Former President Donald Trump’s lawyers will try to convince the Supreme Court today that he should be immune from criminal prosecution for his efforts to overturn the 2020 election.
It’s an unprecedented and historic argument — a former president can’t be prosecuted for official acts taken while in office.
And it’s one many congressional Republicans are not eager to weigh in on.
→ “That’s a question the court will decide.” — Sen. Ted Cruz (R-Texas).
→ “I’m going to rely on the court.” — Senate GOP leadership contender John Cornyn (R-Texas)
→ “I could see arguments for and against the immunity discussion.” — Sen. Thom Tillis (R-N.C.)
→ “This is a complicated question.” — Sen. John Kennedy (R-La.)
It’s rare for Republicans not to offer Trump full support given his demands for loyalty, especially on something this significant. And congressional Republicans aren’t always so shy about offering their opinions to the justices.
As we reported earlier this month, the reticence to back a brief supporting Trump’s immunity claim stands in contrast to the GOP rallying around the former president’s effort to stop Colorado from keeping off the 2024 presidential ballot.
Forty-one GOP senators and 136 House members signed onto the Colorado case brief, including the leadership in both chambers. In the immunity case, Sen. Roger Marshall (R-Kan.) submitted a brief that was signed by no other senator and only 26 House members.
So, with lawmakers back in town the past three weeks, we followed up on our reporting. We wanted to hear specifically from GOP lawmakers on what they thought of Trump’s immunity claim and why they didn’t sign Marshall’s brief but got on board with the Colorado one.
Many Republicans drew a sharp distinction between the two cases. They argued Colorado’s actions were overtly political while the immunity case is trickier legal terrain.
“It seemed like it was so extraordinarily tainted by political considerations,” Cornyn said of the Colorado case.
For good measure, Republicans also were quick to bash the prosecutions of Trump, even if they didn’t weigh in on the constitutional merits of his immunity argument. Here’s House Majority Leader Steve Scalise:
Some Republicans engaged more on the question before the high court today.
Sen. Josh Hawley (R-Mo.) said the justices need to draw a line somewhere. “It’s gotta be true that presidents for official acts enjoy some degree of immunity, otherwise I don’t know how you govern,” Hawley said.
And Sen. Lindsey Graham (R-S.C.) said he wouldn’t be surprised if the justices sent the case back to the lower court and asked it to make a factual determination “of what was challenging the results as a sitting president versus as a candidate.”
“I think presidents who are acting within the scope of their job should have immunity, the question is what is your job and when does it end, when doesn’t it end,” Graham said.
— Dave Clarke
