During the argument, the justices hammered Trump's attorney with tough questions, although Justice Samuel Alito, at least, appeared to be searching for a rationalization to grant Trump the immunity he wants. But all of that missed the point they were supposed to be deciding, Luttig argued.
"As with the three-hour argument in Trump v. Anderson, a disconcertingly precious little of the two-hour argument today was even devoted to the specific and only question presented for decision," wrote Luttig, who is widely regarded to be the father of the modern conservative legal movement. "The Court and the parties discussed everything but the specific question presented."
ALSO READ: ‘Fraudulent’: Trump tormentor Lincoln Project loses big money in cybertheft scheme
That one question, Luttig said, is "whether a former President of the United States may be prosecuted for attempting to remain in power notwithstanding the election of his successor by the American People. Thereby also depriving his lawfully elected successor of the powers of the presidency to which that successor became entitled upon his rightful election by the American People -- and preventing the peaceful transfer of power for the first time in American history."
The president, Luttig noted, has no role at all in the certification of his own election. "In fact, the Framers of the Constitution well understood the enormous potential for self-interested conflict were the President to have a role in these fundamental constitutional functions" — so they made sure the president did not.
Some legal observers have suggested the Supreme Court could seek a middle ground, finding the prosecution could move forward, but that Trump has immunity for certain "official acts" and the lower courts should sort through what those acts are. But even that is not necessary, Luttig wrote.
"Whether undertaken in his or her 'official,' 'candidate,' or 'personal' capacity, a President of the United States has never been and can never be immune from prosecution (after leaving office), for having attempted to remain in power notwithstanding the election of that President’s successor by the American People," wrote Luttig. "Consequently, there is no reason whatsoever for the Supreme Court to remand to the lower courts for a determination of which of the alleged criminal acts might have been personal and which might have been official."
Furthermore, he concluded, "it would be ludicrous to contend that the former president was not on sufficient notice that if he committed the criminal acts charged, he would be subject to criminal prosecution by the United States of America. To hold otherwise would make a mockery out of the 'plain statement' rule."
