- SC signals Trump case return to lower court for review
- Debate focuses on delineating official vs private presidential actions
- Conservative justices advocate for presidential immunity, liberal justices against
On Thursday, the United States Supreme Court indicated its willingness to remand Donald Trump’s criminal case concerning his endeavors to annul the 2020 election to a lower court. This remand would enable the court to determine whether specific elements of the indictment constituted “official acts” shielded by presidential immunity.
Amid oral arguments, it seemed improbable that the justices would grant Trump’s petition for absolute immunity from criminal prosecution. Both the attorney for Trump and the attorney for the Justice Department concurred that presidents would not be afforded protection for certain private actions.
However, the conservative justices, led by Chief Justice John Roberts, advocated for a certain degree of presidential immunity and supported the presiding trial judge in determining whether any of the alleged official acts in the indictment ought to be expunged.
The following inquiries concerned the methodology for distinguishing between official and entirely private actions, the possibility of formulating a standard that a lower court could subsequently apply to the indictment, and whether such a standard should take into account Trump’s motivations or objective facts alone.
A remand by the Supreme Court to the presiding US district court judge Tanya Chutkan would almost certainly cause additional delay to the case, which could potentially prevent it from proceeding to trial before the November election.
A result of this nature would constitute a victory for Trump, whose principal legal approach in response to the lawsuits initiated by special counsel Jack Smith has been to buy time. Should he win the election, he may designate a loyalist to serve as attorney general, who would subsequently dismiss the allegations levied against him.
A material legal victory would also accrue to Trump if the outcome of the remand was that certain portions of the indictment could be expunged. By excluding a portion of the alleged conduct from the indictment, he could potentially mitigate his criminal liability and weaken the remaining allegations.
Conservative justices on the Supreme Court appeared to have concluded the argument that a degree of immunity is necessary because certain “core functions” of the presidency, such as the ability to veto and grant pardons, cannot be regulated by Congress and are therefore exempt from criminal statutes.
In support of the special counsel’s office, Michael Dreeben acknowledged that prosecution of those “core functions” was not possible. As a result, Justice Neil Gorsuch ruled that immunity existed to some degree.
In addition to what the Supreme Court was anticipated to consider regarding Trump’s claim of immunity, this allowed the other conservative justices to immediately call into question the viability and scope of the charges contained in Trump’s indictment.
Justices Samuel Alito and Brett Kavanaugh expressed their opinion that the fraud conspiracy statute applied to Trump was excessively general and imprecise. The authors hypothesized that in the absence of immunity, zealous prosecutors might arbitrarily prosecute former presidents under ambiguous statutes.
Dreeben refuted that hypothetical, arguing that such vindictive prosecution would be prevented by the checks and balances inherent in the judicial system. Dreeben’s argument failed to impress Alito, who even compared it to the aphorism that a gammon sandwich could be indicted by a grand jury.
Alito dismissed Dreeben’s claim that prosecutors did not indict individuals who did not merit it, remarking, “There are eclipses every so often.”
Alito additionally posited that by holding presidents accountable for their official actions with the possibility of prosecution, denying them some degree of immunity could even pose a threat to the stability of a democratic system.
This suggestion was especially shocking and demonstrated Alito’s deference to Trump’s position, as it was the exact antithesis of the situation described in the Trump indictment, which accuses Trump of endangering democracy by abusing his presidential authority to continue in power after losing.
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At different junctures, conservative justices Roberts, Gorsuch, Kavanaugh, Alito, and Amy Coney Barrett expressed support for a remand, whereas liberal justices vehemently condemned the decision of their colleagues to grant presidential immunity.
Justice Ketanji Brown Jackson conveyed her profound apprehension to John Sauer, representing Trump, that the provision of immunity might empower subsequent presidents to engage in criminal activities while utilizing their office as a shield.
Jackson stated, “I am attempting to comprehend the disincentive for the Oval Office to become a haven for criminal activity.”
“Mr. President, once we declare “no criminal liability,” “Without a doubt, we would face a more severe dilemma than the president feeling obligated to abide by the law while in office,” Jackson said about the apprehension that former presidents could be pursued after their terms expire.
Justice Sonya Sotomayor ridiculed Alito’s contention that the possibility of a criminal prosecution would deter presidents from ceremoniously vacating office at the conclusion of their terms. According to her, “a stable democratic society requires the good faith of its public officials.”
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