On Thursday the Supreme Court heard oral arguments for and against Donald Trump’s claims of absolute presidential immunity. The good news is that the Court appeared unlikely to just completely rule in his favor, agree that he should not face prosecution for anything he did in office, and kill the federal election case against him. The bad news is that, unsurprisingly, they’re not just going to tell him to fuck off, as some justices suggested that presidents should receive some immunity—a move that would potentially limit Special Counsel Jack Smith‘s case and delay a trial until after the November election. The insane news? That conservative justice Samuel Alito literally tried to argue that we should allow presidents to commit crimes without fear of prosecution in order to save democracy.
That’s right: Speaking to Michael Dreeben, and attorney representing the special counsel, Alito began by stating: “I’m sure you would agree with me that a stable democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully, if that candidate is the incumbent?” Then, having started with a premise that all reasonable people would agree with, he went in with this:
If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?
If your brain hurts from trying to follow that, what Alito is saying here is that presidents need to know that they’ll never be prosecuted for any crimes they might commit in office, or democracy will collapse, because future officeholders might, say, try to overturn a free and fair election in order to stay in power and avoid criminal charges. And if that sounds completely absurd to you, you’re not alone. Responding to Alito’s hypothetical, Dreeben said, “I think it’s exactly the opposite, Justice Alito.”
Alito’s desire to literally let presidents do anything they want could, of course, lead to terrible outcomes, which liberal justice Sonia Sotomayor unfortunately had to point out:
Anyway, it’s obviously good news that the Court is unlikely to endorse Trump (and, seemingly, Alito’s) claim that presidents should enjoy absolute immunity for anything they do in office, but it’s really, really quite bad that the likely outcome of the proceedings will still be a huge win for the ex-president. Per The New York Times:
There did not seem to be a lot of urgency among the justices—especially the conservative ones—to ensure that the immunity question was resolved quickly. That left open the possibility that Mr. Trump could avoid being tried on charges of plotting to overturn the last election until well after voters went to the polls to decide whether to choose him as president in this election.
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