Friday Round Up! 4/26/24
Trump's attempt to delay his January 6 trial until after the election appears to be a fait accompli.
"Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated? Even in such a case, would not the official oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it?”"
— President Abraham Lincoln’s rebuke to Chief Justice Roger Taney, 1861
I still haven’t fully wrapped my mind around the implications of the lines of questioning in the Supreme Court’s oral argument over Trump’s claims of “absolute immunity” from criminal liability. If you aren’t completely up to speed, I wrote previously about the oral arguments in the D.C. Circuit (where Trump’s lawyers argued that the President can constitutionally order the assassination of his political rival) as well as the appellate court’s thorough and airtight opinion. There was no reason for this case to ever go up to the Supreme Court, at all.
Of course, having taken the case in December and provided seven weeks to brief before scheduling the oral argument for last week, it’s clear that the Court doesn’t intend to simply agree with the D.C. Circuit and send it back to trial. Meanwhile, Trump’s lawyers didn’t tweak their crazy arguments so much as double down on them. During the oral argument, Trump’s lawyer argued that the President can not only order the assassination of his political opponent, but could sell national security secrets and even order the military to conduct a coup without facing any criminal repercussions. In fact, here is the basic summary of Trump’s claims:
1. The President can't be prosecuted for official acts, immunity is "absolute"
2. In determining whether something is an official act, you cannot examine the motive behind it, i.e., whether it was for personal gain
3. The President *can* be prosecuted for official acts if they are convicted and removed first through impeachment (so not so absolute)
4. To be prosecuted the criminal statute has to specifically say it applies to the President
5. In any prosecution you can't introduce evidence that would constitute an official act (so if prosecuting bribery you can't show that they did anything official in return for the money, which is an element of the offense)
6. Even though you can't prosecute a former president for unlawful official acts (see #1-5 above), anyone who does his bidding can be
Unfortunately, it seemed to me that the attorney representing the Special Counsel failed to fully expose how absurd the above line of reasoning is and got a little too deep into weird legal rabbit holes that took him away from the central point:
Under the facts of the case before them, there is no reason to even come up with abstract theories of presidential immunity, because an attempt to overturn an election is not an “official act,” no matter how you slice it.
There is much more to say about the various hypocrisies, inconsistencies, and implications of the conservative justices line of argument, but I will either lay all of those out in a separate post once I get my thoughts in order or wait for the actual opinion. (I will note that the “hold my beer" — pun intended — moment was when Justice Kavanaugh contemplated whether the threat of politically-motivated prosecutions was a very real one, citing the Independent Counsels of the past…without mentioning that he himself was Kenneth Starr’s right-hand deputy in the Clinton investigation).
In the meantime, though, here are the possible judicial outcomes, as I see it:
1. There is no immunity in criminal context
2. There is immunity for “core” Art. II duties/powers mentioned in the Constitution (pardon, hiring/firing, negotiating with heads of state, command authority in the theater of war, etc)…none of which apply here
3. There is immunity for official acts, not private acts, which requires a test to determine which is which:
a. Subjective test inquires into motives
b. Objective test looks only at nature of the act
4. The President has absolute immunity
Only #s 3(b) and 4 would be fatal to Jack Smith’s case. However, anything other than #1 will entail some kind of delay, pretty much ensuring that this case won’t move forward before the election.
Oh, and don’t forget that if the opinion is 5-4 (which it likely will be), the scale would be tipped by a justice whose wife participated in the criminal conspiracy giving rise to the case before him. So yeah.
On to better news, Renato and I discussed the latest in the Manhattan hush money case this week:
Noteworthy clips from this week:
A little less prominent in the news but I discussed a Supreme Court case heard earlier this week about state laws criminalizing homelessness
My take immediately after the immunity argument on Thursday, highlighting that the Court’s opinion could potentially impact Trump’s other criminal cases:
Articles worth reading:
I wrote this Politico piece back in 2018, but the principles I highlight — about how bad facts make bad law, especially when it concerns presidential power — are very relevant now
In case you missed it, the Guardian reported that South Dakota Governor Kristi Noem bragged in her autobiography about shooting her 14-month old puppy, Cricket, and a goat, really for no reason than that they annoyed her
I dug up this little chestnut of a law review article authored by none other than Brett Kavanaugh in 2009, making clear that he believed that no one is above the law and that Presidents could be prosecuted after leaving office…a very different tune than what he seemed to be singing last Thursday.
Upcoming events
Guest Speaker, Jacob Hacker, May 15, 4-5 p.m. EDT. Yale professor and co-author of Let Them Eat Tweets: How the Right Rules in an Age of Extreme Inequality will join us to discuss some of the driving forces behind asymmetrical polarization, a topic we are currently covering in our Substack course. (You can enroll in the course at anytime, and this topic is new — check out the short assignment to jump in!)
Wine & Fries Happy Hour with CNN National Security Analyst Juliette Kayyem, Sunday, May 19, 8 p.m. EDT. I’m so excited to be hosting my friend and colleague Juliette Kayyem for the next Wine & Fries Club! We’ll have lots to talk about, some serious and some not-so-serious. Link will be sent to founding members at 5 p.m. (This is not recorded.)
Freedom Academy Book Club, Date/Time TBA (likely June/July). I’m very excited that my former CNN colleague, Jim Sciutto, will be joining us to discuss The Return of Great Powers: Russia, China, and the Next World War. I love Jim’s work and insights into national security issues and this is a discussion you won’t want to miss!
Happy Caturday!
I keep asking all over Substack what rule it is that they fear will delay the trial. What determination can be made that won't depend on what the underlying facts are? Nobody I have read addresses that; they all worry that "some" such thing will happen.
Obviously, I am not talking absolute immunity here. I am talking delay, not end the trial. Nor am I talking absurd holdings that the statute has to explicitly include the president in its scope--that too would be trial-ending.
A conspiracy charge is about as rigorous as you can get by way of burden of proof. The prosecution already has to prove there is a crime, the defendant knew it was a crime, he had an intent to commit that crime, he agreed with conspirators that the crime should be committed, and someone in the conspiracy took steps to substantially further that crime--all the moving pieces are already in the indictments. Whether it was personal or believed to be within the scope of his core duties is there in the intent requirement. As far as I can tell, any restrictions short of full immunity can and should be dealt with in jury instructions.
So PLEASE someone tell me what specifically the court can require that would be appealable BEFORE trial and thus delay it. There well may be one, but I haven't on my own been able to come up with one.
Glad I watched you and Renato yesterday so I could dive into some of the other goodies today. I even find myself actually reading Kavanaugh’s scholarly article. Wonder whether he’s reviewed it lately?