At Supreme Court, Trump lawyer backs away from absolute immunity argument

WASHINGTON — Former President Donald Trump has long argued for absolute immunity in his federal election interference case, but his lawyer struck a different tone Thursday during arguments at the Supreme Court.

With the justices appeared largely skeptical of the argument that the entire indictment against Trump should be dismissed, attorney D. John Sauer made some concessions.

Sauer appeared to agree with special counsel Jack Smith, who is leading the prosecution, that there are some allegations in the indictment that do not involve "official acts" of the president.

Sauer's main argument was that the entire indictment is premised on official acts, which should be protected by immunity in part to ensure that presidents' hands are not tied over fear of prosecution after they leave office.

Sauer accepted that Trump can be prosecuted for private acts that were not tied to his official duties as president.

During oral arguments, the justices zeroed in on the public-private distinction, which may lead to a ruling that sends the case back to lower courts for further deliberations on that issue, potentially scuttling any chance that a trial could take place before the election in November.

Conservative Justice Amy Coney Barrett and liberal Justice Elena Kagan both peppered Sauer with questions about whether specific allegations in the indictment constituted official acts.

Sauer said Trump's conduct in three of the five situations he was asked about involved private actions, meaning they could be prosecuted.

Matthew Seligman, a lawyer and a fellow at the Constitutional Law Center at Stanford Law School who filed a brief backing prosecutors, said Sauer's concessions highlight that Trump is "not immune for the vast majority of the conduct alleged in the indictment."

Ultimately, he said, the case will go to trial "absent some external intervention — like Trump ordering [the Justice Department] to drop the charges" after having won the election.

At the same time, Sauer’s backtracking might have little consequence from an electoral perspective. Further delay in a trial, which Sauer is close to achieving, is a form of victory in itself.

Here are the issues that were posed to Sauer and his responses:

False election claims

Barrett, in summarizing Smith's court brief, asked Sauer about an alleged interaction involving Trump.

"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?" Barrett asked.

"That sounds private to me," Sauer said.

That appears to be a reference to former Trump lawyer Rudy Giuliani, or unindicted co-conspirator 1, who is referred to that way in the indictment.

False allegations of fraud

Alleged conspiring with a separate lawyer — another component of the indictment — elicited a similar response from Sauer.

"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?" Barrett asked.

"That also sounds private," Sauer said.

That appears to be a reference to co-conspirator 2, or John Eastman, a Trump-allied lawyer. The indictment alleges that Trump “signed a verification affirming false election fraud allegations made on his behalf in a lawsuit filed in his name against the Georgia Governor.”

Fake electors

In giving another example, Barrett asked about slates of so-called fake electors.

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

"That's private," Sauer said.

Barrett seemed to be referring to Eastman, Giuliani or Kenneth Chesebro, who was known as co-conspirator 5 in the indictment. The "political consultant” is most likely a reference to Boris Epshteyn, who is believed to be co-conspirator 6. Those men were allegedly involved in the so-called fake electors scheme, which could have created the appearance of a disputed election and given Vice President Mike Pence a pretext to block congressional certification, even though the role of the vice president in that proceeding is largely ceremonial. Pence did not go along with the scheme, and he privately relayed to Trump that he did not see evidence of election fraud sufficient to determine the outcome.

Chesebro pleaded guilty in the Georgia election interference case, while Giuliani pleaded not guilty. Giuliani and Epshteyn were also charged this week in a fake elector scheme in Arizona, where they have not yet entered pleas.

Sauer also elaborated on his answer, saying that "meeting with the Department of Justice to deliberate about who's going to be the acting attorney general of the United States" would be an official act. That is a reference to Jeffrey Clark, or unindicted co-conspirator 4, whom Trump had considered making attorney general in the days before the Jan. 6, 2021, attack on the Capitol.

Sauer said that "communicating with the American public" and "communicating with Congress about matters of enormous federal concern" would count as official acts. That would cover Trump's communications with members of Congress in the lead-up to Jan. 6.

Contacts with the Republican National Committee

Kagan, in posing her own series of questions, also summarized elements of Smith's court brief.

"The defendant called the chairwoman of the Republican National Committee, asked her to gather electors in targeted states, falsely represented to her that such electors' votes would be used only if ongoing litigation and one of the states changed the results in the defendants' favor," Kagan said.

"We have taken the position that is official," Sauer said.

The exchange appeared to reference Trump's contacts with Ronna McDaniel, the chair of the RNC, who said during her brief tenure as an NBC News contributor that she believed Joe Biden won the 2020 election "fair and square" while contending that "there were problems in 2020." Prosecutors allege that Trump and Eastman called McDaniel on Dec. 6, 2020, and told her that it was important for the RNC to help the campaign gather fake electors.

"After the RNC Chairwoman consulted the Campaign and heard that work on gathering electors was underway, she called and reported this information to the Defendant, who responded approvingly," prosecutors said.

Arizona legislative hearing

Kagan also asked about legislative efforts in Arizona.

"The defendant asked the Arizona House Speaker to call the Legislature into session to hold a hearing based on their claims of election fraud," she said.

"We have taken the position that that is official," Sauer responded, saying it is an official act "to defend the integrity of a federal election."

Kagan's question related to Trump's communications with then-Arizona House Speaker Rusty Bowers, who prosecutors say "had supported the Defendant in the election, had issued a public statement that there was no evidence of substantial fraud in Arizona." After he stood up to Trump, Bowers lost his bid for a state Senate seat to a Trump opponent in 2022.

Sauer's response drew skepticism from Kagan.

“Well, ‘attempting to defend the integrity of the election,’ I mean, that’s the defense,” she said. “The allegation is that he was attempting to overthrow an election.”

She also probed Sauer about two hypothetical scenarios to see whether he believed they involved official acts: a president's selling nuclear secrets to a foreign enemy and a president's ordering the military to conduct a coup.

Sauer said both could constitute official acts, meaning the president could be immune from prosecution.

The exchanges between the justices and Sauer could be important as the court weighs what steps to take next.

Michael Dreeben, the Justice Department lawyer arguing the case on behalf of Smith, indicated the case could proceed even if the court found there is immunity for official acts.

But, he added, prosecutors would still try to introduce evidence about potential official acts "for their evidentiary value as showing the defendants' knowledge and intent."