Friday Round Up! 12/1/23

Trump just got benchslapped. Twice.

I’ve got a spring in my step this morning. And not just because it brought me oodles of joy to see George Santos expelled from the House. It’s because Trump’s claims of “absolute immunity” from both civil and criminal liability for his actions on January 6 were shot down yesterday, within hours of each other. On the first issue, the D.C. Court of Appeals, in a unanimous opinion written by Judge Sri Srinivasan, found that Trump’s speech exhorting his mob to march to the Capitol was not within the “outer perimeter” of his official presidential duties and therefore did not shield him from civil liability for injuries that resulted from it. The court rejected Trump’s analogy to a prior Supreme Court case, Nixon v. Fitzgerald, in which a former government employee sued President Nixon for eliminating his job after the emnployee gave unflattering congressional testimony. The court noted that Nixon’s actions fell within a sphere that was a natural extension of his presidential authority and duties and that was why he was immune from liability.

By contrast, Trump’s actions were undertaken in his private capacity, not his official capacity, because he was seeking reelection. On this point, the court invoked Clinton v. Jones, which found that purely private conduct would fall outside of this sphere and would not shield a president from liability. (I had to laugh that the principles of Clinton v. Jones came back to bite Trump in the butt.) The court also rejected Trump’s argument that his speech was an official act because he was speaking on a matter of “public concern,” making a distinction between the topic of his speech (the validity of the election) and the capacity in which he was making it — which, again, was personal. (On this point, the court hoists Trump by his own petard, citing to his own filing in the Supreme Court challenging Pennsylvania’s electoral results, in which he stated that he was “intervening in his personal capacity.”)

The appellate court’s reasoning was a death knell for the novel argument Trump was trying to make in his January 6 criminal case, which was that the “outer perimeter” immunity that the Court articulated in Nixon extended to criminal cases, as well. But Judge Tanya Chutkan was having none of it. She noted that the interests at stake in Fitzgerald — which was to avoid “chilling” the president’s exercise of his official duties out of fear of future liability — were inapplicable in the criminal context: For one thing, the higher mental state required for the commission of a crime made the possibility that a president would somehow inadvertently commit a federal crime in the course of his official duties all but impossible — as she noted, “Every president faces difficult decisions; whether to intentionally commit a federal crime is not one of them.” In addition, Chutkan notes, unlike in civil cases, where a president could be sued by countless parties, a federal indictment could only be brought by the U.S. government, and only once for the same conduct because of the prohibition on double jeopardy. Finally (and this was my favorite), Chutkan notes that the various procedural safeguards at every stage of the criminal justice system, unlike in a civil context, protect a putative presidential defendant from frivolous or politically-motivated prosecutions.

Chutkan went on to emphasize that by contrast, the public interest in allowing the criminal prosecution to proceed was significant — this time invoking United States v. Nixon, which concerned Nixon’s failed claim of executive privilege over the criminal subpoenas of his Watergate tapes. I especially liked her separation of powers argument here: Chutkan notes that Congress decided to criminalize the conduct that Trump engaged in, demonstrated the seriousness with which it viewed these acts (as opposed to, say, providing only civil liability for it). Chutkan observed that creating absolute immunity for the president for these acts would impinge on Congress’ (and the Judiciary’s) interest in the administration of justice. Finally Chutkan disposed of Trump’s claims that that his acquittal during impeachment precluded criminal indictment, as well as his First Amendment and double jeopardy claims. Basically, this was our court system to Trump yesterday:

I have to say that it seems fitting that both the civil suit and the criminal case against Trump for his actions on January 6 were brought under post-Civil War-era statutes that intended to curb civil rights abuses by the Ku Klux Klan.

The other big news this week was that Trump’s gag order in his New York civil fraud case was reinstated, which prevents him from continuing to attack court staff in that case. In last week’s podcast, Renato and I discussed the merits of the appellate argument made by Trump’s lawyers on the federal gag order by Judge Chutkan, which was broader than the New York one and encompassed prosecutors and witnesses, and what the likely outcome will be there:

My articles this week:

• My piece for CAFE Insider on Musk’s lawsuit against Media Matters and the (more interesting and important) lawsuit by 33 state attorneys general against Meta for its deceptive and illegal trade practices. (We discussed the latter in last week’s office hours)

• This is from a few months ago, but it is my quick and dirty primer for Just Security on the difference between Title I and Section 702 of FISA, which often get conflated. It is worth a read before the “Section 702 for Dummies” talk with George Croner on Tuesday (see below!)

Other articles worth reading:

• This New York Times piece about an indictment brought by the Southern District of New York against an Indian national connected to Indian intelligence who was plotting to assassinate a Sikh activitist in the United States. This comes on the heels of Canada’s recent accusation against India that it was connected to an assassination of a Sikh community leader in that country. We should pay attention as it looks like Modi is following Putin’s playbook…and as I have said before I think India is only slightly farther along with path to authoritarianism than we are

• Speaking of authoritarianism, this really alarming and depressing piece in The Washington Post by Robert Kagan of the inevitability of a Trump dictatorship, should he be elected to a second term (a.k.a. for life)

Upcoming events:

• NEXT WEEK! “Section 702 for Dummies,” Tuesday, December 5, 4 p.m. EST: You asked, I answered. Former NSA litigation counsel and current fellow at the Foreign Policy Research Institute, George Croner, will join us to explain Section 702. George speaks to my National Security Law class every year and breaks down exactly what Section 702 is and what it isn’t so that you can follow the debate as we inch closer to the expiration of this critical surveillance tool at the end of this year. Zoom link will be sent to paid subscribers at 1 p.m. The talk will be recorded and posted the following day.

• Wine & Fries Club, Sunday, December 10, 8 p.m. EST: I am SO excited that I will be hosting a holiday Wine & Fries happy hour withMary L Trump, author of theThe Good in Us by Mary L. Trump Substack and the amazing Backstory Serial! I always love talking to Mary and getting her thoughts on the Donald and everything else going on in the world. I hope you can join us! Zoom link will be sent to Wine & Fries members at 5 p.m.

• NEW! Holiday Happy Hour, Wednesday, December 27, 5pm EST: In lieu of office hours for December, I want to do a fun happy hour for paid subscribers! NO TRUMP TALK. Just fun conversation about the holidays and plans for the New Year! Zoom link will be sent to paid subscribers at 2 p.m.

• January, Wednesday, January 17, 12 p.m.: Freedom Academy Book Club with by Scott Shapiro, author of Fancy Bear Goes Phishing: The Dark History of the Information Age, in Five Extraordinary Hacks. Zoom link will be sent to paid subscribers at 9 a.m. The talk will be recorded and posted the following day.

Hope to see you at Tuesday’s event!