The U.S. Supreme Court heard arguments last week regarding former President Donald Trump‘s claims of absolute presidential immunity for the actions he took while allegedly attempting to overturn the 2020 presidential election. The justices surprised many legal analysts with their questions, appearing to consider that certain actions deemed “official” might be protected from criminal prosecution while a president’s “private” conduct would be fair game.
Notable was the frequent use in the arguments of the word “president” — and not the name “Trump” — an indication that the justices were looking to set precedent for future situations as much as deal with the case at hand, which is specifically about Trump’s claims of total presidential immunity.
The approach drew criticism from many, especially on the Left, who slammed SCOTUS for abstracting the issue, rather than dealing acutely with the Trump case and the actions surrounding January 6. (Bending in this direction, Justice Alito hypothesized a world where — if SCOTUS did not grant complete immunity — no president would ever leave office because of fear of post-presidential prosecution.)
“In 2004, a relatively unknown D.C. Circuit judge named John Roberts summarized the ‘cardinal principle of judicial restraint’: “‘If it is not necessary to decide more, it is necessary not to decide more.’ Here, if a majority of the Court believes that the January 6-related…
— Laurence Tribe (@tribelaw) April 29, 2024
Lawyer Asha Rangappa, former FBI Special Agent-turned-ABC News legal analyst, implied that the SCOTUS has decided to see the case as Trump’s lawyers present it, rather than as the Special Counsel wants them to see it, which is more narrowly.
Justice Alito & Co. parroted Trump and Fox News talking points that a rogue President isn’t too worrisome because officials/military can simply refuse to do their bidding or they will be prosecuted. Except that POTUS can simply pardon them before leaving office, and of course…
— Asha Rangappa (@AshaRangappa_) April 29, 2024
Rangappa writes: “Justice Alito & Co. parroted Trump and Fox News talking points that a rogue President isn’t too worrisome because officials/military can simply refuse to do their bidding or they will be prosecuted. Except that POTUS can simply pardon them before leaving office, and of course those pardons could not be challenged because they are an official act. So all he needs to do is appoint people he knows will go along with him the second time around.”
Note: While in the White House, Trump appointed three of the current Supreme Court Justices: Brett Kavanaugh, Amy Coney Barrett and Neil Gorsuch. The SCOTUS Justices closest to retirement based on age are George W. Bush appointee Alito, 74, and George H.W. Bush appointee Clarence Thomas, 75.