[This post is in progress.]
I have called the federal case against Donald Trump for attempting to subvert the results of the 2020 U.S. presidential election perhaps the most important case in U.S. history, at least when it comes to our democracy. That case should have gone to trial last month, but the case got put on hold when Donald Trump filed an interlocutory appeal (that is, an appeal in the middle of trial proceedings) arguing that he is absolutely immune from any criminal prosecution for any acts he undertook as President. Trump lost that argument in the trial court and in the U.S. Court of Appeals for the D.C. Circuit. The Supreme Court agreed to hear the case, on a somewhat expedited basis, but not on the basis that Jack Smith, the special counsel, had asked for (he originally wanted the Court to leapfrog over the D.C. Circuit but the Court said no). Trump already may have effectively won by running out the clock so a trial could not happen before the election. This is the last argument day of the term, and I would not expect an opinion until the very end of the Supreme Court’s term in late June or early July, unless there’s movement to expedite following oral argument.
What I’ll be listening for: how much is there a focus on Trump’s actions in trying to subvert the election? Is there a path to saying that at least such interference is not immune, leaving other immunity issues to another day? Is the Court going to be worried about a slippery slope of potential criminal prosecutions of former presidents after they leave office?
Arguments have begun. John Sauer for Trump, raising potential claims against other presidents potentially being indicted for official acts.
Justice Thomas asks the first question—and we should not let this opportunity to pass to mention that he should recuse given that his spouse has credibly been alleged to have been part of same attempt to subvert the results of the 2020 election?
Chief Justice Roberts asks about bribery for money from the president. Sauer’s response misunderstands how bribery works and how there is legislative immunity. This is not an impressive start for Sauer.
Justice Sotomayor asks if there would be immunity if President ordered military to assassinate a rival for personal gain. She’s going hard at Sauer on how bad it would be to absolute immunity for personal gain.
Justice Jackson—zeroes in on what counts as an official act for purposes for absolute immunity. What defines an official act? She suggests that when the President uses the trappings of his office for personal gain, that’s not an official act.
If everyone thought President Nixon was immune, what was up with the pardon?
Justice Gorsuch gets Sauer to agree that there’s no absolute immunity for non-official act.
Sauer also agrees that further proceedings would be required as to any non-official acts. That of course would delay things.
Alito floats: absolute immunity except for when there’s no plausible claim that it’s an official act.