SCOTUS Immunity Arguments

Dreeben was okay. Sauer was awful. Alito is the worst.

Today we heard the long-awaited oral arguments on immunity in the Election Subversion case brought by Special Counsel Jack Smith. 

Top line: none of the justices - save maybe Alito, think that a former president should enjoy absolute immunity. The arguments, though, about where to draw lines between official acts and private acts were messy, but the bottom line in my view is something Justice Jackson raised: If the Supreme Court were to try and draw conclusions about what constitutes official acts and which ones might be immune, is this case the best vehicle to make those determinations since none of this conduct here should be considered official? 

I agree to the extent that I even put that in my mock SCOTUS ruling (nerd alert) that would have denied cert to take this case in the first place. I wrote: “The Court of Appeals, however, had no occasion to decide these question (of what are official acts) because it analyzed and rejected President Trump's immunity and double jeopardy claims “specific to the case before us, in which a former President has been indicted on federal criminal charges arising from his alleged conspiracy to overturn federal election results and unlawfully overstay his Presidential term,” US v Trump, saving for another day whether immunity from criminal prosecution should be recognized in any circumstances.” 

The ruling here will come down to 1. Whether there are enough justices who want to use this case as that vehicle and 2. If they do, will they decide whether his acts were official, or will they remand it to the lower courts to decide?

The entire front half of the arguments had to do with whether what is charged in this case falls under “official acts.” Sauer - arguing for Trump -  actually said that staging a coup and gathering fraudulent electors are official acts. His arguments were ridiculous and I think most if not all of the justices agree that he was terrible. But that didn’t stop four of the conservative men: Thomas, Kavanaugh, Alito and Gorsuch from downplaying what happened on January 6th, and that was evident in their hypotheticals.  “What if there’s a peaceful protest at the Capitol led by a president that delays an official proceeding?”

But in my opinion, that’s belied by the fact that THIS case cannot be the vehicle by which the court determines what acts are official and which are private, and questions about other cases in the future can be decided on a case by case basis at a later time - should the need arise. “…saving for another day whether immunity from criminal prosecution should be recognized in any other circumstances.” 

Many of the justices seemed to agree that this case could be remanded for trial with a jury instruction that criminal culpability can’t be applied to official acts, but that official acts can be used as evidence to show intent. Other justices felt that perhaps this is the vehicle, and it should be remanded to the lower court for the judge to expunge what they determine to be official acts. The latter scenario would cause significant delay because whatever the judge concluded could be appealed by Trump.

But remanding for consideration makes no sense when the official acts and the private acts are inextricably linked: if you expunge the official acts and the whole case collapses. Dreeben - arguing for the Special Counsel’s Office - used bribery as an example. If a POTUS appointed an ambassador in exchange for money, appointing the ambassador is an official act, and the crime can’t be prosecuted without that part of the quid pro quo. Chief Justice Roberts asked Sauer early on in the hearing: “...accepting the bribe isn't the official act, appointing the ambassador is. So how do you square that?” Sauer could not. And his skills - or lack thereof - were on full display going up against Dreeben. Sauer repeatedly fell back on his misinterpretation of Marbury v Madison, and that a president must be impeached and convicted in order to be criminally prosecuted. The justices made quick work of that argument as well. Justice Barrett said “The nine of us are subject to impeachment. If the POTUS can't be prosecuted without impeachment and conviction, is that true for all officers that can be impeached?” 

Sauer replied that the POTUS is different. Justice Barrett then asked “But what if the crime isn't discovered until after they leave office and you can't impeach him for it?” Sauer replied: “The framers assume that risk.” He’s literally saying that if a POTUS murders someone on the final day in office so as to avoid impeachment, he can’t be criminally charged. “That’s the risk we take” he says. Wow.

Back to the argument that official acts and private acts are inextricably linked, Dreeben reminded the court that this happens all the time with the first amendment: Dreeben: “Well they’re integrated. Working with private lawyers to achieve the goals of the fraud, and using official powers to make it more likely to succeed: we want to present that to the jury as integrated conduct so they can see the gravity of the conduct. But if the court were to say the fraudulent elector scheme is private. Exploring violence at the Capitol is private. We still think that we could introduce the official acts of interacting with the justice department and trying to pressure the VP for their evidentiary value as showing intent, and we would take a jury instruction that says you can’t infer criminal culpability for those actions he took, but you may consider it as it bears on knowledge and intent. That’s the rule for protected speech under the first amendment in Mitchell. We don’t think the speech or debate clause applies here. We think the concerns about the use of POTUS’ official conduct as evidence that might be privileged is already addressed by US v Nixon. That balances the POTUS’ interest in confidentiality against the need of the system to get all the facts and get to the truth. So we can use it as evidence even though there’s no criminal culpability.”

Regardless, the idea that a POTUS should receive blanket immunity is wrong in any case, and trying to drill down on what’s Immune and what’s not doesn’t rest on that question, and shouldnt be decided using this case. Besides, there’s no way anyone could designate the charged conduct as official acts because the executive has NO interest in overseeing elections - that is explicitly left to the states. That was confirmed by Judge Pryor’s decision at the 11th circuit that Mark Meadows’ trial can’t be moved from state court to federal court because the executive has zero authority over elections - so his actions can’t have been designated as the official acts of a federal officer. Judge Pryor is a really good friend of Justice Thomas, by the way, though he should be recused because his wife was part of the fraudulent elector scheme. 

I thought the arguments went well for the government, and badly for Sauer, but I do not trust this court enough to be confident they’ll do the right thing. I’m convinced they won’t grant blanket immunity, but it will boil down to whether they remand to the lower court for further review - corruptly delaying the case past the election - or whether they remand for trial with a jury instruction that you can’t apply criminal culpability to the official acts. Meaning an instruction for the jury that even though a president is allowed to speak to his DoJ officials, he did so to create fraudulent electors - so you can find him criminally culpable for falsifying electors, but not for speaking to a DoJ official.”

There were also some ridiculous arguments about how to determine what acts are official and which aren’t, and what protections are in place to prevent a president or a prosecutor from going rogue. One of those was the “clear statement of congress” argument brought up by and seemingly supported by Justice Kavanaugh. That’s the concept that if a law doesn’t specifically say “any person who commits this crime including the president”, doesn’t apply to the president. Justice Jackson counters with this: “It seems tautological to me that presidents can’t be held liable under any criminal statute without a clear statement from congress to avoid the question of whether the constitution allows them to be prosecuted. We have to have a reason to have a rationale to apply the clear statement rule.” 

Justice Barrett said “Special Counsel made an excellent point with regard to the “clear statement rule” that a law would have to explicitly include whether it applies to the president. He said if a president can only be prosecuted if he’s first impeached and convicted, then how can he be subject to said prosecution if these statutes don’t apply to him?” Sauer then says we’re back to what is an official act. Barrett seemed skeptical. 

Another argument that was raised more than once is whether presidents up to this point HAVE or HAVE NOT enjoyed immunity. Sauer argues they have, and the government argues they have not. That prompted Justice Jackson to ask Sauer: “If all presidents have enjoyed immunity this whole time, then what's up with the pardon of Nixon?” Sauer answered that what Nixon did was a combo of private and official acts. (Well, yeah dude. That’s why we’re here.) Justice Jackson drove the point home by saying “You suggested a lack of immunity and the possibility of prosecution is like an "innovation", but I understand it as the status quo - that every president has understood he's not immune from prosecution. So it seems to me that YOU are asking for change here." That’s important because the court is usually loath to change the status quo, but we know that’s not the case with this Court. 

One last thing I wanted to address was the discussion about possible future “rogue prosecutors” going after future presidents. Dreeben once again reminds the court that the status quo has always allowed that but it hasn’t happened. Alito seemed especially worried about rogue prosecutors, and asked Dreeben if he could think of a time when a rogue AG wanted to get an indictment and wasn’t able to? Because as the old saying goes, you could indict a ham sandwich. I immediately thought of Bill Barr and Trump desperately trying to indict Andy McCabe and NOT being able to get a grand jury to return charges. Barr even impaneled a second grand jury to see if he could get them to indict McCabe, and he failed again. So yes, Alito, we do have protections against rogue prosecutors. Dreeben answered that there were certainly instances where prosecutors were unable to get a grand jury to indict, and even though the standard is low (probable cause) to get an indictment, a prosecutor wouldn’t have a lot of incentive to get an indictment that he or she couldn’t prove beyond a reasonable doubt at trial. That made me think of Durham - a rogue prosecutor that DID get an indictment, but lost at trial because he didn’t have the evidence. Yet another example of the protections against “rogue prosecutors.” I think justice Sotomayor addressed this best in what was the most stand-out moment of the proceeding for me: 

"There is no fail safe system of government, meaning, we have a judicial system that has layers and layers and layers of protection for the accused in the hopes that the innocent will go free. We fail. Routinely. But we succeed more often than not. In the vast majority of cases, the innocent do go free. But we still fail. We've executed innocent people. Having said that, Alito went through a step by step of all the mechanisms that could potentially fail. In the end, if it fails completely, it's because we've destroyed our democracy on our own.” 

So this whole thing likely hinges on what Roberts does, with Kavanaugh, Alito, Thomas, and Gorsuch on the side of remanding for further adjudication on what is official and what is private, and Barrett, Kagan, Sotomayor, and Jackson on the side of remanding with jury instructions. Since Roberts didn’t simply deny cert, we could be in for a significant delay.

Try to keep in mind, if this trial is delayed until after the election, and somehow trump wins, Jack Smith can indict the rest of the co-conspirators, and release a report before inauguration. Beyond that, the state cases continue.

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