(Ben Sellers, Headline USA) The prosecution was peppered with a wide-ranging array of weighty legal questions Thursday, chipping away at the case corrupt special prosecutor Jack Smith hoped to make in his—thus far—unprecedented attempt to incarcerate a former president while simultaneously preventing a current presidential frontrunner from assuming office.
The hearing at the U.S. Supreme Court over whether presidents qualified for de-facto immunity while in office made it all but evident that the trial would not see the light of day until after the November election, meaning that if former President Donald Trump were to win again, it would likely be dropped and allowed to expire past its statute of limitations.
“Without presidential immunity from criminal prosecution, there can be no presidency as we know it,” Trump attorney John Sauer told the justices, according to the Center Square.
“For 234 years of American history, no president was ever prosecuted for his official acts,” he continued. “If a president can be charged, put on trial and imprisoned for his most controversial decisions as soon as he leaves office, that looming threat will distort the president’s decision-making precisely when bold and fearless action is most needed.”
The justices’ questions whittled away at three of Smith’s four charges, leaving only one, “conspiracy against rights” essentially untouched, according to the Los Angeles Times’s Harry Litman.
“That charge relies on the electorate’s right to have votes counted, which is a somewhat indirect approach to accountability for Trump’s pernicious post-election conduct,” Litman noted.
But it wasn’t so much the weakness of Smith’s case that occupied the bulk of the justices’ attention as its ambitious overreach.
“I’m not as concerned about this case so much as a future one,” noted Justice Neil Gorsuch, one of the court’s three Trump appointees. “We’re writing a rule for the ages.”
Noting the immense implications of their final decision, “the justices forecast a result that could require lower courts to spend months analyzing various aspects of Trump’s election plot, from organizing fraudulent slates of electors to leaning on his Justice Department to sow false doubts about the results,” Politico reported.
Among the devastating questions raised was why no other presidents past had ever been charged for criminal behavior, such as “Operation Mongoose” during the John F. Kennedy administration, the series of covert attempts to stage a coup on the Fidel Castro regime in Cuba, which included efforts to assassinate the communist leader.
In response to the question from Justice Clarence Thomas, DOJ prosecutor Michael Dreeben daftly replied, however, that Trump was the only president ever to have broken the law, wrote journalist Simon Ateba for his new website, the Daily Letter.
“The reason why there have not been prior criminal prosecutions is that there were no crimes,” claimed Dreeben.
Likewise, Justice Samuel Alito brought up Franklin D. Roosevelt’s internment of Japanese–American citizens during World War II, to which Dreeben suggested that at the time it was not criminal for presidents to jail U.S. citizens without cause although it would be considered a crime today.
It is unclear what laws have been passed in the interim that criminalized such egregious violations of due process that were not already on the books when FDR was president. However, some have argued that presidents enjoy a greater degree of latitude during wartime, if Congress has formally declared it.
Sauer, brought up other examples of alleged criminal acts by former presidents George W. Bush, Obama and Biden, for which none were charged.
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“The implications of the court’s decision here extend far beyond the facts of this case,” Sauer said.
“Could President George W. Bush have been sent to prison for obstructing an official proceeding or allegedly lying to Congress to induce war in Iraq?” he continued. “Could President Obama be charged with murder for killing U.S. citizens abroad by drone strike? Could President Biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policies?”
Alito also raised the question—which has never before been addressed by the high court, but may be if Trump is convicted and subsequently elected president—as to whether a president can self-pardon.
Dreeben said he was not aware that the Justice Department had taken a position on the matter.
“[I]if the President has the authority to pardon himself before leaving office, and if the DC Circuit is right that there is no immunity from prosecution, won’t the predictable result be that presidents on the last couple of days of office are going to pardon themselves from anything that they might have been conceivably charged with committing?” Alito asked.
Once again obtusely discounting the possibility of selective political retribution as he, himself, was engaged in, Dreeben claimed that since the issue of a president being pardoned had only come up one time in the past, apart from the current case, it probably wasn’t that important a legal point to consider.
“It sort of presupposes a regime that we have never had except for President [Richard] Nixon,” he said.
“… I think the political consequences of a president who asserted a right of self-pardon … that seems to contradict a bedrock principle of our law, that no person shall be the judge in their own case,” he continued. “Those are adequate deterrents, I think, so that this kind of dystopian regime is not going to evolve.”
Many of the hypotheticals posed by the justices dealt with ambiguous gray areas where questions might arise over whether a president was acting in an official capacity—such as receiving a bribe to appoint an ambassador, as posed by Chief Justice John Roberts.
While that suggested that the court might be inclined toward some sort of a mixed verdict, likely punting the case back down to the lower courts rather than ruling on it outright, Roberts also signaled his skepticism regarding the lower court’s prior determination that no immunity existed.
“Looking back, one of the main points of discussion turned on the question of which situation would be worse: a world in which presidents, shorn of any legal protections against prosecution, were ceaselessly pursued in the courts by their rivals in a never-ending cycle of political retribution, or allowing presidents to be unbounded by criminal law and permitted to do whatever they wanted with impunity,” wrote the New York Times’s Alan Feuer.
Ben Sellers is the editor of Headline USA. Follow him at twitter.com/realbensellers.
