Trump’s immunity arguments at Supreme Court highlight dangers − while prosecutors stress larger danger of removing legal accountability

A view of the Supreme Court on April 25, 2024, when justices heard arguments about immunity involving former President Donald Trump. Mandel Ngan/AFP via Getty Images

The U.S. Supreme Court heard oral arguments on April 25, 2024, in a case that will change the course of American history. That case is Trump v. United States, in which the justices have been asked to decide whether and to what extent former President Donald Trump – or any president – can be criminally prosecuted for actions taken while in office.

The case specifically relates to special counsel Jack Smith’s charges that Trump attempted to subvert the 2020 presidential election. But the court’s decision will also apply to larger questions about the limits of presidential power and the role of the legal system in constraining executive actions.

Politics editor Naomi Schalit interviewed constitutional law scholar Claire Wofford, a political scientist at the College of Charleston, who said the implications of the case went beyond Trump’s case to “how future presidencies might operate.”

Justice Neil Gorsuch said, “We’re writing a rule for the ages.” The justices seemed very aware that the case in front of them was about former President Donald Trump, but it was about much more than that as well, wasn’t it?

I would absolutely agree with that. The justices raised a variety of concerns about the implications of deciding this case. Several of the justices, across the ideological spectrum, were very concerned about the practical implications of allowing a president to have immunity to some extent, or not allowing the president to have immunity.

Justice Samuel Alito seemed really concerned about the president being subject to political prosecution if he were not protected by immunity. Alito spoke of the president being in a “peculiarly precarious position.” Justice Brett Kavanaugh seemed to also be concerned with implications of a finding of no presidential immunity, raising the specter of what he called “cycles” of prosecutions.

On the flip side, several of the more liberal justices like Ketanji Brown Jackson and Elena Kagan raised the question of what would it mean if the president did have immunity – whether it would mean an unbounded executive. Jackson, in particular, talked about how we shouldn’t be concerned that the president would be chilled in his actions if he were potentially subject to prosecution.

“I think we would have a significant opposite problem if the president wasn’t chilled,” she said. She said a president could enter office “knowing that there would be no potential penalty for committing crimes.” She said, “I’m trying to understand what the disincentive is from turning the Oval Office into the seat of criminal activity in this country.”

Then-President Donald Trump speaks to supporters near the White House on Jan. 6, 2021.
Mandel Ngan/AFP via Getty Images

It seemed like everyone, from the attorneys for Trump and the Department of Justice to the justices themselves, wanted to find some middle ground where there was some, but not total, immunity for the president.

It didn’t seem to me that any of the justices want to conclude that the president is absolutely immune or that the president can always be criminally prosecuted. There’s going to be some gray area where some of what a president does can be subject to prosecution and some of what he does cannot. There was a lot of back and forth about what line would be drawn.

The justices want to be able to draw a distinction so that a president obviously can be held accountable under criminal law in certain extreme situations. But then some of what he does simply has to be considered part of his core executive function and within his discretion.

If they go that route, they will try to formulate a legal rule that draws the line between what kind of conduct is protected from prosecution and what kind of conduct is not protected. There were many options for that line that were put on the table during the argument. It doesn’t seem to me there was one clear position or another favored at the argument. But if the justices do try to formulate a rule, I would not expect a quick ruling.

Isn’t there another scenario, where they don’t get into a complex description of what’s on this side of the line and what’s on that side of the line?

Several of the justices pointed out that even if they decided some of Trump’s actions were official and therefore protected from immunity, the trial could still go forward on what both sides agree are his private actions. Jackson made a point at the end, asking the Justice Department’s attorney whether there are enough private actions taken by the president that the case could go to trial simply on those? The attorney said yes.

Anti-Trump protesters demonstrate outside the Supreme Court on April 25, 2024.
Mandel Ngan/AFP via Getty Images

Thinking about the role and power of the president, what’s the deeper meaning of today’s argument?

Today’s argument touches on the balance of power between Congress, the executive branch and the judiciary. Trump’s lawyer was arguing that the executive branch, for reasons of functionality, has to have some sphere in which it can operate alone and the judiciary has no ability to oversee what they do. The case also relates to broad questions about checks and balances and how the framers intended our government to function. In the background is the sweeping question about the rule of law, and whether or not certain individuals – including those who are charged with implementing that law and executing that law – are also subject to it.

George Washington was inaugurated as the nation’s first president on March 4, 1797. From then until now, the idea of a president violating criminal law has not been dealt with at the U.S. Supreme Court. What does that tell us?

It tells us one of two things. One, the system we have works. This is the argument that the Department of Justice was making, that the reason we haven’t been in the situation before is because we’ve never had a president like Donald Trump, either because Donald Trump is the type of character we’ve never had before or, alternatively, because presidents knew they would be subject to criminal prosecution and therefore were constrained in their behavior.

From the alternative side, of course, the argument is that we’ve never had this because nobody’s ever gone after a president with such political vehemence and nobody’s ever wanted to get rid of a president as badly as they want to get rid of President Trump. I think the obvious pushback would be that’s really not an accurate reading of American history. Plenty of presidents have been hated by their political opponents who tried to get rid of them one way or another.

We are at a crux in history, where the intersection between the executive and the judicial branches is being stress-tested like it never has before. And my hope is that the judiciary performs its job and the system remains intact.

I wish there were a different vehicle through which the court could resolve this question, and that it didn’t feel to so many people like the fate of our government, and the stability of our system, was on the line.

Is it?

It is if the court doesn’t do its job. If it does not make a clear, resounding statement that the president is not above the law, then I think we have a serious problem.

Claire B. Wofford does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.