What Did The Supreme Court Instruct The Trial Court To Do Regarding POTUS Immunity?

Is the plan by the Court and Special Counsel different from those instructions?

In the newly re-animated criminal case brought by Special Counsel Smith against former President Trump in the District of Columbia, the District Judge issued a scheduling order two weeks back that directed the SC’s Office to file its proposed “Opening Brief” on the issue of Presidential Immunity on or before September 26, 2024. So, this past Thursday the SC’s Office filed a brief that is approximately 180 pages long, along with four volumes of exhibits which are source documents for the references to evidence and testimony that is set forth in the 180 page Brief. I’ve not seen any information reported as to how many pages are in the four volumes of exhibits, but my guess would be that the total is over 1000 pages.

As I noted in an article last week, much of this material is going to be covered under the terms of the Protective Order requested by the Special Counsel’s Office shortly after the initial indictment was returned. That Protective Order provides that certain “Sensitive Materials” provided to the Trump Defense could not be included in filings on the public record. Included in the definition of Sensitive Materials are all Grand Jury materials covered by Rule 6(e), including transcripts of witness testimony, documents obtained via grand jury subpoena, and any exhibits used with the witnesses while they testified.

Also covered are all manner of documents — reports, summaries, notes, etc., — from witness interviews by members of the SC Office, along with any documents shown to the witnesses.

Prior to either party being allowed to file any “Sensitive Materials” in a motion or other filing on the “public docket,” a copy of the motion and any accompanying documents must be filed under seal — but only after an effort has been made to confer with the other side on proposed redactions. The filing party can submit a redacted version of the motion under seal. The opposing party can then file its own version of a redacted motion to be filed on the public docket.

We know that SC Smith filed his motion and exhibits, along with a proposed redacted version, because the District Judge issued and order setting forth certain deadlines for the Trump Defense to respond to the SC’s redacted version, and submit further redactions it would propose.

These are not deadlines to file responsive pleadings to the substance of the “Opening Brief” — but these deadlines intrude on that work. Here is the “Scheduling Order” entered by the Court on September 6, 2024:

So, this is the schedule now:

• 9/26 — Special Counsel files Opening Brief and 4 Volumes of Exhibits

• 10/1 — Trump Defense to file objections to proposed redactions — and additional requested redactions to the Opening Brief.

• 10/10 — Trump Defense to file objections to proposed redactions and additional requested redactions to four volumes of exhibits.

• 10/17 — Trump Defense to file substantive response to Opening Brief and any renewed motion to dismiss based on Presidential Immunity.

• 10/29 — Special Counsel to file Reply and Opposition to Trump Defense’s Response/Motion.

The Special Counsel had from July 1 to September 26 to work on the Opening Brief and four volumes of Exhibits that it filed last week. In fact, at the Status Conference on September 5 — which I attended — the Special Counsel suggested September 26 as a filing date for its Opening Brief, meaning the Special Counsel needed ANOTHER 21 days to finish its project.

At no point during that hearing did anyone make reference to the need for the Opening Brief and Exhibits to undergo a redaction process.

Yet, now the District Judge has issued an order following the filing of the Opening Brief and Exhibits under seal that wedges the redaction process into the 22 day period she gave the Trump Defense to prepare its substantive response.

The Special Counsel had 88 days to get its Opening Brief and Exhibits in order.

The Court gave the Trump Defense only 22 days to prepare a substantive response — claims that the Superseding Indictment includes allegations covered by POTUS immunity — with the Special Counsel then having 12 days to respond to that.

But, by requiring Trump to dispute the proposed redacted version within the 22 days given to file the substantive response, the Court has saddled the Trump campaign with filing objections to the proposed redacted version of the brief (6 days) and then the Exhibits (15 days), in addition to the substantive response. So the Trump Defense must file three significant pleadings in the period of 22 days, to respond to filings made by the Special Counsel that it had 88 days after the Supreme Court’s decision to prepare.

Notably absent from either of the orders is any indication of what will follow the filing of these various documents — no hearings were set. There is nothing to suggest that the District Judge won’t simply announce her decision in the form of an opinion/order issued unexpectedly one morning after October 10, with whatever form of the Opening Brief landing on the public docket for the left-wing press and pundits to run wild with before any response has even been filed.

Let’s imagine there is another debate and Harris does poorly. If the Special Counsel’s Opening Brief and Exhibits, with minimal redactions, lands on the public docket the following day, would that have an impact? That would be overt election interference met with an incredulous claim “The election calendar plays no role in the decision-making in this case” — except for the fact that every decision has an impact on the election.

Is this the “procedure” envisioned by the Supreme Court back on July 1 when it issued its decision? Let’s consider some excerpts from the Majority Opinion authored by Chief Justice Roberts:

At a minimum, the President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.”

“The first step is to distinguish his official from unofficial actions. In this case, however, no court has thus far considered how to draw that distinction, in general or with respect to the conduct alleged in particular.”

“Despite the unprecedented nature of this case, and the very significant constitutional questions that it raises, the lower courts rendered their decisions on a highly expedited basis. Because those courts categorically rejected any form of Presidential immunity, they did not analyze the conduct alleged in the indictment to decide which of it should be categorized as official and which unofficial.”

The third quote is of interest. The overt criticism of the both the District Court and the Appellate Court in not being deliberate in their approach to dealing with the issues is unmistakeable.

The very first issue is to separate “official” from “unofficial” conduct, yet the District Judge seems committed to speed above all else. So that mistake is simply repeating itself from the first effort on this subject in December 2023.

And like the underlying immunity question, that categorization raises multiple unprecedented and momentous questions about the powers of the President and the limits of his authority under the Constitution.

The “immunity question” is a separate inquiry from the “categorization” issue. This breaks down into four separate inquiries:

1. Unofficial and not disputed.

2. Claimed Official v. Claimed Unofficial.

3. Core Function Official v. Official but subject to presumption.

4. Official but presumption rebutted v. Official and presumption not rebutted.

These questions cannot be addressed — much less resolved — through the presentation of proffers in briefing. And that is not what the Supreme Court directed.

Critical threshold issues in this case are how to differentiate between a President’s official and unofficial actions, and how to do so with respect to the indictment’s extensive and detailed allegations covering a broad range of conduct.

The “threshold issues” are not whether the alleged conduct is “official” or “unofficial” — the threshold issue is how to distinguish one from the other. The standards for how to make that determination should be what the first inquiries concern — as directed by the Supreme Court. That does not require an evidentiary inquiry that looks at grand jury testimony of witnesses — done without the benefit of cross-examination.

Although we identify several considerations pertinent to classifying those allegations and determining whether they are subject to immunity, that analysis ultimately is best left to the lower courts to perform in the first instance.

“Classifying those allegations” and “determining whether they are subject to immunity” — this is a two-step process, at least. What it certainly is not is what the District Court seems to have in mind.

Determining whether an action is covered by immunity thus begins with assessing the President’s authority to take that action.

As “suggested” by the Supreme Court, the Presidential immunity determination should begin with an analysis of every action taken — as set forth in the Superseding Indictment — that identifies whether any Presidential authority is involved in the taking of that action. The inquiry could be quite simple for certain categories of conduct detailed in the indictment. I’ve referenced before that the Court signaled one very broad category of likely official conduct for which the Special Counsel will likely have trouble overcoming the “presumption” and that is the category of Trump’s public comments.

And some Presidential conduct—for example, speaking to and on behalf of the American people, see Trump v. Hawaii, 585 U. S. 667, 701 (2018)—certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision.

Consider this — when Trump was making statements about whether fraud or other irregularities had happened in various states during either the voting or vote counting processes, was he speaking “on behalf of” anyone other than himself?

How can the Special Counsel or the District Judge separate out comments in that regard that are made “on behalf of” Candidate Trump and “on behalf of” the American people who voted for Candidate Trump? This is the point of Trump’s post-election protests that the media refuses to understand or is just too stupid to understand — in protesting the election outcome he was not just speaking/ acting on his own behalf, he was speaking/acting on behalf of voters who MIGHT have been disenfranchised by the processes and procedures employed in a dubious manner by some states under the control of the political opposition.

Before the inquiry in the District Court ever turns to a factual analysis of various witness statements and/or testimony before a grand jury, the Superseding Indictment needs to have wrung out of it any allegations that — based on the Supreme Court’s opinion — can’t be salvaged by such a factual inquiry. Comments made by Trump is just one such category. Another would be allegations in the Superseding Indictment that involve allegations regarding Trump’s motives for taking certain actions, regardless of whether those actions are official or unofficial.”

In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect. Indeed, “[i]t would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government” if “[i]n exercising the functions of his office,” the President was “under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry.”

Go back to the point made above — BEFORE dividing “official” from “unofficial,” the “threshold issue” is how to distinguish one from the other. BUT, in this quote the Court is saying that in conducting this inquiry, the District Court cannot examine Trump’s motives for taking the action alleged in the Superseding Indictment.

This second level of analysis — after stripping out his public comments — would strip out all the allegations of the Superseding Indictment that are presented to explain the “whys” with respect to the actions taken. “Courts may not inquire into the President’s motives” — that is a categorical prohibition meant to protect the institution of the Office of the Presidency as part of the Separation of Powers.

Like Trump’s comments to the public, evidence FROM ANY SOURCE that purports to speak to or examine why Trump did or said certain things cannot be part of the process to determine whether Presidential immunity applies.
Whether Trump’s motives were benign or malign is not even for the District Court to consider. Those allegations must come out of the indictment and the evidence is not available to the Special Counsel as part of the charge or as evidence at trial.

The final point I’m going to make here is one that the Trump Defense has been advancing since the Supreme Court decision, but which the Special Counsel won’t let go of — whether it can use the interactions between Trump and former VP Pence as a basis for the charges or as evidence in the case. The Special Counsel acknowledged before the Supreme Court that it was wrestling with that question, but it still included in the Superseding Indictment much of the same alleged conduct vis-a-vis Pence as was in the original indictment.

The Government explained at oral argument that although it “has not yet had to come to grips with how [it] would analyze” Trump’s interactions with the Vice President, there is “support” to characterize that conduct as official. Tr. of Oral Arg. 128. Indeed, our constitutional system anticipates that the President and Vice President will remain in close contact regarding their official duties over the course of the President’s term in office. These two officials are the only ones “elected by the entire Nation.”

Taking into consideration everything said by Chief Justice Roberts in his Opinion on the question of the relationship between the Offices of the President and Vice-President, there is zero chance that the interactions alleged in the indictment between Trump and Pence will be deemed as “unofficial” conduct. For the same reasons — the same analysis in the Opinion — there is no chance that a finding that this “official conduct” could be subject to the presumption being rebutted — i.e., that there was no risk from a prosecution based on such interaction would interfere with future Presidencies and the relationship between the occupants of those two offices in the future.

None of that analysis depends on the actual communications between Trump and Pence. The answer to the “immunity” question and the presumption is found in the relationship between the two offices and the two office-holders in the Executive branch regardless of who the occupants are. That is not a “fact intensive” inquiry that requires an “Opening Brief” and four volumes of exhibits.

What the above reflects is that the Supreme Court’s opinion, after first chiding the courts below for not taking their task seriously and proceeding with the deliberateness required to tackle such a weighty question of Presidential immunity from prosecution, set forth a serious of deliberate steps the lower courts should take in attempting to answer the questions about how Presidential immunity is to be applied in the context of the indictment brought by the Special Counsel.

But what is happening is nothing short of an election interfering dump of a one-sided “factual” narrative crafted by clever prosecutors though the investigative and grand jury process where the defendant — the victim of this dump of information — has no role in its fabrication and has no effective means to counter the narrative in the court of public opinion.

The reality is that D.C. case premised on the post-election efforts by the Trump Administration will not get to trial — ever.

The legal hurdles to proceeding are too high, and once the allegations barred by official act immunity are stripped out of the indictment and the evidence connected to those allegations is ruled out of any trial, the case is something less than even a hollow shell.

But because this is true — and all the relevant actors know it is true — they are now orchestrating what is just Kabuki Theater, and are unlikely be held to account.

This case never gets to trial.

Write that down.