Trump's Immunity Case Was Settled More Than 200 Years Ago [View all]

https://www.nytimes.com/2024/04/26/opinion/trump-immunity-founding-fathers.html

https://archive.ph/EIuvL



Did the American Revolution actually happen? If it did, was it a good thing? This is more or less what Justice Elena Kagan seemed to be wondering during the oral arguments in Donald Trump’s Jan. 6 immunity case at the Supreme Court on Thursday morning. “Wasn’t the whole point that the president was not a monarch and the president was not supposed to be above the law?” she asked. Like her, I had assumed those questions were answered decisively in the affirmative more than 200 years ago. But now, after almost three hours of circuitous debate and bizarre hypotheticals at the Supreme Court, I’m not so sure.

The right-wing justices seemed thoroughly uninterested in the case before them, which involves a violent insurrection that was led by a sitting president who is seeking to return to office in a matter of months. Instead, they spent the morning and early afternoon appearing to be more worried that prosecuting Mr. Trump could risk future malicious prosecutions of former presidents by their political rivals. And they tried to draw a distinction between official acts, for which a president might have immunity from prosecution, and private acts, for which no immunity would apply. The upshot was that a majority of justices appeared prepared to send the case back down to the lower courts for further unnecessary litigation, which would almost certainly eliminate any chance of a trial being held before Election Day.

So let’s remember how we got here. The case began last year with the special counsel Jack Smith’s indictment of the former president on charges of obstruction, fraud and conspiracy relating to his central role in the effort to overturn his defeat in the 2020 election, which resulted in the deadly attack at the U.S. Capitol. This scheme was, by a long shot, the most egregious abuse of authority by any president in history. It has resulted in multiple federal and state indictments of Mr. Trump and his associates, some of whom have already pleaded guilty to elements of the broader plot. In short, the justice system is doing its job by trying to hold to account a former president for subverting the last election before he runs in the next one.

That is a very important job! And yet the right-wing justices are saying, essentially, not so fast — and maybe not at all. The federal Jan. 6 trial should have been underway for almost two months by this point. Instead, Mr. Trump managed to derail the prosecution with an off-the-wall appeal that he is absolutely immune from prosecution for his actions up to and on Jan. 6, which he claims were taken in the course of his official duties — even though the president has no role in overseeing how states run their elections. The lower courts, in opinions by judges appointed by both Republicans and Democrats, dispatched this appeal with ease. But the Supreme Court decided to take the case anyway, scheduling it for the final argument day of the term. The arguments on Thursday tracked with this oddly leisurely pace, laced with hypothetical arguments.

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