I argued in a blog post on Sunday, April 21st that Special Counsel Jack Smith lacked defendant standing to defend the U.S. government's victory in the D.C. Circuit, in the case of Trump v. United States. I pointed out that all nine justices, themselves, must ask the lawyers who argue both sides of Trump v. United States whether Jack Smith has standing to defend the D.C. Circuit opinion given that his appointment as Special Counsel was unconstitutional. Jack Smith lacks standing to defend the D.C. Circuit's decision in Trump v. United States every bit as much as I lack standing to defend that decision. Jack Smith is a private citizen in the eye of the law.
I want to argue in this post that disposing of Trump v. United States on jurisdictional grounds is a far better way of deciding Trump v. United States than would be wading into the constitutional morass of trying to decide on the merits, which actions that a President takes while he is in office he can be prosecuted for, and which he cannot be prosecuted for. This is a very fraught question of U.S. constitutional law that is best left unanswered, unless the facts of a live case or controversy imperiously demand that the Supreme Court decide it.
Many will believe that the answer to the presidential immunity question depends on whether the president is "corruptly" exerting the power of the office of the President of the United States or whether he is engaged in "non-presidential activities". If President Biden corruptly accepts bribes, paid to his son Hunter, in exchange for altering U.S. policy in Ukraine or towards China, many will believe that is an act that he could be prosecuted for. When President Barack Obama ordered the killing of a known terrorist by a Predator Drone Strike, which accidently led to the death of a U.S. citizen who was physically near that terrorist, President Obama could not be prosecuted for that act because the death of the American citizen was an unintended consequence of President Obama's legitimate exercise of his executive power as Commander in Chief. If President Biden were to walk out of the White House and shoot some random person walking down Pennsylvania Avenue many will believe that would be a crime that he could be prosecuted for.
