It was a surreal experience to listen to a hearing over whether the US president should have unlimited power.
It appears unlikely that Trump will get exactly he wants – an endorsement of his view that presidents can get away with anything. But he might get what he needs, in the form of further litigation over which presidential acts could be prosecuted, which would push his federal election interference trial beyond November's election.
The justices seemed cool to Trump's claim that presidents have absolute immunity. Even Sauer admitted that some of the alleged conduct by Trump as part of his effort to overturn the result of the 2020 election was private, rather than part of his public duties. This in itself was quite a climbdown -- but it might also have been a tactic to delay, by convincing the justices to remand the case back to lower courts to pin down the distinction between private acts by Trump and those within his official mandate.
Amy Coney Barrett, a conservative justice appointed by Trump, offered the court a possible way forward. Her questioning raised the possibility that prosecutors could draft a slimmed-down indictment stripping out acts in the gray area. That could allow a trial to take place more speedily. Some of the other conservative justices, however, warned that if the principle was established that presidents could be prosecuted over what happened in office, every incumbent would be tempted to go after their predecessor.
But liberal Justice Ketanji Brown Jackson pushed back against this idea and Sauer's argument that a president would be scared to do anything in office for fear of being indicted when they left the White House. She warned that such a situation would suggest the Oval Office is the "seat of criminal activity in this country."
"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," she added.
The most head-spinning moment came when Sauer admitted the logical extension of the ex-president's arguments. "How about if a president orders the military to stage a coup?" liberal Justice Elena Kagan asked. "If it's an official act, there needs to be impeachment and conviction beforehand" through Congress, Trump's attorney, Sauer, said. Kagan asked if Sauer believed such a coup would be an "official act." "On the way you described that hypothetical, it could well be," Sauer said.
"That sure sounds bad, doesn't it?" Kagan said.
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