WASHINGTON.- La United States Supreme Court gave indications that prepares to issue a ruling that imposes certain limits on the immunity of presidentsa decision that, if finalized, will end delay the start of the trial against Donald Trump for his attempt to overturn his defeat in the 2020 presidential election beyond the upcoming November elections in which the future of the White House will be decided, a decision of high political impact in the middle of the campaign.
For months, Trump and his lawyers have argued in court that the magnate, the virtual presidential candidate of the Republican Party, should be exonerated of the accusations against him for his actions during his government, in particular, the end, when he tried to reverse his defeat. in view of Joe Bidenbecause North American presidents enjoy total immunity before the law, a bold reasoning that collides with one of the country’s founding values: no one is above the law.
The matter reached the highest court, which once again will have the last word and will give a response to a question capable of redefining the limits of the presidencyand the direction of the country.
“We are writing a ruling for posterity”summarized Justice Neil Gorsuch.
Upon hearing the arguments of Trump’s lawyers and the federal government, the nine judges of the Court, especially the six justices of the so-called “conservative wing” of the court, seemed inclined to reject Trump’s argumentbut recognizing that certain “official acts” may require a degree of immunity. The three judges of the “progressive wing”all appointed by Democratic presidents, were also concerned about the possibility that presidents could commit abuses of power that they then go unpunished, and thus avoid any accountability for their decisions.
The hearing touched on some of the most controversial decisions made by American presidents in recent times, even before Trump, or scandals such as Watergate. Trump’s lawyers mentioned, for example, the drone strikes ordered by Barack Obama who killed an American citizen suspected of terrorism, Anwar al-Awlaki.
One of the most notable exchanges of the Supreme Court hearing, which lasted about three hours, was when Trump’s lawyer, John Sauer, said that a president must have immunity from criminal prosecution for his official acts. Justice Elena Kagan, an Obama appointee, put him before the hypothetical case that a president gave the order to the military to carry out a coup d’état, and asked if he could be immune. Sauer suggested that it may be possible, and that the answer depended on “the circumstances.”
“He was the president. He is the commander in chief. He talks to the generals about him all the time. And he told the generals: ‘I don’t feel like leaving office, I want to carry out a coup d’état.’ “Is that immune?” Kagan insisted to Sauer.
“If it is an official act, it is necessary that there be an impeachment and a prior conviction”responded the lawyer.
That exchange between Kagan and Sauer, one of the back-and-forths that captured the most attention from the audience, provides a guideline of the extraordinary institutional moment that the United States is going through, with a presidential candidate alleging before the country’s highest court that a possible coup d’état could become an act outside the reach of the law.
In the end, the judges of the highest court focused on the discussion about what constitutes a “official act” and what should be considered a “private act”, a distinction that, if reflected in a ruling, could take the discussion back to lower courts and delay the start of Trump’s trial beyond the November election, when he may already be president-elect. From that perspective, The hearing was seen as a triumph for Trump..
Risks
Brett Kavanaugh, one of the judges appointed by Trump who is part of the “conservative wing,” indicated that one of the risks of completely removing immunity from a president is that it opens a era of political prosecutions of former leadersand that they become a routine.
“It’s going to come back and be used against the current president or the next president and the next president and the next president after that.”Kavanaugh said.
Even if the Court rules against Trump’s argument, if the trial of the case presented by the Special Prosecutor of the Department of Justice, Jack Smith, for Trump’s attempt to reverse his defeat in the 2020 election denounced a massive non-existent fraud –a campaign that ended in assault on the Capitol on January 6, 2021– is delayed, Trump will have achieved a political victory.
Surveys suggest that a fraction of Republican voters would feel uncomfortable voting for someone who has a judicial conviction. The only trial that has already begun is the process in New York for embezzlement of funds for the payment to porn actress Stormy Daniels. The other three proceedings are entangled by the legal maneuvers of Trump’s lawyers, who bets on returning to the White House to deactivate, at least, the two cases initiated by the federal governmentone for the 2020 election, and the other for the classified documents he took to Mar-a-Lagohis residence in Palm Beach.
“Given the circumstances, it is the best scenario I could have hoped for.”David Axelrod, Democratic political strategist, said on the social network X.