Your Questions About The Immunity Opinion

Tonight, I’m answering your questions about the Supreme Court’s opinion in Trump v. U.S. There were a lot of good ones, so I tried to select a few that were asked repeatedly.

How soon can Judge Chutkan hold additional proceedings in the District of Columbia case now that the Supreme Court has decided the immunity issue?

Courts can only take action when they have jurisdiction over a case, and frequently, when a case is on appeal, the trial court loses its jurisdiction. That’s the situation here. So Judge Chutkan has to wait until the Supreme Court returns jurisdiction to her before she can take any action.

That process is usually referred to as “issuing a mandate,” which is just a fancy way of saying that the appellate court sends the trial court notice of its decision and restoration of jurisdiction to take any necessary additional steps in the case. There is a slight twist when we’re talking about the Supreme Court returning a case to a federal court. Under the rules, issuance of a formal mandate isn’t necessary unless it’s specially ordered, which doesn’t seem to have happened here. So it’s technically correct to say that the “judgment” will issue here, not the “mandate.” You’ll hear a lot of lawyers refer to this as issuing the mandate, nonetheless.

When does the judgment issue? Under the rules, parties have 25 days to seek rehearing of a decision by the Supreme Court. The judgment, or mandate, issues seven days after that deadline. So, we can expect jurisdiction to be returned to Judge Chutkan 32 days after the Supreme Court issued its decision, which should be on Friday, August 2. After that, she is free to hold a status conference to determine how the case should move forward or schedule a hearing.

In the class of presidential conduct where presumptive immunity applies, the government can overcome the presumption by establishing that a prosecution won’t impair a president’s performance of his official functions. Since prosecutors, because of the Office of Legal Counsel Memo, can only indict a president after he’s out of office, how could a prosecution, and specifically Trump’s, impair his performance of official functions since he is no longer the president?

This is a great question, and I have to give you one caveat before answering it: the Supreme Court’s answer isn’t mine, and I don’t like it. They’re focused on theoretical future presidents, not on Donald Trump.

The Majority opinion refers to the situation with Trump as “transient.” They write, “This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency?” Chief Justice Roberts notes that, “[I]n addressing that question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies. In a case like this one, focusing on ‘transient results’ may have profound consequences for the separation of powers and for the future of our Republic…Our perspective must be more farsighted, for ‘[t]he peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.’”

That’s how the Supreme Court of the United States ducks responsibility for letting a would-be insurrectionist escape some or all of the consequences of his conduct: with an appeal to preserving the separation of powers. The Supreme Court can’t afford to “fixate” on Donald Trump, a mere “present exigency.” They leave that up to politicians and the public at large, as though focusing on the fact that the defendant before them is a former president who tried to overturn an election is beneath the consideration of this Court.

Instead, their concern is that a future president might be chilled from taking the “bold and unhesitating action” required of an independent Executive. That’s more important than holding former president Donald Trump accountable for the criminal conduct he aimed at the heart of the Republic. Chilling boldness is the impairment of a president’s performance of official functions that the Majority is more concerned with.

Will the immunity decision have any impact on the Mar-a-Lago classified documents case?

Trump was no longer president when he committed the crimes he’s charged with in the indictment in the Southern District of Florida. He’s charged with possessing the documents in Florida, not with taking them out of the White House. And the obstruction charges occurred entirely after he left office.

But, the Judge in the Florida case is Aileen Cannon, so we can expect lots of delay and some convoluted reasoning when she rules. The Supreme Court’s decision gives judges a lot of latitude—and very little guidance—for deciding what constitutes official conduct. It’s not hard to imagine some pretzel logic decision-making that suggests that because charges about the possession of classified documents go to a president’s core constitutional duties, Trump is entitled to immunity and can’t be prosecuted.

None of this is legally valid. Trump left the White House and returned to Florida. He possessed boxes of classified documents in his Mar-a-Lago home and refused to return them to the government when asked to do so, taking deliberate steps with his co-conspirators to conceal them. There was no performance of official duties involved. In fact, hiding classified documents the government wants back because they’re critical to national security seems to be the opposite of performing official duties. So we will wait to see what Judge Cannon does, but there is the potential for her to try to use this to end the case.

Something else to look for in the Mar-a-Lago case is whether Justice Thomas’ concurrence will make an appearance. It addresses, seemingly from out of nowhere, an issue Trump has raised in the Florida case. That issue involves whether or not the Special Counsel was lawfully appointed, and we’ve recently discussed the two days of hearings, including oral argument from amicus, that Judge Cannon entertained.

Justice Thomas wrote, “I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been ‘established by Law,’ as the Constitution requires.”

Justice Thomas has conveniently provided Judge Cannon with some additional support for Trump’s argument. Justice Thomas is only one of nine and none of his brethren and sistren signed onto his opinion here, so this is not the majority’s view of the law. But it seems far too coincidental for the Justice to have raised this issue, which has risen to prominence in the Florida case but played little if any role in the matter before the Supreme Court, unless he meant it as a flag to Judge Cannon.

We’ll stop here for tonight, since I know I tried your patience with last night’s lengthy column. Please leave any questions you have in the forum. I’ll try to take on more of them later this week.

I continue to believe Civil Discourse readers are some of the smartest, most engaged people around. I submit this astute comment as proof.

We’re in this together,

Joyce