Whether Mr Trump stands trial for trying to steal the 2020 election may come down to one justice
was not present on April 25th when the Supreme Court considered whether he and other ex-presidents should enjoy immunity from criminal liability for their official actions while in office. Rather than being ensconced at One First Street among the Italian marble and red velvet, Donald Trump was seated in awould not help him in New York, as those alleged crimes took place on the eve of the 2016 election before he became president.
John Sauer, Mr Trump’s lawyer, warned that a “looming threat” of prosecution after leaving office “will distort the president’s decision-making” and hamstring him while in office. Without blanket immunity, he suggested, Barack Obama could be charged today with murder for errant drone strikes and, down the road, President Joe Biden could be held criminally liable for letting immigrants overrun the border. That’s no way to run an executive branch, Mr Sauer insisted.
A pair of questions emerged as the justices’ main concerns. First, which of Mr Trump’s alleged actions count as official and which are private ? Second, more broadly, which principles should judges use to discern the difference, and through what type of judicial process? Justice Elena Kagan also pressed Mr Sauer on how to draw these lines. She was aghast at his claim that Mr Trump was acting officially when he urged legislators in Arizona to hold a hearing on election fraud, and when he worked with Republican Party officials to organise fraudulent slates of presidential electors.
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