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

A notable response came from Chief Justice John Roberts when Trump's attorney pushed for the justices to remand the case back down to the lower courts to sort through which allegations in the indictment amount to an "official act" under the presidency versus those that were private and outside the office's authority -- and potentially criminally liable.

"The official stuff has to be expunged completely from the indictment before the case can go forward," John Sauer said.

"That's like a one-legged stool, right?" Roberts responded. "I mean, giving somebody money isn't bribery unless you get something in exchange. If what you get in exchange is to become the ambassador to a particular country, that is official, the appointment, it's within the president's prerogatives. The unofficial part is 'I'm going to get a million dollars for it.'"

In an unusual moment after this exchange, Justice Clarence Thomas raised unprompted whether Trump's legal team was challenging the legality of the appointment of special counsel Jack Smith -- a questionable theory previously pushed by right-wing lawyers like former Attorney General Ed Meese.

Sauer said Trump's legal team was making that argument in his separate Florida federal case, in which Trump is accused of mishandling classified information while out of office, but they weren't doing so directly in this case, to which Thomas did not follow up.

Justice Samuel Alito then asked Sauer if all official acts alleged in the indictment should be excluded from trial, to which Sauer answered they should.

But Justice Sonia Sotomayor pressed back on the notion of remanding the case, which outside observers see as one potential outcome that would likely draw out the lower court proceedings for many months, past the November election.

Sotomayor argued that even in the instances of acts that could be considered official, they came in the context of Trump pushing forward in his "private" intent of remaining in office despite losing to Joe Biden.

"I don't think the indictment is charging that the obstruction occurred solely because of conversations with the Justice Department," she said. "They're saying you look at all of the private acts and you look in the context of some of the public acts, and you can infer the intent, the private intent, from them."

Justice Amy Coney Barrett read aloud from special counsel Smith's brief, in which he made the case that even if the Supreme Court were to decide there was some immunity from official acts, there were sufficient private acts in the indictment for the trial to proceed immediately.

"I want to know if you agree or disagree about the characterization of these acts as private," she said.
"You concede that private acts don't get immunity," she told John Sauer, Trump's lawyer, who said, "We do."

He went on to say that some purported actions in the indictment were indeed "private" -- including Smith's allegation that Trump turned to a private attorney who knowingly spread false claims of election fraud to spearhead his challenges to 2020 election results and that he conspired with others to implement a plan to obstruct the certification of President Joe Biden's win.

"So those acts you would not dispute," Barrett said. "Those were private and you would not raise a claim that they were official?"

Sauer agreed.

Other justices returned to that line of questioning while pressing Sauer over the rest of his questioning.

"So apply it to the allegations here," she said, referring to a key part of Smith's case against Trump. "A fraudulent slate of electoral candidates, assuming you accept the facts of the complaint on their case -- is that plausible that would be within his right to do?"

Trump's attorney replied, "Absolutely."

Sotomayor pushed back: "Knowing that the slate is fake. Knowing that the slate is fake, that they weren't actually elected, that they weren't certified by the state."

John Sauer said he disputed the characterization the electors were "fake."

"This was being done as an alternative basis," he argued of the competing, alleged electors put forth in various states as part of a push to reverse Trump's 2020 defeat.

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.