The United States Supreme Court, not typically known for its comedic timing, has chosen to tackle a lighthearted little issue this term: whether former President Donald Trump is protected by presidential immunity in connection with his efforts to, well, upend the results of the 2020 election in the style of a man losing at Monopoly and flipping the board.
This comes after Trump, the former real estate mogul turned Commander-in-Chief turned criminal defendant (pending outcome), was charged last year with engaging in a wide variety of post-election shenanigans that allegedly teetered over into the felonious. Trump claims he cannot be held accountable for these actions because apparently, being president is akin to having an invisibility cloak for the criminal code.
The court, which has lately leaned more conservative courtesy of Trump himself, heard arguments this week in a case that essentially asks whether a president can be prosecuted for behavior undertaken while in office, such as allegedly trying to stay in office through a deluge of baseless fraud claims and what some might call bold attempts to subvert democracy, while others might simply call Tuesday.
Trump’s attorneys, displaying the kind of straight-faced legal creativity usually reserved for bar exam hypotheticals, argued that presidents must be immune from criminal prosecution for official acts, unless first impeached and convicted by Congress. By that logic, so long as Congress decides not to impeach or can’t get the votes, the president could do just about anything short of turning the Lincoln Bedroom into a vape lounge and still avoid jail time.
Justice Neil Gorsuch expressed concern about the broader implications of allowing prosecutions too freely, noting that such a practice could unleash a torrent of politically motivated indictments. On the other hand, Justice Ketanji Brown Jackson pointed out that a truly bulletproof form of presidential immunity might create what she delicately described as “monarchy-like immunity.” It is unclear whether she had a crown and scepter in mind, but the implication hovered in the room like cigar smoke in a noir film.
This case follows a previous ruling from a federal appeals court that basically replied to Trump’s arguments with a polite yet firm legal “nice try.” That court found that criminal liability can indeed apply to presidents who commit crimes, which some would argue is merely the legal equivalent of saying gravity still exists.
Whatever the Court decides, the ruling will have immediate implications not just for Trump’s legal calendar, which is already bordering on bingo card complexity, but also for the future balance of presidential power in the republic. Because nothing keeps a democracy perky like unresolved questions of whether its chief executive can be charged with crimes.
The Supreme Court is expected to issue its ruling by late June, in the time-honored tradition of dropping momentous decisions just as the rest of the country heads out for barbeque and beach season.
Apparently, summer is the perfect time to answer whether the president is above the law or just adjacent to it.