Supreme Court Majority Is Sympathetic to Trump's Immunity Claim With No Trial Likely Before the Election

AP Photo/J. Scott Applewhite

The U.S. Supreme Court heard arguments stemming from Special Counsel Jack Smith's prosecution of former President Donald Trump on felony charges that he conspired to overturn the results of the 2020 election. Jack Smith sent his advocate, Michael Drebeen, a veteran of over 100 Supreme Court appearances and Robert Mueller's unethical investigation of President Trump, into a proverbial Cuisinart of hostile questions. If the questions and statements of the justices are to be taken at face value, Trump's trial will not take place before November's election and possibly not at all.


Trump argues that any actions he took before January 20, 2021, were covered by presidential immunity. Basically, Trump said that if a president were constantly looking over his shoulder, fearing post-presidential prosecution, the office would cease to function. I happen to think that is true. Smith argued that despite the Justice Department's long-standing policy of not prosecuting ex-presidents, Trump poses such a unique threat to the republic that it is necessary in this case.

Amy Howe at SCOTUSBlog has a detailed discussion of the two sides. This is how we got to the Supreme Court today.

Trump was indicted last summer on four counts arising from Special Counsel Jack Smith’s investigation into the Jan. 6, 2021, attacks on the U.S. Capitol. Trump, the indictment contends, created “widespread mistrust … through pervasive and destabilizing lies about election fraud” and then perpetrated three criminal conspiracies to target “a bedrock function of the United States federal government: the nation’s process of collecting, counting, and certifying the results of the presidential election.”

Trump sought to have the charges against him thrown out, arguing that he is immune from prosecution because he was president. After Chutkan denied that request in December, it was Smith who came to the Supreme Court, asking the justices to weigh in on Trump’s claim to immunity without waiting for the U.S. Court of Appeals for the District of Columbia Circuit to rule on Trump’s appeal. The justices denied that request on Dec. 22.

Six weeks later, the D.C. Circuit upheld Chutkan’s ruling and rejected Trump’s immunity claims. It told Trump that its decision would go into effect (and that the criminal case against him could therefore go forward) on Feb. 12 unless he asked the Supreme Court to intervene by then.

That meant it was Trump’s turn to go to the Supreme Court, seeking to have the D.C. Circuit’s ruling put on hold so that he could file a petition for review of that decision. He stressed the importance of “thoughtful consideration,” while Smith countered that Trump’s trial should be allowed to proceed without further delay.

In a brief unsigned order two weeks later, the justices agreed to weigh in on whether and to what extent a former president is immune from prosecution for conduct that allegedly involves his official acts during his time as president. The justices fast-tracked the case for argument during its April argument session, and it instructed the D.C. Circuit to keep its ruling on hold until the Supreme Court issues its decision.


This is a flavor of how things went.

This is from the legal Corgi at, crying over the injustice of it all.

Much of the Court’s Republican majority, moreover, seemed eager not simply to delay Trump’s trial until after the election, but to give him extraordinarily broad immunity from criminal prosecution should he be elected once again. Justice Brett Kavanaugh, for example, argued that when a president exercises his official powers, he cannot be charged under any federal criminal statute at all, unless that statute contains explicit language saying that it applies to the president.

As Michael Dreeben, the lawyer arguing on behalf of Smith’s prosecution team, told the Court, only two federal laws meet this standard. So Kavanaugh’s rule would amount to near complete immunity for anything a president did while exercising their executive authority.

Justice Samuel Alito, meanwhile, played his traditional role as the Court’s most dyspeptic advocate for whatever position the Republican Party prefers. At one point, Alito even argued that permitting Trump to be prosecuted for attempting to overthrow the 2020 presidential election would “lead us into a cycle that destabilizes ... our democracy,” because future presidents who lose elections would mimic Trump’s criminal behavior in order to remain in office and avoid being prosecuted by their successor.

In fairness, not all of the justices, or even all of the Republican justices, engaged in such dizzying feats of reverse logic. Roberts did express some concern that Trump lawyer John Sauer’s arguments could prevent the president from being prosecuted if he took a bribe.


IANAL, but this went terribly for Jack Smith. In the words of RedStater Bill Shipley (Shipwreckedcrew), it wasn't Dreeben's fault.

The print transcript and audio recording are at the link.

If we judge by the questions and commentary, there are five, possibly six, votes for Trump's argument at least in part with discussion about separating private from official acts. There seemed to be a consensus that the trial court and appeals court have done a pretty bad job. It seems very likely that the case will be kicked back to DC Judge Tanya Chutkan to hold hearings on the acts and decide if they are official or private. The DC Circuit will likely hear that case, and it will come back to the Supreme Court. Smith prosecuting Trump for anything seems out of the question until after the election.

Of course, I could be totally wrong about everything.



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