On the newest episode of the “Impromptu” podcastPost Opinions columnists Charles Lane, Ruth Marcus and Jason Willick talked about the case facing the Supreme Court on Thursday. To what extent former president Donald Trump is immune from prosecution for his efforts to overturn the 2020 election and Jan. 6, 2021. This conversation has been edited.
Use the audio player or The Post’s “Impromptu” podcast feed to listen to the entire conversation.
Charles Lane: There are so many cases, civil and criminal, against Trump right now. And it is hard sometimes to keep track.
Jason Willick: This is the January 6 case: the case involving Trump’s efforts to overturn the 2020 election. To me, it’s by far the most interesting.
Ruth Marcus: It is also the case that goes most directly to the question of whether Trump is fit to retake the office of president.
Charles Lane: The specific question is whether he can be prosecuted for this at all because there was an official act involved. His lawyers’ theory is that there’s a kind of implied immunity that the president enjoys from prosecution for that.
Follow this authorCharles Lane‘s opinionsJason Willick: The Supreme Court said in a 5-4 decision in 1982 that Richard Nixon and all presidents were immune from civil damages suits — having to pay money to somebody they harmed through an official act. The Trump argument is basically trying to extend this principle to criminal law.
Ruth Marcus: The court said narrowly that civil cases against presidents are different because you don’t want them, basically, pecked at by a thousand different crazy litigants in a thousand different courts. The court specifically in that case mentioned that criminal prosecutions are different.
So this case is important in order to cement what we have all assumed all along, which is presidents can’t be sued civilly for their official acts, but they, like other people, are not above the law for doing something that in fact violates the criminal law.
Jason Willick: I think some people are under the impression that if the Supreme Court says there is immunity for official acts, that means that Trump gets off. It absolutely does not mean that.
You’ve got to disentangle the official acts from the unofficial acts. You have to look at Trump’s January 6 speech. Was it a campaign speech? Was it a White House speech? It’s an incredibly complicated inquiry. But I have little doubt that even a ruling in Trump’s favor on that narrow question would not end the prosecution. It would just delay it.
Ruth Marcus: You know that thing where Groucho Marx had a show and the duck came down when he said the secret word? Jason just said the secret word. The secret — not so secret — word is “delay.” And that is what this has been about.
This is not a case of bad lawyering surrounding Donald Trump. This is a situation of some really pretty smart and strategic lawyering. Their goal has never been to win this case. Their goal has always been to delay it until after the election in the hopes that Trump will be elected president and he can make all of this and more just go away.
Listen to the full conversation here:
