Much of the time, a little legal research will produce a ruling that can guide the court and litigants as to how an issue has been addressed in the past. Sometimes, it’s precedential, for what that’s worth these days. Other times, it’s value is merely persuasive, leaving the decision to stand or fall on its merits. Rarely is there absolutely nothing out there, no court decision addressing an issue at all. But when it comes to Trump, novelty is the new normal.
Special prosecutor Jack Smith has employed a rarely used writ of certiorari before judgment to bring two issues before the Supreme Court in advance of trying Trump for his role in the January 6th insurrection. The question presented was carefully framed.
Whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.
The question seeks to address two of three arguments decided against Trump by Judge Tanya Chulkan, and before the D.C. Circuit Court of Appeals. As far as i can tell, no one has raised a serious argument in favor of Trump’s position that a president enjoys permanent post-presidential immunity for crimes committed while in office.
Put aside the crimes alleged here, and consider whether Trump, while still president, actually walked down Fifth Avenue, shot and killed someone, just to prove he could. Is a president entitled to commit the crime of murder and be immune from prosecution in perpetuity? The reason this question has never been decided before is that there was no reason to. Trump crossed lines that had never before been crossed, except for Nixon, who at least had sufficient shame to resign when caught.
The second part of the question, whether acquittal at the prior impeachment trial implicates the double jeopardy clause, carries even less heft. Impeachment isn’t a criminal prosecution, similar language notwithstanding, as it bears only upon removal from office. It lacks many features of due process criminal prosecution would require, and is a political rather than legal proceeding. Moreover, it was always understood that it would have no impact on subsequent criminal prosecution, regardless of outcome.
The one question not presented is whether Trump’s calling for insurrection was within his authority as president. If a president truly believes that an election was stolen, that the laws were violated in order to win the presidency, is it not his duty to act upon it? Even though the actions he took were wrong, illegal or ill-advised, if taken within the scope of presidential authority, then they would be immune from post-presidential prosecution to assure that no president made official decisions out of fear of future consequences. If the decision was not made for the benefit of the nation, rightly or wrongly, but for personal benefit, then it would fall outside his presidential authority.
Hopefully, the Supreme Court will speak promptly, clearly and unanimously on these issues so the trial can move forward in a timely manner. Many have suggested that Trump’s purpose isn’t to win on any of these issues, but to delay trial in the hope that he’s wins the election. Of the many ways this can turn out that would probably be the worst for the nation.