LOS ANGELES.–Supreme Court justice debated today 77-year-old former President Donald Trump’s claim to absolute immunity while in office, something that undermines Special Counsel Jack Smith’s charges that Trump tried to overturn the 2020 presidential election. Justices did not debate the merits of the government’s criminal case against Trump, largely based on speculation that Trump organized-and-planned that Jan. 6 Capitol insurrection that attempted to obstruct an official government proceeding to certify the Electoral College vote for 81-year-old President Joe Biden. Today’s arguments had nothing to do with the actual facts of Smith’s case about Trump but whether Trump enjoyed a degree of immunity that would protect him against political prosecution from zealous prosecutors capable to assembling a grand jury and charging him with various criminal acts.
Justices, especially liberal justices Elana Kagan, Sonia Sotomayor and the newest Justice Ketanji Brown Jackson, seems to focus their questions on a distinction between official duties and private acts, something that the High Court can’t decide. Justices debated the questions of absolute presidential immunity advance by Trump’s attorney D. John Sauer, claiming that any presidential act was covered by presidential immunity, especially Smith’s charge that Trump tried to overturn the 2020 election. Saurer’s argument is very different that Trump was trying to ascertain whether or not voter fraud took place, accounting for Biden’s victory. So, in his officials act to guarantee, election integrity, he questioned the election results to protect the Constitutional franchise of voting. Justices didn’t debate the facts of Smith’s charges but whether or not the president had a reasonable amount of immunity.
Justices used many examples to ascertain what was an official versus a private act covered under presidential immunity, including selling nuclear secrets, ordering a coup or political assassination or taking a bribe. “We’re writing a rule for the ages,” said conservative Justice Neil Gorsuch, noting the court must get the extent of presidential immunity right. Conservative Justice Samuel Alito said a president is in “a peculiarly precarious position,” fearing that a president could be in a vulnerable position if a politically-motivated prosecutor could file charges against a sitting president for any reason. “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 going to be able to go off into peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent . . .” asked Alito.
Alito asked Special Counsel Jack Smith’s Solicitor General Michael Dreeben a basic question: “Will that not lead us into a cycle that destabilizes the functioning of our country as a democracy.” Alito posed the scenario of political persecution of an ex-president for acts committed while president that did not lead to impeachment and conviction. “And can we look around the world and find countries where we have seen this process where the loser gets thrown in jail,” Alito asked Dreban. “ So, I think it’s exactly the opposite, Judge Alito,” Dreeben responded. “There are lawful mechanisms to contest the results in an election,” Dreeben said, sidestepping Alito’s question pertaining to presidential immunity. Dreeban assumes facts not in evidence in Smith’s case that Trump, himself, participated, planned, organized or orchestrated the Jan. 6 Capital insurrection.
Sauer told the justices without presidential immunity over the last 234 years, presidents could have been charged, prosecuted and imprisoned for official acts, including President Franklin D. Roosevelt who ordered the internment of Japanese Americans following the Dec. 7, 1941 attack on Pearl Harbor. “If a president can be charged, put on trial and imprisoned for his most controversial decisions as soon as he leaves office, that looming threat will distort the president’s decision making precisely when bold and fearless action is most needed,” Sauer said. Supreme Court Chief Justice echoed Sauer’s point, asking Dreeben to consider arbitrary and capricious prosecution. “Now, you know,” Roberts told Dreeben. “How easy it is in many cases for a prosecutor to get a grand jury to bring an indictment . . .” Roberts warned in a cautionary tale of malicious prosecution.
Smith’s Solicitor General Michael Dreeben got caught in his own logical trap explaining why no other president, other than Trump, has been criminally prosecuted in 234 years. “The reason why there have not been prior criminal prosecution is that there were not any crimes,” said Dreeben, forgetting that Andrew Jackson once called Native Americans “savages,” giving the U.S. army the right to massacre Native Americans in what’s known todoay as genocide. All the hypothetical examples, like telling the military to stage a coup, order a political assassination or take a bribe for a Cabinet position, don’t relate to Jack Smith’s case against Trump that he tried to overthrow the results of a legitimate presidential election. Conservative justices seem concerned about diminishing a president’s immunity if politically motivate prosecutors can charge ex-presidents with various crimes.
About the Author
John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He’s editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.
