The Supreme Court Presidential Immunity Decision: Scholarly Predictions and one American’s Cynicism
America is anxiously awaiting a Supreme Court decision that should not only be common sense and straightforward, but also one that should have been rendered months ago. A decision which Justice Neil Gorsuch has said would be “a decision for the ages.”
We have witnessed an incomprehensible and inexcusable delay in a momentous ruling that will have far-reaching consequences on the future direction of our democracy.
The issue which the conservative majority Supreme Court was asked to decide on four months ago is whether and to what extent a former president enjoys absolute presidential immunity for conduct alleged to involve official acts during his tenure in office.
Laurence Tribe, a constitutional law professor emeritus at Harvard University, expressed his hopes for a sane and speedy Supreme Court decision and, at the same time, illustrated the ludicrousness of the immunity claim. “There’s no prospect that the court will agree that no matter what a sitting president does, even if he orders SEAL Team Six to kill an opponent, that he cannot in the future be criminally prosecuted for it, unless he was first impeached and convicted by the Senate,” he said.
The decision would determine, in the short term, whether former president Trump will be completely shielded from prosecution for any and all federal crimes he is alleged to have committed while in office.
The long-term impact of the decision, especially if the Court grants a former president absolute immunity, will be historical, unprecedented and devastating to our democracy and to the rule of law.
The predictions by constitutional and legal scholars, political experts and pundits run the gamut, from no immunity to total immunity and everything in between, including – as Tribe points out – “an array of potential, likely complicated options.”
Those options could include: “sending the case back for further hearings in the District Court, which could lead to a cascade of subsequent appeals,” Tribe says.
Continued delays by the conservative majority (three of them appointed by the criminal defendant himself) will most likely result in the former president getting off scot-free.
Some speculate that the Court is planning to rule in Trump’s favor but is is trying to divine the timing of the announcement for when the Court is sure that Trump will be the next president.
However, even so, an outgoing President Biden could exercise such absolute immunity in ways not pleasant to the convicted felon, perhaps even declaring the elections null and void. We have seen such an illegal attempt before. This time Biden could do it with impunity and a newly granted immunity.
My guess is that the conservative Court majority will take no such chances.
My unscholarly, cynical prediction is that the conservative Supreme Court will manage to exquisitely carve out a sliver-thin decision in such an imaginative, narrow way that it will only benefit the former president without giving similar wide-ranging immunity to a future president.
We will (hopefully) soon find out.
To the six conservative Supreme Court Justices I humbly ask, please prove me wrong.
More importantly, I beg them to prove to the American people that Justice is still blind in our nation.
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