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April 26, 2024

“We’re writing a rule for the ages,” Justice Neil Gorsuch said Thursday about the issue of criminal immunity from prosecution for official presidential acts.  Indeed, it will have enormously far-reaching implications.  But, as always, the Democrats aren’t thinking about long-term consequences; they just want to get Trump NOW.

In fact, Special Counsel Jack Smith decidedly did not want even a pause to consider this enormously important question, as he’d planned to obtain a quick conviction on J6-related charges in a rubber-stamp court, the better to influence the 2024 election.  This case is part of a tremendous burst of lawfare that was orchestrated to fill the campaign season --- a long-planned election interference scheme, unfolding before our eyes.  But a Supreme Court decision, expected to be released in June, to remand the case back to the DC District court for further fact-finding proceedings based on what SCOTUS decides are official and personal acts (if that’s what they decide) is bound to delay most of the trials against Trump until after the election.

We’ve been concerned that Trump’s attorneys might try to argue the immunity issue too broadly, insisting a President should have permanent immunity for absolutely ANYTHING he did while in office, except through impeachment and conviction.  After all, Trump himself has argued that, too, and he might not have been doing himself any favors.  That interpretation is too extreme, and if you can imagine some of the possible scenarios that could conceivably result, you know the justices can, too.  (Trump is right, though, that the constitutional solution for “high crimes and misdemeanors” is impeachment.)

It’s also easy to imagine the other extreme, in which every future President will be snapped into handcuffs the day he leaves office for various actions he had the authority to take but that his political enemies would still claim were against the law.  That would make the United States resemble a banana republic even more closely than it already does.  Who would even want to BE President, knowing that he’d most likely end up confined to a jail cell afterwards, or at the very least plagued with never-ending, bankrupting litigation?

Fortunately, the justices don’t have to make this an all-or-nothing choice.  Though they appeared skeptical during arguments of the claim that a President should receive absolute criminal immunity, they seemed open to arguments that there should be some level of it.  The big question is, where is that line drawn?

Here’s the full audio of Thursday’s oral arguments (about 2 hours, 40 minutes, well worth your time), along with a transcript…

Justice Clarence Thomas, typically quiet during oral arguments, kicked off the questions this time by asking Trump attorney D. John Sauer to pinpoint where in the Constitution he got his concept of presidential immunity, as it isn’t explicitly mentioned.  Sauer said it was the Executive Vesting clause in Article II, which gives the President his executive power.

The justices asked many questions concerning what constitutes an official act.  Justice Elena Kagan brought up an interesting historical point that seemed to favor the prosecution side: that an immunity clause might not have been included because the founders had just broken away from a monarch who had abused power and wouldn’t have wanted that.

Another good question came from Justice Ketanji Brown Jackson:  If Presidents have immunity, why would President Ford have needed to pardon Nixon?  Sauer replied that some of Nixon’s actions had been of a personal, not official, nature.

Justice Sonia Sotomayor brought up the worst-case scenario (liberals like to do that) of a President doing something “so fundamentally evil” that it has to be addressed, like using the military to assassinate someone.  In this. she was reminiscent of DC Court of Appeals Judge Florence Pan, who brought up the idea of a President using SEAL Team Six to carry out an assassination.  Sauer said something like that might fall into the category of official act.  But the type of action we’re talking about in Trump’s case is very different, and Sauer said his indictment for it “cut to the heart” of conduct that should be covered by immunity.  Indeed, it does.

Justice Kagan asked if a President is immune from prosecution if he, for example, sells nuclear secrets to a foreign power or uses the military to stage a coup.  That seems like an easy one, and Sauer did say that such allegations would be handled through congressional impeachment and conviction in the Senate.

Justice Amy Koney Barrett asked about criminal conduct that isn’t discovered until after a President leaves office.  Sauer said the founders assumed that risk and that our system of separation of powers couldn’t right every wrong.  We’re not attorneys but would’ve hoped for more with that answer; it seems a little weak. 

Justice Brett Kavanaugh appeared to try to help Sauer out a bit, suggesting Sauer wasn’t trying to place the President above the law but just trying to distinguish between official and unofficial acts.  Very sensible.

Justice Sam Alito questioned the “robust” (extensive) form of immunity Sauer was advocating, wondering if it was even necessary.  Aha, that’s just what we were thinking!  Trump and his attorneys really don’t need to take the argument as far as they’re trying to.  The justices are now tasked with trying to narrow that down.

Sauer did get the opportunity to specify examples of actions he thought were “official.”  As one might expect, he said communicating with state officials about the election would be OFFICIAL.

Unfortunately, if SCOTUS remands the case to the lower court, that means it’ll go right back to Judge Tanya Chutkan, who has already said Presidents must face prosecution for criminal acts alleged to have been committed while in office.  She’s shown an extreme bias to anyone and anything associated with January 6, handing down some of the most severe sentences to nonviolent defendants.  Will she even be able to bend?

Experts have told the EPOCH TIMES that the High Court will likely broaden the scope of presidential immunity “to include criminal liability but to a more limited extent than the President has requested.”  Again, that might still be all he needs.  Here’s their full article; we think this one is available without a subscription.

Another write-up, at REDSTATE, definitely readable without a subscription, concludes that “if the questions and statements of the justices are to be taken at face value, Trump’s trial will not take place before November’s election and possibly not at all.”

One highlight, described here by Jonathan Turley, was when special counsel attorney Michael Dreeben struggled to defend the lower court’s ruling that “a former President can be prosecuted for his official acts because the fact of the prosecution means that the former President has acted in defiance of the laws…”


(Editorial aside:  Guilty until proven innocent?  Have these geniuses READ the Constitution?)

One legal expert who does respect Dreeben as “an exceptional Supreme Court specialist” said it wasn’t his fault. “His performance is the product of trying to defend horrible judicial rationale...”

For balance --- or, I suspect, to showcase the bias on the other side --- REDSTATE also includes a few representative paragraphs from that accuse Justice Alito of being an “advocate for whatever the Republican Party prefers,” someone who “engaged in...dizzying feats of reverse logic.”  Quite amusing until you remember there are people who actually believe this about him, when in truth they’re just looking at a constitutionalist.


FURTHER READING:  Julie Kelly at “Declassified” has a must-read column, written before oral arguments started, about the reasons for the delay in Trump’s J6 case.  It’s not because of Trump’s “delay tactics,” as Liz Cheney asserted Monday in THE NEW YORK TIMES.  It’s because --- like it or not, Liz ---Trump has due process rights like any other defendant.  And Judge Chutkan herself put on the brakes for nine months before hitting the accelerator in August 2023, no doubt with an eye towards getting a quick conviction in the months before the election.  In trying to time that, she wasn’t counting on Trump’s immunity challenge to slow things down so much.

By the way, if anyone deserves to be in a courtroom right now answering for things she has done to subvert justice, I’d put Liz Cheney at the top of the list.

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