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This is a typical Trumpian overstatement. No president before Trump believed he possessed immunity from prosecution after leaving office — that’s why Richard M. Nixon accepted a pardon — and they managed just fine. The only president the country has to fear this from is Trump himself, if he succeeds in winning a second term and implementing his plan to pursue his political enemies.
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Justice Ketanji Brown Jackson never mentioned Trump, yet it was hard not to have his potential return to office in mind when she pressed Sauer on this point. “You seem to be worried about the president being chilled,” Jackson said. “I think that we would have a really significant opposite problem 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.”
What was striking — and disconcerting — in Thursday’s arguments was the degree to which the conservative justices seemed willing to prioritize presidential flexibility over presidential accountability, although whether they were seeking to protect Trump or were moved by solicitude for executive power is impossible to know.
“I’m not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives,” said Justice Neil M. Gorsuch. Kavanaugh warned that “the concern going forward is that … it’s going to cycle back and be used against the current president or the next president and the next president and the next president after that.”
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Justice Samuel A. Alito Jr. even made the up-is-down suggestion that trying Trump for seeking to subvert the election could undermine democracy. “If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is … that the president may be criminally prosecuted by a bitter political opponent,” he asked, “will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”
Justice Sonia Sotomayor offered a powerful response. One of the convictions that sustains democracy, she noted, is the “encouragement to believe words that have been somewhat put into suspicion here, that no man is above the law either in his official or private acts.”
We’ll find out, even if not soon enough.
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If there was any chance of Donald Trump being prosecuted before the next presidential election for trying to interfere in the previous one, that prospect looks even more dim after nearly three hours of oral argument at the Supreme Court on Thursday. The conservative justices’ professed concerns over the implications of their rulings for imaginary future presidents, in imaginary future proceedings, seemed more important to them than bringing Trump to justice.
First, there is certainly no prospect of a speedy decision. The issues as hashed out before the justices, and the evident division among them, all but guarantee there will be no ruling until the court finishes up its work in late June or early July.
Second, the eventual outcome doesn’t seem likely to offer the kind of decisive rule that would allow special counsel Jack Smith’s criminal prosecution of Trump to proceed to trial quickly. True, a majority might not be willing to fully accept Trump’s audacious claim of absolute immunity from criminal prosecution for his official acts as president. On Thursday, Trump lawyer D. John Sauer reprised his contention that a president could send SEAL Team Six to assassinate a political opponent.
“How about if a president orders the military to stage a coup?” Justice Elena Kagan asked him. That “could well be” an official act, Sauer said — which would mean, under his bizarre reading of the Constitution, that the only way a former president could be charged with a crime would be if Congress had first impeached and convicted him.
But if they’re unwilling to go that far, at least some justices seemed unsettlingly inclined to draw distinctions between official and private acts that could both narrow the scope of the case against Trump and entail additional pretrial proceedings. This doesn’t absolutely doom the possibility of a pre-election trial — Trump’s lawyer made important concessions Thursday that many of the allegations against the former president involved private conduct — but it sets the stage for more litigation and therefore more delay.
Third, at least some justices appeared interested in a new twist that Trump’s lawyers raised for the first time in their Supreme Court brief: whether the criminal laws under which Trump has been charged can constitutionally be used to prosecute a president if the statutes don’t state explicitly that they apply to the president. Ordinarily, a defendant who fails to bring up a claim in the lower courts is deemed to have waived it, but Justice Brett M. Kavanaugh in particular seemed inclined to let the claim proceed and to decide in Trump’s favor.
Such nuts-and-bolts questions will shape the outcome of the case. But the oral argument in Trump v. United States was mainly suffused with the broader question of which poses the greater risk — putting a criminal president above the law or hamstringing noncriminal presidents with the risk of frivolous or vindictive prosecutions brought by their successors.
This has been the essence of Trump’s argument for immunity. “Without presidential immunity from criminal prosecution, there can be no presidency as we know it,” Sauer told the court in his opening statement. “If a president can be charged, put on trial and imprisoned for his most controversial decisions as soon as he leaves office, that looming threat will distort the president’s decision-making precisely when bold and fearless action is most needed.”
This is a typical Trumpian overstatement. No president before Trump believed he possessed immunity from prosecution after leaving office — that’s why Richard M. Nixon accepted a pardon — and they managed just fine. The only president the country has to fear this from is Trump himself, if he succeeds in winning a second term and implementing his plan to pursue his political enemies.
Justice Ketanji Brown Jackson never mentioned Trump, yet it was hard not to have his potential return to office in mind when she pressed Sauer on this point. “You seem to be worried about the president being chilled,” Jackson said. “I think that we would have a really significant opposite problem 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.”
What was striking — and disconcerting — in Thursday’s arguments was the degree to which the conservative justices seemed willing to prioritize presidential flexibility over presidential accountability, although whether they were seeking to protect Trump or were moved by solicitude for executive power is impossible to know.
“I’m not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives,” said Justice Neil M. Gorsuch. Kavanaugh warned that “the concern going forward is that … it’s going to cycle back and be used against the current president or the next president and the next president and the next president after that.”
Justice Samuel A. Alito Jr. even made the up-is-down suggestion that trying Trump for seeking to subvert the election could undermine democracy. “If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is … that the president may be criminally prosecuted by a bitter political opponent,” he asked, “will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”
Justice Sonia Sotomayor offered a powerful response. One of the convictions that sustains democracy, she noted, is the “encouragement to believe words that have been somewhat put into suspicion here, that no man is above the law either in his official or private acts.”
We’ll find out, even if not soon enough.
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