NEVER LISTEN TO ANYONE WHO TELLS YOU THAT REPUBLICAN SUPREME COURT JUSTICES WILL ACT IN GOOD FAITH

In early February, the U.S. Court of Appeals for the D.C. Circuit ruled that Donald Trump doesn't have legal immunity from prosecution for crimes committed during his presidency. After this ruling came down, Trump appealed. Very Smart People told us he had no grounds for appeal, and therefore the Supreme Court was highly unlikely to rule in his favor.

“I think there’s a strong chance the Supreme Court will unanimously uphold this [D.C. Circuit ruling],” Michael Waldman, president of the Brennan Center for Justice at New York University's law school, told USA TODAY. "The question to me is not how the court will rule, but when."

After I read this, I -- a schmuck blogger with no law degree -- called it "obviously nonsense."

Around that time, Lee Kovarsky, who teaches law at the University of Texas, published a New York Times op-ed in which he argued that the Supreme Court couldn't possibly throw out a significant number of charges against Trump by ruling that Trump's misdeeds were "official acts":

It has already been determined — in a recent decision in a civil case, by a separate D.C. Circuit Court panel — that Mr. Trump’s extramural efforts to remain in office were not “official acts.” ... Mr. Trump was acting as an “officeseeker” rather than an “officeholder,” and the private sphere of office-seeking conduct sits outside the scope of official-acts immunity.

Only the tiniest slice of the indicted conduct could bear a straight-faced description as an “official act”...

In other words: A lower court has convincingly made the case that the Republican candidate for president can't get away with this! Surely the Supreme Court will act in good faith and affirm this wise decision!

I wrote:

But isn't this precisely the kind of "settled" law that this corrupt and biased Supreme Court loves to overturn?

... I think the Supremes will proclaim that the push for "sham election crime investigations" by the Justice Department was absolutely within Trump's power because he was acting as president rather than as a citizen.... The Court may also rule that failing to intervene to stop the January 6 riot is also Trump acting as president, and thus covered by presidential immunity.

... I think the Court will grant partial immunity while greatly reducing Trump's legal jeopardy. The Court doesn't want to give presidents blanket immunity because, obviously, that would also apply to Democratic presidents, and we can't have that. The Court will toss out some of the charges because it can, and because fuck you, liberals, that's why.

That's precisely what happened:

The Supreme Court ruled on Monday that former President Donald J. Trump is entitled to substantial immunity from prosecution, a decision that will almost surely delay the trial of the case against him on charges of plotting to subvert the 2020 election past the coming election in November....

Chief Justice John G. Roberts Jr., writing for the majority, said Mr. Trump had at least presumptive immunity for his official acts. He added that the trial judge must undertake an intensive factual review to separate official and unofficial conduct and to assess whether prosecutors can overcome the presumption protecting Mr. Trump.

And specifically:

A key quote from the immunity ruling: “Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”

The Court's Republicans were vague about what else constitutes an official act for two obvious reasons: (1) They want to retain the right to play Calvinball with any future challenge to a president's authority (Democratic acts that could be charged as crimes will be deemed outside the scope of the president's official duties, while a Republican president's acts won't be, as long as the Supremes can argue, however implausibly, that the acts fall into two separate categories); and (2) if Trump loses the election, they want Jack Smith to restructure and refile his case and then be delayed further, as Trump's challenge of the new indictment slowly wends its way through the courts.

A couple of weeks ago, Very Smart former U.S. attorney Elie Honig argued that a Trump lawyer made a terrible mistake in presenting the former president's case before the Court:

During oral argument on Donald Trump’s presidential-immunity claim back in January, District of Columbia Circuit Court of Appeals Judge Florence Pan posed this hypothetical: “Could a president who ordered SEAL Team Six to assassinate a political rival [and] who was not impeached, would he be subject to criminal prosecution?”

Trump’s attorney John Sauer — Rhodes Scholar, Harvard Law School grad, Supreme Court clerk, former solicitor general of Missouri — gave this astonishing answer: “If he were impeached and convicted first.” Pan incisively replied, “So your answer is ‘no.’” Sauer tried to recast his response as a “qualified ‘yes,’” but the damage was done. The hypothetical resurfaced during Supreme Court oral arguments with a bit of additional hedging by Trump’s team, but their bottom-line position remained mostly unchanged.

Sauer’s answer to the SEAL Team Six question, on Trump’s behalf, is wrong, reckless, and self-defeating. It’s also entirely unnecessary to the argument he needed to make and to how the Supreme Court will likely rule.

I responded that this wasn't reckless or self-defeating at all -- it was Sauer giving his fellow Federalist Society affiliates on the High Court an outrageous ask so they could reject the outrageousness and still give Trump just about everything he wants, all while seeming "reasonable" and "moderate." I was told that I was being ridiculous -- this isn't how the law works at all! A lawyer in Sauer's position needs to make a credible case!

It looks as if I was right -- there was nothing reckless or self-defeating about Sauer's bluster.

And in the future, if Trump becomes president again, Very Smart People will still tell you that the Supreme Court acts in good faith and is constrained by "guardrails." Trump will do outrageous things, and we'll be told that the Court is right-leaning but it won't let him get away with that.

But the Court will let Trump get away with just about everything he wants to do. The rulings will need to have the appearance of consistency with constitutional principles, but that's easily faked.

In every politcally charged case that comes before this Court, imagine the worst possible outcome. Then move it a sixteenth of an inch to the left. That's probably what will happen.