WASHINGTON (CN) — Donald Trump’s presidential immunity claim has forced the Supreme Court to consider what to do when the same person entrusted to see laws faithfully executed then breaks the law himself.
The justices' forward-looking questions during oral arguments left legal experts worried that the court was setting up a self-fulfilling prophecy.
For two hours and forty minutes last week, the justices argued back and forth over what it would mean to make a president criminally immune. Could a president order Seal Team 6 to assassinate a political rival? What about a commander-in-chief who orders his generals to stage a coup because he doesn't feel like leaving office?
The converse question — giving the Justice Department free rein to prosecute executive office holders — only brought more confusion to the justices’ inquiry. Could President Lyndon Johnson be held liable for lying to the American people about the Vietnam War? Did President Gerald Ford obstruct an investigation into Richard Nixon when he pardoned his predecessor?
At times, all those hypotheticals seemed to overshadow the actual case before the court. Trump asked the justices for absolute criminal immunity from the election subversion charges he faces in Washington. Justice Samuel Alito, a George W. Bush appointee, said he wanted to talk about the case “in the abstract” because whatever the court decides would apply to all future presidents.
The same sentiment was expressed by Justice Neil Gorsuch, a Trump appointee, who said, “I’m not concerned about this case so much as future ones.” Justice Brett Kavanaugh, also appointed by Trump, echoed that “I’m not focused on the here and now of this case.”
Noting the potential future consequences of a Supreme Court ruling isn’t novel, but for court watchers, Gorsuch’s statement that the court was “writing a rule for the ages” created a seemingly impossible task for the justices.
“I don't see how they can set a reliable test for all future because if they want to create legal certainty, I have no doubt they'll never be able to do that with one simple test,” said Lawrence Gostin, a Georgetown Law professor and director of the O’Neill Institute for National and Global Health Law. “So why not deal with the facts that you know rather than an infinite number of theoretical future facts, which you can never know?”
Paul Schiff Berman, a George Washington University Law School professor, said the justices could have used the facts of Trump’s indictment to address the potential consequences of their ruling. Homing in on specific charges, Berman said, would allow the court to limit its ruling to Trump, while keeping the door open to define the scope of presidential immunity in future cases.
“Regardless of whether one thinks a president should be immune with regard to certain official acts, it should have been very easy for the justices to say that the acts alleged in this particular case do not fall within the president's official duties, and therefore, that immunity would be inappropriate in that circumstance,” Berman said.
Handing down a more expansive ruling is not only more challenging for the court, it also contradicts statements from the justices themselves. When the conservative majority ruled not only to uphold Mississippi’s 15-week abortion ban but also to overturn Roe v. Wade, Chief Justice John Roberts criticized his colleagues for doing more than what was necessary to resolve the case before them.
“If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more,” Roberts, a George W. Bush appointee, wrote in his concurring opinion.
Justice Ketanji Brown Jackson, a Joe Biden appointee, seemed to lead the charge for this approach during Trump’s case. Jackson said the court often creates the kind of tests her colleagues were suggesting to avoid answering a constitutional question. However, in this case, the constitutional question is what the court agreed to decide.
Instead of drawing lines between what official acts could be open to criminal liability, Jackson said the court should only rule on the argument Trump advanced before the court: whether all official acts get immunity.
“We should not be trying to, in the abstract, set up those boundaries ahead of time,” Jackson said. “As a function of sort of blanket immunity, allow each allegation to be brought and then we would decide in that context.”
The task for the justices not in agreement with Jackson is attempting to cleave a president’s private actions from his official duties. Legal experts say that line drawing could be difficult — if not impossible.
“They're completely intertwined,” Gostin said. “There are certain acts that are official, but if you do them in ways that violate the criminal law, does that still make them official?”
Roberts noted that appointing ambassadors is part of the president’s official duties. But what happens if an individual is only appointed to that position because he offered the president a million-dollar bribe?
The special counsel’s office said Trump had engaged in an integrated conspiracy. Trump is accused of using a private lawyer to spread knowingly false claims of election fraud to be used in his challenges to the election results. Trump’s lawyer conceded that action would be considered private, but the special counsel’s office said Trump used his official powers as president to make these conspiracies more likely to succeed.
The motivation behind creating a legal test for these cases seemed to stem from the assumption that criminal prosecutions of presidents is the new norm. Trump’s lawyer suggested that President Biden’s border policies could one day leave him to face charges for unlawfully inducing immigrants to enter the country.
But court watchers said most Americans want a president to come in and do their job, not get revenge.
“I hope we don't adopt a principle of law that says we're going to do this because we expect our presidents to be vengeful,” said Alan Morrison, the dean for public interest and public service at George Washington University Law School.
Gostin said maintaining the legal constraints of the presidency follows the assumption that most past and future officeholders will have boundaries of decency, respect for institutions and respect for the rule of law. However, he said loosening those restraints sends a concerning message about equal justice.
“If the president is perceived to be above the law and is above the law for his or her entire life, that sends a terrible message to our body politic, and also a terrible message to the world about American democracy,” Gostin said.
Follow @KelseyReichmann
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