Rick Hasen’s Live Blog of the Supreme Court’s Oral Argument Over Trump’s Claim of Immunity in the Federal Election Subversion Case (Updates completed)

[This post has been updated.]

After a couple of hours of oral argument, it appears that the Supreme Court is unlikely to embrace either Donald Trump’s extreme position—that would seem to give immunity for a president who ordered an assassination of a rival or staged a coup—or the government’s position that a former president is not absolutely immune even for his or her official acts. Conservatives on the Court are going to make it hard to prosecute a former president for most crimes. But they are likely to reject some of the most extreme, insane, authoritarian arguments that were made by Trump’s lawyer.

The final opinion will likely come closer to the government’s position, but it will almost certainly result in a divided set of opinions (which take more time to draft) and a lot of work on remand to rework the results of the case. The bottom line is that Trump is likely to get what he wants—a further delay of this election subversion case, maybe pushing it to after the election. If that happens, the public won’t get the benefit of having a jury determine before the election if Trump tried to steal the 2020 election. Further, if Trump is elected in 2024, he can end this and the other federal prosecution against him. He also is likely to try to pardon himself. And the Supreme Court will be complicit in much of this.

From earlier:

I have called the federal case against Donald Trump for attempting to subvert the results of the 2020 U.S. presidential election perhaps the most important case in U.S. history, at least when it comes to our democracy. That case should have gone to trial last month, but the case got put on hold when Donald Trump filed an interlocutory appeal (that is, an appeal in the middle of trial proceedings) arguing that he is absolutely immune from any criminal prosecution for any acts he undertook as President. Trump lost that argument in the trial court and in the U.S. Court of Appeals for the D.C. Circuit. The Supreme Court agreed to hear the case, on a somewhat expedited basis, but not on the basis that Jack Smith, the special counsel, had asked for (he originally wanted the Court to leapfrog over the D.C. Circuit but the Court said no). Trump already may have effectively won by running out the clock so a trial could not happen before the election. This is the last argument day of the term, and I would not expect an opinion until the very end of the Supreme Court’s term in late June or early July, unless there’s movement to expedite following oral argument.

What I was listening for: how much is there a focus on Trump’s actions in trying to subvert the election? Is there a path to saying that at least such interference is not immune, leaving other immunity issues to another day? Is the Court going to be worried about a slippery slope of potential criminal prosecutions of former presidents after they leave office?

Below the fold you will find my notes that I took as argument went forward:

Arguments have begun. John Sauer for Trump, raising potential claims against other presidents potentially being indicted for official acts.

Justice Thomas asks the first question—and we should not let this opportunity to pass to mention that he should recuse given that his spouse has credibly been alleged to have been part of same attempt to subvert the results of the 2020 election?

Chief Justice Roberts asks about bribery for money from the president. Sauer’s response misunderstands how bribery works and how there is legislative immunity. This is not an impressive start for Sauer.

Justice Sotomayor asks if there would be immunity if President ordered military to assassinate a rival for personal gain. She’s going hard at Sauer on how bad it would be to absolute immunity for personal gain.

Justice Jackson—zeroes in on what counts as an official act for purposes for absolute immunity. What defines an official act? She suggests that when the President uses the trappings of his office for personal gain, that’s not an official act.

If everyone thought President Nixon was immune, what was up with the pardon?

Justice Gorsuch gets Sauer to agree that there’s no absolute immunity for non-official act.

Sauer also agrees that further proceedings would be required as to any non-official acts. That of course would delay things.

Alito floats: absolute immunity except for when there’s no plausible claim that it is not within realm of law. So maybe something so evil. Not plausibly legal to order Seal Team 6 to assassinate a rival.

Sotomayor asks to apply that here to the allegations against Trump: right to create a fake slate of electors. Sauer seems to say yes.

Justice Kavanaugh weighs in, asking where the D.C. Circuit went wrong in applying official acts rule.

Justice Barrett: do you agree that there are sufficient private acts to go to forward immediately to a trial? She’s reading parts of the government’s brief on all the things Trump is alleged to have done, and Sauer concedes they are not official acts. This is a big concession, as Rick Pildes notes.

Of course, figuring out which acts could be pointed to could be the basis for further delay. If Trump is election in 2024 and he hasn’t been prosecuted yet, he could stop this prosecution from going forward.

Justice Kagan gets Sauer to concede that signing a fake affidavit saying there was fraud of the election is not an official act. Sauer does say that organization of alternative slates of electors is an official act. Sauer also says that President communicating with state officials to get them to overthrow the results of the election should be an official act.

Overall Sauer has had a very hard time with his arguments before the Court, and he made some major concessions.

Sauer seems to say that ordering the military to do a coup would count as an official act. Kagan tries to pin him down. Sauer says there has to be impeachment.

Justice Gorsuch floats the idea of a clear statement rule: Congress would have to have a clear statement from Congress that something is unlawful, that would be enough.

Gorsuch raises risk that presidents may want to pardon themselves before leaving office if they know they could face criminal prosecution after office. This is one of the only friendly questions towards Trump’s side that we’ve heard so far.

Kavanaugh also seems sympathetic to the idea that executive immunity, like executive privilege, doesn’t need to be expressed in the Constitution.

Justice Jackson pushes hard on the idea that with absolute immunity put in place, they could pursue crimes with abandon.

Sauer’s argument is breathtaking in allowing the President to murder or commit a coup so long as it is wrapped in the trappings of a President’s official acts.

We should have a better sense of how far the Court is going to go in rejecting what Sauer is arguing when the government’s lawyer, Michael Dreeben is up.

Dreeben names the kinds of crimes that a President could commit if there were absolute immunity including treason, bribery, murder, and as in this case, election subversion.

Did Justice Thomas just say that earlier Presidents have engaged in coups?

Chief Justice Roberts sugggests that prosecutorial discretion and grand jury indictment may be not enough to safeguard former President from being chilled while in office.

Dreeben says that a criminally driven prosecution would be illegal, and the courts stand ready to adjudicate motions to throw out such cases based on selective prosecution etc.

Roberts suggests there may have to be more parsing in the courts below, which suggests further delay.

This argument still has a ways to go. But it is easy to see the Court (1) siding against Trump on the merits but (2) in a way that requires further proceedings that easily push this case past the election (to a point where Trump could end this prosecution if elected).

Alito going heavy on the chilling effect. He’s skeptical of an argument of no form of immunity.

Kavanaugh now seems to want a clear statement rule: the only crimes that can be prosecuted against the President are when Congress has specifically said so in a statute. He suggests that’s what OLC opinions say. Dreeben says that’s not what OLC says. and it’s a bad rule.

Kavanaugh says he’s concerned about politically motivated prosecutions against former presidents.

Gorsuch seems to be piling on. He asks, echoing the Fischer case heard last week, whether the President could be prosecuted for obstructing an official proceeding (something that is like what Trump has been charged with).

Alito too sees a role for some absolute immunity. Clear he’s not going to agree with the government about the scope.

Dreeben stresses that what Trump was charged with, trying to subvert the election, is not part of any official acts. Alito wants to avoid the facts of this case (for good reason!).

Alito going on and on, really doing the job much better than Trump’s lawyer on Trump’s behalf.

Alito tries to turn things on their head, by saying that to encourage peaceful transitions of power, you need to give incumbents absolute immunity so they will leave and won’t worry about prosecution later. This is the most insane thing I’ve heard today (and there have been many crazy things).

Dreeben responds that Alito has it exactly backwards: the potential for criminal liability encourages incumbents not to coup to stay in office.

Justice Kagan is working to prop up the government’s position by coming up with where the line drawing should happen in terms of when the President could not be indicted for certain official acts (such as vetoing, nominating, etc.)

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