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The big show in Washington on Thursday was the Supreme Court argument about Donald Trump’s alleged immunity.
For those lost in the clouds of the former president’s myriad legal sagas, this case is probably the biggest. Brought by Special Counsel Jack Smith, it makes many serious allegations of criminal behavior related to the convening of the Electoral College on Jan. 6, 2021.
Trump’s legal team has made a bevy of arguments against the case. The one that grew legs — that the president has absolute immunity from criminal prosecution — was heard Thursday.
The commentary on the debate has been wide-ranging. When the U.S. Court of Appeals for the District of Columbia ruled that Trump had no immunity, many lauded the result as obvious. Including yours truly.
I should have added some nuance to my take.
The arguments before the Supreme Court on presidential immunity were pretty complex and engaging. Don’t take my word for it; read the 177-page transcript for yourself.
Or read the thousands upon thousands of pages of briefs filed with the court.
For all the heated rhetoric in the news media, there are only a few points of difference between Trump’s legal team and the Department of Justice.
Trump is not arguing that he is immune for any actions he took as a private citizen. His lawyers agreed that some of the allegations made by Smith were not official acts as president, and he does not have immunity for them. The case can go on.
Meanwhile, the federal government acknowledged there are parts of the president’s responsibilities that Congress cannot regulate, including by trying to influence them through criminal statutes. As a practical matter, they partially agreed with Trump.
Both sides even agreed that there were very real dangers in leaving presidents unprotected from future prosecutions once they were no longer in office.
So, given all that, what’s the fight actually about?
Nuance.
The real debate seemed to turn on a question of “immunity” versus “defense.” Team Trump argued that the former president’s “official acts” come with criminal immunity, meaning that Smith could not legally charge him with certain crimes.
Smith’s chosen champion, Michael Dreeben, countered that presidents were able to avail themselves of a “public authority” defense, meaning they could be charged with crimes but defeat the allegations by showing they were legally authorized as a government official to undertake the actions in question.
For all the heat and rhetoric about Trump’s legal sagas, the Supreme Court clearly wants to get this right. The justices’ decision will undoubtedly have effects on future presidents; the past is instructive.
President Barack Obama, unquestionably, authorized the killing of American citizens overseas. No judge, no trial, no jury, no conviction. The targets were generally avowed terrorists.
Normally, killing Americans without trial is classified as some type of homicide. The attorney for the special counsel claimed Obama’s actions likely did violate federal statutes for “aiding and abetting,” but were justifiable under the “public authority” defense. So Obama was not charged.
That is a pretty nuanced take.
Many have attacked the court for not moving quickly enough. But they heard arguments about eight weeks after taking the case. That is remarkably fast for the highest court in the land.
For whatever reason, Attorney General Merrick Garland waited until late 2022 to appoint a special counsel. It wasn’t until August 2023 that Smith filed his indictments of Trump.
Letting the Supreme Court take a few weeks to consider what might be the most impactful decision on presidential power in more than a century isn’t too much to ask.
Trump’s detractors should celebrate that even his lawyers agree the case can go forward, at least in part. Supporters should take solace that, at worst, the special counsel has pointed out a way for Trump to defend against the charges.
Reasoned nuance in a court is one of the things that makes America great. Let’s wait for it, again.
