Can the president of the United States order the assassination of a political rival? Donald Trump maintains yes. His lawyer, John Sauer, argued this Thursday in the solemn courtroom of the Supreme Court in the case Donald Trump against the United States. He has also argued that the president could be immune even for ordering a coup. With a Trump who is running again for the presidential elections in November, who leads the polls, who calls for revenge and who has said that he is going to be a “dictator” for a day, his thesis causes chills. The judges, including the conservative ones, were reluctant this Thursday to assume that doctrine, but they did appear open to limiting or delaying the accusations against the former president.
What is at stake in the case being discussed by the Supreme Court is not an accusation of murder, but four alleged crimes for trying to alter the results of the 2020 presidential elections, which he lost to Joe Biden, and clinging to power by cheating and preventing the certification of that victory. Although the justices have been skeptical about Trump’s claims of full immunity, conservatives have also expressed concern that a former president could be charged like a normal citizen.
The sentence will arrive in the coming weeks and will mark Trump’s judicial future. Judges can admit or reject immunity outright, but conservatives seemed more in favor of taking a middle path, establishing general criteria for which official acts could be shielded from persecution and under what circumstances and referring to a later decision by the lower courts. By delaying the process, probably until after the elections, that would already be a victory for Trump. The claim of immunity has managed to delay the start of the trial for attempting to subvert the results of the 2020 elections, initially scheduled for March 4.
The hearing, lasting more than two and a half hours, took place in Washington while the former president sat in the dock in New York, where he is being tried for alleged crimes committed before he was president. In the Supreme Court, his immunity was being discussed in a historic case that can draw the contours of presidential power for the future. No president or former president has been indicted before Trump, so the Supreme Court has never ruled on the issue. “This case has enormous implications for the presidency, for the future of the presidency, for the future of the country,” Justice Brett Kavanaugh said.
private acts
Donald Trump does not actually claim absolute immunity. His lawyer admitted that he could be charged for his private conduct, but not for acts carried out in the exercise of his position, although considering that the murder of rivals and the coup d’état could fall into that category.
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“I think it would depend on the circumstances, whether it was an official act,” Sauer said in reference to a hypothetical coup d’état. “It might as well be an official act,” she insisted, eliciting an astonished response from progressive Justice Elena Kagan. Trump’s lawyer pointed out that, in any hypothesis, he would have to be subjected to impeachment and convicted by the Senate before he could be criminally prosecuted.
There it was even the conservative Amy Coney Barrett who responded by emphasizing that other positions, including Supreme Court justices, can be subject to impeachment without anyone interpreting that without a conviction in an impeachment trial they cannot be prosecuted for a possible crime. “Why is the president different?” he said.
The president’s hypothetical immunity for ordering special forces to assassinate a political rival has already emerged in the Court of Appeals. This time it was Judge Samuel Alito, one of the most conservative, who raised it and who then showed skepticism that such an act could be worthy of immunity.
The blurred line between personal and official acts occupied part of the debate, but the judges were reluctant even to grant full immunity for official acts, since that would give the president of the United States almost unlimited power. Or, alternatively, to consider any act in the exercise of office official.
Trump maintains that if a president can be persecuted after leaving the White House, that will condition his actions. Progressive Judge Ketanji Brown Jackson, on the other hand, warned of the risk that “the most powerful person in the world (…) could go to work knowing that there would be no potential penalty for committing crimes.”
Sauer argued that the president must be free from obstacles to make important decisions with courage. Jackson replied: “There are many people who hold positions of great responsibility, who make many important decisions, and they do so against the backdrop of the possibility of being criminally prosecuted if they break the law in the exercise of their duties,” he argued. . “There are a lot of people who have to make life or death decisions, and they still have to follow the law. And if they don’t do it, they can go to jail,” he insisted. Jackson warned that absolute immunity could turn the Oval Office into “the headquarters of criminal activity in this country.”
The conservative magistrates, on the other hand, were more receptive on that point towards Trump’s argument. Neil Gorsuch suggested that if presidents fear they could be impeached after leaving office, they could begin preemptively pardoning themselves. “We have never answered whether a president can do that. And happily, he has never introduced himself to us,” he said.
Kavanaugh, one of three Supreme Court members appointed by Trump, said he was concerned about the possibility of a “creative prosecutor” going after a president. Samuel Alito, one of the most conservative, went further by pointing out the supposed risk to democracy that presidents could not leave office with the peace of mind that they were going to retire peacefully and that this could tempt them to cling to power. It’s just the opposite of what happened: Instead of walking away, Trump refused to recognize Biden’s victory and is accused of violating the law by trying to hold on to office.
In his turn, prosecutor Michael Dreeben was blunt regarding this possibility of accusations against each other: “The reason why there have been no previous criminal prosecutions [de un presidente] “There were no crimes.”
John Roberts, president of the Court, criticized the circular argument of the Court of Appeals decision that ruled that Trump does not have immunity, and that the former president appealed. “As I read, he simply says: a former president can be prosecuted because he is being prosecuted. Now, you know how easy it is in many cases for a prosecutor to get an indictment from a grand jury. And relying on the good faith of the prosecutor may not be enough in some cases,” he added.
Along these lines, Alito referred to the old saying that procedural facilities allow prosecutors to convince a grand jury even to “indict a ham sandwich.” And he asked the prosecutor if he had encountered many cases in which a grand jury rejected an indictment from prosecutors. When Michael Dreeben tried to answer that he had once been like that, Alito cut him off: “Every once in a while there is also an eclipse,” he said, causing the only laughter heard in the room this Thursday.
Roberts had previously put his finger on the problem of the difficulty of separating official and private acts. If a president accepts a million-dollar bribe to appoint someone as ambassador, can he argue that the appointment of ambassadors is an official act to claim immunity?
Prosecutor Michael Dreeben said that what Trump was seeking was “widespread criminal immunity” and that his “alleged abuse of official power to subvert democracy” should not go unpunished.
The three progressive judges aligned themselves with her position. Jackson mentioned Richard Nixon’s pardon to try to demonstrate that Trump’s immunity thesis did not hold up: “If everyone thought that presidents could not be prosecuted, what was the point of that?” he said, referring to the pardon.
“The Founding Fathers did not put an immunity clause in the Constitution. They knew how to do it,” Kagan argued. And he added: “They were reacting against a monarch who claimed to be above the law. “Wasn’t it about the president not being above the law?”
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