The Supreme Court likes to claim it ignores politics. But politics isn’t going to ignore the Supreme Court.
Now that Donald Trump’s New York hush money trial is over, the big question is whether the former president will face trial in federal court before the November election. The case arising from his efforts to overturn the 2020 presidential election was set to go to trial back in March; Trump managed to avoid that trial date by claiming that presidents have absolute immunity from prosecution, a claim that is now before the Supreme Court.
Whether Trump will once again find himself sitting in a courtroom before voters make it to the polls depends on how and when the court issues its decision.
At oral argument in April, it became pretty clear that there was no market for Trump’s sweeping “if-the-president-does-it-then-it's-legal” view of presidential immunity for criminal acts. But there were takers for two other theories that would limit future prosecutions of ex-presidents.
The first had to do with whether Congress can use criminal law to regulate certain “core powers” of the presidency, such as the pardon power and the recognition of foreign governments. The idea is that there may be some presidential actions that Congress simply cannot criminalize. For example, Congress probably could not pass a law — at least, not a constitutional one — making it illegal to pardon........