Speculation is building about the possibility of the Supreme Court delivering a favorable ruling to former President Trump as he claims immunity from prosecution.
Even the current conservative-majority court would balk at finding that all presidents have unconstrained immunity, most experts believe.
But some kind of caveat-laden ruling that tosses the arguments about Trump’s legal exposure back to lower courts remains a strong possibility.
That scenario is enough to alarm many liberals.
Eric Holder, who served as attorney general in the Obama administration, sounded a warning during a recent interview with Nicolle Wallace of MSNBC.
Holder alluded to the prospect of the justices ruling that a president can be prosecuted for private acts but not for “official” acts undertaken in the course of his duties.
In Trump’s case, this pertains to alleged offenses in his attempt to overturn the 2020 election. A mixed ruling would mean lower courts would be asked to adjudicate which of Trump’s actions fit into either official or nonofficial category.
In practical terms, such a process would almost surely extend the case beyond November’s election. If Trump wins the election, he could simply instruct the Justice Department to abandon its prosecution of him — a move that would elicit howls of protest.
Holder, during his MSNBC appearance, characterized the possibility of a ruling like this as an argument that “a president can violate the American criminal law, if he or she is doing something in their official capacity.”
The former attorney general contended that such a finding would be “an absurd and dangerous conclusion.”
But, he added, “I’m worried, given the length of time that it has taken for the Supreme Court to decide this case, that something along those lines might come out of the Supreme Court.”
The delay in the Supreme Court delivering its ruling on the Trump matter is not so surprising.
The court typically reserves its most important rulings for the end of its term. In addition, even though the justices like to claim to be above petty political concerns, they might nonetheless be loath to weigh in before Thursday night’s presidential debate.
A ruling Wednesday or Thursday would cause much of that debate to be centered on the Court’s ruling — which would further accelerate the process of politicizing the court.
When oral arguments took place in April, several of the court’s six conservative justices seemed to suggest they could winnow out official from nonofficial acts taken by a president, with the latter prosecutable and the former not.
Justice Brett Kavanaugh, for instance, suggested that unless such a distinction were to be made, former President Obama could face prosecution for some U.S. drone strikes overseas during his tenure.
The Trump legal team made basically the same argument, with lawyer John Sauer saying that, in the absence of such a separation, former President George W. Bush could have faced prosecution over the arguments made to justify the Iraq War.
Liberal justices at the time hit back at the most expansive arguments for immunity, with Justice Ketanji Brown Jackson asking whether, if the threat of criminal prosecution were absent, there would be any disincentive to discourage a president “from just doing whatever he wants.”
Prosecutors in the case have also argued that the supposed distinction between official and nonofficial acts does not get Trump off the hook.
Indeed, lawyer Michael Dreeben told the Supreme Court that in Trump’s case, this was a distinction without a difference, because “the president has no functions with respect to the certification of the winner of the presidential election.”
Harry Litman, a former U.S. attorney and former deputy assistant attorney general, said he did not think there was a realistic possibility of a Supreme Court decision that would grant “sweeping immunity to cover Trump’s conduct.”
But Litman argued that the Trump team had been playing “a two-tier game,” predicated partly upon arguing the substance of the charges against him and partly on trying to delay any trial.
A more limited ruling recognizing immunity in some instances would, Litman added, “require some kind of remand [to lower courts] just to apply the test.”
Polls indicate the claim of immunity is viewed with skepticism by the public at large.
A CBS News/YouGov poll earlier this month found that 70 percent of Americans believe presidents generally should not have immunity for actions taken while in office, while 30 percent took the opposite view.
“There is something special about immunity — it’s the right not to be tried,” Litman said. “I think it is very unlikely that [the Supreme Court] would give a free pass to a president.”
But the CBS poll also showed some of the jagged edges around public perceptions on the question.
When it comes to Trump specifically, an overwhelming share of Democrats and a roughly 2-to-1 majority of independents reject the notion that the former president should enjoy immunity from prosecution for actions he took while in office.
Among Republicans, the situation was very different. Just 1 in 3 believed Trump should be exposed to prosecution, and 67 percent said he should be immune.
The Memo is a reported column by Niall Stanage.