Supreme Court Arguments Show Trump Will Not Face Another Trial Before the Election

The Court will reject Trump’s absolute immunity argument, but Trump wins on everything else. Expect a long delay and no chance of a trial before the election.

Immunity Question

CNN has a pretty good summation of the Supreme Court Arguments on Trump’s Absolute Immunity Claims.

Much of the hearing focused on whether there should be a distinction between official acts by Trump pursuant to his presidential duties and his private conduct.

Chief Justice John Roberts at one point criticized the unanimous and scathing ruling against Trump from the US Court of Appeals for the DC Circuit that would have allowed his case to quickly move to a trial. Roberts suggested the appeals court didn’t lay out an adequate reason for why virtually all of Trump’s actions were subject to prosecution.

“As I read it, it says simply a former president can be prosecuted because he’s being prosecuted,” Roberts said skeptically. “Why shouldn’t we either send it back to the court of appeals or issue an opinion making clear that that’s not the law?”

In a notable series of concessions, Trump’s attorney John Sauer acknowledged that some of the alleged conduct supporting the criminal charges against the former president were private.

Justice Amy Coney Barrett was the first to pin Sauer down on the distinction between official and personal acts alleged in the charges. He tentatively agreed with how, in court filings, the special counsel had labeled particular acts as private – acts that alleged that Trump plotted with his private attorneys and campaign advisers to spread bogus election fraud claims, to file false court filings and to put forward fraudulent sets of electors. As part of the exchange, he conceded those private acts would not be covered by presidential immunity.

In a later back and forth with Justice Elena Kagan, Sauer muddied the waters.

He said that Trump’s phone call with Georgia Secretary of State Brad Raffensperger , in which he requested Raffensperger “find” enough votes to flip the results, was not an official act. But Sauer claimed Trump was acting in an official capacity in his conversation with the Republican National Committee about assembling slates of so-called “fake electors” and his call for the Arizona lawmakers to hold a hearing on election fraud.

Sauer’s willingness to commit to the idea that some allegations in the indictment weren’t protected by immunity was an extraordinary walk back of what had been the former president’s position up to that point.

But the Trump lawyer may be hoping that the move will encourage the justices to order more proceedings on deciding what’s private and what’s public in the indictment, a move that could seriously delay the case’s march to trial.

Liberal justices weren’t impressed with Trump’s absolute immunity claims

It was pretty clear where the court’s three liberals will be when the opinion lands.

Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson spent much of the argument quizzing the attorneys on the potential implications of Trump’s absolute immunity position.

In one of the many hypotheticals the liberals tossed at Trump’s attorney, Kagan asked what would happen if a president ordered the military to stage a coup. Could that be prosecuted under Trump’s theory?

Sauer responded that a president would first have to be impeached and convicted before he could be charged criminally. Kagan fired back by asking what would happen if the order came on the final days of a presidency and there was not time to impeach or convict.

“You’re saying that’s an official act? That’s immune?” Kagan asked.

Sauer had to acknowledge that, under Trump’s theory, “it could well be.”

“If there’s no threat of criminal prosecution, what prevents the president from just doing whatever he wants?” 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.”

Conservatives worry about subjecting ex-presidents to illegitimate criminal proceedings

There was some handwringing by conservatives about the possibility that an ex-president would be subjected to criminal proceedings for conduct that might ultimately be covered by immunity or some form of presidential protection.

Alito went as far as to suggest that denying ex-presidents immunity would discourage peaceful transfers of power, because outgoing presidents who lost hotly contested elections would not want to depart peacefully if they were concerned they’d be prosecuted by their political rival.

Trump ‘absolutely’ had a right to put forward fake electors, his lawyer says

Underscoring the sweep of Trump’s claims, Sauer said that his client “absolutely” had a right to put forward Republican electors in states that he lost in 2020, commonly called “fake electors.”

He made these comments under questioning from liberal Justice Sonia Sotomayor, who asked if “it’s plausible” that a president might have the right to help create a “fraudulent slate” of electors, which would mean that it would be an official government act that might be covered by immunity.

Analysis of the Arguments

An attorney friend of mine who has argued cases before the Supreme Court, offers this assessment of the questioning.

I listened to the entire argument.  The Court will reject Trump’s absolute immunity argument.  Roberts, Kavanaugh, and Barrett crapped all over that idea.

But the Justices don’t like the DC Circuit approach.  There is a principle of limited immunity for official acts — obviously, never applied in the Presidential context — but applied to protect officials from criminal suits involving allegations of violations of citizens’ constitutional rights.  Kavanaugh and Roberts supporting him, seem inclined to apply that principle here.  (Barrett seemed like she was torn as to whether to do that or join the liberals.). That will require a preliminary fact-based hearing to determine which acts were “official” and deserve limited immunity and which acts are private and get no immunity.  I feel pretty confident that’s what will happen here.  Barrett would be the sixth vote. Gorsuch, Alito, and Thomas might go for absolute immunity, but that doesn’t matter, as the deciding votes determine the remedy.  

So, that’s what’s going to happen.  This means no trial before the election.  But Judge Tanya Churkin, who controls her own calendar, will follow the SC’s mandate and conduct a fact-based preliminary hearing to determine which acts were official and which were private.  And at that hearing, there will be evidence that Trump ordered the military to stage a coup — otherwise, there is no explanation for Sauer’s (Trump’s lawyer) position, in response to Justice Kagan’s question, that an order to the military to stage a coup would be an immune “official act.”  It was a very extreme position, which a skilled attorney would only take if he thought he might need that way out.

Fact Finding Mission

Tanya Chutkin is the judge overseeing Trump’s federal election interference case. She is about to go on a fact finding mission to separate what is an official act from a private act.

I caution against reading too much into my friends statement “And at that hearing, there will be evidence that Trump ordered the military to stage a coup — otherwise, there is no explanation for Sauer’s (Trump’s lawyer) position …”

He is not making a claim on how strong that evidence might be or that he would agree with it. Rather, it’s simply a statement that some evidence will be introduced. We cannot comment on the case or the evidence before we see what the case and evidence even is.

I found some of the statements by Sauer to be more than a bit extreme, if not bizarre. But the court appeared to strike down those extreme positions, so the point is moot.

Big Victory for Trump

Trump did not get everything he wanted, but he did get the most that could be realistically expected.

The fact finding mission and subsequent delays men there will be no more trials before the election.

Media Circus in New York

The current trial in New York is an ill-advised media circus that I expect to backfire on Biden.

For discussion, please see The Trump Trial Opening Statements Confirm a Zoo Spectacle

As the trial has progressed, the case is getting more bizarre and much weaker. I will do an update shortly.

Black Voters Abandoning Biden In Huge Numbers

Please note Swing State Poll Shows Black Voters Abandoning Biden In Huge Numbers

Immigration won’t decide the election. Polls have not yet captured what will. This may come as a surprise, but the top issue housing. More explicitly, it’s shelter costs.

Economically Speaking

On April 20, I commented People Who Rent Will Decide the 2024 Presidential Election

Turnout of young voters and blacks, very upset of escalating rents and being locked out of buying a house will decide the elections. See the above link for detailed analysis.