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JOSH HAMMER: Trump’s Squishy SCOTUS Picks Could Come Back To Haunt Him

One of the most underappreciated recent trends in American law and politics has been obscured by several high-profile conservative victories on the Supreme Court, and thus There are three tendencies of former President Donald Trump that have received little attention. The power of appointment of the High Court is soft and unreliable.

The truth is that Trump-era Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett can all compete with their two reliably conservative senior colleagues, Clarence Thomas and Samuel Alito. That means there is no one. Mr. Kavanaugh and Mr. Barrett are pragmatic, center-right justices who have sought to avoid delving into hot-button “cultural” issues such as religious freedom and broader issues such as coronavirus restrictions, immigration, and congressional redistricting. I am often disappointed. Gorsuch has the strongest libertarian temperament on the court. Although he steadfastly rejected the tyranny of the coronavirus, it proved a disaster on many other issues, including gender ideology, Indian rights, and criminal law.

If Trump secures a second term, conservatives will have to give him better control over his high court selections. So it would be a twist of fate worthy of a Hollywood script that President Trump's own Supreme Court picks would play a major role in determining whether such a second term ever materializes. It won't happen.

On Wednesday, the Supreme Court agreed to expedite the hearing of Donald J. Trump v. United States, in which the justices decided “whether and if former presidents enjoy presidential immunity from criminal prosecution for their actions. It is up to them to decide how much immunity they will enjoy. He is suspected of engaging in official acts during his tenure. ” Resolution of this threshold issue is necessary before Special Counsel Jack Smith can determine whether his prosecution of the 45th president for conduct related to the 2020 election can proceed.If the court determines that the person is a former president teeth Complete immunity from such future criminal prosecution would kill Smith's case in Washington, D.C.

The stakes could not be higher for the Biden administration and the broader Democratic-legal complex, reeling from the incumbent's dismal polling in battleground states and seeking to derail President Trump by any means necessary. With Georgia's prosecutors collapsing in real time over Fulton County District Attorney Fani Willis' extramarital affair scandal and public corruption for similar election-related reasons, the administration is putting all its eggs in DC Jack Smith's basket. And Mr. Smith intends to do everything he can to secure a guilty verdict in Judge Tanya Chutkan's trial court before the November election.

It will be a race against time for both sides.

As established policy of the Department of Justice, sitting The president will not face criminal charges, but former The potential for presidents to be criminally prosecuted for acts committed while in office is a new legal issue. It is clear that at least some presidential conduct, that is, those involving “core” Article II features and presidential powers, should be immune from future criminal prosecution. After all, Democrats are serious about the idea that former President Barack Obama, no longer a sitting president, should be prosecuted for the 2011 drone assassination in Yemen that killed al-Qaeda operative and American citizen Anwar al-Awlaki. Are you thinking about it? It would set a terrible precedent if the court allowed post-presidential criminal prosecutions for such “core” Article II duties, such as tense, split-second decisions made in the White House Situation Room. It will be. (Related: Josh Hammer: Donald Trump has every enemy)

But where should we draw the line? And if no line can be drawn between “core” presidential duties and ancillary presidential duties, is it best to comply with President Trump's demands, i.e., to proactively serve from future criminal prosecution? However, is it best to absolve the president of his actions in their entirety?

Justices Thomas and Alito tend to be more supportive of claims of broad executive powers and may be open to Trump's argument in its entirety. But it's unclear whether Trump's claims are likely to garner more votes after that. Justice Kavanaugh's separation of powers doctrine is also pro-Article II, but his “don't rock the boat” nature will make him wary of seeming too “Trumpian.” Chief Justice John Roberts also has a well-known deep personal animosity toward Mr. Trump, although he has at times expressed sympathy for his broader claims about presidential power. And it would be extremely difficult for either Justice Gorsuch or Justice Barrett to embark on “total immunity.”

The best President Trump can reasonably hope for is that the justices will rule that only the “core” role of Article II immunizes him from future prosecution, and that the specific acts alleged in Smith's indictment will be included in the bill. It is a complex opinion that accepts the premise that it will be sent back to the lower court to see if it fits. Such mixed results are certainly plausible.

But if President Trump loses completely on the immunity issue, he will be personally responsible. He had the opportunity to draft three potential Thomas/Alito-style players. He whiffed.

To learn more about Josh Hammer and read features from other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at

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