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.

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.

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.