Trump was not in attendance at the argument but talked about the stakes when greeting supporters at a New York construction site. (Fox News)
Both liberal and conservative justices focused on the broader implications for future presidents.
"If the potential for criminal liability is taken off the table, wouldn't there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they're in office?" asked Justice Ketanji Brown Jackson. "If someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority, could go into office knowing that there would be no potential full penalty for committing crimes, I'm trying to understand what the disincentive is from turning the Oval Office into, you know, the seat of criminal activity in this country."
Justice Samuel Alito asked, "If an incumbent who loses a very close, hotly contested election, knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?"
Justice Brett Kavanaugh summed up the stakes, however the court rules: "This will have huge implications for the presidency."
Trump was not in attendance at the argument but talked about the stakes when greeting supporters at a New York construction site.
Former U.S. President Donald Trump speaks during a 2024 election campaign rally in Waco, Texas, March 25, 2023. (SUZANNE CORDEIRO/AFP via Getty Images)
Special Counsel Jack Smith has charged the former president with conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights.
Those charges stemmed from Smith's investigation into Trump's alleged plotting to overturn the 2020 election results, including participation in a scheme to disrupt the electoral vote count leading to the subsequent January 6, 2021, U.S. Capitol riot. Smith and several of his deputies attended the arguments.
Trump pleaded not guilty to all charges in August.
The lengthy courtroom arguments raised a series of hypotheticals to explore the "outer perimeter" of criminal executive liability.
Several justices wondered whether a president could someday be prosecuted for ordering the assassination by his military of a political rival; ordering a nuclear weapons strike; or demanding a bribe for a political appointment.
"If you expunge the official part from the indictment, that's like a one-legged stool, right?" said Chief Justice John Roberts, suggesting official executive acts could be separated from partisan, unofficial acts. "I mean, giving somebody money isn't bribery unless you get something in exchange. And if what you get in exchange is to become the ambassador of a particular country, that is official: the appointment that's within the president's prerogatives. The unofficial part: I'm going to get $1,000,000 for it."
Donald Trump and Jack Smith (Getty Images)
And while this appeal would normally be decided in late June at the end of the Court's term, it is being expedited, so a ruling could come sooner.
If the Supreme Court rules in the government's favor, the trial court will "un-pause" — meaning all the discovery and pre-trial machinations that have been on hold would resume.
Trump's team would likely argue to trial Judge Tanya Chutkan that they need several months at least from that point to actually be ready for a jury trial.
A sweeping constitutional victory for the former president would almost certainly mean his election interference prosecution collapses and could implicate his other pending criminal and civil cases.
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But for now, Trump may have achieved a short-term win even if he eventually loses before the Supreme Court — an indefinite delay in any trial, that may carry over well past Election Day on Nov. 5.
The case is Trump v. U.S. (23-939).
Shannon Bream currently serves as anchor of FOX News Sunday. She joined the network in 2007 as a Washington D.C- based correspondent covering the Supreme Court. Her latest book is "The Love Stories of the Bible Speak."
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