Supreme Court justice said 'quiet part out loud' at Trump immunity hearing: analyst

Supreme Court Justice Neil Gorsuch may have said the "quiet part out loud" at a hearing into Donald Trump's presidential immunity claims, an expert said Monday.

Legal analysts Allison Gill and Andy McCabe addressed the Supreme Court hearing in the most recent episode of their "Jack: A Special Counsel Podcast."

And they said a comment by Gorsuch summed up what other justices seemed to think — and which, they claimed, was incorrect.

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Gill said one problem with the way the conservative justices viewed the case is that they wanted to apply it to a slew of hypothetical ideas, when the case is actually very specific to Trump. It doesn't try to set a standard for all presidents on a variety of immunity claims, she said. Instead, it follows the grand jury's ruling that Donald Trump attempted to overthrow the 2020 election, and in so doing, he broke the law and should be prosecuted.

"They should have said, 'We don't have to decide about official acts for future presidents because the appeals court only considered this case," Gill said.

But, she said, several Supreme Court justices seemed confused about that.

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“Chief Justice Roberts asked Michael Dreeben, the lawyer that was arguing for special counsel if he agreed with the statement” from the Washington, D.C. Appeals Court that judges needed to consider just Trump's immunity, not if it should apply to all presidents.

Gill suggested that means Roberts either thinks that point is up for question, or he misunderstood "what the appellate court ruled.

Roberts then falsely claimed before the court that the D.C. court ruled that there is never any immunity for presidents from criminal prosecution, Gill said.

"If he actually, wrongly, thinks that, then it's no wonder he granted" the case to be heard before the High Court, said Gill.

It puts Roberts in a situation in which he has participated in either "a gross misinterpretation of the appeals court ruling," or he is trying to find a justification for hearing the case, Gill said.

"To me, I mean, we're either here because of incompetence, arrogance, or a corrupt intentional delay tactic, and none of those options gives me a lot of confidence about how the court will rule," she said.

McCabe said that the moment that struck him the most was when the justices wanted to talk about anything but Trump's case. They were spinning hypotheticals at a time when the appeals court ruling specified it was taking only Trump's case into consideration.

"The facts of this case were basically far outside the bounds of any arguable acknowledgment of immunity," McCabe said. "And they were really trying to litigate on some different ground. And, I think [Neil] Gorsuch went so far as to say the quiet part out loud when he insisted, 'We are making a rule for the ages here.'"

Essentially, he said, Gorsuch was claiming that the Supreme Court wasn't there to consider just Trump's case, but the wider concept of presidential immunity.

You can listen to the "Jack" podcast episode 74 here.

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