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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.”
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Trump Says Israel and Lebanon Agree to Extend Cease-Fire by Three Weeks
President Trump announced a three-week extension of a cease-fire between Israel and Lebanon that had been set to expire in a few days, after hosting a meeting between Israeli and Lebanese diplomats at the White House on Thursday.
Hezbollah, the Iranian-backed militant group that has been attacking Israel from southern Lebanon, did not have representatives at the meeting and did not immediately comment on the announcement. The prime minister of Israel and the president of Lebanon also did not comment.
A successful peace agreement would hinge upon Hezbollah halting attacks, which Lebanon’s government has little power to enforce because it does not control the militia. Lebanon’s military has mostly stayed out of the fighting and is not at war with Israel.
The cease-fire, which was scheduled to end on April 26, would last until May 17 if it takes effect as Mr. Trump described it. Before the cease-fire was brokered last week, nearly 2,300 people were killed in Lebanon and 13 in Israel. Since then, the number of Israeli airstrikes and Hezbollah attacks have been dramatically reduced, though the two sides have continued exchanging fire.
The Lebanese Ambassador to the United States, Nada Hamadeh, credited Mr. Trump for extending the cease-fire, saying that “with your help and support, we can make Lebanon great again.” Mr. Trump replied, “I like that phrase, it’s a good phrase.”
Asked about the potential of a lasting peace agreement between Israel and Lebanon, Mr. Trump said that “I think there’s a great chance. They are friends about the same things and they are enemies on the same things.”
But Lebanon and Israel have periodically been at war since Israel’s founding in 1948. Israel has invaded Lebanon for the fifth time since 1978, incursions that have destabilized the country and the delicate balance of power between Muslim, Christian and Druze communities.
In the hours before the president’s announcement on social media, Israel and Hezbollah were trading attacks in southern Lebanon, testing the existing cease-fire.
Mr. Trump said the meeting at the White House had been attended by high-ranking U.S. officials, including Vice President JD Vance, Secretary of State Marco Rubio and the U.S. ambassadors to Israel and Lebanon.
Earlier on Thursday, an Israeli strike near the southern Lebanese city of Nabatieh killed three people, according to Lebanon’s health ministry. Hezbollah claimed three separate attacks on Israeli troops who are occupying southern Lebanon, though none were wounded or killed.
Hezbollah set off the latest round of fighting last month by attacking Israel soon after the start of the U.S.-Israeli bombing campaign in Iran. Israel responded to Hezbollah’s attacks by launching airstrikes across Lebanon and widening a ground invasion of the country’s south.
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U.S. soldier charged with suspected Polymarket insider trading over Maduro raid
Smoke rises from Port of La Guaira in Venezuela on Jan. 3, 2026 after U.S. forces seized the country’s president, Nicolas Maduro and his wife.
Jesus Vargas/Getty Images
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Jesus Vargas/Getty Images
Federal prosecutors on Thursday unsealed an indictment against a U.S. Army soldier, accusing him of using his insider knowledge of the clandestine military operation to capture Venezuelan leader Nicolás Maduro in January to reap more than $400,000 in profits on the popular prediction market site Polymarket.
The Justice Department says Gannon Ken Van Dyke, 38, who was stationed at Fort Bragg, in North Carolina, was part of the team that planned and carried out the predawn raid in Caracas earlier this year that resulted in the apprehension of Maduro.
The Department of Justice and the Commodity Futures Trading Commission filed the actions against Van Dyke, the first time U.S. officials have leveled criminal charges against someone over prediction market wagers.
According to the indictment, Van Dyke now faces counts of wire fraud, commodities fraud, misusing non-public government information and other charges.
Trading under numerous usernames including “Burdensome-Mix,” Van Dyke allegedly traded about $32,000 on the arrest of Maduro, resulting in profits exceeding $400,000.
“Prediction markets are not a haven for using misappropriated confidential or classified information for personal gain,” said U.S. Attorney Jay Clayton for the Southern District of New York. “Those entrusted to safeguard our nation’s secrets have a duty to protect them and our armed service members, and not to use that information for personal financial gain.”
Van Dyke’s defense lawyer is not yet publicly known. Polymarket did not return a request for comment.
The charges against Van Dyke come at a sensitive time for the prediction market industry, which has been growing exponentially, despite calls in Washington and among state leaders for the sites to be reined in.
Van Dyke is the first to be charged in the U.S. for suspected Polymarket insider trading, but Israeli authorities in February arrested several people and charged two on suspicion of using classified information to place bets about military operations in Iran on Polymarket.
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Senate Adopts GOP Budget, Laying the Groundwork to Fund ICE and Reopen DHS
The Senate early Thursday morning adopted a Republican budget blueprint that would pave the way for a $70 billion increase for immigration enforcement and the eventual reopening of the Department of Homeland Security.
Republicans pushed through the plan on a nearly party-line vote of 50 to 48. It came after an overnight marathon of rapid-fire votes, known as a vote-a-rama, in which the G.O.P. beat back a series of Democratic proposals aimed at addressing the high cost of health care, housing, food and energy. The debate put the two parties’ dueling messages on vivid display six months before the midterm elections.
Republicans, who are using the budget plan to lay the groundwork to eventually push through a filibuster-proof bill providing a multiyear funding stream for President Trump’s immigration crackdown, used the all-night session to highlight their hard-line stance on border security, seeking to portray Democrats as unwilling to safeguard the country.
Democrats tried and failed to add a series of changes aimed at addressing cost-of-living issues, seizing the opportunity to hammer Republicans as out of touch with and unwilling to act on the concerns of everyday Americans.
Here’s what to know about the budget plan and the nocturnal ritual senators engaged in before adopting it.
Republicans are seeking a way around a filibuster on D.H.S. funding.
The budget blueprint is a crucial piece of Republicans’ plan to fund the Department of Homeland Security and end a shutdown that has lasted for more than two months. After Democrats refused to fund immigration enforcement without new restrictions on agents’ tactics and conduct, the G.O.P. struck a deal with them to pass a spending bill that would fund everything but ICE and the Border Patrol. Republicans said they would fund those agencies through a special budget bill that Democrats could not block.
“We can fix this with Republican votes, and we will,” said Senator Lindsey Graham, Republican of South Carolina and the Budget Committee chairman. “Every Democrat has opposed money for the Border Patrol and ICE at a time of great peril.”
In resorting to a new budget blueprint, Republicans laid the groundwork to deny Democrats a chance to stop the immigration enforcement funding. But they also submitted themselves to a vote-a-rama, in which any senator can propose unlimited changes to such a measure before it is adopted.
The budget measure now goes to the House, which must adopt it before lawmakers in both chambers can draft the legislation funding immigration enforcement. That bill will provide yet another opportunity for a vote-a-rama even closer to the November election.
Democrats used the moment to hammer Republicans on affordability.
Democrats took to the floor to criticize Republicans for supercharging funding for federal immigration enforcement rather than moving legislation that would address Americans’ concerns over affordability.
“This is what Republicans are fighting for,” said Senator Chuck Schumer, Democrat of New York and the Democratic leader. “To maintain two unchecked rogue agencies that are dreaded in all corners of this country instead of reducing your health care costs, your housing costs, your grocery costs, your gas costs.”
Democrats offered a host of amendments along those lines, all of which were defeated by Republicans — and that was the point. The proposals were meant to put the G.O.P. in a tough political spot, showcasing their opposition to helping Americans afford high living costs. Fewer than a handful of G.O.P. senators crossed party lines to support them.
Republicans blocked Democrats’ proposals to address high living costs.
The G.O.P. thwarted an effort by Mr. Schumer to require that the budget measure lower out-of-pocket health care costs for Americans. Two Republicans who are up for re-election this year, Senators Susan Collins of Maine and Dan Sullivan of Alaska, voted with Democrats, but the proposal was still defeated.
Republicans also squelched a move by Senator Ben Ray Lujan, Democrat of New Mexico, to create a fund that would lower grocery costs and reverse cuts to food aid programs that Republicans enacted last year. Ms. Collins and Mr. Sullivan again joined Democrats.
Also defeated by the G.O.P.: a proposal by Senator John Hickenlooper, Democrat of Colorado, to address rising consumer prices brought on by Mr. Trump’s tariffs and the war in Iran; one by Senator Edward J. Markey, Democrat of Massachusetts, to require the budget measure to address rising electricity prices, and another by Mr. Markey to create a fund to bring down housing costs.
Senator Jon Ossoff, a Democrat who is up for re-election in Georgia, also sought to add language requiring the budget plan to address health insurance companies denying or delaying access to care, but that, too was blocked by Republicans.
Republicans sought to amplify their hard-line messages on immigration, voter I.D. and transgender care.
While Republicans had fewer proposals for changes to their own budget plan, they also sought to offer measures that would underscore their aggressive stance on immigration enforcement and dare Democrats to vote against them.
Mr. Graham offered an amendment to allocate funds toward a deficit-neutral reserve fund relating to the apprehension and deportation of adult immigrants convicted of rape, murder, or sexual abuse of a minor after illegally entering the United States. It passed unanimously.
Senator Josh Hawley, Republican of Missouri, sought to bar Medicaid payments to Planned Parenthood, which provides abortion and other services, and criticized the organization for providing transgender care to minors. Senator John Kennedy, Republican of Louisiana, also attempted to tack on the G.O.P. voter identification bill, known as the SAVE America Act. Both proposals were blocked when Democrats, joined by a few Republicans, voted to strike them as unrelated to the budget plan.
The Republicans who crossed party lines to oppose their own party’s proposals for new voting requirements were Ms. Collins along with Senators Mitch McConnell of Kentucky, Lisa Murkowski of Alaska and Thom Tillis of North Carolina.
Ms. Collins and Ms. Murkowski also opposed the effort to block payments to Planned Parenthood.
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