Trump lawyers suggest ordering a rival's assassination or a coup could be seen as an 'official act' by a president in blockbuster Supreme Court arguments over Donald's immunity from prosecution

Justices on the Supreme Court put Donald Trump's immunity defenses on the spot with a series of piercing hypothetical questions Thursday to test his lawyer's  definition of the absolute immunity from prosecution he is claiming exists. 

These included whether his immunity claims would extend to ordering a hit on a political rival, taking $1 million in exchange for an appointment, and even ordering the military to undertake a coup d'etat. 

The queries were meant to challenge Trump's broad claims of protection for acts taken as president, while is facing criminal indictment over his election overturn effort.

The dramatic illustrations came during arguments where several conservative justices asked detailed questions about what constituted official versus private acts of a president, indicating they are contemplating a nuanced decision that would apply far into the future. That exercise could scuttle chances for a quick Trump trial before the election, particularly if they establish some kind of new balancing test that would involve lower court action.

Justice Brett Kavanaugh spoke about the 'huge implications' of the case and said he was 'very concerned about the future.' 

'You also appreciate that we’re writing a rule for the ages,' said fellow conservative justice Justice Neil Gorsuch, like Kavanaugh a Trump appointee. 

'I’m not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives,' he said. 

The Supreme Court heard arguments on former President Donald Trump's claim of absolute immunity from criminal prosecution from actions during his time in office. Trump appeared in Manhattan criminal court Thursday, after saying the president would become 'ceremonial' without immunity from criminal prosecution

Without absolute immunity, 'there can be no presidency as we know it,' Trump lawyer John Sauer told the court's nine justices at the top of his arguments.

'The implications of the court’s decision here extend far beyond the facts of this case,' he said.

But from the get-go, he faced tough questions and hypotheticals about the extent of the immunity he is claiming exists. 

'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?' asked liberal Justice Sonia Sotomayor.

That caused Sauer to argue that it would 'depend on the hypothetical.'

Chief Justice John Roberts asked Sauer what happens if 'the president appoints a particular individual to a country but it’s in exchange for a bribe. How do you analyze that?'

Justices pressed him on the definition of what acts would be considered 'private' and therefore subject to prosecution, versus 'public' acts.

Roberts distinguished between the official part of his scenario – the appointment – and the hypothetical bribe, which he said would be private. 

Sotomayor tried to steer things back to the actual indictment brought by Special Counsel Jack Smith.

'Apply it to the allegations here,' she told Sauer. 'What is plausible about the president insisting and creating a fraudulent slate of electoral candidates?'

'Is that plausible that that would be within his right to do?' she asked him 'Absolutely, your honor,' said Sauer. 

Then she tried to find the outer limit of what Sauer argues a president could do in office while being protected from criminal prosecution.

'How about if a president orders the military to stage a coup?' she asked. Sauer referenced the code of military justice and other checks on such actions, as opposed to criminal prosecution.

'Has to be impeached and convicted before he can be criminally prosecuted,' he said. Trump's lawyers have argued that if a president is tried in the House and convicted in a Senate impeachment trial, he could then face criminal prosecution. 

Sotomayor pressed him further on the hypothetical. 'He’s no longer president. He wasn’t impeached. He couldn’t be impeached. But he ordered the military to stage a coup,' she said.

Justices tried to get Sauer to explain the limits of a president's immunity from criminal prosecution

'It would depend on the circumstances whether it was an official act,' Sauer said, when asked about a president who ordered the military to carry out a coup

'How about if a president orders the military to stage a coup?' asked Justice Sonia Sotomayor

'It would depend on the circumstances whether it was an official act,' Sauer responded.

'If it’s an official act there needs to be impeachment and conviction beforehand,' he said.

Trump was impeached by the Democratic majority House after January 6 but acquitted in the Senate, where a supermajority is required for conviction.

His responses brought a stark response from liberal Justice Ketanji Brown Jackson, who clarified that Sauer argued there was no immunity for private acts, but there was for official acts.

'Future presidents would be emboldened to commit crimes with abandon while they’re in office,' she said. 

That was a concern echoed by Michael Dreeben, a lawyer for Special Counsel Jack Smith, arguing on behalf of the government.

'His novel theory would immunize former presidents for criminal liability for bribery, treason, sedition, murder, and here conspiring to use fraud to overturn the results of an election perpetuate himself in power,' he told the court. 

Dreeben faced his own tough questions from justices about historical precedents and whether presidents could have been prosecuted for their actions in office.

Justice Clarence Thomas asked about Operation Mongoose, the botched Bay of Pigs invasion ordered by President Kennedy.

'And yet there were no prosecutions. Why?' he asked.

The reason 'why there were not prior criminal prosecutions is that there were not crimes,' Dreeben responded.

Justice Samuel Alito asked him about F.D.R.'s infamous internment of Japanese Americans during World War II. 'Couldn’t that have been charged' as a conspiracy against civil rights,' he asked.

Dreeben said that today it could, but that at the time Roosevelt could be protected by Commander in Chief protections during war time, advice of the Justice Department, and other protections.

He was skeptical of Dreeben's argument that stages of the judicial process including the reliance on grand juries to bring powers would provide protection.

'How much protection is that?' asked Alito. 'There’s the old saw about indicting a ham sandwich,' he said, noting that prosecutors are adept at obtaining indictments when they want them.

Dreeben countered that sometimes a grand jury does not go along with a prosecutor's wishes.

'Every once and a while there’s an eclipse too,' Alito shot back, unpersuaded.

'It's very easy to characterize presidential actions as false or misleading under vague statutes,' said Justice Brett Kavanaugh, a Trump appointee, underlying that he was not talking about the current case.

He asked about President Lyndon Johnson's statements about the Vietnam War that were false or 'turns out to be false,' and whether he could be prosecuted after leaving office as Dreeben construes it. 

 'I think not,' he said.  

Trump on Thursday said immunity from prosecution was critical. 'We have a big case today, these judges aren't allowing me to go, we have a big case today at the Supreme Court, on presidential immunity. A president has to have immunity, if you don't have immunity you have just a ceremonial president,' he said

Lawyers for the U.S. government and Donald Trump clashed in the Supreme Court Thursday over Trump's claim of immunity from prosecution, minutes after Trump vented the judge overseeing his Stormy Daniels trial wouldn't let him be there to hear it.

'I think that the Supreme Court has a very important argument before it today. I would've loved to have been there, but this judge would not let that happen,' Trump said outside criminal court in Manhattan.  

'I should be there. If you don't have immunity you're not going to do anything. You're going to become a ceremonial president,' Trump said.

Trump's lawyers are seeking to persuade the Supreme Court of his  immunity from prosecution from his time as president in a blockbuster hearing Thursday, as Jack Smith tries to get his January 6 case back on track.

Trump and his team have argued that all presidents would be undermined if Trump isn't allowed to assert the immunity from prosecution for 'official acts' as president he claims to enjoy. 

'If you don’t have immunity you’re not going to do anything, you’re just going to become a ceremonial president,' Trump said in New York Thursday before his Stormy Daniels trial was set to resume.

His lawyers even told an appeals court a president could order SEAL Team 6 to assassinate a political rival and avoid prosecution.

But legal experts don't expect court's conservative 6-3 majority – including three justices nominated by Trump – to go along with his claim. A decision that burns up time or remands a decision to lower courts to sift through any new immunity test could still play to Trump's benefit.

Trump's trial in Washington, D.C. has ground to a halt pending the his legal claim, which comes amid a series of successful efforts to delay his four criminal trials. It also could impact his three other criminal trials related to his retention of national security information at Mar-a-Lago, his election overturn effort in Georgia, and the Stormy Daniels case.

The court showdown comes as Trump's trial resumes in criminal court in Manhattan over 'hush' payments to the porn star, in just the latest demonstration of how his 2024 campaign is being fought in the courthouse. 

Trump's lawyers laid out the spent of the protection they argue he enjoys when an appeals court panel heard the matter in a January hearing.

Judge Florence Pan asked Trump lawyer John Sauer: ‘A yes or no question. Could a president who ordered SEAL Team 6 to assassinate a political rival, who was not impeached, be subject to a criminal prosecution?' 

'If he were impeached and convicted first,' responded Sauer.

'So your answer is no,’ shot back Pan.

'My answer is qualified yes...you'd expect a speedy impeachment and conviction,’ Sauer said. It was just one of the hypotheticals she put to Trump's team before the panel ruled against his claim. 

The Supreme Court in February agreed to hear the matter on an expedited basis. But the move still stalled the January 6 case, having failed to take a speedier action by simply allowing the appeals court's decision to stand. That considerably raised the chance the case would not go to trial before the November elections.

There were a smattering of protesters outside the high court following arguments on an abortion issue Wednesday

Trump met with construction workers in New York Thursday morning

The Supreme Court already ruled in Trump's favor after a Colorado Supreme Court ruling kicked him off the ballot there

Trump was indicted in Washington, D.C. over his election overturn effort in 2020

Special Counsel Jack Smith invoked the Nixon pardon in his April brief to the high court

A lawyer for former President Donald Trump (right) faced a blizzard of questions from a three-judge appeals court panel over his claims of presidential immunity – including whether he could use the military to assassinate a political rival

Even a ruling against Trump might not come out until June. 

Smith ripped Trump's claim in his filing to the high court. 

'The Framers never endorsed criminal immunity for a former President, and all Presidents from the Founding to the modern era have known that after leaving office they faced potential criminal liability for official acts,' he wrote.

'Petitioner asserts a novel and sweeping immunity from the federal criminal laws that govern all citizens’ conduct,' he wrote. 

'No presidential power at issue in this case entitles the President to claim immunity from the general federal criminal prohibitions supporting the charges: fraud against the United States, obstruction of official proceedings, and denial of the right to vote. The President’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them,' he wrote.

Smith pointed to a prior constitutional crisis, arguing that Nixon's acceptance of a pardon from Gerald Ford demonstrated the president enjoyed no such immunity. 

'The closest historical analogue is President Nixon’s official conduct in Watergate, and his acceptance of a pardon implied his and President Ford’s recognition that a former President was subject to prosecution. Since Watergate, the Department of Justice has held the view that a former President may face criminal prosecution, and Independent and Special Counsels have operated from that same understanding. Until petitioner.'

Justices are expected to grill lawyers on the application of the 1982 Nixon vs. Fitzgerald, which immunizes a president from private civil damages. But it 'does not extend to federal criminal prosecutions,' according to Smith.

The hearing starts at 10 am and is expected to last two hours – overlapping with Manhattan testimony by ex-National Enquirer CEO David Pecker. 

Trump's team argues that the Constitution's Impeachment clause is in their corner. The Impeachment Judgment Clause says an officeholder convicted by the Senate shall nevertheless be 'liable and subject to indictment, trial, judgment and punishment.'

But Smith's team says it would be ridiculous to require a conviction in the Congress, a political body, in order for prosecution for crimes unrelated to official conduct. 

Trump on Thursday said immunity from prosecution was critical, after complaining that New York judge Juan Merchan refused to let him attend the hearing in D.C. 

'We have a big case today, these judges aren't allowing me to go, we have a big case today at the Supreme Court, on presidential immunity. A president has to have immunity, if you don't have immunity you have just a ceremonial president,' Trump said.