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'Surprising' and 'disturbing': Legal experts react to Supreme Court arguments on Trump's immunity claim
When Donald Trump began to claim presidential immunity from criminal prosecution related to his efforts to overturn his 2020 election loss, many legal analysts ABC News spoke with considered it a weak argument.
But last week, in nearly three hours of oral arguments, several Supreme Court justices seemed open to some limited protection for former presidents from criminal liability for official acts they undertook while in the White House.
It was a shocking turn of events, according to some veteran court observers.
“It was surprising to hear, at least from some of the justices, the possibility that a president could somehow commit criminal misconduct for which they could never be held liable in court,” Michael Gerhardt, a constitutional expert at the University of North Carolina, told ABC News. “I think that has struck many people as just, up until now, inconceivable.”
“That’s exactly the part that I think most of the American public is going to find fairly incredulous,” said David Schultz, a professor at the University of Minnesota and national expert in constitutional law. “The idea of saying that the president of the United States is above the law compared to the rest of us.”
While the justices seemed poised to reject Trump’s more sweeping claim of “absolute” immunity, how they attempt to devise what official acts are and are not exempt from criminal prosecution will set a new standard for presidential power.
“That is a whole new territory for the court that we’ve never seen before,” Schultz said, “and will make major new law in the United States.”
This artist sketch depicts Michael Dreeben, counselor to Special Counsel Jack Smith as he argues before the Supreme Court in Washington, Apr. 25, 2024.
Dana Verkouteren/AP, FILE
The justices grappled with the unprecedented nature of the case during Thursday’s hearing. Justice Neil Gorsuch said what they decide will be a “rule for the ages.”
While Trump is the first ever president to be criminally charged, the arguments were largely devoid of references to the former president and the specific allegations against him.
The immunity question came before the Supreme Court in the case brought by special counsel Jack Smith, alleging election interference; Trump is facing four felony counts: 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. He pleaded not guilty and denies all wrongdoing.
Puzzlingly, “in some sense, Trump did not seem to be important in this case,” Schultz said.
Instead, the debate largely focused on hypothetical scenarios as justices expressed concern about the consequences of too much or too little protection for future presidents.
“The question quickly became, ‘What’s the scope of official conduct?’ And that’s where, I think, the disagreements among the justices were revealing,” said Gerhardt.
At one point, Justice Elena Kagan pressed Trump attorney John Sauer if a president could order the military to stage a coup and be immune. Sauer said, in their view, a president could.
“The answer that she got was one of the most disturbing I’ve ever heard at the Supreme Court,” said Gerhardt.
Justice Sonia Sotomayor also asked Sauer if a president could order the military or someone else to kill a political rival, which Sauer also said could be considered an official act depending on the circumstances.
“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?” Justice Ketanji Brown Jackson asked.
On the other side, several conservative justices appeared primarily concerned about future bad faith prosecutions against former presidents and whether that would hamper their ability to make the “tough decisions” entailed by their job.
Trump’s attorney also made that case in his opening statement, stating the looming threat of prosecution would “distort the president’s decision-making precisely when bold and fearless action is most needed.”
Justice Samuel Alito even posited if, without immunity, presidents would be incentivized to commit crimes in order to stay in power rather than peacefully retire because of concern they will be prosecuted by a “bitter political opponent” after leaving office.
“Will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?” Alito asked.
One expert described Alito’s line of questioning as stepping through the looking glass into an alternate reality.
“The fact that we haven’t had something like this happen before is consistent with the government’s position that there are institutional norms that have largely held,” said Ray Brescia, a professor at Albany Law School. “So, to upset that delicate balance because, in the words of Justice Alito, we can’t hold the president accountable for trying to subvert democracy in the fear that a future president might try to subvert democracy is just totally Alice in Wonderland.”
The artist sketch depicts former President Donald Trump’s attorney John Sauer speaking before the Supreme Court in Washington, Apr. 25, 2024.
Dana Verkouteren/AP
Though Stanley Brand, a former House general counsel and now an attorney for several former Trump aides, said he considered Alito’s question “timely.”
“What about Joe Biden when he leaves office? Is a Republican Department of Justice going to allege that some of the things he did were illegal? So I don’t think that was a hyperbolic or imaginary concern,” Brand said.
The conservative justices also highlighted controversial conduct by previous presidents, such as Franklin D. Roosevelt’s decision to inter Japanese Americans during World War II and John F. Kennedy’s scheme to undermine Fidel Castro’s rule in Cuba, and whether they could have been subject to prosecution.
“Presidents have to do a lot of things that in retrospect or under the microscope of a lawsuit might not look very good,” said Brand. “You have to look carefully at those, and I think that’s certainly what at least five of the justices expressed concern over.”
The back-and-forth reflected the difficult road ahead for the court in crafting an opinion.
“The path that they went down the other day is a very messy one and I don’t know how they’re going to come up with a clean answer on it,” said Schultz.
A trial for Trump’s election subversion case was originally set for March 4 but is delayed as the immunity question works its way through the courts. The Supreme Court agreeing to hear Trump’s immunity claim and its approach in crafting an opinion, which is not expected until well into June, is largely seen as a win for the former president as it makes it less likely than ever that the trial will proceed before the November election.
In some previous high-profile opinions involving presidential authority, including U.S. v. Nixon (in which the court said a president does not have executive privilege in immunity from subpoenas or other civil court actions) and Clinton v. Jones (which said a president has no immunity from civil damages for acts done before taking office or unrelated to the office) the Supreme Court ruled in unanimous fashion.
But experts said in this case, whatever the court decides, it is likely to be divided.
“It’s clear to me that this will likely be a split decision,” said Schultz. “I saw clear divisions and that’s just not good for the court and it’s not good for America in such an important case like this.”
News
How the federal government is painting immigrants as criminals on social media
Getty Images, Dept. of Homeland Security and The White House via X/Collage by Emily Bogle/NPR
Two days after At Chandee, who goes by Ricky, was arrested by U.S. Immigration and Customs Enforcement, the White House’s X account posted about him, calling the 52-year-old the “WORST OF WORST” and a “CRIMINAL ILLEGAL ALIEN.”
Except that the photo the White House posted was of a different person. The post also incorrectly claimed Chandee had multiple felony convictions — he has one, for second-degree assault in 1993 when he was 18 years old. He shot two people in the legs and served three years in prison.
At “Ricky” Chandee with his wife, Tina Huynh-Chandee.
Via the Chandee family
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Via the Chandee family
Chandee, who came to the U.S. as a child refugee, was ordered to be deported back to his home country, Laos. But Laos had not been accepting all of the people the U.S. wanted it to, so the federal government determined that it was likely infeasible to deport him, his lawyer Linus Chan told NPR. Chandee therefore was granted permission to stay in the U.S. and work so long as he checked in with immigration authorities periodically. He has not missed a check-in in over 30 years and has not had another criminal incident.
People who know Chandee do not see him as “worst of the worst.”
After Chandee completed his prison sentence, he finished school and became an engineering technician. He worked for the City of Minneapolis for 26 years, became a father, and his son grew up to join the military.
In his free time, Chandee enjoys hiking and foraging for mushrooms, Minnesota Public Radio reported.
“We are proud to work alongside At ‘Ricky’ Chandee,” said Tim Sexton, Director of Public Works for the City of Minneapolis in a statement. “I don’t understand why he would be a target for removal now, why he was brutally detained and swiftly flown to Texas, or how his removal benefits our city or country.” Chandee is petitioning for his release in federal court.
Chandee’s case is not unique
Social media accounts from the White House, the Department of Homeland Security and other immigration agencies have spent much of the past year posting about people detained in the administration’s immigration crackdown, typically portraying them as hardened, violent criminals. That’s even as over 70% of the people detained don’t have criminal records according to ICE data.
NPR’s research of cases in Minnesota shows that while many of the people who have been highlighted on social media do have recent, serious criminal records, about a quarter are like Chandee, with decades-old convictions, minor offenses or only pending criminal proceedings. Scholars of immigration, media and criminal law say such a media campaign is unprecedented and paints a distorted picture of immigrants and crime.
A year into President Trump’s second term, the X accounts of DHS and ICE have posted about more than 2,000 people who were targets of mass deportation efforts. Starting late last March, DHS and ICE began posting on X on a near daily basis, often highlighting apprehensions of multiple people a day, an NPR review of government social media posts show.
Among the 2,000 people highlighted by the agencies, NPR identified 130 who were arrested by federal agents in Minnesota and tried to verify the government’s statements about their criminal histories.
In most of the social media posts, the government did not provide the state where the conviction occurred or the person’s age. Public court records do not tend to include photos so definitive identification can be a challenge.
NPR derived its findings from cases where it was able to locate a name and matching criminal history in the Minnesota court and detention system, in nationwide criminal history databases, sex offender databases, and in some cases, federal courts and other state courts.
In 19 of the 130 cases, roughly 1-in-7, public records show the most recent convictions were at least 20 years ago.
Seventeen of the 19 cases with old convictions did include violent crimes like homicide and first-degree sexual assault. ICE provided some of those names to Fox News as key examples of the agency’s accomplishments. “It’s the most disturbing list I’ve ever seen,” said Fox News reporter Bill Melugin on X, highlighting the criminal convictions of each person on the list.
For seven people, their only criminal history involved driving under the influence or disorderly conduct.
ICE agents approach a house before detaining two people in Minneapolis on Jan. 13.
Stephen Maturen/Getty Images
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Stephen Maturen/Getty Images
Six of the 130 Minnesota cases highlighted by the administration involved people with no criminal convictions. The government’s social media posts for those six instead rely upon the charges and arrests as evidence of their criminality, even though arrests don’t always lead to charges and charges can be dismissed.
In yet another case, the government highlighted a criminal charge even while noting it had been dismissed. (The person did have other existing convictions.)
For 37 of the 130 people, NPR was unable to confirm matching criminal history after consulting the databases and news coverage. Some of the names turned up no criminal history at all. The government said these people committed crimes ranging from homicide and assault to drug trafficking, and cited one by name to Fox News. NPR tried to reach out to all 37 people and their families for comment but did not receive a response from any.
In a statement to NPR, DHS’s chief spokesperson Lauren Bis did not dispute NPR’s findings or provide documentation where NPR wasn’t able to confirm matching criminal history.
“The fact that NPR is defending murderers and pedophiles is gross,” Bis wrote. “We hear far too much about criminals and not enough about their victims.” before listing four of the people with old convictions of homicide and sexual assault, underlining the date of deportation order for three of them.
Images designed to trigger emotion
The stream of social media posts with photos of mostly nonwhite people are meant to draw an emotional response, says Leo Chavez, an emeritus professor of anthropology at the University of California, Irvine. They “have been used repeatedly over and over to get people to buy into, really drastic, drastic and draconian actions and policies,” he said.
Chavez, whose most recent book is The Latino Threat: How Alarmist Rhetoric Misrepresents Immigrants, Citizens, and the Nation, recalls how political campaigns in past decades presented images of Latinos — often men — without context. “Just by showing their image, showing brown people, particularly brown men, it’s supposed to be scary.”
The fact that the government’s social media posts come with statements about criminal history as well as photos reinforces that emotional response, Chavez said. DHS has previously acknowledged inaccuracies on their website. But even if the department issues corrections, Chavez said, “the goal was actually achieved, which was to reinforce the criminality and the visualization.”
CNN’s analysis of DHS’s “Arrested: Worst of the Worst” website showed that for hundreds out of about 25,000 people posted on the website, the crimes listed were not violent felonies. Instead, DHS listed people with records that included traffic offenses, marijuana possession or illegal reentry. DHS said the website had a “glitch” that it will fix but also that the people in question “have [committed] additional crimes.”
“I’ve never seen anything like this when it comes to immigration enforcement in the modern era,” said Juliet Stumpf, a professor at Lewis & Clark Law School who studies the intersection of immigration and criminal law. She said the drumbeat of social media posts focused on specific individuals was like “FBI’s most wanted posters” or “like reality TV shows.”
Then-DHS Assistant Secretary for Public Affairs Tricia McLaughlin, flanked by deputy director of U.S. Immigration and Customs Enforcement Madison Sheahan (left), and Acting director of U.S. Immigration and Customs Enforcement Todd Lyons, speaks during a news conference at ICE Headquarters, in Washington, D.C., on May 21, 2025.
Jose Luis Magana/AP
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Jose Luis Magana/AP
Stumpf drew a parallel with an incident from the 1950s when the U.S. government deported two permanent residents suspected of being communists. “The government was kind of proclaiming and celebrating their deportation because getting rid of these communists was making the country safer,” said Stumpf, “Maybe that’s comparable to something like [this].”
An analysis by the Deportation Data Project shows a dramatic increase in arrests of noncitizens without criminal records during President Trump’s current term compared to President Biden’s term.
“If you look at research, immigrants actually tend to commit fewer crimes than even U.S. citizens do. And that’s true of immigrants who have lawful status here and immigrants who don’t,” said Stumpf. “If we have a number of social media posts that are painting immigrants as the worst of the worst…it’s actually really putting out a distorted version of reality about who immigrants actually are.”
Some claims are disputed by other authorities
In some posts, DHS and ICE have also used photos of people and statements about their criminal histories to burnish the federal government’s accomplishments, defend their agents and criticize states like Minnesota. State and local authorities have in turn pushed back, and some of the federal government’s claims about the people it has detained have been met with setbacks in the courts.
DHS accused Minnesota’s Cottonwood County of not honoring detainers, written requests by ICE to hold prisoners in custody for a period of time so ICE can pick them up. In one post, the agency identified a person who was charged with child sexual abuse, writing “This is who sanctuary city politicians and anti-ICE agitators are defending.”
The Cottonwood County sheriff’s office said DHS’s post “misrepresented the truth” in their own post on Facebook. According to their account, the county did honor the detainer but ICE said it was unable to pick up the person before the order expired and the county had to release the suspect.
The Minnesota Department of Corrections wrote in a blog post that dozens of people DHS listed on its “Worst of the Worst” website were not arrested as DHS described, but were transferred to ICE by the state because they were already in state custody. The Corrections Department has since launched a page dedicated to “correct the Department of Homeland Security’s (DHS) repeated false claims.”
The “Worst of the Worst” website has some overlap with the department’s social media posts, but it contains a much larger number of people — over 30,000 nationally. It included a Colombian soccer star who was extradited to the U.S., tried in Texas, convicted of drug trafficking and served time in federal prison. The website incorrectly describes him as being arrested in Wisconsin. The soccer player, Jhon Viáfara Mina, recently finished his sentence early and returned to Colombia, according to Spanish newspaper El Diario Vasco.
In some instances, DHS and ICE wrote about incidents where they ran into conflict when carrying out arrests. In those posts, they named the arrestees and posted their photos. But in one case where the incident went to court, the government’s account of the events shifted. After a federal agent shot Julio C. Sosa-Celis in Minneapolis in January, DHS claimed he was lodging a “violent attack on law enforcement.” Assault charges against Sosa-Celis fell apart in court as new evidence surfaced, and the officers involved were put on leave.
Despite the fact that the charges were dropped, DHS’s post profiling Sosa-Celis remains online.
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Bill Clinton to testify before House committee investigating Epstein links
Former president Bill Clinton is scheduled to give deposition Friday to a congressional committee investigating his links to Jeffrey Epstein, one day after Hillary Clinton testified before the committee and called the proceedings “partisan political theatre” and “an insult to the American people”.
During remarks before the House oversight committee, Hillary Clinton, the former secretary of state, insisted on Thursday that she had never met Epstein.
The former Democratic president, however, flew on Epstein’s private jet several times in the early 2000s but said he never visited his island.
Clinton, who engaged in an extramarital affair while president and has been accused of sexual misconduct by three women, also appears in a photo from the recently released files, in a hot tub with Epstein and a woman whose identity is redacted.
Clinton has denied the sexual misconduct claims and was not charged with any crimes. He also has not been accused of any wrongdoing connected to Epstein.
Epstein visited the White House at least 17 times during the early years of Clinton’s presidency, according to White House visitor records cited in news reports. Clinton said he cut ties with him around 2005, before the disgraced financier, who died from suicide in 2019, pleaded guilty to solicitation of a minor in Florida.
The House committee subpoenaed the Clintons in August. They initially refused to testify but agreed after Republicans threatened to hold them in contempt.
The Clintons asked for their depositions to be held publicly, with the former president stating that to do so behind closed doors would amount to a “kangaroo court”.
“Let’s stop the games + do this the right way: in a public hearing,” Clinton said on X earlier this month.
The committee’s chair, James Comer, did not grant their request, and the proceedings will be conducted behind closed doors with video to be released later.
On Thursday, Hillary Clinton’s proceedings were briefly halted after representative Lauren Boebert leaked an image of Clinton testifying.
During the full day deposition, Clinton said she had no information about Epstein and did not recall ever meeting him.
Before the deposition, Comer said it would be a long interview and that one with Bill Clinton would be “even longer”.
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Read Judge Schiltz’s Order
CASE 0:26-cv-00107-PJS-DLM
Doc. 12-1 Filed 02/26/26
Page 5 of 17
and to file a status update by 11:00 am on January 20. ECF No. 5. Respondents never provided a bond hearing and did not release Petitioner until January 21, ECF Nos. 10, 12, after failing to file an update, ECF No. 9. Further, Respondents released Petitioner subject to conditions despite the Court’s release order not providing for conditions. ECF Nos. 5, 12–13.
Abdi W. v. Trump, et al., Case No. 26-CV-00208 (KMM/SGE)
On January 21, 2026, the Court ordered Respondents, within 3 days, to either (a) complete Petitioner’s inspection and examination and file a notice confirming completion, or (b) release Petitioner immediately in Minnesota and confirm the date, time, and location of release. ECF No. 7. No notice was ever filed. The Court emailed counsel on January 27, 2026, at 10:39 am. No response was provided.
Adriana M.Y.M. v. David Easterwood, et al., Case No. 26-CV-213 (JWB/JFD)
On January 24, 2026, the Court ordered immediate release in Minnesota and ordered Respondents to confirm the time, date, and location of release, or anticipated release, within 48 hours. ECF No. 12. Respondent was not released until January 30, and Respondents never disclosed the time of release, instead describing it as “early this morning.” ECF No. 16.
Estefany J.S. v. Bondi, Case No. 26-CV-216 (JWB/SGE)
On January 13, 2026, at 10:59 am, the Court ordered Respondents to file a letter by 4:00 pm confirming Petitioner’s current location. ECF No. 8. After receiving no response, the Court ordered Respondents, at 5:11 pm, to immediately confirm Petitioner’s location and, by noon on January 14, file a memorandum explaining their failure to comply with the initial order. ECF No. 9. Respondents did not file the memorandum, requiring the Court to issue another order. ECF No. 12. On January 15, the Court ordered immediate release in Minnesota and required Respondents to confirm the time, date, and location of release within 48 hours. ECF No. 18. On January 20, having received no confirmation, the Court ordered Respondents to comply immediately. ECF No. 21. Respondents informed the Court that Petitioner was released in Minnesota on January 17, but did not specify the time. ECF No. 22.
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