Judge Karen Henderson’s Floodgate Concerns

While Judge Florence Pan was asking, over and over, if Trump attorney John Sauer really was saying that a President could assassinate his rival and, if not impeached, avoid any accountability, Judge Karen Henderson expressed her disagreement with Sauer’s argument more circumspectly.

But she did express disagreement.

If I read her comments right, they mean that, at worst, Henderson would support remanding the case to Judge Chutkan to figure out whether the things of which Trump is accused are official acts. Indeed, by the end of a brutal set of questions, that seemed to be what Sauer was begging for, which at least would produce the delay his client seeks.

Henderson’s key lens — something she asked both Sauer and AUSA James Pearce — was, rather than distinguishing between private and official acts, instead distinguishing between discretionary acts and those mandated by law, ministerial acts.

Whether the progeny of Madison v. Marbury has distinguished between discretionary official acts and ministerial, by which they mean, imposed by law, and it’s the latter one by which he can be held liable.

This seemed to be the basis on which she wants to base jurisdiction (where Pan and Michelle Childs seemed inclined to argue they didn’t have jurisdiction). She seemed to be saying that a President could be prosecuted for things that were dictated by law but not for things not dictated by law.

Sauer didn’t get her point. He responded that nothing in the indictment was ministerial.

To which Henderson objected that the Take Care Clause requires the President to follow, “every one of … the laws.”

Why isn’t it ministerial when his constitutional duty, to take care that the laws be faithfully executed, requires him to follow those laws? Every one of them.

Sauer kept digging, arguing the Take Care Clause was entirely discretionary.

Henderson responded, getting to what, I think, is her point. The progeny of Marbury has given Article III courts jurisdiction over ministerial actions, which when yoked with the Take Care Clause requires the President to be subject to individual laws.

I think it’s paradoxical to say that his constitutional duty, to take care that the laws be faithfully executed, allows him to violate criminal law. Now, we’re at the motion to dismiss stage. The government has charged the specific criminal laws. We have to assume they’re true.

[snip]

We’ve gotten beyond Marbury in the sense that official acts have been subdivided into discretionary and duty-bound or ministerial. And in the ministerial or duty-bound, at least with respect even legislators and judges, they have been held criminally liable. And that’s in the face, at least with respect to the legislators, of an explicit privilege.

It’s clear that she was bothered by Sauer’s Take Care Clause arguments, which argued that everything included in the indictment might be covered by the Take Care Clause requiring that the President enforce the law.

Sauer seemed to recognize defeat: as he finished he asked again for a stay so Trump can appeal.

As mentioned, Judge Henderson asked the same question about Marbury of James Pearce, arguing for Jack Smith. He responded this way:

Our interpretation is much closer in line to what I think I heard Judge Pan setting out and similar to yours. It certainly does not erect an unreviewable power for the Presidency. I think the prime example of that is the steel seizure case. The Youngstown case. That was President Truman closing the steel mills. That was the court coming in and reviewing that. We see that all the way through to the present. And so it’s hard to see any world in which the court just says, we can’t intervene here.

I accept the court’s, Judge Henderson, the distinction between ministerial and discretionary acts. Compliance with the law is not some sort of discretionary call, right? It is something that, I fully endorse or agree with the idea of a paradox of a President’s, on the one hand, having the Article II Take Care responsibility, and on the other hand seeing the law, compliance with the law as optional.

That seemed to get Henderson where she wanted to go to decide the case. Then she revealed her worry: That in deciding against Trump, it will unleash a floodgate of similar criminal prosecutions.

Henderson: Let me switch and ask you, how do we write an opinion that would stop the floodgates? Your predecessors in their OLC opinions recognized that criminal liability would be unavoidably political.

Pearce: So, a couple of responses. Of course, that was with respect to a sitting President. I think the analysis is extraordinarily different with respect to a former President, which OLC, I’m sorry —

Henderson: But with respect to being necessarily political.

Pearce: There is a political process, which is impeachment. And we can talk about that. But there is a legal process which is decidedly not political. And that is a process which has the kinds of safeguards that a couple of members of the court here have already referred to. We’re talking about prosecutors who follow strict codes and who are presumed to act with regularity, grand jurors, petit jury eventually, and this court, Article III courts standing above it.

But I also want to push back a little against this idea of floodgates. At least since the Watergate era, fifty years ago, has there been widespread societal recognition including by Presidents and the Executive Branch that a former President is subject to criminal prosecution.

And Nixon was not about private conduct. Nixon was about — among other things — using the CIA to try to interfere with an FBI investigation. He then accepts a pardon, understanding that, after having resigned, so that also undermines this impeachment first argument. After Nixon, we then see a series of independent and special prosecutors investigating a range of different types of conduct.

[snip]

This notion that we’re going to all of a sudden see a floodgate, the careful investigations in the Clinton era didn’t result in any charges. The fact that this investigation did doesn’t reflect that we are going to see a sea change of vindictive tit for tat prosecutions in the future. I think it reflects the fundamentally unprecedented nature of the criminal charges here. Never before has there been allegations that a sitting President has, with private individuals, and using the levers of power, sought to fundamentally subvert the democratic republic and the electoral system. And frankly, if that kind of fact pattern arises again, I think it would be awfully scary if there weren’t some sort of mechanism by which to reach that criminally.

Ultimately, Pearce argued that Trump’s parade of horribles has been disproven by the last fifty years in which it has been presumed that former Presidents could be prosecuted, but none were, until Trump.

Henderson has been sympathetic to Trump’s past claims that he’s being treated differently, politically. So I can understand how it would concern her.

But as noted, once you’re dealing with a former President, that shouldn’t be an issue.

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201 replies
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  2. brucefan says:

    Would a remand necessarily delay the trial?

    Deny Trump’s absolute immunity motion, remand and allow Trump to argue, as part of the trial, whether immunity from criminal prosecution is warranted.

    For example, let them explain how saying “I just want to find, uh, 11,780 votes” is an official act.

    Interlocutory appeal plus stay of the trial makes sense when there is a legal argument that would make the whole case go away, not so much when there is a fact intensive analysis of hundreds of acts.

    • Arteberry says:

      It’s easy to concur with most of the analysis in the post above and the comments below. For a variety of sound reasons, the Trump claim of immunity or a condition precedent to his prosecution are malarkey. The judges certainly see these claims for what they are. Having said that, Trump’s immunity claim is quite likely to wind up as a side issue. More precisely, a side issue in the short run but not in the long run.

      Judge Pan today pretty clearly said that the Supreme Court’s unanimous decision in Midland Asphalt defeats the Circuit Court’s jurisdiction to decide this interlocutory appeal. However, Trump and the Special Counsel’s Office both want a decision on the merits of the immunity claim. Trump wants it because a determination on the merits can be further appealed, which means further delay. The SCO wants it because the immunity claim is extremely weak but still could be a source of long run delay. Getting rid of the claim as soon as possible makes litigating the remainder of the case much easier.

      But guess what? The parties cannot confer interlocutory jurisdiction on the Court of Appeal, even if the parties are in complete agreement that they would like the appeal heard. What I did not see or hear today, from either side, is a citation to authority that would somehow overcome Midland Asphalt and the D.C. Circuit’s holding in Cisneros. Only crickets on that item. [The most anybody seems to be mentioning is the concept of “hypothetical jurisdiction” noted below.]

      So, the appeal will likely be dismissed for lack of interlocutory jurisdiction. But all the discussion on the merits of the immunity claim is not going to disappear. As we have seen, there is a lot more scope, depth, and ultimately importance to the discussion of the merits. So, more time has been spent on it in court and on these pages. The Circuit Court certainly will add to its ruling an analysis affirming Chutkan, as an “alternative” conclusion. The Circuit Court may frame its “alternative”.holding as an exercise of “hypothetical jurisdiction,” which some cases talk about but (as a label) verges on being an oxymoron. The Circuit Court would frame the holding in this way to aid the cause in case the Supreme Court subsequently decides there really is interlocutory jurisdiction here—though such a decision by the Supreme Court would have to be grounded on a distinction from Midland Asphalt that nobody has identified yet.

      • Garrett Everhardt says:

        IANAL
        But this response was super informative, easy to understand, and makes total sense to an outside observer like myself. Thank you!

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      • Operandi says:

        The judges (at least one of them, can’t remember who. Pan?) seemed to be pretty down on the idea they could remand while still exercising hypothetical jurisdiction. The claim was that specific procedural posture veered too far into the realm of issuing advisory opinions.

        Though, they might still have the opportunity to backdoor some of that. Midland requires them to find there’s no explicit constitutional guarantee, which would seem to open the door to them opining on the various constitutional clauses where Sauer claims immunity might lurk. “we do not think the impeachment clause grants immunity even implicitly much less explicitly”, etc, etc.

        It’s interesting Jack Smith doesn’t want to argue Midland applies. It seems to apply exceedingly cleanly, and would also seem to be one of the fastest ways to get this case back on track. It’s also my pick for most likely outcome, despite neither side arguing it.

        It could be Smith wants to play for the winning headline “SCOTUS says Trump must stand trial”. But if I had to guess, this is traume from SCOTUS previously screwing him on the McDonnell prosecution. If novel theories of presidential criminal immunity are going to come crawling out of our highest court, I assume he’d like to know ASAP so he can tailor the indictment to whatever contours SCOTUS lays down. Or in the worst scenarios where SCOTUS invents sweeping immunity, he’ll know to abandon the current indictment to focus on prosecution of post-presidential acts (like, say, obstruction of J6 investigations).

      • Amicus12 says:

        Having now thought through the argument several times, I think I see where Pan and Childs are going.

        Sauer conceded that Trump’s immunity argument is contingent upon his reading of the Impeachment Judgment Clause (IJC). Now, the IJC is language in the Constitution and that gets you over the Midland hurdle. The court can certainly make that determination. And this means the jurisdictional argument is intertwined with the merits.

        Now the IJC is a strange hill to fight on because the language stands opposed to a claim of absolute Presidential immunity: “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Art. 1, Cl. 3, Sec. 7. The reference to “punishment” encompasses criminal conviction. See, e.g., 8th Amendment (prohibition against cruel and unusual punishment). (The IJC is also at odds with Judge Henderson’s bizarre distinction between mandatory and discretionary acts for purposes of determining immunity).

        So having gotten over the jurisdictional issue, the court can then directly address Trump’s negative inference reading of the IJC. As the USG pointed out, textually, structurally, and historically it is an unsound interpretation. Once the court knocks that down the negative inference argument, Trump has nothing left per his counsel’s concession. The court is free to write more if it chooses or not.

        • Ginevra diBenci says:

          Thanks, Amicus12, for “Henderson’s bizarre distinction between mandatory and discretionary acts.” I was torturing myself trying to figure out what she meant. In fact, while I am probably way off, it seemed topsy-turvy to me.

      • SteveBev says:

        Further to the discussion of the jurisdictional question, I posed down thread a solution based on hypothetical jurisdiction which ultimately came down to arguing that the absence of constitutional basis for the immunity on the merits question and the absence of express constitutional language to found jurisdiction for the appeal as under the collateral issue doctrine, are two sides of the same coin.

        I don’t think that reasoning is entirely satisfactory, And with due respect to Amicus12 I don’t think the hanging of the jurisdiction question on the IJC fully answers the issue.

        I think perhaps the proper answer is to go back to first principles

        1 The jurisdictional question relates to the proper interpretation of
        https://www.law.cornell.edu/uscode/text/28/1291 28 USC 1291 and what amounts to a final order

        2 s1291 draws no explicit distinction between criminal and civil procedure

        3 https://supreme.justia.com/cases/federal/us/457/731/ Nixon v Fitzgerald establishes the basis for absolute Presidential immunity from civil suit not in the express language of the constitution but as follows

        “We consider this immunity a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history. Justice Story’s analysis remains persuasive:
        “There are . . . incidental powers belonging to the executive department which are necessarily implied from the nature of the functions which are confided to it. Among these must necessarily be included the power to perform them. . . . The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office, and, for this purpose, his person must be deemed, in civil cases at least, to possess an official inviolability.”
        3 J. Story, Commentaries on the Constitution of the United States § 1563, pp. 418-419 (1st ed. 1833).”

        4 Note the Nixon court discussed the collateral issue doctrine in its own decision, and considered it in civil and criminal authorities

        5 https://supreme.justia.com/cases/federal/us/489/794/ Midland Asphalt v US the court was grappling with the problem arising in a criminal context
        “One must be careful, however, not to play word games with the concept of a “right not to be tried.” In one sense, any legal rule can be said to give rise to a “right not to be tried” if failure to observe it requires the trial court to dismiss the indictment or terminate the trial. But that is assuredly not the sense relevant for purposes of the exception to the final judgment rule.”

        6 Midland Asphalt crafts this solution
        ‘A right not to be tried in the sense relevant to the Cohen exception rests upon an explicit statutory or constitutional guarantee that trial will not occur — as in the Double Jeopardy Clause (“nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”), see Abney v. United States, supra, or the Speech or Debate Clause (“[F]or any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other Place”), see Helstoski v. Meanor, supra. Neither Rule 6(e) nor the Constitution affords such a guarantee in the event of a violation of grand jury secrecy.’

        7 But IMHO it both overstates and understates the relevant considerations. In most criminal cases the matter giving rise to the right not to be tried must have a firm foundation in Law akin to double jeopardy.

        8 But note though Double Jeopardy is a constitutional guarantee since the Bill of Rights, it had a foundation in Law prior to that. Indeed the Impeachment Judgement Clause is itself an acknowledgment of the historical right of double jeopardy, which is why it is crafted to make expressly clear that the right is not implicated by Impeachment.

        9 The roots of Presidential immunities as explicated in Nixon similarly go back to the dawn of the Constitution.

        10 The issue as to the scope of Presidential immunity from process in the Courts, is from a jurisdictional point of view subject to the same interpretation of the final order rule, and thus the collateral order doctrine.

        11 That the issue on the merits may result in establishing that there is no Presidential absolute criminal immunity or very limited Presidential criminal immunity in circumstances not before the court, may necessarily imply a restriction on the interpretation of the collateral order rule in future cases, but it such an outcome does not limit the Court’s jurisdiction to consider the novel question now.

        Apologies for the length of this post and for errors in reasoning

        • Ginevra diBenci says:

          Thanks to all for the discussion. It seems as if a simple remand is unlikely. But brucefan’s question (above) still hasn’t been directly answered.

          Does a partial remand remain possible? If so, how much delay might ensue?

  3. Joberly1954 says:

    An odd statement from James Pearce, “The Youngstown case. That was President Truman closing the steel mills.” No, the president did not close Youngstown Sheet & Tube—he wanted to keep it open for wartime production. The Supreme Court stopped the president from seizing private property without congressional authorization, even in wartime. The Pearce quote is odd since the Special Counsel’s Dec. 30 answering brief specifically cited the details of the Youngstown case.

    • P’villain says:

      The pressures of oral argument frequently cause lawyers to mis-speak without even realizing it in the moment. There’s an old saw that you give three oral arguments – the one you rehearse, the one you actually give, and the one you think of on the way back to the office.

    • emptywheel says:

      It was a reference back to something Sauer said. He tried to say that Youngstown was just a ruling against a lower officer. Judge Pan was totally disdainful: stating slowly that Truman was the President.

      So it made sense in context.

      • earlofhuntingdon says:

        But her disdain was so professionally expressed, Sauer may not have noticed – or admitted it, given that El Caudillo del Mar-a-Lago was at his side.

      • WilliamOckham says:

        I missed the first part of the oral arguments and heard that bit where the judge said “that was President Truman”. My reaction, was, WTAF did he say to piss her off. Because that tone was what I call the “federal judge implying the lawyer’s not listening” tone.

        • earlofhuntingdon says:

          Sauer was probably listening, but like Elise Stefanik in her interview with Kristin Welker, he couldn’t acknowledge her point and still make his argument with a straight face. It didn’t help that Trump was seated next to him, but that didn’t make him more persuasive to the court.

            • earlofhuntingdon says:

              A nice, site-worthy turn of phrase, as is the illustration below of the Queen of Hearts. Sauer may soon learn, if he hasn’t already, that “Sentence first – Verdict afterwards” can as easily apply to his lawyers as to any Trump critic.

              • earthworm says:

                not a clever wit myself — am hoping to hear from famous wags on this site re “immunity/impunity.”
                c’mon, team, time for some laughs!

                • ExRacerX says:

                  “Back to the Drawing Board”

                  Trump’s legal team argued for immunity

                  A Prez or Ex has complete impunity:

                  Drone hits, SEAL strikes, crimes against humanity

                  Grifting, grafting, spouting lies on Hannity

                  Even defamation and rape (fucking with my sanity!)

                  But the Court called bullshit and just wasn’t buying

                  The utter crap upon which the Defense was relying

                  Back to the drawing board.

  4. lastoneawake says:

    Sounds like Trump tried to make his own Catch-22, but the judge decided it was a catch-and-release.
    :)

  5. nord dakota says:

    “Whether the progeny of Madison v. Marbury has distinguished between discretionary official acts and ministerial, by which they mean, imposed by law, and it’s the latter one by which he can be held liable.”

    If someone can explain that a bit more concretely to this non-lawyer I would appreciate it. Why would discretionary acts be less liable than acts imposed my law? What are some examples of the different kinds of acts here?

    • P’villain says:

      This principle isn’t confined to criminal law, but separation of powers requires judicial deference when scrutinizing the discretionary acts of another branch of government. Courts will not second-guess the exercise of discretion by an actor in a co-equal branch unless it is arbitrary and capricious-that is, without any substantial evidentiary basis to support it.

      Ministerial duties, by contrast, are those specifically required by law to be performed in a certain fashion if certain circumstances exist. Failure to perform a ministerial act is a violation of black-letter law, not an exercise of judgment (discretion), and thus subject to more robust judicial scrutiny.

      • Scott_in_MI says:

        I can understand this distinction in the civil context, where the question is whether executive-branch actions conform to legislative-branch or Constitutional mandates, but I don’t see why it’s important in the criminal context. Does it matter whether a president who (allegedly) violated criminal law did so in a discretionary or ministerial capacity?

        • earlofhuntingdon says:

          I would like to think it doesn’t matter whether the act is discretionary or ministerial, if the president breaks the law while doing it. But courts are wary of criminalizing political choices of a president. The issue has not come up often – trust Trump to break new ground here – so there isn’t much guidance for the courts to follow. It’s another hole Trump is trying to squeeze through to avoid accountability.

        • Ateanuav_SOCKPUPPET1 says:

          The point is that the take care clause of the US constitution can be thought of as a ministerial act the President *has* to perform: he has to make sure the laws are upheld including the criminal ones. Therefore if he does not do this by himself breaking the law, then the courts have jurisdiction and he can be prosecuted for it.

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      • Badger Robert says:

        That was my understanding. The President doesn’t have to fight a hypothetical war with France. But he does have to use his executive power to defend Congress from a riot like that of 01/06.

      • Bugboy321 says:

        One of the things that burned my biscuit about Trump’s “take care” constitutional obligations was when he dragged his feet on FEC board appointments in the leadup to the 2020 elections. They could not even form a quorum. Now, who do you think would benefit from a dysfunctional FEC? I don’t suppose failure to maintain a functional FEC qualifies as “ministerial duties”, though?

    • earlofhuntingdon says:

      Discretionary acts can be done or not, and if done, they can be executed in a variety of ways, which leaves little room for the judiciary to impose a specific solution on a reluctant executive.

      Ministerial acts are those mandated by law, and which leave little room for discretion. They include issuing a commission, once the prerequisite acts for it are completed, one of the issues in Marbury. But they include a large number of things the executive branch does every day.

      • Molly Pitcher says:

        So a President siccing the IRS on two former FBI agents in retribution for their work would be a discretionary act. Why is that not reviewable by a court ? My remembrance of Marbury is admittedly rusty.

      • Joeff53 says:

        Marbury ultimately held that the Judiciary Act under which he sued violated Article III which is why he lost. The rest is dicta.

    • Dmbeaster says:

      The entire argument is a little weird when you consider that the case involves actions such as fraudulent electoral vote certificates. Those are neither discretionary nor ministerial actions by the executive.

      In the abstract, discretionary choices by the executive in carrying out laws are far less subject to court review, whereas ministerial actions are much more subject to review.

      An example is decisions by the executive about whether or not to prosecute someone for alleged illegal actions. These are for the most part not subject to judicial review. In order to respect the rule of law in exercising prosecutorial discretion, they generally must make sure that discretionary decisions to apply enforcement priorities are uniform and nondiscriminatory.

      Another example was litigation while Obama was president as to the discretionary decision to not deport DACA eligible aliens. Without researching the outcome, there were a number of decisions as to whether this was proper. Was it discretionary or ministerial?

      • earlofhuntingdon says:

        It seemed to be a roundabout way to tie-in precedent and get around Sauer’s absurd arguments – a jurisdictional argument – and a way to avoid, for now, the substance, which is defining the limits of presidential immunity in the context of Trump’s alleged criminal conduct, a more contentious issue.

      • Aisha_SOCKPUPPET2 says:

        The ministerial act in question here that Trump did not do and can thus be prosecuted for *is* the take care clause of the US constitution.

        He did not do his constitutional duty to “take care” that the laws be faithfully executed!

        How did he fail? By allegedly violating those same laws himself.

        It is a bit of a convoluted argument by Henderson, but it is a real pickle for the defense to argue that the President doesn’t have a ministerial duty to “take care” but rather only has a discretionary duty to “take care” that the laws of the country are faithfully executed.

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        • emptywheel says:

          And all the worse for his inaction.

          Honestly my read is she’s just trying to GET jurisdiction but also narrow Chutkan’s ruling. But unless her jurisdiction argument is really compelling, that will be a concurrence, IMO.

          • Dmbeaster says:

            This probable explantation is why judges should not engage in dicta. There is no need in this case to flesh out in theory the full scope of what may or may not be immune. The question is whether the allegations against Trump are covered by immunity.

            Judges like to issue broader opinions on undecided questions even when the broader pronouncements are not relevant to the specific case. It makes sense sometimes for the Supreme Court to do that. Much less so at this level.

    • Chirrut Imwe says:

      Thanks to all who helped clarify this issue. There are some damn smart people on this blog. I appreciate you all.

  6. earlofhuntingdon says:

    I think this nicely addresses Henderson’s concern about whether a flood of cases would be unleashed in deciding against Trump, and reminds her of the elephant she would be letting into the room, were there to be no mechanism to address Trump’s or a successor’s alleged criminality:

    The fact that this investigation did doesn’t reflect that we are going to see a sea change of vindictive tit for tat prosecutions in the future. I think it reflects the fundamentally unprecedented nature of the criminal charges here. Never before has there been allegations that a sitting President has, with private individuals, and using the levers of power, sought to fundamentally subvert the democratic republic and the electoral system. And frankly, if that kind of fact pattern arises again, I think it would be awfully scary if there weren’t some mechanism by which to reach that criminally.

    • Badger Robert says:

      Pearce saw a fastball down the middle of the plate and he hit out of the park. The ex-President has his Bill of Rights protections. That has been enough.

  7. Marc in Denver says:

    I wouldn’t presume to guess what she is thinking, but maybe it’s from discomfort with the official/private act distinction? Anyhow, I’d be hunk the ministerial/discretionary distinction is more part of looking at different kinds of official acts, with Henderson wanting to say that the court can examine ministerial official acts, but not discretionary official acts, because separation of powers? Which again begs the question what if any residual executive privileges and immunities attach to a former president?

    • Aksha_SOCKPUPPET3 says:

      No, the ministerial act in question *is* the “take care” clause of US constitution. He had a duty to perform that and thus it is not discretionary that he himself follow the law.

      [Moderator’s note. Please use the same username and email address each time you comment so that community members get to know you. You have (4) previous comments at this site as “Adam Treat” which complies with the site’s minimum standard of uniqueness and 8-letter minimum. “Aksha” is the third of three different names you have used here today in less than 10 minutes which constitutes sockpuppeting. You will not be permitted to comment if you do not stop changing usernames. /~Rayne]

  8. soundgood2 says:

    The way I understand it, she was saying it is ministerial in that it is his duty as President to see that the laws are upheld which would mean that if he broke the law, he would not be doing his ministerial duty i.e. upholding the law.

    • earlofhuntingdon says:

      It’s a threshold issue. The courts have juggled whether they have authority to review presidential conduct by saying they have jurisdiction to review his execution of ministerial acts, but not discretionary acts. No doubt, the circuit court’s opinion will spell it out more fully.

      • Scott_in_MI says:

        It seems as though this distinction only applies to acts taken within the “outer perimeter” of presidential authority. If Trump’s charged actions on 1/6 are outside that perimeter, which *seems* to be the prevailing judicial opinion in the few venues where it’s been tested, it’s a moot point. (In this context, anyway; it’s important for defining the scope of putative presidential immunity more generally.)

        • earlofhuntingdon says:

          Trump argues, opportunistically, that all his conduct was within the outer perimeter of his presidential duties. He’s not arguing in good faith about where that limit is or for a rational basis for determining it. He’s grasping for immunity. But the argument alone forces the courts to deal with this as constitutional issue, which takes more time.

  9. SteveBev says:

    Thanks for transcribing and analysing what may be a key set of issues in the hearing.

    it strikes me that getting and keeping Henderson onside was important goal.

    But one concern I have is the line drawing exercise that each of the judges questioned in their own way, with Henderson’s concern that official acts can be sub-divided into discretionary and ministerial acts, adding a level of complexity ( indeed obscurity) to the matters.

    However, if the court stands back and considers that the charges are conspiracies, and the vast bulk of the overt acts are conduct outside official acts, and otherwise lawful conduct may be charged in conspiracies, then the problem of line drawing disappears. Trump is still able to argue at trial that his conduct was ‘innocent’/‘justified’ but not immunised.

    Further Pan’s points arising from pushing Sauer to the logical conclusion of his Impeachment Judgment Clause argument are quite powerful:
    1 if a prosecution can arise after impeachment conviction in the senate, then such prosecution could encompass official acts so there is no immunity for such acts
    2 (the corollary) if there is an absolute immunity, then there would be no need for the impeachment judgement clause framed in the way it is.

    • emptywheel says:

      Judge Childs had some of that at the end, but wasn’t as incisive with her questioning as Pan’s ever dagger-like questioning.

      • SteveBev says:

        Yes, Pan was particularly incisive.

        BTW thanks to the discussion up thread, and your contributions to it I think I better understand the issue Henderson was getting to with her discussion of Marbury and the ministerial/ discretionary distinction, which I now see that I probably misunderstood in my post to which you have replied.

        “ he shall take Care that the Laws be faithfully executed,”

        Read as a mandate to not break the criminal law it is ministerial.

        And not only is it a mandate to not break the law, it encompasses a duty to act with command responsibility to ensure subordinates do not break the law, and furthermore not to turn a blind eye but to respond appropriately when his political supporters engage in lawbreaking ostensibly on his behalf

        So the acts and conduct in the indictment set out multiple breaches of at least two constitutional imperatives, namely
        1The vesting clause
        2 The take care clause

    • John Paul Jones says:

      The discussion on the Lawfare podcast came around, at close to the end of their discussion, to precisely this view. I must admit, it took me a while to wrap my head around discretionary vs ministerial, but the latter view – your 1 plus 2 – strikes me as a good way to avoid even having to deal with the jurisdictional issue.

      • SteveBev says:

        I’m not sure those arguments reach the jurisdictional issue except by a process of reasoning such as this:

        1 the jurisdictional issue arises from considering whether the posited immunity has an express constitutional (or statutory basis)

        2 the merits argument for the immunity, also involve consideration of the constitutional basis express stated (or necessarily implied) by the constitution

        3 the conclusion of the inquiry at 2 is that there is no such basis, and no absolute criminal immunity

        4 therefore it is unsurprising there is no route via the constitution or statute on which to base a challenge to a determination refusing to recognise the claimed immunity.

        5 it was appropriate in this case to consider this matter of first impression, on the basis of hypothetical jurisdiction, because the merits and jurisdictional questions are ultimately shown to be two sides of the same coin.

        I dare say there are sound objections to this approach

  10. rattlemullet says:

    The delegate vote count by congress is required by the constitution so all the counts the former president is charged with would fall under ministerial acts. I am correct making that statement? It does not involve the executive branch other than the vice president overseeing the count so the presidents sole duty would be to make sure the count takes place uninterrupted.

    An off topic comment, I notice bmaz has not commented since last year. I miss his insightful articulation of constitutional law. I trust he is well and healthy.

    • greenbird says:

      TWITTER search “bmaz” (the search field below the browser search field) returns the link for the bmaz home/profile, which is helpful to open in its own/separate tab.

    • Shadowalker says:

      It goes even further than that when you consider even the ministerial role (if he even had one) was over after the 60+ court cases had been before the courts and dealt with (both state and federal including SCOTUS), all before the safe harbor date set by congress. The Constitution places judgement for disputes firmly in the courts, as well as giving Congress the right to determine the time of the Federal election for President. So not only was he stomping all over the constitutional role of the courts, he was stomping all over Congress’ constitutional role.

      I too miss bmaz.

    • Ginevra diBenci says:

      I miss bmaz too!

      As I noted a few days ago, I posted a mistaken comment I had to retract myself due to his absence. He would surely have shot me down were he here. I hate keeping myself from getting sloppy in the head…Come back, dear bmaz!

  11. Vinniegambone says:

    Surprised no one made the point that an impeachment trial in the Senate is not a trial before an impartial jury of one’s peers, in fact it is the opposite. For it to be double Jeopardy, he would need to have been first tried in front of a real jury, and by the established rules of procedure. The senate can not substitute for a jury.

    Furthermore, in this case, the Senate Impeachment case, may have been in front of some people who were co defendants, or who were sympathetic if not out right encouraging of him breaking the law to hold onto power.The senate is not an impartial Jury.

    In Trump’s hyper narcissistic world view, every decisions or acts he makes are the right ones, and therefore what is best for the country. It is worse than him thinking he is King, infallible, he thinks he is a god, and it is a sacrilege for any mere mortal to question him or disobey.

    there is no double jeopardy if you haven’t been first tried in a court of law.

    Lastly, peacefully turning over the reins power is the last ministerial act a president makes, and in Trump’s case he was not only not doing that, he was taking care ( committing crimes) to not perform his duty to transfer power to the duly elected new president. You don’t get immunity for conspiring to invalidate the results of an election, especially by invoking chaos, and violence to secure power.

    • SteveBev says:

      My understanding of the hearing was that Trump’s lawyers have abandoned the double jeopardy argument.

      Instead they leaned into the ‘Impeachment Judgement Clause creating a condition precedent for prosecution’ argument, as a basis for absolute immunity claim.

      Judge Pan in particular took it upon herself to take that argument apart. In doing so she referred at one point, to an argument that Trumps lawyers had made in their briefs as part of the double jeopardy argument- viz that the acts and conduct charged in the indictment were the same or substantially the same as the conduct charged in the Article of Impeachment – to reinforce her point that Impeachment can and did encompass conduct which Trump claims is official conduct.

      Utimately Pan forced Sauer to concede that the logic of his position was that the Impeachment Judgement Clause itself is inconsistent with there being a wholesale absolute immunity for official acts.

    • Shadowalker says:

      Article III Section 2
      “ The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury;”

      The Constitution goes further distinguishing the difference in Article II Section 2
      “ and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment”

      So while the two processes may be similar, that does not mean they are even linked. Besides, there have been cases where the official was impeached and removed by the Senate after criminal conviction and serving sentence in a federal penitentiary.

      They are two entirely different processes to deal with two different punishments though the crime may be the same,

      • HikaakiH says:

        I like that you mentioned that there have been cases where judicial conviction preceded impeachment. The argument that impeachment and conviction by the Senate is a necessary precondition to judicial accountability for Presidents places the judgment of the legislature on a higher level than that of the judiciary, which should add [a non-legal reason] to the list of [legal] reasons it should be a loser when considered by precedent setting federal courts.

        • earlofhuntingdon says:

          It’s also a legal argument over the constitutional separation of powers. The impeachment clause deals with a civil disciplinary process the legislature can exercise over executive and judicial branch office holders, where the consequences are limited to removal from office and a prohibition on holding future office.

          The executive branch controls the criminal justice system, while the judicial branch controls the process through which it is administered. Trump is willing to drop anything onto its head to serve his personal needs; governance is irrelevant, unless it gets in his way.

    • Ginevra diBenci says:

      Double jeopardy is so 2023.

      Seriously, it’s hard to keep up, the way this team keeps switching out arguments.

  12. Savage Librarian says:

    The discretionary vs ministerial argument strikes a chord with me in a way that shines a light on something that happened in my own personal challenges that I didn’t entirely understand at the time. In a phone conversation with an administrator, I was told I could exercise discretion with respect to the white supremacist/militia members who were harassing staff and the public. By that, the administrator meant I could ignore their behavior.

    Since I was offered the opportunity to exercise discretion, I said that I wanted to use that discretion to enforce existing library rules, city ordinances, and state and federal laws which prohibited the behavior we were experiencing. I expressed my concerns, through chain of command, to the highest city authority. I expressed concern that ignoring unlawful behavior could subject the city to intentional torts (or worse.)

    My reaction incurred the wrath of various administrators and I was subsequently suspended, then demoted for persisting in my point of view. I was vindicated by the U. S Department of Education which made the city rethink their position and train the entire staff (300+). However, I lost my case in federal court to regain my previous job. But I did regain it several days later when the city settled.

    All of this is to say, the city failed in its ministerial obligations by pretending it was a discretionary issue. But they paid a price for that. And they made me pay a severe price for that, too. It shouldn’t have to be that way. Whether local or federal, public officials should be held accountable for not adhering to their ministerial duties.

        • Peterr says:

          The fact that after you “expressed concern,” various administrators freaked out suggests that yes, it probably *was* something you said.

          Which no doubt needed saying, given that you were discussing harassment by white supremacists/militia members.

        • NerdyCanuck says:

          “username checks out” is a joke people say on Reddit when the comment someone makes matches thier username in a funny way.

          https://knowyourmeme.com/memes/username-checks-out

          In this case, it’s clearly a compliment – it takes an incredible amount of courage to act the way you did, and to not subsequently back down, to protect your library and the public from white supremacists/militia harassment!

          • NerdyCanuck says:

            P.s. it occurs the me that maybe that is too obvious to explain? and that maybe you totally know that and didn’t respond that way because of confusion about the phrase, but on some other level that I just missed understanding somehow… I know you’re a very smart & witty writer! if so, sorry for being captain obvious over here! *facepalm*

            • fatvegan000 says:

              I thought “username checks out” meant the comment made didn’t sound like one SL usually makes (like maybe SL was being impersonated) and I was confused. So I thank you for the explanation.

      • boatgeek says:

        Speaking as someone married to a third-generation librarian, you DO NOT want to get on the wrong side of a librarian. If you’re lucky, you’ll escape with nothing injured but your pride.

    • Ginevra diBenci says:

      SL, I just hope they forked over your back pay in that settlement. My own case merely involved violations of our union contract, which I knew verbatim from having to grieve my way to tenure/promotion.

      The same folks (they never learn) were raring to breach it again to get rid of a junior colleague; I was the department evaluation committee member tasked with writing the (illegal) letter for her file. When I refused, citing the clear conflict with contract language, one of my professorial colleagues got so angry he almost punched me. (Others restrained him.)

      After I got sick I fought to hang on to my job, but couldn’t save hers. She left and did wonderfully elsewhere–where her new colleagues weren’t as threatened by her superior credentials. I got sicker and–eventually–pushed out in violation of ADA. But after many battles, and confronting a Parkinson’s diagnosis and a brain tumor, I couldn’t fight my old school anymore.

      I love your stories, SL. Through them I experience vicariously what I wish I could have achieved. Thank you.

  13. earlofhuntingdon says:

    You might be surprised to learn that similar points have been made, in multiple posts, about this topic. The fundamental issue, as you imply, is that a Senate trial on impeachment is a civil, not criminal process, and involves civil, not criminal liability, which preclude the application of double jeopardy. Trump’s lawyers are grasping at wet straws, but that’s the nature of being an attorney for Donald Trump.

    • MattyGMattyG says:

      Doesn’t this imply that the Impeachment clause is (just) a remedy for the removal of a president for non-criminal cause, meaning the president is just as liable to criminal charge (while in office) as any other citizen?

      In my naivite that’s how I always interpreted the Constitution.

      • Rayne says:

        The OLC memo which restrains DOJ from indicting a seated president is an opinion — it’s not law.

        • John Paul Jones says:

          I don’t have it to hand (my files are like my life; not well organized), but my recollection is that at least one judge in this long-running drama wrote in their opinion that the actual basis for those OLC opinions was thin to non-existent, and they didn’t consider them binding. So at least among some members of the judiciary, there is a healthy skepticism about the notion that a sitting President may not be charged.

  14. CitizenSane says:

    I thought the judges did a good job of peppering Trump’s lawyer with questions to show how ridiculous this absolute immunity argument is. But I also thought they could’ve done better.

    “Opening of floodgates” you say? Trump’s lawyers argue floodgates would be opened to prosecute former presidents and political rivals. Referring back to the post-Nixon times is all good and well, but I was surprised none of the judges brought up the hypothetical of what floodgates would be opened if a president DOES have absolute immunity.

    If Trump gets what he wants here, absolute immunity, then Biden has it also! Biden could be on the phone with Seal Team Six too, then. Biden can pressure the states to find votes. Biden can submit his own slate of electors. Biden, if alleged criminal actions as president require impeachment from Congress, could have Congress shut down or arrested before impeachment proceedings.

    Go ahead. Give the president absolute immunity then! The floodgates will be opened for Biden!

    I cannot believe this is even an argument between our courts and professional attorneys.

    [Welcome back to emptywheel. Please use the same username and email address each time you comment so that community members get to know you. You last commented as “CitizenSane77” which is not the username you used on this comment. Please pick one of these two usernames and stick with it. Thanks. /~Rayne]

    • CitizenSane77 says:

      Sorry. My mistake.

      [Thank you for your cooperation. We’re experiencing higher than usual number of problems with identity management, please bear with us. /~Rayne]

      • Bombay Troubadour says:

        There should be a law against that. And we shouldn’t need several layers of courts to enact it.

    • HikaakiH says:

      I know the argument about absolute immunity giving Pres Biden free rein to reign, rather than preside, over the US might bring MAGA enthusiasts to break out in a sweat, but enough of them in their hearts know that Joe isn’t going to do anything as crazy as assassinating GOP candidates. Surely the hypothetical to bring it home to them would be for Pres Biden to step aside (even if temporarily), handing the absolute immunity of presidential authority to VP Kamala Harris. We know that this would absolutely freak them out and why. And while we are dealing in hypotheticals, if a President ‘needs’ some presidential-level criming done and doesn’t think an auto-pardon would work, what is to stop them handing the baton of authority to their VP to get the criminal work done, then re-assuming office and handing off an unassailable pardon to the VP? Both would still be subject to impeachment, but would they have successfully side-stepped judicial accountability?

      • P’villain says:

        OT, but thank you for demonstrating the correct usage of “free rein” and “reign.” If only there were more of you.

    • nord dakota says:

      ‘“Opening of floodgates” you say? Trump’s lawyers argue floodgates would be opened to prosecute former presidents and political rivals. Referring back to the post-Nixon times is all good and well, but I was surprised none of the judges brought up the hypothetical of what floodgates would be opened if a president DOES have absolute immunity.’

      Like, say, having federal marshals round up people of particular religion/race/ethnicity/gender identity and imprisoning them?

  15. Amicus12 says:

    Having listened to the argument, it’s not at all clear what the result will be.

    Maybe I am missing something but Henderson’s ministerial versus discretionary distinction seems misguided to say the least. The overwhelming majority of conduct at issue in the indictment is private as opposed to official conduct. There are no ministerial duties that govern the President’s private conduct.

    And it seems bizarre to contend that the Executive’s duty to take care the laws be faithfully executed imparts an official duty to not violate criminal laws. The Constitutional directive mandates the requisite executive action to enforce federal law. It is an affirmative obligation and not a prohibitive one. The duty to not violate criminal law arises from the enactment of the law and not from the Take Care clause.

    I fear that Smith & Co. have proposed a somewhat challenging line of decision: affirm Judge Chutkan’s determination that the President enjoys no absolute immunity for criminal prosecution but acknowledge that there may be conduct for which he does (or to which the law does not apply because of Presidential authority in say matters of national security). That’s not the easiest decision to write and it just begs for Supreme Court review.

    • earlofhuntingdon says:

      I suppose enacting a criminal law would lead to an individual responsibility not to violate it. The Take Care clause would lead to an official duty not to violate it, but to enforce it, which would entail additional responsibilities. But it’s a distinction that seems to have become necessary only after Trump’s alleged criminality came to light.

      The challenging decision seems to lie with the court, irrespective of Smith’s arguments.

    • brucefan says:

      “That’s not the easiest decision to write and it just begs for Supreme Court review.”

      Easy peasy. No absolute immunity as requested in the motion to dismiss. If defendant can make the case that individual actions should be immune based on the narrow, theoretical option alluded to by Pearce, let him do so at trial.

      The Supreme Court has had a bellyful of trying to make major decisions with a flimsy, undeveloped record (see mifepristone). They’ll be happy to let this play out.

      • Amicus12 says:

        So, the Clements school of argument. “This is the rule of law your honor, so my client wins.

        What are the exceptions or limiting principles?

        I’m not prepared to say, but whatever they are, this falls outside.”

        Stated otherwise, all swans are white, albeit we may one day find one that is not.

        I don’t disagree that the panel could write this decision. (Although Henderson would likely concur or dissent.)

        And I don’t disagree that there are Justices who would be happy to deny cert.

        But are there 6 Justices who would deny cert if this was the D.C. Circuit’s decision? In the fullness of time, all will be revealed.

    • boatgeek says:

      I agree with brucefan on this one, though with a slightly different direction. Presidents (and other government officials) should have criminal immunity for actions taken within the scope of their official duties. Since inciting an insurrection* is not part of any government official’s duties, Trump doesn’t have immunity for that action. I think that is a fairly straightforward decision to write, and it would get past a bunch of the “floodgates” business since it would clearly exclude BS stuff like not adequately securing the border, etc.

      Whether any particular action is within the scope of the president’s duties can be decided at trial and (likely) on appeal.

      * Various CIA officials would like to remind us that this only applies to inciting an insurrection in the US. [/gallows humor]

      • earlofhuntingdon says:

        It’s not gallows humor, but a big practical problem, and I think that opinion would be bloody hard to write. It would probably also require the trial court to determine more facts than are now in the record, and would invite more disclosure about what govts really do than any of them would be interested in having. (“Who’s being naive, Kay?”)

        For one thing, there’s explaining the contradiction in having the nominal enforcer of the rule of law immunized against explicit criminal conduct, which also invites more of it.

        • Rugger_9 says:

          I’ve posited a similar question before about how any opinion could be crafted that at the very least doesn’t run foul of the Declaration of Independence and the well-known opinions of the Founding Fathers regarding unaccountable kings.

          After all, Alito reached back centuries to justify Dobbs, and FWIW the Magna Carta might also have something to say about immunity in a sense.

          • earlofhuntingdon says:

            Neither the Declaration, the opinions of the Founding Fathers (and mothers) not incorporated into the Constitution, nor the Magna Carta are sources of law in the US. They are, at best, persuasive arguments. Running afoul of them is not a legal problem; in fact, citing them in an opinion would be an admission the law is not on your side.

        • boatgeek says:

          And that’s why I’m an engineer and not a lawyer! Thanks for knocking back my hubris.

          Though my engineer uncles said at one point that what I did (being the regulatory expert, among other things) sounded a lot more like lawyering than engineering.

        • HikaakiH says:

          For one thing, there’s explaining the contradiction in having the nominal enforcer of the rule of law immunized against explicit criminal conduct, which also invites more of it.

          I’ve always struggled with the precept that law enforcers require some version of ‘absolute immunity’ to do their jobs effectively. Time and again, cases arise where police or prosecutorial misconduct put innocent people in prison for crimes that they could not have committed according to evidence within the control of the police or prosecution at the time of their trial.
          To my mind, such conduct causing false imprisonment should be subject to prosecution, not immunized. An innocent oversight or inadvertent misjudgment could be defended, but when there is evidence of affirmative steps to withhold/hide exculpatory evidence, surely some accountability for false imprisonment is necessary. How does it serve justice to protect law enforcers who deliberately abuse their powers to the detriment of innocent citizens, and it must also be noted to the benefit of the criminals who they thereby choose not to pursue? “Quis custodiet ipsos custodes?” indeed.

          • RipNoLonger says:

            I agree that all persons that fall within the law of the land should have those laws applied equally. I’m sure many can cite why this can’t happen – especially bmaz.

            I have only heard the argument that if you don’t give officials and LEO immunity (qualified), you can’t attract many into this line of work.

            This seems to lead to the analysis that certain people that might tend to run afoul of laws would gravitate towards jobs that give them extra-ordinary powers and freedom from liabilities.

    • Ginevra diBenci says:

      This has been my problem with Henderson’s ministerial/discretionary formulation. Trump has previously represented himself as acting in his “private” capacity as an office-seeker; could he revert to his as a legal safe haven should Henderson’s (hazy) rubric be concretized?

      • Rayne says:

        If Trump was acting in either ministerial or discretionary fashion with regard to “protecting” Georgians’ votes (using this state as an example), why did Trump not lean on the executive functions which protect voters’ rights? Why didn’t he go to Bill Barr and demand Barr dispatch a full complement of DOJ Civil Rights and Voting Rights personnel to Georgia to investigate the situation?

        Why did he avoid using the executive functions which have been established for the purposes of ensuring equal protection wrt voting?

        I really don’t think Henderson can get around this, nor can Trump explain how he and his *campaign* tried to protect Georgia voters by harassing the fuck out of election workers.

        • Ginevra diBenci says:

          And why did he only care about the particular handful of states which, if overturned, would have handed him victory? Trump did not, for example, pursue the known example of voter fraud in NC that benefited a Republican House candidate. Nor did he seem the least concerned with any down-ballot repercussions of his zealotry in the places he pursued his quest.

    • Rayne says:

      I think I’ll pass. I don’t want to waste good alcohol and popcorn on an increasingly rickety campaign kayfabe routine trying to solicit more grift and incite more violence.

      But call me if Seal Team Six shows up on the scene, eh?

      • Molly Pitcher says:

        HA !!!!

        I’m sure if Trump actually goes thru with it, Judge Engoron would appreciate a little liquid forbearance.

          • earlofhuntingdon says:

            A less compromising variation on Dr. Venkman’s suggestion for taming the Stay Puft Marshmallow Man:

            “We’ve been going about this all wrong. This ST6 is okay! They’re sailors, they’re in New York; we get them some booze and party favors, we won’t have any trouble!”

      • HikaakiH says:

        I know it’s not as striking a hypothetical as an assassination by a SEAL team, but I think there would be broad public support for a Presidential order to the US Secret Service to take Mr Trump to an undisclosed location and keep him safe and away from all forms of social media for a decade or so.

    • timbozone says:

      It’s nonsense designed to keep the attention on Trump during an election cycle. The chance that he’ll risk incriminating himself further during closing arguments is nil IMO. But kudos to whomever keeps him amped up to do so. So far though, in his illustrious career as “a victim” of “haters, socialists, and woke liberals” the dangerous clown has never yet deigned to provide a closing argument at trial.

      • Ginevra diBenci says:

        And in court, to keep Trump’s attention, if reports from the site are accurate. It seems he hardly looked up except when Sauer referred to his poll numbers.

    • Bobby Gladd says:

      Is that yet another #NielsenMandela ploy? I am now a lawyer, but I have NEVER heard of a defendant delivering a closing argument. So, when the judge disallows that antic, Trump will then deliver the mother of all ALL CAPS rages.

    • Ginevra diBenci says:

      Serious question: Since this is a civil trial and Trump Org. has already been found guilty of fraud, to what extent will this constitute a sentencing hearing as opposed to what we think of as traditional closing arguments?

      I cannot for the life of me think of any other reason Engoron would allow the defendant to deliver a closing, in whole or part, unless it’s being conceived of as the type of mercy plea allowed defendants at sentencing.

        • harpie says:

          This is QUITE the exchange!
          mr kise suddenly starts using capital letters on 1/9 when he informs Judge Engoron that Melania’s mother “who he was very close to” has passed away and he’s asking for an extension until 1/29, which Engoron denies. Then Kise informs the Court that TRUMP will speak even though his MIL has just passed away. Engoron reminds Kise that TRUMP will still be held to the standards previously imposed…and then Kise actually writes: This is very unfair, your Honor”

          I am NOT kidding.

        • earlofhuntingdon says:

          I agree, it’s an excellent e-mail exchange. Engoron was explicit about the limits, and about exactly how he would respond if Trump violated them, including that promised minimum $50,000 fine. He did an excellent job and his decision will easily survive any appeal. The NY AG’s arguments against Trump speaking were spot on, too.

          Trump, on the other hand, tried to testify via closing argument, not allowed by the rules. He was never going to limit himself to the evidence produced at trial or its legal implications. And he would have violated every limit Engoron imposed.

          Trump wanted a press conference he could control and he was shut down. Poor Donald, not used to being treated like a mere mortal, will inevitably use this self-defeat to burnish his victimhood and fundraise. Screw him.

        • harpie says:

          The last email in the exchange [excerpt], 1/10/24 12:12 PM

          Engoron to Kise:

          Dear Mr. Kise,
          Not having heard from you by the third extended deadline (noon today), I assume that Mr. Trump will not agree to the reasonable, lawful limits I have imposed as a precondition to giving a closing statement above and beyond those given by his attorneys, and that, therefore, he will not be speaking in court tomorrow. […]

          • earlofhuntingdon says:

            Hard to believe that Kise, on pages 5-6, shifts from his rejection of what he calls Engoron’s “proposed preconditions and prior restraints,” and starts complaining about the penalties the NY AG asks the court to impose. In an informal, all lower case e-mail, rather than in a motion or brief. Pathetic.

          • SteveBev says:

            It was always going to end this way.

            An entirely manufactured controversy created so Trump can pretend he has ‘fought to the bitter end’ or some such and has been treated ‘so unfairly, by [insert epithets, complaints, whine, moan rinse repeat]’

            • earlofhuntingdon says:

              An odd hill to die on. Closing arguments are where lawyers put their best spin on the facts and law for the judge and jury. Here, Judge Engoron is both.

              But as Rayne suggests, this exchange is another of Trump’s hot messes, and an admission: “OK, we lost already. So FY, strong appeal [sic] to follow.”

              • Rayne says:

                It would have been a DARVO’d campaign speech, intended to boost donations to his campaign grift. “Oh woe is me, look at how the Deep State has stolen my hard work, send me money so I can stop the Deep State from doing more theft from hard working people like me.”

                *eye roll* I wonder how much tax Trump and his father evaded over their lifetimes.

              • SteveBev says:

                And right on cue

                Trump reTruthed a clip of Ingraham discussing the matter with David Schoen on Fox 12 hours ago
                “Another blatant attack on Donald Trump’s constitutional rights blah blah blah… the sooner this gets before the Appeal court blah blah blah … Judge is a clown…”

            • SteveBev says:

              And on the theme of manufactured controversies
              Trump is reTruthing a tweet by
              @ KanekoaTheGreat which purports to show entries from WH visitor logs showing Letitia James went to WH on 3 occasions

              Despite the fact that they appear to be events where 448, 243, 26 guests attended respectively
              MAGAs are placing worst construction on the screen shot of the screen shots of 3 pages
              “Coordination, planning, weaponisation” etc

      • earlofhuntingdon says:

        As Brandi Buchman points out, Judge Engoron imposed reasonable limits on what Trump could say in closing arguments. They are the same limits that apply to his lawyers and prosecutors. He could speak, for example, only about relevant, material facts and to evidence presented at trial, and not raise issues that would require bringing in new evidence.

        Had Trump chosen to testify more fully, he might have been able to address more topics, but they would still have had to have been relevant to the case. But in choosing to speak only on closing, he chose to hem himself in. It was not Engoron’s doing.

        Chris Kise’s opposition to those limits, and his characterization of how they would “belittle” Trump, are entirely without foundation. He knows it. He and co-counsel knew these rules would apply when they asked to allow Trump to speak. Frankly, his lawyers are probably relieved Trump won’t be speaking.

        Trump tried to get one over on Engoron – who knew what he was doing – and who responded, “Not in my court.” Good for him.

        https://lawandcrime.com/high-profile/judge-bars-trump-from-giving-fraud-trial-closing-argument-after-he-refuses-to-stick-to-relevant-issues/

        • Ginevra diBenci says:

          Chris Kise or…John Barron?

          I’d like to think Kise would never write like that. But I think we’re fooling ourselves if we believe Engoron “shut down” Trump’s BS. Trump will now sell this (as in: grift) to his followers as yet one more example of the “weaponized” justice system treating him sooooo unfairly. And those followers will pay.

  16. Ebenezer Scrooge says:

    So Trump’s gonna lose this appeal, based on whatever arguments Pan & Childs (and maybe Henderson) prefer. The outstanding questions: How quickly? Will the court stay its mandate? IOW, is March 4th still in the cards?

    • Myra-Bo-Byra says:

      I’m with you Ebenezer. IANAL but I am a trained American historian. None of this is going to matter if the trial doesn’t start and finish before election day. So, can someone speak to likely time frames? Is there a way for the 3 judge panel to forestall an appeal en banc? How much time will a remand back to Judge Chutkan add? From my section of the bleachers Trump is looking very successful at using the slow pace of justice to his advantage. Experienced Practitioners may see things moving swiftly. But the process seems glacial to me. And the slow pace also allows him more time to prejudice the public and any jury, everywhere. If our justice system can’t bring this guy to justice for crimes we all saw unfold in real time, then to say its broken doesn’t begin to describe it. For all the focus and hand wringing about the MAGA crowd, and how they might respond to this trial, they are still a minority. Time for the legal community and the press to start worrying about regular folks like me, who are starting to wonder why we should obey any law if this is how justice really works.

  17. scroogemcduck says:

    I think Judge Henderson should be more concerned with opening the floodgates for Trump to murder, jail and exile his political opponents, sell pardons, “terminate the Constitution” and be dictator (but just on Day One).

    • earlofhuntingdon says:

      Yeah, a re-elected Trump would pretend its Ground Hog Day, and treat every day as Day One. Fascist leaders, like hedge fund managers, don’t give up power; it has to be kept or taken from them.

    • timbozone says:

      This. At some point, the judiciary branch needs to be come less concerned to causing sand in the workings of government and more concerned about coddling would-be tyrants who happen to have once been President.

      • scroogemcduck says:

        Indeed. The Constitution’s system of checks and balances is, by design, sand in the workings of Government.

        If a President pauses to consider or second-guess whether an illegal or corrupt act may land him in jail, that is in my opinion a very good thing indeed.

        • earlofhuntingdon says:

          It’s the sort of thing that should be a standard procedure; in many instances, other than for Trump, it probably already is. So, not really extra work or concern.

          • Scott_in_MI says:

            And *that*, to me, is the essential response to the “floodgates” question: those gates are already open, at least since Nixon and arguably since the beginning of the Republic, and there has been no flood. The essential difference here is Trump’s conduct, not a change in the presumed immunity of presidents.

    • Brian42lvl says:

      ..maybe not the right thread for this butt,, anyone notice the ‘Pandoras Box’ theme (dog whistle?) was reiterated in court (sauer) One Day after it was the last line in the un-truth social post?,, kinda made my neck hairs stand up. Maybe I’m over thinking, but these clowns are known for making any opportunity to send signals.

  18. harpie says:

    Greg Sargent is NOW a staff writer for The New Republic.
    Here’s a THREAD from today that links to his first article there:

    https://nitter.net/GregTSargent/status/1744770307024453835
    Jan 9, 2024 · 5:17 PM UTC

    Trump is demanding immunity for his 1/6 crimes, arguing they were official acts undertaken in office.

    If courts agree, he’d be totally unshackled in a second term.

    I asked former WH lawyers what he’d be free to do. Their answers were unnerving. 1/ [Link][THREAD]

  19. earlofhuntingdon says:

    Was this the parade of horribles Judge Henderson was worried about? Or the one that AUSA James Pearce warned her about?

    Trump Lawyer Undercuts Trump’s ‘Immunity’ Claim With Bizarre Biden Threat. After a three-judge panel heard arguments about Donald Trump’s presidential immunity defense, Trump lawyer John Lauro bizarrely threatened Biden with prosecution.

    Tellingly, it was John Sauer who argued the case before Henderson and her colleagues. Lauro handled the pitiable “press conference” afterwards. He stuck to canned talking points that didn’t resemble how successful the day’s arguments were.

    https://secondnexus.com/trump-immunity-lawyer-lauro-biden

    • earlofhuntingdon says:

      Lauro is like the hapless horror movie victim, following the standard trope of running down the middle of a road, sandwiched between an avenue of mature trees, while being followed by a massive truck driven by a ghost with an attitude.

    • timbozone says:

      May the fools and fanatics that follow Trump’s progress only through the words of Trump’s mouth-pieces get a clue soon.

  20. SF Al Coda says:

    Floodgates: sure, a corrupt Justice Department could improperly prosecute former Presidents for in-office actions, which is not good. But if they’re out to get former Presidents and are corrupt, there is nothing stopping them from prosecuting them for pre- or post-Presidency actions. You can’t really defang the dangers of a corrupt DOJ.

        • timbozone says:

          Huh? That makes little logical sense either. It is not the former President who has the ability to hound perceived enemies via DOJ.

          Perhaps you are both wording things poorly here. Perhaps you mean “What if a corrupt DOJ run by a corrupt President targets >their< perceived enemy who happens to be an ex-President?"

          To a large extent, that's what Nixon did do, although he went a bit further and targeted McGovern's campaign, Sargent Shriver, etc. It's not new stuff. And Nixon was forced out. So, the system has worked before to correct itself. Assuming the same legal parameters are in place and the country still has the ethical stamina to prevent it from happening as egregiously as it did under the Nixon gang, we should be good.

            • timbozone says:

              Trump got voted out of office. The DOJ and various state prosecutors have indicted Trump and much of his gang. Some have already plead out. Some have lost the ability to practice law (or are at least suspended pending final outcomes). I grant that things have moved more slowly than they should have, particularly when the violations of the law and oath of office are pretty clear and this egregious. Unfortunately, the outgoing administration cocked up the political and justice system enough to delay an accounting. However, that accounting appears to be occurring.

              I’m not arguing that we should ignore the danger that Trump and his ilk represent though. It’s still very real. But the Constitutional US system of justice has so far continued to grind to what appears to be a result where the rule-of-law will prevail over the insurrectionists.

              • Rayne says:

                We should be making detailed notes of the close calls and make them action items, not simply nod our heads at the system’s continued grinding.

                Imagine how things would be had the vote been closer — had one of the states successfully pulled off fake electors.

                Imagine if Dobbs had not fired up younger voters, women voters in 2022, how much worse both houses of Congress would be right now.

                What would be looking at today?

              • Ginevra diBenci says:

                Wish I shared your confidence. The Warnock/Walker senate vote was too close for my comfort–along with many others. And do you know how many people now get their “news” from FB?

  21. J_06JAN2024_0653h says:

    Thanks again Marcy and et al for the insightful commentary. I understand the Take Care/ministerial argument and maybe I need to reread the charges Smith brought, but aren’t Trump’s actions really about election/campaigning? If campaigning and elections are not presidential duties, why are we even having this debate? all of his actions on 1/6 & big lie were not presidential duties. How could there be any immunity?

    [Welcome to emptywheel. SECOND REQUEST: Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Because your username is far too short and not permitted it will be temporarily changed to match the date/time of your first known comment until you have a new compliant username. Thanks. /~Rayne]

    • P J Evans says:

      The president is NOT required to run for re-election. So “campaign duties” can’t possibly be part of his official duties. (Also, since 22A limits presidents to two terms, it’s also saying that campaigning is not part of WH duties.)

      • nord dakota says:

        I took the previous post to mean that since such activities are not part of official duties he has no immunity, even though he was president at the time.

  22. tienle47 says:

    I thought I heard something Sauer said about TFG’s twitter account during his argument. Did he really say that because TFG’s twitter account was the official government account, anything TFG said on it was an official act? That seems pretty bizarre.

    • earlofhuntingdon says:

      And we used to complain when the CheneyBush administration used private services to evade creating records accessible by the govt. Harrumph.

  23. Badger Robert says:

    Under Sauer’s theory the President does have to make any phone calls to Georgia election officials. He simply arrests enough Georgia state officials until some is installed who gives Trump the vote count he wants.
    Why bother with a Constitution of limited powers if the executive has the suggested inherent power?
    But all that is required is some word salad that makes Trump immune, while claiming that they haven’t created absolute executive immunity.

  24. P’villain says:

    Folks, I just sent some coin Dr. Wheeler’s way and hope you will, too. I spent a lot of time here today because between the posts, live-tweeting, and other comments, it was far and away the best coverage of this crucial hearing. And, for today at least, it was so refreshing that no one had to put up with being told they were “full of shit.” Long may it be so.

    • 0Alexander Platt0 says:

      There were at least a dozen comments in this thread, not to mention the initial article, that found me reaching for an imaginary “like” or “thumbs up” button. I’m throwing some coin in, too.

    • DaveinCA(NAVGL) says:

      Thanks for the reminder. I’ve been lurking for so long that it was about time for me to drop a few coins as well. Thanks to Dr. Wheeler for her insight and persistence, and the moderators who keep the commentariat (mostly) honest. I appreciate you all.

  25. The Old Redneck says:

    Discretionary acts are ones involving judgment about what to do. Ministerial acts are actually performing or carrying out your duties. The classic example in civil law is: you can’t sue the government for deciding not to install a traffic signal at an intersection. But if the traffic signal is there and malfunctions because the government doesn’t maintain it, it can be sued for that.

    The problem is, this framework doesn’t really help us figure out what to do with Trump. Shielding discretionary acts is supposed to protect policy-making. But Trump’s activities weren’t policy-making as anyone understands it. They were way out there, so to speak.

    A few words in defense of Sauer: he’s not a fool. He didn’t get duped into admitting a hypothetical scenario which killed his argument. The problem is that his argument had to be extreme to fit the facts. If he conceded that immunity isn’t absolute, then he’d be conceding too much to protect Trump. Essentially, Trump’s conduct was so egregious that it forced his defense team into an equally egregious argument.

    • earlofhuntingdon says:

      I don’t consider Sauer or Kise to be fools, But it’s hard to square the argument that Sauer knows what he’s doing with his willingness to accept Trump as a client, to stick with him, to follow Trump’s advice when Trump won’t follow his, and to agree to submit and make arguments he knew would fail so that Trump could delay the inevitable and raise money and votes through enhanced victimhood. What’s the upside for him? He strikes me as self-destructive rather than as a zealous advocate for an unpopular client.

      • The Old Redneck says:

        Valid points for sure. Those guys probably have plenty of work. Why sign up for something and someone so cynical?

        • earlofhuntingdon says:

          Woodward and Habba don’t seem to have much beside Trump business, but Sauer and Kise probably do, or did.

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