The Supreme Court conservatives seemed to solidify around a middle-ground position on Donald Trump’s claims of absolute presidential immunity Thursday, a win by another name for the former president as it would add months of delay to the Jan. 6 case.
Trump raised the immunity question to void Special Counsel Jack Smith’s prosecution stemming from the insurrection, arguing that he is entirely protected from criminal prosecution for acts he carried out as president.
Both federal district and appellate courts soundly rejected that argument, finally sending it to the Supreme Court (over four months after Smith initially asked them to decide it).
But the conservatives, and Chief Justice John Roberts in particular, sounded extremely skeptical of the D.C. Circuit’s opinion. They were specifically unhappy that the court found that since official acts do not get absolute immunity, there’s no need to sift through what Trump did around Jan. 6 to determine which acts were official and which were private.
That line-drawing consumed much of Thursday’s proceeding, despite Justice Ketanji Brown Jackson’s repeated protestations that such an activity is only necessary if you assume Trump’s argument — that absolute immunity does attach to official acts — is correct.
Justice Amy Coney Barrett most clearly charted the way forward, asking Trump lawyer John Sauer to divy up the charges in the indictment between what would count as an official act versus a private one. She later asked the Department of Justice’s Michael Dreeben how he’d prefer the Court to proceed, given his concerns about “speed”: to send the case back down to the district court to sort out which acts are official and which aren’t, or to drop the official acts and plug ahead in the trial with whatever Trump conduct remains.
He chose the latter, likely the best Smith can hope for after Thursday’s showcase of the conservatives’ hostility to the government’s arguments.
But he may not even get that. Many of the conservatives, Justices Neil Gorsuch and Brett Kavanaugh in particular, seemed eager to send the case back down. Such a move would amass months of delay, as whatever the district court decides would work its way back up the court system, all but guaranteeing that the trial on the merits wouldn’t end (and likely wouldn’t start) before the November election. If Trump wins, he’ll direct his Justice Department to drop the case.
The conservatives throughout displayed much more concern about the threat of criminal prosecution chilling presidential conduct than they did the myriad dangers of a president unbound and free to ignore the law while in office.
Justice Samuel Alito expressed incredulity that a president could be prosecuted for a “mistake,” for actions he took amid the morass of hard decision-making that falls on a president’s shoulders. He and Gorsuch danced a slippery slope two-step, fretting over self-pardons and presidents habitually going after their predecessors when they leave office.
“If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is gonna be able to go off to a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?” he mused. “And we can look around the world and find countries where we have seen this process, where the loser gets thrown in jail.”
The liberals, and occasionally Barrett, tried to blunt his argument by using hypotheticals that cut in the opposite direction: a former president who led a military coup, one who sent SEAL Team 6 to assassinate a rival, one who’d committed some crime only discovered after he left office, all free to walk away without threat of prosecution.
Jackson articulated the rebuttal most clearly.
What of a president “unbounded while in office, a president who knows that he does not have to ultimately follow the law because there is really nothing more than, say, political accountability in terms of impeachment”? she asked.
She cited amicus briefs raising the possibility that such an unshackled president could perjure himself under oath, force others to commit perjury and bribe witnesses, all without fear of later prosecution.
“I see that as a concern that is at least equal to the president being so worried about criminal prosecution that he is a little bit limited in his ability to function,” she added.