Key Takeaways From US Supreme Court Arguments On Trump’s Absolute Immunity Claims; Court Likely To Send Back To Lower Courts; Trump Supreme Court Disciples Give Trump Another Gift Of Delay

On August 1, 2023 former President Donald Trump was charged by federal Special Counsel Jack Smith with the following 4 crimes:

  • Conspiracy to Defraud the U.S.
  • Conspiracy to Obstruct an Official Proceeding
  • Obstruction of and Attempt to Obstruct an Official Proceeding
  • Conspiracy Against Rights

All 4 federal charges relate to Trumps efforts to obstruct or stop the January 6, 2021 congressional certification of President Joe Biden’s election victory.  The indictment describes how Trump repeatedly told supporters and others that he had won the election, despite knowing that it was false, and how he tried to persuade state officials, then-Vice President Mike Pence and finally Congress to overturn the legitimate results.

After a weekslong campaign of lies about the election results, prosecutors allege that Trump sought to exploit the violent rampage at the Capitol by pointing to it as a reason to further delay the counting of votes that sealed his defeat.  In their charging documents, prosecutors referenced a half-dozen unindicted co-conspirators, including lawyers inside and outside of government who they said had worked with Trump to undo the election results and advanced legally dubious schemes to enlist slates of fake electors in battleground states won by Biden.

Trump has pleaded not guilty to the 4 charges and has defended against them by saying he has Presidential Immunity for his action of January 6, 2021 and his efforts to stop the certification of election results were within his powers and authority as president. The Trump campaign has called the charges “fake” and asked why it took 2 1/2 years to bring them.


On December 12, 2023 Special Counsel Jack Smith asked the US Supreme Court to immediately step in to decide whether former President Donald Trump has immunity from prosecution for his actions seeking to overturn the 2020 election.  Smith wrote in his petition to the US Supreme Court:

“This case presents a fundamental question at the heart of our democracy: whether a former President is absolutely immune from federal prosecution for crimes committed while in office. … [it is] of imperative public importance … that the high court decide the question … [so that the  trial, currently scheduled for March, can move forward as quickly as possible.]”

Earlier, U.S. District Court Judge Tanya Chutkan, who is presiding over the election interference case, denied Trump’s motion to dismiss his indictment on presidential immunity and constitutional grounds, prompting Trump to appeal and ask for the case to be put on hold.  In order to prevent a delay, Smith sought to circumvent the appeals process by asking the Supreme Court to take up the case and decide the issue on an expedited basis.

On December 22, the Supreme Court  denied special counsel Jack Smith’s bid to fast-track a dispute about whether former President Donald Trump should enjoy absolute immunity from prosecution for misconduct during his time in the White House. The court did not offer a reason for its decision. The action reverted to the federal appeals court in Washington on the question of immunity.

On February 6, 2023, the  federal appeals court ruled  that Donald Trump is not immune from prosecution for alleged crimes he committed during his presidency, flatly rejecting Trump’s arguments that he shouldn’t have to go on trial on federal election subversion charges The judges made it clear that Trump’s actions could be prosecuted in a court of law.

The judges cited the public interest in accountability for potential crimes committed by a former president, and how that overcame Trump’s argument that immunity was necessary to protect the institution of the presidency. They flatly rejected Trump’s claim that his criminal indictment would have a “chilling effect” on future administrations.,on%20federal%20election%20subversion%20charges.


Trump appealed the to the United States Supreme Court the Court of Appeals decision that he is not immune from prosecution and seeking a “stay of the criminal case” by the Supreme Court until they render a decision.  A key part of Trump’s legal strategy has been to delay his criminal cases until after the 2024 election.  In response to the Trump appeal and the request to place a hold on the proceedings, Special Council Jack Smith filed a request to treat the Trump stay application as a petition for a writ of certiorari and to treat the case in an expedited manner.

On Wednesday, February 28, the US Supreme Court granted CERTIORARI and agreed to hear the case and issued an expedited scheduling order for briefing.  Following is the order in part:

“The application for a stay presented to The Chief Justice is referred by him to the Court. The Special Counsel’s request to treat the stay application as a petition for a writ of certiorari is granted, and that petition is granted limited to the following question:

Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.

… .

The parties were given deadlines to file briefs and  oral arguments were set for April 25, 2024. On April25, the United States Supreme Court hears oral arguments from both sides and the hearing last upwards of 2 hours and 45 minutes.


On April 25, the United States Supreme Court heard oral arguments on Trumps absolute immunity from prosecution claim.  The Supreme Court appeared likely to reject former President Donald Trump’s claim of absolute immunity from prosecution over election interference, but several justices signaled reservations about the charges that could cause a lengthy delay, possibly beyond November’s election.

“A majority of the justices did not appear to embrace the claim of absolute immunity that would stop special counsel Jack Smith’s prosecution of Trump on charges he conspired to overturn his 2020 election loss to Democrat Joe Biden. But in arguments lasting more than 2 1/2 hours in the court’s first consideration of criminal charges against a former president, several conservative justices indicated they could limit when former presidents might be prosecuted, suggesting that the case might have to be sent back to lower courts before any trial could begin. Justice Samuel Alito said that ‘whatever we decide is going to apply to all future presidents.’ ”

The active questioning of all nine justices left the strong impression that the court was not headed for the sort of speedy, consensus decision that would allow a trial to begin quickly. Justices Neil Gorsuch and Brett Kavanaugh, two of Trump’s three high court appointees, and Alito said their concern was not the case against Trump, but rather the effect of their ruling on future presidencies.

Each time Justice Department lawyer Michael Dreeben sought to focus on Trump’s actions, these justices jumped in. “This case has huge implications for the presidency, for the future of the presidency, for the future of the country,” Kavanaugh said. The court is writing a decision “for the ages,” Gorsuch said.

Several justices drilled down on trying to come up with a definition of what constituted an official act versus a private act for personal gain, and whether charges based on official acts  should be thrown out. For example, Trump’s conversations with then-Vice President Mike Pence, urging him to reject some electoral votes on Jan. 6, 2021, might  fall under official acts.

Justice Barrett asked US Attorney Dreeben whether Smith’s team could “just proceed based on the private conduct and drop the official conduct.” Dreeben said that might be possible, especially if prosecutors could, for example, use the conversations with Justice Department officials and Pence to make their case.

The link to the quoated news source is here:


CNN News Agency published online a very succinct report on the April 25 Supreme Court hearing. Following is the report:

CNN HEADLINE: Takeaways from the Supreme Court Arguments On Trump’s Absolute Immunity Claims

By John FritzeTierney Sneed and Marshall Cohen.  CNN’s Katelyn Polantz, Hannah Rabinowitz and Holmes Lybrand contributed to this report.

“The Supreme Court appeared ready to reject former President Donald Trump’s claims of sweeping immunity and the broad protections he has sought to shut down his federal election subversion case, but also reluctant to give special counsel Jack Smith carte blanche to pursue those charges.

After nearly three hours of oral arguments, several of the justices seemed willing to embrace a result that could jeopardize the ability to hold a trial before the November election.

The court’s conservatives aggressively questioned the lawyer representing the special counsel, seemingly embracing a central theme that had been raised by Trump that without at least some form of immunity future presidents would over time be subjected to politically motivated prosecutions.

Much of the hearing focused on whether there should be a distinction between official acts by Trump pursuant to his presidential duties and his private conduct.

How the court decides the dispute could determine Trump’s legal fate and will likely set the rules of criminal exposure for future presidents.”

Here are the key takeaways:


 As the justices wrestled with the nuances of the case and a series of complicated hypotheticals, it seemed increasingly unlikely the court would offer a clear answer on whether Trump may be prosecuted for his effort to overturn the 2020 election.

The upshot is that the Supreme Court appeared likely to leave much of that work to lower courts, proceedings that could take months and further delay a trial that had originally been set for March 4.

That outcome would play into Trump’s strategy of delay and jeopardize a trial before the election.

Chief Justice John Roberts at one point criticized the unanimous and scathing ruling against Trump from the US Court of Appeals for the DC Circuit that would have allowed his case to quickly move to a trial. Roberts suggested the appeals court didn’t lay out an adequate reason for why virtually all of Trump’s actions were subject to prosecution.

“As I read it, it says simply a former president can be prosecuted because he’s being prosecuted,” Roberts said skeptically. ‘Why shouldn’t we either send it back to the court of appeals or issue an opinion making clear that that’s not the law?’ ”


 “In a notable series of concessions, Trump’s attorney John Sauer acknowledged that some of the alleged conduct supporting the criminal charges against the former president were private.

The admission shows how much ground Sauer gave up during the hearing, after Trump had made more sweeping claims in his legal briefs earlier this year, asserting that the entire prosecution should be thrown out.

Trump himself has continued to lobby for absolute immunity, including before his appearance at a New York court where he’s on trial for business fraud.

Justice Amy Coney Barrett was the first to pin Sauer down on the distinction between official and personal acts alleged in the charges. He tentatively agreed with how, in court filings, the special counsel had labeled particular acts as private – acts that alleged that Trump plotted with his private attorneys and campaign advisers to spread bogus election fraud claims, to file false court filings and to put forward fraudulent sets of electors. As part of the exchange, he conceded those private acts would not be covered by presidential immunity.

In a later back and forth with Justice Elena Kagan, Sauer muddied the waters.

He said that Trump’s phone call with Georgia Secretary of State Brad Raffensperger , in which he requested Raffensperger “find” enough votes to flip the results, was not an official act. But Sauer claimed Trump was acting in an official capacity in his conversation with the Republican National Committee about assembling slates of so-called “fake electors” and his call for the Arizona lawmakers to hold a hearing on election fraud.

Sauer’s willingness to commit to the idea that some allegations in the indictment weren’t protected by immunity was an extraordinary walk back of what had been the former president’s position up to that point.

But the Trump lawyer may be hoping that the move will encourage the justices to order more proceedings on deciding what’s private and what’s public in the indictment, a move that could seriously delay the case’s march to trial.”


“Several members of the court’s conservative majority – including Barrett – appeared concerned about the scope of Trump’s claim that he is entitled to “absolute” immunity.

Trump’s attorney, Sauer, faced a series of hostile questions in the early moments of the hearing about that position.

What will likely prove critical – and what was not clear from the arguments – is how the Supreme Court sends the case back to lower courts for more review.

Barrett at one point sketched out how the case could move to trial quickly: Smith could simply focus on Trump’s actions that were private and not official.

“The special counsel has expressed some concern for speed,” Barrett said. She asked DOJ attorney Michael Dreeben if the trial court can sort out what’s official or private acts of the presidency or whether there “another option for the special counsel just to proceed on the private conduct?”

Prosecutors could, hypothetically, draft a slimmed-down superseding indictment that strips out the potentially official acts.

Dreeben told Barrett that the indictment against Trump is substantially about private conduct, meaning that a trial could proceed even if the Supreme Court finds some immunity for Trump’s official actions.”


It was pretty clear where the court’s three liberals will be when the opinion lands.

Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson spent much of the argument quizzing the attorneys on the potential implications of Trump’s absolute immunity position.

In one of the many hypotheticals the liberals tossed at Trump’s attorney, Kagan asked what would happen if a president ordered the military to stage a coup. Could that be prosecuted under Trump’s theory?

Sauer responded that a president would first have to be impeached and convicted before he could be charged criminally. Kagan fired back by asking what would happen if the order came on the final days of a presidency and there was not time to impeach or convict.

“You’re saying that’s an official act? That’s immune?” Kagan asked.

Sauer had to acknowledge that, under Trump’s theory, “it could well be.”

“That sure sounds bad, doesn’t it?” Kagan responded.

Echoing a more fundamental argument the special counsel raised earlier in the case, Jackson said she was concerned Trump’s argument would put presidents above the law.

‘If there’s no threat of criminal prosecution, what prevents the president from just doing whatever he wants?” Jackson said. “I’m trying to understand what the disincentive is from turning the Oval Office into the seat of criminal activity in this country.’ ”


 There was some handwringing by conservatives about the possibility that an ex-president would be subjected to criminal proceedings for conduct that might ultimately be covered by immunity or some form of presidential protection.

Alito went as far as to suggest that denying ex-presidents immunity would discourage peaceful transfers of power, because outgoing presidents who lost hotly contested elections would not want to depart peacefully if they were concerned they’d be prosecuted by their political rival.

Multiple Republican appointees on the court pushed back at the special counsel’s claim that there are ample protections in the criminal justice system to prevent abusive prosecutions.

“You know how easy it is in many cases for a prosecutor to get a grand jury to bring an indictment and reliance on the good faith of the prosecutor may not be enough in some cases,” Roberts said at one point.

Alito, a former federal prosecutor himself, invoked the famous saying that grand jury would indict a ham sandwich if a prosecutor asked them to, while pointing to historic examples of Justice Department officials acting criminally in their roles.

Alito also seized on the acknowledgement by Dreeben that some criminal statutes might need to be interpreted differently when applied to former presidents. Alito suggested that going through a trial to settle those questions would be an unfair burden to a former president.

“That may involve great expense, and it may take up a lot of time,” Alito said, “And during the trial, the former president may be unable to engage in other activities that the former president would want to engage in.”


 Underscoring the sweep of Trump’s claims, Sauer said that his client “absolutely” had a right to put forward Republican electors in states that he lost in 2020, commonly called “fake electors.”

He made these comments under questioning from liberal Justice Sonia Sotomayor, who asked if “it’s plausible” that a president might have the right to help create a “fraudulent slate” of electors, which would mean that it would be an official government act that might be covered by immunity.

In response, Sauer said there was historical precedent for presidents to get involved with these matters, pointing to the contested presidential election of 1876, where there were well-founded claims of fraud, and multiple slates of electors in several key states. (Sauer used the term “so-called fraudulent electors.”)

These comments were a remarkable embrace of a plot that many see as a corrupt scheme to overturn the will of the voters. And it’s clear that federal and state prosecutors clearly disagree with Sauer – they consider the Trump campaign’s seven-state ploy to be a criminal scheme.

The Justice Department charged Trump with federal crimes in connection with the fake electors scheme. (He pleaded not guilty.)  Smith’s indictment says Trump “organized fraudulent slates of electors” to “obstruct the certification of the presidential election.”

And state prosecutors in MichiganGeorgiaNevada and Arizona have also charged many of the illegitimate GOP electors and some Trump campaign officials who were involved in the plot.

Arizona prosecutors announced their sweeping indictment Wednesday night, which targeted the electors themselves and members of Trump’s inner circle, including Mark Meadows and Rudy Giuliani. Michigan investigators also revealed Wednesday that Trump is an unindicted co-conspirator in their case.


The arguments about Trump’s immunity claim are over. Now the clock starts ticking.

Even before the justices took their seats Thursday, the high court was facing enormous pressure – particularly from the left – over its slow pace getting to this point. Every day the court doesn’t issue a decision will play into Trump’s strategy of delay, jeopardizing the likelihood that Smith can bring his case to trial before the November election.

The Supreme Court has moved quite quickly in similar high-profile matters in the past. In 1974, for instance, when a unanimous court ordered President Richard Nixon to turn over the tapes of surreptitious recordings he made in the White House, it did so after roughly two weeks after arguments. In another often-cited example, the court decided the Bush v. Gore election dispute in 2000 a day after it heard arguments.

Earlier this year, the justices heard arguments February 8 about whether Trump had disqualified himself from Colorado’s presidential ballot under the 14th Amendment “insurrectionist ban.” It took the justices just under a month to hand down a decision March 4 that concluded he had not.

In the immunity case, the court already helped Trump by denying the special counsel request last December to leapfrog the appeals court and resolve the question quickly. The court’s decision ensured that the original March 4 date for Trump’s Washington, DC, trial would never become a reality.

And yet the court has been particularly slow releasing far more mundane opinions this year. And, critics note, it took more than two weeks for the court to agree to hear the Trump dispute in the first place. While that is remarkably speedy by Supreme Court standards, it is slower than many of the court’s detractors would like.”


Much discussion has occurred by legal analysts on the sure lapse of time  the Supreme Court’s intervention and whether its involvement means that a trial might not be able to take place before the election.  The lapse of time has prompted criticism that the court was playing into Trump’s desire to drag out the process until after the election. Trump’s legal tactics in all his criminal cases has been to try and delay, delay and delay all the trials until after the November election. That would mean in the Federal cases if he were to go to trial and if Trump is convicted after being elected president, he could simply pardon himself.

Simply put, the United States Supreme Court gave Trump the “gift of delay” when they agreed to hear Trump’s claim of immunity in the first place.  The net effect was that the US Supreme Court suspended the proceedings in Judge Tanya Chutkan’s U.S. District Court from February 25, when the appeal was filed, until May 25 when oral arguments were heard.

Now that oral argument has been heard, it is unknown when the Supreme Court will issue its ruling with some hoping that the Supreme Court will issue an opinion in late June before it goes into recess. The Court is typically in recess from late June to early July.  If the Supreme Court waits to issue its ruling until the end of its term in September, then there is no way a trial can occur before the November 5 Presidential election.

If the polls are to be believed, a criminal conviction will persuade a significant number of voters to abandon Trump.  The Supreme Court could have let stand the D.C. Circuit’s thorough, bipartisan opinion stand.  Instead, the Supreme Court agreed to hear the case delaying the proceedings almost a full 2 months and who knows how long it will take the court to issue a final opinion on the absolute immunity claim or if it will signal exactly what charges should be dismissed.

There’s plenty of room for debate as to why the court acted as it did by first refusing to expedite the case when Smith originally pushed to have it heard before the Court of Appeals ruled and now after the appellate court ruled. But there’s no doubt about the impact of another delay: No trial until after the election.


No President is above the law, and when they break it, they should be prosecuted. There should be no Trump exception. It’s downright disgusting that the United State Supreme Court has even agreed to hear Trump’s Immunity claim in his federal criminal prosecution. It was a no brainer for the Judge Tanya Chutkan as well as the Court of Appeals. Not so much for a court packed with 4 Trump disciples.

Conservative Republican Associate Supreme Court Justices Neil GorsuchBrett Kavanaugh and Amy Coney Barrett were all appointed to the United States Supreme Court by former President Donald Trump and for that reason they have a conflict of interest, they cannot be fair and impartial and should have disqualified themselves from hearing and ruling on the case. Republican Conservative Justice Clarence Thomas as well should disqualify himself from deciding the case given that his wife Ginni Thomas supported Trump’s effort to overturn the 2020 election results and attended a rally that preceded the storming of the Capitol by Trump supporters.

Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett have joined Conservative Republican Chief Justice John G. Roberts, Jr. and Associate Justices Clarence Thomas and  Samuel A. Alito, Jr. to marginalize Progressive Democratic Progressive Associate Justices Sonia Sotomayor, Elena Kagan,  Ketanji Brown Jackson.

The 6 appointed Republican Justices have already made a profound difference with their judicial activism over the last 2 years.  At the end of June, 2023, the United State Supreme Court issued 4 major decisions that were highly anticipated and with great concern confirming it has become a far right wing activist court.   The first was the court’s rejecting an attempt to empower legislatures with exclusive authority to redraw congressional districts without court intervention. The second struct down decades of affirmative action in college admissions.  The third ruled that a Christian business owners can discriminate and withhold services to the LGBTQ+ community based on religious grounds.  The fourth invalidated President Joe Biden’s student loan debt relief plan. Then there is the matter of the Supreme Court reversing Roe v. Wade and 50 years of precedent and denying a woman’s right to choose an abortion and leaving it up to the state’s.

Conservative Republican Associate Supreme Court Justices Neil GorsuchBrett Kavanaugh and Amy Coney Barrett are clearly indebted to Trump for their lifetime appointments. Watch as the 3  justices  do whatever they can to delay any ruling until after the presidential  election . Should the country awaken on November  6 to a second Trump presidency, history will reflect  that the Supreme Court has once again played a critical role on deciding who is elected president.


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Pete Dinelli was born and raised in Albuquerque, New Mexico. He is of Italian and Hispanic descent. He is a 1970 graduate of Del Norte High School, a 1974 graduate of Eastern New Mexico University with a Bachelor's Degree in Business Administration and a 1977 graduate of St. Mary's School of Law, San Antonio, Texas. Pete has a 40 year history of community involvement and service as an elected and appointed official and as a practicing attorney in Albuquerque. Pete and his wife Betty Case Dinelli have been married since 1984 and they have two adult sons, Mark, who is an attorney and George, who is an Emergency Medical Technician (EMT). Pete has been a licensed New Mexico attorney since 1978. Pete has over 27 years of municipal and state government service. Pete’s service to Albuquerque has been extensive. He has been an elected Albuquerque City Councilor, serving as Vice President. He has served as a Worker’s Compensation Judge with Statewide jurisdiction. Pete has been a prosecutor for 15 years and has served as a Bernalillo County Chief Deputy District Attorney, as an Assistant Attorney General and Assistant District Attorney and as a Deputy City Attorney. For eight years, Pete was employed with the City of Albuquerque both as a Deputy City Attorney and Chief Public Safety Officer overseeing the city departments of police, fire, 911 emergency call center and the emergency operations center. While with the City of Albuquerque Legal Department, Pete served as Director of the Safe City Strike Force and Interim Director of the 911 Emergency Operations Center. Pete’s community involvement includes being a past President of the Albuquerque Kiwanis Club, past President of the Our Lady of Fatima School Board, and Board of Directors of the Albuquerque Museum Foundation.