Did the American Revolution actually happen? If it did, was it a good thing?
This is more or less what Justice Elena Kagan seemed to be wondering during the oral arguments in Donald Trump’s Jan. 6 immunity case at the Supreme Court on Thursday morning. “Wasn’t the whole point that the president was not a monarch and the president was not supposed to be above the law?” she asked.
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.
The right-wing justices seemed thoroughly uninterested in the case before them, which involves a violent insurrection that was led by a sitting president who is seeking to return to office in a matter of months. Instead, they spent the morning and early afternoon appearing to be more worried that prosecuting Mr. Trump could risk future malicious prosecutions of former presidents by their political rivals. And they tried to draw a distinction between official acts, for which a president might have immunity from prosecution, and private acts, for which no immunity would apply.
The upshot was that a majority of justices appeared prepared to send the case back down to the lower courts for further unnecessary litigation, which would almost certainly eliminate any chance of a trial being held before Election Day.
So let’s remember how we got here. The case began last year with the 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 has resulted in multiple federal and state indictments of Mr. Trump and his associates, some of whom have already pleaded guilty to elements of the broader plot.
In short, the justice system is doing its job by trying to hold to account a former president for subverting the last election before he runs in the next one. That is a very important job! And yet the right-wing justices are saying, essentially, not so fast — and maybe not at all.
