Special counsel Jack Smith needs to make one particular, simple argument at Thursday's Supreme Court hearing to make former President Donald Trump's claim of immunity from prosecution come crashing down, explained former federal prosecutor Joyce Vance on her "Civil Discourse" blog.
This comes as the Supreme Court is set to hear oral arguments in Trump's immunity appeal on Thursday, after having lost his claims in every lower court where the matter was raised. The fate of Trump's federal election conspiracy trial could hinge not just on what the justices decide, but how quickly they decide it, potentially consigning the case to be held after the election.
"The hypothetical, or 'hypo' as it's abbreviated in legalese, that I'm hoping the government will pose in argument is a more extreme version of the SEAL Team Six hypo we heard in the Court of Appeals, where a judge asked if Trump's theory would absolve him if he used the military to take out political opponents," wrote Vance.
"Why not take it a step further and tell the court that if Trump has the sort of broad immunity he claims he does, a president would be free to order the assassination of Supreme Court justices who disagree with him, and could not be prosecuted for doing that. Make the impact of Trump's argument unmistakable."
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In the SEAL Team Six hypothetical raised in the lower court, Trump attorney John Sauer outright admitted that under his argument, Trump could not be prosecuted for ordering military assassinations while in office — he could only be impeached for it.
Ultimately, Vance added, "The examples of conduct that would be permissible under Trump's view of immunity drive home how essential it is for the court to reject his appeal and send this case back on its way to trial."
All of this occurs as the former president is standing trial in one of his other criminal cases in Manhattan, where he is accused of business fraud to cover up a hush payment case.
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