The question seems fundamental but it has never been asked in these terms before the Supreme Court. Should a US president enjoy special protection, shielding him from future criminal prosecution for acts committed while in office? On Thursday, April 25, the nine justices of the country’s highest court examined Donald Trump’s arguments in favor of total immunity in the exercise of his former duties.
A bold aspiration, aimed at neutralizing the charges against him in the federal investigation into the multi-faceted coup attempt that occurred between his defeat by Joe Biden in November 2020 and the assault on the Capitol by his supporters on January 6, 2021.
“We’re writing a rule for the ages,” warned Judge Neil Gorsuch, underlining the unprecedented nature of the ongoing debate, the gravity of which escapes no one, less than seven months before the US presidential election. Two lines of reasoning emerged from the judges’ remarks and questions. On the one hand, the three so-called liberal justices were keen to emphasize the grave dangers of offering de facto impunity to any president. On the other hand, their conservative colleagues questioned the risk of political instrumentalization of criminal proceedings against former presidents, who lack protection.
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Skepticism
The expected meeting point between the two parties was a shared skepticism about the request for total immunity. It would mark a rupture, a disruption in the balance of power and in the exercise of the presidential mandate.
“Wasn’t the whole point [of the Constitution] that the president was not a monarch and the president was not supposed to be above the law?” stressed Elena Kagan. She asked Trump’s lawyer whether immunity should cover the sale of nuclear secrets to a rival country. “And what if a president ordered the military to stage a coup?” she added. Her colleague, Sonia Sotomayor, agreed. “If the president decides that his rival is a corrupt person, and he orders the military or orders someone to assassinate him, it is that within his official acts for which he can get immunity?” she asked.
The Conservative majority seemed particularly keen to clarify the scope of partial immunity. This would mean distinguishing more clearly between the official and private acts of a president, one of the main disputes in this case. For example, Michael Dreeben, representing the Justice Department on Thursday, found that the promotion of fraudulent alternative voter lists by Trump and his advisers in late 2020 was not “official conduct.”
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