It seems unlikely that the Supreme Court will embrace Donald Trump’s outrageous claim that as a former president he enjoys absolute immunity from criminal prosecution for actions that he allegedly took to overturn the 2020 election and cling to power. This is a relief. To do otherwise would allow the office to become, as Justice Ketanji Brown Jackson put it, “the seat of criminal activity in this country.”
Ominously, however, some conservative justices during Thursday’s oral argument expressed exaggerated concerns about prosecuting former presidents. That raises the possibility that the case might be returned to the lower courts for a determination of which of Trump’s alleged actions constituted “official acts,” a category Trump’s lawyers have defined broadly.
Such a muddled outcome would be a mistake, and not only because it would make it less likely that Trump would be put on trial before the November election. If the justices focus on the allegations against Trump, they can and should rule there should be no protection for criminal conduct just because it is connected in some way to the president’s official duties.
Understandably, some questions focused on the future implications of a ruling denying Trump immunity. For example, Justice Neil M. Gorsuch expressed a concern about “future uses of the criminal law to target political opponents based on accusations about their motives.” He noted that the court would be “writing a rule for the ages.”
Of course, the justices should think about the consequences of their decisions. But the primary focus in this case should be on whether Trump is entitled to immunity for the specific actions he allegedly took in an attempt to overturn the election.
The answer should be no. Allowing the most powerful person in the nation, if not the world, to operate without any fear of prosecution for, say, ordering the murder of a political opponent or throwing out election results is a recipe for a dictatorship.
Under questioning from Justice Amy Coney Barrett, Trump’s lawyer, John Sauer, conceded that some of the actions Trump allegedly took were private acts. But even supposedly “official” acts — such as Trump’s alleged effort to enlist the Justice Department in an attempt to overturn the election — were allegedly part of what former Deputy Solicitor Gen. Michael Dreeben, representing the government, called an “integrated conspiracy,” in which the former president allegedly used his official powers and his private conduct to try to subvert the election.
Dreeben discussed the distinction between acts a president seeking reelection takes as an “officeholder” and those he takes as an “office-seeker. (Sauer said he accepted the distinction between a president acting as president versus acting as a candidate.)
The court should recognize that a president can be acting as an “office-seeker” — or, in Trump’s case, someone seeking to hold on to an office after losing an election — even when his official duties are involved. Dreeben reminded the justices that one of the acts that put former President Nixon in jeopardy was his attempt to have the Central Intelligence Agency shut down the FBI’s Watergate investigation. That is an apt analogy to the allegation that Trump tried to have the Justice Department abet his attempt to subvert democracy.
The court should hand down a decision that would allow Trump’s trial to proceed — and it should do so quickly. The court has taken far too much time in dealing with Trump’s audacious immunity claim already, rejecting a plea by special counsel Jack Smith last year to consider the issue before an appeals court acted and scheduling oral argument on the last day of such proceedings.
It would be wrong to think of an expeditious ruling in this case as an anti-Trump gesture; a ruling that allowed Trump to go on trial before the election could politically benefit the former president if he were acquitted. The real beneficiaries of a trial before November would be the voters, who deserve to know whether a candidate for the nation’s highest office has been found innocent or guilty by a jury.
