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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.”
PORTLAND, Ore. (AP) — Federal immigration officers shot and wounded two people in a vehicle outside a hospital in Portland, Oregon, on Thursday, a day after an officer shot and killed a driver in Minnesota, authorities said.
The Department of Homeland Security described the vehicle’s passenger as “a Venezuelan illegal alien affiliated with the transnational Tren de Aragua prostitution ring” who had been involved in a recent shooting in Portland. When agents identified themselves to the vehicle occupants Thursday afternoon, the driver tried to run them over, the department said in a written statement.
“Fearing for his life and safety, an agent fired a defensive shot,” the statement said. “The driver drove off with the passenger, fleeing the scene.”
There was no immediate independent corroboration of those events or of any gang affiliation of the vehicle’s occupants. During prior shootings involving agents involved in President Donald Trump’s surge of immigration enforcement in U.S. cities, including Wednesday’s shooting by an Immigration and Customs Enforcement officer in Minneapolis, video evidence cast doubt on the administration’s initial descriptions of what prompted the shootings.
READ MORE: What we know so far about the ICE shooting in Minneapolis
According to the the Portland Police bureau, officers initially responded to a report of a shooting near a hospital at about 2:18 p.m.
A few minutes later, police received information that a man who had been shot was asking for help in a residential area a couple of miles away. Officers then responded there and found the two people with apparent gunshot wounds. Officers determined they were injured in the shooting with federal agents, police said.
Their conditions were not immediately known. Council President Elana Pirtle-Guiney said during a Portland city council meeting that Thursday’s shooting took place in the eastern part of the city and that two Portlanders were wounded.
“As far as we know both of these individuals are still alive and we are hoping for more positive updates throughout the afternoon,” she said.
The shooting escalates tensions in an city that has long had a contentious relationship with President Donald Trump, including Trump’s recent, failed effort to deploy National Guard troops in the city.
Portland police secured both the scene of the shooting and the area where the wounded people were found pending investigation.
“We are still in the early stages of this incident,” said Chief Bob Day. “We understand the heightened emotion and tension many are feeling in the wake of the shooting in Minneapolis, but I am asking the community to remain calm as we work to learn more.”
Portland Mayor Keith Wilson and the city council called on U.S. Immigration and Customs Enforcement to end all operations in Oregon’s largest city until a full investigation is completed.
“We stand united as elected officials in saying that we cannot sit by while constitutional protections erode and bloodshed mounts,” a joint statement said. “Portland is not a ‘training ground’ for militarized agents, and the ‘full force’ threatened by the administration has deadly consequences.”
The city officials said “federal militarization undermines effective, community‑based public safety, and it runs counter to the values that define our region. We’ll use every legal and legislative tool available to protect our residents’ civil and human rights.”
They urged residents to show up with “calm and purpose during this difficult time.”
“We respond with clarity, unity, and a commitment to justice,” the statement said. “We must stand together to protect Portland.”
U.S. Sen. Jeff Merkley, an Oregon Democrat, urged any protesters to remain peaceful.
“Trump wants to generate riots,” he said in a post on the X social media platform. “Don’t take the bait.”
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new video loaded: What Trump Told Us About the ICE Shooting
By Zolan Kanno-Youngs, Alexandra Ostasiewicz, Nikolay Nikolov and Coleman Lowndes
January 8, 2026
Good morning. You’re reading the Up First newsletter. Subscribe here to get it delivered to your inbox, and listen to the Up First podcast for all the news you need to start your day.
Today’s top stories
An Immigration and Customs Enforcement officer shot and killed 37-year-old Renee Nicole Good, a Minneapolis woman, yesterday. Multiple observers captured the shooting on video, and community members demanded accountability. Minnesota law enforcement officials and the FBI are investigating the fatal shooting, which the Trump administration says was an act of self-defense. Meanwhile, the mayor has accused the officer of reckless use of power and demanded that ICE get out of Minneapolis.
People demonstrate during a vigil at the site where a woman was shot and killed by an immigration officer earlier in the day in Minneapolis, Minnesota, on Jan. 7, 2026. An immigration officer in Minneapolis shot dead a woman on Wednesday, triggering outrage from local leaders even as President Trump claimed the officer acted in self-defense. Minneapolis Mayor Jacob Frey deemed the government’s allegation that the woman was attacking federal agents “bullshit,” and called on Immigration and Customs Enforcement (ICE) officers conducting a second day of mass raids to leave Minneapolis.
Kerem Yucel/AFP via Getty Images
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Kerem Yucel/AFP via Getty Images
- 🎧 Caitlin Callenson recorded the shooting and says officers gave Good multiple conflicting instructions while she was in her vehicle. Callenson says Good was already unresponsive when officers pulled her from the car. Homeland Security Secretary Kristi Noem claims the officer was struck by the vehicle and acted in self-defense. In the video NPR reviewed, the officer doesn’t seem to be hit and was seen walking after he fired the shots, NPR’s Meg Anderson tells Up First. Anderson says it has been mostly peaceful in Minneapolis, but there is a lot of anger and tension because protesters want ICE out of the city.
U.S. forces yesterday seized a Russian-flagged oil tanker in the north Atlantic between Iceland and Britain after a two-week chase. The tanker was originally headed to Venezuela, but it changed course to avoid the U.S. ships. This action comes as the Trump administration begins releasing new information about its plans for Venezuela’s oil industry.
- 🎧 It has been a dramatic week for U.S. operations in Venezuela, NPR’s Greg Myre says, prompting critics to ask if a real plan for the road ahead exists. Secretary of State Marco Rubio responded that the U.S. does have a strategy to stabilize Venezuela, and much of it seems to involve oil. Rubio said the U.S. would take control of up to 50 million barrels of oil from the country. Myre says the Trump administration appears to have a multipronged strategy that involves taking over the country’s oil, selling it on the world market and pressuring U.S. oil companies to enter Venezuela.
Health Secretary Robert F. Kennedy Jr. released new dietary guidelines for Americans yesterday that focus on promoting whole foods, proteins and healthy fats. The guidance, which he says aims to “revolutionize our food culture,” comes with a new food pyramid, which replaces the current MyPlate symbol.
- 🎧 “I’m very disappointed in the new pyramid,” Christopher Gardner, a nutrition expert who was on the Dietary Guidelines Advisory Committee, tells NPR’s Allison Aubrey. Gardner says the new food structure, which features red meat and saturated fats at the top, contradicts decades of evidence and research. Poor eating habits and the standard American diet are widely considered to cause chronic disease. Aubrey says the new guidelines alone won’t change people’s eating habits, but they will be highly influential. This guidance will shape the offerings in school meals and on military bases, and determine what’s allowed in federal nutrition programs.
Special series
Trump has tried to bury the truth of what happened on Jan. 6, 2021. NPR built a visual archive of the attack on the Capitol, showing exactly what happened through the lenses of the people who were there. “Chapter 4: The investigation” shows how federal investigators found the rioters and built the largest criminal case in U.S. history.
Political leaders, including Trump, called for rioters to face justice for their actions on Jan. 6. This request came because so few people were arrested during the attack. The extremists who led the riot remained free, and some threatened further violence. The government launched the largest federal investigation in American history, resulting in the arrest of over 1,500 individuals from all 50 states. The most serious cases were made by prosecutors against leaders of the Proud Boys and Oath Keepers. For their roles in planning the attack against the U.S., some extremists were found guilty of seditious conspiracy. Take a look at the Jan. 6 prosecutions by the numbers, including the highest sentence received.
To learn more, explore NPR’s database of federal criminal cases from Jan. 6. You can also see more of NPR’s reporting on the topic.
Deep dive
U.S. President Donald Trump speaks during a news conference in the Roosevelt Room of the White House in Washington, DC.
Andrew Harnik/Getty Images
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Andrew Harnik/Getty Images
U.S. President Donald Trump speaks during a news conference in the Roosevelt Room of the White House in Washington, DC.
Andrew Harnik/Getty Images
Trump takes 325 milligrams of daily aspirin, which is four times the recommended 81 milligrams of low-dose aspirin used for cardiovascular disease prevention. The president revealed this detail in an interview with The Wall Street Journal published last week. The U.S. Preventive Services Task Force recommends that anyone over 60 not start a daily dose of aspirin to prevent cardiovascular disease if they don’t already have an underlying problem. The group said it’s reasonable to stop preventive aspirin in people already taking it around age 75 years. Trump is 79. This is what you should know about aspirin and cardiac health:
- 💊 Doctors often prescribe the low dose of aspirin because there’s no benefit to taking a higher dose, according to a large study published in 2021.
- 💊 Some people, including adults who have undergone heart bypass surgery and those who have had a heart attack, should take the advised dose of the drug for their entire life.
- 💊 While safer than other blood thinners, the drug — even at low doses — raises the risk of bleeding in the stomach and brain. But these adverse events are unlikely to cause death.
3 things to know before you go
When an ant pupa has a deadly, incurable infection, it sends out a signal that tells worker ants to unpack it from its cocoon and disinfect it, a process that results in its death.
Christopher D. Pull/ISTA
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Christopher D. Pull/ISTA
- Young, terminally ill ants will send out an altruistic “kill me” signal to worker ants, according to a study in the journal Nature Communications. With this strategy, the sick ants sacrifice themselves for the good of their colony.
- In this week’s Far-Flung Postcards series, you can spot a real, lone California sequoia tree in the Parc des Buttes Chaumont in Paris. Napoleon III transformed the park from a former landfill into one of the French capital’s greenest escapes.
- The ACLU and several authors have sued Utah over its “sensitive materials” book law, which has now banned 22 books in K-12 schools. Among the books on the ban list are The Perks of Being a Wallflower and Wicked: The Life and Times of the Wicked Witch of the West. (via KUER)
This newsletter was edited by Suzanne Nuyen.
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