Trump argues presidential immunity before a Supreme Court he helped select

The results were about what you'd expect.

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Yesterday, the Supreme Court reviewed what could be one of the most consequential cases in years. The Court gathered to hear opening arguments concerning the nature of Donald Trump’s presidential immunity, which could hypothetically protect him from legal consequences regarding his efforts to overturn the results of the 2020 election.  

“Without presidential immunity from criminal prosecution, there can be no presidency as we know it. For 234 years of American history, no president was ever prosecuted for his official act,” Trump’s lawyer, D. John Sauer, argued in his opening statement to the court. “If a president can be charged, put on trial and in prison for his most controversial decision 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.”

However, Sauer did seem to concur with special counsel Jack Smith — who has spent the past two-and-a-half years investigating Trump for his handling of classified documents as president and his role in the Jan. 6 riots — that there were certain limitations to the function of presidential immunity. This was a position Sauer had previously argued against, where he claimed presidential immunity was absolute under the Constitution. 

This did not stop the more conservative justices on the bench from expressing anxiety about setting a broad precedent that would allow for any president to face legal consequences for their actions as president. 

“The problem is the vague statute, you know, obstruction and … conspiracy to defraud the United States, can be used against a lot of presidential activities historically with a creative prosecutor who wants to go after a president,” Justice Brett Kavanaugh said during the hearing. 

Such framing is then about distinguishing between the president’s personal actions versus his official actions as president. And Sauer seemed to be arguing that Trump’s conduct during the twilight of his presidency was under the auspices of his “official” capacity. 

These observations were brought to a head by Chief Justice John Roberts, who stated that any indictments related to Trump’s official conduct should be expunged. And, crucially, that this lack of clarity meant that the case should be remanded and returned to a lower court. 

“Why shouldn’t we either send it back to the court of appeals, or issue an opinion saying [the D.C. Circuit ruling] is not the law?” Roberts asked Michael Dreeben, a member of Smith’s legal team. “The court of appeals did not get into a focused consideration of what acts we’re talking about or what documents we’re talking about … They did not look at what courts usually look at.” 

Delays to the case would prove advantageous to Trump: If the can is kicked down the road, any legal consequences for Trump related to his personal activity as president could be further procrastinated should he win the presidency.  

That’s why, despite a hardened belief amongst Democrats that the judicial system should prevent Trump from getting his hands on the levers of power again, the best strategy might be to put an end to MAGA once and for all in the upcoming election — especially if the Constitution and the Supreme Court prove to be an ineffective guardrail.  

“It now falls to Americans to avoid learning the wrong lessons from this moment. Mr. Trump may lose at the ballot box or be convicted in one of the four criminal cases he faces, including the one that started this month in Manhattan,” Aziz Rana, a Boston College law professor, explained in a recent New York Times op-ed. 

“If he is held accountable, it will not be because the Constitution saved us, given all its pathologies.” 

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Jamie Larson