'Even worse': Expert details disturbing legal conundrum inherent in SCOTUS’ Trump immunity ruling
02 July 2024
When the U.S. Supreme Court handed down its 6-3 immunity ruling in Trump v. the United States, all three of the dissenters were Democratic appointees.
Justice Sonia Sotomayor was especially scathing in her dissent, warning, "Today's decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. Orders the Navy's Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune."
Legal scholar and elections law expert Richard Hasen discussed the ruling during an interview with The New Republic's Greg Sargent — and laid out some reasons why he finds it so disturbing.
READ MORE: Sonia Sotomayor: Supreme Court just gave presidents power to assassinate political rivals
Hasen, describing the implications for special counsel Jack Smith's election interference case, told Sargent, "They've created a test that is really fact-intensive. And what that means is it's going to be months of briefing in the trial court, months of briefing in the court of appeals…. If Trump is not elected president and this prosecution continues, I don't think the trial would happen for a year or two."
The High Court's ruling gives U.S. presidents immunity from prosecution for "official" acts but not "unofficial" acts. And Sargent noted that part of the ruling includes "presumed immunity" from prosecution.
Hasen told Sargent, "I don't know how you overcome this presumption of immunity and…. show that it wouldn't impair executive function. How do you decide if this is campaign-related versus official action?…. The Court says it's really context-dependent, which leaves room for a lot of debate and litigation."
Sargent offered Hasen some troubling scenarios for a possible Trump presidency in 2025 — for example, deciding to "prosecute Liz Cheney without cause" for "treason."
Hasen responded, "He might violate the statute but have immunity from prosecution…. It's even worse than what we've described because even if the president is doing something in his unofficial capacity — if he does an official act in a way that helps to prove what his motive is, then that would be inadmissible. You can't even point to the official act as proof of the motive for the unofficial act that doesn't get immunity."
READ MORE: Calls grow for Dems to 'pack the Court' after SCOTUS immunity ruling
Listen to The New Republic's full interview with Richard Hasen at this link or here.