In Trump hearing, SCOTUS majority suggests presidents may have some criminal immunity

There is "nothing in the text of the Constitution that speaks to immunity in one way or another," said David Schultz, a national expert in constitutional law.

But there is textual evidence from the Constitution's framers -- including Benjamin Franklin and Alexander Hamilton -- about how they viewed the issue.

"We have language from some framers indicating that even if there might have been some immunity while a person was president of the United States, once they've left office there's no immunity and they could be charged with the crime," Schultz said.

Read more about what history says about immunity here.

Just a few demonstrators stood in front of the Supreme Court -- which is wrapped in security fencing -- ahead of the hearing Thursday morning.

They held signs including ones that read "Absolute immunity = absolute tyranny" and "Loser."

-ABC News' Devin Dwyer

When Smith handed down his charges in August 2023, a majority of Americans (51%) thought the indictment was very serious, according to an ABC News/Ipsos poll taken shortly after. Overall, 65% of adults thought then that the charges were serious, including 51% who said they were very serious and 14% who said they were somewhat serious.

At the time, a plurality of Americans (49%) said Trump should suspend his presidential campaign, while 36% said he shouldn't.

On Trump’s immunity claim, an overwhelming number of Americans (66%) thought in that poll that the former president should not be immune to criminal prosecution for actions he took while president, according to an ABC News/Ipsos February poll. That included 45% of Republicans and 83% of Democrats. Independents fell in between at 66%.

As Smith's team has noted in arguing against Trump, the former president's lawyers during his second Senate impeachment trial said in very clear terms that they believed a president could in fact be criminally prosecuted by the Department of Justice -- the opposite of what his legal team is currently arguing.

"If my colleagues on this side of the chamber actually think that President Trump committed a criminal offense -- and let's understand, a high crime is a felony and a misdemeanor is a misdemeanor; the words haven't changed that much over time -- after he is out of office, you go and arrest him," one of his attorneys said in opening statements during his impeachment trial in 2021, shortly after Jan. 6.

"We have a judicial process in this country, we have an investigative process in this country, to which no former officeholder is immune,” Trump's attorney said then.

But now, facing federal charges related to Jan. 6, Trump's lawyers argue a president can only be prosecuted if he is impeached, convicted by the Senate and removed from office.

The Senate in his second impeachment trial acquitted, though a majority of lawmakers voted to convict him.

-ABC News' Katherine Faulders