The Consequences and Craft of Trump v. United States

in the latest episode of Divided Argument

In the latest episode of our podcast, Divided Argument, Dan Epps and I discuss at length the Court's immunity ruling in Trump v. United States. We end up substantially less divided on this one, with both of us generally agreeing that the consequences of the opinion are quite uncertain and not necessarily bad, but the legal basis and craft of the opinion is much worse -- and much more. You can listen to the whole episode, "Back on the Island," here:

In other recent episodes we have analyzed:

SEC v. Jarkesy and Grants Pass v. Johnson in "Hope Springs Eternal." (Here's my earlier post on Jarkesy, generally sympatico with what the majority ended up doing.)

United States v. Rahimi and Erlinger v. United States in "Felony-Adjacent." (Here's my earlier post on Rahimi, generally sympatico with what the majority ended up doing.)

Garland v. Cargill, FDA v. Alliance for Hippocratic Medicine, and John Q Hammons v. US Trustee in "Small Victories."

I'll have another piece on the whole term, and the Trump cases specifically, out tomorrow.

Comments

[ReaderY]

It’s just wierd. We have people who claim to be originalists, and are when it suits them. But when it doesn’t suit them, they just pull shit out of their asses and base their opinions on that. The legal scatologist would have to acknowledge that it’s a different flavor of shit – they wax eloquent and fling purple prose about things like their theories about the structure of government rather than about liberty and such as the liberals tend to do – but it’s still made-up shit.

These are Bayesian originalsts. They look to priors when it gives them the answers they want. But when it doesn’t, they are perfectly happy looking to their posteriors.

[Riva]

How is a ruling that is consistent with the constitution, precedent, and practice since the inception of this republic somehow new and reckless? The issue may be new, because the political prosecutions occurring now are unprecedented in our history, but the principles are not.

[SRG2]

First, "consistent with" does not mean "to be found in".

Second, it isn't.

[Riva]

Got a new concept for you: separation of powers. Not new to the law, because it's been around since we had a constitution, just new to ignorant leftists who want to irresponsibily demagogue the issues.

[SRG2]

1. Separation of powers as a term is not to be found in the Constitution. I am familiar with the term since being taught in HS that Montesquieu misunderstood the English system.

2. The Constitution does provide for immunity for legislators under specific conditions, hence failing to provide for immunity under other circumstances is not an oversight. The "separation of powers" argument is motivated reasoning.

3. There is no separation of powers issue inasmuch as the decision to indict and prosecute comes from the Executive branch. How does the Executive prosecuting an ex-Executive affect the legislative branch? Answer: it doesn't. I note that impeachment cuts against a separation of powers principle, so clearly it's not inviolate.

just new to ignorant leftists who want to irresponsibily demagogue the issues.

Sheesh you're a fuckwit. I:m not a leftist, but you'll find plenty who know the term.

[Riva]

The separation of powers is inherent in the structure of the constitution and has been a defining aspect of constitutional interpretation since, well there’s been a constitution to interpret. And it’s the criminal process that is intruding on the prerogatives of the executive branch you witless fool. That you are so consummately ignorant yet continue to post is a testament to your stupidity, but you have a lot of company among commenters here.

[ReaderY]

If something happens for the first time, ANY outcome is consistent with (will not contradict) what happened before. But because this consistency is trivial, it is hardly a very strong argument that this outcome is better than some other.

I think the biggest textual problem is that the text gives a list of impeachable offenses including bribery, says that a President who is impeached can still be indicted and criminally tried. But according to the majority opinion, a President is absolutely immune for decisions that are solely the President’s to make. This suggests a President who accepts a bribe for e.g. making a pardon would be immune from prosecution, because motives for making the pardon cannot be considered. But that would flatly contradict the text that explicitly says bribery is indictable.

[Riva]

Assuming such acts were official, and that’s a big if because bribery would not seem to be within the conclusive and preclusive constitutional authoriry of the president and would not otherwise appear to be presumptively immune, then an impeached and convicted president could absolutely be criminally prosecuted. Nothing in the ruling precludes this.

[SRG2]

because bribery would not seem to be within the conclusive and preclusive constitutional authoriry of the president

Not addressing ReaderY's point. Because the bribery was in service to a core presidential function it's the latter than renders the president immune. And according to the Trump decision, evidence of bribery therefore can't be used.

[Riva]

Not sure why this bothers you so much. Even if you’re right, such a president would be subject to impeachment, and if Congress chose not to, well that’s our constitutional system. As I’ve said before amend it, move, or just suck it up and accept it.

[David Nieporent]

Not sure why this bothers you so much.

Because we're not fans of the most corrupt, sociopathic former president in history the way you are, and we think he should be punished for his crimes.

[Riva]

It appears you’re not really fans of the Constitution.

[Purple Martin]

…and because we’d like to retain some realistic capability to rein in future corrupt sociopathic presidents…of either party—a goal you only half-share.

[Riva]

Hey, no argument here, I’m all for reining in the corrupt reptile presently disgracing the WH.

[Purple Martin]

Yes, we all know that's the half you support. As you've made abundantly clear, you want to give free rein to your corrupt reptile, advocating for his return because he hates all the same people you hate, and provides the permission structure for you to make that hate, free and envy you once fest you had to hide, obvious to all.

[David Nieporent]

That's easy: it's not consistent with any part of the constitution in any way. Nothing about "separation of powers," even if that were in the constitution, even hints at immunity. It's inconsistent with text, structure, and history.

[Riva]

It’s inherent in the structure of the Constitution and, as noted, has been central to constitutional interpretation since we had a constitution to interpret. Not sure who you think you’re influencing with this silly BS but you’re just beclowning yourself. Of course, you could just be an ignorant demagogue who really knows nothing about constitutional jurisprudence. But this would only make you more of a clown.

[Purple Martin]

Just as an observation, why do you keep pretending the issue of concern is the general concept of separation of powers, not the specific concept this SCOTUS decision, for the first time in our nation's history, put in play: presumptive and absolute presidential immunity for all acts that have even a hint of a nexus to some exercise of presidential power?

[Riva]

Just an observation. The ruling contains more than a hint. The opinion reviews quite carefully core presidential powers under Art. II and discusses official conduct that would be presumptively immune. Maybe read it yourself instead of relying on some warped left wing filter?

[Purple Martin]

I read it closely. In best light, Monday’s ruling makes explicit what earlier rulings like Fitzgerald had assumed only implicitly: a non-challengeable immunity of decision-making around a president’s use of core powers in the achievement of national goals. Such absolute immunity for exercise of core presidential powers isn’t new in concept, but the court’s decision, for the first time, made that explicit.

So, the earlier implicit non-challengeable part of that could be described as a presumption of immunity around core powers. The extension of that presumptive immunity beyond core powers—to mere use of acknowledged presidential powers and authority, nominally challengeable but de jure not investigable—is what SCOTUS has, for the first time in our nation’s history, created.

If you want to bring in separation of powers, the SCOTUS ruling only damages it. It drains Article 1 powers into Article 2, and Article 2 powers into Article 3. And it (non-coincidently) gives the Judicial branch the sole power to determine the boundaries of the Executive branch’s newly enhanced powers. Under this new governmental structure, separation of powers provides only unbalanced checks (checks & balances no longer) and blocks ambition-offsetting-ambition.

The end result is treating the President as a King, by divine-right-of SCOTUS. But given that, it’s a crown whose powers remain subservient to the decisions of a majority of the 9-member counsel of black-robed regents.

Hyperbole? Perhaps, but I think that’s better than your habit of constantly obscuring the issues with the smoke from whole fields of blazing straw.

[Riva]

Not hyperbole. Could be mental illness. Coupled with a heaping dose of ignorance and the anger stage of grief that your lawfare is all but over.

This ruling does not give "the Judicial branch the sole power to determine the boundaries of the Executive branch’s newly enhanced powers.” Not sure what moronic AI you’re using, but apparently it never heard of Marbury v Madison. And this ruling is really nothing new. It applies established constitutional principles to a case originating from the unprecedented abusive lawfare used by the Biden DOJ to target the corrupt reptile’s political opponents.

[Alpheus W Drinkwater]

Your recent podcasts on SCOTUS decisions have been excellent! Looking forward to more.

[Area Man]

Divided Argument is the best of the several legal podcasts I listen to. I only wish it came on more often and discussed a wider array of legal topics outside SCOTUS.

Advisory Opinions used to be my go-to, but I can’t handle them anymore. They get the law wrong constantly. Sarah Isgur is…not an intellectual, to put it kindly. And David French just outright lies about things. Their one saving grace was that they discussed a wide range of legal and political issues. But I just couldn’t anymore.

Anyway, sorry about that tangent. Going back to my main point, Divided Argument is top-notch and appreciated.

[Vryedni]

What does French lie about?