Dem
51
GOP
49
Last Thursday, the Supreme Court held an oral argument about Donald Trump's claim that presidents have absolute immunity from prosecution for anything they do in office. A question that came up was essentially: If Joe Biden ordered SEAL Team Six to assassinate Donald Trump, could he be prosecuted after he left office? Trump's lawyers said no, he couldn't. This got many legal analysts very antsy since it would de facto put the president above the law and make him a king.
The Court was also very concerned about distinguishing between crimes a president committed as part of his official duties (e.g., taking a bribe from someone who wanted to be appointed as an ambassador or judge) and crimes not related to his official duties (e.g., personally stabbing his annoying brother-in-law to death). The justices seemed to imply that crimes not related to an official act could be prosecuted later but crimes related to the president's official duties are a tougher call. Trump lawyers were asked if what Trump is charged with (e.g., arranging for fake electors, trying to block the peaceful transfer of power, etc.) were related to Trump's official duties, and one of Trump's lawyers, D. John Sauer, admitted that no, these actions were not part of the job description in Art. II of the Constitution. So if Trump is charged with "private" crimes and private crimes can be prosecuted, why isn't this a slam dunk with a ruling of "In this case with these facts there is no immunity" and leave it at that? Why all the questions about official criminal acts that are not at all relevant to the case actually in front of the Court? This has led many legal analysts to criticize the Court as going way beyond what it is supposed to do, namely, rule on this one case and not rule on vaguely analogous cases that might some day possibly come before the Court.
One lawyer who is taking a contrarian view is George Conway. In a podcast with Sarah Longwell on The Bulwark, Conway says that he believes the Court is actually thinking about what would happen if Trump was elected president and appointed an attorney general who promised to indict Joe Biden for... being a Democrat. That case would, of course, eventually get to the Supreme Court. Conway thinks the Court might be trying to head that case off at the pass by making a ruling now that would distinguish between "official" crimes and "private" crimes. Not enforcing immigration laws would then be an official crime and thus not be prosecutable whereas claiming his dog as a dependent on his tax return would be a private crime and thus prosecutable.
Conway also thinks that there are two ways the Supreme Court might rule on the immunity case. One is to rule that in this specific case, Trump is not immune and for future cases the rule is... whatever. If that happens, according to the rules, Judge Tanya Chutkan could start the trial 81 days after the ruling comes down. If the ruling is made on June 28, the trial could start on Sept. 17. Nothing would prohibit that. There are no "election season" exceptions. Another possible ruling is to send the case back to Chutkan to determine if trying to block the peaceful transfer of power is an Official Act of the president. In that case, she could start the fact finding hearing on July 1 if she wants to. If this happened, the actual trial might not start before the election, but the fact finding, with the government presenting its case, could be quite damaging to Trump. Conway seemed to exclude the possibility of the Court simply ruling: "Trump is immune and can't be prosecuted." That would basically put every future president above the law and Conway doesn't think there are five votes for that. (V)