Trump v. United States -- What I Heard In Listening To The Oral Argument.
The Shortcomings of the Work Done in the Trial Court -- and not Corrected In The Appellate Court --Were On Full Display In The Frustrations Expressed by the Justices.
They didn’t want to find themselves in this place. Chief Justice Roberts has made it a personal mission for two decades to lift the Court out of partisan fights over political perogatives and power-struggles. The last thing he wants is for the legacy of the “Roberts’ Court” to begin with having “selected” Presidents by virtue of its decisions.
But political actors in Washington and elsewhere — liberal progressive Democrat partisans — have decided that the most effective way to prevent Donald Trump from returning to the White House is to use the courts as a vehicle to derail or destroy any campaign for that to happen. To that end they have devised multiple “first of its kind” theories of criminal liability to pursue in multiple courts all with a single goal — to pin a felony conviction on Trump prior to the election in order to damage him as a candidate in the eyes of the “mushy middle” of the electorate.
They have found willingly complicit allies in those efforts in the federal and state judiciaries.
The end result is that in order to escape these novel theories of criminality being pressed against him on multiple fronts by partisan actors — some of whom campaigned on PROMISE to do exactly what they are doing — former President Trump has pushed a claim of “Presidential Immunity” as his own partisan response to the partisan lawfare being waged against him.
And SCOTUS finds itself in the exact spot that CJ Roberts has worked so hard to avoid.
Contrary to the caterwauling of the partisan Democrat actors pushing the idea that the Court is in the tank for Trump, recall that the Court turned back multiple efforts by Trump to slowdown or block the investigations by contesting steps taken in both Washington and New York to obtain records. Those happened before the charges were filed and the novel theories of criminal liability were laid out for analysis.
This article is more of a “30,000 Foot View” of what I heard as some key exchanges during the oral argument, and not an in-depth analysis. I will likely focus on 2 or 3 key areas in more depth in later articles prior to the opinion being issued. I have several such topics in mind. But if there is one that stands out to you, note it in the comments below.
A few observations in general:
I have not seen it commented on that Solicitor General Elizabeth Prelogar did not argue on behalf of the Special Counsel. Jack Smith is a functionary of the Justice Deapartment — different than the old “Independent Counsel” who operated outside and independent of the Justice Department. Michael Dreeban argued on behalf of the Special Counsel, but said directly when questioned that he was representing the Justice Department so his comments do bind not only Smith but also DOJ to the extent that might become an issue later. Dreeban is a very experienced Supreme Court practitioner. For many years he was the “Chief Deputy Solicitor General” — meaning second-in-command in the office, and was widely acknowledged as the most authoritative voice in DOJ on criminal law matters taken up by the Supreme Court. My recollection is he has argued more than 100 cases before the Court. I believe he retired from DOJ in 2022. I think he was brought onto the Special Counsel’s team specifically for this argument — meaning the Special Counsel has long feared it would find itself exactly where it did this past week.
While cases come before the Court based on a petition filed by one of the litigants, the Court decides what it is it will decide when it takes up the case, and that is not always precisely what the litigant asked for. In this case, this is the question the Court posed as the basis for taking the case:
"WHETHER AND IF SO 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 is not a question about Donald Trump — this is a question about the Office of the President. This subtext that grew more significant as the argument progressed, particularly while Dreeban was arguing for SCO Smith. He repeatedly went back to the allegations of the indictment only to have Justices Alito, Gorsuch, and Kavanaugh assure him they understood the allegations but they were more focused on the future implications of not affording any protections to to any former President after leaving the Office. Justice Kavanaugh drove home the point asking how leaving a former President at the mercy of political rivals wasn’t a mirror image of the worst aspects of the “Independent Counsel” experience. He went so far as to read a lengthy passage the late Justice Scalia’s dissent in Morrison v. Olson about the parade of horribles that were likely to flow from a criminal prosecutor, unchecked by the political process, being unleashed on a President while in office.
Justices Sotomayor and Jackson repeatedly dwelled upon the allegations of the case and the implications for the case if it was not returned to the district court for immediate resumption on the path to trial. Justice Jackson suggested the Court could brush aside all the concerns about distinguishing “private” v. “official” conduct — and the process for doing so — and just send the case back with permission to have the trial proceed on only the private conduct. She then followed that up with her own view that the allegations of criminal conduct — which could never be “official” — were so pervasive that SCO Smith could move forward on those alone with the Court’s approval to do so. Drebben whole-heartedly agreed with that sentiment. She overtly expressed that the allegations of this case were so outrageous that the Court should wait for a different case — LMAO — before going to the trouble of explaining how “private” and “official” acts should be distinguished substantively and procedurally in order to recognize some form of benefit for former Presidents — as long as that former President is not named “Trump.”
Justice Gorsuch was the “Superstar” of this argument. The Chief Justice started the ball rolling by going all “Nancy Pelosi and the State of the Union Speech” with respect to the Appeals Court opinion, getting Dreeban to call the rationale for finding no basis for a claim of Presidential immunity — due to the seriousness of the alleged criminal conduct — a tautology. What that means is that the rationale relied upon by the Appeals Court reads
“There is no Presidential immunity because the allegations of criminal conduçt are so serious that there can be no Presidential immunity for such serious allegations. Trump is being prosecuted because the seriousness of the allegations against him mean it is necessary and appropriate to prosecute him.”
That is never a positive development given that Dreeban was there to defend the outcome in the Appeals Court. Likely not appreciated by most other than appellate practitioners was the back-handed “slap” at the Appeals Court given by Dreeban when he said he was there to defend the “judgment” of the Appeals Court. What that meant was that he was defending the outcome — but not the rationale. The answers he gave to the Chief Justice was the white-flag of surrender in terms of defending the reasons given by lower court for its decision. He had to develop his own arguments to justify why the outcome in the lower court was correct
JusticeAlito then tagged in and began to derisively pummel the section of the lower court opinion that was the most vulnerable to outright mocking — the references to the safeguards to exist to prevent political score-settling via lawfare aimed at a political rival who has exited the Presidency. Dreeban tried to defend the view that all prosecutors are duty-bound by their oaths to act ethicially, and that politically-inspired prosecutions are unconstitutional. Justice Alito really wasn’t much interested in the answers Dreeban was offering, choosing to simply move on after making his views self-evident in the content of his questions.
He brought down the curtain with regard to grand juries by asking about Dreeban’s experiences while at DOJ involving cases where a U.S. Attorney was really desirous of obtaining and indictment but a grand jury declined to do so. Dreeban started to answer that he knew of such cases and Alito cut him off by saying “Well, eclipses are known to happen too.”
As a personal observation, I’ll say that in 21 years at DOJ working in two different offices, populated by about 70 different prosecutors, I knew of only 1 case where a grand jury declined to return an indictment that a prosecutor asked for — the infamous “Kangaroo Rat” case in California. You can find info about it online.
But Justice Gorsuch really tortured Dreeban on the mechanics and substance of teasing out how courts to define the boundaries between types of conduct after Dreeban admitted that some Presidential decision-making was beyond the ability of Congress to criminalize, meaning some form of “immunity” did exist at least as to that conduct. Dreeban declined to call it “immunity,” preferring instead DOJ-speak with phrase “Article 2 As Applied Challenge.” Gorsuch mocked him for playing word games to describe Presidential conduct that is not subject to a congressionally created criminal statutes, saying it was really unimportant what euphemism Dreeban wanted to use since the end result is the same.
Dreeban admitted that there were certain “core” powers conferred upon the Presidency alone about which Congress could not legislate or otherwise interfere. To Gorsuch that meant the scope of the dispute was narrowing. Dreeban was retreating from the position of the Appeals Court — a blanket statement that former Presidents had zero immunity — and saying that there were some areas of Presidential action that Congress could not criminalize.
Dreeban was forced to make this concession because he knew the radio-active real-world scenario was coming. The comical “Seal Team 6” hypo introduced in the Appeals Court has a real world historical counterpart — which I’m going to boast that I was one of the first to posit since I’ve been saying since the case was first filed — the drone strike on a U.S. citizen ordered by President Obama.
Dreeban told the Court that DOJ has looked at that order given by Obama and made a determination that it was not an “unlawful killing” because it involved a combatant death under the “authorization to use military force” passed by Congress after 9/11, and the target was a self-identified terrorist. I wonder if this analysis was done before or after the need to have that question answered in order to pursue the criminal indictments against Trump?
Trump’s defense attorneys have already conceded that Trump is not immune for purely “private” conduct taken while he was POTUS. Dreeban now conceded that conduct falling within the President’s core powers was not subject to criminal statutes that cover everyone else — I guess a President is above the law more than the rest of us in that regard.
But there is a category of conduct in between — “official” acts that are outside the “core” powers of the President but not purely private conduct. While the press and NeverTrumpers have played up the inaccurate claim that Trump is advocating “absolute” immunity, what his team is really seeking is absolute immunity for these “official acts” between the two poles of “core” powers and purely private acts.
It just happens to be the case that Trump’s defense has a very expansive view of what constitutes “official” acts when applying that phrase to the allegations of the indictment.
This is where Trump’s attorney, John Sauer, make a serious misstep in my opinion. As part of the dialogue among the Justices about how the “line-drawing” between official and private conduct might be handled, Sauer allowed himself to get trapped in exchanges about specific allegations set forth in the indictment, and whether the conduct described was “official” or “private.” On three occasions that I remember, with both Justices Kagan and Barrett, Sauer made an admission that the conduct described was likely “private” and could go forward as part of any trial since it would not fall inside the boundary of Presidential immunity that he was advancing.
The problem is that Sauer’s admission means there will likely be a trial at some point, it is simply a question of when. That might have been an inevitability that can only be staved off by Trump winning in November, but it seemed like a concession that could have been avoided.
It also means that Sauer just did Judge Chutken’s job for her with respect to those three specific allegations — AND more importantly he has given her a “measuring stick” against which to apply other allegations set forth in the indictment. By conceding on anything he has now given her the ability to compare other allegations of a similar factual nature and conclude they are private conduct as well
What Sauer should have said was that the defense disagrees with the characterization of events in the indictment, described as they are in pejorative and conclusory terms, and offered a different characterization of the same events. At minimum he should have said the defense intends to contest the accuracy of the descriptions in any hearing over which side of the official/private boundary they might fall. The events might not be in question, but they might be subject to different forms of description that push them in the direction of one category or the other.
This brings back my “hobby-horse” on this issue — that the description of events in the indictment should not be “assumed to be true” when determining what category — official v. private — they might fall into. That needs to be the subject of an evidentiary proceeding before the trial court in the same manner as other forms of immunity are dealt with pretrial by the judge. To determine the existence and scope of any immunity, the Court must determine the factual scenario of the events in question — not guilt v. innocence, but merely resolve factual disputes in the competing versions offered by the parties so questions of law, i.e., the existence of immunity, can be decided.
Following questions by Justice Kavanaugh about whether allowing criminal prosecutions of former Presidents would likely kick off a cycle of recriminatory prosecutions of political rivals after they leave office when the party in power changes, Justice Barrett asked Dreeban how a decision on the Presidential immunity would apply to state and local prosecutions — to what degree would it prevent politically motivated prosecutions at that level. She prefaced it by observing that many of the safeguards against politically motivated prosecutions relied upon by Dreeban to defend the Special Prosecutor’s case are not present in state and local jurisdictions. It’s a matter of record that the prosecutions in New York and Atlanta are being pursued by partisan elected prosecutors who made campaign promises to do exactly what they are doing. Dreeban’s response may have created real problems not only for the federal cases, but for the pending state cases as well.
Dreeban said the Court — meaning the Supreme Court and not the trial court — should evaluate Supremacy Clause issues that prevent a state from burdening federal functions. He invited the Court to adopt a more “categorical rule” that would apply to states trying to prosecute a former President — a rule far more restrictive than would be appropriate for a federal prosecution like the ones being pursued at the federal level by the SCO.
But in making that argument Dreeban was conceding the point that a former President does enjoy immunity — maybe even broad or “categorical” immunity — from state and local prosecution. That is because there must be some federal interest for the Supremacy Clause to protect if the Supremacy Clause is going to be a shield against state and local efforts as Dreeban invited the Court to find.
But if it exists as to state and local prosecutions, then he cannot argue that it is absent entirely against federal prosecutions. The question then becomes is it less broad against federal prosecutions, and if so how much less broad? So that takes the case back to a point of starting over back in the trial court.
Remember that both the trial court and the Appeals Court decided there was no immunity at all for former Presidents. The Appeals Court premised its ruling on the “fact” that the moment a President leaves office he reverts back to “Joe Q Citizen” and anything he did and any decision he made during the four years in office is open to criminal scrutiny by a prosecutor. Dreeban first abandoned that premise by acknowledging there are “core” powers of the Presidency that can’t be the subject of criminal statutes. Now in response to his question from Judge Barrett he’s acknowledging that the Court might craft even broader protections of immunity for a former President from state and local prosecutions behind the Supremacy Clause.
Justice Barrett then questioned him on what is a key issue for me as a trial court practitioner — something raised by Justice Alito earlier — and that is the degree to which the Court should allow some of the protections Dreeban was acknowledging to be part of a pretrial process in order to avoid a trial rather than — as Dreeban was arguing — make them available only as part of the defense a former President could offer at trial in front of a jury. This might have been the point where, if the Special Counsel loses Justice Barrett, it lost her here.
She made it clear in no uncertain terms that she thought not having immunity from state and local prosecutions where there are none of the protections afforded at the federal level was squarely within the concerns raised by Justice Kavanaugh regarding the likelihood of politically motivated prosecutions.
Then came the coup de grace in my view — an admission by Dreeban that there is much work left to be done before a trial is even possible. He referred to the extended discussions over the previous two hours up to that point about the differences between official and private conduct, and for any immunity defense the Court announces there is going to have to be a “legal process” to distinguish between the two. He said a similar legal process would need to be engaged in by state courts as they should be allowed to prosecute purely private conduct as that would be outside any immunity that would apply to official acts only.
That amounted to a concession that returning to the trial court to sort out the differences among the allegations of the indictment was a process that would need to happen pretrial — he said it would be necessitated as part of any immunity defense the Court might create. Since it would be part of a defense that avoids trial, it would not be part of a trial proper. Further, the outcome of that pretrial process would be subject to another interlocutory appeal. That would create the same barrier to moving forward with a trial that was created by this appeals process now under way. The filing of a Notice of Appeal divests the trial court of jurisdiction to do any further work.
If the District Judge enters an order on the private v. official act dichotomy, and the Trump defense appeals that order, the case would once again come to halt while the appeal process plays itself out.
This appeal is going to take nearly 7 months from start to finish, and that included the “rushed” procedures adopted by the Appeals Court at that level. If the Court sends this case back to the trial court with instructions to work out the details of ANY possible Presidential immunity defense, no matter how minor, a trial ahead of the November election will never happen.
As I have predicted since the day the case was filed.
Finally — for now — Justice Barrett started her final line of questioning on the subject that is probably the last vestige of hope for those Lefty Legal Beagles who are desperate for any kind of trial, even a trial that abandons wholesale large parts of the narrative fashioned in the indictment. She started by asking if it was an option for the Special Counsel to simply strip out of the indictment — and the evidence to be offered at trial — all the stuff that is arguably considered official conduct and proceed to trial only on the allegations in the indictment that are private conduct. Dreeban answered “Yes, but ….”
He argued that the narrative of the indictment was of an integrated and multi-layered effort to defraud the United States. It was noteworthy to me that his arguments throughout the course of the hearing avoided use of the language of the Sec. 1512(c)(2) charge regarding “obstructing Congress” — likely a tacit admission that the Government is going to lose the Fischer case argued last week and the vitality of the two counts charging crimes under that statute are likely in question.
He made it plain to Justice Barrett that even if the official acts could not themselves be the basis of a criminal conviction, the SCO would still seek to use evidence of that conduct to show the overall conspiracy and prove the “intent” of those who participated, including former President Trump. He wanted to distinguish between using the evidence to prove a crime consisting of that conduct, and using the evidence as relevant to proving a different crime involving other conduct.
The problem with that theory is that only one crime has been charged — a conspiracy to defraud the United States. The practical effect of Dreeban’s argument is that the immunity defense would be illusory. His suggestion is that all the same evidence would come into the trial but the jury would be instructed that the “official acts” could not be used by them as evidence of the charged crime, but only as evidence of an intent to commit the charged crime. The charged crime could only be based on the private acts.
Got that? Okay then.
There was no certainty based on the comments of the Justices that they would include this issue as part of what they would resolve. There are essentially two steps — what are “official” acts that are subject to the immunity claim that Trump is asserting and a majority of the Justices seems willing to recognize exist, AND what to do with those “acts” and the evidence of them in terms of the overall presentation of evidence in the case?
It is possible that the Justices will resolve neither of these questions themselves. I’m 100% confident they will not engage in the task of determining what acts are immune and what acts are not. They will leave that to the lower courts. But the second question concerning what to do with immune acts in the context of the case is not one that was part of the “Question Posed.” The answer may depend in some measure on the nature and specifics of the acts that are deemed to be “official” and therefore protected by immunity.
WHAT TO MAKE OF IT ALL
Dreeban conceded that Presidents do have immunity. That immunity involves the “core powers” of the Presidency where Congress has no power to legislate and courts have no power to intervene. That includes by way of criminalizing and punishing Presidential conduct within the scope of those “core powers.”
This concession is a KEY admission by the Special Counsel that the order from Judge Chutken and the 3-0 opinion issued by the Appeals Court were both fundamentally wrong on this very bedrock foundational issue when they found former Presidents were not different than regular citizens, and subject to all the criminal laws that apply even for things they had done while in office.
But Dreeban wanted to contain immunized acts within those “core powers” and the SCO’s claim is that nothing alleged in the indictment involves those “core powers.” But some Justices had questions about that — particularly with respect to removing DOJ officials and appointing new ones to take their places.
As Justice Gorsuch pointed out, this meant there were matters for the Court to consider and resolve, but that the concession served to narrow that field, and what would be the principles to be employed at the lower court level to distinguish beween the two.
Sauer conceded that there were some “private” acts alleged in the indictment that would not be precluded by immunity from being part of any left-over case. In answer questions about how to distinguish between “private” and “official”, Sauer pointed to a recent decision from the Court of Appeals in a civil case brought against Trump based on the events of January 6 where the Court allowed the case to proceed with discovery to determine what parts of the civil complaint alleged private conduct and what parts alleged “official conduct.” The Supreme Court held 40 years ago in Fitzgerald v. Nixon, that the scope of “official conduct” for a civil case was extremely broad — a ruling meant to insulate former Presidents from being sued for anything remotely connected to their conduct in office. The view of Trump’s defense team is that the scope of “official conduct” for purposes of his criminal immunity claim should be similar to how that question is being addressed in the case already decided in the D.C. Appeals Court. That decision — for sake of simplicity hear — boils the question down to whether the conduct can be described as something normally done by an “office seeker” as opposed to an “office holder” with the subjective motivation of Trump for the actions playing little or not role in that decision.
I’m not confident that distinction holds up that well under scrutiny, but Sauer seemed to think that in practice much of the alleged conduct would have aspects of both and as a result it would all end up in the “official conduct” bucket.
The process for making this distinction would be the SCO’s worst nightmare as it would likely require litigation on just about every allegation set forth in the indictment. It would require a “mini-trial” — with the SCO being forced to put on witnesses — who would be subject to to be subject to cross-examination — in order to determine if the conduct actually took place in the manner described in the indictment, and then have there be a judicial determination of not only what happened — sorting out conflicting evidence — but also whether what happened falls within the definition of “official conduct” that SCOTUS will be giving them.
When that is over, and the scope of “official conduct” had been determined, the entire matter would be subject to another round of appeals because the purpose of immunity is to not be forced to stand trial on certain claims or allegations. Until those are sorted out with finality, there can be no trial.
Final note — there were a few comments from conservative justices about how broad and open-ended the “conspiracy to defraud the United States” is when employed against a former POTUS. Since pretty much everything a POTUS does while in office has an effect on the “United States”, it does not take a lot of creativity to think of ways such a broad statute can be employed by political rivals after a POTUS leaves office.
Has Joe Biden violated it by either his “Student Loan Forgiveness” stunt — after being told by SCOTUS he lacked the authority to do so — or by his open invitation to illegal aliens to come to the U.S. border and cross into the U.S. with both explicit and implicit promises they would be allowed to enter and remain once here?
While the vagueness of this statute was no before the Court, I think the comments were a clear warning that the SCO choosing to go down this particular path is one fraught with problems ahead — and maybe an invitation to the trial court to take this question a bit more seriously than was the case with the immunity issue.
Another thing I haven’t seen anyone talk about is if the court accepts the reasoning of the DOJ then the DOJ will defacto have a veto on any presidential decision from this point on.
I'd like your thoughts on Justice Thomas question to Suter about weather he was challenging the legitimacy of the SCO appointment in this issue. Do you think he was suggesting that Smith was unlawfully appointed? What then?