Thursday’s oral argument in the case revolved around whether Mr. Trump can claim absolute immunity for his conduct while president, including for the alleged crimes in Justice Department special counsel Jack Smith’s election fraud case. Thankfully, most of the justices appeared skeptical that the president may avoid prosecution for any action he takes on the job.
From there, however, things got complicated. Assuming a president can be prosecuted for private or personal conduct — committing perjury to cover up an affair, say — can he be prosecuted for official conduct? What even counts as “official”? The court decided in Nixon v. Fitzgerald that ex-presidents have immunity from civil suits for anything within the “outer perimeter” of their duties. This generous standard enables the commander in chief to do the job without fear of countless frivolous lawsuits.
There are more guards against frivolous prosecutions than frivolous lawsuits, so the level of protection the executive needs from post-presidency criminal proceedings should be correspondingly lower — though, most of the justices seemed persuaded, not nonexistent. Even the Justice Department concedes that presidents can’t be criminally liable for certain “core conduct” listed in Article II of the Constitution. The justices contemplated President Barack Obama being dragged before judge and jury for conducting a drone strike against a terrorist.
On the other hand, the justices considered a hypothetical borrowed from D.C. Circuit Court of Appeals Judge Florence Y. Pan: “Could a president order SEAL Team 6 to assassinate a political rival?”
The court explored many ways to distinguish between the former hypothetical and the latter. Courts could consider whether the president’s motive or intent in taking an official action was to serve himself rather than the public. Judges could examine whether the president reasonably should have known a given action was illegal — because of contrary advice from his attorney general, for example, or because it’s just that obvious.
But amid all the nuance, the Supreme Court might be missing the point. Not only would Mr. Trump’s alleged conduct surrounding the 2020 election fail an intent test, or a reasonability test governing when official acts are criminal, but almost all of the acts included in prosecutors’ complaint against Mr. Trump are also clearly not official. Nothing in the presidential job description relates to certifying the winner of the election, and, as Justice Department counsel Michael Dreeben pointed out, “It seems likely that the framers designed the Constitution that way.” And, as even opposing counsel D. John Sauer admitted, there is no obligation as chief executive to call up the Georgia secretary of state and ask him to “find” the votes necessary to declare a false victory in the state.
The Supreme Court could devise a complex new standard governing former presidents’ criminal liability, then demand that Trump trial Judge Tanya S. Chutkan engage in further analysis before the already much-delayed trial she’s overseeing can proceed. Or it could simply find that actions described in Mr. Trump’s indictment lie outside any plausible scope of presidential immunity. The justices might find the former approach more comfortable. But trying to set standards in such murky legal circumstances can have unintended consequences — even enabling dubious executive behavior once presidents know more clearly what they can get away with. By the same token, the court might also chill legitimate executive action, depending on how it worded such a ruling.
Declining to sort through the particulars of Mr. Trump’s case would not actually allow the court to avoid getting embroiled in his prosecution — quite the opposite. Giving him the time he wants would put a thumb on the scales in a way it would not for any other defendant: His legal strategy hasn’t been to win his case so much as to delay it. That way, if he ends up back in the Oval Office next winter, he could order the charges dropped.
Mr. Trump can press an immunity claim at the Supreme Court only because he is a unique defendant: a former president being charged with crimes. But his unique status also means it’s unusually important to move quickly. Pretending, after all these extraordinary legal proceedings, that he’s just any other defendant — by ignoring how delay might deny the public a trial — would not help the court appear impartial.
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