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One fascinating aspect is how the court defined the case.
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The court determined that the only question to be addressed is whether a former president enjoys absolute “immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” The language is telling in a number of respects.
Had the court entertained the possibility the answer would be yes (e.g., yes, he can order Seal Team Six to kill his enemies; yes, he can exile his opponent in his reelection bid), it would have had to address subsidiary questions such as “Was the president engaged in an official act?” or “What is the ambit of an official act?” Only if the answer is “no” — that is, affirming Judge Tanya S. Chutkan and the D.C. Circuit’s unanimous ruling — would there be no need for further inquiry. The presence of the single question tells us where the court is heading.
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Furthermore, if the court’s order is limited to considering official acts, then special counsel Jack Smith almost certainly could effectively argue that Trump’s attempt to overthrow an election for which he has no constitutional role must be deemed “unofficial” at the trial court level. That would allow Smith to proceed to trial. In other words, if the Supreme Court wanted to spare Trump, it simply would have asked, “Is a president immune from criminal prosecution?”
In addition, the court framed the question with regard to a “former president” only. Again, this sets up the case to disadvantage Trump. After all, saying a president cannot be prosecuted either during or after his presidency would make him a king. As lower courts have held, no court has remotely approached this conclusion. To hold that a president could never be held to account for his actions, no matter how egregious, no matter if he had left office, would create a single class of individuals — criminal ex-presidents — immune from the law. Though that might attract support from right-wing, authoritarian-friendly Justices Clarence Thomas and Samuel A. Alito Jr., it defies imagination that Trump could accumulate five votes for such an outrageous proposition.
Whether a trial could begin and finish before Election Day, we most certainly will have a decision addressing what is essentially his only defense: “I cannot be punished for official acts. Interfering with my own election was an official act. Therefore, I go free!” At the very least, if my analysis is correct, heading into an election, voters will know that this cannot possibly be the law. Voting for him would amount to allowing someone going to trial (or already on trial) for serious crimes to waltz into the White House.
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Meanwhile, keep your eye out for a ruling on whether Trump is disqualified under Section 3 of the 14th Amendment. Though the letter of the Constitution suggests he should be, few think that is what the court will hold, especially after an oral argument in which no justice seemed inclined to knock him off the ballot. How the court rules, however, now takes on major significance. If, for example, the Supreme Court does not dispute that Jan. 6 was an insurrection, it would leave unchallenged the Colorado Supreme Court’s decision, the Maine secretary of state’s decision and the Jan. 6 House select committee’s conclusions that he did instigate an insurrection. Refusing to spare Trump from the conclusion of those bodies — and of the voters — would speak volumes about how the justices regard his conduct.
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The Supreme Court on Wednesday granted certiorari to hear four-times-indicted former president Donald Trump’s claim that he has absolute immunity for official acts while he was in office. With oral argument set for April 22, the prospect for a trial on charges related to election interference and the Jan. 6, 2021, insurrection to be completed before the election wanes considerably.
One fascinating aspect is how the court defined the case.
The court determined that the only question to be addressed is whether a former president enjoys absolute “immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” The language is telling in a number of respects.
Had the court entertained the possibility the answer would be yes (e.g., yes, he can order Seal Team Six to kill his enemies; yes, he can exile his opponent in his reelection bid), it would have had to address subsidiary questions such as “Was the president engaged in an official act?” or “What is the ambit of an official act?” Only if the answer is “no” — that is, affirming Judge Tanya S. Chutkan and the D.C. Circuit’s unanimous ruling — would there be no need for further inquiry. The presence of the single question tells us where the court is heading.
Furthermore, if the court’s order is limited to considering official acts, then special counsel Jack Smith almost certainly could effectively argue that Trump’s attempt to overthrow an election for which he has no constitutional role must be deemed “unofficial” at the trial court level. That would allow Smith to proceed to trial. In other words, if the Supreme Court wanted to spare Trump, it simply would have asked, “Is a president immune from criminal prosecution?”
In addition, the court framed the question with regard to a “former president” only. Again, this sets up the case to disadvantage Trump. After all, saying a president cannot be prosecuted either during or after his presidency would make him a king. As lower courts have held, no court has remotely approached this conclusion. To hold that a president could never be held to account for his actions, no matter how egregious, no matter if he had left office, would create a single class of individuals — criminal ex-presidents — immune from the law. Though that might attract support from right-wing, authoritarian-friendly Justices Clarence Thomas and Samuel A. Alito Jr., it defies imagination that Trump could accumulate five votes for such an outrageous proposition.
Whether a trial could begin and finish before Election Day, we most certainly will have a decision addressing what is essentially his only defense: “I cannot be punished for official acts. Interfering with my own election was an official act. Therefore, I go free!” At the very least, if my analysis is correct, heading into an election, voters will know that this cannot possibly be the law. Voting for him would amount to allowing someone going to trial (or already on trial) for serious crimes to waltz into the White House.
Meanwhile, keep your eye out for a ruling on whether Trump is disqualified under Section 3 of the 14th Amendment. Though the letter of the Constitution suggests he should be, few think that is what the court will hold, especially after an oral argument in which no justice seemed inclined to knock him off the ballot. How the court rules, however, now takes on major significance. If, for example, the Supreme Court does not dispute that Jan. 6 was an insurrection, it would leave unchallenged the Colorado Supreme Court’s decision, the Maine secretary of state’s decision and the Jan. 6 House select committee’s conclusions that he did instigate an insurrection. Refusing to spare Trump from the conclusion of those bodies — and of the voters — would speak volumes about how the justices regard his conduct.
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