Rick Hasen: “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 that a former president is not absolutely immune even for his or her official acts. 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.”
Abby VanSickle: “A majority of the justices appeared skeptical of the idea of sweeping presidential immunity. However, several of them suggested an interest in drawing out what actions may be immune and what may not — a move that could delay the former president’s trial if the Supreme Court asks a lower court to revisit the issues.”
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