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“The Supreme Court [last] Thursday appeared skeptical of a ruling by a federal appeals court that rejected former President Donald Trump’s claim that he has absolute immunity from criminal charges based on his official acts as president. During more than two-and-a-half hours of oral argument, some of the court’s conservative justices expressed concern about the prospect that, if former presidents do not have immunity, federal criminal laws could be used to target political opponents. However, the justices left open the prospect that Trump’s trial in Washington, D.C., could still go forward because the charges against him rest on his private, rather than his official, conduct.” SCOTUSblog
The left urges the Court to reject Trump’s theory of absolute immunity for acts committed in office.
“Under [Trump’s] theory, a sitting president could violate the law with impunity, whether that is serving unlimited terms or assassinating any potential political opponents, unless the Senate impeaches and convicts the president…
“Yet a legislature would be strongly disinclined to impeach, much less convict, a president who could murder all of them with total immunity because he did so as an official act. The same scenario applies to the Supreme Court, which would probably not rule against a chief executive who could assassinate them and get away with it…
“Trump’s own attorneys argued in 2021, during his second impeachment trial, that the fact that he could be criminally prosecuted later was a reason not to impeach him… No previous president has sought to overthrow the Constitution by staying in power after losing an election. Trump is the only one, which is why these questions are being raised now.”
Adam Serwer, The Atlantic
“[Then-President Gerald Ford] famously pardoned former President Richard Nixon for Nixon’s involvement in the Watergate scandal. Neither Ford’s decision to issue such a pardon, nor Nixon’s decision to accept it, would make any sense if Nixon were immune from prosecution. Finally, the Court’s reasoning in Nixon doesn’t really map onto a criminal prosecution…
“In that case, the Court feared that presidents or former presidents might be overwhelmed by civil litigation, in large part because literally anyone can file a civil lawsuit. But federal criminal proceedings do not work that way. Only the Department of Justice may initiate such a prosecution, and then only after it presents its evidence to a grand jury and the grand jury signs off on an indictment…
“These procedural safeguards obviously do not preclude the possibility of a meritless prosecution — sometimes criminal defendants are acquitted. But they do obviate the concern that a president will be bombarded by nuance suits filed by thousands of private citizens. So Trump is seeking an entirely novel form of immunity, one that has never been recognized by any court.”
Ian Millhiser, Vox
“The court should recognize that a president can be acting as an ‘office-seeker’ — or, in Trump’s case, someone seeking to hold on to an office after losing an election — even when his official duties are involved. [DOJ Attorney Michael] Dreeben reminded the justices that one of the acts that put former President Nixon in jeopardy was his attempt to have the Central Intelligence Agency shut down the FBI’s Watergate investigation…
“The court should hand down a decision that would allow Trump’s trial to proceed — and it should do so quickly… It would be wrong to think of an expeditious ruling in this case as an anti-Trump gesture; a ruling that allowed Trump to go on trial before the election could politically benefit the former president if he were acquitted…
“The real beneficiaries of a trial before November would be the voters, who deserve to know whether a candidate for the nation’s highest office has been found innocent or guilty by a jury.”
Editorial Board, Los Angeles Times
The right urges the Court to rule that presidents have immunity for official acts.
The right urges the Court to rule that presidents have immunity for official acts.
“In Nixon v. Fitzgerald (1982), the court held that separation of powers demands absolute immunity from civil lawsuits for acts falling within the ‘outer perimeter’ of the president’s official responsibilities. Absolute immunity is necessary because the president ‘occupies a unique position in the constitutional scheme,’ and the specter of litigation ‘could distract a President from his public duties.’ That applies with even greater force to the threat of criminal prosecution…
“In McDonnell v. U.S. (2016) the court held that an ‘official act’ is an action on any matter that is ‘pending… before a public official,’ and includes the president’s ‘using his official position to exert pressure on another official, knowing or intending that such advice will form the basis for an ‘official act’ of another official.’…
“Mr. Trump acknowledges that ‘no court has yet addressed the application of immunity to the alleged facts of the case.’ The justices should draw a line and extend absolute criminal immunity to actions within the outer perimeter of the president’s duties.”
David B. Rivkin Jr. and Elizabeth Price Foley, Wall Street Journal
“The next question concerns whether the acts Mr. Trump is charged with fall within that ‘outer perimeter’ of his duties… In the Jan. 6 case, Mr. Smith has cited numerous Trump actions to justify his four charges. One of them is lobbying Vice President Mike Pence to block Congress’s certification of Electoral College votes. That was wrong about what Mr. Pence could do under the Constitution, but Presidents talk to their Veeps all the time and Mr. Pence was free to say no…
“The same goes for Mr. Trump’s calls asking state election officials to look for electoral fraud. Mr. Trump argues that he was merely trying to ensure the election was honestly conducted…
“The Supreme Court could decide this question in the current proceeding, though it doesn’t have to. As the three liberal Justices wrote recently in their unhappy concurrence in Trump v. Anderson, the Court shouldn’t address more questions than it [must] to decide a case. On that logic, the Justices could (and probably should) remand the ‘outer perimeter’ question to the trial court for fact-finding and judgment.”
Editorial Board, Wall Street Journal
“[A] notable what-if came from Justice Brett Kavanaugh. He used the Socratic reductio ad absurdum of Barack Obama's drone strike on Anwar al-Awlaki, and the second one on his son, to suggest that a politically motivated prosecutor could charge him with murder. Kavanaugh, who knows a few things about politically motivated persecutions, posed this as a limiting principle test, not to seriously suggest Obama should have been prosecuted…
“Unfortunately for Special Counsel Jack Smith, the DoJ attorney argued that the DoJ was the only limiting principle, which is precisely what Trump's attorneys have argued all along… The DoJ basically just proved why a bright-line immunity standard is desperately needed. [DOJ Attorney Michael] Dreeben's answer is that it's completely up to the discretion of the prosecutors, which makes no sense under the rule of law and the constitutional order.”
Ed Morrissey, Hot Air
