Last week, 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.
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