National Review Online
Monday, April 29, 2024
The Supreme Court on Thursday heard arguments about
whether Donald Trump is entitled to immunity from prosecution for his official
acts as president and, if so, how that works: What acts are official? Is the
immunity absolute or qualified? Does immunity depend upon whether the president
acted within his powers or whether his lawyers told him he did? When and how
does a court — or a jury — decide?
The very fact that the Court heard the case has prompted
a round of assaults on the legitimacy of the Court from the same liberal and
progressive quarters that have been attacking the Republican-appointed justices
for the past eight years. There are the usual claims that the fix is in for
Trump, that the justices are enabling a dictatorship, or that the Court’s
conservatives are betraying their stated principles. The critics are at best
premature and at worst affirmatively misleading.
The Court was right to take this case. The Supreme Court
exists to answer legal questions such as these in ways that provide guidance
and certainty by establishing neutral rules that apply equally to all.
Presidents have been previously protected from prosecution in part by norms of
behavior. Now that Trump has been deluged with criminal charges, however, that
Rubicon has been crossed by him and his critics. It will be difficult to go
back, especially now that both parties have concluded that removing presidents
by impeachment is practically impossible, so that pressure builds up in the
system to use stronger medicine. Trump himself is running on a pledge of
“retribution,” so it is far from fanciful to imagine him pushing for a
prosecution of Joe Biden. The Court may not need to answer every question about
presidential immunity now, but it can at least begin the task of establishing
rules that will apply in the future regardless of which party is in power, and
which is in the dock.
Much of the hue and cry arises from the fact that the
appeal has delayed proceedings in Jack Smith’s case against Trump in federal
court in D.C., which focuses on Trump’s efforts to overturn the 2020 election.
There is nothing improper about a few months’ delay to resolve a consequential
issue of national importance. The Justice Department waited years to bring
these charges in August 2023, letting House Democrats first finish their
public, political work with televised hearings and a report that aimed to influence
the 2022 midterms. The events of January 2021 are well known, and the House
report remains accessible. Democrats now complain that they need Smith to put
Trump on trial before Election Day in order to reveal further evidence that was
developed in the grand jury. But grand juries exist to enable the prosecution
of crimes, not to script campaign commercials.
In any event, the Court just heard arguments in a
separate case to determine the applicability to January 6 of one of the
statutes Trump is charged with violating. A decision in that appeal could
affect how Smith presents his case at trial. So, some delay in trying this case
was inevitable. Plus, resolving the immunity question now also
affects Trump’s efforts to claim immunity in the Mar-a-Lago boxes case, which
is still further from going to trial.
If anything, the fact that Smith’s charges in this case
go to Trump’s public offenses against our democratic system is all the more
reason why the judgment of those charges by 150 million voters nationwide is
more important than the judgment of twelve jurors in D.C. Appeals to the rule
of law would also be more persuasive if Smith’s charges were not themselves
based upon some creative and dubious extensions of federal law.
Nor is it unreasonable for the Court to take seriously
the notion of giving presidents some immunity from prosecution. The Court
already, in 1982, found that presidents are absolutely immune from
civil-damages lawsuits for their official acts. It has adopted a number of
other rules for immunity of judges, prosecutors, and other officials, many of
which derive from the common law rather than from constitutional text. The
Paula Jones lawsuit was tied up in court for years over Bill Clinton’s claims
of immunity before the Court unanimously rejected that claim, albeit with some
cautions about how litigation against presidents is handled. The Court applied
the same rules in 2020 regarding state subpoenas to Trump’s accountants,
rejecting Trump’s claim of absolute immunity. Even the Justice Department
lawyer who argued the case, Michael Dreeben, contended for a form of
presidential immunity by another name, arguing that a president could not be
prosecuted so long as the Justice Department advised him that his acts were
legal.
The justices’ questioning at the argument reveals that
they take very seriously the legal questions before them and see the general
issue of presidential immunity as being much more important than bailing out
Trump. As Justice Neil Gorsuch observed, “we’re writing a rule for the ages.”
Indeed, none of the justices showed any inclination to rule that Trump is
completely immune from prosecution, given that even Trump’s lawyer conceded
that much of the indictment charges conduct in Trump’s capacity as a candidate
rather than his official acts as president.
In short, this case isn’t mainly about Trump, and the
critics aren’t mainly upset about the law of immunity. The justices should stay
focused on getting the law right and let others worry about the politics.
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