Back in April, lawyers for POTUS 45 and special prosecutor Jack Smith argued before SCOTUS about the scope of presidential immunity within the context of the January 6 insurection. Since vacating the White House, 45 -a "colorful" former POTUS whose wake is awash in litigation- has been charged in four separate criminal cases; a lot to keep track of even for us over here at the Law Blogger.

This case seems to hinge on whether 45's complained of acts [attempting to overthrow the election] were within the scope of his official conduct [and therefore immune] or were private acts [and therefore subject to prosecution].

45 was charged with conspiring to overthrow the 2020 presidential election. Attorney General Merrick Garland took a step back and assigned the case to a special prosecutor so that 45 was not being prosecuted by the DOJ during is political opponent's stint in the White House.

45 argued that the special counsel's January 6th case against him should be dismissed becuse he is absolutely immune from prosecution for any acts he performed while POTUS. The United States District Court Judge denied 45's argument, ruling that the special prosecutor's case involved 45's private conduct, not his official acts as POTUS. 

The United States Court of Appeals for the DC Circuit affirmed the trial court judge's ruling denying 45's motion for summary judgment [dismissal]. SCOTUS granted certiorari last fall and following the oral arguments on the case in April, a decision is expected by the end of this month.

From the array of criminal charges brought against 45, this one stands out. MAGA nation decries that it is just another example -perhaps the most egregious- of the political persecutions suffered by the former president. 

Summary of the Legal Arguments.

When taking law school courses, law students learn about the minutiae of the separation of powers doctrine. There are sepcific roles and duties for each branch. 

Over the years, the scope of power of the POTUS has been a matter of debate. Think of the intense scrutine the Chief Executive's powers underwent courtesey of the Congress following Nixon's Watergate scandal. 

In arguing that POTUS has absolutely immunity from all criminal prosecution, 45's lawyer asserted that the presidency as an instrument of government would be permanently and detrimentally changed if a president could be charged with crimes for actions taken while in office. The specter of a political prosecution was raised, using the example of 46 being charged with felonies based on his immigration policy of allowing illegal immigrants into the United States. The challenge for 45's lawyer at oral argument focused on the distinction between official and private acts.

The United States' lawyer asserted, on the other hand, that SCOTUS has never recognized absolute criminal immunity for any public official. Even if presidents did not have absolute immunity for their official acts, the government lawyer told the justices that POTUS is entitled to "special protection" for its core constitutional powers: things such as recognizing foreign governments, pardon and veto powers, and the power to make administrative appointments.

What the Justices Thought.

Two of 45's appointments to the bench, Justices Gorsuch and Kavanaugh, were taking a long-range point of view; they spoke of deciding this case for future presidential administrations. These justices worried about the weaponization of criminal charges against future presidents and the paralyzing effect they would have on administrations down the road. 

There is some speculation as to where Chief Justice Roberts will land on this case; and whom he will assign to write the opinion. As chief justice, it may be an opinion he will assign to himself. Remanding the case to the lower court to determine which of the charged acts are private and which are public was very much on the minds of the collective justices. 

The possibility of a remand to the trial court is distinct. The probability that Jack Smith's case will be tried to a jury prior to the presidential election in November is low. 

Stay tuned and we will break it down for you from our perspective over here at the Law Blogger. SCOTUS will issue its decision this term. They usually like to reserve a seminal constitutional case like this one for the final day of the term. This year, their final scheduled conference day is Wednesday, June 26, 2024.

Post #639

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