I argued in a blog post on Sunday, April 21st that Special Counsel Jack Smith lacked defendant standing to defend the U.S. government's victory in the D.C. Circuit, in the case of Trump v. United States. I pointed out that all nine justices, themselves, must ask the lawyers who argue both sides of Trump v. United States whether Jack Smith has standing to defend the D.C. Circuit opinion given that his appointment as Special Counsel was unconstitutional.  Jack Smith lacks standing to defend the D.C. Circuit's decision in Trump v. United States every bit as much as I lack standing that decision.  Jack Smith is a private citizen in the eye of the law.

I want to argue in this post that disposing of Trump v. United States on jurisdictional grounds is a far better way of deciding Trump v. United States than would be wading into the constitutional morass of trying to decide on the merits, which actions that a President takes while he is in office he can be prosecuted for, and which he cannot be prosecuted for. This is a very fraught question of U.S. constitutional law that is best left unanswered, unless the facts of a live case or controversy imperiously demand that the Supreme Court decide it.

Many will believe that the answer to the presidential immunity question depends on whether the president is "corruptly" exerting the power of the office of the President of the United States or whether he is engaged in "non-presidential activities". If President Biden corruptly accepts bribes, paid to his son Hunter, in exchange for altering U.S. policy in Ukraine or towards China, many will believe that is an act that he could be prosecuted for. When President Barack Obama ordered the killing of a known terrorist by a Predator Drone Strike, which accidently led to the death of a U.S. citizen who was physically near that terrorist, President Obama could not be prosecuted for that act because the death of the American citizen was an unintended consequence of President Obama's legitimate exercise of his executive power as Commander in Chief. If President Biden were to walk out of the White House and shoot some random person walking down Pennsylvania Avenue many will believe that would be a crime that he could be prosecuted for.

The problem that the three hypotheticals just addressed show is what a slippery test would come to exist for anything other than a grant of blanket immunity to sitting presidents for all of the actions that they take while serving as President. Yet, I strongly doubt that the Supreme Court will be willing to give presidents blanket immunity for any crimes that occur during their terms in office.

I would urge the Supreme Court, instead, to duck the very hard problem of presidential immunity from criminal prosecutions, which could draw the Court into an endless game of second-guessing presidential decisions. This can be easily done by issuing a much narrower, and quite correct opinion that Jack Smith lacks defendant's standing in Trump v. United States. The blame for the Jack Smith screw-up lies squarely with Merrick Garland because President Biden's Attorney General broke the law by incompetently, and for political reasons, appointing private citizen Jack Smith to be Special Counsel to prosecute former President Donald Trump instead of designating one of the 92 Senate confirmed U.S. Attorneys to be a Special Counsel, with nationwide jurisdiction, to investigate the allegations against former President Donald Trump.

The reason why prosecutorial power should be confined to Senate confirmed U.S. Attorneys was well stated by Attorney General Robert Jackson in a speech entitle "The Federal Prosecutor". In that speech, Attorney General Jackson said:

"The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. ***

Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of federal district attorney from the very beginning has been safeguarded by presidential appointment, requiring confirmation of the senate of the United States. You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor."

Brief responses based on the second oral argument this morning:

1. Starbucks wins.
2. The Court will hold, as it should, that the four-factor test should be applied. The general principle here (see Weinberger v. Romero-Barcelo, Nken, e.g.) is that we presume all the traditional principles of equity apply unless there is a clear statement by Congress setting them aside.
3. Note that the four factors do not exhaust the equitable considerations (there are maxims, defense, other equitable principles). In Justice Gorsuch's phrase, "the full considerations of equity."
4. Note, too, that insisting on the four-factor test does show that equity is a developing tradition. The four-factor test did not exist in 1947. So the logic here has to be: the statute references equity, equity includes the considerations for a preliminary injunction, some of those traditional considerations have been crystallized in the four-factor test, and so courts should use the four-factor test for injunctions under the statute. That is correct: the right approach is not to apply 1947 equity to a 1947 statute, and 1952 equity to a 1952 statute.
5. Good recognition that the preliminary injunction is just a "quick look" at the merits (Justice Gorsuch's term) and does not control the eventual determination of the merits.
6. The Court should take into account and emphasize what is really the fundamental point of the preliminary injunction, which is preserving the trial court's ability to decide the case. Camenisch is a strong case on this, and it's a theme that doesn't come through in Winter (for reasons specific to the posture of that case)–it's an important theme about the preliminary injunction that the lower courts right now are losing sight of. Relatedly, it actually fits the context of this statute very nicely: the preliminary injunction should be given if needed to preserve the Board's ability to adjudicate the case (which fits with one of Lisa Blatt's answers about irreparable injury).
7. Although the justices pressed the Board counsel about the "reasonable probability" formula instead of "likelihood of success on the merits," it's worth noting that both formulas and others have a long pedigree in equity. The latter doesn't start dominating until four-factor tests get developed in the 1970s. And there are actually good arguments for the former, because it reduces the intensity of the merits focus. But as a matter of current Supreme Court doctrine, it's not really tenable to have to this special carve-out of a lower standard for one statute, given the lack of a clear statement to that effect from Congress.
8. There was some concern, especially from Justice Jackson, about the importance of the statutory context. Equity has a good way to deal with that. The usual test, and all of the usual principles not found in the test, can be applied, but in applying them, the court should be guided by the policies enacted in the statute. "Equity follows the law" is the maxim that expresses this willingness of the judge applying equitable powers to take cues from the statute.
9. Note that "just and proper" is a hendiadys here, and that seems obvious and unobjectionable to everyone. As a hendiadys, it's a fitting way to refer to the traditional equitable analysis.
10. There was repeated speculation about whether this will be a short opinion. It should be, and I think it will be. Combining points 2 and 8 in this list would bring together the concerns expressed by all the justices. But as critical guidance for the lower courts about what the preliminary injunction is for, reiteration of points 3, 5, and 6 would be very valuable.

I've seen some items online asserting that the Northwestern Dean of Students "joins anti-Israel rally organized by far-left student groups," was "openly standing in solidarity with students engaged in anti-Semitism and intimidation," or was otherwise at fault in supporting the rally. Our own David Bernstein, for instance, posted at InstaPundit,

HEADS SHOULD, BUT LIKELY WON'T ROLL: Northwestern University Dean of Students Attends Protest Targeting Campus Jewish Community Center. Let's just pause to take this in for a moment. Northwestern University is already under federal investigation for violating Jewish students' civil rights. And so the Dean of Students, Mona Dugo… decides to attend a rally protesting, and let's be honest, trying to intimidate, the campus Hillel (Jewish student group). She later claimed that she wanted to make sure the protestors right to protest was protected, as if roving mobs of Jewish students have been the problem on campus. Who is she kidding? If she isn't relieved of her administrative responsibilities, and soon, Northwestern will richly deserve the hostile environment lawsuit it loses.

I have to say I'm skeptical about this criticism. It makes good sense for administrators to be present at events that might go bad in various ways, or that might lead to complaints. That way they can try to nip problems in the bud, or at least have a sense of who was responsible for any trouble that might arise. Such presence isn't necessarily "join[ing]" the rally, or otherwise endorsing it; to the extent that it's "attend[ing]," it's attending in the sense that a police officer may attend an event to make sure things go smoothly, not in the sense that a participant may attend it to express support (or even out of genuine personal interest).

Now a Daily Northwestern story does say,

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Tomorrow the Supreme Court will hear oral argument in Starbucks Corp. v. McKinney. Read more in this piece at ScotusBlog by Ronald Mann. The question concerns the standard for injunctions sought by the NLRB.

Here is a note from the forthcoming edition of Ames, Chafee, and Re on Remedies, my casebook with Emily Sherwin:

NOTE ON GOVERNMENT PLAINTIFFS IN EQUITY
Does it matter that the plaintiff is the government? Or do the same equitable powers and limitations apply? Cf. National Labor Relations Board. v. P*I*E Nationwide, Inc., 894 F.2d 887, 893 (7th Cir. 1990) (Posner, J.): "The issuance of an injunction is the exercise of an equitable power, and is subject to the equitable constraints that have evolved over centuries in recognition of the heavy costs that injunctions can impose (including costs to innocent third parties) and the potential severities of contempt. . . . The principles of equitable jurisprudence are not suspended merely because a government agency is the plaintiff."

From the Daily Caller:

Biden is set to travel to the city on Thursday to promote the CHIPS and Science Act and announce a grant delivered by the legislation, according to CNY Central News. The president opted not to delay the trip following the loss Syracuse Police Officer Michael Jensen and Onondaga County Lt. Sheriff's Deputy Michael Hoosock in the line of duty on April 14 during a shootout.

Because officers are still grieving the loss, local law enforcement expressed worry to the White House over the timing of the trip, Jeff Moran, the president of the Syracuse Police Benevolent Association, the union representing the city's officers, told the Daily Caller.

"The department expressed their concerns to the Biden administration regarding his visit, and the quick turnaround of a Syracuse police officer being buried and an Onondaga County Sheriff's deputy being buried, and then the manpower that it would take and everything that our members have been through in the past week. Those concerns were expressed to the Biden administration and the Biden administration elected to move forward with the visit," Moran told the Daily Caller.

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Every year at the close of the Passover seder, Jewish people say "Next year in Jerusalem." In my life I have always repeated that phrase without much thought. Of course I could spend next year in Jerusalem; why wouldn't I? This year, that line takes on a new significance.

I weep at the situation facing Jewish students at elite institutions. Rabbis told Jewish students to return home because it is not safe. Temples hired armed guards to chaperone students to religious services. People wearing Yarmulkes are being berated with the most vicious anti-semitic slurs, and are even being physically attacked. I would commend essays in the Free Press by students from Columbia and Yale.

Let us not forget that this is what years of indoctrination on microaggressions, intersectionality, and DEI have wrought. Next year, may we all be in Jerusalem, and may the Department of Education Civil Rights division be very busy.

The Ohio legislature recently enacted, over the Governor's veto, a law concerning transgender minors. The law was challenged in a state trial court. Two named plaintiffs asserted an injury to challenge particular portions of the law. Yet, the judge entered what is in effect a universal injunction. For example, neither of the plaintiffs are student athletes, but the court enjoined provisions of the law concerning athletics.

Today, Ohio Attorney General Dave Yost, through Solicitor General Elliot Gaiser, filed an emergency motion in the Ohio Supreme Court to confine the trial court's "injunction to the limits of judicial power."

Here is a snippet from the Introduction:

A trial court has gone far beyond its power to enter a so-called "universal injunction" against an entire new law, in all applications, as to all the parts of the law—despite the fact that only two named plaintiffs have alleged narrow harms from only one part of the law. . . . The court could have granted preliminary relief to two plaintiffs who alleged only a potential desire for medication, under the principle that injunctions should be no broader than needed to protect plaintiffs. Instead, despite the lack of any allegation—let alone a showing—of harms from the rest of the law to Plaintiffs or other 2 Ohioans, the court pronounced that none of the law can go into effect—leaving Ohio families open to all the harms that their elected representatives voted to avert.

The motion invokes the U.S. Supreme Court's order in Labrador v. Poe, which I wrote about last week:

Indeed, one week ago, on April 15, the U.S. Supreme Court followed these same principles of equity to stay a federal trial court's preliminary injunction against enforcement of the Idaho analogue to Ohio's law—which prohibits performing gender transition services on minors—except as to the parties before that Court. Labrador v. Poe, 601 U. S. ____, 2024 WL 1625724 (S. Ct. April 15, 2024). Because a Franklin County judge issued an injunction unbounded by the clear limits on its power, the Relators seek an emergency writ to conform the injunction to Ohio law.

Justice Gorsuch's concurrence focused on federal courts issuing universal injunctions against state laws, but the reasoning would apply in a similar fashion to state courts issuing universal injunctions against state laws–at least where state courts follow the same principles of Article III jurisprudence. (My understanding is that Ohio courts track Supreme Court doctrine, but I am not an expert in this area of state law.)

The brief also invokes Whole Woman's Health v. Jackson:

Second, twenty-five years ago, this Court improperly issued a writ that effectively enjoined all the State's common-pleas judges from following a set of tort-reform laws even though no plaintiff could show immediate harm from those laws. State ex rel. Ohio Acad. of Trial Laws. v. Sheward, 86 Ohio St. 3d 451 (1999). That was a mistake. See id. at 516 (Moyer, C.J., dissenting); see also Whole Woman's Health v. Jackson, 595 U.S. 30, 39 (2021) ("an injunction against a … court or its machinery would be a violation of the whole scheme of our Government") (internal punctuation omitted). But it did have the imprimatur of four Justices. This case is Sheward squared: a single judge has effectively told every other judge in the State that he or she cannot follow the will of the People as expressed through a legislative supermajority.

The basis of the trial court's ruling was the single-subject provision of the Ohio Constitution, which limits how many subject can be addressed in a single bill. (Judge Sutton wrote about this clause in 51 Imperfect Solutions.) The trial court ruled that denying standing "would insulate legislation from single-subject constitutional scrutiny without class certification or unless a coalition of plaintiffs could be assembled to cover the wide variety of subjects massed in a single piece of legislation."

There is a fascinating question about the relationship between the single-subject rule and the writ of erasure fallacy. Can a court actually "erase" a statute that does not conform with certain procedural requirements under state law? Wouldn't the remedy have to be universal in that regard? Imagine if there was no Enrolled Bill Rule, what would a court do? Stated differently, can a court "erase" an entire statute even if only parts of the statute injure a named plaintiff?

I don't know the answer to these questions, but I think they would likely have to be resolved subsequent to any standing inquiry. A bill has a finite number of provisions. It should not be difficult for sophisticated civil rights groups to find a plaintiff to challenge each provision. When courts issue dubious standing rulings, they often assert that someone must have standing, or that class action certification is too complicated. That's the point. It isn't easy to get into federal (and in some cases, state) court.

Because this issue will be resolved entirely on the basis of state law, an appeal to the United States Supreme Court will not be possible. The state court will have the final say here.

Okay, yes, I promised to take a hiatus after episode 500. Yet here it is a week later, and I'm releasing episode 501. This is my excuse. I read and liked Dmitri Alperovitch's book, "World on the Brink: How America Can Beat China in the Race for the 21st Century."  I told him I wanted to do an interview about it. Then the interview got pushed into late April because that's when the book is actually coming out.

So sue me. Anyway, I'm back on hiatus.

The conversation with Dmitri outlines his background in cybersecurity and geopolitics, beginning with his emigration from the Soviet Union as a child through the founding of Crowdstrike and becoming a founder of Silverado Policy Accelerator and an advisor to the Defense Department. Dmitri shares his journey, including his early start in cryptography and his role in investigating the 2010 Chinese hack of Google and other companies, which he named Operation Aurora.

Dmitri opens his book with a chillingly realistic scenario of a Chinese invasion of Taiwan. He explains that this is not merely a hypothetical exercise, but a well-researched depiction based on his extensive discussions with Taiwanese leadership, military experts, and his own analysis of the terrain.

Then, we dive into the main themes of his book—which is how to prevent his scenario from coming true. Dmitri stresses the similarities and differences between the US-Soviet Cold War and what he sees as Cold War II between the U.S. and China. He argues that, like Cold War I, Cold War II will require a comprehensive strategy, leveraging military, economic, diplomatic, and technological deterrence.

Dmitri also highlights the structural economic problems facing China, such as the middle-income trap and a looming population collapse. Despite these challenges, he stresses that the U.S. will face tough decisions as it seeks to deter conflict with China while maintaining its other global obligations.

We talk about diversifying critical supply chains away from China and slowing China's technological progress in areas like semiconductors. This will require continuing collaboration with allies like Japan and the Netherlands to restrict China's access to advanced chip-making equipment.

Finally, I note the remarkable role played in Cold War I by Henry Kissinger and Zbigniew Brzezinski, two influential national security advisers who were also first-generation immigrants.  I ask whether it's too late to nominate Dmitri to play the same role in Cold War II. Just remember that you heard it here first!

You can download episode 501 here.

The Cyberlaw Podcast is open to feedback. Send comments to @stewartbaker on Twitter or to CyberlawPodcast@gmail.com. Remember: The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

On Thursday, April 25th the Supreme Court will hear oral argument in Trump v. United States. I have signed an amicus brief in this case, along with former Attorneys General Ed Meese, Michael Mukasey, and Professor Gary Lawson, and with Citizens United, arguing that Special Counsel Jack Smith was unconstitutionally appointed by Attorney General Merrick Garland.  Gene Schaerr filed the amicus brief, which grows out of a law review article that Gary Lawson and I published: Why Robert Mueller's Appointment as Special Counsel was Unlawful, 95 Notre Dame. Law Review 87 (2019). We claim that because Jack Smith was unconstitutionally appointed, he therefore lacks standing to defend the order of the D.C. Circuit denying Donald Trump's claim of inherent presidential immunity from criminal prosecution for acts taken while serving as President. Smith can no more defend the lower court order than can any random person picked off the street.

Jack Smith is in the eyes of the law a private citizen, and all the acts he has taken since his appointment on November 18, 2022 are null and void. This is as true of the acts Smith has taken in the Florida classified documents case, against Donald Trump, under the eye of the 11th Circuit, as it is of the actions Smith has taken in the D.C. District Court case, against Trump involving the events of January 6, 2021. All those he has imprisoned or entered into plea bargains with are free. Indeed, Jack Smith can be sued in torts for unconstitutionally depriving people of liberty and property.

The absence of standing to defend the D.C. Circuit's opinion below on Smith's part cannot be waived by Donald Trump's or anyone else's failure to raise it sooner. And, the absence of defendant standing must be raised sua sponte by any federal judge or Supreme Court Justice who Jack Smith purports to appear before in any case whether the case involves Donald Trump or anyone else. Standing must exist at all stages of litigation including throughout all authorized appeals and habeas corpus petitions.

We argue that under the Constitution only Congress can create the Office of Special Counsel to which Jack Smith was appointed. The power to create federal offices is an exclusively congressional power and may not be usurped by the executive branch.  Congress, however, may by a clear law, vest in the Head of a Cabinet Department the power to create inferior offices and officers. It has done so for example for the Departments of Agriculture, Education, Health and Human Services, Transportation, and for the Department of Justice, but specifically only for the Bureau of Prisons, and not more broadly for other DOJ components.

Why would Congress deny the Attorney General the broad power it gives to other Cabinet Secretaries to create inferior officer Special Counsels? The answer is that Senators have always insisted on having a say in the selection of the U.S. Attorneys who can bring prosecutions against their political allies in their home States.

Nor would it be wise to give corrupt Attorneys General -- like those who served for Presidents Grant, Harding, Truman, and Nixon -- unlimited power to create Special Counsels to investigate their political enemies. Congress has wisely allowed the Attorney General to designate any one of the 92 Senate-confirmed U.S. Attorneys to be a Special Counsel to investigate high-level wrongdoing vigorously nationwide outside the jurisdiction of their home Districts. Thus, Patrick Fitzgerald, the U.S. Attorney for the Northern District of Illinois, was appointed a Special Counsel to prosecute wrongdoing in the District of Columbia by Scooter Libby, then-Vice President Dick Cheney's Chief of Staff.  Libby was convicted and jailed. But, Congress has never given the Attorney General the power to turn private persons, like Jack Smith, neither nominated by the President nor confirmed by the Senate into "Special Counsels" with more power than Senate-confirmed U.S. Attorneys to prosecute the enemies of the President or the Attorney General.

It is critically important to American liberty that we read the organic statutes setting up the Justice Department as only authorizing the appointing of presidentially nominated and Senate-confirmed U.S. Attorneys to be Special Counsels. Our amicus brief, which we will now post on SSRN on the internet, examines the text of all of the Justice Department's organic statutes and proves conclusively that they are narrower than the organic statutes that create the Departments of Agriculture, Education, Health and Human Services, and Transportation, which allow the Heads of those Departments unlimited power to create inferior offices and officers.

Thus, the Agriculture Secretary "may appoint such officers and employees *** and such experts, as are necessary to execute the functions vested in him[,]" 7 U.S.C. 610(a). In contrast, the most empowering law cited by Attorney General Garland is 28 U.S.C. Section 515(a). It says that: "The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States Attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought."

This section allows the Attorney General to appoint a Senate-confirmed U.S. Attorney to have nationwide jurisdiction to prosecute high level wrongdoing, as the Attorney General properly did when he appointed U.S. Attorney David Weiss of Delaware to be Special Counsel for the prosecution of Hunter Biden, allowing Weiss to file charges anywhere in the U.S. and not only in Delaware. This section does NOT authorize the appointing of private citizen Jack Smith to be an inferior officer Special Counsel. Instead, it concerns the powers of people who have been properly appointed to Justice Department offices "under law" pursuant to other statutory provisions.

This is made clear by 28 U.S.C. Section 543. This section provides that "(a) The Attorney General may appoint attorneys to assist United States attorneys when the public interest so requires, including the appointment of qualified tribal prosecutors and other qualified attorneys to assist in prosecuting Federal offenses committed in Indian country." Section 543 is a grant of explicit inferior officer appointment power to the Attorney General, but only to appoint "attorneys to assist United States attorneys" not to replace them as Jack Smith's appointment has done!

Federal prosecutions of former President Donald Trump must be done in a constitutional way no matter how much he is hated for his actions of January 6, 2021 or for any other reason. Here, Special Counsel Jack Smith is an Emperor who wears no clothes.