Four takeaways from Trump’s SCOTUS immunity hearing

A disturbing lack of concern for January 6th

Today the Supreme Court heard oral argument on former President Trump’s claim that he’s absolutely immune from criminal prosecution. 

Although Trump has successfully stymied the federal election interference case for months by raising this defense, both the district court and the D.C. Circuit Court of Appeals quickly and unanimously ruled that presidents have never been understood to be above the law and have no immunity from criminal prosecution. A clear cross-ideological majority of legal commentators, including Protect Democracy, agreed with those decisions and called for the Supreme Court to affirm them quickly.

Today’s argument suggested that a majority of the Court thinks the principle that no one is above the law isn’t quite so straightforward when it comes to the president. And it continued a disturbing pattern by the justices of underplaying the seriousness of the January 6 insurrection and overplaying the difficulty of holding accountable those responsible. 

Here are four key takeaways:

1. Several of the justices seemed more concerned with hypothetical “burdens” criminal liability would impose on future presidents than with former President Trump’s role in the insurrection.

“We are writing a rule for the ages,” Justice Gorsuch proclaimed today. Justice Alito pondered what level of immunity would be “a good idea or a bad idea” to apply to presidents. 

Sure, the Supreme Court always creates precedent when it decides a case, and it should craft its opinions with great care for the consequences. But the Court also decides specific cases that come before it — that’s the core task of any court. Some of the justices seemed to have lost sight of that fact at oral argument this morning. Indeed, Justice Alito made clear more than once that he didn’t want to get into the particular facts of this case and Justice Gorsuch said at one point, “I'm not concerned about this case so much as future ones too.” 

As a result, absent from some justices’ musings was the countervailing consequence — starkly illustrated by the facts of this case — of the failure to constrain the president through criminal liability. Justice Jackson hit the nail on the head:

“[Y]ou seem to be worried about the president being chilled. I think that we would have a really significant opposite problem if the president wasn't chilled. If someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority could go into office knowing that there would be no potential penalty for committing crimes. I'm trying to understand what the disincentive is from turning the Oval Office into . . . the seat of criminal activity in this country.”

2. Several justices seemed to think that the laws and processes that apply to ordinary Americans and other federal officials might subject the president to unfair prosecution.

We don’t often associate this Supreme Court with excessive concern that criminal defendants have insufficient protections. Indeed, it routinely reinforces a criminal justice system that deprives many ordinary Americans of their liberties. But, perversely, that attitude seemed to shift for some of the justices when they were talking about the President of the United States as a criminal defendant. 

Aren’t grand juries quick to indict, they asked? Don’t some prosecutors overstep their bounds? Isn’t it hard on a defendant to have to rely on the presumption of innocence and the reasonable doubt standard at trial to vindicate himself? 

All of this seemed to ignore the fact that the president is the most powerful person in the country, who gets — as Assistant Special Counsel (and former Deputy Solicitor General) Michael Dreeben pointed out — the best legal advice the Justice Department has to offer. And that other federal officials who make all kinds of difficult decisions have always been subject to prosecution when they intentionally violate the law. 

We shouldn’t be flipping the script from the principle that “no one is above the law” to “the president needs special protection from the law.”  That’s not what our anti-monarchy founders had in mind.

3. There’s reason to be concerned that a majority of justices will send this case back to the lower courts for additional litigation on the immunity issue. 

The prospect of further delay was palpable. 

Three justices – Alito, Gorsuch, and Kavanaugh – appeared to support the view that the trial court needs to sort out which of the indictment’s allegations involve “official conduct” that might be shielded by immunity, and which involve “private conduct” that would not. The lower courts never parsed this distinction because Trump argued simply that he was entitled to absolute immunity for all the conduct alleged in the indictment. He made a categorical argument and got a categorical answer. 

But today in front of the Supreme Court, Trump’s lawyer argued that the indictment alleged some private conduct that is prosecutable. So he wants the case sent back to the district court to decide what conduct alleged in the indictment is official and what is private, a decision that could presumably be appealed all the way back up to the Supreme Court – so round and round we go. 

As we have written previously, this is not how criminal trials are supposed to go. The law has long recognized the public’s weighty interest in speedy trials and developed procedures and rules to minimize delay. Trump is doing his best to flout those rules, and at least three justices on the Supreme Court signaled today that they might indulge him. They certainly betrayed no hint that they saw any urgency in getting this case to trial.

4. But, there’s still a chance that the Court could hold that the former president is NOT immune for leading an insurrection to overturn a free and fair election in time to permit a trial.

For all of the discussion about the line between personal and official acts, the silver lining is that there didn’t seem to be much sympathy for Trump’s sweeping claim that the president is effectively above the law, or even that all of his “official” acts should be shielded from prosecution. Instead, there was a lengthy discussion of a narrow area of “core official functions” that might be carved out from the whole. And an exchange at the end of the argument between Justice Jackson and Mr. Dreeben suggested an approach that could send the case back for trial relatively quickly. 

Instead of fashioning a rule that anticipates hypothetical future prosecutions of a president, the Court could simply focus on the specific allegations against Trump in this case, which, as Justice Jackson posited, don’t even arguably involve core official functions of the presidency (and to the extent some official acts are included among Trump’s efforts to overturn the election, the trial court can instruct the jury that those particular acts alone can't form the basis of liability). The Court could then draw finer lines when called upon to do so by a factual scenario that comes closer to reaching a president’s official conduct. That is the usual work of conservative courts.

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In the end, Mr. Dreeben had it right when he said that the task before the Court is to uphold the principle that no one, including the president, is above the law, while also protecting the president in the exercise of his or her legitimate powers. He also had it right when he said this isn’t difficult to do in this case. 

At this critical moment for our democracy, the Court needs to grapple with what happened on January 6th and allow the criminal justice system to work as it’s supposed to (and as it would for any other American). Any other approach will deprive the public of the opportunity to learn the full facts and outcome of this case before the 2024 election, cement the view that our institutions aren’t capable of enforcing democratic principles, and potentially signal to future bad actors — including the defendant himself — that they are free to abuse the vast powers of the presidency to foment insurrections without any meaningful constraints.