Trump contends former presidents should have immunity from charges over actions they took in office and has said that Congress must secure a conviction during the impeachment process in order for any former president to face criminal charges for the same underlying conduct in a court of law. So far, two lower federal courts have disagreed with that legal argument.
The Supreme Court justices ultimately appeared mixed on the outcome. They clearly did not want to dismiss the case against Trump outright based on his sweeping theory of presidential immunity. But several justices appeared skeptical of how the special counsel has framed the case.
Sauer, who argued on behalf of Trump in lower court earlier this year, told the nine justices that the “official stuff has to be expunged completely from the indictment before the case can go forward,” referring to his belief that some alleged actions in the indictment fell under official acts of the presidency.
But Sauer appeared to be dialing back some of what the former president’s team has tried to argue in court before. Much of the argument surrounded whether Trump engaged in “private” conduct to allegedly subvert an election, which wouldn’t be protected, versus “official” acts that would carry with them protection from prosecution.
