Tough questions as Supreme Court debates Trump's immunity claim

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New York hush-money trial

Adult film actress Stormy Daniels was paid $130,000 (£103,000) to stay quiet after allegedly having sex with Trump - he denies they had sex.

Trump is accused of falsifying his business records by saying the payments were for legal fees - he denies any wrongdoing.

This trial started last week, and you can follow our live coverage of it here.

Capitol riot & 2020 election

Trump is accused of illegally conspiring to overturn his 2020 election defeat to Joe Biden.

Federal prosecutors allege he pressured officials to reverse the results, knowingly spread lies about election fraud and sought to exploit the Capitol riot on 6 January 2021 to delay the certification of Biden's victory and stay in power.

This trial has been postponed while the Supreme Court considers whether he can claim presidential immunity or not.

Georgia 2020 Election

This is another case that could be dropped, depending on the Supreme Court’s decision on immunity.

Trump and some 18 other defendants are accused of criminally conspiring to overturn his very narrow defeat in the state of Georgia in the 2020 election.

Classified documents

And this trial could also be dropped if the Supreme Court rules in Trump’s favour.

He is accused of mishandling classified documents by taking them from the White House to his Mar-a-Lago residence after he left office.

Here’s a full guide to Donald Trump’s four criminal cases.

Today you heard from legal heavyweights at the top of their game - here's a little more on the two men representing Donald Trump and the US government in this hearing.

Dean John Sauer is a St Louis-based trial lawyer who joined Trump’s legal team late last year.

In 2020 he was part of the last-ditch effort to reverse Trump’s loss by filing a motion asking the Supreme Court to invalidate votes in key swing states.

After the election, he used his role to file multiple lawsuits attempting to block Biden from Democratic agenda.

After leaving office last January, Sauer returned to his private firm - the James Otis Law Group - which is named after a US Revolutionary War-era lawyer famous for challenging British colonial abuses.

Michael Dreeben, who joined the prosecution in January, has argued more than 100 cases before the Supreme Court - many of them on behalf of the federal government.

He is considered one of the most experienced experts on the Supreme Court, and a master of US criminal law.

Dreeben spent over three decades working in the US solicitor general’s office before moving into private practice in 2020.

He also previously worked on special counsel Robert Mueller’s probe of links between Trump’s campaign and Russia.

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While this has all been going on at the Supreme Court in Washington DC, Donald Trump has been in a courthouse in New York, where his criminal trial into hush-money payments made to adult film start Stormy Daniels is ongoing.

The trial has been hearing more from David Pecker, former publisher of the National Enquirer tabloid magazine, who has been answering questions about his controversial "catch-and-kill" scheme to buy and bury negatives stories about Trump in the lead up to the 2016 election.

You can follow our live coverage of that trial here.

Collection of the Supreme Court of the United StatesCopyright: Collection of the Supreme Court of the United States

Three of the nine justices currently on the Supreme Court were appointed by Donald Trump in his first presidential term.

This fact has raised some concerns among his critics that these justices might show special favour for the man who put them in their position of power.

That hasn’t been much of an issue in past cases involving the former president, however, and indeed we saw them grill both sides today.

While the three Trump justices did rule in favour of him in a recent lawsuit, involving his right to appear on the Colorado Republican primary ballot – a unanimous court decision - they have frequently ruled against him.

Most notably, the three judges – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – denied Trump’s effort to challenge the results of the 2020 presidential election. Gorsuch and Kavanaugh also were on the bench to rule that the president had to comply with congressional subpoenas for Trump’s financial records

Supreme Court justices have lifetime appointments – something America’s founders hoped would put them above the churn of American politics. That may not always be the case, but it does give them an extra layer of protection from political reprisal.

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“I am the law and order candidate”, Donald Trump said in 2016, during his first campaign for the White House.

Now, a legal expert tells the BBC that it’s curious to see how that attitude has changed.

“He venerated eager prosecutors and tough judges,” Lauren Mattioli, assistant professor of political science at Boston University says.

Now that Trump is personally embroiled in the criminal justice system, he “bemoans systemic unfairness”, she adds.

Mattioli says the brief for Trump vs US “repeatedly raises the possibility that Trump’s political enemies could deploy the nation’s criminal justice apparatus against him.

Quote Message: Never, though, does Trump raise the bigger problem: a justice system that can be easily manipulated to enact revenge on one’s political enemies is not just at all.

Never, though, does Trump raise the bigger problem: a justice system that can be easily manipulated to enact revenge on one’s political enemies is not just at all.

Mattioli says that Trump could, instead, use his considerable influence to propose changes to make the justice system “more fair for everyone, not just himself.”

Originally scheduled for only one hour, today's session ultimately lasted nearly three. Both sides were peppered with plenty of tough questions.

Here's a recap:

• Donald Trump's lawyer Dean John Sauer spoke first, re-airing the claim that criminally charging his client had "no foothold in tradition" and would distort the presidency as we know it by opening up future executives to "blackmail and extortion from [their] political rivals"
• The justices sought to determine whether Trump's alleged acts of election interference were "official acts" or "private acts", with Justice Amy Coney Barrett pushing Sauer to concede that some of the activity in question had been cases of Trump acting for personal gain
• Sauer claimed, as an example, that Barack Obama could be charged over drone strikes if a president did not have immunity - but Justice Sonia Sotomayor said these were "reasonable" measures to protect against terrorism

• Justice Brett Kavanaugh appeared most sympathetic to the Trump argument, saying he was concerned about setting a precedent for "the future" and less focused on "the here and now of this case"
• In its turn, the justice department said Trump's argument was for "permanent criminal immunity" - which Michael Dreeben said would afford him the unprecedented power of "a king who could do no wrong"
• Justice Ketanji Brown Jackson was the jurist most receptive to this notion, worrying aloud that not holding Trump accountable could turn the Oval Office into a "seat of criminal activity"
• Justice Neil Gorsuch and colleagues, both conservative and liberal, noted the court was tasked with "writing a rule for the ages"
• Justice Samuel Alito, in particular, was sceptical of Dreeben's arguments, with a lengthy exchange in which he asked whether the criminal indictment of a former (and potentially future) president had left the office in "a special, peculiarly precarious position"

The justices have now retired to consider their opinions, which we may not get for at least several weeks.

Can a former president be prosecuted for alleged criminal activity while in office?

It's a question that has never been answered before - and its timing could decide whether Donald Trump's election interference trial in Washington DC even begins before the November election.

Polls show that a conviction for Trump before the election might well sway critical undecided voters in crucial swing states and mean that President Biden will be re-elected, says Carl Tobias, a law professor at the University of Richmond.

The justices may need to send the case back to the district judge to be resolved, which would probably mean that a potential trial may not start, much less finish, before the November election, he adds.

"Some Justices may believe that the modern presidency is so onerous and the existential threats to the US are so severe that presidents need the flexibility that immunity affords to discharge this awesome responsibility.

Quote Message: In short, when the justices decide, which may be in late June, and how they decide could have essential implications for the political election of the president in 2024.

In short, when the justices decide, which may be in late June, and how they decide could have essential implications for the political election of the president in 2024.

The justices heard today’s arguments on the final day of the court’s term, so it seems unlikely that they will announce their decision until late in their formal session - at the end of June.

That’s when the Supreme Court tends to announce its most important – and most controversial – rulings. And at least up until this point, the court hasn’t seemed to be in any particular hurry to break from tradition to speed the process along.

According to University of Pennsylvania law professor Kermit Roosevelt, the only way the court might announce a decision earlier is if the justices are unanimous in their ruling. A divided court takes more time to work through majority opinions and allow dissenting justices to write their responses.

If the court issues its ruling in late June, and the justices find Trump isn’t immune from prosecution, the earliest his 6 January trial could start would be the end of August - just three months out from November’s presidential election - and trial judge Tanya Chutkan has said she would give Trump’s legal team several months to prepare, so the trial may not start until after the election.

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The Supreme Court’s decision on whether Trump has sweeping political immunity will have “major consequences in both the short and long term, regardless of how it turns out,” Lauren Mattioli, assistant professor of political science at Boston University, tells the BBC:

• If the court rules in favour of Trump, not only will the relevant criminal cases against him be dropped, but it would also “discourage future cases from being filed against any president suspected of criminal wrongdoing,” she says.
• If the court rules that Trump doesn’t have immunity, the cases against him can continue, and it “could potentially embolden the use of criminal prosecution against former presidents in the future,” Mattioli explains.

The final decision is important in terms of how the Supreme Court views presidents within the system of separated powers, she adds.

“Ruling in favour of total presidential immunity would mean the judiciary giving up its own power to check the executive.

Quote Message: The justices have to weigh the political fortune of Donald Trump against a loss of power within their own branch of government.

The justices have to weigh the political fortune of Donald Trump against a loss of power within their own branch of government.

In the court's final question, Justice Jackson asked whether President Joe Biden's justice department might have acted in the "self-interest" of protecting the executive branch from prosecutorial abuse by a returning President Trump.

She notes that Biden could be "the former guy" after November 2024.

Biden, who appointed Jackson, often refers to his predecessor as "the former guy" in public remarks.

"Can you comment on the concern about having a president unbounded while in office, a president who does not ultimately need to follow the law because there is no political accountability in terms of impeachment?" she asked Michael Dreeben.

She added that this seems "a concern that is at least equal" to the ones raised about curbing the actions of future presidents.

Dreeben replied: "It would be a sea change to announce a sweeping rule of immunity that no president has had or has needed."

At least a few justices – perhaps a majority – seem unconvinced by the arguments of both Donald Trump’s lawyer and the ones made by the lawyer for the prosecution team.

That could lead to a sharply fractured court – or it could open the door for a middle-ground decision that grants former presidents some immunity for official actions, while allowing prosecution for alleged crimes that fall outside this realm.

If the court’s final ruling moves in this direction, the key will be whether the justices allow Trump’s trial to move forward, leaving the final determination up to a jury, or require the courts to hash out the specifics of Trump’s case and possibility immunity before a trial begins.

If it’s the former, there’s still a chance that Trump’s trial could take place before November’s presidential election.

If it’s the latter, the case could continue to be bogged down in legal wrangling and appeals for months, if not years, to come.

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The hearing for Trump's immunity case has finished.

That was a jam packed morning (into the afternoon) at the Supreme Court. Stay with us as we remind you of the key moments and analysis.

Justice Ketanji Brown Jackson is speaking now. As the most recently-appointed justice she will be the last one to ask questions today - meaning the end is near.

Jackson, a Biden nominee, seems to want to get to the core of the case.

"What's confusing to me about this case is that we're not being asked to avoid the constitutional question," she says. "In fact, the question of whether or not the President can be held liable consistent with the Constitution or have immunity is the question that's been presented to us."

At the top of his remarks, Sauer said that, if Donald Trump and future presidents could be prosecuted for alleged criminal activity, then Barack Obama could hypothetically be indicted too - for killing civilians and US citizens abroad with drone strikes.

Justice Kavanaugh raised this issue again a short while ago, asking what position the government would take on the matter.

Michael Dreeben says that existing federal statutes would have given Obama a "public authority exception" for his actions, leaving "no risk of prosecution for that course of activity".

Trump himself has brought this up in interviews, albeit with a different argument.

By the logic of his immunity argument, Trump told Fox News in January that Obama had "meant well" with his drone strikes.

Justice Kavanaugh has expressed concern today that opening former presidents up to criminal prosecutions may open the floodgates for independent counsels to pursue charges "hampering" future presidents.

Kavanaugh, a Trump appointee, was once part of an independent counsel himself, assisting special counsel Ken Starr in the investigation into then-President Bill Clinton into his relationship with White House intern Monica Lewinsky.

You can read more about Brett Kavanaugh here.

This oral argument was scheduled on the court docket for one hour. Most court watchers knew it would go longer, though.

But it is worth noting that, while Sauer faced exactly one hour of questioning, Dreeben, who is arguing on behalf of the justice department, has now been grilled by the nine jurists for well over an hour.

Justice Alito had plenty of questions for him, but his colleagues have also shared a list of concerns.

We may be headed for an intriguing split decision in this case.

Justice Neil Gorsuch, the first of three Supreme Court justices to be nominated by Donald Trump, speaks next.

He seems concerned with trying to analyse a former president's motives, particularly because - as he says - anything a first term president does may be construed as seeking a second term.

"Every first-term president can be seen in the view, by critics at least, as a desire to stay in power," Gorsuch says.

Dreeben suggests that he does not see criminal charges being brought in this type of scenario.

"We’re not talking about applying criminal law to someone who announces a new programme," he says.

Dreeben is asked by Justice Kagan about his own distinction between official and private acts, a point Sauer, Trump's lawyer, was grilled on earlier.

He pushes back against Sauer's claim that organising a fraudulent slate of alternative electors for the 2020 election was an official act.

"That's campaign conduct," he retorts.

"In many ways, we think that aggravates the nature of this offence."

Explaining why, Dreeben says: "Seeking as a candidate to oust the lawful winner of the election and have oneself certified with private actors is a private scheme to achieve a private end."