The conservative justices seemed likely to confer broad presidential immunity from prosecution — and in a way that would further delay any federal trial.
For those rightly concerned about the timing of Donald Trump’s federal Jan. 6 trial, Thursday’s oral arguments before the Supreme Court gave plenty of reasons for worry. Moreover, the court’s conservative majority seemed inclined to define presidential immunity from prosecution in a way that could undermine some of the charges in special counsel Jack Smith’s indictment.
Much of the court’s questioning went well beyond the immediate issue of Trump’s immunity for the criminal acts alleged. The court’s conservatives focused almost exclusively on abstract questions of immunity for future presidents rather than the charges against the former president. Even the more moderate members of the conservative majority seemed preoccupied with the difficulty of drawing the line between official and unofficial acts, assuming that the former deserve extensive protection from prosecution.
Justice Amy Coney Barrett read a litany of acts from the indictment and asked Trump’s lawyer whether they were official or not. Chief Justice John G. Roberts Jr. indicated that the line between public and private presidential conduct is hard to draw, saying he was concerned that the D.C. Circuit Court of Appeals “did not get into a focused consideration of what acts we’re talking about or what documents we’re talking about.”
At best, the court’s questioning augurs an opinion setting out general principles of immunity and necessitating a remand to the lower courts to apply the justices’ guidance. As Justice Neil M. Gorsuch put it, “We’re writing a rule for the ages.” That would add further delay to a schedule that already seems to be putting a trial shortly before or beyond the November election.
And that wasn’t even the most serious implication for Smith’s case.
The conservative justices’ questioning of Michael Dreeben, the special counsel’s well-regarded Supreme Court specialist, was sharp and fast.
