If the Supreme Court’s hearing on Thursday about former President Donald J. Trump’s claims of executive immunity is any indication of how the court might ultimately rule, the justices could end up helping Mr. Trump in two ways.
The justices signaled that their ruling, when it comes, could lead to some allegations being stripped from the federal indictment charging Mr. Trump with plotting to overturn the 2020 election.
And because the process of determining which accusations to keep and which to throw away could take several months, it would all but kill the chance of Mr. Trump standing trial on charges that he tried to subvert the last election before voters get to decide whether to choose him again in this one.
Near the end of the arguments, however, Justice Amy Coney Barrett abruptly floated a way that prosecutors could maneuver around that time-consuming morass. If the special counsel, Jack Smith, wanted to move more quickly, she said, and avoid the ordeal of lower courts reviewing his indictment line by line, deciding what should stay and what should go, he could always do the job himself.
That suggestion, which Mr. Smith’s team seemed to grudgingly accept as a possibility, hinted at the ways in which the hearing on Thursday focused not only on lofty issues of presidential power and constitutional law, but also touched on more practical elements of how Mr. Trump’s criminal case could proceed after the court’s decision.
However the justices rule on the question of granting presidents a degree of immunity from criminal prosecution, the result will have a direct and immediate effect on the election interference case, one of the most important prosecutions Mr. Trump faces.
When Mr. Smith filed his indictment in Washington last summer, it placed Mr. Trump at the center of an intersecting web of criminal conspiracies, all of them devised to reverse the results of the election in several key swing states.
The charges detailed dozens of individual steps that Mr. Trump took to achieve his goals. They described, among other things, how he sought to enlist the Justice Department in validating his claims that the results of the election had been marred by fraud. And they set out evidence of his pressuring state lawmakers to draft false slates of electors saying he had won in states he actually lost.
Executive immunity was the first defense that Mr. Trump raised against these charges, and when his lawyers initially advanced the claim six months ago, the approach they took was audacious.
Flipping the script of Mr. Smith’s indictment, the lawyers argued that Mr. Trump was completely shielded from the prosecution because he had been acting in a protected role as president to defend the “integrity” of the election, not, as prosecutors claimed, in his private role as a candidate seeking to undermine it.
While the Supreme Court did not appear to buy these sweeping claims altogether, the court’s conservative justices did seem interested in the idea that presidents should enjoy some form of criminal immunity. Over and over, they circled around the notion that presidents were probably protected from prosecution for official actions central to their jobs, but could still face charges for conduct that was private.
If the court issues a ruling adopting that standard, some of the specific allegations that Mr. Smith has made might have to be tossed out. While the case would still survive and make its way toward trial, prosecutors might not be able to tell the jury every chapter of the sprawling story they have crafted.
An early glimpse of the process of winnowing the charges by separating official acts from private ones emerged on Thursday during some back-and-forth discussions between two of the justices and D. John Sauer, the lawyer who argued on behalf of Mr. Trump.
Speaking to Justice Elena Kagan, for example, Mr. Sauer said that Mr. Trump had been acting in his official role as president when he sought to install a loyal Justice Department official, Jeffrey Clark, as the acting attorney general in his waning days in office. Mr. Sauer portrayed that move as the sort of personnel decision that fell under the purview of the president, even though prosecutors say Mr. Trump sought to elevate Mr. Clark for a very different reason: because he had promised to advance claims of election fraud.
In a similar fashion, Mr. Sauer argued that Mr. Trump had simply been exercising his presidential duties when he asked Rusty Bowers, the speaker of the Arizona House, to call the State Legislature into session in late 2020 to hold a hearing on election fraud.
“We have taken the position that that is official,” Mr. Sauer said, adding that the request to Mr. Bowers had been made “to defend the integrity of a federal election.”
But if Mr. Sauer sought to define some actions in Mr. Trump’s indictment as official — and thus off limits to the prosecution’s case — he acknowledged that others appeared to be private, suggesting they would remain fair game for Mr. Smith’s team.
When Justice Barrett noted that Mr. Trump turned to “a private attorney” — an apparent reference to Rudolph W. Giuliani — “to spearhead his challenges to the election results,” Mr. Sauer conceded that he was not acting in his capacity as president.
“That sounds private to me,” Mr. Sauer said.
Justice Barrett got a similar response when she pressed Mr. Sauer on Mr. Trump’s involvement in the now-famous scheme to create fake slates of electors. When Justice Barrett reminded Mr. Sauer that the indictment claimed that Mr. Trump was joined in the scheme by personal lawyers and an outside political consultant, Mr. Sauer said, “That’s private.”
But these admissions could be read as a tactical retreat meant to secure a larger strategic victory. Indeed, it seemed at times as if Mr. Trump’s legal team was giving up its maximalist position — that immunity extended to all of the indictment — in order to invite the court to explore in detail the more minute distinctions between official acts and private ones.
If the justices do that, they could order a federal appeals court or the trial court in Washington to undertake the job. And given that the task would most likely require extended arguments about dozens of accusations — and possible appeals of those decisions — it could easily take months and push the trial into 2025.
While the conservative justices in particular did not appear to be in any hurry to move the case toward trial, Justice Barrett at least acknowledged the tensions over timing. At one point, she told Michael R. Dreeben, who argued on behalf of Mr. Smith, that “the special counsel has expressed some concern for speed and wanting to move forward.”
It was then that she weighed in with her surprising plan to speed the case up.
Her suggestion?
The special counsel could, in essence, edit his own indictment and “proceed based on the private conduct and drop the official conduct.”
