The Supreme Court’s decision to take up Donald Trump’s presidential immunity appeal sets up the final adjudication for the jaw-dropping claim that the former president is protected from criminal prosecution. The court has framed the question in such a way that it is almost certain it will reject Trump’s outlandish position. The real question is whether the court will unduly delay resolution of the appeal and push a verdict past Election Day. To reward Trump’s open strategy of delay would be a catastrophe, for both the court and the nation.
The most likely resolution of the case remains clear. As we have explained before, Trump’s blanket assertions of impunity make a mockery of the Constitution. The consequences of his position were laid bare during oral arguments before the U.S. Circuit Court of Appeals for Washington, D.C.: Trump’s lawyer argued that a former president could not be prosecuted for ordering the assassination of a rival unless he were first impeached and convicted by Congress (an event that has never happened in the 235-year history of our nation). The justices will not undo the revolutionary democratic work of the founders by reimposing a system of government in which one ruler stands above everyone else before the law.
To reward Trump’s open strategy of delay would be a catastrophe, for both the court and the nation.
The court’s terse two-paragraph order provides three important clues about how it views the presidential immunity issue — and on what grounds it may reject Trump’s claim. First, the court was clear it is interested only in whether former presidents are immune from prosecution, thus following the D.C. Circuit in explicitly cutting off more difficult questions about sitting presidents. Second, the court asked not just whether a former president is immune but also “to what extent,” suggesting that official acts may not fully immunize a president — a measure short of the absolute immunity Trump was seeking. And…
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