Presidential Immunity

Today, we focus 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.

Lucky me alongside two legends, former acting solicitor general Neal Katyal and NBC’s Andrea Mitchell

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.

Today’s 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.

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We’re in this together,

Joyce