What the Supreme Court is doing right in considering Trump’s immunity case

Much press attention was given to Trump’s immunity hearing at the Supreme Court building on April 25, 2024. (Mandel NGAN / AFP/Getty Images)

Following the almost three-hour oral argument on presidential immunity in the Supreme Court on April 25, 2024, many commenters were horrified. The general theme, among legal and political experts alike, was an assessment of how daring the mostly conservative judges were to cross-examine the lawyers who appeared before them in the case known as Trump against the United States.

Instead of a deep, focused dive into the details of Trump’s attempt to subvert the 2020 election, virtually all of the nine justices asked broader questions, peppered with hypotheticals: Hello again, Team Seal Six! – about the scope of executive powerthe intention of the nation’s founders and the best way to promote a stable democracy.

Judge Brett Kavanaugh “I’m not focused on the here and now of this case,” and Justice Neil Gorsuch’s line “We’re writing a rule for all ages” drew particular criticism.

The title and subtitle of the The New York Times analysis by Supreme Court reporter Adam Liptak complained that the court had taken “Trump’s immunity arguments in an unexpected direction” with “very little about the president’s conduct.” And the story itself infuriated that the justices had responded to Trump’s claim that he should not face charges as a “difficult and compelling issue.”

Slate Amicus Podcast the court denounced for not focusing on the “specific issue” the case presented, but rather “going off the rails” and “bouncing all over the map” with various legal arguments. TO guest on NPR’s 1A lamented that the court had “injected new questions” into the oral argument to “speed up” the case and avoid Triumph to face trial before the elections.

But here’s what the experts seem to have forgotten: What happened that day in court should not have surprised anyone, especially those constitutional scholars like me familiar with Supreme Court procedure.

Donald Trump’s lawyers told the Supreme Court that a president’s actions should be immune from criminal prosecution. (Curtis Means-Pool/Getty Images)

Five words ‘change everything’

Trump’s case arose from his prosecution by special counsel Jack Smith for his alleged attempts to overturn the 2020 presidential election. Trump claimed that he, as president, had immunity from prosecution and took his case to the Supreme Court.

When parties appeal their case to the court, they must tell the judges what specific legal question or questions they want the judges to answer. As a colleague and I have explored In a recent academic journal article, the court generally accepts what is called “Questions submitted”as it happened, agreeing to hear a case without making any adjustments to its legal framework.

Sometimes, however, the court will alter the legal issue in some way. Why this happens is a question that scholars like me are only beginning to explore. And since it is that question – not the one that the litigant initially posed – that frames the legal analysis, judges can exercise real control both over the case itself and over the development of the law.

Trump vs. America is a classic example. When the former president’s lawyers submitted his application to the courtthe question they presented was “whether the doctrine of absolute presidential immunity includes immunity from criminal prosecution for the official acts of the president.”

When it accepted the petition at the end of February 2024, the court changed this language to “If, and if so, to what extent a former president enjoys presidential immunity from criminal prosecution for conduct that allegedly involves official acts during his term in office.”

Five of those additional words – “if so, to what extent” – changed everything. They sent a clear signal that the court would go far beyond a simple yes or no on whether Trump could be prosecuted.

The full Supreme Court, made up of nine justices, heard oral arguments in the immunity case. (Supreme Court of the United States)

The court doing its job

By reframing the question, the justices would rather determine how, when and for what acts any president could be held criminally responsible.

This is a much broader investigation, which necessarily involves formulating a legal test to draw a line between what is constitutionally permissible and what is not. That the justices spent oral arguments trying to do exactly that is not a problem, much less an outrage: it is simply the court, the highest appeals court in the country, doing its job.

The scope of the argument, the breadth of the upcoming opinions and the time it takes the justices to write them, and the potential demise of Trump’s prosecution are not at all shocking. The court noted that it would address the broader issue months ago when it took up the case; The time to blame the court for making the case about more than just Donald Trump was then, not now.

But perhaps the commentators’ response to the oral argument could be a good lesson. Americans are They told him to take Trump at his word.hoping that his second term contains all extremes He cheerfully says that it will be so.

When the Supreme Court indicates what legal question it will answer, the smart response is to do the same: pay attention and believe. This may not make the end result any less unpleasant for many, but at least it won’t be as disturbing.

This article is republished from The conversation under a Creative Commons license. Read the original article.

Claire Wofford holds the rank of associate professor and is also director of the pre-law counseling program at the College of Charleston. Through its opinion section, Kansas Reflector works to amplify the voices of people affected by public policies or excluded from public debate. Find information, including how to submit your own comment, here.

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