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The problem for Trump is that even if the justices are concerned about politicized prosecutions, recognizing general criminal immunity for the president would be an aggressive remedy without a strong basis in the Constitution’s text. Worse, it wouldn’t even solve the underlying problem of polarization and eroding political guardrails. Prosecutors could still hound other officials they disapproved of, or prosecute the president for acts he took before or after leaving office (two of Trump’s four criminal cases don’t involve his actions as president).
The Constitution protects members of Congress from certain prosecutions in the speech or debate clause, but it doesn’t say anything explicitly about presidential immunity. Nonetheless, the Supreme Court found in 1982 that maintaining the separation of powers requires immunizing the president, even after he has left office, from civil lawsuits for his official acts. Now the court will decide “whether and if so to what extent” that immunity also extends to criminal cases.
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This isn’t a frivolous question. But there’s a perverse logic in Trump’s policy arguments for robust immunity based on the growing threat of political prosecutions. It can’t be that as norms of partisan forbearance decline, immunity for government officials must expand. What would that do to confidence in the rule of law? If the elected branches of government are determined to tear each other apart with vindictive law enforcement, they will find a way to do so.
The Supreme Court can play a constructive role here, but it’s a modest one. Instead of creating broad new immunities, it can insist that criminal statutes be interpreted narrowly no matter whom they are used to prosecute — especially when the statutes are vague and touch on the political process. The court will have a chance to do just that in Fischer v. United States, a case involving the “obstruction of an official proceeding” law that prosecutors have stretched to charge Capitol riot defendants as well as Trump.
That law was aimed at preventing document-shredding in the wake of the Enron scandal, but the Biden Justice Department reads it as applying to anyone who “influences, or impedes any official proceeding” with corrupt intent. That interpretation makes the statute’s sweep frighteningly broad, especially when targeted at political actors. After all, executive-branch officials, including presidents, try to influence Congress as a matter of course. In the Justice Department’s reading, the main limit on the law’s application to political activity is a finding of a corrupt state of mind, which partisans are increasingly willing to ascribe to political opponents.
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The Supreme Court will hear oral argument in the Fischer case on April 16, six days before it hears Trump’s immunity case — and the two are more intertwined than most observers have recognized. The Justice Department wants the Supreme Court to sign off on its use of a generally worded white-collar law as an all-purpose political penalty — and for the justices to authorize the use of that law to prosecute a president for official acts. That makes Trump’s warnings of Armageddon if his immunity claim is denied seem more realistic. If, on the other hand, the statutes most vulnerable to political abuse are limited in scope, then any need for presidential immunity would also be limited.
The Justice Department’s legal adventurousness in the Trump prosecution brings us to the issue that has most inflamed the Supreme Court’s critics — timing. The real reason Trump might not be tried before the 2024 election is not the Supreme Court, which is poised to rule on immunity within four months. It’s because the Justice Department waited 30 months after the events of Jan. 6 to indict Trump in the summer of 2023.
Don’t take it from me; take it from Joe Biden. Politico reported this month: “In recent weeks, President Biden has grumbled to aides and advisers that had [Attorney General Merrick] Garland moved sooner in his investigation into former President Donald Trump’s election interference, a trial may already be underway.” Garland, of course, had good reason to hesitate in 2021 and 2022. It was — and is — far from clear that Trump actually committed a crime, as opposed to a political abuse, in the months after his 2020 election loss.
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If the case against Trump were bulletproof, it would have been brought sooner. The majority of Supreme Court justices are conservatives, but it’s liberal officials in the Biden administration who are responsible for forcing this matter in the middle of an election season. Smith’s indictment came down in time to boost Trump in the Republican primary, but perhaps not in time to influence the general election with a guilty verdict. Lawfare doesn’t always work as intended.
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Two nightmare scenarios dominate the debate over Donald Trump’s claim of criminal immunity from prosecution in the Jan. 6, 2021, election interference case against him. The Supreme Court agreed on Wednesday to consider the immunity claim.
The first scenario, emphasized by opponents of presidential immunity, is that a president could commit heinous crimes, skirt impeachment by Congress and get away with them. One judge on the appellate panel that ruled against Trump raised the possibility of a president ordering “SEAL Team Six to assassinate a political rival.”
The second scenario, emphasized by supporters of immunity, is that partisan prosecutions of former presidents will become routine if that protection is denied. Trump’s Supreme Court filing warns that “every President will be forced to ponder, before taking any official act — especially the most politically controversial decisions — whether the decision may lead to his or her prosecution, conviction, and imprisonment once the administration changes.”
So which do you fear more: The presidency transforming into despotism, or the hobbling of the republic with tit-for-tat partisan lawfare? The first nightmare has greater political resonance. But the second is probably the more realistic risk in the current political climate.
The problem for Trump is that even if the justices are concerned about politicized prosecutions, recognizing general criminal immunity for the president would be an aggressive remedy without a strong basis in the Constitution’s text. Worse, it wouldn’t even solve the underlying problem of polarization and eroding political guardrails. Prosecutors could still hound other officials they disapproved of, or prosecute the president for acts he took before or after leaving office (two of Trump’s four criminal cases don’t involve his actions as president).
The Constitution protects members of Congress from certain prosecutions in the speech or debate clause, but it doesn’t say anything explicitly about presidential immunity. Nonetheless, the Supreme Court found in 1982 that maintaining the separation of powers requires immunizing the president, even after he has left office, from civil lawsuits for his official acts. Now the court will decide “whether and if so to what extent” that immunity also extends to criminal cases.
This isn’t a frivolous question. But there’s a perverse logic in Trump’s policy arguments for robust immunity based on the growing threat of political prosecutions. It can’t be that as norms of partisan forbearance decline, immunity for government officials must expand. What would that do to confidence in the rule of law? If the elected branches of government are determined to tear each other apart with vindictive law enforcement, they will find a way to do so.
The Supreme Court can play a constructive role here, but it’s a modest one. Instead of creating broad new immunities, it can insist that criminal statutes be interpreted narrowly no matter whom they are used to prosecute — especially when the statutes are vague and touch on the political process. The court will have a chance to do just that in Fischer v. United States, a case involving the “obstruction of an official proceeding” law that prosecutors have stretched to charge Capitol riot defendants as well as Trump.
That law was aimed at preventing document-shredding in the wake of the Enron scandal, but the Biden Justice Department reads it as applying to anyone who “influences, or impedes any official proceeding” with corrupt intent. That interpretation makes the statute’s sweep frighteningly broad, especially when targeted at political actors. After all, executive-branch officials, including presidents, try to influence Congress as a matter of course. In the Justice Department’s reading, the main limit on the law’s application to political activity is a finding of a corrupt state of mind, which partisans are increasingly willing to ascribe to political opponents.
The Supreme Court will hear oral argument in the Fischer case on April 16, six days before it hears Trump’s immunity case — and the two are more intertwined than most observers have recognized. The Justice Department wants the Supreme Court to sign off on its use of a generally worded white-collar law as an all-purpose political penalty — and for the justices to authorize the use of that law to prosecute a president for official acts. That makes Trump’s warnings of Armageddon if his immunity claim is denied seem more realistic. If, on the other hand, the statutes most vulnerable to political abuse are limited in scope, then any need for presidential immunity would also be limited.
The Justice Department’s legal adventurousness in the Trump prosecution brings us to the issue that has most inflamed the Supreme Court’s critics — timing. The real reason Trump might not be tried before the 2024 election is not the Supreme Court, which is poised to rule on immunity within four months. It’s because the Justice Department waited 30 months after the events of Jan. 6 to indict Trump in the summer of 2023.
Don’t take it from me; take it from Joe Biden. Politico reported this month: “In recent weeks, President Biden has grumbled to aides and advisers that had [Attorney General Merrick] Garland moved sooner in his investigation into former President Donald Trump’s election interference, a trial may already be underway.” Garland, of course, had good reason to hesitate in 2021 and 2022. It was — and is — far from clear that Trump actually committed a crime, as opposed to a political abuse, in the months after his 2020 election loss.
If the case against Trump were bulletproof, it would have been brought sooner. The majority of Supreme Court justices are conservatives, but it’s liberal officials in the Biden administration who are responsible for forcing this matter in the middle of an election season. Smith’s indictment came down in time to boost Trump in the Republican primary, but perhaps not in time to influence the general election with a guilty verdict. Lawfare doesn’t always work as intended.
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