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

Not all of the justices agreed, however -- and a decision is expected by June.

ByAlexandra Hutzler, Meredith Deliso, Alexander Mallin, and Mike Levine
Last Updated: April 25, 2024, 9:09 AM EDT

The U.S. Supreme Court heard arguments Thursday on whether former President Donald Trump can be criminally prosecuted over his efforts to overturn his 2020 election loss.

The justices grappled with the monumental question of if -- and if so, to what extent -- former presidents enjoy immunity for conduct alleged to involve official acts during their time in office.

Trump claims "absolute" protection for what he calls official acts, though he denies all wrongdoing. The high court divided over this, but most of the conservative-leaning justices in the majority seemed open to some version of it while still excluding a president's "private" conduct.

The high court's ruling will determine if Trump stands trial before the November election on four charges brought by special counsel Jack Smith, including conspiracy to defraud the United States. A decision is expected by June.

Latest headlines:

Here are highlights from the hearing.
Apr 25, 2024, 10:28 AM EDT

Justice Gorsuch floats idea of sending issue back to lower courts

Justice Neil Gorsuch was the first on the bench to raise the idea of sending the immunity question back to the lower courts.

Gorsuch said a key question is how to segregate private conduct and official conduct that may, or may not, enjoy some immunity.

The justice said the appeals court "left open in that case the possibility of further proceedings and trial."

"Exactly right. And that would be a very natural course for this court to take in this case," Trump's attorney responded.

Apr 25, 2024, 10:18 AM EDT

Justice Sotomayor raises assassination hypothetical

Minutes into arguments, Justice Sonia Sotomayor raised the question of whether immunity extends to political assassinations.

The issue was discussed at length in a lower court hearing. Then, Trump attorney John Sauer suggested Trump could be immune, under certain circumstances.

"I'm going to give you a chance to say if you stay by it," Sotomayor said. "If the president decides that his rival is a corrupt person and he orders the military, or orders someone to assassinate him, is that within his official acts for which he can get immunity?"

"It would depend on the hypothetical, but we could see that could well be an official act," Sauer said.

Apr 25, 2024, 10:13 AM EDT

Justice Brown Jackson: Every president 'has understood that there was a threat of prosecution'

Justice Ketanji Brown Jackson pressed Trump attorney John Sauer on his contention that without immunity all future presidents would feel paralyzed to take official acts while in office that could put them in criminal jeopardy.

"I mean, I understood that every president from the beginning of time essentially has understood that there was a threat of prosecution [upon leaving office]," Jackson said.

Sauer responded by quoting Benjamin Franklin from the constitutional convention, to which Jackson seemed skeptical.

"But since Benjamin Franklin everybody has presidents who have held the office [who knew] that they were taking this office subject to potential criminal prosecution, no?" she said.

Apr 25, 2024, 10:11 AM EDT

1st questions from Thomas: Where does immunity come from?

Justice Clarence Thomas opened questioning by getting to the heart of the case: where is the "source" of presidential immunity and how would the court come to decide what acts fall under that scope.

First, he asked Trump's attorney to be "more precise as to the source" of supposed presidential immunity.

John Sauer responded that it comes from the executive vesting clause of the Constitution.

Thomas then pressed how exactly the court would "determine what an official act is," to which Sauer said acts fall within the “outer perimeter” of a president's official duties.