Marissa Zupancic is JURIST’s Washington DC Correspondent, a JURIST Senior Editor and a 3L at the University of Pittsburgh School of Law. She’s stationed in Washington during her Semester in DC.

Today I attended oral arguments at the US Supreme Court for Trump v. US, a case concerning whether a president has absolute immunity after they leave office for actions they took while president. This marks my final Supreme Court attendance as JURIST’s inaugural Washington DC Correspondent. Walking up to the court at 8 AM, there were only a handful of protesters, and I recognized some from when I attended arguments in February in Trump v. Anderson.

The oral arguments were scheduled for an hour but lasted nearly three hours. This time, I could actually see Justice Ketanji Brown Jackson and the attorneys presenting arguments to the court, but I still had an obstructed view behind one of the acorn-laden gates.

John Sauer presented arguments for Trump. Sauer began his argument by looking at the unique nature of this case, stating, “Without presidential immunity from criminal prosecution, there can be no presidency as we know it. For 234 years of American history, no president was ever prosecuted for his official acts.” Going further, Sauer brought up the consequences of this case. Sauer asked whether President Obama could face murder charges for killing Americans overseas by ordering drone strikes. This example stands in contrast to the charges facing Trump handed down in an indictment from August 2023, including:

1. Conspiring to defraud the US through dishonesty, fraud and deceit in an effort to impair, obstruct and defeat the process by which votes are collected, counted and certified by the federal government;
2. Conspiring to corruptly obstruct and impede the US Congress in their effort to collect, count and certify election results on January 6, 2021; and
3. Conspiring against the rights of US citizens to vote and to have that vote count

Sauer argued that former presidents possess “absolute immunity,” preventing them from prosecution for official actions they took while holding the office of the president. Justice Clarence Thomas asked Sauer to state the source of this absolute immunity, which Sauer claimed stems from Article II, Section 1 of the US Constitution. This section is known as the Executive Vesting Clause. This clause states, in part, “The executive Power shall be vested in a President of the United States of America.” Sauer further posited that the president’s “official acts” are protected from scrutiny from the judicial system, as well.

Chief Justice John Roberts next asked Sauer to elaborate on the scope of a president’s official acts. Sauer explained that prior Supreme Court precedent held that accepting a bribe to appoint a person as an ambassador is not an official act, but appointing a person based on substantive reasons, like if they meet certain qualifications, would fall under the president’s official acts.

Justice Sonia Sotomayor tested the scope of Sauer’s immunity argument. She asked, “If the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him, is that within his official acts for which he can get immunity?” Sauer responded in typical lawyer fashion with, essentially, “it depends,” but he could see a perspective where that action could be an official act covered by this “absolute immunity.’ Sotomayor explained that she viewed official acts as separate from the assassination hypothetical because the hypothetical would be done for personal gain, rather than official duties. She summed up what she thought Sauer’s argument was when she stated, “A president is entitled to total personal gain to use the trappings of his office – that’s what you’re trying to get us to hold – without facing criminal liability.”

Justice Ketanji Brown Jackson brought up former President Richard Nixon’s pardon from former President Gerald Ford following the Watergate scandal. Sauer explained that throughout history, presidents did not believe they would be subject to prosecution. Jackson questioned why, if this was the case, did Nixon get a pardon from Ford if he would not have faced prosecution? Sauer differentiated this set of facts, stating that Nixon was under investigation for both official acts and private acts. From here, Justice Amy Coney Barrett confirmed that Sauer agreed private actions, separate from official acts, by a former president do not qualify for immunity.

Justice Elena Kagan raised the point that there is no explicit immunity clause in the Constitution. She said, “The Framers knew how to [put an immunity clause in the Constitution]. There were immunity clauses in some state constitutions. They knew how to give legislative immunity. They didn’t provide immunity to the president.” Sauer rebutted this argument by restating that the Executive Vesting Clause provides immunity to a president. Additionally, Kagan asked Sauer whether a president would be immune from ordering the military to launch a coup, to which Sauer suggested there would be immunity without impeachment.

Michael Dreeben gave arguments for the United States with the Department of Justice. In his opening statement, he also touched on the unprecedented nature of this case, when he stated, “This court has never recognized absolute criminal immunity for any public official.”

Roberts questioned Dreeben on whether there are appropriate safeguards in place to prevent politically motivated prosecution of former presidents if the court holds there is no absolute immunity. Dreeben explained, “We are not endorsing a regime that we think would expose former presidents to criminal prosecution in bad faith, for political animus, without adequate evidence. A politically driven prosecution would violate the constitution.” In Wayte v. United States, the Supreme Court held in 1985 that selective prosecution is unconstitutional. Dreeben also explained that a prosecutor still must have enough evidence to warrant a grand jury to indict a former president to meet constitutional requirements.

Dreeben also stated there are parts of acting as president that Congress cannot criminalize, which make up the executive’s core duties. These include foreign recognition and making judicial appointments, among others.

In response to Justice Samuel Alito’s questions, Dreeben explained that it is an absolute defense to a criminal charge that the president was acting under the legal counsel of the US Attorney General. For example, a president can ask the attorney general any legal questions, such as whether a potential action is lawful. If the attorney general says that an action is lawful, this could serve as a defense to charges brought against that president down the line.

Finally, Alito asked Dreeben if a president has the right to pardon themself, to which Dreeben responded that the Department of Justice had not taken an official stance on that argument. However, Dreeben noted there was a memo written from the Office of Legal Counsel that suggested a president cannot write a self-pardon.

After the arguments, there was a raucous scene outside. A man dressed in what appeared to be Revolutionary War attire had a speaker setup with a microphone and guitar, singing songs. He performed on a small stage next to a sign that claimed to portray photos of “real dictators” like Kim Jong Un. Over his singing, another protester was shouting “Name a bigger idiot than Trump!” into a megaphone. Additionally, there was more police presence than at Trump v. Anderson, with Capitol Police patrolling the streets and Supreme Court Police surrounding the building. This increased police may have been in response to when a man died after lighting himself on fire outside of the New York courthouse hosting Trump’s hush money trial.

The court’s historic decision will shape future prosecutions the former president is facing. Meanwhile, Trump continues to lead in primary voting and is likely to be named the Republican nominee in July.

Over the my four months as JURIST’s Washington Correspondent, I’ve had the chance to attend three oral arguments at the Supreme Court. Two of these arguments were especially historic, involving a former US president and current presidential candidate. Working for JURIST has supplemented my legal education, pulling me outside of my law school building and into real-world legal change. Sitting next to professional reporters as a law student journalist was a great privilege, and I am eternally grateful for this experience!