The US supreme court on Thursday expressed interest in returning Donald Trump’s criminal case over his efforts to overturn the 2020 election back to a lower court to decide whether certain parts of the indictment were “official acts” that were protected by presidential immunity.
During oral arguments, the justices appeared unlikely to grant Trump’s request for absolute immunity from criminal prosecution, with both Trump’s lawyer and the justice department’s lawyer agreeing there were certain private acts that presidents would have no protection for.
Related: Liz Cheney urges US supreme court to rule quickly on Trump’s immunity claim
But the chief justice, John Roberts, and the conservative justices suggested that presidents should have some level of immunity and would favor the presiding trial judge in the case deciding whether any acts in the indictment were official and should be expunged.
The subsequent questions explored how to decide what actions were official and what actions were purely private, potentially to develop a test for a lower court to apply to the indictment, and whether a test should consider Trump’s motives or purely objective facts.
If the supreme court remands the matter back to the presiding US district court judge Tanya Chutkan, it would almost certainly inject new delay into the case that could preclude it from going to trial before the November election .
Such an outcome would itself be a win for Trump, whose overarching legal strategy against the cases brought by the special counsel Jack Smith has been to seek delay. If he prevails in the election, he could appoint as the attorney general a loyalist who would drop the charges against him.
The outcome of a remand would also give Trump a material legal win, as it would pave the way for some parts of the indictment to be expunged. Excising some of the conduct as alleged in the indictment could reduce his criminal exposure and undercut the remaining charges.
The supreme court’s conservative justices appeared to have concluded during the argument that there must be some immunity because some “core functions” of the presidency – issuing pardons, veto power – cannot be regulated by Congress and so criminal statutes cannot apply.
Related: The Supermajority review: How the supreme court trumped America
Michael Dreeben, arguing on behalf of the special counsel’s office, conceded that those “core functions” could not be prosecuted. Justice Neil Gorsuch declared that meant there was some immunity.
That opened the door for the other conservative justices to abruptly question – beyond what the supreme court was expected to consider with Trump’s immunity claim – the scope and viability of the charges included in Trump’s indictment.
Justices Samuel Alito and Brett Kavanaugh suggested they found the fraud conspiracy statute used against Trump overly vague and broad. They suggested that zealous prosecutors could use vague statutes to wantonly prosecute presidents after they left office if there were not some immunity.
Dreeben disputed that hypothetical, responding that the checks built into the judicial system would prevent such vindictive prosecution. Alito was unimpressed by Dreeben’s argument, referencing the adage that a grand jury could indict a ham sandwich.
When Dreeben said prosecutors don’t indict people who don’t deserve it, Alito was dismissive: “Every once in a while there’s an eclipse too.”
Alito further suggested that not granting presidents some level of immunity for official acts might even present a risk to stable democracy, if presidents who lost an election faced the threat of prosecution.
That suggestion was particularly startling and underscored Alito’s deference to Trump’s argument, as it was the direct opposite situation of the Trump indictment, in which Trump is accused of endangering democracy by using the powers of the presidency to remain in power after he lost.
While conservative justices Roberts, Gorsuch, Kavanaugh, Alito and Amy Coney Barrett at various points leaned towards a remand, the Democrat-appointed justices were scathing of their colleagues’ position to offer presidential immunity at all.
Justice Ketanji Brown Jackson told Trump’s lawyer John Sauer that she was deeply concerned that granting immunity would embolden future presidents to commit crimes and use their office as a shield.
“I’m trying to understand what the disincentive is of turning the Oval Office into the seat of criminality,” Jackson said.
“Once we say ‘no criminal liability, Mr President. You can do whatever you want,’ I’m worried we would have a worse problem than the problem of the president feeling constrained to follow the law while he’s in office,” Jackson said of the concern that presidents could be hounded once out of office.
The argument from Alito that the prospect of a criminal trial would chill presidents from peacefully leaving office at the end of their term was also met with derision from Justice Sonya Sotomayor. “A stable democratic society,” she said, “needs the good faith of its public officials.”