“I am deeply troubled by the court’s apparent direction,” J. Michael Luttig told me. “I now believe it is unlikely that Trump will ever be tried for the crimes he committed in trying to overturn the 2020 election.”
I called Luttig, a former federal judge with many conservative credentials, to seek his reaction to this week’s Supreme Court hearing regarding Donald Trump’s request for absolute immunity from prosecution for any crime related to his attempted insurrection. On Thursday, Luttig posted a thread criticizing right-wing judges for their apparent openness to Trump’s arguments — but that thread was legalistic and formulaic, so I figured Luttig had a lot more to say.
And he ever did. Luttig criticized right-wing judges for harboring a “radical view” of the US presidency, and expressed “grave” concern that Trump will never be held accountable for alleged crimes committed in trying to destroy US democracy through extensive procedural corruption and outright incitement. collective violence.
Luttig’s concern that Trump may very well be skating is centered on questions posed by the court’s right-wing majority about special counsel Jack Smith’s ongoing prosecution of Trump. As many observers have noted, these justices appeared largely unconcerned with the question before them: whether Trump’s alleged insurrection-related crimes constituted official presidential acts immunizing him from prosecution after leaving office. .
Instead, the justices focused on the supposed future consequences of prosecuting presidents for crimes and appeared to want to impose some limits on that possibility. This suggests that the justices will send the case back to lower courts to determine whether a certain definition of official presidential acts should be protected (and whether Trump’s specific acts qualify).
Such a move would almost certainly push back Trump’s trial until after the election, and if he wins, he could simply dismiss the case against himself. Luttig fears this outcome. But he also fears that even if Trump loses the election, there could be five votes on the Supreme Court to side with Trump’s immunity request. Either outcome would functionally end his prosecution.
“I think it’s now likely that Trump will be elected and order his attorney general to drop the charges against him, or that the Supreme Court will grant him immunity from prosecution,” Luttig told me .
To be sure, some observers believe that ultimately five judges will not grant Trump this immunity. In this scenario, a conservative majority could send the case back to lower courts to define official presidential acts that cannot be prosecuted, even if a combination of five or more justices later decides that the specific actions of Trump still faces prosecution.
But Luttig worries that is too optimistic.
Luttig pointed out that even Chief Justice John Roberts seemed to express some sympathy for the general idea that official presidential acts should be immune from prosecution. He also noted that Justice Brett Kavanaugh praised the pardon of Richard Nixon and that Justice Neil Gorsuch said that if presidents could be prosecuted, they could pardon themselves before leaving office to protect themselves, which Gorsuch said , could be legitimate.
Taking it all together, Luttig said, it’s not hard to see how five right-wing justices could let Trump off the hook. Some might argue that Trump’s actions related to January 6 (pressuring his vice president to overturn the electoral count and the Justice Department to create a false pretense for doing so) constitute official acts immunized from prosecution. Others might argue that the laws Trump allegedly violated do not clearly state that they apply to presidents, Luttig said.
Regardless, Trump has already achieved much of what he wanted with almost certain delay. And the questions asked by right-wing judges are already deeply alarming, Luttig argued. Justice Samuel Alito, for example, said that if presidents have to fear prosecution after leaving office, they may be more likely to resist the transfer of power, which would destabilize the country.
This is absurd, because The New RepublicAs Michael Tomasky noted, since there has never been a barrier to post-presidential prosecutions in all of US history, the only president to aggressively resist this transfer is Donald Trump himself . Moreover, as Dahlia Lithwick and Mark Joseph Stern point out at Slate, this notion also seems to suggest, absurdly, that giving presidents free rein to commit crimes while in office, including attempting to destroy democracy at its very foundations , is essential to maintaining democracy. stability.
We might add that when the justices ruled that Trump’s insurrection did not disqualify him from the ballot, they told us that this, too, was necessary to avoid national destabilization. Interestingly, a key ingredient for achieving political stability always seems to involve not hold Trump accountable.
“The conservative justices’ argument for immunity assumes that Jack Smith’s lawsuit against Trump is politically corrupt and seeks to establish a rule that would prevent future presidents from suing in a corrupt manner. their predecessors,” Luttig said.
“But such a rule would allow all future presidents to commit crimes against the United States while in office with impunity,” Luttig concluded. “This is exactly what Trump says he has the right to do.”
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