Conservative Justices Take Argument Over Trump’s Immunity in Unexpected Direction

Before the Supreme Court heard arguments on Thursday on former President Donald J. Trump’s claim that he is immune from prosecution, his stance was widely seen as a brazen and cynical bid to delay his trial. The practical question in the case, it was thought, was not whether the court would rule against him but whether it would act quickly enough to allow the trial to go forward before the 2024 election.

Instead, members of the court’s conservative majority treated Mr. Trump’s assertion that he could not face charges that he tried to subvert the 2020 election as a weighty and difficult question. They did so, said Pamela Karlan, a law professor at Stanford, by averting their eyes from Mr. Trump’s conduct.

“What struck me most about the case was the relentless efforts by several of the justices on the conservative side not to focus on, consider or even acknowledge the facts of the actual case in front of them,” she said.

They said as much. “I’m not discussing the particular facts of this case,” Justice Samuel A. Alito Jr. said, instead positing an alternate reality in which a grant of immunity “is required for the functioning of a stable democratic society, which is something that we all want.”

Immunity is needed, he said, to make sure the incumbent president has reason to “leave office peacefully” after losing an election.

Justice Alito explained: “If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”