Will the Supreme Court crown King Donald?

Does the president have immunity from criminal prosecution? Or, to put the question more precisely, does Donald Trump?

This should be an easy question for text experts. There is nothing in the Constitution that gives him immunity. The Framers knew how to include immunity clauses in the Constitution. Many states did so. The Framers chose not to do so. The incident has been resolved.

This should be an easy question for originalists. The original understanding in 1789 was that the president was not a king who could do no wrong. The president was a servant of the law. He wasn’t above that. The founders certainly thought so. Again, case closed.

The only case that comes close to hitting the mark is a 1982 Supreme Court decision. Nixon vs. Fitzgerald. Richard Nixon fired Fitzgerald as a whistleblower, and Fitzgerald filed a civil suit. The court ruled that Mr. Nixon is immune from civil liability, but stressed that immunity does not apply to criminal liability. sufficient! The incident has been resolved.

However, when listening to the Supreme Court, Oral argument Thursday’s debate felt more like a Congressional hearing than a judicial dialogue over what lawyers called the facts of the case. The case appears to be about Donald Trump and his attempts to overturn the election through illegal means. “I’m not arguing the specific facts of this case,” Justice Samuel Alito said, his voice breaking.

Justice Neil Gorsuch made a commonplace statement that is sure to become a quote of the week on the pages of mainstream media. That’s horrible!

Gorsuch wondered what would happen if future presidents were “in fear” that their successors would “criminally prosecute” them for official acts like “drone strikes.” I thought so. However, inciting rebellion to stay in power and inciting rebellion are not in the same zip code. Drones against foreign terrorists. The distinction between “public acts” for which the president is exempt and “private acts” for which the president is not exempt does not work at all. As Chief Justice Roberts mused, even if a president accepts a $1 million bribe to appoint his favorite lawyer as ambassador, he cannot prove corruption without proving official action. . It’s the same as love and marriage: “One cannot exist without the other.” This issue can be resolved with proper jury instructions at trial.

One of those joining the conservative standoff was Justice Clarence Thomas, whose wife is said to have been deeply involved in the January 6 riot. It drives him crazy how he couldn’t abandon him. If it were a Congressional hearing, the committee chair would definitely insist that he leave. He appeared to exempt Trump from the court, reflecting that presidents can carry out coups with impunity. He cited Kennedy’s plan for Cuba, “Operation Mongoose,” when he attempted to overthrow Castro. In the Thomas family, all coups are created equal.

It is no wonder that the people perceive judges not as jurists but as politicians in court robes. Republican appointees are all eager to give President Trump a pass on the January 6 vote, which may be no surprise. But the law is still the law, and judges are sworn to uphold it.

Let’s also look at policy considerations, since these days it seems to take precedence over the rule of law. Conservatives on the Supreme Court seemed fixated on the impact of the ruling on hypothetical future presidents who committed hypothetical acts that had never occurred before or since, such as the Immaculate Conception.

President Trump has argued that criminalizing presidential decisions would chill the tough rhetoric he needs from the Oval Office to protect the country. But in 234 years, no president other than Trump has been indicted for actions while in office (save for Nixon, who was only an “unindicted co-conspirator”). And all of them made tough decisions without any extra consideration.

Nixon is a great example.in him Famous interview with David Frost“The fact that the president is doing it means it’s not illegal,” he argued, but quickly retracted, saying, “But I’m not trying to suggest that the president is above the law.” did.

And Nixon was a lawyer. If either had thought the former president had immunity, he would not have accepted a pardon, and Ford would not have granted him one.

Justice Brett Kavanaugh thinks Ford’s decision to pardon Nixon was good for the country. Others may vary. The idea is that criminal prosecution of the former president will “tear the country apart.” But look at the New York election interference case involving President Trump’s concealment of payments to porn stars before the 2016 election. Despite President Trump’s prophecy last March, there were few pro-Trump demonstrators outside the courthouse. “Death and Destruction” If he is indicted.

An honest president doesn’t need immunity. He would never seriously consider ordering the assassination of a political opponent. He (or someday she) will never leave her job for fear of criminal prosecution. Despite our partisan rifts, this has never happened in two centuries of the American experiment.

One thing is certain. If the Supreme Court waits until the end of its term in June and rules that the president has little or no impunity, there is a slim chance that the case could be heard before the election, and the Supreme Court It will give him the victory. Many legal experts predict that the judge will send the case back to district court to hear what is official and what is not public in the indictment regarding Trump’s alleged conduct. If so, I’ll be able to say goodbye to this incident. Trump will come out of this – a dark day for democracy and the rule of law. Even if you don’t say so, the Supreme Court will grant Donald Trump immunity.

If oral arguments are any indication of where they’re headed, the Roberts court will go down in history as the court that surrendered our precious democracy to a dictator.

Author and legal analyst James D. Gillin is a former federal prosecutor in the Southern District of New York. He is also a public television talk show and podcast host. Conversation with Jim Gillin.