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Supreme Court to hear historic arguments on Trump's immunity claim

STEVE INSKEEP, HOST:

Former President Trump has another case before the Supreme Court today, which he will have to miss because he's on trial elsewhere. But the justices will hear out his claim that he is immune from prosecution for acts taken while he was in office. The acts in question were Trump's efforts to overturn his 2020 election defeat. Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: In constitutional terms, this is a genuinely historic case. The question of presidential immunity from criminal prosecution after leaving office has never been decided by the Supreme Court. President Nixon was named an unindicted co-conspirator in the Watergate scandal in 1973, but he was not prosecuted then, because the Justice Department and the special prosecutor believed a sitting president could not be criminally prosecuted while in office. But once Nixon resigned, he accepted a pardon from President Ford rather than face criminal charges.

Former President Trump is making a far broader argument in the Supreme Court today. He contends that he cannot be prosecuted ever for his official acts as president unless he is first impeached, convicted by the Senate and removed from office. He was, of course, impeached twice, but not convicted. Were the Supreme Court to embrace that argument, it would mean, given modern political realities, that it would be next to impossible to prosecute Trump or any future former president after he leaves office. Trump's definition of a protected official act is a broad one, as illustrated in this exchange with his lawyer, John Sauer, and Judge Florence Pan during arguments at the appeals court earlier this year.

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FLORENCE PAN: Could a president order SEAL Team Six to assassinate a political rival? That's an official act - an order to SEAL Team Six.

JOHN SAUER: He would have to be impeached and convicted first.

TOTENBERG: Although there are four pending criminal indictments against Trump, only one is before the Supreme Court today - the special prosecutor's case alleging that Trump knowingly and falsely sought to prevent Joe Biden, the duly elected president, from taking office. Trump lawyer William Scharf maintains that everything the former president is accused of doing was an official act, and that after leaving office, he cannot be prosecuted for those acts.

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WILLIAM SCHARF: What President Trump was trying to do was investigate election fraud in the aftermath of the 2020 election. Without presidential immunity, you end up in a scenario where presidents will be paralyzed by the fear of post-election criminal prosecutions. And the ability of the president to discharge his duties in a vigorous and effective way will be forever crippled.

PETER KEISLER: You don't protect the presidency by immunizing somebody who tries to steal it.

TOTENBERG: Peter Keisler was a top Justice Department official in the George W. Bush administration. He and other Republicans who previously held high office have filed a brief opposing Trump's position in the Supreme Court.

KEISLER: The text of the Constitution has no provision granting this immunity - no court decision has ever recognized this immunity. The historical understanding in our country has always been exactly the opposite. Fundamentally, Trump's argument's just at war with the basic precept of our system that says that no one's above the law.

TOTENBERG: NYU law professor Trevor Morrison makes a related point.

TREVOR MORRISON: The Constitution gives the president no role whatsoever in the administration of federal elections.

TOTENBERG: The states, the Congress, even the vice president play a role, but there's no mention of the president. As for Trump's claim that no president can be prosecuted unless he has first been impeached, convicted and removed from office, Senate Republican leader Mitch McConnell clearly rejected that idea when he voted against conviction in the second Trump impeachment.

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MITCH MCCONNELL: President Trump is still liable for everything he did while he was in office. We have a criminal justice system in this country, and former presidents are not immune.

TOTENBERG: But Trump lawyer Scharf contends that if the court doesn't put a stop to this now...

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SCHARF: You'll have an endless cycle of recriminations and prosecutions at the end of every presidency. Could Joe Biden be indicted for his actions relating to the border? George W. Bush over the Iraq War?

TOTENBERG: Trump rests much of his argument on a 1982 Supreme Court decision holding that presidents have absolute immunity from civil lawsuits for their official acts. But the court majority emphasized that it was not deciding whether a similar immunity exists when it comes to criminal prosecutions.

All but missing from the Trump briefs is any significant mention of the Nixon tapes case. In that landmark decision, the court ordered President Nixon to turn over to prosecutors specific White House tape recordings in which Nixon, then still president, plotted to cover up various campaign efforts, including the attempted bugging of the Democratic National Committee. When those tapes eventually became public, they led inexorably to a House committee vote to approve articles of impeachment and Nixon's ultimate resignation. That said, today's case is not a slam-dunk for the prosecutors. Again, NYU's Professor Morrison.

MORRISON: The fact that there are three members of the court who have served in the White House, been responsible for attending to questions of presidential prerogative and presidential power is significant.

TOTENBERG: Those three are Chief Justice Roberts and Justices Kagan and Kavanaugh. Kavanaugh has actually been on both sides of these issues. He played an important role in the special counsel's investigation of a sex scandal involving President Clinton. But more importantly, he served as staff secretary for President George W. Bush for three years. With that in mind, the brief filed by the group of former GOP officeholders is pitched to something of a middle ground, neither for presidential immunity for all official acts nor against it entirely. Again, Peter Keisler.

KEISLER: So what we're saying is that on the particular facts of the case where - the charges that he unlawfully tried to seize the presidency after losing the election, it's sufficient to say there's certainly no presidential immunity for crimes like that.

TOTENBERG: Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

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.