J. Scott Applewhite/AP Photo
Protesters demonstrate outside the Supreme Court as the justices hear arguments in the Trump presidential immunity case, April 25, 2024, in Washington.
The oral arguments last Thursday over whether former President Donald Trump has immunity from prosecution for trying to overturn the results of the 2020 election removed all remaining doubt that the Trump-appointed justices and their conservative colleagues will go to any lengths to protect Republican policy priorities and absolve the party’s current presidential candidate.
By the end, it was clear that each of the Republican-appointed justices is opposed to the notion that a jury’s decision as to Trump’s guilt should come as soon as possible, even though the public has an obvious and overwhelming interest in a speedy trial. The Supreme Court’s eventual ruling will effectively postpone any trial until well after this year’s elections, boosting Trump’s chances, as my colleague Harold Meyerson observed shortly after the oral arguments.
Even worse, the justices’ questions revealed that the highest court in the land is unlikely to ever hold Trump accountable for inciting an insurrection and trying to overturn an election by force and by fraud. Judging by the conservative justices’ questions, the Court’s eventual ruling will likely narrow the allegations and charges, and could end up eliminating some of the most significant and telling elements of the historic case.
Throughout the arguments, the conservative justices steadfastly steered the conversation away from the underlying facts, including how Trump tried to exploit the violence at the Capitol on January 6th that he had helped instigate.
Several justices said outright that they aren’t so much concerned with Trump’s attempts to steal an election (and the alleged crimes involved) as they are with the possibility that future administrations will try to prosecute former presidents and political rivals. They’re worried about a bunch of “witch hunts,” even though Trump is the only president in history who has been charged with criminal activity, and for a singular attack on the government’s fundamental institutions.
The Republican appointees even made a number of arguments on Trump’s behalf that the former president’s lawyers hadn’t raised, or had forfeited. In fact, Trump’s attorneys actually waived their opportunity to offer rebuttal arguments as the hearing reached a close, which is almost unheard of.
The move highlighted how receptive the Republican appointees are to Trump’s novel, dangerous, and frankly ridiculous arguments about presidential immunity for carrying out coups and having political rivals summarily assassinated. At this rate, it’s impossible to avoid the conclusion that at least some of the justices are in fact partisan hacks.
Justice Clarence Thomas questioned whether we should be prosecuting a former president for a domestic coup attempt at all.
For starters, it’s important to remember that the Court has already dragged its feet in the case, despite special counsel Jack Smith’s urging the justices to move quickly. By contrast, the Court moved with urgency to resolve Trump’s petition to remain on the Colorado ballot after some state courts decided he was disqualified by the 14th Amendment from serving as president. To keep Trump on the ballot, they scheduled oral arguments at a time when they would normally be in winter recess, and ruled quickly in the Republican front-runner’s favor.
Last week’s oral arguments suggested the Court will continue to use its calendar to boost Trump and his policies.
At one point or another, each of the Republican appointees suggested that former presidents should have some degree of immunity for acts taken in their official capacity—and added that the case should be sent back to the lower courts to determine how that immunity should operate. Chief Justice John Roberts homed in on one particular sentence from the appellate court, and concluded that it should begin reconsidering the question of presidential immunity from scratch. That suggests that Roberts is intent on deciding nothing other than sending the case back to where it began for a process that classifies the various charges against Trump.
There are likely five votes, at least, for a ruling that does just that, requiring some intermediate decision from the lower court and further delaying a trial and potential conviction.
The conservative justices also raised a number of issues that strongly suggest that they will limit the scope of the evidence allowed and perhaps even the charges themselves. Justices Kavanaugh and Gorsuch, for example, insisted on a principle that criminal laws shouldn’t apply to presidents unless the statute actually says so by specifically mentioning the president in its text—which would mean only “two or three” criminal laws, out of the thousands in existence, apply to the president, as Justice Amy Coney Barrett pointed out.
Justice Clarence Thomas, for his part, questioned whether we should be prosecuting a former president for a domestic coup attempt at all, given that we haven’t prosecuted other former presidents for coups and attempted coups abroad; Justice Samuel Alito was similarly strident, apparently leaning toward the sort of kingly version of absolute immunity that Trump has argued for.
“Presidents have engaged in various activity, coups or operations like Operation Mongoose when I was a teenager, and yet there were no prosecutions,” Thomas said.
There were many other striking moments.
Several justices announced loudly that they are much less concerned about the violent, deadly attack on our seat of government and the related plot to steal an election than they are about other matters—hypothetical things that a future, presumably Democratic, president might do.
“I’m not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents,” Gorsuch said.
“Like Justice Gorsuch, I’m not focused on the here and now of this case. I’m very concerned about the future,” Kavanaugh, another Trump appointee, chimed in.
Indeed, the conservative justices made no bones about the fact that they don’t even want to talk about what happened on January 6th, or about Trump’s interactions and phone calls to organize a fraudulent election challenge.
Gorsuch quickly butted in when U.S. Justice Department attorney Michael Dreeben mentioned Trump’s infamous solicitation for Georgia officials to “find 11,000 votes,” for example. “Okay. Okay. But the test—I’m just focused on the legal test,” Gorsuch said. Gorsuch mentioned that the Court is writing a rule “for the ages,” which will apply to all future presidents—but he never noted that the Court has infinite discretion to issue a broad or very specific ruling. Nor did he provide any explanation of why it makes sense to write a broad rule that doesn’t keenly consider the most serious criminal allegations against a president in perhaps all of “the ages.”
The conservative justices made no bones about the fact that they don’t even want to talk about January 6th, or Trump’s attempts to organize a fraudulent election challenge.
At different points, the conservative justice appeared to be doing most of the heavy lifting on behalf of the defendant.
Liberal Justice Ketanji Brown Jackson pointed out that Kavanaugh’s main line of inquiry—about whether a law should apply to presidents only if it includes a clear statement saying so—was an argument that had already been forfeited by Trump’s attorneys by their failure to raise it themselves, for example.
“I didn’t see you argue that below … before the D.C. Circuit,” Jackson said. “So, to bring in now an argument that you didn’t raise below, it seems to me you forfeited it.”
Still, Kavanaugh and Gorsuch continued to press the point.
Gorsuch also asked Trump attorney D. John Sauer whether presidents might be incentivized “to try to pardon themselves” if they remain legally subject to prosecution post-presidency, for example—a move that has never been contemplated by any president other than Trump.
“I didn’t think of that until your honor asked it,” Sauer said, before agreeing with Gorsuch.
The conservative justices also raised a number of other worst-case-scenario hypotheticals, arguing that these disaster scenarios would become more likely if presidents aren’t given additional protection from prosecution than what they already have. Ironically, a number of those “hypotheticals”—including Gorsuch’s imagined self-pardon, or Alito’s suggestion that presidents begin picking attorney generals who will rubber-stamp whatever they want to do—had been attempted or actually carried out by Trump, but the Court didn’t discuss or show concern about those actually existing examples.
Altogether, the oral arguments revealed that the three justices appointed by Trump, as well as the other conservative justices, are not just willing to delay Trump’s cases to protect his chances at winning the election. They’re also willing to pass up their opportunity—and responsibility—to hold him meaningfully accountable for an unprecedented attack on our democracy.
As liberal justice Sonia Sotomayor said, there are many “mechanisms that could potentially fail” to preserve American democracy. But, “in the end, if it fails completely, it’s because we destroyed our democracy on our own.”
