The judiciary is potentially making a constitutional mistake in rejecting all presidential immunity, but the Supreme Court could weigh in to protect that tenet of our democracy, according to law expert Alan Dershowitz on Newsmax.
"The court is dead wrong when it says that, essentially, nobody is above a criminal prosecution: Senators are; our senators and congressmen can't be prosecuted for things they said and did on the Senate or House floor," Dershowitz told Tuesday's "National Report" after a three-judge D.C. Circuit panel ruled former President Donald Trump's immunity ended when he left office.
"Even judges have some degree of immunity, so it shouldn't be surprising that presidents have some immunity. The question, as it is with senators and judges, is how much immunity — so it's a matter of degree."
The weaponization of law against Trump and political bias in the judiciary has become far too accepted nowadays, according to Dershowitz.
"We live in an age where nothing anymore is a matter of degree — everything is just pick sides," he said. "And this court picked sides and decided it was going to be part of the 'get Trump' mentality and write a very, very powerful opinion, one-sided opinion, laying out essentially the case against any immunity.
"And we'll see if the Supreme Court does the same thing."
Trump's immediate vow to appeal will potentially go to the Supreme Court, but that court will have a decision to make whether to weigh in before the trial brought by special counsel Jack Smith or allow the Washington, D.C., jury to set U.S. precedent by hearing the case Trump's legal team should be expected to make. Trump has long argued his 2020 presidential election challenge was a function of official presidential duties and therefore protected by constitutional presidential immunity.
"I suspect the Supreme Court will either deny review — which is very possible — or if they take the case, it will be very divided opinion," Dershowitz said. "It won't be unanimous, I don't think."
Ultimately, this fight playing out in the short term is about President Joe Biden's Justice Department pressing the case against his chief political rival Trump before the election — versus Trump fighting for stays on the case to delay the trial until after the election.
"Beat the clock — remember that television show? — that's what these judicial orders are all about: Whether or not you can get a trial before the election, or whether the trial will come after the election," Dershowitz said. "That's the name of the game."
The hearing before the D.C. Circuit Court made Tuesday's unanimous ruling obvious, according to Dershowitz, but both the Trump lawyers and the U.S. prosecutors "went too far" in their arguments for and against the basic tenets of constitutional presidential immunity.
"It's no surprise at all, everybody knew it would come down unanimously as soon as we heard the oral argument," Dershowitz said. "Both sides of the argument went too far.
"The Trump side went too far by suggesting that even if a president ordered the SEALs to kill his opponent that would be immunized. And the other side went too far by saying essentially, nothing is immunized."
The constitutional reality is somewhere in between, according to Dershowitz.
"I suspect the Supreme Court, if they take the case, will split the difference and say there are certain actions that are subject to immunity and others that are not," he continued. "The issue in this case now has really become timing, because the Court of Appeals has given a limited time to try to get a stay from the Supreme Court."
A stay would require five of the nine votes on the Supreme Court, while a mere review would require just four votes, Dershowitz said.
"So if the court gets four people to review the case, probably there will be a stay granted, but it's not certain," he concluded.
"It's facing pressure, but it, of course, can resist the pressure by simply denying review.
"Look, this is unprecedented on both sides. No president has ever been indicted after he left office, and no president has ever claimed immunity."
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