DC Circuit: Go Big and [in a Footnote] Go Blassingame!

Note: Our discussion of the decision starts after 10 minutes.

During the entire month we’ve been waiting for a DC Circuit ruling on Trump’s immunity claim, I have argued we’d be better off with an opinion for which SCOTUS was likely to deny cert than a decision in which a — say — Judge Karen Henderson concurrence offered surface area for Justices to claw out review.

Before I explain why there’s a good shot that this opinion was worth the wait, let me review how SCOTUS came to uphold a Judge Chutkan opinion chipping away at Trump’s Executive Privilege claims for January 6. In that case, Trump was trying to prevent the Archives from sharing presidential documents with the January 6 Committee; because he was seeking to prevent something, it was actually easier to make appeals go faster. The appeals were resolved in 74 days:

  • On November 9, 2021, Judge Chutkan rejected Trump’s attempt to enjoin the Archives from sharing his papers
  • On November 30, a DC Circuit panel of three Democratic appointees heard his case; on December 9, the Circuit issued an opinion from Patricia Millet upholding Judge Chutkan
  • On January 22, 2022, with only a dissent from Clarence Thomas, SCOTUS upheld the DC Circuit opinion; Justice Kavanaugh noted that, even if a more stringent standard were applied, Trump’s claim would still fail

This appeal has taken 67 days thus far:

  • On December 1, Judge Chutkan, waiting less than 12 hours after the long-delayed issuance of an opinion in Blassingame holding that former Presidents are not immune from lawsuit when in the role of office-seeker, issued her ruling rejecting Trump’s immunity claim
  • A bipartisan panel — Karen Henderson, Florence Pan, and Michelle Childs — heard Trump’s appeal on January 9
  • The panel issued a strong per curiam opinion on February 6

In recent weeks, I had shown where there seemed to be disagreement on that panel, disagreements that are all resolved in the opinion.

Posture

Let’s start with the last one, what I called posture. Judge Henderson had originally not favored an expedited review. This order forces Trump into an expedited appeals process.

The Clerk is directed to withhold issuance of the mandate through February 12, 2024. If, within that period, Appellant notifies the Clerk in writing that he has filed an application with the Supreme Court for a stay of the mandate pending the filing of a petition for a writ of certiorari, the Clerk is directed to withhold issuance of the mandate pending the Supreme Court’s final disposition of the application. The filing of a petition for rehearing or rehearing en banc will not result in any withholding of the mandate, although the grant of rehearing or rehearing en banc would result in a recall of the mandate if the mandate has already issued.

The only way he can stop Judge Chutkan from issuing opinions on the remaining motions to dismiss filed last fall is if he immediately appeals to SCOTUS for a stay pending appeal, which he has already said he’d done. The only way he can get that stay is if five Justices say they think Trump will succeed on the merits and vote to grant the stay.

Steve Vladeck says that SCOTUS has a lot of options, but the two most likely are to deny the stay or to grant an appeal in this term, committing to an opinion by June.

Jurisdiction

At least by my read in the table, the one reason Pan and Childs couldn’t write their own opinion without Henderson was because Childs was much more cautious about whether the Circuit even had jurisdiction.

Nine pages of the opinion treat that question. It adopts two suggestions from Jack Smith’s prosecutor James Pearce. Most notably, it notes that SCOTUS has repeatedly given [former] Presidents get immediate appeals.

Nor was the question presented in Midland Asphalt anything like the one before us. Procedural rules are worlds different from a former President’s asserted immunity from federal criminal liability. The Supreme Court has repeatedly emphasized that the President is sui generis. In the civil context, the Court has held that the denial of the President’s assertion of absolute immunity is immediately appealable “[i]n light of the special solicitude due to claims alleging a threatened breach of essential Presidential prerogatives under the separation of powers.” Fitzgerald, 457 U.S. at 743. And in United States v. Nixon, the Court waived the typical requirement that the President risk contempt before appealing because it would be “unseemly” to require the President to do so “merely to trigger the procedural mechanism for review of the ruling.” 418 U.S. 683, 691–92 (1974). It would be equally “unseemly” for us to require that former President Trump first be tried in order to secure review of his immunity claim after final judgment.

Trump did not contest jurisdiction here, so it’s unlikely to be something that SCOTUS pursues (and if they did, then it would get bumped back to Chutkan for trial).

Go Big and [in a Footnote] Go Blassingame

Finally, I noted that Judge Henderson seemed to have concerns about the scope of their decision — what she described “floodgates” of follow-on charges. She at least considered the wisdom of limiting this opinion to a former President’s unofficial acts — in this case, defined as those of an office-seeker under Blassingame.

Rather than going Blassingame, though, the panel’s top line holding went Big.

The operative language in this opinion rejects the notion of Presidential immunity categorically as a violation of separation of powers.

At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches. Presidential immunity against federal indictment would mean that, as to the President, the Congress could not legislate, the Executive could not prosecute and the Judiciary could not review. We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter. Careful evaluation of these concerns leads us to conclude that there is no functional justification for immunizing former Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment. In so holding, we act, “not in derogation of the separation of powers, but to maintain their proper balance.” See Fitzgerald, 457 U.S. at 754. [my emphasis]

Even in that sweeping language, though, the opinion addresses the question of presidential immunity generally and specifically, as to the charges in the indictment.

The import of this move in resolving any disagreement on the panel is more clear elsewhere.

Perhaps most importantly, footnote 14, does something that Judge Chutkan also did. It said that because they reject the notion of categorical immunity, they don’t have to review whether the alleged crimes are official acts.

14 Because we conclude that former President Trump is not entitled to categorical immunity from criminal liability for assertedly “official” acts, it is unnecessary to explore whether executive immunity, if it applied here, would encompass his expansive definition of “official acts.” Nevertheless, we observe that his position appears to conflict with our recent decision in Blassingame, 87 F.4th at 1. According to the former President, any actions he took in his role as President should be considered “official,” including all the conduct alleged in the Indictment. Appellant’s Br. 41–42. But in Blassingame, taking the plaintiff’s allegations as true, we held that a President’s “actions constituting re-election campaign activity” are not “official” and can form the basis for civil liability. 87 F.4th at 17. In other words, if a President who is running for re-election acts “as office-seeker, not office-holder,” he is not immune even from civil suits. Id. at 4 (emphasis in original). Because the President has no official role in the certification of the Electoral College vote, much of the misconduct alleged in the Indictment reasonably can be viewed as that of an office-seeker — including allegedly organizing alternative slates of electors and attempting to pressure the Vice President and Members of the Congress to accept those electors in the certification proceeding. It is thus doubtful that “all five types of conduct alleged in the indictment constitute official acts.” Appellant’s Br. 42. [my empahsis]

But they say if they did have to review whether the indictment charged Trump for official acts, the fact that so many of the alleged acts in the indictment pertain to Trump’s role as an office-seeker, and because Presidents have no role in election certifications, the indictment would survive that more particular review anyway.

This is the kind of out that Justice Kavanaugh took on a related issue, whether the interests of Congress in reviewing an attack on the election certification preempted any Executive Privilege claims.

That is, both the District and Circuit have already said that, if they were asked to consider whether this indictment withstands an immunity claim, it substantially would.

I have no idea what SCOTUS will do. But by producing a unanimous opinion with little surface area for Justices to grab hold, Judges Henderson, Pan, and Childs may have ended up producing the most expeditious result.

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168 replies
  1. Adam Treat says:

    So 20 days or June as you said in the other thread. That seems to be the big takeaway.

    What about the possibility that they take it up and decide they don’t have jurisdiction until after conviction? Will we be back at this again possibly *after* the election? I’d put chances of that at less than a percent though still not zero. You?

    This would be the most spineless thing they could do. It would allow them an out in case he is convicted but is still elected. Then they take it up again after the election and nullify the conviction by relying upon some weak ass double jeopardy ruling. They get to keep their jobs and are not executed for treason on Trump’s orders.

    • emptywheel says:

      Even if Trump is tried and convicted on three cases by November, he still has his appeals.

      Trump still needs to be defeated politically. There’s not, and never was, any getting around that.

      • Adam Treat says:

        Well stated and succinct. The only quibble is if the supreme’s decide to use article 3, but that is of course only a complete fools chance. The only reason I bring it up at all – probably less than 0.005 percent chance – is because of all the news lately about Supreme Court nullification. All the right wing is happily telling all media outlets that they don’t feel bothered at all about just plain old ignoring what the Supreme Court has to say. I can’t imagine that is making Roberts and a few other right wing justices feel happy and stable. They have a chance to make themselves relevant, but it is their choice to make. Doubt they have the guts.

        • grizebard says:

          Well, that piles presumption upon presumption. I would have thought the simpler view is that no SC (even the current one) is going to assist in its own future irrelevance. In threatening it, the blustering right have finally gone too far.

          • Max404Droid says:

            Do not ever believe the “blustering right” has gone too far. Many Germans felt that way. And then it became a race to go far enough to please the leader.

            The cowardice of most republican members of Congress, in the face of Trump’s potential wrath, is instructive. If they cower before him when he has no official power, imagine how they will shiver when he is once again in power.

            In the words of Diemut Majer,

            There were essentially three principles that were held to be axiomatic for the entire field of administration as well as the judiciary: the principle of absolute rule by a leader (the Führer principle), the principle of the authority of the Party over the state, and the influence of race as the fundamental principle guiding affairs of state (‘racial inequality’)*.

            This is quoted by Justice Richard D. Fybel who wrote further:

            The courts, judges, lawyers, and legal theorists all joined in the Nazi plan and implemented it with vigor. In August 1934, German judges began taking an oath to follow Hitler, not the country’s constitution. All state officials, including judges, previously took the following oath: “I swear loyalty to the Constitution, obedience to the law, and conscientious fulfillment of the duties of my office, so help me God.” The new version provided: “I swear loyalty to the Führer of the German Reich and people, Adolf Hitler, obedience to the law, and conscientious fulfillment of the duties of my office, so help me God.”**

            The new oath was in place slightly more than one year after Hitler took power.

            *Diemut Majer, “Non-Germans” Under the Third Reich: The Nazi Judicial and Administrative System in Germany and Occupied Eastern Europe, With Special Regard to Occupied Poland, 1939-1945

            **”Judges, Lawyers, Legal Theorists, and the Law in Nazi Germany (1933–1938); Kristallnacht; and My Parents’ Escapes from the Nazis”, Richard Fybel, UCLA Law Review, September 10, 2022.

            • grizebard says:

              You do have a point about Congress – sadly – but I was referring specifically to the SC. The jury’s still out on that (to coin a phrase).

      • Adam Treat says:

        Roberts and a few right leaning justices don’t strike me as unintelligent. Surely they can read the leafs and know that a second Trump administration is going to *demand* outright fealty in all rulings the court might make. Trump is not going to settle for anything less than absolute surrender from a future Supreme Court in his second term.

        Surely, they are intelligent enough to realize this. The problem then is whether they feel they can risk trying to stop it by invoking article 3 and saving their own skins. I doubt they have the survival instincts or the courage to do it.

        • earlofhuntingdon says:

          Intelligence doesn’t enter into it. Politics does, including what they think of the politics of the only alternative to Trump.

          There are any number of ways the S.Ct. could pursue justice, if that were the majority’s aim rather than supporting Trump. They include taking or not taking cert., writing critical opinions, dealing with Trump and related matters on an expedited basis.

      • John Herbison says:

        In the event of a federal criminal conviction, detention pending appeal is the rule, and release is the exception, requiring a set of specific findings by the trial court. 18 U.S.C. § 3143. It is no sure thing that Judge Chutkan would order Donald Trump’s release pending appeal.

  2. gruntfuttock says:

    ‘We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter.’

    That.

    Otherwise it’s not a democracy, it’s Trump’s l’etat c’est l’orange.

  3. vigetnovus says:

    Hasn’t the DC circuit already established jurisdiction? Neither SC Smith nor Trump is contesting that. I doubt SCOTUS would re-review that.

    The problem, as I pointed out in the other thread, is that this will essentially give Kavanaugh an out for a stay, because even if he thinks cert is not warranted, he will probably say that he *had* to vote for a stay because of the interlocutory nature of the case.

    And there’s not a guarantee the court will decide to hear the case this term. Which means no trial before the election. I hope I’m wrong on all this.

    • timbozone says:

      You’re likely wrong. There’s no rational reason for the majority on the Supreme Court to waste their time further on much of this.

      • P’villain says:

        I’m not going to lose sleep worrying that SCOTUS will accept cert and then dink around. If that happens, then it’s already too late to right this ship.

          • P’villain says:

            I’m sorry I was not clear. I have no expectation whatsoever that the Supreme Court would accept cert for the sole purpose of delay. That’s why I’m not going to lose sleep over that possibility.

            But if, to my astonishment, it turned out that that is the Supreme Court we actually have, then no electoral repudiation of Trump will be sufficient to safeguard our Constitutional government. No?

            Still gonna do what little a Californian can, either way.

            • timbozone says:

              I guess I’m just tired of folks staying in fatalistic histrionic tizzies over minutae when it comes to these cases, rulings, etc. Obviously, an aggregate of failures will be required in the Federal Constitutional system for it to ever disappear. Anxiety often runs high each time there’s another drip of the Federal system seemingly failing some more. But, and this is the key, Kavanaugh granting a stay here would not be the final straw by any means. Or, to put it another way, whatever Kavanaugh does or doesn’t do here is not a good reason to give up on trying to right the ship.

  4. Adam Treat says:

    Who here thinks that if McConnell had to do it all over that he would still vote not to convict Trump in his second impeachment? I for one think that McConnell would do convict in a heartbeat and that he would have been successful in convincing enough to convict knowing what we know now.

    They simply didn’t have the intelligence or imagination to believe that Trump could make this political comeback. The future was too remote for them to imagine this. They thought surely *something* would derail him before this or that the facts of the insurrection itself would derail him.

    As we know now, that isn’t the case. However, the current Supreme Court is fairly intelligent. They have to be taking note of all the talk in the media about ignoring their rulings in the future. They have to be intelligent to note – at least a majority to note – that if they do not find him unqualified through article 3 they stand a very good chance of a showdown in the future where a second term President Trump demands absolute fealty to him in all rulings. That he will simply ignore their rulings in the future. That this will be very very dangerous for them.

    Donald Trump and his acolytes are doing all they can to telegraph this for the future: completely ignoring Supreme Court rulings in the aftermath of a ruling Trump doesn’t like in a second term. They are setting this up right now as we speak with Vance and Roy and others giving lip service to this very thing. Make no mistake; a second Trump term will be a death knell for the Supreme Court if it ever chooses to issue a ruling he doesn’t like or he regards as a challenge to him.

    This is the only reason I hold out any hope at all that Trump is overplaying his hand and this Supreme Court – not out of principle at all – might check him with article 3. Based only on self-interest and self preservation instincts they *might* decide to act. Still a huge leap to convince me they will actually do it. I think they don’t have the courage – the right wing justices here I mean – and are likely to fold and appease the master to try and save their own skins.

    But thinking about McConnell here and how he would no doubt do things differently does make me wonder…

    • bmaz says:

      Again, who the heck are you, where did you come from, and why?

      The amount of sudden concern trolls on this blog, and their amazing effect, are truly shocking. Congratulations trolls!

      • Adam Treat says:

        Told ya! I’m a dude! That’s ok though, I can understand you’re a prickly one that takes a while to warm up to newcomers. Well, not technically a newcomer. More like long time lurker. No doubt we’ll be fast friends in no time :)

        • bmaz says:

          You are an interloping jackass. One that would have been identified as such until recently. You are not a “dude”, but rather a jackass.

          • Adam Treat says:

            Ah… see you’re already coming up with nice terms of endearment for me. ‘Jackass’ *blush* now I **know** you love me :=D *grin-from-ear-to-ear* I just knew we’d be fast friends :)

            • bmaz says:

              Fuck you, interloper. You are an assclown unworthy of this blog. Apparently you are more privileged than me. But, still, go fuck yourself.

                • bmaz says:

                  I am not back. Malignant interlopers like “Adam Treat” are now more important than I am. Thank you Rayne!

                  • Adam Treat says:

                    Oh dear! Maybe go take a nap big guy! I’d hate to see my new bestie get into trouble with the moderators again for breaking the community rules:

                    “Things frowned upon here include but not limited to: deliberate sockpuppetry, ad hominem attacks on contributors and/or commenters”

                    • earlofhuntingdon says:

                      You seem to think those rules welcome Inflammatory, smarmy irony. That’s probably a mistake.

                    • Adam Treat says:

                      @earlofhuntingdon

                      How do you think a long time lurker should respond to being called a “concerned troll”, an “interloping jackass”, told “Fuck you” and “go fuck yourself” in response after an attempt to inject humor?

                      I honestly have no idea what bmaz is so upset about or where/what he disagrees with me about. All I see is open hostility with no attempt at all to explain what prompted that hostility other than the fact that I’m a long timer lurker who is posting comments.

                      I honestly have no idea who ‘bmaz’ even is. The primary reason I visit this website is for emptywheel’s analysis which I’ve been following off and on since the early 2000s.

                    • bmaz says:

                      Take a “nap” yourself, assclown. I will never be your “bestie”.

                      I guess your horse manicure is the accepted new normal in this blog now.

                      Congratulations.

                    • Adam Treat says:

                      What has you so pissed off bmaz? I understand you recently had a problem with the moderators, but I’m not a moderator nor do I have any idea what that problem was so why all the hostility? What did I say that has you so upset?

                    • Adam Treat says:

                      It was a joke in response to your ad hominem. Is that why you are so upset? Because the community rules include frowing upon ad hominem and you feel the rules shouldn’t apply to you? Sincere question because I honestly have no idea why you are so upset and worked up. I don’t remember ever interacting with you before. Nor do I have any idea what comments I’ve made you find so objectionable.

                    • earlofhuntingdon says:

                      Ignoring comments you disagree with is sometimes the most eloquent response.

                      A long-time lurker would know who bmaz is. They might even have clicked on the “About” button.

                      But we’ve gone off-thread so long on this, the Rayne is likely to fall in a California deluge. Shirley, you know who that is.

                    • Adam Treat says:

                      “Ignoring comments you disagree with is sometimes the most eloquent response.”

                      I’m sorry, are you talking to me?

                      [Moderator’s note: You have now left a total of 38 comments today which far exceeds the number of comments the average community member shares. Roughly half have been off-topic exchanges about commenting and not the topic of the post. You’re now going to be temporarily throttled until your comments are more thoughtful, on topic, and avoid/ignore trollish behavior so as not to incite more. /~Rayne 6:31 p.m. ET]

                    • BrokenPromises says:

                      Every single one of your posts gets more cringe worthy. Bmaz can be a curmudgeon but he is not a mocking disruptive troll. You pal are the epitome of a broken promise.

                      [Moderator’s note: this is not helpful as it only eggs on the disruptive behavior in this thread. Please stay on topic. /~Rayne]

      • Badger Robert says:

        I haven’t bmaz, until today. These comments would benefit from some moderation.

        [Moderator’s note: Believe me, I’d like to cut half of them. This comment isn’t helping matters, though. Please stay on topic. /~Rayne]

    • earllofhuntingdon says:

      Oh, my. LMAO.

      McConnell would never have voted to convict in Trump’s impeachment. He simply rationalized that position, based on a post-presidency criminal prosecution he never thought would come off while he was in office.

      The issue has never been the intelligence of the Supreme Court’s members. Superb academic performance is a minimum expectation for nomination to the Court. The issue has always been their politics, something politicians know in intimate detail, but which, farcically, neither they nor the public is supposed to consider.

      • Adam Treat says:

        Yes, it is evident that McConnell was looking for an excuse not to convict. He found his excuse. However, I truly think that if he had a do over he would convict. Not because he is some kind of principled person, but because he is starring in the face of real danger. A second Trump presidency might make him *less* than relevant. There is real hatred for McConnell in Trump’s mind.

        The political animals on the SC must surely be taking notice of the talk of ignoring SC opinions in the future from Trump acolytes. This should be signaling danger for them in giant blinking lights. They will not be able to issue a ruling he disagrees with should he take office again and not face repercussions. All guard rails will be off and we know how Trump feels about anyone who does not abjectly surrender and pledge fealty. The SC justice’s would be wise to take notice.

        To put it more succintly: what use is a Supreme Court in a post rule of law world? Especially one that has the temerity to issue opinions that Trump disagrees with?

        • earlofhuntingdon says:

          Still LMAO. I’ve seen no evidence that Republicans regard another Trump presidency as a danger. Quite the contrary.

          And to repeat, the issue is how members of the S.Ct.’s majority compare the dangers of another Trump presidency, vs the danger to their worldview and majority from his opponent and his party.

          • Adam Treat says:

            Yes, that’s why I put the chances for them relying upon article 3 as much less than one percent.

            • bmaz says:

              You are an interloper assclown, and one with no long term known basis for credibility. I guess I do not any longer via decisions by others, but you are ludicrous in terms of credibility.

                  • wetzel-rhymes-with says:

                    Maybe Adam has been long lurking and only reading the posts. I’ve been lurking for twenty years at Eschaton, but I never read the comment section there, so I can see it. I lurked here a long time and never commented. Anyway, I think he made a mistake to comment here like this is a political blog. That’s a mistake for a person’s emotional well-being.

                    Folks could learn it a little more easily. Emptywheel is a legal journalism blog with original reporting, and if your comment doesn’t have anything to do with the law, at least intersectionally, or the facts of the matter, if it’s just about about politics, you will get tarred and feathered by bmaz. That’s been the rule here, forever, but maybe not anymore. That’s too bad. It’s the main reason the comment section here is quality. Plus there’s a kind of jouissance to witnessing bmaz’ get upset with someone, so maybe Adam can understand why he got brigaded.

                    If you’re not a lawyer, you must be respectful and circumspect towards the prerogatives of this discussion to participate or not. For my part, for this reason, it’s usually my choice not to participate. I may feel the urge to have something to say. However, I usually have nothing useful or interesting to contribute in the context of the discussion, so I don’t say anything. I think if you’re not a lawyer or have relevant expertise of interest to the group, you have to imagine you are a guest.

          • wetzel-rhymes-with says:

            I think you’re right. You hope their worldview includes “the rule of law”, but to some of them, I think, the United States hasn’t had the rule of law since the Social Security Act of 1935, so you never know what you’re going to get with this Court. What will be more important to the conservatives, the dignity of the Court or ensuring their primary work dismantling the regulatory state can continue? I don’t know either way.

        • Harry Eagar says:

          Difficult to make that fit with flipfloppers like Vance or Lankford. And besides, the Senate will be irrelevant at least through the end of this year.

        • Fancy Chicken says:

          I’m not trying to feed the troll here, and I may get oranges thrown at me for saying this but I actually agree with the position of McConnell on jurisdiction in Trump’s second impeachment trial.

          From my reading of this opinion it seems as if the panel also surmised that it was a legitimate position in that the Constitution implies that impeachment is for active office holders. However as impeachment is political and not criminal it could have been possible for the Dems and GOP to unite out of expediency and convict him but with a legitimate concern about jurisdiction the GOP had it’s way out.

          Truly, the only legitimate way to stop Trump post presidency is through civil and criminal suits and never voting him in to any office, not even dog catcher ever again. It’s mostly our responsibility to protect the Republic.

    • Bruce Olsen says:

      tl;dr
      Mitch McConnell would probably voted to convict if he had intelligence or imagination. Even though they’re fairly intelligent, SCOTUS probably won’t try to preserve their relevance; rather, they’ll buckle under the ponderous influence of Trump, in order to preserve their skins.

      Ok, then…

  5. sandman8 says:

    The President should take counsel of his fears and be made to hesitate before deciding to intentionally commit a federal crime.

    Makes sense to me.

    Paraphrased from:

    “[t]he chance that now and then there may be found some timid soul who will take counsel of his fears and give way to their repressive power is too remote and shadowy to shape the course of justice.” Clark v. United States, 289 U.S. 1, 16 (1933).

    “Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate . . . .” Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982).

    As the district court observed: “Every President will face difficult decisions; whether to intentionally commit a federal crime should not be one of them.” Trump, — F. Supp. 3d —, 2023 WL 8359833, at *9.

  6. cmarlowe says:

    Marcy: “The only way he can get that stay is if five Justices say they think Trump will succeed on the merits and vote to grant the stay.”

    Just to be clear (at least for me) – you are saying 5 justices needed for cert. here, not 4?

      • obsessed says:

        > I THINK 5 are needed for a stay, just 4 for cert.

        Harry Litman said that this morning in his Talking Feds YouTube analysis. If I understood him correctly, if there are only 4 votes, the trial continues; if there are 5, it stays frozen. This link should go to the point in the video where he explains the “rule of 4” versus the “rule of 5”: https://youtu.be/OebcU1Txbrw?t=373

        • Doug Kane says:

          Normally while only 4 are needed for cert, 5 are needed for a stay. However, if I understand correctly, here all that is needed for the stay to be in place if for the case to still be on appeal, which SCOTUS four justices can accomplish by granting cert.

      • John Herbison says:

        Marcy is correct that assent of five justices is needed to grant a stay, and four to grant a writ of certiorari. Let’s game out the (theoretical) scenario where a stay of the Court of Appeals mandate is denied, but four justices nevertheless grant cert.

        Upon denial of the stay, the COA mandate issues, and jurisdiction reverts to Judge Chutkan, who could then set the case for trial. Team Trump would have 90 days from February 6 to file a petition for certiorari. Upon timely motion, Chief Justice Roberts (the Circuit Justice) could extend that deadline for up to 60 days.

        One (theoretical) possibility is that a jury could be selected and sworn, (whereupon jeopardy attaches,) and SCOTUS before verdict could grant cert. If that happens, it is foreseeable that the District Court would declare a mistrial. If the defense does not consent to granting the mistrial, they could litigate the issue of whether the circumstances presented a “manifest necessity” to declare a mistrial after jeopardy had attached by moving to dismiss the indictment.

        To suggest the absence of manifest necessity under those circumstances would be borderline frivolous, but because it touches upon the prohibition of double jeopardy, an interlocutory appeal from the denial of the motion to dismiss would nevertheless be available.

        • AllTheGoodIDsWereTaken says:

          Can John Roberts (Circuit Justice) not, at least in theory, approve the stay by himself? (Rule 22 & 23) If Trump has 90 days to petition for cert, given the chaos of that happening close to or during a trial, would it not be likely that he might do that? Would Judge Chutkin at least be sure to schedule the trial date after the 90 day window to avoid the mid-trial fiasco that you describe?

          Or is yesterday’s ruling so rock solid that he could not (with a straight face, “calling balls and strikes”) find a reasonable probability of 4 votes for cert and significant possibility of it being overturned?

          Is there any way for the Court to “short-cut” the 90 days, either by ordering a shorter deadline or by granting cert by themselves (without a petition), ordering a truncated briefing schedule and then upholding the lower court?

  7. earlofhuntingdon says:

    I think Trump’s immunity argument is that he is immune from any conduct committed “while” President, not “as” President. He then asserts that that immunity continues for all time, after he leaves office. Because Trump.

    If Trump does regain the White House, he will never voluntarily leave it. His administration will only hire lawyers and bureaucrats, and appoint judges, who agree with him. Which takes us back to Marcy’s point. Political salvation does no issue from the courts. It comes from sustained, well-organized political activity. All of that will be hard, some of it will not be pretty.

    • RitaRita says:

      While the courts alone can’t save the country from Trump, they can provide clarity and factual findings that might break through the right wing propaganda curtain. Some polls show that some Republicans and independents will not vote for Trump if he is convicted.

      BTW Justice Engoron has asked for briefing from both parties about the impact of any plea deal by Weisselberg in which he admits to perjury in the civil trial. This is not a good sign from the judge looking at imposing penalties, including receivership.

      • earlofhuntingdon says:

        No, it does not bode well for Trump. Weisselberg potentially committed perjury in Engoron’s courtroom – in this case. He won’t and shouldn’t let that go lightly.

        If true, this would be one more example of the perpetual fraud that is the Trump Org., and another reason for Engoron to decide that dissolving it is a necessary consequence of that fraud. A secondary consequence is that it might lead to a higher value judgment against Trump.

        • earlofhuntingdon says:

          There’s still that mysterious undocumented $48 million inter-company loan to Trump. According to his firm’s management’s comment to the Trump Org.’s monitor, that loan was equally mysteriously paid off, also – so far – without documentation.

          • CaptainCondorcet says:

            There are some RW trolls moving in the usual circles trying to argue that the absolutely unsupported comment to the monitor you mention (also still devoid of context) is proof that Engoron is engaged in vicious targeting where none is warranted since there is no problem on a paid-off loan. The mental gymnastics are exhausting, but also seem to continue to be effective on the base. We shall hope the remaining two-thirds of the electorate respond to these proceedings with actual intelligence.

            • earlofhuntingdon says:

              “No problem on a paid off loan.” LOL. Ignores whether there was really a pay-off, who made it, to whom, when, where the money came from, where it went, and where the documentation is – prepared in the ordinary course of business – for all that.

              Bigger issue is whether there was ever a legitimate, adequately documented loan to pay off.

          • Bruce Olsen says:

            That number is remarkably close to the $50 million the NRA spent in 2016 (less a little for commissions/fees). I’m certainly not claiming it’s anything more than a coincidence, like most of these things turn out to be.

          • earlofhuntingdon says:

            The problem is that the supposed inter-company debt appeared to be a manufactured way to present the debt forgiveness to debtor Trump by a third-party creditor bank. It’s really a non-cash transaction.

            Trump appears to have gone through machinations to avoid recognizing the $48 million in income that arises from that debt forgiveness.

      • wetzel-rhymes-with says:

        A great deal of evidence was already aired during the Jan 6 hearings. I am sure there will be new revelations, but there has already been so much. However, a jury verdict has a sociological force. I think if there is a guilty verdict for multiple felonies before the election it will destroy Trump’s candidacy, but I am not pinning my hopes on that. I am pinning my hopes on the people, whether or not he is convicted. However, if he is convicted, a guilty verdict represents a stigma stronger than a scientifically verifiable fact. “Alleged” disappears from the newspapers. What the prosecution presented as “evidence” changes to “what happened”. It becomes the true history.

  8. WilliamOckham says:

    If Dr. Wheeler and the mods don’t mind, I’d like to revisit my comment from last night and see how it holds up.

    Jurisdiction – The opinion spent a lot of words on the question and … agreed with me. I think. As Dr. Wheller points out, they essentially adopted the prosecution’s theory of the case on the jurisdictional question. Why that took nine pages when it won’t be appealed is a question for someone else. It really was as simple as does Midland Asphalt control or not. Thankfully, they all agreed that it doesn’t, for reasons that were obvious before they wrote the opinion.

    On the merits – so yeah, the sum and substance of the opinion is pretty much “WHAT ACTUAL FUCKING MERITS?”. They didn’t come right out and say that Trump’s arguments were meritless. They just showed us exactly how meritless they were. You know who already did that, right? Judge Chutkan. Did they add anything to her opinion other than knocking down Trump’s new-on-appeal batshit crazy ideas? I have not yet done a close read and analysis to answer that question. I still maintain that, in practical terms, that doesn’t matter because Trump’s arguments aren’t serious. He’s just begging SCOTUS to make him immune from prosecution; and if they want to do that, they’ll do it, facts, precedents, constitution, and democracy be damned.

    I’m sure that in the minds of those judges this is way better than a per curiam opinion with a couple of pages on jurisdiction and a one liner on the merits that said we affirm Judge Chutkan’s opinion.

    I would like someone to explain to me the substantive legal difference between those options. Not the strategic difference, not the political difference, and not the “but this is more likely to avoid an en banc or SCOTUS review” argument. Why is the opinion as written better than my suggestion based on the legal merits of the case? Because my suggestion would have taken them a week at best.

    All that being said, I was very pleasantly shocked by the fast-tracking of the appeals process. I gladly, whole-heartedly, and joyously withdraw my imprecations against them as aiding and abetting the on-going coup. I did assume that if they took a month to make a decision that meant they were slow walking it. I don’t get why it took them a month to state what was obviously true, but boxing in Trump’s appeal strategy was almost worth it. [Yeah, that was heard for me to admit.]

    At least now, SCOTUS is going to have to give the game away pretty soon. If they’re in the tank for Trump, they delay any decision until after the election. If not, they don’t accept the appeal and let the trial move forward. Either way, our job doesn’t change. Nobody’s going to save us. We, the people, do this together or it doesn’t get done. No matter the outcome, we each have to live with our choices.

      • timbozone says:

        I almost replied to that comment last night but now I’m glad that we’re revisiting in the light of a new day and new appeal court findings!

    • emptywheel says:

      Those 9 pages made it unanimous.

      Re: The merits, this is a legal opinion, not a bar fight. They need to dismiss any potential theory that SCOTUS wants to raise.

      AND ALSO, by making it unanimous, you likely get Henderson’s buy-in to fast track the appeal. It all comes together. Do it your way and you’ve got 3 opinions and almost certain SCOTUS review.

      • Tech Support says:

        If I might paraphrase here for the sake of checking my understanding, the issue at hand here is bigger than just drawing the same conclusion.

        So… if one judge goes to the Starbucks by taxi, and another gets there by taking the bus, and they both feel it’s important enough to distinguish between the two, then it’s an invitation to have a long argument about public transportation while the coffee gets cold.

        • Midtowngirl says:

          Right! But if they carpool together and go through the drive-thru… they can get on their way quickly, piping-hot coffee in hand!

      • WilliamOckham says:

        Your answer doesn’t address the question I intended to ask. Let me rephrase:

        Assume that the three judges unanimously agreed to the opinion I described above. What difference does it make compared to the opinion they produced?

        If you still want to answer that hypothetical, I’m listening. No bar fights needed. 

        Here some things that might help me understand.

        In your answer you said they “need to dismiss any potential theory that SCOTUS wants to raise”. What does that mean?

        Do you think the panel tried to rebut some arguments that anticipated one or more of the Justices might make? I can see reading that opinion that way. But why would they do that? To rule in Trump’s favor, there would have to five votes to overrule a bunch of different precedents going back to Marbury v Madison? What did they say in this opinion that discourage that more than simply affirming Chutkan’s decision?

        Here’s the simplest way I can describe my position:
        1. Trump’s legal arguments for his immunity are just facially absurd. To buy in to any of it, you have to be willing to sacrifice democracy. Any judge willing to do that is not going to be swayed by logic and legal precedent. The only person who needed to rebut them was Judge Chutkan and she did it. How does this excellent decision and opinion help? I really do think the decision is sound and impossible to argue against. I just don’t understand why it was necessary.

        • emptywheel says:

          Two reasons.

          First, to get from a 5-4 decision to stay or a 4-5 to grant review to something that will deny cert, you need buy in from at least Kavanaugh or Gorsuch, who often don’t give a shit about looking like partisan hacks. So one way to get their buy in is the same way I argued that Jack Smith got Henderson’s: By reminding a judge what you’ve said in the past about precisely this issue.

          This opinion quotes Kavanaugh and Thomas.

          The second reason is to ensure that nothing Trump’s lawyer can do opens up something new. There’s a long passage about Marbury in here. Probably not necessary for normal humans. But necessary HERE because that was Trump’s dumb argument.

          All in all, it’s the difference (IMO) between SCOTUS mucking this up for 4 months and a possible quick denial of cert: playing to the specific protocols of SCOTUS.

          Maybe this would help: There’s often code in software that doesn’t have an obviously functional purpose, but that is necessary to avoid glitches bc of code in the background that may not be obviously apparent. This is similar.

          • WilliamOckham says:

            There’s an underlying assumption in your answer that really just boggles my mind. That assumption is there is an actual controversy presented in this case, beyond the jurisdictional issue. Everything you say would be persuasive to me if I accepted that assumption.

            The problem I have with that is that Judge Chutkan’s decision, the oral arguments on this appeal, and this panel’s decision make it unmistakably clear that there is no controversy. Because this is a motion to dismiss, the allegations in the indictment have to be treated as true. If the allegations are true, the logical conclusion from Trump’s arguments is we’ve been living in a dictatorship all this time and no one knew it. That’s not hyperbole. That’s quite well established by the record in this case.

            To use the terminology from Hallin’s spheres, Trump’s arguments are smack dab in the center of the sphere of deviance. Everyone, including you, are acting (with respect to this case) as if this is all a perfectly normal thing to have differences of opinion about; where, for example, appealing to individual Justices’ vanity might tip the scales between a routine denial of cert on the one hand and exchanging over 200 years of constitutional government for rule by the mob on the other.

            I just don’t understand how these little nuances could possibly make any difference. Gorsuch and Kavanaugh must know that giving in to Trump on this will make SCOTUS completely irrelevant if Trump wins the election.

            • Peterr says:

              Betting on the right-wing members of SCOTUS to go with the obvious legal conclusion, when going with the obvious conflicts with their partisan political positions, has appeared to be a losing proposition over the last 10 years.

              I’m not saying they do this every time, but it’s always part of the equation.

              • WilliamOckham says:

                What about when going with the obvious legal conclusion is the only hope they have for remaining relevant and powerful? Dictator Trump can’t and would never do anything to benefit right wing Justices. Dictator Trump could and almost certainly would have them killed if it suited his purposes. Do you really think they want that deal?

                • Epicurus says:

                  “Gorsuch and Kavanaugh must know that giving in to Trump on this will make SCOTUS completely irrelevant if Trump wins the election.”

                  Gorsuch and Kavanaugh live in a fantasyland. That is precisely why they were vetted by a loopy senate and nominated and appointed by Trump. They wouldn’t know a danger staring them in the face if their lives depended on it because they have conditioned themselves to not seeing danger from the right.

                  I happen to agree with you. What the appeal says means squat to the majority six justices. I believe they will take the appeal because the majority six knows if they don’t take the case Trump gets convicted and/or has the trial front and center in the news 24/7 during the campaign. They and MAGAs will see it as political interference in an election and the justices know the blame that will come to them. If they take the appeal and drag it out to the election, they get to say it was settled at the ballot box, a washing of the hands as it were.

                  Furthermore, I have to believe Bush v. Gore is sitting in the Fantasyland minds of Roberts, Barrett and Kavanaugh where the SC took the appeal and guaranteed a win for Bush. It’s the kind of precedence they like, only instead of fast tracking they just have to slow track.

                • Peterr says:

                  Suppose Thomas wants to spend more time in his humble RV hanging out in Walmart parking lots with Leonard Leo and his billionaire pals, and Trump being reelected could insure Thomas that his successor would be the “right” kind of justice that would allow him to retire?

                  Alternatively, would them going with the obvious legal conclusion open them up to howls of anger from MAGA world, and diminish the reputation of The Court because of that? “They just sold out to the Deep State!”

                  Don’t get me wrong. I’d like to believe you are right about this, that when backed into a very pronounced corner, they will come to the obvious legal conclusion. But their handling of voting rights cases (with Roberts declaring that discrimination is a thing of the past), for example, makes me nervous about them going with the obvious.

              • SteveBev says:

                A couple of thoughts.

                Does not this go back to the discussions about
                1 the adequacy and good faith of the motions on behalf of Trump?
                And 2 the strategic response by Chutkan in ruling on them?

                I recall discussions about whether Chutkan should rule very narrowly, and dismissing MTDs on the grounds of the failure of Trump’s lawyers to properly address the indictment, when instead they misrepresented it and otherwise employed improper arguments (eg misstatements and miscitations of law). indeed I recall some arguing that she should assert that the Trump arguments were frivolous.

                As such she would have set her seal on the point that there was no legitimate controversy.

                However, the result would have been appellate litigation on that issue (ie whether there was a legitimately arguable point , with the possibility, that a higher court may have ruled that, notwithstanding the terrible pleadings, within the verbiage there was an arguable point which ought to have been considered and ruled upon).

                And Chutkan is surely conscious that part of her duties is to promote public understanding respect for and confidence in the diligence integrity and impartiality of the judiciary.

                Notwithstanding how much Trump’s arguments may deserve short shrift, there are pragmatic issues at stake. Trump has trampled over the rule of law, This trial is about him, his actions, and about public confidence in the integrity of law.

                FWIW I think that she was right to take a strategic view, and deal with the immunity question as a root and branch refutation of his position, noting on the way that in order to assert points to build his argument he had to engage in sleight of hand bad faith.
                The core of his case is bad faith nonsense. But there is a penumbra of difficult high constitutional issues- towards which he only gets close by means of trickery. Public understanding and confidence in the integrity of judicial processes is better served by fully explaining such matters rather than ruling on narrow technical grounds.

                • WilliamOckham says:

                  I was with you until that last paragraph. Show me one example from your “penumbra of difficult high constitutional issues” that is raised in Trump’s Motion to Dismiss or during oral arguments. There are no actual issues raised. Citizen Trump is nothing more than the leader of a terrorist militia. He deserves the same due process that you or I deserve. What he doesn’t deserve is everyone, including you, bending over backwards to read some substance into his Sovereign Citizen style legal ramblings. Holding the view that because a con man managed trick enough people in to voting for him he has earned obsequiousness from the courts is exactly what Trump wants from you. It is exactly what every fascist depends on to immobilize the opposition while they cultivate their terrorist mob.

                  • SteveBev says:

                    The penumbra of high constitutional issues include
                    1 the scope of presidential immunities, and the proper basis/factors to consider in identifying them
                    2 whether and to what extent there is any overlap between immunity from civil liability and any immunity from criminal liability
                    3 to what extent does the official act + outer perimeter analysis provide a basis for inferring any immunity from criminal prosecution
                    4 whether, as raised by the J. Henderson, presidential amenability to judicial process , whether criminal or civil, is better viewed through the lens of Marbury et seq discretionary/ministerial acts.
                    5 by implication from the Trump’s claimed examples of immunities in practice – there may be areas eg exercise of Commander-in-Chief authority, wherein criminal immunity may/ should arise; see also alleged abuse of appointment authority, pardon power etc.
                    [none of these were coherently raised, just a list of examples which would have required disambiguation for proper discussion; the Courts, rightly avoided them completely; however the current state of the law, as a result of the DC Circuit decision, is that there are a number of open questions]

                    • WilliamOckham says:

                      “none of these were coherently raised”. Exactly! You read them into the situation. Stop pleading on his behalf.

                      A bit of personal note with regard to penumbras of constitutional rights. 40 years ago, I took a graduate school course (crosslisted with the University of Texas law school) on the constitutional thought of William O. Douglas, taught by one of his research assistants (more of a ghost-writer for Douglas, imo). Based on my recollection of the discussions in that class, you have the penumbra exactly backwards. Trumps claims are so absurd that they clearly fall outside of any possible penumbra of rights, just as Judge Chutkan and this panel said, if not in so many words.

                  • SteveBev says:

                    If you imagine I am bending over backwards to read substance into his SovCit style ramblings then I fear you have grossly misunderstood my position.

                    My point was only that the strategic view that Chutkan took was to patiently dismantle his terrible arguments rather than dismiss them out of hand.
                    That strategic choice was not an unreasonable one, and certainly not perverse in all the circumstances.
                    Everything else has followed from it.

                    • SteveBev says:

                      ‘“none of these were coherently raised”. Exactly! You read them into the situation. Stop pleading on his behalf.‘

                      I know a bit about pleading, having started doing it over 40 years ago.

                      I also know a bit about whose arguments I am pleading, and whose arguments I am trying to understand.

                      In this instance it is perfectly plain that I have been endeavouring to understand the choices the judge at first instance made and why she made them.

                      I apologise if through some failure on my part I have not simplified that enough for you to be able to follow that process.

                      I do wonder whether your insistence on the notion that all and sundry are blindly determined to become Trumps stooges and plead on Trumps behalf has become an unhealthy fixation, blinding you to what other people are actually saying.

                      If you had actually bothered to properly read what I wrote, encumbered your fixation You will realise that I said
                      •The core of his case is bad faith nonsense. But there is a penumbra of difficult high constitutional issues- towards which he only gets close by means of trickery.•
                      Which to any rational mind means the same as
                      “Trumps claims are so absurd that they clearly fall outside of any possible penumbra of rights, just as Judge Chutkan and this panel said, if not in so many words.”

                    • WilliamOckham says:

                      I’m replying to this comment because we’ve exceeded some WordPress threading limit or something and I can’t reply to your last one.

                      In the comment that started this thread, I asked for an explanation as to why the lengthy appeals court opinion was better, from a legal perspective, than a simple per curiam affirmation?

                      When I responded to your first comment in this thread, I made the obviously faulty, but in my view, entirely reasonable assumption that your comment was an attempt to shed light on the answer to that question. I don’t think that makes me blind to what you were saying. We started from radically different contexts for our conversation.

                      I hit back hard against your comments because they appeared to be a piss poor attempts to answer to my question. Which you weren’t attempting to answer. And that’s fine. No one owes me an answer to that question.

                      If you go back and read the first line of your first comment, (“Does not this go back to the discussions about”), I think you might see that, from my perspective, the most obvious interpretation of “this” is that the pronoun’s referent is my original comment.

            • earlofhuntingdon says:

              Everything we do may echo in eternity, to coin a phrase, but Trump’s version of eternity is today. He may intend to become dictator for life. But given his many frailties, that isn’t likely to be very long, despite the damage he would do.

              The S.Ct. is playing a longer game. It must expect to be able to handle his successors. Consider how many dictatorships retain their supreme courts. Few of their members ended up in a Judges’ Trial in Nuremberg.

            • matt fischer says:

              I suspect that the presence of a legal controversy is not the threshold here, but that it comes down to the fact noted in the opinion that “The Supreme Court has repeatedly emphasized that the President is sui generis.

              Accordingly, as frivolous the arguments are, this attempted assault on the rule of law by a former president is unprecedented, and demands exhaustive treatment.

            • earlofhuntingdon says:

              The district and appellate courts went to great lengths to drive home the point that when it comes to the routine application of the criminal law, a former President is NOT a thing unto himself. He is merely Citizen Trump.

              Both courts have already exhaustively refuted Trump’s arguments, reasonable and frivolous.

              • matt fischer says:

                Yes, and the arguments were so exhaustively refuted because he was President Trump when the alleged conspiracies were hatched.

          • 2Cats2Furious says:

            The panel’s decision quotes both Kavanaugh and Gorsuch, which was obviously intentional.

            It also quotes from dissenting opinions by Thomas, as well as Dead Scalia.

            If the 3 liberal Justices, plus Roberts, Kavanaugh, and Gorsuch decide to deny cert, then the case goes back to Judge Chutkan for trial. Fingers crossed that is the outcome. I expect that Thomas and Alito will vote for cert and a stay, but that’s only because they’ve never met a wrong decision they didn’t like.

            Trump’s defenses have been garbage from the start. But as a lawyer, I appreciate the panel’s detailed and well-reasoned opinion, which gives SCOTUS all the more reason to deny cert and stay as far away from these issues as possible. I think the (slight) bit of extra time – only 28 days from oral arguments – to craft such thorough opinion will ultimately be worth it in terms of getting the case to trial before the election, although we obviously all need to do our part to make sure Trump doesn’t get anywhere near the WH again.

    • Operandi says:

      For a matter of first impression like this, I think it’s worth it to conclude the matter thoroughly and with a bit of buttressing, instead of just slapping out the fastest possible answer. We’ve seen how much US v Nixon has come up in these briefs and opinions, and how quickly Blassingame is already being threaded in.

      Hopefully it’s a while yet before we have another president who’d rather be king and we have to dig out the precedents being set now. But future generations trying to solve their crisis du jour might be thankful an extra couple weeks was spent gilding the lily.

      • WilliamOckham says:

        I thought I understood what the phrase “a matter of first impression” meant. However, I don’t understand what you mean here. Can you explain?

        • Operandi says:

          I may be misusing it, not at all being formally trained, but I’m also following the panel’s lead here (p18):

          The question of whether a former President enjoys absolute immunity from federal criminal liability is one of first impression.

          Which is to say, we’ve never had an indicted president before, so no court before this has ruled on the (possible) existence of presidential criminal immunity. The Nixon cases nibbled around the perimeter, and left some guide posts in the dicta, but this is the first real precedential ruling confronting the theory head on, and so it’s worth the extra effort to lay a strong foundation. If this isn’t supplanted by a SCOTUS ruling (which would still likely draw heavily on the scholarship done here), it might end up getting cited extensively in the future if the nation is once again unwise enough to elect a criminal to the white house.

          • WilliamOckham says:

            Thank you! The misunderstanding was on my end and I appreciate your willingness to explain in depth.

  9. pseudonymous in nc says:

    There were a couple of obvious hat-tips to Gorsuch and Kavanaugh in the ruling which — as in the Colorado SC opinion — seem quite deliberate.

  10. paulka123 says:

    IANAL and ofttimes I am not too bright but does not the following: “there is no functional justification for immunizing former Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment.” open former presidents to criminal liability for acts taken while in office?

    Say a President targeted and killed a US citizen, is that not a breach of that person’s civil rights thus a federal crime?

    • timbozone says:

      The ruling statement you reference does and does not. That is, it is directed at a specific circumstance regarding a specific Indictment. At the same time, it states that there is no general rule that would support a conclusion that former Presidents are immune to Federal prosecutions.

      You seemingly rhetorical end question may yet be adjudicated, yes. And, in fact, it already has been obliquely attempted, although that was a civil suit I believe… Ref https://www.aclu.org/video/aclu-ccr-lawsuit-american-boy-killed-us-drone-strike

      • paulka123 says:

        I had a specific instance in mind. Obama droning Anwar al Awlaki. While certainly not an expert on national security questions vis a vis legality. al Awlaki was clearly a US citizen and appears to have likely not been involved in active planning but was more of a motivational figure for AQ. It has always disturbed me that his rights were just ignored and he was killed.

        • emptywheel says:

          Trump actually used that example in his filings. Jack Smith’s team basically said there’d be times when other considerations would be a defense.

          In this specific case, the shoddy OLC memos would serve as a defense.

  11. SteveBev says:

    FN 14 is clearly very important- not least because it is referred to twice in the opinion:

    1 as fn14 on p50 –
    as a final footnote to section III Executive Immunity C Impeachment Judgement Clause

    2 but also referred to in the body of the text on p38 as part of the discussion of the Take Care Clause within
    Section III Executive Immunity B.Functional Policy Considerations 2 Immunity from the Indictment’s charges.

    Which discussion notes that under the Take Care Clause

    “ this duty encompasses following the legal procedures for determining electoral results and ensuring that executive power vests in the new President at the appointed time.
    To the extent that Former President Trump maintains that the post-2020 election litigation that his campaign and supporters unsuccessfully pursued was an implementation of his duty to Take Care he is profoundly in error. (See fn 14 infra) Former President Trump’s alleged conduct conflicts with his constitutional mandate to enforce the laws governing the process of electing a new President”

      • SteveBev says:

        No problem. There’s lots of moving parts within this decision, notwithstanding the unified whole.

        It seems to me that this reference to fn14 is one on the ways in which Henderson’s analysis (Marbury Take-Care-Clause) is unified with the Childs/Pan analysis (office-seeker/office-holder Blassingame) for the purpose of this decision. All routes lead to the same result here, while leaving scope for wiggle room for further consideration on radically different factual matrix.

        • RipNoLonger says:

          Thanks to you and Marcy for this discussion. Linking the main text and the footnotes seems very important. While legally trained minds may handle this well, I wonder if our new overlords (AI) can’t also parse these connections and give an assist. Or maybe they are already so involved.

          • Bruce Olsen says:

            Current generative AI doesn’t understand anything, so no.
            Human-written discovery software could know what footnotes are in a legal context, and do the right thing.

            If you’re interested in AI (and especially the limitations in GPT-n and generative AI in general) check Gary Marcus on Substack.

      • Violater says:

        Thank you SteveBev for the link. It was excellent to see Marcy and hear her. This site is the best place for intelligent discourse on THE most important issue and problem facing America, Trump and his ilk, MAGAtropolis. While I have to admit I don’t participate much it is because of two things 1. So much is said that am content to read and learn, agree or disagree. 2. There are some angry folk who while amusing, are rude and if not clueless thoughtless. So I thank Prof Wheeler, Rayne and whoever else produce emptywheel. Onward,

    • BRUCE F COLE says:

      That was a great hour rundown by those guys. Well worth the watch time.

      One good point was made by Scott Anderson in response to Wittes’ question about the chances that the S,Ct is going to grand or deny cert (starting at the 25 minute mark). Anderson covers the obvious points regarding the air-tightess and narrowness of the panel’s opinion, but then he notes that the high court may well consider that they’re in the process of getting ready to overturn the CO insurrection ruling and decide therefore to deny cert in order to go with “let the voters decide” as an out, such that they wouldn’t have to get into the very messy work of taking apart a very solid, “bipartisan” order.

      After that commentary, Wittes polled the other four members of the group and they all said that denial of cert was most likely to occur. Wittes himself argued the opposite, but only with humorous reasoning, kind of like he really didn’t believe cert was going to be granted unless the conservatives live up to their most ridiculous caricatures.

      Smart crew.

    • earlofhuntingdon says:

      Sea-lioning captures the essence Trump’s demands for an immediate debate with Biden.

      I’d be surprised if the two sides agree on the forum, substance, and manner of asking questions, and on a moderator with the guts to keep Trump in check or shut off his mike.

      That’s because Trump is all grandstanding and outrageous generalities, with no facts or logic to back them up. Trump does that every day. Hard to see how giving him a chance to do that with Biden does anything for Biden.

      • Matt Foley says:

        The irony of the orange debate skipper demanding a debate.

        It would not be a debate in any sense. Orange jesus refuses to play by the rules in court and certainly won’t play by any debate rules. He’d interrupt (“Excuse me, excuse me!”), go over time, dodge questions, lie, hurl insults, throw papers. And Biden would do his usual “can you believe this guy?”. Waste of time.

        • Adam Treat says:

          Biden shouldn’t debate someone who to this day can’t admit that he lost the election. He shouldn’t debate an insurrectionist loser who tried to hold on to power. Treat him like the illegitimate candidate he is.

    • CaptainCondorcet says:

      A wonderful term from a brilliant comic. And in true cosmic irony, some have taken to criticizing the term sealioning and demanding a defense of that perspective.

      And while it is certainly possible that some of these trolls aim to just disrupt this valuable resource of a blog, years of political apathy research have revealed very clear methods to improve citizen engagement….which by the same token, has also led to clear tactics to INCREASE voter fatigue, tactics widely used by far-right agitators and even foreign powers(you didn’t have to vote for Trump in 2016. It was sufficient to not vote for Clinton). It’s why Taylor Swift suddenly became an archvillain in certain circles. Because even the idea that a famous celebrity could work to making voting “cool” is beyond frightening.

  12. Gil Bagnell says:

    The jurisdictional issue was more important than it may have seemed. On one hand, if the Ct. of Appeals (or SCOTUS) found a lack of jurisdiction, the immediate effect would be negligible, because the case would go back to Chutkin for trial, just as it will now. But by nailing down the jurisdictional issue tightly, the Ct. of Appeals tries to give enduring strength to its ruing on immunity. If SCOTUS, for example, decided Chutkin’s ruling was interlocutory and not appealable, the trial would proceed, but then if convicted Trump would retain the right to appeal the immunity issue. If jurisdiction on the appeal is sound, however, the ruling on immunity becomes set in stone and Trump cannot appeal it later. Courts have often said you cannot stipulate yourself into jurisdiction, so just because the parties wanted a ruling doesn’t mean they can get one.

  13. bgThenNow says:

    I hope this is not entirely outside the scope of this post. It has been mentioned that the Supremes might be feeling irrelevant (not sure that is best word) when their rulings are ignored. Which they are by Gov. Abbot and I don’t know how many but at least several other R Governors who are supporting him in his defiance of the SC regarding the border. While the SC might have opened a floodgate by giving power to individual states in Dobbs, is this behavior by Abbot et al outside Dobbs on this matter, or is it rogue behavior in light of the border issue where the SC is concerned? I would think (but IANAL) they would want to assert some legal power in this case, if they hear it in order to flex their muscle. Or I guess flex their muscle by refusing to hear it and sending the case back to Chutkin’s court for the trial to proceed. It seems to me they are in something of a rock/hard place.

  14. CaptainCondorcet says:

    OT but in line with the general theme of failures for the hard-right GOP: Mayorkas impeachment just failed 216-214. What a shitshow of a majority.

  15. wirenaut says:

    I like footnote 13, which takes the names of U.S. senators advocating immunity for “… crimes not discovered until after a President leaves office.”out of the shadows of the congressional record and places them squarely in the glaring spotlight of what will become one of the most read and studied court decisions of our lifetime. Thank you EW community for teaching me to always pay attention to the footnotes!

  16. Badger Robert says:

    Concerning the question raised by WO, maybe the Appellate court agrees with WO. And that’s the point of the lengthy opinion. The arguments presented in favor of immunity are not just wrong, but frivolous. It would be a waste of time for the Supreme Ct to hear the case without a result and a record.

    • David Brooks says:

      Well, that sounds to me like an argument for the Supreme Court to hear the case, quickly agree with the argument in all respects, and thus establish it as a done deal. A guy can dream.

      • Badger Robert says:

        We don’t know. Anything is possible, including a majority viewing this as an opportunity to get rid of Trump. They don’t have to run for re-election and they have the federal marshals to rely on.

  17. LaMissy! says:

    Turns out that Trump’s spokesman Stephen Cheung, whom Dr. Wheeler references in the video, previously worked as director of communications for public affairs for the Ultimate Fighting Championship in Las Vegas, Nevada. Makes sense, ¿que no?

  18. punaise says:

    The inimitable Charles P Pierce @ Esquire:

    Trump’s Lawyers Need a New Box of Crayons. The System Is Gearing Up.
    For once, sanity and common sense are singing in tune, a rare melody in this cacophonous time.

    There was a time in our history, and not so very long ago, that the evaporation of a ludicrous legal claim in a federal appeals court would not rate a box on page 21 of the Metro section. But this is not then, so when El Caudillo del Mar-a-Lago brought his ludicrous claim on limitless presidential immunity before the D.C Court of Appeals, and when, after a substantial (and nerve-wracking) delay, the Court on Tuesday left that claim a pile of smoking meat on a back road, it was a veritable legal earthquake. Three women on the bench looked at the exalted claims of a guy who already has been judged a sexual predator and laughed in his face.

  19. soundgood2 says:

    The members of the Supreme Court that were appointed by Trump were not chosen by him and they know it. If he gets back into office and has a chance to appoint another justice, it will not be from the Federalist Society list, it will be someone he knows is loyal to him. Why would anyone currently on the court want to make it possible for Trump to return to office if they have a legal way to stop it? In the end, their allegiance is to their particular interpretation of the constitution. It is not in their interest to blow up the legal system particularly when they are in the majority on the court.

  20. The Old Redneck says:

    I read the opinion last night. It’s really thorough and airtight, especially for something produced in such a short time frame. More importantly, it’s unanimous. There’s no dissent or concurrence which creates the need for further review.

    None of us know what will happen, of course. But I agree with others that this decision creates the best scenario for a denial of cert by the Supremes. They could just walk away and let the existing opinion speak for itself.

    • ernesto1581 says:

      Interesting(?) contrarian piece by Jack Goldsmith on Lawfare this morning concluding SCOTUS should grant cert. He says while DC decision achieves the right result it also contains “…loose reasoning that will have a potentially large collateral impact on the construction of criminal statutes to burden the Article II authorities of sitting presidents.” Which has been discussed here a bit, specific vs general circumstance/indictment?

      To make his case, Goldsmith uses:
      OLC opinion by Walter Dellinger, 1995 (application of “clear statement” rule could limit President’s constitutional prerogatives; exception made for criminal activity which would not raise separation of powers issue — bribery, for example.)

      Franklin v Massachusetts, 1992 (Administrative Procedure Act does not apply to President; separation of powers issue)

      Public Citizen v DOJ, 1989 (President & DOJ was justified not to “utilize” ABA advice on judicial nominations as that would infringe on President’s Art II judicial nominating power.)

      Goldsmith also notes Jack Smith’s brief in opposition to immunity recognizes the validity of Dellinger’s OLC opinion.

      Reactions, anyone?

      • earlofhuntingdon says:

        Are you suggesting that CheneyBush OLC operative and star of the “conservative” legal movement, Jack Goldsmith, is writing from an objective, apolitical viewpoint?

        • ernesto1581 says:

          Ease up, friend. I suggested nothing of the sort. And I am as aware as you are of Goldsmith’s “pedigree.” You’ll notice the raised eyebrow following the first word, above?

          If you think the 3 items he lays out stink, say so, and why. I can easily imagine them, however, making their way onto WaPo or NYT pages as representative of “fair and balanced etc etc” reasoning. His crappy GWB memos were issued 20 years ago and I can guarantee you his name means little or nothing to most people at this moment.

          • earlofhuntingdon says:

            You asked for a reaction. I gave you mine. No one else has, which might suggest that few here want to give oxygen to a Senior Fellow at the Hoover Institution.

            Goldsmith has plenty, holding, as he does, a senior endowed chair at HLS, where he’s busy crafting the next generation of very conservative legal scholars. Which means lots of people regard him in high esteem, just not most readers here.

        • SteveBev says:

          My reaction to the Jack Goldsmith piece is that it is circular rubbish, wherein he tortures the text of the DC circuits opinion in order to ride his hobby horse of the Clear Statement Rule.

          He knows that the Rule is not implicated in the case at all, ie the statutes at issue in the indictment are of the sort which are generally applicable and apply to the President. There is no discussion of the Rule in the case, because it does apply, and there is no suggestion in the case about considering situations and statutes and presidential actions where the Rule might apply.

          So he has no basis for his complaints, beyond fetishising the Rule, such that he demands judges should nod in its direction at every conceivable and inconceivable opportunity.

          • earlofhuntingdon says:

            Judge-made, clear statement rules look an awful lot like a dodge, allowing conservative, so-called textualist judges, to preserve preferred interpretations that reflect their values, rather than interpret statues according to their plain meaning or implication. It also looks like a way to bash progressives who resist that temptation.

            But as you say, it appears not to have the slightest implication for the statutes relevant to Trump’s immunity case. Fogging the windscreen is our Mr. Goldsmith.

      • WilliamOckham says:

        My reaction based on your summary: vile, odious, reprehensible. and overtly fascist. Goldsmith is a disgusting toady, apparently ignorant of the fact that folks like him are the most likely to be used, abused, and buried in a mass grave by the totalitarian regime he apparently longs for.

  21. Badger Robert says:

    It seems this Appellate decision is broad enough to cover both the allegations in the Georgia case and the alleged offenses in the document case. If there were categories of immunity, acting as a candidate to get extra votes in Georgia would not be a category of immunity. Nor would post Presidential illegal retention of classified material be protected. They may have gone big so that the Supreme Court can deny the request for a writ and let the precedent stand at least as to Trump’s other criminal prosecutions.

    • earlofhuntingdon says:

      Unless the S.Ct. accepts cert. and affirms the DC Circuit’s opinion, that opinion would have persuasive authority in other courts, but would not be binding outside of the small but important DC Circuit.

      • Badger Robert says:

        It may be non binding, but if the SpCt denies the application it will just about be the only authority.

        • earlofhuntingdon says:

          You can wish for the Court to accept cert., and quickly affirm the DC Circuit, per curiam and without an opinion or argument, as if it were an item on the shadow docket. I won’t hold my breadth.

    • emptywheel says:

      It would not cover GA. It specifically says it does not comment on current presidents or state prosecutions.

      It would cover the stolen docs, but none of that was committed as President.

  22. WilliamOckham says:

    Since some folks seem to think that there is a possibility that SCOTUS will accept this case and rule in Trump’s favor, I would invite you to consider this thought experiment. [Hat tip to pwnallthethings on BlueSky for reminding me of this]

    The rule is that a President can break any law and can never be charged with a crime unless they are impeached by the House and convicted by the Senate. In a game theory sense, the President’s next action would be to kill one specific person Can you guess who that person is?

    If you said John Roberts, the Chief Justice of the Supreme Court of the United States, give yourself a prize for understanding the intricacies of our constitution. Why John Roberts? It’s pretty obvious. Murdering the CJ of SCOTUS is the one crime a President can commit and rest assured he will never be convicted in the Senate. Under the plain text meaning of the constitution, the Senate trial is presided over by …. the CJ of SCOTUS. No Chief Justice, no trial in the Senate and, therefore, no criminal trial EVER for that murder.

    Now, do you still think SCOTUS is going to give Trump his Get Out of Jail Free card?

    • grizebard says:

      An extreme example, but still. The SC’s interests and Trump’s do not necessarily coincide. SC members do not need to be re-elected, and with Congress currently emasculated thereby, why should the SC strive valiantly to strengthen an insatiable third pillar of political power, to its own ultimate disadvantage?

      Trump’s standing in the lower courts is low and depreciating. His recent demand for a mistrial “get out” in the E Jean Carroll case, for example, was promptly and scathingly dismissed (“at least doubly frivolous”, “entirely pointless”). And the legal descent has hardly even begun yet. So why should the SC hasten to nail its flag to the mast of that rat-infested hulk?

      So the SC can well afford to defer and let the decision stand, historic as it is. Denying cert is a very easy “out”. Minimises any reputational damage. Let Pan, Childs and Henderson take any flak from MAGA, not that there seems to be that much.

      In any event, if the SC were to stand aside, would Trump be foolhardy enough to attack it over an issue of his own (very obvious) self-aggrandisement?

      • earlofhuntingdon says:

        You could have stopped at, “would Trump be foolhardy enough.” The self-evident answer is yes.

  23. WilliamOckham says:

    If the Supreme Court issues a stay in this case based on an appeal of this decision, that will be the moment that historians will point to as the end of the current constitutional order in this country. That will be the moment when we realize that a majority of the Supreme Court says that there is a chance that Trump might win on the merits of his appeal. They’ll be saying that abolishing our current system of government is something they’re contemplating. No matter what happens after that, everything will have changed. SCOTUS would have arrogated unto itself the ability to install a dictator. Give them a president they like and they will make him make him dictator for life.

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