Författare: Claire B. Wofford Associate Professor of Political Science C

Following the nearly three-hour oral argument about presidential immunity in the Supreme Court on April 25, 2024, many commentators were aghast. The general theme, among legal and political experts alike, was a hand-over-the-mouth, how-dare-they assessment of the mostly conservative justices’ questioning of the attorneys who appeared before them in the case known as Trump v. United States.

Rather than a laser-focused, deep dive into the details of Trump’s attempt to subvert the 2020 election, virtually all of the nine justices instead raised larger questions, peppered with hypotheticals – hello again, Seal Team Six! – about the reach of executive power, the intent of the nation’s founders and the best way to promote a stable democracy.

Justice Brett Kavanaugh’s “I’m not focused on the here and now of this case” and Justice Neil Gorsuch’s “We are writing a rule for the ages” drew particular fire.

The headline and subheadline on the New York Times analysis by Supreme Court reporter Adam Liptak complained that the court had taken “Trump’s immunity arguments in unexpected direction” with “very little about the President’s conduct.” And the story itself fumed that the justices had responded to Trump’s claim that he should not face charges as a “weighty and difficult question.”

Slate’s Amicus podcast decried the court for failing to focus on the “narrow question” the case presented, instead going “off the rails” and “bouncing all over the map” with various legal arguments. A guest on NPR’s 1A program lamented that the court had “injected new questions” into the oral argument to “slow-walk” the case and prevent Trump from facing trial before the election.

But here’s what the pundits seem to have forgotten: What happened that day in the court should have surprised no one, especially those constitutional scholars like me familiar with Supreme Court procedure.

Donald Trump’s attorneys told the Supreme Court that the actions of a president should be immune from criminal prosecution.
Curtis Means-Pool/Getty Images

Five words ‘change everything’

Trump’s case stemmed from his prosecution by Special Counsel Jack Smith for his alleged attempts to overturn the 2020 presidential election. Trump claimed he, as president, was immune from prosecution, and he took his case to the Supreme Court.

When parties appeal their case to the court, they must tell the justices what specific legal question or questions they want the justices to answer. As a colleague and I have explored in a recent academic journal article, the court generally accepts what is called the “Questions Presented” as given, agreeing to hear a case without making any adjustments to its legal framing.

Sometimes, however, the court will alter the legal question in some way. Why it does this is an issue that scholars like myself are just beginning to explore. And because it is that question – not the one the litigant initially asked – that frames the legal analysis, the justices can exert real control over both the case itself and the development of the law.

Trump v. United States is a classic example. When attorneys for the former president filed their request with the court, the question presented by them was “Whether the doctrine of absolute presidential immunity includes immunity from criminal prosecution for a President’s official acts.”

When it granted the petition in late February 2024, the court changed this language to “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

Five of those additional words – “if so to what extent” – changed everything. They sent a clear-as-day signal that the court would move well beyond the simple yes-or-no of whether Trump could be prosecuted.

The full Supreme Court, with nine justices, heard oral arguments in the immunity case.
Fred Schilling, Collection of the Supreme Court of the United States

The court doing its job

With their reformulation of the question, the justices would instead be determining how, when and for what acts any president could ever be held criminally responsible.

That is a much larger inquiry, one that necessarily involves formulating a legal test to draw a line between what is constitutionally permissible and what is not. That the justices spent oral argument trying do exactly that is not a problem, much less an outrage: It’s just the court, the highest appellate court in the land, doing its job.

The scope of the argument, the expansiveness of the coming opinions and the time suck for the justices to write them and the possible vanishing of Trump’s prosecution are not at all shocking. The court signaled it would address the broader question months ago when it took the case; the time to fault the court for making the case about more than just Donald Trump was then, not now.

But perhaps commentators’ response to the oral argument can be a good lesson. Americans are told to take Trump at his word, expecting his second term to contain all the extremes he gleefully says it will.

When the Supreme Court indicates what legal question it will answer, the smart response is to do the same thing – pay attention and believe. This may not make the ultimate outcome any less distasteful to many, but at least it won’t be quite as disturbing. Läs mer…

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. Läs mer…