Dem
51
GOP
49
Yesterday, of course, the Supreme Court heard oral arguments on the question of whether the law does, or does not, apply to the President of the United States. One would think that this would be an easy question, at least in the context of non-official acts undertaken in the president's capacity as a private citizen. And if one did think that, one would be wrong, if yesterday's questioning from the justices is any indication.
Lawyer-reader A.R. in Los Angeles listened to the proceedings, and was once again kind enough to send a report:
Ouch. This is going to leave a mark.
Depending on your views of presidential authority, you may have been encouraged by today's arguments. For those of us who don't believe in absolute immunity or a unitary executive, however, there were some ominous signs on Thursday.
At the very least, it's clear that the presidential immunity case is going to be remanded to the district court to do... something. This will accomplish Donald Trump's main goal of delaying any trial on the merits until after the election, if the trials happen at all.
The possible outcomes seem to be the following, from most likely to least:There were also indications that some of the justices are receptive to the claim in the classified documents case that the Special Counsel appointment was unlawful. And they also invited arguments that any decision on immunity should also cover state prosecutions. So, they could wipe out not only the federal 1/6 case but the Georgia case as well, in one fell swoop. This is not a Court that feels burdened by quaint notions of judicial restraint.
- Reverse the D.C. Circuit Court of Appeals and remand to the District Court to determine which of the alleged acts are "official acts" and which involve acts as a candidate.
- Reverse the D.C. Circuit Court and hold that Article II requires presidential immunity for certain core functions and remand to the district court to determine whether the allegations involve any "core" functions.
- Reverse the D.C. Circuit Court and hold that a president is immune from criminal prosecution for all acts except those that have no plausible connection to any official duty.
The Court framed the issue before them as follows: Whether and to what extent does "a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office"? This seems to suggest that the justices agree that presidents do not enjoy any immunity for unofficial acts. But a majority agreed that a president should be treated differently from other officials and not be subject to criminal prosecution for acts involving his official duties—the question, then, is how far that immunity extends.
As they grappled with this question, they also struggled with where they were starting from. Is the status quo an understanding that a president is subject to the criminal laws and can be prosecuted for violating upon leaving office (hence, Gerald Ford's preemptive pardon of Nixon), so that affirming the D.C. Court would not be a sea change? Or is the status quo an understanding that a former president cannot be prosecuted, at least for so-called official acts undertaken while in office, at all? Both sides used the fact that no president has been prosecuted up to now as evidence to support their framing of the current state of things. Not surprisingly, those justices who favored affirming took the former position, while those wanting to cloak the president in some form of immunity took the latter.
As a reminder, the D.C. Circuit Court of Appeals held that a president is subject to general criminal laws in the same way that judges and other federal officials are, and the distinction between official and unofficial acts is immaterial. A majority of the Supremes were clearly uncomfortable with this decision. As has become predictable, Associate Justices Clarence Thomas and Samuel Alito expressed their preference for blanket immunity for all presidential acts, including using the military to assassinate political rivals. Whatever dystopian hellscape exists in their minds as the societal ideal, I truly hope we never have to live there.
Associate Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson ran through all the ways in which presidents already behave as though they are bound by criminal statutes, and the potential abuse that could result if they were freed of any constraints on their conduct. Kagan pointed out that the founders didn't include an immunity clause for presidents in the Constitution, despite knowing full well how to do it.
By contrast, the main concern of Chief Justice John Roberts and Associate Justices Brett Kavanaugh and Neil Gorsuch was an endless cycle of political recriminations, because of course the obvious outcome of subjecting a president to the criminal laws would be future presidents ginning up fake charges for his predecessor. They treated that as a given, without any evidence to support that result.
The question then became where to draw the line. Gorsuch and Kavanaugh favored the test in Blassingame, which is that a president enjoys immunity for all official acts (even though that was in the civil context). In Blassingame, the Court held that any acts within the "outer perimeter" of a president's official responsibility is protected and that it's an "objective" test where motives are irrelevant.
Michael Dreeben, who argued for the Special Counsel, conceded that a president already enjoys immunity for "exclusive Article II powers." And unfortunately, he characterized the D.C. Circuit Court's holding as "tautological," which Roberts kept returning to. I have never argued before the Supreme Court and it must be a pressure cooker, especially in this case on which our democracy may depend, but that was an own-goal that may find its way into the Court's opinion. And honestly, I couldn't really tell what Dreeben was arguing for—it seemed to be some kind of balancing test that would allow some immunity depending on the function being carried out.
In the end, the Justices seemed to be trying to do some line-drawing. Do they look at official acts v. unofficial acts? Do they look at the core duties of Article II and provide blanket immunity in the exercise of those duties? Does Blassingame provide the correct analysis? Does the "public authority" exception offer a framework for their analysis?
At one point, Jackson tried to rein everyone in to say that on the facts of the case before them, there is no need to issue this broad decision. Right now, all that is before them is conduct that is clearly unofficial and unrelated to any presidential duties. She was definitely in the minority in taking this view.
In the end, I counted six justices who favored some kind of immunity for official acts of the president and some justices who wanted to go even further and constrain the Special Counsel altogether, including what evidence he could introduce at trial if some of these acts were found to be excluded. This could go sideways in any number of ways. But we won't know until the very end of the term.
Thanks, A.R.!
And A.R. was hardly the only one who was disheartened by yesterday's hearing. There were bitterly critical pieces from, among other outlets, The Bulwark, Slate, Politico, Above the Law and TPM. This passage, from the TPM piece, is illustrative:
We are where we should know we are. The Roberts Court is a corrupt institution which operates in concert with and on behalf of the Republican Party and to an ambiguous degree right-wing anti-regulatory ideology. If we believe in a different set of policies or even democratic self-governance we will have to succeed at that with the Supreme Court acting as a consistent adversary.
Given how long it will take for the Supremes to make a decision, and then how long it will take for the district court to implement that decision, and then the possibility of another appeal, and then the time involved in conducting a trial, it's hard to see how any of Trump's trials, other than the one already underway, and maybe the one in Georgia, can possibly happen in 2024. And if he wins, of course, he's going to pardon himself. That will end up in court, but maybe what he can do is announce that any judge who rules against him will be executed by firing squad. Could be legal for a sitting president to do, by then. (Z)