Ex-federal judge 'profoundly disturbed' by SCOTUS entertaining Trump’s total immunity claim

27 April 2024

When the Supreme Court of the United States (SCOTUS) heard oral arguments on former President Donald Trump's claim of absolute broad immunity from criminal liability on Thursday, legal experts opined that Republican-appointed justices seemed overly sympathetic to Trump's side.

And on Saturday, the New Republic's Greg Sargent wrote that retired federal judge Judge J. Michael Luttig no longer expects SCOTUS to uphold democracy and the rule of law based on what he heard this week.

"I’m profoundly disturbed about the apparent direction of the court," said Luttig, a conservative jurist President George H.W. Bush appointed to the 4th Circuit Court of Appeals in 1991. "I now believe that it is unlikely Trump will ever be tried for the crimes he committed in attempting to overturn the 2020 election."

The core of Trump's argument is that presidents should be allowed to act with total impunity in order to properly do their jobs. During oral arguments, the former president's attorney, John Sauer, said that immunity should even be granted to a president who orders the assassination of a political rival.

Meanwhile, Department of Justice special counsel Jack Smith and his team of prosecutors counter that Trump should not be immune from his actions on and leading up to the January 6 insurrection in which he outwardly fought against the peaceful transfer of power. SCOTUS' conservative members appeared to be skeptical of the DOJ's arguments, and pondered the implications of what the government's attempt to hold Trump accountable would mean for future presidents.

"I believe it is now likely either that Trump will get elected and instruct his attorney general to drop the charges, or that the Supreme Court will grant him immunity from prosecution," Luttig told Sargent. "The conservative justices’ argument for immunity assumes that Jack Smith’s prosecution of Trump is politically corrupt and seeks a rule that would prevent future presidents from corruptly prosecuting their predecessors."

"But such a rule would license all future presidents to commit crimes against the United States while in office with impunity,” he continued, adding that this is "exactly what Trump is arguing he’s entitled to do."

Thursday's oral arguments suggested that justices may agree with Trump that some immunity should be extended to presidents, but not total immunity. This could mean that the question gets punted back to the DC Circuit Court of Appeals to answer any unresolved issues.

This would almost certainly mean that Trump's DC election interference trial won't take place before the election. And as Luttig pointed out, Trump could then have his appointed attorney general dismiss the case if he wins the election, or even pardon himself.

Even if SCOTUS helped Trump delay the DC trial, he still has three other criminal trials to contend with this year. His Manhattan trial for allegedly covering up hush money payments preventing women accusing him of sexual impropriety from speaking publicly is ongoing and will likely yield a verdict this summer provided it doesn't end in a mistrial. However, that may be the only one to take place before the election, with his classified documents case in the Southern District of Florida and his Georgia election interference case still not having any trial date scheduled.

Click here to read Sargent's full column in the New Republic (subscription required).

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