Perhaps President Trump won’t receive the broad immunity he desires.
The former president’s charges are unlikely to be dismissed by the Supreme Court justices anytime soon, so it’s possible that Trump won’t go on trial for trying to rig the 2020 election before November.
Justices emphasized several times throughout Thursday’s arguments how historic the subject at hand is.
However, the greatest immediate result for Trump will probably be that the criminal prosecution against him will be postponed until after he has had his next election, given the serious concerns at hand.
The case was supposed to go to trial last month, but special counsel Jack Smith wanted the justices to address Trump’s allegations right away.
During argument, there was a back and forth that highlighted the fact that a sufficient number of justices would want to remand the case to a lower court to decide which of the conduct that Trump is accused of doing in the indictment are actually connected to his employment.
“I think you’ve acknowledged in response to others’ questions that some of the acts in the indictment are private, and your view is that some are official,” Justice Brett Kavanaugh stated to Sauer. “Is it your position then that that analysis of which is which should be undertaken, in the first instance, by either the DC circuit or the District Court?”
The primary means by which the former president can be held accountable for his efforts to rig the 2020 election is through Smith’s prosecution of him.
Trump’s attorney, John Sauer, contended that a former president ought to be immune from prosecution for acts that might have little to do with the president’s official duties.
His reasoning was based on a previous Supreme Court decision that defined the boundaries of presidential immunity in civil cases.
Sauer’s related point that there should be a very high bar for a court or prosecutor to question, after the fact, whether a president was truly doing their job when they ran afoul of the law seemed particularly sympathetic to some of the court’s conservative justices, particularly Justice Samuel Alito.
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Not every justice seemed to be as persuasive as Alito.
However, even Justice Amy Coney Barrett, who seemed dubious about some of Sauer’s other points, hinted that if Smith and his team wish to move forward with the case swiftly, they could need to make significant changes to the present indictment against Trump.
Barrett said the special counsel may concentrate only on Trump’s extracurricular activities. Smith’s team’s advocate, Michael Dreeben, seems unwilling to accept such a remedy.
In an almost last-minute plea to her colleagues, Justice Ketanji Brown Jackson questioned if they truly wanted to use this case to define the precise meaning of a “official act” for all future presidents to follow when performing their duties.
Chief Justice John Roberts chastised the other conservative justices on the court in June 2022 for not basing their ruling in Dobbs v. Jackon solely on the facts of the abortion rights case that was brought before them.
A 5-4 ruling led by Justice Alito specifically rejected Roe v. Wade. Concerns over Justice Anthony Kennedy’s majority ruling in Obergefell v. Hodges, which established a national right to same-sex marriage, were also voiced by conservative justices.
Justices have tended to go for broader terminology throughout history rather than considering the specifics of the issue at hand.
Alito and Kavanaugh, two of the conservative justices, emphasized that they were worried about more than simply the indictment’s allegations about Trump’s behavior.
At one point, Justice Neil Gorsuch addressed Dreeben, “I appreciate that, but you also understand that we’re writing a rule for the ages.”
Trump would be better off waiting for this regulation.
It would take a long time to create such a standard and then determine how it applies to him, so Trump might essentially escape federal punishment for any acts committed after the 2020 election.
