One year after Jan. 6, legal scholars were tussling over a weighty theoretical question: When can a President be prosecuted? Were Donald Trump’s actions in the run-up to the storming of the Capitol enough for him to be civilly — or even criminally — liable?
The discussion was largely driven by civil cases, but it focused on a question in American law which has been little explored because Donald Trump is the first President to try to reverse his defeat at the polls, now resulting in prosecution: how far does the immunity granted to Presidents for their official acts extend when the President commits an obvious crime?
It’s a meaty and interesting theoretical discussion and, per the question that the Supreme Court presented in taking Trump’s immunity appeal of his D.C. Jan. 6 prosecution, will feature at the center of the justices’ thinking during oral arguments in April. But the Court’s decision here to take on the thorny theoretical question sets the country up for real, practical consequences.
Examining the issue adds months of delay to the case, potentially pushing it up against — or beyond — the November presidential election. The complexity which provided legal scholars with so much grist for the mill in the years after Jan. 6 may now give the Court a means of further prolonging a decision.
In focusing on the genuinely unclear question of where presidential immunity ends, the Supreme Court has potentially given itself a lot to sift through — even though it has taken the case on an expedited schedule. There’s very limited case law in this area, the vast majority of which hasn’t been touched since cases involving President Richard Nixon.
“This isn’t a hard case,” Joyce Vance, a former U.S. attorney, wrote. “The argument Trump makes — that presidents are entitled to absolute immunity from criminal prosecution for anything they do in office, specifically, for trying to steal an election — has to be a loser.”
The question is less whether Trump is wrong, but rather, how he may be wrong.
The Court is focusing on the most complex and unresolved portion of the claim that Trump has raised in response to the D.C. Jan. 6 indictment accusing him of perpetrating a fraud on the American people by fighting to stay in power after losing the election.
The D.C. Circuit largely sidestepped the question of whether Trump was protected under official acts immunity. The three-judge panel relegated that argument to a footnote in which it rejected the notion that “any actions [Trump] took in his role as President should be considered ‘official.'”
The move gives room for the court to potentially articulate a standard in American law which currently is ill-defined. It may address situations arising from national security concerns where a president may have a legitimate need to act without, as Trump’s attorneys have put it in their court papers, “looking over his shoulder” to ensure that there won’t be a prosecution down the road.
Lee Kovarsky, a professor at the University of Texas School of Law, distilled the non-Trump version of this view in a Thursday op-ed for the New York Times.
“The point is that, when the Supreme Court reviews the special counsel’s prosecution, it should do more than simply reject Mr. Trump’s assertion of official acts immunity,” Kovarsky wrote. “It should use the case to ensure that the federal judiciary has properly calibrated tools to ward off prosecutor abuse promised as political retribution.”
These questions over the nature of presidential immunity depart dramatically from the conduct over which he’s charged: convening slates of fake electors, trying to have the DOJ intervene in the election, and coaxing Mike Pence into discarding electoral votes for Biden as part of a sweeping effort to undo the presidential election.
Trump himself welcomed the Supreme Court taking the time to consider the issue in a post on Truth Social, claiming that “legal scholars are extremely thankful” for the opportunity to mull the issue.
“Presidents will always be concerned, and even paralyzed, by the prospect of wrongful prosecution and retaliation after they leave office,” Trump wrote. “This could actually lead to the extortion and blackmail of a President. The other side would say, ‘If you don’t do something, just the way we want it, we are going to go after you when you leave office, or perhaps even sooner.’”
