I just won the case in Florida. Everyone said that was the biggest case, that was the most difficult case. And I just won it.

Biden has a similar case, except much worse. I was protected under the Presidential Records Act. Biden wasn’t, because he wasn’t President at the time. And he had 50 years worth of documents, and they ruled that he was incompetent, and therefore he shouldn’t stand trial.

And I said, isn’t that something? He’s incompetent and he can’t stand trial — and yet, he can be President. Isn’t that nice? But they released him on the basis that–

[Goba attempts to interrupt]

— that he was incompetent. They said he had no memory, nice old guy, but he had no memory. Therefore we’re not gonna prosecute him.

I won the case. It got very little publicity. I didn’t notice ABC doing any publicity on it, George Slopodopoulos. I didn’t notice you do any publicity on it at all.

[Scott tries to interrupt]

I won the case, the biggest case. This is an attack on a political opponent. I have another one where I have a hostile judge

Scott: Sir, if you don’t mine, we have you for a limited time. I’d love to move onto a different topic.

Trump: No excuse me, you’re the one that held me up for 35 minutes.

The three women who attempted to interview Trump yesterday had an uneven performance. At times, their questioning flummoxed Trump. But in several cases, when he took over the interview, they just sat there silently as he lied at length.

A particularly egregious moment came in his false claims about the parallel investigations into his and President Biden’s retention of classified information. Trump told several lies without (successful) interruption. It was an unfortunate missed opportunity for correction, because Trump repeats these lies in his stump speech all the time, and it may be some time before someone competent has the ability to correct them in real time again.

Since Trump is going to keep telling the lie, I’d like to talk about how to fact check it.

Elements of the Offense

It starts with the elements of the offense — the things that prosecutors would have to prove if presenting this case to a jury. While Aileen Cannon has entertained doing fairly novel things with jury instructions, a model jury instruction for 18 USC 793(e), the statute considered with both men, includes the following five elements:

Did the defendant have possession of documents without authorization? The investigations into both Trump and Biden started when the Archives became aware that they had classified documents at their home. Contrary to what Trump said, the Presidential Records Act applies to both him and Biden, insofar as both were required to turn over any document that was a Presidential record when the Administration in which they served ended. That’s the basis of the proof that they had unauthorized possession of the documents that happened to be classified. That said, the PRA has an exception, however, for, “diaries, journals, or other personal notes serving as the functional equivalent of a diary,” which is relevant to why Biden wasn’t charged in two of four items Robert Hur considered charging seriously.

Trump has claimed that he had the ability to convert Presidential Records — even highly classified ones — into personal records, and thereby to take them home. But if this ever goes to trial, prosecutors would show that Trump first espoused that theory, which he got from non-lawyer Tom Fitton, in February 2022, long after the time he would have had to convert the documents to personal records.

Did the document in question relate to the national defense? The question of whether a document is National Defense Information or not is left to the jury to decide. That’s likely one reason why Jack Smith’s team included a bunch of highly classified documents among those charged. Generally, juries are asked to decide whether the government continues to take measures to keep a charged document secret, and whether it has to do with protecting the United States. A number of the documents charged against Trump pertain to either the US or other countries (like Iran’s) nuclear weapons programs.

Did the defendant have reason to believe the information could be used to the injury of the United States or to the advantage of any foreign nation? Generally, prosecutors prove this by pointing to training materials cleared personnel get on classified information, and that’s one reason Jack Smith obtained the letters Trump’s White House sent out about classified information. With both Trump and Biden, however, prosecutors would also rely on their public comments talking about how important it is to protect classified information. In Trump’s case, prosecutors would or will use both the things he said to Mark Meadows’ ghost writer and Susie Wiles when he shared classified information, but also the things he said during the 2016 campaign — targeted at Hillary — about the import of protecting classified information.

Did he keep this document willfully? For both men, prosecutors would need to show that they realized they had classified documents, and then retained them. Given the extended effort to recover documents from Trump, it would be far easier to do for Trump than for Biden.

Did the defendant retain the above material and fail to deliver it to the officer or employee of the United States entitled to receive it? This is an element of the offense that Robert Hur misstated in his report (as I wrote here). It’s not enough to prove that someone willfully retained classified documents he wasn’t authorized to have, you also have to prove he failed to give them back. Normally, this is done (in part) by pointing to someone’s exit interview, when they are read out of their compartments and asked to give everything back. Because Presidents and Vice Presidents don’t have clearance and so aren’t read out of them, it is normally harder to prove that someone affirmatively refused to give documents back. But not in Trump’s case, which is what really distinguishes him from Biden, because the Archives and DOJ kept asking for the documents, including via subpoena, and Trump kept playing games to withhold them.

Theories of Biden Crime

There were four main documents or sets of documents for which Robert Hur considered charging Biden. They don’t include the 50 years of documents Trump described. Those were included in boxes of documents sent to universities; most were barely classified still if at all, and since Biden had given them away, it would be hard to prove he intentionally kept them.

Iran documents: The most sensitive documents found in the Biden investigation were some documents pertaining to Iran found in a box in a closet in Penn Center. Hur determined they had been sent to the Naval Observatory for a meeting Biden had with a bunch of Senators to suss out where they were on Obama’s Iran deal. They may never have gotten moved back to the White House, and were likely stuck in a box and moved to Penn Center by staffers when Biden moved out of the Naval Observatory. These documents were unquestionably Presidential records and National Defense information, but Hur had no evidence Biden knew they were there.

Afghan documents: Hur spent a lot of time trying to prove that, when Biden told his ghost writer during a meeting in his Virginia house on February 16, 2017 that, “I just found all this classified stuff downstairs,” he was referring to several dated folders pertaining to Afghanistan that were found in a ratty box in Biden’s garage in a consensual search. There were many problems with this theory: Hur couldn’t prove that the documents had ever been in the Virginia house (and so could have been downstairs when Biden made the comment); he couldn’t prove that Biden had personally put them in the box where they were found; he couldn’t come up with a compelling argument for why he would have retained them. When Hur included his language about what a forgetful old fogey Biden was, he did so to cover the possibility that Biden forgot he had the documents he hypothetically discovered in 2017 and so didn’t return them at that point, in 2017. But Hur would never have gotten close to where Biden would be relying on faulty memory, because Hur didn’t have very compelling evidence to prove his hypothesis about how the documents got into the garage in the first place, much less that Biden was involved in that process.

Afghan memo: Hur’s extended effort to make a case out of the Afghan documents was particularly difficult given that the best explanation for what Biden was referring to when mentioning classified documents was a 40-page handwritten memo Biden sent Obama in Thanksgiving 2009 to try to dissuade him from surging troops in Afghanistan. (The second best explanation for what Biden was referring to was a set of documents he had recently returned in 2017 when he made the comment.) That memo was found in a drawer in Biden’s office. Biden ultimately admitted to keeping it for posterity, meaning it might fall under the PRA exception for diaries. Because it was handwritten, it had no classification marks and couldn’t be proven to have obviously classified information, much less information still classified in 2023, when it was found.

Diaries: The FBI also found a bunch of notebooks that Biden called diaries and Hur called notebooks. When reading them to his ghost writer, Biden exhibited awareness they included sensitive information, which Hur argued was proof he knew they had classified information. Biden had a very good case to make that these fell under the PRA exception for diaries, as well as decades of precedent, including Ronald Reagan, that DOJ would not charge someone for classified information in his diaries. It would have been impossible to prove that Biden willfully retained something he knew he couldn’t retain, because Biden knew other Presidents and Vice Presidents hadn’t been prosecuted for doing the same exact thing.

There simply was no document or set of documents for which Hur could prove all the elements of offense.

Why You Can Charge Trump

As noted above, the thing that distinguishes Trump from Biden is that Biden found classified documents and invited the FBI to come look for more, making it virtually impossible to prove the final element of offense (the one Hur botched), that Biden refused to give them back.

Trump, by contrast, spent a full year refusing to give documents back, including after DOJ specifically subpoenaed him for documents with classification marks.

There were 32 documents charged against Trump. They include:

• The document that Trump showed to Meadows’ ghost writers in 2021 and acknowledged was classified; that was returned to NARA in January 2022. You can charge this because prosecutors have a recording of Trump acknowledging it was classified months before he ultimately returned it.
• Ten documents among those returned in response to a subpoena in June 2022. It’s unclear how Smith intends to prove that Trump knew he had these after he returned the first set of documents in 2021. But most if not all of them date to fall 2019, so he may know why Trump would have retained them. Matt Tait has argued at least some of them pertain to the US withdrawal from Turkey.
• Ten documents found, in the August 2022 search, in the same box also containing bubble wrap and a Christmas pillow. Among the ten documents was one classified Formerly Restricted, meaning that, under the Atomic Energy Act, Trump could not have declassified it by himself.
• Five more documents, also found in August 2022, that had been stored in boxes in the storage closet, including the one captured in a picture Walt Nauta took of documents that had spilled out of the boxes.
• Three documents found during the Mar-a-Lago search in the blue leather bound box found in the closet in Trump’s office. At least a few of these likely pertain to Trump’s withdrawal from the Iran deal. These are likely documents that Trump referred to.

For every charged document besides the Iran one, then, prosecutors can show that Trump withheld the documents after he first returned documents in January 2021. Trump will certainly argue that he may not have known he had those specific documents. But Trump’s decision to end his sorting process in January 2021 and his efforts to thwart Evan Corcoran’s June 2022 search will go a long way to prove intent.

How Trump’s Case Got Dismissed

Trump falsely claimed he “won” his classified documents case. That’s false: Aileen Cannon dismissed it, just in time for the RNC. Her argument that Jack Smith was unconstitutionally appointed isn’t even the primary one that Trump’s attorneys were making: that Smith required Senate approval and that his funding was improper. Rather, she argued that Merrick Garland simply didn’t have the authority to appoint Smith in the way he did.

There are several reasons the distinction is important.

First, if SCOTUS upholds Cannon’s theory, then it will hold for all similar appointments. That extends unquestionably to Hur’s appointment, because like Smith he was a non-DOJ employee when appointed. It likely also extends to Alexander Smirnov, into whom most investigative steps occurred after David Weiss was appointed as a Special Counsel under the same terms as Smith and Hur, and whose alleged crimes happened somewhere besides Delaware. Whether it applies to Hunter Biden is a closer question: Judge Mark Scarsi seems poised to argue that since Weiss had already charged Hunter, his appointment is different (and given the way Scarsi has worked so far, I don’t rule out him trying to find a way to make this unappealable).

In other words, if the steps Jack Smith took after November 2022 were unconstitutional, then it means everything Hur did after January 2023 was also unconstitutional. If Trump “won,” then he needs to stop making any claims about Hur’s interview with Biden, because it was unconstitutional.

More importantly, not even Aileen Cannon has ruled that Trump didn’t knowingly and intentionally retain classified documents. All she has ruled is that if DOJ wants to charge him for it, they need to recreate the investigative steps completed since November 2022, under the review of US Attorney for Southern Florida Markenzy Lapointe.

The other day, during an address to a Turning Point conference, Trump implored,

Christians, get out to vote. You won’t have to do it anymore. Four more years, it’ll be fixed, it’ll be fine. You won’t have to vote anymore my beautiful Christians. I love you. I’m [not/a] Christian.You have to get out and vote. In four years, you won’t have to vote again, we’ll have it fixed so good you’re not going to have to vote.

Horse race journalists didn’t care. They found it more important to repeat and therefore magnify Trump’s latest slur on Vice President Harris.

When I first looked at how NYT covered it at 3:37AM ET, this was their headline.

At 8:311AM, this story from Michael Gold was published. It still focused on magnifying the slurs Trump used against Harris.

That story included Trump’s comment about voting, along with Gold’s spin of it as a claim that Trump would address the concerns of Christian voters sufficiently that they would no longer have to vote, buried in ¶14.

At the end of his speech, Mr. Trump urged the religious crowd to vote in November, suggesting that if elected he would address their concerns sufficiently enough that they would no longer need to be politically active. Earlier, he had lamented that conservative Christians do not vote proportionately to their size, a complaint he has made repeatedly in recent weeks.

“Christians, get out and vote. Just this time,” Mr. Trump said on Friday. “You won’t have to do it anymore, you know what? Four more, years, it’ll be fixed, it’ll be fine, you won’t have to vote anymore, my beautiful Christians.”

Let it be noted that one of NYT’s allegedly professional horserace journalists believes that the white Evangelical Christians who have been among Trump’s most important supporters vote in disproportionately low numbers or that any Republican would forego that most important part of their coalition. (That said, for demographic reasons Trump can’t change with a speech, white Evangelicals make up an increasingly smaller proportion of the voting public, which poses an entirely different kind of threat than apathy.)

Only much later, around noon ET, did Gold figure out that the “not have to vote” stuff was far more newsworthy than Trump calling the Vice President a “bum.”

In spite of disinterest by journalists paid to write horserace stories, the clip went viral on social media, setting off a debate about what Trump meant. Right wing trolls pushed the same horseshit claims of low turnout (again, we’re talking about the in-person and TV audience for a Turning Point conference!) that Gold provided. Others attributed it to Trump’s narcissism, a suggestion that he only cares about votes so long as he would be on the ballot.

Three Sunday morning shows dealt with it — all abysmally.

Martha Raddatz for example, let Chris Sununu dismiss the comments as a “classic Trumpism,” without asking what he meant by “this stuff” when he said it “can be fixed.” Then she went back to the horse race.

There are several things people are ignoring.

First, Trump said something quite similar — and he said it at another Turning Point conference — just a month and a half ago, in Detroit.

Only, at that point, before Joe Biden had dropped out of the race, Trump said,

I said, we don’t need votes. And Charlie Kirk is helping. He’s got his army of young people. These are young patriots. They don’t want to see happen what’s been happening in our country.

Thank you Charlie.

[USA chants]

And I said to Charlie, and I said to Michael [Whatley], listen, we don’t need votes. We’ve got more votes than anybody’s ever had. We need to watch the vote, we need to guard the vote.

We need to stop the steal.

In mid-June, before Biden dropped out, Trump wasn’t concerned about turnout. Now he is.

This comment — to the people Charlie Kirk had assembled to listen to Donald Trump — is best understood as a comment about Trump’s plan to win. As the January 6 Committee discovered, when Trump decided in late December 2020 that he was going to speak and march to the Capitol, Carline Wren turned to Kirk to help turn out bodies. Turning Point was also allegedly used to launder speaking fees to Don Jr and his girlfriend. As it happened, Kirk backed out of attending and deleted his boasts about arranging dozens of busses so others could do so. He pled the Fifth rather than explain to the January 6 Committee anything about all that.

But nevertheless, Charlie Kirk got busloads of people to Trump’s insurrection.

To the extent that Trump needs lots of bodies to be somewhere, Charlie Kirk is a key part of that process. And in June, he wanted them out to surveil polling centers, once again mobilizing Stop the Steal. Friday, he emphasized he actually needs some people to show up to the polls.

Trump’s plans for the election — and how they may have changed with Biden’s departure — is an important background for this. As Tim Alberta described it, after Trump took over the RNC, he got rid of the field organization (potentially dooming down-ticket candidates), and replaced it with Big Lie perpetrators.

The Trump campaign’s takeover of the RNC in March—installing the former president’s daughter-in-law, Lara Trump, as the new co-chair, while establishing LaCivita as chief of staff and de facto chief executive, all of it long before Trump had technically secured the party’s nomination—didn’t sit well with many Republicans. Appearances aside, the imperatives of a presidential campaign are not always aligned with those of the RNC, whose job it is to advance the party’s interests up and down the ballot and across the country. “Party politics is a team sport. It’s bigger than Ronald Reagan or Donald Trump or any one candidate,” said Henry Barbour, a longtime Mississippi committeeman, who has fought to prevent the national party’s funds from going to Trump’s legal defense. “Nobody’s ever going to agree on exactly how you split the money up, but you’ve got to take a holistic approach in thinking about all the campaigns, not just one.”

The RNC under Ronna McDaniel, who chaired the national party from early 2017 until LaCivita’s takeover, had become a frequent target of Trump’s ire. He didn’t like that the party remained neutral in the early stages of the 2024 primary—and he was especially furious that McDaniel commissioned debates among the candidates. But what might have bothered him most was the RNC’s priorities: McDaniel was continuing to pour money into field operations, stressing the need for a massive get-out-the-vote program, but showed little interest in his pet issue of “election integrity.”

“Tell you what,” Trump said to Wiles and LaCivita. “I’ll turn out the vote. You spend that money protecting it.”

The marching orders were clear: Trump’s lieutenants were to dismantle much of the RNC’s existing ground game and divert resources to a colossal new election-integrity program—a legion of lawyers on retainer, hundreds of training seminars for poll monitors nationwide, a goal of 100,000 volunteers organized and assigned to stand watch outside voting precincts, tabulation centers, and even individual drop boxes.

When someone fires all the field staff and instead hires Christina Bobb, it’s a pretty big tell that they don’t plan to win the election the democratic way.

They plan to double down on the Big Lie.

Or they did, before Biden dropped out.

As Alberta noted in a follow-up, Trump’s entire plan revolved around Biden. Now Trump is stuck plaintively reminding rally-goers of the six-year campaign, he and Russia, with the help of the entire Republican party, launched against Biden’s kid. “Where’s Hunter? … That was the big one.”

That’s a big part of the background that is missing from discussion of Trump’s comments.

The other is what it means that, after falsely claiming that Christians are being targeted by law enforcement right along with billionaires who engaged in fraud to cover up fucking a porn star, Trump told a bunch of Christian nationalists that they needed to vote just one more time.

As Sarah Posner laid out in a piece analyzing the way right wingers exploited the shooting attempt on Trump, these are people who use apocalyptic tropes to motivate voters and activists.

For the Trump faithful who believe God anointed him president and, after the attempt on his life, that God protected him from death, there are no coincidences — only miracles, signs, and wonders. Charlie Kirk, the founder of the far-right Turning Point USA and a fellow denizen of the conspiratorial fever swamps of X, chimed in on Posobiec’s tweet. “Armor of God,” he replied, just in case Posobiec’s meaning was lost on anyone. “The next verse is this: ‘For we do not wrestle against flesh and blood, but against the rulers, against the authorities, against the cosmic powers over this present darkness, against the spiritual forces of evil in the heavenly places.’” For good measure, Posobiec replied to Kirk, quoting the next verse, Ephesians 6:13. “Therefore, put on the armor of God,” he concluded, “that you may be able to resist on the evil day and, having done everything, to hold your ground.”

Posner added more in Bluesky this thread.

The point is, Trump’s audience of Christian nationalists do view taking over government in apocalyptic terms. They did, on January 6. And it nearly worked the first time.

This was only a Trumpism, as Sununu called it, to the extent that Trump is an epic conman who knows how to mobilize his audience, even Christian nationalists with whom Trump shares little more than a fondness for authoritarianism.

So sure: Perhaps this was just an attempt to juice more turnout out of a group that already turns out in high numbers, almost exclusively for Republicans. Or maybe — as his comments in June were — it’s part of a larger effort to delegitimize democracy.

But even beyond Trump’s last coup attempt, there’s a context here, one you need to at least acknowledge if you’re going to claim to assess his comments.

Update: I only very belatedly realized I put the context from the second NYT take after the third version of it. As made clear now, Gold did mention the “never vote again” comment, but he put it in ¶14.

Update: McKay Coppins has a piece in the Atlantic analyzing the prayers said at Trump events. A taste:

There are many ways to parse the text. You could compare the number of times Trump’s name is mentioned (87) versus Jesus Christ’s (61). You could break down the demographics of the people leading the prayers: 45 men and 13 women; overwhelmingly evangelical, with disproportionate representation from Pentecostalism, a charismatic branch of Christianity that emphasizes supernatural faith healing and speaking in tongues. One might also be tempted to catalog the most comically incendiary lines (“Oh Lord, our Lord, we want to be awake and not woke”). But the most interesting way to look at these prayers is to examine the theological motifs that run through them.

The scripture verse that’s cited most frequently in the prayers comes from 2 Chronicles. “If my people, who are called by my name, will humble themselves and pray and seek my face and turn from their wicked ways, then I will hear from heaven, and I will forgive their sin and will heal their land.”

Ryan Burge, a Baptist minister and political scientist I asked to review the prayers, told me that this verse—which is quoted 10 times—is regularly cited by evangelicals to advance a popular conservative-Christian narrative: that America, like ancient Israel before it, has broken its special covenant with God and is suffering the consequences. “The Old Testament prophets they’re quoting talk about sin collectively instead of individually—the nation has fallen into wickedness and needs healing,” Burge said. “The way they use this verse presupposes that we’re spiraling down the tubes.”

[snip]

[R]ather than asking God to make Trump an instrument of his will, most of the prayers start from the assumption that he already is. Accordingly, many of them drop any pretense of thy-will-be-done nonpartisanship, and ask explicitly for Trump’s reelection. “Lord, you have a servant in Donald J. Trump, who can lead our nation,” a woman offering a prayer in Laconia, New Hampshire, told God at a rally on the eve of the state’s Republican primary. “Help us to overcome any obstacles tomorrow so that we may deliver victory to your warrior.”

Listen on Spotify (transcripts available)

Listen on Apple (transcripts available)

As I laid out here, I’ve been going through the transcripts from Jim Jordan’s search to find people who politicized intelligence, like his investigation showed John Ratcliffe to have done.

And in addition to the way Jordan exposed new information about Ratcliffe politicizing intelligence, Jordan also helpfully elicited an intelligence analysis of Trump’s dictatorial personality.

A Republican staffer was asking Mike Morell why he sent an email thanking those who signed the 50 spook letter, in which Morell said the 2020 election was the most important since the Civil War. And then, violating the rule that you never ask a question to which you don’t know the answer, the staffer then asked why Morell said that.

Q In an email you sent to signatories thanking them for signing on, you described this as, quote, the most important election since 1860 and 1864 when the very existence of the country was on the ballot.

[snip]

Q Why did you believe that this was the most important election since 1860 and 1864?

So Morell answered, drawing on his training analyzing the personality traits of world leaders.

I have to tell you that, you know, spending 33 years at CIA and watching literally hundreds of world leaders during that time, President Trump’s personality traits deeply concerned me, what I believed to be deep narcissism, what I believed to be deep paranoia, what I believe to be a type of sadism where you — not sexually, of course, but a type of sadism where you, you know, are happy when your opponents have been injured in some way — I’m talking politically — that those were all traits that I saw in foreign leaders who did significant damage to their country and significant damage to the democracies of their country. I’m thinking — you know, I’m thinking of Mugabe in Zimbabwe. I’m thinking of Chavez in Venezuela. I’m thinking of Putin in Russia. So I was deeply concerned about the potential impact of President Trump on our democracy.

And, you know, my fear, in my view, was borne out by his failure to act on January 6, 2021. So that’s what I meant when I wrote that. That’s what I was thinking.

Q The public statement —

Chairman Jordan. You couldn’t have been thinking about January 6, 2021, because —

Mr. Morell. No. I wasn’t thinking about January 6th. I was thinking about everything I said up to that point, sir. You’re correct.

To Jordan’s credit, he caught Morell seeing, in January 6, confirmation of his analysis.

Which it was.

As I wrote in this post, John Roberts chose to cloak his radical opinion eliminating rule of law for Presidents by nodding to George Washington’s Farewell Address.

Our first President had such a perspective. In his Farewell Address, George Washington reminded the Nation that “a Government of as much vigour as is consistent with the perfect security of Liberty is indispensable.” 35 Writings of George Washington 226 (J. Fitzpatrick ed. 1940). A government “too feeble to withstand the enterprises of faction,” he warned, could lead to the “frightful despotism” of “alternate domination of one faction over another, sharpened by the spirit of revenge.” Id., at 226–227. And the way to avoid that cycle, he explained, was to ensure that government powers remained “properly distributed and adjusted.” Id., at 226.

It is these enduring principles that guide our decision in this case.

As I showed, that was partly an attempt to spin the usurpation of Executive Branch prosecutorial authority between Administrations as, instead, protection of the separation of powers of co-equal branches.

But it was also an attempt to deploy Washington’s warnings against partisanship as if they counseled doing what Roberts was doing, rather than the opposite.

Roberts had the audacity, for example, to quote from a passage talking about how unbridled partisanship could lead to foreign influence, corruption, insurrection, and authoritarianism and suggest he was preventing that, rather than immunizing it.

I have already intimated to you the danger of parties in the state, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view and warn you in the most solemn manner against the baneful effects of the spirit of party, generally.

This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but in those of the popular form it is seen in its greatest rankness and is truly their worst enemy.

The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation on the ruins of public liberty.

Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight) the common and continual mischiefs of the spirit of party are sufficient to make it the interest and the duty of a wise people to discourage and restrain it.

It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which find a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country are subjected to the policy and will of another. [my emphasis]

As I described in the initial release of Ball of Thread, the podcast I’m doing with LOLGOP, the Republicans on SCOTUS really believe Trump’s garbage claims that his prosecution was about revenge and despotism, rather than an effort to stave it off.

Trump has gotten people who claim to care about the country to view up as down, fascism as freedom.

Never mind that a court riddled with corruption scandals invoked the passage of the Farewell Address warning against it.

Between the shock of the overall holding and the obsession with Joe Biden’s poor debate, though, there has been little focus on an equally troubling part of Roberts’ opinion: one sanctioning the wholesale politicization of DOJ.

In the passage throwing out the charges involving Jeffrey Clark altogether, Roberts prohibits review of not just DOJ’s prosecutorial decisions (except, of course, when they involve a President’s predecessor, in which case DOJ has very constrained authority), but also of the President’s involvement in those decisions.

The Government does not dispute that the indictment’s allegations regarding the Justice Department involve Trump’s “use of official power.” Brief for United States 46; see id., at 10–11; Tr. of Oral Arg. 125. The allegations in fact plainly implicate Trump’s “conclusive and preclusive” authority. “[I]nvestigation and prosecution of crimes is a quintessentially executive function.” Brief for United States 19 (quoting Morrison v. Olson, 487 U. S. 654, 706 (1988) (Scalia, J., dissenting)). And the Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. Nixon, 418 U. S., at 693; see United States v. Texas, 599 U. S. 670, 678–679 (2023) (“Under Article II, the Executive Branch possesses authority to decide ‘how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.’” (quoting TransUnion LLC v. Ramirez, 594 U. S. 413, 429 (2021))). The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to “take Care that the Laws be faithfully executed.” Art. II, §3. And the Attorney General, as head of the Justice Department, acts as the President’s “chief law enforcement officer” who “provides vital assistance to [him] in the performance of [his] constitutional duty to ‘preserve, protect, and defend the Constitution.’” Mitchell v. Forsyth, 472 U. S. 511, 520 (1985) (quoting Art. II, §1, cl. 8).

Investigative and prosecutorial decisionmaking is “the special province of the Executive Branch,” Heckler v. Chaney, 470 U. S. 821, 832 (1985), and the Constitution vests the entirety of the executive power in the President, Art. II, §1. For that reason, Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority. As we have explained, the President’s power to remove “executive officers of the United States whom he has appointed” may not be regulated by Congress or reviewed by the courts. Myers, 272 U. S., at 106, 176; see supra, at 8. The President’s “management of the Executive Branch” requires him to have “unrestricted power to remove the most important of his subordinates”—such as the Attorney General—“in their most important duties.” Fitzgerald, 457 U. S., at 750 (internal quotation marks and alteration omitted).

The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. App. 186–187, Indictment ¶10(c). And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials. [my emphasis]

Here, Roberts turns the Take Care Clause on its head. Whereas conservative judge Karen Henderson viewed the Take Care Clause to require that the President obey the law, Roberts instead sees that as a source of permission for the President to demand investigations, even if they are proposed for an improper purpose.

In doing so, Roberts gives Joe Biden permission to demand an investigation of Ginni Thomas for the purpose of revenge against her spouse.

To be sure, in spite of Roberts’ expansive permission for President’s to politicize DOJ, there appear to be limits. Joe Biden cannot order the IRS to review whether Clarence Thomas has written off all the undeclared boondoggles Harlan Crow has given him.

One of the only laws specifically mention the President, it turns out, is 26 USC 7217, which prohibits certain people, including the President himself, from asking the IRS to take investigative action against a taxpayer.

(a)Prohibition
It shall be unlawful for any applicable person to request, directly or indirectly, any officer or employee of the Internal Revenue Service to conduct or terminate an audit or other investigation of any particular taxpayer with respect to the tax liability of such taxpayer.

(b)Reporting requirement
Any officer or employee of the Internal Revenue Service receiving any request prohibited by subsection (a) shall report the receipt of such request to the Treasury Inspector General for Tax Administration.

[snip]

(e)Applicable person
For purposes of this section, the term “applicable person” means—
(1)the President, the Vice President, any employee of the executive office of the President, and any employee of the executive office of the Vice President; and

This law could one day, in the not-too-distant future, come before the Justices. It could even do so in the specific context at issue here, Donald Trump’s pressure on Jeffrey Rosen on December 27, 2020.

That’s because, as laid out in Hunter Biden’s selective and vindictive prosecution claim, in the very same conversation where Trump demanded that DOJ make false claims about election fraud, he also pressured Rosen to investigate Hunter Biden “for real.”

On December 27, 2020, then Acting Deputy Attorney General Richard Donoghue took handwritten notes of a call with President Trump and then Acting Attorney General Jeffrey Rosen, showing that Mr. Trump had instructed Mr. Rosen and Mr. Donoghue to “figure out what to do with H[unter] Biden” and indicating that Mr. Trump insisted “people will criticize the DOJ if he’s not investigated for real.”57

57 Dec. 27, 2020 Handwritten Notes of Richard Donoghue Released by H. Oversight Comm. at 4 (emphasis added), www.washingtonpost.com/context/read-richard-donoghue-s-handwrittennotes-on-trump-rosen-calls/cdc5a621-dfd1-440d-8dea-33a06ad753c8; see also Transcribed Interview of Richard Donoghue at 56 (Oct. 1, 2021), H. Oversight Comm., https://www.govinfo.gov/content/pkg/GPO-J6-TRANSCRIPT-CTRL0000034600/pdf/GPO-J6- TRANSCRIPT-CTRL0000034600.pdf.

Hunter Biden’s as-applied challenge to his gun charges are more likely to get to SCOTUS and do so more quickly.

But his prosecution, with the President privately and publicly intervening both as President and as candidate to replace his father raises fairly unprecedented questions about the due process rights of a person whom the President has demanded be investigated for the purpose of revenge.

Until such a case gets reviewed, however, John Roberts has invited Joe Biden to call up Merrick Garland and demand not just that DOJ open an investigation into Ginni Thomas, but to appoint a Special Counsel who could continue the investigation for the foreseeable future.

By refusing all review of improper pressure on the Attorney General, John Roberts has not eliminated the risk of revenge and despotism.

He has, rather, sanctioned it.

Since Republicans on the Supreme Court voted to make Presidents king yesterday, I’ve been thinking about ways to reverse the decision.

Some of those ways (like expanding the court) are structural, long term, and involve winning both the presidency and Senate in November by good margins.

But another way is to get the court to recognize how insane their ruling was in practice, to encourage them to moderate their order, as they did by using the Rahimi decision to moderate their Bruen insanity.

Another way is to use the pretrial hearings on what counts as official and unofficial conduct as a way to demonstrate the problem with the decision. Since any decisions Tanya Chutkan makes will come back to SCOTUS, they will have to review their handiwork.

But the one I keep thinking of is action President Biden can take that would demonstrate to the Justices the problem with their decision.

Some such actions would be symbolic: Biden can order the military to use military planes to fly women needing abortions in states where it is banned for necessary medical care, for example. Acting as Commander in Chief, his power would be at its zenith.

On Bluesky, someone recommended selling Willie Nelson a pardon — one guitar — for smoking marijuana in a National Park in a state where pot is legal.

But the most symbolic way that President Biden could convey the insanity of yesterday’s decision would be to pardon Nicholas Roske. Roske is the suicidal man who, in June 2022, flew to Maryland with vague plans but real weapons to assassinate Brett Kavanaugh. Since he filed a suppression motion for admissions he made after his arrest, he and the government have been discussing a plea.

Let me be clear: I don’t think it would be wise to pardon Roske. Biden has the unreviewable authority to do so, but it would be stupid to do so. While Roske seems he is mentally ill, he nevertheless armed himself and took steps that put Justice Kavanaugh in danger.

But Roske is exactly the kind of menace that John Roberts just immunized yesterday.

The weapons Roske armed himself with — including a Glock, pepper spray, zip ties, a hammer, a screw driver, a nail punch, a crow bar, and duct tape — were precisely the kinds of things with which January 6ers armed themselves when they attacked the Capitol and threatened to kill Mike Pence, Nancy Pelosi, and Mitch McConnell. Many January 6ers, like Roske, suffer from mental illnesses. Like Roske, many Jan6ers were trying to give their life meaning.

The only thing that makes Roske different is that he wasn’t sent by a political candidate trying to get elected.

Still, Roske is always used, especially by Congressional Republicans, to describe the unique danger the Justices face.

There would be no better way for Biden to make it clear to the Justices what kind of danger they have blessed than to pardon Roske (for which, again, I’m not advocating).

With their ruling yesterday, the Justices have said that Members of Congress, Biden voters, and democracy itself must face similar threats without recourse. And one way to make that clear would be to pardon Roske.

Chief Justice John Roberts cloaked his radical opinion granting Presidents broad immunity in the Farewell Address of George Washington, normally celebrated as the codification of the peaceful cession of power, the humility of the role of the President.

Our first President had such a perspective. In his Farewell Address, George Washington reminded the Nation that “a Government of as much vigour as is consistent with the perfect security of Liberty is indispensable.” 35 Writings of George Washington 226 (J. Fitzpatrick ed. 1940). A government “too feeble to withstand the enterprises of faction,” he warned, could lead to the “frightful despotism” of “alternate domination of one faction over another, sharpened by the spirit of revenge.” Id., at 226–227. And the way to avoid that cycle, he explained, was to ensure that government powers remained “properly distributed and adjusted.” Id., at 226.

It is these enduring principles that guide our decision in this case.

But Roberts instead focuses on Washington’s warning against factionalism — and from there, to a claim to honor separation of powers.

Never mind that, as Justice Ketanji Brown Jackson notes, Roberts’ opinion instead radically altered the balance of powers, which (adopting Washington’s logic) will arguably feed factionalism.

It is important to note that the majority reframes the immunity question presented here as a separation of powers concern that is compelled by Article II—as if what is being asked is whether Congress can criminalize executive prerogatives. See, e.g., ante, at 6–7; see also ante, at 1– 2 (BARRETT, J., concurring in part). But that is not anywhere close to what is happening in this case. No one maintains that Congress has passed a law that specifically criminalizes the President’s use of any power that the Constitution vests exclusively in the Executive, much less that the Judiciary is being conscripted to adjudicate the propriety of such a statute. To the contrary, the indictment here invokes criminal statutes of general applicability that everyone is supposed to follow, both on and off the job. So, the real question is: Can the President, too, be held accountable for committing crimes while he is undertaking his official duties? The nature of his authority under Article II (whether conclusive and preclusive, or shared with Congress, or otherwise) is entirely beside the point.

Plus, by my read, the only separation of powers that Roberts really cares about is that between one Executive and his successor. Roberts is, in actuality, usurping the Article II authority of DOJ to prosecute crimes exclusively in the case of a former President, adopting that power to the judiciary.

Roberts’ opinion does that even while it permits the sitting President to use the trappings of DOJ against everyone but his predecessor, with personal presidential involvement. All the abuses of the Trump DOJ? The revenge prosecution of Greg Craig, Michael Sussmann, and Igor Danchenko? All cool with John Roberts. The use of DOJ resources to have an FBI informant frame Joe Biden? Still totally cool. Not revenge. Just the President doing what he’s empowered to do.

But it’s that more cherished precedent Washington set, of the transfer of power rather than kings, that Roberts has done real violence to.

Consider what happened to Blassingame — the DC Circuit opinion holding that a former President can be sued for actions taken in his role as candidate for office — in this opinion.

Blassingame was mentioned repeatedly in the argument of this case, 16 times, often when a Republican who joined Roberts’ opinion today queried John Sauer if he agreed with it.

It came up when Clarence Thomas asked whether Sauer accepted the function of a candidate to be a private act — with which he mostly agreed and then backtracked somewhat.

JUSTICE THOMAS: Mr. Sauer, in assessing the official acts of a president, do you differentiate between the president acting as president and the president acting as candidate?

MR. SAUER: Yes, we do. And we don’t dispute essentially the Blassingame discussion of that.

JUSTICE THOMAS: Okay. Now —

MR. SAUER: But, of course, that has to be done by objective determinations, not by looking at what was the purpose of what you did this, and that’s the most important point there.

It came up when Neil Gorsuch queried Sauer about it (in which case Sauer adopted former Trump White House Counsel Greg Katsas’ more narrow holding on it).

JUSTICE GORSUCH: And then the question becomes, as we’ve been exploring here today a little bit, about how to segregate private from official conduct that may or may not enjoy some immunity, and we — I’m sure we’re going to spend a lot of time exploring that. But the D.C. Circuit in Blassingame, the chief judge there, joined by the panel, expressed some views about how to segregate private conduct for which no man is above the law from official acts. Do you have any thoughts about the test that they came up with there?

MR. SAUER: Yes. We think, in the main, that test, especially if it’s understood through the lens of Judge Katsas’ separate opinion, is a very persuasive test. It would be a great source for this Court to rely on in drawing this line. And it emphasizes the breadth of that test. It talks about how actions that are, you know, plausibly connected to the president’s official duties are official acts. And it also emphasizes that if it’s a close case or it appears there’s considerations on the other side, that also should be treated as immune. Those are the — the aspects of that that we’d emphasize as potentially guiding the Court’s discretion.

Gorsuch would go on to question Dreeben about Blassingame at length.

It came up when John Kavanaugh invited Sauer to rewrite Blassingame, and Sauer largely declined.

JUSTICE KAVANAUGH: Where — where do you think the D.C. Circuit went wrong in how it determined what was official versus what’s personal?

MR. SAUER: Well, I read — I read the opinion below in this particular case as adopting a categorical view. It does not matter, is the logic of their — their opinion because there is no immunity for official acts and, therefore, you know, that’s the end of the story. I don’t really think they went wrong in Blassingame in the civil context when they engaged in the same determination with respect to what’s official and what isn’t official. There, we agree with most of what that opinion said.

And it came up when Sammy Alito asked John Sauer if he’d like an order saying that the President was immune unless there was no possible justification, in which case Sauer raised Blassingame, and Alito shifted from analysis of official and unofficial.

JUSTICE ALITO: But what if it were not — what if it did not involve any subjective element, it was purely objective? You would look objectively at the various relevant factors? MR. SAUER: That sounds to me a lot like Blassingame and especially viewed through the lens of Judge Katsas’ separate opinion, and that may not be different than what we’re proposing to the Court today.

JUSTICE ALITO: Well, Blassingame had to do with the difference between official conduct and private conduct, right?

MR. SAUER: That’s correct. I — I understood the Court to be asking that.

JUSTICE ALITO: No. This — this would apply — and it’s just a possibility. I don’t know whether it’s a good idea or a bad idea or whether it can be derived from the structure of the Constitution or the Vesting Clause or any other source. But this would be applied in a purely objective — on purely objective grounds when the president invokes an official power in taking the action that is at issue?

MR. SAUER: Yes, I believe — the reason I think of Blassingame is because it talks about an objective context-specific determination to winnow out what’s official and what is purely private conduct, and, again, in a — with a strong degree of deference to what — and, therefore, you know, that’s the end of the story. I don’t really think they went wrong in Blassingame in the civil context when they engaged in the same determination with respect to what’s official and what isn’t official. There, we agree with most of what that opinion said.

You might be justified in thinking that Blassingame would be central to today’s ruling, not least because the charged crimes are the same ones as the complaints alleged in Blassingame.

The central holding of Blassingame, however, is gone.

Blassingame appears just three times in the opinion rendered today. Roberts uses it as a limiting factor.

But the breadth of the President’s “discretionary responsibilities” under the Constitution and laws of the United States “in a broad variety of areas, many of them highly sensitive,” frequently makes it “difficult to determine which of [his] innumerable ‘functions’ encompassed a particular action.” Id., at 756. And some Presidential conduct—for example, speaking to and on behalf of the American people, see Trump v. Hawaii, 585 U. S. 667, 701 (2018)—certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision. For those reasons, the immunity we have recognized extends to the “outer perimeter” of the President’s official responsibilities, covering actions so long as they are “not manifestly or palpably beyond [his] authority.” Blassingame v. Trump, 87

Sonia Sotomayor notes that Roberts has used it as a limiting factor, then notes he has also eliminated any analysis of motive.

In fact, the majority’s dividing line between “official” and “unofficial” conduct narrows the conduct considered “unofficial” almost to a nullity. It says that whenever the President acts in a way that is “‘not manifestly or palpably beyond [his] authority,’” he is taking official action. Ante, at 17 (quoting Blassingame v. Trump, 87 F. 4th 1, 13 (CADC 2023)). It then goes a step further: “In dividing official from unofficial conduct, courts may not inquire into the President’s motives.” Ante, at 18.

Jackson makes a similar observation.

At most, to distinguish official from unofficial conduct, the majority advises asking whether the former President’s conduct was “‘manifestly or palpably beyond [his] authority.’” Ante, at 17 (quoting Blassingame v. Trump, 87 F. 4th 1, 13 (CADC 2023)).

There’s not even much discussion of Trump’s role as a candidate! Roberts raises it, and then says Trump’s electioneering tweets might serve some other purpose.

There may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of “content, form, and context” will necessarily inform the inquiry. Snyder v. Phelps, 562 U. S. 443, 453 (2011) (internal quotation marks omitted). But “there is not always a clear line between [the President’s] personal and official affairs.” Mazars, 591 U. S., at 868. The analysis therefore must be fact specific and may prove to be challenging.

The indictment reflects these challenges. It includes only select Tweets and brief snippets of the speech Trump delivered on the morning of January 6, omitting its full text or context. See App. 228–230, Indictment ¶104. Whether the Tweets, that speech, and Trump’s other communications on January 6 involve official conduct may depend on the content and context of each. Knowing, for instance, what else was said contemporaneous to the excerpted communications, or who was involved in transmitting the electronic communications and in organizing the rally, could be relevant to the classification of each communication.

In ruling (unsurprisingly) that the Jeffrey Clark allegations have to be thrown out, Roberts goes further, and reads the Executive Branch interest in policing election crime to extend to making false claims about the election.

The Government does not dispute that the indictment’s allegations regarding the Justice Department involve Trump’s “use of official power.” Brief for United States 46; see id., at 10–11; Tr. of Oral Arg. 125. The allegations in fact plainly implicate Trump’s “conclusive and preclusive” authority. “[I]nvestigation and prosecution of crimes is a quintessentially executive function.” Brief for United States 19 (quoting Morrison v. Olson, 487 U. S. 654, 706 (1988) (Scalia, J., dissenting)). And the Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. Nixon, 418 U. S., at 693; see United States v. Texas, 599 U. S. 670, 678–679 (2023) (“Under Article II, the Executive Branch possesses authority to decide ‘how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.’” (quoting TransUnion LLC v. Ramirez, 594 U. S. 413, 429 (2021))). The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to “take Care that the Laws be faithfully executed.” Art. II, §3. And the Attorney General, as head of the Justice Department, acts as the President’s “chief law enforcement officer” who “provides vital assistance to [him] in the performance of [his] constitutional duty to ‘preserve, protect, and defend the Constitution.’” Mitchell v. Forsyth, 472 U. S. 511, 520 (1985) (quoting Art. II, §1, cl. 8)

And when entertaining Trump’s claims that his interference in state and congress’ role were just an effort to protect the integrity of the election, Roberts thumbs both the scale and the facts again, using the Take Care clause as a shield rather than the sword that Judge Karen Henderson viewed it as.

On Trump’s view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election. Of course, the President’s duty to “take Care that the Laws be faithfully executed” plainly encompasses enforcement of federal election laws passed by Congress. Art. II, §3. And the President’s broad power to speak on matters of public concern does not exclude his public communications regarding the fairness and integrity of federal elections simply because he is running for re-election. Cf. Hawaii, 585 U. S., at 701. Similarly, the President may speak on and discuss such matters with state officials—even when no specific federal responsibility requires his communication—to encourage them to act in a manner that promotes the President’s view of the public good.

Even when conceding that Trump was pressuring Mike Pence as President of the Senate, not as his Vice President, when he was threatening to have him assassinated, Roberts suggests this is a close call, because Trump has to be able to pressure the President of the Senate to get legislation passed.

The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. Ibid. Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of “presiding over the Senate” is “not an ‘executive branch’ function.” Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974). With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457 U. S., at 754; see supra, at 14.

At the same time, however, the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions.

It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.

Over and over again, then, Roberts has applied his new standard — whether anything might conceivably intrude on the functions of the Presidency — to immunize usurping Congress’ (and states’) role in certifying the election.

What John Roberts has done — at least preliminarily — is carve out an Executive authority so broad that in every area where the President is explicitly excluded, even in the role of candidate-for-President, the President can still act with absolute immunity.

That authorizes the President to use all the powers of the Presidency to win re-election — precisely the opposite holding of what Blassingame adopted.

In an opinion that tries to cloak his power grab with an appeal to President Washington, John Roberts has suffocated the greatest thing Washington gave the United States, the presumption that Presidential powers would cede to the power of elections.

I’m going to write a long post on how John Roberts made elections subservient to the President.

But first, I want to lay out a way forward for Jack Smith. I’ll return to a way forward for Biden.

First: SCOTUS has remanded this case to Judge Chutkan to determine which of the charges can be sustained as unofficial acts. As I’ll lay out, I think they’ve put their thumb on the scale that none of them can be. But by all means, she is now required to spend the next four months figuring that out.

So if I’m Jack Smith, I ask her to block out her time for the foreseeable future to do just that.

Because the President cannot be prosecuted for anything considered a core Presidential act, like bribing Roger Stone with pardons, Jack Smith should issue a report of what Trump did with his core official acts.

Nothing in this opinion prohibits Jack Smith from prosecuting everyone else (save Trump’s closest aides and Jeffrey Clark). So Jack Smith should roll out any and all indictments for Trump’s associates that would otherwise have been introduced in his case in chief.

Until this morning, it was a joke that if a President sent out SEAL Team Six to take out, say, their opponent, their Vice President, or Sammy Alito as an official act, they would be immune from prosecution.

But the Republicans on SCOTUS have just given Presidents presumptive immunity for official acts.

I’ll post updates. But the effect of the opinion is to throw out the entirety of the charges involving Jeffrey Clark, and remand for further consideration on Trump’s pressure on Mike Pence and his public comments. It also prohibits the government from using Trump’s communications with his advisors. That guts the case.

From Sotomayor’s dissent:

Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. Korematsu v. United States, 323 U. S. 214, 246 (1944) (Jackson, J., dissenting). The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

The most important SCOTUS ruling today overturned Chevron, basically giving a bunch of lifetime appointed judges who just legalized accepting gratuities for themselves power to veto regulations imposed by Executive Agencies.

But others are more expert on that opinion, so I’ll let them explain how it’ll change life in the United States for decades to come.

I am an expert on the application of 18 USC 1512(c)(2) to January 6, and so can explain the significance of Justice Roberts’ ruling that it must involve making documents unavailable to an official proceeding.

Before the ruling, I had argued the court could do one of four things:

1. Leave the application in place
2. Overturn its application to January 6 altogether (effectively, ruling that the vote certification was no an official proceeding)
3. Limit its application to paperwork crimes
4. Address the meaning of “corrupt purpose”

The court opted for option 3:

To prove a violation of Section 1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other things used in the proceeding, or attempted to do so. See supra, at 9. The judgment of the D. C. Circuit is therefore vacated, and the case is remanded for further proceedings consistent with this opinion. On remand, the D. C. Circuit may assess the sufficiency of Count Three of Fischer’s indictment in light of our interpretation of Section 1512(c)(2).

This has the ability of overturning most, if not all, the obstruction convictions associated with January 6.

Or it may not.

Or it may not affect those who knew of the purpose of the vote certification.

After all, there was a set of January 6 defendants convicted of obstruction who knew not just that they were trying to prevent Congress from certifying Joe Biden as President, but who also knew the thing they were trying to prevent was the certification of Biden’s electoral certificates.

If DOJ can prove a given defendant knew the import of the certifications, they may preserve some of these prosecutions.

There’s even the possibility that DOJ can successfully argue that the Jan6ers were attempting to impair “witness” testimony of members of Congress or, more importantly, Mike Pence, by scaring the bejesus out of them.

Someone whose prosecution is far less likely to be affected by this ruling is Donald Trump. That’s because he had created a set of fraudulent certifications that he intended to use to either replace Joe Biden’s real electoral certifications, or at the very least, to stall the certification of them.

It goes back to the DC Circuit to decide.

Importantly, SCOTUS left the definition of “corrupt purpose” undecided, something else on which the DC Circuit has issued unstable opinions. A review of that definition could lead to a further narrowing of the application. But there, too, Donald Trump’s charges should remain, because his efforts to remain in power after being fired fit the definition of “corrupt purpose.” Or did, before SCOTUS started chipping away at corruption law.

Update: Justice Ketanji Brown Jackson’s concurrence notes that there were documents at the core of January 6: the electoral votes, and also notes that there may have been other attempted impairment.

In my view, the Court properly interprets §1512(c)(2) in the opinion it issues today. It also rightly vacates the judgment below and remands this case for further proceedings. Joseph Fischer was charged with violating §1512(c)(2) by corruptly obstructing “a proceeding before Congress, specifically, Congress’s certification of the Electoral College vote.” App. 183. That official proceeding plainly used certain records, documents, or objects—including, among others, those relating to the electoral votes themselves. See Tr. of Oral Arg. 65–67. And it might well be that Fischer’s conduct, as alleged here, involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding “in ways other than those specified in (c)(1).” Ante, at 8. If so, then Fischer’s prosecution under §1512(c)(2) can, and should, proceed. That issue remains available for the lower courts to determine on remand.

Update: This language from the syllabus should make it clear that Trump’s charges should remain unscathed and there may be other ways to sustain the charges against some of the existing defendants.

For example, it is possible to violate (c)(2) by creating false evidence—rather than altering incriminating evidence. Subsection (c)(2) also ensures that liability is still imposed for impairing the availability or integrity of other things used in an official proceeding beyond the “record[s], document[s], or other object[s]” enumerated in (c)(1), such as witness testimony or intangible information.