Top Attorney Thor Hearne Offers Analysis and a Prediction on the Supreme Court’s Decision on Trump vs. United States Presidential Immunity Case

Attorney Thor Hearne predicts what the SCOTUS ruling on presidential immunity is and ironically because of his name, he hammers Jack Smith all the way to Asgard and back. As we are all aware, this case concerns the issue of whether a subsequent president may criminally prosecute his (or her) predecessor and current political rival for official acts the previous president took while in office. The immunity case revolves around one very important premise. Presidents can not be arrested for official acts.

Naturally the Democrats tried to bastardize the argument by asking such idiotic questions such as can a president kill a political rival. Of course that would not be an official act. Neither would using lawfare against a political rival. But, investigating voter fraud would definitely fall under the classification of official duties.

How the Supreme Court decides this case will affect the Separation of Powers between the three branches of our government and will determine how future presidents fulfill their duty as Chief Executive. The brief provides a historical context for the Supreme Court to consider. It is not hyperbole to suggest that the United States v. Trump case is of a constitutional magnitude equivalent to Chief Justice John Marshall’s decision for the Court in Marbury v. Madison.

Via Attorney Thor Hearne:

Every Justice understood that the Supreme Court is deciding a landmark case that transcends the immediate issue of President Trump and the 2024 presidential election.

Given this, I was somewhat surprised by the quality of Special Counsel Jack Smith’s work. During my thirtyyear career I have had opportunity to argue before the Supreme Court and I have represented hundreds of amici parties, including the leadership of the United States House and Senate in matters before the Court. In most Supreme Court cases the Solicitor General represents the United States. Irrespective of whether it be the Clinton, Bush, Obama, Trump, or Biden Administration, I have found that the written briefs and argument by the Solicitor General and the counsel in the Solicitor General’s office is of a very high quality. The Solicitor General has its own Style Manual for Supreme Court briefs. Given this, I was surprised when I read Jack Smith’s briefs that were not of the high quality the Solicitor General normally writes.

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I did not find that quality of the briefs Jack Smith filed, nor the argument Mike Dreeben made, to be on par with what the Solicitor General customarily presents in cases before the Supreme Court. I found this surprising, but then I noticed that the briefs filed in the Supreme Court were not by the Solicitor General’s office but were an in-house product of Jack Smith’s “Special Counsel” team. I anticipated that when this case of such importance was argued in the Supreme Court, the Solicitor General’s office would direct the briefing and argument. But this was apparently not the case.

Hearne makes his prediction on the SCOTUS ruling:

MY PREDICTION OF THE OUTCOME

Two of the more challenging intellectual tasks one can undertake are forecasting the path of a hurricane or predicting how the Supreme Court will rule. With that caution thrown to the winds, I offer my prediction.

I expect Chief Justice Roberts will author the majority opinion that overturns the D.C. Circuit’s categorical holding that the president has no immunity from criminal prosecution for any official act. I anticipate the Supreme Court will remand the case to the district court for a fuller record of what specific “official acts” (as opposed to “private acts”) are the basis of Jack Smith’s indictment. The remand will direct the district court to develop the specific facts and allegations underlying Jack Smith’s indictment.

Chief Justice Roberts and Justice Barrett did not seem inclined to favor a blanket rule that the president is absolutely immune from criminal prosecution for every official act the president takes while in office. Chief Justice Roberts and Justice Barrett seem inclined to develop a more limited doctrine of immunity addressing the distinction between “official acts” (directing a drone strike that killed American citizens) and “private acts” the president engages in pursuit of the president’s private interest. (Bill Clinton’s act with Monica Lewinski is not an “official act” even though President Clinton engaged in the act in the Oval Office, nor is President Clinton’s subsequent denial of inappropriate conduct at an official press conference held in the White House.)

Justices Kavanaugh, Gorsuch and Alito appeared favorable to a broad rule recognizing presidential immunity from criminal prosecution for official acts. I anticipate they will join the Chief Justice and Justice Barrett’s opinion reversing the DC Circuit’s. Justices Alito, Kavanaugh, Gorsuch and Thomas also appeared to be sympathetic to the argument made in our amicus brief that bringing a criminal prosecution against the President for an official act requires that the President first be impeached and convicted by the House and Senate.

Justice Thomas (as he is wont to do) focused on the constitutional source of presidential immunity and wanted to have a fuller sense of the constitutional text and history underlying the immunity doctrine. Justice Thomas is a celebrated textualist and originalist who looks to the words of the Constitution (or a statute) that is the subject of the dispute so that the Court may faithfully interpret and apply the Constitution or statute as the drafters intended. This is similar to the philosophy the late Justice Scalia brought to the Court. I anticipate Justice Thomas will embrace the principal of presidential immunity from criminal prosecution for official acts. But I anticipate Justice Thomas will write a separate opinion explaining the historical context and constitutional text underlying this doctrine.