Republished with permission from Lucian K. Truscott IV

If you thought that today’s hearing on a claim of absolute immunity by the likes of Donald Trump was a chance for the court to get beyond its three liberals on one side and six conservatives on the other set-piece, you’ve got another think coming.

The big question answered today was this one: Did the Constitution establish three branches of government as we’ve understood it for nearly 250 years, or just two? The answer, according to at least five of the Republican conservatives on the court, was a resounding TWO!

Donald Trump’s lawyer came to the Supreme Court to argue that an all-powerful executive should enjoy absolute immunity from prosecution for anything the president does while in office, either officially or unofficially, and the job of the judiciary is to rubberstamp the executive. The third branch of government, the Congress empowered with making the laws, can go over there and sit in the corner.

The Supreme Court has made it clear that Congress has no power to enact laws that concern the Supreme Court. The justices of the Supreme Court are going to do whatever the hell they want to do. Should the Supreme Court be subject to ethics rules that apply to all the other federal courts in the land, such as the rule specifying that a jurist must recuse himself or herself from a case if there is even the appearance of a conflict of interest? Should that one apply to the Supreme Court as well? Ha! How about the ethics rules against taking bribes? Are you kidding? How would we be able to afford to take luxury trips or go on expensive hunting and fishing expeditions? Why, we wouldn’t even be able to get somebody to buy us a Class A motorhome or have a buddy pay for the private schooling of a relative!

How about those pesky laws the Congress is always passing that apply to everybody else in the country? Here on the Supreme Court, we can excuse ourselves from the rules, so why shouldn’t a president be allowed to do the same, especially if his name is Trump?

That seemed to be the argument made by at least five of the conservative Republicans on the court. Justice Brett Kavanaugh dove right into something called the “clear statement rule,” a judicial doctrine holding that courts should not interpret a statute in a way that was not intended in the crafting of the statute. Applied in this case, the “clear statute rule” would hold that if the Congress wanted a law to apply to the president, they would have specified the president in the wording of the law. So if Trump is being charged with violating a statute against defrauding the government by lying and falsifying documents in order to obstruct the lawful function of the government, such as the certification of the election by the Congress, why didn’t the Congress write the law to apply to a president, instead of writing it the way it is, “If two or more persons conspire to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose…”

Where is the “clear statement,” Kavanaugh wanted to know, that the law applies to the president? If a president is not covered by the language of a criminal statute, how can the president violate it?

That was just one of the squabbles in the arguments before the court today. Legal experts appear to be concluding that the conservatives on the court seem to want a decision that draws a distinction between a president’s “official” acts and “personal” acts, presumably so they can rule that a president’s “official” acts can be awarded immunity from prosecution while the personal acts of a president will be excluded.

But what would distinguish an official act from a personal one? One of the president’s official duties is as commander in chief of the military. What if a president ordered the army to carry out a coup? Would that be an official act protected by presidential immunity? Trump’s lawyer was asked.

“That might well be an official act,” Trump’s lawyer answered, saying that a president would have to be impeached and convicted before being prosecuted, and then, only after he or she had left office.

Justice Sonia Sotomayor followed up by repeating the point raised by the D.C. Circuit Court: if a president ordered the assassination of one of his political opponents, would that be an official act covered by presidential immunity? Trump’s lawyer, former Missouri attorney general D. John Sauer, doubled down: “That could well be an official act. It could.”

Trump’s lawyer kept making the argument that it is the job of presidents to make “consequential” decisions, and if they have to worry that they will be prosecuted, it will “chill” presidents in making those heavy decisions.

Justice Ketanji Brown Jackson wasn’t buying it. “There are lots of folks who have very high-powered jobs, who make a lot of consequential decisions, and they do so against the backdrop of criminal prosecution if they should break the law in that capacity.” She wanted to know what makes the president so special. Other government officials and presidents have had to follow the law, “and if they don’t, they could be sent to prison.” Isn’t that what has kept some presidents honest?

What is to keep “this office from turning into a kind of crime center?” she asked. :If someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority could go into office knowing there would be no potential penalty for committing crimes?”

Crickets.

In the face of that kind of questioning, it became clear that Trump’s lawyer was swinging for the fences with the Supreme Court, asking for an all-or-nothing decision. Either the court is going to protect a president, or it’s not.

Michael Dreeben, a former deputy solicitor general representing the Office of the Special Counsel, could see that the conservatives on the court were looking for some sort of way out, a limited form of immunity that might cover official acts but not private ones. He reminded the justices that the Constitution establishes what he called “core” presidential powers under Article II that cannot be second guessed by either the Congress or the judiciary. Those include the power of the pardon, the power to veto laws passed by Congress, the power to make appointments, and the power to deal with foreign countries. Acts carried out by presidents under the core powers are effectively immunized by the Constitution. It’s the rest of the official acts of a president which should not be immunized, in addition to private acts.

Any bites on that one? Well, the three liberals – Kagan, Jackson, and Sotomayor, and surprisingly Justice Amy Comey Barrett seemed to buy into Dreeben’s argument.

Throughout his presentation to the court, Dreeben returned repeatedly to the Trump indictment. Dreeben referred a couple of times to Watergate as an example the court should consider – he wanted to know what the pardon of Nixon by Ford was all about, if a president isn’t subject to prosecution after he has left office. But the main examples he used to illustrate his points came from the indictment itself. Dreeben referred several times to the fake elector scheme as an example of a private act by Trump, not an official one. He used the crime Trump is accused of under 18 U.S. Code 371, conspiracy to defraud the government, as an example of a crime in which the president is not mentioned in the law specifically, but which should obviously apply to him. And he made mention of the fourth charge against Trump, denying voters the power of their vote, as well.

Justice Gorsuch tried to turn Dreeben’s use of the Trump indictment against him by asking if a “president could be prosecuted for leading a civil rights protest in front of the Capitol that delays a vote on a piece of important legislation.”

Chief Justice Roberts did his best to stop Dreeben from basically litigating the case against Trump at this hearing by cutting him off and going to for questions from Alito and Gorsuch and Kavanaugh, but Dreeben would go right back to citing the charges against Trump and the facts of the case to make his point. Dreeben rebutted one comment from a conservative justice by citing Trump’s attempt to fire a Department of Justice official, an official act, in furtherance of a private goal, attempting to overturn the results of the election. Dreeben even mentioned the phone call Trump made to Georgia Secretary of State Raffensperger as an example of a private act, rather than an official one, by reminding the justices that Trump asked if the vote count couldn’t be changed.

Chief Justice Roberts did his best to be as inscrutable as ever by remaining largely above the fray, and he established his usual status as a swing vote with his first question of Trump’s lawyer: If a president appoints an ambassador, an official act, and takes a bribe in payment for the appointment, would that be covered by the immunity Trump’s lawyer is seeking?

“That would be up to the discretion of the court,” came Sauer’s answer.

Which was exactly what Roberts was looking for. If we’re going to have a government with just two branches that have any power at all, the executive and the judiciary, then it’s up to the judiciary to determine whether what a president does is proper or not. We can’t depend on that messy, out of control Congress to be passing laws that constrain a president, can we?

That’s what it boils down to, whether the laws written by the Congress have any meaning. Every time Dreeben brought up one of the charges against Trump, the conservatives on the court didn’t want to hear it, or they sought to defenestrate the laws by implying that they were weak, that they didn’t apply to the circumstances surrounding January 6. The Supreme Court recently heard an appeal by an insurrectionist saying that the law against obstructing or impeding an official proceeding did not apply to him because invading the U.S. Capitol did not involve altering or concealing a document or documents, a preceding paragraph in the law. Experts said the court seemed likely to uphold the appeal because the law did not apply to demonstrations against the government, either peaceful or violent.

If the Congress can write a law containing plain language against obstructing an official proceeding as grave as the certification of an election, and the Supreme Court can throw out charges involving that law because the law doesn’t apply to either the insurrectionists or the man who incited them, then conservatives on the court have decided that Trump has immunity already, so all that’s necessary is their rubberstamp.