THE US SUPREME Court is hearing arguments on whether a former president is immune from criminal prosecution and appeared poised to issue a ruling that could further delay Donald Trump’s trial on charges of conspiring to overturn the 2020 election.
The historic case – the last in the court’s current term – has far-reaching implications for executive power and Trump’s multiple legal issues as he seeks the White House again.
“We’re writing a rule for the ages,” said Justice Neil Gorsuch, one of three conservative justices appointed to the nation’s highest court by the former Republican president.
At least four, and possibly five, of the conservative justices on the nine-member court appeared to take issue with a lower court ruling that a former president does not enjoy “absolute immunity” from criminal prosecution after leaving office.
Chief Justice John Roberts, a conservative, told Michael Dreeben, representing Special Counsel Jack Smith, who brought the election conspiracy charges against Trump, that he had “concerns” with the lower court ruling.
“As I read it, it says simply, ‘a former president can be prosecuted because he’s being prosecuted,’” Roberts said.
“Why shouldn’t we either send (the case) back to the Court of Appeals or issue an opinion making clear that that’s not the law?”
Sending the case back to the lower court for further review would almost certainly delay Trump’s election conspiracy trial until after the November vote, when he is expected to face off once again against Democrat Joe Biden.
Justice Samuel Alito, another conservative, asked why – without immunity – a president won’t just “pardon themselves from anything that they might have been conceivably charged with committing?”
Justice Clarence Thomas, another conservative, asked Dreeben why there had not been any previous prosecutions of a former president.
“The reason why there have not been prior criminal prosecutions is that there were not crimes,” Dreeben said.
He said granting “absolute immunity” to former presidents would “immunise” them from criminal liability for “bribery, treason, sedition, murder” and, in Trump’s case, “for conspiring to use fraud to overturn the results of an election and perpetuate himself in power.”
John Sauer, representing Trump, told the court that “without presidential immunity from criminal prosecution there can be no presidency as we know it.”
“Every current president will face de facto blackmail and extortion by his political rivals while he is still in office,” Sauer said.
The three liberals on the court – Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson – and to some extent conservative justice Amy Coney Barrett, pushed back against blanket presidential immunity.
“Wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon?” Jackson asked.
Kagan asked whether a president who “sells nuclear secrets to a foreign adversary” should be immune from prosecution.
“How about if a president orders the military to stage a coup?”
Sauer responded that those hypotheticals “sound very bad” but “if it’s an official act, there needs to be impeachment and conviction” by Congress before a president could be prosecuted.
By taking the case, the Supreme Court has already significantly delayed the start of Trump’s election conspiracy trial.
Smith, the special counsel, filed the case against 77-year-old Trump in August and had pushed for a March trial start date.
But Trump’s lawyers filed a blizzard of motions seeking to postpone the case against him, including the “absolute immunity” claim.
Speaking to reporters in New York before entering a Manhattan courtroom for his separate hush-money criminal trial, Trump complained that the judge presiding over his case did not allow him to attend the Supreme Court hearing.
“I would have loved to have been there,” the Republican presidential candidate said, adding that without immunity “you’re going to become a ceremonial president.”
Today, a key witness in the hush-money trial detailed how he worked with Trump’s personal lawyer to kill a Playboy model’s story about a sexual relationship with the Republican.
It’s the third day of testimony in the criminal trial of Trump, whom prosecutors accuse of falsifying business records to pay off adult film actress Stormy Daniels in exchange for her silence over a 2006 sexual encounter that could have derailed his 2016 White House campaign.
He is the first former US head of state to face criminal charges, and the high-stakes trial demands that Trump report to the drafty Manhattan courtroom multiple times a week.
Prosecutors say Trump engaged in “election fraud” by having his then-personal lawyer Michael Cohen make a $130,000 (€122,000) payment to Daniels on the eve of the 2016 election.
The latest testimony from David Pecker – the 72-year-old former publisher of the National Enquirer tabloid – points to a hush money payment to Karen McDougal, a former Playboy model, that was a precursor to the Daniels saga.
“I wanted to protect my company, I wanted to protect myself and I wanted also to protect Donald Trump,” Pecker nonchalantly told jurors, providing a clear statement that his efforts with the candidate and his lawyer were geared at influencing the presidential election – which eventually saw the brash real estate mogul take the White House over Hillary Clinton.
The affable Pecker candidly explained how transfers to the tune of $150,000 (€139,000) were made to “catch and kill” McDougal’s story and suppress its publication, calling it a “large purchase” relative to the sums his company would normally pay for content.
He said payments to McDougal were disguised as services to American Media, the tabloid’s parent company, to avoid violating campaign finance laws.
“We purchased the story so it would not be published by any other organization,” Pecker told jurors. “We didn’t want the story to embarrass Mr. Trump or hurt his campaign.”
He said Cohen had encouraged him to purchase the story, and when he asked how he would get reimbursed, Cohen said “the boss will take care of it.”
Pecker said that not only did McDougal receive payment, but that the deal also guaranteed her magazine covers and the possibility to publish fitness columns.
But McDougal’s story ultimately did come out, four days before the election in a scoop from the Wall Street Journal, which prosecutors showed jurors.
Pecker said Trump called him and was “very upset.”
“How could this happen, I thought you had this under control,” Pecker recalled Trump telling him, before hanging up with no goodbye.
And when it came to squashing Daniels’s tale of her sexual affair with Trump – that hush-money payment is core to the case – Pecker said he hesitated to pay for yet another story.
“I’m not a bank,” Pecker said, also saying he didn’t want his publication, which is sold in supermarkets, to be associated with a porn star.
The executive suggested to Cohen that he pay for it instead, which prosecutors say the then-Trump fixer did from his own home equity line of credit, wiring it through a shell company.
Trump has appeared increasingly disgruntled, angry even, as the trial proceeds and he’s forced to sit silently under the glaring fluorescent lights of the courtroom, listening to both prosecutors and Pecker deliver accounts of his alleged misdeeds.
He has also borne witness to Judge Juan Merchan admonishing the former president’s lead lawyer Todd Blanche, who this week blustered through his defense of the Republican as prosecutors asked to hold Trump in contempt of court.
They say Trump has repeatedly violated a partial gag order barring him from publicly attacking witnesses, jurors and court staff.
Merchan heard arguments over the accusation Tuesday but did not issue an immediate ruling, which he could drop at any moment.
Daniels, whose real name is Stephanie Clifford, and Cohen are both expected to appear as prosecution witnesses at the trial.
Trump has repeatedly attacked them on Truth Social, calling them, for example, “sleaze bags who have, with their lies and misrepresentations, cost our country dearly.”
In addition to the hush-money case, Trump faces charges in Washington for conspiring to overturn the 2020 election.
He faces similar election charges in Georgia and has been indicted in Florida for allegedly mishandling classified documents.
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