For those rightly concerned about the timing of Donald Trump's federal trial on January 6, Thursday's oral arguments before the Supreme Court gave plenty of cause for concern. Furthermore, the court's conservative majority seemed inclined to define presidential immunity from prosecution in a way that could undermine some of special counsel Jack Smith's charges.
Much of the court's questioning went far beyond the immediate question of Trump's immunity for the alleged criminal acts. The court's conservatives focused almost exclusively on abstract questions of immunity for future presidents, rather than on the charges against the former president. Even more moderate members of the conservative majority seemed concerned about the difficulty of drawing the line between official and unofficial acts, assuming that the former deserve broad protection from prosecution.
Judge Amy Coney Barrett read a litany of impeachment minutes and asked Trump's lawyer whether they were official or not. Chief Justice John G. Roberts Jr. noted that it is difficult to draw the line between public and private presidential conduct and said he was concerned that the D.C. Circuit Court of Appeals “did not engage in a consideration focused on the acts we are talking about.” or what documents we are talking about.”
At best, the court's questioning portends an opinion that establishes general principles of immunity and requires a deferral to the lower courts to apply the justices' directives. As Justice Neil M. Gorsuch said: “We are writing a rule for all ages.” That would add more delays to a schedule that already appears to be straining shortly before or after the November elections.
And that wasn't even the most serious implication for Smith's case.
The conservative justices' questioning of Michael Dreeben, the Supreme Court's respected special counsel, was sharp and swift. And his questions to both sides suggested they might conclude that investigating a president's motives for certain acts would violate the constitutional separation of powers. That would point to a decision that requires courts to dismiss all evidence of a president's malign intentions.
If motive is to be ignored in determining whether the president's actions are official or not, it could undermine much of the case against Trump, including, for example, his brazen attempt to force the Justice Department to falsely inform Georgia officials that The state's election results were flawed.
Such a limitation could even provide immunity in the hypothetical extreme proposed during arguments before the D.C. Circuit: a president ordering Navy Seals to assassinate a political opponent. The strength of that example is that it shows how an official act could have an obviously evil motive.
As Justice Elena Kagan weighed in on the implications of her colleagues' questions and the response from Trump's lawyer, John Sauer: “We are being asked to say that a president has the right… for his entire personal benefit, to use the attributes of his position.” Exactly correct.
Gorsuch threw another lifeline to Trump's lawyer, asking if he would accept a definition of official acts like the one in the D.C. Circuit's opinion in Blassingame v. Trump, which was referring to presidential immunity from civil lawsuits. That case drew a distinction between Trump's actions as an official and as a candidate for office. Applying it to the criminal case would likely immunize Trump from some of the impeachment's conduct, particularly his allegedly corrupt use of the Justice Department, although he would presumably still be charged with political conduct such as organizing false electors.
The situation got worse for the prosecution. More or less out of nowhere, Judge Brett M. Kavanaugh suggested that one of the charges against Trump, conspiracy to defraud the United States, is based on a statute that is so broad and vague that it could be misused by future prosecutors against future presidents. Judge Samuel A. Alito Jr. intervened to support the suggestion, taking up a criticism of the prosecution that Trump's lawyers had not even raised.
Since the court just heard arguments in a separate case that could invalidate two of the four charges against Trump (those under a federal obstruction statute), an opinion invalidating another charge could force Smith to move forward with only one remaining charge. against Trump, conspiracy against rights. . That charge is based on the electorate's right to have votes counted, which is a somewhat indirect approach to accountability for Trump's pernicious post-election conduct.
Thats not all. Kavanaugh also raised the Trump team's suggestion that perhaps Congress should make a “clear declaration” of intent to apply any criminal law to the president, a ploy the court previously conjured up to address concerns about the separation of powers. Justice Sonia Sotomayor noted that she would, in fact, excuse a president for violations of most federal code.
Dreeben barely had time to make his points until the end of the nearly three-hour discussion, when Kagan gave him some space to do so. Kagan also asked the special counsel's representative a friendly question about the possibility that the court could limit its decision to the charges against Trump to allow the trial to move forward quickly. But the chances of the court following that guidance now appear extremely slim.
Before Thursday's showdown, the critical question was whether the court's opinion would allow the trial to continue without further proceedings. Based on the arguments, that seems more unlikely than ever. Indeed, the court's questions raised the additional alarming prospect that it could confer the kind of expansive presidential immunity that would further weaken the constitutional principle that a president is not a king.
Harry Litman is the host of Podcast “Talking about federals” and the Talking about San Diego Speaker series. @harrylitman
