Why legal experts are paying attention to 'first 29' words of SCOTUS’ immunity decision
A day after the U.S. Supreme Court announced that they have agreed to hear Donald Trump's argument that he has absolute immunity from federal prosecution, CNN's John Fritze and Tierney Sneed point out Tierney Sneed point out that legal experts are paying attention to the "first 29" words the justices "used to lay out the 'question presented' in Trump’s immunity appeal – the question they "will focus on when they meet in April to hear arguments and then sit down to craft an opinion that will either greenlight [special counsel Jack] Smith’s prosecution of the former president or shut it down."
Fritze and Sneed report:
In the immunity matter, the court didn’t embrace Trump’s framing – nor the question Smith posed when he sought review on the same issue in December.
For starters, the Supreme Court completely ignored one of the questions Trump asked it to resolve: whether Smith’s prosecution amounted to double jeopardy, in violation of the Fifth Amendment, because he was acquitted by the Senate in 2021 after his second impeachment.
Former US Ambassador to the Brookings Institution senior fellow Norman Eisen said, "The question implicitly rejects Trump’s position of absolute immunity because of that language 'whether…and to what extent.' They are signaling that even if, to some extent there’s an official element, that that may not be enough."
Fritze and Sneed report that "by including the words 'whether' and 'to what extent' in the question, the court may be hinting that it intends to define the term more narrowly."
However, the pair also notes "former FBI deputy director and CNN legal analyst Andrew McCabe interprets the wording differently. Lower federal courts avoided defining the outer perimeter of presidential authority, he noted. The Supreme Court’s question, he said, could 'open the door to determining not only if there is immunity, but what allegedly official acts would be covered. And that might require sending the Trump case back to lower courts for additional review – and, potentially, significant delay."
CNN's full report is here.