Last week, the U.S. Supreme Court heard oral arguments on yet another momentous legal issue – this time, the claim of absolute immunity from criminal prosecution for claimed official acts by former President, Donald Trump who faces, among other charges, four criminal counts involving conspiracy to defraud the government, disenfranchise voters, and obstruct the official electoral count on or around January 6th of 2020. In the course of those oral arguments, the Court prompted the advocates to address a broad spectrum of hypotheticals: What if President Obama had been charged in the deaths of American citizens in connection with anti-terrorism attacks? What if President Biden were to be charged with accessory to murder in the crimes committed by undocumented immigrants? And, of course, what if a President ordered Seal Team Six to murder his political rival? Hypotheticals like this, of course, can play an important role in testing the advocates’ logic and asserted law. At the same time, a focus on events that haven’t occurred can prove to be frustrating for observers, some of whom claimed that the Court seemed to be placing far more importance on these counterfactual scenarios than on the very factual scenario that played out after the last Presidential election.
As law students typically learn early on, hypotheticals are a proper part of legal argument, and there are some practical considerations for handling those hypotheticals. At the same time, they require some special handling. In order to keep the decision-makers engaged and oriented, and to avoid spiraling down a rabbit hole, it helps to make sure that the analysis of hypotheticals is grounded and firmly connected to the point at hand. For both advocates in oral argument as well as fact and expert witnesses, I think there is a good process for addressing the hypothetical question. In this post, I will outline three steps.
Step One: Answer the Hypothetical (If It Can Be Answered)
The first step is to answer. Whether it is a judge asking an advocate or an advocate asking a witness, it is important to not dodge (“…what’s important is…”), not fight the hypothetical (“…that wouldn’t happen”) and to not default to uncertainty (“…it’s hard to tell…”). Instead, answer the question on its own terms. But be aware that “it depends…” might be a completely acceptable answer, as long as you are making clear what conditions it would depend on.
Question: So under this reading, a President ordering the assassination of a political rival would be immune from prosecution?
Answer: Yes, under the petitioner’s tortured reading, as long as that act involved the President’s command of the military, that kill order would be an official act that their interpretation would render immune from prosecution.
Step Two: Relate the Answer Back to the Larger Point
Hypotheticals do not tend to be meaningful for their own sake, but instead serve a larger purpose. The point is less about testing the specifics of the counterfactual scenario, and more about advancing a larger and more abstract point. In the case of the above question, the larger point is that Presidential immunity for official acts could serve to raise the executive above the very laws that this office is supposed to enforce, and to create a path for despotism within the U.S. Constitution.
Answer (continuing): That underscores the real danger of the petitioner’s position. Whether a future President would or wouldn’t abuse that power, it is simply untenable that the framers of the Constitution, fresh from a war against George the Third, would have intended to vest our own executive with that kind of impunity.
Step Three: Return to Your Ground
During any questioning, the goal is to answer in a way that gets you back to your home base. While job one is to answer, the goal is ultimately to get back to your main point. For advocates and witnesses, it is good to think of it as a pivot: Once the inquisitor has gotten the answer they sought, and once that answer is related to the larger point of the question, the final step is to bring it home to your own talking point and your purpose.
Answer (concluding): This underscores our position that any claim of criminal immunity for the executive needs to be grounded in explicit guidance in legislation or the Constitution, and that where — as is the case in the indictments at issue — there is no such explicit guidance, the Court would be exceeding its powers in creating that immunity.
As of this writing, we have plenty of prognosticators, but no clear signs yet of what the Supreme Court will do with this argument, or how it will influence the future trials of Donald Trump. But one thing that is not hypothetical is that legal advocates and witnesses will need to engage with hypotheticals. The key is to pin them down.
Image credit: Shutterstock, used under license
