Supreme Court justices clashed Thursday over former President Donald Trump’s claims of “absolute immunity” from being prosecuted for his official acts while he was in the White House, sorting through competing dangers of an unleashed president on one hand, or a crippled one on the other.
Justices seemed to be in agreement that some presidential conduct is immune to prosecution, but they sparred over where to draw the line and what it will mean for presidents long after Mr. Trump’s case is done.
“We’re writing a rule for the ages,” said Justice Neil M. Gorsuch, a Trump appointee.
The court’s liberal-leaning justices were 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?”
But Justice Brett M. Kavanaugh, a Trump appointee, countered that there is some limit to immunity.
“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 President Biden. It is being prosecuted by special counsel Jack Smith.
Legal experts say the ruling will likely reverberate across some of the other criminal cases facing Mr. Trump, including Mr. Smith’s separate prosecution that he mishandled government secrets and perhaps even a Georgia prosecutor’s case that Mr. Trump meddled in the state’s 2020 election results.
As with so much about Mr. Trump, the case enters new and tricky territory, and the justices were clearly 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.
And Chief Justice John G. Roberts Jr., a Bush appointee, wondered about whether the president could be prosecuted for naming a particular ambassador in exchange for a bribe.
The court’s Democrat-appointed justices worried about the danger of a president unchecked, while GOP 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.”
But Justice Gorsuch wondered whether by allowing prosecutions, a president won’t just issue a pardon to himself. 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 he said that’s narrow and only applies to acts where the president was purely within his “core” constitutional powers, such as vetoing legislation, issuing pardons or some aspects of being commander in chief.
“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 lawyer, said presidents can only be prosecuted 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, or 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.
“There needs to be an impeachment conviction beforehand,” Mr. Sauer said.
Mr. Trump lost in the lower courts, with the U.S. Circuit Court of Appeals for the District of Columbia saying there is no immunity from prosecution, even for official acts. The appeals court said prosecutors’ good faith means bad prosecutions won’t be brought.
Chief Justice Roberts said that 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.”
Mr. Trump was not present for the oral argument Thursday. He was in a courtroom in Manhattan, where he is facing a trial on charges he falsified business documents to hide hush money paid to a porn star ahead of the 2016 election.
The former president complained about missing the Supreme Court arguments, blaming the New York judge for not allowing 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’s 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 Bush senior 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, but the law only allows current U.S. attorneys to be appointed — as was done with 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.