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Trump's immunity arguments and the experiences of the justices who might support it

The conservative justices of the U.S. Supreme Court
Olivier Douliery
/
AFP via Getty Images
The conservative justices of the U.S. Supreme Court

In the aftermath of the Supreme Court's nearly three-hour oral argumentThursday, it seems apparent that at minimum, there will be no Trump trial on charges of obstructing the 2020 election until after the election this November.

Perhaps it's Trump Derangement Syndrome that led lots of legal eagles, from liberal to conservative, to believe that former President Donald Trump's claim of immunity from criminal prosecution was preposterous. But it's more likely that court observers didn't properly account for the personal experiences of the conservative justices.

Five of the six conservatives spent much of their lives as denizens of the Beltway. As young men, the five served in the White House and Justice Department, working for Republican presidents, often seeing their administrations as targets of unfair harassment by Democratic majorities in the House and Senate.

You can hear echoes of those experiences in some of Thursday's questions about the conspiracy to defraud charge against Trump.

Kavanaugh and Alito's experience

Justice Brett Kavanaughworked for George W. Bush for five years, three of them as staff secretary, a position that's been described as the "nerve center" of the White House. "Conspiracy to defraud the United States can be used against a lot of presidential activities, historically, with a creative prosecutor who wants to go after a president," Kavanaugh cautioned.

Indeed, he volunteered his view that a 1988 case, in which the court upheld the now-defunct independent counsel law, was "a terrible decision for the presidency and for the country."

Justice Neil Gorsuchhad a much more personal taste of Washington's instinct for criminal prosecution, seeing it as a blood sport. His mother was the Reagan administration's first Environmental Protection Agency administrator, and ultimately became the first agency director in U.S. history to be cited for contempt of Congress. At the time, her son, now a Supreme Court justice, was just a teenager and reportedly felt the rebuke keenly.

Fast forward to Thursday, when Gorsuch questioned Michael Dreeben, the lawyer representing the special counsel, saying he was not concerned about this case, "but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives."

Alito's Reagan years

Then too there is Justice Samuel Alito, who held increasingly senior Justice Department positions for the entirety of the Reagan administration in the 1980s.

"Presidents have to make a lot of tough decisions," Alito told Dreeben. He asked incredulously, "Did I understand you to say, 'Well, you know if he makes a mistake, he makes a mistake. He's subject to the criminal laws just like anybody else.' You don't think he's in a special, a peculiarly precarious position?"

"Making a mistake is not what lands you in a criminal prosecution," Dreeben replied.

Alito went on to suggest that barring criminal prosecutions of a former president would be a good thing for democracy.

"If an incumbent who loses a very close, hotly contested election knows" there is "a real possibility after leaving office" that rather than being able to "go off into peaceful retirement," he may be criminally prosecuted "by a bitter political opponent," won't that "lead us into a cycle that destabilizes the functioning of our country as a democracy?" Alito asked.

Chief Justice John Robertswas not as overt in his questioning, but when he served as a top aide to the attorney general in the Reagan administration, he was often the point man on political controversies.

Then too, there is the fact Roberts sailed through his Senate confirmation hearings, unlike many of his conservative colleagues, including Kavanaugh, Alito and Clarence Thomas.

A skeptical conservative

Only one of the court's conservatives expressed doubts about the breadth of Trump's immunity claim. Justice Amy Coney Barrett, ironically the last of President Trump's three appointees to the court, was the lone skeptic of his immunity claims. And she is a relative Washington newbie, having spent most of her adult life in academia at Notre Dame Law School.

She challenged the idea that a president could not be prosecuted for submitting a slate of fake electors to thwart the certification of a new president. And she challenged the assertion from Trump's lawyer that no former president can be criminally prosecuted if he hasn't first been impeached, convicted, and removed from office.

"There are many other people who are subject to impeachment, including the nine sitting on this bench," Barrett said, adding that nobody has ever suggested that Supreme Court justices couldn't be criminally prosecuted. "So why is the president different when the Impeachment Clause doesn't say so?" she asked.

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Nina Totenberg
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.