That’s not exactly what Trump asked for, but the process of line-drawing that the justices debated Thursday seems highly likely to bog down the case and make a trial before the election impossible.
Here are our takeaways from the two hours and 40 minutes of historical arguments:
Trump could win by losing
The Supreme Court seems poised to reject Trump’s claim that he is absolutely, categorically immune from criminal prosecution for virtually anything he did as president. But the justices’ uncertainty about where to draw the line between a president’s protected actions, and those for which he might be subject to prosecution, may give Trump a different kind of victory: delay.
At least three of the conservative justices — John Roberts, Neil Gorsuch and Brett Kavanaugh — suggested they may need to send the case back to the lower courts to determine whether Smith’s charges against Trump roped in “official” conduct that could be off limits to prosecutors .
Ordering the lower courts to do that sort of analysis would necessarily require months of additional litigation, and Smith’s effort to start the trial this year would remain stalled in the meantime. For Trump, that’s nearly as good as an outright win because if he pushes the case until after the 2024 election and wins the presidency, he’s certain to unravel the prosecution altogether.
Justice Amy Coney Barrett was the only member of the court to directly acknowledge that scenario would undermine Smith’s request for “speed,” although she stopped short of mentioning anything about the election.
With Smith and several of his top prosecutors present in the courtroom, Barrett even proposed that in order to get the case to trial quickly, Smith could jettison some of his evidence alleging that Trump abused his official powers during his bid to cling to office.
Trump who?
Most of the conservative justices seemed to go out of their way to avoid discussing the specific case in front of them: charges that Trump sought to steal a second term that he didn’t win. Instead, they spoke of the past, wondering whether former presidents from Franklin D. Roosevelt to Lyndon B. Johnson to Richard Nixon to Barack Obama could have been prosecuted for various actions they took in office. And they spoke of the future, worrying aloud that denying Trump immunity would presage a flood of prosecutions of presidents in the decades to come.
But when Michael Dreeben, the lawyer arguing for the special counsel, tried to pivot to the grave indictment against Trump, the justices disclaimed it.
“I’m not focused on the here and now of this case,” Kavanaugh said. “I’m very concerned about the future.”
“I’m not as concerned about this case as much as future ones,” Gorsuch said.
“We’re writing a rule for the ages.”
Barrett was the exception among the conservative justices. Referring to Trump as the “petitioner” in the case, she asked his attorney, D. John Sauer, a series of questions about specific allegations in the indictment — and extracted a significant concession from Sauer that some of the allegations involve indisputably “private” rather than presidential conduct.
Alito vs. Sotomayor
Perhaps the most clarifying moment of the day came in a colloquy between conservative Justice Samuel Alito and liberal Justice Sonia Sotomayor, arguably the leaders of each wing of the court.
Alito closed his questioning of Dreeben with an emphatic question: “What is required for the functioning of a stable democratic society?”
“If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?” Alito said.
Sotomayor followed with a counterpoint.
“A stable democratic society needs the good faith of its public officials. That good faith assumes that they will follow the law. There is no fail-safe system of government,” Sotomayor said. “We have a judicial system that has layers and layers and layers of protection for accused defendants in the hopes that the innocent will go free. We fail, routinely. But we succeed more often than not.”
“If it fails completely,” she added wistfully, “it’s because we’ve destroyed our democracy on our own.”
The court mused about deciding the validity of self-pardons
Supreme Court arguments typically involve hypotheticals that test the logical extremes of each side’s argument. In the immunity argument, Gorsuch pressed Dreeben on whether a ruling that rejects robust immunity for former presidents might prompt future ones to attempt to “self-pardon” on their way out of office.
“We’ve never answered whether a president can do that,” Gorsuch said. “Happily, it’s never been presented to us.”
Trump, as president, insisted that he had the “absolute” authority to pardon himself for any alleged crimes. But he never took that step.
Alito took the hypothetical further, noting that under the special counsel’s view, future presidents might be incentivized to appoint attorneys general who would preemptively bless any unlawful decisions — even on the flimsiest of bases — to insulate them from future prosecution. Dreeben responded that the Senate’s power to confirm presidential nominees would guard against that possibility.
Dreaded independent counsel law, a quarter-century in the grave, still haunts
Few Supreme Court rulings stir as much loathing in the hearts of legal conservatives as the 1988 decision upholding the independent counsel law, Morrison v. Olson. So, when a conservative justice calls that “one of the court’s biggest mistakes” and connects it to the legal position you’re taking, that’s bad news.
That’s just what Kavanaugh did Thursday as he questioned Dree. “I think that was a terrible decision for the presidency and for the country,” Kavanaugh said as he warned that denying any immunity to former presidents could lead to a proliferation of politically charged investigations like the ones the independent counsel law spawned for a couple of decades before Congress let it lapse in 1999.
“It’s going to cycle back and be used against the current president or the next president and the next president and the next president after that,” Kavanaugh said. (He did not mention that he served two stints as a prosecutor for one of the most controversial independent counsels, Kenneth Starr.)
Dreeben, whose boss was appointed under DOJ regulations put in place following the expiration of the law, said that those investigations often wound up with prosecutors choosing not to bring charges.
“We’ve lived from Watergate through the present, through the independent counsel era with all of its flaws, without these prosecutions having gone off on a runaway train,” he asserted.
