(WASHINGTON) -- The Biden administration has determined that three military battalions with the Israel Defense Forces committed "gross human rights violations" against Palestinian civilians in the West Bank but will remain eligible for U.S. military aid regardless because of steps Israel says it's taking to address the problem, ABC News has learned.
The administration assessment, which has not yet been made public and could change if Israel doesn't take specific steps, was outlined in an undated letter by Secretary of State Antony Blinken to House Speaker Mike Johnson obtained by ABC News.
The U.S. determination "will not delay the delivery of any U.S. assistance and Israel will be able to receive the full amount appropriated by Congress," Blinken wrote.
The allegations involving each of the units occurred before the Oct. 7 war began when Hamas attacked Israel. None of the cases involves operations against Hamas in Gaza or against Iran or its proxies.
Still, the decision is likely to roil critics of the Biden administration who say not enough is being done to hold Israel accountable for military operations in Gaza that have pushed the civilian population toward famine.
Issa Amro, a prominent Palestinian human rights activist who lives in the West Bank city of Hebron, said he was "disappointed" but not surprised by the U.S. decision.
The U.S. "is not doing concrete actions to reduce violence, to a minimum and to make peace between the Palestinians and the Israelis," he told ABC News.
Administration officials counter that its process in reviewing human rights violations has been fair and that Israel was not given preferential treatment. They also note that it's not uncommon for the U.S. to work with countries through a process known as "remediation" that can encourage foreign countries to weed out bad actors within their militaries.
"Each of these situations is different, and we have to do our best to collect the facts and follow the facts and that's what we're doing," Blinken told reporters Monday at a press briefing when pressed for details on the U.S. review.
Under a federal measure known as the Leahy Law, the U.S. military is required to withhold weapons, training and other military assistance to any foreign military unit that commits gross human rights abuses.
The law, however, allows an exception for countries that have taken steps "to bring to justice the responsible members of the unit," according to Blinken's letter.
According to a person familiar with the process, who spoke on condition of anonymity to discuss a decision that hasn't been made public, the U.S. and Israel also have a special agreement that requires the U.S. to consult with the Israelis before making any decisions related to the Foreign Assistance Act.
The person said those consultations with Israel remain ongoing and that if a military unit is found not to take "satisfactory remediation or accountability measures," U.S. aid would then be restricted.
Overall, five units -- three military and two civilian -- were under review for human rights violations. According to Blinken's letter, four have undergone proper remediation steps.
Israel also has "acknowledged" that another IDF battalion had engaged in "conduct inconsistent" with Israel's rules. As a result, the unit was transferred from the West Bank to the Golan Heights in 2022, Blinken noted.
That description matches the Netzah Yehuda battalion, established for ultra-orthodox Jewish men.
"The Israeli government has presented new information regarding the status of the unit and we will engage on identifying a path to effective remediation for this unit," Blinken wrote.
"But this will have no impact on our support for Israel's ability to defend itself against Hamas, Iran, Hezbollah, or other threats," he assured Johnson, a staunch supporter of Israel who helped push a foreign aid bill through Congress this week.
Blinken noted that no other units were found in violation of the Leahy Law.
The secretary spoke with top Israeli officials this week following reports by Axios and ProPublica that the U.S. planned to "sanction" IDF units.
Israeli Prime Minister Benjamin Netanyahu said he would fight the Biden administration on such a move, calling it a "moral low."
In this Nov. 15, 2022, file photo, former President Donald Trump leaves the stage after speaking during an event at his Mar-a-Lago home, in Palm Beach, Fla. (Joe Raedle/Getty Images)
(WASHINGTON) -- Prosecutors in former President Donald Trump’s classified documents case said in court filings that a former Trump administration official told investigators that Trump, as president, had "no standing declassification order" regarding documents in his possession.
The filings, which are part of special counsel Jack Smith's response to a Trump legal team motion to compel discovery in the case, include notes from prosecutors' interview with a former administration official who the special counsel says "refused recording of the interview." The interview subject stated that having the interview recorded was a "far bigger risk for him in the Trump world," according to FBI notes on the interview, which were included in the filing.
The FBI notes, known as a 302, are heavily redacted, obscuring the name of the former official, who is only identified as Per[son] 16, with several pages blacked out in their entirety.
The former official, who had "free access to [Trump] and the Oval Office, and was in the Oval Office daily," told prosecutors there was "no standing declassification order," and that they had "never heard of that while in the White House."
After the FBI raided Trump's Mar-a-Lago estate in 2022 and retrieved more than 100 additional documents with classified markings, Trump's team issued a statement to one media outlet claiming that, while still in office, Trump had issued "a standing order that documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them."
Trump was subsequently indicted last June on 37 criminal counts related to his handling of classified materials after leaving the White House, after prosecutors said he repeatedly refused to return hundreds of documents containing classified information ranging from U.S. nuclear secrets to the nation's defense capabilities, and took steps to thwart the government's efforts to get the documents back. He pleaded not guilty to all charges.
While the new court filings do not change the narrative established in the special counsel's indictments, they offer a glimpse into the kinds of evidence Smith is prepared to bring to trial, including detailed testimony from Trump White House insiders.
In late October or early November of 2021, nearly a year before a search warrant for Mar-a-Lago was issued, the former official appealed to Trump to return government records, according to the filings.
"Whatever you have, give it all back," the filings quote the former official saying they told Trump.
The former official described an effort get multiple people close to Trump, including his children, to tell him, "There are issues with the boxes. They belong to the government, talk to your dad about giving them back. It's not worth the aggravation."
By late November of 2021, the warnings grew more stark, the former official told investigators. The former official describes telling Trump, who was dressed in golf attire, "Whatever you have, give everything back. Don't give them a reason to indict you, because they will."
Trump responded with a "weird 'you're the man' type of response," the former official told investigators.
A separate exhibit filed with the government's response details an FBI interview about the National Archives and Records Administration's efforts to locate missing government records, including letters from President Barack Obama and North Korean dictator Kim Jong Un.
That interview, with another former Trump administration official whose name is redacted but is identified as "Per[son] 40," describes how Trump was "fond of certain documents," including the North Korean letters.
That official took detailed notes about records management during the Trump administration, and those notes describe another Trump White House official, only identified as Per[son] 14, stating that the former president did not "trust the system."
During a conversation in which Person 40 brought up that boxes of documents Trump kept in his residence need to go NARA, Person 14 responded, "NARA and what army?"
Person 40's notes, according to the new filings, describe Trump's "habits" of handling documents in the White House, "which included destroying, tearing them up and/or throwing them away," and indicated that those habits did not change when they became known publicly after being published in a Politico story.
(WASHINGTON) -- The Supreme Court on Thursday heard historic arguments on whether former President Donald Trump can be criminally prosecuted related to his efforts to overturn his 2020 election loss.
He denies all wrongdoing and insists he should have "absolute immunity" for any "official acts" while in office.
His name and the specifics of the case were rarely mentioned -- just a handful of times -- as the justices, over the course of nearly three hours, grappled with questions about what their ruling will mean for the future of the presidency and how that should be reconciled with the principle of the rule of law.
The former president, who lamented not attending arguments in Washington as he is on trial in New York in a separate criminal trial, in which he has pleaded not guilty, was represented by attorney John Sauer.
Michael Dreeben argued on behalf of the government and special counsel Jack Smith. Smith last year brought four felony counts against Trump, including conspiracy to defraud the U.S. and obstruction of an official proceeding, for his attempts to remain in power after losing to now-President Joe Biden.
Here are five key takeaways from the arguments:
Hypotheticals like coup, assassinations dominate
The question of presidential immunity sparked an array of "what if" scenarios from the justices as well as multiple citations to past presidential choices ranging from what was done by Franklin D. Roosevelt, Richard Nixon, George W. Bush, Barack Obama and others.
Justice Sonia Sotomayor, minutes into the arguments, raised the question of whether criminal immunity would extend to a president ordering the military, or someone else, to assassinate a political rival if they believed this person was "corrupt"
Sauer affirmed that such a decision could "well be an official act" excluded from prosecution, telling Sotomayor, "It would depend on the hypothetical."
At another point, Justice Elena Kagan asked the Trump attorney: "How about if a president orders the military to stage a coup?"
Sauer said that, likewise, under her hypothetical, that could "well be" official behavior of the president though "it would depend on the circumstances."
"It certainly sounds very bad," he conceded, "and that's why the framers [of the Constitution] have -- and that's why the framers have a whole series of structural checks that have successfully, for the last 234 years, prevented that very kind of extreme hypothetical, and that is the wisdom of the framers."
He maintained that the only time a president could be criminally prosecuted was if they were impeached by the House and convicted by the Senate for the same crime.
Even then, Sauer later suggested, there would have to be a criminal statute against coups expressly referencing the president.
Some justices also raised questions about whether presidents could pardon themselves, and both attorneys said it's an issue that's never been addressed before and has no precedent.
Private vs. official acts and concessions from Trump's attorney
Central to Thursday's arguments was what would qualify as an "official" act of the presidency that may be protected by a finding of immunity versus what constitutes private conduct.
In one instance, Justice Amy Coney Barrett asked a series of probing questions of Sauer about conduct alleged in Smith's indictment and whether Trump's attorneys considered them private or official acts.
Sauer conceded some acts in the indictment were unprotected, including his allegations that Trump turned to a private attorney who knowingly spread false claims of election fraud to spearhead his challenges to 2020 election results and that he conspired with others to implement a plan to obstruct the certification of President Joe Biden's win.
Justice Kagan pressed Dreeben about what the government would consider official and unofficial, or private, conduct. Dreeben said core executive functions, like pardon power, vetoing legislation, foreign recognition and more have absolute protection.
But organizing a false slate of electors, a key allegation in Smith's indictment, is "campaign conduct" and not official.
"That's not any part of a president's job," Dreeben said.
Conservatives worried about bad faith prosecutions
Several conservative-leaning justices expressed concerns about the potential for bad faith prosecutions against a president.
Chief Justice John Roberts raised concern about the lower court ruling, specifically that its position could put too much faith in the justice system to act non-politically and out of good faith.
DOJ's Dreeben responded that there are "layered safeguards" that protect against malicious prosecution.
"We are not endorsing a regime that we think would expose former presidents to criminal prosecution in bad faith, for political animus, without adequate evidence, or politically driven prosecution that would violate the Constitution," Dreeben said.
Justice Brett Kavanaugh suggested concerns about a vicious cycle of malicious prosecutions hampering presidents for years to come. He also raised the question of the "risk" of a "creative prosecutor" using "vague" statutes -- including obstruction and conspiracy, which Trump faces -- against a commander in chief.
Justice Samuel Alito also appeared skeptical of Smith's use of at least some of the conspiracy and fraud-related charges, asking if the conspiracy statute wasn't "peculiarly open-ended."
In response, Dreeben said: "It is designed to protect the functions of the United States government, and it is difficult to think of a more critical function than the certification of who won the election."
Will the court send the case back?
Several conservative justices also raised the question of whether to remand the case back down to the U.S. Court of Appeals for the District Court of Columbia (which rejected the immunity claim in sweeping terms) to conduct further proceedings.
Remanding the case would -- perhaps significantly -- delay Trump's Jan. 6 trial even past the November election. The trial was set for March 4 but is on pause until the immunity question is resolved in the judicial system.
Justice Neil Gorsuch was the first to suggest further proceedings could be required to determine what is an official act and what is private and thus more open to prosecution.
"What concerns me is, as you know, the court of appeals did not get into a focused consideration of what acts we're talking about or what documents we're talking about," Chief Justice John Roberts said.
Sotomayor pressed back on the notion of remanding the case, arguing that even in the instances of acts that could be considered official, they came in the context of Trump pushing forward in his "private" intent of remaining in office despite losing the election.
'A rule for the ages'
Justices emphasized throughout arguments that they were not only considering the immediate case involving Trump, but what these questions mean for the future of the country.
"We're writing a rule for the ages," Gorsuch said.
Justice Samuel Alito noted whatever that the high court decides "is going to apply to all future presidents."
The criminal immunity question is a novel one, as Trump is the first president (current or former) to be criminally charged.
The closest a former commander-in-chief came was President Richard Nixon, who resigned in 1974 rather than be impeached and was later pardoned by his successor -- which was mentioned by the justices during Thursday's hearing.
The justices grappled with that unprecedented nature and what it would mean for a president to have too much or too little protection for any actions taken while in office, including perpetually controversial decisions like those amid war or when addressing national security.
"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 said.
But Sauer indicated that such problems hadn't occurred so far.
"I respectfully disagree with that because the regime you described is the regime we operated under for 234 years," he said.
(WASHINGTON) -- As the NFL draft kicks off this week, President Joe Biden's campaign is launching a new digital ad on Thursday taking aim at former President Donald Trump's past comments disparaging football and the league, the Biden campaign told ABC News.
The short, 20-second ad, on YouTube, features a montage of Trump previously attacking football, calling it "boring as hell" and saying "nobody cares about football," juxtaposed with Biden greeting and touting his relationship with football players.
The ad -- the latest skirmish in the early part of Biden's general election fight against Trump, which is expected to be close -- ends with the message: "Make the right pick in November."
The ad plays into the longstanding feud between the NFL and Trump, who had once owned rival United States Football League team the New Jersey Generals in the 1980s and reportedly tried to buy the Buffalo Bills in 2014 but was unsuccessful after investors doubted the NFL would allow it.
Trump has repeated attacks on football and more specifically the NFL over the years, including during his presidency when he railed against NFL players who kneeled during the national anthem as part of a protest against systematic bias against people of color.
However, Trump has had close ties to some notable figures in football, including quarterback Tom Brady and New England Patriots owner Robert Kraft.
He has also frequented tailgates and college football games on the campaign trail, including attending the famed University of Iowa Hawkeyes versus Iowa State University Cyclones game and the Palmetto Bowl between the South Carolina Gamecocks and the Clemson University Tigers last year as the Republican Party's Iowa caucuses and the South Carolina primary were heating up.
According to the Biden campaign, the new ad will target football fans across battleground states including in Green Bay, Wisconsin; in Detroit; in Phoenix; and in Pittsburgh. The ad will also air in Atlanta, Charlotte, North Carolina, and Las Vegas.
Second gentleman Douglas Emhoff, who is attending the NFL draft in Michigan on Thursday night, claimed in a statement that while the rest of the country will be celebrating football, Trump will be "sitting on the sidelines trying to make tonight about himself, rage-posting on his failing social media platform and spewing his extreme, divisive, and historically unpopular agenda."
The first clip used in the ad shows Trump at a rally in Henderson, Nevada, on the first Sunday of the 2020 NFL season, where the then-president urged the audience to sit down and get comfortable before stating they had plenty of time as "football is boring as hell."
He added: "Used to be people would say, 'Hey, could you keep it away from, from a football game?' Now they say, 'Could you possibly do it during a football game?'"
In the second clip, from a 2020 rally in Nevada's capital, Carson City, Trump said, "Nobody cares about football. They ought to get smart because they can't win this war. We want people that love our country."
Trump has repeatedly disparaged NFL players kneeling over the years, claiming they've gotten too "soft" and calling for them to be suspended.
"The NFL players are at it again - taking a knee when they should be standing proudly for the National Anthem," Trump wrote on X, then called Twitter, in 2018. "Numerous players, from different teams, wanted to show their "outrage" at something that most of them are unable to define. They make a fortune doing what they love."
(NEW YORK) -- Speaker Mike Johnson, claiming that Hamas supports the pro-Palestinian, anti-Israel protests at Columbia University and other of the U.S. colleges, on Thursday threatened congressional intervention, including pulling federal funding from the institutions.
"The things that have happened at the hands of Hamas are horrific, and yet these protestors are out there waving flags for the very people who committed those crimes. This is not who we are in America," Johnson, the top House Republican, said in a post on X on Thursday morning. ABC News has not documented any cases of protesters waving Hamas flags, as Johnson suggested.
Student protests at Columbia and other schools have primarily denounced Israeli military action in Gaza and expressed support for Palestinian civilians, rather than expressing support for Hamas. School administrators and officials have said the protests on their campuses have been largely peaceful.
Citing a statement Hamas issued Wednesday, Johnson said Hamas "backed" the protests at Columbia specifically, which began April 17. Johnson added in a separate post on X that "taxpayer dollars should not be going to institutions that allow this chaos."
In the Hamas statement, its spokesperson Izzat Al-Risheq blamed President Joe Biden for "violating the individual rights and the right to expression through arresting university students and faculty members for their rejection of the genocide to which our Palestinian people are being subjected in the Gaza Strip at the hands of the neo-Nazi Zionists."
"Today's students are the leaders of the future, and their suppression today means an expensive electoral bill that the Biden administration will pay sooner or later," Al-Risheq wrote in the statement.
In response to Hamas' statement, White House Deputy Press Secretary Andrew Bates told ABC News that "Hamas perpetrated the deadliest massacre of the Jewish people since the Holocaust, which makes them the least credible voice that exists on this subject."
"Hamas' disapproval, after their acts of 'unadulterated evil' -- which they've pledged to repeat 'again and again' -- is a testament to President Biden's moral clarity. President Biden has stood against Antisemitism his entire life. And he will never stop," Bates said.
Johnson's comments on Thursday came a day after he visited Columbia University, where he met with Jewish students and joined his New York House Republican colleagues in calling for the school's president, Minouche Shafik, to resign if she can't bring order to the protests. In a speech, during which boos and shouts from protesters often overpowered the speaker's words, Johnson considered the need to send the National Guard to intervene.
In an interview with ABC News' Linsey Davis on Wednesday, Johnson cited the statement and said Hamas sees Columbia's protesters as the future leaders of America.
"We should hope not," Johnson said. "Hamas is a terrorist organization."
Johnson said federal funding should be revoked if universities cannot maintain control of the protests and prevent violence.
"If [school administrators] can't get control of this, we will take the funding away from these universities. The Congress has a responsibility to do that, the power of the purse, and we will use it, and we will hold these administrators accountable," Johnson told Davis.
While Johnson mentioned violence on campus, the New York Police Department said earlier this week that there are no credible threats to any particular group or individual as a result of the protests at Columbia University. The department said it had not received any reports of physical harm toward any students.
Last week, more than 100 pro-Palestinian protesters were arrested at Columbia as they called for the divestment of college and university funds from Israeli military operations. Other participants in Columbia's ongoing, encampment-style protests were suspended and removed from campus.
The demonstrations followed Shafik's testimony to the House Committee on Education and the Workforce about antisemitism on college campuses, during which she said she has taken actions to combat antisemitism on campus since a terror attack on Oct. 7 sparked Israel's war with Hamas.
New York GOP Rep. Elise Stefanik called for Shafik's resignation days later, writing in a post on X that Columbia "failed to enforce their own campus rules and protect Jewish students on campus."
While there have been some instances of violence and offensive or antisemitic rhetoric during the protests, school administrators, New York police and protesters themselves have largely blamed that activity on individuals not affiliated with the schools.
"... Tensions have been exploited and amplified by individuals who are not affiliated with Columbia who have come to campus to pursue their own agendas," Shafik said earlier this week.
Columbia spokesman Ben Chang said the student encampment on campus has raised serious safety concerns. He added that Columbia will not tolerate harassment and discriminatory behavior, and the university will investigate to see if any student protestors violated community rules.
8 years after the National Enquirer's deal with Donald Trump, the iconic tabloid is limping badly In response to some student concerns about safety amid on-campus tension, some universities have responded by opting for remote or hybrid learning options.
ABC News' Michelle Stoddart and Kiara Alfonseca contributed to this report.
(WASHINGTON) -- As various Supreme Court justices themselves acknowledged during a high-stakes hearing on Thursday, they could potentially reshape the contours of presidential power when they rule on whether Donald Trump is entitled to some amount of immunity from prosecution for alleged acts in the White House as he pushed to overturn his 2020 election loss.
Over nearly three hours on Thursday, with demonstrators gathered outside, the justices grappled with arguments from both Trump's attorney and an attorney for special counsel Jack Smith, who has charged Trump in connection with his effort to stay in office after losing to now-President Joe Biden.
Trump denies all wrongdoing and disputes some of what he is accused of doing while he maintains that other actions were part of his presidential authority.
The oral arguments included several notable and important exchanges. Here are 10 of the key moments.
A decision is expected from the court by the end of June.
Could a president assassinate his rival?
Justices Sonia Sotomayor and then Samuel Alito touched on one of the most provocative hypotheticals raised in Trump's battle for "absolute immunity" from charges over what he claims were official acts: Could a commander in chief order SEAL Team 6 to assassinate a political rival and not face prosecution?
Sotomayor raised it first while questioning Trump attorney John Sauer. She pointed back to an earlier exchange Sauer had in a lower court proceeding.
"I'm going to give you a chance to say ...if you stay by it: The president decides that his rival is a corrupt person and he orders the military, or orders someone, to assassinate him -- is that within his official acts for which he can get immunity?" she asked.
"It would depend on the hypothetical," Sauer answered. "We could see that could well be an official act."
Sotomayor pressed on that point: "Immunity says even if you did it for personal gain, we won't hold you responsible -- what do you -- how could that be?"
Sauer pointed back to a U.S. Supreme Court ruling from the '80s that held a president is immune from civil liability related to this official acts, which Sauer said is a basis for their own argument now about criminal liability.
"That's an extremely strong doctrine in this court's case law in cases like Fitzgerald," he said.
Later, Alito referred back to a president's hypothetical use of the military as elite assassins as he and Sotomayor split on whether "plausibleness" was a useful standard for scrutiny versus "reasonable."
"One might argue that it isn't plausible to order SEAL Team 6 -- and I don't want to slander SEAL Team 6 because they're -- no, seriously -- they're honorable, they're honorable officers and they are bound by the uniform code of military justice not to obey unlawful orders -- [but] I think one could say it's not plausible ... that that action would be legal," Alito said.
To Sauer, he said, "I'm sure you've thought of lots of hypotheticals where a president could say, 'I'm using an official power,' and yet the power uses it in an absolutely outrageous manner."
'What was up with the pardon of President Nixon?'
Justice Ketanji Brown Jackson pressed Sauer on his contention that without immunity all future presidents would feel paralyzed to take official acts that could put them in criminal jeopardy.
"I mean, I understood that every president from the beginning of time essentially has understood that there was a threat of prosecution [upon leaving office]," Jackson said.
Sauer responded by quoting Ben Franklin from the constitutional convention, to which Jackson seemed skeptical.
"But since Benjamin Franklin everybody has presidents who have held the office [who knew] that they were taking this office subject to potential criminal prosecution, no?" she said.
She cited one well-known example of a former president who came under legal scrutiny.
8 years after the National Enquirer's deal with Donald Trump, the iconic tabloid is limping badly "What was up with the pardon for President [Richard] Nixon? ... If everybody thought that presidents couldn't be prosecuted, then what -- what was that about?" she said.
"He was under investigation for both private and public conduct at the time -- official acts and private conduct," Sauer said, going on to indicate that there had long been established an understanding that presidents could be prosecuted for private acts.
"Counsel on that score, there does seem to be some common ground between you, your colleague on the other side, that no man's above the law and that the president can be prosecuted after he leaves office for his private conduct, is that right?" Justice Neil Gorsuch asked.
"We agree with that," Sauer answered.
"And then the question becomes, as we've been exploring here today, a little bit about how to segregate private from official conduct that may or may not enjoy some immunity," Gorsuch said.
That underscored what could emerge as a key part of the court's ultimate decision: how to separate out Trump's conduct that is protected by the presidency, under a ruling of some executive immunity, and what he is accused of doing outside the bounds of his presidential authority that can be prosecuted.
But Trump's attorney concedes some conduct was private
Not long after, Justice Amy Coney Barrett questioned Sauer precisely where some of the described conduct falls, between official and private -- protected or unprotected.
"You concede that private acts don't get immunity," she said.
"We do," Sauer said.
Barrett then specifically cited various alleged acts from Trump's push to overturn the 2020 election, as described by prosecutors.
Barrett, quoting from court filings, said, "I want to know if you agree or disagree about the characterization of these acts as private. Petitioner turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results. Private?"
"We dispute the allegation, but that sounds private to me," Sauer said.
Barrett continued: "Petitioner conspired with another private attorney who caused the filing in court of a verification, signed by petitioner, that contained false allegations to support a challenge. Private?"
"Also sounds private," Sauer said.
"Three private actors, two attorneys, including those mentioned above, and a political consultant, helped to implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding and petitioner and a co-conspirator attorney directed that had effort." Barrett said.
"I believe that's private," Sauer replied.
"Those acts you would not dispute," Barrett said. "Those were private and you wouldn't raise a claim that they were official."
Sauer said back: "As characterized."
'That's like a one-legged stool, right?'
A notable response came shortly after from Chief Justice Roberts when Sauer pushed the justices to remand the case back down to the lower courts to piece through which allegations in the indictment amount to a protected "official act" under the presidency.
"The official stuff has to be expunged completely from the indictment before the case can go forward," Sauer argued.
"That's like a one-legged stool, right?" Roberts said. "I mean, giving somebody money isn't bribery unless you get something in exchange. If what you get in exchange is to become the ambassador to a particular country, that is official, the appointment, it's within the president's prerogatives. The unofficial part is -- 'I'm going to get a million dollars for it.'"
After this exchange, Justice Clarence Thomas raised unprompted whether Trump's legal team was challenging the legality of the appointment of special counsel Jack Smith, a questionable theory previously pushed by right-wing lawyers like former Attorney General Ed Meese.
Sauer said Trump's legal team was making that argument in his separate Florida federal case, in which he is accused of mishandling classified information while out of office, but they weren't doing so directly in this case, to which Thomas did not follow up.
Justice Alito then asked Sauer if all official acts alleged in the Jan. 6 indictment should be excluded from trial, to which Sauer answered they should.
But Justice Sotomayor pressed back on the notion of remanding the case, arguing that even in the instances of acts that could be considered official, they came in the context of Trump pushing forward in his "private" intent of remaining in office.
"I don't think the indictment is charging that the obstruction occurred solely because of conversations with the Justice Department," she said. "They're saying -- you look at all of the private acts and you look in the context of some of the public acts and you can infer the intent, the private intent from them."
Fear of turning Oval Office into 'seat of criminal activity'
In questioning Sauer about why presidents shouldn’t face criminal liability for unlawful actions they take in office, Justice Jackson seemed to warn that, as she sees it, giving presidents absolute immunity could turn the White House into “the seat of criminal activity in this country.”
In response, Sauer insisted that while a president shouldn’t face criminal prosecution, they could face impeachment or other remedies for any unlawful conduct.
The exchange began when Jackson pressed, "If there’s no threat of criminal prosecution, what prevents the president from just doing whatever he wants?"
Sauer pointed to "impeachment, oversight by Congress, public oversight, there’s a long series."
"You seem to be worried about the president being chilled. I think that we would have a really significant opposite problem if the president wasn't chilled," Jackson said.
"If someone with those kinds of powers, the most powerful person in the world, with the greatest amount of authority, could go into office knowing that there would be no potential penalty for committing crimes -- I'm trying to understand what the disincentive is from turning the Oval Office into the seat of criminal activity in this country," Jackson continued.
She asked Sauer, "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?"
But Sauer indicated that such problems hadn't occurred so far.
"I respectfully disagree with that because the regime you described is the regime we operated under for 234 years," he said.
Can a president pardon themselves?
During Sauer's questioning, Gorsuch asked him to explain the Trump team's position on whether a president hypothetically has the power to pardon themselves, which he said could happen if presidents feared that their successors could prosecute them for actions they took while in office.
"I didn't think of that until your honor asked it. That is certainly incentive that might be created," Sauer answered.
"We've never answered whether a president can do that. Happily it's never been presented to us," Gorsuch said in response.
Later in the hearing, Michael Dreeben, arguing for the government, was asked for his view on whether the president has such authority.
"I don't believe the department of justice has taken a position," Dreeben said. The only authority that I'm aware of is a member of the Office of Legal Counsel wrote on a memorandum that there is no self-pardon authority. As far as I know, the department has not addressed it further and the court had not addressed it either."
Will the case be remanded -- delaying it until next year?
Roberts began his line of questioning of Dreeben, in the second half of the haring, by raising concerns about the opinion issued by the D.C. Circuit Court of Appeals in their sweeping rejection of Trump's claims of immunity.
Roberts said the statement that "a former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has allegedly acted in defiance of the laws" concerned him because "as I read it, it says a former president can be prosecuted because he's being prosecuted."
Roberts said such a position could put too much faith in the justice system to act non-politically and out of good faith -- and he asked whether the Supreme Court should send the opinion back down to make clear to the circuit court that that is not the law.
Dreeben responded there are "layered safeguards" that protect against malicious prosecution.
"We are not endorsing a regime that we think would expose former presidents to criminal prosecution in bad faith, for political animus, without adequate evidence, or politically driven prosecution that would violate the Constitution," Dreeben said.
Near the end of the hearing, Barrett also noted that the justices could send the case back to the lower court to decide which of the actions in the indictment against Trump was official -- and therefore not prosecutable -- versus which were done in his private capacity.
Such an outcome could rule out a trial before the end of the year and before the November election.
Dreeben emphasized that the Department of Justice would prefer to tell a jury all of it: "There's an integrated conspiracy here that had different components, as alleged in the indictment. Working with private lawyers to achieve the goals of the fraud and ... the petitioner reaching for his official powers to try to make the conspiracies more likely to succeed.
"We would like to present that as an integrated picture to the jury so that it sees ... [the] gravity of the conduct."
However, Dreeben indicated that even if some of the alleged actions in indictment were deemed official in nature and not subject to prosecution, prosecutors would still want to present some of those actions to the jury to show Trump's state of mind when he engaged in actions deemed private.
Presidents can make mistakes without charges
Dreeben faced questions from Alito on whether or not presidents can make a "mistake" given the many competing pressures they are under in their day to day duties.
"Presidents have to make a lot of tough decisions about enforcing the law and they have to make decisions about questions that are unsettled," Alito said, then asking if a "mistake" makes a commander in chief criminally liable.
"Making a mistake is not what lands you in a criminal prosecution," Dreeben said.
Later he raised some of the specific accusations in the charges against Trump: "It is difficult for me to understand how there could be a serious constitutional question about saying, 'You can't use fraud to defeat the [certification of the winner of the presidential election], you can't obstruct it through deception, you can't deprive millions of voters of their right to have their vote counted for the candidate who they chose.'"
Charging FDR for internment camps?
Much of the justices' questioning of the attorneys on Thursday turned on hypotheticals to probe at the limits of each of their arguments about whether presidents should or should not be immune from prosecution.
Beyond Sotomayor asking about a potential assassination using the military, Justice Elana Kagan asked how immunity would apply if a president ordered soldiers "to stage a coup."
Sauer said in that potential case, it "may well be an official act" that would require impeachment and conviction before he is prosecuted.
He said something similar when Sotomayor asked if Trump's backing of "fraudulent" alternate electors in 2020, to try and overturn the results, as described in the indictment, was also part of his official duties. "Absolutely, your honor," Sauer said.
Alito added his own what-if as he questioned Dreeben, with the government.
"Mr. Sauer and others have identified events in the past where presidents have engaged in conduct that might have been charged as a federal crime, and you say, 'Well, no, that's not really true.' ... So, what about president Franklin D. Roosevelt's decision to inter Japanese Americans during World War II. Couldn't that have been charged under conspiracy against civil rights?" Alito asked.
Dreeben raised a number of concerns with hypothetically trying to bring charges but demurred on a straightforward answer beyond noting the controversy and complexity.
Worry of a vicious cycle of prosecutions -- and what happens next
In line with many of his questions during today's arguments, Justice Brett Kavanaugh focused at one point on what the impact of prosecution could be on the office of the presidency and his worries of what he called a vicious cycle of malicious prosecutions hampering presidents for years and years to come -- in the absence of immunity.
He likened the current moment to a controversial post-Watergate Supreme Court decision involving the powers of independent counsels, in which the late Justice Antonin Scalia penned one of his most famous dissents in defense of the presidency.
"That's the concern going forward is that the system will -- when former presidents are subject to prosecution in the history of Morrison v. Olsen tells us, it's going to cycle back and be used against the current president or the next president or and the next president and after that," Kavanaugh said.
He further claimed in the exchange that while President Gerald Ford's pardon of Richard Nixon was "very controversial in the moment" it is "now looked upon as one of the better decisions in presidential history I think by most people."
Notably, however, both Kavanaugh and Gorsuch said their concerns about overreaching prosecutions didn't extend to the facts of the Jan. 6 case against Trump.
Throughout arguments, justices made clear they were looking past the immediate example of Trump to what their decision will mean for the future of the presidency.
"We're writing a rule for the ages," Gorsuch said.
Kavanuagh echoed that: "This case has huge implications for the presidency, for the future of the presidency and for the future of the country, in my view."
And Alito said, "Whatever we decide is going to apply to all future presidents."
(WASHINGTON) -- Former President Donald Trump has blown up his fair share of deals on Capitol Hill, but Senate Minority Leader Mitch McConnell says Trump's decision to hold his tongue on a massive $95 billion foreign aid package -- including critical aid for Ukraine -- may have made all the difference in getting the legislation across the finish line.
McConnell had staked his legacy on passage of a national security aid package Tuesday night, securing billions in aid to Israel, Ukraine and Taiwan, and to get it done, he pushed back hard against the isolationist wing of his own party, convincing 30 other Republicans to join him.
And the win, he told ABC News in an interview Wednesday, will help persuade Trump to change his views as well.
McConnell was eager to talk about how he plans to make fighting isolationism his mission during his remaining time in the Senate, including after he steps aside as Republican leader in November.
"I am not leaving the Senate. And this is going to be my primary focus going forward, and I think it's important for us and for the rest of the world," he said.
McConnell as Reagan Republican Trump, who has waded in to a number of legislative debates in recent weeks, did not directly weigh in on how members ought to vote on the Ukraine aid package. On Tuesday, the former president seemed to embrace House Speaker Mike Johnson, who stuck his neck out to ensure the package could get passed.
McConnell, who has had a tumultuous relationship with the former president, acknowledged that Trump's decision to get behind Johnson and to keep his opinions on Ukraine aid to himself may have swung his party more in the direction McConnell has been pleading them to go for over a year: away from isolationism, toward American global leadership.
"I think the issues typically reflect either your president of your party and office or the nominee for president, and I think a lot of the views Republicans at large are going to have will be based not on what we did in Congress but on where the nominee or president is," McConnell said. "I was encouraged by the fact that he allegedly embraced the speaker and decided to quit talking about this issue."
The Republican leader sees himself in the mold of Ronald Reagan, whose "peace through strength" worldview has become less and less visible in Trump's "America First" GOP.
At times, in the earliest stages of the debate over foreign aid, McConnell said he felt like the lone Reagan Republican in the room.
"In the beginning I sort of did," McConnell said, when asked if he felt isolated. "But I think it got better."
Demonstrating to Trump For McConnell, the passage of this multi-pronged supplemental aid package was essential to demonstrating to Trump that globalist views can be popular with Republicans.
"I know how much he likes to win," McConnell said. "And this looks like a winning issue, not a losing issue."
That's why McConnell, who is stepping down this from his role as GOP leader in November after 18 years on the job, said he's not done pushing back on isolationism.
For now, McConnell feels he beat back the pull of isolationism in his party.
"At least on this issue, I think the isolationist movement didn't come that close," he said.
Says Trump opposing border deal helped clear the way Though McConnell was ultimately successful in his efforts to get the bill passed, It took Congress over six months to move on President Joe Biden's supplemental aid request for Ukraine.
Part of the reason for that delay was an effort by Republicans to condition foreign aid on robust provisions to secure the U.S. southern border. That effort fizzled out after Republicans rejected a bipartisan deal containing many of the provisions that they themselves had insisted on.
McConnell said the border remains a looming issue that requires attention.
But he also concedes that choosing to focus on the border as part of the discussion about a foreign aid package may have been a costly distraction from dealing with the original national security supplemental request.
And former President Trump is the one who ultimately cleared the deck.
"I would love to solve the border problem, we actually tried," McConnell said. "But most of my colleagues decided it wasn't good enough and the former president said he'd rather it not be done at all, and so that kind of moved the border away."
With the border issue formally quashed, members were able to get behind the bill more easily. It's part of the reason that McConnell believes the package picked up nine additional Republican supporters between its consideration in February and Tuesday night's passage.
"I think once the border issue was settled, not in a way that all of us preferred, but clearly nothing was going to happen, you had the original supplemental there," McConnell said.
"I think once members focus on the facts, just the facts, it's very hard to argue against the proposal," he said.
Trump's opposition to the border provision may have, in the end, been a critical component of getting foreign aid passed.
Foreign aid passage makes Reagan-type approach 'look like a winner' Johnson sat on the Senate supplemental bill for more than two months. He eventually let the House of Representatives vote on the bill in pieces after Trump bowed out of expressing a direct opinion on how members ought to proceed.
"He gave everybody a chance to vote, which is a good way to figure out how will pass and what won't," McConnell said of Johnson's manuevering. "And I think that was really, in his situation, a pretty courageous decision."
Johnson faced threats to lose his gavel over advancing the foreign aid package in part due to an increasingly isolationist House GOP Conference. In the Senate, about 70% of Republicans backed the foreign aid package. But more than half of House Republicans rejected Ukraine aid.
McConnell blames the anti-Ukraine sentiments among Republicans in both chambers on ousted Fox News commentator Tucker Carlson.
"Tucker Carlson had a massive audience that was a lot of rank and file Republicans, starting carving on Ukraine," McConnell said. "And the former president was skeptical about it. And that had a huge impact on public opinion."
But Tuesday night's vote, McConnell believes, is a critical step in changing public opinion, especially as he seeks to lead his members towards reclaiming the Senate in November's elections.
"Tuesday makes the Reagan-type approach look like a winner, not a loser," McConnell said. "And I think that's the beginning of changing public sentiment."
(WASHINGTON) -- Against the backdrop of a divisive 2024 presidential campaign, the U.S. Supreme Court on Thursday will take up the monumental question of whether a former president turned presumptive GOP nominee can be criminally prosecuted for his efforts to stay in power after the last election.
The case, Donald J. Trump v. United States, presents an unprecedented constitutional quandary for the court brought about by equally unprecedented actions by former President Donald Trump in the aftermath of the 2020 presidential election, which he lost to Joe Biden by a margin of 7 million popular votes.
The outcome could determine whether Trump faces a federal trial this year on four felony counts pressed by special counsel Jack Smith, including conspiracy to defraud the U.S. and obstruction of an official proceeding, for his attempts to overturn the electoral vote count certifying Biden's victory.
Trump, who has pleaded not guilty, is seeking to quash the case on the claim that as a former president he enjoys "absolute immunity" from criminal prosecution for any "official acts" during his tenure. He is the first American president -- current or former -- to ever face criminal charges.
"The President cannot function, and the Presidency itself cannot retain its vital independence, if the President faces criminal prosecution for official acts once he leaves office," Trump's attorneys wrote in their opening brief to the high court.
"Denial of criminal immunity would incapacitate every future President with de facto blackmail and extortion while in office, and condemn him to years of post-office trauma at the hands of political opponents," they argued.
Two courts have resoundingly rejected the former president's immunity arguments, including a unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia.
"Former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant," the panel wrote. "Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct."
The appeals court warned that if Trump's constitutional theory were accepted, it would "collapse our system of separated powers" by putting a president above the law.
Smith, the special counsel, argues in his brief to the high court that Trump's assertion lacks any historical precedent and undermines the founders' vision of a presidency restrained in power.
"The effective functioning of the presidency does not require that a former president be immune from accountability for these alleged violations of federal criminal law," the he wrote the justices. "To the contrary, a bedrock principle of our constitutional order is that no person is above the law -- including the President."
A trial date in Smith's federal election case against Trump was initially set for March 4 in U.S. District Court but was delayed awaiting a final decision by the Supreme Court. A ruling on the immunity claim is expected before July, as soon as mid-May.
The justices could uphold the appeals court decision in its entirety, clearing the way for a trial this summer, or they could take a middle-road approach, spelling out what actions qualify for immunity and which do not, sending the case back to lower courts for further proceedings. Such an outcome could rule out a trial before the November election.
Most legal analysts say it's highly unlikely the Supreme Court -- with its conservative majority and three Trump appointees -- will endorse Trump's sweeping assertion of "absolute immunity." In a 2020 decision, the same court rejected a similar immunity claim by Trump in his attempt to reject a grand jury subpoena for his tax returns.
A majority of Americans (51%) think the federal indictment of Trump related to Jan. 6 and his efforts to overturn the 2020 election is very serious, according to an ABC News/Ipsos poll from late last year.
Just over half of respondents -- 52% -- think Trump should have been charged with a crime in this case, while 32% said he should not have been. At the same time, 46% think the charges against Trump are politically motivated, while 40% do not, per the poll conducted using Ipsos' KnowledgePanel.
Trump's legal team has argued that the impeachment process is the only check on a president's conduct allowed by the Constitution, even as they concede that a president who is impeached, convicted and removed from office could subsequently face criminal prosecution for the same acts.
Trump was impeached by the House in 2021 over his efforts to overturn results of the 2020 election but later acquitted by the Senate after he had left office. The former president argues that his actions were part of a legally legitimate effort to ensure election integrity.
Smith insists former presidents have never been immune from prosecution and have always been aware of the potential for prosecution. He cites in court briefs the case of former President Richard Nixon accepting a pardon from President Gerald Ford as evidence that Nixon believed prosecution was possible after he had resigned.
While Supreme Court precedent has limited civil litigation against presidents, the special counsel contends criminal matters are different -- and that there are layers of legal safeguards in the system to prevent partisan harassment and protect due process.
Tough new EPA rules would force coal-fired power plants to capture emissions or shut down "Even if liability could not be premised on official acts," Smith wrote the justices in his brief, "the case should be remanded for trial, with the district court to make evidentiary and instructional rulings in accordance with this Court's decision. Petitioner [Trump] could seek appellate review of those rulings, if necessary, following final judgment."
After oral arguments on Thursday, the justices will vote during their weekly private conference and begin drafting opinions. They are expected to be released before the court's term ends in June.
(WASHINGTON) -- In historic Trump hearing, Supreme Court suggests presidents may have some criminal immunity
Alexandra Hutzler,Meredith Deliso,Alexander Mallin, andMike Levine
The U.S. Supreme Court heard arguments Thursday on whether former President Donald Trump can be criminally prosecuted over his efforts to overturn his 2020 election loss.
The justices grappled with the monumental question of if -- and if so, to what extent -- former presidents enjoy immunity for conduct alleged to involve official acts during their time in office.
Trump claims "absolute" protection for what he claims were official acts, though he denies all wrongdoing. The high court divided over this, but many of the conservative-leaning justices seemed open to some version of it while still excluding a president's "private" conduct.
The high court's ruling will determine if Trump stands trial before the November election on four charges brought by special counsel Jack Smith, including conspiracy to defraud the United States. A decision is expected by June.
How fast the justices move in making a determination will impact whether Trump stands trial before the November election -- if at all.
Experts point to how the court handled Bush v. Gore, when the justices intervened to end a ballot recount and effectively hand George W. Bush the presidency in the 2000 election. In United States v. Nixon, the Watergate scandal tapes case, the Supreme Court heard arguments July 8, 1974, and issued its opinion rejecting his claim of executive privilege 16 days later.
It’s not clear whether the court will move with such speed. The opinions are expected to be released before the court’s term ends in June.
The justices could uphold the lower court decision rejecting immunity in its entirety, clearing the way for a trial this summer. Or they could kick the can down the road by sending the case back to lower courts for further proceedings -- which some conservative justices floated during arguments. Such an outcome could rule out a trial before the end of the year.
Apr 25, 12:44 PM Court adjourns
Oral arguments came to an end after two hours and 40 minutes.
Trump attorney declined to give a rebuttal, and the case was submitted.
Apr 25, 12:16 PM 'We're writing a rule for the ages'
Throughout arguments, multiple of the justices made clear they were looking past the immediate example of Trump to what their decision will mean for the future of the presidency.
"We're writing a rule for the ages," Justice Neil Gorsuch said.
"This case has huge implications for the presidency, for the future of the presidency and for the future of the country, in my view," said Justice Brett Kavanaugh.
"Whatever we decide is going to apply to all future presidents," said Justice Samuel Alito.
Apr 25, 12:09 PM Alito suggests some sympathy toward Trump's position
Justice Samuel Alito has multiple times over the course of questioning sounded sympathetic toward Trump's positions.
He also seemed to raise concerns about former presidents suffering the burden of having to go through a trial if they are criminally charged.
"That may involve great expense, and it may take up a lot of time, and during the trial the former president may be unable to engage in other activities that the former president would want to engage in, and then the outcome is dependent on the jury, the instructions to the jury and how the jury returns a verdict, and then it has to be taken up on appeal," Alito said at one point.
In his final question to government attorney Michael Dreeben, Alito seemed to suggest that Trump's prosecution could serve to incentivize future presidents to try and unlawfully remain in office in order to avoid prosecution by their successors.
"Now, if an incumbent who loses a 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?" Alito asked.
"I think it is exactly the opposite, Justice Alito," Dreeben replied, noting Trump and his allies filed dozens of lawful challenges to the results of the election and lost.
"There is an appropriate way to challenge things through the courts with evidence," Dreeben said. "If you lose, you accept the results, that has been the nation's experience, I think the court is well familiar with that."
Apr 25, 11:58 AM DOJ on what executive functions have 'absolute protection'
Asked by Justice Elena Kagan what "core" executive functions have "absolute protection," government attorney Michael Dreeben said they include pardon power, veto, foreign recognition and appointments.
"Congress cannot say you can't appoint a federal judge who hasn't received a certain diploma, hasn't achieved a certain age," he said.
Commander in chief is also on the list, he said, though added that Congress has "substantial authority in the national security realm."
"I think that there may be some aspects like directing troops on the field in which the president's power is completely unreviewable," he said.
Apr 25, 11:41 AM Justices ask attorneys if presidents can pardon themselves
As the justices wrestle with immunity, they are posing another question to lawyers: Can presidents pardon themselves?
Justice Neil Gorsuch asked Trump attorney John Sauer about the possibility, saying presidents could be incentivized to do so if they fear their successors could prosecute them for actions they took while in office.
"I didn't think of that until your honor asked it," Sauer said. "That is certainly incentive that might be created."
Michael Dreeben, arguing for the government, was later asked for his view on whether the president has such authority.
"I don't believe the Department of Justice has taken a position," Dreeben said. "The only authority that I'm aware of is a member of the Office of Legal Counsel wrote on a memorandum that there is no self-pardon authority. As far as I know, the department has not addressed it further, and the court had not addressed it either."
Apr 25, 11:36 AM Alito asks how 'robust' protection against bad faith prosecution is
Justice Samuel Alito addressed the "layers of protection" against bad faith prosecutions raised by the DOJ.
"I'm going to start with what the D.C. Circuit said. So, the first layer of protection is that attorneys general and other justice department attorneys can be trusted to act in a professional and ethical manner, right?" Alito said. "How robust is that protection?"
Alito continued that the "vast majority" of attorneys general and justice department attorneys "take their professional ethical responsibilities seriously" but that there have been exceptions.
In response, DOJ attorney Michael Dreeben agreed that there have been "rare exceptions" and said that "we're talking about layers of protection."
"I do think this is the starting point, and if the court has concerns about the robustness of it, I would suggest looking at the charges in this case," he said.
"The allegations about the misuse of the Department of Justice to perpetuate election fraud show exactly how the Department of Justice functions in the way that it is supposed to," Dreeben said. "Petitioner is alleged to have tried to get the Department of Justice to send fraudulent letters to the states to get them to reverse electoral results."
Apr 25, 11:29 AM 'Making a mistake' as president doesn't result in charges: DOJ
Michael Dreeben, arguing for Smith's team, faced questions from Justice Samuel Alito on whether or not presidents can make a "mistake" given the many competing pressures they are under in their day to day duties.
"Presidents have to make a lot of tough decisions about enforcing the law and they have to make decisions about questions that are unsettled," Alito said, then asking if a "mistake" makes a commander in chief criminally liable.
"Making a mistake is not what lands you in a criminal prosecution," Dreeben said.
Later he raised some of the specific accusations in the charges against Trump: "It is difficult for me to understand how there could be a serious constitutional question about saying, 'You can't use fraud to defeat the [certification of the winner of the presidential election], you can't obstruct it through deception, you can't deprive millions of voters of their right to have their vote counted for the candidate who they chose.'"
Apr 25, 11:21 AM Kavanaugh raises question of 'risk' of 'vague' statutes to go after a president
In a recurring point of interest for the court as it questioned the government, Justice Brett Kavanaugh raised the question of the "risk" of a "creative prosecutor" using "vague" criminal statutes -- including obstruction and conspiracy, which Trump faces -- against any president if they can't claim immunity.
In response, Department of Justice attorney Michael Dreeben said the question about the risk is "very serious" and "obviously it is a question that this court has to evaluate." He argued there is a "balanced protection" with "accountability" for the presidency.
Both Kavanaugh and Justice Samuel Alito appeared skeptical of Smith's use of at least some of the conspiracy and fraud-related charges in the case against Trump. Alito said to Dreeben: "I don't want to dispute the particular application of that [conspiracy statute] to the particular facts here, but would you not agree that is a peculiarly open-ended statutory prohibition? And that fraud under that provision, unlike under most other fraud provisions, does not have to do -- doesn't require any impairment of a property interest?"
Dreeben responded: "It is designed to protect the functions of the United States government and it is difficult to think of a more critical function than the certification of who won the election."
Apr 25, 11:18 AM Justice Roberts raises concern of bad faith prosecutions against a president
Justice John Roberts began his line of questioning by raising concerns about the opinion issued by the D.C. Circuit Court of Appeals in their rejection of Trump's claims of immunity.
Roberts said the statement that "a former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has allegedly acted in defiance of the laws" concerned him because "as I read it, it says a former president can be prosecuted because he's being prosecuted."
Roberts said such a position could put too much faith in the justice system to act non-politically and out of good faith, and he asked whether the Supreme Court should send the opinion back down to make clear to the circuit court that that is not the law.
Michael Dreeben, arguing for the government, responded that there are "layered safeguards" that protect against malicious prosecution.
"We are not endorsing a regime that we think would expose former presidents to criminal prosecution in bad faith, for political animus, without adequate evidence or politically driven prosecution that would violate the Constitution," Dreeben said.
Apr 25, 11:20 AM Prosecutor on why there haven't been prior criminal prosecutions for presidents
Asked by Justice Clarence Thomas why previous presidents were not prosecuted for controversial actions, prosecutor Michael Dreeben said "this is a central question."
"The reason why there have not been prior criminal prosecutions is that there were not crimes," he said.
He said there are "layers of safeguards" that ensure that former presidents do not have to "lightly assume criminal liability for any of their official acts."
Apr 25, 11:04 AM DOJ begins its argument
After about an hour of questioning, Trump's attorney concluded his presentation before the court and Department of Justice attorney Michael Dreeben, representing Smith's team, began his argument with a short opening statement followed by what is expected to be approximately an hour of facing questions.
Dreeben called Trump's immunity claim a "novel theory [that] would immunize former presidents for criminal liability for bribery, treason, sedition, murder and, here, conspiring to use fraud to overturn the results of an election and perpetuate himself in power."
"Such presidential immunity has no foundation in the Constitution," Dreeben said. "The framers knew too well the dangers of a king who could do no wrong."
-ABC News' Adam Carlson
Apr 25, 10:51 AM What if the president staged a coup?
Justice Elena Kagan and Amy Coney Barrett raised the hypothetical of a potential presidential coup with Trump's attorney, who said that under their theory of immunity, ordering a coup could be considered an official act.
John Sauer maintained that impeachment and conviction are needed before a criminal prosecution in the hypothetical case of a coup raised by the justices.
And even then, Sauer said there would have to be a criminal statute expressly referencing the president, prompting an incredulous response from Barrett, who appeared to express a concern that Suer's argument was paradoxical.
"There would have to be a statute that made a clear statement that Congress purported to regulate the president's conduct," he said.
Apr 25, 11:00 AM KBJ says granting Trump's position would 'embolden' POTUS to act criminally 'with abandon'
Justice Ketanji Brown Jackson said she was worried that granting Trump's position for presidential immunity would "embolden" a president to act criminally "with abandon."
"If someone with those kinds of powers, the most powerful person in the world, with the greatest amount of authority, could go into office knowing that there would be no potential penalty for committing crimes, I'm trying to understand what the disincentive is from turning the Oval Office into, you know, the seat of criminal activity in this country. ... I worry that we would have a worse problem than the problem of the president feeling constrained to following the law while he's in office," she said.
John Sauer responded by suggesting that history has shown that this hasn't happened so far. “I respectfully disagree with that because the regime you described is the regime we operated under for 234 years," he said.
Apr 25, 10:39 AM Kagan notes founding fathers didn't put in immunity clause: 'President was not a monarch'
As the questioning of Trump's attorney continues, Justice Elena Kagan noted that the framers of the Constitution consciously did not put in an explicit presidential immunity clause.
"They didn't provide immunity to the president," she told lawyer John Sauer. "And you know, not so surprising, they were reacting to a monarch who claimed to be against the law. Wasn't the whole point that the president was not a monarch and the president was not supposed to be above the law?"
In response, Sauer argued that the framers did put in an immunity clause "in a sense" with the executive vesting clause and that they adopted impeachment as a "structural check," which is a major part of Trump's defense against his federal charges.
"They did discuss and consider what would be the checks on the presidency and they did not say we would have criminal prosecution," Sauer said. "Everybody cried out against that as unconstitutional."
Apr 25, 10:48 AM Expunging Trump charges of official behavior would be 'one-legged stool, right?'
A notable response came from Chief Justice John Roberts when Trump's attorney pushed for the justices to remand the case back down to the lower courts to sort through which allegations in the indictment amount to an "official act" under the presidency versus those that were private and outside the office's authority -- and potentially criminally liable.
"The official stuff has to be expunged completely from the indictment before the case can go forward," John Sauer said.
"That's like a one-legged stool, right?" Roberts responded. "I mean, giving somebody money isn't bribery unless you get something in exchange. If what you get in exchange is to become the ambassador to a particular country, that is official, the appointment, it's within the president's prerogatives. The unofficial part is 'I'm going to get a million dollars for it.'"
In an unusual moment after this exchange, Justice Clarence Thomas raised unprompted whether Trump's legal team was challenging the legality of the appointment of special counsel Jack Smith -- a questionable theory previously pushed by right-wing lawyers like former Attorney General Ed Meese.
Sauer said Trump's legal team was making that argument in his separate Florida federal case, in which Trump is accused of mishandling classified information while out of office, but they weren't doing so directly in this case, to which Thomas did not follow up.
Justice Samuel Alito then asked Sauer if all official acts alleged in the indictment should be excluded from trial, to which Sauer answered they should.
But Justice Sonia Sotomayor pressed back on the notion of remanding the case, which outside observers see as one potential outcome that would likely draw out the lower court proceedings for many months, past the November election.
Sotomayor argued that even in the instances of acts that could be considered official, they came in the context of Trump pushing forward in his "private" intent of remaining in office despite losing to Joe Biden.
"I don't think the indictment is charging that the obstruction occurred solely because of conversations with the Justice Department," she said. "They're saying you look at all of the private acts and you look in the context of some of the public acts, and you can infer the intent, the private intent, from them."
Apr 25, 10:48 AM Trump attorney concedes indictment includes some unprotected actions
Justice Amy Coney Barrett read aloud from special counsel Smith's brief, in which he made the case that even if the Supreme Court were to decide there was some immunity from official acts, there were sufficient private acts in the indictment for the trial to proceed immediately.
"I want to know if you agree or disagree about the characterization of these acts as private," she said. "You concede that private acts don't get immunity," she told John Sauer, Trump's lawyer, who said, "We do."
He went on to say that some purported actions in the indictment were indeed "private" -- including Smith's allegation that Trump turned to a private attorney who knowingly spread false claims of election fraud to spearhead his challenges to 2020 election results and that he conspired with others to implement a plan to obstruct the certification of President Joe Biden's win.
"So those acts you would not dispute," Barrett said. "Those were private and you would not raise a claim that they were official?"
Sauer agreed.
Other justices returned to that line of questioning while pressing Sauer over the rest of his questioning.
Apr 25, 10:32 AM Trump was within his rights as president to back alleged 'fraudulent' electors: Attorney
"So apply it to the allegations here," she said, referring to a key part of Smith's case against Trump. "A fraudulent slate of electoral candidates, assuming you accept the facts of the complaint on their case -- is that plausible that would be within his right to do?"
Trump's attorney replied, "Absolutely."
Sotomayor pushed back: "Knowing that the slate is fake. Knowing that the slate is fake, that they weren't actually elected, that they weren't certified by the state."
John Sauer said he disputed the characterization the electors were "fake."
"This was being done as an alternative basis," he argued of the competing, alleged electors put forth in various states as part of a push to reverse Trump's 2020 defeat.
Apr 25, 10:28 AM Justice Gorsuch floats idea of sending issue back to lower courts
Justice Neil Gorsuch was the first on the bench to raise the idea of sending the immunity question back to the lower courts.
Gorsuch said a key question is how to segregate private conduct and official conduct that may, or may not, enjoy some immunity.
The justice said the appeals court "left open in that case the possibility of further proceedings and trial."
"Exactly right. And that would be a very natural course for this court to take in this case," Trump's attorney responded.
Apr 25, 10:18 AM Justice Sotomayor raises assassination hypothetical
Minutes into arguments, Justice Sonia Sotomayor raised the question of whether immunity extends to political assassinations.
The issue was discussed at length in a lower court hearing. Then, Trump attorney John Sauer suggested Trump could be immune, under certain circumstances.
"I'm going to give you a chance to say if you stay by it," Sotomayor said. "If the president decides that his rival is a corrupt person and he orders the military, or orders someone to assassinate him, is that within his official acts for which he can get immunity?"
"It would depend on the hypothetical, but we could see that could well be an official act," Sauer said.
Apr 25, 10:13 AM Justice Brown Jackson: Every president 'has understood that there was a threat of prosecution'
Justice Ketanji Brown Jackson pressed Trump attorney John Sauer on his contention that without immunity all future presidents would feel paralyzed to take official acts while in office that could put them in criminal jeopardy.
"I mean, I understood that every president from the beginning of time essentially has understood that there was a threat of prosecution [upon leaving office]," Jackson said.
Sauer responded by quoting Benjamin Franklin from the constitutional convention, to which Jackson seemed skeptical.
"But since Benjamin Franklin everybody has presidents who have held the office [who knew] that they were taking this office subject to potential criminal prosecution, no?" she said.
Apr 25, 10:11 AM 1st questions from Thomas: Where does immunity come from?
Justice Clarence Thomas opened questioning by getting to the heart of the case: where is the "source" of presidential immunity and how would the court come to decide what acts fall under that scope.
First, he asked Trump's attorney to be "more precise as to the source" of supposed presidential immunity.
John Sauer responded that it comes from the executive vesting clause of the Constitution.
Thomas then pressed how exactly the court would "determine what an official act is," to which Sauer said acts fall within the “outer perimeter” of a president's official duties.
Apr 25, 10:11 AM Trump's attorney: 'Every current president will face de facto blackmail'
Trump's attorney, John Sauer, addressed the justices first, saying in his opening statement that unless presidents are granted the absolute immunity that Trump seeks, "Every current president will face de facto blackmail and extortion by his political rivals while he is still in office."
Sauer also called out controversial policies of other commanders in chief, such as George W. Bush's regarding the Iraq War and a Barack Obama-approved drone strike against a U.S. citizen as part of anti-terrorism operations overseas, while saying the implications of the court's decision here "extend far beyond the facts of this case."
Apr 25, 10:02 AM Arguments are underway
Oral arguments have begun in Donald J. Trump v. United States.
Arguing for Trump is attorney D. John Sauer. Presenting for Smith is Michael R. Dreeben, who has argued more than 100 cases before the nation's high court.
Apr 25, 9:59 AM Trump, on trial in New York, contends president 'has to have immunity'
As Trump headed into court on Thursday morning for his ongoing trial in New York (he has pleaded not guilty), he continued to weigh in on the presidential immunity case.
"I think that the Supreme Court has a very important argument before it today," he told reporters as he entered the hallway inside a Manhattan courtroom for his hush money trial. "I would have loved to have been there but this judge would not allow me to be there."
Trump argued that the president "has to have immunity," repeating a claim that federal prosecutors and some judges have so far said would upend the rule of law.
"This has to do with a president in the future for 100 years from now," he said. "If you don't have immunity, you're not going to do anything. You're going to become a ceremonial president. It's just going to be doing nothing, you're not going to take any of the risks, both good and bad."
-ABC News' Kelsey Walsh and Michael Pappano
Apr 25, 9:53 AM What the Constitution, framers said about presidential immunity
There is "nothing in the text of the Constitution that speaks to immunity in one way or another," said David Schultz, a national expert in constitutional law.
But there is textual evidence from the Constitution's framers -- including Benjamin Franklin and Alexander Hamilton -- about how they viewed the issue.
"We have language from some framers indicating that even if there might have been some immunity while a person was president of the United States, once they've left office there's no immunity and they could be charged with the crime," Schultz said.
Apr 25, 9:43 AM The scene outside, with a few anti-Trump demonstrators
Just a few demonstrators stood in front of the Supreme Court -- which is wrapped in security fencing -- ahead of the hearing Thursday morning.
They held signs including ones that read "Absolute immunity = absolute tyranny" and "Loser."
-ABC News' Devin Dwyer
Apr 25, 9:31 AM What Americans have said of Smith’s indictment, Trump’s immunity claim
When Smith handed down his charges in August 2023, a majority of Americans (51%) thought the indictment was very serious, according to an ABC News/Ipsos poll taken shortly after. Overall, 65% of adults thought then that the charges were serious, including 51% who said they were very serious and 14% who said they were somewhat serious.
At the time, a plurality of Americans (49%) said Trump should suspend his presidential campaign, while 36% said he shouldn't.
On Trump’s immunity claim, an overwhelming number of Americans (66%) thought in that poll that the former president should not be immune to criminal prosecution for actions he took while president, according to an ABC News/Ipsos February poll. That included 45% of Republicans and 83% of Democrats. Independents fell in between at 66%.
Apr 25, 9:24 AM Trump's attorneys reverse their stance on prosecuting a president
As Smith's team has noted in arguing against Trump, the former president's lawyers during his second Senate impeachment trial said in very clear terms that they believed a president could in fact be criminally prosecuted by the Department of Justice -- the opposite of what his legal team is currently arguing.
"If my colleagues on this side of the chamber actually think that President Trump committed a criminal offense -- and let's understand, a high crime is a felony and a misdemeanor is a misdemeanor; the words haven't changed that much over time -- after he is out of office, you go and arrest him," one of his attorneys said in opening statements during his impeachment trial in 2021, shortly after Jan. 6.
"We have a judicial process in this country, we have an investigative process in this country, to which no former officeholder is immune,” Trump's attorney said then.
But now, facing federal charges related to Jan. 6, Trump's lawyers argue a president can only be prosecuted if he is impeached, convicted by the Senate and removed from office.
The Senate in his second impeachment trial acquitted, though a majority of lawmakers voted to convict him.
-ABC News' Katherine Faulders
Apr 25, 9:24 AM Trump projects confidence ahead of hearing
Trump appeared confident while addressing the presidential immunity hearing during remarks Thursday morning in Manhattan.
"We have a big case today -- this judge wouldn't allow me to go, but we have a big case today at the Supreme Court on presidential immunity, a president has to have immunity," Trump said at a construction site where he met with union members, workers and supporters. "If you don't have immunity, you just have a ceremonial president," he insisted.
When asked about the justices, three of whom he named to the high court, Trump said, "They're very talented people, they're very smart, they know what they're doing."
Trump stopped by the midtown Manhattan site, where the new JPMorgan headquarters is under construction, before heading to the courthouse for his hush money trial. He denies all wrongdoing.
-ABC News' Lalee Ibssa, Soo Rin Kim and Mike Pappano
(WASHINGTON) -- The Biden administration on Thursday announced a series of new rules to cut pollution emitted from coal and natural gas fired power plants impacting the air, water, land and climate.
"The electricity industry is central to America's economic growth and independence. These are the folks who keep the lights on and power our country forward," Environmental Protection Agency Administrator Michael Regan said. "At the same time, the power sector is also a major contributor to the pollution that drives climate change and threatens public health."
"At EPA it is our responsibility to act within the bounds of our legal authority and assess impacts in a way that is smart, effective, follows the latest science and enables our economy to grow and thrive," he added.
Power plants account for more than one-quarter of all greenhouse gas emissions in the U.S., according to the EPA, making them one of the most potent sources of climate pollution in the country.
"The age of unbridled climate pollution from power plants is over. These standards cut carbon emissions, at last, from the single largest industrial source," Manish Bapna, president and chief executive officer of the Natural Resources Defense Council, said. "They fit hand-in-glove with the clean energy incentives in the Inflation Reduction Act to make sure we cut our carbon footprint. They will reduce other dangerous pollutants that foul the air we breathe and threaten our health."
The agency claims these four new regulations, taken together, will represent a massive reduction in pollution and hundreds of billions of dollars in climate and public health benefits.
Decarbonizing the power sector
The first of the new EPA rules updates a provision of the Clean Air Act to require existing coal-fired power plants and new natural gas plants to control 90% of their carbon pollution through technologies like carbon capture.
Through 2047, an administration regulatory impact analysis found this new standard will avoid 1.38 billion metric tons of carbon pollution -- the equivalent of 328 million gas-powered cars' annual emissions.
Evergreen Action senior policy lead for the power sector Charles Harper told ABC News that the decarbonization measure is a "major game changer for climate action in this country," saying it will, "get at one of the largest sources of carbon pollution in the economy."
The Biden administration says the rule will create $370 billion in climate and public health benefits in the next 20 years, including 1,200 avoided premature deaths and 1,900 cases of asthma onset avoided.
"It's a real win for climate change and folks who live on planet Earth," Harper added.
Edison Electric Institute, an organization representing U.S. investor-owned electric companies, told ABC News it supports the EPA move, but has concerns.
"While we appreciate and support EPA's work to develop a clear, continued path for the transition to cleaner resources, we are disappointed that the agency did not address the concerns we raised about carbon capture and storage (CCS)," EEI President and CEO Dan Brouillette said in a statement. "CCS is not yet ready for full-scale, economy-wide deployment, nor is there sufficient time to permit, finance, and build the CCS infrastructure needed for compliance by 2032."
"We will remain engaged with EPA and with state agencies as they implement these rules," the organization added. "We also will continue to work constructively with EPA as it develops a new proposal for existing natural gas turbines."
Tightening mercury and air toxics standards
Another rule updates the Mercury and Air Toxics Standards (MATS) for coal-fired plants.
One provision of the rule tightens the emissions standard for toxic metals by 67%. The other requires a 70% reduction in the mercury emissions standard specifically from lignite coal-fired power plants.
"This new standard will also require the use of continuous emissions monitoring systems to provide real-time accurate data to facility operators and to the public to ensure that plants are meeting these lower limits and that communities are protected year round from pollution exposure," Regan said.
By 2028, the EPA estimates the new rule will result in 1,000 pounds of mercury emissions reductions in addition to seven tons of other hazardous air pollutant emissions, 770 tons of fine particulate matter pollution and others.
Reducing power plant. waste water pollution
A third rule would reduce waste water pollutants from coal-fired power plants by over 660 million pounds per year, according to the EPA, with the goal of protecting freshwater and drinking water resources for communities around the country.
The agency used its authority under the Clean Water Act for the implementation of this rule, which includes flexible compliance options for coal-fired plants with plans to stop burning coal by 2034. Plants intending to retire coal use will only need to meet current standards, rather than the updated, stricter ones.
President of the Hip Hop Caucus, Rev. Lennox Yearwood, told ABC News that even in divisive times, "people want clean air and clean water." Yearwood's organization works on environmental justice efforts, among other priorities.
"We don't get along right now in our country. We're not seeing eye to eye on too many things," Yearwood said. "But one thing that we see eye to eye on is that we all seem to want clean water."
Yearwood explained that often the burden of pollution falls disproportionately on Black, brown and Indigenous communities, whose communities may be considered "sacrifice zones" by polluters.
The EPA noted the impact of this rule on "communities with environmental justice concerns that are disproportionately impacted" in the release announcing the measures.
Coal ash containment protections
A final rule from the EPA marks the first federal regulation for the management of coal ash, including potential contamination of groundwater.
Burning coal in these power plants creates coal ash, which can contaminate waterways and water systems, in addition to the air, according to the EPA.
The rule, under the Resource Conservation and Recovery Act, requires coal-fired power plants to control and clean coal ash that's a byproduct of their operation -- in addition to areas historically contaminated by coal ash.
"With this rule, we are ensuring that polluters are held accountable for controlling and cleaning up the contamination created by their disposal of coal ash," Regan said, noting that each of the four new rules contains "transparency requirements" to protect affected communities.
Election-year implications
This slate of rules is accompanied by a separate announcement from the Department of Energy of efforts to build out transmission lines to clean energy sources around the nation.
The new DOE rule creates the Coordinated Interagency Transmission Authorization and Permits (CITAP) program, which aims to make the federal permitting process for transmission projects more efficient -- giving them a standardized two-year timeline.
The EPA rules mark the latest in a series of major regulatory announcements by the agency, as it has been working to finalize several outstanding sets of rule proposals.
Environmental organizations told ABC News they have been pressuring the Biden administration to get rules out the door before the Congressional Review Act period begins.
"There's this one law, called the Congressional Review Act, which might allow Republicans to try to meddle with some of the accomplishments by the Biden Administration and EPA and the Administration is very wary and cognizant of any deadlines posed by the Congressional Review Act," Harper told ABC News. "The fact that the EPA is finalizing all these rules and month of April means that they're likely insulated from any potential meddling by congressional Republicans."
Yearwood said these environmental regulations could have potential to sway the election, but said it'll be a "mad dash now," to see which way it goes.
"For my Republican friends, I think that you may have missed the ball with underestimating the importance of clean air and clean water for these communities. That may be their undoing," he said. "On the other hand, I think, for Democrats, I think that they are in a position where they may have waited too late, actually. This is something that I think should have been moving much stronger on."
"It just befuddles me that they waited so long to get to the soil on both standpoints. We'll see. It'll be a mad dash now because on one hand, I think that if this can be more crystallized for Americans, and they can understand the importance of climate, and particularly pollution, I think that this could actually tilt the scales from one way or the other," Yearwood said.
In this Oct. 18, 2020 file photo, a person is seen depositing their mail-in ballots for the U.S. presidential election at a ballot collection box in Phoenix. (Robyn Beck/AFP via Getty Images)
(NEW YORK) -- Several former and current key aides to former President Donald Trump appear to be among those charged by the Arizona State Attorney General over their alleged efforts to overturn the 2020 election. They include Rudy Giuliani, Mark Meadows and former Trump attorney John Eastman -- as well Boris Epshteyn, who remains one of Trump's closest advisers and a current member of his 2024 campaign team.
Arizona Attorney General Kris Mayes also announced charges against 11 named alleged fake electors and seven people whose names are redacted in the filing for their alleged role in efforts to subvert Joe Biden's 2020 victory in the state.
The charges include fraud, forgery, and conspiracy.
"Unindicted Coconspirator 1" in the indictment appears to be Trump as the language of the document says they were involved in a scheme to keep him and former Vice President Mike Pence "in office against the will of Arizona’s voters."
Based on a review of descriptions of the seven redacted names in the Arizona indictment, the additional co-defendants are Rudy Giuliani, Mark Meadows, Boris Epshteyn (Trump 2024 senior adviser), John Eastman, Christina Bobb (RNC senior counsel for election integrity), Jenna Ellis and Mike Roman.
Rudy Giuliani
The indictment described one individual, appearing to match the description of Rudy Giuliani, as "the mayor" who "spread false claims of election fraud."
The full description from the filing reads: "An attorney for Unindicted Coconspirator 1 who was often identified as 'the Mayor.' He spread false claims of election fraud in Arizona and nationally shortly after November 3, 2020. He presided over a 'hearing' in downtown Phoenix on November 30, 2020, where he falsely claimed that Arizona's election officials 'have made no effort to find out' if the results of the recent presidential election were accurate. He pressured the Maricopa County Board of Supervisors and Arizona legislators to change the outcome of Arizona's election, and he was responsible for encouraging Republican electors in Arizona and in six other contested states to vote for Trump-Pence on December 14, 2020."
In a statement to ABC News Wednesday night, an adviser to Giuliani said, "The continued weaponization of our justice system should concern every American, from Arizona to Michigan and everywhere in between, as it does permanent, irrevocable harm to the country."
Mark Meadows
The indictment also described another indicted individual as the "chief of staff" in 2020 -- appearing to match Mark Meadows’s description.
Full description: "[REDACTED] was Unindicted Coconspirator 1's Chief of Staff in 2020. He worked with members of the Trump Campaign to coordinate and implement the false Republican electors' votes in Arizona and six other states. was involved in the many efforts to keep Unindicted Coconspirator 1 in power despite his defeat at the polls."
Boris Epshteyn
The charging document details an attorney and adviser for Trump’s 2016 and 2020 campaigns who helped implement "the scheme to submit false Republican electors."
Full description: "[REDACTED] was an attorney and was an advisor to the Trump Campaigns in 2016 and 2020. in implementing the scheme to submit false Republican electors' votes for Trump-Pence in Arizona and to obstruct the certification process during the January 6, 2021, Joint Session of Congress in Washington."
John Eastman
The indictment details an attorney who "spread false claims of widespread election fraud" and pressured former Arizona Speaker of the House Rusty Bowers to convene a Special Session. Bowers has detailed how Eastman told him to "just do it and let the court sort it out."
Full description: "[REDACTED] was an attorney who encouraged the Republican electors to vote on December 14, 2020, and spread false claims of widespread election fraud. He also pressured the legislature in Arizona and six other states to change the outcome of the election. For example, on January 4, 2021, pushed then-Arizona Speaker of the House Rusty Bowers to convene a Special Session to decertify Arizona's presidential electors, telling him to 'just do it and let the court sort it out.' Bowers declined to do so. Also on January 4, met at the White House with Unindicted Coconspirator 1, Pence, and others to convince Pence to reject or at least delay the confirmation of the lawfully chosen electors two days later at the Joint Session of Congress."
Christina Bobb
The indictment describes an attorney for Trump who "lobbied" Arizona legislators and also helped organize the fake electors plot. Bobb was a part of the Trump campaign until recently being named the Republican National Committee’s senior counsel for "election integrity."
Full description: "[REDACTED] Campaign and worked closely with was an attorney for the Trump lobbied Arizona's Republican legislators after the 2020 presidential election to disregard the popular vote in Arizona. She additionally helped organize the false Arizona Republican electors' votes on December 14, 2020."
Jenna Ellis
The charging document also lists an attorney who "worked closely" with another individual who was also charged and spread false election claims in AZ and six other states.
Full description: "[REDACTED] was an attorney for the Trump Campaign and worked closely with She made false claims of widespread election fraud in Arizona and in six other states. encouraged the Arizona Legislature to change the outcome of the election. She also encouraged Pence to accept the false Arizona Republican electors' votes on January 6, 2021."
Mike Roman
The indictment lists the "director of election day operations for the Trump Campaign," which was Roman's position.
Full description: "[REDACTED] was the Director of Election Day Operations for the Trump Campaign. He worked closely with Unindicted Coconspirator 4, and others to organize the false Republican electors' votes in Arizona and in six other states."
Mayes said in a release all the names would be unredacted when all defendants have been served.
In a video posted to X Wednesday night, Mayes said the defendants charged were "unwilling to accept Arizona's election was free and fair" and allegedly schemed to "prevent the lawful transfer of the presidency."
"We're here because justice demands an answer to the efforts of the defendants and other unindicted co-conspirators allegedly took to undermine the will of Arizona's voters during the 2020 presidential election," Mayes said.
"Arizona's election was free and fair. The people of Arizona elected President Biden. Unwilling to accept this fact, the defendants charged by the state grand jury, allegedly schemed to prevent the lawful transfer of the presidency," she continued.
"Whatever their reasoning was, the plot to violate the law must be answered for and I was elected to uphold the law of this state," Mayes added. "The scheme, had it succeeded, would have deprived Arizona's voters of their right to have their votes counted for their chosen president."
In filing the indictment, Arizona becomes the fourth state to file criminal charges against the so-called "fake electors" who allegedly announced they were ready to pledge electoral votes to Donald Trump in their respective states during the 2020 election, despite Joe Biden winning those states.
The 11 current named defendants in the indictment whose names are visible on the court document are Kelli Ward, Tyler Bower, Nancy Cottle, Jacob Hoffman, Anthony Kern, James Lamon, Robert Montgomery, Samuel Moorhead, Lorraine Pellegrino, Gregory Safsten and Michael Ward.
According to the indictment, 11 Republicans met in Arizona in December 2020, including then-Arizona Republican Party Chair Kelli Ward, two Republican lawmakers, and a top official with the Republican National Committee, and signed documents that falsely claimed they were Arizona's rightful electors.
"Today, Arizona's 11 Republican presidential electors met to cast their votes for President Donald Trump and Vice President Mike Pence," the Arizona GOP tweeted in December 2020. "With ongoing legal challenges to the 2020 presidential election still being heard in the courts across the country holding hearings on election fraud and voting irregularities, it is imperative that the proper elections are counted by Congress."
All 11 alleged fake electors were also part of a legal challenge in the state that sought to challenge the election results based on allegations of voter fraud. The case was thrown out by a judge who called their claims of election fraud "sorely wanting of relevant or reliable evidence."
Rusty Bowers, then the Arizona House speaker, told the House Jan. 6 committee that following the election he received calls from Trump and attorney Rudy Giuliani claiming that there was election fraud in the state.
"I was insistent that I had to have proof, real proof, judicial level," Bowers testified. "That's the kind of proof I'm talking about. And the president said, 'Rudy, give the man what he wants.'"
Asked by ABC News' Jonathan Karl if Giuliani ever provided that evidence, Bowers said, "He never gave us anything. No names, no data, nothing."
Bowers also said that Giuliani and attorney Jenna Ellis flew to Phoenix and met with him and other Arizona lawmakers, and asked them to convene the legislature to investigate their unsubstantiated claims of voter fraud.
In December, Nevada Attorney General Aaron Ford announced felony charges against six alleged "fake electors" in that state. In Michigan, Attorney General Dana Nessel similarly charged 16 "alternate electors" in July for conspiracy to commit forgery, among other charges. And in Georgia, three such "fake electors" were among the 18 co-defendants charged, along with Trump, in a sweeping racketeering indictment for alleged efforts to overturn the results of the 2020 election in that state.
All defendants charged in all three probes have pleaded not guilty, with Georgia defendants Jenna Ellis, Kenneth Chesebro, Sidney Powell and Scott Hall subsequently taking plea deals in exchange for agreeing to testify in that case. In Michigan, the attorney general dropped all charges against defendant Jim Renner in exchange for his cooperation.
ABC News previously reported that Trump's Georgia co-defendant Michael Roman was subpoenaed as part of the Arizona probe and that Chesebro sat for a voluntary interview with Arizona investigators in recent weeks.
(NEW YORK) -- A bill aimed at furthering restrictions on discussions of "gender identity or sexual orientation" in public schools is progressing in the Alabama legislature, passing the state House on Tuesday.
Current law states that classrooms in kindergarten through the fifth grade "shall not engage in classroom discussion or provide classroom instruction regarding sexual orientation or gender identity in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards."
The bill would expand this restriction to eighth grade and prohibit flags symbolizing sexual orientations or gender identities in K-12 schools.
Gender identity, as defined by the Centers for Disease Control and Prevention, is "an individual’s sense of their self as man, woman, transgender, or something else."
Sexual orientation refers to "a person’s sexual and emotional attraction to another person and the behavior and/or social affiliation that may result from this attraction," according to the CDC.
State Rep. Mack Butler, the bill’s sponsor, said in a March hearing the bill is a response to "some indoctrination going on." He said the bill seeks to "purify the schools."
"It is a component of Marxism where we're -- you know -- destroying the family and teaching some of these things," said Butler. "Let it happen somewhere else other than our schools."
Critics argue that these restrictions, dubbed "Don’t Say Gay," could broadly restrict conversation about gender and sexuality --including both non-LGBTQ and LGBTQ identities.
They also argue that the bill violates students’ and teachers’ First Amendment rights, and could silence LGBTQ students and teachers in classrooms.
"If HB130 passes, it will rid classrooms and students in the state of Alabama of inclusive discussion that is essential at all stages of life," the ACLU of Alabama said in a statement against the legislation.
A similar law in Florida sparked controversy for its restrictions and inspired almost identical policies across the country. However, a settlement was reached in a lawsuit against the legislation.
A judge decided that students and educators can discuss LGBTQ topics or write about such topics in their work, as long as those conversations are not part of formal curriculum, with both sides of the debate claiming the decision as a win.
Speaker of the House Mike Johnson (R-LA) pauses as he speaks during a press conference at Columbia University on April 24, 2024 in New York City. (Michael M. Santiago/Getty Images)
(NEW YORK) -- During a visit to Columbia University on Wednesday, Speaker Mike Johnson joined his New York House Republican colleagues in calling on the school's president, Minouche Shafik, to resign unless she can improve what he called her failure to handle the anti-Israel protests on campus.
In a news conference on the university's campus, Johnson said Shafik should step down "if she can't immediately bring order to this chaos."
"As speaker of the House, I am committing today that the Congress will not be silent as Jewish students are expected to run for their lives and stay home from their classes -- fighting in fear," Johnson said.
The scene at the news conference was rowdy itself, as Johnson and other House Republicans got booed and heckled throughout -- sometimes nearly drowned out by shouting from the crowd.
"The cherished traditions of this university are being overtaken right now by radical and extreme ideologies. They place a target on the backs of Jewish students in the United States and here on this campus," Johnson said.
He said he planned to speak to President Joe Biden, whose administration has also condemned any antisemitic demonstrations, once he departed the campus to "share with him what we have seen with our own two eyes and demand that he take action."
"There is executive authority that would be appropriate," Johnson said.
"If this is not contained quickly, and if these threats and intimidation are not stopped -- there is an appropriate time for the National Guard. We have to bring order to these campuses. We cannot allow this to happen around the country. We are better than this. We are better than this. And I will ask the president to do that, and I will tell him the very same thing," Johnson said.
Last week, more than 100 pro-Palestinian protesters were arrested at Columbia as they called for the divestment of college and university funds from Israeli military operations.
Other participants in Columbia's ongoing, encampment-style protests were suspended and removed from campus.
The demonstrations, which began on April 17, followed Shafik's testimony to the House Committee on Education and the Workforce about antisemitism on college campuses. New York Rep. Elise Stefanik, a leading conservative, called for Shafik's resignation days later, writing in a post on X that Columbia "failed to enforce their own campus rules and protect Jewish students on campus."
Testifying before the congressional committee last week, Shafik said she has taken actions to combat antisemitism on campus since a terror attack on Oct. 7 sparked Israel's war with Hamas, including enhancing Columbia's reporting channels, hiring staff to investigate complaints and forming an antisemitism task force.
"Safety is paramount and we would do whatever is necessary to ensure the safety of our campus," Shafik said. "We must uphold freedom of speech because it's essential to our academic mission, but we cannot and shouldn't tolerate abuse of this privilege to harass and discriminate."
The presidents of Harvard University and the University of Pennsylvania resigned from their positions after testifying about campus culture and antisemitism before the House Committee on Education and the Workforce earlier this year.
Shafik, who met with Johnson on Wednesday, and the rest of the university administration are committed to ensuring the safety of the campus community and ending the encampment, Columbia spokesman Ben Chang said in a briefing with reporters later on Wednesday.
The student encampment on campus has raised serious safety concerns, Chang said.
The university and some of its representatives have been in dialogue with students on ending the encampment and Chang said the university believes those discussions will ultimately be "successful."
Following the arrests at Columbia, student protests have appeared elsewhere in the U.S., including at Yale University, New York University, Harvard University, the Massachusetts Institute of Technology, Tufts University and across the country -- at the University of Texas at Austin and the University of Southern California.
Criticism of Israel in the U.S. and internationally has been mounting as a humanitarian crisis unfolds in Gaza amid Israel's attempt to destroy Hamas terrorists.
Johnson, who also met with Jewish students at Columbia, said "their bravery is inspiring, much more inspiring than some of the activities we're seeing here. They should never have to confront such hate on an American college campus instead of such a revered institution."
His visit comes as the Israel-Hamas war continues to be highly politicized. Johnson earned bipartisan praise for his reversal on a foreign aid package that Biden signed into law Wednesday that included roughly $26 billion for Israel as its war with Hamas rages on in Gaza.
Hamas is thought to still be holding dozens of hostages taken in its October terror attack, which killed 1,200.
More than 34,000 people have died in Gaza since the war began, according to the Hamas-run health ministry there.
The protests on U.S. campuses have been largely peaceful, according to school administrators, with some, including New York police, as well as protesters blaming individuals not affiliated with the schools for instances of violence and offensive or antisemitic rhetoric.
(WASHINGTON) -- In the summer of 2019, only hours after an Iranian rocket accidentally exploded at one of Iran's own launch sites, senior U.S. officials met with then-president Donald Trump and shared a sharply detailed, highly classified image of the blast's catastrophic aftermath.
The image was captured by a U.S. satellite whose true capabilities were a tightly guarded secret. But Trump wanted to share it with the world -- he thought it was especially "sexy" because it was marked classified, one of his former advisers later recalled to special counsel Jack Smith's investigators, according to sources familiar with the former adviser's statements.
Worried that the image becoming public could hurt national security efforts, intelligence officials urged Trump to hold off until more knowledgeable experts were able to weigh in, the sources said. But less than an hour later, while at least one of those intelligence officials was in another building scrambling to get more information, Trump posted the image to Twitter.
"It was so upsetting, and people were really angry," one of Trump's former advisers told investigators, sources said.
The public pushback to Trump's post was immediate: Intelligence experts and even international media questioned whether U.S. interests had just been endangered by what Trump did. When pressed about it at the White House, Trump insisted he hadn't released classified information because he had an "absolute right to do" it.
While much of Smith's sprawling classified documents investigation has focused on how Trump handled classified materials after leaving the White House, a wide array of former aides and advisers -- including personal valets, press assistants, senior national security officials, and even Trump's briefers from the Office of the Director of National Intelligence -- have provided Smith with firsthand accounts about how Trump allegedly handled and used intelligence while still in office.
Those firsthand accounts, as relayed to ABC News by sources, underscore what could be at stake as Trump seeks a return to the White House, and they are coming to light as he is likely on the verge of receiving formal government briefings again as the Republican Party's official nominee in the 2024 presidential election.
In interviews with investigators last year, former aides and national security officials who were close to Trump in the White House described a president who could erupt in anger when presented with intelligence he didn't want to hear, who routinely reviewed and stored classified information in unsecured locations, and who had what some former officials described as "a cavalier attitude" toward the damage that could be done by its disclosure, according to sources.
A book published on the CIA's website, describing the intelligence community's experience with Trump during his transition to the presidency and then his time in the White House, said that while Trump was "suspicious and insecure about the intelligence process," he still "engaged with it," even as he publicly attacked it.
The book also noted that Trump was "unique" among presidents in that, before taking over the White House, "he had no experience handling classified information or working with military, diplomatic, or intelligence programs and operations."
'Hand in the woodchipper'
As former officials described meetings with Trump to Smith's team, Trump only wanted to listen to new information about certain parts of the world, according to sources.
In particular, the sources said, Smith's team was told that Trump was uninterested in hearing about Latin America or countries that he similarly thought were not essential. The sources said witnesses confirmed previous public reporting that Trump referred to such places as "s---hole countries" and suggested the United States should stop welcoming migrants from them.
Today, on the presidential campaign trail, Trump continues to rail against migrants from Latin American countries and others who reached the southern border through parts of Latin America.
Sources said former officials also told Smith's team that Trump refused to listen to certain briefings related to Russia, saying Trump "absolutely" didn't want to hear about Russian influence operations, and he couldn't be convinced that Russian troops were already operating inside Ukraine -- even as his own administration was publicly calling out their routine incursions into the country's eastern region to support Russian-backed separatists.
On the campaign trail, Trump recently insisted that he would have prevented Russia's all-out invasion of Ukraine in February 2022 if he were still commander-in-chief.
Family of man killed when Chicago police fired 96 times during traffic stop file wrongful death suit According to the sources, one of Trump's former advisers joked with Smith's team last year that bringing up Russia during a meeting with Trump was like "stick[ing] my hand in the woodchipper again."
In its most recent worldwide assessment, the Office of the Director of National Intelligence concluded that Russia continues to pose a significant threat to U.S. national security and, more broadly, to "rules-based international order."
As he has done in public, Trump often privately disagreed with conclusions reached by the U.S. intelligence community, especially related to Russia and Ukraine, choosing instead to rely on unverified claims from other people, sources said that Smith's investigators were told.
And sources said former aides confirmed to Smith's investigators previous media reports that Trump almost never read the President's Daily Brief, a report summarizing classified intelligence and analysis on the day's most pressing issues.
Trump preferred to receive such summaries verbally, according to sources.
Reached for comment, a spokesperson for Trump referred ABC News to a statement by the former president in which he called the classified documents case a "two-tiered system of justice and unconstitutional selective prosecution."
A spokesperson for the special counsel declined to comment to ABC News.
'Like a junk drawer'
Throughout Trump's presidency, many of those who interacted with Trump every day saw him bring classified documents to unsecured locations, raising concerns among some of them, several witnesses told Smith's team, the sources said.
As early as 2018, the Office of the Staff Secretary, which manages the documents flowing to the Oval Office, began asking personnel in the White House about documents that had gone missing, including some classified ones, one of Trump's personal valets told investigators, sources said.
And at one point, sources said the valet recalled, he even warned the staff secretary's office that classified documents were being taken out of secure locations in white boxes and ending up in all sorts of potentially concerning places.
According to the sources, several witnesses told Smith's team that they routinely saw classified documents or classified folders in Trump's White House residence, and that Trump would sometimes store as many as 30 boxes in his bedroom, which one valet said Trump treated "like a junk drawer."
While it's not clear how many boxes at any given time in Trump's residence contained documents with classification markings, witnesses said they frequently observed boxes and papers traveling from the Oval Office to his residence that contained classified documents, according to sources familiar with what witnesses have told the special counsel.
"I did not think that he respected what classified information was," sources quoted one former official as telling investigators.
In Trump's first year in office, several media reports described how Trump had allegedly exposed sensitive information: In February 2017, he and Japan's then-prime minister reportedly discussed a response to North Korea's latest ballistic missile test over dinner in a crowded dining room at Trump's Mar-a-Lago estate in Florida, and then two months later Trump told the Philippines president on a phone call that the U.S. military had positioned two nuclear submarines near North Korea.
The following month, Trump reportedly shared highly-sensitive intelligence about ISIS with Russian officials visiting the White House.
Some witnesses who spoke with Smith's team, however, said they were not concerned by what they saw while Trump was president.
Robert O'Brien, who served as Trump's national security adviser at the end of his presidency, told Smith's team that Trump "consistently" handled classified information appropriately, sources said.
'The Hunger Games'
As some former officials described it to Smith's investigators, discussing the latest intelligence with Trump could be an unpredictable task, sources said.
At times he would become so upset over what senior national security or intelligence officials were telling him that it would derail entire meetings, according to sources familiar with what witnesses told investigators.
In one series of meetings, ahead of an international summit in Europe, Trump met with then-CIA director Gina Haspel, then-Treasury Secretary Steve Mnuchin and others to help plan for the summit. But when Trump was told positive things about one of the people he would likely meet at the summit, Trump "lost it," insisting that he didn't care, then he "lost it" again when he was being updated on a tax-related negotiation involving Mnuchin, sources said.
The sources said Trump then pitted one of his top aides against Mnuchin in front of everyone else, escalating the tension so much that it reminded one of those present of the movie "The Hunger Games," with its dystopian death match broadcast live on national TV.
The book published on the CIA's website quoted former President Barack Obama's director of national intelligence, James Clapper, as saying that Trump was prone to "fly off on tangents; there might be eight or nine minutes of real intelligence in an hour's discussion."
And while the intelligence community worked with evidence, Trump "was 'fact-free' -- evidence doesn't cut it with him," according to Clapper.
Still, Clapper said Trump could be "courteous, affable, and complimentary" when he engaged with or referred to members of the U.S. intelligence community.
'People were really angry'
Sources said that, as one former official described it to Smith's team, Trump's posting of the image from Iran's failed rocket launch revealed how the then-president "just didn't care" about protecting classified information.
In 2021, Yahoo! News described how, during his briefing with intelligence officials, Trump thought the image "was very neat, and asked if he could keep it," which made some of the intelligence officials nervous, according to an administration official. But that news report didn't offer the same detailed account provided to Smith by witnesses last year.
Sources told ABC News that while speaking with Smith's team, former aides and officials said Trump was specifically warned at the time that while he had the authority to declassify the image of Iran's botched launch, there were also potential risks associated with doing that.
Trump initially agreed to wait while intelligence officials were then consulted, sources said, but the intelligence officials apparently took too long; about an hour later, Trump posted the image online.
"I was so appalled," one former national security official told Smith's team, according to the sources.
The former official noted that Trump may have believed it wasn't a big deal -- but only an expert would know if releasing such classified information could reveal "how we got it" it and whether it could "compromise our ability to get [it] in the future," the former official explained to Smith's team, according to the sources.
(WASHINGTON) -- It was maybe the most memorable moment so far in Donald Trump's case for "absolute presidential immunity" -- and it could come up again at the U.S. Supreme Court in historic arguments on Thursday.
The arresting question: Could a commander in chief order SEAL Team 6 to assassinate a political rival and not face criminal prosecution?
His lawyer suggested he could, under certain circumstances.
The exchange took place at the U.S. Court of Appeals in Washington in January, where Trump took his immunity fight after the theory was flatly rejected by U.S. District Judge Tanya Chutkan, who is overseeing his federal election subversion case.
"I asked you a yes-or-no question," Judge Florence Pan said during the arguments. "Could a president who ordered SEAL Team 6 to assassinate a political rival [and] who was not impeached, would he be subject to criminal prosecution?"
"If he were impeached and convicted first," Trump attorney John Sauer responded.
"So your answer is no," Pan said.
Sauer, attempting to avoid a straight yes or no, said his answer was a "qualified yes" as he maintained a House impeachment and Senate conviction needed to occur before criminal liability can come into play. He also predicted that if a president did order an assassination, he would be "speedily" impeached.
Special counsel attorney James Pearce, arguing for the government, called such a theory "frightening."
"I mean, what kind of world are we living in?" Pearce argued. "If, as I understood my friend on the other side to say here, a president orders SEAL team to assassinate a political rival and resigned, for example before an impeachment, it's not a criminal act ... I think that is extraordinarily frightening future."
The three-judge panel went on to strike down Trump's immunity argument in a unanimous decision, stating they could not accept his assertion that a president has "unbounded authority to commit crimes." Such a stance, they warned, would "collapse our system of separated powers."
The former president appealed that ruling to the U.S. Supreme Court.
The fallout from Sauer's response was swift, and continues to feature predominately in amicus briefs filed to the high court as it weighs the case. When justices hear arguments in the case on Thursday, Sauer will again be representing Trump.
In a filing in support of Trump, a trio of former military leaders said regardless of the question of immunity, a president has no authority to order the military to kill a political rival and even if he did, the military would not carry it out.
But other national security experts, in a brief in support of special counsel Jack Smith, were less certain subordinates would refuse a presidential order.
"The rule of law will be threatened unless federal courts have protection against intimidation by a criminal president in command of Seal Team 6 or any other unit of the U.S. Armed Forces," the brief read.
The immunity question presents an unprecedented constitutional quandary for the Supreme Court. Trump is the first ever president -- current or former -- to face criminal charges.
The Supreme Court's decision will determine whether Trump stands trial before the November election on four felony counts, including conspiracy to defraud the U.S. and conspiracy against rights, for his efforts to overturn his 2020 election loss. Trump has denied any wrongdoing and pleaded not guilty to the counts.
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