On the issue of whether and to what extent does a former president of the United States enjoy immunity from legal prosecution for standard functions while in office, the Supreme Court heard claims on Thursday night in the case of Trump v. United States.
Most magistrates appeared questioning both parties ‘ opportunities in this challenging and largely unknown area of law. No act, before Supreme Court law, or provision of the Constitution speaks straight to this problem. In 1982, the Supreme Court, in Nixon v. Fitzgerald, ruled that presidents enjoy immunity from civil dispute based on their established acts. The jury, in a 5- 4 decision, grounded the resistance in the legal separation of powers. It claimed that the judicial branch should not investigate the justifications behind political decisions in order to hold the leader personally accountable for damages. In deciding this assumption, the court emphasized the president’s special nature and responsibilities.
In Trump’s event, the events and the judges all agreed on specific points. Second, that strictly secret conduct by the chairman, which is supposedly legal, could be prosecuted. Trump’s attorney also conceded that strategy perform, acting like an “office seeker” rather than an “office owner”, was secret, rather than established, conduct.
Next, that the president has some constitutional authority that is unique to the president, such as the authority to grant pardons, and that acts that carry out those powers may be prosecuted by the prosecution or criminalized by Congress. Throughout the discussion, these were referred to as” core” areas of presidential power. The events and the justices had wildly divergent viewpoints on everything from the relevant name to the definition of immunity, to the legal frameworks for putting it into practice in the courts.
Technically speaking, the issue before the court is: Does a former president have political immunity from legal prosecution for alleged official behavior during his term in office, and if so, how much?
John Sauer, Trump’s attorney, urged the justices to rule that former president also enjoy legal case resistance in the same way that the earlier Fitzgerald situation did. That judgement would prevent criminal trial for any work that came within the “outer boundary” of the reach of a president’s standard acts, regardless of the reason, motive, intent, purpose, etc. for taking those deeds. According to Sauer, the authorities should use an objective analysis to determine whether the behavior fell under the purview of the leader. In other words, the evaluation depends on what the president truly thought and not on whether or not his actions conceivably would have been in line with his authority.
By contrast, Special Counsel Jack Smith’s attorney, Michael Dreeben, argued that the Constitution does not provide any legal resistance for the leader, unlike the resistance for” speech and conversation” provided for Congress. He argued that a previous president could otherwise file a case-by-case” problem” against any accusation against him because the Constitution prohibits the precise functions alleged from being the foundation for criminal charges. Dreeben told the great court he was speaking for the Department of Justice, not just the unique attorney’s office, in taking this place.
In an unexpected move, Trump’s guidance did not offer any reply argument, evidently deciding that, after two and a half hours of argument, farther discussion did not change the views of any justice.
A serving president might feel compelled to follow the law while in office to avoid criminal prosecution in the future, according to the court’s leftist block, who expressed concern about Sauer’s position. In contrast, the majority of conservative justices appeared to be more concerned with incentivizing political prosecutions by putting former presidents on trial for their prior official deeds.
Justice Kavanaugh, in particular, analogized the situation to the politicization that occurred under the now- expired independent counsel statute and roiled the administrations of Presidents Reagan, George H. W. Bush, and Clinton. Justice Barrett expressed concern about such cases being brought in state courts, where many of the structural safeguards that Dreeben claimed would tend to prevent such cases would not be in effect.
Both attorneys were asked by the justices about how their respective positions would actually work. For instance, what procedures would be followed, when could their respective proposals be used in the criminal process, and whether there would be an appellate review, either immediately or only after conviction, etc. These technical issues particularly piqued the attention of Justices Barrett and Sotomayor. Along with Justice Jackson, they also focused on the statutory” clear statement” principle, which is frequently used by the DOJ and its Office of Legal Counsel as a pretext to limit the presidency’s ability to carry out generally accepted criminal statutes out of concern that it would not interfere with the office’s legitimate functions. These technical and application questions sought to flesh out each party’s proposed conclusion on the immunity issue, but they did not directly address the question of whether immunity existed.
There were some notable fireworks in the questioning. Chief Justice Roberts, for instance, blatantly defended his position by saying he disapproved of the D.C. Circuit’s theory that any criminal charge brought by a prosecutor against a former president must be brought legally. Evidently aghast at the lower court’s conclusion, he demanded to know why the court should not issue an opinion that simply reversed that “tautological” conclusion.
Justice Gorsuch, as he has in past arguments, formulated a hypothetical about “mostly peaceful protests”. He inquired as to whether a president who led a protest that delayed the passage of a piece of legislation could be charged under the federal obstruction statute after stepping down, as such actions would be considered to be outside of Dreeben’s purported” core actions” which were not prosecutable. Gorsuch lamented Dreeben’s suggestion that former presidents could not “immunity” them but could instead” as applied Article II challenge” them to say their conduct was sufficiently official and unassued to legal action. He expressed the view that by whatever name, the concept at issue is “immunity” of some form.
Regardless of the label the justices have put on it, it appears that the court as a whole is willing to concur with former president Trump that there is at least some form of immunity from criminal prosecution. The justices ‘ opinions on the scope of this “immunity,” how it should actually apply at the trial level, and whether a trial court’s decision against the former president can be appealed before the trial can be decided are obviously very different.
Thus, the most likely outcome in this case appears to be a decision that was supported by a protracted opinion and numerous concurring and dissensions, in whole or in part.
As to when that decision will be forthcoming, it is unclear when the justices will rule. Ordinarily, absent extenuating circumstances, they would do so by the end of their current term, which closes June 30.
Leslie McAdoo Gordon is the principal of McAdoo Gordon &, Associates, P. C., founded in 2003. She defends criminal defendants who are facing misdemeanor and/or felony charges as well as” white collar” criminal offenses in state and federal courts. She also represents contractors and individuals who are facing administrative sanctions, including removal of security clearances and removal from federal contracts. McAdoo Gordon graduated from the Georgetown University Law Center in 1996, according to Ms.  . She is licensed to practice law in Maryland, Virginia, the District of Columbia, and numerous federal trial and appellate courts, including the U. S. Supreme Court.
