[Yesterday,] we focused on Trump’s appeal to the Supreme Court
after Judge Chutkan denied his motion to dismiss the Special Counsel’s election
interference case, claiming he has absolute immunity from criminal prosecution
as a former president.
It was a sobering experience, even with a Court that has shown a
propensity to abandon first principles, precedent, history, common sense, and
the good of the American people when their political allegiances demand it. The
outcome of the case is far from certain. The argument was disheartening.
I had the interesting experience of commenting on the argument
on location, in the “Senate Swamp,” which is across the street from the Court. The
location came complete with a protestor who loudly yelled “fake news” at us for
several hours, a sign of the times.
This is a court that’s concerned with future presidents and the
rules that guide their conduct as much as they are with Trump. In fact, the
argument was oddly devoid of mention of the former president by name. Usually,
an oral argument focuses on a defendant and his conduct.
Not so here. This was all about future presidents and how they
would execute their constitutional duties. The six conservative Justices left
Donald Trump on the periphery for the most part, with the possible exception of
Justice Amy Coney Barrett.
But make no mistake about it. The case is all about Donald Trump and whether he can be
prosecuted for the most serious of his crimes against the American people,
trying to hold onto power after losing the 2020 election. It’s also about the
legacy of the Roberts Court and whether history will view the already unpopular
Justices as the Court that gave away democracy.
A big question is why Clarence Thomas, whose wife was involved
in January 6, decided it was appropriate for him to participate in this case
and why no one intervened. His presence on the bench today was a blot on the Court and the rule of law.
We are forced to set that one aside for the moment. There is a possibility he
could be part of a 5-4 majority that gives the former president a reprieve from
prosecution.
After the dust cleared, it seemed that the three progressive
Justices, Sotomayor, Kagan, and Jackson, and to a lesser extent perhaps,
Justice Amy Coney Barrett, were interested in finding a path forward that would
clear the way for prosecution.
Despite some early questions that suggested they weren’t buying
absolute immunity, as the argument developed, it became increasingly clear that
Justices Alito, Gorsuch, and Kavanaugh were all willing to throw Trump a
lifeline in some shape or form.
Kavanaugh dug in on a pro-Trump argument that says a former
president can’t be prosecuted under any statute that doesn’t explicitly say the
president can be prosecuted, an argument that has the effect of de facto
immunity since few statutes do. Justice Gorsuch joined in to make the point
that an obscure statute, 18 U.S.C.
1607, expressly provides for prosecuting the president.
It reads, in pertinent part, “It shall be unlawful for an
individual who is an officer or employee of the Federal Government, including
the President, Vice President, and Members of Congress, to solicit or receive a
donation of money or other thing of value in connection with a Federal, State,
or local election, while in any room or building.”
The overwhelming majority of statutes don’t, for the obvious
reason that once a president leaves office he’s a private citizen and there is
no need for the inclusion.
But it became clear this was a significant issue for several of
the conservative justices who engaged in pearl-clutching over how broad the
statute Jack Smith used to charge Trump with conspiracy to defraud the
government, 18 U.S.C.
371, is.
The Special Counsel’s office argued in its brief that Trump was
not entitled to absolute immunity and that even if there was some small scope
of immunity for a president’s official acts, it clearly did not apply to
Trump’s conduct. Jack Smith’s office reasoned that meant that applying first
principles, the Court should not decide issues that were unnecessary to resolve
the case in front of it and should remand the case to Judge Chutkan for
pre-trial proceedings to recommence.
That doesn’t seem to be how this will go, although it can be
notoriously difficult to read the tea leaves in oral argument, where the
Justices sometimes appear to be arguing the case as much to each other as with
the litigants.
One concession came from the Trump side early in the argument,
with Trump lawyer John Sauer agreeing that there was no immunity for private
acts committed by a former president while in office. The absolute immunity
they claim is for official acts, not private ones.
In this case, the distinction amounts to that between official
acts taken by President Trump and private ones taken by candidate Trump. That
is an approach that is appealing in some ways.
The Special Counsel had argued in his brief, as a fallback
position, that the indictment alleged sufficient private conduct to prosecute
Trump on even if they lost all of the official conduct.
They maintained they were entitled to use certain acts that the
Court might view as official—like the effort to subvert DOJ by appointing a new
Attorney General or the pressure campaign on Mike Pence—as evidence of Trump’s
knowledge and/or intent.
They agreed today that
if this happened, the jury should get a limiting instruction, telling them they
could not consider that evidence as part of the charges but only as evidence of
Trump’s state of mind.
After the briefs were in, that seemed like the Special Counsel’s
rock bottom worst-outcome in the case. Not ideal, but certainly a position that
would let them proceed to trial with the scope of the charges narrowed but
still capturing significant criminal conduct.
But, after today’s
argument, it’s clear that isn’t the worst outcome that is on the table. Early
in the argument, Justice Sotomayor proposed the notion that a former president
might get some limited immunity for official acts that were undertaken to
protect the country, like Obama’s anti-terrorism strikes, as opposed to Trump’s
actions, whose only beneficiary was himself.
She pointed out that immunity means no prosecution for conduct
committed for purely personal gain. That logical notion got no traction during
argument.
Even Justice Alito, at one point early on, suggested an
objective test rather than absolute immunity. He questioned Sauer about his
claim immunity was essential to the functioning of the presidency, asking
whether “full immunity” was really necessary or whether he’d agree to a rule
that allowed prosecution for official acts unless no plausible justification
could be imagined.
Sauer agreed that might be better than the distinction between
official and private conduct, despite having conceded already that there was no
immunity for private conduct. Of course, Alito’s objective standard is in the
eye of the beholder, and as slick as some of the Justices have become, perhaps
they could “imagine” a “plausible justification” for everything Trump has done,
again bestowing de facto immunity.
The one place where it appeared Trump was likely to lose was on
his argument that a former president must be impeached and convicted before he
can be prosecuted for an official act. Although five votes might be there, we
didn’t hear that today.
But it wasn’t smooth sailing for the government beyond that.
All paths seemed to lead to the bad place. At what looked like a
four-four split the vote of the Chief Justice seemed to be the one that is in
play. And he was difficult to read. On the one hand, would he truly want to
sign off as the last majority vote on an opinion that would be so damaging to
the rule of law he has always claimed to stand for?
But on the other, he didn’t take the strong stand for the rule
of law and the executive branch’s power of prosecution you might expect if he
was aligned there. For instance, while Justice Jackson opined that any conduct
committed by candidate Trump could clearly be prosecuted and it was essential
to have a check on a criminal president or in the future, the Oval Office could
be reduced to a hub for crime, Justice Gorsuch seemed more concerned with the
possibility prosecutors might abuse their power.
Michael Dreeben, arguing for the Special Counsel and the Justice
Department, pointed to the layers of checks on prosecutorial power, from the
need to persuade a grand jury to indict, to the role of the trial judge in
calling balls and strikes, to the decision of a jury, and on to the
multi-tiered appellate process.
But Gorsuch didn’t seem interested. In fact, every time Dreeben
tried to respond to questions they asked him and began to score points, they
seemingly lost interest, never permitting him to get in a full answer.
He also argued presidents have access to extraordinarily good
legal counsel from their attorney general, who could help them decide whether a
course of action was legal before embarking on it and are otherwise protected
from abuse by judicial construction of statutes and the availability of
defense, like one called public
authority, again being cut off before he could make his full
argument. The Chief Justice was nowhere to be seen in any of this.
[The]
argument got way down into these legal weeds. One theme emerged: the likelihood
that whatever the ultimate majority in the case looks like, it’s very likely
that it will involve crafting rules about the scope of immunity.
That could mean sending the case back on remand, Sauer suggested
to the trial court, for a decision about whether or not, on the facts in this
case and given whatever rule the Supreme Court lands on, Trump is entitled to
immunity.
And that, of course, would take more time. Delay is a win for
Trump, putting the case out of even theoretical reach for prosecution before
voting starts, since Judge Chutkan has already told Trump he has at least 81
days left on the clock for trial preparation after jurisdiction is restored to
her.
We don’t know for certain where Chief Justice Roberts is and how
he will vote. But if this comes to a decision that some conduct does get
immunity and the trial judge must make those rulings, there is one possible
silver lining. Judge Chutkan could hold an evidentiary hearing on remand to
facilitate her decision.
That would mean briefs and even live testimony where the
government would get to lay out all of its evidence against Trump.
It’s not a full trial followed by a jury verdict. But if this
case isn’t going to trial, it would be one way of getting more information
about Donald Trump’s conduct out for public consumption.
The House January
6 committee hearings gripped the nation. The Special
Counsel, with access to the powers of an investigative grand jury and the
possibility of more cooperating witnesses, especially from other charged cases,
would have an even larger story to tell.
When it comes to delay, there was an interesting filing in
Mar-a-Lago today.
Trump’s lawyer, Chris Kise, notified the
court he would be out for surgery from April 29 to May 14.
His absence will likely delay the CIPA Section 5 proceedings
over classified information and its use at trial. More delay. Sometimes delay
is legitimate and unavoidable. Set your expectations accordingly.
Near the end of today’s
argument, Justice Jackson put all the cards on the table, suggesting the Court
should just answer the question they took the case on: Is a former president
entitled to immunity for criminal acts committed while president, and if so,
what is the scope of that immunity?
It would be the right way to resolve the important question the
nation faces. Sadly, it doesn’t seem like where we’re headed.
Enormous thanks to those of you who, through your monthly and
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We’re in this together,
Joyce Vance
