Trump could get a partial victory after the Supreme Court hears the immunity case

Former President Trump seems likely to win at least a partial victory from the Supreme Court in his effort to avoid prosecution for his role in Jan. 6.

Why it matters: The court heard more than two hours of oral arguments today over Trump’s assertion that former presidents cannot be prosecuted, even after leaving office, for actions they took while in office.

• A definitive ruling against Trump — a clear rejection of his theory of immunity that would allow his Jan. 6 trial to promptly resume — seemed to be the least likely outcome.
• A majority of the justices seemed inclined to rule that former presidents must have at least some protection from criminal charges, but not necessarily the “absolute immunity” Trump is seeking.
• The most likely outcome might be for the high court to punt, perhaps kicking the case back to lower courts for more nuanced hearings. That would still be a victory for Trump, who has sought first and foremost to delay a trial in the Jan. 6 cases until after Inauguration Day in 2025.

What they’re saying: Trump is asserting one of the most sweeping theories of presidential power ever articulated.

• His lawyer, John Sauer, told the justices that a former president could not face criminal charges — even if he had a political rival assassinated — unless he had been impeached and convicted by the Senate.

The core distinction during oral arguments came down to a president’s official vs. unofficial actions — and which of Trump’s efforts to overturn the 2020 election results were official vs. unofficial.

• Several conservative justices, particularly Justice Brett Kavanaugh, were adamant that former presidents cannot be prosecuted for official acts, and warned that the Justice Department’s position in this case would allow every new president to prosecute their predecessor.
• But Chief Justice John Roberts and Justice Amy Coney Barrett both took issue with the sheer breadth of Trump’s position.

The bottom line: No clear, concise majority opinion emerged this morning. But there may be five justices willing to kick the can down the road — and that’s enough for Trump, at least for now.