by Ed Morissey
Adam Baldwin thinks so, after listening to oral arguments at the Supreme Court. Aaron Walker thinks so too, but in a different way. And so does Jonathan Turley, again in a different way, but only because of the abysses on either side of a yes/no decision.
Me? I didn’t listen to the Supreme Court session yesterday, but I generally bet on the court choosing to do as little as possible on any major question before it. I’m betting on another round of can-kicking, with the justices hoping it all becomes moot at some point. After reading through these and other reports, the case for the path of least resistance looks stronger and stronger, too.
Both Turley and Walker do a good job of summarizing the case, as well as the arguments, in their columns today. Aaron goes into far more detail and reaction to commentary for Twitchy’s VIP customers, while Turley focuses more on the principle of immunity and its necessity.
This is where Turley senses trouble with baby-splitting, because as he argues, the purpose of immunity is to remove ambiguity from such questions in the future. Oral arguments yesterday suggest to Turley that the court will end up amplifying ambiguity with a highly subjective distinction between “official acts” and “personal acts.” That almost guarantees that the judiciary will end up in the middle, and neither presidents nor prosecutors will have a firm grasp on the distinction:
Some of the justices are likely to be seeking a third option where a president has some immunity under a more limited and less tautological standard than the one the DC Circuit offered.
The problem for the court is presidential privilege and immunity decisions are meant to give presidents breathing room by laying out bright lines within which they can operate.
Ambiguity defeats the purpose of such immunity. So does a test that turns on the motivation of an official act.
That prompts the question: What is the distinction between official and personal acts? This is no easy line to draw, and depends on a complex set of circumstances. For instance, Donald Trump allegedly pushed Georgia officials to “find” the votes that he claimed were cast for him but not counted in 2020. Is that a personal act, or an act by the president? If Trump had done that on behalf of another candidate as president, would that change the character of the act while changing none of the discrete actions? Even if Trump did so on behalf of a Republican candidate?
The more notable what-if came from Justice Brett Kavanaugh. He used the Socratic reductio ad absurdum of Barack Obama’s drone strike on Anwar al-Awlaki, and the second one on his son, to suggest that a politically motivated prosecutor could charge him with murder. Kavanaugh, who knows a few things about politically motivated persecutions, posed this as a limiting principle test, not to seriously suggest Obama should have been prosecuted.
Unfortunately for Special Counsel Jack Smith, the DoJ attorney argued that the DoJ was the only limiting principle, which is precisely what Trump’s attorneys have argued all along:
JUST IN: DOJ lawyer Michael Dreeben says it's perfectly fine for Obama to drone strike innocent civilians while arguing in favor of prosecuting Trump for "election interference."
Remarkable.
The comment came after Supreme Court Justice Brett Kavanaugh cornered Dreeben by asking… pic.twitter.com/sNmHj7VwZo
— Collin Rugg (@CollinRugg) April 25, 2024
Read the room, dude. Just how terrible was this answer? The DoJ basically just proved why a bright-line immunity standard is desperately needed. Dreeben’s answer is that it’s completely up to the discretion of the prosecutors, which makes no sense under the rule of law and the constitutional order.
There was a far better answer to this too. When acting in defense of the country, as Obama was in ordering drone strikes on terror cells abroad, a president is in the zenith of his authority. Prosecutors have no reach into that jurisdiction at all; only Congress can check that exercise of presidential authority. In contrast, presidential authority is at a low ebb in areas of state authority, such as the conduct of elections (the Georgia case). Dreeben could have defused Kavanaugh’s question with basic separation-of-powers doctrine, but instead exposed the shocking claim of unlimited power of prosecutors instead.
I doubt the justices missed the meaning of Dreeben’s argument. But Dreeben made it even more clear by insisting that sitting presidents could essentially immunize themselves by getting the Attorney General to find their actions legal. Aaron explains:
Dreeben kept arguing that if the president consults with his attorney general before doing something and the attorney general says that it is legal, that this would be a complete defense to any prosecution. That led Alito to say, in essence, doesn’t that create an incentive for the president to appoint a ‘yes man’ who will never tell the president anything he wants to do is illegal? Dreeben tried to pretend that wasn’t exactly what his approach would entail.
All this does is create more incentive for the court to draw some lines for themselves. The standard can’t be “succeeding DoJs can do whatever they want,” nor can it be “presidential appointees can effectively immunize their patrons at will.” However, even then, the justices seem to struggle with those implications, Turley adds at the conclusion:
The line-drawing proved maddening for the justices in the oral argument. The most they could say is similar to the story of the man who jumped off a building. As he passes an office window halfway down, another man calls out to ask how he’s doing. The jumper responds, “So far so good.”
Nevertheless, Turley thinks that the court will recognize immunity for “official acts,” and then remand this case with orders to trial courts to hold evidentiary hearings on all claims. That will take weeks, and the appeals will take months, and that will force the court to hear perhaps dozens of appeals on the claims. It will postpone most of the trials for perhaps years (except for the Bragg prosecution, which involves actions taken before Trump was president). By that time, Trump may have won the election and appointed an AG that would shut down the special-counsel prosecutions. (According to Dreeben, the AG could also immunize Trump for that and anything else he does.)
