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Before the Supreme Court heard oral arguments in former President Donald Trump’s immunity case, Mark Meadows tried to get his foot in the door.
The high court had agreed to decide whether former presidents can enjoy legal immunity from criminal charges for actions taken during their presidency.
Trump hoped that a decision would scuttle the indictment against him over his attempts to overturn the 2020 presidential election — a result that now seems unlikely, even though the trial will likely be delayed until after the 2024 presidential election.
Meadows, a former Republican member of Congress, served as Trump’s chief of staff in the final year of his White House administration. He was criminally charged alongside Trump in a separate case, brought by the Fulton County District Attorney’s Office in Atlanta, over a plot to erase now-President Joe Biden’s electoral victory in Georgia.
Judges have denied Meadows’s attempts to move his criminal case to federal court, which could be more favorable legal territory. His lawyers have leaned on the Supremacy Clause of the Constitution, which protects the federal government from the meddling of state-level officials.
Despite the lower-court losses, Meadows nonetheless asked the Supreme Court to recognize that the president’s subordinates should have immunity from criminal prosecution — in both federal or state-level cases — because they were just doing their job by following the president’s instructions.
His lawyers said the court should recognize immunity for Meadows even if Trump himself doesn’t have immunity.
“If the Court addresses or resolves the question whether a president may act in a non-official capacity while in office and thereby lose the protection of presidential immunity, the Court should make clear that its ruling does not reach the conduct of subordinate federal officials who, like Meadows, generally assisted the former President as part of their federal roles,” his lawyers wrote in an amicus brief to the Supreme Court.
A Trump appointee had the opposite approach
In Thursday’s hearings, the Supreme Court didn’t directly take up the issue.
But Justice Neil Gorsuch — a Trump appointee to the court — seemed to draw the opposite conclusion.
In a series of questions to Trump’s lawyer, John Sauer, Gorsuch indicated he believed that subordinates’ liability was a helpful deterrent that would thwart presidents from committing crimes.
“If the president gives an unlawful order, call in the troops, all the examples we’ve heard, every subordinate beneath him faces criminal prosecution, don’t they?” Gorsuch asked Sauer.
Sauer, citing historical arguments from the Constitutional Convention, agreed that “co-agitators” of the president “could be prosecuted” as long as the conduct fit a criminal statute.
“Oh, we’ve got lots of statutes,” Gorsuch replied. “The criminal law books are replete. But, I mean, do you agree, is that one check that’s available?”
As the thinking goes: Because the president’s employees don’t want to go to jail, it’s hard for presidents to commit crimes, because their subordinates would refuse to do their unlawful bidding.
“The idea is, generally, if a president is doing something criminal, they’re doing it through some kind of principal-agent relationship, they’re not doing the deed themselves,” Anthony Michael Kreis, a Constitutional law professor at Georgia State University, told Business Insider. “And so probably more often than not, there’s going to be some kind of conspiracy-based crime.”
George Terwilliger, an attorney representing Meadows, told Business Insider that Gorsuch was speaking about “orders from the president that could be discerned as unlawful on their face,” which he said wasn’t relevant to the amicus brief.
He pointed to another exchange from the hearing between Justice Department lawyer Michael Dreeben and a different Trump appointee, Justice Amy Coney Barrett. Barrett said a potential form of immunity could protect former presidents from state prosecutions rather than leaving too much discretion at the hands of the Justice Department.
“A lot of the protections that you’re talking about are internal protections that the federal government has, protections in the Department of Justice, which obviously are not applicable at the many, many, many, many state and local jurisdictions across the country,” Barrett said.
The issue came up a few other times in Thursday’s hearing — all in instances where the justices seemed unsympathetic to the idea that government employees would have immunity for breaking the law.
They discussed a hypothetical scenario where a president ordered the military to assassinate a rival politician. Sauer said the president could be immune from criminal prosecution in such cases — a scenario the justices seemed uncomfortable with.
Justice Samuel Alito, another conservative appointee, said that SEAL Team Six would be “bound” by military rules “not to obey unlawful orders.”
“One might argue that it is not plausibly legal to order SEAL Team Six — and I don’t want to slander SEAL Team Six because, seriously, they are honorable,” Alito said.
Fulton County prosecutors have alleged that Trump, Meadows, and more than a dozen other political allies played parts in a far-reaching conspiracy to convince Georgia state officials to hand Trump a false victory in the 2020 election.
The indictment specifically alleges that Meadows met with Georgia state and Republican party officials and Trump campaign lawyers while planning to stop the certification of Biden’s win.
On one day, Meadows even traveled to Georgia to observe an audit even though the process was closed to the public, according to the indictment. A few days later, he texted an election official offering the assistance of the Trump campaign, the indictment says.
In the US Constitution, the president has no role in certifying electoral votes. And by appearing to act on behalf of the Trump campaign — rather than the White House — Meadows appeared to be acting in a private capacity rather than in his role as chief-of-staff, Kreis said.
Kreis told Business Insider that Meadows’s request for “trickle-down immunity” was inconsistent with precedent, and with past cases where employees in the Richard Nixon and Ronald Reagan administrations have been criminally convicted for actions they took while in office.
“I think as a society generally, too, we don’t find it consistent with the rule of law to just say, ‘I was just following orders, I didn’t know,'” he said. “That’s just not consistent, again with the rule of law, but it’s also not consistent with past practices in history.”
