Jack Smith’s Bad Immunity Day The Supreme Court focuses on the Presidency, not Trump.
Special counsel Jack Smith should have been reading our contributor David Rivkin. If he’d been reading these pages, he might have foreseen Thursday’s oral argument at the Supreme Court before he indicted Donald Trump. Instead, the argument was a legal defeat for him and the Justice Department that could delay his prosecution past the November election.
Michael Dreeben, the Biden counsel, told the Justices that Mr. Trump and any other President deserve no immunity from criminal prosecution. But he ran into a skeptical set of Justices focused not on Mr. Trump’s case, but on the implications of the Dreeben-Smith position for the office of the Presidency.
“I’m not concerned about this case,” said Justice Neil Gorsuch. “But I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives.” He added that “we’re writing a rule for the ages.”
Justice Brett Kavanaugh offered a similar concern about the future impact of prosecutions on presidential decision-making on controversial subjects.
Mr. Dreeben’s reply was to suggest that this isn’t a problem because prosecutors don’t bring cases when there isn’t sufficient evidence for a conviction. He also said a President gets good legal advice from the Justice Department’s Office of Legal Counsel about what official acts are legal, so no President would commit such a crime.
The Justices made short work of that one, with Justice Samuel Alito reminding Mr. Dreeben that two Attorneys General were convicted of crimes, and how easy it is for a prosecutor to cajole a grand jury to indict someone.
Chief Justice John Roberts was especially scathing about the D.C. Circuit Court of Appeals ruling that a President has no immunity. That opinion argued—and Mr. Dreeben defended it—that “a former President can be prosecuted because he’s being prosecuted,” said the Chief. This ignores that Presidents have special obligations and must make decisions that set them part from any federal official, much less an average citizen.
Oral arguments aren’t always a signal of a future ruling, but it sounds as if a majority is prepared to find that Mr. Trump is immune from prosecution for actions that are part of his official duties. The key then is distinguishing between official and private actions, and the Justices may send the case back to trial court to consider the facts regarding the charges and evidence against Mr. Trump.
The press ignored nearly all of this in the runup to the oral agument, with many calling Mr. Trump’s claim absurd. Credit to the Justices for an educational hearing that focused on the right questions for the Presidency, the separation of powers, and the country.
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