Did the American Revolution actually happen? If it did, was it a good thing?
The Jan. 6 immunity case has always been constitutionally offensive, and the Supreme Court could dispense with it easily.
Like her, I had assumed those questions were answered decisively in the affirmative more than 200 years ago. But now, after almost three hours of circuitous debate and bizarre hypotheticals at the Supreme Court, I’m not so sure. So let’s remember how we got here. The case began last year with special counsel Jack Smith’s indictment of the former president on charges of obstruction, fraud and conspiracy relating to his central role in the effort to overturn his defeat in the 2020 election, which resulted in the deadly attack at the U.S. Capitol. This scheme was, by a long shot, the most egregious abuse of authority by any president in history.
It was the literal inverse of the case before them. Michael Dreeben, the lawyer arguing the case for Smith, responded by pointing out that the justice system has a built-in mechanism for ensuring that prosecutions are fair: It’s called a lawsuit. In fact, Trump’s lawyers argued in this case that he would be immune from prosecution for ordering SEAL Team Six to assassinate one of his political rivals.
If a majority of the court sends the case back down to the lower courts with orders to reexamine the distinction between official and private acts, which seems likely, the resulting delay and lack of urgency in this case could well prevent a trial from being held before November. If Trump wins the election, he will shut down the prosecution and implement his extreme version of executive impunity. And the Supreme Court will have effectively blessed it, all while maintaining plausible deniability.
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