The justices want to be able to draw a distinction so that a president obviously can be held accountable under criminal law in certain extreme situations. But then some of what he does simply has to be considered part of his core executive function and within his discretion.

If they go that route, they will try to formulate a legal rule that draws the line between what kind of conduct is protected from prosecution and what kind of conduct is not protected. There were many options for that line that were put on the table during the argument. It doesn’t seem to me there was one clear position or another favored at the argument. But if the justices do try to formulate a rule, I would not expect a quick ruling.

Isn’t there another scenario, where they don’t get into a complex description of what’s on this side of the line and what’s on that side of the line?

Several of the justices pointed out that even if they decided some of Trump’s actions were official and therefore protected by immunity, the trial could still go forward on what both sides agree are his private actions. Jackson made a point at the end, asking the Justice Department’s attorney whether there are enough private actions taken by the president that the case could go to trial simply on those? The attorney said yes.

Thinking about the role and power of the president, what’s the deeper meaning of today’s argument?

Today’s argument touches on the balance of power among Congress, the executive branch and the judiciary. Trump’s lawyer was arguing that the executive branch, for reasons of functionality, has to have some sphere in which it can operate alone and the judiciary has no ability to oversee what they do. The case also relates to broad questions about checks and balances and how the framers intended our government to function. In the background is the sweeping question about the rule of law, and whether or not certain individuals – including those who are charged with implementing that law and executing that law – are also subject to it.

George Washington was inaugurated as the nation’s first president on March 4, 1797. From then until now, the idea of a president violating criminal law has not been dealt with at the U.S. Supreme Court. What does that tell us?

It tells us one of two things. One, the system we have works. This is the argument that the Department of Justice was making, that the reason we haven’t been in the situation before is because we’ve never had a president like Donald Trump, either because Donald Trump is the type of character we’ve never had before or, alternatively, because presidents knew they would be subject to criminal prosecution and therefore were constrained in their behavior.

From the alternative side, of course, the argument is that we’ve never had this because nobody’s ever gone after a president with such political vehemence and nobody’s ever wanted to get rid of a president as badly as they want to get rid of President Trump. I think the obvious pushback would be that’s really not an accurate reading of American history. Plenty of presidents have been hated by their political opponents, who tried to get rid of them one way or another.

We are at a crux in history, where the intersection between the executive and the judicial branches is being stress-tested like it never has before. And my hope is that the judiciary performs its job and the system remains intact.

I wish there were a different vehicle through which the court could resolve this question and that it didn’t feel to so many people that the fate of our government, and the stability of our system, was on the line.

Is it?

It is if the court doesn’t do its job. If it does not make a clear, resounding statement that the president is not above the law, then I think we have a serious problem.

This article is republished from The Conversation, a nonprofit, independent news organization bringing you facts and trustworthy analysis to help you make sense of our complex world. It was written by: Claire B. Wofford, College of Charleston

Read more:
Can Trump be prosecuted? Supreme Court will take up precedent-setting case to define the limits of presidential immunity

When the Supreme Court said it’s important to move quickly in key presidential cases like Trump’s immunity claim

Trump’s arguments for immunity not as hopeless as some claim

Claire B. Wofford does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.