this could mean returning your case to the lower courts, to decide what is an “official act” and what is not, delaying the eventual trial beyond the November elections.
The judges heard arguments from prosecutor Michael Freeben and defense lawyer John Sauer for almost three hours this Thursday. The first claimed that the idea of total immunity would open the door to a president being able to “bribe, commit treason or sedition, kill” or, as in Trump’s case, “conspire to use fraud in order to overturn the results of an election and remain in power.” And he insisted that the framers of the Constitution “knew well the dangers of a king who could do no wrong.”
On the other side, Sauer insists that the former president is entitled to total immunity – even in extreme cases, such as ordering the death of a political rival. The defense claims that if the president does not have immunity when he leaves office, he may hesitate to make some decisions. “If a president can be impeached, taken to court and detained for his most important decisions as soon as he leaves office, this imminent threat will lead to a distortion of the president’s decision-making, precisely when bold and fearless action is most needed,” he said.
But Trump’s lawyer also admitted that there are some private acts that are taken by presidents that may fall outside the so-called “official acts”, and are therefore not included in the immunity to which they are entitled. But Trump claims that, for example, the steps he took to try to block the certification of Joe Biden’s election victory were part of his official duties.
It is through the questions that the judges ask both sides that it is possible to understand which side they lean towards. And it seemed clear that the idea of total immunity did not please the judges. But Chief Justice John Roberts and other conservatives have seemed to lean toward the idea that it is the presiding judge who should decide whether the acts in the indictment are official or not, opening the door for the process may return to lower courts.
The judges’ decision is only expected in late June or early July and could affect the timing of the case against Trump. The trial was scheduled for March 4th, but the case was suspended pending the different appeals. A possible decision only in the summer could delay the trial beyond the November elections, and if Trump wins he could pressure the Justice Department to drop the federal charges against him or potentially issue a pardon that benefits him.
