Conservative Justices Take Argument Over Trump’s Immunity in Unexpected Direction

Before the Supreme Court heard arguments on Thursday on former President Donald J. Trump’s claim that he is immune from prosecution, his stance was widely seen as a brazen and cynical bid to delay his trial. The practical question in the case, it was thought, was not whether the court would rule against him but whether it would act quickly enough to allow the trial to go forward before the 2024 election.

Instead, members of the court’s conservative majority treated Mr. Trump’s assertion that he could not face charges that he tried to subvert the 2020 election as a weighty and difficult question. They did so, said Pamela Karlan, a law professor at Stanford, by averting their eyes from Mr. Trump’s conduct.

“What struck me most about the case was the relentless efforts by several of the justices on the conservative side not to focus on, consider or even acknowledge the facts of the actual case in front of them,” she said.

They said as much. “I’m not discussing the particular facts of this case,” Justice Samuel A. Alito Jr. said, instead positing an alternate reality in which a grant of immunity “is required for the functioning of a stable democratic society, which is something that we all want.”

Immunity is needed, he said, to make sure the incumbent president has reason to “leave office peacefully” after losing an election.

Justice Alito explained: “If an incumbent who loses a very close, hotly contested election 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?”

Justice Ketanji Brown Jackson took a more straightforward approach. “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’re in office?” she asked.

Supreme Court arguments are usually dignified and staid, weighed down by impenetrable jargon and focused on subtle shifts in legal doctrine. Thursday’s argument was different.

It featured “some jaw-dropping moments,” said Melissa Murray, a law professor at New York University.

Michael Dorf, a law professor at Cornell, said that “the apparent lack of self-awareness on the part of some of the conservative justices was startling.” He noted that “Justice Alito worried about a hypothetical future president attempting to hold onto power in response to the risk of prosecution, while paying no attention to the actual former president who held onto power and now seeks to escape prosecution.”

In the real world, Professor Karlan said, “it’s really hard to imagine a ‘stable democratic society,’ to use Justice Alito’s word, where someone who did what Donald Trump is alleged to have done leading up to Jan. 6 faces no criminal consequences for his acts.”

Indeed, she said, “if Donald Trump is a harbinger of presidents to come, and from now on presidents refuse to leave office and engage in efforts to undermine the democratic process, we’ve lost our democracy regardless what the Supreme Court decides.”

The conservative justices did not seem concerned that Mr. Trump’s lawyer, D. John Sauer, said his client was free during his presidency to commit lawless acts, subject to prosecution only after impeachment by the House and conviction in the Senate. (There have been four presidential impeachments, two of Mr. Trump, and no convictions.)

Liberal justices asked whether he was serious, posing hypothetical questions.

“If the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him,” Justice Jackson asked, “is that within his official acts for which he can get immunity?”

Mr. Sauer said “that could well be an official act” not subject to prosecution.

Justice Elena Kagan also gave it a go. “How about,” she said, “if a president orders the military to stage a coup?”

Mr. Sauer, after not a little back and forth, said that “it could well be” an official act. He allowed that “it certainly sounds very bad.”

Justice Clarence Thomas, who participated in the case despite his wife Virginia Thomas’s own vigorous efforts to overturn the election, was not so sure.

“In the not-so-distant past, the president or certain presidents have engaged in various activity, coups or operations like Operation Mongoose when I was a teenager, and yet there were no prosecutions,” he said, referring to the Kennedy administration’s efforts to remove Fidel Castro from power in Cuba.

Professor Murray said she was struck by that remark, apparently offered “as evidence that there was a longstanding history of executive involvement in attempted coups.”

Justice Alito also turned to history. “What about President Franklin D. Roosevelt’s decision to intern Japanese Americans during World War II?” he asked. Could that have been charged, he asked, as a conspiracy against civil rights?

Prompted by Justice Brett M. Kavanaugh, Mr. Sauer added another requirement to holding a former president accountable. Not only must there first be impeachment and conviction in Congress, but the criminal statute in question must also clearly specify in so many words, as very few do, that it applies to the president.

That seemed a little much for Justice Amy Coney Barrett, the member of the court’s conservative wing who appeared most troubled by the sweep of Mr. Trump’s arguments.

Returning to “Justice Kagan’s example of a president who orders a coup,” Justice Barrett sketched out what she understood to be Mr. Sauer’s position.

“You’re saying that he couldn’t be prosecuted for that, even after a conviction and impeachment proceeding, if there was not a statute that expressly referenced the president and made it criminal for the president?”

Correct, Mr. Sauer said.

The court will issue its ruling sometime between now and early July. It seems likely to say that at least some of Mr. Trump’s conduct was part of his official duties and so subject to some form of immunity.

The court is unlikely to draw those lines itself, instead returning the case to Judge Tanya S. Chutkan, of the Federal District Court in Washington, for further proceedings.

“If that’s the case,” Professor Murray said, “that could further delay the prospect of a trial, which means that whatever is ultimately decided about the scope and substance of presidential immunity, the court will have effectively immunized Donald Trump from criminal liability in this case.”

There is a live prospect, Professor Karlan said, that “there won’t be a trial until sometime well into 2025, if then.”

Sending the case back to the trial judge, she said, “to distill out the official from the private acts in some kind of granular detail essentially gives Trump everything he wants, whether the court calls it immunity or not.”