S. Ct. Will Hear Presidential Immunity Question in Trump v. U.S.

Oral argument is set for the week of April 22.

The order is here:

The application for a stay presented to The Chief Justice is referred by him to the Court. The Special Counsel's request to treat the stay application as a petition for a writ of certiorari is granted, and that petition is granted limited to the following question:

Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.

Without expressing a view on the merits, this Court directs the Court of Appeals to continue withholding issuance of the mandate until the sending down of the judgment of this Court. The application for a stay is dismissed as moot.

The case will be set for oral argument during the week of April 22, 2024. Petitioner's brief on the merits, and any amicus curiae briefs in support or in support of neither party, are to be filed on or before Tuesday, March 19, 2024. Respondent's brief on the merits, and any amicus curiae briefs in support, are to be filed on or before Monday, April 8, 2024. The reply brief, if any, is to be filed on or before 5 p.m., Monday, April 15, 2024.

Comments

[TwelveInchPianist]

"this Court directs the Court of Appeals to continue withholding issuance of the mandate until the sending down of the judgment of this Court."

Seriously?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

No, there's a smiley at the end of the sentence, which Prof. Volokh did not copy and paste 🙂

[TwelveInchPianist]

Sounds like somebody went to Harvard.

[DJK]

Maybe Yale.

[Mr. Bumble]

It's going to be a wild open thread tomorrow. Start popping now.

[darkknight9]

Post 1: "I’m not going to read anything into it other than that they thought it was important to address. They at least took Smith’s suggestion not to let Trump drag the thing out: if they wanted to hear it, just agree to hear it. And they did."

Post 2: "Yup. They let the usual rules of appellate procedure play out. Can’t read much into the outcome from that."

Post 3: "This Court is despicable."

Yes. Yes it is. 🙂

[Dr. Ed 2]

HAPPY DAYS ARE HERE AGAIN....

[not guilty]

This does not bode well.

I wonder whether Donald Trump will keep the same team of counsel that has represented him up to now, or will he add a higher caliber SCOTUS advocate. John Sauer was unimpressive before the Court of Appeals.

[David Nieporent]

I'm not going to read anything into it other than that they thought it was important to address. They at least took Smith's suggestion not to let Trump drag the thing out: if they wanted to hear it, just agree to hear it. And they did.

[DJK]

Yup. They let the usual rules of appellate procedure play out. Can't read much into the outcome from that.

[Randal]

I think if anything they're going faster than usual. Normally they'd've heard it next term. At least they're not doing that.

They could've denied cert, and I was hoping they would. They also could've let the mandate issue. But if you think about it, the only reason to do either is to accelerate the trial for political purposes. So maybe it's best this way.

[Stephen Lathrop]

Whether to accelerate the trial for political purposes—but not for politically partisan purposes—was by far the most important question presented. SCOTUS decided that question for Trump, and in the process disclosed a pro-Trump majority hostile to trying the case to a verdict before Election Day.

It is shocking if lawyers commenting here think that is something to take in stride as an example of normal procedure in similar cases. If a trial for Trump does not in fact happen before the election, this decision is destined to inflict a longer-lasting scar on the Court's legitimacy than Bush v. Gore.

[Don Nico]

" in the process disclosed a pro-Trump majority hostile to trying the case to a verdict before Election Day. "
The mind-reader is at work again

[Riva]

Not read anything into it? If you had any intellectual integrity you would at least acknowledge that the argument for immunity for official presidential acts is not meritless, as you have asserted.

[Mr. Bumble]

Both judges and members of Congress have wide immunity, why shouldn't the president?

[David Nieporent]

Judges do not have any criminal immunity. Members of Congress do because the constitution expressly says so. The constitution conspicuously doesn't say anything of the kind with respect to the president.

[Mr. Bumble]

Not always crystal clear per judges:
Mireles v. Waco (1991)

In the case of Mireles v. Waco (1991),[28] when a defense lawyer failed to appear for a scheduled hearing, the judge not only issued a bench warrant for his arrest, but instructed the police sent to arrest him to "rough him up a little" to teach him not to skip court dates. Although this was entirely unprofessional and possibly criminal, the judge was held, by the Supreme Court, to have absolute immunity from a lawsuit arising from the resulting beating, because the misbehavior occurred entirely within his activities as a judge presiding over a court.

[not guilty]

Doofus, Mireles v. Waco, 502 U.S. 9 (1991), involved a civil suit for damages pursuant to 42 U.S.C. § 1983. "Judges are immune from § 1983 damages actions, but they are subject to criminal prosecutions as are other citizens." Dennis v. Sparks, 449 U.S. 24, 31 (1980), citing O'Shea v. Littleton, 414 U.S. 488, 503 (1974).

[Michael Ejercito]

The immunity from judges arises only from orders and judgments from the bench. As such, issuing an arrest warrant, even if completely wrongheaded, can not be kidnapping.

[David Nieporent]

So I say, "Judges do not have any criminal immunity." And Mr. Bumble responds by citing a case where a judge was found to have civil immunity.

[BrotherMovesOn]

That's our Bumble!

[Estragon]

Say what you will about Bumble… he can step on a rake with the best of them!

[Riva]

You have a childishly limited understanding of the scope of the constitution. The constitution vests executive power in the president and immunity inheres in the constitutional separation of powers. The President’s official acts are not subject to judicial oversight.

[Sarcastr0]

Wow, by this logic I, an agent of the executive power, am by our tripartite government, inhering and separating, immune from criminal liability!

UNLIMITED POWER

[Don Nico]

Hey, sounds good. Go for it.

[Riva]

That's impressively stupid, even by your standards. Get back to me after you read Marbury v. Madison, Mississippi v. Johnson, and Nixon v. Fitzgerald. I assume you can read.

[Randal]

The main way in which you're wrong is by thinking that words like "inhere" make you smart.

The President’s official acts are not subject to judicial oversight.

What country are you living in? The DC Circuit and the Supreme Court invalidate the President's official acts on practically a daily basis. Remember the student loan forgiveness, as just one example of a bazillion million?

[Riva]

Courts are not assuming jurisdiction over the executive himself you knucklehead. “In the exercise of his political powers [the President] is to use his own discretion, and is accountable only to his country, and to his own conscience. His decision, in relation to these powers, is subject to no control; and his discretion, when exercised, is conclusive.” Justice Story, to quote one of many expressing the same thing.

[Randal]

All Justice Story is saying is that we don't have an Israeli-style "good policy" judicial override, where the courts can substitute their judgement for the President's. But...

In the exercise of his political powers...

The President doesn't have the power to violate the law. Which Congress sets. And the Judiciary evaluates.

[Riva]

interesting theory. Although there is no historical or legal precedent of the courts actually imposing their authority over the person of the executive. The only consolation if you're twisted view of law and history is correct would be the prosecution of democrat hacks like Obama and Biden, if the democrats ever relinquish power in that new totalitarian world they're building.

[Riva]

And to add yeah "political power," in other words, official acts.

[Krayt]

Congress ladeled the expensive ADA onto America, complete with a spoils system for lawyers to profit by finding little violations everywhere.

People said, ok, Congress, you should live by the rules you force the American people to.

"No! We, uhhhhh, are concerned with separation of powers and the executive enforcing it on us."

Iirc quite a while later they got guilted into "voluntarily" adhering to it.

So, yeah. "Immune".

[David Nieporent]

The constitution vests executive power in the president

Is Donald Trump the president? No. Does he have any executive power vested in him? No. So what the fuck are you talking about?

How does the actual executive prosecuting someone who used to be the executive but is now just an ordinary citizen implicate "separation of powers" in the slightest? (And if handwaving about imaginary "separation of powers" were sufficient, then the Speech & Debate Clause would be unnecessary.)

Not only that, but the president's official acts are absolutely subject to judicial oversight, you moron. See, e.g., the Steel Seizure Cases.

[LawTalkingGuy]

Judges shouldn’t. And Congressional immunity under the speech and debate clause is pretty limited. They shouldn’t and don’t have the type of immunity Trump is claiming anyway. They could absolutely be prosecuted for, say, murder. Trump is arguing that he can’t be!!!

[Riva]

No, no he isn't. Official acts, unless you think Obama should be charged with murder for the collateral deaths resulting from his drone strikes?

[LawTalkingGuy]

“No, no he isn’t.”

He absolutely is. His counsel was asked directly by Judge Pan if he could order SEAL team 6 to assassinate a rival and be immune. His counsel gave a “qualified yes”

And if someone wants to charge Obama with murder for drone strikes they can be my guest.

[Riva]

That was the idiot judge's hypothetical, under which a president would be liable after impeachment.

[not guilty]

The instant prosecution does not involve any actions the president took in his capacity as commander in chief of the armed forces. Whether immunity does or does not exist for such actions can be litigated in a future case where that issue is squarely presented. I would not be surprised is SCOTUS expressly reserves that question.

[Riva]

Yeah, ok, if all these deranged Trump haters are right here then Ol'big ears can feel free to argue that when he's up on charges.

[Randal]

Why do people think we would care if Obama was charged with murder for drone strikes? If it was murder, charge him with murder.

Only Trump fanatics are so emotionally invested in their savior to crack up and fall apart whenever anyone accuses him of wrongdoing. (Which is why he's able to get away with so much wrongdoing.)

[Riva]

Because it illustrates the stupidity and chaos that would result if president’s are held criminally liable for official acts.

[Randal]

It doesn't seem stupid or chaotic to me.

[Riva]

Given the vast scope of the federal criminal law, coupled with no shortage of politically motivated prosecutors, judges, and juries you see no potential interference with a president’s ability to conduct his official duties, especially in times of national emergency? The answer is, I think, of course you do, but here, Trump so ok.

[Randal]

It hasn't happened for 250 years and there are existing protections against bad-faith prosecutions, so no, I don't see the problem.

[David Nieporent]

no potential interference with a president’s ability to conduct his official duties, especially in times of national emergency?

Riva still can't figure out that we're talking about former presidents, not current ones. Former presidents don't have official duties, in times of national emergency or otherwise.

[David Nieporent]

It hasn’t happened for 250 years and there are existing protections against bad-faith prosecutions, so no, I don’t see the problem.

Especially since we're talking about one decisionmaker, not the plethora of "politically motivated prosecutors" Riva describes. No former president is being prosecuted by the federal government unless the current president permits it to happen. The current president has tools from oversight of the DOJ to pardon to prevent it. And a current president has every incentive not to allow a politically motivated prosecution to go forward.

[David Nieporent]

Not read anything into it? If you had any intellectual integrity you would at least acknowledge that the argument for immunity for official presidential acts is not meritless, as you have asserted.

No, it's utterly meritless. So far we've had four judges say so, and I expect the number will be thirteen in about three months.

[LawTalkingGuy]

I don’t think it’ll be unanimous actually. I could totally see Alito going off the reservation on this one. Unless Prelogar reminds him that you’re basically ruling for Biden too by ruling for Trump.

[TwelveInchPianist]

Why beat around the bush? Remind them that by accepting Trump's argument, they would be ruling that either Trump or Biden could have the justices lined up and shot.

[Zarniwoop]

Pretty much agreed. Still my fave take-away from my Con Law II prof: “It’s about the big picture. If you get your preferred outcome in this case, how can it be used against you?”

And here, Trump’s lawyers have suggested that the President would not be liable he ordered SEAL team 6 to assassinate a rival, unless impeached and convicted. Let’s roll with that.

At 11:55am on Jan 20, 2025, while waiting around for the formal swearing-in: Hunter shoots Trump in the head. Joe pardons him at 11:56, per pre-existing plan: the pardon is already printed and signed. It’s at the capitol, so the federal pardon for Hunter is effective. Should Joe be categorically immune, because he didn’t get impeached in the remaining four minutes of his term?

If you think Trump’s claims to immunity are legit, how do you prosecute Hunter and Joe in that scenario?

[Riva]

Doesn't sound like an official act sparky. But at any rate, impeach and try him later. Democrats tried their second meritless impeach after President Trump left office. Let the corrupt Biden whine about that after he is impeached and convicted, in your scenario.

[Randal]

You forgot that he also killed half the Senate.

[Riva]

Yeah, the Court decided to review an utterly meritless question.
They do that all the time. But what is utterly meritless is that hack Smith's indictment. Beyond the question of immunity, he is accusing President Trump of being engaged in a conspiracy with no underlying crimes. Challenging an election is not illegal.

[Alpheus W Drinkwater]

Specifically criminal immunity. Has any court found merit in that argument? Have you used your "intellectual integrity" to think through the repercussions of Presidential criminal immunity?

[CindyF]

On MSNBC Nicole Wallace is about to cry. Michael Luttig can’t decide whether to cry or hit the bottle. Mourning doesn't quite describe it.

https://rumble.com/v4gbgq9-msnbc-goes-into-deep-mourning-over-supreme-court-hearing-trump-immunity-app.html

[bernard11]

This Court is despicable.

They sit on a nullo case for what, a month, then say, gee, I guess we'll hear it in seven weeks, at which point we'll again sit around scratching our asses for a while before ruling.

If we can throw enough delays in we might not ever have to rule against Trump.

[Don Nico]

Trump asked for a stay. My guess is that there were not 5 votes for a stay, but there were 4 votes to grant cert. I don’t see why that makes SCOTUS despicable.

They still have not ruled on Anderson.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Because they're letting TrumpHitler literally get away with murder!

I don’t see why that makes SCOTUS despicable.

[Kazinski]

He's only immune to murders on 5th avenue in NY City.

[Josh R]

It might not be despicable, but they are treating the case as if it does not require expedited treatment. If they were going grant cert, they should have done so in December and issued a ruling by now. By waiting, and not even agreeing to an expedited schedule now, they are letting Trump run out the clock.

[DJK]

They should have been willing to waive the usual rules of appellate procedure to give Smith “the government’s right to a speedy trial”? If Smith wanted this done quickly, he could have filed charges months ago. His political stunt failed.

[Josh R]

The first indictment was issued on June 8, 2023, many months ago.

[Mr. Bumble]

...and two and one half years after the supposed crime.

[Josh R]

Time only became an issue when Trump announced he was running for president. Smith was appointed 3 days later on November 18, 2022. Additionally, the classified document charges stem from the search at Mar-a-Lago which happened on August 8, 2022, and was needed because Trump was not cooperating with the Archives.

[Mr. Bumble]

"Time only became an issue when Trump announced he was running for president."
Ah, you've said the silent part out loud.

[Josh R]

It became important after he announced not because the DOJ is corruptly out to get candidate Trump, but rather because the American people ought to know the outcome prior to the election. To counter your supposition, an acquittal would be a big boost for Trump, not what a corrupt DOJ would seek.

[David Nieporent]

It's not just that the American people ought to know the outcome prior to the election, but that if Trump wins, the case can't proceed. (Even if he doesn't self-pardon or order DOJ to dismiss it, OLC says no prosecutions of a sitting president. So the earliest the trial could happen would be January 2029.)

[David Nieporent]

It might not be despicable, but they are treating the case as if it does not require expedited treatment. If they were going grant cert, they should have done so in December and issued a ruling by now. By waiting, and not even agreeing to an expedited schedule now, they are letting Trump run out the clock.

First, it is getting expedited treatment. Not as expedited as I'd like, but expedited.

Second, I would point out that there were no noted dissents from either the decision not to hear it in December or the decision to hear it now.

[Randal]

I basically agree (as I said above) although I was reminded that SCOTUS could've just taken the case in December. It is a little bit annoying that they didn't.

[David Nieporent]

Yeah; this isn't a case that really needed percolation. They could've just taken it if they wanted to.

The only thing I can think is that one week ago Trump filed a motion to dismiss the Florida documents case based on presidential immunity (an even more farcically frivolous argument than this motion), and the DC Circuit's ruling, no matter how correct, would not apply to that. So by granting cert now they avoid the possibility of a circuit split or of Smith/Trump bringing yet another set of emergency petitions to them in two months.

[Bruce Hayden]

Not really. The FL motion was based on official acts (ordering the boxes shipped to MAL in FL) while this one is based on unofficial acts.

[not guilty]

The gravamen of the § 793(e) indictment in Florida is not ordering the boxes shipped to Mar-a-Lago. It is retaining the documents and failing to deliver them to the National Archivist -- acts committed after Trump's presidency.

[David Nieporent]

Trump was not indicted for "ordering the boxes shipped to MAL." He was not indicted for any action taken while he was president. The charges relate solely to post-presidential acts.

[Krayt]

Why would it require expedited treatment? That only has meaning in the context of a speedy trial, a right of the defendant. That you have to get it done before the election to maximally hinder him is not an actual reason, no matter how good it may feel. All that does is provide another exposed nail of evidence for what we all know to be true, it's about getting a political opponent using a fascade of disinterested concern for rule of law.

[Randal]

Why would it require expedited treatment?

There’s an argument that says… it would be useful to the voters to know whether Trump is guilty or not when they go to vote. And that SCOTUS could account for that public benefit in its processing decisions.

[Zarniwoop]

Don Nico sez:

Trump asked for a stay. My guess is that there were not 5 votes for a stay, but there were 4 votes to grant cert.

The order:

Without expressing a view on the merits, this Court directs the Court of Appeals to continue withholding issuance of the mandate until the sending down of the judgment of this Court. The application for a stay is dismissed as moot.

the way I interpret that, the effect is that there's a hold on lower court proceedings until the S.Ct. actually issues a ruling, presumably in June. Looks like an effective stay to me, regardless of how you're counting noses.

[DJK]

This exactly.

[Don Nico]

It does depend on what the Court has been asked to rule on. Trump's lawyer filed for a stay. The court granted cert that required only votes. Maybe, but only maybe that is significant. At that point you're correct, there is also a stay by express order of SCOTUS ("the Court directs"). Maybe this is only scholastic theology at play.

[Zarniwoop]

I am moderately confident that if there were 4 votes for cert and 5 justices super-duper wanted the lower court to proceed during the pendency of the S.Ct. hearing the appeal, the order would have been phrased differently.

Call it 5 express votes for a stay, call it judicial collegiality in view of the cert grant, whatevs. I’m shrugging my shoulders. The lower court proceedings are stayed.

[Armchair]

I mean...this isn't exactly out of the ordinary for the SCOTUS to take a while to hear a case.

[DJK]

The DC Circuit went way too far in affirming the District of DC, as many have argued quite clearly. If they didn't want SCOTUS to take the case, they should have limited the scope of their ruling. Even if they had, there's no way SCOTUS would ever not want to take a case dealing with previously untested Constitutional powers of the Presidency. Just admit you're sad they're not letting a result you love stand.

[Alpheus W Drinkwater]

Who are "the many" that argued "quite clearly" that the DC Circuit "went way too far?"

[Michael Ejercito]

How should the DC Circuit limited the scope of its ruling?

[Josh R]

I’m not arguing for it, but as I understand it, the decision below held that any official act which violates the law is not categorically immune from prosecution. SCOTUS could vacate that holding by declaring these aren’t official acts.

[Zarniwoop]

SCOTUS could vacate that holding by declaring these aren’t official acts.

Maybe. But that's a dodge that doesn't deal with the underlying issue.

Joe Biden, in his capacity as president and head of the Exec Branch, orders the Secret Service detail for candidate Trump to shoot Trump in the head. They do so on Jan 19, 2025, just before inauguration day, so no time for impeachment.

Criminal liability for Dark Brandon: yes or no?

[Randal]

no time for impeachment

I think there’s a tiny chance — but maybe a big one for an Alito dissent — for an opinion that the President can be impeached at any time, even after he’s left office, and so technically that option remains open even for Trump.

Which means, this is all McConnell’s fault. Which is basically what I continue to think. This could’ve been settled three years ago.

[Zarniwoop]

I would appreciate Alito opining that an impeachment judgment can be finalized after a candidate leaves office - whether by expiration of term, or resignation. I thought it was cravenly of the GOP to shrug off responsibility by saying Trump was no longer in office. I bet McConnell is privately regretting that, yep.

But again we're in a situation where the Trumpistas should make a vague handwavy attempt at picking one position and sticking to it.

Welp, you did say "tiny chance" and I think you're bang-on.

[Riva]

Do you need to go cry? Maybe spend some time with a support animal? I suggest you buy one, you’ll need the comfort for later.

[not guilty]

For purposes of a motion to dismiss a criminal prosecution, the allegations of the indictment must be taken as true. Boyce Motor Lines v. United States, 342 U.S. 337, 343 n.16 (1952).

That principle should guide the Court in determining whether the indictment alleges conduct which involves official acts during Trump's tenure in office. It is difficult to see how attempting and conspiring to corruptly obstruct an official proceeding of Congress involves a president's official acts.

[#FFFFFFPride]

If someone or a group storms in during a Congressional hearing to disrupt it, is that "attempting and conspiring to corruptly obstruct an official proceeding of Congress"

[not guilty]

"If someone or a group storms in during a Congressional hearing to disrupt it, is that 'attempting and conspiring to corruptly obstruct an official proceeding of Congress'”

No, not without more. Other statutes may prohibit that conduct, but 18 U.S.C. § 1512 requires that the accused person(s) have acted corruptly. Your hypothetical does not aver a culpable mental state.

[#FFFFFFPride]

In my hypothetical they went in to disrupt the hearing.
If that isn't corrupt intent, can you give an example that is?

[Kleppe]

How does it affect your analysis if Trump truly believed the election had been rigged? Remember, it matters what he thinks, not what you think.

[not guilty]

Au contraire. For purposes of a defense motion to dismiss an indictment. what I think is irrelevant. What the accused thinks is irrelevant. The question is what facts the indictment alleges, including averments of the accused's state of mind.

[Michael P]

So the only thing a criminal indictment needs to allege is that the purportedly official acts were actually done corruptly (in a very broad sense)?

[Josh R]

Perhaps to defeat a motion to dismiss, yes. The prosecution still has to prove beyond a reasonable doubt at trial the acts were corrupt.

On the other hand, SCOTUS is (of course) free to establish a different standard for what constitutes an official act.

[not guilty]

"So the only thing a criminal indictment needs to allege is that the purportedly official acts were actually done corruptly (in a very broad sense)?"

No. The indictment must allege the offending conduct as well. The accused's culpable mental state can be averred generally, however.

[tylertusta]

Should the court rule that Presidents have some kind of immunity, we might see a different standard of review for future claims of Presidential immunity. It might not be "take all allegations as true."

But we'll see. The Court might not think through about the implications of allowing prosecutors to draft indictments around any potential claim of immunity.

[not guilty]

It is black letter law that a defense motion to dismiss admits (for purposes of the motion) the factual averments of the indictment.

[tylertusta]

Right now? Sure.

After this case? Like I said, we'll see.

[not guilty]

What standard of determination would you propose to delineate what facts a motion to dismiss admits and what facts it does not? Even the current clowns of SCOTUS are not brazen enough to enshrine IOKIYAR as a rule of criminal procedure.

[tylertusta]

I'll admit, I don't have an answer right now. It isn't something I've had much time to consider, but should the Court decide that there's going to be some kind of immunity, it's going to be something that people will be talking about.

But I do believe that as it currently stands, it's not workable for any notional presidential immunity.

I say this because a crafty prosecutor can draft any indictment to get around any claim of immunity by simply claiming that all of the defendants acts are outside of official capacities.

Simply declare in the indictment that no official acts were taken (by rejecting non-criminal motives for actions taken), and presto, you've prevented any claim of immunity before it can even be raised because MtD's assume that all facts are true, including the "fact" that it wasn't an official act.

[Michael Ejercito]

It is difficult to see how attempting and conspiring to corruptly obstruct an official proceeding of Congress involves a president’s official acts.
That is conclusory.

What they take as true are the non-conclusory allegations of fact set forth in the indictment.

From what I can read, the scope of this appeal is limited to whether or not one or more of the alleged acts were official acts. So SCOTUS is not addressing any First Amendment claims, or arguments that tghe rule of lenity forecloses the indictment.

[Josh R]

.

the petition is granted limited to the following question: Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.

SCOTUS may or may not rule on whether Trump's alleged acts were official.

[tylertusta]

If the Court does what some think it will do, it might say that the President has immunity for official acts.

Then it will devise a test with which Courts should use to determine whether an act was official or not.

Then SCOTUS would kick the case down to the district court that will get briefings and hold hearings to determine if it's an official act. Appeals will ensue. SCOTUS to revisit the case on immunity in 2026.

[David Nieporent]

As your own quote shows, that is not the question that cert was granted to answer. And the appropriate procedure if they don't think these were official acts would be to GVR, not hear the case.

[Roger S]

Scotus could say that the President giving a speech on matters of public concern is an official act.

[David Nieporent]

That principle should guide the Court in determining whether the indictment alleges conduct which involves official acts during Trump’s tenure in office.

I guarantee that SCOTUS did not take this case to not rule on whether presidential immunity exists.

[Josh R]

You don’t think it is possible for SCOTUS to side-step that issue and hold Trump did not engage in official acts? That would have the effect of vacating the decision below (which they needed to grant cert to do) without deciding the immunity issue.

[David Nieporent]

You don’t think it is possible for SCOTUS to side-step that issue and hold Trump did not engage in official acts? That would have the effect of vacating the decision below (which they needed to grant cert to do) without deciding the immunity issue.

No. First, as I noted just above, that wasn't the question they granted cert on. Second, all I can do is reiterate what I said in the post you're responding to: I guarantee that SCOTUS did not take this case to not rule on whether presidential immunity exists.

There's no need to "side-step" that issue. If they don't think these are official acts — something none of the parties are arguing — then there's no harm in letting the prosecution proceed.

[Randal]

Watch this ends with a DIG. That would be proof positive of a bad-faith intent to delay... right?

[David Nieporent]

If that happens I will light someone on fire in protest. Not me; that would be stupid. But someone.

[Ghost of Patrick Henry]

That refers to the charged conduct, which, for President Trump, is ALL speech. The conclusory language characterizing President Trumps actions by the Special Counsel are not facts. Presidents must be free to say anything as an official act.

[Krenn]

Sigh. SCOTUS just couldn't let a historic appellate decision stand as written, without putting their thumb into things, huh?

[Alpheus W Drinkwater]

I suppose the possibilities are:

1 - they disagree with the decision and want to reverse it. Seems unlikely to me but who knows, at this point.

2 - they disagree with some part of the decision or the reasoning, and want to clarify the decision. Maybe.

3 - they agree completely with the decision and want to apply it to all circuits in all future cases. Maybe.

[Krenn]

I'm assuming it's number 3.

[Randal]

I think so too, with maybe a little bit of a desire for unambiguous finality in this case as well.

[LawTalkingGuy]

I figured this would happen. Although there is the possibility of an authority split down the road that they might as well head off. Trump is making similar arguments in the GA case which could lead to a conflicting decision by the GA Supreme Court. He’s also somehow making a version of the argument in the Florida docs case. Although he’d have to get a really really good panel to have a chance of getting a favorable decision in the 11th Circuit for stuff that mostly concerns post-presidential activity. Even Bill Pryor and Britt Grant haven’t gone to bat for team Trump despite having opportunities.

[Mr. Bumble]

Sure Krenn. Who needs a stinkin' Supreme Court. Let Judge Chunksbunka decide all important issues.

[LawTalkingGuy]

I once dealt with a crazy pro se litigant who liked to make up nicknames for the people she was suing that didn’t make any sense. They were pretty dumb.

[Estragon]

“Judge Chunksbunka”

Yeah, this one needs to go back to the workshop. Not your finest.

[Drewski]

It got him two replies, didn't it? Three if you count mine. So not his worst, either. Bumble doesn't care what you think, only that you waste time and attention.

[tylertusta]

I don't think that the DC Circuit decision was well-written at all. It was a product written in haste, and the poor substance of the opinion shows.

[Michael Ejercito]

What are your criticisms of it?

[David Nieporent]

I think it was very well-written, and my only criticism is exactly the opposite: that it wasn't written in haste. They took their own sweet time to issue an opinion that could've been drafted before oral argument.

[Zarniwoop]

+1

[Kazinski]

Well as Jack Smith said in his December cert position on this case: "And given the weighty and consequential character of the constitutional questions at stake, only this Court can provide the definitive and final resolution of respondent’s immunity claims that this case demands."

And it was also Smith that requested the Supreme Court should consider Trump's request for a stay as a cert petition, rather than grant the stay.

[tylertusta]

Of all of the possible outcomes, this one wasn't as bad as it could have been for Smith.

In order of best to worst for Smith- no matter how unlikely the outcome was- here was what could have happened at SCOTUS:

1) The Court grants cert and rules in favor of Smith in a per curiam. Instant win for him and back down to the district court where Trump's case at the district court continues immediately.
2) The Court denies the stay. Trump is screwed as the mandate will issue despite him still being up at the DC Circuit.
3) The Court accept cert, but does so on a greatly accelerated time table, allowing for an opinion to be issued by the end of April at the latest.
4) The Court accepts cert, but only accelerates the briefing schedule to allow the Court to issue an opinion in June. ← We are here
5) The Court accepts cert, but does so on its normal briefing schedule, meaning oral arguments would be no sooner than October with a decision no later than June of 2025
6) The Court accepts the stay and doesn't entertain the motion for cert. Even if the DC Circuit doesn't take the case en banc, if there is any dissent in the Circuit, then SCOTUS might not rule before 2026.
7) The Court accepts cert and rules against Smith in a per curiam. Instant Trump win.

Smith might yet get Trump on trial before November if he runs the table on literally everything else.

I personally doubt he will get that chance. Even if SCOTUS says that there's no immunity, the government still has to prevail on Fischer. Then there's the uncertain timetable of the existing criminal cases for Trump magnified by Judge Cannon not wanting to allow Smith to manipulate her calendar for Biden's election benefit.

Then Chutkan has to somehow throw caution to the wind and expedite literally every pre-trial motion, the briefing schedule, jury selection (subsequently denying Trump his 6th amendment rights by rushing to trial).

And on top of it all, you'd need a DOJ to be willing to allow SCO Smith to flagrantly break DOJ rules and ask Chutkan to bring Trump to trial in October.

Well, that last one is guaranteed. Garland and Smith are more than willing to break the rules when it suits them.

[not guilty]

Fischer has no bearing on the Trump indictment. Joseph Fischer is not charged with obstructive conduct involving documents. Donald Trump is charged with criminal conduct involving documents. The bogus electoral slates are central to the 18 U.S.C. 1512(c)(2) and 1512(k) charges against Trump.

[tylertusta]

Are you saying that Trump's indictment under 1512(c)(2) wasn't about obstruction of congressional inquiries and investigations, including acts unrelated to investigations and evidence?

[not guilty]

No, I am not. I am saying that the attempt/obstruction charge under § 1512(c)(2) and the conspiracy charge under § 1512(k) each charge conduct as to which the creation and presentation to Congress of fraudulent documents is central.

[tylertusta]

...which the creation and presentation to Congress of fraudulent documents is central.

Isn't that 1512(c)(1)?

(c) Whoever corruptly— (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

and then there's (2), which is what Trump is charged with:

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

[not guilty]

The rationale of the District Court opinion dismissing the indictment in Fischer is that (based on a strained construction of the word "otherwise") criminal conduct under subsection (c)(2) is limited to that similar to the conduct proscribed by subsection (c)(1), that is, conduct involving "a record, document, or other object."

[tylertusta]

Thanks for explaining. I see what you're getting at now.

My point here wasn't that Trump escapes 1512(c)(2) and (k) after Fischer. If you reread my above comment, I wasn't getting at that. I was referring to whether Trump goes to trial in DC before November.

Should Fischer be reversed, Trump is going to tie up Smith for weeks with his motion to dismiss regardless of whether or not Smith keeps those counts alive. This will happen because, for better or worse, SCOTUS is going to look into 1512 and see if a section about "Witness, Victim, or Informant Tampering" involves "obstruction of congressional inquiries and investigations, including acts unrelated to investigations and evidence."

Anyways, since you like to assume that a lack of response is indicative of weakness on my part, I'm officially informing you that it's nearly 11 and I'm going to bed.

Looking forward to discussing more with you tomorrow.

[not guilty]

Sure, Trump could move to dismiss in the District Court if SCOTUS limits application of § 1512(C)(2) in Fischer. I surmise that Judge Chutkan would address such a motion promptly, and that ruling, unlike a ruling on immunity, would not be subject to an interlocutory appeal by the defense.

[tylertusta]

That pre-trial calendar is already mighty tight with everything that needs to be done.

Adding more, even if she disposes of it "promptly" isn't going to make things easier.

[Randal]

2.5, which was one of my top candidates, was to grant cert but let the mandate issue.

[tylertusta]

Well, well, well.

I guess Trump's claim of some kind of immunity wasn't "bizarre" as some claimed it to be.

[LawTalkingGuy]

There are many reasons SCOTUS takes cases. It doesn’t mean that the petitioner’s position isn’t bizarre or would command a majority.

[tylertusta]

True. The Court may want to give its stamp of approval on the DC Circuit's ruling.

Maybe.

However, the odds of the Court:

1) taking a case without a circuit split;
2) just to affirm the court below; and
3) not operating on a super compressed briefing schedule

... is very unlikely.

If the Court wanted to affirm the decision and wanted to do it quickly, it could have issued a per curiam without any briefing. It chose not to.

[Josh R]

Trump didn't claim "some kind of immunity." He claimed blanket immunity for official acts unless he is impeached by the House and convicted by the Senate for said acts.

[Mr. Bumble]

Yes, for official acts. Which official acts would be criminal?

[Josh R]

Ordering SEAL Team 6 to assassinate your political opponent?

[Mr. Bumble]

How about the extrajudicial killing of an American citizen? A real event and not a hypothetical.

[tylertusta]

Funnily enough, this exchange between the two of you is going to be at the Court during oral arguments.

[Josh R]

I want to be Kagan.

[Josh R]

Indeed. That's an open question as to 1) is it an official act and 2) if it is, is it categorically immune from prosecution.

[LawTalkingGuy]

Signing/vetoing legislation, appointing/firing someone or pardoning/not pardoning in exchange for bribes?

[Michael Ejercito]

The solicitation nor acceptance of a bribe is not an official act.

It would still be a crime even if the solicitor/recepient broke his promise.

[Mr. Bumble]

How about making a large donation to the Democratic party?
See Marc Rich pardon.

[Estragon]

“pardoning/not pardoning in exchange for bribes?”

How about pardoning in exchange for perjury? Bill Barr had an opinion on that, once upon a time.

[Michael Ejercito]

Which perjury was that?

[Estragon]

“Thus, for example, if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction.”

https://www.documentcloud.org/documents/5638848-June-2018-Barr-Memo-to-DOJ-Muellers-Obstruction.html

I leave it to the reader to contemplate how well events subsequent to this letter (particularly the convictions and subsequent commutation/pardons for Roger Stone and Paul Manafort) fit into this hypothetical.

[tylertusta]

Yes. That is "some kind."

As opposed to other claims that Trump could have made but didn't make, such as:

- Being completely immune for all acts, official and unofficial, during his Presidency.
- Being completely immune for all acts, official and unofficial, during and before his Presidency.
- Being immune from prosecution but only during his tenure as President.

I'm sure you can think of other kinds of immunity that Trump could have claimed but didn't.

[Josh R]

I guess he could have claimed immunity for everything he has ever done or will ever do.

His actual claim is very broad within the scope of any rational argument. Your first bullet would be more broad, your second bullet is both not rational (why before the presidency) and impossible as to official acts before his presidency (there are none). Your last bullet would be less broad.

[In Canis Credimus]

lol he literally claims that Presidents are free to commit any crime they want lmao

[Mr. Bumble]

Quite a day.
Joe Biden has an unannounced physical, first son appears before a Congressional committee, cocaine Mitch announces giving up Senate minority leadership (unfortunately not until November), SC to hear Trump immunity claim and sadly Richard Lewis has died.

[tylertusta]

Shame about Richard Lewis. I always enjoyed his work.

[David Nieporent]

It's off-topic, but might as well mention here that Trump's attempt to get a stay of the 'fraud' judgment without actually paying a supersedeas bond was rejected by a judge of the Appellate Division today.

[tylertusta]

But they're letting him take loans out. That's better than nothing.

[David Nieporent]

Well, he always could — just not from NY financial institutions. But yes, they stayed that proviso, as well as the requirement that he step down from running the Trump Organization.

[In Canis Credimus]

But I thought he was a billionaire many times over?

[tylertusta]

He is. Much of his net worth is tied up in assets and can't easily be exchanged for cash.

It takes time to sell off assets or take out loans against them.

[Brett Bellmore]

Right, and this trial was before a judge who tried to sell off Trump's NY assets on an accelerated schedule that would have yielded pennies on the dollar, BEFORE the trial. He keeps making efforts to strip Trump of his wealth that are so unreasonable they get stopped by higher courts.

But despite that we're supposed to pretend Trump got a fair trial.

[David Nieporent]

Nobody "tried to sell off Trump's NY assets," Brett.

[tylertusta]

From a procedural standpoint, this case was handled on the emergency docket and not the regular docket with normal cert petitions. This means that the case doesn't go through the regular conference cycle, and it's why we got a miscellaneous order on a Wednesday evening instead of Monday or even last week Friday.

The inner workings of the emergency docket processes aren't well documented or publicized (hence why it's also called the "shadow docket"). We know that Trump's petition is sent only to the Chief Justice until it was "referred to the Court" earlier today. We can guess that the Justices met or exchanged notes not too long ago, possibly after oral arguments today. After that, cert was granted and here we are.

Some folks may believe that the briefing was complete on February 15th, thus indicating that the Court was going to deny Trump's petition but was "dawdling" because some of the conservative Justices were "dragging ass" as they wrote dissents.

As today has demonstrated, this was not the case. There were no dissents, and the Court wasn't dawdling. I think that those mistaken beliefs on how the Court was handling this case were based on an incorrect understanding of the docket and how it works.

In fact, briefing was completed only on the 20th, not the 15th. We're only six business days out from that, and the Court's been pretty busy last week and this week (contrary to belief of some folks here at VC, Trump is not the most important thing in the world!).

From what I've seen, this timetable is typical for the Court in how it has handled recent emergency motions. A lot of them are resolved in 2-3 weeks, as was Trump's petition.

You can find a listing of recent emergency petitions at Scotusblog:

https://www.scotusblog.com/case-files/emergency/emergency-docket-2023/

What those who dislike Trump should take solace in is that the Court is trying to issue a ruling by the end of the term. In terms of how bad things could have been with the timing of the ruling, it could have been much worse for them.

[not guilty]

You lie. Briefing was indeed completed on February 15, with the filing of Donald Trump's reply brief. https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23a745.html

[tylertusta]

How am I lying?

The docket (thank you for the link, btw) shows that amici briefs were accepted until the 20th. Briefing isn't over until the Court says it is, not when the applicant-petitioners reply.

Indeed, CJ Roberts didn't refer the matter to the Court until earlier today.

[In Canis Credimus]

SCOTUS cons giving Trump lawyers that delay, delay, delay they wanted lol

[Stephen Lathrop]

Judge Chutkan should give up and announce a new trial date for 2025, after Inauguration Day. Let the right-wingers on the Court preen publicly in the light of their victory.

[Don Nico]

Fortunately, Judge Chutkan does not listen to you.

[tylertusta]

She can't do anything until SCOTUS is done. Her hands are tied.

If she tries to proceed to trial despite two superior courts telling her to stop, then she's in trouble. Maybe even a writ of mandamus.

[Stephen Lathrop]

A writ of mandamus to stop stopping?

[tylertusta]

Surely you can go deeper than that. Stopception.

[Stephen Lathrop]

Without expressing a view on the merits, this Court directs the Court of Appeals to continue withholding issuance of the mandate until the sending down of the judgment of this Court.

Is that something the Court can do without 5 votes?

[Randal]

I think they had to have five to convert the application for a stay into a cert petition in the first place.

If five justices had wanted the trial to continue immediately, they could've just denied the stay and then taken as long as they wanted.

[tylertusta]

They had at least 4 votes in favor of granting cert. I think that once it became apparent that SCOTUS was going to hear it, a stay became inevitable.

Even the liberal Justices will have realized that allowing a trial to go forward while the Court debates immunity is patently unfair. Even though they likely despise Trump, they wouldn't want that to be the new precedent for defendants not named Donald Trump.

[not guilty]

"They had at least 4 votes in favor of granting cert. I think that once it became apparent that SCOTUS was going to hear it, a stay became inevitable."

Not necessarily. There is at least one case -- I can't recall the style -- where four justices granted cert on a death row inmate's petition, but there was not a fifth vote for a stay of execution. The inmate was put to death before the Court considered the merits.

[tylertusta]

Thanks, I had forgotten about that. Major eff up on the part of the Justices.

[David Nieporent]

They had at least 4 votes in favor of granting cert. I think that once it became apparent that SCOTUS was going to hear it, a stay became inevitable.

There's a tradition called a courtesy stay, in which if there's the needed 4 votes to hear a case, someone will give the 5th vote required for a stay even if s/he didn't think the court should hear the case.

It's not clear to me, though, that this fits that situation. We have no idea how many votes there were for any of these things (other than, obviously, at least 4 for a cert grant).

[tylertusta]

Correct, we don't know how the vote broke down.

All we have is that no Justice put their names down as opposing the grant of cert, which tells us something at least.

[not guilty]

I may be mistaken, but I am unaware of any justice in any case contemporaneously dissenting from a grant of certiorari. Sometimes at a later stage the Court may dismiss for certiorari having been improvidently granted, which requires five votes, including that of at least one justice who initially voted to grant cert.

[Brett Bellmore]

You see dissents from denials of certiorari occasionally, but there's no point to a dissent from a grant, because the very fact that cert was granted means the dissenting justice will have a better opportunity to make a fuss about it when the Court issues its ruling.

[Jonathan Affleck]

"Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office."

The question has implications for Biden.

Genocide is a US federal capital crime: 18 U.S. Code § 1091 - Genocide.

The ICJ has already ruled that SA's accusation, which alleges that the State of Israel perpetrates genocide, is plausible. The ICJ report and recommendation is like a magistrate's report and recommendation.

The US federal definition of genocide and the international definition of genocide differ little.

Throughout the world experts in genocide law and in genocide studies call the actions of the State of Israel a textbook genocide.

In effect, SCOTUS will rule whether Biden can be criminally charged with genocide once he leaves office.

The Zionist logic of mass murder genocide against Palestinians is exactly the same logic that Nazis used to justify mass murder genocide against Palestinians.

The Nazis always told us they were fighting Jewish Bolshevism. The Holocaust only started after Operation Barbarossa (invasion of the Soviet Union) began.

To the Nazis, all the civilian deaths were collateral damage of the war against Jewish Bolshevik terrorism, and every Jew including a baby was a Judeo-Bolshevik terrorist. The judges of the Nuremberg Tribunals laughed at this nonsense. The propaganda of Zionists and of supporters of the baby killer nation is equally if not more ridiculous and just as evil.

[Jonathan Affleck]

I should have written:

The ICJ ruling is like a magistrate’s report and recommendation.

Not only is Biden the most depraved of psychopathic serial/spree murderers, but he is outrageously antisemitic. He tells me that I am unsafe in my country, which is the USA, except for the State of Israel. Biden, the sick vicious antisemite, tells me that I have no safe place and must leave for the State of Israel. Is it possible for Biden to be more vile and disgusting?

Check out US President Joe Biden reminds world in Late Night With Seth Myers guest appearance

Biden and his handlers are so stupid. If Biden is a Zionist, anti-Zionist is not anti-Jewish. Duh!

[David Nieporent]

The ICJ ruling is like a magistrate’s report and recommendation.

Very like a whale.

[Jonathan Affleck]

Biden in his support for the Gaza Holocaust, which the baby killer nation perpetrates, has given Judaism the coup de grâce. A Zionist is not a Jew because Zionism has murdered Judaism by transforming Judaism into a program of genocide.

The baby killer nation is from the standpoint of international law equivalent to a cannibal nation and must be abolished.

Biden is the equivalent of a cannibal priest.

We can hope that SCOTUS’ ruling will pave the way for Biden to be tried, almost certainly convicted, and executed by operation of US law once Biden leaves office.

Oral arguments during the week of April 22 is appropriate. The week of April 22 is Passover week. I am ashamed to attend services.