LISTEN: Kagan grills Trump attorney on what qualifies a former president for immunity

Supreme Court Justice Elena Kagan on Thursday questioned attorney D. John Sauer about former President Donald Trump’s alleged actions related to attempts to overthrow the 2020 election, as the nation’s highest court considers whether he should have immunity from prosecution for his role. Trump has argued that acts performed while he was president make him immune from prosecution.

Kagan and Sauer went through the various charges against Trump, as well as a number of hypotheticals (like staging a coup), and discussed whether those could be considered unofficial or official acts by a president.

In the federal election interference case, Trump is accused of reaching out to public officials as part of efforts to organize alternate slates of electors.

“Does it strike you as odd that your understanding of immunity goes way beyond what OLC (Office of Legal Counsel) has ever claimed for a former president?” Kagan asked. Sauer answered that Trump's legal team felt that past opinions supported its position.

“The Framers did not put an immunity clause into the Constitution. They knew how to — there were immunity clauses in some state Constitutions,” Kagan said.

“And you know, not so surprising, they were reacting against a monarchy who claimed to be above 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?” she added.

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