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US Supreme Court justices have questioned a lawyer for Donald Trump about the former president’s claim of immunity from prosecution for his efforts to overturn his 2020 election defeat.
Mr Trump appealed after lower courts rejected his request to be shielded from four election-related criminal charges on the grounds that he was serving as president when he took the actions that led to the indictment obtained by Special Counsel Jack Smith.
Mr Trump, the Republican candidate challenging Democratic incumbent Joe Biden in the 5 November election, is the first former US president to be criminally prosecuted.
“Without presidential immunity from criminal prosecution, there can be no presidency as we know it. For 234 years of American history, no president was ever prosecuted for his official acts,” D John Sauer, the lawyer arguing for Mr Trump, told the justices.
He added: “If a president can be charged, put on trial and imprisoned for his most controversial decisions as soon as he leaves office, that looming threat will distort the president’s decision making precisely when bold and fearless action is most needed.”
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Conservative Justice Clarence Thomas asked Mr Sauer what the source of this presidential immunity is.
Another conservative justice, John Roberts, raised an example of a president accepting a bribe. While liberal Justice Sonia Sotomayor asked Mr Sauer if a president could get immunity if he ordered “someone to assassinate” a political rival.
Mr Trump has pleaded not guilty in this case and in three other criminal cases he faces, including an ongoing trial on New York state charges related to hush money paid to an adult film actress shortly before the 2016 US election that put him in the White House.
Mr Trump did not attend the Supreme Court arguments because he was in a Manhattan courtroom in that case.
On his way into court in New York, Mr Trump told reporters: “A president has to have immunity … If you don’t have immunity, you’re not going to do anything. You’re just going to become a ceremonial president.”
The US Supreme Court’s 6-3 conservative majority includes three justices who Mr Trump appointed: Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch.
The court already this year has handed Mr Trump one major victory as he runs to regain the presidency.
On 4 March, it overturned a judicial decision that had excluded him from Colorado’s ballot under a constitutional provision involving insurrection for inciting and supporting the 6 January 2021, attack on the US Capitol by his supporters.
Not since its landmark Bush v Gore decision, which handed the disputed 2000 US election to Republican George W Bush over Democrat Al Gore, has the court played such an integral role in a presidential race.
Outside the court building ahead of the arguments, a small number of demonstrators displayed anti-Trump signs including one that read, “LOSER.”
Mr Trump took numerous steps to try to reverse his 2020 loss to Biden. His false claims of widespread voting fraud helped inspire the rampage at the Capitol on the day Congress met to certify Biden’s victory.
His supporters attacked police and stormed the building, sending politicians and others fleeing. Mr Trump and his allies also devised a plan to use false electors from key states to thwart certification.
The August 2023 indictment described Mr Trump as “determined to remain in power” despite his election loss.
He was charged with conspiring to defraud the United States, corruptly obstructing an official proceeding and conspiring to do so, and conspiring against the right of Americans to vote.
‘Absolute immunity’
Mr Trump’s lawyers told the justices in a filing that a former president has “absolute immunity from criminal prosecution for his official acts”.
Without such immunity, they claimed, “the threat of future prosecution and imprisonment would become a political cudgel to influence the most sensitive and controversial presidential decisions”.
Special Counsel Jack Smith, in a filing, urged the justices to reject Mr Trump’s bid for immunity from prosecution on the principle that “no person is above the law”.
Mr Trump in October 2023 sought to have the charges dismissed based on his claim of immunity. However, US District Judge Tanya Chutkan rejected that claim in December.
Mr Smith then asked the justices to launch a fast-track review of the immunity claim, a request they rebuffed.
The US Court of Appeals for the District of Columbia Circuit ruled 3-0 in February against Mr Trump’s appeal of Judge Chutkan’s ruling.
The Supreme Court’s decision to put off hearing arguments over immunity until this month postponed Mr Trump’s trial, which had been scheduled to start in March.
Legal experts have said the justices would need to rule by about 1 June for Mr Trump’s trial to be held before the election.
A ruling is expected no later than the end of June, which could force Judge Chutkan to decide whether to begin a trial in September or October, when early voting already will be underway in some states.
If Mr Trump regains the presidency, he could seek to force an end to the prosecution or potentially pardon himself for any federal crimes.
Mr Trump also faces election subversion charges in state court in Georgia and federal charges in Florida brought by Mr Smith relating to keeping classified documents after leaving office.
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