‘A Rule For The Ages’: Presidential Immunity at the High Court

Initial question: Will Alvin Bragg, Manhattan DA, go down in history as the best lawyer President Trump could have had on the day of these arguments, and perhaps as the one figure most responsible for his re-election? More on that later.

I listened to every minute of the arguments before the Supreme Court in the Presidential Immunity case so you wouldn’t have to. Some, if not most, of the questions were thoughtful, probing, well-framed and obviously designed to elicit more understanding from the attorneys for President Trump and the Special Counsel. And then there were the questions by a member of the liberal wing of the Court which bordered on being downright embarrassing and inappropriate. However, to my pleasant surprise, only one member of that wing of the Court asked such questions. During and after that task, I checked news items from various sources, both liberal and conservative, and came away from that observation thinking I was reading accounts, from the leftist press, of oral arguments in an entirely different case; one framed by what had been hoped for rather than the case which was actually argued on April 24, 2024.

What this discussion will not be is a detailed analysis of all the questions and answers at the Oral Arguments before the Supreme Court, which lasted over two and a half hours, but an examination of what I saw as the major exchanges.

1. Preliminary Observations and Prognosis

Based on what I heard, and supplemented by the analytical commentary I have studied, here are my impressions and prognoses as to where this case is headed from here, what the next steps are likely to be and the possible ramifications on the Presidential election if my views are anywhere close to the mark.

1. The case and its historically significant issues will be remanded to the trial court or the Court of Appeals for the DC Circuit with some rather clear and perhaps explicit directions from the Court as to what it expects to be done by that lower court.
2. In that connection, some of the questions of some of the Justices, especially the Chief Justice, reflect a frustration on the part of the High Court as to the woefully shoddy work of both lower courts.
3. All the Justices, save one, were genuinely struggling with the major issues bound up in the overall issue presented; that single Justice, quite improperly, apparently had decided all the issues adversely to President Trump long before the arguments.
4. Justice Thomas, in addition to asking some of the most incisive questions, did a great public service by bringing out into the public forum the question of whether Smith, a private citizen, was even legally appointed, the answer to which could have an enormous impact upon many cases, not only President Trump’s.
5. The other Justices whose questions very thoroughly sought more information and a fuller understanding of the issues included Justices Gorsuch, Kavanaugh, Kagan and, at the top of that category, Justice Alito. It must be noted he has come in for a lot of scorn by the liberal press for one of his questions, among the best of the day.
6. The attorneys, both brilliant and able advocates, gave responses which were at times like a very well-presented lecture in Law School, including learned quotes from the Founders at the Constitutional Convention.
7. While I disagree with his positions, along with everything the Special Counsel has done, the arguments of his representative were most impressive, to put it mildly. His extensive experience in arguing before the Supreme Court in an estimated 100 cases showed in his extraordinarily well-prepared readiness for every question asked of him and deep knowledge of not only important decisions but also their historical significance.
8. Major Exchanges and Points Raised

The tone of the proceedings and far-reaching implications of the Court’s ultimate decision were sounded by Justice Gorsuch, as reflected in the title of this post.

For those who may want to explore the arguments further, the audio is accessible more fully on many sites, including C-SPAN, here, and the transcript is accessible here. The following discussion will be keyed to page references in the transcript for easy reference- and fact checking, if necessary!

Some of the exchanges supply fairly clear indications of how the questioning Justice will likely vote, and most telling was this exchange reflecting the Chief Justice’s frustration with what he called the tautological approach of the Court of Appeals for the DC Circuit ( 73 ):

CHIEF JUSTICE ROBERTS: --the court of appeals below, whose decision we're reviewing, said: "A former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has allegedly acted in defiance of the laws." Do you agree with that statement? MR. DREEBEN: Well, I think it sounds tautologically true, but I --I want to underscore that the obligation of a president is to take care that the laws are faithfully executed. CHIEF JUSTICE ROBERTS: Well, the --I think it sounds tautologically true as well, and that, I think, is the clearest statement of the court's holding, which is why it concerns me. As I read it, it says simply a former president can be prosecuted because he's being prosecuted.

The Chief Justice also made it clear what he thought the Court should do with this issue-laden case in which he clearly thought the lower court had not done the thorough job of analysis it should have done. (76 ):

“CHIEF JUSTICE ROBERTS: But --but what --what concerns me is, as you know, the court of appeals did not get into a focused consideration of what acts we're talking about…”

To me, one of the most potentially significant questions was that of Justice Kavanaugh indicating the way the Court may go in future cases involving a Special Counsel in which he said that the decision approving the use of Special Counsels, Morrison v. Olson, was one of the worst decisions of the Court’s history. In the process, he read extensively from Justice Scalia’s dissenting opinion in that case to demonstrate the dangers of turning someone like Jack Smith (my words, not Justice Kavanaugh’s) loose on a President, or any public official, with virtually no accountability ( 142):

JUSTICE KAVANAUGH: Okay. Second, like Justice Gorsuch, I'm not focused on the here and now of this case. I'm very concerned about the future. And I think one of the Court's biggest mistakes was Morrison versus Olson. MR. DREEBEN: Mm-hmm. JUSTICE KAVANAUGH: I think that was a terrible decision for the presidency and for the country and not because there were bad people who were independent counsels, but President Reagan's administration, President Bush's administration, President Clinton's administration were really hampered –"

The Court explored many examples of conduct in examining the line between official acts and private conduct, such as a President ordering the military to stage a coup ( 41 ), ordering the assassination of a rival ( 12 ), accepting a bribe of a million dollars for an Ambassador’s appointment ( 32 ), selling nuclear secrets to an enemy ( 40 ), leading a mostly peaceful demonstration before a Congressional committee ( 86 ). Justice Thomas injected a much-needed note of realism when he asked the Special Counsel why the President who launched Operation Mongoose (Kennedy) to kill civilians in Cuba was not indicted for murder ( 70 ). Another Justice, Kavanaugh, asked why Obama could not be charged for killing American citizens in a drone strike ( 150 ).

A vivid example of why it is necessary for any lawyer to be exhaustively prepared before appearing before the High Court came in questioning by Justice Alito about why President Roosevelt could not have been indicted for interning Japanese American citizens during WWII. When the Special Counsel said it was because he had relied on the advice of his attorney, General Justice Alito corrected him with a quick history lesson ( 106 ):

“So, what about President Franklin D. Roosevelt's decision to intern Japanese Americans during World War II? Couldn't that have been charged under 18 U.S.C. 241, conspiracy against civil rights? MR. DREEBEN: Today, yes. Given this Court's decision in Trump versus United States in which the --you know, Trump versus Hawaii, excuse me, where the Court said Korematsu is overruled. I mean, President Roosevelt made that decision with the advice of his attorney general. That's a layer of safeguard. JUSTICE ALITO: Is that really true? I thought --I thought Attorney General Biddle thought that there was really no threat of sabotage, as did J. Edgar Hoover.”

In questioning about the layers of protection the Special Counsel argued any President would have against unwarranted criminal prosecution (known in common parlance as “lawfare” or, more simply, persecution) Justice Alito got the government attorney to go through those layers and one of them is that one could totally rely on the integrity of Grand Juries to do the right and honorable thing. It was at times like this that one felt in listening to some of these passages that one had entered some kind of “Twilight Zone” completely unmoored from reality in view of the ongoing persecution in four different cases and the New York City trial over a rape that may or may not have occurred 37 years ago! Here’s that exchange ( 105 ):

“MR. DREEBEN: Well, it --it affords two levels of protection. One is the probable cause finding requires evidence. I think some of the fears about groundless prosecutions aren't supported by evidence. And they're not going to get out of the starting gate. JUSTICE ALITO: I mean, there -- there's the old saw about indicting a ham sandwich. JUSTICE ALITO: I mean, you --you had a lot of experience in the Justice Department. You come across a lot of cases where the --the U.S. attorney or another federal prosecutor really wanted to indict a case and the grand jury refused to do so? MR. DREEBEN: There are such cases. JUSTICE ALITO: Are there? MR. DREEBEN: Yes. But I think that the other -- JUSTICE ALITO: Every once in a while there's an eclipse too.”

III. Brief Review of Commentary and Analysis About the Oral Arguments

One of the best articles as to where the case is likely headed – and not only because it agrees with my opinion - is by an attorney who has made her life’s work attending and reporting on arguments before the High Court with scotusblog.com, Amy Howe. In her column, entitled Supreme Court appears likely to side with Trump on some presidential immunity, she noted:

Several justices pressed Sauer on how to distinguish official acts, for which a former president would enjoy immunity under his theory, from private acts, for which he could still face criminal charges. Chief Justice John Roberts asked Sauer about a scenario involving a president’s official act – appointing an ambassador – that he does in exchange for a bribe. When Sauer conceded that accepting the bribe is private conduct, Roberts urged Sauer to explain how the boundary between an official act and a private one would “come into play.” Prosecutors could bring charges against the former president for accepting a million dollars, Roberts queried, but they can’t say what it’s for? Justice Elena Kagan lobbed a series of examples, some taken from the indictment, at Sauer and asked him to identify them as involving private or official conduct. Sauer agreed that some, like signing a form affirming false election allegations, would be private, but he asserted that others – like calling the chair of the Republican Party – would be official. When asked whether ordering the military to stage a coup so that the president could remain in office was private or official, Sauer suggested that it would depend on the circumstances, prompting Kagan to say, 'That sure sounds bad, doesn’t it?'” Justice Neil Gorsuch observed that, with the concession that a former president could be prosecuted for his private conduct, the two sides had found “some common ground.” He noted that the D.C. Circuit had “expressed some views about how to” separate private and official conduct, including the possibility of further proceedings to do so.

Another article, Supreme Court Hears Immunity Arguments, Administrative State Smiling – SCOTUS Likely to Send Case Back to Lower Court, succinctly sums up the real issue causing such concern among denizens of the Deep State:

The Supreme Court is now involved in determining whether the President of the United States has immunity from prosecution, or whether any/all future presidents can be prosecuted for their action while in office. Inside the debate is the larger question of whether the “bureaucratic state” controls the president, or whether the office of the president controls the executive branch bureaucratic state. The leftists and communists agree with former AG Bill Barr, that institutions run the government, and the office of the President is simply a figurehead within it. In essence, the DC institutions are omnipotent and powerful, and the president is simply occupying space the deep state allows. That’s the core ramification within the immunity argument.

An article in the Federalist, Alito: Criminalizing Close Election Contests Would Destabilize Entire Foundation Of American Democracy, discusses the question which has the liberal press going into paroxysms of anger and disbelief, as will be more fully discussed below:

Now, if an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off in a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?” Alito asked. “And we can look around the world and find countries where we have seen this process where the loser gets thrown in jail.

Two columns from the liberal press – the New York Times, of course - show the hysteria Justice Alito caused by that question. In Justice Alito is Holding Trump to a Different Standard:

The implication of Alito’s question is that presidential immunity for all official acts may be a necessary concession to the possibility of a politically motivated investigation and prosecution: Presidents need to be above the law to raise the odds that they follow the law and leave office without incident. If this sounds backward, that’s because it is.

The article goes further: “Alito would have you believe that Trump’s actions were a normal response to political defeat that the government has essentially criminalized in its zeal to punish an opponent. I have no doubt that this is the reality of Fox News and the fever swamps of conservative media. It might even be the consensus view of Republican lawmakers and activists. But here on Earth, it’s hogwash. Bunkum. Claptrap. Malarkey, even.”

Again, glancing briefly away from the world of hatred people like this author live in, it must take a huge amount of hubris to make a statement like that at the same time in which the former President is sitting in a New York courtroom, unable to attend the Supreme Court arguments in his own case because of a partisan judge holding power over him in a blatantly partisan trial.

The other New York Times column, Conservative Justices Take Argument Over Trump’s Immunity in Unexpected Direction, contained these acidic comments:

“Michael Dorf, a law professor at Cornell, said that 'the apparent lack of self-awareness on the part of some of the conservative justices was startling.' He noted that, 'Justice Alito worried about a hypothetical future president attempting to hold onto power in response to the risk of prosecution, while paying no attention to the actual former president who held onto power and now seeks to escape prosecution.'”

This author also exhibited the vicious hatred by the left of conservatives, especially successful and brilliant conservatives like Justice Thomas with this totally unnecessary smear of his wife: “Justice Clarence Thomas, who participated in the case despite his wife Virginia Thomas’s own vigorous efforts to overturn the election, …”

This is today’s objective, unbiased and always professional press in the newspaper which not so long ago prided itself on being known as America’s Paper of Record, with the credo “All the News That’s Fit to Print.” Now it should read, “All the News That Fits.”

Jonathan Turley, an attorney, and law professor whose writings I respect highly touched upon the question posed in the opening line of this post. In The Constitutional Abyss: Justices Signal a Desire to Avoid Both Cliffs on Presidential Immunity he observed:

… Trump’s best attorney proved to be Manhattan District Attorney Alvin Bragg. If the justices want insight into the implications of denying any immunity, they just need to look north to New York City. The ongoing prosecution of Trump is legally absurd but has resulted in the leading presidential candidate not only being gagged but prevented from campaigning.” Alvin Bragg is the very personification of the danger immunity is meant to avoid.

He also brought a note of “real world reality” into the discussion by noting, “It was effectively a 'Trust us, we’re the government' assurance. Justice Samuel Alito and others questioned whether such reliance is well placed after decades of prosecutors’ proven abuses.”

The role of the Manhattan DA in possibly assuring President Trump’s return to the White House – aided, it must in all fairness be noted, by the outrageously conflicted Judge Merchan - was also discussed in I Thought the Bragg Case Against Trump Was a Legal Embarrassment. Now I Think It’s a Historic Mistake. This article appeared in - as hard as it is to believe - the New York Times. Here’s a highlight:

“Eight years after the alleged crime itself, it is reasonable to ask if this is more about Manhattan politics than New York law. This case should serve as a cautionary tale about broader prosecutorial abuses in America — and promote bipartisan reforms of our partisan prosecutorial system.”

I cannot resist the temptation to observe: “When you’ve lost the New York Times…..”

IV Conclusion

“Oh, what a tangled web we weave when first we practice to deceive.” So goes the ancient wisdom and there can be no better illustration of that complex, convoluted and inane web than the one Biden and his Federal and State cronies have tried to construct to remove his obvious opponent for the office. It is both sad and alarming to observe. It has been well known to all the actors in this sleazy play that this was the only way this pathetic and corrupt dementia patient could ever defeat a candidate like President Trump. Only time will tell whether any of these prognostications are anywhere near accurate, so all we have is - to paraphrase the most treacherous web-weaver of them all - hope that there will be change in November.

God Bless America!