Amid her questioning, Jackson asks, “Why …. [would] the president … not be required to follow the law when he is performing his official acts? Everyone else — there are lots of folks who have very high-powered jobs and they do so against the backdrop of potential criminal prosecution.”

She further posited that perhaps presidents don’t commit presidential acts because they’re afraid of prosecution. That may not be case, she said, “once we say ‘no criminal liability. Mr. President, you can do what you want.'”

In response, Sauer argued that presidents haven’t been under credible threat of criminal prosecution since the founding of the U.S.

“The regime you’ve described is the one we’ve operated under for over 240 years,” Sauer said.

Jackson told Sauer that he seems to be “worried about the president being chilled.”

She then argued that in reality a “really significant opposite problem” would emerge.

“If the president wasn’t chilled, 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,” she said.

“You’ve argued that the impeachment clause suggests or requires impeachment to be a gateway to criminal prosecution, right?” Barrett asked.

Sauer replied, “Yes, I think that’s the plain meaning of that second phrase in the clause.”

“OK, so there are many other people who are subject to impeachment, including the nine sitting on this bench, and I don’t think anyone has ever suggested that impeachment would have to be the gateway to criminal prosecution for any of the many other officers subject to impeachment,” Barrett pressed. “So why is the president different when the impeachment clause doesn’t say so?”

Sauer replied that then-U.S. Solicitor General Robert Bork in 1973 argued that “the sequence is mandatory only as to the president.”

Asked by Justice Neil Gorsuch whether a president can pardon himself, Sauer responded, “Perhaps if he feels he has to, he’ll pardon himself every every four years from now on.”

Kagan repeated the hypothetical situation of a president “who ordered the military to stage a coup — he’s no longer president, he wasn’t impeached, he couldn’t be impeached, but ordered the military to stage a coup, and you’re saying that’s an official act?” Kagan asked.

Sauer replied that “would depend on the circumstances whether it was an official act.”

Under questioning by Justice Elena Kagan, Sauer said two actions taken by Trump while in office were official, and thus he was ineligible to be criminally prosecuted for them.

First, Kagan asked about the “defendant [calling] the chairwoman of the Republican National Committee” and asking her “to gather electors in targeted states.”

Then, she said, “The defendant asked the Arizona House speaker to call the Legislature into session to hold a hearing based on their claims of election fraud.”

On the second point, Sauer said it was “absolutely an official act for the president to communicate with state officials.”

“When you say that the official acts should be expunged from the indictment, that in itself would not achieve very much unless evidence of those official acts were precluded at trial. So is that what you’re saying?” Alito asked Sauer. “That the prosecution should not be permitted at trial to prove the official acts as part of the conspiracies that are alleged?”

Sauer confirmed that was the premise of his argument.

“Absolutely, and we think that’s just the clear implications of Brewster and Johnson and their discussion. It’s very, very analogous context,” Sauer said.

Oral arguments have repeatedly referred to Blassingame, a decision from the U.S. Court of Appeals for the District of Columbia Circuit that involved numerous lawsuits against Trump in his personal capacity. The decision, which came out in December, denied Trump’s claims of presidential immunity for now.

“The sole issue before us is whether President Trump has demonstrated an entitlement to official-act immunity for his actions leading up to and on January 6 as alleged in the complaints. We answer no, at least at this stage of the proceedings,” a panel of judges ruled.

The case is named after James Blassingame, a Capitol Police officer who was injured in the Jan. 6, 2021, riot.

During her questions, Justice Amy Coney Barrett asked Sauer to “agree or disagree with the characterization of these acts as private.” He agreed that all were private acts:

• 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.
• Petitioner conspired with another private attorney who caused the filing in court of a verification signed by petitioner that contain false allegations to support a challenge.
• Three private actors — two attorneys, including those mentioned above, and a political consultant — helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.

“What is plausible about the president insisting and creating a fraudulent slate of electoral candidates. … Is that plausible that that would be within his right to do?” Sotomayor asked.

Sauer replied “absolutely,” saying there was historical precedent in President Ulysses S. Grant sending federal troops to Louisiana and Mississippi in 1876 to make sure that the Republican electors got certified.

“The notion that it’s completely implausible, it just can’t be supported based on the face of this indictment, or even knowing that the slate is fake … that they weren’t actually elected, that they weren’t certified by the state.”

Sauer then disputed the characterization of the word “fraudulent” electors in the indictment.

“On the face of the indictment, it appears that there was no deceit about who had emerged from the relevant state conventions, and this was being done as an alternative basis,” he said.

Justice Samuel Alito posed a question to Sauer: “Suppose the rule were that a former president cannot be prosecuted for official acts unless no plausible justification could be imagined for what the president did. … Would that be sufficient or if it is insufficient?”

In response, Sauer said he believed that would be insufficient, adding “that might be a much better rule than what emerged in the lower courts.”

Jackson posed the question to Sauer that if presidents can’t be prosecuted, why was former President Richard Nixon pardoned?

“What was up with the pardon for President Nixon? I think that if everybody thought that presidents couldn’t be prosecuted, then what was that about?” she said.

Sauer replied, “Well, he was under investigation for both private and public conduct at the time.”

Chief Justice John Roberts asked a hypothetical question about whether a president could be prosecuted for appointing someone ambassador after being paid a $1 million bribe.

One million dollars is exactly the amount of money that Gordon Sondland, who was at the center of Trump’s first impeachment trial, gave to Trump’s inauguration fund before he was named ambassador to the European Union.

Presidents of both parties have named donors to ambassadorships. The money that Sondland, a wealthy hotelier, donated went to Trump’s inauguration fund, not Trump directly, so it wasn’t a personal bribe.

“Do you know what a quid pro quo is?” Rep. Jim Jordan asked Sondland during a hearing in November 2019. “I do,” Sondland responded.

NBC News’ Shaquille Brewster reports from outside the Supreme Court where protesters are demonstrating as the court is set to hear arguments over former President Trump’s claim of presidential immunity in the election interference case against him.

Sotomayor pointed out that the founders had discussed whether to grant immunity to the president, adding that they had state constitutions that granted some criminal immunity to governors, but yet they didn’t take it up.

Instead, she said, they passed an impeachment clause that says you can’t remove the president from office except through a trial in the Senate and can impose criminal liability after.

As she questioned Sauer, Sotomayor told him, “I am having a hard time thinking that creating false documents, that submitting false documents, that ordering the assassination of a rival, that accepting a bribe and countless other laws that could be broken for personal gain, that anyone would say that it would be reasonable for a president or any public official to do that.”

In a question to Sauer, Justice Sonia Sotomayor posed a hypothetical: If the president ordered the military to assassinate a rival he views as corrupt, “is that within his official act for which he can get immunity?”

Sauer answered that, “it would depend,” but “we can see that could well be an official act.”

Sauer argues in his opening that if a president can be charged, put on trial and imprisoned for “controversial decisions” upon leaving office, “that looming threat will distort the president’s decision-making precisely when bold and fearless action is most needed.”

“Could President George W. Bush be sent to prison for obstructing an official proceeding or allegedly lying to Congress to induce war in Iraq?” he asked. “Could President Obama be charged with murder for killing U.S. citizens abroad by drone strike? Could President Biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policies?”

Justice Clarence Thomas asks the first question, to Sauer. He asks Sauer to detail where presidential immunity is founded in law.

Oral arguments in front of the justices have begun.

Today’s arguments come after several Trump aides and allies were indicted yesterday as part of an Arizona investigation into alleged efforts to overturn Biden’s 2020 win in the swing state.

The former president was also described as an “unindicted coconspirator” in the indictment from the Arizona state grand jury.

Trump was also labeled an uncharged co-conspirator in the 2020 “false electors” scheme in Michigan, according to a state investigator’s testimony, which also occurred on Wednesday.

In a series of posts to his Truth Social platform this morning, Trump again asserted that he has presidential immunity from criminal charges over his efforts to overturn the 2020 election results.

“Without Presidential Immunity, the Presidency will lose its power and prestige, and under some Leaders, have no power at all. The Presidency will be consumed by the other Branches of Government,” he wrote. “That is not what our founders wanted!”

Trump’s lawyers argue that their client is being prosecuted for “official acts” during his time in office. In his post, Trump argues that if a president does not have total immunity, then the opposing party can “extort and blackmail” the president during his or her term in office.

“If a President does not have Immunity, the Opposing Party, during his/her term in Office, can extort and blackmail the President by saying that, ‘if you don’t give us everything we want, we will Indict you for things you did while in Office,’ even if everything done was totally Legal and Appropriate,” he wrote. “That would be the end of the Presidency, and our Country, as we know it, and is just one of the many Traps there would be for a President without Presidential Immunity.”

The justices will directly address the following question when they issue their opinion in this case: “Whether and, if so, to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office?”

Former Missouri Solicitor General D. John Sauer will be arguing on behalf of Trump. He’s argued in front of the Supreme Court once before, in a case he won 5-4.

On the opposing side, former deputy U.S. Solicitor General Michael Dreeben will argue for the U.S. He worked for special counsel Robert Mueller on the Russia probe and has argued in front of the Supreme Court over 100 times before.

Media is gathered at the Supreme Court, preparing for arguments today. There are a few protest banners outside the fence, including a large sign in the style of Trump’s campaign banners that reads: “LOSER.”

Thomas Windom, the lead prosecutor on Trump’s Washington election interference case, is attending arguments today. Stands to reason others from the special counsel’s office will be here as well.

The former president will be in court in New York as today’s arguments play out before the Supreme Court.

Trump faces 34 counts of falsifying business records tied to hush money payments to adult film star Stormy Daniels. He has pleaded not guilty.

David Pecker is expected to return to the Manhattan courthouse for witness testimony today, and Judge Juan Merchan is expected at some point to issue a decision on whether the former president willfully violated a gag order.

NBC News legal analyst Joyce Vance joins “Meet the Press NOW” to discuss what to expect as the Supreme Court is set to hear arguments on former President Donald Trump’s presidential immunity claims.

Trump’s presidential immunity arguments have been winding through courts for months ahead of today’s arguments — with discouraging results for the former president.

In December, Judge Tanya Chutkan dismissed two of Trump’s motions to toss out the D.C. election interference case against him, ruling that presidents do not have absolute immunity. Trump’s lawyers had argued in an October filing to Chutkan that he should be shielded by presidential immunity.

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WASHINGTON — Tackling an unprecedented and politically fraught issue, the Supreme Court on Thursday considers former President Donald Trump’s assertion of total immunity from criminal charges over his attempt to overturn the 2020 election results.

The court will take on the novel legal question of whether a former president can be prosecuted for what Trump’s attorneys say were “official acts” taken in office, though much of the focus remains on whether the justices will rule quickly so a trial could take place before the November election.

With most legal experts questioning Trump’s broad argument that the entire election interference indictment should be dismissed based on immunity, the court’s eventual ruling on the extent to which official acts are protected and how quickly it rules will be of equal importance.

The case puts considerable scrutiny on the court, which has a 6-3 conservative majority that includes three justices Trump appointed. The court already handed Trump an election-year boost when it ruled last month that Colorado could not kick him off the ballot.

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