The US Supreme Court on Thursday signalled it may send Donald Trump's criminal case over his efforts to overturn the 2020 election back to a lower court to determine which parts of the indictment involve 'official acts' protected by presidential immunity.
During oral arguments, the justices appeared unlikely to grant Trump's request for absolute immunity from criminal prosecution. Both Trump's lawyer and the Department of Justice agreed that certain private acts would not be protected. However, conservative justices suggested presidents should have some level of immunity, favouring a remand to the presiding trial judge to decide which acts were official.
If the Supreme Court remands the case to US District Judge Tanya Chutkan, it would likely delay the trial beyond the November election. This would be a win for Trump, whose legal strategy has been to delay proceedings. If he wins the election, he could appoint an attorney general who would drop the charges.
Conservative justices argued that some 'core functions' of the presidency—such as pardons and vetoes—cannot be regulated by Congress, implying immunity for those acts. Justices Samuel Alito and Brett Kavanaugh questioned the fraud conspiracy statute used against Trump, suggesting it was overly vague and could lead to vindictive prosecution. Alito warned that not granting immunity could destabilise democracy, a remark that drew criticism given Trump's alleged efforts to remain in power after losing the election.
Liberal justices were scathing of the immunity argument. Justice Ketanji Brown Jackson expressed concern that granting immunity would turn the Oval Office into 'the seat of criminality', asking what would disincentivise future presidents from committing crimes.
