From The Wall Street Journal:

You can’t say the current Supreme Court lacks courage. The safe political play for the Justices would have been to dodge the issue of Donald Trump ‘s immunity from prosecution. But recently they decided to hear his appeal on the merits of the law and presidential power, though a ruling is sure to infuriate one side or the other.

Democrats were hoping the Justices would pass on the case and let the recent D.C. Circuit Court of Appeals ruling against immunity stand. But as we warned on Feb. 7, the sweeping and dismissive nature of the D.C. Circuit ruling made it more likely that the High Court would take the case. And here we are.

The Supreme Court put the question it will hear on appeal this way: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

A key part of that sentence is “alleged to involve official acts during his tenure in office.” In denying immunity, the trial judge and the D.C. Circuit panel blew past that point as if it didn’t exist. Yet that was a core part of the Supreme Court’s precedent on presidential immunity in Nixon v. Fitzgerald in 1982.

That was a civil case involving a lawsuit. But the Court clearly wants to consider whether that precedent applies to criminal prosecutions as well. The Justices in Nixon ruled that a former President had “absolute immunity” from lawsuits for official acts within the “outer perimeter” of his official duties, lest they make it impossible for a President to fulfill those duties while in office.

If a rush of lawsuits could be crippling to a Presidency, what about the threat of post-presidential prosecutions? The D.C. Circuit opinion suggested that this would be no problem for future Presidents because Mr. Trump poses a unique threat to the rule of law. But is the threat of jail less serious than the threat of civil liability?

Once the precedent of prosecuting a former President has been set, as it has by special counsel Jack Smith, why wouldn’t future Justice Departments do the same — starting, perhaps, with former President Biden in 2025? Mr. Trump has already said “Joe would be ripe for indictment.” The statute books are full of laws that a partisan prosecutor might exploit. The immunity question is important far beyond Mr. Trump’s fate.

It takes only four Justices to grant a writ to hear a case, so it isn’t clear how the Justices will come out. But there were no dissents on the order and it directed the D.C. Circuit to delay returning the case to the trial court until the Supreme Court rules. That suggests there are several Justices who want to clean up the appellate court’s legal overreach and consider whether Mr. Trump is immune from prosecution for acts that involve his official duties.

If the Court rules that Mr. Trump has some immunity from prosecution, it is likely to remand the case to the trial court for a factual finding on whether Mr. Trump’s alleged criminal acts were part of his official duties. That would take weeks and delay the trial until past the election or into 2025.

Even if the Court rules against Mr. Trump on immunity, the trial judge has suggested she’ll give the parties about three months to prepare for trial. That takes the start date into September. Will Attorney General Merrick Garland support a trial against a presidential candidate running against the AG’s boss only weeks from Election Day? This would fly in the face of Justice Department rules that advise against such politically consequential prosecutions close to an election. It might backfire politically too.

All of this underscores why prosecuting Mr. Trump as a political strategy was so unwise. The former President’s attempt to overturn the 2020 election was despicable, and it’s a strong reason to deny him so much power again.

But the lawfare strategy has already helped Mr. Trump win the GOP nomination. Now the most consequential case may be delayed past the election. The Manhattan hush money trial is set to begin on March 25, and Mr. Trump might be convicted by a Manhattan jury. But that case itself is so jerry-rigged and partisan that most voters might ignore it.

The Supreme Court will be attacked no matter how it rules, and former House Speaker Nancy Pelosi has already declared that “the Supreme Court is placing itself on trial” by hearing the appeal. No, the Court is doing its job to protect the constitutional order after Democrats decided they couldn’t trust the voters to defeat Mr. Trump.

The Wall Street Journal