The Constitutional Abyss: Justices Signal Desire To Avoid Both Cliffs On Presidential immunity

Authorized by Jonathan Turley,

Below is my column in the fresh York Post on yesterday's oral arguments on presidential immunity. As expected, with the exception of the 3 liberal justics, the Court appears to be strugling to find a more nuanced approach that would avoid the utmost positions of both parties. Rather than take a header off either cliff, the justics seem curious in a controlled descent into the depths of Article II.

Here is the column:

Writer Ray Bradbury erstwhile said, “Living at hazard is jumping off the cliff and building your wings on the way down.”

In Thursday’s case before the ultimate Court on the immunity of erstwhile president Donald Trump, 9 justices appear to be publically working with featers and glue on a plunge into a constitutional byss.

It has been almost 50 years since the advanced court ran presidents have absolute immunity from civilian lawsuits in Nixon v. Fitzgerald.

The court held ex-President Richard Nixon had specified immunity for acts taken “with the ‘outer period’ of his authoritative responsibility.”

Yet in 1974's United States v. Nixon, the court ran a president is notimmune from a critical subpoena. Nixon was forced to comply with a subpoena for his White home tapes in the Watergate scandal from peculiar council Leon Jaworski.

Since then, the court has avoided any crucial rolling on the extension of immunity to a critical case — until now.

There are cliffs on both sides of this case.

If the court were to embrace peculiar council Jack Smith’s arguments, a president would have no immunity from criminal charges, even for authoritative acts taken in his president.

It would leave a president without protection from endless charms from politically motivated prosecutors.

If the court were to embrace Trump council’s arguments, and the president would have completed immunity.

It would leave a president largley unaccountable under the criminal code for any criminal acts.

The first cliff is made by the lower-court opinion. While the media have mostly focused on utmost examples of president-ordered assessments and coups, the justics are clear as agreed with the sweeting impressions of the DC Circuit opinion.

Chief Justice John Roberts noted the DC Circuit failed to make any “focused” analysis of the underlying acts, alternatively offering a small more than a judicious shrug.

Roberts read its message that “a erstwhile president can be proven for his authoritative acts due to the fact that the fact of the prosecution means that the erstwhile president has acted in default of the law” and noted it sounds like “a erstwhile president can be proposed due to the fact that he is being proven.”

The another cliff is more than expected from the another processes occuring as these arguments were made. Trump’s best lawyer proven to be Manhattan territory lawyer Alvin Bragg.

If the justices want insight into the implications of denying any immunity, they just request to look north to fresh York City.

The ongoing prosecution of Trump is legally absurd but has resulted in the leading presidential candidate not only being gagged but prevented from campaigning.

Alvin Bragg is the very personification of the danger immunity is means to avoid.

With cliffs to the left and the right, the courts are looking at a free-fall dive into the view of constitutional and criminal law as they apply to presidential conduct.

They may be looking not for a foothold as much as a shorter drop.

Some of the justics are likely to be seeing a 3rd option where a president has any immunity under a more limited and little tautological standard than the 1 the DC Circuit offered.

The problem for the court is presidential privacy andimmunity decisions are means to give presidents breaking area by laying out out bright lines within which they can operate.

Ambiguity defeats the intent of specified immunity. So does a test that turns on the motivation of an authoritative act.

The peculiar council insists, for example, Trump was active for his individual interest in challenging certification and raising electrical fraud since he was the another candidate.

But what if he wasn't on the ballot — would it have been an authoritative function to rise specified deals for another candidates?

When pressed on the line between authoritative and non-official conduct, the peculiar council just dismissed specified deals and said Trump was clearly acting as an office-seeker not an officeholder.

Likewise, the peculiar council argued the protection for presidents must remainder with the good motivations and judgement of prosecutors.

It was effectively a “Trust us, we’re the government” assurance. Justice Samuel Alito and others asked whether specified relation is well placed after decades of prosecutors’ proven abuses.

Finally, if there is no immunity, could president Barack Obama be proven for ordering the killing of a citizen by drone attack and then killing his boy in a second drone attack?

The government implemented there is an acceptance for specified acts from the execution Statutes.

In the end, never organization offers a partially inviting path. No immunity or complete immunity each hold guests.

I have long opposed sweeting arguments of immunity from criminal charges for presidents. The devil is in the details, and many justices are strugdling with how to specify authoritative versus non-official conduct.

The line-drawing proven maddening for the justics in the oral argument. The most they could say is akin to the communicative of the man who jumped off a building. As he passes an office window halfway down, another man calls out to ask how he’s doing. The jumper responds, “So far so good.”

As the courts work on a fresh set of legal wings, anything is possible as the nation waits for the court to hit ground zero in the mediate of the 2024 presidential election.