The immunity question cannot be answered by the Supreme Court

 

It is not because they are not intelligent enough or understand the law well enough, the question is just too difficult to create a one size fits all answer.

And I am wondering along with many others will they send it back down to the lower courts to decide on the merits of the case facing Trump or will they try the impossible and decide what is presidential immunity?

Let’s say Trump wins. He decides to prosecute Biden for the border situation and the immunity question is still up in the air. Can he prosecute Biden for horrible public policy? Realistically this is one of the reasons we have elections every so many years. If an elected official is creating bad public policy the election allows for the removal of the official and hopefully the newly elected individual will create better policy and resolve the issue.

The Trump acolytes will say Biden’s border policy is criminally bad and should be prosecuted. Yet what statue do they use. In this case the word criminally is an adjective not the actual breaking of a law. So how does the Supreme Court rule on a newly elected President prosecuting the previous President for bad policy. Who determines what is criminal with bad public policy?

Now if Biden recruited six million immigrants to come to our border on October 15 and gave them all voters registrations using the same address all along the border cities and some how won Texas, New Mexico, Arizona and California and won the election then there might be a case against Biden, yet Biden won. Who prosecutes the winner? Sure he can be impeached and basically this scenario is why we have the ability to impeach Presidents. What happens next? Is he criminally charged? And what if the situation was a bit grayer, then can he be charged?

And not getting into personalities or character, most people do not think he would do that, yet power is addictive and who knows.

Yet how does the Supreme Court make a call between immunity for bad public policy versus an actual crime? Will our courts be inundated with cases after every election saying x was a crime because no one liked the policy by the previous office holder. In some ways that is Trump’s best argument for his immunity and that the courts being overwhelmed will actually happen.

Then what do you do for actual crimes committed. The example above is somewhat clear cut. We all know politics is very muddy and the halls of power can be very cloudy so how are nuanced situations handled? Are we back in Court after every election? If so then the Courts have to decide public policy because they have to rule if there was a crime or it was public policy which makes them potential supporters of the policy after the fact. It would depend on how the tea leaves were read.

So there is no way the Supreme Court can rule successfully on either a broad immunity claim or prevent mayhem in the Court system. If Trump wants to destroy democracy, this case is one of his best moves.