How the Supreme Court 'handed Trump another decided win': ex-federal prosecutor

26 April 2024

From a legal standpoint, Thursday, April 25 was a major day for former President Donald Trump.

While former National Inquirer Publisher David Pecker was giving additional testimony in Trump's hush money/falsifying business records trial, the U.S. Supreme Court was hearing oral arguments for and against Trump's presidential immunity claims.

Trump contends that because he was still president in late 2020 and early 2021, he enjoys immunity from prosecution in special counsel Jack Smith's election interference case — a claim that Smith and Judge Tanya Chutkan consider absurd. Barack Obama appointee Chutkan, assigned to the case, ruled that U.S. presidents who not enjoy a "divine right of kings," but it remains to be seen what the High Court will ultimately decide.

In an article published by the conservative website The Bulwark, law professor and former federal prosecutor Kimberly Wehle offers in-depth legal analysis of the arguments the U.S. Supreme Court heard on April 25. And she laments that although the justices — including the conservatives ones — were skeptical about Trump's absolute immunity claims, the High Court has likely prevented Smith's case from going to trial before November's presidential election.

"Unsurprisingly, even the Court's right-wing justices weren't interested in completely immunizing presidents from criminal liability for any and all crimes committed while president," Wehle explains. "That was never in serious contention. Judging by their questions, however, what the conservatives are evidently willing to do is manufacture some form of criminal immunity that will be governed by a private-versus-official conduct standard — with only official conduct protected — and then send the case back to District Judge Tanya Chutkan to parse special counsel Jack Smith's January 6th indictment of Trump and excise the parts for which Trump would be protected under the Court's newly minted criminal immunity test."

Wehle adds, "How the Court will draw the line between official and private conduct is anyone's guess, particularly if presidents abuse official powers for purely personal gain. That would be a win for the insurrectionist-in-chief."

The former federal prosecutor goes on to describe the difference between civil and criminal liability for presidents. Wehle notes that in 1982, the High Court "granted presidents immunity from civil liability on the theory that otherwise, they’d be inundated with lawsuits for money damages by unhappy Americans just for doing their job.

"The question of criminal immunity for presidents has never been an issue — until Trump," Wehle observes. "Richard Nixon left office short of being impeached over Watergate, and his successor, Gerald Ford, pardoned him for any possible crimes that he might have been prosecuted for, on the presumptive understanding that he could have been prosecuted but for the pardon."

Wehle argues that the Roberts Court has done the U.S. a huge disservice by dragging its feet with Trump's immunity claims and delaying Smith's election interference case.

"For now, with only one of his four criminal cases likely moving forward before voters head to the polls, the Supreme Court seems to have handed Trump another decided win," Wehle warns. "Tragically, that win is not just for Trump — whose January 6th trial will be delayed as his legal team slices and dices the indictment and appeals Chutkan's rulings on which parts can move forward — but also, for the dark forces that threaten to convert our system of government from a democratic republic ruled by the people into one in which unconstrained power could be lodged in a single, despotic man."

Kimberly Wehle's full article for The Bulwark is available at this link.

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