April 25, 2024
Trump v. United States
Today, the Supreme Court heard the final oral arguments scheduled for this term, in the presidential immunity case Trump v. United States. The events of January 6, 2021, and the resulting litigation have been thoroughly reported on. These oral arguments were extra-ordinary and require special attention be paid, not only because they involve an historical first–the criminal prosecution of a former U.S. president–but because of how the hearing proceeded.
What You Need to Know
- Question Presented: Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.
- What Happened at Oral Arguments: There were a few unusual moments, including two of the justices engaging with and questioning each other directly and former president Donald Trump’s legal team forgoing a rebuttal altogether. Not to mention that Justice Thomas, whose wife has been credibly accused of participating in the same events that Trump is accused of in the underlying case here, not only did not recuse himself, but asked the first question to each side’s advocate. But what made the two-and-a-half hour hearing most worthy of note were the dangerous arguments being advanced by a former president’s legal team, which seemed to find a warm reception by several members of the Court. The Court spent precious little time on the actual conduct of the former president central to this case, with Justice Kavanaugh noting to the government’s lawyer, “I’m not focused on the here and now of this case, I’m very concerned about the future.” This posture led to a series of hypotheticals, as several of the justices attempted to find the boundaries of what might constitute an “official act.” In response to one such hypothetical, Trump’s advocate made the assertion that an ordered assassination of a political rival might be considered an official act depending on the circumstances involved. At another point, he asserted that the president calling for a coup to remain in power “may well be an official act.” As Professor Ruth Ben-Ghiat, a noted historian and expert on authoritarianism, commented “whatever the Court does, having this case heard and the idea of having immunity for a military coup taken seriously by being debated is a big victory in the information war . . . . Authoritarians specialize in normalizing extreme ideas and involves giving them a respected platform.”
- What Happens Next? Several justices indicated a desire to send this case back to the lower court to suss out what exactly constituted an official act in the underlying charges against Trump. After arguably unnecessarily delaying consideration of this case in the first place, to return it to the lower court without resolving the central issues would be to further delay the trial until after the election this November, potentially putting accountability for Trump’s alleged crimes out of reach entirely.
We cannot allow what happened at the Court today to be normalized. In moments when our country appears to lurch toward authoritarianism, we will call it out. It will take all of us to defeat authoritarianism.