Supreme Court Hears Arguments for Trump’s Presidential Immunity Claim

trump immunity scotus

As Donald Trump sat through another day of damning testimony in his criminal hush-money trial, the Supreme Court heard oral arguments in his bid to establish widespread presidential immunity from criminal prosecution over “official” acts committed in office. 

The case before the Supreme Court stems from Trump’s ongoing efforts to delay or dismiss the Justice Department’s case against him over his role in efforts to overturn the 2020 election and the Jan. 6 riot. The court’s decision will have profound implications on the criminal indictments currently on the former president’s rap sheet.

So what kind of crimes do the former president’s attorneys think should fall under the umbrella of executive immunity? Pretty much everything, apparently, including political assassinations. 

When asked by Justice Sonya Sotomayor during arguments on Thursday if the president deciding “that his rival is a corrupt person and he orders the military — or he orders someone to assassinate him” would constitute an official act subject to immunity, attorney D. John Sauer said it could. 

“It would depend on the hypothetical but we can see that could well be an official act,” Sauer told the court. 

In another hypothetical, Justice Elena Kagan asked if the president would be immune from prosecution if he sold nuclear secrets to a foreign adversary. Sauer affirmed that the sale was an “official act” the president would need to first be impeached and convicted before he could be prosecuted. 

Sauer also claimed under questioning that a president could theoretically be immune from prosecution if he carried out — or attempted to carry out — a coup against the government. 

“Let’s say this president ordered the military to stage a coup. He’s no longer president. He wasn’t impeached, he couldn’t be impeached, but he ordered the military to stage a coup, and you’re saying that’s an official act?” Justice Elena Kagan asked. 

“I think it would depend on the circumstances whether it was an official act,” Sauer responded. “If it’s an official act, there needs to be impeachment and conviction before [criminal charges could be pursued]. 

The justices certainly appeared skeptical of the notion that the president could commit a crime and skate criminal liability. “The most powerful person in the world could go into office knowing that there would be no potential penalty for committing crimes,” Justice Ketanji Brown Jackson said. “I’m trying to understand what the disincentive is from turning the Oval Office into the seat of criminal activity in this country.” 

Trump was not present during the hearing, as he is required to appear as a defendant in Manhattan court. “I think the Supreme Court has an important argument today,” Trump told reporters Thursday morning. “I would have liked to be there but the judge here wouldn’t allow that.” Trump then accused Judge Juan Merchan of putting “himself above the Supreme Court.” 

In February, D.C.’s Federal Court of Appeals summarily rejected the arguments made by Trump’s attorneys — including that the president would be protected from prosecution even if he had his political opponents assassinated. The three-judge panel unanimously determined that Trump is not shielded from prosecution for potential crimes committed in office related to the subversion of the 2020 election.

“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the panel wrote. “But any executive immunity that may have protected him while he served as President no longer protects.”

“Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct,” the judges added.

The conservative-controlled Supreme Court then announced in late February that it would take up the case. The decision all but ensured that a potential trial in the Justice Department’s case wouldn’t take place until after the 2024 election. Trump’s team was thrilled. “Literally popping champagne right now,” one lawyer close to Trump told Rolling Stone.

Trump has long been ranting about the matter in his public statements and on social media, effectively making the immunity issue a plank of his presidential campaign. “If you don’t have immunity, you’ll just have a ceremonial president,” Trump told reporters Thursday morning ahead of his arrival in court, insisting his crusade to make sure presidents can commit crimes “has nothing to do with me.”

“Without Presidential Immunity, a President will not be able to properly function, or make decisions, in the best interest of the United States of America,” the former president wrote earlier this week on Truth Social. “Presidents will always be concerned, and even paralyzed, by the prospect of wrongful prosecution and retaliation, after they leave office. This could actually lead to extortion and blackmail of a President,” he added.


Despite Trump’s public insistence that he deserves widespread immunity, his own legal team seems prepared to have their claims rejected by the highest court in the land. Rolling Stone reported on Wednesday that many of the former president’s lawyers and political advisers are bearish on their odds of success — but it’s not all doom and gloom. 

“We already pulled off the heist,” one source close to Trump said, adding that regardless of what the court decides, they’ve already managed to severely stall the DOJ’s election interference case.

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