Rick Hasen’s Live Blog of the Supreme Court’s Oral Argument Over Trump’s Claim of Immunity in the Federal Election Subversion Case (Refresh this page frequently for updates) electionlawblog.org?p=142644
Sauer's argument for Trump is breathtaking in allowing the President to murder or commit a coup so long as it is wrapped in the trappings of a President's official acts.
This argument still has a ways to go. But it is easy to see the Court (1) siding against Trump on the merits but (2) in a way that requires further proceedings that easily push this case past the election (to a point where Trump could end this prosecution if elected).
Dreeben stresses that what Trump was charged with, trying to subvert the election, is not part of any official acts. Alito wants to avoid the facts of this case (for good reason!).
Alito tries to turn things on their head, by saying that to encourage peaceful transitions of power, you need to give incumbents absolute immunity so they will leave and won't worry about prosecution later. This is the most insane thing I've heard today (and there have been many crazy things).
After a couple of hours of oral argument, it appears that the Supreme Court is unlikely to embrace either Donald Trump’s extreme position—that would seem to give immunity for a president who ordered an assassination of a rival or staged a coup—or the government’s position
Conservatives on the Court are going to make it hard to prosecute a former president for most crimes. But they are likely to reject some of the most extreme, insane, authoritarian arguments that were made by Trump’s lawyer.
The final opinion will likely come closer to the government’s position, but it will almost certainly result in a divided set of opinions (which take more time to draft) and a lot of work on remand to rework the results of the case.
The bottom line is that Trump is likely to get what he wants—a further delay of this election subversion case, maybe pushing it to after the election. If that happens, the public won’t get the benefit of having a jury determine before the election if Trump tried to steal the 2020 election.
Further, if Trump is elected in 2024, he can end this and the other federal prosecution against him. He also is likely to try to pardon himself. And the Supreme Court will be complicit in much of this.
