Skepticism (Not So) Absolute Presidential Immunity - Top 3 Takeaways – April 26th, 2024
- Skepticism. Deep skepticism. That’s what was apparent at the onset of the Trump presidential immunity hearing before the Supreme Court yesterday. Straight away Justice Clarence Thomas came at Trump attorney John Sauer repeatedly for the justification of his argument that effectively all acts conducted by a sitting president are immune from prosecution. Justice Thomas was quickly joined by Chief Justice John Roberts and shortly thereafter by Justice Sotomayor who went back and forth with Sauer shooting down his argument time and again. As she said at the end of one exchange: He’s not doing these acts in the furtherance of official duty, he’s doing it for personal gain (referring to presidents ubiquitously – not Trump specifically). And then at the end of another exchange with Sotomayor there was this statement that was direct to the underlying circumstances that brought this case: What is plausible about the president creating a fraudulent slate of electors? (in the context of that being official business). The skepticism was then joined by Justices Alito and Barrett. On that note there was this question posed. Barrett: Private acts don’t receive immunity? Sauer, we agree. Sotomayor: If the president sells nuclear secrets to a foreign country is that an official act? The examples go on and on as to why absolute immunity over all presidential acts – up to and including whether the president can order the miltiary to engage in a coup came up. The answer to that one by the way was: If it’s an official act, there needs to be impeachment and conviction beforehand. That’s effectively the summation of the argument. If you’re trying to understand what the Trump’s team position is. It’s this. If the president does something illegal as an official act, it’s first incumbent on Congress to impeach and to convict the president for the official behavior. If convicted, presidential immunity would no longer apply and personal criminal liability for the illegal acts could be pursued. That was a huge takeaway from the proceedings. Up to this point we’ve mostly heard of former President Donald Trump speaking of the need for “absolute immunity”. The official position is immunity unless impeached and convicted by Congress. That said, Justice Barrett immediately shot that down by saying... There are many other people who are subject to impeachment, including the nine sitting on this bench and I don’t think anyone has ever suggested that impeachment would have to be the gateway to criminal prosecution for any of the many other officers subject to impeachment. But with that said, all was not lost or cut and dry in this hearing.
- Prosecutorial skepticism. Just as the justices unanimously seemed to not totally be onboard with the Trump team’s definition of presidential immunity – it also became clear that at least the majority on the court didn’t buy into the especially narrow scope of immunity attorney Michael Dreeben advanced on behalf of Jack Smith’s prosecutorial team. In the words of Chief Justice Roberts to Dreeben: You know how easy it is in many cases for a prosecutor to get a grand jury to bring an indictment and reliance on the good faith of the prosecutor may not be enough in some cases. Justice Alito followed that up with the very real possibility that, if immunity became especially limited, political rivals could seek prosecutorial revenge should they win power – effectively turning the United States into a different version of a similar thing to what we see in corrupt countries where political winners imprison their rivals. What became clear through this process was this. Neither side will likely get exactly what they want here. The prosecution wants the immunity claim shot down with the ability to move forward with their prosecutions asap. The Trump team wants immunity to wipe out the outstanding cases against him. Neither of those absolutes appears likely. It appears most likely that the Supreme Court will more specifically define in this case what the scope of presidential immunity looks like, as opposed to ruling up or down on this challenge, or to send this back to a lower court to vet out. What that likely means is that there won't be an immediate ruling and that the decision comes with the possibility, and even likelihood, that former President Donald Trump won’t be off of the hook with the federal cases, but that perhaps some of the charges may no longer be brought against him. Should that be the outcome here it would extensively delay the ability for Jack Smith to bring the January 6th case against Trump to trial this year as the scope of what charges would be determined to be valid and which would be determined to be unconstitutional. Should that be the case...
- Trump is likely running for his freedom. Whatever does or doesn’t happen in terms of convictions or acquittals in the absurd hush money case currently taking place in New York, it’s unlikely jail time would be the outcome. Without a doubt the other three criminal cases do point to jail if convictions were obtained. The most legal jeopardy Trump faces is whatever would be with the January 6th related case. That’s true due to the scope of the charges in the case but also the location of the case, which is Washington D.C. Unless all of the charges in the case are forced to be dropped it will continue to pose the most potential liability for the former president. The kind that only a presidential pardon could make go away. For that reason, if not others in the other two outstanding cases, the likely outcome appears to be that Donald Trump is running for President of the United States but also for his freedom in the process.