Eliana Willis

In an exchange with attorney John Sauer, conservative justice Amy Coney Barrett signaled she thought Donald Trump could still face trial on some election interference charges brought by special counsel Jack Smith, even if the supreme court agrees with his claims of immunity.“So, you concede that private acts don’t get immunity?” Barrett asked.“We do,” Sauer replied. Barrett then referred to Smith’s brief in the immunity case:
He urges us even if we … assume that there was some sort of immunity for official acts, that there were sufficient private acts in the indictment … for the case to go back and the trial to begin immediately. And I want to know if you agree or disagree about the characterization of these acts.
She then posed a series of scenarios to Sauer, and asked him whether the acts were official or private. Sauer said most would be considered private, not official, acts.“So those acts, you would not dispute those were private, and you wouldn’t raise a claim that they were official as characterized?” Barrett asked. It’s a telling statement from the Trump-appointed justice, because the court could find that Trump is immune for official acts – but must face trial for acts done in his capacity as a private citizen.Before the special counsel’s office began presenting its case, Neil Gorsuch, a conservative justice, pondered whether rejecting Donald Trump’s claim of immunity would cause presidents to preemptively pardon themselves, in fear that a successor could decide to prosecute them.“What would happen if presidents were under fear, fear that their successors would criminally prosecute them for their acts in office,” asked Gorsuch, who Trump appointed, in an exchange with his attorney John Sauer.“It seems to me like one of the incentives that might be created as for presidents to try to pardon themselves,” Gorsuch continued, adding, “We’ve never answered whether a president can do that. Happily, it’s never been presented to us.”“And if the doctrine of immunity remains in place that’s likely to remain the case,” Sauer replied.Trump’s lawyer went on to argue that a finding against his immunity claim would weaken all future presidents:
The real concern here is, is there going to be bold and fearless action? Is the president going to have to make a controversial decision where his political opponents are going to come after him the minute he leaves office? Is that going to unduly deter, or is that going to dampen the ardor of that president to do what our constitutional structure demands of him or her, which is bold and fearless action in the face of controversy?
“And perhaps, if he feels he has to, he’ll pardon himself every four years from now on,” Gorsuch pondered.“But that, as the court pointed out, wouldn’t provide the security because the legality of that is something that’s never been addressed,” Sauer replied.Arguing before the court now is Michael Dreeben, an attorney representing special counsel Jack Smith, who indicted Donald Trump on federal charges relating to conspiring to overturn the 2020 election.He told the court that agreeing with Trump’s immunity claim means president could not be found liable for all sorts of criminal acts:
His novel theory would immunize former presidents for criminal liability for bribery, treason, sedition, murder, and here for conspiring to use fraud to overturn the results of an election and perpetuate himself in power.
Such presidential immunity has no foundation in the constitution. The framers knew too well the dangers of a king who could do no wrong. They therefore devised a system to check abuses of power, especially the use of official power for private gain. Here the executive branch is enforcing congressional statutes and seeking accountability for petitioners’ alleged misuse of official power to subvert democracy.
Conservative justice Amy Coney Barrett continues to sound somewhat flummoxed by John Sauer arguments in favor of Donald Trump’s immunity.“So how can you say that he would be subject to prosecution after impeachment, while at the same time saying that he’s exempt from these criminal statutes?” Barrett asked.Apparently unsatisfied with his answer, Barrett posed another hypothetical to Sauer: In the “example of a president who orders a coup, let’s imagine that he is impeached and convicted for ordering that coup and let’s just accept for the sake of argument, your position that that was official conduct. You’re saying that he couldn’t be prosecuted for that even after conviction and an impeachment proceeding?”Sauer responded by arguing the law must specify that a president who has been impeached and convicted by Congress can still face criminal prosecution for a coup:
If there was not a statute that expressly referenced the president and made it criminal for the president. There would have to be a statute that made a clear statement that Congress purported to regulate the president’s conduct.
In an exchange with attorney John Sauer, conservative justice Amy Coney Barrett signaled she thought Donald Trump could still face trial on some election interference charges brought by special counsel Jack Smith, even if the supreme court agrees with his claims of immunity.“So, you concede that private acts don’t get immunity?” Barrett asked.“We do,” Sauer replied. Barrett then referred to Smith’s brief in the immunity case:
He urges us even if we … assume that there was some sort of immunity for official acts, that there were sufficient private acts in the indictment … for the case to go back and the trial to begin immediately. And I want to know if you agree or disagree about the characterization of these acts.
She then posed a series of scenarios to Sauer, and asked him whether the acts were official or private. Sauer said most would be considered private, not official, acts.“So those acts, you would not dispute those were private, and you wouldn’t raise a claim that they were official as characterized?” Barrett asked. It’s a telling statement from the Trump-appointed justice, because the court could find that Trump is immune for official acts – but must face trial for acts done in his capacity as a private citizen.Another liberal justice, Elena Kagan, debated the specifics with Donald Trump’s attorney John Sauer of his alleged misconduct, and whether he would be immune from prosecution.Kagan asked for Sauer’s views on Trump’s attempt to get Republican lawmakers in Arizona to help him disrupt Joe Biden’s election victory there: “The defendant asked the Arizona House Speaker to call the legislature into session to hold a hearing based on their claims of election fraud.”“Absolutely an official act for the president to communicate with state officials on a matter of enormous federal interest and concern, attempting to defend the integrity of a federal election to communicate with state officials,” Sauer replied.In an exchange with liberal justice Sonia Sotomayor, Donald Trump’s attorney John Sauer defended the legality of sending slates of fake electors – as Trump is alleged to have done to stop Joe Biden from winning the White House.The allegation is at the heart of the charges against Trump, both in special counsel Jack Smith’s federal case, and in the case brought in Georgia by Fulton county district attorney Fani Willis.“What is plausible about the president insisting and creating a fraudulent slate of electoral candidates, assuming you accept the facts of the complaint on their face? Is that plausible that that would be within his right to do?” Sotomayor asked.“Absolutely, your honor,” Sauer replied. “We have the historical precedent we cite in the lower courts of president Grant sending federal troops to Louisiana and Mississippi in 1876 to make sure that the Republican electors got certified.”Liberal justice Sonia Sotomayor sounded sharply skeptical of John Sauer’s arguments as she harkened back to the country’s early days in exploring the situations where a president could be prosecuted.Referring to amicus, or “friend of the court”, briefs filed in the case by outside groups, Sotomayor said:
There are amica here who tell us that the founders actually talked about whether to grant immunity to the president. And in fact, they had state constitutions that granted some criminal immunity to governors. And yet, they didn’t take it up. Instead, they fought to pass an impeachment clause that basically says you can’t remove the president from office, except by a trial in the Senate, but you can impeach him after so … you can impose criminal liability.
We would be creating a situation in which … a president is entitled not to make a mistake, but more than that, a president is entitled for total personal gain, to use the trappings of his office. That’s what you’re trying to get us to hold? Without facing criminal liability?
Up first before the court is attorney John Sauer, who is representing Donald Trump.He’s currently in a back-and-forth with chief justice John Roberts, a conservative who has occasionally acted as a swing vote on the rightward-leaning court, as to whether a president accepting a bribe would be legal.The nine supreme court justices are seated and have begun hearing arguments over whether or not Donald Trump is immune from prosecution for allegedly trying to overturn the 2020 election because he was acting in his official capacity as president.Follow along here for live updates.Should the supreme court throw out Donald Trump’s immunity claim, when might his trial on federal election subversion charges begin?Or, if it is delayed further, which is the next criminal case to go before jurors? And what of the many civil suits against him?For a rundown of the former-perhaps-next president’s multitudinous legal troubles, check out our regularly updated case tracker:Protesters often turn up by the dozens outside the supreme court in Washington DC when it hears high-profiles cases, and Donald Trump’s occasional appearances in the Capitol also typically attract demonstrations.But for whatever reason, the exterior of the high court appears relatively quiet this morning, at least based on the photos on the wire, with few protesters present:The supreme court has not yet even heard arguments in Donald Trump’s claim that he is immune from charges related to attempting to overturn the 2020 election because his alleged actions were taken while serving as president. But legal scholar Michael Waldman, president of the Brennan Center for Justice at the New York University School of Law, said the conservative-dominated body has already done the ex-president’s bidding by agreeing to hear the case – and therefore delaying the start of a trial that could prove pivotal to his chances of returning to the White House.“The justices have already done great damage,” Waldman wrote recently. “They engineered one of history’s most egregious political interventions – not with an ugly ruling, at least not yet, but by getting ‘the slows’. At the very least they should issue this ruling in three weeks. That would give trial judge Tanya Chutkan enough time to start the trial [before the election], if barely.”Here’s more on why Waldman thinks the high court erred, and what we can expect in today’s arguments, from the Guardian’s Martin Pengelly:Good morning, US politics blog readers.It’s another big day at the supreme court – perhaps the biggest of its term so far. Beginning at 10am ET, the nine justices will hear arguments over whether Donald Trump is immune from prosecution for acts done while he was in office. The former president has made the claim as part of a bid to blunt special counsel Jack Smith’s case against him for allegedly trying to overturn the 2020 election, and while there’s no telling how the court will rule, it has already had one concrete effect: delaying his trial in Washington DC, potentially until after the November election, and therefore preventing a potential guilty verdict that could have damaged his campaign.The supreme court is composed of a six-justice conservative supermajority – three of whom Trump appointed – and a three-justice liberal minority, and the fact that they took this case up at all has raised eyebrows among some legal scholars. A ruling in his favor could lead to at least some of the charges Smith has brought to be dropped. If the court rejects arguments from Trump’s attorneys, his trial may be cleared to proceed – but there is still no telling when it will actually kick off.The former president will not be in Washington DC for today’s oral arguments. He’s in New York City, where his trial is underway on charges of falsifying business documents related to hush money payments made before his 2016 election victory, the first of his four criminal cases to go before jurors. We have a separate live blog covering all that.Here’s what else is going on today:
Joe Biden is heading to Syracuse, New York to tell the tale of how the 2022 Chips act and other policies are helping turn around the local economy, then heading to New York’s ritzy suburbs for a campaign event.
Arizona has indicted 18 former top Trump officials, including Mark Meadows, his ex-chief of staff, and attorney Rudy Giuliani for their attempts to overturn Biden’s victory in the state four years ago, the AP reports.
And in Michigan, a state investigator said he considered Trump and Meadows as unindicted co-conspirators in a plot to interfere with Biden’s victory there in 2020, according to the AP. More

An Arizona grand jury has charged 18 people involved in the scheme to create a slate of false electors for Donald Trump, including 11 people who served as those fake electors and seven Trump allies who aided the scheme.Kris Mayes, Arizona’s Democratic attorney general, announced the charges on Wednesday, and said the 11 fake electors had been charged with felonies for fraud, forgery and conspiracy.Beyond the fake electors themselves, high-profile Trump affiliates have been charged with aiding in the scheme: Mark Meadows, John Eastman, Boris Epshteyn, Rudy Giuliani, Jenna Ellis, Christina Bobb and Mike Roman.Those charged over their roles as false electors include two sitting lawmakers, state senators Jake Hoffman and Anthony Kern. The former Arizona Republican party chair Kelli Ward and her husband, Michael Ward, have been charged, as has Tyler Bowyer, a Republican national committeeman and Turning Point USA executive, and Jim Lamon, who ran for US Senate in 2022. The others charged in the fake electors scheme are Nancy Cottle, Robert Montgomery, Samuel Moorhead, Lorraine Pellegrino and Gregory Safsten.The indictment says: “In Arizona, and the United States, the people elected Joseph Biden as president on November 3 2020. Unwilling to accept this fact, defendants and unindicted co-conspirators schemed to prevent the lawful transfer of the presidency to keep unindicted co-conspirator 1 in office against the will of Arizona’s voters. This scheme would have deprived Arizona voters of their right to vote and have their votes counted.”Biden won Arizona by more than 10,000 votes, a close margin in the typically red state that immediately prompted allegations of voter fraud that persist to this day. The state has remained a hotbed of election denialism, despite losses for Republicans who embraced election-fraud lies at the state level.Trump has not been charged in the Arizona case.The indictment refers to Trump himself as “unindicted co-conspirator 1” throughout, noting how the former president schemed to keep himself in office, and how those around him, even those who believed he lost, aided this effort.Some involved have claimed they signed on as an alternate slate of electors in case court decisions came down in Trump’s favor, so they would have a backup group that could be certified by Congress should Trump prevail.But, the indictment says, the defendants intended for these false votes to pressure former vice-president Mike Pence into rejecting the slate of accurate electors for Joe Biden during the electoral college vote-counting on 6 January 2021. Pence did not declare Trump the winner, use these fake electoral votes, or otherwise delay the official count.Arizona’s charges are the latest turn in the fake electors saga. Seven states saw similar schemes, but two states – New Mexico and Pennsylvania – hedged their language in their documents enough to prevent prosecution.Democratic attorneys general in Michigan and Nevada have indicted Republican fake electors in their respective states. In Georgia, three of 16 fake electors were indicted as part of a wide-ranging racketeering indictment against Trump and allies. The remaining were given immunity for helping in the district attorney’s investigation.In Wisconsin, the fake electors acknowledged Biden’s win as a way to settle a civil lawsuit over the issue.Mayes’ investigation fell behind other states because she narrowly won office in 2022, and her predecessor, Republican Mark Brnovich, had not pursued the line of inquiry. She had confirmed the investigation in early 2023.The investigation – along with a host of other disagreements – have put Mayes at odds with Arizona’s Republican-led legislature, which started a committee to investigate Mayes and her office over concerns she was working beyond her authority as attorney general.In a video on Wednesday, Mayes said the investigation was “thorough and professional” and would provide justice for the plot to overturn the state’s electoral votes.“I understand for some of you today didn’t come fast enough, and I know I’ll be criticized by others for conducting this investigation at all,” she said. “I will not allow American democracy to be undermined – it’s too important.”Hugo Lowell and Sam Levine contributed reporting More

The former congresswoman and co-chair of the House January 6 committee Liz Cheney is urging the US supreme court to rule quickly on Donald Trump’s claim that he has immunity from prosecution for acts he committed while president – so that his 2020 election interference trial can begin before the 2024 election this November.“If delay prevents this Trump case from being tried this year, the public may never hear critical and historic evidence developed before the grand jury, and our system may never hold the man most responsible for January 6 to account,” Cheney wrote in an opinion article for the New York Times, published on Monday.Trump faces four federal election subversion charges, arising from his attempt to overturn his defeat by Joe Biden in 2020, fueled by his lie about electoral fraud and culminating in the deadly attack on Congress by extremist supporters, urged on by the then president, on 6 January 2021.Cheney warned: “I know how Mr Trump’s delay tactics work,” adding: “Mr Trump believes he can threaten and intimidate judges and their families, assert baseless legal defenses and thereby avoid accountability altogether.”The special counsel Jack Smith, prosecuting the case against Trump, has urged the court to reject Trump’s immunity claim as “an unprecedented assault on the structure of our government”.Cheney, a Republican and the daughter of the former vice-president Dick Cheney, was ousted from her congressional seat, representing Wyoming, after she became one of the strongest voices from the GOP demanding Trump be held accountable for inciting and failing to stop the January 6 insurrection.She has since said she would prefer Democrats to win in the 2024 elections over members of her own party as it has become more extreme, because she feared the US was “sleepwalking into dictatorship” and that another Trump White House presented a tangible “threat” to American democracy.Cheney said in her New York Times article: “The special counsel’s indictment lays out Mr Trump’s detailed plan to overturn the 2020 election … [and that] senior advisers in the White House, Justice Department and elsewhere repeatedly warned that Mr Trump’s claims of election fraud were false and that his plans for January 6 were illegal.”She added: “If Mr Trump’s tactics prevent his January 6 trial from proceeding in the ordinary course, he will also have succeeded in concealing critical evidence from the American people – evidence demonstrating his disregard for the rule of law, his cruelty on January 6 and the deep flaws in character that make him unfit to serve as president. The Supreme Court should understand this reality and conclude without delay that no immunity applies here.”The court’s nine-member bench leans very conservative, especially after Trump nominated three rightwing justices while he was president. The court hears oral arguments in the immunity case on Thursday.Trump and his team urged the court to find that presidents have absolute immunity from criminal prosecution for official acts they take in office and therefore dismiss the federal criminal case. More

The voting equipment company Smartmatic has agreed to settle a defamation lawsuit with the far-right One America News Network (OAN) over lies broadcast on the network about the 2020 election.Erik Connolly, a lawyer for Smartmatic, confirmed the case had been settled, but said the details were confidential. Attorneys for Smartmatic and OAN notified a federal judge in Washington on Tuesday that they were agreeing to dismiss the case, which Smartmatic filed in 2021.Smartmatic sued OAN in November 2021, saying the relatively small company was a victim of OAN’s “decision to increase its viewership and influence by spreading disinformation”. Smartmatic was only involved in the 2020 election in a single US county, Los Angeles, but OAN repeatedly broadcast false claims that its equipment had flipped the election for Biden. Trump allies Rudy Giuliani and Sidney Powell played a key role in advancing the outlandish claims.Defamation cases are difficult to win in the US, with plaintiffs having to clear a high bar of showing that defendants knew the information was false and published it anyway. The settlement comes months after OAN lawyers apparently accidentally turned over documents showing that the network had obtained a spreadsheet with Smartmatic employees’ passwords. It’s not clear if the passwords were authentic, but Smartmatic lawyers said in court filings that the network may have committed a crime.The settlement also means that internal documents from OAN showing how the network weighed and evaluated claims about the 2020 election will not become public. Before the voting equipment company Dominion reached a $787.5m settlement with Fox last year, those kinds of internal documents offered smoking gun evidence that key personnel at Fox knew election claims were false.The settlement is the latest development in a series of defamation cases that have sought to hold media outlets accountable for spreading false information about the 2020 election. In 2022, OAN settled a defamation case brought by Ruby Freeman and Shaye Moss, two Atlanta election workers it falsely claimed were involved in stealing the election. The network issued an on-air report saying there was “no widespread voter fraud” by Georgia election officials and clarifying that Freeman and Moss “did not engage in ballot fraud or criminal misconduct”.Smartmatic still has a pending $2.7bn defamation lawsuit against Fox.Earlier this month, a Delaware judge set a September trial date for Smartmatic’s defamation case against Newsmax. Both Smartmatic and Dominion also have ongoing defamation cases against Powell, Giuliani and Mike Lindell.skip past newsletter promotionafter newsletter promotionLegal scholars are carefully watching the cases to see whether defamation law can be an effective tool in curbing misinformation. More

Donald Trump was seen arriving in court on Monday in his criminal trial involving the adult film actor Stormy Daniels and the former Playboy model Karen McDougal. Trump, the first former US president to face a criminal trial, is accused of paying Daniels and McDougal to cover up alleged extramarital liaisons that could have damaged his candidacy in the 2016 election. The trial is scheduled to start this morning, with jury selection in Manhattan supreme court More

Two far-right conspiracy theorists will pay up to $1.25m in fines for launching a robocall campaign to discourage Black New York voters from participating in the 2020 election, the New York attorney general announced on Tuesday.Jacob Wohl, of Irvine, California, and Jack Burkman, of Arlington, Virginia, were found liable in March 2023 for targeting about 5,500 Black voters as part of the robocall scheme.Under the latest settlement agreement, Wohl and Burkman will pay more than $1m to the New York attorney general’s office, the National Coalition on Black Civic Participation (NCBCP) and individuals harmed in the robocall campaign.The three parties filed a lawsuit against Wohl and Burkman in 2021 after an investigation by the attorney general’s office found that the pair had broken several state and federal laws.In New York, callers were falsely told that their personal information would be added to a public database and used by police departments to track outstanding warrants or for mandatory Covid-19 vaccinations.One call claimed to come from a spokesperson for a “civil rights organization” founded by Wohl and Burkman, according to a script shared in the press release.“Mail-in voting sounds great, but did you know that if you vote by mail, your personal information will be part of a public database that will be used by police departments to track down old warrants and be used by credit card companies to collect outstanding debts? The CDC is even pushing to use records for mail-in voting to track people for mandatory vaccines,” the call said.The call then warned that voters should not be “finessed into giving your private information to the man” and should “beware of vote by mail”.One voter suffered “severe anxiety and distress” from the robocalls and later withdrew his voter registration, the press release said.To address the robocalls’ false claims, NCBCP used “considerable resources” to reach misinformed voters.In Tuesday’s release, the New York attorney general, Letitia James, called the robocall scheme “depraved”.“Wohl and Burkman orchestrated a depraved and disinformation-ridden campaign to intimidate Black voters in an attempt to sway the election in favor of their preferred candidate,” James said.“These men engaged in a conspiracy to suppress Black votes in the 2020 general election,” said the NCBCP president, Melanie Campbell, in Tuesday’s press release. “They used intimidation and scare tactics, attempting to spread harmful disinformation about voting in an effort to silence Black voices. Their conduct cannot and will not be toleratedThe settlement agreement is the latest punishment for Wohl and Burkman, who ran similar schemes in at least two other states.Wohl and Burkman were previously ordered to complete 500 hours of registering voters in lower income neighborhoods by an Ohio judge after pleading guilty to charges in connection to a similar robocall campaign.Wohl and Burkman also face additional charges in Michigan, CNN reported. More

Several January 6 rioters have won early release from their sentences ahead of a key supreme court review of the legality of a specific federal charge against them – a review that could, in turn, see them ordered to return to prison.A decision on the legal issue, which revolves around how January 6 prosecutors distinguished between conduct qualifying as “obstructing an official proceeding” of Congress and misdemeanor offenses, including shouting to interrupt a congressional hearing, is not expected until the summer, according to the Washington Post.The decision could impact convictions and sentences passed on more than 350 January 6 defendants if the supreme court decides that prosecutors misused criminal statutes to obtain the convictions.Three men have already been granted early releases, according to the Post.They include a Delaware man who carried a Confederate flag into the Capitol and was released one year into a three-year term; a Ohio man who broke through police lines to become one of the first rioters to enter the building, released six months into a 19-month sentence; and a man who entered the Senate chamber draped in a Trump flag, who was freed after serving five months of a 14-month sentence.The law that prosecutors used to charge the men was passed after the collapse of energy trading firm Enron in 2001 and crafted to limit accounting corruption. But the charge was used to prosecute some January 6 rioters in place of charging sedition or insurrection violations.The legality of using the obstruction charge has mostly been upheld by January 6 trial judges, but two judges, one Trump-appointed, have argued that it applies only to tampering or destruction of evidence.In 2021, one of those federal judges, Randolph Moss, said the government could face a “constitutional vagueness problem” if it could not articulate to the courts how the charge distinguished between obstruction of Congress and ordinary trespassing.If the supreme court decides the obstruction charge was not suitable for the January 6 rioters, the decision could also affect the election interference case against Donald Trump.Retired US district judge Thomas F Hogan, who passed sentence on 26 January 6 defendants, told Georgetown law school students earlier this year that if the supreme court rejects the use of the law it “would have a devastating effect on the prosecution side” of January 6 prosecutions that didn’t involve violence.skip past newsletter promotionafter newsletter promotionAmong those who could see their convictions overturned by the supreme court is Jacob Chansley, known as the “QAnon shaman” and wore a horned headdress, who was charged under the law. Other include members of the far-right Oath Keepers and Proud Boys extremist groups.Prosecutors have urged judges to delay releasing the men charged only under the contested obstruction law pending the supreme court appeal, arguing in one case that doing so into another presidential election, “would be releasing defendant into the same political maelstrom that led him to commit his crimes in the first place”. More

The Arizona governor, Katie Hobbs, a Democrat, called for an Arizona supreme court ruling to be repealed that permits enforcement of an 1864 law banning almost all abortions. Speaking at a press conference the governor said: ‘The near total civil war-era ban that continues to hang over our heads only serves to create more chaos for women and doctors in our state.’ First passed when Arizona was still a territory, the ban only permits abortions to save a patient’s life and does not make exceptions for rape or incest More