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Sceptical Supreme Court Could Hand Trump Partial Victory In Immunity Case

Tyler Durden's Photo
by Tyler Durden
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After two and a half hours, the Supreme Court has finished hearing arguments on whether a former president is immune from criminal prosecution.

Reading the tea-leaves of the comments has left most believing that SCOTUS will fail to grant former President Trump the full immunity he is seeking (choosing instead to narrow the protections for former presidents), but are likely to issue a ruling that could further delay his trial on charges of conspiring to overturn the 2020 election.

That would be a partial win for the former President.

As Axios reports, a definitive ruling against Trump - a clear rejection of his theory of immunity that would allow his Jan. 6 trial to promptly resume - seemed to be the least likely outcome.

  • A majority of the justices seemed inclined to rule that former presidents must have at least some protection from criminal charges, but not necessarily the "absolute immunity" Trump is seeking.

  • The core distinction during oral arguments came down to a president's official vs. unofficial actions. — and which of Trump's efforts to overturn the 2020 election results were official vs. unofficial.

  • The most likely outcome might be for the high court to punt, perhaps kicking the case back to lower courts for more nuanced hearings.

That would still be a victory for Trump, as Sam Dorman reports via The Epoch Times that the outcome of this appeal could delay lower court proceedings in President Trump’s Washington trial as well as his cases in Georgia and Florida. It’s unlikely that the Supreme Court, which is expected to release a decision in June, will write an opinion that delays his ongoing criminal “hush money” trial in New York.

The bottom-line is that no clear, concise majority opinion emerged this morning.

But there may be five justices willing to kick the can down the road - and that's enough for Trump, at least for now.

*  *  *

The Supreme Court will hear oral argument today over former President Donald Trump’s claim that he’s immune from criminal prosecution for official acts he undertook while in office.

Listen live here (due to start at 1000ET):

Jonathan Turley is live-blogging the hearing on X:

We are off and running on the oral arguments on immunity with John Sauer, former Scalia clerk, arguing for the former president.

...Chief Justice Roberts asked the most poignant question. What if a president appointed an ambassador (a clearly official act) but does so for a bribe? Sauer offered a nuanced point that the bribe itself would not be an official act...

...Justice Sotomayor just hit Sauer and said that Trump was only acting for personal gain and not in the interests or in a function of his government. She is making the slippery slope argument that such immunity would protect the assassination of a president...

...Justice Jackson said that "every president from the beginning of time" understood that they could be prosecuted but they "have continued to function and do their job."...

...Sauer agrees that a president can be prosecuted for private conduct. His point is only that the motivations of official conduct should not be the inquiry of the court. He is doing a good job in maintaining a more nuanced position before the Court...

...Justice Alito is asking whether the "robust form of immunity" that he is presenting is really necessary. Alito is exploring the middle ground that some of us have previously discussed...

...Sauer responded again about the danger of allowing motivations to be pursued. Alito suggests that they may insist on objective, not subjective, grounds in making the key determination -- on "purely objective grounds" to determine if this is an official function or issue...

...Interestingly, Alito seems to have answered Sotomayor on a hypothetical in dealing with the term "plausible" . . . an early preview of the conference!

... Justice Thomas just asked Sauer if he is challenging the constitutionality of the Special Counsel. Sauer said that they have not come so in this case.

...Sotomayor just referred to the alternative electors as "fake" and Sauer pushed back on the language of the indictment on the record for decision...

...Justice Kagan just asked what would happen if the President order a "coup" and whether it would be an official act. Sauer said that "it would depend." Kagan responded "that sure sounds bad doesn't it?"

Michael Dreeben is now up for Special Counsel...

...Roberts just slammed the lower court "a former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has acted in defiance of the laws."...

...He said that he is "concerned" because it sounds like "a former president can be prosecuted because he is being prosecuted."...

...Roberts just laid low the appellate decision and Dreeben struggled in defense of it. Roberts responded that, if the Special Counsel does not subscribe to the sweeping decision, why shouldn't the court send it back?

...Roberts said that the D.C. Circuit failed to do a "focused" analysis on these act by adopting a "tautological" standard...

...Gorsuch returned to whether Dreeben is suggesting that immunity questions turn on motivations. Dreeben insists that it is the objection of the conduct rather than the motives...

...Dreeben just conceded that he is not sure if motivations would be relevant in determining immunity in relation in core powers...

...Gorsuch noted however that all presidents use their powers in part out of a desire to get reelected. Dreeben insisted that this all just falls under a different category. Gorsuch is clearly frustrated the lack of clarity if motive are relevant...

...Dreeben just dealt with the drone strikes and said Obama fell in an exception from the murder statute. 

...Barrett noted that that sounds a lot like a public versus private distinction...

...This "public authority defense" sounds a lot like arguing a question of motives, again, as raised by the other justices. Dreeben could only say that it was based on "objective" facts.

...Justice Barrett just asked if any immunity would also bar state prosecutions. She suggested that immunity may also protect a president from standing for trial on the state or local levels...

As The Epoch Times' Sam Dorman reports, besides altering longstanding precedent, the decision could bear heavily on, and delay the criminal prosecutions President Trump is facing before the election.

An appeals court in Washington rejected his attempt to claim immunity in the Justice Department’s prosecution of his activity on Jan. 6 and in response to the 2020 presidential election.

The Supreme Court is set to review that decision and potentially establish a broader definition of presidential immunity.

The Supreme Court here has three main options:

  1. to uphold the appeal court’s rejection of President Trump’s immunity claims,

  2. to accept his claims,

  3. or remand the matter back to U.S. District Court Judge Tanya Chutkan with a refined test on what presidential acts are immune from prosecution.

Nixon v. Fitzgerald, a Supreme Court case from 1973, established that presidents enjoy absolute immunity from civil liability for actions that fell within the “outer perimeter” of their official duties.

Experts speculated to The Epoch Times that the justices could extend that same framework to criminal liability.

This is the second major oral argument the justices are hearing about attempts to punish President Trump for his conduct following the 2020 presidential election.

They heard oral argument in February over Colorado’s attempt to disqualify him from the state’s ballot, and issued a unanimous judgment in opposition.

A week before President Trump’s appeal is reaching the Supreme Court, the justices also heard oral argument over how the DOJ applied a financial reform law to Jan. 6 defendants. That same law forms part of DOJ’s indictment against President Trump.

Separation of Powers is a major issue that will likely loom large in both the oral argument and eventual opinion.

President Trump has argued that judicial review of his official acts would be inappropriate, while Special Counsel Jack Smith said granting criminal immunity would upset the balance of power and allow presidents to get away with egregious wrongdoing.

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