After a marathon debate over whether former President Trump should be granted presidential immunity for crimes alleged by Special Counsel Jack Smith, legal experts tell Fox News Digital that most of the Supreme Court justices appear concerned with how the ruling will impact the future functioning of the executive branch.
In nearly three hours of debate on Thursday, the high court wrestled with this question: “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?”
Legal experts told Fox News Digital that while it appeared the majority wasn’t sold on the idea of absolute immunity, they could determine that Trump, and any future former presidents, should be granted a qualified version of it.
“I think the court recognizes that it would be a dangerous precedent if future presidents can prosecute their political rivals,” Mark Brnovich, former attorney general of Arizona, told Fox News Digital.
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The Supreme Court in Washington, March 7, 2024. (AP Photo/J. Scott Applewhite, File)
“They will set a limiting principle because, under the prosecutor’s theory, future prosecutors would have a lot of power to persecute their political rivals,” Brnovich said.
Over the course of questioning, the justices seemed generally split along ideological lines.
“If the potential for criminal liability is taken off the table, wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they’re in office?” Justice Ketanji Brown Jackson asked in an exchange with Trump’s lawyer, John Sauer.
“Once we say, ‘No criminal liability, Mr. President, you can do whatever you want,’ I’m worried that we would have a worse problem than the problem of the president feeling constrained to follow the law while he’s in office,” Jackson said.
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Supreme Court Justice Ketanji Brown Jackson (Tom Williams/CQ-Roll Call, Inc via Getty Images)
Conversely, Justice Samuel Alito questioned whether limiting immunity for a former president would send the country into a destabilizing cycle.
“If an incumbent who loses a very close, hotly contested election knows that a real possible after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy? And we can look around the world and find countries where we have seen this process, where the loser gets thrown in jail,” Alito remarked.
“We’re writing a rule for the ages,” Justice Neil Gorsuch later stated.
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Former President Trump points to supporters during a campaign rally at the Atkinson Country Club on Jan. 16, 2024, in Atkinson, New Hampshire. (Brandon Bell/Getty Images)
John Shu, a constitutional scholar and former official in both Bush administrations, told Fox News Digital that the justices indicated “they believe this case isn’t really about Trump per se. It’s about the Office of the President, what future presidents can do, and whether they’ll be prosecuted for their choices.”
“It’s a very important issue and the Biden administration set a very bad precedent to go after not only a former president, but one who also is challenging Biden’s re-election,” he said.
“What the Biden administration has done here gives the terrible appearance of vindictiveness, and on an international or foreign policy level, it makes us look like just another banana republic that we generally criticize for prosecuting or trying to jail their political opponents,” he stated.
Shu added that “many of the justices perhaps find what Trump did after the 2020 election distasteful.”
“But they also seem uncomfortable with either granting blanket immunity on the one hand, or no immunity at all on the other. As often happens, the middle ground is where the discussions will be,” he said.
John Yoo, a law professor at University of California at Berkeley, said Trump’s argument “had much more success than many court watchers expected.”
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“Only the three liberal justices seemed to reject the idea of immunity outright. The six conservative justices recognized the need to prevent future presidents from criminalizing policy and constitutional differences with their predecessors,” Yoo said.
He added that a possible outcome could be that the justices punt the question back to the lower courts and ask them to first determine whether Trump’s actions amounted to “official” or “private” acts, before they decide whether immunity might extend to official acts.
A decision in the case is expected early this summer.
The special counsel’s office declined to comment when reached by Fox News Digital.
Fox News’ Bill Mears and Shannon Bream contributed to this report.