Election 2024: Day -125

Yesterday SCOTUS released its opinions in Trump v. U.S., the presidential immunity case. Here is how the Court’s website succinctly describes its holding, in a 6-3 decision falling squarely along party lines:

The nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority; he is also entitled to at least presumptive immunity from prosecution for all his official acts; there is no immunity for unofficial acts.

A rather startling outcome, and one that produced the relatively rare wording “I dissent”, rather than the usual “I respectfully dissent”, from the liberals. Sotomayor went further with her rhetoric, ending her opinion with the following sentence: “With fear for our democracy, I dissent.”

The paradigm advanced by Chief Justice Roberts’ opinion, per this layman’s reading, is as follows. If the government seeks to prosecute an ex-President for actions taken in office, then there first needs to be an analysis performed of how those actions fall into three different buckets: official acts having absolute immunity (for which no prosecution is possible), unofficial acts (for which there is no impediment to prosecution), and official acts having presumptive immunity. In order to pursue a prosecution with respect to an act falling within that latter category, the government bears the “burden to rebut the presumption of immunity” by “show[ing] that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch'” (the quotations are from Roberts’ opinion; the internal quotation is from the Court’s 1982 opinion in Fitzgerald v. Nixon, the previous case law on presidential immunity in a civil rather than criminal context). Moreover, “[q]uestions about whether the President may be held liable for particular actions, consistent with the separation of powers, must be addressed at the outset of a proceeding,” which I believe means that if a trial court were to rule that a prosecution could move forward, that decision would be subject to interlocutory appeal before the trial could proceed.

With this decision, the U.S. v. Trump Jan 6th case will soon be returned to Judge Chutkan; but even in a world where Trump does not win re-election and order the prosecution’s end, a trial in that case now seems years away. What seems likely to happen later this summer is some form of evidentiary hearing, under which the tripartite analysis described above is performed. However, whatever ruling Chutkan makes would likely be appealed to the D.C. Circuit, and ultimately SCOTUS, before a trial could be conducted. And some of the conduct described in the original indictment, such as Trump’s efforts to install Jeffrey Clark as Acting Attorney General, are not only the type of official acts that are non-prosecutable but also, per Roberts’ opinion, cannot be introduced as evidence in a prosecution of other acts. Other conduct, such as Trump’s conversations with Vice President Pence about Pence’s role in counting electoral votes, lies in the gray area and may eventually come back to SCOTUS for final resolution, but in the normal course of events (i.e., after briefing, determination by a trial court, and appellate review).

This decision will surely have implications for the U.S. v. Trump documents case under Judge Cannon, although that case has already been moving at a glacial pace. Cannon will likely be very interested in Justice Thomas’ solo concurrence in Trump v. U.S., in which Thomas urges lower courts to seriously engage with the argument that Special Counsel Smith lacks the legal authority to prosecute anyone. As such, one can easily imagine that issue making its way to SCOTUS in the normal course of events, before either U.S. v. Trump case can go to trial.

And although we’ve already had our verdict in New York v. Trump, this SCOTUS decision will seemingly have an impact on that case as well. Yesterday Trump’s attorneys filed a motion to have the verdict set aside. Today Judge Merchan set deadline for both sides’ briefings on that motion and set a date of September 6th for his ruling; in conjunction with that, he delayed sentencing from July 11th to September 18th (if necessary). My intuition is that ultimately the SCOTUS ruling will not have any impact on the New York conviction, but we shall see.

Looking beyond the impact of Trump v. U.S. on Trump’s current legal woes, the Court’s decision has significant implications as to what mechanisms exist to mitigate Presidential behavior. To the extent certain actions lie within the exclusive domain of the executive branch, under Trump v. U.S. the President is immune from future prosecutions for those actions, and as such impeachment becomes the only punitive mechanism available. Roberts’ logic as to this being how our constitutional system was intended to operate is, if not unassailable, at least very compelling. The problem in practice is that the founders did not anticipate the extent to which Congress and the President would become politically co-dependent, making a successful impeachment extremely difficult if not impossible. With yesterday’s decision, it becomes even more vital to keep would-be bad actors out of the White House in the first instance, which is really what the election of 2024 is about.

In other news, we have a headline from Politico today that reads “Democrats begin attacking Biden’s performance and campaign,” with at least one sitting Democratic congressman (Doggett, a 77-year-old from the Texas 37th, a safe blue seat in Austin) openly calling for Biden to drop out. Tim Ryan, a former Democratic congressman who made an early exit from the 2020 presidential primary (endorsing Biden) and then lost the Ohio Senate election to J.D. Vance in 2022, published an op-ed in Newsweek calling for Harris to be the nominee.

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