The Supreme Court has not only held that states cannot enforce the 14th Amendment for Federal offices,

This case raises the question whether the States, in addition to Congress, may also enforce Section 3. We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.

But it held that Congress must exclude insurrectionists from office.

The respondents nonetheless maintain that States may enforce Section 3 against candidates for federal office. But the text of the Fourteenth Amendment, on its face, does not affirmatively delegate such a power to the States. The terms of the Amendment speak only to enforcement by Congress, which enjoys power to enforce the Amendment through legislation pursuant to Section 5.

It points to the predecessor to 18 USC 2383 as means to exclude someone.

Instead, it is Congress that has long given effect to Section 3 with respect to would-be or existing federal officeholders. Shortly after ratification of the Amendment, Congress enacted the Enforcement Act of 1870. That Act authorized federal district attorneys to bring civil actions in federal court to remove anyone holding nonlegislative office—federal or state—in violation of Section 3, and made holding or attempting to hold office in violation of Section 3 a federal crime. §§14, 15, 16 Stat. 143–144 (repealed, 35 Stat. 1153–1154, 62 Stat. 992–993). In the years following ratification, the House and Senate exercised their unique powers under Article I to adjudicate challenges contending that certain prospective or sitting Members could not take or retain their seats due to Section 3. See Art. I, §5, cls. 1, 2; 1 A. Hinds, Precedents of the House of Representatives §§459–463, pp. 470–486 (1907). And the Confiscation Act of 1862, which predated Section 3, effectively provided an additional procedure for enforcing disqualification. That law made engaging in insurrection or rebellion, among other acts, a federal crime punishable by disqualification from holding office under the United States. See §§2, 3, 12 Stat. 590. A successor to those provisions remains on the books today. See 18 U. S. C. §2383. [my emphasis]

Taken in tandem with SCOTUS’ punt on Trump’s immunity bid, this seems like an invitation for Jack Smith to supersede Trump with inciting insurrection. After all, SCOTUS has now upheld the DC Circuit opinion that says there’s no double jeopardy problem with trying someone for something on which they were acquitted after impeachment.

Jack Smith could — today — charge Trump with inciting insurrection in response to this order. It is the one Constitutional means to disqualify him, according to this order.

Whatever else the SCOTUS grant of Trump’s immunity claim did, it provided the basis for scheduling clarity.

It seems likely SCOTUS has committed to deciding the immunity question by the end of term, in June.

That would present Tanya Chutkan with the decision of whether to try the January 6 case during the election season (it is her choice, not DOJ’s to make). She had been entertaining starting the trial in August, which would have bled into election season as it is, so she may decide to do this. If she does, it is unlikely a jury would reach a verdict before election day, but the trial would give voters opportunity to see the evidence before voting.

The decision to grant cert is as interesting for Trump’s other immunity claim — Trump’s even more frivolous claim that he can’t be prosecuted for stealing boxes and boxes of classified documents because his claimed decision to convert those government documents to his personal possession in violation of the Presidential Records Act is immune from prosecution, as well. I’ve seen some commentary that SCOTUS may have been trying to come up with a different solution but then decided to hear the case. If that’s true, the decision to hear the case came less than a week after Trump made that other claim of immunity, that he can steal classified documents with impunity. Who knows? It’s not before the court, but it may have affected their decision to hear the case.

The matter will be fully briefed by the time Jack Smith submits his brief to SCOTUS on April 8. So he can have two absurd claims of immunity to address, Trump’s claim he can steal the election with impunity, and Trump’s claim he can convert boxes and boxes of classified documents to do with as he pleases on the way out the door even if it violates the Presidential Records Act, a law passed specifically to apply to Presidents. One of the matters that had been hypothetical before the DC Circuit — that Trump might sell nuclear documents to our adversaries — has become concrete.

Given the question as posed by SCOTUS — Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office? — I think SCOTUS may have been uncomfortable with the DC Circuit’s thin treatment of Trump’s argument that, without immunity, former Presidents could be prosecuted for things like approving the drone strike on Anwar al-Awlaki (note, when Trump raises this, he never mentions that he himself killed Awlaki’s daughter).

Former President Trump argues that criminal liability for former Presidents risks chilling Presidential action while in office and opening the floodgates to meritless and harassing prosecution. These risks do not overcome “the public interest in fair and accurate judicial proceedings,” which “is at its height in the criminal setting.” Vance, 140 S. Ct. at 2424.

Former President Trump first asserts that the prospect of potential post-Presidency criminal liability would inhibit a sitting President’s ability to act “fearlessly and impartially,” citing the “especially sensitive duties” of the President and the need for “bold and unhesitating action.”

There has to be something that distinguishes such actions from those charged against Trump. That something is likely the conversion of the Presidency to one’s own personal benefit. It’s not in the DC Circuit opinion and needs to be — all the more so given that, in Florida, Trump is claiming that he could legally simply convert boxes and boxes of classified documents to his personal property, even though the Presidential Records Act prohibits it.

It’s not in the DC Circuit opinion. But something like that has to be, some measure to distinguish the ordinary unlawful stuff Presidents are asked to authorize on behalf of the country and the venal stuff Trump did to benefit himself.

Tomorrow, Judge Cannon will hold a hearing to discuss how to schedule that trial. Her original schedule included six months of things after pretrial motions, which would put her schedule at September as well (though she’s obviously more likely to stall until after the election). But one thing she can expect is that, by June, Trump’s immunity claim will be resolved.

Update: Here’s the language from Trump’s brief that addresses this problem.

The panel opinion ignores the long history of real-world examples of Presidents engaging in actual behavior that political opponents viewed as egregious and “criminal.” Instead, keying on the Special Counsel’s arguments, the panel fretted about lurid hypotheticals that have never occurred in 234 years of history, almost certainly never will occur, and would virtually certainly result in impeachment and Senate conviction (thus authorizing criminal prosecution) if they did occur—such as a hypothetical President corruptly ordering the assassination of political rivals through “SEAL Team Six.” D.C. Cir. Oral Arg Tr. 10:19-21. Such hypotheticals provide fodder for histrionic media coverage, but they are a poor substitute for legal and historical analysis. Confronted with real-world hypotheticals—such as President Obama’s killing of U.S. citizens by drone strike—the Special Counsel conceded below that Presidential immunity from criminal prosecution for official acts likely exists and would apply, directly contradicting the “categorical,” App’x 20A, holdings to the contrary of both the appellate panel and the trial court. D.C. Cir. Oral Arg Tr. 49:18-22 (Special Counsel admitting that a “drone strike” where “civilians were killed … might be the kind of place in which the Court would properly recognize some kind of immunity”). Further, the logical presupposition of such speculative hypotheticals—i.e., that the Founders supposedly must have intended that no alleged Presidential misdeed could ever escape prosecution—is plainly incorrect and contradicts the basic premises of a system of separated powers. “While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty.” Morrison, 487 U.S. at 710 (Scalia, J., dissenting).

Jack Smith’s response doesn’t really deal with this issue in depth.

7 A sufficient basis for resolving this case would be that, whatever the rule in other contexts not presented here, no immunity attaches to a President’s commission of federal crimes to subvert the electoral process. See Amici Br. of John Danforth et al., at 7. The court of appeals’ analysis was “specific” to the allegations that applicant conspired to “overturn federal election results and unlawfully overstay his Presidential term,” Appl. App. 31A, and a stay can be denied on that basis alone, leaving for another day whether any immunity from criminal prosecution should be recognized in any circumstances. See Gov’t C.A. Br. 45-49 (explaining that foreign affairs are not implicated in this case); cf. Nixon, 418 U.S. at 707, 710, 712 n.19 (reserving whether an absolute presidential-communications privilege might exist for military, diplomatic, or national security secrets).

I’m close to bed, so I won’t read it here, but here is Jack Smith’s SCOTUS response on Trump’s immunity claim. This was Trump’s appeal.

Remember that this was technically an application for a stay, not the entire appeal (though one option for SCOTUS is that it treats Trump’s request as a cert position). What Jack Smith is arguing is that the stay should be lifted.

[NB: check the byline, thanks. /~Rayne]

Because everyone will likely be restless and itchy about today’s hearing, I’m putting up an open thread.

Feel free to discuss Trump v. Anderson here but bring all your off-topic discussion to this thread, stay on topic in other threads.

Wikipedia page for Trump v. Anderson here, in case you need a primer:

Trump v. Anderson (No. 23-719, filed January 3, 2024)

In a nutshell, Colorado’s state supreme court found Donald J. Trump disqualified from the state’s primary ballot under Section 3 of the 14th Amendment which bars candidates who have participated in insurrection or rebellion against the Constitution in spite of swearing an oath to uphold and defend the Constitution.

Trump appealed the ruling; the U.S. Supreme Court will hear oral arguments today.

The hearing is scheduled to begin at 10:00 a.m. ET.

You can listen to the arguments at https://www.supremecourt.gov/oral_arguments/live.aspx – they are expected to run over the scheduled 80 minutes.

Long-time community member harpie has shared quite a few more resources pertinent to today’s arguments below in comments (thanks, harpie!).

~ ~ ~

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Thank you.

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.

The opinion is here. They’ve also issued the mandate on a tight clock.

Today, we affirm the denial. For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.

They did use collateral order doctrine to establish jurisdiction.

Although both parties agree that the Court has jurisdiction over former President Trump’s appeal, amicus curiae American Oversight raises a threshold question about our collateral-order jurisdiction. In every case, “we must assure ourselves of our jurisdiction.” In re Brewer, 863 F.3d 861, 868 (D.C. Cir. 2017). Under 28 U.S.C. § 1291, which grants us jurisdiction over “final decisions of the district courts,” id., “we ordinarily do not have jurisdiction to hear a defendant’s appeal in a criminal case prior to conviction and sentencing,” United States v. Andrews, 146 F.3d 933, 936 (D.C. Cir. 1998). The collateral-order doctrine, however, treats as final and thus allows us to exercise appellate jurisdiction over “a small class of [interlocutory] decisions that conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and are effectively unreviewable on appeal from a final judgment.” Citizens for Resp. & Ethics in Wash. v. Dep’t of Homeland Sec., 532 F.3d 860, 864 (D.C. Cir. 2008) (cleaned up). The district court’s denial of former President Trump’s immunity defense unquestionably satisfies the first two requirements and thus we focus our analysis on the third: whether the denial of immunity is effectively unreviewable on appeal from a final judgment.

Here’s how the opinion dealt with Trump’s Marbury argument. This language would have come from Judge Henderson (the opinion clearly has a lot of input from all three).

We therefore conclude that Article III courts may hear the charges alleged in the Indictment under the separation of powers doctrine, as explained in Marbury and its progeny and applied in the analogous contexts of legislative and judicial immunity. The Indictment charges that former President Trump violated criminal laws of general applicability. Acting against laws enacted by the Congress, he exercised power that was at its “lowest ebb.” Youngstown, 343 U.S. at 637 (Jackson, J., concurring). Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.

This part of the ruling could be seen as limiting it to Blassingame.

We note at the outset that our analysis is specific to the case before us, in which a former President has been indicted on federal criminal charges arising from his alleged conspiracy to overturn federal election results and unlawfully overstay his Presidential term.8

8 We do not address policy considerations implicated in the prosecution of a sitting President or in a state prosecution of a President, sitting or former.

The opinion straight up says Trump’s Take Care Clause argument is bunk.

The President, of course, also has a duty under the Take Care Clause to faithfully enforce the laws. This duty encompasses following the legal procedures for determining election results and ensuring that executive power vests in the new President at the constitutionally appointed time. To the extent former President Trump maintains that the post-2020 election litigation that his campaign and supporters unsuccessfully pursued implemented his Take Care duty, he is in error. See infra n.14. Former President Trump’s alleged conduct conflicts with his constitutional mandate to enforce the laws governing the process of electing the new President.

This is an argument that I thought Jack Smith didn’t push enough.

Former President Trump’s alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government. He allegedly injected himself into a process in which the President has no role — the counting and certifying of the Electoral College votes — thereby undermining constitutionally established procedures and the will of the Congress. To immunize former President Trump’s actions would “further . . . aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress.” Youngstown, 343 U.S. at 654 (Jackson, J., concurring) (footnote omitted). As Justice Jackson warned:

Executive power has the advantage of concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear. No other personality in public life can begin to compete with him in access to the public mind through modern methods of communications. By his prestige as head of state and his influence upon public opinion he exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.

Id. at 653–54 (Jackson, J., concurring).

We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results. Nor can we sanction his apparent contention that the Executive has carte blan che to violate the rights of individual citizens to vote and to have their votes count.

* * *

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.

This section, turning Trump’s impeachment argument on its head, is the fruit of Florence Pan’s work in the hearing, surgically narrowing and then narrowing still further the issues.

Former President Trump agrees that the Impeachment Judgment Clause contemplates and permits the prosecution of a former President on criminal charges — he argues only that such a former President first must be impeached by the House and “convicted” by the Senate. Appellant’s Br. 12–14, 31. In other words, he asserts that, under the Clause, a former President enjoys immunity for any criminal acts committed while in office unless he is first impeached and convicted by the Congress. Under that theory, he claims that he is immune from prosecution because he was impeached and acquitted. By taking that position, former President Trump potentially narrows the parties’ dispute to whether he may face criminal charges in this case consistent with the Impeachment Judgment Clause: If the Clause requires an impeachment conviction first, he may not be prosecuted; but if it contains no such requirement, the Clause presents no impediment to his prosecution.

Former President Trump also implicitly concedes that there is no absolute bar to prosecuting assertedly “official” actions. He argues elsewhere in his brief that his impeachment on the charge of inciting insurrection was based on conduct that was the “same and closely related” to the “official acts” charged in the Indictment. Appellant’s Br. 46 (“President Trump was impeached and acquitted by the Senate for the same and closely related conduct to that alleged in the indictment.” (emphasis omitted)); id. at 42 (“[A]ll five types of conduct alleged in the indictment constitute official acts.”). And he agrees that if he had been convicted by the Senate in that impeachment trial, he would not be immune from prosecution for the “official acts” at issue here. See id. at 31. Thus, he concedes that a President can be prosecuted for broadly defined “official acts,” such as the ones alleged in the Indictment, under some circumstances, i.e., following an impeachment conviction. [my emphasis]

They note that Trump’s argument about Alexander Hamilton is followed immediately by Hamilton saying that Presidents must be unlike Kings.

To counter the historical evidence that explains the purpose of the Impeachment Judgment Clause, former President Trump turns to one sentence written by Alexander Hamilton in the Federalist 69: “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” The Federalist No. 69, at 337 (Alexander Hamilton) (Coventry House Publishing, 2015). He focuses on the word “afterwards” and suggests that a President is not “liable to prosecution and punishment” until “after[]” he has been impeached and convicted by the Senate. See Appellant’s Br. 14–15. But we think the more significant word in Hamilton’s statement is “liable,” which means “subject to.” Liable, 1 John Ash, New and Complete Dictionary of the English Language (1795). Hamilton specifies that a President would be subject to impeachment, trial, conviction and removal from office; and “afterwards” would be subject to prosecution and punishment, without regard to the verdict in the impeachment proceeding. 10 Moreover, in the very next sentence of the same essay, Hamilton stresses that the President must be unlike the “king of Great Britain,” who was “sacred and inviolable.” The Federalist No. 69, at 337–38. It strains credulity that Hamilton would have endorsed a reading of the Impeachment Judgment Clause that shields Presidents from all criminal accountability unless they are first impeached and convicted by the Congress.

The opinion names all the Senators who said they voted against impeachment because Trump was out of office.

Former President Trump’s interpretation also would permit the commission of crimes not readily categorized as impeachable (i.e., as “Treason, Bribery, or other high Crimes and Misdemeanors”) and, if thirty Senators are correct, crimes not discovered until after a President leaves office. See U.S. CONST. art. II, § 4; see also, e.g., 167 CONG. REC. S736 (daily ed. Feb. 13, 2021) (statement of Senate Minority Leader McConnell) (“We have no power to convict and disqualify a former office holder who is now a private citizen.”). 13

13 See also statements of Senators Barrasso, Blunt, Braun, Capito, Cornyn, Cramer, Crapo, Daines, Ernst, Fischer, Grassley, Hoeven, Hyde-Smith, Inhofe, Kennedy, Lankford, Lee, Lummis, Moran, Portman, Risch, Rounds, Rubio, Shelby, Sullivan, Thune, Tillis, Tuberville and Wicker.

Here’s another section on the import of Blassingame. They’re saying this decision is categorical — that is, there’s no need for analysis of whether these were official acts or not. But because Blassingame already ruled they were not, there’s no need to here.

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.

The opinion does rely, in part, on the fact that Jack Smith didn’t charge incitement to insurrection to dismiss Trump’s double jeopardy claim (I had wondered if Smith would add that charge based on the outcome here).

To the extent former President Trump relies on “double jeopardy principles” beyond the text of the Impeachment Judgment Clause, those principles cut against him. The Double Jeopardy Clause provides: “No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. CONST. amend. V. It has been interpreted to prohibit “imposition of multiple criminal punishments for the same offense.” Hudson v. United States, 522 U.S. 93, 99 (1997) (citation omitted). Under precedent interpreting the Double Jeopardy Clause, former President Trump’s impeachment acquittal does not bar his subsequent criminal prosecution for two reasons: (1) An impeachment does not result in criminal punishments; and (2) the Indictment does not charge the same offense as the single count in the Impeachment Resolution.

[snip]

Even if we assume that an impeachment trial is criminal under the Double Jeopardy Clause, the crimes alleged in the Indictment differ from the offense for which President Trump was impeached. In determining whether two charges are the “same” for double-jeopardy purposes, courts apply “the sameelements test” (also known as the “Blockburger test”): If “each offense contains an element not contained in the other,” the offenses are different. United States v. Dixon, 509 U.S. 688, 696 (1993) (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)) (cleaned up). If the charges at issue are not the “same offense” under that test, double jeopardy does not bar prosecution. Id. at 696–97.

Under the Blockburger test, none of the four offenses alleged in the Indictment is the same as the sole offense charged in the article of impeachment. The indicted criminal counts include conspiracy to defraud the United States under 18 U.S.C. § 371; conspiracy to obstruct and obstructing an official proceeding under 18 U.S.C. §§ 1512(c)(2), (k); and conspiracy to deprive one or more individuals of the right to vote under 18 U.S.C. § 241. See Indictment ¶¶ 6, 126, 128, 130. By contrast, the article of impeachment charged former President Trump with incitement of insurrection. See H.R. Res. 24, 117th Cong. (2021). Each of the indicted charges requires proof of an element other than those required for incitement. And the offense of incitement of insurrection requires proof of incitement — an element that is distinct from those associated with each of the crimes of indictment. In other words, the charges are not the same under a straightforward application of the Blockburger test.

[my emphasis]

Like everyone else, I anxiously await the DC Circuit decision on Trump’s immunity bid.

Unlike most people, I’m not yet convinced that the delay so far stems from Judge Karen Henderson deliberately stalling the decision.

To be sure, I identified Henderson as the key target for persuasion before the hearing. I even suggested she might happily join an opinion holding that unofficial acts may be charged criminally, without ruling regarding official acts.

Her statements at the hearing on immunity were a pleasant surprise; it seems she’ll easily reach that position, adopting at least the Blassingame standard that former Presidents can be charged for unofficial acts, like starting a coup to try to stay in office.

So, as I said, I’m still not convinced she’s stalling.

That’s because the decision is more complicated than most commentators appreciate.

There are three decisions in front of these judges. First, whether or not the court has jurisdiction to rule at all. Then, whether they should just rule for unofficial acts, like launching a coup to get reelected, or whether they should rule, generally, that Presidents can even be prosecuted for their official acts, like pardoning Roger Stone to buy his silence. Finally, they need to decide how to release the opinion, possibly in a way to give Trump fewer options to stall further.

Because the American Oversight amicus — a pretty convincing one! — raised a question about whether the DC Circuit had jurisdiction, it caused a potential split between Florence Pan and Michelle Childs, both Biden appointees, who otherwise seemed to agree on the scope of their ruling. Childs seemed very persuaded by the AO brief, and so very cautious about their basis to rule at all.

As a result, there’s no natural majority, meaning whatever opinion(s) get written will be far harder to map out. It is simply a far harder opinion than most people think, and if they get this wrong, it’s going to lead to far longer delays at both the en banc and SCOTUS level.

Talk to me in two weeks. If we’ve got no ruling then, I’m happy to start entertaining theories about deliberate delay.

What I don’t understand, however, is how the visible panic of a few TV lawyers who’ve been wrong every step of the way on the January 6 investigation has led to an all-out panic among Democrats.

The result has been self-inflicted impotence.

No judicial outcome will ever be sufficient, by itself, to beat Trump. No realistic Democrat should be staking their electoral hopes on one or some guilty verdicts — not because they wouldn’t help, but because you can’t control that.

Every single person reading this has in their power the ability to do something — whether it’s local electoral work, repeating discussions of Trump’s corruption so much that it begins to drown out stories about Hunter Biden, or educating your neighbors about Trump’s central role in rolling back reproductive choice — to help defeat Trump. Every second you spend worrying about Karen Henderson is time you’re not doing whatever it is that will be most useful in defeating Trump.

Stop making yourself impotent by worrying about the court cases. Stop hoping that any court case is going to be the Magical Sparkle Pony that makes this easy. Stop wallowing in provably false conspiracy theories about the January 6 investigation that ignore a bunch of public things the TV lawyers don’t talk about.

This is not going to be easy, I promise you. Find some way to make yourself useful to make it, at least, easier.

WaPo has an overdue profile of Mike Roman, the guy who threatens blow up the Fani Willis prosecution by exposing a romantic relationship between her and prosecutor Nate Wade.

It describes how the guy who recruited a bunch of the most prominent Republicans in swing states across the country to sign onto fraudulent certificates claiming Trump won had previously served as — basically — a spy, first for the Kochs and then for Trump.

As Mike Roman spoke to a gathering of fellow conservative activists in March 2022, he offered a glimpse of the intelligence-gathering skills he had honed over the previous decade working as an opposition researcher for Donald Trump and Republican megadonors.

“I show my wife this all the time when we go to a hotel,” Roman told the crowd in Harrisburg, Pa., according to an audio recording reviewed by The Washington Post. “She logs on to the Hilton WiFi, and I go on and I ‘tap, tap, tap,’ and I show her everybody else that’s on there and how we could get into their computer.”

But it fails to make a few key points clear. Consider what it means, for example, that this is the guy that the Koch brothers would use to pick Republican candidates to back.

Roman’s unit compiled a “Weekly Intelligence Briefing,” with information about political races and recommendations about where the network’s donors should contribute, according to a person who worked there with Roman and spoke on the condition of anonymity because he was not authorized to discuss the organization’s internal operations.

Or consider the real implications that Roman served in Trump’s White House in the guise of “vetting” candidates.

Roman was made a special assistant to the president and White House director of special projects and research, reporting to then-White House counsel Donald McGahn and earning $115,000 per year. Roman was a private investigator of sorts for McGahn’s office, responsible for vetting potentially controversial nominations, according to a former senior administration official.

“It would be like, ‘We’ve heard an appointee might have a shady business deal,’ or ‘Counsel is hearing something about a presidential nominee that could cause a huge problem for us. Can you figure it out?’” the former official said, speaking on the condition of anonymity to discuss sensitive White House work.

Trump in no way eschewed “appointees [with] a shady business deal.” His Secretaries of Treasury and Commerce had fairly astounding shady business deals, as did Trump’s son-in-law (though he was never going to be subject to vetting). The culmination of Don McGahn’s tenure as White House Counsel was installing Brett Kavanaugh on the Supreme Court, and the rape allegations against Kavanaugh obscured further problematic allegations still further.

If Mike Roman was in charge of vetting, he let a lot of epically corrupt people through his “vetting” process.

So yeah, as I noted the moment the Fani Willis scandal broke and this story confirms, it was no surprise that any vulnerabilities Fani Willis had were discovered by Mike Roman.

Going on the offense against the prosecutor was a trademark Roman tactic, according to the former senior official on Trump’s 2020 campaign. “This is a classic Mike Roman move,” the former official said. “When I saw the filing, I said, ‘That’s Mike.’ It’s a good one.”

But once you understand that Roman’s focus has traditionally been trained on Republicans at least as much as Democrats, a lot else begins to make sense.

Update: As someone noted to me on Twitter, Roman had actually gone to RNC by the time Kavanaugh was nominated.

Update: Here’s Fani Willis’ response to Roman’s allegations. She doesn’t deny a personal relationship but says it post-dates when she hired Nate Wade. I’m not going to wade [sic] through it, but will link credible analysis when I see it.