Presidential Bribery and the Clear Statement Rule in Trump v. United States: Revisiting Issues From The First Trump Impeachment and the Mueller Investigation

Questions from Chief Justice Roberts and Justices Kavanaugh and Gorsuch revisit unresolved issues from 2017-2020.

Today the Supreme Court heard oral argument in Trump v. United States, the presidential immunity case. Much of the argument concerned issues left unresolved during the Trump presidency. 

First, during the Mueller investigation, it was alleged that Trump violated the federal obstruction of justice statute. I, and others, countered that a criminal statute should only apply to the President if there is a "clear statement" to that effect. In other words, a general criminal statute should not be read to apply to the President. 

Second, it is true that in 1995, the Office of Legal Counsel suggested in an opinion that the federal bribery statute, 18 U.S.C. § 201, would apply to the President, even though there was no "clear statement." But bribery is somewhat unique in that the Constitution expressly enumerates bribery as a ground of impeachment. It is difficult to then argue that the President has some sort of constitutional authority to engage in impeachable conduct. 

Third, however, the mere fact that a former President could be prosecuted for bribery does not resolve the allegations leading up to the first Trump impeachment: what exactly is bribery in the context of the presidency? At the time, Seth Barrett Tillman and I acknowledged the easy case: the President receiving a "suitcase full of money" in exchange for performing some official act would amount to bribery. But the theory of the first impeachment was different. Then-Speaker Nancy Pelosi argued that Trump "violated his oath by threatening to withhold military aid and a White House meeting in exchange for an investigation into his political rival."

Fourth, to address these allegations, Seth and I offered a theory for bribery in the context of public officials like the President. This theory explains why motives (including mixed motives) are entirely irrelevant to establishing any traditional or common law sense of "bribery," including "bribery" as used in the Constitution or in the U.S. Code. It is very difficult to disentangle "public" motivations from "personal" motivations. We wrote:

We start from a simple premise: Most people run for office, and seek to remain in office, based on a belief that they—and not others—are in the best position to promote the public welfare, however defined. When government officials act, they almost always act with mixed motives: They act in part to promote the public good and in part to remain in office, or perhaps to seek higher office. Often, the two concepts overlap: What's good for the country is good for the official and his or her chances at reelection. All politicians understand this dynamic, even—or perhaps especially—Trump. And there is nothing corrupt about acting based on such competing and overlapping concerns. Politicians can, and do, check the polls before casting a difficult vote.

Our position can be summarized in a single sentence: Where one public official act is traded for another public official act, there has not been any illegal conduct. (In my view, of all the things that Seth and I wrote, this is probably one of the most important.) Though these writings were limited to the context of impeachment, I think they would apply more broadly to any federal bribery prosecution of any current or former federal official, including (if not especially) the President.

Fifth, motivations do not play an important role in this analysis. With the president, "personal and public motivations are inextricably intertwined." Why? As we explained, politicians never lose sight of the next election. Merely acting with an eye towards retaining office is not an improper purpose. We wrote:

We consider Trump to stand in a position similar to the log-rolling members of Congress. In our view, he acted to promote the public interest, as he understood it, with the full recognition that his actions also increased the probability that he may prevail at the next election. In those circumstances, Trump's request does not amount to bribery. Poor political discretion, perhaps. But we see no way on these facts to disentangle a motivation to promote American interests abroad from a competing motivation to assist his reelection campaign.

I later expanded on this theme in a New York Times guest essay published before the impeachment trial started. I explained that "receiving a 'political benefit' does not transform an otherwise legal action (like requesting an investigation) into an abuse of power." I wrote that many Presidents acted based on "dueling motives." President Lincoln, for example, allowed soldiers to return home to vote, even though this action may have put the military campaign at risk, or, at the very least, shifted risk of life and limb onto others remaining on the field of battle. I observed, "Lincoln's personal interests should not impugn his public motive: win the war and secure the nation." 

None of these five points were ever addressed by the federal courts, since Trump was never indicted by Mueller. But all five of these points came up during oral argument today in Trump v. United States. I had a sense of déjà vu.

The Clear Statement Rule

The most interest in the clear statement rule came from Justice Kavanaugh. I think of all members of the Court, Justice Kavanaugh has perhaps the most insights on what it means to prosecute a President. Justice Kavanaugh has seen this issue from both sides. Earlier in his career, he worked under Independent Counsel Ken Starr. And later in his career, he served as a White House attorney under President George W. Bush. I remember when there were calls to charge members of the Bush administration with war crimes and worse. Kavanaugh stated, "this case has huge implications for the presidency, for the future of the presidency, for the future of the country." He is exactly right.

Kavanaugh asked John Sauer, Trump's counsel, if "a clear statement in the statute covering the president" is required "if the president's official acts are going to be criminalized." Kavanaugh later observed that "a clear statement in the statute referencing the president" was needed "so that the president is on notice and can conduct himself or herself accordingly." Another rationale for the clear statement rule, Kavanaugh explained, is "to make sure Congress has thought about" what it would mean to subject the President to criminal liability. 

In a colloquy with Michael Dreeben, counsel for Jack Smith, Kavanaugh observed that the OLC opinions "articulate a clear statement rule as to this Court's cases for covering official acts." Kavanaugh stressed that "none of the statutes" in the indictment "have a clear statement covering the president, therefore, meaning that the president can't be charged for any official acts" under these statutes. Michael Dreeben rejected this argument. He said, "I definitely don't think that the Office of Legal Counsel opinions stand for this broad proposition that unless the president is specifically named," he can't be charged with violating that statute." Marty Lederman articulated this position after the Mueller investigation concluded. Lederman wrote, "there is no such established canon, or 'clear statement rule,' notwithstanding its appearance in a handful of OLC opinions in the Clinton Administration." 

Kavanaugh interrupted Dreeben, and suggested there is always a "serious constitutional question whether a statute can be applied to the president's official acts." Kavanaugh asked, "So wouldn't you always interpret the statute not to apply to the president, even under your formulation, unless Congress had spoken with some clarity?" Dreeben countered that there was not "a serious constitutional question" in all statutes "across the board." Kavanaugh did not agree with that proposition. He turned to obstruction and conspiracy charges, which "can be used against a lot of presidential activities historically with a creative prosecutor who wants to go after a president." (That prosecutor's name is Jack Smith.)

I can see Justice Kavanaugh writing a concurrence explaining that the clear statement rule should apply across the board, relying on Franklin v. Massachusetts. I don't know that the Court has ever made this point clearly, but I thought that Justice Kavanaugh got the better of the colloquy with Dreeben. In any event, the discussion of the clear statement rule presumes that the President does not have absolute immunity. This rule of construction only kicks in if the President can be prosecuted.

Justice Kavanaugh also said that Morrison v. Olson was "one of the Court's biggest mistakes" and was a "terrible decision for the presidency and for the country." Kavanaugh praised Justice Scalia's Morrison dissent, as well as Justice Robert H. Jackson's famous speech about prosecutors. Kavanaugh described this case as Morrison v. Olson "redux." Then-judge Kavanaugh criticized Morrison before his elevation, though he did not make this point in Seila Law or Arthrex. Perhaps Kavanaugh's concurrence in Trump will take on Morrison directly.

The President and bribery 

During oral argument, Chief Justice Roberts asked a string of questions about the president and bribery. What makes this topic so complicated is that even if the quid is a briefcase full of cash, the quo will likely be an official act supported by Article II. You can't have one without the other.

Chief Justice Roberts offered a hypothetical in which a President promises to appoint someone as an ambassador in exchange for a $1 million bribe. The same hypothetical could apply to other categories. Dreeben suggested a few other examples: the pardon power, the veto power, the foreign recognition power (an exclusive power under Zivotofsky), and (perhaps) the commander in chief power (to the extent it is not shared with Congress). Sauer replied to the Chief Justice that accepting the bribe would be private conduct, and not an official act, while the "substantive appointment would be essentially an unrestrictable [Article II] power . . .  that Congress couldn't directly regulate." Roberts did not seem persuaded by this distinction. He asked where the "boundary" is between the official and private acts. Roberts explained that "if you expunge the official part from the indictment"--that is, the appointment--you're left with a "one-legged stool, right." You can't have the quo without the quid. Later Dreeben told Justice Kagan that "In a bribery case, the public official cannot extract the bribe without the official power to offer as the quid or the" quo. Dreeben stated, "bribery is the kind of hybrid that illustrates the abuse of public office for private gain that we think is paradigmatic of the kinds of things that should be not held to be immune."

But there's that concept of "private gain" again. Justice Jackson likewise stated, "one could say that when the president is using the trappings of his office to achieve a personal gain, then he's actually not acting officially." A suitcase of cash is clearly private gain. But how do you draw the line between a "personal gain" and a "public gain"? Seth and I discussed this line in the context of then-Governor Rod Blagojevich's attempt to barter a Senate vacancy:

Judge Frank Easterbrook stated this principle in even stronger terms regarding the conviction and sentencing of Illinois Governor Rod Blagojevich, who offered to appoint Valerie Jarrett, a close associate of President-elect Obama, to a vacant U.S. Senate seat, in exchange for Blagojevich's receiving an appointment to the Obama cabinet. Blagojevich was convicted on multiple counts. On appeal, in U.S. v. Blagojevich (2015), the U.S. Court of Appeals for the Seventh Circuit found that particular counts of his conviction could not stand. Judge Easterbrook explained that "a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment." He added that "[g]overnance would hardly be possible without" political log-rolling, "which allow[s] each public official to achieve more of his principal objective while surrendering something about which he cares less, but the other politician cares more strongly."

Dreeben stated, "Many of the acts that are charged in this indictment or that would violate federal criminal law similarly involve the misuse of official power for private gain." The issue is not so clear-cut as Dreeben suggests. For sure, Jack Smith would say that Trump's actions were for "private gain." But if this case were ever to go to trial, Trump would argue that the actions he took were in the national interest (ensuring fair elections) and also for his private gain (re-election). When you are the President, it is difficult to disentangle the two concepts. The conception of "private gain" by Dreeben would go a long way towards criminalizing regular politics. Many of the Court's recent cases, like McDonnell and Kelly cut in the exact opposite direction.

All The President's Motives

One of the most stimulating exchanges of the day was between Justice Gorsuch and Michael Dreeben. The colloquy began with Justice Gorsuch asking how to assess the President's motives. He offered an example of a President who uses his "war powers" to "enhance his election, his personal interests." Gorsuch inquired, "Is that a relevant consideration when we're looking at core powers?" This is precisely the scenario I discussed in the New York Times. Lincoln used his war powers to help his re-election. Relatedly, Justice Kavanaugh brought up President Lyndon B. Johnson's "false" statements about the Vietnam War and President Gerald Ford's pardon of former-President Nixon. Did Ford think about being investigated for obstructing the Nixon investigation? Kavanaugh also brought up President Obama's "drone strikes." Could Obama be charged with murder?

Dreeben resisted the probe into motivation, and acknowledged "concern[s] about saying an electoral motive to be reelected as such is covered." (I think "covered" would mean "immune.") Gorsuch responded, "every first-term President, everything he does can be seen through the prism, by critics at least, of his personal interest in re-election." Truth.

Gorusch said it would be a bad rule to dig into "personal motivations," at least with regard to "core powers" like the pardon power or the veto power. Gorsuch also asked if the removal power is a "core power." (Remember Andrew Johnson was impeached, in part, for firing Secretary of War Edwin Stanton in violation of the Tenure of Office Act.) Dreeben said that motivations "maybe" comes into play with regard to core powers. He said, "The Department has not had to take a position on exactly how these core powers would be resolved under an as-applied constitutional analysis." The colloquy continued, but I don't think Justice Gorsuch got a clear answer out of Dreeben. At one point, Dreeben said, "I think that you're raising a very difficult question." Gorsuch replied, "That's the idea, testing the limits of both sides' arguments." Dreeben attempted to run away. "I'm going to say something that I don't normally say, which is that's really not involved in this case. (Laughter.) We don't have bad political motive in that sense." But such an analysis is involved in examining Trump's motives for his statements on at the Ellipse. That answer was not going to work. Gorsuch replied that the Court is "writing a rule for the ages."

Later Justice Barrett returned to Justice Gorsuch's motives questions. She asked if the President would lose immunity if he granted a pardon or removed a cabinet officer with a "bad motive." 

During the Trump years, I wrote at length about the challenges of trying to assess the President's motives--especially in the context of the exercise of constitutional authority. DOJ has every interest in resisting such a probe, so it is unsurprising that Dreeben bobbed and weaved.

***

These are my tentative thoughts on the oral argument this morning. I hope to write more in due course.

Comments

[Martinned2]

a criminal statute should only apply to the President if there is a "clear statement" to that effect.

That is nuts. A (criminal) statute applies to the President unless it expressly says otherwise, or if it cannot reasonably be interpreted as applying to the President. If the Supreme Court adopted the Josh Blackman rule, you might as well go ahead and give the President a coronation instead of a swearing in ceremony.

[Riva]

Really? A president’s intent in executing his official duties should be subject to review by any politically rabid federal prosecutor, or a biased and conflicted judge? A dumb as a stick in the mud jury? Oh what a wonderfully stable and functioning government we would have in that lawfare world.

[Martinned2]

Show me where in the Constitution it says otherwise.

[Riva]

It derives from the original understanding of the vesting clause, Article II, Section 1, Clause 1, and separation of powers concerns inherent in our Constitutional structure respected since Marbury v Madison.

[Martinned2]

Let me take an example: You think that everyone in the armed forces (and indeed civilians) can be prosecuted for war crimes under 18 USC 2441 but not the president?

https://www.law.cornell.edu/uscode/text/18/2441

[Riva]

Sounds like you’re skating on the official acts pond by suggesting that the Commander in Chief could be indicted by any drooling liberal federal prosecutor or a DC Grand Jury for his responsibilities as Commander in Chief. You’d have to give me more facts. Just as a general observation, if his conduct was egregious enough seems like it would be an impeachment case.

[Martinned2]

If only I had included a link to the statute in question, and if only that statute included a provision that should satisfy your concern:

No prosecution for an offense described in subsection (a) shall be undertaken by the United States except on written certification of the Attorney General, the Deputy Attorney General, or an Assistant Attorney General, which function of approving prosecutions may not be delegated, that a prosecution by the United States is in the public interest and necessary to secure substantial justice.

Also, if only my question was about impeachment, which it was not, because that’s an unrelated topic.

Reading the sources that people give you is great. You should try it. (At least if it's a halfway sensible URL.)

[Riva]

So what? The president is the commander in chief not the AG. The executive powers are vested in the president not the AG. In short, the AG is a subordinate official who has no more business substituting his judgment for the President's than the aforementioned drooling federal prosecutor. And impeachment is most certainly relevant becasue it is the proper constitional remedy. Still waiting on those factual details asked for above to demonstrate why something squarely within presidential duties and responsiblities becomes a criminal matter subject to review by a federal prosecutor, be he AG or not.

[David Nieporent]

The president has no authority or right to exercise "judgment" in a way that violates the laws enacted by Congress. The Constitution vests him with the duty to take care that the laws — the laws passed by Congress — are faithfully executed, not the right to do whatever he wants.

[Brett Bellmore]

True, for constitutional laws. If Congress happened to enact a law presuming to regulate some exclusively Presidential power, such as the pardon, it wouldn't be constitutional, and he'd have no obligation to "Take care".

In passing, I note that the Take Care blog shut down as soon as Biden took office, because the truth is they never did care a bit about the Presidential obligation to take care that the law is faithfully executed. At times they'd actually complain because Trump DID try to faithfully execute laws they didn't like!

I wonder if they'll revive the blog if Trump wins this November?

[Drewski]

If it isn't a crime for the President, then it isn't a high crime or misdemeanor for which he can be impeached. Obviously Congress isn't prevented from impeaching for things that are not crimes, but this is contrary to the Constitution and courts should not rule on the assumption that our elected representatives will just ignore that.

[Riva]

Maybe, or maybe his actions could be so egregous, like a grossly negligent withdrawal from Afghanistan that resulted in civilian and military deaths and a loss of hundreds of millions of dollars in equipment, so as to bring into question his fitness for office to such a degree as to rise to an impeachable offense?

[Riva]

And to educate you further, since you need it, that it isn’t a crime for which a president could constitutionally be prosectued in no way means it is not an impeachable offence. You need to relisten to the oral arguments from yesterday. And it might not be amiss to reread (or maybe read for the first time), the Constitution. As an aside, have there always beem so many liberal idiots in this comments section?

[TheAmazingEmu]

It's not a separation of powers since the executive branch is prosecuting a member of the executive branch.

[David Nieporent]

You'd think that would be obvious, but the places where Reva is getting his talking points don't mention that, so he can't parrot it back.

I do think there's a potential separation of powers issue, but it's not remotely the same as the one Reva is arguing, and is not the same thing as "immunity": Congress cannot criminalize things that are textually committed solely to the presidency. The obvious example is pardons: Congress cannot say, e.g., that because terrorism is really bad, it is a crime to pardon someone who was convicted of committing terrorist acts. But that's not because of some weird notion of presidential immunity; it's because it is simply outside the scope of Article I congressional power to decide how pardons can be used.

[Riva]

Hard to imagine you understand what I am arguing when you wouldn't know a separation of powers issue if it swam up and bit you on the ass. As I recall, you argued the same crap about no separation of powers concerns as moron No. 1 above. Maybe I embarrassed you into silence on that?

[David Nieporent]

Well, it's true that I am embarrassed for you.

[Riva]

The separation of powers issues come into play with judicial interference in executive prerogatives. This sounds like the same stupidity I’ve read from another commenter. It’s like you all failed at same woke law school.

[Brett Bellmore]

You're going to require every general law, against kidnapping, rape, murder, robbery, to include a, "This includes Presidents!" clause, or the President can't be prosecuted?

[Roger S]

Yes, or just agree that the President is immune from such laws.

[Krayt]

If they can include the president by explicit statement, then exemption to begin with because he exercises vested powers would be a non-starter.

[Kazinski]

I think there you are going to have to rely on the public acts private acts distinction.

Say the President becomes aware of a piece of unrecovered art stolen by the Nazi's in a private collection, but for reasons of national security they can't reveal the source of the information and get a search warrant.

The President orders a black bag operation to recover the work.

Then he either

A) appropriates the work for his private collection

or

B) restores the work to the national museum it was looted from and uses that as leverage for an important trade agreement he sees as important to his re-election campaign.

I'd say if B, the President is immune from his clearly illegal act, if A he has no immunity and if B) he has immunity for committing an illegal act that was in the national interest (but obviously Congress could differ and impeach him).

[Riva]

I'd say neither act is official and if known by Congress, such a president would be impeached and convicted if in office. If out of office, well, not official so he's fair game.

[Martinned2]

You realise that by the express provision of the Constitution impeachment is neither necessary nor sufficient for a criminal prosecution? https://constitution.congress.gov/browse/essay/artI-S3-C7-1/ALDE_00000037/

[Riva]

Nope, don't realize that at all. You rely too much on the import and scope of an informational text on a website.

[David Nieporent]

And you rely too much on pulling shit out of your ass.

[Riva]

And, moreover, you might want to reread that piece. It doesn’t discuss presidential immunity

[Brett Bellmore]

By express provision of the Constitution impeachment doesn’t preclude prosecution: “but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” But that’s as far as it goes in terms of express provision.

It’s entirely silent on whether the party acquitted is subject to prosecution. The fact that it specifies convicted could be taken to mean that acquittal precludes prosecution, as it ordinarily would under the double jeopardy clause.

But I think the better reading is that double jeopardy simply isn’t an issue with impeachment, as there’s no relevant legal jeopardy attached to impeachment that you could double.

[Brett Bellmore]

Geeze, now you're requiring the President to be specifically mentioned for general constitutional commands to apply to him, too?

Look, the warrant requirement isn't even aimed at Congress, the whole point of it is to restrain the Executive branch, the President.

So, you're not just taking an oddball stance, you're inverting the point of it!

[Riva]

I wouldn't say that because, as a general proposition, there are limits to which Congress could subject the President's exercise of his official responsibilities to sanction. But whatever the limits, that hack Smith has crossed them in this nonsense political prosecution.

[bernard11]

Apparently, that's what Josh wants. Amazingly stupid.

[Eric (the OC tanker)]

This is one man's opinion; If a President makes an act, and that act is "in the line of duty" as proscribed by the enumerated powers as stated in the Constitution or other powers delegated to him by law/the act of Congress, then that action should be shielded from any prosecution or indictment from any grand jury. One only has to apply common sense to the situation at hand and not get lost in the weeds that all the 'crud' swirling around DJT is straight up political theater with the intent to damage the chance of any outsider to be elected.

Just to point out, the Left's knifes did not come out against DJT until the man announced his run for the White House. The left and the congressional uniparty have opposed his administration from day one.

[David Nieporent]

A president’s intent in executing his official duties should be subject to review by any politically rabid federal prosecutor, or a biased and conflicted judge?

To the same extent as every other American, yes, obviously. Of course, federal prosecutors ultimately answer to the president, so there is no possibility of a "politically rabid" prosecutor going rogue against a former president.

[Bruce Hayden]

Huh? That’s precisely what we are seeing here with the two Trump prosecutions - rabidly partisan DOJ attorneys going after former President Trump, with the full blessing of his successor President and AG (recently unredacted, by order of Judge Cannon, documents show that the FL case was initiated by the Biden WH working with AG Garland).

[David Nieporent]

You should've stopped at "huh?" After that is where you went off the rails.

[Kazinski]

Since it dates from the Clinton administration in 1996, its been nuts for awhile and seems functionally stable.

[Riva]

I think the present lawfare being pursued by out of control democrat prosecutors and the Biden administration argues against that.

[Kazinski]

You misunderstand, the clear statement "rule", which is a form of presidential immunity was.promulgated in the Clinton administration, so it can hardly be nuts in practice.

[Riva]

you ignore the lawfare.

[Martinned2]

You think anyone is arguing that Clinton couldn't have been prosecuted for perjury?

[mulched]

His testimony in the Jones case was not an official act, so not relevant to the discussion.

He was not testifying as president but as a serial abuser of women.

[Martinned2]

That's basically what I was checking. Kazinski's comment seemed to suggest a different way of thinking.

[Kazinski]

No, I would agree that Clinton lying to the grand jury investigating whether he obstructed justice in a private lawsuit was private conduct.

[David Nieporent]

His testimony in the Jones case was not an official act,

Are you sure? Trump and his sycophants have argued that defaming E. Jean Carroll was an official act. They've argued that falsifying Trump Organization records to disguise payments to porn stars was an official act. They've argued that forging electoral votes and then trying to pressure state legislatures into accepting those votes was an official act. They've argued that Trump giving a campaign speech to a crowd of his supporters in Washington on J6 was an official act. I mean, that's all loony, but it's Trump's argument. And if it were accepted, then why wouldn't perjury to conceal an affair conducted in the oval office be an official act?

[MatthewSlyfield]

The clear statement thing is not "the Josh Blackman rule".

In a colloquy with Michael Dreeben, counsel for Jack Smith, Kavanaugh observed that the OLC opinions "articulate a clear statement rule as to this Court's cases for covering official acts." Kavanaugh stressed that "none of the statutes" in the indictment "have a clear statement covering the president, therefore, meaning that the president can't be charged for any official acts" under these statutes.

[NvEric]

The coronation has already been in place for decades in some form or another. It was expressly and greatly expanded by Obama!

Don't give any one that goody two shoes crap of innocence until Trump came along. Your view is not surprising, however, you excel at it.

Trump has already been confronted by the only force valid for any actions taken by the second impeachment. Most all, if not all, actions are handled by impeachment, you know . . . it's our system by the way - a system bloviated beyond belief by transmogrifying agents.

[Martinned2]

Trump isn't even in office, so I see no constitutional barrier to prosecuting him for whatever crimes there is sufficient grounds to believe he committed.

[Brett Bellmore]

I absolutely agree. I think most of the charges against him are total bullshit, but immunity? He has none. Neither does Biden, for that matter.

[Martinned2]

I would definitely have some questions if a state prosecutor arrested a sitting president and a state court ordered him detained. That seems to offend against at least the spirit of the supremacy clause. If the president needs locking up, that should be done by federal courts and prosecutors, or after he leaves office. (A prosecution while in office seems fine if it doesn't substantially interfere with the execution of his office.)

But even that one is more of a "spirit of the law" kind of argument than something that is settled by the express wording of the Constitution. Then again, I'm fine with those. I don't think it makes sense to get very rigid about a constitution as short and opaque as the US one. The problem with Riva's view isn't that it depends on inferences, but that it's wrong.

[Brett Bellmore]

I've occasionally said that the law, like math or logic, is subject to Godel incompleteness. It's simply impossible, even if a constitution DOES partake of the prolixity of a legal code, for it to cover every single issue. Some things absolutely unavoidably have to be inferred.

But I'm highly resistant to inferring executive immunity when the legislature got much weaker immunity explicitly. That demonstrates that the question of immunity was considered, so the absence of any grant of immunity to Presidents has to be controlling.

Of course, here I'm talking about ordinary laws of general application. There are going to be separation of powers and supremacy clause applications that will certainly look in practice like immunity.

[Martinned2]

That makes sense. As for the President vs. Congress, there's one President and 535 members of Congress. One member of Congress being arrested doesn't stop Congress operating, it's just problematic because it can be abused for partisan reasons. But a President in a holding cell seems problematic simply from a "how can he decide whether or not to nuke China from there?" POV.

[TheAmazingEmu]

I think the Supremacy Clause and the Take Care Clause could be enough to essentially stay all criminal prosecutions during the Presidency. I don't see how it would be enough for a former President, though. However, the President still has a Sixth Amendment right to a trial by jury.

[Brett Bellmore]

Well, so long as some clever prosecutor doesn't hit him with 10,000 counts of a misdemeanor.

[TheAmazingEmu]

I don't think anyone will see my posts at this point, but a) that's a problem of the Supreme Court's own making if they want to revisit the precedent and b) is only true of "summary offenses" that carry a punishment of six months or less. Most misdemeanors do allow for the right to jury trial.

[Bruce Hayden]

The problem is that he was in office at the time he engaged in many of the actions that he was indicted for. If the standard is that you can’t indict a sitting President, but after he leaves office, his official acts, while in office are fair game, expect quick indictments of Biden after he leaves office, if he does so on his own two feet. For example, while his taking of bribes from Ukrainian may have run the statute of limitations (assuming immunity during his Presidency didn’t toll it), the quod of the quid pro quod continues to be paid, with the $billions$ we continue to send them, greatly enriching the Ukrainians who bribed him. And, if you demur that Congress ratified those expenditures - he sent plenty of our own arms there on his own.

[David Nieporent]

For example, while his taking of bribes from Ukrainian

You just can't stop lying, can you?

[Bruce Hayden]

The term for your mode of argument is “ad hominem“. Many here, no doubt, take it as an admission that you have no argument, else you would make it.

[ObviouslyNotSpam]

Or, is there really any point arguing with a liar?

[David Nieporent]

That is not in fact what "ad hominem" means, so in addition to being a liar you are also ignorant.

The ad hominem fallacy is one that addresses an irrelevant aspect of the arguer rather than the arguer's position, such as, "Bruce Hayden says that we should lower taxes to stimulate the economy, but he supports Vladimir Putin so we can ignore him."

An insult is not an ad hominem at all, and "Bruce Hayden says X, but Bruce Hayden is lying" is not an ad hominem since your lack of honesty is directly relevant to the validity of your position.

And, to be clear: you're lying. Nobody has found one penny going from any Ukrainians to Joe Biden.

[Bruce Hayden]

Liar! Liar! Pants on Fire!

Of course they have found money going from Ukrainians to Biden. We knew that Trump’s first (Ukrainian) impeachment revolved around Hunter Biden taking bribe money, through Barisma, etc, for his father shutting down a corruption investigation into the leader of Ukraine. He threatened to withhold US aid to Ukraine if the investigation wasn’t ended. It was. Quid pro quo. Then, Hunter, likely in a drug induced haze, left his laptop to be repaired. He (a HLS educated lawyer) had signed a contract that gave ownership of that laptop to the repair company, if he didn’t pick it up within the allotted 90 days. He didn’t. The contents were devastating. It ultimately showed $millions$ flowing to Biden family members. Because this was 9/20, right before the election, it was reported as fake news, after investigation by the FBI. They knew better, but it took 3 years to admit it. Yes, much of the disk drive was filled with pictures of his drug fueled revelries (we see one of him at least weekly on Gutfeld, in his white briefs, lit to the winds). But it was also filled with incriminating emails and financial data.

There has been evidence for years of Ukrainian and Chinese money flowing to Hunter, James (Joe’s brother), and Beau’s widow, Hallie. That alone would probably be sufficient for a bribery conviction here in the US, esp since by that age, many people are moving money to their kids, to avoid estate taxes. But there were cryptic remarks about the 20% (I believe) cut to the “Big Guy”. Many assumed that was Joe Biden, but there was no proof, until a couple months ago, with the testimony of Hunter’s partners, when it was confirmed. They also confirmed that they would meet with their clients and VP Biden, and get paid by the clients.

Do you want me to go on, or are you going to continue to stick your head in the sand, pretending that there is no evidence of bribery? I can do this all day, giving you links to all of the corruption I have mentioned, and much more.

The reason that I consider your comment an ad hominem argument is that it is a non-argument. It throws mud without clarifying. If you had said that I was wrong, I would have been fine. I am wrong a lot. For example, I was corrected the other day about the Constitutional status of USAs and USAs. Live and learn. But repeatedly calling me a “liar” imputes state of mind (scienter), and by now you should know that while I may be wrong, I don’t say things knowing that they are wrong. My fact base is just different from yours. And that is why I started this with Liar! Liar! Because by calling me a liar, you are saying something about me that you probably have reason to believe is false.

[David Nieporent]

I couldn't decide whether to respond to this tendentious nonsense in essay form or point by point. I finally went with point by point. But the TL;DR: in fact, Bruce Hayden has lied about the facts and still has not pointed to one shred of evidence that Joe Biden got one penny from any questionable source.

[David Nieporent]

Of course they have found money going from Ukrainians to Biden.

…he says, despite the fact that they have not found even one penny going from Ukrainians to Biden, and doesn't even pretend to cite evidence of such.

We knew that Trump’s first (Ukrainian) impeachment revolved around Hunter Biden taking bribe money, through Barisma, etc, for his father shutting down a corruption investigation into the leader of Ukraine.

This manages to be at least a double lie. The impeachment revolved around no such thing; you're not even correctly relating Trump's lies. There was no allegation of a "bribe." (There was one in 2023, from a source who has since been arrested for lying to the FBI.) And there was no allegation of an investigation "into the leader of Ukraine." Rather, there was a provably false allegation that Joe Biden got a prosecutor fired to shut down an investigation of Burisma's CEO (not "the leader of Ukraine") to benefit Hunter. It's provably false because there was no investigation at the time, and it wasn't Joe Biden's decision to try to get Shokin fired.

He threatened to withhold US aid to Ukraine if the investigation wasn’t ended.

Once again, a lie. First, Joe Biden was just the vice president; he couldn't withhold a White House souvenir mug, let alone US aid. He was delivering a message from the Obama administration, not implementing his own policy. Second, the message was that aid would be withheld if the investigation wasn't conducted, not if it wasn't ended. The message was that the corrupt Ukrainian prosecutor, Shokin, needed to be fired.

Then, Hunter, likely in a drug induced haze, left his laptop to be repaired. He (a HLS educated lawyer) had signed a contract that gave ownership of that laptop to the repair company, if he didn’t pick it up within the allotted 90 days.

He signed no such "contract," which said not one word about "ownership of the laptop."

The contents were devastating.

Yet another lie. There was nothing of interest on the laptop. That’s why the story disappeared once the controversy over the laptop's provenance was exhausted. It was all a big nothingburger. (And for the record: Hunter Biden went to Yale LS, not Harvard; you can't even get little details right.)

It ultimately showed $millions$ flowing to Biden family members. Because this was 9/20, right before the election, it was reported as fake news, after investigation by the FBI. They knew better, but it took 3 years to admit it. Yes, much of the disk drive was filled with pictures of his drug fueled revelries (we see one of him at least weekly on Gutfeld, in his white briefs, lit to the winds). But it was also filled with incriminating emails and financial data.

You're a lawyer and you don't know what the word "incriminating" means? No crimes of any sort were identified through the laptop, with the possible exception of Hunter Biden's tax evasion. (It's not clear to me if that's where the info about his taxes came from, but I'll give you the benefit of the doubt on that.) Maybe the problem is that you think "Gutfeld" showing Hunter Biden dick pics is a news source?

There has been evidence for years of Ukrainian and Chinese money flowing to Hunter, James (Joe’s brother), and Beau’s widow, Hallie.

Okay, and? You know what Hunter, James, and Hallie Biden have in common? None of them are Joe Biden.

That alone would probably be sufficient for a bribery conviction here in the US,

You purport to be a lawyer, and yet you think that you can convict someone of receiving bribes without showing either a quid or a quo? Joe Biden didn't get any money and didn't take any official act.

But there were cryptic remarks about the 20% (I believe) cut to the “Big Guy”.

Everything here is wrong. There was an email which discussed the structure of a proposed deal, and in it, the author said, "10 held by H for the big guy ?" So — assuming that the Big Guy was Joe Biden — it was a question, not a statement, it was about a proposed deal that never happened, and it was in May 2017, when Joe Biden was a private citizen and thus not subject to bribery, since there was nothing to bribe him about.

Many assumed that was Joe Biden, but there was no proof, until a couple months ago, with the testimony of Hunter’s partners, when it was confirmed. They also confirmed that they would meet with their clients and VP Biden, and get paid by the clients.

This is just delusion on your part. No such testimony ever happened.

Do you want me to go on, or are you going to continue to stick your head in the sand, pretending that there is no evidence of bribery? I can do this all day, giving you links to all of the corruption I have mentioned, and much more.

You can do what all day, lie without any evidence of any sort? I'm sure you can.

[TheAmazingEmu]

Yeah, the statute criminalizes conduct conducted by persons. The President is a person. The statute clearly indicates the President is included in the statute. There's absolutely no reason to think they wouldn't any more than it would exclude sanitation workers.

[Jerry B.]

“Most people run for office, and seek to remain in office, based on a belief that they—and not others—are in the best position to promote the public welfare, however defined.”

Yeah. Right.

[Dan Schiavetta]

“Jurist of the Year”

[Kleppe]

Your lack of a response has been noted.

[TwelveInchPianist]

"Where one public official act is traded for another public official act, there has not been any illegal conduct."

"I will only sign this bill if it includes a provision to give my son a suitcase full of cash"

That sounds an awful lot like bribery.

[Riva]

I think Hunter might prefer some crack, and a couple of whores, to go with that cash.

[Nige]

I think Hunter might be your crack.

[Kazinski]

No, I think that's ok legally.

Does Congress have the power to grant suitcases of cash to people for no discernable reason? Unfortunately yes, they do it all the time.

But Congress could impeach the President for proposing the deal, or even if they had buyers remorse after the deal.

[DaveM]

That's a pallet of cash, and it goes to Iran. In small, unmarked Swiss francs and Euros, please. We won't bother to count the $400 million. We trust you.

[Krayt]

Foreign aid is not to help their people so much as to give a wad of hard, western currency the elite can skim off the top, in exchange for buying friendly goodwill to US politlcies. This is, of course, explicitely illegal for the elites to do, but you know.

[David Nieporent]

The money delivered by Biden to Iran, wisely or unwisely, was not "foreign aid." It was Iran's own money.

[TwelveInchPianist]

“Kavanaugh also brought up President Obama’s “drone strikes.” Could Obama be charged with murder?”

Maybe the correct answer is that he could be.

Judge Pan asked, “Could a president who ordered SEAL Team 6 to assassinate a political rival [and] who was not impeached, would he be subject to criminal prosecution?”

Is the answer yes if the rival is out of the country?

Should political rivals of the President be wary of foreign travel?

[Kenneth Almquist]

If the drone strikes were in fact illegal, I don’t think it would be fair to prosecute everyone in the chain of command except for the President. If a drone operator is given an illegal order, the existence of the order does not shield the operator from criminal liability, but it does place the operator in a difficult position. Charging the drone operator with murder but not charging the person who gave the order is, in my view, contrary to basic justice.

I don’t think that any of the drone strikes under Obama were murder, and apparently the relevant people in the DOJ agree with me, giving that we haven’t seen any indictments. But if the DOJ is in fact still investigating the strikes, and eventually does decide to file charges, I think they should charge everybody involved, even if that includes Obama.

[Sam Bankman-Fried]

Trump’s first military order resulted in SEAL Team 6 killing a little American girl!!! The fact his lawyer doesn’t even know that is a testament to the right wing echo chamber and Trump for creating so much chaos his first year that nobody remembers anything from it!!!

[NvEric]

As a general item to consider, never follow an illegal order. Courage in the chain of command is what keeps the system honest, right, and just. All involved MUST question the validity of an order before following it. There's no other way to live, be, or exist.

[David Nieporent]

All involved MUST question the validity of an order before following it.

That's not the way it works, nor is it workable. Of course everyone must refuse an illegal order, but soldiers don't get to call a timeout every time they're given an order and say, "Show me the legal authority for this order." There would have to be something about it that makes it clearly questionable before such a duty could arise.

[Sam Bankman-Fried]

Correct, had Trump specifically ordered the assassination of the little American girl and 9 of her little friends. Instead Trump lied to SEAL Team 6 and lied to the deceased SEAL’s father. Can you imagine being the father of a Navy SEAL and learning he was most likely killed by a female baby sitter after getting a call from President Trump telling you what a great success the mission your son died on was???

[Sam Bankman-Fried]

Kavanaugh was Bush’s right hand man when Bush was torturing detainees in order to elicit false confessions tying Saddam to 9/11!!! How could the liberal justices not bring that up in oral arguments?? Democrats suck at the partisan attacks and deflections.

[ObviouslyNotSpam]

Don't forget, one of Trump's very first military orders (on January 29, 2017) resulted in the killing of an 8 year-old US citizen by the name of Nawar al-Awlaki.

Now, is that a reason to question presidential immunity, or is it a reason to demand it?

[Roger S]

The bigger problem is that a lot of federal criminal laws have no clear statement of when anyone violates them. Terms like "obstruction" and "corruptly" mean whatever prosecutors want them to mean.

[Noscitur a sociis]

[citation needed]

[Roger S]

Here is a current scotus case hinging on the wording of a very vague federal criminal law.
https://www.scotusblog.com/2024/04/justices-divided-over-jan-6-participants-call-to-throw-out-obstruction-charge/

[Bruce Hayden]

Fischer v. US, Docket No.23-5572. It revolves around the very same 18 USC § 1512(c)(2) LawFare interpretation utilized against Trump. The case is likely to be reversed, because the DOJ is taking 1512(c)(2) out of the context of the entirety of 1512(c). 1512(c)(1) applies to anyone who “(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”. (C)(2) then goes onto include “(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so”. The DOJ appeared to be arguing, at oral arguments, that (c)(c) could stand on its own, while the Defendant/Petitioner argued just the opposite, that it was limited by (c)(1). The Republican Justices appeared to agree with him.

This case popped up a time or two in the Trump v US oral arguments, and the Chief, in particular squelched that discussion. I think though that the Republican Justices all had the case I mind, when Smith’s lawyer was telling them that former Presidents were protected rom vexatious and politically motivated prosecutions, after leaving office by the professionalism of the DOJ and its prosecutors.

[David Nieporent]

Even if SCOTUS rules for Fischer, it would not aid Trump, because Trump's acts — unlike those of the J6 insurrectionists — involved the forgery of documents.

[Bruce Hayden]

Please specify which documents Trump forged?

[David Nieporent]

Electoral vote certificates. Of course, he didn't personally write them, but he was involved in the conspiracy to forge them.

[Bruce Hayden]

Liar!!!

I only said that because that is your stock answer to whatever I say here.

Conspiracy is an inchoate crime. § 370 was charged for just that purpose. It’s a different crime than “attempted”. Of course, if the § 1512(c) charges fall, then § 370 (Conspiracy) falls to, or at least isn’t a felony.

Moreover, the slates of electors weren’t forged, but rather had different certifications - for example, the legislature, and not the Secretary of State or Governor. They didn’t claim that the Secretary of State signed them. They were exactly what they purported to be - certification by different officials. It’s up to Congress to pick which slate of electors to accept.

[Area Man]

I think the suggestion at oral argument is the solution. Criminal laws apply to presidents (unless specifically exempted), but they can make as-applied challenges to their application. To use an obvious and far-fetched example, if Congress made it a crime for civilians to give orders to military members, a former president, as the former commander in chief, could make an as-applied challenge to that statute for any orders he gave while in office.

In a less far-fetched example, a former president could make an as-applied challenge to murder charges for ordering strikes on foreign military targets. He couldn’t, however, assert such a challenge to murdering, say, his wife.

This, I think, strikes the proper balance. There will always be hard cases to decide, but that’s what courts are for.

[Krenn]

Unless of course his wife WAS a foreign military target. It could happen.

Man, that could get ugly... ISIS doesn't know that the president is going through an ugly divorce, so they kidnap the President's wife and use her as a human shield at ISIS HQ, and the President's response is to call in an airstrike ANYWAY....

[Krayt]

Good luck at the next election.

[Kazinski]

"if Congress made it a crime for civilians to give orders to military members".

Clearly unconstitutional, Congress can't impede article 2 powers m of the President, unless its via the budget.

[Michael Ejercito]

That has never stopped prosecutors before.

[Krenn]

Article 1, Section 8, The Congress shall have Power To...

Clause 14
To make Rules for the Government and Regulation of the land and naval Forces;

Saying that no OTHER civilian, EXCEPT the president, may give binding orders to the military would probably be just fine. Although the issue of Governors and nuclear plant operators might come up...

The founding fathers apparently considered the "Commander in Chief" clause to be surprisingly weak.... After all, the modern day King of England is ALSO the "Commander in Chief" of the British Armed Forces, and he hasn't actually used that power in forever... It's pretty much just an anti-coup backstop measure at this point, just in case the PM or the MoD ever decide to go off the reservation.

https://constitution.congress.gov/browse/essay/artII-S2-C1-1-1/ALDE_00013463/

[Drewski]

Well done, you spotted why he chose to use it as an example. Obviously you can't sustain an as-applied challenge to a law that's constitutional as applied. Now if you'll look behind that tree, you'll see the forest.

[Brett Bellmore]

Clearly unconstitutional, because giving orders is a speech act, and the 1st amendment would apply. As would Hotspur's rebuke; Anybody can give orders to military members, which the military members are perfectly free to ignore if they come from outside their chain of command.

[Sarcastr0]

Eh, I took it as an ultra vires thing - civs cant do generalling

[Brett Bellmore]

And my point is that, if there's any crime in me, a civilian, issuing orders to a soldier, it's the soldier following them, not me issuing them.

Now, if I pretended that I was a general, there would be some prosecutable fraud going on. But absent that, the orders themselves are just speech.

[Martinned2]

If you want to have fun along those lines: Issuing orders to a soldier either carries some conceit of lawful authority (making it some kind of fraud) or isn't an order (and therefore not covered by the hypothetical criminal law anyway).

[Brett Bellmore]

Oxford dictionary says, relevantly,

"an authoritative command, direction, or instruction."

Where "authoritative" has TWO relevant meanings:

"2. commanding and self-confident; likely to be respected and obeyed."
or
"proceeding from an official source and requiring compliance or obedience."

Civilians can issue orders to soldiers in the first sense, but not in the second, on account of not being an official source of orders.

If they pretend to be such a source, that's fraud. Congress can, in areas under its jurisdiction, make fraud a crime. But the actual orders? No.

Anyway, getting back to the hypothetical, Congress simply cannot enact a constitutional law prohibiting the President from giving orders to the military, for the simple reason that the President is, constitutionally, the commander in chief. His military leadership role is constitutionally assigned and beyond Congress' authority to deprive him of, short of impeachment.

[Sarcastr0]

You are refining the hypothetical to make it dumb and then calling it dumb.

[David Nieporent]

Clearly unconstitutional, because giving orders is a speech act, and the 1st amendment would apply.

You've been told repeatedly by lawyers that this isn't how the 1A works. Speech integral to crimes is not protected by the 1A. (If it were otherwise, then the mob boss who says, "Go whack Tommy" to his henchman would be protected. I assure you he's not.)

[Bruce Hayden]

Sure. But when the alleged crime is instigating an insurrection, you are first going to have to overcome Brandenburg v. Ohio, 395 U.S. 444 (1969).

[ObviouslyNotSpam]

The Supreme Court's purpose is not to "strike a proper balance". Not unless the Constitution is to be treated as a mere suggestion.

And its beginning to look like that's where it's going.

[Krenn]

"Where one public official act is traded for another public official act, there has not been any illegal conduct. "

That can't be absolutely true.... What if the President offers to pardon a Governor for committing a federal crime, in exchange for the Governor pardoning the President for a state crime? Two corrupt official acts don't cancel each other out.

[Kazinski]

Great hypothetical. But I think its legal at least under the federal constitution. State constitutions vary.

[Brett Bellmore]

This is actually a bad example, because the pardon power is plenary and absolute within its reach. At least at the federal level, much less so in some states.

[David Nieporent]

I don't believe Congress could criminalize a pardon itself. But it could criminalize accepting a bribe in exchange for a pardon.

[Brett Bellmore]

I don't think Kren's example would cut it, Congress would have no enumerated powers basis for criminalizing the state pardon, it's simply beyond their reach.

[Krenn]

The president solicited a bribe. He asked to recieve a thing of value, a pardon for himself, in exchange for performing a corrupt official act, pardoning the governor who pardoned the president.

[John Rohan]

Happens all the time. How is that functionally any different from a DA making a deal with a defendant's attorney for his client to testify in exchange for dropping the charges?

[gVOR08]

“We start from a simple premise: Most people run for office, and seek to remain in office, based on a belief that they—and not others—are in the best position to promote the public welfare, however defined.” Sorry, I just couldn’t keep reading after that. We’re talking about Donald Trump. If your base assumption is that Donald Trump ran because he held some ideal of public service nothing you say after that can be taken seriously.

[dwshelf]

That says way more about you than it says about Blackman or Trump either one.

[NvEric]

I wasn't a Trump follower until 2020. He seemed boorish and pompous and so on. However, he really does care even through all the garbage of anyone, I mean anyone, running for office. He still comes across bombastic, but genuine too. Is he a savior ? NO! But, there's no one else willing to step forward today. He's not going to provide necessary input to alter much, as it's not the job of a president to do so, unless dictatorship is wanted, which is what there already is and has been for a long time.

Exposing the rot is what's needed, and Trump has brought some to our attention, as if the People didn't already know. Same with Snowden. There's needs to be more people coming forward exposing the rot and corruption, with lasting solutions.

[Martinned2]

Are you high?

[Nige]

Yes, the solution to 'the rot' is to give the president absolute immunity.

'but genuine too.'

Genuine about what?

[SRG2]

However, he really does care even through all the garbage of anyone, I mean anyone, running for office. He still comes across bombastic, but genuine too.

I think your handle should be "Marie of Roumania".

[ObviouslyNotSpam]

Trump likes to talk about the J6 "hostages". He brings them up at nearly every campaign rally.

And yet, he had two weeks to pardon them--any or all of them, for any of the violent crimes or the non-violent crimes they may have committed--and he did nothing for any of them. He did issue 116 pardons and 83 commutations during his last week in office: not a single one to anyone being prosecuted or potentially prosecuted for crimes committed on January 6, 2021.

Trump likes to talk about the J6 "hostages". He brings them up at nearly every campaign rally...

[CountmontyC]

So what you are saying is that the law should be applied differently to Trump than for other POTUSs?

[#FFFFFFPride]

Well those were all Noble Presidents, pure of heart with great deference to the real masters in the Administrative State.

[Michael Ejercito]

Here was what Charlie Savage wrote in the New York Times.

https://archive.is/57pIb

The charges are novel applications of criminal laws to unprecedented circumstances, heightening legal risks, but Mr. Smith’s tactic gives him multiple paths in obtaining and upholding a guilty verdict.

It is almost a miracle the editors let him get away with using the phrase "[t]he charges are novel applications of criminal laws to unprecedented circumstances", let alone insist on him writing that "the charges are straightforward applications of criminal law backed up by two centuries of Supreme Court precedent"

Absolute immunity is not needed to throw out the indictment. Applying the standard of "clearly established law" as articulated in Harlow v. Fitzgerald, 457 U.S> 800, 818, is sufficient to defeat this indictment.

[Brett Bellmore]

But not until appeal, probably. More than one legal scholar hostile to Trump has predicted that he will certainly win on appeal. But the judge in this case can take comfort in Harry Reid's "It worked, didn't it?".

[Noscitur a sociis]

More than one legal scholar hostile to Trump has predicted that he will certainly win on appeal.

Such as?

[Brett Bellmore]

Well, Dershowitz, of course.

[Sarcastr0]

LOL

[Brett Bellmore]

Right, simply not thinking the guy should get a raw deal is enough to prove he's a Trump supporter. Rendering your position unfalsifiable.

[Sarcastr0]

It's just pretty obvious how bad you are at legal stuff when you rely on him as an authority.

[Michael Ejercito]

He knows much more about the law than you ever will.

[Noscitur a sociis]

Applying the standard of “clearly established law” as articulated in Harlow v. Fitzgerald, 457 U.S> 800, 818, is sufficient to defeat this indictment.

Why would you apply a standard used for one specific civil cause of action to a federal criminal statute?

[Michael Ejercito]

Under Harlow, bnureacrats would be paralyzed if they could be sued under novel legal interpretations of tort liability law. That is why the "clearly established law" was articulated bty rthe Supreme Courtt in 1982.

The Harlow principle should apply with even greater force in the case of a criminal prosecution. The performance of official duties, whether by a post office worker or the President of the United States, should not be subject to criminal liability unless the act in question violated "clearly established law", such as, for example, "receiving a suitcase full of money in exchange for performing some official act" (internal quotations omitted)

[David Nieporent]

Absolute immunity is not needed to throw out the indictment. Applying the standard of “clearly established law” as articulated in Harlow v. Fitzgerald, 457 U.S> 800, 818, is sufficient to defeat this indictment.

Harlow , like the companion case of Nixon v. Fitzgerald was about civil suits. Not criminal. It's not even applicable to, let alone sufficient to, defeat the indictment.

[Bruce Hayden]

The problem is that the rules for criminal cases are even stricter than for civil cases, in this regard. Under Due Process, you need to be aware that conduct was criminal at the time that the conduct was undertaken. Novel interpretations of criminal statutes very rarely provide that required notice.

[Michael Ejercito]

Actually, you need a fair chance "be aware that conduct was criminal at the time that the conduct was undertaken". "Novel interpretations of criminal statutes" would almost certainly deny that fair chance.

[David Nieporent]

By definition, the first time someone is charged with violating a statute, it will be a "novel interpretation." So by your logic, nobody could ever be convicted of violating a new criminal law.

[dwshelf]

Trump is going to win small. He won't be prosecuted in the present case, but he won't be granted total immunity.

[Kazinski]

I don't think the win is going to be that big.

They are going to remand to the lower court for more analysis and possibly to the trial court for factfinding about specifically which of the alleged acts could be related to official duties, then a better analysis on what how to apply immunity (there would have to be some flavor of immunity to remand) to official acts.

[Martinned2]

If that's what they were going to do, why grant cert in the first place?

[Brett Bellmore]

Because the Supreme court has become insanely allergic to simply deciding cases. They don't want to do that, no, they want to promulgate criteria for deciding them, and then throw them back to the lower court to apply.

So, Kazinski is probably right. They won't say, "We're throwing out charges A-C and E, the rest can proceed. And here's why we're doing it, for future cases." They'll issue some long winded basis for making the decision, and then tell the lower court to follow it.

[Martinned2]

To the extent that this test differs from the one applied by the [court below], we vacate its judgment and remand the case for further proceedings consistent with this opinion.

[Brett Bellmore]

Exactly: Do it over, according to THIS test.

[Kazinski]

Kind of a dumb question, if the hadn't granted cert the Appeals court decision would have been final.

They likely don't want that decision to be final, so they are going to either craft their own rule, or send it back to come up with a rule they like better.

[#FFFFFFPride]

Didn’t the DOJ argue that none of the previous Presidents committed crimes because some low-level officer decided the President’s act was lawful? Even ordering the murder of US Citizens?

According to the DOJ, the President has complete immunity if it’s conferred upon him by some midwit Sarcastr0 type. But since they didn’t do that for Trump, Trump’s acts were illegal.

Of course, the Deep State narrative engineers/cognitive infrastructure policers have put their take out there via horse-faced mouthpieces like AOC and all the idiot retards are hysterical.

[Sarcastr0]

According to the DOJ, the President has complete immunity if it’s conferred upon him by some midwit Sarcastr0 type.

UNLIMITED POWAH!

[#FFFFFFPride]

How do you think that's contributing?

That's what the DOJ argued. No previous President has ever committed a crime because someone at the OLC approved of their actions.

[Sarcastr0]

Lol that you think you are contributing.

I’m making fun of you because you are getting angry over pretending a legal argument is policy.

[#FFFFFFPride]

Woah, you can peer into my mind and tell me how I'm feeling and what I'm thinking! Amazing!

>I’m making fun of you because you are getting angry over pretending a legal argument is policy.

Can you show your work? How did you conclude that I was pretending a legal argument is policy? What is the distinction between this as a legal argument and this as a policy?

Why is that distinction important and how does it undermine my statement?

[Sarcastr0]

It's right above this: "Didn’t the DOJ argue..." followed by being angry at the policy implications of the argument.

I actually have no idea what the DoJ argued, nor do I really care since lawyers throw all sorts of stuff at the wall.

[#FFFFFFPride]

How can you write so many words but say nothing? You didn't address any of my queries. Just hand-waved and pointed. You don't really know what you're talking about. You just priss and preen.

>I actually have no idea what the DoJ argued, nor do I really care since lawyers throw all sorts of stuff at the wall.

Then why the fuck are you commenting?

[Sarcastr0]

What queries? You just arrogated to me unlimited powah and then got salty about it.

I'm gonna go pardon Biden now, see ya!!

[DaveM]

Careful, legal eagles. You're playing with fire.

[DaveM]

Here's the WSJ making the case for me: https://www.wsj.com/articles/democrats-election-interference-bragg-theory-trump-case-crazier-than-you-think-916f5c66

Lawfare is a cancer. It absolutely will kill the host unless it is surgically removed.

[Sarcastr0]

You can joint Ed in the not threat just think the GOP are violent and deluded level of bad arguments.

[#FFFFFFPride]

Are you drunk? wtf? Is there some FBI Pride Parade today that you're getting all liquor'd up for?

[DaveM]

I have no idea what this means.

[Sarcastr0]

You: "Careful, legal eagles. You’re playing with fire."
You: "Lawfare is a cancer. It absolutely will kill the host unless it is surgically removed."

Sure sounds like you think if this case goes the way you don't want it to, the result will be 'fire.'
Presumably this fire will come from Trump supporters.

IOW this is a threat, relying on the idea that MAGA are violent idiots.

[#FFFFFFPride]

Here are you pretending you've never heard of the idiom "playing with fire".

Have you no integrity or shame?

[CountmontyC]

It's Sarcastr0 so the answer to your question is no.

[Sarcastr0]

Trenchant.

[DaveM]

I see. I’m glad I asked you to expand your comment. No, I have no particular take on the outcome of this particular case. I am frightened to death by the lack of restraint being shown by the courts. They are adjudicating things that have been firmly seated in the political domain for literally centuries. The risk is overstepping the accepted social contract, and the subsequent loss of trust.

Our government is supposed to be representative. Government by consent. These lawfare cases are skating right up to the very edge of domination, not consensus. Another commenter called these “zero day exploits” of the legal system, which I thought was very apt.

[Malika the Maiz]

"I am frightened to death by the lack of restraint being shown by the courts."

Can you expand on this? Are you arguing these cases against Trump should have been summarily dismissed? That they have not been proceeding fairly? Should never have been allowed?

[Sarcastr0]

They are adjudicating things that have been firmly seated in the political domain for literally centuries.

Now things that haven't happened in centuries are going down, so I disagree with your characterization. We do not have the historical foundation to call anything illegitimate.

Government by consent doesn't mean area man with a view of what the Constitution says gets to dictate anything.

[ReaderY]

This just seems to be just a made-up, pull-it-out-of-your-ass-and-hope-the-judge-buys-it kind of argument. There’s no such rule. There’s nothing about it in the Constitution. Congress has no history of specifically mentioning the President in criminal statutes.

It’s understandable why Trump’s lawyers would want to contrive their own hand-made get-out-free-card and try to convince a judge it’s part of the official deck. It’s a zero-day exploit. Because it’s totally made up, nobody ever thought of it before. And because nobody ever thought of it before, the President is almost never specifically mentioned. So the rule, requiring something nobody previoussly thought required, basically lets this particular President get out of jail free without having to reach a decision on difficult issues like Presidential immunity. For future Presidents, Congress will probably wise up and pepper the criminal statutes with specific mentions. But right now, this zero day, the exploit if bought works and gets Trump out of jail free.

It’s just the sort of idea a court inclined to frequent the pouches inside Mr. Trump’s clothing would want to use. It sounds kind of fair-ish and it seems like the sort of thing that might be a real rule. As made-up get out of jail free cards go, it’s not that badly made. The Blacksmith did a creditable job at the forge.

But as something any judge in his right mind should be willing to buy? No way.

[Brett Bellmore]

Absolutely agree.

[DaveM]

I like the reference to a zero day exploit. Pretty apt. We’ve been seeing a lot of that lately. I’d certainly put both of the attempts to use state election procedure to exclude a federal candidate from appearing on the ballot into that category. Now that I’ve seen Bragg’s underlying “crime”, that would go in there, too. Certainly Trump’s total immunity claims.

Frankly, this stuff scares the stuffings out of me. There is a third rail, even in legal land. Right now we’re seeing precious little restraint. Our system of government is crafted to primarily operate in the political realm, not the legal. If you allow literally every question to be litigated, what then? At the very least, a much less effective, much less fair, and obviously much, much less representative form of government.

[ObviouslyNotSpam]

Every historical example cited in the arguments above involves somebody suggesting that the President might be prosecuted for this, that or another thing (but, for whatever reason, never was).

Josh's takeaway? Prosecuting the President is a ludicrous idea with no basis in the Constitution or the historical understanding of what it allows--and it must now be stopped!

[mydisplayname]

Excellent essay! I am particularly drawn to one aspect: Chief Justice Roberts "asked where the 'boundary' is between the official and private acts" and the analysis might _begin_ with "(perhaps) the commander in chief power (to the extent it is not shared with Congress)." George Washington had something to say on this particular issue and his comments might be useful.

A comment above summarizes nicely: "Right now we’re seeing precious little restraint. Our system of government is crafted to primarily operate in the political realm, not the legal. If you allow literally every question to be litigated, what then? At the very least, a much less effective, much less fair, and obviously much, much less representative form of government."

Perhaps restraint is a foundational component of our form of governance: what truly restrains the Commander In Chief of a large military force -- albeit "to the extent it is not shared with Congress," with that extent of sharing being mightily tiny -- other than self-restraint? And isn't it our obligations as voters to determine which candidate possesses the necessary degree of self-restraint?

The Commander-In-Chief can, without explicit (or any) authorization from Congress, lawfully "push the button," thereby destroying a goodly portion of the planet's population, at any time he sees fit... and his irrevocable pushing of the button might result from some sort of perceived or actual quid pro quo. Obviously, though, we should focus instead on Donald Trump's sex life.

[Estragon]

All the hypotheticals at oral argument seemed designed to avoid the necessity of grappling with the actual conduct at hand: the guy tried to disrupt the peaceful transfer of power. If one is absolutely immune for that conduct, what lies ahead?

Where are my originalists? If you brought Thomas Jefferson back from the grave and told him that the Supreme Court was wrestling with the question of whether Presidents were absolutely immune and above the criminal laws of the country— even for attempting to remain in the White House against the will of the voters— how do you think he’d react? Wasn’t that the whole complaint about King George? The mind boggles.

Finally, I will echo what the wags online have said: it’s a hell of a week at the court, saying both that Don is immune from all criminal laws and also being homeless can be criminalized.

“Conservatism consists of exactly one proposition …There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.”

[Rev. Arthur L. Kirkland]

Trump and his fans may (wittingly or not) be going all-in on a single deal.

If he is elected (by pulling off another three-cushion trick shot at the Electoral College, most likely), he could easily avoid accountability and reward his bigoted, superstitious, disaffected followers with plenty of backwardness and favors.

If he is not elected, he could easily die in prison, bankrupted and figuratively sharing a cell with plenty of his associates, while his followers get stomped severely by better Americans in many ways.

Fortunately, Trump has never won a popular vote and has never been above 50 percent approval, so it seems a dumb bet, even for a guy so fucking inept he lost money owning casinos.

[John Rohan]

Except that if the president genuinely believed the election was won fraudulently, isn't he the chief executive in charge of investigating just that?

Anyway, his only actions to that effect was to tell Pence he could refuse the certification.

[Estragon]

Again. The hypos are just a way to avoid grappling with what actually happened.

Three plus years later— what evidence of fraud can you point to? If you say bamboo ballots or smart thermostats or Ruby Freeman or Hugo Chavez I’ll be impressed with your commitment.

He knew (or, if you want to be extremely charitable— reasonably should have known) he lost. And despite that he tried to remain in power by causing enough unrest to justify invoking the insurrection act.

[Bruce Hayden]

He still likely believes, along with maybe half the country. Maybe more by now, that he legitimately won those 5 or 6 swing states. Six digit fraud, and losing by 4 digits. Sticking your head in the sand, and ignoring all the evidence of election fraud, because that is what right thinking people do, doesn’t change what Trump believed on 1/6/2021. For every person you can find who told Trump he lost, he can probably find 5 who told him that he had received more legitimate votes in those states. And that is what matters - Trump’s state of mind on 1/6/2001.

[Estragon]

“Sticking your head in the sand, and ignoring all the evidence of election fraud”

This is rich, coming from you. I question your grip on reality.

Jeffrey Clark was over at DOJ trying to get them to issue a statement casting doubt on the election on the basis of rumors that smart thermostats were changing votes. That was the justification. This from the guy that trump tried to make attorney general.

What evidence have you seen, now three years later, that would justify not certifying vote totals on the basis of thermostat? Not 10,000 mules or whatever other fantastical bullshit you want to come up with. Thermostats. I’m

[Nige]

Since he had and has no evidence to that effect there’s no reason to believe he wasn’t and isn’t lying.

[ObviouslyNotSpam]

Where indeed.

The fake originalists will shortly expose themselves.

[Martinned2]

Fair question on Balkinization:

I don't understand how the Court's thinking can be squared with Nixon's alleged crimes during Watergate. Many of his actions there were official. Indeed, much of the problem was that he abused his official powers (for example, by ordering the CIA to cover up the burglary).

I take it that the Court believes that Nixon could have been prosecuted after he resigned. Is the answer, then, that his actions during Watergate will be recharacterized as unofficial? If so, that comes close to making real the joke in a "Yes, Prime Minister" episode where an action is described as "unofficially official but officially unofficial."

https://balkin.blogspot.com/2024/04/what-about-watergate.html

[Rev. Arthur L. Kirkland]

As I understand the Trump lawyers' argument, Pres. Biden could arrange the killing (or sidelining) of several Supreme Court justices (whom he had adjudged after deliberation with advisors in the Oval Office to be operating against the national interest -- Justice Thomas' un-American leanings, associations, and actions seem easy to identify) so that he could nominate or appoint successor justices -- a core function of the presidency.

[Orbital Mechanic]

Having them killed wouldn't be the best option. Arrest them, control their access to the public, and then let them declare that what has been done to them cannot be prosecuted as a criminal act because of presidential immunity.

You could short-circuit the impeachment process with the same methods.

Of course Biden would never do that. Nor would Obama, either Bush, or Clinton have done that. Only Trump would, and that is why so many people here love him.

[Sam Bankman-Fried]

Bush Republican senators short circuited the impeachment process because Trump was governing like Jeb!

[Rev. Arthur L. Kirkland]

.

Having them killed wouldn’t be the best option.

Says who?

Not Trump Litigation: Elite Strike Force.

[Martinned2]

I don't think there is any legal problem with the President ordering the killing (targeted or otherwise) of US citizens who are engaged in active warfare against the United States. That's what the Civil War was. If you enlist in a (foreign) army and start shooting at the US army, the US army is allowed to shoot back at you.

But I'm more troubled by how easy it is for the President to declare someone an (unlawful) enemy combatant, Ex parte Quirin-style, and magic away their rights. In 1942 there was no war in North America, and eight weirdo Germans turning up in uniforms doesn't change that. So they should have been arrested and prosecuted under civilian law.

For completeness, the definition of 'prisoner of war' doesn't reference the circumstances of how the person falls into the power of the enemy, but provisions like art. 7 of the 1929 version of the 3rd Geneva Convention (art. 19 of the 1949 version) only make sense if a POW is captured in or near "the fighting zone".

Art. 7. As soon as possible after their capture, prisoners of war shall be evacuated to depots sufficiently removed from the fighting zone for them to be out of danger.

Only prisoners who, by reason of their wounds or maladies, would run greater risks by being evacuated than by remaining may be kept temporarily in a dangerous zone.

Prisoners shall not be unnecessarily exposed to danger while awaiting evacuation from a fighting zone.

https://ihl-databases.icrc.org/en/ihl-treaties/gc-pow-1929/article-7?activeTab=undefined

[Kazinski]

"But I’m more troubled by how easy it is for the President to declare someone an (unlawful) enemy combatant, Ex parte Quirin-style, and magic away their rights. In 1942 there was no war in North America, and eight weirdo Germans turning up in uniforms doesn’t change that. So they should have been arrested and prosecuted under civilian law."

There was a state of war by the 2 countries declared by Congress. There is no front by front doctrine in war, wherever you encounter the enemy, except in neutral countries whose neutrality is being respected, they are enemy combatants subject to the laws of war, not civil law.

[Sarcastr0]

Way to outflank Scalia in how hard to the paint you go for a formalist inter arma enim silent leges.

[Brett Bellmore]

I think it comes down to an end/means distinction. Nixon's means might have been governmental, but his ends were clearly private.

Much like when Clinton had Betty Currie destroying evidence for him in a private lawsuit.

[Sam Bankman-Fried]

Or Bush destroying evidence in the US Attorney scandal.

[Kazinski]

I don't see how Nixon set a precedent one way or another because the question was never resolved.

Certainly Nixon's (a former prosecutor) position was clear "It's not a crime if the President does it."

[Sam Bankman-Fried]

And Nixon would have definitely been impeached and removed…and apparently prosecuted which is why a pardon was necessary.

[SRG2]

"Official" does not mean "legal". Proceed from there.

[Kazinski]

Well when the question of immunity came a up a couple of months, before cert was granted, ago I said:

"They don’t likely want Presidents to have unfettered immunity, and they certainly don’t want them dragged into court all the time either."

I think the oral arguments reflect that. Maybe they shouldn't consider the practical effects of their decisions, but they do. And the one thing that does separate the President from other potential lawbreakers is the separation of powers doctrine.

Maybe it just comes down to mens rea, which is an essential element of almost any crime: if there is any reasonable case that the President is attempting to "faithfully execute the laws" then the courts should assume that was his motivation and the conduct was not criminal as a matter of law.

I think that's what they are going to end up doing is coming up with some fettered immunity rule based on official acts, or at least kick it back to the appellate level to more fully develop the issue.

[Vandalia]

There is a general principle that statutes in derogation of the common law must be interpreted strictly. In the same way, immunity must be interpreted narrowly.

The question is not where there is a clear statement that a criminal statute applies to the President; rather the opposite is true: There must be a clear statement that the statute does NOT apply to the President.

[Bruce Hayden]

And, yet, unelected bureaucrats, doing the bidding of a political rival, are using novel legal theories to interfere in the upcoming election by prosecuting him for conduct while he was sitting in the Oval Office in the WH.

This danger was repeatedly alluded to by the Republican Justices. They know what is going on. Smith’s attorney tried to convince them that a former President would be protected from vexatious litigation by the professionalism of the DOJ and prosecutors, and the grand jury system. They didn’t seem to buy it. Esp since they had heard oral arguments the previous week in Fischer v US, over the DOJ’s novel interpretation of 18 U.S. Code § 1512(c) being used against Trump in their DC case against him.