The Patriot Post® · SCOTUS Weighs Presidential Immunity

Neil Gorsuch was the definitive jurist at last Thursday’s oral arguments before the Supreme Court — but only because he first announced that he wasn’t interested in the particular case before him.

“I’m not concerned about this case,” said Donald Trump’s first Supreme Court appointment, “but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives.”

For good measure, Gorsuch added, “We’re writing a rule for the ages.”

Indeed, they are. Whether Gorsuch really couldn’t care less about ruling on Trump’s efforts to overturn the 2020 presidential election — an election that seems more rigged, more rotten, and more disastrously consequential with each passing day — is perhaps dubious. How could he not be interested in an election that so roiled the nation, an election that more than a third of Americans believe was illegitimate?

What matters is that Gorsuch’s statement about the long-term consequences of presidential immunity set the tone for the day’s proceedings. It ennobled the justices’ line of inquiry by making clear that the real issue wasn’t Donald Trump but the American presidency writ large and for the lifespan of the American republic.

“As you’ve indicated,” said Justice Brett Kavanaugh, “this case has huge implications for the presidency, for the future of the presidency, for the future of the country.”

As for the arguments in this case, their merits might be boiled down to this: It’s the extremism, stupid. By that, I mean that both the Biden position and the Trump position are fairly wing-nutty. No rational observer believes a U.S. president should be entirely above the law — that, for example, he should be allowed to rig an election or falsify a FISA warrant and thereby spy on his political rivals. Oh, wait. But nor do thoughtful observers believe a president should spend his time in office looking over his shoulder, intimidated into inaction by the prospect of a vile, petty, vindictive, hyper-partisan successor hell-bent on raiding his home, snooping through his wife’s underwear drawer, and prosecuting him for matters that a more decent man would, out of respect for the office and the enormity of its responsibilities, refuse to pursue legally except as a last, last, last resort.

Special persecutor Jack Smith and Biden counsel Michael Dreeben got a taste of where things were headed at the adult table early on. As the Wall Street Journal editorial board put it: “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.”

Not only does the DC Circuit’s rationale ignore the fact that presidents are somewhat special people and that the decisions they must make are unlike those of any other American citizen, but it also argues that Trump may be prosecuted because Trump is being prosecuted. With apologies to Winston Churchill, that’s a tautology posing as a circularity wrapped inside a redundancy.

Trust us. We’re the government. That’s the insulting argument Smith, Dreeben, and their ilk are making before the Supreme Court.

What we have here is the criminalization of politics and the criminalization of electoral due process. Only when Trump tries to exercise his constitutional right to dispute the results of an election is it “a threat to our democracy.” Only when Trump’s legal team organizes a second set of electors in disputed states is it considered obstruction of justice rather than due process. Only when Trump asks a state-level election official to disqualify illegitimate votes — not create more votes — is it a crime.

As Power Line’s John Hinderaker notes: “The Supreme Court justices no doubt care about the future prospect of either 1) lawless presidents or 2) a cycle of meritless prosecution of presidents once they leave office. (And believe me, when Joe Biden leaves office I hope Republicans can find a way to bring multiple criminal prosecutions against him.) But Jack Smith cares only about getting a conviction between now and November, however flimsy his theory may be.”

This is an unprecedented case: A sitting or former president has never been before the Supreme Court for a matter of criminal immunity. Based on the questioning of all nine justices, it’s highly likely the High Court will find some sort of middle ground and return the case to a lower court, which will need weeks, if not months, of additional fact-finding. And that means that this case isn’t going to go to trial before November’s election.

Sorry, Jack.

In the end, the Trump team’s argument about the horrors that could result if future presidents from both parties weren’t afforded some degree of immunity for their actions in office clearly resonated with the justices. That’s what happened in this hearing, and it was a blow to the Democrats’ ongoing efforts to criminalize our political differences.