interview
The fact that the highest US court is dealing with former US President Trump’s immunity could be a delaying tactic, says US lawyer Russell Miller in an interview with tagesschau.de. But the outcome of the process is uncertain.
tagesschau.de: On what basis do the judges actually negotiate?
Russell Miller: There is nothing explicit in the Constitution about presidential immunity. Probably the only text that can give a clue is the impeachment clause. This states that the president can be removed from office after an impeachment by the House of Representatives and a subsequent conviction.
Trump’s lawyers argue that this is the only basis on which the president can be investigated. But the impeachment clause does not expressly preclude later criminal proceedings. This very short text therefore requires interpretation: What were the founding fathers thinking? But we don’t have much to work with there either.
There is some evidence that Benjamin Franklin foresaw these problems and suggested that there should be no presidential immunity. Our constitutional experiment rests largely on the idea of civic virtue and the premise that a public figure does what is best for the country – and not that that virtuous citizen also breaks the law. The Founding Fathers probably couldn’t have even imagined this scenario!
To person
Russell Miller is a law professor at W&L University in Virginia, USA. He is co-founder and editor of the “German Law Journal” and was chairman of the “Max Planck Law Network”.
“Republican Judges not automatically on Trump’s side”
tagesschau.de: What influence does the composition of the Supreme Court have on the decision?
Miller: As president, Trump appointed three of the current judges. It is reasonable to expect that these judges will also rule in his favor. But I’m not so sure about that. Supreme Court Chairman Chief Justice John Roberts – a Republican even though he was not appointed by Trump – as well as Trump-appointed Judge Amy Coney Barrett, have recently expressed concern for the Supreme Court as an institution .
They know that the court’s decisions can worsen the public image, reputation and acceptance of the institution. And I think they will factor these concerns into their decision: If they rule strictly in favor of the former president, the court will appear even more partisan.
I don’t think it’s so certain that these two Republican judges are automatically in Trump’s camp. I don’t know what the final majority will be, but these two Republican justices could join the liberals on the court.
“It could be one Delay tactics act”
tagesschau.de: How do you think the trial will end?
Miller: In terms of the rule of law and separation of powers, it is actually inconceivable that the court would grant absolute immunity to a former president. But then the question arises: Why did the Supreme Court take the case in the first place?
In the US legal system, the Supreme Court could also have made the decision to dismiss the case. Then the existing ruling that rejected Trump’s immunity claim would stand. So there is a certain risk that the supreme judges will want to grant the ex-president immunity after all. Some insiders think this is realistic.
But there is also the interpretation that it is actually not a question of immunity yes or no. Rather, it is a delaying tactic so that no verdict can be made in the actual trial of the storming of the Capitol before the presidential election. So perhaps the Supreme Court’s acceptance of the immunity case is already a significant result.
“Conservative judges may want to give themselves leeway”
tagesschau.de: If the Supreme Court rules in Trump’s favor, would that mean that the president enjoys a kind of total immunity without limits?
Miller: Yes, that is the crazy view that Trump holds. In a case involving the release of tax documents, Trump was asked by the judge whether absolute immunity also meant that a president could order the assassination of his political opponents. And Trump’s lawyers said, “Yes, that’s the logic of our argument.” It’s crazy!
On the question of whether Trump can run in the primaries in Colorado, the Supreme Court ruled in the former president’s favor. One could also interpret this as if the conservative judges wanted to give themselves a little leeway to rule against Trump now.
“Trump could become president again despite conviction”
tagesschau.de: If the Supreme Court ruled that Trump had no immunity and might even be convicted before the election, what would that mean?
Miller: Then he can still run and be elected president. There are only a handful of federal crimes that disqualify someone from holding public office. But Trump is not accused of such things.
tagesschau.de: Could Trump – if re-elected – even end up pardoning himself?
Miller: This question has not yet been asked. There could be a lot of academic debate about this. But I would say, yes.
Peter Mücke conducted the interview.