Trump Lawyer Tells SCOTUS That Even A Military Coup Order Would Be Immune From Prosecution
WASHINGTON — A presidential order to the military to conduct a coup to keep him in office “might well be an official act,” Donald Trump’s lawyer told the Supreme Court Thursday on the question of whether Trump’s attempted coup is immune from prosecution.
The extraordinary exchange was among several in lengthy oral arguments before the justices, who will now decide whether the former president will stand trial on federal charges based on his actions leading up to the violent assault on the Capitol on Jan. 6, 2021.
Trump has been claiming that all his actions as president were “official acts” and therefore immune from prosecution entirely. While justices seemed skeptical of that assertion, most expressed concern that former presidents could be prosecuted in bad faith and for political reasons in the years to come.
“Reliance on the good faith of the prosecutor may not be enough,” Chief Justice John Roberts told Department of Justice lawyer Michael Dreeben.
“I take that concern,” added Justice Ketanji Brown Jackson. “I think it’s a real thing.”
How justices decide to protect future presidents from prosecutions based on their legitimate official actions could decide whether Trump faces a trial at all before the November election on the Jan. 6 indictment. If the court orders trial judge Tanya Chutkan to hold an evidentiary hearing to weed out the “official” components of Trump’s actions versus the ones for his private or political gain, that hearing and potential appeals of her ruling could consume many more months.
And if Trump wins back the White House, he could order prosecutors to drop all unresolved federal charges against him.
While Dreeben did not refer to the coming election at all, he repeated his boss special counsel Jack Smith’s request that the case be sent back to Chutkan with instructions that concerns about not punishing “official” acts be dealt with in jury instructions, rather than a separate hearing.
“We would like to present that as an integrated picture to the jury so that it sees the sequence and the gravity of the conduct and why each step occurred,” Dreeben said.
Trump’s lawyer, John Sauer, meanwhile came in for even more pointed questioning from most of the justices, but none more on point than Elena Kagan’s question about 40 minutes in.
“How about if the president orders the military to stage a coup?” Kagan asked.
“That might well be an official act,” Sauer answered.
Sauer also claimed that a presidential assassination of a political rival as well as the sale of nuclear secrets to a foreign power could also be defended as official acts immune from prosecution.
Trump was not at the Supreme Court during the oral arguments Thursday but rather was in a different courtroom, in lower Manhattan, in the early phase of an unrelated criminal trial.
He has made it clear, though, that he is keenly aware of the import of the high court’s coming decision. On Monday, he posted an all-capital-letters screed demanding that all actions taken by a sitting president be given “complete & total” immunity, even those that “cross the line.” He ended with: “God bless the Supreme Court.”
Thursday morning, just minutes before he was due in the New York City courtroom, he posted three more times about the immunity case: “WITHOUT PRESIDENTIAL IMMUNITY, IT WOULD BE IMPOSSIBLE FOR A PRESIDENT TO PROPERLY FUNCTION, PUTTING THE UNITED STATES OF AMERICA IN GREAT AND EVERLASTING DANGER!”
Trump has previously stated that he hoped the three justices he nominated ― Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett ― would be loyal to him and has subsequently complained that they and the others selected by Republican presidents have treated him unfairly in an attempt to appear nonpartisan.
On Thursday, Barrett was among those grilling Sauer about whether Trump’s various actions to overturn his election loss were “official” and therefore immune.
“I want to know if you agree or disagree about the characterization of these acts as private: petitioner turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results. Private?” she asked Sauer.
Sauer conceded that that activity was not private, although he then claimed that Trump calling Republican National Committee chair Ronna McDaniel to tell her to come up with fake elector slates was indeed an official act.
Trump’s lawyers have tried the same immunity arguments twice, before Chutkan and a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. In both courts, the judges sided with prosecutors who argued that a former president should have no more immunity from prosecution than anyone else and that, specifically in this case, Trump’s actions to overturn an election were an attack on the foundations of the republic.
With Trump running for his old job, the timing of the high court’s decision may be as important as its substance.
A relatively quick ruling simply affirming the appeals court decision that Trump’s actions leading up to and on Jan. 6 are not immune from prosecution could allow Chutkan to begin a trial by late summer, which would likely produce a verdict by Election Day on Nov. 5.
But a “remand” to Chutkan with instructions to hold an evidentiary hearing on the question of “official” acts, while it would bring forth testimony from former Trump White House officials damaging to Trump, could mean that a trial may not conclude by Nov. 5, particularly if the Supreme Court does not issue a ruling until the close of its term at the end of June.
Trump faces four felony counts in the Jan. 6 indictment: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstructing an official proceeding and conspiracy to deprive millions of Americans of the right to have their votes counted. If convicted, he could face decades in prison.
Should Trump regain the presidency, however, he would control the Department of Justice, and could order the dismissal of both that indictment as well as a South Florida federal prosecution based on his refusal to return secret documents he took to his Palm Beach country club upon leaving the White House.
Trump is facing a separate Jan. 6-related state-level prosecution in Georgia for trying to overturn his election loss there. A trial on those racketeering and conspiracy charges could take place later this year.
And in New York City, Trump is currently on trial on charges that he falsified business records to hide $130,000 in hush money payments to a porn star in the days before the 2016 election. Trump has said nothing he did in the scheme to bury her story was illegal.
