When Michael Dreeben Accepted John Sauer’s Invitation to Talk about Speech and Debate

Trump’s appeal of Judge Tanya Chutkan’s immunity opinion is interesting for the personnel involved. The briefs repeat the very same arguments — and in some instances, include the same passages almost verbatim — made less than three months ago. But first Trump brought in John Sauer to argue his appellate cases, then in the last few weeks, former Deputy Solicitor General Michael Dreeben quietly joined the Special Counsel team (importantly, the Solicitor General appointed by Joe Biden has no role in this appeal).

That makes any changes in the arguments of particular interest, because accomplished appellate lawyers saw fit to add them.

Admittedly, two things happened in the interim to change the landscape significantly. In Blassingame, issued hours before Chutkan released her order, DC Circuit Chief Judge Sri Srinivasan laid out how a President running for reelection does not act in his official duty. In Meadows, 11th Circuit Chief Judge William Pryor adopted that analysis in the criminal context with regards to Mark Meadows in the Georgia case.

That provided both sides the opportunity to address what I had argued, on October 21, was a real weakness in Jack Smith’s first response: the relative silence on the extent to which Trump’s actions were not part of his official duties.

In total, DOJ’s more specific arguments take up just six pages of the response. I fear it does not do as much as it could do in distinguishing between the role of President and political candidate, something that will come before SCOTUS — and could get there first — in the civil suits against Trump.

Citing both Blassingame and Meadows, Smith and Dreeben invited the DC Circuit to rule narrowly if it chose, finding that the crimes alleged in the indictment all pertain to Trump’s role as candidate.

The Court need not address those issues here, however. The indictment alleges a conspiracy to overturn the presidential election results, JA.26, through targeting state officials, id. at 32-44; creating fraudulent slates of electors in seven states, id. at 44-50; leveraging the Department of Justice in the effort to target state officials through deceit and to substitute the fraudulent elector slates supporting his personal candidacy for the legitimate ones, id. at 50-54; attempting to enlist the Vice President to fraudulently alter the election results during the certification proceeding on January 6, 2021, and directing supporters to the Capitol to obstruct the proceeding, id. at 55-62; and exploiting the violence and chaos that transpired at the United States Capitol on January 6, 2021, id. at 62-65. The indictment thus alleges conspiracies to advance the defendant’s prospects as a candidate for elective office in concert with private persons as well as government officials, cf. Blassingame, 87 F.4th at 4 (the President’s conduct falls beyond the outer perimeter of his official duties if it can only be understood as having been undertaken in his capacity as a candidate for re-election), and the defendant offers no plausible argument that the federal government function and official proceeding that he is charged with obstructing establish a role—much less an exclusive and conclusive role—for the President, see Georgia v. Meadows, No. 23-12958, 2023 WL 8714992, at *11 (11th Cir. Dec. 18, 2023); United States v. Rhodes, 610 F. Supp. 3d 29, 41 (D.D.C. 2022) (Congress and the Vice President in his role as President of the Senate carry out the “laws governing the transfer of power”) (internal quotation marks omitted).

The short term goal here is to convince Judge Karen Henderson, the Poppy Bush appointee on this panel whose judicial views have grown as radical as any Trump appointee’s, to reject Trump’s claims. Ultimately, Jack Smith is arguing against Presidential immunity even for official acts, but a ruling limited to acts taken as a candidate might provide a way to get Judge Henderson to join the two Biden appointees on the panel, Florence Pan and Michelle Childs, in rejecting Trump’s immunity claims.

In both his briefs, Trump had — ridiculously! — argued that Nixon’s Watergate actions were private acts yet Trump’s January 6 actions were part of his official duties. Smith swatted that claim away in a passage noting that Nixon’s acceptance of a pardon served as precedent for the notion that a President could be tried for actions done as President.

That President Nixon was named as an unindicted coconspirator in a plot to defraud the United States and obstruct justice, Nixon, 418 U.S. at 687, entirely refutes the defendant’s efforts (Br.27-28, 41) to distinguish that case as involving private conduct. See United States v. Haldeman, 559 F.2d 31, 121-22 (D.C. Cir. 1976) (en banc) (per curiam) (explaining that the offense conduct included efforts “to get the CIA to interfere with the Watergate investigation being conducted by the FBI” and “to obtain information concerning the investigation from the FBI and the Department of Justice”) (internal quotation marks omitted). And President Nixon’s acceptance of the pardon represents a “confession of guilt.” Burdick v. United States, 236 U.S. 79, 90-91 (1915).

Again, once the categorization adopted by Srinivasan is available, it makes the comparison with Nixon far more damning.

One of the most interesting additions to the earlier arguments, however, is that Sauer added a second kind of immunity to Trump’s earlier discussion that the principles of judicial immunity carry over to Presidential immunity: Speech and Debate. In two cursory paragraphs, Sauer claimed that, like members of Congress, Trump should enjoy both civil and criminal immunity for their official, “legislative” acts.

Legislative immunity. Legislative immunity encompasses the “privilege … to be free from arrest or civil process” for legislative acts, i.e., criminal and civil proceedings alike. Tenney, 341 U.S. at 372. Such immunity enables officials “to execute the functions of their office without fear of prosecutions, civil or criminal.” Id. at 373–74 (quoting Coffin v. Coffin, 4 Mass. 1, 27 (Mass. 1808)).

Thus, legislative immunity “prevent[s]” legislative acts “from being made the basis of a criminal charge against a member of Congress.” Johnson, 383 U.S. at 180. A legislative act “may not be made the basis for a civil or criminal judgment against a Member [of Congress] because that conduct is within the sphere of legitimate legislative activity.” Gravel v. United States, 408 U.S. 606, 624 (1972) (emphasis added). Speech and Debate immunity “protects Members against prosecutions that directly impinge upon or threaten the legislative process.” Id. at 616.

Did I say two developments have changed the landscape of this discussion? I’m sorry, I should have added a third: In response to the September DC Circuit remand of Scott Perry’s appeal of Judge Beryl Howell’s decision that Jack Smith could have some stuff from his phone — in a panel including Henderson — on December 19, Howell’s successor at Chief Judge, James Boasberg reviewed the contested files anew and ruled that Smith could have most of them, including communications pertaining to “efforts to work with or influence members of the Executive Branch.”

Subcategories (c), (d), (e), and (f) comprise communications about non-legislative efforts to work with or influence members of the Executive Branch. Even if such activities are “in a day’s work for a Member of Congress,” the Speech or Debate Clause “does not protect acts that are not legislative in nature.”

Kyle Cheney (who snagged an accidentally posted filing before it was withdrawn) described what many of those communications would include, including Perry’s advance knowledge of Trump’s efforts to install Jeffrey Clark as Attorney General.

Boasberg’s order required Perry to turn over those communications by December 27; if he appealed that decision, I’m not aware of it. So as you read this Speech and Debate section, consider the likelihood that Jack Smith finally obtained records from a member of Congress DOJ has been seeking for 17 months, since before Smith was appointed.

The DC Circuit opinion in Perry is not mentioned in any of these briefs. But the developments provide an interesting backdrop for Dreeben’s much longer response to Sauer’s half-hearted Speech and Debate bid. Much of it is an originalist argument, noting that whereas Speech and Debate was explicitly included in the Constitution, immunity for Presidents was not, not even in a landscape where Delaware and Virginia had afforded their Executive such immunity.

Along the way, Dreeben includes two citations that weren’t in Jack Smith’s original submission: One from Clarence Thomas making just that originalist argument about Presidential immunity: “the Constitution explicitly addresses the privileges of some federal officials, but it does not afford the President absolute immunity.” And one from Karen Henderson, the key vote in this panel, noting that, contra Sauer’s expansive immunity claim, “it is well settled that a Member is subject to criminal prosecution and process.”

Unlike the explicit textual immunity granted to legislators under the Speech or Debate Clause, U.S. Const. art. I, § 6, cl. 1, which provides that “for any Speech or Debate in either House,” members of Congress “shall not be questioned in any other Place,” the Constitution does not expressly provide such protection for the President or any executive branch officials. See Vance, 140 S. Ct. at 2434 (Thomas, J., dissenting) (“The text of the Constitution explicitly addresses the privileges of some federal officials, but it does not afford the President absolute immunity.”); JA.604-06. By contrast, state constitutions at the time of the founding in Virginia and Delaware did grant express criminal immunity to the state’s chief executive officer. JA.605 (citing Saikrishna Bangalore Prakash, Prosecuting and Punishing Our Presidents, 100 Tex. L. Rev. 55, 69 (2021)). To be sure, the federal Constitution’s “silence . . . on this score is not dispositive,” Nixon, 418 U.S. at 705 n.16, but that silence is telling when placed against the Constitution’s Impeachment Judgment Clause, which presupposes and expressly preserves the availability of criminal prosecution following impeachment and conviction. See U.S. Const. art. I, § 3, cl. 7.

[snip]

The defendant suggests (Br.16-17, 18-19) that common-law principles of legislative immunity embodied in the Speech or Debate Clause, U.S. Const. art. I, § 6, cl. 1, inform the immunity analysis here, but that suggestion lacks support in constitutional text, history, or purpose. The Framers omitted any comparable text protecting executive officials, see Vance, 140 S. Ct. at 2434 (Thomas, J., dissenting), and no reason exists to look to the Speech or Debate Clause as a model for the defendant’s immunity claim.

In contrast to the defendant’s sweeping claim of immunity for all Presidential acts within the outer perimeter of his duties, the Speech or Debate Clause’s scope is specific: it is limited to conduct “within the ‘sphere of legitimate legislative activity.’” Gravel v. United States, 408 U.S. 606, 624 (1972). “Legislative acts are not all-encompassing,” and exclude a vast range of “acts in [a Member’s] official capacity,” such as outreaches to the Executive Branch. Id. Beyond that limitation, the Clause “does not purport to confer a general exemption . . . from liability . . . in criminal cases.” Id. at 626. Nor does it “privilege [Members or aides] to violate an otherwise valid criminal law in preparing for or implementing legislative acts.” Id. Courts have therefore recognized for more than 200 years that a Representative “not acting as a member of the house” is “not entitled to any privileges above his fellow-citizens” but instead “is placed on the same ground, on which his constituents stand.” Coffin v. Coffin, 4 Mass. 1, 28-29 (1808); see Rayburn House Off. Bldg., 497 F.3d at 670 (Henderson, J., concurring in the judgment) (observing that “it is well settled that a Member is subject to criminal prosecution and process”). The Speech or Debate Clause does not “make Members of Congress super-citizens, immune from criminal responsibility.” United States v. Brewster, 408 U.S. 501, 516 (1972). The defendant’s immunity claim, however, would do just that, absent prior impeachment and conviction.

The Speech or Debate Clause’s historical origins likewise reveal its inapplicability in the Presidential context. The Clause arose in response to successive British kings’ use of “the criminal and civil law to suppress and intimidate critical legislators.” United States v. Johnson, 383 U.S. 169, 178 (1966); see United States v. Gillock, 445 U.S. 360, 368-69 (1980) (noting that the English parliamentary privilege arose from “England’s experience with monarchs exerting pressure on members of Parliament” in order “to make them more responsive to their wishes”). In one instance, the King “imprison[ed] members of Commons on charges of seditious libel and conspiracy to detain the Speaker in the chair to prevent adjournment,” and the judiciary afforded no relief because “the judges were often lackeys of the Stuart monarchs.” Johnson, 383 U.S. at 181. That history has no parallel here: the defendant can point to no record of abuses of the criminal law against former Presidents, and the Article III judiciary provides a bulwark against any such abuses. [my emphasis]

Having been invited to discuss congressional immunity, Smith’s brief cites another comment from Henderson’s Rayburn concurrence elsewhere. “[T]he laws of this country allow no place or employment as a sanctuary for crime.”

see United States v. Rayburn House Off. Bldg., 497 F.3d 654, 672-73 (D.C. Cir. 2007) (Henderson, J., concurring in the judgment) (“[T]he laws of this country allow no place or employment as a sanctuary for crime.”) (citing Williamson v. United States, 207 U.S. 425, 439 (1908)). [my emphasis]

Tactically, all this is just an argument — an originalist argument — that even an immunity explicitly defined in the Constitution, Speech and Debate, does not — Judge Karen Henderson observed in 2007, when the question of immunity pertained to Black Democrat William Jefferson, in a case in which she sided with DOJ attorney Michael Dreeben — exempt anyone from criminal prosecution. Read her concurrence! She makes the same arguments about Tudor kings that Smith and Dreeben make!

But much of Jack Smith’s response, in my opinion, lays the ground work for other, future appeals. For example, this brief adopts a slight change in the way it describes the fake elector plot, emphasizing the centrality of Trump, “caus[ing his fake electors] to send false certificates to Congress,” a move that may be a preemptive response to any narrowing of 18 USC 1512(c)(2) that SCOTUS plans in the Fischer appeal of obstruction’s use for January 6.

Ultimately, Smith is still arguing for a broader ruling, rejecting Trump’s presidential immunity claims more generally. Ultimately, I imagine this adoption of language from Clinton v Jones is where Jack Smith would like to end up.

Given that, the Constitution cannot be understood simultaneously (and implicitly) to immunize a former President from criminal prosecution for official acts; rather, the Constitution envisions Presidential accountability in his political capacity through impeachment and in his personal capacity through prosecution. See Clinton, 520 U.S. at 696 (“[F]ar from being above the laws, [the President] is amenable to them in his private character as a citizen, and in his public character by impeachment.”) (quoting 2 J. Elliot, Debates on the Federal Constitution 480 (2d ed. 1863) (James Wilson)).

To get there without possibly fatal delays, though, Dreeben and Smith need to get Henderson to agree to at least a narrow rejection of Trump’s immunity claims.

And so, responding to Sauer’s invitation, Dreeben reminded Henderson of what she said about a case he argued 16 years ago.

But if I were Scott Perry, three days after he was ordered to turn over records about his plotting with Donald Trump to overturn the election, I’d be watching these arguments closely.

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107 replies
  1. Doug Kane says:

    Dreeben might be driving the train behind the scenes, but Pearce is who signed the brief, and Pearce is who is doing the oral argument, according to the Form 72 already filed.

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  2. Amicus12 says:

    MW just pretty much wrote up everything I was about to say about Smith’s brief.

    This brief compared to the district court briefing reads much more like the smooth confident voicing that comes out of the Solicitor’s office. And it’s written for multiple audiences and readers.

    As regards the narrow arguments and Judge Henderson, read sections I.C. and I.D. (pages 45 through 53) and ask yourself “what are we doing here?” If you have not read the brief, it may make for an interesting exercise to read these pages first. (There are many ways to read and reread briefs and portions thereof). Based on my prior comments, these are obviously my favorite parts of the brief.

    Having recently reread Rick Atkinson’s depiction of the Battle of the Bulge, I will share the following. Eisenhower called his battle commanders to a conference in Verdun three days after the German surprise attack. He began the meeting by stating “The present situation is to be regarded as one of opportunity for us and not for disaster.” “There will be only cheerful faces at this conference table.” The Guns at Last Light at 445. The same applies here.

  3. Hope Ratner says:

    I just have to say that reading all of your timely analyses brightens my outlook on the hoped-for outcome of all of Jack Smith’s pleadings. Thank you thank you thank you.

  4. Tim Tuttle says:

    Wow. That’s really impressive legal analysis.

    It’s likely that Trump will be denied immunity. For several reasons. Not the least of which is that if Trump receives it, then by default Biden gets it as well. Immunity will never be a singular issue. Presidents can go full rogue if protected from any repercussions. And they will.

    I can’t claim that I understand the entirety of what you laid out but I get enough to realize that the Scott Perry communications should be coming into focus in the not too distant future.

    Obviously Jack Smith and his team have seen and read them all. When the public finally gets the opportunity will we be shocked? Excited? Disgusted?

    Only a matter of time, I suppose.
     
     
    [Welcome back to emptywheel. Please use the same username, email address, AND URL each time you comment so that community members get to know you. Your URL has been problematic as you have not consistently entered it the same way each time into the URL field; this time you added www, other times you’ve omitted it, several times you’ve used camel case. I’m begging you to pick a uniform URL to enter into that field; it may otherwise cause your comments not to clear moderation. /~Rayne]

    • John B.*^ says:

      Scott Perry, man of mystery…so, could Section 3 of the 14th A apply to him and to other miscreants like say Jim J, or does speech and debate and “official duties’ clear them all of any future criminal prosecution?

      • emptywheel says:

        I’m frankly shocked no one has tried to DQ him yet.

        I think I read that he’s not a shoo-in for reelection anyway.

        • Wendy M says:

          Some good candidates in the Dem field, for once.

          And Scott Perry is sending flyers to voters in the 10th…. A novelty.

          But it’s a long road…

        • Ginevra diBenci says:

          They seem to be trying; just heard on MSNBC last night that voters in his district have invoked the Article 14, section 3 argument in a legal challenge to Perry’s appearing on the ballot. If it worked with Couy Griffiths, why not try it with the lethally smarmy Perry?

        • John B.*^ says:

          I wouldn’t think so, but we rarely if ever hear anyone say they could face prosecution for their assistance with all the BS that occurred.

            • dopefish says:

              In fairness, I think asking for a pardon is only an admission that they *may have* committed a crime.

              Those who feared lengthy investigations, with possible indictment and trial, probably figured they could avoid all that if TFG would pardon them, so if there was even a chance of needing it, why not ask?

  5. Lawnboy says:

    Dr. W. You got me thinking with the mention of Dreeben. Had Frank Dreben used his powers as the top investigator on this case, it would be all boxed up in 33 1/3 days!!!

    Happy New Year

  6. gruntfuttock says:

    ‘And so, responding to Sauer’s invitation, Dreeben reminded Henderson of what she said about a case he argued 16 years ago.’

    ‘Know thy enemy’, as Sun Tzu had it.

  7. Brad Cole says:

    This addresses two things that the MSM seems to wish away.
    – That Trump, as a life long micromanaging arsehole always has his hand in everything.
    – And that this was indeed a VRWC, with full involvement top to bottom of most of the GOPRussia.
    The problem for the MSM is that, if true, then everyone and everything from that period is covered in shit, not exactly career building material. We had the same problem imho in 2001-09 but, by wishing it away, most have been able to salvage their careers.

      • Hope Ratner says:

        …also if you wouldn’t mind….what does DQ stand for other than Dairy Queen. I must have missed that somewhere in reading Emptywheel.

      • earthworm says:

        thanks very much, rayne,
        there are a lot of acronyms out there, although those who are curious can always google.

      • RipNoLonger says:

        Since many of us have been chided for using acronyms, perhaps EmptyWheel can have a page of accepted ones and their meanings.

        First one on the list: LOL – In honor of our esteemed prickler

        • Rayne says:

          No. You can be the bigger person and put in the effort to consider your audience, one which does not perform a daily Vulcan mind meld with you. You might also consider that most legal and research documents would spell out the full term followed by the acronym, ex. vast right-wing conspiracy (VRWC).

          • RipNoLonger says:

            Whoops. I think I stepped in some doo-doo that I didn’t expect and don’t know where it came from.

            In any case, let’s all have an interesting New Year!

        • earlofhuntingdon says:

          It is standard operating procedure, STOP, to give the full name of a person or acronym the first time it’s used, before using the shorthand of a common name, nickname, or acronym. Otherwise, it FUBARs the conversation.

          • Rayne says:

            This particular acronym has also been used a whopping 25 times in +656,000 comments to date, meaning it’s rare compared to an older acronym like FUBAR (fucked up beyond all recognition) which has been used 141 times in comments and 30 times as part of a username (fubar jack).

            There was a burst of use in 2007, and user graham firchlis has used VRWC more than a dozen times — this kind of easily obtained detail suggests just how infrequently the acronym has been used.

            Now…can we all get back on topic which is US Deputy Solicitor General Michael Dreeben versus Trump attorney John Sauer in regards to Trump’s claim of immunity.

          • RipNoLonger says:

            Hi, Earl – I think the correct acronym is SOP (not STOP).

            I’ll posit that a lot of this discourse is happening because some people don’t know the definitions of stuff commonly used on social media. And when we use whatever “search” facility is on this platform it won’t connect “tfg” to “oranganus” to “trump”, etc.

            I’m really happy spelling out every term on this blog as long as everyone else will do the same.

            Just my opinion, FWIW.

        • LadyHawke says:

          Reminding us of the story of the older person who ended a condolence message with LOL – and was shocked to be told it doesn’t mean Lots of Love.
          Wishes to the entire EW gang for a very good 2024!

    • Tannenzäpfle says:

      I still firmly believe that if the Bush Six had gone to prison, we could have avoided a lot of the problems of the Trump era. But no, John Yoo will likely die a free man the same way Rumsfeld did. I understand why things worked out how they did, but I’m still bitter.
       
       
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      Tannenzaepfle

  8. Doug Kane says:

    Hopefully, Judge Henderson will accept Smith, Dreeben and Pearce’s invitation at the end of the brief:

    “For the reasons given in the Government’s motion to expedite appellate review, including the
    imperative public importance of a prompt resolution of this case, the Government respectfully requests the Court to issue the mandate five days after the entry of judgment. Such an approach would appropriately require any party seeking further review to do so promptly.”

    Otherwise, it may all be for naught.
     
     
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  9. Kal Kallevig says:

    New Year is here!
    EW Moderation Team suggestion
    After reading EW quite consistently for a few years, I have come up with the first draft of what might be a useful addition to the comment lead in comment. It is my understanding of what the best comments do.

    Imagine yourself to be a working member of either the defense or prosocution teams working on the subject of the post. If your comment adds to the team knowledge or the understanding of the law as it applies, make the comment, with documentation. If the comment is a contrarian POV, include documentation in support of the POV. If it is a song or a pun or a sports observation, it might be worth writing to lighten the mood.

    • Rayne says:

      Thanks for your feedback. The Contact page is a better location for this as it’s off topic in this thread.

    • Manuel Gonzalez says:

      “I have come up with the first draft of what might be a useful addition to the comment lead in comment”….I second your initiative, even though, only moderators can initiate the thread where this effort is located. The amazing tone here and Dr. M’s brilliance nurture the faith in my philosophical agency. However, the salon etiquette feels sometimes too “power over”. Formula 1 expedience disposes of trolls here. I wonder how many “power with” voices are here but silenced. Thanks!

      • Rayne says:

        You’d be very surprised at how little is silenced. If you’ve never done community management and moderation it’d be easy to make such a sweeping assumption.

        In the simplest terms possible we don’t tolerate trolling by commenters which interferes with others’ constructive discussions.

        Speaking of which, you’ll note I told Kal Kallevig this was not on topic in this thread. Please return to the topic.

  10. Myra-Bo-Byra says:

    IANAL but would any of you care to comment on the likelihood that, if the claim of immunity is rejected, the 3 judge panel will lift the stay, even before any en banc review (which Trump would obviously request to add time)? Also, assuming this does go up to the Supremes, and they don’t issue a ruling until June, would there still be enough time to go to trial before the election?

    • sohelpmedog says:

      I think it’s unlikely that there will be an en banc review. Here’s the relevant part of the
      rule for the D.C. Circuit:
      “Rule 35. En Banc Determination
      (a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:
      (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or
      (2) the proceeding involves a question of exceptional importance.”

        • P’villain says:

          Sure, but the votes are very unlikely to be there for en banc review. More important is the length of the stay on the panel’s decision to allow further appeals. Smith’s team has asked for five days.

        • earlofhuntingdon says:

          The DC Circuit could also take the position that, no, there’s nothing here not fully considered by either the panel or the district court’s decisions.

  11. Rugger_9 says:

    As a practical 40,000 foot matter, how would it be possible for Alito to wordsmith any presidential immunity exemption that doesn’t fly in the face of precedent or the fundamental principles of America. Perhaps Sam needs to read the Declaration of Independence again for what the Founding Fathers thought about unaccountable kings. These hacks in robes miss the forest for the trees trying to nibble out ways to avoid hitting guardrails.

    As for Defendant-1, I’m getting an earworm about the dead bishop, because while the insurrection is a fair cop, he’s blaming society. Enjoy…

    https://www.youtube.com/watch?v=jA1kaFgLuh0

    • Thomas_H says:

      From 40,000 feet I can see over the horizon and Bush V. Gore comes back into view, as a precedent Alito can try to cite. A precedent for spinning legal yarn out of thin air that is.

  12. TimothyB says:

    I read this post with great pleasure and learning.

    Thank you, MW, mods, regular contributors and wise people for this wonderful website.

    A beacon of light, this site, in a dark year, 2023, may it shine as bright in 2024.

    • earlofhuntingdon says:

      k year, 2023, may it shine as bright in 2

      [Moderator’s note: earlofhuntingdon, would you please confirm you left this comment? I can’t validate the identity because the email address doesn’t match the last one used. Thanks. /~Rayne]

      • earlofhuntingdon says:

        No, that was not me. Let me know if I have to change something. Thanks.

        [Moderator’s note: Nope, no need to change anything, you’re fine. We just have a little pest control problem going on right now. If you should ever happen to see a comment you didn’t make appear on the site, be sure to let us know promptly. The comment above and your reply will be deleted shortly to free up space in this thread. Be sure to continue to use the same username AND email address every time you comment. Thanks! / Your Local Area Moderator]

  13. xyxyxyxy says:

    I may have missed it, but haven’t seen discussion of this here, if it’s related to this.
    From https://www.msn.com/en-us/news/politics/lawyers-amicus-brief-adds-new-wrinkle-to-donald-trumps-immunity-appeal/ar-AA1mfq7B
    “As the American Oversight amicus brief argues, Supreme Court precedent [from 1989] prohibits a criminal defendant from immediately appealing an order denying immunity unless the claimed immunity is based on ‘an explicit statutory or constitutional guarantee that trial will not occur,'” the group’s official statement explained. “Trump’s claims of immunity rests on no such explicit guarantee. Therefore, given that Trump has not been convicted or sentenced, his appeal is premature. The D.C. Circuit lacks appellate jurisdiction and should dismiss the appeal and return the case to district court for trial promptly.”

    • earlofhuntingdon says:

      It’s been out a few days and has been discussed sporadically here. That’s also a Newsweek article; it’s good form to give the url for Newsweek than to direct people to it through MSN.

      • ColdFusion says:

        To be fair, Microsoft makes it a real pain in the ass to get to the original URL. I have to jump through hoops to bookmark them.

        • earlofhuntingdon says:

          FFS, try an independent search for Newsweek, maybe a date or author, and key words from the article. Rawstory, another news aggregator, presents the same easily overcome obstacles.

        • Rayne says:

          Open that MSN link furnished above and you’ll see above the article headline — “Lawyers’ Amicus Brief Adds New Wrinkle to Donald Trump’s Immunity Appeal” — there’s a N logo and the brand name Newsweek which is an active link.

          Click on Newsweek, go to their search tool in upper right of page, type in a unique word from the headline and search. “Amicus” works well in this case, producing the original article as the second result.

          It’s always better to go to the original source because their business and journalist(s) should know directly whether their work is effective; clicking on the original source also rewards the work and not the syndicator with ad revenue; and MSN will siphon every goddamned bit of data about readers who really meant to read the Newsweek article. By linking MSN instead of Newsweek, Microsoft obtains the relationship between the original linker and their equipment and network to this site and every community member who clicks on that link from inside comments.

          There’s a reason Microsoft makes it a pain. Don’t reward them.

    • tje.esq@23 says:

      I haven’t read the American Oversight brief yet, but don’t see that argument going very far. The right not to be “twice put in jeopardy of life or limb”… “for the same offense” is plainly spelled out in the Constitution’s 5th amendment, so Trump’s double jeopardy immunity claim, if not his absolute immunity claim, is indeed based on ‘an explicit . . . constitutional guarantee” against any (re)trial commencing.

      In fact, the Special Counsel brief addresses jurisdiction right up front, on page 2, and references the “collaterol order doctrine” — an exception to the “final judgment” rule in 28 U.S.C. § 1291, that allows interlocutory appeals, like Trump’s, in situations where the matter is “effectively unreviewable on appeal from a final judgment.” Nixon v. Fitzgerald, 457 U.S. 731, 742-43 (1982) (citing Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546-47 (1949)).

      Absolute immunity and the double jeopardy clause bar prosecution from commencing in the first place — a right that cannot be vindicated after criminal process begins. Simply put, after a criminal case has concluded — at “final judgment” — the right to NOT BE PROSECUTED IN THE FIRST PLACE is moot, and therefore, “effectively unreviewable.”

      • John Herbison says:

        The appealability of a double jeopardy claim pursuant to the collateral order doctrine depends upon the claim being at least “colorable,” and frivolous claims of former jeopardy may be weeded out by summary procedures. Richardson v. United States, 468 U.S. 317, 322 (1984). Donald Trump’s D.C. Circuit brief presents no colorable claim that incitement of insurrection — the sole claim upon which Trump was impeached — is the “same offense” as any of the crimes charged in the D.C. indictment. 18 U.S.C. §§ 241, 371, 1512(c)(2) and 1512(k).

      • P J Evans says:

        He isn’t in double-jeopardy territory. All of the charges are based on his own actions, and he hasn’t been charged twice for anything AFAIK. Impeachment isn’t a judicial case.

        • Rugger_9 says:

          As SC Smith argues quite clearly, the Congressional impeachment of the J6 incitement and the four counts filed in DC are two separate circles in a Venn diagram. While the things charged in DC might have led to J6, the House did not include any of it in the impeachment. Likewise, the coup plot charged by SC Smith does not inevitably lead to J6.

          Smith points that out, but Defendant-1 and his ‘legal’ team are going to do everything they can to conflate the two distinct issues into one J6 ball of wax.

          Will SCOTUS touch this? Roberts is risk averse and my question in an earlier post about where such an immunity claim can possibly be threaded may give ACB, Kavanaugh and Gorsuch some pause to let Defendant-1 off the hook here. I don’t see how permanent immunity (which is really what Def’t-1 is asking for) can be drawn to benefit only Def’t 1 and not apply to Biden. After all, if Biden also gets immunity, he pardons Hunter (after the election) with complete impunity. I can’t see the GOP or MAGA going for that outcome.

          • Shadowalker says:

            It’s my understanding that double jeopardy only applies to criminal statutes applied in a judicial court, except in those cases where sovereignty (federal vs state) applies.

            I don’t see how they can rule in his favor, since doing so would grant the chief executive the ability to ignore and overrule any court including SCOTUS itself. The election he tried to steal had been before both federal and state courts (including SCOTUS), so he had his “day in court” and lost, he then ignored and defied their judgement(s).

      • earlofhuntingdon says:

        LOL. A colorable claim relating to double jeopardy requires facts Trump doesn’t have and hasn’t argued.

        There is no precedent or other support for the proposition that a president has absolute immunity from criminal prosecution, only from civil liability. The two are not comparable circumstances, which makes reasoning by analogy neither explicit in the Constitution nor persuasive.

        Smith has not argued that the DC Circuit has no jurisdiction, as was argued by the amicus brief you say you didn’t read.

  14. Bay State Librul says:

    Here is my two cents worth on the rules for the road or how to avoid the “wrath of the moderators.”
    (1) How long is the penalty for being in moderation for a game misconduct?
    As an example, I have been in the penalty box for at least six months.
    Is there a way out of Dante’s Inferno or is it a life sentence?
    (2) Should there be a list of words that you cannot use like — treason?

    [Moderator’s note: This comment is not on topic. Get back on topic and save this for the next open thread. You have NOT been a penalty box, you have a habit of triggering moderation, ex. frequent comments off topic and use of key words which set off the algorithm. If you do not like the way comments operate here you are not obligated to participate. /~Rayne]

    • Bay State Librul says:

      Okay but FYI, all my comments go into your automatic moderation status with the words “your comment is awaiting moderation” status — that’s what I mean by the penalty box.

      [Moderator’s note: BSL, you’re off topic *again* and you’re exacerbating the problem during the worst possible time. Let it go or I will fix this permanently. /~Rayne]

  15. harpie says:

    TRUMP has filed his immunity brief. Cheney has screenshots and a LINK here:

    https://nitter.net/kyledcheney/status/1742418711519109480
    Jan 3, 2024 · 5:32 AM UTC [] 12:32 AM · Jan 3, 2024

    JUST IN: Trump has filed his final brief on presidential immunity to the appeals court in DC. It bizarrely cites (twice!) to this anonymously authored compendium of voter fraud claims (many, if not all, of which have been debunked) that Trump posted on social media earlier today. [THREAD]

    Marcy writes about it in a THREAD here:
    https://nitter.net/emptywheel/status/1742490237324915132
    Jan 3, 2024 · 10:17 AM UTC [] 5:17 AM · Jan 3, 2024

    • harpie says:

      Here’s the TRUMP Truth[LOL!]Social post referenced in the brief
      [I’m following Marcy’s suggestion of not copying verbatim by striking]:

      https://truthsocial.com/@realDonaldTrump/posts/111687076142669367
      Jan 02, 2024, 10:32 AM

      Page One: SUMMARY OF ELECTION FRAUD IN THE 2020 PRESIDENTIAL ELECTION IN THE SWING STATES: I am pleased to share a Report that is fully verified, most of the information was gotten from Government Sources, Tapes, and other Public Records, and compiled by the most highly qualified Election Experts in the Country. These numbers are determinative and, in all cases, are hundreds of thousands of Votes per Swing State more than I needed to WIN that State. If the Republican Senate does not step forward and address this ATROCITY, it will happen again, and be virtually impossible for Republicans to WIN ELECTIONS in the future. [Link]

      LOL: “fully verified” [] “most of the info” [] “compiled by the most highly qualified Election Experts in the Country” [] “numbers are determinative and, in all cases”

    • harpie says:

      Here’s the REPORT [pdf], “compiled by the most highly qualified [yet completely ANONYMOUS] Election Experts in the Country”:

      Summary of Election Fraud in the 2020 Presidential Election in the Swing States “Out of fraud no action arises.”
      https://cdn.nucleusfiles.com/e0/e04e630c-63ff-4bdb-9652-e0be3598b5d4/summary20of20election20fraud20in20the20swing20states.pdf
      By: ANONYMOUS [I don’t see a DATE, either]

      Introduction
      It has often been repeated there is “no evidence” of fraud in the 2020 Election. In actuality, there is no evidence Joe Biden won […]

    • harpie says:

      WHO are these ANONYMOUS “highly qualified election [LOL!] experts”?

      I’ll start us off with some possibilities:

      Cleta MITCHELL
      Mike FLYNN
      Ivan RAIKLIN
      Garrett ZIEGLER
      Peter NAVARRO

    • harpie says:

      Much of the GEORGIA section of The “most highly qualified Election Experts in the Country” REPORT is based on these guys:

      Election Oversight Group, LLC
      https://www.corporationwiki.com/p/3drmfb/election-oversight-group-llc

      Overview
      Election Oversight Group, LLC filed as a Domestic Limited Liability Company (LLC) in the State of Texas on Friday, September 30, 2022 and is approximately two years old, as recorded in documents filed with Texas Secretary of State. […]

      Key People
      Kevin Moncla, David Cross, Rochelle Cabirac […]

      Moncla and Cross are mentioned by Media Matters, here:

      On Rumble, a QAnon-affiliated show dedicated to election misinformation hosts election deniers from across the country A hub for QAnon supporters and election deniers, Rumble has given a platform to Badlands Media and its show Why We Vote
      https://www.mediamatters.org/voter-fraud-and-suppression/rumble-qanon-affiliated-show-dedicated-election-misinformation-hosts
      06/14/23 2:41 PM EDT

      […] Kevin Moncla and David Cross, who manage the election denial organization Election Oversight Group, went on the show together at least once, with Moncla appearing on the show at least one other time. At the end of their interview together, Moncla — who was “once busted for illegally filming people in his bathroom” — told Lupo, “None of this would have been possible without you.” In response, Lupo said the QAnon slogan (“where we go one, we go all”), with Cross subsequently claiming that it expressed “teamwork.” [VIDEO] […]

      • harpie says:

        RIGHT WING ‘ELECTION FRAUD’ RESEARCHER A CONVICTED BATHROOM VOYEUR The right’s new “election expert”—Kevin Moncla—was once busted for illegally filming people in his home. Now he pushes the Big Lie.
        https://www.texasobserver.org/kevin-moncla-election-fraud-bathroom-dallas/ 11/18/22

        Moncla and another managing member of EOG, David Cross, filed a complaint in Georgia on October 11 claiming widespread “error codes” were found in Dominion Voting Systems tabulating machines in Georgia used in the 2020 election, a state where conspiracies around the company and voting machines have flourished. The video from Dallas, which was filmed in violation of election law, is but the latest broadside from the group.

        But this isn’t the first time Moncla has been involved with illegal filming.

        The Daily Dot has confirmed that Moncla, who is now based in Texas, was convicted in Florida after pleading guilty to a misdemeanor voyeurism charge in 2004. [..]

              • harpie says:

                CannCon“, you say? Huh! He’s mentioned in the Media Matters link I posted above:

                [Blockquote]
                […] At least one of Why We Vote’s hosts, Brian Lupo — who is a writer for far-right blog The Gateway Pundit and is known online as “CannCon” — has explicitly promoted QAnon […]
                [END Blockquote]

          • SteveBev says:

            Thus the Anonymous Undated Report must post date 10/23/2023

            Which makes the use of it in the Trump Reply rather awkward
            See in particular pp32-3 pdf pp23-4 Argument https://www.documentcloud.org/documents/24252338-trump-reply-brief

            “Next, the government argues that President Trump’s public statements and communications were supposedly “knowingly false.” Resp.Br.51-52. The government’s empty assertion is utterly false. President Trump was carrying out his duties as Chief Executive to investigate the overwhelming reports of widespread election fraud. See supra, Part I (citing Summary of Election Fraud). Nevertheless, absolute immunity would apply even if the challenged statements were allegedly false and “actuated by malice on the part of the [speaker],” which they are not in this case. Barr, 360 U.S. at 568; id. at 569; see also Fitzgerald, 457 U.S. at 756; Gregoire, 177 F.2d at 581”

            The ‘Summary of Election Fraud’ document cannot possibly have affected Trump’s state of mind at any time between 3 Nov 2020 and 20 Jan 2021

            • Ginevra diBenci says:

              The “overwhelming reports” he was spewing himself. He’s telling us exactly how this worked.

        • Ginevra diBenci says:

          Thank you, harpie and SteveBev, for chasing down the details about Trump’s “Report.” I have been curious since hearing it mentioned last night on TV about its provenance; did not believe he would try something so laughable as to present it as the work of “experts” who remained anonymous.

          But he never ceases to lower my expectations. I wonder what kind of traction it is getting from fanboys like Musk, of the type who pride themselves on their perspicuity.

    • harpie says:

      Thoughts on TRUMP’s “argument” page 14/41 and footnotes 1-4.

      [pdf14/41] The government’s account, Resp.Br.3, selectively omits key facts —such as that, in his speech at the Ellipse, President Trump encouraged the crowd to “peacefully and patriotically make your voices heard,” and “cheer on our brave senators and congressmen and women.” Transcript of Trump’s Speech at Rally Before US Capitol Riot, AP (Jan. 13, 2021).1 President Trump denounced the destruction of monuments and other symbols of American democracy. Id. He never encouraged anyone to enter the Capitol. Id. He stated on social media that protestors should “remain peaceful”2 and “[s]tay peaceful,”3 and released a video from the Rose Garden telling protestors “to go home now.”4

      – Re: selectively omits key facts: LOL!
      There is ONLY one time during the speech that TRUMP used the word “peace” or “peaceful”. The ratio between TRUMP’s use of the word “PEACEFUL” and the word “FIGHT” is approximately 1:20.

      https://www.emptywheel.net/2023/11/23/the-former-presidents-spaghetti-wall-assault-on-the-truth/#comment-1025865

      • harpie says:

        This is how TRUMP “denounced the destruction of monuments and other symbols of American democracy.” [OMFG!]

        And don’t worry, we will not take the name off the Washington Monument. We will not cancel culture.

        You know they wanted to get rid of the Jefferson Memorial. Either take it down or just put somebody else in there. I don’t think that’s going to happen. It damn well better not. Although, with this administration, if this happens, it could happen. You’ll see some really bad things happen.

        They’ll knock out Lincoln too, by the way. They’ve been taking his statue down. But then we signed a little law. You hurt our monuments, you hurt our heroes, you go to jail for 10 years, and everything stopped. You notice that? It stopped. It all stopped.

        The TRANSCRIPT they link to:
        https://apnews.com/article/election-2020-joe-biden-donald-trump-capitol-siege-media-e79eb5164613d6718e9f4502eb471f27

      • harpie says:

        …and as far as
        “cheer on our brave senators and congressmen and women.”

        Anyone you want, but I think right here, we’re going to walk down to the Capitol, and we’re going to cheer on our brave senators and congressmen and women, and we’re probably not going to be cheering so much for some of them.

        Because you’ll never take back our country with weakness. You have to show strength and you have to be strong. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.

      • harpie says:

        BOTH Footnote 2 and Footnote 3 MIS-state the TIME TRUMP posted them, EACH was actually posted one hour LATER:

        2 Donald J. Trump (@realDonaldTrump), X (Jan. 6, 2021, 2:13 [< sb: 3:13] PM

        3 Donald J. Trump (@realDonaldTrump), X (Jan. 6, 2021, 1:38 [< sb: 2:38] PM)

        • harpie says:

          Re: [TRUMP] selectively omits key facts:

          2:24 PM TRUMP tweets:

          Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth! [Twitter: This claim about election fraud is disputed]

          https://twitter.com/atrupar/status/1535064588357607428
          9:01 PM · Jun 9, 2022

          A video played by the January 6 committee shows how the [2:24 PM] tweet Trump posted after the Capitol had been breached criticizing Pence for not helping him overturn the election prompted “hang Mike Pence!” chants [VIDEO]

      • harpie says:

        4 Pres. Donald J. Trump, Video Telling Protestors at Capitol Building to Go Home: Transcript (Jan. 6, 2021), [link]

        The Tweet/VIDEO referenced in Footnote 4 has been deleted, but the Transcript they link to seems to be correct,
        and TRUMP DOES say “go home now”.

        What they “selectively” NEGLECT to mention is that TRUMP sent this VIDEO message to his followers at 4:17 PM.

        That’s more than two hours after this:

        From the #J6TL:

        2:12 PM Dominic PEZZOLA uses the riot shield he had taken from a Capitol Police officer to break a window of the Capitol. The first members of the mob enter the Capitol through this broken window, and PEZZOLA does as well. Other members of the mob enter the building and forced open an adjacent door from the inside.

        Also, about that VIDEO:

        An aide present for the recording said, “Trump had to tape the message several times before they thought he got it right.”

        In earlier versions he neglected to tell his supporters to leave the Capitol, according to [Jonathan] Karl.

        https://abcnews.go.com/Politics/trump-boasted-crowd-size-jan-riot-book/story?id=80504801

        • harpie says:

          What TRUMP told his supporters:

          4:17 PM TRUMP tweets VIDEO:

          TRUMP: I know your pain. I know you’re hurt. We had an election that was stolen from us. It was a landslide election, and everyone knows it, especially the other side, but you have to go home now. We have to have peace. We have to have law and order. We have to respect our great people in law and order. We don’t want anybody hurt. It’s a very tough period of time. There’s never been a time like this where such a thing happened, where they could take it away from all of us, from me, from you, from our country. This was a fraudulent election, but we can’t play into the hands of these people. We have to have peace. So go home. We love you. You’re very special. You’ve seen what happens. You see the way others are treated that are so bad and so evil. I know how you feel. But go home and go home at peace.

          • Ginevra diBenci says:

            harpie, all this is brilliant. Thank you once again for supplying the matrix without which all is Trumpspeak and lies.

            And a very happy new year to you too! Thanks as well for filling in the Strzok context I asked for in the comments-closed post. I can always count on you…to do the work of legions.

        • SteveBev says:

          And the crucial tweet about Pence’s betrayal was 2:24 pm

          Which preceded both the ‘remain peaceful tweets’ (which the reply inexplicably mention out of order as well as with inaccurate timings) by 14 mins and 49 mins

          This snippet from J6 committee covers the period 2:12 to 2:26
          https://youtube.com/watch?v=X-I7KTnWTOw

          The inadequacy of the ‘remain peaceful’ small print worthless clause issued 12 minutes and 47 minutes after Pence’s relocation was obvious to all both then and now.

    • harpie says:

      bmaz Retweeted this excellent piece by Liz DYE:

      Trump Lawyers Run Out Of Bad Arguments, Move On To Terrible Ones In Immunity Appeal That is some sparkling bullshit.
      https://abovethelaw.com/2024/01/trump-lawyers-run-out-of-bad-arguments-move-on-to-terrible-ones-in-immunity-appeal/
      LIZ DYE January 3, 2024 at 2:45 PM

      […] In fact, this brief is stuffed with more athletic leaps of logic than the Bolshoi Ballet. […]

      And speaking of misplaced confidence

      [screenshot of TRUMP’s Truth [LOL!] Social post]

      In their brief, Trump’s lawyers actually cite [harpie emphasis] this social media post and the “Report that is fully verified” as proof that the “vigorous disputes and questions about the actual outcome of the 2020 Presidential election” were “based on extensive information about widespread fraud and irregularities in the 2020 election. In fact, the “Report” is a regurgitation of debunked claims of swing state fraud, citing such dubious sources as The Gateway Pundit, random internet videos, and a ‘Report on Widespread Fraud in the Georgia 2020 Presidential Election,’ which may or may not exist — it’s not linked to in this supposedly “verified” document. […]

  16. harpie says:

    A right-wing tale of Michigan election fraud had it all – except proof Gateway Pundit, a favorite news source of former president Donald Trump’s, has pushed false claims of a stolen election even as others have pulled back in the face of consequences https://www.washingtonpost.com/politics/2024/01/03/gateway-pundit-conservative-news-election-fraud/ Sarah Ellison January 3, 2024 at 6:00 a.m. EST

    I think there is a free link here:
    https://twitter.com/jdawsey1/status/1742566039001403420
    10:18 AM · Jan 3, 2024

    The reason I’m bringing this up here, is that the REPORT we were talking about yesterday, which TRUMP used in the court filing, has numerous references to The Gateway Pundit, including the 8/8/23 piece referenced in the WaPo title above. [SEE: Footnotes 87, 90, 91, 95, 96, 98]

    […] Gateway Pundit’s Aug. 8 story about Muskegon, a formerly booming foundry town on the eastern shore of Lake Michigan that Trump narrowly lost in 2016 and 2020, outlined a purported voter fraud conspiracy. […]

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