In historic Trump hearing, Supreme Court majority suggests presidents may have some criminal immunity
Not all of the justices agreed, however -- and a decision is expected by June.
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.
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Alito suggests some sympathy toward Trump's position
Justice Samuel Alito has multiple times over the course of questioning sounded sympathetic toward Trump's positions.
He also seemed to raise concerns about former presidents suffering the burden of having to go through a trial if they are criminally charged.
"That may involve great expense, and it may take up a lot of time, and during the trial the former president may be unable to engage in other activities that the former president would want to engage in, and then the outcome is dependent on the jury, the instructions to the jury and how the jury returns a verdict, and then it has to be taken up on appeal," Alito said at one point.
In his final question to government attorney Michael Dreeben, Alito seemed to suggest that Trump's prosecution could serve to incentivize future presidents to try and unlawfully remain in office in order to avoid prosecution by their successors.
"Now, if an incumbent who loses a close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement -- but that the president may be criminally prosecuted by a bitter political opponent. Will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?" Alito asked.
"I think it is exactly the opposite, Justice Alito," Dreeben replied, noting Trump and his allies filed dozens of lawful challenges to the results of the election and lost.
"There is an appropriate way to challenge things through the courts with evidence," Dreeben said. "If you lose, you accept the results, that has been the nation's experience, I think the court is well familiar with that."
DOJ on what executive functions have 'absolute protection'
Asked by Justice Elena Kagan what "core" executive functions have "absolute protection," government attorney Michael Dreeben said they include pardon power, veto, foreign recognition and appointments.
"Congress cannot say you can't appoint a federal judge who hasn't received a certain diploma, hasn't achieved a certain age," he said.
Commander in chief is also on the list, he said, though added that Congress has "substantial authority in the national security realm."
"I think that there may be some aspects like directing troops on the field in which the president's power is completely unreviewable," he said.
Justices ask attorneys if presidents can pardon themselves
As the justices wrestle with immunity, they are posing another question to lawyers: Can presidents pardon themselves?
Justice Neil Gorsuch asked Trump attorney John Sauer about the possibility, saying presidents could be incentivized to do so if they fear their successors could prosecute them for actions they took while in office.
"I didn't think of that until your honor asked it," Sauer said. "That is certainly incentive that might be created."
Michael Dreeben, arguing for the government, was later asked for his view on whether the president has such authority.
"I don't believe the Department of Justice has taken a position," Dreeben said. "The only authority that I'm aware of is a member of the Office of Legal Counsel wrote on a memorandum that there is no self-pardon authority. As far as I know, the department has not addressed it further, and the court had not addressed it either."
Alito asks how 'robust' protection against bad faith prosecution is
Justice Samuel Alito addressed the "layers of protection" against bad faith prosecutions raised by the DOJ.
"I'm going to start with what the D.C. Circuit said. So, the first layer of protection is that attorneys general and other justice department attorneys can be trusted to act in a professional and ethical manner, right?" Alito said. "How robust is that protection?"
Alito continued that the "vast majority" of attorneys general and justice department attorneys "take their professional ethical responsibilities seriously" but that there have been exceptions.
In response, DOJ attorney Michael Dreeben agreed that there have been "rare exceptions" and said that "we're talking about layers of protection."
"I do think this is the starting point, and if the court has concerns about the robustness of it, I would suggest looking at the charges in this case," he said.
"The allegations about the misuse of the Department of Justice to perpetuate election fraud show exactly how the Department of Justice functions in the way that it is supposed to," Dreeben said. "Petitioner is alleged to have tried to get the Department of Justice to send fraudulent letters to the states to get them to reverse electoral results."
Trump's attorneys reverse their stance on prosecuting a president
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