"President Trump is still liable for everything he did while he was in office. We have a criminal justice system in this country. . . and former presidents are not immune."
Senator Mitch McConnell, on the senate floor, explaining that even though he didn't convict Trump by impeachment, that the law would judge him.
Yeah, well maybe presidents are immune after all.
The Supreme Court heard the Trump lawyers argue that U.S. presidents are immune from prosecution for official acts. And nearly everything the president does is an "official act," they argued. That includes encouraging states to send fake elector ballots and organizing a coup d' état to attempt to stay in office.
We know something now we didn't know four years ago. We now know that the way to stop a political crime (like an attempted coup d' état) is by a political process -- impeachment -- not the legal process. The legal process doesn't work for political crimes. And if a president has the support of over one third of the U.S. senate, then the president can do anything he wants. That includes shooting someone on Fifth Avenue or having Seal Team Six kill his political opponent. The president could say he was doing that as part of his job. If the president openly took a million dollar bribe in exchange for appointing an ambassador, that, too, would be done as part of an official act. Again, the remedy is impeachment, not prosecution.
I asked a close observer of the U.S. Supreme Court what he thought. He is a commercial and business disputes lawyer. Cox as been a member of the bar of the U.S. Supreme Court for 29 years. That entitles him to the privilege of viewing Supreme Court hearings in person, including most recently the Colorado ballot-access case. He sent me this quick observation. He carries out his national bankruptcy practice from Ashland, Oregon.
Comment by Conde Cox
I did not attend in person today in Washington D.C the Supreme Court's oral argument in the presidential immunity case.
I did listen to the live audio of the oral argument. It is much more difficult to assess the posture of the Supreme Court by listening to oral argument by audio than it is to assess the likely outcome via in-person attendance at the oral argument.
That said, my takeaway is that this case appears most definitely to involve a split decision. That is unlike my prior (correct) prediction of a nine-zero vote in the Colorado ballot disqualification case. I predict a six-three decision for a remand to the District Court to hold many, many hearings over what constitutes “official acts” that would be subject to immunity from prosecution. I also predict that the majority of probably six -- or perhaps five, with Justice Coney Barrett bolting from the other conservatives -- will adopt and articulate a new “test” as to what constitutes an “official Presidential act.” Creating this test will require an overwhelming amount of pretrial litigation before the case against Trump can go to trial.
The likely litigation over coming months and years will include a fight over whether an official act might include Trump’s aiding and abetting the January 6 insurrection. As a practical matter this will allow Trump to avoid all accountability for attempt to prevent the Electoral votes from being counted on January 6, 2021. The waters over presidential immunity will have been so muddied by this Court that it will take forever to learn whether Trump can hide behind the cloak of “presidential official acts.”
If the Court rules as I predict, delaying interminably a trial on election interference, in 50 years people will see this at the 21st Century’s equivalent to the 19th Century’s Dred Scott decision. That case ignominiously confirmed the right of a Southern slave owner to reclaim his “property” after the slave had escaped to a free State, and declared that Black people of whatever status were not U.S. citizens and had no right to access the federal courts. The Dred Scott decision has come to be viewed as flatly wrong, and a precipitating cause of Civil War. If Chief Justice Roberts goes with the other conservatives and if this is a 5-4 or 6-3 decision favoring Trump, then “The Roberts Court” will go down in history as one of the most out of step and hurtful Supreme Court in our nation’s history.