Could a president stage a coup? And 9 more key moments from Trump's Supreme Court immunity hearing

Other topics included potential self-pardons, FDR and more.

ByAlexandra Hutzler, Meredith Deliso, Alexander Mallin, Mike Levine, and Adam Carlson ABCNews logo
Thursday, April 25, 2024
Could a president stage a coup? SCOTUS debates absolute immunity
The Supreme Court seems highly skeptical of former President Donald Trump's claim of absolute immunity from prosecution.

WASHINGTON -- As various Supreme Court justices themselves acknowledged during a high-stakes hearing on Thursday, they could potentially reshape the contours of presidential power when they rule on whether Donald Trump is entitled to some amount of immunity from prosecution for alleged acts in the White House as he pushed to overturn his 2020 election loss.

Over nearly three hours on Thursday, with demonstrators gathered outside, the justices grappled with arguments from both Trump's attorney and an attorney for special counsel Jack Smith, who has charged Trump in connection with his effort to stay in office after losing to now-President Joe Biden.

Trump denies all wrongdoing and disputes some of what he is accused of doing while he maintains that other actions were part of his presidential authority.

The oral arguments included several notable and important exchanges. Here are 10 of the key moments.

A decision is expected from the court by the end of June.

Could a president assassinate his rival?

Justices Sonia Sotomayor and then Samuel Alito touched on one of the most provocative hypotheticals raised in Trump's battle for "absolute immunity" from charges over what he claims were official acts: Could a commander in chief order SEAL Team 6 to assassinate a political rival and not face prosecution?

Sotomayor raised it first while questioning Trump attorney John Sauer. She pointed back to an earlier exchange Sauer had in a lower court proceeding.

"I'm going to give you a chance to say ...if you stay by it: 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?" she asked.

"It would depend on the hypothetical," Sauer answered. "We could see that could well be an official act."

Sotomayor pressed on that point: "Immunity says even if you did it for personal gain, we won't hold you responsible -- what do you -- how could that be?"

Sauer pointed back to a U.S. Supreme Court ruling from the '80s that held a president is immune from civil liability related to this official acts, which Sauer said is a basis for their own argument now about criminal liability.

"That's an extremely strong doctrine in this court's case law in cases like Fitzgerald," he said.

Later, Alito referred back to a president's hypothetical use of the military as elite assassins as he and Sotomayor split on whether "plausibleness" was a useful standard for scrutiny versus "reasonable."

"One might argue that it isn't plausible to order SEAL Team 6 -- and I don't want to slander SEAL Team 6 because they're -- no, seriously -- they're honorable, they're honorable officers and they are bound by the uniform code of military justice not to obey unlawful orders -- [but] I think one could say it's not plausible ... that that action would be legal," Alito said.

To Sauer, he said, "I'm sure you've thought of lots of hypotheticals where a president could say, 'I'm using an official power,' and yet the power uses it in an absolutely outrageous manner."

'What was up with the pardon of President Nixon?'

Justice Ketanji Brown Jackson pressed Sauer on his contention that without immunity all future presidents would feel paralyzed to take official acts that could put them in criminal jeopardy.

"I mean, I understood that every president from the beginning of time essentially has understood that there was a threat of prosecution [upon leaving office]," Jackson said.

Sauer responded by quoting Ben Franklin from the constitutional convention, to which Jackson seemed skeptical.

"But since Benjamin Franklin everybody has presidents who have held the office [who knew] that they were taking this office subject to potential criminal prosecution, no?" she said.

She cited one well-known example of a former president who came under legal scrutiny.

"What was up with the pardon for President [Richard] Nixon? ... If everybody thought that presidents couldn't be prosecuted, then what -- what was that about?" she said.

"He was under investigation for both private and public conduct at the time -- official acts and private conduct," Sauer said, going on to indicate that there had long been established an understanding that presidents could be prosecuted for private acts.

"Counsel on that score, there does seem to be some common ground between you, your colleague on the other side, that no man's above the law and that the president can be prosecuted after he leaves office for his private conduct, is that right?" Justice Neil Gorsuch asked.

"We agree with that," Sauer answered.

"And then the question becomes, as we've been exploring here today, a little bit about how to segregate private from official conduct that may or may not enjoy some immunity," Gorsuch said.

That underscored what could emerge as a key part of the court's ultimate decision: how to separate out Trump's conduct that is protected by the presidency, under a ruling of some executive immunity, and what he is accused of doing outside the bounds of his presidential authority that can be prosecuted.

But Trump's attorney concedes some conduct was private

Not long after, Justice Amy Coney Barrett questioned Sauer precisely where some of the described conduct falls, between official and private -- protected or unprotected.

"You concede that private acts don't get immunity," she said.

"We do," Sauer said.

Barrett then specifically cited various alleged acts from Trump's push to overturn the 2020 election, as described by prosecutors.

Barrett, quoting from court filings, said, "I want to know if you agree or disagree about the characterization of these acts as private. Petitioner turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results. Private?"

"We dispute the allegation, but that sounds private to me," Sauer said.

Barrett continued: "Petitioner conspired with another private attorney who caused the filing in court of a verification, signed by petitioner, that contained false allegations to support a challenge. Private?"

"Also sounds private," Sauer said.

"Three private actors, two attorneys, including those mentioned above, and a political consultant, helped to implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding and petitioner and a co-conspirator attorney directed that had effort." Barrett said.

"I believe that's private," Sauer replied.

"Those acts you would not dispute," Barrett said. "Those were private and you wouldn't raise a claim that they were official."

Sauer said back: "As characterized."

'That's like a one-legged stool, right?'

A notable response came shortly after from Chief Justice Roberts when Sauer pushed the justices to remand the case back down to the lower courts to piece through which allegations in the indictment amount to a protected "official act" under the presidency.

"The official stuff has to be expunged completely from the indictment before the case can go forward," Sauer argued.

"That's like a one-legged stool, right?" Roberts said. "I mean, giving somebody money isn't bribery unless you get something in exchange. If what you get in exchange is to become the ambassador to a particular country, that is official, the appointment, it's within the president's prerogatives. The unofficial part is -- 'I'm going to get a million dollars for it.'"

After this exchange, Justice Clarence Thomas raised unprompted whether Trump's legal team was challenging the legality of the appointment of special counsel Jack Smith, a questionable theory previously pushed by right-wing lawyers like former Attorney General Ed Meese.

Sauer said Trump's legal team was making that argument in his separate Florida federal case, in which he is accused of mishandling classified information while out of office, but they weren't doing so directly in this case, to which Thomas did not follow up.

Justice Alito then asked Sauer if all official acts alleged in the Jan. 6 indictment should be excluded from trial, to which Sauer answered they should.

But Justice Sotomayor pressed back on the notion of remanding the case, arguing that even in the instances of acts that could be considered official, they came in the context of Trump pushing forward in his "private" intent of remaining in office.

"I don't think the indictment is charging that the obstruction occurred solely because of conversations with the Justice Department," she said. "They're saying -- you look at all of the private acts and you look in the context of some of the public acts and you can infer the intent, the private intent from them."

Fear of turning Oval Office into 'seat of criminal activity'

In questioning Sauer about why presidents shouldn't face criminal liability for unlawful actions they take in office, Justice Jackson seemed to warn that, as she sees it, giving presidents absolute immunity could turn the White House into "the seat of criminal activity in this country."

In response, Sauer insisted that while a president shouldn't face criminal prosecution, they could face impeachment or other remedies for any unlawful conduct.

The exchange began when Jackson pressed, "If there's no threat of criminal prosecution, what prevents the president from just doing whatever he wants?"

Sauer pointed to "impeachment, oversight by Congress, public oversight, there's a long series."

"You seem to be worried about the president being chilled. I think that we would have a really significant opposite problem if the president wasn't chilled," Jackson said.

"If someone with those kinds of powers, the most powerful person in the world, with the greatest amount of authority, could go into office knowing that there would be no potential penalty for committing crimes -- I'm trying to understand what the disincentive is from turning the Oval Office into the seat of criminal activity in this country," Jackson continued.

She asked Sauer, "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?"

But Sauer indicated that such problems hadn't occurred so far.

"I respectfully disagree with that because the regime you described is the regime we operated under for 234 years," he said.