For nearly three hours on Thursday, the Supreme Court considered whether former presidents were immune from prosecution and what exactly it means if they were.
His response will determine whether former President Donald Trump can be tried for trying to overturn the 2020 election.
Whatever the decision, each justice emphasized that it would shape American democracy for years to come.
“We’ve been writing a rule for ages,” Justice Neil Gorsuch said.
The case, which was heard in private session a day after the court's final scheduled oral argument this term, hinges on Trump's assertion that he is entitled to absolute immunity from criminal charges for acts he he committed during his term.
According to Trump, this immunity protects him from criminal charges brought by US special prosecutor Jack Smith, who allegedly tried to overturn the results of the 2020 election.
This trial will remain suspended until the court renders its decision, expected in June.
The justices' pointed questions, directed at both sides, indicated a division within the court and suggested the possibility of a split decision. This division could also result in a more complex decision that would significantly delay any resumption of the trial.
Their questions, accompanied by tense exchanges and high-stakes hypothetical scenarios, showed that the conservative majority and the liberal minority make their decisions with history in mind. Does total immunity mean a future president will be free to use the US military to kill his rivals? Or, without it, would presidents who leave office be subject to the whims of individual prosecutors and go to prison as part of a political vendetta?
They also raised the issue of pardoning another former president, Richard Nixon, for his involvement in the Watergate cover-up and Operation Mongoose in the 1960s - where then-President John Kennedy ordered the CIA to carry out covert operations against Fidel Castro.
While conservatives seemed open to the idea that all former U.S. presidents should be granted some degree of immunity, the justices all seemed skeptical of arguments made by Trump's lawyer, Dean John Sawyer, that the he former president enjoyed almost complete protection from prosecution.
First answering questions, Mr. Sawyer was asked by the nine justices about the scope of these protections.
“What if the president ordered the army to stage a coup? asked Justice Elena Kagan, one of three liberal justices on the court.
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Sawyer seemed hesitant to answer before saying that "it depends on the circumstances."
Justice Kagan, sounding skeptical, responded: “That sounds pretty bad, doesn’t it?”
Later, following the same issue, Justice Ketanji Brown Jackson, also a liberal judge, expressed concern that if former presidents were completely immune from criminal prosecution, they would not be subject to the constraints of the law.
“I'm trying to understand what the downside is to turning the Oval Office into a seat of crime,” she said.
Conservative judges also insisted on the distinction between “official acts” – those performed within the framework of presidential duties – and private acts.
“My question is whether this very strong form of immunity that you are defending is necessary,” asked Samuel Alito, one of the Court’s most conservative justices.
But Michael Dreeben, representing the U.S. government, faced the same intense questions as judges suffered the consequences of leaving U.S. presidents without some level of criminal protection.
Justice Clarence Thomas asked: What if a president orders a violent attack on foreign soil, can that president be tried later?
Mr. Dreebin responded that there are already “layers of protection” to protect presidents from criminal liability while carrying out their jobs, including for actions taken abroad.
Justice Alito, in particular, seemed concerned about another potential outcome: Presidents could be subject to partisan attacks, perhaps from their successors, once they leave office.
“This could destroy the presidency as we know it,” said Justice Alito, who controlled the second half of the hearing.
But conservative judges have not presented a united front.
Judge Amy Coney Barrett, a Trump appointee, seemed skeptical of the idea that presidents deserve full immunity.
When Mr. Dreebin said that there was no "perfect system" for dealing with a president's guilt, but that the current system would not be improved by Trump's "radical proposal," Judge Barrett said. replied: “I agree.”
A split decision — one that would not entirely side with Trump's lawyers or the special counsel — could send the issue or part of it back to lower courts for decision. This would certainly add additional delays and be subject to appeal, meaning this legal battle would continue for months, if not years. .