In agreeing to hear former President Donald Trump’s immunity claim Wednesday, the Supreme Court identified the key issue to be decided as follows:
Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.
Unfortunately, I believe this is the wrong question. And the way it is worded runs the risk of delivering the wrong answer.
The court has formulated an overly broad question to be answered in the appeal, rather than the straightforward one: whether Trump is absolutely immune from prosecution for the crimes alleged in the indictment obtained by special counsel Jack Smith.
Obviously, the court’s wording is subject to interpretation. And not all legal observers are as pessimistic as I am. Some have opined that the inclusion of the words “official acts” in the court’s order actually narrows the scope of the decision.
But I respectfully disagree.
And so did Harvard Law professor Laurence Tribe in his appearance Wednesday on “The Last Word” with Lawrence O’Donnell. Tribe criticized the court’s language as an “enormous abstraction” that is “so sweeping that there are lots of ways of answering it.”
In framing the issue, the court’s critical (and telling) insertion of the phrase “conduct alleged to involve official acts” deserves special attention.
Smith did not frame the issue as involving official acts in his Supreme Court filings, but rather asked the court to decide “whether a former president is absolutely immune from federal prosecution for crimes committed while in office.”
Trump’s lawyers have sought to define his conduct as official acts undertaken while president. The Supreme Court’s order now also incorporates that qualifier.
By asking if a president can be immune for any “official act,” the issue potentially becomes more complicated and more nuanced. Trump is being prosecuted for an alleged criminal…
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