Profs: Trump trial a 'decision for the ages'
Apr. 29—Last week's case in front of the Supreme Court involving presidential blanket immunity will likely set a precedent that will last long beyond the 2024 election, two local professors said.
The case, argued Thursday, addressed a pair of key questions.
First, said Bucknell professor of political science Chris Ellis, "While the president has really strong immunity from civil prosecution when in office, is it also the case that presidents are also immune from prosecution for criminal behavior while in office?"
A second takeaway from the arguments made was "How do we distinguish between what the president is doing in his capacity as an elected official and what he is doing as a private citizen? The judges seemed to be open to greatly restricting what is defined as true 'official, criminal' behavior, thus making it harder to prosecute presidents, including and especially Trump. There doesn't seem to be a majority to say that the president is immune from all kinds of criminal prosecution, which would have been a decision that was radical from the perspective of precedent and existing law," Ellis said.
Professor Stanley M. Brand, Penn State Law, in State College, said that while the court certainly wasn't convinced that there was a blanket immunity to every single thing charged in the indictment, there were issues about whether specific sets of allegations were arguably "official acts" that would be subject to immunity.
What Brand expects, from listening to five justices, is some kind of remand to a lower court to examine those issues in greater detail. Because neither the district court nor court of appeals spent a lot of time analyzing these allegations.
"I believe some of those things will be sent back," Brand said. "If that happens it will create more litigation because that will need to be factually explored at the district court level and maybe, ultimately, at the court of appeals."
A decision for the ages
According to Brand, this case decision has far-reaching effects on future presidents.
"What you heard from both sides of the philosophical divide on the court was the concern about what this case will do going forward for future presidents," Brand said. "And the liability and exposure future presidents may have to indictments for acts done in office that were controversial, or unpopular.
"That is going to permeate what the court tries to fashion because what you heard them say is that this is not just a case about the then-current president."
As Justice Neil Gorsuch said, this is a case for the ages.
"We heard a lot about fear of retribution for a former president who leaves," Brand said, "as well as the other side of the coin, which is, what if a president knows he is immune, during office he can do all kinds of things that are illegal or come close to the line of being illegal, and never fear that there will be any consequences."
There is a balancing act going on here, Brand said.
Brand suspects that before the end of the term, which usually comes in the last week of June, "we will hear something. There will be some internal deliberation on where the line is drawn. And that will be a deliberative process among the justices to see if they can get some consensus. Based on what I have heard, this will be hard to get."
Ellis agreed that the effects will be felt long after a decision has been made.
"It looks that whatever the ruling the Supreme Court issues is going to lead to issues that will take a long time for others to work out," said Ellis.
"So, the odds that Trump's trial can conclude before the November election at this point are very low to zero," he added. "It seems that this is mostly what Trump's team realistically wanted all along, and that outcome was decided during the hearing, even if the actual particulars of what the Supreme Court is going to say.hasn't happened yet."
