Dem
51
GOP
49
Donald Trump had COVID-19, so he is probably immune to that. But is he also immune to being prosecuted for attempting to overturn an election he lost? The Supreme Court will take a look at that today as it holds oral arguments on Trump's claim that when the president does it, it is not illegal (shades of Richard Nixon). If the Court decides that, nope, Trump is not immune, Judge Tanya Chutkan could decide to hold his trial in the summer or fall, despite Trump doing everything he can to prevent that. If the Court decides that Trump IS immune, in a second term, Trump could openly break the law whenever he wanted to knowing that he was immune to prosecution not only during his presidency, but also after it. Theoretically, such a decision could also enable Joe Biden to order SEAL Team Six to assassinate Trump and get away with it, but that is not his style.
In their brief, Trump's attorneys wrote: "The President cannot function, and the Presidency itself cannot retain its vital independence, if the President faces criminal prosecution for official acts once he leaves office." Of course, that applies only to illegal acts. As long as the president does nothing illegal, he's safe. And if he is not sure about the legality, there is the Office of Counsel to the President, whose only purpose is to advise the president about what is legal and what is not. Trump's lawyers also argued that there is a mechanism for taming a rogue president: impeachment. Of course, losing your job is not the same as going to prison. And a rogue president could simply resign before being impeached.
The lower courts have not been impressed by this argument. The district court rejected it and that was upheld unanimously by the U.S. Court of Appeals for the District of Columbia. The appeals court wrote that if Trump's theory is accepted, it would put the president above the law. In his brief, Special Counsel Jack Smith argues that there is no historical precedent for anything like that (and the current Supreme Court sometimes cares about historical precedent) and a ruling in favor of immunity would undermine the founders' vision of a presidency restrained in power. They didn't want a king as they had some experience with one. Smith also noted that Trump's actions to stay in power after losing an election were "a private scheme with private actors to achieve a private end: petitioner's effort to remain in power by fraud." They were not official actions of the president exercising his lawful powers. This argument could allow the Court to rule against Trump for private criminal acts while skirting the question of whether a president is immune to prosecution for official criminal acts.
If the Court wants to protect Trump but also not give future presidents freedom to break the law, it could make some general statement and then send the case back to the lower court for a rehearing on the immunity question. That would solve Trump's problem of being put on trial before the election.
Not that the justices pay a lot of attention to polls, but an Ipsos poll shows that 65% of Americans think the Jan. 6 indictment is serious, including 51% who think it is very serious. About 52% think he should have been charged with a crime vs. 32% who think he should not have been.
One other thing the Supreme Court could do to help Trump is delay the decision, even if it is unfavorable, as long as possible. That could mean a decision in late June or even early July. (V)