SCOTUS immunity deliberations put Jack Smith's Jan. 6 case in precarious place

The U.S. Supreme Court on Thursday heard oral arguments in a potentially pivotal case concerning former President Donald Trump's claim of broad immunity for conduct undertaken while in office, and according to some observers, it seems likely that special counsel Jack Smith will likely end up at a disadvantage of one sort or another.

Given the tone of the justices' questioning last week, legal observers are suggesting that it is increasingly unlikely that the federal government's Jan. 6 case against Trump will go to trial ahead of the November election, as Fox News reports, and noting that Smith may be forced to pare down his allegations against the former president.

Mixed outcome predicted

Over several hours of discussion at the high court, it became clear that the jurists on the panel were divided as to the extent of immunity a president should receive, and their ultimate decision on that question is likely to impact not just Trump but all future commanders in chief.

Though the notion of absolute immunity appeared to be met with healthy skepticism by many of the justices, a middle ground involving some form of qualified immunity may characterize the final outcome.

Recognizing the import of the matter before them, Justice Neil Gorsuch declared, “We're writing a rule for the ages,” and it was obvious that the panel was contemplating not just the question as it relates to Trump, but how it will affect the presidency going forward.

Opposing viewpoints floated

As is often the case at the high court, divisions on the question at hand emerged, largely along ideological lines, with Justice Ketanji Brown Jackson positing that if the possibility of criminal liability were removed for future presidents, they might feel free to commit crimes at will while in the Oval Office.

Justice Samuel Alito, however, suggested that a lack of immunity for presidents could result in a destabilized country in which those who lose presidential elections must worry about potential prosecution spearheaded by their political opposition.

Constitutional scholar John Shu suggested that justices on the high court may well feel that Trump's conduct after the 2020 contest was “distasteful” but that they also “seem uncomfortable with either granting blanket immunity on the one hand, or no immunity at all on the other.”

“As often happens,” he added, “the middle ground is where the discussion will be.”

What comes next?

Shu further explained that the justices may decide to remand the matter back to the lower court for a determination of whether Trump's allegedly criminal conduct was in the realm of “official” acts or “private” ones, and only then would a decision on immunity be made.

As Axios notes, given the apparent unlikelihood that the high court will reject presidential immunity in its entirety, it seems that Trump is poised for at least a partial victory that could shape the trajectory of the upcoming election.

Should the justices send the case back to the lower court for further determinations, a trial in Smith's Jan. 6 case would necessarily suffer significant delays, perhaps well beyond Election Day.

Further, if it becomes clear that immunity does extend to Trump for official acts, and at least some of the conduct contained in Smith's indictment is deemed to fall into that category, the special counsel may be forced to trim the list of allegations he intends to pursue.

Though the Supreme Court is expected to rule in the case no later than the end of June, it already appears that Trump has at least succeeded in thwarting the left's overriding goal of securing a federal conviction before voters go to the polls.