Courts & Litigation Criminal Justice & the Rule of Law Executive Branch

‘For the Ages’: The Supreme Court Hears the Presidential Immunity Defense

Matt Gluck, Hyemin Han, Quinta Jurecic, Natalie K. Orpett, Roger Parloff, Alan Z. Rozenshtein
Friday, April 26, 2024, 9:19 PM

How oral arguments in Trump v. United States zoomed way out, and where the Court may go from here.

The Supreme Court of the United States. (Photo by Hyemin Han. All rights reserved.)

Published by The Lawfare Institute
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On April 25, the U.S. Supreme Court heard oral arguments in Trump v. United States, the case arising from the Special Counsel’s Office’s decision to charge former President Donald Trump for his effort to overturn the results of the 2020 election. Trump has argued that he is absolutely immune from the charges brought by the Justice Department because, he asserts, they target his official presidential conduct. The U.S. District Court for the District of Columbia rejected Trump’s argument that he enjoys absolute criminal immunity for his official acts, and the U.S. Court of Appeals for the D.C. Circuit affirmed that ruling

Despite the nearly three hours of oral argument, only a portion of that time was spent on the particulars of the Jan. 6 case or its procedural posture. That’s because the justices were, as Justice Neil Gorsuch put it, writing a ruling “for the ages.” The Court grappled with the distinction between private acts and official acts—everyone seemed to agree that private acts could be prosecuted—and then wrestled with which subset of official acts, if any, could be prosecuted. Several justices further focused on which criminal statutes can apply to the president without conflicting with his Article II powers. There did not appear to be much consensus on these questions, and the justices seem poised to issue a splintered decision rejecting Trump’s maximalist arguments, while establishing at least some presidential criminal immunity for at least some types of official acts. 

The Court could send the case down several different paths to resolve and eventually move past the immunity issue, but none is likely to lead to a quick resumption of the trial in Judge Tanya Chutkan’s courtroom. 

The Advocates

Up first was D. John Sauer, Donald Trump’s appellate attorney who has twice represented the former president at the D.C. Circuit. Before joining Trump’s team in 2023, he was the solicitor general of Missouri and Missouri’s deputy attorney general for special litigation. He is a former law clerk to Judge J. Michael Luttig on the U.S. Court of Appeals for the Fourth Circuit and to the late Justice Antonin Scalia.

Sauer sketched out the argument in existential terms. “Without presidential immunity from criminal prosecution,” he began, “there can be no presidency as we know it.” He stressed that the executive must have broad, unfettered discretion, free from fear of reprisals by political opponents at the end of his term. An “energetic executive,” said Sauer, is a key component of “securing liberty” in the American tradition. To allow former presidents to be charged and prosecuted after leaving office would have a distorting effect on the president’s decision-making abilities “precisely when bold and fearless action is most needed.” Sauer portrayed this vision of a strong executive as the status quo from which the nation would be dangerously departing if the Court denied Trump’s claims of absolute immunity for official acts.

Pushed by the justices, Sauer repeated maximalist positions he had taken in the courts below. In response to a question from Justice Sonia Sotomayor, he averred that a president’s ordering the assassination of a rival could be an official act. Likewise, in response to Justice Elena Kagan, he said that a president’s ordering a military coup to prolong his term of office might also be an official act. Asked by Kagan about a president who sold nuclear secrets to a foreign adversary, he conceded that such a president was “likely not immune,” but, if the sale was “structured as an official act,” the president would first have to be impeached and convicted by the Senate before he could be prosecuted. 

At the same time, when pressed, Sauer seemed to embrace certain fallback positions. In questioning by Justices Gorsuch and Samuel Alito, he seemed to welcome having the case sent back to a lower court to apply the standards proposed by Circuit Judge Gregory Katsas in his concurring opinion in Blassingame v. Trump. He proposed, however, that if the case were to be sent back, it should be subjected to a “two-stage determination” of what was private versus what was public. By that, he meant an initial survey of the allegations of the indictment itself followed by what he called “a factual proceeding.”

All this tracked the line of reasoning Trump’s team had advanced at the lower courts. But an issue that took up a fair amount of time was the so-called clear statement principle—which had not been briefed as part of the immunity question either before Judge Chutkan or the D.C. Circuit. (Trump had raised another clear statement problem in a different motion to dismiss before Judge Chutkan—one that Chutkan has not ruled on yet.) While Justice Ketanji Brown Jackson questioned whether Trump hadn’t forfeited the issue by not raising it earlier, Sauer protested that the Supreme Court’s broad wording of its own “question presented” brought the issue into play. As Trump argued in his merits brief, that principle holds that, absent a clear statement, criminal laws that apply to everyday citizens do not apply to the president’s official acts. Each of the statutes in Smith’s indictment—18 U.S.C. § 371, 18 U.S.C. § 1512(k), 18 U.S.C. §§ 1512(c)(2) and 2, and 18 U.S.C. § 241—lack a clear statement explicitly applying them to the president. (Only two or three criminal statutes in the entire U.S. Code do specify expressly that they apply to presidents, as Justice Amy Coney Barrett later pointed out.) Thus, according to Sauer, they cannot be used to criminally prosecute a president’s official acts. 

Despite not having been raised below, many justices seemed inclined to address the clear statement principle—especially Justice Brett Kavanaugh—and even the special counsel’s attorney, veteran Supreme Court advocate Michael R. Dreeben, conceded that the Court had the power to do so. (That the Court would have to decide this issue is the position that Jack Goldsmith advanced in Lawfare leading up to oral argument, for which Marty Lederman offered a countervailing view.)

After Sauer, Dreeben had his turn on behalf of Special Counsel Jack Smith and the Justice Department—which took up about 65 percent of the total argument time. Dreeben, a former deputy solicitor general who oversaw the Justice Department’s criminal docket at the Supreme Court, is also a special counsel mainstay, having been enlisted by special counsel Robert Mueller to assist with the probe into Russian interference in the 2016 presidential election. He first appeared as a part of Special Counsel Jack Smith’s team last December, when Smith motioned for expedited review of the issue by the Supreme Court (which it ended up denying).

Dreeben’s opening remarks offered a counterbalance to Sauer’s vision of a strong executive. “This court has never recognized absolute criminal immunity for any public official,” he observed. Trump’s “novel theory would immunize former presidents from criminal liability for bribery, treason, sedition, murder, and, here, conspiring to use fraud to overturn the results of an election and perpetuate himself in power.”

The reason presidential immunity had no foundation in the Constitution, he said, was that “[t]he Framers knew too well the dangers of a king who could do no wrong.” Dreeben characterized Article III courts and the criminal justice system as the “ultimate check” on the president’s power, a key part of the “carefully balanced framework” of checks and balances that permeate the U.S. system of governance. 

Under questioning from the justices, Dreeben emphasized that such safeguards would adequately defend against improper prosecutions and curtail concerns about a “chilling” effect that criminal liability for official acts might have on the presidency. The president is protected from a due process standpoint, said Dreeben, by ethical canons guiding federal prosecutors, grand juries, doctrines barring selective and vindictive prosecutions, and recognized defenses like the public authority defense and entrapment by estoppel.

And at any rate, Dreeben argued, many of the acts alleged in the indictment—concocting fraudulent elector slates, working to create false certifications for electors, and so on—constitute personal conduct or, in the terms of the Blassingame court, the conduct of an office-seeker as opposed to that of an office-holder. Such acts are not “official” at all. The use of official powers in a private scheme to achieve a private end—namely, seeking to remain in power after having lost the election—“illustrates the abuse of public office for private gain that [the government believes] is paradigmatic of the kinds of things that should be not held to be immune.” 

But Dreeben, like Sauer, also ended up spending much time clarifying the clear statement conundrum and other related considerations at the behest of the justices. The government’s position ended up being that the Court could, and probably should, reach the question of whether enforcement of congressional statutes against a former president is appropriate, as a part of its process in reaching an “intelligent decision” on the question of immunity. The latter half of Dreeben’s time was consumed by farther afield questions—like whether the appropriate amount of protection to give the president comes in a lack of prosecution or more significant protections during trial and interlocutory appeal. Such inquiries underscored what became clear by the end of oral argument: At least some justices were most interested not in the immediate question of Trump’s trial but, rather, in putting together an opinion that might withstand the test of time.

What the Justices Asked

Justice Clarence Thomas

As is the Court’s practice, Justice Thomas began each round of questioning. And as is typical for Thomas, he left most of the questioning to his colleagues. The several questions he asked concentrated on the broad nature of presidential immunity—in particular, the distinction between official and private acts. 

Thomas opened the justices’ questioning by asking Sauer about where he would locate within the Constitution the presidential immunity Trump claims to possess, which allowed Sauer to lay out the general construct of Trump’s case—citing Article II’s Vesting Clause, which provides that “The executive Power shall be vested in a President of the United States of America.” Thomas then asked Sauer how the Court should determine the nature of an official act versus a private act and, relatedly, how it should distinguish between presidential conduct and the president’s conduct as a candidate. 

These queries gave Sauer an opportunity to spell out Trump’s theories on these key components of the case. He argued that the Court should rely for its official versus private conduct determination on Nixon v. Fitzgerald—in which the Court held that absolute presidential immunity extends throughout the “outer perimeter” of the president’s duties and that it should conduct an “objective” analysis of whether the president is acting as president or candidate in particular circumstances. The D.C. Circuit in Blassingame described this “objective” test as a “context-specific assessment of the ‘nature of the function performed.’” 

Turning to Dreeben, Thomas sought to identify the boundary of the Justice Department’s argument—asking whether the government thinks presidential immunity covers official conduct, even if it doesn’t cover private activities. Dreeben responded that there is no blanket immunity for official acts but that the president “can assert as-applied Article II objections to criminal laws that interfere with an exclusive power possessed by the president or that prevent the president from accomplishing his constitutionally assigned functions.” Dreeben also noted that the government does not believe blanket immunity is required to enable the president to fulfill the duties of the office. Thomas also asked Dreeben why, if immunity for official conduct does not exist, former presidents have not previously been prosecuted. Dreeben’s answer was simple: There have been zero appropriately prosecutable crimes. 

Chief Justice John Roberts

The chief justice revealed a limited amount about his thinking, but he drew out at least two key points. First, he posed a hypothetical to which the discussion would return again and again over the course of arguments: If a president appoints an ambassador—clearly an official act—but does so in exchange for a bribe, how do you analyze the question? Because it is undisputed that the bribery statute applies to the president—Congress said so expressly in the legislative text—Roberts’s hypothetical challenged Sauer’s argument that official acts must be “expunged” from an indictment of a former president. If a prosecutor is forbidden from describing the ambassador’s appointment in the indictment, all that is left is a payment; it is impossible to allege bribery without explaining that the payment was in exchange for an ambassadorial appointment.

Expressing his concern with the D.C. Circuit’s immunity decision, Roberts described his view of the court’s main holding during an exchange with Dreeben: “As I read it, [the D.C. Circuit opinion] says simply a former president can be prosecuted because he’s being prosecuted.” Roberts said he believed the decision was “tautologically true,” but that’s generally not the kind of truth courts seek in their decisions. Dreeben, after saying that Roberts’s characterization of the D.C. Circuit’s holding is not “the proper approach in this case [and] certainly not the government’s approach,” still went on to defend the judgment. Chief Justice Roberts appeared concerned that the D.C. Circuit’s approach would produce insufficient immunity safeguards for the presidency. He said that it would make the president’s protection in the criminal context largely reliant on good-faith prosecutors. Roberts also criticized the lower court for not sufficiently engaging with the specific acts at issue.

Justice Samuel Alito

For much of the argument, Justice Alito seemed concerned about the practical effects of absolute immunity on the functioning of the presidency. Initially, he questioned Sauer as to “whether the very robust form of immunity that you’re advocating is really necessary” in order to allow the president to perform the duties of the office, as Sauer argued. At one point, Alito suggested a rule under which immunity would not extend to acts for which “no plausible justification could be imagined” for the act’s official character. 

But the justice also asked Dreeben about how the absence of immunity might negatively affect not only the presidency but the country as a whole. “[P]residents have to make a lot of tough decisions about enforcing the law,” he said—doesn’t that put them in a “peculiarly precarious position” if they might face prosecution after leaving office on the basis of decisions made “about questions that are unsettled” and based on potentially limited information? (Dreeben responded that the president also has unique “access to legal advice about everything that he does” and is bound “to be faithful to the laws of the United States and the Constitution of the United States.”) 

What’s more, wouldn’t the possibility of criminal prosecution create an incentive for presidents to “pardon themselves from anything that they might have been conceivably charged with committing” on the way out of the Oval Office—particularly given the possibility of bad actors within the Justice Department who might be out to get the former president? (“I really doubt that, Justice Alito,” said Dreeben.) The justice also worried that the criminal prosecution of former presidents might “lead us into a cycle that destabilizes the functioning of our country as a democracy,” seemingly suggesting that incumbents would be incentivized to cling to power by anti-democratic means in order to avoid potential prosecution. 

Justice Sonia Sotomayor

One of the strangest moments during oral arguments before the D.C. Circuit involved Sauer’s insistence that a former president would be immune from prosecution even if he had ordered Seal Team 6 to assassinate a political rival. Justice Sotomayor’s first question gave Sauer the opportunity to take another crack at that hypothetical: If the president orders the military to murder a rival, she asked, “is that within his official acts for which he can get immunity?” Sauer stuck to his guns: “[T]hat could well be an official act,” he said.

The justice made an equally dramatic point later in oral arguments, responding to Justice Alito’s concerns about less-than-scrupulous officials within the Justice Department who might be motivated to pursue politically motivated prosecutions. “A stable democratic society needs the good faith of its public officials,” she argued, explaining—in the form of rhetorical questions posed to Dreeben—that if that good faith and adherence to law fails, “it's because we destroyed our democracy on our own, isn't it?”

Less dramatically, Sotomayor also pondered how jury instructions might function on remand, along with the reasoning behind the clear statement rule. In a colloquy with Dreeben, she suggested that the separation-of-powers concerns animating the rule might not be implicated by lawbreaking activity, because it is “[h]ard to imagine that a president who breaks the law is faithfully executing the law” as required under Article II—and therefore, no Article II powers would be conceivably infringed upon. She also argued that overreliance on the clear statement rule to avoid applying criminal law to the president would make the possibility of prosecution after impeachment meaningless.

Justice Elena Kagan

Much of Justice Kagan’s discussion with the advocates was a series of line-drawing exercises about private versus official acts and the boundaries around core executive powers. 

She began by asking Sauer whether several of Trump’s actions alleged in the indictment were official or private acts. These included endorsing false election fraud allegations and a lawsuit based on false allegations against the Georgia governor (Sauer conceded unofficial); calling the chairwoman of the Republican National Committee to ask her to gather electors and falsely claiming that the Trump campaign was only planning to use them if ongoing litigation in one of the states shifted the election in Trump’s favor (Sauer said official); asking the Arizona house speaker to call the legislature into session to hold a hearing on Trump’s alleged election fraud (Sauer said official). Justice Kagan also asked Sauer whether a president would be immune from prosecution for ordering the military to stage a coup or for selling nuclear secrets. Sauer said that in both cases, it would depend, prompting Kagan to reply, “[t]hat sure sounds bad, doesn’t it?” Kagan also had two salient notes in her exchange with Sauer: that the framers did not include an immunity clause in the Constitution even though they could have and that Office of Legal Counsel opinions guarantee immunity for sitting presidents, not former presidents.

With Dreeben, Justice Kagan sought primarily to understand the logic of the government’s immunity framework. Kagan began by asking Dreeben to clarify precisely what he views as the president’s core executive functions before moving to the level below: non-core, but still official, acts. Kagan asked Dreeben why the president can be tried and convicted of crimes in the parts of the bribery statute that do not explicitly mention the president (read: please spell out a narrower conception of the clear statement rule than the one that my colleagues have articulated so far). Dreeben said that a clear statement of application to the president is required only when the president needs to engage in the relevant conduct to carry out the duties of the presidency. In this case, the president does not need to bribe people to perform presidential duties, so no clear statement needed. 

Justice Kagan also stepped back and asked Dreeben whether the Court should reach the clear statement rule, as she did not view it as being directly implicated by the present case. Dreeben said the Court can reach the issue even though addressing it would not be required to resolve the case. Kagan concluded her exchange with Dreeben by discussing whether the charges against Trump fall into the official or private bucket. Unsurprisingly, Dreeben rejected Sauer’s arguments that several of the acts alleged in the indictment are official ones. Kagan then asked Dreeben whether the removal of a Justice Department official flows from the president’s core executive power. Dreeben said that is official but non-core conduct. 

Justice Neil Gorsuch

Broad questions about the nature of presidential immunity clearly occupied Justice Gorsuch’s focus during oral arguments. Gorsuch said at one point that he was “not concerned about this case” and, at another, that the Court would be “writing a rule … for the ages.” Justice Gorsuch worked to establish common ground between Sauer and Dreeben—especially related to Blassingame. He asked both advocates if they accepted Blassingame’s test for determining whether conduct was private or official, which both lawyers said was broadly right. 

But Gorsuch focused most intently on clarifying the scope of which functions fit within the president’s “core” executive powers that Congress cannot criminalize and determining whether the president’s motives can undercut the protections for core powers. Gorsuch asked Dreeben whether the president leading a mostly peaceful protest that disrupts congressional proceedings would qualify as a core power that Congress could not criminalize. Dreeben said it would not be a core power, but that the activity likely would not be prosecuted. On the issue of the president’s “motives,” Gorsuch asked Dreeben whether a prosecutor could cite “bad motives” on the part of the president to overcome the separation-of-powers obstacles to prosecuting the president for the exercise of his core duties, to which Dreeben replied “maybe.” Seemingly concerned about constraining the presidency, Gorsuch also expressed support for the clear statement rule and worried out loud that narrowing presidential immunity significantly might incentivize the president to “pardon himself every … four years from now on.”

Justice Brett Kavanaugh

As a veteran of the Starr investigation and the White House Counsel’s Office in the George W. Bush administration, Justice Kavanaugh’s extensive executive branch experience clearly overlaid his questioning. After the 2008 election, Kavanaugh had written in a law review article about the separation of powers that it was “a good time to attempt to discern some lessons for the forty-fourth and future presidencies.” He seemed to think the present was still a good time to continue to flesh out a vision of the nature of the presidency: “[T]his case has huge implications for the presidency, for the future of the presidency, for the future of the country,” he said. Overall, he seemed sympathetic to relatively expansive presidential immunity for official acts.

One of the issues of particular concern to Kavanaugh was the clear statement principle. He confirmed with Sauer that it’s Trump’s position that the clear statement rule applies to official acts that are not within the president’s exclusive zone of core executive authorities and that none of the statutes at issue in Trump’s case contain a statement of clear application to the president. Sauer, unsurprisingly, agreed with the justice. 

Kavanaugh’s exchange with Dreeben about the clear statement rule was less agreeable. Dreeben disputed Kavanaugh’s assertion that the clear statement rule requires Congress “to speak clearly to criminalize official acts of the president by a specific reference.” Dreeben retorted, “I definitely don’t think that the Office of Legal Counsel opinions stand for this broad proposition that unless the president is specifically named, he’s not in … the statute.” Dreeben also noted that he did not think the clear statement rule is necessary to preserve presidential powers. Kavanaugh followed up, asking whether statutes that raise serious constitutional questions about whether they infringe on the president’s official conduct require a clear statement of application to the president. Dreeben said they do, but that not all criminal statutes raise serious constitutional questions in their application to the president. 

Morrison v. Olson, a 1988 case in which the Supreme Court upheld the independent counsel statute, appeared to frame Justice Kavanaugh’s thinking on the immunity question. He said that the Court at the time thought it may be necessary to relax Article II protections and authorities to allow for what seemed like important presidential accountability measures. But, Kavanaugh said, that decision turned out to weaken the executive branch unproductively. He wondered in an exchange with Dreeben whether the Court would make a similar mistake if it narrowed immunity significantly in this context.

Justice Amy Coney Barrett

Justice Barrett addressed indictment-specific activities as well as broader executive powers considerations in her exchanges with the advocates. She, like Justice Kagan, walked Sauer through several of Trump’s alleged criminal acts charged in the indictment: turning to a private lawyer to spread false allegations of election fraud; conspiring with a private lawyer to make a filing in court containing false election-related allegations; working with those two lawyers and a political consultant to “ submit fraudulent slates of presidential electors to obstruct the certification proceeding.” Sauer conceded that each of these acts either “sounded” private or was private, and that they would not attempt to claim that they were official acts covered by their version of immunity. Those were big concessions, and it’s pretty surprising that Sauer made them. 

Barrett then questioned Sauer on one of the Trump team’s weakest arguments: his claim that the Constitution’s Impeachment Clause is a prerequisite to the prosecution of a president. Barrett pointed out that there are many other officers subject to impeachment (including the members of the Court, which elicited muted chuckles in the courtroom), and they definitely do not have this impeachment protection. “So why is the president different when the Impeachment Clause doesn’t say so?” she asked. Sauer, citing a determination by Robert Bork, said the “plain language of the Constitution but also hundreds of years of history and what DOJ admits is the Framers’ intent” supports Trump’s position. And when Barrett asked what would happen if the crime wasn’t discovered until after the president left office, and impeachment was not available, Sauer said the Framers accepted the risk of under-enforcement. 

In her exchange with Dreeben, Barrett addressed three issues: the public authority defense, the role of state prosecutions in the immunity analysis, and how the Court may move forward procedurally. The Special Counsel’s Office has argued that the public authority defense is one layer of protection for presidential conduct that makes immunity less important. Barrett described this defense as one that allows the president to argue, “I was authorized by law to discharge this function. … Therefore I acted lawfully … and am not criminally liable.” Dreeben accepted that characterization. Barrett then asked if the analysis of whether the public authority defense applies requires examining the president’s motives, to which Dreeben replied that it “operates based on objective facts disclosed to counsel. Counsel then provides the advice [to the president].” The president’s reliance on that advice is the president’s defense. After some more back-and-forth, Barrett said she was considering how “an immunity doctrine that drew from the public authority defense that the Department of Justice” thinks would apply in the defense context might serve as a form of presidential immunity. 

Turning to state prosecutions, Barrett noted that it seems the layers of protection Dreeben had described are internal within the federal government and would not apply to the states. She appeared concerned that a narrow immunity for the president might allow for state prosecutors to run wild. Dreeben noted that the Court could establish robust protections for the president against state prosecutions, relying on the Supremacy Clause—which could potentially include a form of immunity. 

Barrett, concluding with a procedural point, said that if the Court were to recognize some immunity for Trump’s official acts, it would be the Court’s normal practice to send the case back down to the district court to determine which acts were private and which were official. She asked Dreeben, though, if the special counsel could proceed with prosecuting the private conduct and let go of the official conduct. Dreeben said that if the Court were to determine that much of the conduct alleged in the indictment was private, the Special Counsel’s Office “could introduce the interactions with the Justice Department, the efforts to pressure the vice president, for their evidentiary value as showing the defendant's knowledge and intent.” This move would be accompanied by a jury instruction that would prohibit the jury from criminally punishing the former president for those actions deemed to be private. 

Justice Ketanji Brown Jackson

Justice Jackson was quick to turn the Trump policy argument on its head and seemed comfortable with a vision of a constrained executive. “[E]verybody has thought, including the presidents who have held the office, that they were taking this office subject to potential criminal prosecution,” she declared early in Sauer’s portion of oral argument. What else, she wanted to know, could explain Ford’s pardon of Nixon? 

She returned to this line of thinking later in the argument, stating that it would be a big problem if the “president wasn’t chilled,” and voicing a concern that presidents may be emboldened to break laws if they knew they couldn’t be held liable for breaking them. She wanted to know how Sauer might explain the fact that all other people who have “high-powered jobs” are subject to criminal liability for their actions—and yet, his position is that the most powerful person in the world, who has access to the best legal advice at all times, would not be subject to criminal penalties. And she asserted that the line-drawing exercise between what is private and what is public comes only when one assumes that official acts are in fact shielded from prosecution. Fitzgerald doesn’t give us the right answers here, she told Sauer, because that was a question of whether the president should be able to be subject to civil action, subject to being sued by “anybody on the street.” How could the Oval Office not turn into “the seat of criminal activity in this country” if it weren’t for the ability for the president to be prosecuted for breaking the law? But Sauer maintained that the Fitzgerald analysis, with its incorporation of structural checks on the presidency, “naturally imports to the criminal context.” She did not seem convinced.

For Dreeben, Jackson focused more on understanding how far the Justice Department thinks the Court needs to rule on the contours of immunity, assuming the Court doesn’t accept absolute immunity for official acts. The Court doesn’t have to go as far as delineating what counts as core Article II duties within official acts, like Justices Kavanaugh and Gorsuch suggested—but should it? The Court doesn’t have to answer the clear statement problem to resolve the immunity question—which, she pointed out, the Trump team didn’t raise until later on in the appeals process—but should it? To the former issue, Dreeben advised that the Court stop at the threshold question of whether or not there is absolute immunity for official acts, leaving open the possibility for fact-specific and statute-specific disputes. To the latter, Dreeben advised that while the department wasn’t “wild” about the late issue sneak-in, it might be prudent for the Court to resolve the question of whether Congress meant to apply the four statutes at hand to official conduct.

What Happens Next

The justices seem certain to send the case back to either the court of appeals or, more likely, the district court for further proceedings. Precisely what those proceedings will look like, what they will decide, and whether the findings reached therein would, themselves, be subject to a second interlocutory appeal, all remain very live questions. 

Even Sauer acknowledged that certain accusations of the indictment concerned purely private acts and that a former president could at least theoretically be charged with crimes based solely upon those. But much of the indictment also alleges that Trump used the trappings of his office for personal gain. And the justices appeared deeply split over whether these sorts of acts were protected by some sort of immunity and, if so, whether it was absolute or qualified. 

Likewise unclear—and decisive in terms of whether this case can yet conceivably be tried before the election—is what sort of procedures the Court will require the lower court to engage in to resolve whatever questions the Court wants resolved. If the case returns to Judge Chutkan, one possibility is that she could proceed with the current indictment, as is, and simply instruct the jurors that certain accusations can be used only as evidence of Trump’s intent—not as a basis for finding him criminally culpable. Another is that she would have to “expunge” certain accusations and that even evidence of that conduct would be precluded from being introduced at trial. Still another is that Judge Chutkan would need to hold some sort of evidentiary hearing. Finally, in any of these scenarios, the crowning question will be whether Trump will be entitled to make an interlocutory appeal on whatever findings Judge Chutkan makes—ensuring that no trial could take place for many months to come.

It looks increasingly unlikely that this case will be tried before the election. And if Trump wins that election, the case will likely never be tried at all.

Matt Gluck is a research fellow at Lawfare. He holds a BA in government from Dartmouth College.
Hyemin Han is an associate editor of Lawfare and is based in Washington, D.C. Previously, she worked in eviction defense and has interned on Capitol Hill and with the U.S. Mission to the United Nations. She holds a BA in government from Dartmouth College, where she was editor-in-chief of The Dartmouth independent daily.
Quinta Jurecic is a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare. She previously served as Lawfare's managing editor and as an editorial writer for the Washington Post.
Natalie Orpett is the executive editor of Lawfare and deputy general counsel of the Lawfare Institute. She was previously an attorney at the law firm Jenner & Block, where she focused on investigations and government controversies, and also maintained an active pro bono practice. She served as civilian counsel to a defendant in the Guantanamo Military Commissions for more than eight years. She also served as counsel to the National Security and Foreign Policy Legal Team of the Biden-Harris Transition Team.
Roger Parloff is a journalist based in Washington, D.C. In recent years, he has regularly contributed to Yahoo Finance and Air Mail News, and has also been published in The New York Times, ProPublica, New York, and For 12 years, he was the main legal correspondent at Fortune Magazine. He is an attorney who no longer practices. He is a senior editor at Lawfare.
Alan Z. Rozenshtein is an Associate Professor of Law at the University of Minnesota Law School, a senior editor at Lawfare, and a term member of the Council on Foreign Relations. Previously, he served as an Attorney Advisor with the Office of Law and Policy in the National Security Division of the U.S. Department of Justice and a Special Assistant United States Attorney in the U.S. Attorney's Office for the District of Maryland.

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