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Arguing to the Supreme Court that he cannot be impeached for acts while in office, Donald Trump has asked justices to enforce a rule he has long threatened to overturn.
When a lawyer for former President Donald J. Trump argued before the Supreme Court last week that his client should be immune from charges of conspiring to overturn the last election, he asked the justices to imagine a world in which former presidents were relentlessly followed in court by their successors.
“ Could President Biden one day be charged with illegally encouraging immigrants to enter the country illegally for his border policies? ”, asked the lawyer, D. John Sauer.
What Sauer failed to mention was that Trump has done as much as anyone to escalate the prospect of threatening political rivals with criminal prosecution. In his current campaign, Trump has explicitly warned of his intention to use the legal system as a weapon of political punishment, with frequent statements about how he might prosecute President Biden and his family.
In fact, Trump has asked the Supreme Court to enforce a rule he has threatened to overturn for years. By promising that his Justice Department would bring Biden to the dock, Trump has rejected the terms he himself sought to protect from justice by granting him immunity.
Trump's perspective is that it is Biden who has politicized justice by pursuing him on multiple fronts as they face each other on the campaign trail. However, in making this argument, Trump has tried to avoid the reality that no former president has faced as many accusations, or as much evidence of wrongdoing, as he has.
The two federal cases against Trump were brought by a special counsel who acts largely independently of the Justice Department, while the other two criminal cases against him were brought by local district attorneys in New York and Georgia.
Paradoxically, if the Supreme Court rules that presidents enjoy some immunity for their official actions while in office, the ruling would deprive Trump of one of the main themes he and his allies have promoted during the current campaign: that Biden should be held accountable by the criminal justice system, despite the lack of convincing evidence that he has broken any law.
And if Trump were to win in November, he would find it much more difficult, if not impossible, to make a case against Biden for any actions he took in office.
Last spring, Trump vowed that if re-elected, he would appoint a special counsel to "go after" Biden and his family. And just two weeks ago, he posted a not-so-veiled threat on social media, saying that if the Supreme Court rejected his claims of presidential immunity, it would "take away" Biden's immunity as well.
Over the weekend, Eric Trump, one of Trump's sons, weighed in on an upcoming prosecution of Biden. Appearing on Fox News, he said that if the court denied his father immunity, it would mean "they" would be able to go after Biden for things like depleting the national oil reserve.
Such statements have become a staple of Trump's presidential campaign, as he has focused his political message on the four criminal cases he is facing.
History has already shown that Trump and allies have been willing to use the court system against their perceived opponents. Trump's Justice Department, under the control of former Attorney General William P. Barr, appointed a special counsel, John Durham, to investigate investigators who launched the investigation into ties between Russia and Trump's 2016 presidential campaign.
Trump also repeatedly encouraged investigations into his political critics, including Mrs. Clinton, James B. Comey, whom he fired as FBI director, and John F. Kerry, a former senator and secretary of state under President Barack Obama. (None of them were prosecuted.)
As president, Trump wanted a number of his perceived political enemies, including Mr. Comey, to be investigated by the Internal Revenue Service, according to a White House chief of staff. However, despite all of Trump's promises to conduct some sort of criminal investigation against Biden, the pledges have come as actual evidence of wrongdoing by the president has been hard to come by.
After more than a year of investigation, House Republicans appear to have backed away from their efforts to impeach Biden. A separate impeachment proceeding against Alejandro N. Mayorkas, Biden's national security secretary, was quickly swept aside when it reached the Senate.
In February, special counsel Robert K. Hur said there was insufficient evidence to charge Biden with illegally retaining classified documents after he served as vice president. Given the long-standing American legal principle that no one is above the law, Trump's immunity claim seemed like a long shot when his lawyers took it before the Supreme Court.
However, some of the court's conservative justices appeared last week to accept Trump's basic argument that in a polarized political environment, all presidents could be charged with something when they leave office unless he receives immunity protection.
It's impossible to know how much protection, if any, the justices will ultimately give Trump in the election meddling case. While none of them seemed to embrace his more extreme idea, some seemed to agree that he could enjoy a limited form of immunity that would protect him from being charged with official misconduct for his job.
As for Biden, all the grounds for bringing a case against him that have been presented by Trump, his allies or his lawyers have had little basis in law. These reasons would be even more difficult to sustain if the Supreme Court were inclined to limit prosecutions based on major official acts of a former president./ Adapted "Pamphlet" from "The New York Times"
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