Conservative SCOTUS justices ponder Trump immunity claim with eye toward future

 April 29, 2024

The United States Supreme Court last week heard oral arguments on both sides of former President Donald Trump's immunity claim, and over the course of the morning, it appeared that more than one justice was concerned about the implications of the ruling for future generations of commanders in chief.

Of particular note in the panel's questioning of attorneys for both sides were Justice Brett Kavanaugh's words of warning about the potential for endless cycles of vindictive prosecutions unless some degree of immunity is recognized, as The Epoch Times reports.

Scope and extent of immunity debated

The case underlying Thursday's arguments was brought by special counsel Jack Smith against Trump last summer, alleging that he unlawfully conspired to overturn the 2020 election results.

Trump, in response, contends that absolute immunity ought to attach to actions taken during a president's time in office, provided they are not impeached by Congress and subsequently convicted on a particular set of allegations.

The position taken by the former president was rejected by a federal appeals court panel earlier this year, a move which resulted in the case's elevation to the nation's highest court.

As such, the justices are now charged with answering the question of “whether and if so to what extent does a former president enjoy presidential immunity for criminal prosecution for conduct alleged to involve official acts during his tenure in office, and it appears that many of the jurists are pondering the issue with an eye toward the future.

Kavanaugh's concerns

Aligning with several of his colleagues on the conservative side of the bench, Kavanaugh suggested that if the precedent is set that presidents can be prosecuted for all manner of alleged conduct, history indicates that an unfortunate cycle of weaponization is likely to take hold.

“It's going to cycle back and be used against the current president or the next president...and the next president and the next president after that,” Kavanaugh observed, also positing that the desire to hold a president accountable for arguably controversial conduct is less important that safeguarding the ability of the presidency to function as intended.

He added, “This case has huge implications for the presidency, for the future of the presidency, for the future of the country.”

Echoing those sentiments was Justice Neil Gorsuch, who declared that in deciding these thorny questions, the court will be “writing a rule for the ages.”

What comes next?

Despite the distinct alarm Kavanaugh and others expressed about the possibility of denying any form of presidential immunity, many legal observers suggest that a middle ground may be where the full panel ultimately settles, as Fox News explains.

George Washington University law professor Jonathan Turley remarked, “This case may be rather maddening for the justices because it is surrounded by rather steep constitutional cliffs. If the court goes one way, a president has little protection in carrying out the duties of his office. If they turned the other way, he has little accountability for the most serious criminal acts.”

“This is a court that tends to be incremental. They tend not to favor sweeping rulings,” Turley added, noting that the justices may remand the case to the district court for further refinement of which sort of conduct triggers presidential immunity and which does not.

If that happens, Turley says, Trump will have achieved at least a partial victory in the form of a delay that will almost certainly push the election interference trial well past Election Day.

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