Supreme Court

(continued from Page 6) Dreeben took care not to note the consequences of the court’s ruling on the election or to urge a speedy ruling for political purposes.

The closest, albeit still oblique, reference to the election came from Justice Amy Coney Barrett, who at one point said to Dreeben: “The special counsel has expressed some concern for speed and wanting to move forward.”

MORE WORK AHEAD? While the court seemed highly skeptical of Trump’s bid to dismiss the case, several justices suggested it may have to be sent back for more legal wrangling before the case could go to trial. Such a ruling would almost certainly delay the trial until after the election. That would be a victory for Trump because, if he defeats President Joe Biden in November, he could presumably order his new attorney general to dismiss the case, or issue a pardon for himself.

Barrett and others repeatedly tried to pin down Trump’s lawyer and Smith’s team on whether the acts alleged in the indictment were official acts — and, therefore, potentially shielded from prosecution — versus private acts.

And even as Chief Justice John Roberts made clear his resistance to Trump’s sweeping absolute immunity claims, he also said he had “concerns” about an earlier appeals court ruling that rejected Trump’s immunity arguments but that did not provide a detailed analysis of whether the acts in the indictment were official or private ones.

The lower court, Roberts said, appears to be saying simply that “a former president can be prosecuted because he’s being prosecuted.”

“Why shouldn’t we either send it back to the Court of Appeals or issue an opinion making clear that that’s not the law?” Roberts asked Dreeben.

Smith’s team has told the court that even if it finds that some level of immunity exists for official acts, there are enough private actions alleged in the indictment — like scheming to submit slates of fake electors — for the case to proceed to trial immediately.

“The president has no functions with respect to the certification of the winner of the presidential election,” Dreeben said. “So it’s difficult for me to understand how there could be a serious constitutional question about saying ‘you can’t use fraud to defeat that function, you can’t obstruct it through deception, you can’t deprive millions of voters of their right to have their vote counted for the candidate who they chose.’”

THE JUSTICES TO WATCH The liberal justices appeared likely to side with Smith’s team in ruling that the trial should move forward, suggesting that Trump’s argument turned the Constitution on its head. “The Framers did not put an immunity clause into the Constitution. They knew how to,” Justice Elena

Kagan said. “And, you know, not so surprising, they were reacting against a monarch who claimed to be above the law. Wasn’t the whole point that the president was not a monarch and the president was not supposed to be above the law?”

Meanwhile, Kavanaugh and fellow conservative Samuel Alito seemed more receptive to Trump’s claims, particularly the suggestion that not granting immunity could open the door to former presidents being prosecuted for political reasons.

But ultimately, the matter may come down to Roberts, who at one point questioned whether the case would be able to move forward if official acts were removed from the indictment, saying that doing so could create a “onelegged stool.”

Barrett’s nuanced questioning suggested that she’s another one to watch. Barrett, who was appointed by Trump, got Trump’s attorney, D. John Sauer, to concede that former presidents could be prosecuted for private actions. And Sauer acknowledged that some of Trump’s alleged conduct surrounding the 2020 election was not the official act of a president. Trump “turned to a private attorney, he was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results. Private?” Barrett asked Sauer.

“That sounds private to me,” he replied. HYPOTHETICALS GALORE..

Sure, the justices pressed the lawyers about the actual acts in the indictment, wanting to know which of the steps Trump took in his failed but frantic bid to remain in power might deserve legal protection.

But there were plenty of hypothetical scenarios, too, which is hardly surprising given how the justices and courts in general enjoy testing the outer boundaries of lawyers’ arguments as they determine where to draw a line.

Sauer opened the door by saying that, without immunity, President George W. Bush could have been prosecuted for “allegedly lying to Congress to induce war in Iraq” and Biden for “unlawfully inducing immigrants to enter the country illegally for his border policies.” Roberts picked it up from there, asking whether a president who accepted a bribe for an ambassador appointment could be prosecuted.

And so it went. What about selling nuclear secrets to a foreign adversary? Kagan wanted to know. A drone strike on a U.S. citizen abroad authorized by thenPresident Barack Obama? asked Kavanaugh.

One particularly notable hypothetical came from Alito, who raised the prospect that an outgoing president who loses a closely contested race but fears indictment upon leaving office might try to remain in power, creating “a cycle that destabilizes the functioning of our country as a democracy.”