At issue is whether Trump can be criminally charged for efforts to overthrow the 2020 election and for encouraging the attack on the U.S. Capitol, or whether his position as president at the time protects him from it.
The law states that Trump is protected only for official actions taken as president. Trump has attempted to claim that, as president, he had a duty to ensure that the election was legitimate.
Writing for Just Security, legal analysts Ryan Goodman and Andrew Weissmann crafted a list of questions that they suggested the High Court ask the two sides as part of Thursday's debate.
Among the things they said they'd ask Trump's lawyers is the so-called "SEAL Team 6" argument that surfaced during the arguments before the Washington, D.C. Court of Appeals. In that debate, the panel asked if a president could order the infamous Navy special operations team to kill someone.
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In this case, the lawyers were more blunt: “Would President Biden be free to order the assassination of a political rival if the president felt his opponent was a threat to democracy?”
Other questions include hypotheticals like whether a president could impound voting machines under the guise of "official duties" to impact an election result.
Another group of questions alludes to the delay that the Supreme Court appeal has added to the election interference trial. As it stands, the case likely won't be decided before the 2024 election.
"Why shouldn’t we lift the stay immediately following oral argument with an opinion to follow, as we have done in the past?" they think SCOTUS should ask of Trump's lawyers. Also, "why should we not decide this case as expeditiously as possible?"
In that same vein, the lawyers suggest asking the government's side, "Are you trying to hold a trial and reach a verdict to inform American voters in the presidential election? If not, what legitimate reason do you have for there to be a speedy trial before the election? Before the inauguration?"
Similarly, they wondered if it wouldn't be worth discussing that the defendant could become immune or "otherwise evade criminal prosecution after a certain date. Would the Justice Department have an interest in trying the individual before that date?"
Special counsel Jack Smith had asked the Supreme Court to take up the case and bypass the Appeals Court, stressing the importance of the timeline and knowing that it would likely be appealed to the High Court anyway. The justices refused, telling Smith to go through the normal process.
Read the full list of questions here.
