Rich Lowry
When the Supreme Court said it would hear Donald Trump’s immunity claim in the Jan. 6 case brought by Special Counsel Jack Smith, the former president’s enemies erupted in anger.
It was delay for delay’s sake. It was a rank political favor for an ally. It was utterly gratuitous in legal terms, since it’s a slam dunk that a former president doesn’t enjoy immunity for acts during his time in office.
MSNBC’s Rachel Maddow accused the Court of “doing this as a dilatory tactic to help your political friend.” And, she added, “for you to say that this is something that the Court needs to decide because it’s something that’s unclear in the law is just flagrant, flagrant bullpucky.”
This interpretation didn’t survive first contact with the oral arguments, which were fascinating, complex and raised all sorts of knotty and consequential issues.
Does the threat of criminal prosecution run the risk of chilling presidents in the performance of their duties, as Trump’s lawyer argued? Or does immunity run the risk of creating an incentive for executive lawlessness, as the Special Counsel’s representative argued? Would politicized lawsuits against presidents threaten our “stable, democratic society,” as Justice Samuel Alito suggested? Or would immunity make the presidency “the seat of criminality,” as Justice Ketanji Brown Jackson worried?
Should a president have immunity for official presidential acts and not private acts, and where do we draw the line? Do the criminal statutes that Trump is accused of violating in the J6 case even apply to him? What role do a series of court precedents play in this case?
All of this and more featured in the oral arguments. They were so interesting and fraught because the court is grappling with fresh questions raised by an unprecedented circumstance, namely, the prosecution of a former president.
As for the sweeping, unanimous decision of the D.C. Circuit that denied Trump’s claim of immunity and Trump’s critics considered dispositive, Chief Justice John Roberts, who is not a MAGA extremist, made it clear that he thinks it’s desperately flawed.
Trump’s critics are putting partisan considerations (the belief that a trial in of itself and, even more so, a conviction will hurt Trump politically) and their hatred of Trump and his post-election conduct before everything else in their demand for the fastest possible ruling most damaging to Trump.
This is a very bad impulse when asking the Court to create a precedent that will affect all presidents going forward.
As Justice Brett Kavanaugh said, “I’m not as concerned about the here and now. I’m more concerned about the future.” Usually, we value such long-term thinking, but it’s extremely inconvenient to Jack Smith and his cheerleaders.
A rush is understandable from their point of view. There is about a 50% chance that Trump will win election again and, if he’s not tried before November, he’ll shut down the prosecutions of him.
But the idea that a complicated case relying on novel use of federal statutes and involving a former president should, or could, be slammed through the courts like a case about an overdue parking ticket was always ridiculous.
If timing were such a worry (and Trump’s criminality so obvious), the Justice department could have appointed Jack Smith much sooner and Smith could have indicted Trump much faster. Hoping to short-circuit careful judicial review of all the weighty legal issues raised by the case just to meet the inherently political deadline of getting to trial before the election is foolish and short-sighted.
As it is, it seems the Court will almost certainly reject Trump’s extravagant claims of immunity, while quite possibly blessing a more limited version. The Court also may ask the judge in the J6 case to determine which of Trump’s acts were official and which private.
That would take time and be hateful to Trump’s enemies, who can’t bear the thought that the judiciary might be judicious in its handling of a truly momentous court case.
Rich Lowry is a syndicated columnist.
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