Editorial: Immune to logic: Donald Trump’s nonsensical argument before the Supreme Court

Thursday, the American public witnessed — or heard, rather, given the Supreme Court’s stubborn refusal to allow cameras in its courtroom — a bewildering moment. We heard as the lawyer for a former president of the United States argued before our nation’s highest court that the president is effectively a king, above the law unless his immunity is stripped away by a complicated political process.

That’s not how Donald Trump’s legal team would put it, of course, but that’s the crux of their position in this farce that is the Trump immunity claim, which is being argued as a precursor and delay tactic to the former president’s prosecution for attempts to overturn the 2020 presidential election.

His defense is holding, absurdly, that these subversive efforts were official acts, and that official acts are inherently immune in the absence of impeachment. During Trump’s actual Senate impeachment trial, of course, the argument was that criminal prosecution was the proper way to deal with these same allegations.

Trump attorney John Sauer’s dark warnings about presidents constrained in their ability to do their jobs or living in fear of successors weaponizing federal law enforcement against them — more eloquent versions of Trump’s own hysterics about the risks of not giving presidents total immunity — are belied by the fact that this is a novel and contemporary argument.

For hundreds of years, presidents have had no reason to believe that they are untouchable by prosecution for acts committed while in office, and this has not resulted in a paralyzed executive or a parade of bad-faith prosecutions of political opponents (incidentally something that Trump himself seems to favor and attempted while in office).

If anything, as Justice Ketanji Brown Jackson was correct in laying out, there are excellent reasons to want our chief executive to be a little chilled, and introspective about the legality of their actions.

While the conservative justices in particular tried to keep the arguments high-level and away from the specific facts at issue in this case, you could hardly come up with a situation that better exemplified the dangers of giving a president a de facto get out of jail free card than having one try to use his authority to quite literally terminate American democracy.

Of course, even if the court rules against Trump, he’s to some extent already won by almost certainly delaying the start of his actual criminal trial for election interference and fraud until after the November election, essentially succeeding in depriving voters of the full airing of the facts before they are again presented with the choice of putting him in the Oval Office. As one MAGA World insider recently told Rolling Stone, “we already pulled off the heist.”

With their slow-walking of this ridiculous case, whose central claim is absurd on its face — Trump’s lawyers have been unable to say that their legal theory wouldn’t shield a president from openly assassinating a political rival, provided he wasn’t first impeached and convicted — the court has already tilted the scales for Trump.

If past is prologue, they might eventually make a big deal about their bipartisan compromise when they strike this argument down, as they certainly should but you should remember that the harm is done and it never needed to go this far.