Source.

The oral arguments session for Trump v. United States got off to a quick start (after Justice Thomas more or less answered roll call), Chief Justice Roberts had this exchange with Trump's attorney, John Sauer:

(paraphrased)
John Sauer: Official presidential acts have absolute immunity.
Justice Roberts: What about a bribe given for an ambassadorship?
John Sauer: The bribe is a private act, the appointment is an official act so that part is immune.
Justice Roberts: So a bribery indictment must exclude anything to do with the appointment?
John Sauer: And probably also any evidence of it at trial.
Justice Roberts: Kind of a one-legged stool situation there.

That is, a common definition of corruption is exchanging political power for personal gain. So if, for presidents, the political power aspect of corruption is unprosecutable, corruption is unprosecutable.

They don't advocate for total immunity though. Petitioner's position is that while official acts by a president enjoy total immunity, purely private acts - such assauting a dude in a bar - do not. I should note that Sauer acknowledged one exception to total immunity for official acts, I'll get into that in a few paragraphs.

After a few minutes of colloquy it looked like SCOTUS probably could have thanked everyone for their time and packed it up. Surely the question, "can presidents receive bribes?" would be a resounding 8-1 decision. The room seemed to grow extra quiet when Sauer told Kagan that a coup by a sitting president is an immune, official act.

But then we got to Alito. (And obviously the part about ending it early was hyperbole). Justice Alito seemed to have no qualms with offering immunity for all official acts. He even suggested that an act should only be considered private only if there's no plausible way to view it as official. So while a president assaulting someone in a bar might be prosecutable, if he's wearing a flag on his lapel it's basically an official act. I wonder what elements of the underlying prosecution meet this threshold and if that had any bearing on Alito's question.

On the mildly-saner side of the room Justice Gorsuch seemingly referenced the indefinitely-stalled classified document prosecution by asking if (implicitly) private acts taken after leaving office enjoyed immunity, Sauer said they did not.

Official immunity != king

The exception to total official immunity, acknowledged by Petitioner('s lawyer, at least), is that impeachment (with a conviction in the Senate) enables subsequent criminal prosecution. They didn't really have a choice here, the Constitution is pretty explicit about it. This path to conviction wasn't discussed a whole lot and that's probably fine considering the process has been shown to be theatre.

Justice Barrett asked if crimes in office, discovered after the president left office, could be charged. Consistent with the "only after impeachment position" Sauer said they could not and that the framers assumed this risk in crafting the Constitution as it was written.

So the "this is what we declared independence from" criticism is not entirely accurate (per Sauer) based on the legal exposure for private acts and impeached->convicted acts. On the other hand, we didn't declare independence because the king was a dbag in his private life or because his imperialist policies found disapproval in the legislature.

What is the status quo, anyway?

The liberal justices seemed to feel that the onus was on them to prompt the histories and traditions discussion. Justice Sotomayor mentioned that amici said that the founders discussed and decided against explicit immunity. Throughout the proceeding, Sauer fell back on presidential civil immunity and a single quote from Benjamin Franklin to assert that criminal presidential immunity both comports with originalism and has been the law of the land for 250 years.

Though SCOTUS very loudly claims to not consider policy implications, the impact to the function of the presidency was on the forefront of everyone's mind. And yet, as Justice Barrett pointed out, Sauer asserts that an impeached/convicted president can be criminally prosecuted and that hasn't left them paralyzed. It'll be interesting to see if the final decision mentions a chilling effect on presidential authority when they very clearly have a means to be prosecuted, one that's been crystal clear for the entire history of our country (-ish, 1789 whatever).

Untouchable immunity

I guess there is a bribery statute that specifically names the president, and so Sauer seized upon this to claim that any criminal statute that fails to mention the president does noth apply to that officeholder. It's a backup argument; "we claim immunity but if you decide against that then Congress needs to decide which laws do and don't apply to the president". This would be a convenient out for justices wishing to give Trump a pass but also prevent tHe SeAl TeAm SiX sCeNaRiO.

Actually, per Sauer, even that wouldn't be allowable. Justice Gorsuch asked if Congress could add to the criminal code to account for things like coups and extrajudicial killings. Sauer said no, it'd be a violation of separation of powers.

Gorsuch continued by asking if the president's subordinates can be prosecuted (oh boy, unitary executive time). Sauer said yes and had a muddled answer to the follow-up asking how that isn't a separation of powers issue.

Respondent

Speaking for the United States was Michael Dreeban. There wasn't anything surprising here, Justice Thomas asked why presidents haven't historically been prosecuted for coups and such (strangely naming international actions when there is no dearth of clear domestic crimes). This fed into a discussion of immunity versus special protection - that at trial the acts of a president can be considered in a different light.

Politicization

Justice Gorsuch

So, for example, let's say a president leads a mostly peaceful protest sit-in in front of Congress because he objects to a -- a piece of legislation that's going through.

This one had me shaking my head. "Mostly peaceful" is a partisan meme/dogwhistle used to criticize the 2020 protests against police violence. It's used derisively toward protestors, implying that they are associated with any concurrent crime and/or that it is the true intent of the demonstrations. The fact that a Supreme Court justice would deploy the term at a hearing is profoundly unsettling; it's not simply a partisan tell but one that is only used in the context of trying to be an asshole.

CNN

In one exchange between Dreeben and Justice Samuel Alito regarding the reach of a law punishing conspiracy to defraud the United States, Alito asked, "Would you not agree that that is a peculiarly open-ended statutory prohibition?" "It's designed to protect the functions of the United States government," Dreeben responded. "And it's difficult to think of a more critical function than the certification of who won the election." Responded Alito, with the stance implicitly shared by Roberts: "I'm not, as I said, I'm not discussing the particular facts of this case."

Alito seemed to not want January 6th to be mentioned at all, even though it's the reason everyone had assembled to answer questions about presidential immunity. (Update: and now we know why.)

The comments section

suddenly-scrooge

"As I read it, it says simply a former president can be prosecuted because he's being prosecuted," Roberts said. Roberts think he founds a 'gotcha' here but it makes no sense - the burden is on Trump to establish his having held the office of president gives him immunity. Because it certainly isn't clearly spelled out anywhere and has never been claimed or assumed before. Otherwise yes, a person can be prosecuted because we prosecute people for crimes in this country. It not only relies on the good faith of prosecutors but on every safeguard that exists for Trump and every other defendant in a criminal case, and as we've seen presidents already enjoy special privileges by their position in society (bully pulpit, popular support, ability to attract the best legal counsel and funding for the same, the corruption of career-minded judges, etc.). This makes it extremely difficult to prosecute them not only for actual crimes but in the unlikely scenario of 'rogue prosecutors' coming after them later for imagined ones, a scenario that has not existed in nearly 250 years and is not before the court now. You can claim circular logic for anything when framed this way - 'Judicial review exists because judicial review exists,' well yes it does, there is nothing substantive in that statement. "Now you know how easy it is in many cases for a prosecutor to get a grand jury to bring an indictment," Roberts rejoined with derision, "and reliance on the good faith of the prosecutor may not be enough in some cases." Which cases? When ever? Why are we here? Have these same justices ever questioned the basic components of a criminal prosecution in such a way for any other defendant, ever?

Moment of zen

Ken White

You have to go to a lot of Federalist Society Chick-fil-a lunches to appreciate how brilliant that question is.

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