On Monday, we broke the news that the Supreme Court had ruled on the once and future president Donald Trump’s immunity claims in Trump v. U.S. As we said at the time, the news was breaking and we hadn’t had time to read it. So … now we have read the decision and we wanted to get deep into it. Yep, it’s time for a patented Aaron Walker Deep DiveTM!
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(It’s not actually patented or trademarked.)
As usual, we will analyze the majority opinion in terms of the law, but as we go through it, we will note something else. There is a distinct thread running through the opinion that this author thinks is aimed at Jack Smith, the special prosecutor that is going after Trump in two of his pending criminal cases. And as we analyze the opinion overall, we will highlight that to you. And naturally, we will also be posting and responding to some of the reactions to the decision.
So if you want to follow along, we suggest that you go to that breaking news post and use the links there to actually pull up the Supreme Court case.
First off, this arises from Jack Smith’s D.C. indictment of Trump for activities related to January 6, 2021, where Smith is basically trying to make it a crime to dispute an election. Still, while the other criminal cases—including the Manhattan case where a jury rendered its verdict—weren’t technically on the docket, those cases might be affected by this. In other words, the Supreme Court might have also ‘spanked the Fani.’
Now, a point to start with is that there is already a ton of immunity floating around in the law. Here is one example of explicit immunity for Congress found in Article I, Section 6:
[Congresscritters] shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
But truth be told, Congresspersons enjoy immunity that goes far beyond that, so that essentially no Congresscritter can be successfully sued or prosecuted for an official act.
The same can be said for federal judges. As we wrote a few months ago when Trump lost in the D.C. Circuit:
A judge could literally issue a restraining order explicitly defying the Supreme Court and restraining protected speech, and there still would be no possibility of any kind of criminal or civil liability for that action. To take it to an even more ridiculous extreme, a male judge could officially rule that a pretty defendant has to sleep with him and throw her in jail for refusing, and there would be no liability because that would involve a ruling of the court.
Because the idea is that if every decision by a judge can open the door to criminal or civil liability, then lawfare could be used to effectively tie the judiciary in knots. But frankly that argument has a similar appeal when we are talking about the President of the United States, or a former president, or a candidate for President (and of course Trump is two of those things right now).
Oh, by the way, why does judicial immunity exist? Because they said so. So, you can’t sue judges for doing their job because the judges said so. Isn’t that convenient that they handed out such strong immunity to themselves?
On top of this, the President already enjoyed immunity to civil suits for official acts. That was established in Nixon v. Fitzgerald, 457 U.S. 731 (1982), and, yes, the Nixon in that case would be Richard Nixon, being sued for an allegedly retaliatory firing, the Supreme Court holding that Nixon was immune from such a suit. In that context, it doesn’t really seem like very much of a step to say that a president should be immune from criminal liability, too.
And an important point here is that there is nothing in the Constitution that grants the full breadth of immunity that the Courts have already handed out. The immunity given to Congresscritters goes further than those clauses giving them explicit immunity and there is nothing in the Constitution explicitly giving any judge or president any kind of immunity, civil or otherwise. The argument, therefore, isn’t from the text of any part of the Constitution, but rather from general principles, like separation of powers and the structure of the Constitution.
Also, here’s something else to keep in mind from when we listened to the oral argument in this case:
The final point we wanted to make is that we haven’t seen anyone mention that in truth, both sides agreed that a president/former president had some [criminal] immunity. [The lawyer for the special counsel’s office] admitted that, for instance, a veto could not be the basis of a criminal charge against the president, as well as a pardon, the recognition of a foreign nation or a presidential appointment. He waffled a bit about the president’s commander-in-chief powers, but was supportive of that immunity in at least some contexts. So, there was no lawyer standing before the Supreme Court that day arguing that there was no such thing as presidential [criminal] immunity. They were simply negotiating over the scope.
So, if any person believes that the Presidency deserved no immunity and is angry that they granted any, go yell at Jack Smith’s lawyer for not representing that view.
Finally, before we dig into the opinion, we will also quote ourselves from back when we discussed the oral arguments in this case:
the best argument for Presidential immunity is … pretty much what is happening right now. After all, isn’t it just a huge coincidence that Trump is facing four different criminal charges all across America, at the same time, in an election year? Not to mention having to deal with E. Jean Carroll’s nonsense defamation suit, the New York fraud trial that apparently had no victims, and having to fight Colorado’s attempt to kick him off the ballot entirely, which involved the Colorado Supreme Court actually attempting to mislead people about Trump’s words. More than a few people, including this author, thinks this is straight up ‘lawfare’ designed to abuse the criminal justice system to cause the courts to interfere with the election.
In that earlier piece, we went on to talk about all the ways that these criminal cases could effectively tie up Trump’s time, limit in a direct way his freedom of expression, and drain his bank account of money he could be spending on his campaign. And even if these prosecutors didn’t coordinate actions, they were are certainly doing all they can, independently, to tie Trump down like so many Lilliputians.
In any case, this is a Roberts opinion. The rule in the Supreme Court is that the most senior justice in a majority decides who writes the opinion and while Roberts is not chronologically the most senior—Thomas is—a chief justice is always considered the most senior even if he or she started yesterday. Roberts seems to love to write the blockbuster legal opinions, though we don’t blame him for that. And while Roberts can be infuriating, we think this opinion was very good doctrinally, and a ‘B’ in terms of the quality of writing. Not spectacular, but well done.
And even in the recitation of the facts, we think he was doing something subtle:
According to the indictment, … Trump and his co-conspirators attempted to persuade ‘the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.’ … And when that failed, on the morning of January 6, they ‘repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding.’
And what is the subtlety we notice here? The fact that one of those ‘facts’ found by the grand jury is demonstrably untrue. There’s no question that Trump ‘sent’ people to the Capitol, but he literally only asked them to peacefully protest. We have previously discussed that speech in general—in the context of showing Trump didn’t commit incitement—and this is basically the command he gave to the crowd:
So we’re going to, we’re going to walk down Pennsylvania Avenue. I love Pennsylvania Avenue. And we’re going to the Capitol, and we’re going to try and give.
The Democrats are hopeless — they never vote for anything. Not even one vote. But we’re going to try and give our Republicans, the weak ones because the strong ones don’t need any of our help. We’re going to try and give them the kind of pride and boldness that they need to take back our country.
As we wrote at the time:
If you cut through all the asides and half-finished thoughts, he was hoping that his proposals to challenge the electoral college votes would be seriously considered. (SPOILER: it wasn’t.) And he hoped to give wavering Republicans ‘the kind of pride and boldness that they need to take back our country’ and basically vote to support his challenge to the election. That’s a plan of peaceful protest. He was not calling for the riot that happened.
And equally a peaceful protest can’t be considered obstruction—and we define the term ‘peaceful’ as including ‘not going where you aren’t supposed to.’ Certainly, Trump wasn’t telling them to trespass.
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And here’s the thing. We don’t think Roberts or any of the conservatives in the majority are confused on this point. They know Trump didn’t direct them to obstruct anything. They know we know they didn’t. We think they were letting the readers know we can’t trust the indictment to be truthful. Maybe the indictments were not intentionally false, but they definitely weren’t accurate.
Next up, Roberts makes an important point:
This case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency. We are called upon to consider whether and under what circumstances such a prosecution may proceed. Doing so requires careful assessment of the scope of Presidential power under the Constitution. We undertake that responsibility conscious that we must not confuse ‘the issue of a power’s validity with the cause it is invoked to promote,’ but must instead focus on the ‘enduring consequences upon the balanced power structure of our Republic.’
(Citations omitted.) In short, this isn’t just about Trump. The Supreme Court is determining how every president will be treated, going forward. And we can’t help but think that this is a shot at all the people who want to try to warp the Constitution just to ‘get Trump.’
Next Roberts notes where the parties agree:
The parties before us do not dispute that a former President can be subject to criminal prosecution for unofficial acts committed while in office. They also agree that some of the conduct described in the indictment includes actions taken by Trump in his unofficial capacity.
This unofficial/official capacity issue is going to be most of the ball game, here—with acts carried out in the president’s unofficial capacity being essentially when he acted like a private citizen. For instance, if Trump was out golfing while president and he intentionally shot the ball at a woman and struck her, we can’t imagine a court deciding that this battery was an official act.
Still, we don’t read that as the court or any of Trump’s lawyers conceding that some counts of the indictment will survive this decision. It could be conceding that some conduct described in the indictment were ‘unofficial,’ but not necessarily criminal by themselves.
And this passage contains a subtlety that so far seems to have been overlooked by many pundits:
We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.
So, when we are talking about core powers, the president is absolutely immune. But, when we are talking about official actions that are not part of the core powers, then the Court is saying that the president should at least enjoy something called presumptive immunity.
But the Court is also saying (paraphrase) ‘we might later decide to grant absolute immunity for all of it.’ That’s the part we think most people are missing.
The natural first question is ‘what are the President’s core powers?’ Roberts gives a pretty good explanation:
No matter the context, the President’s authority to act necessarily ‘stem[s] either from an act of Congress or from the Constitution itself.’ … In the latter case, the President’s authority is sometimes ‘conclusive and preclusive.’ … When the President exercises such authority, he may act even when the measures he takes are ‘incompatible with the expressed or implied will of Congress.’ The exclusive constitutional authority of the President ‘disabl[es] the Congress from acting upon the subject.’ And the courts have ‘no power to control [the President’s] discretion’ when he acts pursuant to the powers invested exclusively in him by the Constitution.
(Citations omitted.) So, we are talking about powers of the President either explicitly in the Constitution or implied in the Constitution, where Congress can’t limit that power. An obvious example of this is the pardon power. There is nothing Congress can do to limit the President’s pardon power. The Constitution has built-in limitations on that power—the President can’t pardon a person for state crimes, for instance—but Congress can’t limit it.
For the same reason, the Supreme Court won’t allow a prosecutor to turn a pardon into a crime, at all. Again, we are talking absolute immunity. So, imagine a truly outlandish scenario. Imagine that instead of killing Osama bin Laden, we had captured him, during the Obama presidency. Imagine then that President Obama declared that he was pardoning bin Laden because Obama secretly hates America and hopes bin Laden uses his freedom to attack America again. Well, as horrible as that would be, you can’t charge Obama with any crime arising from that pardon even if normally one would call it treason.
So that is the core powers. But what can be official actions outside of those core powers? One category is when the action is explicitly or implicitly authorized by Congress. Another is where the President has concurrent authority with Congress. And as we said, the Supreme Court isn’t saying that they are granting absolute immunity, yet. For now, they are granting presumptive immunity.
Why grant any immunity at all? Well, the basic idea is that the president is one-of-a-kind in our Constitution.
The President ‘occupies a unique position in the constitutional scheme,’ … as ‘the only person who alone composes a branch of government,’ Trump v. Mazars USA, LLP, 591 U. S. 848, 868 (2020).
We include that citation because some weird people think that the Supreme Court never said a thing like that before, when that is not true—they said so previously, in an opinion joined in full by Sotomayor, Kagan, Ginsburg and Breyer (as well as two other conservatives). Anyway, in this case Roberts makes the point that we want the president to be able to be fearless and energetic—which is fundamentally incompatible with being afraid some adventurous prosecutor might try to twist something a President did in their official capacity into a criminal indictment. The court also mentions the civil immunity that the President already enjoys and then points out that there is even some immunity for presidential documents and recordings being seized in a criminal probe, with the logic being that if the President enjoys some immunity from attempts to obtain documents, how can he or she not enjoy immunity from actual prosecution?
And not for nothing, but we think the Chief Justice did something very sneaky, here:
The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under ‘a pall of potential prosecution,’ McDonnell v. United States, 579 U. S. 550, 575 (2016), raises ‘unique risks to the effective functioning of government[.]’
We omitted one citation but left in another, and regular readers might already know the case Roberts was citing: McDonnell v. U.S. This is what we previously said about that case:
From 2010 to 2014, Virginia had a governor named Bob McDonnell and he was considered a rising star in the Republican Party. He might have been a leading candidate for President in 2016, until Obama’s Justice Department went after him. He was convicted of accepting bribes, but McDonnell argued that even if he had committed all the conduct that the government alleged, the statute didn’t cover what he had done. The district court found against him. The Fourth Circuit found against him. But then he won in the Supreme Court. Unanimously. They vacated the verdict below and, as far as the law is concerned, he was never convicted nor could he be tried again. …
But by then the damage was done. We haven’t seen hide nor hair of McDonnell since then. The federal prosecutors lost, but what a coincidence? They wrecked the political career of a man who might have presented a serious challenge to the Democratic nominee in 2016.
Oh, and the prosecutor involved in that case? Jack Smith.
Bluntly, we don’t think Roberts needed that specific case to make his point. All Roberts was saying was that presidents might be frightened into inappropriate timidness by the fear of future prosecution. It’s very a logical argument, and the phrasing he is borrowing from the McDonnell case isn’t really anything special. It’s not like it is a particularly poetic turn-of-phrase. So, we think Roberts slipped that in specifically to say to Jack Smith ‘we remember what you did and we think you are up to the same nonsense again.’ As we wrote:
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People keep saying Smith is an independent prosecutor, but the Biden administration knew exactly what they were getting when they appointed him: A political attack dog, who doesn’t mind stretching the law to get his man. So, yeah, maybe Smith made his own decisions, but that’s a bit like releasing a starving wolf into the same cage as a sheep and pretending you don’t know what the outcome will be. The Biden administration might have been a little fuzzy on the details, but they knew what Smith would do: He’d go after Trump and get him on anything he could.
Turning back to the text of the decision—rather than the subtext we have been detecting—you can start to understand the rule the Supreme Court set down. If the power the president is wielding comes from the Constitution itself, it’s a core official act and the president enjoys absolute immunity. If the power comes from congressional authorization or there is concurrent authority with Congress, it is at least presumptive immunity—with the possibility that the Court might later say ‘actually, this is absolute immunity.’ And if it is none of those things, that is an unofficial act, and subject to possible prosecution.
But what is presumptive immunity? The Roberts court explains:
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.’
So, you might expect the Supreme Court to then go through the indictment and try to sort out what is and is not immune. But Roberts is not willing to do that, and here’s where he explains why:
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. Neither party has briefed that issue before us (though they discussed it at oral argument in response to questions). 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. As we have noted, there is little pertinent precedent on those subjects to guide our review of this case—a case that we too are deciding on an expedited basis, less than five months after we granted the Government’s request to construe Trump’s emergency application for a stay as a petition for certiorari, grant that petition, and answer the consequential immunity question. … Given all these circumstances, it is particularly incumbent upon us to be mindful of our frequent admonition that ‘[o]urs is a court of final review and not first view.’
So, he’s saying, look, the Presidency is different from every other office in America, so there isn’t a lot of caselaw on this. Indeed, as he noted before, no former president has ever been prosecuted before. That should have counseled everyone to slow down, but instead, everyone is rushing.
Furthermore, Roberts is saying this wasn’t really briefed by the parties—so we haven’t heard in detail from Trump’s lawyers or Jack Smith’s lawyers what they would call official acts and unofficial acts.
And normally, the first time a question is heard is in the trial court—not the Supreme Court. That’s what he meant when he said they were a court of final review and not first review. So, to give everything a little time to percolate, they are sending it back down to the trial court. The judge will take another crack at it, now with a lot of guidance from the Supreme Court and then there’s a good chance an appeal will be taken from that. If the Supreme Court has to come back to the question, then by then there will be a lot more clarity about it. They are likely to have two opinions on the subject and extensive briefing by both sides, not to mention at least a dozen amicus briefs.
This is similar but not quite the same as the Supreme Court deciding to ‘take a walk,’ as we previously suggested. In our prior piece, we were loosely paraphrasing one of our law professors when we wrote:
Imagine that a person had set up a nuclear bomb and the FBI has him in custody. It is set off to [blow up] … in the middle of a big city in five hours, unless they can locate the bomb and enter in the correct code to disarm it. Further, imagine that the FBI determines that the only way to get that information is to torture him and that is what they start to do. So, then the bomber’s lawyer finds a federal judge and says ‘my client is being tortured as we speak. I want you to enjoin the FBI from torturing him.’ And the government’s lawyer explains exactly why the torture is happening. What should a judge do?
Well, the judge doesn’t want to actually say torture is legal, right? But he or she doesn’t want that nuclear bomb to go off either—even if the judge isn’t in the blast range. So maybe the judge … goes for a little walk, for about five hours or so. And then when the judge returns, s/he writes an opinion condemning the torture but declaring, alas, that s/he couldn’t intervene in time, so the issue is moot. The time to grant an injunction is passed.
Then we wrote:
And maybe the Supreme Court should do something similar. Maybe they should just slow walk this entire issue, until November—or maybe even January. Maybe they need to put every case where presidential immunity might plausibly apply on hold while they just sit on the issue. If Trump wins in November, he would be able to shut down the federal prosecutions next January. And then maybe the Supreme Court only has to issue a narrow ruling that says that Trump’s actions are totally immune from state action—they can avoid the thorny issue of immunity from federal prosecution.
The Supreme Court hasn’t done what we literally asked them to, but the effect is almost the same. We have been reliably told that given the relevant calendars, it is unlikely that the remaining Trump cases will be tried before the election.
But despite the fact that Roberts was going to let the lower courts get a crack at it first, the opinion did provide some guidance when those lower courts get their first look.
One thing that’s interesting is that they cite a particular case positively while suggesting it was wrongly decided:
[S]ome 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. For those reasons, the immunity we have recognized extends to the ‘outer perimeter’ of the President’s official responsibilities, covering actions so long as they are ‘not manifestly or palpably beyond [his] authority.’ Blassingame v. Trump, 13 (CADC 2023)
We left in some citations this time, because they are important to cracking the code behind what we think Roberts is saying. Blassingame dealt with whether Trump had enjoyed civil immunity from suit and it did a great deal to flesh out the Nixon v. Fitzgerald doctrine we mentioned above. Thus, a lot of people suggested that any criminal immunity should follow the contours of the civil immunity outlined in that case. That citation of Blassingame by Roberts suggests that he thought that the D.C. Circuit was onto something.
But Blassingame also said that Trump could be subjected to a civil suit for his comments on January 6, 2021, which Democrats insist incited a riot even though it fails the legal test for incitement. As you might remember, previously the Colorado Supreme Court had to deceive the public to try to make the case that Trump committed incitement under the First Amendment. In other words, the Colorado violated Trump’s First Amendment right to free speech, while trying to violate our right to vote for the candidate of our choice—all in the name of preserving democracy, or somehting. But apart from our First Amendment concerns, the Supreme Court is suggesting that while the test in Blassingame might be correct, it was improperly applied in that case.
This is suggested in part with the citation of Trump v. Hawaii. That case overall was about the so-called ‘Muslim ban’ but the specific page that was cited discussed how presidents use the ‘bully pulpit’ as part of his or her job. So, the citation of the Hawaii case suggests that Blassingame misapplied its own test. That point that is fleshed out later in the opinion when Roberts writes:
The alleged conduct largely consists of Trump’s communications in the form of Tweets and a public address. The President possesses ‘extraordinary power to speak to his fellow citizens and on their behalf.’ … As the sole person charged by the Constitution with executing the laws of the United States, the President oversees—and thus will frequently speak publicly about—a vast array of activities that touch on nearly every aspect of American life. Indeed, a long-recognized aspect of Presidential power is using the office’s ‘bully pulpit’ to persuade Americans, including by speaking forcefully or critically, in ways that the President believes would advance the public interest. He is even expected to comment on those matters of public concern that may not directly implicate the activities of the Federal Government—for instance, to comfort the Nation in the wake of an emergency or tragedy. For these reasons, most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities.
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So, it’s not quite saying Blassingame was wrong on how it applied its own test, but if we were a judge in that case, we would think this is grounds for reconsideration of the motions to dismiss.
The Court goes on to give more guidance, also saying that ‘In dividing official from unofficial conduct, courts may not inquire into the President’s motives.’
Why? Because otherwise you can claim any official act is somehow a crime if you think a president did it for a bad reason.
Likewise, Roberts advises ‘Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.’ What does he mean by that? Consider, for example, our outlandish hypothetical involving a pardon of Osama bin Ladin. We weren’t kidding when we said normally that would be treason: Giving bin Ladin a pardon would arguably give aid and comfort to an enemy of the United States, which is the constitutional definition of treason. That definition is echoed in 18 U.S.C. § 2381. So, § 2381 a generally applicable law and it would make exercising that core constitutional power an act of treason. But Roberts is saying that in such a wild hypothetical situation, Obama couldn’t be indicted for treason based on a pardon because his power to pardon can’t be limited by Congress. He has absolute immunity in that area.
Roberts gets more granular from there. For instance, Trump talking to the DOJ and trying to get them to investigate alleged irregularities in the 2020 election is simply the President giving commands to his subordinates. It can’t be criminal.
He goes on to talk about Trump’s discussions with Pence when he advocated that Pence take certain actions. And that passage contains an important reminder about how important the Vice President is. For instance, Roberts writes
The Constitution provides that ‘the Vice President shall become President’ in the case of ‘the removal of the President from office or of his death or resignation.’ Amdt. 25, §1. It also ‘empowers the Vice President, together with a majority of the ‘principal officers of the executive departments,’ to declare the President ‘unable to discharge the powers and duties of his office.’’
(Citations Ommitted.) We don’t think Roberts wrote that in response to Biden’s debate performance last Thursday. If you read the whole passage in context, it is simply a catalogue of all the different provisions in the Constitution discussing vice presidential powers and duties. Furthermore, since this opinion was joined by several other justices, any last-minute changes would have to be approved by them and we just doubt that they had the time for all that nonsense.
But it’s kind of awkward, given Biden’s debate performance, isn’t it?
In any case, all of that is getting at whether or not Trump’s suggestion to Mike Pence that he try to fight certification could be criminal, the Court writing:
Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. … The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.
But then the Court kind of waffles on whether or not the presumption could be rebutted, basically leaving that to the lower courts to deal with first. But we think that’s missing the bigger picture, because if Trump was not acting in his official capacity, then he was acting as a private citizen and private citizens are allowed to ask public officials to do things. That is true even if that thing was beyond their power. You can go right up to Biden tomorrow and say ‘I would like you to give me a free Ferrari’ and even though Biden can’t do that for you, it isn’t a crime to ask. In fact, what Trump was doing can be characterized as petitioning the government for a redress of grievances, which is explicitly protected by the First Amendment.
The opinion goes on to talk about the so-called false electors scheme and even the events on January 6 itself, but really doesn’t seem to say much of substance on it.
The next part gets to the more controversial part, which led some weird people to say bribery was now legal:
What people like that are complaining about is this passage:
The Government does not dispute that if Trump is entitled to immunity for certain official acts, he may not ‘be held criminally liable’ based on those acts. … But it nevertheless contends that a jury could ‘consider’ evidence concerning the President’s official acts ‘for limited and specified purposes,’ and that such evidence would ‘be admissible to prove, for example, [Trump’s] knowledge or notice of the falsity of his election-fraud claims.’ … That proposal threatens to eviscerate the immunity we have recognized. It would permit a prosecutor to do indirectly what he cannot do directly—invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge. But ‘[t]he Constitution deals with substance, not shadows.’ … And the Government’s position is untenable in light of the separation of powers principles we have outlined.
Roberts is glossing this over, but the thing to get is that while the Constitution is the highest law in the land, it isn’t written like most statutes, with lots of specific limitations and qualifications. Instead, much of it is about goals that the government may pursue and goals it may not pursue. If the goal, or ‘end,’ is allowed, the power of the Federal Government to pursue it is very broad. As the Supreme Court said in McCulloch v. Maryland, 17 U.S. 316 (1819):
Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
In other words, if the goal is allowed, the Federal Government has wide latitude in pursuing that goal. But conversely, if the goal is prohibited, then the Federal Government can’t pursue it by any means.
So what Roberts is saying is that if they let the grand jury consider evidence relating to an official act as the special prosecutor suggests, there is a danger that the grand jury or the prosecutor would pursuing a forbidden goal—the criminalization of official acts—by another means.
Why? Well, for one thing because sometimes people hate a former president:
Allowing prosecutors to ask or suggest that the jury probe official acts for which the President is immune would thus raise a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance while in office.
And this passage is likely to be a concern with Trump’s Manhattan prosecution under Fat Alvin Bragg:
The prosaic tools on which the Government would have courts rely are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President.
In other words, the tools that are used ordinarily to protect a defendant from prejudice aren’t going to protect a president in a hostile jurisdiction. We think that if Trump’s lawyers were smart, they would use that language to suggest that Trump should have been granted at least a change of venue in the Manhattan trial, so it would have gone to part of the state that is less utterly hostile to him. Add that to the pile of reasons why Trump should at least be granted a new trial.
As for the claim that this means you can’t prosecute for bribery, the majority opinion specifically denies this in a footnote:
JUSTICE BARRETT disagrees, arguing that in a bribery prosecution, for instance, excluding ‘any mention’ of the official act associated with the bribe ‘would hamstring the prosecution.’ … But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. … What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety.
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(Citations omitted.) So, anyone (like Mr. Goldberg) saying bribery is legal now hasn’t really read the opinion or even just searched for the word ‘bribery’ in it and seen what was written about that topic. Also, they haven’t actually read the bribery statute, 18 U.S.C. § 201. We won’t go through every line of it but to give an example of how the statute is worded, in subsection (b)(2)(A), the statute says (in part) that …
Whoever … being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for … being influenced in the performance of any official act…
… shall be punished in various ways. Mind you, there’s more in the statute than that, but here’s a question: Does any official action have to occur to violate this law?
No.
Consider this totally hypothetical scenario—any resemblance between this and anything in reality is like, totally a coincidence—but imagine if we had a president named Joe Bidding. Imagine his son, Seeker Bidding, was in deep legal trouble because he bought a gun while he was basically a crackhead. So, Seeker goes to his dad, and asks for a pardon. Joe says ‘I will only do that if you wire me $10 million dollars.’ Seeker does this, and when the transfer is verified, Seeker says ‘I’ve done my end. You do yours.’ And then Joe Bidding laughs and says ‘sucker! I’m never giving you that pardon. Enjoy prison and don’t drop the soap!’
Well, that would be (among other things) accepting anything of value (money) in return for the performance of any official act. That fulfils every element of the crime, regardless of the fact he didn’t actually give Seeker what he wanted. Joe accepted the bribe. He just wasn’t being honest with Seeker when he took the money.
Or let’s change it up to show you how the motive for the official act is not relevant. Let’s imagine instead that that Seeker Bidding asked for that pardon and again Joe says he’ll only give it to him for $10 million dollars. So, Seeker wires the money to him and Joe laughs and shouts ‘sucker! I already gave you the pardon. Don’t you watch the news? I gave it to you a week before you even asked! You gave me $10 million dollars for something you already had!’
In that situation, it is undeniable that Joe Bidding was not actually influenced by the $10 million when deciding to issue the pardon because he hadn’t even asked for the money when he issued it. But it still counts as agreeing to accept anything of value in return for being influenced in the performance of any official act, and fits the statute. Thus, you can prove bribery even when there’s no question that the official act was not actually motivated by the bribery.
Because the essence of bribery is the quid pro quo, the ‘something for something,’ the ‘I will give you this if you give me that.’ Whether or not the person offering the bribe actually gets what he or she bargained for—either the official act or even the influence over that act—is besides the point. It is no defense to say ‘I didn’t actually give the person who bribed me what he or she wanted,’ ‘I was going to do it anyway’ or even ‘I already did it for other reasons.’ It doesn’t matter.
Moving on, finally Roberts addresses the Trump team’s claim that no prosecution is possible until a president is impeached by the House and Convicted in the Senate and the short version is Roberts rejects that. We honestly thought that was kind of a silly argument. There are many reasons why Congress might not impeach or convict a president who richly deserves it. For instance, while we don’t think either of Trump’s impeachments were legally sound, the second Trump impeachment was voted down primarily because by the time they held the trial, Trump was out of office. The Senate believed that they could not impeach a president who left office. That on its face has nothing to do whether or not Trump deserved to be impeached.
Wrapping things up, while addressing other matters—including responding to some of the dissent’s arguments—we also thought we saw a few more shots at Jack Smith’s prosecution. For instance, when making the point that immunity needs to be settled early in the case—long before a trial—the Court says that
Even if the President were ultimately not found liable for certain official actions, the possibility of an extended proceeding alone may render him ‘unduly cautious in the discharge of his official duties.’ … Vulnerability ‘‘to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute.’’
First, this is a rare acknowledgement by the Supreme Court that sometimes ‘the process is the punishment,’ that even if Trump ‘wins’ the criminal case in significant ways, he will still have lost. He will have lost money and his freedom even if he is acquitted. During the Manhattan trial, Trump was required to be in court every day the case was in session—so he couldn’t be out campaigning like a normal candidate. Also, he was subject to a gag order that his opponent was not. Indeed, we think it is very likely that he technically violated the gag order in the debate last week, which only goes to show you how unconstitutional that order is. And we think this is the Supreme Court acknowledging how these cases are election interference and trying to put a stop to it.
And we definitely think this is a shot at Smith:
As for the Government’s assurances that prosecutors and grand juries will not permit political or baseless prosecutions from advancing in the first place, those assurances are available to every criminal defendant and fail to account for the President’s ‘unique position in the constitutional scheme.’ … We do not ordinarily decline to decide significant constitutional questions based on the Government’s promises of good faith.
Yes, Roberts didn’t actually say ‘we don’t believe you’re acting in good faith, Mr. Smith.’ But that seems to be subtext.
Further, when discussing what historical practice might tell us about immunity, Roberts writes:
Conspicuously absent is mention of the fact that since the founding, no President has ever faced criminal charges—let alone for his conduct in office.
He is making an academic point about what that practice indicates about the reading of the Constitution, but we have to think that this is also a shot at Smith. During oral argument, the lawyer representing the special counsel’s office actually said, ‘The reason why there have not been prior criminal prosecutions is that there were not crimes.’ While that line wasn’t called out specifically by the justices to our recollection, it is facially ridiculous and we don’t think any of the justices bought that argument. There were forty-four presidents before Trump and they are telling us this is the first one who could have been charged with a crime? We can put aside Nixon because he was pardoned, but what about the other forty-three?
Bear in mind, you don’t need much evidence to indict—and a grand jury often won’t consider any defenses. You just need probable cause, which one of the lowest levels of evidence in our legal system. Lawyers have long joked that a prosecutor could indict a ham sandwich as a way of saying that it is extremely easy to get an indictment. During oral argument Alito pushed Smith’s lawyer on this point, asking if he knew of cases where a prosecutor really wanted an indictment and couldn’t get one. When the lawyer said that it happens now and then, Alito quipped, ‘Every once in a while there’s an eclipse, too’ and the room erupted in laughter. The arguments being made by Smith’s counsel literally didn’t pass the laugh test.
The point is we think the Roberts and the rest of the majority believed Smith’s team had no credibility. They didn’t believe for one second Trump was the first president in history who could have been at least indicted. They believed Smith’s lawyers were lying to them and do we have to tell you that if you are a lawyer, you don’t want a judge to think you are a liar?
Finally, Roberts discussed the danger to our system of failing to grant immunity and, yes, we think they took another shot at Smith:
Without immunity, such types of prosecutions of ex-Presidents could quickly become routine. The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid. Ignoring those risks, the dissents are instead content to leave the preservation of our system of separated powers up to the good faith of prosecutors.
Again, they didn’t say Jack Smith was acting in bad faith, but we feel like that is the subtext.
And that is it for our notes about the majority opinion, except we will say that apart from how this shaped the law, we think the opinion has an undercurrent of ‘we know what you are up to, Jack Smith. We know you are trying to throw the election to Biden. And we aren’t going to let you do it.’
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And anyone who is upset with the ruling should throw some of the blame at Smith. Smith did the unprecedented when prosecuting Trump and has done everything he could to make sure the process was as unfair as possible. And we noted toward the beginning, the Supreme Court didn’t decide whether presumptive immunity was enough for official acts that are not part of the core of the President’s powers. We think there is a little bit of a threat in that, like the Court is saying to Smith ‘this time, we didn’t elevate those powers to absolute immunity. But if you keep pushing this, we might.’
We called Jack Smith a partisan attack dog in the past. Maybe its time to put him back on his leash. Indeed, maybe its time for him to retire from prosecutorial duties entirely. After all, he’d probably make a perfectly good lawyer in private practice. We suspect he would be a great criminal defense attorney. But he is not suited to be a prosecutor.
We’ll touch briefly on the currencies because, well, they are just concurrences. First up, Clarence ‘The Hammer’ Thomas argued that maybe the special counsel position is illegal, anyway, arguing that there is no congressional authorization for it. We won’t go deeper into it, except that we suspect Thomas has basically written part of a motion to dismiss for the Trump team in both cases that Smith is involved in.
Finally, we get to Justice Barrett. She approaches the entire question differently than the rest of the conservative justices: She would simply say that the laws in question are unconstitutional as applied, when they are applied to official acts. That sounds mostly like a different way to get to a similar point, although we should note that she doesn’t seem to think that this approach would protect Trump as much as the other justices did. So she’s talking about a completely different approach to what has traditionally been called immunity.
Furthermore, she objects to the evidentiary rule the majority announced.
Additionally, we are mostly skipping the dissent by Sotomayor (and joined by the usual suspects) because they simply lost and their arguments are basically untethered from reality or even the majority opinion. But we will address the part that is probably getting the most attention, when Sotomayor writes:
The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.
As lawyers say, if the facts are on your side, pound the facts. When the law is on your side, pound the law. And if neither are on your side, pound the table. We think Sotomayor is pounding the table. You already know that her claim about bribery is nonsense, but let’s knock down the other two.
For instance, how exactly is the president granted the power to execute his or her political opponents without trial—using special forces or anyone else? In fact, the Due Process Clause of the Fifth Amendment says the opposite. And an actual, literal military coup to keep a President in office after his or her legal term is over is not part of the President’s power, because of pretty much every part of the Constitution that talks about how presidents are elected, how long their terms are and what their term limits are.
We’re not going to go through the entire opinion, but that shows you how the dissent is engaged in the mass murder of straw men. We have no idea what those straw men did to anger Sotomayor so much.
On to reactions:
The cut off text reads:
Federal judges and Members of Congress are immune from criminal prosecution for their official acts, and the Supreme Court today made clear that so is the President.
This is a crucial decision to protect the separation of powers, the presidency, and therefore, our country.
We would not be here today but for the fact that President Biden politicized and weaponized his Justice Department to destroy his political enemy.
The Supreme Court rebuked Biden’s republic-ending tactics.
No longer does President Obama have to fear imprisonment for his drone strike of two American citizens, nor does Biden for his illegal release of violent criminal migrants into America.
The Supreme Court is our line of defense against tyranny, including Biden’s unprecedented lawfare and election interference against Trump. The Supreme Court has delivered one of the most monumental decisions in its history.
We would argue that the Second Amendment is the last line of defense.
The cut off text reads:
This single-handedly damages several of the cases against President Trump.
The destruction of the presidency was averted today.
Thanks to @JackPosobiec on @humaneventslive for having me on after this monumental ruling.
We feel you. After all, between the time to read the case and actually dig into it, and then finding time to write about it, look how long it took us?
The president’s power has not been expanded. Congress’ power to criminalize the office of the presidency, the court’s power to prosecute presidents, as well as the power of current presidents to prosecute previous presidents—has been limited. You’re welcome.
We get the feeling that she thinks this is because orange man bad, rather than because Jack Smith is a political attack dog.
Literally, no. Trump isn’t in that picture, nor can he be held legally responsible for it under the First Amendment.
So, you will sign a document waiving all presidential immunity claims, in perpetuity, Joe? We are guessing you won’t.
Honestly, it just goes to show how many people are sharing their opinions without reading the opinion—not the least including Sotomayor. And ascribing this to a failure to read is being charitable. We think more than a few of these commenters are flat out lying.
Also, a law professor from Iowa Law School who wrote on the subject of immunity weighs in:
The cut off text is merely a link, presumably to his article.
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The cut off text:
I’m glad to see SCOTUS recognize the obvious — being thrown in jail is more dangerous than being asked to pay damages.
Honestly, we wish just once a Supreme Court justice would write ‘duh,’ in an opinion.
We don’t see it as bonkers, but carry on.
We admit that is more in the weeds than we are willing to get.
That’s what we keep hearing.
He is referring to the idea that Trump couldn’t be prosecuted unless he was impeached and convicted, first.
Well, we don’t mind if we do:
Of course, there is also the question of whether or not it affects other cases. Regular readers already know that this pushes back sentencing in the Manhattan case. As a slight addendum to that post, the court won’t take up that issue until September 18:
But ‘Shipwreckedcrew’ also got into the question of Fani Willis RICO prosecution down in Georgia.
We are very disappointed that he didn’t say the Supreme Court ‘spanked the Fani.’
As for the Manhattan case, Mike Davis had his own take:
We haven’t examined the case in detail, but if the jury relied on evidence that is now inadmissible, I don’t know how they can avoid declaring a mistrial. Indeed, if you look very close at the order …
… you will see that the judge said sentencing will happen on the 18th, ‘if such is still necessary,’ which suggestshe is at least officially open to the possibility that they will at least need a new trial.
‘Shipwrecked’ also wrote this:
The cut off text reads:
I think I’ve been about the only voice of legal analysis on the right — so far as I’m aware — who has repeatedly called out the use by the lower courts of the normal ‘standard of review’ on a motion to dismiss that the ‘Facts of the Indictment are constructed to be true for purposes of the motion.’
I have said from the start that that standard does not work for this immunity claim — in order to determine if immunity applies, the Judge needs to look at the evidence behind the allegations, and not just accept what the prosecutor has written in the indictment. That requires an evidentiary hearing where both sides are heard.
That was NEVER done and that is a key to the Court’s decision to send the case back — with some specific instructions on how that is to take place, many of which favor Trump’s position.
Indeed, Ann Althouse writes on her blog that
The effort to hurry seems to have ended up slowing things down. It’s not entirely back to square one, though, because the Court does offer some ‘guidance’
And ‘Shipwrecked’ also notes that Thomas is arguing that Jack Smith’s appointment of special counsel should be looked at.
Of course, that is relevant in every case where Smith is serving.
Finally, one person found a passage we admit we had missed.
Weirdly, we don’t remember reading that passage. Laughs.