Mr. Smith Goes to SCOTUS

Yesterday, Jack Smith submitted his brief on Trump’s immunity claim to SCOTUS. I’m working on a post on it, but thought I should go ahead and post this stub so people can chat until that’s done.

107 replies
  1. SteveBev says:

    I hope it doesn’t offend moderation to re-post in this thread something I said earlier (as this is the more appropriate place for the point)

    In the light of the (albeit curiously worded) question presented as framed by SCOTUS, section II (pp 44-49 brief, 55-60 pdf) of the brief is arguably the most important part of the argument.

    Although it is being referred to as a fall back position by TV lawyers, it seems likely the elements of it will be subject to rigorous scrutiny/ debate at oral arguments

    • bmaz says:

      “TV lawyers”, ugh. It is a criminal case, alternate theories get argued every day, both in trial and appellate courts. Both prosecution and defense do this, and this one is absolutely appropriate and fine. It is okay, and preserves the record.

      • SteveBev says:

        In this case SCOTUS (or an appreciable portion) seem particularly interested in exploring the issues which may/should arise at the boundaries of what might constitute official acts. Which in turn raises the possible consequence of remand for further fact finding and the case bouncing back and forth.

        The SC brief seems to me to sensibly address those potential issues. It helpfully clarifies that any questions of fact finding would properly and fairly fall within the ordinary trial process, because any ‘official act’ would be either marginal to the gravamen of the offences charged and/or would be evidentially relevant to motive or intent, and as such no question of preventing a trial taking place arises. And consequently no further pre-trial appeals on the question of the ambit of immunity would arise.

        I thought the SC argued this rather neatly. And in a way which ought to give more confidence to the Justices inclined to rule that whatever Presidential immunity questions might arise in respect of official acts in other cases, there is no immunity defence in this case.

  2. scroogemcduck says:

    I find Section II b interesting. SC Smith must foresee a SCOTUS ruling that leads to a further round of appeals to the DC Circuit and SCOTUS. Delay, delay, delay.

      • scroogemcduck says:

        NAL – If they were further appeals on the grounds that presidential immunity applies here, how could the case proceed?

        • Peterr says:

          Almost all appeals are filed after a verdict is rendered at the trial court. Only in very limited circumstances can you file an “interlocutory appeal” — that is, an appeal *before* the district court’s verdict has been rendered.

        • P-villain says:

          I foresee at least two votes for just this approach – interlocutory appeal, but only after further trial court rulings. SCOTUS often complains that the record before it is not sufficiently developed, and rope-a-dope is the name of Trump’s game.

    • John Herbison says:

      The Court of Appeals recognized no circumstances under which a former president is immune from criminal prosecution. 91 F.4th 1173 (D.C. Cir. 2024). Predictions are difficult, but I suspect that SCOTUS granted cert here in order to recognize that there may be immunity for acts involving national security or foreign and military affairs for which the President has unique responsibility, leaving the contours of any such immunity for future cases where, unlike the matter at bar, the issues may be squarely presented. Part II of the Special Counsel’s brief (pp. 44-49) appears to anticipate such a result.

      • Sussex Trafalgar says:


        Trump’s attorney, D. John Sauer, made that clear in his oral argument to the Court of Appeals by stating that without immunity Obama could be criminally liable for ordering drone strikes. I’m sure that got the attention of at least Justice Kavanaugh.

        • timbozone says:

          If Obama broke the law than he should face legal consequences for this. If the President feels that a law is getting in the way of defending the United States and then acts to circumvent the law, then that President should be ready to face any legal consequence that may come their way, not hide like a coward behind the idea that somehow being elected President is some sort of special privilege against following the laws themselves. Any other argument is an argument for arbitrary tyranny by the Executive. And, sadly, this is Trump’s stated position in court at this time, that the President is above the law. We should all reject this idea that the Chief Executive should have immunity for illegal actions. And we should also reject the notion that a strong Executive would not decide to break the law just because of the possible personal legal consequence that might accrue to their person. Either one is brave or one is a coward. A moral coward tries to avoid responsibility for the illegal actions they take. Any failure to act responsibility by any chief executive shouldn’t be contenanced. But neither should the idea that acting irresponsibility is something that should be encouraged by blanket grants of immunity simply for holding the office of US President.

        • Zinsky123 says:

          Conservatives always wave around the case of 16 year-old Anwar Al-Aulaqi, killed by a targeted drone strike in Yemen, ostensibly approved by Obama, as evidence of the need for presidential immunity. IANAL, but it seems to me that extrajudicial killing of a suspected terrorist in a foreign country is closer to being within the four corners of the Commander-in-Chief’s job description than trying to extort a foreign leader for a campaign favor or calling a crowd to Washington to “be wild” and “fight like hell” after losing a presidential election.

        • Harry Eagar says:

          Iran-Contra? Liberal lion Dan Inouye made certain that the law could not do what you think it should have.

          He never said why but I have always assumed it was on the grounds you say should never be used.

          It isn’t only rightwing nuts who think of the law as something to be gotten around.

  3. Gil Bagnell says:

    You never know with this Court, but there really should not be room for further delay of trial after they rule, because there is no record — just the allegations in the indictment — so everything is already before the courts at this point until a record is developed at trial. That’s why it was silly of SCOTUS to decline to take the case directly. I had hoped that the silence of the minority on the Court earlier meant they had agreed not to take the case at all, but that was a vain hope as it turned out.

  4. Rwood0808 says:

    Due respect to the lawyers here. I’m sure you will parse the legal ramifications of everything with the wisdom and knowledge we have all come to expect. Can that discussion include some insight based on what this court WANTS to do as well as what it SHOULD do?

    • emptywheel says:

      The best insight I heard on why they took it is that Kavanaugh is a defender of Article II authority, and that he was worried that this would infringe on that. I also suspect there was some horsetrading on the CO ruling.

      I don’t doubt that Alito and Thomas would love to interfere generally.

      • P-villain says:

        If so, the brief’s citation to Kavanaugh’s law review article on executive immunity is wicked good fun.

        • SteveBev says:

          Especially since Trump purports to cite to it and misrepresents the point by selectively editing the relevant quotation from it.

  5. myra_bo_byra says:

    IANAL but there’s been so much criticism of the delay SCOTUS is creating for this case, that it is further eroding whatever political credibility they have, which is already in free fall. If they add even more delay by holding this ruling until the end of term, or remanding the case back to Chutkan for more fact finding re: official/non-official acts, inner/outer perimeters, I think they risk further harm to the political viability of their own institution. Also, as some have commented, the national security implications of a broad finding for Trump are extremely worrisome and dangerous, and the fact that Smith spent so much time on “fallback positions” speaks volumes about how far to the right he thinks the court has drifted. Its probably a wise precaution, but sad, that he even had to address them.

    • bmaz says:

      Dear Myra, the criminal justice system, much less SCOTUS, is not about supporting your, nor any others public, political beliefs.

      • Peterr says:

        The more SCOTUS acts like a super-legislature bent on enacting their political positions and less like an arbiter of what is and isn’t legal under the constitution, the less respect SCOTUS will have. In that sense, SCOTUS is in danger of imperiling the political order of the country.

        Not political in the sense of one’s personal beliefs on a given issue, but political in the sense of the communal social life and the norms that we claim to abide by.

        • Bears7485 says:

          “Justice system”, Pshaw.

          INAL, but it’s clear to me that justice has nothing to do with it, else Diaper Donnie would be in jail right now.

        • bmaz says:

          No, you are clearly not a lawyer, nor understand much about the Constitution, law or criminal procedure. Who is “Diaper Donnie”? Do you think that is cute or helpful to the discourse?

        • Bears7485 says:

          bmaz, I don’t have to have played professional football to know that the Bears can’t pick a QB to save their lives.

          I’m clearly NAL, but I’m smart enough to see that our “justice” system only really benefits those who have power or money. No amount of “iM a LawYeR” gatekeeping by you will change that fact.

        • earlofhuntingdon says:

          Your comment seems a lot like one of Elmo’s SpaceX employees, taking the position that, “I’m not a rocket scientist, but we don’t we try pushing this red button here.”

        • Benji-am-Groot says:

          Bears – Justice and Law are two entirely different animals, mores the pity.

          To quote Jonathan V. Last over at The Bulwark:

          “Here is the thing about the rule of law: If you believe in it, you have to do so knowing full well that it will frequently fail to deliver justice.”

          Not a bad read (at least what I can access):

          I had a run in with bamz a while ago with the distinction between the two, but more from the JVL piece:

          “Further: She is subject to judicial review.

          So if Judge Cannon rules in ways you or I do not prefer, and her rulings are reviewed by appellate courts, and the stolen documents / obstruction of justice case against Trump results in an outcome that we believe is contra the interests of justice, then . . .

          Well, them’s the breaks. We are committed to the rule of law and that means living with outcomes we believe are unjust so long as the process is followed.”

          I do not necessarily want to see drumhead justice – but as long as there are biased Judges like Cannon (regardless of their qualifications) justice seems to be a moot point within the law.

        • wetzel-rhymes-with says:

          You would think that in a society in which habeus corpus can open inquiry to test the grounds for detention, justice could never be a moot point, but a trial could subsequently happen that is a dead letter, such as often occurs in Russia where every trial is propaganda. An issue that is not subject to, or open for, discussion is a moot point, so truth and fiction have to be sorted in court within reasonable good professional conscience. I don’t think we can or will ever become Russia here because screw that, though to this emptywheel reader, the behavior of some Republican appointed prosecutors and judges in this country seems corrupted by a number of agendas to say the least.

          Nobody’s camped out on a bench because their daughter may be secretly detained in the federal building, but justice becomes moot or blind in the case of corrupt judges and/or prosecutors, that is, in the court itself, in some cases it seems. White people in this country used to hang black people in the square. Even habeus corpus was a dead letter, but it’s a new kind of decadence in justice we have to accept Cannon’s shamelessness. It will be catching among MAGA appointed judges. Trump says she should be on the Supreme Court. With the new Republican Party, it could become like all their Congresspeople and Trump himself, but that might be my everything-is-going-to-hell bias. Where was truth vs. fiction in Durham’s whole operation or how exactly is Smirnov’s impact on Weiss’ prosecutorial decisions going to be adjudicated? That stuff doesn’t make it into court. There won’t even be prosecutorial misconduct hearings. You have to be in open rebellion to get disbarred.

          [Moderator’s note: stop playing with the HTML a href tag. It’s not needed in a reference to the home page of this site. /~Rayne]

      • Troutwaxer says:

        They officially, legally, factually went too far to the right when a majority opinion quoted a witch hunter who allowed spectral evidence in his courtroom.

      • Rwood0808 says:

        You keep saying that, despite all the evidence to the contrary.

        “Roe is settled law.” I seem to recall several of the justices saying.

        How are things in regard to that today in Arizona?

        • paulka123 says:

          The ironic thing about Dobbs is that there has been in increase in the number of abortions since it was issued AND pregnancy is now more dangerous.

          I’ll leave it to stronger minds to contemplate the effect from those effects.

        • Rayne says:

          Let’s not forget there’s been a pandemic and the effects of COVID on pregnant women and children combined with the lack of adequate social safety net is not a small factor in the increase in abortions. All the more reason why states should not interfere with reproductive rights.

        • Bob Roundhead says:

          Let’s also not forget that because of the Supreme Courts public, political religious beliefs, chances are that some woman is going to die in Arizona this month from her inability to access an abortion, and some other teenage girl is going to be forced to carry her relatives baby after being raped.

        • bmaz says:

          I live in AZ, and I highly doubt that. But, hey, talk out of your ass at will, you are highly accomplished at it

        • Bob Rounhead says:

          The data is easy to find. 21 per 100000 reported rapes in Arizona. About 5% resulted in pregnancy. 20% of those among minors. Thats just reported rape.
          At risk pregnancy happens everywhere. More prevalent among lower socioeconomic classes. Doctors are now in a no man’s land about what to do. All because of the Dobbs decision. A religious decision which has been the political focus of the federalist society among others for decades. Exactly who is talking out their ass? Or do you think rape and at risk pregnancy doesn’t happen in Arizona?

        • ACIM1313 says:

          Many years ago, just after Roe v Wade was upheld, I worked in a clinic that did pregnancy care, as well as abortions. Sadly, BMAZ, there were many girls who were pregnant due to rape by their brothers, step-brothers, fathers, step-fathers, mom’s boyfriends, uncles, cousins, neighbors and family “friends”. Many more than is commonly known, because all these heinous acts by “men” were mostly kept secret. YOU may doubt it, but you will never know what these girls went through, and are STILL going through. If you saw what I saw, you would not be so dismissive.

        • bloopie2 says:

          New tourist slogan for the Grand Canyon State:

          “Arizona: Proud to welcome rapists who want to have babies.”

        • Paulka123 says:

          Speaking of AZ. Has anyone else seen the video of AZ legislators praying on the well of the state house? Where they are literally speaking in tongues?

          The video is on X which I refuse to link to

        • Rayne says:

          Not cool lecturing women on reproductive healthcare access — that would be me, who also now worries about a daughter who must refuse travel to yet another state on business because she can’t be certain she’ll get the care she needs in an emergency. The challenge to girls’ and women’s health is much the same now in Arizona as it is in other states like Texas and 12 other states where abortion is illegal.

          Your comment also doesn’t explain the uptick in abortions since Dobbs which was the point to which I was responding.

      • Bob Roundhead says:

        If this were true, there would not be six justices on the court who belong to The Federalist Society and have longstanding relationships with its founder. The corruption of Thomas and the political mechanisms used to put Goresh and Coney-Barret on the court are just more nails in the coffin used to bury the courts integrity. IMO, to think otherwise is just magical thinking.

        • bmaz says:

          Lol, again, you think the justice system is your savior. It is not. Perhaps there should have been a different take nationally when the “but her emails” trope was raging. Elections have consequences.

        • Bob Roundhead says:

          Just the opposite. I have never trusted the justice system, especially SCOTUS. It is a system populated at is top by Christian Fundamentalists and zealots doing the bidding of billionaires. Salvation comes with the rule of law. Elections do have consequences. This is why the justice system and this court appear to be trying to corrupt the integrity of our elections. Look, I am no lawyer, but you don’t need to be a weatherman to tell which way the wind is blowing

        • Bob Roundhead says:

          Which part is horse manure? That many of the justices are Christian Fundamentalists? That they are part of a radical political group called the Federalist society? Try to be specific. Bush v Gore disabused me of the notion that salvation is in the Judiciary. Salvation comes through constant and unrelenting electoral process, as this court demonstrates. I don’t want the courts to save my butt. I want to destroy this court through the electoral process and create something better. That’s what the conservatives did, isn’t it?

        • Just Some Guy says:

          Nor is anyone here required to respect the Supreme Court, especially the current one. It’s a comment board on a blog, not a courtroom.

        • earlofhuntingdon says:

          This is more than a comment board on some blog, where anyone’s tangent can be pursued at length. It’s Marcy Wheeler’s place, and it’s especially well-curated.

        • Bob Roundhead says:

          I never inferred anyone was obligated to do anything. I just pointed out that there is a very compelling argument to be made that SCOTUS is about supporting other’s political and public beliefs. In doing so I was told I was looking for salvation from the courts. I am not.

        • paulka123 says:

          If Trump is reelected there will be plenty of blame to go around and the justice system will not be immune.

        • Just Some Guy says:

          If only the Supreme Court had a Justice Ganesh. They’d definitely be the best, and only, elephant-headed four-armed jurist!

    • paulka123 says:

      In what manner can one experience this Supreme Court caring about the political fallout over their rulings, delays, adjudications, and blatant corruption? In what specific ways is this Supreme Court’s political viability impacted by, again, such things as accepting bribes, delaying adjudication to the benefit of an obvious criminal, creating precedence out of whole cloth, grabbing power from the legislative branch by a major doctrines thingamabob or wishing cause for plaintiffs out of thin air?

      Cause I see no “f’s” given by this court.

  6. Amicus12 says:

    There are times you need to tip your hat in admiration. It’s an outstanding brief.

    I will go back to my supposition, that a significant number of Justices wanted to hear this case to address an important, novel, issue of Constitutional law that was not well addressed at the appellate level. Going forward, the President needs to have a meaningful rule-of-the-road to exercise Article II powers without the looming threat of criminal prosecution.

    The appeals court’s ministerial vs. discretionary framework is inadequate for that purpose. So, Smith & Co. have proposed an elegant standard.

    “Under this Court’s established separation-of-powers framework, a claim of presidential exemption from a statutory limitation requires the President to identify an Article II basis that precludes the application of that congressional act. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-638 (1952) (Jackson, J., concurring).” Brief for the United States at 4.

    That is an elegant formulation of Constitutional law. I find it the single most important statement in the brief, and hopefully, one that at least five Justices can agree upon. And as Smith & Co. go on to point out, the petitioner has made no showing that the conduct at issue falls within this standard.

    This case is not a good vehicle for deciding hard issues of Constitutional law, because, as Smith & Co. point out, the conduct at issue here is fundamentally private. For more on this point, as well as more about Marbury, and how it has little to nothing to do with the matter at hand, I would recommend reading the Public Citizen amicus brief. (Go to the Supreme Court website and under the docket tab type in “23-939” to pull up all of the briefs. There is no shortage of briefs to read for those so inclined.)

    Despite the problem of answering a difficult abstract question divorced from the facts of the case, Smith & Co., on behalf of “the United States,” have done so. Kudos.

    • Peterr says:

      I was delighted and not a bit surprised to see that Youngstown was the very first case directly cited by Smith, with the section you quoted.

      A very elegant brief indeed.

      • scroogemcduck says:

        Interesting side note – the Youngstown case was resolved, from start to finish, in approximately 8 weeks.

        • Peterr says:

          It also had the pressure of a threatened strike by steel workers in the middle of the Korean War. I do not know, but strongly suspect, those circumstances encouraged *everyone* to move the case along swiftly.

  7. John Paul Jones says:

    In B:II, the brief raises an issue I had not thought of before, that is, could some evidence be excluded because it dealt with conduct related to official acts? If so, such a decision by SCOTUS might effectively kneecap the entire prosecution, especially since the question was framed by them in the first place as relating to “official acts or not official.”

    • SteveBev says:

      I am not sure that SCOTUS could necessarily knee-cap the entire prosecution — except by artificially designating the gravamen of the conduct alleged against Trump as official acts and ruling that they are acts for which there is immunity.

      The only acts that SC concedes as coming close to being official as opposed to private acts are Trumps orders to DOJ officials to assert they have evidence to warrant investigating electoral interference, and the whole sequence involving Rosen, Donoghue and Clark. And the point being that such evidence may be excluded as conduct founding the criminal charges, but the evidence of the speech and conduct would nevertheless be admissible as relevant to Trump’s motive and intent in relation to all the other acts of a private nature which nevertheless found the charges against him.

      Interestingly one amicus brief is focused exclusively on the criminality or otherwise of this discrete set of official actions
      Brief of Marty Lederman

    • timbozone says:

      This would be hard to do if the current US President waves any adjudicated privilege the Court may decide may apply to official acts. Elections do have consequences, one of those consequences being that the former US President does not get to tell the current President how to conduct any exercise of any privileges that the US Supreme Court may decide the President may exercise.

  8. Fran of the North says:

    As always, late to the party, but Count 1 is ConFraudUS, which somewhat-long-term readers will remember was one of EW’s first points on potential indictments made on this topic (although it might have been prior to J6 and associated with Mueller’s investigation???).

  9. dopefish says:

    The docket also shows at least 14 amicus briefs that were all filed in support of Respondent (the prosecution) yesterday alone, and it looks like there’s more than 20 other amicus briefs from before April 8th (I didn’t count how many favored each party).

    Is it common for a Supreme Court appeal to attract so many amicus briefs?

    • Ebenezer Scrooge says:

      Amicus briefs are very common in hot-button issues at the Supreme Court. Maybe too common. A lot of those briefs are really addressed to the membership of the organizations that sponsor them, and are a waste of the Court’s time.
      When you get to the more bread-and-butter issues, you will typically see amicus briefs from trade associations. Otherwise, crickets, especially at the intermediate appellate level where such briefs would do the most good.

      • P-villain says:

        The Lederman brief SteveBev linked to is a good example. Law Prof admits up front his brief does not address the Question Presented, but urges SCOTUS to provide dicta on the precise issue of criminal law that interests him. Like that would actually happen.

        • John Paul Jones says:

          SCOTUS framed its question around immunity for “official acts.” Lederman argues that even the portions of the indictment which implicate official acts (the DOJ/Clark bits) are not able, based on statute, history, constitution, to be covered by immunity. Since the SC only addresses that relatively briefly, I think Lederman (who seems to be a serious guy, served at OLC, etc etc) wanted to maybe fill in that hole.

          Anyway, I enjoyed reading it.

  10. David F. Snyder says:

    The 2015 same-sex-marriage cases at the Supreme Court had a record number of friend-of-the-court briefs: 148 of them. Obamacare (2013) held the previous record of 136.

    • Bay State Librul says:

      It is time to rate our judicial system. For the last four years, I’ve seen so much bullshit hurled back and forth that my rating is on the low side.
      We have at this point been engaging in “overthink”
      Overthink to death!

  11. P-villain says:

    What bearing, if any, might the Supremacy Clause argument in SC’s footnote 8, have on the Willis prosecution? She is one of the “2,300 district attorneys.”

    • John Herbison says:

      I read footnote 8 as saying, don’t be distracted by Trump’s red herring — a reminder that any prosecution in state court is not implicated by the case at bar.

    • SteveBev says:

      FN 8 cites to Vance which concerned subpoenas of sitting President. The argument also encompassed by attempted analogy by Trump to the rationale for temporary immunity from prosecution for sitting Presidents in the federal system, and a slippery slope argument that DA’s round the country could harass a sitting President. SCOTUS rejected the argument by reference to the Supremacy Clause as a mechanism to prevent State prosecutions of sitting Presidents.
      See discussion in Vance pp 15-17 of slip decision p20-22 pdf

      • P-villain says:

        Thanks; I did not realize that the argument on that point was limited to actions against sitting Presidents. Makes perfect sense.

  12. Portly-CHANGE-REQD says:

    Would some of you weigh in on the amicus brief filed (this week?) by military and intelligence people…? Will it bring much gravitas?

    [Welcome back to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We have moved to a new minimum standard to support community security. Thanks. /~Rayne]

    • SteveBev says:

      She seemed particularly resentful that SC failed to help her enough in earlier framings of their motions, which contained the unforgivable error of presuming the Court had a passing familiarity with basic criminal trial procedures.

  13. P J Evans says:

    Over at the elephant place, I was trying to explain why the seditious members of Congress aren’t going to be arrested and tried anytime soon. The person I was trying to educate was wanting to go for treason. I was saying that actual lawyers don’t think so.

  14. Leading Edge Boomer says:

    Best bit from Smith’s brief: “The President’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them.”

Comments are closed.