Having listened to the oral argument this morning, I find myself contemplating two basic points. First, there is the paramount distinction between official acts and private acts, with the significant concessions that much of what Trump did in his effort to subvert the 2020 election were private acts and thus outside any possible scope of presidential immunity. Significantly, there was much discussion at the oral argument of the distinction between Trump-as-candidate (private) versus Trump-as-president (official), with the understanding that anything that Trump did as candidate would not get the benefit of any presidential immunity. To be sure, Trump’s attorney (John Sauer) attempted to argue that some actions that Trump took qualified as official–like his call to Georgia Secretary of State Raffensperger, where he asked Raffensperger to “find” him just enough votes to win the state–but it seemed pretty clear, as Michael Dreeben argued for the prosecution (at page 131), that such conduct would qualify as “acting in the capacity as office-seeker, not as President.”

Still, I’m currently more interested in a second important issue that emerged at the oral argument: with respect to those actions which are concededly official and not private, what if any immunity might Trump have in the context of this case? Trump’s attorney, Sauer, continued to press his untenable argument for an absolute presidential immunity, but equally untenable was the D.C. Circuit’s holding that presidents enjoy no immunity whatsoever. So what is the tenable middle ground? Dreeben, persuasively to my mind, argued in favor of a test that would permit prosecution of presidential official actions when undertaken in furtherance of a corrupt private motive. As he put it (at page 126), “for an incumbent president to … use his presidential powers to try to enhance the likelihood that [his plot to subvert the election] succeeds makes the crime in our view worse.”

Justice Alito proposed a test (at page 21) that “a former president cannot be prosecuted for official acts unless no plausible justification could be imagined for what the president did, taking into account history and legal precedent and the information that was provided to the president at the time when the act was taken.” That test might be somewhat more pro-immunity than warranted. For example, I can imagine reformulating it to provide that no president can be prosecuted for official acts unless no reasonable president could believe that the actions were lawful and warranted. But even under Justice Alito’s formulation, I’m not sure that any of Trump’s alleged criminal conduct would be immune from prosecution. Given what Trump was told about the results of the 2020 election by Attorney General Bill Barr, his campaign advisers, and others, there was “no plausible justification” (in Justice Alito’s words) for Trump attempting to undo the result of the election as he did.

What happens to the case now? This question was on the minds of several Justices, as well as many others. It seems to me that one possibility, if Justice Alito’s test or something like it is adopted, is for the Court itself to apply the test to the allegations in the indictment. Trump, after all, is seeking immunity for prosecution of the charges as alleged. But if the allegations set forth presidential behavior that, as Justice Alito put it, can’t plausibly be justified, then the indictment cannot be quashed solely on the basis of the pleadings and, instead, the case must proceed to trial forthwith.

I hope enough Justices can coalesce around the proposition that whatever the scope of presidential immunity may be for a president who appropriately deserves it, Trump’s conduct in an effort to cling to power despite being voted out of office is not within the scope of that immunity–whether his conduct was official or private in nature–and that the only task on remand is to proceed with case expeditiously now that the immunity claim has been rejected.

Note: Trump’s lawyer, Sauer, attempted to justify Trump’s conduct by reference to the role that President Grant played in the disputed Hayes-Tilden election of 1876. But Grant’s conduct, whatever one thinks of it, was entirely different from Trump’s. Grant was not running for reelection, but instead attempting to keep Reconstruction intact until the outcome of the election could be settled pursuant to the rule of law. I discuss Grant’s role in chapter 5 of Ballot Battles: The History of Disputed Elections in the United States, and provide multiple citations on Grant’s role in note 41 to that chapter. One of the cited sources is Brooks D. Simpson, Ulysses S. Grant and the Electoral Crisis of 1876-77, HAYES HISTORICAL JOURNAL, vol. 11, no.2 (Winter 1992). It is a distortion of that historical record to argue that it supports Trump’s claim of immunity in the present case.