Forced to listen to David Pecker in Manhattan, the Supreme Court offered hope in Washington.
Even now, “President Donald Trump,” is still a phrase that requires conceptual gymnastics — a leap from the tabloid depths to the heights of power. Consider a pair of scenes, in a pair of courtrooms, Thursday morning. Promptly at 10 a.m., in Washington, to the ritual incantation of “Oyez! Oyez! Oyez!” nine black robed justices of the Supreme Court filed in to hear arguments in a case that could determine whether a president can be prosecuted for committing crimes while in office. Meanwhile, Trump was mired in Manhattan criminal court, listening as David Pecker, the former chief executive of the National Enquirer, testified about hushing up Trump’s alleged affair with a Playboy model, and once discussing the arrangement in the presence of the FBI director.
High, low. Low, high. They say justice is blind, but with Trump, it’s dizzy.
Let’s start at the top. In the marbled Supreme Court chamber, the mood was grave as the justices considered whether presidential immunity exists to protect Trump from prosecution for crimes related to his efforts to overturn the 2020 election. “There are some things that are so fundamentally evil that they have to be protected against,” said Justice Sonia Sotomayor, who posed a hypothetical about a president who ordered assassinations of political rivals. Her colleague Elena Kagan broached the scenario of mounting a military coup. Brett Kavanaugh warned of steamrolling prosecutors. Ketanji Brown Jackson theorized that White House might one day become a “seat of criminal activity.” Samuel Alito raised the possibility that the United States might be devolving into a cycle in which each president prosecutes his predecessor, as sometimes happens in the developing world. Neil Gorsuch, never one shrink from grandiosity, said the court needed to write “a rule for the ages.”
The second hand on the large antique clock hanging over the bench kept sweeping forward. Each tick brought Trump that much closer to his goal: getting to November. His immunity appeal makes a number of arguments, some mildly plausible and some risible, but for now they hardly matter. The appeal has already created the best thing Trump could have hoped for: a long delay. If the justices take a reasonable amount of time to make a decision, a trial in Washington — where even Trump’s lawyers admit he faces a high likelihood of conviction — is certain to be pushed past the election. And so just being in the Supreme Court in April represented an enormous victory for Trump, who wasn’t, in the literal sense, actually there. He had been hoping to attend oral arguments in person, but Juan Merchan, the judge overseeing his other case, had told him his presence was required in Manhattan, telling him that “having a trial” was “also a big deal.”
So Trump was forced to sit through another undignified day of testimony by Pecker, the silver-haired sleaze merchant who said he considered Trump a “friend” and “my mentor.” As he spoke, Trump would lean back in his chair, sometimes with his eyes closed, listening to a laborious account of the work it took to keep damaging stories about Trump out of the public domain before the 2016 election. “I wanted to protect my company, I wanted to protect myself and I also wanted to protect Donald Trump,” Pecker said. Prosecutors from the district attorney’s office sought to show that the two men had engaged in a conspiracy that continued after the 2016 election. Pecker testified that Jared Kushner had pulled him up to see President-elect Trump at Trump Tower during the transition, where he joined a meeting that included then FBI Director James Comey, and Trump asked him about his alleged former mistress, Karen McDougal.
Because Trump allegedly made the payoffs to McDougal and Stormy Daniels before he was elected, his immunity claim before the Supreme Court would not have helped him in the New York case, but if the Court does find he has some protection, it would likely end or severely hinder the other three cases against him. (Under questioning from Justice Amy Coney Barrett, the attorney representing the Justice Department, Michael Dreeben, conceded that an immunity doctrine that applied to the January 6 case would likely also cover the substantially similar state case in Georgia.) John Sauer, a raspy-voiced appellate attorney for Trump, told the justices that the Framers intended to protect presidents from this sort of criminal liability. As proof, Sauer cited the fact that for “234 years of American history, no president was ever prosecuted for his official acts.” He suggested that without such immunity there could be “no presidency as we know it,” and raised that the possibility of future prosecution would make presidents vulnerable to “blackmail and extortion” by opponents.
“I understood it to be the status quo,” said Justice Jackson, who pointed out that it had long been presumed that presidents could be prosecuted after leaving office. Sauer responded by quoting something that Benjamin Franklin said at the Constitutional Convention.
“So what was up with the pardon of President Nixon?” Jackson retorted.
It is conservatives who usually accuse liberals of reading previously invisible meaning into the Constitution, and the Democratic appointees on the Court seemed to relish the opportunity to play up the irony. “The Framers did not put an immunity clause into the Constitution,” said Justice Kagan. “They knew how to. There were immunity clauses in some state constitutions.” But, she said, “They were reacting against a monarch who claimed to be above the law.” Kagan focused on the most un-originalist element of Trump’s appeal: its interpretation of the impeachment clause of the Constitution. By any normal reading, it’s an accountability mechanism, but Trump seeks to turn it into a nearly impenetrable liability shield. Under Trump’s theory, a president could not be prosecuted for anything he did officially — no matter how illegal or immoral — unless he was first impeached and convicted by Congress.
Kagan brought up a series of doomsday scenarios. Would it be an “official act” for a president to sell nuclear secrets? What if a president ordered a coup? DId he have to be impeached in order to be held responsible? Each time, Sauer was forced to dissemble, saying the answers to each hypothetical were “fact-specific” and “context-specific.”
“That answer sounds to me,” Kagan said, sardonically, “as though it’s like, ‘Yeah, under my test, it’s an official act, but that sure sounds bad, doesn’t it?’”
After about 90 minutes, Dreeben, a veteran Justice Department attorney on the staff of Special Counsel Jack Smith, rose to speak, saying Trump’s “novel theory” would allow presidents to get away with “bribery, treason, sedition, murder, and, here, conspiring to use fraud to overturn the results of an election and perpetuate himself in power.” There seems to be little chance that any of the justices will go along with that. Trump’s own appointees seemed to be at pains to distance themselves from any defense of his actions. Barrett seemed particularly skeptical in her questioning. Both Gorsuch and Kavanaugh said they were less concerned with the “here and now of this case,” as Kavanaugh put it, than with creating a durable standard for the future.
Kavanaugh grew impassioned as he criticized what he called “one of the court’s biggest mistakes,” a 1980s Supreme Court decision that upheld the law creating the independent counsel, a prosecutorial office meant to investigate high officeholders. He seemed to be speaking from experience: He once played a key role in Independent Counsel Kenneth Starr’s investigation of Bill Clinton — which led to Clinton’s impeachment over the Monica Lewinsky affair — and he may have been alluding to Starr when he questioned Dreeben about the “risk” that the president could be victimized by “a creative prosecutor who wants to go after a president.” (Then again, maybe Kavanaugh was subtly needling Dreeben himself, who previously worked on a variety public corruption investigations, including Robert Mueller’s investigation of Trump.) At any rate, the justice sounded determined to make sure that any decision on Trump’s immunity would be tailored narrowly, to prevent presidents from being prosecuted frequently.
By the end of the hearing, it sounded as if the Court was trending in the direction of a ruling that would potentially offer Trump immunity for some of his actions and not others. Barrett, in her questioning of Sauer, went through a long list of offenses alleged in the indictment, and compelled him to answer that some of them — like sending private attorneys off to put together fraudulent slates of electors — were in no way official actions. When Sauer proposed the Court strip the indictment of official acts, Chief Justice John Roberts said that would be like a “one-legged stool.” With Dreeben, Barrett explored the idea that the January 6 case might still be able to proceed, with only those indisputably private actions being presented to the jury as crimes. It seemed as if she were trying to offer a way out.
Unfortunately for Dreeben and his boss, Smith, it was hard to count five votes for a resolution that would allow them to take their case to trial before November. Roberts sounded particularly dubious of an appellate court ruling that resoundingly resolved the immunity issue in Smith’s favor, calling its reasoning “tautological.” Of the justices, Roberts, a proceduralist to his core, sounded the most inclined to punt the issue back to the district court, asking for it to come up with a test that would draw a distinction between the president’s official and private actions. If that happens, the Washington trial will be delayed many months. If Trump wins the election in the meantime, that will put the question to rest—unless Trump starts prosecuting his predecessors.
Justice Jackson suggested that her colleagues’ concerns about unintended consequences were misplaced. If anything, she said, a ruling that affirmed absolute presidential immunity would have the opposite of a “chilling” effect on the presidency. “If the potential for criminal liability is taken off the table,” she asked Sauer, “wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they’re in office?” At roughly the same time, in New York, prosecutors displayed a photo of David Pecker with Trump at the White House, showing him as he discussed how he and the president had discussed the McDougal payoff during a walk in the portico. Justice Jackson’s concern wasn’t just a hypothetical. The White House, according to the Manhattan prosecutors, had already been a “seat of criminal activity.”
“Today was breathtaking,” Trump said Thursday afternoon after he emerged from the courtroom, where his defense attorney Emil Bove had begun his cross examination of Pecker. “I was forced to be here, and I’m glad I was, because it was a very interesting day in a certain way. But the U.S. Supreme Court had a monumental hearing on immunity.” He claimed that, if deprived of immunity as he conceived it, the presidency would become merely a “ceremonial” office.
“We want presidents that can get things done and bring people together,” Trump said. “The justices were on their game. So let’s see how that all pans out. But again, I say presidential immunity: very powerful. Presidential immunity is imperative, or you practically won’t have a country anymore.” With that, the ex-president left the courthouse. The screen split again and he returned to his campaign.
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