In the Supreme Court, Has It Become Politics Over Law?

In the recent Supreme Court hearing of arguments for and against Tump's claim of absolute immunity from prosecution ("4 Takeaways," April 25), three of the conservative judges - Alito, Gorsuch, and Kavenaugh - put forth questions/arguments which were almost ludicrous in their lack of relevance to the issue at hand.

These three conservative judges basically said that a president should not be subject to politically motivated prosecution by a vindictive successor.  We can all agree with that.  But this argument is not relevant to judging Trump's claim to immunity.  The fact that in rare instances a criminal statute could be misused is no reason not to provide for prosecution of the crime.

First, the question is whether a past-president should be immune from prosecution from potentially criminal acts committed while in office.  The further question is whether this should apply to both official and non-official acts, or just non-official acts.  

Prosecution for criminal action has various bars that must be met to justify prosecution.  Regardless how zealous the prosecutor or vindictive the successor, there has to be alleged criminal action.  This is not about challenging a president's motives for his official acts in office, regardless how criticized he or she may be.  Supporting particular legislation or arguing for a change in regulation, regardless of the motive, would not constitute criminal action under anyone's definition.

Which brings me to the second point.  All the conservative justices refused to look at the facts involved in this case.  Yet in judging whether a claim of immunity is appropriate, the facts of the case are extremely relevant.  You have first the theoretical question of absolute immunity, and once that is decided, whether the case before the court warrants such immunity. Trump is alleged to have defrauded the government by denying the results of the election – not by challenging them in court which is his right and which he did – but continuing to contest them after losing the court cases and further by attempting through various means to subvert the election and remain in the Presidency.

These facts are relevant because they show why the grant of immunity requested is not appropriate, why such matters must be subject to criminal prosecution.  They go to the heart of the strength and validity of our democracy.