I am a simple minded person. I find the subtleties between a president acting in his official capacity and a president acting in his personal capacity too difficult to determine. I am not looking forward to court challenges after court challenges suggesting that a particular presidential act is one or the other.

One of the man points of pride that Americans have is when they look at the chaos that develops in so many parts of the world and are able to say “But we are a nation of laws”. It’s as simple as that. If a president is above the law…..we are no longer a nation of laws. What could be simpler to understand?

Now, the courts have dealt with questions of immunity and limited immunity, particularly when it comes to law enforcement officials for some time. Let me again be simple minded. If a law enforcement officer takes an action which, if taken by another person, would arguably be criminal, and he does it in the course of his occupational work, he has limited immunity……unless he does it knowing that he is wrong in doing it, and shouldn’t be doing it. Now, of course, it’s hard to look into someone else’s mind (in any criminal case), so you have to rely on a somewhat different standard. If the official should have known that what he was doing was illegal – because of his training, because of societal norms, because of other examples of which he was aware – that sort of thing – he can be guilty of a crime.

So go back to former president Trump. If he knew, or should have known, that he lost the election, and he was still trying to overturn the election, he is guilty of a crime. If he honestly believed that he won the election and that everything he was doing was legitimate, then – no crime. That’s the way I look at it.

But the Supreme Court doesn’t appear to be looking at it this way. The justices seem to be considering saying: if an action is in within the official duties of a president, he is immune from prosecution, no matter what. And that is what Trump’s lawyers are maintaining. That’s why they hope at least for a remand to a lower court to determine whether Trump’s actions leading to the January 6 riots were within his presidential duties. Or better, a blanket immunity determination.

This is why, both in arguing before the Supreme Court and in the lower courts, the lawyers say such outrageous things. If a president targets a rival for assassination, no problem; he is immune. If the president cancels an election; no problem, he is immune. If the president wants to ignore or change the results of a vote, no problem, he is immune.

In other words, I think the focus is all wrong. The idea of having individual District Court or Courts of Appeals judges trying to determine whether the assassination of a political rival is within one’s presidential duties could lead to all sorts of results – one judge says yet, one says no, it goes to the Supreme Court, whatever the Supreme Court says is viewed as political, and we are no longer a nation of laws. It is that simple.

Instead, the Court should be focusing on whether Trump knew or should have known that his conduct was illegal. Again, it is that simple. This morning’s New York Times front page says something similar. I think they got it right.

A guest on Lawrence O’Donnell last night put it a different way. Even more basic and frightening. By even considering the arguments in the way they are considering them, she declared that the Supreme Court is moving outrageous positions which should be ignored into the mainstream. That no matter what the Court decides, these positions can now be part of the American political debate and that that, in and of itself, harms our democracy.

There’s a lot to think about here. Think about it.