Like many people, I suspect, I was toggling between the New York trial and the oral argument on Trump’s immunity defense this morning. As to the former, the prosecution did a good job, through David Pecker, of showing the jury how catch and kill worked and how Trump was personally involved. I will admit, however, that even I couldn’t imagine that Trump would congratulate Pecker for the success of the scheme in front of James Comey. That tells you everything you need to know about how Trump thinks the federal government works.
The oral argument, on the other hand, was awful. First of all, the Supreme Court should never have heard this case, as the D.C. Circuit wrote a perfectly good opinion. Second, the argument should have focused on whether the specific immunity claim raised by Trump was supported by text in the Constitution, legislative history, or case law (spoiler alert–it isn’t). I didn’t see any of that in the discussion. Instead, the reactionaries on the Court seem to be determined to write some sort of new broad immunity rule into the Constitution based on nothing except their individual views about how American liberal democracy should work; in other words, they want to be the Founding Fathers, not the interpreters of text, even though they claim to be textualists.
In addition, the coming decision is more likely than not to delay the Trump trial to the point that it cannot happen before the election. This is the judicial equivalent of catch and kill.