The United States Supreme Court seems poised to give Trump the second biggest gift it can give him – ruling against his position.

Trump maintains that his actions in and around January 6th were “official presidential duties” and thus entirely protected by presidential immunity – arguing that he cannot be prosecuted on the facts – at least not with these charges. The Supreme Court – like the lower courts before it, will likely not buy such an argument because it can be taken to absurd logic in the future.

What the Supreme Court can do is send the case back down for further fact-finding – which were presidential acts and which were not (even if none were official acts). In effect, it would give Trump the victory he needs, sending the case back to a situation where voters go to the polls without knowing whether Trump committed a crime in the period between the election and January 6th and offering Trump a position where he could pardon himself, should he win.

Trump would, of course, prefer to be immune from everything and have the case thrown out. But one justice, Justice Amy Coney-Barrett, questioned Trump’s attorneys in a manner that leaves one doubting that she will rule on Trump’s behalf.

Many legal experts agreed that Coney-Barrett is leaning against Trump. Former federal prosecutor Shanlon Wu noted:

“From her questions, it did seem that she was not buying into a complete immunity, meaning you can’t consider anything about it. She was sort of interested in exploring whether these same immunity arguments are more appropriately raised, perhaps as trial defenses.”

“I don’t think you’d get a majority completely siding with Trump that you simply can’t bring the case, period. I think it’s more likely if they side with Trump, they’d send it back down.”

Neama Rahmani told Newsweek that he believes the system already works sufficiently well with respect to immunity questions – which often come up with police immunity. Police (and judges) who act in their official capacity are immune (with some exceptions) those with a personal agenda have no immunity. In such cases, the trial court judge can be trusted to sort through various acts if the appellate court has determined that at least some actions fall outside official immunity:

“I think the justices will send the case back to the lower courts to determine whether the fake electors and events leading up to the Capitol riots were official acts.”

Yes, but this can often be done as part of the trial – given this case has already been appealed to the DC Circuit – and not necessarily separately and before the trial. Of course, presidential immunity has never been litigated at this level – the Nixon case is not direct precedent.

Steven Mazie, a journalist who covers the Supreme Court for The Economist, wrote in a post to X (formerly Twitter).

“There seem to be four votes mostly against Trump—the four women. Kavanaugh is seemingly not in play. This is going to come down to Chief Justice John Roberts, who will write the opinion. What he’ll say, not so sure.”

Anthony Michael Kreis, a constitutional law professor at Georgia State University, posted:

“Amy Coney Barrett is not having it with Donald Trump today.”

Again, by “not having it,” Kreis means that Coney-Barrett is inclined to send the case down with a “Go” instruction, whereas the justices “for” Trump want to grant the delay in having the trial judge determine which acts constitute official acts and which don’t before any trial could commence – granting Trump all the delay he needs.

This is ironic since none of the four earlier judges to hear the argument, U.S. District Court Judge Tanya Chutkan, nor any of the three judges on the DC Circuit Court of Appeals had any trouble saying Trump had no immunity in that none of the charged actions fell under presidential duties.

Attorney and MSNBC host Ari Melber wrote:

“Trump appointee Barrett sounds skeptical of one of Trump’s made-up arguments that has no precedent – that Congress must impeach and convict a President, but not other officials, before any DOJ prosecution.”

Coney-Barrett, normally a reliably conservative justice, could be the key to the direction of the case. Chief Justice John Roberts and Justice Brett Kavanaugh could be persuaded either way as institutionalists who know that none of these acts are likely officially presidential but were done on behalf of the campaign.

Two wildcards make Coney-Barrett’s surprising animosity toward ex-President Trump’s argument that much more surprising and that much more important.

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Jason Miciak is Executive Editor of Political Flare and Editor at Large of Occupy Democrats and can be reached at [email protected]