Is in the Tank

How to Know If the Supreme Court Is in the Tank for Trump

Trump’s bid for immunity from prosecution in Washington is an absurd farce. Will the court’s conservatives bail him out?

By ANKUSH KHARDORI

This week at the Supreme Court, a simple question will sound difficult: Can a former president be criminally prosecuted if he tried to steal a presidential election through a campaign of lies and political bullying that apparently violated multiple federal criminal laws?

That is the question the justices have chosen to confront on Thursday, when they hear oral argument in Trump’s pretrial appeal from the Justice Department’s prosecution in Washington. The outcome will undeniably shape the 2024 election.

Some commentators have insisted that the issues aren’t simple, that they are sprawling and complicated, and that the court must grapple with the implications of its ruling in this case for future presidents to come.

Legal framing is often a deliberate choice. The court can — and should — have resolved this issue narrowly and quickly. But instead, the justices chose to hear arguments, a decision that already has imperiled — possibly fatally — the prospect of a trial for Trump on Jan. 6 charges before Election Day.

Even if Trump ultimately loses at the high court, that delay may already have provided him with a de facto form of immunity, since he could easily escape judgment before the election. And if he wins reelection, it will have been as good as a get-out-of-jail-free card.

Unfortunately, there is still more that the conservative justices can do to help Trump out.

The correct answer to the question in the United States of America — where colonists waged a war to free themselves from the rule of a king — is clearly “no.”

Indeed, Trump’s argument for immunity is “at least in its strongest form, crazy,” as Michael Dorf, a constitutional law professor who currently teaches at Cornell Law School, told me last week. Dorf clerked for Justice Anthony Kennedy, hosts a lively and insightful blog that features some of the most clear-eyed commentary about the workings of the court today and also holds the dubious distinction of having been my constitutional law professor years ago.

Intuitively, most Americans appear to recognize that Trump’s arguments are absurd: In a recent POLITICO/Ipsos poll, 70 percent of respondents, including nearly half of Republican respondents, said that they do not believe that U.S. presidents should be immune from criminal prosecution for alleged crimes that occurred while in office.

Trump first asserted his crazy argument last October, and U.S. District Judge Tanya Chutkan rejected it in December, in a rigorous and well-reasoned opinion. Trump appealed to the D.C. Circuit Court of Appeals shortly thereafter, resulting in a stay of the pretrial proceedings and an indefinite adjournment of the March 4 trial date that Chutkan had previously set. Justice Department special counsel Jack Smith asked the Supreme Court to hear the appeal straight away, but they declined that very sensible proposal.

In early February, a three-judge panel of appellate judges affirmed Chutkan’s ruling in an even more thorough and compelling opinion, ultimately holding that “any executive immunity that may have protected [Trump] while he served as president no longer protects him against this prosecution,” which concerns, among other things, “the citizenry’s interest in democratically selecting its president.” Days later Trump appealed to the Supreme Court, and about two weeks after that, the justices — three of whom he appointed — set the case for oral argument for late April. The result will be that a question whose answer was obvious back in December is unlikely to get that answer from the Supreme Court until its session ends in June.

“I was surprised and distressed that the court set it for argument rather than quickly rejecting it,” Dorf told me. “You take a couple days,” he continued. “You issue a five-page opinion, the upshot of which is, ‘No, a former president is not above the law.’”

There is good reason to remain worried about the conservative justices’ handling of the case so far, about how they have already influenced the 2024 election to Trump’s political benefit and about how they could inflict still more damage on the most important democratic process in our country: the presidential election.

On the merits, the arguments that Trump and his lawyers have been making are ridiculous, and they have not materially changed since his lawyers began making them over six months ago.

“It’s never been suggested that the president can just violate laws with impunity so long as he’s acting within the outer perimeter of his official duty,” Dorf said. “In fact, you might think that the text of the impeachment clause” in the Constitution “simply resolves the question.”

Indeed, that clause specifies that a federal official who has been impeached “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Read with a modicum of common sense, the clause indicates that if someone has been impeached — including the president — that person can also be criminally prosecuted. The clause presupposes the legitimacy of a criminal prosecution against a president, at least after he leaves office.

In a tour-de-force of illogic, Trump’s lawyers have claimed almost the exact opposite. They argue that the text of the provision means that the president can only be criminally indicted after leaving office if he was first impeached and convicted by trial in the Senate.

That argument makes no sense as a legal, political or practical matter. Under that reading of the Constitution, a president who is angry about having to leave office after losing an election could nuke an American city at 11:59 am on Jan. 20, right before his successor takes over, and be immune from criminal prosecution.

Trump’s lawyers have also argued that the court should infer some form of presidential criminal immunity from the president’s immunity from civil lawsuits, which protects them from cases that concern acts within the “outer perimeter” of the president’s duties. The majority reached that conclusion based on structural inferences from the Constitution and the practical consequences of a ruling to the contrary — most notably, the chilling effects on presidential activity that would result if he could be sued by anyone for doing his job.

But the analogy between civil and criminal immunity is dubious for many reasons — not the least of which is that anyone can file a civil lawsuit but only the Justice Department can bring a federal criminal prosecution. That process comes with built-in political and legal protections that do not exist in the civil context. The attorney general is a political appointee who is accountable to the president, who is in turn accountable to the American people. Prosecutors must also get approval from a grand jury to bring charges; at trial, they have to prove every element of their case beyond a reasonable doubt; and the jury has to vote unanimously in favor of a verdict of conviction — none of which applies to civil cases.

There are strong policy reasons to reject the comparison as well. “We worry about civil liability,” Dorf explained, “for fear of over-deterrence” — of inhibiting the president from taking actions in the national interest — “but if you eliminate all criminal penalties, and you get a criminal president, then you’ve got a severe under-deterrence problem.”

This doesn’t mean that there might not be some limited form of criminal immunity for a former president. “It’s not crazy to think that something like some kind of qualified immunity for a judgment within the scope of the president’s discretion could affect how you construe a statute as applied to official conduct,” as Dorf told me, “but there’s nothing resembling that here. The closest they’ve come up with is to say that as president, [Trump] was concerned about there being election fraud, and therefore he was ordering the Justice Department and these other people to investigate it.”

That would be a perfectly fine factual defense at trial if Trump could actually prove it, but there is no reason that highly dubious assertion should shut the whole proceeding down under a fact-free theory of immunity.

As Dorf put it to me, “The idea that simply because you were doing something that in a totally different universe could have been done by a president for a legitimate reason means that you’re immune to prosecution — when it’s very plausibly alleged that you were doing it for a totally illegitimate reason — is quite shocking.”

Thanks to the Supreme Court, the prospect of a trial in Washington currently remains highly uncertain, but there are still ways for the court’s conservatives to foreclose the possibility entirely. And they can do that even if they ultimately reject Trump’s bid to dismiss the case by the end of June.

The most obvious way the court could lend Trump a hand would be to devise some new standard for determining whether presidents might have criminal immunity for acts they committed while in office, and to then send the case back to Chutkan for review under that standard. Something similar happened in 2020 after the Manhattan D.A.’s office went all the way up to the Supreme Court in their bid to obtain Trump’s tax returns.

A comparable test in this case might require Chutkan to analyze the allegations in the Justice Department’s indictment to determine whether some of them should be excluded from the case because they might concern presidential actions that should for some reason be immune from criminal prosecution — perhaps even using some version of the “outer perimeter” test that applies to presidential immunity in the civil context.

If that test requires Chutkan to hold pretrial evidentiary hearings that might then be subject to further review, that could as a practical matter eat up most if not all of the remaining time on the calendar before Election Day if — or when — the case returns to her.

We may see some warning signs for this scenario during the oral argument.

The three liberal justices are almost certain to reject Trump’s arguments, so the people to watch will be justices Brett Kavanaugh, Amy Coney Barrett and Chief Justice John Roberts. “For Trump to lose, he’s got to lose at least two of them,” Dorf said.

I asked him what we should be listening for from those justices. “I would be concerned if I heard from Roberts, Kavanaugh or Barrett hypothetical questions that seem designed to elicit the answer, ‘Oh, well, in that case, the former president would be immune,’” Dorf told me. For instance, “What if the president as commander-in-chief orders SEAL Team Six to take out a terrorist, and then is charged with some kind of war crime? Does he have to stand trial if it’s plausibly within the realm of his commander-in-chief functions?”

Dorf was ultimately less concerned than I am about the prospect of the case going back to Chutkan with instructions for further pretrial analysis of the allegations.

“It’s hard to imagine any plausible test that you would apply that delays anything further unless the test is, ‘If the president is awake and doing something other than vacationing, he’s immune.’ If it’s anything short of that, then it should be relatively easy to say this case doesn’t fall within the scope of immunity, and I don’t think that adds substantial delay.”

We shall see, but in the meantime, the conservative justices are further deepening the serious credibility crisis on the court that has been created by their rulings — most notably, the overruling of Roe v. Wade.

The trajectory of the court in recent years has spurred many serious and veteran court watchers — Dorf included — to sharply question the partisan leanings of the conservative justices and to closely question the standard model of the court as a collection of justices with sincerely motivated ideological differences.

“One would think I would have been disabused of that idea by Bush v. Gore, by Shelby County v. Holder,” Dorf continued, “by any number of cases from the Rehnquist and Roberts courts that are best explained as serving the institutional interests of the Republican Party rather than any particular vision of the Constitution.”

The favorable treatment Trump is receiving, however, remains curious even as a political matter. “You would think that a savvy justice who is sufficiently partisan would love to get rid of Trump, but that doesn’t seem to be true. Maybe that’s because they realize at this late juncture that it’s too late to take him out — he’s got the nomination. But they’re partly responsible for us being at this late juncture.”

Indeed.

The court’s conservative majority has earned the public’s distrust and disdain the honest way — by issuing transparently political rulings that are clearly aligned with the political priorities of the Republican Party. Now would be a good time for them to start climbing out of the hole that they dug for themselves.

The public is clearly paying attention to the Trump case — and rightly so. If the conservatives further meddle with Trump’s trial or indulge Trump’s nonsensical claims, there’s no telling how much lower their public approval and political standing in the country could drop. A crisis of credibility can always get worse.