Ex-President Donald Trump is very likely to be put on trial for charges related to the January 2021 attack on the Capitol, but the most important questions are: when and how?
That appeared to be the bottom line of the 2-hour, 40-minute hearing the Justices held Thursday in the historic case of Trump v. United States, leaving fairly strong impressions that the final decision will be a compromise ruling that could include these parts:
- Trump’s plea for total immunity to criminal prosecution almost certainly will not be granted by a majority. Maybe only Justice Samuel A. Alito, Jr., would vote for that, but even that cannot be predicted.
- Trump – and future Presidents — will wind up with a modified form of legal immunity, meaning they will not be spared criminal prosecution altogether but will be given several new legal safeguards to protect the functioning of the Presidency itself.
- It remains to be seen, however, whether a majority will mandate those new safeguards to occur before a trial in front of a jury could begin plus a right to appeal pre-trial, or will apply during the trial with the judge making decisions as the case proceeds. Only a final decision could sort out the timing, which probably will make the difference on what trials happen before the election in November.
- The narrower immunity would extend to prosecutions in state courts as well as in federal courts, and the new safeguards must be respected in state trials, too. That means it would apply in the pending state case in Georgia, based largely on the January 6 events, and could apply at some point to the trial already under way in state court in New York over interference in the presidential election in 2016, which Trump won.
- The decision would apply in the prosecution of the January 6 case in Washington, D.C., but also to the other federal case against Trump in the Mar-a-Lago secret documents prosecution in Florida federal court.
That is a lot to distill from a hearing that had so many twists and turns that predictions about outcomes might, indeed, be off the mark – but probably not far off the mark.
Although Trump’s lawyer, St. Louis attorney D. John Sauer, chose not to make any rebuttal when the time came for that, thus hinting at a confidence that he had won for his client, such a presumption did not seem justified. Trump’s broadest claim of total immunity fared poorly, openly or by implication, in almost every part of the hearing.
The dominant theme of the hearing was that the institution of the Presidency – much more than Donald Trump personally – needed some form of insulation from the potential of a politically driven use of criminal charges against future occupants of the White House. Although many legal critics had suggested that the Court could easily reject the total immunity claim, the hearing showed that – across the bench – the underlying issue of presidential accountability via criminal prosecution was seen as deeply complex and potentially disruptive of governing.
Those most concerned about the future impact of such prosecutions included, in addition to Alito, Chief Justice John G. Roberts and Justices Brett M. Kavanaugh, Neil M. Gorsuch and Clarence Thomas. That would be enough to make a majority, but there was scant evidence that any but Alito in the end would vote for unrestricted presidential immunity. Each of those five, though, were obviously sympathetic to concerns about protecting the Presidency as an institution.
Three liberal Justices – Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor – were never expected to support total immunity and were predictably skeptical about even a narrow version of such protection. There was no sign, however, that they would resist supporting some version of the safeguards that might be mandated by a majority.
The most enthusiastic member of the Court about new safeguards was Justice Amy Coney Barrett. She voiced no hint of support for total immunity, but closely questioned the lawyer speaking for the prosecution – Washington attorney Michael R. Dreeben – about ways to shape a more limited immunity. Although Dreeben was there to argue against any immunity for ex-Presidents, he seemed ready to accept safeguards – in the interest of getting this case to trial.
What new safeguards were the Justices talking about? The most important was that there must be some sort of legal shield not only for duties at the very heart of being President but for some other official actions that might wind up being challenged by criminal charges.
This seemed to be calling for some way of cataloguing the kinds of official acts that would be insulated, but it was not clear whether that would be defined in a final decision by the Court, or would await some further development after the case were returned to lower courts.
What seemed like a majority of the Court, perhaps even more than five of the Justices, seemed receptive to the idea that presidential acts that could be classified as private in nature – clearly beyond the scope of duty – should not be shielded, even when done by a President. Again, though, it was unclear how the concept of private actions would be spelled out, and whether by the Court or, first, by lower courts.
Justice Barrett offered one of the most intriguing alternatives as a safeguard: some procedure, before a trial started, to sort out what parts of charged conduct should be treated as official and what parts private. That almost surely would result in delay of a trial of a former President, but it could be a delay of months and months if that filtering were done before trial and then could also be appealed before a trial could start.
Barrett did acknowledge, however, that she was aware that Special Prosecutor Jack Smith is eager to start a trial against Trump, and that that might be affected by mandating that the filtering process be subject to appeal before a trial could start. Trump’s legal team has used virtually every legal maneuver available to them to avoid his having to go to trial before election day in November, and would surely take full advantage of any options created by a new ruling by the Court.
The Justices will meet in private conference tomorrow, when they will cast a preliminary vote on how to decide the case. The process of drafting one or more opinions will then continue in private, with a final decision not expected much before late June, if then.
