Conservative justices take argument in new direction

Before the Supreme Court heard arguments Thursday on former President Donald Trump's claim that he is immune from prosecution, his stance was widely seen as a brazen and cynical bid to delay his trial.

The practical question in the case, it was thought, was not whether the court would rule against him, but whether it would act quickly enough to allow the trial to go forward before the 2024 election.

Instead, members of the court's conservative majority treated Trump's assertion that he could not face charges that he tried to subvert the 2020 election as a weighty and difficult question. They did so, said Pamela Karlan, a law professor at Stanford University, by averting their eyes from Trump's conduct.

“I'm not discussing the particular facts of this case,” Justice Samuel Alito said, instead positing an alternate reality in which a grant of immunity “is required for the functioning of a stable democratic society, which is something that we all want.”

Immunity is needed, he said, to make sure the incumbent president has reason to “leave office peacefully” after losing an election.

Michael Dorf, a law professor at Cornell University, noted that “Justice Alito worried about a hypothetical future president attempting to hold onto power in response to the risk of prosecution, while paying no attention to the actual former president who held onto power and now seeks to escape prosecution.”

In the real world, Karlan said, “it's really hard to imagine a `stable democratic society,' to use Justice Alito's word, where someone who did what Donald Trump is alleged to have done leading up to Jan. 6 faces no criminal consequences for his acts.” Indeed, she said, “if Donald Trump is a harbinger of presidents to come, and from now on presidents refuse to leave office and engage in efforts to undermine the democratic process, we've lost our democracy regardless what the Supreme Court decides.”

The court will issue its ruling sometime between now and early July. It seems likely to say at least some of Trump's conduct was part of his official duties and so subject to some form of immunity.

The court is unlikely to draw those lines itself, instead returning the case to Judge Tanya Chutkan, of the U.S. District Court in Washington, for further proceedings.