As Donald Trump battles for his second term in the White House, he’s desperate to shake off lingering indictments alleging he committed crimes during his last stint in the Oval Office.
Trump’s attorneys have fashioned a tidy solution. Inciting an insurrection, mishandling classified documents, and interfering with an election don’t matter because, surely, the president is “immune” from prosecution for crimes committed while running the country even after he leaves office.
Right?
As the Supreme Court considers the question — and could rule on it any day now — some Republicans on Capitol Hill aren’t so sure.
Several GOP lawmakers fear Trump’s claim to presidential immunity stretches the Constitution beyond its breaking point.
While Rep. Tom Cole of Oklahoma made clear he trusts the Supreme Court to make the “right decision,” the Appropriations chairman suggested he’s hardly all in on Trump’s legal argument.
“There’s an imbalance here,” Cole told NOTUS. “I don’t think there’s absolute immunity for any president, but we clearly can’t have a president sued every time they turn around.”
Rep. Dan Newhouse of Washington — one of the two remaining House Republicans who voted to impeach Trump for his actions on Jan. 6 — told NOTUS there has to be a “certain amount of immunity for the president to do their job while they’re in office.”
After the president leaves the White House, however, immunity becomes a different question.
In that case, “there may be some instances where it’s fitting,” Newhouse continued. “But it’s a nuanced question.”
There isn’t much nuance in Trump’s legal argument, though. His attorneys contend that a president has “absolute” immunity for official acts as commander in chief, and, importantly, that the immunity extends once the president leaves office.
For GOP lawmakers who seemingly never tire of asking Trump just how high they should jump to satisfy him, even quiet skepticism of the former president’s constitutional reasoning is noteworthy. But Trump’s motive for pursuing absolute immunity — enabling his run for president — is one many Republicans embrace.
For those GOP lawmakers, the end justifies the means.
If the court does tinker with presidential immunity, the ruling could delay the Justice Department’s Jan. 6 and classified documents prosecutions, as well as the Georgia election interference case, past the November election.
Early reads of the Court’s posture suggest it is open to some extension of presidential immunity, though a majority is unlikely to grant blanket protection for, say, assassinating a political rival. (Trump’s team has argued that immunity should apply in such cases, unless the president is impeached in the House and convicted in the Senate.)
There remains, however, some uneasiness around Trump’s reasoning, even in the upper echelons of GOP leadership. Speaker Mike Johnson — a former constitutional attorney — declined to fully endorse the immunity argument in a May interview with Politico.
While he supports immunity while a president is in office, Johnson wouldn’t weigh in on “absolute” immunity, saying he hadn’t “wrestled” with the question.
“It’s common sense that you can’t have the president sitting in the Oval Office worried about whether some lawyer or some local DA somewhere is going to go after him,” Johnson said. “It’d be a serious problem.”
But plenty of MAGA disciples on Capitol Hill have heeded Trump’s “absolute immunity” rallying cry, if even a bit less than some of his other legal pursuits.
Chair of the Senate GOP fundraising arm, Sen. Steve Daines of Montana, filed a “friend of the court” brief in March, arguing that Congress — not the courts — should hold presidents accountable for crimes and that “each subsequent criminal prosecution of a former president will be easier than the first.”
Asked if he supports Trump’s argument, Judiciary Chairman Jim Jordan offered a refrain familiar to many loyal MAGA foot soldiers: “Of course.”
“I thought when the president’s lawyers made their case, made the argument, they did a great job,” Jordan, who holds a law degree, said.
Rep. Troy Nehls of Texas had a similar, if more bombastic, take.
“There’s a good case. There’s some justification for immunity because, you know, presidents have to make some very difficult decisions,” Nehls told NOTUS. “Some of them are better at it than others, like Trump versus what we have with Joe Biden.”
But many GOP members skirted the question — from former Trump adviser Max Miller of Ohio to vulnerable New York moderate Marc Molinaro — preferring to let the Supreme Court take full responsibility for its decision, whatever it is.
At least one Democrat is trying to play the impending decision cool. Biden ally Sen. Chris Coons told “Fox News Sunday” that the president will “accept” the Supreme Court ruling, seizing a chance to contrast GOP rhetoric about the “rigged” justice system with Democratic messaging around the rule of law.
Even if Biden is prepared to stomach the ruling, other Democrats are bracing for a fight.
“It’s shameful this is even being debated,” progressive Rep. Robert Garcia told NOTUS. “I think that there’s no scenario where the president should get immunity for doing crimes.”
Rep. Jared Huffman of California, who has led the charge against Project 2025, said the looming decision is causing “angst” among Democrats.
“All hell will break loose if they issue that rule,” Huffman said, noting that Democrats are watching the decision intently to prepare a response.
While Republicans aren’t exactly doomsday prepping, several weren’t entirely comfortable with the precedent absolute immunity could set down the line.
Even Rep. Keith Self of Texas — who signed the amicus brief in support of Trump’s case — acknowledged some discomfort.
“Our founders meant us to serve for a period of time,” Self said. “And then go home and be citizens again.”
—
Riley Rogerson is a reporter at NOTUS.