The Supreme Court has agreed to hear former President and current Republican Presidential primary candidate Donald Trump’s case for Presidential immunity from prosecution for acts taken while he was President and acting in that capacity. The Wall Street Journal editors are correct in writing that [t]he Justices are right to rule on Trump’s immunity claim even if it delays a trial.
To call that a courageous move, though, is a bit premature. Chief Justice John Roberts is well-known for ducking controversy in favor of “preserving” the Court’s legacy and credibility. He’s done that whenever he can by getting the Court to rule as narrowly as possible on any particular case.
The courage of the Court’s ultimate ruling in the present case must be measured against whether that ruling is written as narrowly as possible or written regarding the principles involved: whether any President gets immunity from criminal prosecution for acts taken while President and acting in that capacity, the definition of “acting in that capacity,” and the nature of the acts so protected—and not protected. In that latter criterion, our Constitution offers some muddy clarity: any President can be impeached in the House and convicted in the Senate for Treason, Bribery, or other high Crimes and Misdemeanors.
The clarity stems from that enumeration of treason and bribery. The muddiness stems from that hazy “high Crimes and Misdemeanors.” The muddiness further stems from the Senate trial being a political one, not a criminal one, and so any subsequent criminal trials create no double jeopardy question.
The Roberts Court must answer all of those questions definitively before its ruling can be counted as courageous.
Bonus: more courage would attach were the Court to address that “high Crimes and Misdemeanors” part, suggesting—not specifying—the sort of things that might fit within that phrasing or saying with some specificity that that phrasing does, in fact, mean whatever the House and Senate say they are in any particular impeachment/trial action.