At oral argument this Thursday, the Supreme Court will pepper both sides with questions about the Department of Justice’s prosecution of former President Donald Trump for his alleged crimes related to trying to overturn the legitimate results of the 2020 election. On its face, the question presented on appeal concerns Trump’s claim that presidents are immune from criminal prosecution for their actions taken while in office that are within the scope of their official duties. Below the surface, however, the two main issues are the speed by which, and how exactly, the Court will reject Trump’s absolutist claim. Speed in many ways is the entire ballgame. If the Court’s decision rejecting absolute presidential immunity is not to be a pyrrhic victory for accountability and the rule of law, it would need to provide time to try Trump for his alleged election crimes.
In an earlier essay for The Atlantic (gift subscription link), we outline reasons why the Court should issue its decision quickly, reasons Trump has no legal basis to argue against that timing, and reasons that the government can explicitly advocate for having a trial completed before the election. As to the latter, DOJ has every legitimate reason to push for a speedy decision, without in any way violating DOJ internal rules. (In our Atlantic essay, we address and strongly reject those like Jack Goldsmith who contend otherwise.)
Below we suggest questions that Justices might ask the parties at oral argument, questions that can help clarify key issues at hand and force the parties to set out their reasoning.
Questions to Former President Trump’s Legal Counsel
1. Before the Court of Appeals, Mr. Trump claimed that the gag order in this very case interferes with his ability to run for office. Given that claim, and Mr. Trump’s claim that he should not suffer one day longer the opprobrium of this indictment as he is immune, why should we not decide this case as expeditiously as possible?
2. Is your view that we should decide this case expeditiously only if we are going to rule in your favor? But otherwise take our time?
3. If we were to decide in favor of the government that whatever the parameters of the scope of presidential immunity in other cases, this case is not covered by it, why shouldn’t we lift the stay immediately following oral argument with an opinion to follow, as we have done in the past?
4. Would President Biden be free to order the assassination of a political rival if the president felt his opponent was a threat to democracy? If he believed in good faith that the rival was working with foreign adversaries, like Russia, to undermine our democracy? Impound all the voting machines if he did not like the election results in certain states?
5. If a president impounded the voting machines or did the other acts noted in the prior question and claimed it was part of his official duties, do we have to accept that assertion? What if the indictment–a finding by a grand jury – said otherwise? What if official duties were just a small percent of what motivated the president — 1%?
6. If we sent this case back for a hearing as opposed to accepting the allegations of the indictment as true, how would you refute the grand jury findings here? Wouldn’t that be entitled to weight? Would Trump testify? Why is the Judge Pryor opinion finding that what your client’s own chief of staff was doing on your behalf, as alleged in the Georgia January 6th indictment, not official duties, but campaign activity persuasive?
7. During the impeachment trial in the U.S. Senate, Mr. Trump, through his attorneys, argued against conviction by the Senate on the ground that criminal investigation and prosecution were the appropriate processes for addressing President Trump’s alleged misconduct on January 6th. Setting aside the contradiction with your argument today, is that not at least a clear admission that the president had no immunity from criminal prosecution for his actions while in office? And why are you not estopped from making a contrary argument now – i.e., you have forfeited the claim of immunity, by seeking to be acquitted in the Senate on the ground that you could face criminal prosecution when out of office, and so cannot contend now that you are immune unless convicted by the Senate?
Background:
President Trump’s attorney David Schoen:
“We have a judicial process in this country. We have an investigative process in this country to which no former officeholder is immune. That is the process that should be running its course. That is the process the bill of attainder tells us is the appropriate one for investigation, prosecution, and punishment, with all of the attributes of that branch. We are missing it by two articles here that the article III courts provide. They provide that kind of appropriate adjudication. That is accountability.
There are appropriate mechanisms in place for full and meaningful accountability not through the legislature, which does not and cannot offer the safeguards of the judicial system, which every private citizen is constitutionally entitled to.”
(Congressional Record S607 Feb. 9, 2021) (emphasis added)“But on the issue of jurisdiction …
So this idea of a January amnesty is nonsense. If my colleagues on this side of the Chamber actually think that President Trump committed a criminal offense—and let’s understand a high crime is a felony and a misdemeanor is a misdemeanor. The words haven’t changed that much over time. After he is out of office, you go and arrest him.
So there is no opportunity where the President of the United States can run rampant into January, the end of his term, and just go away scot-free. The Department of Justice does know what to do with such people.
(Congressional Record S601 Feb. 9, 2021) (emphasis added)
7. Your client has repeatedly said that, if elected, he would appoint a special counsel or direct the Justice Department to criminally investigate the current president for official actions in office. Isn’t that an admission that your client believes there is no absolute presidential criminal immunity including for official acts? And isn’t that the exact concern of tit-for-tat prosecutions that you advance as a reason there must be presidential immunity?
8. How would organizing alternative electors in coordination with the Chair of a major political party involve official acts of a president?
9. If then-President Trump personally led the violent assault on the Capitol would you say he could not be criminally prosecuted for that conduct? What if he directed the mob to threaten the life of his vice president?
10 If Richard Nixon had ordered the FBI instead of the so-called plumbers to break into Daniel Ellsberg’s psychiatrist office would Nixon have been immune from prosecution?
11. In your cert petition, you argued that a former president could be criminally indicted only after being removed from office through impeachment. Doesn’t that concede that presidents are not immune from criminal liability for actions in office? And then the only question is quibbling over what institutional mechanisms determine when criminal prosecution is possible?
12 .You argue that if there were no immunity, it would severely cramp the ability of presidents to do their job.
But the long received wisdom is that presidents are not immune from criminal prosecution. Past presidents, past Justice Departments, past special counsels and independent counsels have ALL assumed a president is not immune from criminal indictment for actions in office – from the draft indictment of Richard Nixon to the investigations of Reagan, Clinton, Trump and more. So how does your argument make any sense?
13. Does the public have a right to a speedy trial?
Questions to U.S. Government
1. Are you trying to hold a trial and reach a verdict to inform American voters in the presidential election? If not, what legitimate reason do you have for there to be a speedy trial before the election? Before the inauguration?
2. If a defendant would become immune or otherwise evade criminal prosecution after a certain date, would the Justice Department have an interest in trying the individual before that date?
3. [Same as above] If we were to decide in favor of the government that whatever the parameters of the scope of presidential immunity in other cases, this case is not covered by it, why shouldn’t we lift the stay immediately following oral argument with an opinion to follow, as we have done in the past?
Editor’s note: Readers may also be interested in Fred Wertheimer’s History Shows the Supreme Court Knows How to Move Quickly, as it Should With the Trump Immunity Case
Photo credit: Interior of the U.S. Supreme Court, Washington, D.C.(Carol M. Highsmith; Library of Congress)