The Question

The U.S. Supreme Court has agreed to hear Donald Trump's claim for complete immunity. What's important, Jennifer Rubin writes, is how the court has framed the question:

The court determined that the only question to be addressed is whether a former president enjoys absolute “immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” The language is telling in a number of respects.

Had the court entertained the possibility the answer would be yes (e.g., yes, he can order Seal Team Six to kill his enemies; yes, he can exile his opponent in his reelection bid), it would have had to address subsidiary questions such as “Was the president engaged in an official act?” or “What is the ambit of an official Furthermore, if the court’s order is limited to considering official acts, then special counsel Jack Smith almost certainly could effectively argue that Trump’s attempt to overthrow an election for which he has no constitutional role must be deemed “unofficial” at the tact?” Only if the answer is “no” — that is, affirming Judge Tanya S. Chutkan and the D.C. Circuit’s unanimous ruling — would there be no need for further inquiry. The presence of the single question tells us where the court is heading.

Furthermore, if the court’s order is limited to considering official acts, then special counsel Jack Smith almost certainly could effectively argue that Trump’s attempt to overthrow an election for which he has no constitutional role must be deemed “unofficial” at the trial court level. That would allow Smith to proceed to trial. In other words, if the Supreme Court wanted to spare Trump, it simply would have asked, “Is a president immune from criminal prosecution?”

The problem is with the court's timing:

Whether a trial could begin and finish before Election Day, we most certainly will have a decision addressing what is essentially his only defense: “I cannot be punished for official acts. Interfering with my own election was an official act. Therefore, I go free!” At the very least, if my analysis is correct, heading into an election, voters will know that this cannot possibly be the law. Voting for him would amount to allowing someone going to trial (or already on trial) for serious crimes to waltz into the White House.

Let's hope American voters can see that distinction. H.L. Menken would tell you that they can't.

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