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.
For instance, Justice Samuel Alito asked, what if an incumbent president “loses a very close, hotly contested election?” Without immunity, there is a risk he won’t be able to “go off into a peaceful retirement” because of the fear that he will be criminally prosecuted by his political opponent. “Will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”
It was the literal inverse of the case before them. Michael Dreeben, the lawyer arguing the case for Mr. Smith, responded by pointing out that the justice system has a built-in mechanism for ensuring that prosecutions are fair: It’s called a lawsuit.
“There is an appropriate way to challenge things through the courts with evidence,” Mr. Dreeben said. “If you lose, you accept the results.” Mr. Trump, of course, did not accept his losses in more than 60 lawsuits, which is why we are all in this spot today.
Still, the right-wing justices seemed impervious to the urgency of the matter before them. “I’m not focused on the here and now of this case, Justice Brett Kavanaugh said. “I’m very concerned about the future.”
But the here and now of this case is vital, and the outcome should not be a close vote. The former president violated his constitutional obligation to ensure that the laws are faithfully executed. He is now running to be elected again. The threat is not what some hypothetical future commander in chief might do, but what the defendant in this lawsuit has already done, and has openly promised to do again.
In fact, Mr. Trump’s lawyers argued in this case that he would be immune from prosecution for ordering SEAL Team Six to assassinate one of his political rivals.
This is, as the nation’s founders would certainly agree, completely bonkers. Several of them had personally taken up arms to fight for independence from a king who existed above the law. As a group of the nation’s pre-eminent historians argued in a brief to the court, there is no evidence that any of the founders, including those who supported a powerful executive, imagined creating one who could abuse his authority without consequence.
James Wilson, a central figure in drafting the Constitution, asked then whether the president enjoyed “a single privilege or security that does not extend to every person throughout the United States? Is there a single distinction attached to him in this system more than there is to the lowest officer in the republic?” The answer is obviously no.
If a majority of the court sends the case back down to the lower courts with orders to re-examine the distinction between official and private acts, which seems likely, the resulting delay and lack of urgency in this case could well prevent a trial from being held before November. If Mr. Trump wins the election, he will shut down the prosecution and implement his extreme version of executive impunity. And the Supreme Court will have effectively blessed it, all while maintaining plausible deniability.
It’s tempting to wonder whether it really matters, whether anyone who isn’t already fully aware of Mr. Trump’s threat to the republic would be convinced by a guilty verdict.
But here’s the thing: Trials and due process do matter. Juries matter. Our criminal justice system, despite its numerous flaws, is the best method yet established to settle on the truth and do justice in a way that is widely seen as legitimate and fair. That is as it should be, because the courts hold your liberty, and sometimes even your life, in their hands.
The Jan. 6 immunity case has always been constitutionally offensive, and the Supreme Court could dispense with it easily. As Rick Pildes, a constitutional scholar, pointed out online while following the oral arguments, the justices have all the facts they need in order to decide, at the very least, which of the acts Mr. Trump is charged with are indisputably nonofficial, and thus not immune from prosecution.
The trial could continue based on those acts alone. If the court declines that route and prolongs this case, the “future” that the right-wingers profess to be so concerned about looks very bleak. The future looks like a president who really can shoot someone in broad daylight and get away with it.
