'Trump should lose': Scholar explains exactly how SCOTUS should rule against ex-president

Nine justices need to confront an "extraordinary question of American governance: Are ex-presidents immune from prosecution for in-term conduct? And, if so, how much immunity do they have?"

This is the nucleus of University of Texas at Austin School of Law Prof. Lee Kovarsky's Op-Ed in The New York Times.

He writes that SCOTUS must act because there are four indictments brought against former President Donald Trump; chief among them Special Counsel Jack Smith's case charging the 45th president of subverting the 2020 election to stay in power.

ALSO READ: ‘Leave the drama to them:’ Mother of Lauren Boebert’s grandson speaks out

The D.C. Court of Appeals' three-judge panel already delivered a unanimous defeat to Trump, saying he could be held accountable for his actions in what led to a deadly riot at the Capitol back on Jan. 6, 2021.

"We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter,” the judges wrote. “For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution."

Kovarsky notes that while they decided against the Don, it is "that very weakness that might tempt the Supreme Court to say too little about the existence and scope of presidential immunity."

And for this the highest court in the land should announce exactly what that standard is.

The concept of being beyond criminal reproach is one that Kovarsky admits is somewhat obvious.

"When presidents commit federal crimes, they are — by definition — flouting congressional priorities," his opinion reads. "The best justification for immunizing former presidents against federal prosecutions is that the charged conduct is reasonably necessary to a core constitutional duty."

And with the justices formally hearing the immunity case — it certainly puts the federal criminal trial in limbo. But the value of determining once and for all the legal capacity of the presidency is worth it, he said.

"Many justices profess to be minimalists, deciding only the case in front of them," writes Kovarsky. "But for the good of the country, the Supreme Court should use Mr. Trump’s case to announce a narrow presidential immunity. Mr. Trump would flunk any immunity standard, but the court should announce a standard nonetheless."