The nine Supreme Court justices spent almost three hours Thursday parsing oral arguments in former President Donald Trump’s case demanding absolute immunity from charges related to his actions after the 2020 presidential election.
Their decision in the case could alter the fundamental understanding of a president’s constitutional powers for generations to come, stakes that were not lost on the justices.
Here are nine key exchanges during oral arguments in Trump v. United States.
Was FDR a criminal?
Michael Dreeben, Justice Department counselor to the special counsel:
“It’s common ground that all former presidents [knew] that they could be indicted and convicted. And Watergate cemented that understanding. The Watergate smoking gun tape involved President Nixon and H.R. Haldeman talking about and then deciding to use the CIA to give a bogus story to the FBI to shut down a criminal investigation.”
Justice Samuel Alito:
“Mr. Sauer and others have identified events in the past where presidents have engaged in conduct that might have been charged as a federal crime. And you say, ‘Well, no, that’s not really true.’ This is page 42 of your brief. So what about President Franklin D. Roosevelt’s decision to intern Japanese Americans during World War II? Couldn’t that have been charged under 18 USC 241 conspiracy against civil rights?
Dreeben: “Today? Yes, given this court’s decision in Trump versus United States.”
What about Bush, Obama, and Biden?
Trump lawyer John Sauer:
“Could President George W. Bush have been sent to prison for obstructing an official proceeding or allegedly lying to Congress to induce war in Iraq? Could President Obama be charged with murder for killing US citizens abroad by drone strike? Could President Biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policies?”
Much later during the oral arguments, Justice Bret Kavanaugh:
“How about President Obama’s drone strikes?”
Dreeben
“The Office of Legal Counsel looked at this very carefully and determined that number one, the federal murder statute does apply to the executive branch. The president wasn’t personally carrying out the strike. But the aiding and abetting laws are broad, and it determined that a public authority exception that’s built into statutes … did not apply to the drone strike.”
‘Loser gets thrown in jail’
Alito:
“If an incumbent who loses a very close, hotly contested election, knows that [there’s] a real possibility after leaving office … 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? And we can look around the world and find countries where we have seen this process where the loser gets thrown in jail.” --->READ MORE HERE
During nearly three hours of historic Supreme Court arguments, John Roberts said little. But the cagey chief justice made some points abundantly clear.
A lower court decision that Donald Trump lacks absolute immunity will not stand as written. The court cannot rely on the good faith of prosecutors. And whatever the staggering facts of the election subversion allegations against Trump, they are not his concern here.
Yet, Roberts kept his cards close to his vest on the full merits of the case as other justices played theirs – for and against the former president. That strategy will no doubt give the chief more options as the nine begin negotiating the decision.
Given the signals Thursday from Roberts and other justices, a majority would reject his broad proposition and find some criminal liability for former presidents who engaged in criminal acts while in office.
Yet, whatever Trump loses on larger constitutional grounds, he may gain in the pure practicalities of avoiding to account for charges arising from the 2020 presidential contest before the 2024 election – a gift for Trump from the conservative Supreme Court.
The tenor of the arguments differed strikingly from the sentiment of lower court judges who’d previously heard Trump’s claim, as Roberts and the right wing concentrated on a former president’s potential exposure to retaliation by political opponents.
They avoided the particulars of the allegations against Trump, his rejection of the 2020 presidential election results, the efforts to organize alternate slate of electors and the January 6, 2021, US Capitol attack. --->READ MORE HERE
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