If Thursday’s Supreme Court hearing on former President Donald J. Trump’s claims of executive immunity is any indication of how the court might ultimately rule, the justices could end up helping Mr. Trump in two ways.
The justices signaled that their ruling, if it comes, could result in some allegations being struck from the federal indictment accusing Mr. Trump of trying to overturn the 2020 election.
And because the process of deciding which allegations to keep and which to throw out could take several months, the chance of Mr. Trump going on trial on charges that he tried to undermine the last election would be slim voters could decide on it was almost nullified. In this case, vote for him again.
However, toward the end of the argument, Judge Amy Coney Barrett abruptly suggested a way for prosecutors to maneuver out of this time-consuming quagmire. If the special prosecutor, Jack Smith, wanted to move more quickly, she said, and avoid the ordeal that comes with lower courts examining his charges line by line and deciding what should stay and what should go, he could always do the job himself complete.
That suggestion, which Mr. Smith’s team seemed reluctant to accept as a possibility, foreshadowed how Thursday’s hearing focused not only on thorny questions of presidential power and constitutional law but also touched on more practical elements of it, like Mr. Trump’s Criminal proceedings could continue after the court decision.
However the justices decide on the question of whether to grant presidents some level of immunity from prosecution, the outcome will have a direct and immediate impact on the election interference case, one of the key prosecutions against Mr. Trump.
When Mr. Smith filed his impeachment in Washington last summer, Mr. Trump found himself at the center of an overlapping web of criminal conspiracies, all aimed at overturning the election results in several key swing states.
The indictments detailed dozens of individual steps Mr. Trump took to achieve his goals. They described, among other things, how he tried to get the Justice Department to confirm his claims that the election results were distorted by fraud. And they present evidence that he pressured state legislators to produce false electoral rolls claiming he won in states where he actually lost.
Executive immunity was the first defense Mr. Trump raised against these allegations, and when his lawyers first raised the case six months ago, they were bold.
The lawyers flipped the script on Mr. Smith’s prosecution, arguing that Mr. Trump was completely immune from prosecution because he acted in a protected role as president to defend the “integrity” of the election, rather than as that Prosecutors alleged his private role as a candidate tried to undermine them.
While the Supreme Court did not appear to fully accept these sweeping claims, the court’s conservative justices seemed interested in the idea that presidents should enjoy some form of criminal immunity. Again and again, they circled around the idea that presidents would probably be protected from prosecution for official actions that were central to their jobs, but could still face prosecution for private conduct.
Should the Court issue a decision adopting this standard, some of the specific allegations raised by Mr. Smith may need to be rejected. Even if the case were to stand and go to trial, prosecutors might not be able to tell jurors every chapter of the sprawling story they concocted.
A first glimpse into the process of weighing charges by separating official actions from private actions emerged Thursday during some back-and-forth conversations between two of the justices and D. John Sauer, the lawyer who argued on Mr. Trump’s behalf.
For example, speaking to Justice Elena Kagan, Mr. Sauer said that Mr. Trump had acted in his official role as president when he sought in his final days to install a loyal Justice Department official, Jeffrey Clark, as acting attorney general’s office. Mr. Sauer portrayed the move as a type of personnel decision that fell within the president’s purview, although prosecutors say Mr. Trump wanted to promote Mr. Clark for an entirely different reason: because he had promised to make claims about election fraud.
Similarly, Mr. Sauer argued that Mr. Trump was merely discharging his duties as president when he asked Arizona House Speaker Rusty Bowers to call the state Legislature into session in late 2020 to hold a hearing on the issue deter election fraud.
“We have taken the position that this is official,” Mr. Sauer said, adding that the request was made to Mr. Bowers “to defend the integrity of a federal election.”
But if Mr. Sauer sought to define some actions in Mr. Trump’s indictment as official — and thus off-limits to the prosecution’s case — he acknowledged that others appeared to be private, suggesting they were for Mr. Smith’s benefit team would remain fair game.
When Judge Barrett noted that Mr. Trump had turned to “private counsel” — an apparent reference to Rudolph W. Giuliani — “to further his challenges to the election results,” Mr. Sauer acknowledged that he was not acting in his capacity as president .
“That sounds private to me,” Mr. Sauer said.
Judge Barrett received a similar response when she pressed Mr. Sauer about Mr. Trump’s involvement in the now-famous scheme to create fake voter lists. When Judge Barrett reminded Mr. Sauer that the indictment alleged that Mr. Trump’s personal lawyers and an outside political adviser participated in the scheme, Mr. Sauer said, “That’s private.”
But these concessions could be interpreted as a tactical retreat intended to secure a greater strategic victory. In fact, it appeared at times as if Trump’s legal team was abandoning its maximalist position — that immunity extended to the entire prosecution — to ask the court to examine in detail the finer differences between official and private actions.
If the justices do so, they could ask a federal appeals court or the trial court in Washington to take on the task. And considering that the task would most likely require detailed arguments over dozens of allegations — and possible appeals of those decisions — it could easily take months, pushing the trial back to 2025.
While the conservative justices in particular appeared to be in no rush to bring the case to trial, Judge Barrett at least acknowledged tensions over timing. At one point she told Michael R. Dreeben, who was arguing on Mr. Smith’s behalf, that “the special counsel has expressed certain concerns about the speed and desire to move forward.”
Then she came up with her surprising plan to speed up the case.
Your suggestion?
The special counsel could essentially handle his own indictment and “proceed on the basis of private conduct and abandon official conduct.”
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2024-04-26 16:59:11
www.nytimes.com