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In agreeing to listen to former President Donald Trump’s immunity declare Wednesday, the Supreme Court docket recognized the important thing concern to be determined as follows:
Whether or not and if that's the case to what extent does a former President take pleasure in presidential immunity from prison prosecution for conduct alleged to contain official acts throughout his tenure in workplace.
Sadly, I imagine that is the unsuitable query. And the best way it's worded runs the chance of delivering the unsuitable reply.
The court docket has formulated a very broad query to be answered within the enchantment, quite than the simple one: whether or not Trump is completely immune from prosecution for the crimes alleged within the indictment obtained by particular counsel Jack Smith.
Clearly, the court docket’s wording is topic to interpretation. And never all authorized observers are as pessimistic as I'm. Some have opined that the inclusion of the phrases “official acts” within the court docket’s order actually narrows the scope of the choice.
However I respectfully disagree.
And so did Harvard Legislation professor Laurence Tribe in his look Wednesday on “The Last Word” with Lawrence O’Donnell. Tribe criticized the court docket’s language as an “enormous abstraction” that's “so sweeping that there are lots of ways of answering it.”
In framing the problem, the court docket’s important (and telling) insertion of the phrase “conduct alleged to involve official acts” deserves particular consideration.
Smith did not frame the problem as involving official acts in his Supreme Court docket filings, however quite requested the court docket to determine “whether a former president is absolutely immune from federal prosecution for crimes committed while in office.”
Trump’s legal professionals have sought to outline his conduct as official acts undertaken whereas president. The Supreme Court docket’s order now additionally incorporates that qualifier.
By asking if a president will be immune for any “official act,” the problem doubtlessly turns into extra difficult and extra nuanced. Trump is being prosecuted for an alleged prison conspiracy to undermine our democracy. He shouldn't be entitled to immunity of any variety. The U.S. Court docket of Appeals in D.C. agrees, unanimously holding that Trump was not immune for his function in plotting to stay in workplace after he misplaced the 2020 presidential election to Joe Biden. In doing so, the court wrote that “our analysis is specific to the case before us.”
The Supreme Court docket might reply what Tribe described as a ‘sweeping’ and ‘abstract’ query with a extra convoluted reply.
But when a former president had been criminally indicted for granting a pardon, or sending U.S. troops right into a disastrous battle, or issuing an govt order on immigration, courts might conceivably discover that some stage of immunity exists.
Provided that, the Supreme Court docket might reply what Tribe described as a “sweeping” and “abstract” query with a extra convoluted reply: There can be immunity in some circumstances for official acts, however not for others. This type of reply would permit the court docket to sidestep its duty to determine the sensible concern of whether or not Trump should stand trial on this particular occasion. As Tribe warned, the court docket might as a substitute “decide this broad legal question and send the case back to the D.C. Circuit.”
In that situation, the court docket would return the enchantment to a decrease court docket to use its ruling to the information of the indictment in opposition to Trump. That delay could be the ultimate, deadly blow to the federal government’s effort in D.C. to carry Trump accountable in a jury trial earlier than November’s election.
The significance of avoiding a broad inquiry into whether or not a former president can ever be immune for official acts was identified in an amicus brief filed by former officers in Republican administrations. In opposing Trump’s request to halt proceedings within the trial court docket, they wrote that permitting Trump’s prison trial to proceed “would not preclude possible federal criminal immunity for a President’s official acts in some different, exceptional situation. Nor would the Court have to address whether any alleged criminal conduct here was an official act.”
The court docket has rejected that sound recommendation.
As an alternative, some variety of the justices have managed to each delay Trump’s trial and complicate the authorized concern to be determined. And the hazard to our rule of regulation is all the more severe for it.
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