Trump’s biggest legal victory is in sight: presidential immunity
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Many progressive pundits are predicting that the Supreme Court of the United States will deny Trump’s claim of immunity for his actions surrounding the 2020 election. They may be right, but if the justices were simply going to affirm the very broad lower court decisions, why did they grant review? Cynics claim that the justices were simply doing Trump’s bidding by slowing down his trial in Washington DC. There may however be a more reasonable and less political explanation.
The lower court decisions were extremely broad, denying virtually any immunity for acts taken by a former president when he was in office. It is possible therefore that the court took the case in order to narrow these decisions somewhat. Presidents should have some immunity for some actions clearly within the scope of their presidential authority, and if they do, this immunity should not end when they leave office. Otherwise presidents would be fearful of taking controversial actions while serving.
One possible decision might be for the court to articulate a narrow criteria for presidential immunity and then remand the case to the lower courts to determine whether President Trump’s actions or inactions fall within that narrow exception.
It is true that the text of the US constitution does not provide explicitly for any presidential immunity, as it does for legislators. But nor does it provide for judicial immunity, and yet the Supreme Court has ruled that some judicial immunity is implicit in the role of judge. Moreover the constitution does not explicitly mandate any form of executive privilege for a president and his advisers, yet the justices have recognised such a privilege.
Furthermore, the Supreme Court did rule that Richard Nixon had immunity from some forms of civil liability. There is a legitimate basis therefore for the court to find a limited form of immunity from criminal prosecution in cases where the president acted clearly within his authority as chief executive.
The justices may have provided a hint as to what they were thinking when they framed the narrow question for review. Here is what they ask the lawyers to address: “Whether and if so to what extent does a former president enjoy presidential immunity from the criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
In articulating this question, the court rejected the proposed questions that both Trump’s lawyers and special prosecutor Smith’s lawyers had asked them to decide. It seems likely therefore that the court intends to issue a narrow legal ruling, rather than itself getting into the issue of whether Trump’s actions or inactions come within its criteria of “official acts during his tenure in office”.
It is still possible of course that the court will simply affirm the appellate court’s decision. But if they do so, it will lend support to the cynics who have accused them of acting in a partisan fashion by simply delaying the Washington proceedings, which may not then conclude until after the election.
It is also possible that by narrowing the question to be decided, the chief justice is once again seeking some kind of unanimity, as he achieved in the Colorado disqualification case. It is highly unlikely however that unanimity will be achieved in the immunity case, because the issue is more complex and divisive than in the disqualification case. It is likely therefore that we will see a divided opinion with dissents and concurrences.
Pundits on both sides seem more interested in how this case will impact the candidacy of Donald Trump than in how it impacts the future of presidential immunity for future incumbents of the White House. The justices, however, may be more interested in the enduring impact of any decision they render than in its immediate impact on the coming election.
The Supreme Court operates in secret, and except for the notorious leak regarding the overruling of Roe v. Wade, it has generally maintained secrecy until its decisions are rendered.
Many pundits offer predictions that are based more on what they would like to see the court do than on what it is likely to do. I try my best not to allow my preferences to influence my predictions. So the only prediction I will make is that I don’t think there will be a majority for simply affirming the lower court’s decisions.
