Trump immunity case highlights: Ex-president's lawyers and DOJ argue before Supreme Court

WASHINGTON — The Supreme Court on Thursday indicated that any trial in former President Donald Trump’s election interference case is unlikely to take place anytime soon, with justices expressing concerns about whether certain presidential acts should be off-limits.

Although the court appears likely to reject Trump’s expansive claim of absolute immunity, it could remand the case for further proceedings, further delaying the chance of a trial taking place before the election.

The court is weighing the novel legal question of whether a former president can be prosecuted for what Trump’s attorneys say were “official acts” taken in office, though much of the focus remains on whether the justices will rule quickly so a trial can take place before the November election.

With most legal experts questioning Trump’s broad argument that the entire election interference indictment should be dismissed based on immunity, the court’s eventual ruling on the extent to which official acts are protected and how quickly it rules will be of equal importance.

The special counsel was in the courtroom and present for arguments this morning.

At the close of arguments, Justice Ketanji Brown Jackson said there are real concerns about future presidents being prosecuted and asked Dreeben to comment on whether some of the caution from the Justice Department and prosecutors comes from an understanding that presidents will soon be former presidents as well.

Dreeben replied, “absolutely,” adding that her point is a “structural argument that’s built into the Constitution itself.”

Jackson went on to say that she views that as an “equal” argument to concerns that presidents wouldn’t be burdened by the fear about criminal prosecutions for their actions.

Oral arguments are complete and court has adjourned for the day.

During her questioning, Barrett asked whether the special counsel lawyers would still pursue prosecution of Trump's private acts even they weren't allowed to prosecute him for his official acts as president.

"There's really an integrated conspiracy here that had different components, as alleged in the indictment, working with with private lawyers to achieve the goals of the fraud, and ... the petitioner reaching for his official powers to try to make the conspiracies more likely to succeed," Dreeben answered.

Dreeben added, "We would like to present that as an integrated picture to the jury so that it sees the sequence and the gravity of the conduct and why each step occurred," but if the court ruled that much of Trump's conduct was private, "we would take a jury instruction that would say, you may not impose criminal culpability for the actions that he took, however, you may consider it insofar as it bears on knowledge and intent."

Dreeben acknowledged that "no perfect system" exists, but that the government is "trying to design a system that preserves the effective functioning of the presidency and the accountability of a former president under the rule of law."

"And the perfect system that calibrates all of those values probably has not been devised," he said. "I think that the system that we have works pretty well, maybe it needs some, a few ancillary rules. It is different from the radical proposal” of my friend who argues absolute immunity.

Barrett replied that she agrees with that sentiment.

In response to a question from Kavanaugh about why former President Barack Obama was never prosecuted for drone strikes, Dreeben answered, in part, "this is actually the way that the system should function."

"So, the Office of Legal Counsel looked at this very carefully and determined that number one, the federal murder statute does apply to the executive branch, [but] the president wasn’t personally carrying out the strike," Dreeben said. He added, "But the aiding and abetting laws are broad, and it’s determined that a public authority exception that’s built into statutes and that applied — particularly the murder statute, because it talks about unlawful killing, did not apply to the drone strike. So this is actually the way that the system should function."

Justice Brett Kavanaugh said that, like Gorsuch, he’s “very concerned about the future,” as opposed to this particular case.

“That’s the concern going forward, is that the system will, when former presidents are subject to prosecution ... the history of Morrison v. Olson tells us it’s not going to stop,” Kavanaugh said. “It’s going to cycle back and be used against the current president or the next president and the next president after that.”

“I want you to try to allay that concern — why is this not Morrison v. Olson redux if we agree with you?” Kavanaugh asked Dreeben.

Referring to the case Kavanaugh cited, Dreeben responded that "the independent counsel regime did have many structural features that emphasized the independence at the expense of accountability. We don’t have that regime now."

In his questioning, Gorsuch said, “I’m not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives, whether it’s re-election or who knows.”

Dreeben clarified that the U.S. isn’t charging Trump for seeking to appoint favorable figures to his Cabinet, but for seeking to remove those who wouldn't help him overturn the election and for seeking to appoint those who would help him.

“For an incumbent president to then use his presidential powers to try to enhance the likelihood that it succeeds, makes the crime in our view worse," Dreeben said.

He added, "We’re not seeking to impose criminal liability on the president for exercising or talking about exercising the appointment and removal power. No, what we’re seeking to impose criminal liability for is a conspiracy to use fraud to subvert the election.”

Dreeben listed out what Suaer said constitutes official acts but the government considers private.

“Organizing fraudulent slates of electors, creating false documentation that says, ‘I’m an elector, I was appointed properly,’” Dreeben said. “I’m going to send a vote off to Congress that reflects that petitioner won rather than the candidate that actually got the most votes and who was ascertained by the governor and whose electors were appointed to cast votes.”

“That is not an official conduct, that is campaign conduct,” Dreeben added.

Alito further pressed Dreeben with a question on the peaceful transfer of power between presidencies, asking, “If an incumbent who loses a very close, hotly contested election and knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”

“I think it’s exactly the opposite, Justice Alito,” Dreeben answered, saying, “There are lawful mechanisms to contest the results in an election.”

Alito brings up the issue of self-pardoning, which other justices had previously raised.

If the court agrees that presidents can pardon themselves, "won't the predictable result be that presidents in the last couple of days of office are going to pardon themselves from anything that they might have been conceivably charged with committing?" Alito asked.

"I really doubt that, Justice Alito," Dreeben answered, adding later: "That seems to contradict a bedrock principle of our law, that no person shall be the judge in their own case."

Alito asked Dreeben, "If the president gets advice from the attorney general, that something is lawful, is that an absolute defense?"

Dreeben replied, "Yes."

"Wouldn’t that give presidents an incentive to be sure to pick an attorney general who can, who will reliably tell the president that it is lawful to do whatever the president wants to do if there’s any possibly conceivable argument in favor of it?" Alito pressed Dreeben.

Dreeben contended that "the constitutional structure protects against that risk."

"The president nominates the attorney general, and the Senate provides advice and consent," Dreeben said.

As he questioned Dreeben, Alito asked, "What about President Franklin D. Roosevelt’s decision to intern Japanese Americans during World War II, could [he] in fact have been charged under 18 U.S.C. 241 conspiracy against civil rights today?"

Dreeben agreed that, "Yes," he could have been charged if that happened today, "given this court’s decision in ... Trump v. Hawaii."

During his questioning, Alito seems skeptical of Dreeben's argument, asking him, "Did I understand you to say, 'Well, you know, if he makes a mistake, he makes a mistake. He's subject to the criminal laws just like anybody else.' You don't think he's in a peculiarly precarious position?"

In response, Dreeben told Alito, "He's under a constitutional obligation. ... He's supposed to be faithful to the laws of the United States and the Constitution of the United States."

He added, "And making a mistake is not what lands you in a criminal prosecution."

Dreeben circled back to a point the court discussed earlier regarding the "distinction between a public official acting to achieve public ends and a public official acting to achieve private ends" as applied to this case. 

"The president has no functions with respect to the certification of the winner of the presidential election," he said. "It seems likely that the framers designed the Constitution that way because at that time of the founding, presidents had no two-term limit, they could run again and again."

"So the potential for self-interest would explain why the state’s conduct, the elections, they send electors to certify who won those elections and to provide votes," he added. "And then Congress, in a joint extraordinary joint session, certifies the vote and the president doesn’t have an official role in that proceeding."

Gorsuch pressed Deeben about a potential scenario where a president leads a mostly peaceful protest or sit-in in front of Congress because he objects to a piece of legislation that’s going through, which leads to delays of proceedings in Congress.

Dreeben said he doesn’t think that would lead to prosecution.

“But without a clear statement that applies to the president ... it’s not core, the core kinds of activities that the court has acknowledged," Dreeben said. But things like the pardon power, the power to recognize foreign nations the power to veto legislation, the power to make appointments, these are things that the Constitution specifically allocates to the president.”

Sotomayor points out that the president is only explicitly mentioned in a few federal statutes, adding that, "Justice Barrett made the point that if we say a president can’t be included in a criminal law unless explicitly named, then that would bar the Senate from impeaching him for high crimes or misdemeanor because that means that he’s not subject to the law at all.”

Addressing Roberts, Dreeben said, "I would take issue, Mr. Chief Justice, with the idea of taking away immunity. There is no immunity that is in the Constitution unless this court creates it today."

"What is important is that no public official has ever had the kind of absolute criminal immunity that my friend speaks of," he added.

During questioning of Sauer, Jackson asked whether he believed that Congress would have to write "and the president is included" in every law it passed.

"I thought that was the sort of background understanding that if they’re enacting a generally applicable criminal statute, it applies to the president just like everyone else," Jackson said. "So, what is the clear statement that would have to be made?”

Sauer said that he believes "Congress has to speak clearly before it interferes with the president’s powers."

Thomas said that in the not so distant past, presidents who have engaged in various activities such as coups have not faced prosecution, specifically mentioning Operation Mongoose, which aimed to remove the Castro regime from power in Cuba.

“If what you’re saying is right, it would seem that that would have been ripe for criminal prosecution,” Thomas asked Dreeben.

Dreeben replied, “The reason why there have not been prior criminal prosecutions is that there were not crimes.”

“And I want to explain why there are layers of safeguards that assure that former presidents do not have to lightly assume criminal liability for any of their official acts,” Dreeben said.

Trump's attorneys are done with their arguments. Michael Dreeben has taken over with arguments for the U.S. now.

Amid her questioning, Jackson asks, "Why .... [would] the president ... not be required to follow the law when he is performing his official acts? Everyone else — there are lots of folks who have very high-powered jobs and they do so against the backdrop of potential criminal prosecution."

She further posited that perhaps presidents don't commit criminal acts because they're afraid of prosecution. That may not be case, she said, "once we say 'no criminal liability. Mr. President, you can do what you want.'"

In response, Sauer argued that presidents haven't been under credible threat of criminal prosecution since the founding of the U.S.

"The regime you've described is the one we've operated under for over 240 years," Sauer said.

Jackson told Sauer that he seems to be "worried about the president being chilled."

She then argued that in reality, a "really significant opposite problem" would emerge.

"If the president wasn’t chilled, if someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority, could go into office knowing that there would be no potential penalty for committing crimes, I’m trying to understand what the disincentive is from turning the Oval Office into, you know, the seat of criminal activity in this country,” she said.

“You’ve argued that the impeachment clause suggests or requires impeachment to be a gateway to criminal prosecution, right?” Barrett asked.

Sauer replied, “Yes, I think that’s the plain meaning of that second phrase in the clause.”

“OK, so there are many other people who are subject to impeachment, including the nine sitting on this bench, and I don’t think anyone has ever suggested that impeachment would have to be the gateway to criminal prosecution for any of the many other officers subject to impeachment,” Barrett pressed. “So why is the president different when the impeachment clause doesn’t say so?”

Sauer replied that then-U.S. Solicitor General Robert Bork in 1973 argued that “the sequence is mandatory only as to the president.”

Asked by Justice Neil Gorsuch whether a president can pardon himself, Sauer responded, "Perhaps if he feels he has to, he'll pardon himself every every four years from now on."

Kagan repeated the hypothetical situation of a president "who ordered the military to stage a coup — he’s no longer president, he wasn’t impeached, he couldn’t be impeached, but ordered the military to stage a coup, and you’re saying that’s an official act?” Kagan asked.

Sauer replied that “would depend on the circumstances whether it was an official act.”

Under questioning by Justice Elena Kagan, Sauer said two actions taken by Trump while in office were official, and thus he was ineligible to be criminally prosecuted for them.

First, Kagan asked about the "defendant [calling] the chairwoman of the Republican National Committee" and asking her "to gather electors in targeted states."

Then, she said, "The defendant asked the Arizona House speaker to call the Legislature into session to hold a hearing based on their claims of election fraud."

On the second point, Sauer said it was "absolutely an official act for the president to communicate with state officials."

"When you say that the official acts should be expunged from the indictment, that in itself would not achieve very much unless evidence of those official acts were precluded at trial. So is that what you’re saying?" Alito asked Sauer. "That the prosecution should not be permitted at trial to prove the official acts as part of the conspiracies that are alleged?"

Sauer confirmed that was the premise of his argument.

"Absolutely, and we think that’s just the clear implications of Brewster and Johnson and their discussion. It’s very, very analogous context," Sauer said.

Oral arguments have repeatedly referred to Blassingame, a decision from the U.S. Court of Appeals for the District of Columbia Circuit that involved numerous lawsuits against Trump in his personal capacity. The decision, which came out in December, denied Trump's claims of presidential immunity for now.

“The sole issue before us is whether President Trump has demonstrated an entitlement to official-act immunity for his actions leading up to and on January 6 as alleged in the complaints. We answer no, at least at this stage of the proceedings,” a panel of judges ruled.

The case is named after James Blassingame, a Capitol Police officer who was injured in the Jan. 6, 2021, riot.

During her questions, Justice Amy Coney Barrett asked Sauer to "agree or disagree with the characterization of these acts as private." He agreed that all were private acts:

• Petitioner turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results.
• Petitioner conspired with another private attorney who caused the filing in court of a verification signed by petitioner that contain false allegations to support a challenge.
• Three private actors — two attorneys, including those mentioned above, and a political consultant — helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.

“What is plausible about the president insisting and creating a fraudulent slate of electoral candidates. ... Is that plausible that that would be within his right to do?” Sotomayor asked.

Sauer replied “absolutely,” saying there was historical precedent in President Ulysses S. Grant sending federal troops to Louisiana and Mississippi in 1876 to make sure that the Republican electors got certified.

“The notion that it’s completely implausible, it just can’t be supported based on the face of this indictment, or even knowing that the slate is fake ... that they weren’t actually elected, that they weren’t certified by the state.”

Sauer then disputed the characterization of the word “fraudulent” electors in the indictment.

“On the face of the indictment, it appears that there was no deceit about who had emerged from the relevant state conventions, and this was being done as an alternative basis,” he said.

Justice Samuel Alito posed a question to Sauer: "Suppose the rule were that a former president cannot be prosecuted for official acts unless no plausible justification could be imagined for what the president did. ... Would that be sufficient or if it is insufficient?"

In response, Sauer said he believed that would be insufficient, adding "that might be a much better rule than what emerged in the lower courts."

Justice Ketanji Brown Jackson posed the question to Sauer that if presidents can’t be prosecuted, why was former President Richard Nixon pardoned?

“What was up with the pardon for President Nixon? I think that if everybody thought that presidents couldn’t be prosecuted, then what was that about?” she said.

Sauer replied, “Well, he was under investigation for both private and public conduct at the time.”

Chief Justice John Roberts asked a hypothetical question about whether a president could be prosecuted for appointing someone ambassador after being paid a $1 million bribe.

One million dollars is exactly the amount of money that Gordon Sondland, who was at the center of Trump's first impeachment trial, gave to Trump's inauguration fund before he was named ambassador to the European Union.

Presidents of both parties have named donors to ambassadorships. The money that Sondland, a wealthy hotelier, donated went to Trump's inauguration fund, not Trump directly, so it wasn't a personal bribe.

“Do you know what a quid pro quo is?” Rep. Jim Jordan asked Sondland during a hearing in November 2019. "I do," Sondland responded.

NBC News’ Shaquille Brewster reports from outside the Supreme Court where protesters are demonstrating as the court is set to hear arguments over former President Trump’s claim of presidential immunity in the election interference case against him.

Sotomayor pointed out that the founders had discussed whether to grant immunity to the president, adding that they had state constitutions that granted some criminal immunity to governors, but yet they didn’t take it up.

Instead, she said, they passed an impeachment clause that says you can’t remove the president from office except through a trial in the Senate and can impose criminal liability after.

As she questioned Sauer, Sotomayor told him, "I am 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 countless other laws that could be broken for personal gain, that anyone would say that it would be reasonable for a president or any public official to do that.”

In a question to Sauer, Justice Sonia Sotomayor posed a hypothetical: If the president ordered the military to assassinate a rival he views as corrupt, "is that within his official act for which he can get immunity?"

Sauer answered that, "it would depend," but "we can see that could well be an official act."

Sauer argues in his opening that if a president can be charged, put on trial and imprisoned for “controversial decisions” upon leaving office, “that looming threat will distort the president’s decision-making precisely when bold and fearless action is most needed.”

“Could President George W. Bush be sent to prison for obstructing an official proceeding or allegedly lying to Congress to induce war in Iraq?” he asked. “Could President Obama be charged with murder for killing U.S. citizens abroad by drone strike? Could President Biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policies?”

Justice Clarence Thomas asks the first question, to Sauer. He asks Sauer to detail where presidential immunity is founded in law.

Oral arguments in front of the justices have begun.

Today's arguments come after several Trump aides and allies were indicted yesterday as part of an Arizona investigation into alleged efforts to overturn Biden's 2020 win in the swing state.

The former president was also described as an "unindicted coconspirator" in the indictment from the Arizona state grand jury.

Trump was also labeled an uncharged co-conspirator in the 2020 "false electors" scheme in Michigan, according to a state investigator's testimony, which also occurred on Wednesday.

In a series of posts to his Truth Social platform this morning, Trump again asserted that he has presidential immunity from criminal charges over his efforts to overturn the 2020 election results.

“Without Presidential Immunity, the Presidency will lose its power and prestige, and under some Leaders, have no power at all. The Presidency will be consumed by the other Branches of Government,” he wrote. “That is not what our founders wanted!”

Trump’s lawyers argue that their client is being prosecuted for “official acts” during his time in office. In his post, Trump argues that if a president does not have total immunity, then the opposing party can “extort and blackmail” the president during his or her term in office.

“If a President does not have Immunity, the Opposing Party, during his/her term in Office, can extort and blackmail the President by saying that, ‘if you don’t give us everything we want, we will Indict you for things you did while in Office,’ even if everything done was totally Legal and Appropriate,” he wrote. “That would be the end of the Presidency, and our Country, as we know it, and is just one of the many Traps there would be for a President without Presidential Immunity.”

The justices will directly address the following question when they issue their opinion in this case: “Whether and, if so, to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office?"

Former Missouri Solicitor General D. John Sauer will be arguing on behalf of Trump. He's argued in front of the Supreme Court once before, in a case he won 5-4.

On the opposing side, former deputy U.S. Solicitor General Michael Dreeben will argue for the U.S. He worked for special counsel Robert Mueller on the Russia probe and has argued in front of the Supreme Court over 100 times before.

Media is gathered at the Supreme Court, preparing for arguments today. There are a few protest banners outside the fence, including a large sign in the style of Trump's campaign banners that reads: “LOSER."

Thomas Windom, the lead prosecutor on Trump’s Washington election interference case, is attending arguments today. Stands to reason others from the special counsel’s office will be here as well.

The former president will be in court in New York as today's arguments play out before the Supreme Court.

Trump faces 34 counts of falsifying business records tied to hush money payments to adult film star Stormy Daniels. He has pleaded not guilty.

David Pecker is expected to return to the Manhattan courthouse for witness testimony today, and Judge Juan Merchan is expected at some point to issue a decision on whether the former president willfully violated a gag order.

NBC News legal analyst Joyce Vance joins "Meet the Press NOW" to discuss what to expect as the Supreme Court is set to hear arguments on former President Donald Trump’s presidential immunity claims.

Trump's presidential immunity arguments have been winding through courts for months ahead of today's arguments — with discouraging results for the former president.

In December, Judge Tanya Chutkan dismissed two of Trump's motions to toss out the D.C. election interference case against him, ruling that presidents do not have absolute immunity. Trump's lawyers had argued in an October filing to Chutkan that he should be shielded by presidential immunity.

WASHINGTON — Tackling an unprecedented and politically fraught issue, the Supreme Court on Thursday considers former President Donald Trump’s assertion of total immunity from criminal charges over his attempt to overturn the 2020 election results.

The court will take on the novel legal question of whether a former president can be prosecuted for what Trump’s attorneys say were “official acts” taken in office, though much of the focus remains on whether the justices will rule quickly so a trial could take place before the November election.

With most legal experts questioning Trump’s broad argument that the entire election interference indictment should be dismissed based on immunity, the court’s eventual ruling on the extent to which official acts are protected and how quickly it rules will be of equal importance.

The case puts considerable scrutiny on the court, which has a 6-3 conservative majority that includes three justices Trump appointed. The court already handed Trump an election-year boost when it ruled last month that Colorado could not kick him off the ballot.

Read the full story here