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February 23, 2024

Imagine a crime committed right on the floor of the United States Senate. “Will my colleague from New York agree,” asks the senator from California, “that at five o’clock next Saturday, we will shoot the president in the middle of Fifth Avenue?”

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“I agree,” replies the senator from New York. “To help us accomplish our end, I will now vote to disband the Secret Service.”

After the senators commit criminal conspiracy live on C-SPAN — that’s agreeing to a crime and taking one act to accomplish it — nothing happens. Neither get so much as much as a ticket. That’s because the senators are absolutely immune from criminal prosecution under the Constitution.

The Constitution’s Speech or Debate Clause provides that a congressman may not be put on trial for any “legislative act.” Hence Senator Mike Gravel of Alaska could commit a grave felony in 1971 when he disclosed the top-secret Pentagon Papers. He did so at a hearing of the Senate’s Subcommittee on Public Buildings and Grounds, so no prosecutor could touch him. Had he released the papers in the hallway outside the hearing room, he’d have been in handcuffs.

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A president has it harder, according to Special Counsel Jack Smith. In the Justice Department’s prosecution of President Trump for contesting the 2020 election results, Smith argues that he may put Trump on trial for official presidential acts. All that’s required to arrest Trump, says Smith, is that just over half of a biased Washington, D.C., grand jury conclude that his words or deeds fall within the vague wording of a rarely charged criminal statute. In Smith’s telling, he may put a president on trial for standing in the Speaker’s Lobby off the House floor to urge congressmen to vote against certifying an election — but because voting is a legislative act, not the congressmen who stand three feet away and actually cast the votes as urged.

Smith admits that a president must be protected by at least a qualified immunity from criminal prosecution — but he refuses to spell out exactly what that immunity is. Smith could propose an immunity covering only acts that double as political speech or petition or permitting prosecution only for clear crimes. Smith instead just swings his bat at a baseball he cannot see and declares a home run: whatever immunity a president has, he asserts, it cannot cover President Trump.

There’s another kind of prosecution besides criminal prosecution. It’s political prosecution. The Supreme Court should immunize President Trump from political prosecution by delaying his trial until after the election. It can then turn to the complex question of a president’s immunity from criminal prosecution and give it a far more thorough and thoughtful treatment than blindfolded baseball pitched by Jack Smith.

The politics of Jack Smith’s prosecution arises from its initial delay. The Justice Department rigged the case against President Trump so that if convicted, he could not get a reversal of the conviction until after the election. It waited almost two years to appoint Smith and then Smith waited almost another year to bring charges so that a conviction would come right as voters start voting.

Although President Trump is seeking immunity, he has reason to prefer trial. He would probably be convicted by a Washington, D.C., jury, which comes from a 95% anti-Trump jury pool, but by getting a conviction reversed, he could demonstrate the Justice Department’s brazen corruption in charging him in the first place. Jack Smith charged Trump with a fake crime, so a conviction may well be reversed. But appeals take time, often years. The election is only months away.

A case that falls apart after drawing blood: that’s the mark of plots against President Trump. It’s the mark of Jack Smith, too, whose other big verdict, which put a global accounting firm out of business, got unanimously reversed by the Supreme Court — but only after the firm had long since closed its doors.