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'Surprising' and 'disturbing': Legal experts react to Supreme Court arguments on Trump's immunity claim

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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.”

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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.”

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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.

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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.

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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.”

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PHOTO: The artist sketch depicts former President Donald Trump's attorney John Sauer speaking before the Supreme Court in Washington, Apr. 25, 2024.

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.”

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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.

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“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.”

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Democrat donors warn Joe Biden that stance on Gaza could threaten re-election

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Democrat donors warn Joe Biden that stance on Gaza could threaten re-election

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A top donor to US President Joe Biden has called on him to halt arms shipments to Israel, warning that the “catastrophe” of the Israel-Hamas war has imperilled his re-election bid.

George Krupp, who expects to raise $2.5mn at a fundraiser he is co-hosting in Boston on Tuesday, urged Biden to take the issue “off the table” by suspending arms shipments to Israel. 

“I think this Israel thing has been a catastrophe for him,” Krupp told the Financial Times. “I absolutely think that Biden needs to suspend arms shipments both for humanitarian and political reasons.”

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The president’s stance on the war has divided Democrats across religious and generational lines. He has strongly supported Israel’s right to defend itself in response to the October 7 Hamas attacks.

On Monday he described the International Criminal Court’s application for arrest warrants against Israeli leaders as “outrageous”, adding: “We will always stand with Israel against threats to its security.”

But there has been growing criticism within the party over his failure to rein in the government of Prime Minister Benjamin Netanyahu as the death toll in its war against Hamas has soared to more than 34,000, according to Palestinian officials.

The president this month paused a shipment of bombs to Israel over Netanyahu’s refusal to rule out an invasion of the Gazan city of Rafah, but last week he approved a $1bn package of military aid to the country. In April the US vetoed of a Security Council resolution that would have granted a Palestinian state full membership of the UN.

There are fears that young voters opposed to Israel’s military offensive in Gaza could desert Biden over the issue, while pro-Israeli Democrats could turn to Donald Trump.

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More than 100,000 Democrats — or 13 per cent of the total vote — in Michigan, which has a large Arab-American community, voted “uncommitted” in the March 15 Democratic presidential primary over Biden’s stance.

Krupp, who signed a letter in March along with dozens of other donors and activists expressing their concern about “the crisis in Gaza”, told the FT that Biden’s “equivocation” over the war is “hurting” his re-election campaign. He added that the president needs a clear “doctrine” that “gets Israel out of Gaza and lays out a path to a two state solution”.

Krupp’s comments came after Democratic mega donor Haim Saban criticised Biden’s decision to halt the heavy weapons shipment to Israel. 

“Bad, Bad, Bad, decision, on all levels, Pls reconsider,” Saban wrote in an email to White House senior officials last week. “There are more Jewish voters, who care about Israel, than Muslim voters that care about Hamas,” he added in comments that were criticised by the Council on American-Islamic Relations and other civil rights groups. A representative for Saban declined to comment.

Democrats hope the party will unite to prevent a Trump victory. They point out that the former president called for a ban on Muslim immigrants in 2015. Biden has also been far more successful at raising funds, attracting $66mn more than Trump by the end of March.

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“Donald Trump’s actions against the Muslim community as president are abhorrent,” New York Governor Kathy Hochul told the FT. “I support the president, how he’s handling this . . . [Israel needs] to eradicate Hamas but we also need to make sure the loss of innocent lives is mitigated.”

Patricia Gordon, a board member of the liberal, pro-Israel group J Street, who has hosted a fundraiser with first lady Jill Biden, said she also supported Biden’s approach to Israel and was confident that he would prevail.

“The president will always defend Israel, but recently took the difficult step to prevent the misuse of American resources in an offensive way,” Gordon said.

But with opinion polls favouring Trump, Krupp and many Democrats fear that the Gaza war could tip the balance against the president.

“I think if the election were held today, I think he’d lose,” said Krupp.

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Additional reporting by Jude Webber in Dublin

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Red Lobster files for bankruptcy after missteps including all-you-can-eat shrimp

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Red Lobster files for bankruptcy after missteps including all-you-can-eat shrimp

This Red Lobster in Maryland was among dozens of locations that closed abruptly ahead of the restaurant’s bankruptcy filing.

Alina Selyukh/NPR


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Alina Selyukh/NPR


This Red Lobster in Maryland was among dozens of locations that closed abruptly ahead of the restaurant’s bankruptcy filing.

Alina Selyukh/NPR

Red Lobster, America’s largest seafood chain known for its shrimp and Cheddar Bay biscuits, has filed for bankruptcy.

Its seafood restaurants are in hot water after a series of bad choices by a parade of executives, including an ill-fated promotion for all-you-can-eat-shrimp starting at $20.

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Almost 580 locations in the U.S. and Canada are expected to stay open through the process, employing about 36,000 workers. Last week, dozens of other Red Lobster locations closed abruptly. Their entire contents — including freezers, ovens, booths and lobster tanks — have already been auctioned off.

The fire sale was a precursor to a long-expected bankruptcy filing, in which Red Lobster plans to sell “substantially all of its assets.” Since March, the chain has been run by CEO Jonathan Tibus, known as a corporate-restructuring expert.

Red Lobster’s troubles include “a difficult macroeconomic environment, a bloated and underperforming restaurant footprint, failed or ill-advised strategic initiatives, and increased competition within the restaurant industry,” Tibus wrote in court documents.

Brand crisis meets ownership crises

Red Lobster, now the largest seafood chain, did not get cooked just recently. It has struggled for a decade as diners have pulled away from large casual-dining chains.

In that world, Red Lobster was one of the originals. It started in 1968 and exploded through the 1980s and 1990s, hosting generations of Americans for celebrations and dates — with many cracking their very first lobsters at its tables.

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In recent years, marked by rising inflation, Red Lobster has been losing out on both ends: to fresher, nicer, more local restaurants; and to the rising tide of cheaper, quicker spots, like Shake Shack or Surfside Taco.

And during this cultural shift, Red Lobster’s finances have floundered.

A private equity firm bought the chain ten years ago from Darden Restaurants, which owns rivals Olive Garden and LongHorn Steakhouse. The firm, Golden Gate Capital, funded the deal partly by selling Red Lobster’s real estate.

That meant the chain had to start paying rent. That’s now a major financial factor in Red Lobster’s bankruptcy filing, which asks the court to reject 108 leases, letting the company abandon those locations.

Since 2020, Red Lobster has been run by its largest shareholder: Thai Union Group, a seafood supplier also behind the Chicken of the Sea brand. And the bankruptcy filing lays much blame on Thai Union and ex-CEO Paul Kenny.

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After massive financial losses during the pandemic, followed by increases in the costs of food and wages, Thai Union pursued extensive cost-cutting at Red Lobster. The chain was run by a conveyor belt of executives; it had no CEO for a year.

The bankruptcy filing alleges that Thai Union interfered with daily operations and even pushed out two rival suppliers of breaded shrimp, securing a costlier exclusive deal for itself.

All-you-can-eat shrimp fiasco

Then came a reboot idea that turned into a jumbo disaster: Ultimate Endless Shrimp. Red Lobster took its classic promotion and made it permanent, with prices originally starting at $20.

Thai Union later cited this as the main cause of its $11 million loss that quarter. The goal was to get more people in the door, which did happen. But many diners then stayed for hours, picking at plate after plate of shrimp dishes and — critically — buying little else.

Thai Union CEO Thiraphong Chansiri later said the ordeal left him scarred.

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“Other people stop eating beef, I’m going to stop eating lobster,” he told investors.

In January, Thai Union washed its hands of Red Lobster. The owners said they would essentially abandon their stake in the chain, setting the restaurant company on a path to bankruptcy.

In this week’s Chapter 11 filing, Red Lobster says it has a prearranged bid, known as a “stalking horse” bid, from its lenders to buy out the chain, unless it receives a higher rival bid.

NPR’s Barclay Walsh contributed to this report.

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Condolences pour in from allies and neighbours as Iran mourns Ebrahim Raisi

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Condolences pour in from allies and neighbours as Iran mourns Ebrahim Raisi

Iran’s allies and neighbours have sent condolences to Tehran following the death of President Ebrahim Raisi, with the leaders of China, Russia, Venezuela and Turkey among the first to respond.

Reaction in western capitals was more muted, underscoring the Islamic republic’s divisive position in global politics, but France and the EU offered their condolences.

Iranian authorities had confirmed on Monday that Raisi and Iran’s foreign minister Hossein Amirabdollahian were killed in a helicopter crash on the previous day in a remote region in Iran’s Arasbaran Forest, near the border with Azerbaijan.

Russian President Vladimir Putin was swift to express his country’s sorrow. He praised Raisi’s “invaluable personal contribution to growing friendly relations between our countries”, adding that his Iranian counterpart had been crucial in forging a “strategic partnership” between Moscow and Tehran.

The two countries have backed the regime of President Bashar al-Assad in Syria’s more than decade-long civil war. They also have deepening military ties, with Iran providing Russia with drones and munitions for its war in Ukraine.

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Assad on Monday mourned the “painful incident and the great loss that resulted from it”.

China’s President Xi Jinping had sent a message expressing “deep sorrow on behalf of the Chinese government and people”, Beijing’s foreign ministry said. Raisi had made “significant contributions to maintaining Iran’s security and stability” and his death “deprived the Chinese people of a good friend”, Xi said.

“China will continue to support the Iranian government and people in maintaining independence, stability and development,” the statement added.

Along with Russia and China, Iran is an important ally for Venezuela as Caracas struggles to rebuild the country’s oil industry amid US sanctions. President Nicolás Maduro said he and his wife Cilia were “overwhelmed by great sadness at having to bid farewell to an exemplary person, an extraordinary world leader”.

Condolences also flooded in from across the so-called axis of resistance, a network of Iran-backed regional proxies that includes Hizbollah, Hamas, Yemen’s Houthis and the Shia militias in Iraq. 

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Hizbollah said Raisi “was to us a big brother, a strong supporter, a staunch defender of our causes . . . and a protector of the resistance movements”. It also mourned the death of Amirabdollahian, calling him a “dear brother”.

Hamas conveyed its “deepest condolences and solidarity” and mourned “the immense loss”, praising the deceased Iranian officials for their steadfast support of the Palestinian cause and resistance against Israel.

Arab states, which have a history of fraught ties with Iran, also expressed sympathy. Saudi Crown Prince Mohammed bin Salman and Sheikh Mohammed bin Zayed, president of the United Arab Emirates, were among regional powers that offered their condolences.

Saudi Arabia and the UAE have sought to de-escalate tensions with Iran in recent years.

The strong signals of support from Iran’s allies and neighbours contrasted with the subdued reaction from western capitals. Iran has endured hostile relations with the US and other western nations since the 1979 Islamic revolution. Tensions with the west have heightened over Tehran’s military support for Putin since Russia’s invasion of Ukraine and since the war between Israel and Hamas erupted after the Palestinian militant group’s October 7 attack last year.

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Iran considers Israel and the US to be its leading foes, and last month launched its first-ever direct attack on the Jewish state in response to an Israeli strike on an Iranian consulate in Damascus. Iran is also the target of swingeing and long-standing economic sanctions by the US and EU, among others related to its nuclear programme.

Western capitals and Israel will be considering the consequences for Iran’s future leadership, as Raisi was widely considered a possible successor to the country’s 85-year-old supreme leader, Ayatollah Ali Khamenei.

Israeli Prime Minister Benjamin Netanyahu’s government did not immediately give a public response to news of Raisi’s death, but opposition leader Yair Lapid said: “Iran will enter a period of instability — the strategic relations between [the US and Israel] are more important than ever.”

The White House and US state department also did not immediately issue an official response. Chuck Schumer, US Senate majority leader, said only that he had been told by US intelligence agencies that there was no evidence of foul play, NBC reported.

European Council president Charles Michel said the EU “expresses its sincere condolences for the death of President Raisi and foreign minister Amirabdollahian”.

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The French foreign ministry said France “expressed its condolences” to Iran and the families of the victims.

In Italy, Prime Minister Giorgia Meloni said: “We are in constant contact with our European and G7 allies because we are talking about an incident that is part of a particularly complex regional framework.”

She added: “I hope that the future Iranian leadership wants to commit itself to the stabilisation and pacification of the region.”

Elsewhere in the Middle East, Lebanon declared three days of mourning after Raisi’s death.

Turkey, which like the UAE has recently sought rapprochement with Tehran, also offered its condolences. “As a colleague who personally witnessed his efforts for the peace of the Iranian people and our region during his time in office, I remember [Raisi] with respect and gratitude,” said Turkish President Recep Tayyip Erdoğan.

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Reporting by Adam Samson, Maxine Kelly, Chloe Cornish, Neri Zilber, Max Seddon, Amy Kazmin, Raya Jalabi, Michael Stott and Joe Leahy

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