Edited Version of Trump v. United States

Download the edited version from the 2024 Barnett/Blackman supplement.

I've now finished reading and editing the Court's 119 page decision in Trump v. United States. Even though the Court is deciding fewer and fewer cases, I feel like I am reading more and more, but learning less and less. This one was a tough slog.

I distilled the case down to about 33 pages for the 2024 Barnett/Blackman supplement. You can download it here. I imagine this case will appear in the next edition of the casebook, replacing Clinton v. Jones and Trump v. Vance. More likely than not, we will just include Chief Justice Roberts's majority and parts of Justice Sotomayor's dissent. Justice Thomas's concurrence has important implications for the Appointments Clause (which I will write about later), but it doesn't have much bearing on the presidential immunity issue. Were Justice Barrett the fifth vote, her concurrence would be quite significant, but as the sixth vote, it probably will not have much lasting impact. ConLaw students will probably not have much interest in the evidentiary issue that she thought important. Sometimes, less is more. I thought Justice Jackson's dissent had some insights into the framework behind punishment, though it was largely duplicative of what Justice Sotomayor wrote.

I feel like a bit of a slacker. The term is over, and I still haven't finished reading Jarksey (98 pages), Grants Pass (74 pages), NetChoice (96 pages), and Corner Post (70 pages). That totals more than 300 pages. I wrote several posts on Chief Justice Roberts's majority opinion in Loper Bright, but I haven't had time to write about the concurrences and dissents. Those will come soon.

Stay tuned.

Comments

[Riva]

It is bad enough that the legal community, as a whole, was contemptuously dismissive of the merits of the immunity argument but what is more disturbing is the political rat's nest that the DC federal courts have become. The circuit court panel rushed this matter through and rendered a grossly wrong decision, apparently motivated by political animus against President Trump. How about taking a few moments to contemplate that?

[SimonP]

It's just all a team sport for MAGA, isn't it? You don't give a shit about our constitutional order, at all, do you?

The consensus that the "president is not above the law" was well-supported, and nominally is still the case. The legal community had every reason, prior to the way the Court started fucking with this case on its docket, to expect that the Supreme Court would reject Trump's broad claims to immunity.

Some may have conceded that it doesn't make much sense to expose the President to criminal liability for executing the laws in a manner reasonably within his discretion and authority. But the Court has constructed a very broad grant of potential immunity around that core principle. And their decision all but ensures that we will never resolve the question, over whether Trump violated the law in trying to overthrow the 2020 election, unless he clearly loses the election in 2024.

The triumphalism is just so... distasteful. The only reason you fuckwits view this as a victory is that you don't fear that Biden or any other Democrat will test the bounds of the Court's new grant of immunity, and you're eager to see Trump do so.

I am not quite as nihilistic as many in the media currently are, about this decision - I do not believe that Roberts, Barrett, or Kavanaugh are eager to let Trump off the hook for everything, and their decision likely just reflected a received "wisdom" - founded in a myopic, conventional ignorance - about not prosecuting former presidents. But even so, I am troubled that they would err on the side of granting too much immunity, rather than too little. The president is not a king. Our republic is not improved by granting the office more power to ignore the law.

[Riva]

And the obnoxiousness continues. Still insulting, still unable to even concede that, just maybe, the better constitutional arguments, and precedent, historical and legal, strongly supported immunity. Or even to concede that there are legitimate arguments. The “no one is above the law refrain” is a patently absurd rebuttal to the separation of powers issues present here. And that the circuit court rushed this matter through is undeniable. Why? Got to have that trial asap. Yeah, no political considerations there.

[SimonP]

You're being obnoxious and insulting. You can't tone-police me for being as rough with you as you are with "the legal community."

And I'll accept some critiques over trying to resolve Trump's several criminal trials prior to the election as "politically motivated" if you'll similarly accept some critiques that the Supreme Court's many unusual maneuvers to decide some substantive questions extraordinarily quickly, take up procedural motions before lower courts hear cases on the merits, or manage its docket to minimize blowback in the election, are also "politically motivated." Never mind all the nonsense happening in Cannon's court.

The Supreme Court has its thumb on the scale in favor of Trump, this campaign season. A few judges trying to get to trial on charges that should already be at trial are a blip on the radar, when it comes to judicial interference in the campaign.

[Riva]

Nope I won’t concede what is contrary to the facts. The Supreme Court did not rush this. Smith wanted to rush it. The DC circuit court wanted to rush it. This whole lawfare mess was completely unnecessary, forced by the democrats and their absurd crusade against President Trump, and now that you’ve lost this round, you still can’t honestly concede your own errors.

[Brett Bellmore]

Delay then rush, actually; Most of this stuff could have been litigated a year or two earlier, they dragged their heels to have it in the courts during the campaign season.

[JFree]

I suspect it wouldn't have been litigated - until Trump got in the race for 2024. At that point - the second impeachment which was squashed but which would have eliminated him from office had it been a 2/3 rather a majority required a different way for D's to eliminate him from office.

[SimonP]

Again, this is just a team sport for you. I didn't "lose this round." It's not a fucking boxing match, you moron.

[Riva]

It’s you democrat hacks who have perverted the legal system into a sick political game. “Lawfare” is not the fair and objective adminstration of the law. Now you’re throwing a tantrum because you’re losing. Not losing because of the correct Supreme Court application of the constitution. Losing because part of your lawfare has been derailed. F’ing clowns.

[Bored Lawyer]

"to expect that the Supreme Court would reject Trump’s broad claims to immunity."

Which, in fact, they did. Which you would know if you bothered to read the opinion. Instead of just, "this helps Trump, so it's bad."

[SimonP]

I didn't say that the Court accepted Trump's broadest claims, did I?

Hard to take advice about reading opinions from someone who can't read an internet comment.

[Thrax]

“grossly wrong”

Or, alternatively, correct, and the Supreme Court got it wrong. So no on sneering at the DC federal courts.

Or if you're gonna sneer, you'll also need to do some sneering at the Fifth Circuit, which got slapped down by the Supreme Court plenty this term.

[Riva]

You mean the Circuit Court that reasoned that President Trump could be prosecuted because he was being prosecuted? Yeah, who could sneer at that reasoning? Apart from the Supreme Court apparently.

[TheAmazingEmu]

Is this literally the only post on a generally libertarian blog? It's one of the most pro-authoritarian rulings the Supreme Court has ever issued, so I'm surprised there aren't comments on the merits.

[SimonP]

Ilya may get around to saying something about it. Unlike Josh, he tends to take his time to digest things and offer something thoughtful about new developments. Same goes for Will.

Eugene has been curating his posts for some time now, so as to avoid saying anything that could be construed as anti-MAGA. You can see the work he's doing to salvage his theory on how Texas and Florida can still regulate social media. He may never say anything about Trump's immunity, out of fear that he might prevent himself from receiving a coveted appointment or administration post.

As for the others - it's not really within David's bailiwick (i.e., shitposting about Israel and race). Jonathan has a lot to digest with the admin law opinions. And I suppose the less Steve-O says about it, the better for us - I am not looking forward to another racist-uncle rant on the topic.

[Estragon]

Eugene and drunk uncle Steve have very obviously been padding their Project 2025 resume bona fides. Josh, on the other hand, was always this way.

It’s a puzzling mindset for an academic, but I guess they feel they see which way the wind is blowing. I would caution Eugene in particular that these kinds of movements have a way of eating their own after a time.

[Malika the Maiz]

Libertarianism is like state's rights, almost no one really believes it.

[M L]

It depends how you look at it.

From one perspective, immunity for official presidential actions would seem to put the president above the law and treat them unequally. This might seem authoritarian.

From another perspective, giving unelected bureaucrats the power to arrest the president for farting in the wrong direction, or something more serious even, makes an unelected bureaucrat more powerful than the president. That might also seem pretty authoritarian.

Maybe it depends in part on if you think the law, and certain federal statutory criminal law in particular, is pretty cut and dried, black and white, straightforward, and evenly applied . . . or if it’s more like silly putty or a Rorschach blot that can be read to criminalize everyday conduct, or anything that’s done with a “corrupt” or “bad” mindset when the same conduct would be fine when you like the guy.

[A Guy]

This was the weirdest part of Thomas concurrence. He's starts by saying, of course the President should be above the law. Then he follows by saying, the President can't appoint a special counsel because it breaks the law.

Either he's above the law or he's not. It feels like he's only not above the law when the courts don't like how he uses his power, but if he uses it how they like, he is above the law.

Here Trump is above the law, but Joe Biden has to follow the law. Someone really needs to explain this to me.

[WuzYoungOnceToo]

He’s starts by saying, of course the President should be above the law.

No, he didn't. That's just your kindergarten-level misinterpretation of it.

[A Guy]

So what law is he beholden to?

[M L]

It is true that the government, while not necessarily "above the law," is a special case. You are not allowed to kill people via drone strike. The government is (or, at least, our government currently claims they are legitimately allowed to do this in certain cases even without Congress declaring a war). You are not allowed to take money from people at gunpoint to fund your salaries and operations. The government is (taxes).

So the government is not above the law, but it is subject to different laws, and is not always subject to all of the same laws in the same way as ordinary citizens. The government is subject, principally, to the Constitution, which places limits on their power to do things like kill people and take their money and property. You as an ordinary citizen on the other hand, are not governed by the Constitution. The Constitution governs the government, while you are governed by the laws passed by that government in proper accordance with the Constitution. The fact that you are not subject to some laws that govern the government doesn't mean you are "above the law."

Now when we talk about "the government" of course that just means the people who are in government at a given time. There isn't a robot AI government yet. All acts of the government are acts of people comprising the government. And as far as government acts by a single individual, there is no more expansive category of that than presidential actions.

[Stephen Lathrop]

M L — Imagine yourself in political office, contemplating a newly-minted decree of executive power expansive enough to immunize an order that you be administratively disappeared permanently. Would you consider it wise to be trying to find some way to justify that as benign and beneficial?

[Butler T. Reynolds]

Hot takes are almost always trash. A lesson people never seem to learn.

[JoeFromtheBronx]

Thomas' concurrence alone would seem to be of interest to one or more of the conspirators.

[NvEric]

So much gaslighting going on by the natural fearmongering liberal / leftist actors. They induced Trump to challenge the challenge of his actions solely to induce the Court to make such a ruling solely to protect Obama and future evildoers, akin to that half-white guy's ilk.

It's extremely obvious that by going after Trump, a fighter, who became their tool, along with the current Court, for a furtherance of the exalted "Office of the Imperial" presidency.

Exploiting loopholes has been going on in an accelerated rate this century - Bush and Obama - the duo destroyers of the Republic. And, now their asses are covered, future exploiters will assume command and the throne. Parallels in history fail matching this period we're in. That it took so long is testament to our system, a failing one, but still capable of being corrected, as is any political system by the way.

There will not be a "savior" for our current situation as it needs no one person to be saved. Just what can alter the steady course of the Imperial drive is contained within that same drive, for the tools are worked where they can be used.

[bernard11]

Now Trump wants a military tribunal for Cheney. Plus
the jailing of top elected officials, including President Joe Biden and Vice President Kamala Harris.

A separate post Trump amplified on Truth Social Sunday includes photos of 15 former and current elected officials and says, “THEY SHOULD BE GOING TO JAIL ON MONDAY NOT STEVE BANNON!”

In addition to Biden and Harris, the post includes photos of Senate Majority Leader Chuck Schumer, Senate Minority Leader Mitch McConnell, former House Speaker Nancy Pelosi, former Vice President Mike Pence and members of the House select committee that investigated the January 6, 2021 attack on the US Capitol.

There's your guy, Josh, and others. The one you want so desperately to serve. Trump supporters are a disgrace.

[WuzYoungOnceToo]

And you're a moron. Oh well.

[bernard11]

That's as helpful as your typical comment.

I guess you approve of all that.

[Riva]

Yeah that's smart. Let's compare the Trump administration during which none of his political opponents were tried or jailed to the Biden disgrace. Could you be more of a clown? Maybe if you added a little Seal Team Six to your nonsense.

[Stephen Lathrop]

Pretty hard to accept professions of benign intent for a decision which literally just immunized Pinochet-style disappearances for Trump’s political opponents. Or Biden’s political opponents, for that matter.

The MAGA fools trying to justify this decision ought to reflect that Biden could have gone to the podium yesterday to announce that the FBI had taken into custody the Supreme Court majority which voted for the decision, pending their indictments for insurrection, and removal from office upon conviction.

Give some thought to the fact that if Biden resigns and turns over the presidency to Harris, she will immediately have impunity to use summary judicial process, or military judicial process, against any MAGA opponents who trouble her.

Of course, Harris would be subject to impeachment and removal from office herself, if the Rs could get a D-majority Senate to go along with it. But House members who want to act as impeachment managers would have to think long and hard before taking on that task, especially if they have been on record supporting the J6 Capitol rioters. Harris might be goaded into bold action against folks of that sort—the kind of bold, decisive action cited in support of this decision, actually.