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After a 3-hour hearing, the Supreme Court must define presidential immunity

A MARTÍNEZ, HOST:

Should a president have absolute immunity from criminal prosecution even after they leave office? The U.S. Supreme Court took nearly three hours to debate that question yesterday.

LEILA FADEL, HOST:

The justices appeared skeptical of blanket immunity, but the conservative majority also seemed open to some immunity, and that could delay Donald Trump's trial until after the November election.

MARTÍNEZ: We're joined now by Ankush Khardori. He's a senior writer for Politico Magazine and a former federal prosecutor. So let's take this in pieces, starting with the question of blanket immunity. Let's listen to an exchange between Justice Amy Coney Barrett and Trump's lawyer, John Sauer. It's about whether some of Trump's actions in the January 6 case are official acts or private.

(SOUNDBITE OF ARCHIVED RECORDING)

AMY CONEY BARRETT: And 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?

CONEY BARRETT: And 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?

JOHN SAUER: As alleged - I mean, we dispute the allegation...

SAUER: As alleged - I mean, we dispute the allegation...

CONEY BARRETT: Of course.

CONEY BARRETT: Of course.

SAUER: ...But that sounds private to me.

SAUER: ...But that sounds private to me.

CONEY BARRETT: Sounds private.

CONEY BARRETT: Sounds private.

MARTÍNEZ: All right, Ankush. So why does this distinction of official versus private matter, at least to the conservative justices?

ANKUSH KHARDORI: Right. So at least to the conservative justices, they seem to want to draw a distinction between official acts that are tied to the job responsibilities of the president and to immunize the president in some capacity for those sorts of acts, and to distinguish those from non-official or private acts that would potentially themselves then be subject to criminal prosecution, and to sort of carve a theory of immunity that provides some form of immunity for presidents but not total immunity.

KHARDORI: ANKUSH KHARDORI == KHARDORI == POLITICO MAGAZINE

MARTÍNEZ: Now, on the other hand, the liberal justices don't think this distinction should matter at all, so what stood out to you from their questions?

KHARDORI: Well, the liberal justices were pointing out many absurd hypotheticals that would flow from that distinction. If a president wanted to murder someone while they were in office, instead of hiring a private hitman, this doctrine would be incentivizing them to use the powers of the presidency to commit that criminal misconduct, so it's kind of backwards.

MARTÍNEZ: All right. So no blanket immunity, perhaps, but some justices suggested there should be some level of immunity, and hinted that they might send the case back to the lower courts for some more work. Here's Chief Justice John Roberts.

JOHN ROBERTS: What concerns me is, as you know, the Court of Appeals did not get into a focused consideration of what acts we're talking about or what documents we're talking about.

MARTÍNEZ: So what's Roberts referring to here, and what could it mean for how the court might rule?

KHARDORI: Well, he seems to be suggesting that the Court of Appeals should have undertaken a more searching or a granular analysis of the allegation, the indictment, again to distinguish, in some capacity, between official and non-official acts. In terms of the implications, you know, if they send it back to the lower courts for more work to be done, that could fatally imperil any prospect for this prosecution moving to trial before the November election. And so this may result in a delay - further delay - of the case beyond November. And, of course, if Donald Trump wins reelection in November, it is highly unlikely that this trial will occur.

MARTÍNEZ: Ankush Khardori, senior writer for Politico Magazine. Thank you very much.

KHARDORI: Thanks for having me. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

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