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Supreme Court Must Strike Balance In Presidential Immunity Case: Legal Analyst

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OPINION: This article may contain commentary which reflects the author's opinion.


Georgetown University law professor Jonathan Turley claimed during a Fox News segment that the U.S. Supreme Court must strike a balance in the presidential immunity case justices heard last week to protect future commanders-in-chief while ensuring they are held accountable for operating outside of certain parameters.

“There is a slippery slope on both sides, but I was surprised with the three justices on the left, is that they didn’t seem at all concerned about how extreme that argument would be — leaving a president with no protection,” he told anchor Shannon Bream. “So the question that most of the justices were struggling with, and I thought they were doing in good faith, is how do we find a more balanced, nuanced approach here?”

“The government made a major concession to Justice Gorsuch when he said there are things you can’t criminalize that a president does, and the government said yes,” he continued. And he said, ‘Doesn’t it sound a lot like immunity? Isn’t it our job to try to define where that is?’ It was a devastating moment.”

He added: “So there is a real chance that this could be sent back to the trial court, to say we need more information of which of these acts were part of an official function, and which were not. That will take time and likely derail any effort to try Trump before the election in Washington, D.C.”

Last summer, Trump was indicted on four counts stemming from Special Counsel Jack Smith’s investigation into the January 6, 2021, attacks on the U.S. Capitol.

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Trump, the indictment claims, created “widespread mistrust … through pervasive and destabilizing lies about election fraud” and then was engaged in three criminal conspiracies to target “a bedrock function of the United States federal government: the nation’s process of collecting, counting, and certifying the results of the presidential election.”

Following Chutkan’s denial of Trump’s request to dismiss the charges against him in December, Special Counsel Jack Smith took the matter to the Supreme Court, seeking their opinion on Trump’s claim to immunity without waiting for the U.S. Court of Appeals for the District of Columbia Circuit to rule on Trump’s appeal.

However, the justices denied Smith’s request on December 22, SCOTUS Blog noted, adding a summary of Trump’s legal arguments:

In his brief at the Supreme Court on the merits, Trump tells the justices that allowing the charges against him to go forward would pose “a mortal threat to the Presidency’s independence.” “The President cannot function,” Trump contends, “and the Presidency itself cannot retain its vital independence, if the President faces criminal prosecution for official acts once he leaves office,” because the threat of prosecution will hang over the president’s decision-making process.

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Trump cites a law review article by then-Judge Brett Kavanaugh, who before becoming a judge worked in the George W. Bush White House, arguing that “a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.“ The same is true, Trump continues, “if that criminal investigation is waiting in the wings until he leaves office.”

Trump maintains that a president can never be prosecuted for his official acts. He points first to a “long history” of an absence of prosecutions, notwithstanding what he characterizes as “ample motive and opportunity” – everything from the appointment by John Quincy Adams of Henry Clay as secretary of state “after Clay delivered the 1824 election to him in the House” to President Joe Biden’s “mismanagement of the southern border.”

Trump argued that a president cannot be prosecuted for official acts, citing a historical absence of prosecutions despite perceived motives and opportunities.

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He pointed to instances like John Quincy Adams appointing Henry Clay as secretary of state after Clay’s role in delivering the 1824 election to Adams, as well as President Biden’s handling of the southern border, as examples.

Trump contended that immunity from criminal prosecution stems from both the Constitution and the principle of separation of powers. He highlighted the executive vesting clause, which grants the president “executive power,” asserting that courts cannot interfere with this authority due to the separation of powers principle.

Trump also leaned on another provision of the Constitution, referred to as the impeachment judgment clause. This clause stipulates that someone who is impeached and convicted can still be indicted, tried, and punished “according to law.”

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