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Refusing to Take Yes for an Answer: Remember the Pardons in the Desk Drawer
One notable aspect of yesterday’s hearing on Trump’s absolute immunity claims is the fact that James Pearce — and through him, Jack Smith — refused to take yes for an answer.
They refused to accept what Judge Florence Pan, at least, seemed to suggest would be the quickest way to get to trial.
Throughout the hearing, Judges Michelle Childs and Pan seemed persuaded by American Oversight’s amicus argument that Midland Asphalt prohibits this appeal. While Childs never seemed to fully concede that point, after Pearce responded to a Childs’ argument by stating that because this involves a President, the immunity analysis is different, Pan asked Pearce why he wasn’t adopting the American Oversight argument. Pearce responded, first, by emphasizing the goal of “doing justice” and so getting the law right, and only secondarily getting to trial quickly.
Judge Pan: Why aren’t you taking the position that we should dismiss this appeal because it’s interlocutory? Doesn’t that advance your interests?
Pearce: Our interests are two-fold. One, as in United States versus Nixon, it is in doing justice. And the second is to move promptly to satisfy the public’s and the defendant’s interest in a prompt resolution of this trial. But doing justice means getting the law right, and our view is even if a dismissal on jurisdiction might move this case faster — actually, empirically, that’s hard to know — we just don’t think that’s the right analysis here, on either immunity or the second claim.
So Pan set about figuring out how they could use the hypothetical statutory jurisdiction to reach the merits even if she and, especially, Childs still had doubts they were allowed to do that.
Pan: If we have discretion to reach the merits versus just dismissing this case under Midland Asphalt, which I think is a strong precedent which which suggests that this appeal is interlocutory and does not fall under the collateral order doctrine, how should we determine how to exercise that jurisdiction, about whether or not we should reach the merits?
Pearce: So I think in the American Hospitals decision, the 2020 decision, the court said, the formulation was something like, we’re doubtful as to our jurisdiction but nonetheless, invoking the line of cases you’ve just described, went on to decide the merits. We would urge the court to do the same here, even if it entertains doubts with respect to the jurisdiction. Yes, hypothetical statutory jurisdiction is available under the law of the circuit. The court should use that to reach the merits.
At least some of the panelists on this worthwhile Lawfare Podcast about the hearing took that “doing justice” line to be fluff, and took the “empirical” questions about whether rejecting this appeal on jurisdictional grounds would really speed things up.
But I’m not so sure.
Granted, later in the hearing, Pearce provided some explanation for why a rejection on jurisdictional grounds might not help move things along. It came as part of a discussion of two questions: Childs’ question about whether the panel should rule on the broad question of presidential immunity, as Judge Chutkan had, or whether — as Judge Henderson at least entertained — they should assess whether a president was immune from prosecution for the crimes, as charged in the indictment, as most Motions to Dismiss are treated. In the same discussion, Henderson asked twice about how to apply the Blassingame decision in this context. Both these questions are about whether Trump can be prosecuted only because of the nature of the charges in the indictment, or whether as an ex-President he can be charged, regardless of what the charges are.
But as the discussion proceeded, Pearce voiced some of the concerns about what a more narrow ruling would do to the prosecution.
Childs: Are we to look at the broader question that was dealt with by Judge Chutkan with respect to Presidential immunity, no, absolutely immunity for no criminal prosecution of official acts, versus looking at this indictment and accepting as true the allegations that are brought there. Or both?
James Pearce: So we have a strong preference that the court adopts the former view, and looks at the question — in the way, as the District Court did, which is to say, based on questions of separation of powers, of constitutional text, history, precedent, Is there, in fact, immunity for a former President?
We think the answer to that is no, for of course all the reasons we put in the brief and I’m happy to sort of address here. Candidly, I think if the court gets to that second question, there are some hard questions about the nature of official acts. And frankly, as I think Judge Pan’s hypothetical described, I mean, what kind of world are we living in if, as I understood my friend on the other side to say here, a President orders his Seal team to assassinate his political rival and resigns, for example, before an impeachment? Not a criminal act.
President sells a pardon. Resigns, or is not impeached? Not a crime.
I think that is [an] extraordinarily frightening future, and that is the kind — if we’re talking about a balancing and a weighing of the interests — I think that should weigh extraordinarily heavily in the court’s consideration.
Henderson: Let me ask you about the effect of Blassingame. How does it either bind us. How is it persuasive to us.
Pearce: So, I think it, formally, has no application at all, because of course very early on in the opinion, the court says, “we’re not dealing with any questions of immunity in the criminal context.” I tend to agree with my friend on the other side that in many respects, it does reinforce the nature of the Fitzgerald standard outer perimeter standard. It says, you don’t look at intent, or you don’t look at purpose. Context plays a more important role than — often — the content of communications. I think the significant change of course is the acknowledgement of looking at a President — whether that President is acting in his or her role as office-seeker or office-holder.
But, again, to go back to my response to Judge Childs’ question, although that would change the nature of whether — it may change the nature of whether certain things are or are not official acts in the indictment, we just think that’s entirely the wrong paradigm to use. We think that under Fitzgerald — in fact, that would be inconsistent with Fitzgerald’s reasoning — and it’s also just irreconcilable with the nature of how criminal law works. I mean, to say that we’re not going to take account of motive or intent? There are plenty of acts that, everyday, I mean, for example, if I were going to encourage someone not to testify at trial because I wanted to go on a hike with that person, it’s not a crime. If I were to encourage someone not to go on a hike because their testimony a trial — sorry, encourage them to skip their trial testimony because their testimony was going to incriminate me?
It’s the same underlying act.
And now, when you map that onto the criminal–onto the Presidential context, you come up with some of the frightening hypotheticals where as long as something is plausibly official, even if it involves assassinating a prominent critic, or a business rival? That would seem to then, be exempt, potentially, from criminal prosecution, we certainly wouldn’t concede that. If that’s the world we need to live in. I think we would advance plenty of arguments below, but we really — but those arguments themselves would create satellite litigation that are an additional reason not to go down this route.
Childs: But looking, and thinking about your answer about potentially not looking at, your argument about motive and intent, when there is a criminal prosecution, that mens rea and that intent is part of the actual statute charged criminally.
Pearce: Yes. Precisely. And that’s why it wouldn’t make sense to use this non-motive — as I understand how Fitzgerald outer perimeter standard might work, it could say, “those types of official acts, official conduct, that is something from which a President is immune.” You don’t ever get to that second question of, well, did that person act with mens rea, can we prove it beyond a reasonable doubt, because at least under a theory where it’s not available at trial, then there’s no way to reach that conduct.
Childs: When we’re looking at this indictment, though — back to Judge Henderon’s question about the use of Blassingame. Some of the acts are the same or similar, and there was direct discussion of that in that opinion as determining whether it was office-seeker versus office-holder. So do we use Blassingame, at least for that?
Pearce: So if this court decides the case the way the district court does — did, pardon me — then I don’t think Blassingame has any role to play at all. Because there is no question of whether, you know, is this act official, or were these sets of allegations official? The question is, based on a Fitzgerald analysis and history, precedent, et cetera, is there any quantum of immunity for a former President. We think the answer to that question is no. There’s no reason, as the district court also found, to turn to the indictment and consider the outer perimeter, this civil outer perimeter standard.
Henderson: How about if you don’t decide it? On the Blassingame. [inaudible]
Pearce: If you don’t, [inaudible, cross talk] so there are a lot of different ways this court could not decide it that way. I think, to pick up on my response to Judge Childs, we certainly stand by our view in the brief that some substantial number of allegations would fall outside of an outer perimeter, and that, I think, is enough to affirm, I think either party is encouraging the court at that point to send the case back to the District Court. I think that would then create a series of challenging questions that I mentioned earlier: What are the evidentiary theories under which that evidence could potentially come in? And, but it would be our strong view and we would want, if the court followed that route, which we would urge the court not to, to make clear that immunity is an on-off switch. Right? This is the immunity appeal. If the court says, we affirm, we send it back, there’s no immunity. Then other things become evidentiary questions, or questions of jury instructions, which any appeal is then an appeal from a final judgment, if any final judgment.
Childs: And the immunity defense is never lost?
Pearce: Um, well, I don’t think it’s immunity at that point. I think this court, in what I’ve just described, will have said there is no immunity. There may be some other types of challenges, as evidence comes in at trial, but again, I think that would lead to this extraordinarily complicated litigation that is, not the topline reason, but certainly among the reasons why the court should not go down that path. [emphasis added]
As Childs and Pearce laid out, one problem with defining immunity in the criminal context with regards to official (in Blassingame, actions taken as an office-holder) and non-official (in Blassingame, actions taken as an office-seeker) acts is that criminal law, including the laws charged here, pivot on mens rea. Trump can’t be convicted of obstructing the vote certification, for example (assuming SCOTUS sustains its adoption with January 6), unless prosecutors can prove he had “corrupt purpose” in doing so, however that ends up being defined.
But also, if you’re going to split presidential immunity based on a categorization about official and unofficial acts, the evidentiary disputes become impossible. It would draw out that phase of litigation, probably requiring several hearings, but also would create expansive basis for appeal.
One argument John Sauer made yesterday, for example, is that because in Knight, the Second Circuit held that Trump’s Twitter account was a public forum on which he could not conduct viewpoint discrimination, it made his Tweets official acts. If the DC Circuit rules on an official/unofficial split, Trump would undoubtedly argue that under Knight none of his Tweets could come in as evidence, at least three of which are among the most critical pieces of evidence in the case.
But, as Pearce said, the difficulties such a split would create was not the topline concern here. They want DC Circuit to reach the merits, and they want DC Circuit to rule broadly, as Chutkan did.
I don’t think that “doing justice” comment is fluff. Immediately after Pearce presented his not-topline concern about how a categorical ruling would affect the prosecution, he and Pan returned to the theme of the hearing: The Seal Team Six assassination.
And also, selling pardons.
Immediately after that exchange — which was close to the end of Pearce’s time — Pan came back to what, as this really accessible George Conway column lays out, she had stripped things down to be the key issue.
Pan: Since President Trump concedes that a President can be criminally prosecuted under some circumstances — he says that is true only if he is first impeached and convicted by Congress, do you agree that this appeal largely boils down to whether he’s correct in his interpretation of the Impeachment Judgment Clause? That is, if he’s correct, that the Impeachment Judgment Clause includes this impeachment-first rule, then he wins, and if he’s wrong, if we think the Impeachment Judgement Clause does not contain an impeachment-first rule, then he loses?
Pearce: So I think that’s basically right. I mean, the defendant’s theory over the course of this litigation has evolved a bit, and I think, now, before this court, I understand the argument to be the principle submission to be as you’ve just described — what we call in our brief the conditioned precedent argument. That there is only liability — criminal liability for a former president — if that President has been impeached and convicted.
And that is wrong for textual, structural, historical reasons, and a host of practical ones, one of which I’ll start with again, to just amplify the point. It would mean that if a former President engages in assassination, selling pardons, these kinds of things, and then isn’t impeached and convicted? There is no accountability for that, for that individual. And that is frightening. [my emphasis]
While Pearce addressed Sauer’s historical argument briefly, this was close to the end of Pearce’s argument, and really the key point of the hearing. Pan had (as Conway laid out) stripped the issues down to whether Trump’s view on impeachment is correct, and then Pan had demonstrated, using hypotheticals, how impossibly absurd that outcome would be.
James Pearce and Florence Pan don’t want to give Joe Biden an easy way to legally assassinate Trump, only Trump is asking for that.
Pan’s laser focus on those hypotheticals provided Pearce opportunity to repeatedly do what he did far more subtly starting in October. As I argued then, the five hypotheticals that Pearce floated in October were all near analogues for Trump’s known actions.
- Trading pardons to dissuade criminal associates from testifying against someone
- Ordering the National Guard to murder his critics
- Ordering an FBI agent to plant evidence on his political enemy
- Taking a bribe in exchange for a family member getting a lucrative contract
- Selling nuclear secrets to America’s adversaries
Todd Blanche (one of the lawyers representing Trump in both the stolen election and stolen documents cases, and so someone who is intimately familiar what kind of paperwork DOJ discovered, along with hundreds of classified documents, that Trump took with him when he left office) responded to this line of argument by calling the hypotheticals treason and suggesting they might be private acts, but arguing, as Sauer did yesterday that there would still be a remedy: impeachment.
10 Ignoring actual lessons from history, the Government provides a list of lurid hypotheticals that have never happened—including treason and murder. Response, at 20 (speculating that a President might “murder his most prominent critics” or “sell[] nuclear secrets to a foreign adversary”). Some or all of these hypotheticals, depending on the facts, would likely involve purely private conduct, rendering them irrelevant here. See id. Yet even if such examples somehow were within the outer perimeter of a President’s duties, it is overwhelmingly likely the House impeach and the Senate would convict, and the offending President would then be subject to “Indictment, Trial, Judgment and Punishment” by criminal prosecution. U.S. CONST. art. I, § 3, cl. 7. That is the process the Constitution provides, and the prosecution may not ignore it here. [my emphasis]
As Pan had laid out, though, one part of Trump’s argument for immunity is actually bigger than that, arguing for immunity regardless. Indeed, that’s how Pearce presented this very same argument in his appellate response. He took Trump’s claims of absolute immunity at his word, describing that these scenarios — but not the pardon one — would be flat-out legal.
The implications of the defendant’s broad immunity theory are sobering. In his view, a court should treat a President’s criminal conduct as immune from prosecution as long as it takes the form of correspondence with a state official about a matter in which there is a federal interest, a meeting with a member of the Executive Branch, or a statement on a matter of public concern. That approach would grant immunity from criminal prosecution to a President who accepts a bribe in exchange for directing a lucrative government contract to the payer; a President who instructs the FBI Director to plant incriminating evidence on a political enemy; a President who orders the National Guard to murder his most prominent critics; or a President who sells nuclear secrets to a foreign adversary, because in each of these scenarios, the President could assert that he was simply executing the laws; or communicating with the Department of Justice; or discharging his powers as Commander-in-Chief; or engaging in foreign diplomacy. Under the defendant’s framework, the Nation would have no recourse to deter a President from inciting his supporters during a State of the Union address to kill opposing lawmakers—thereby hamstringing any impeachment proceeding—to ensure that he remains in office unlawfully. See Blassingame v. Trump, 87 F.4th 1, 21 (D.C. Cir. 2023) (President’s delivery of the State of the Union address is an official act). Such a result would severely undermine the compelling public interest in the rule of law and criminal accountability. [my emphasis]
An analogue for Pan’s (more vivid) Seal Team Six hypothetical was in there: the National Guard order. And an analogue for her military secrets was in there: selling nuclear secrets.
But pardons aren’t in that brief. The only discussion of pardons in it pertained to the Nixon pardon.
Indeed, it was Sauer who briefed pardons, not Pearce. In an attempt to “prove” that presidents had committed crimes that had not been charged before, he cited the Marc Rich pardon — or rather an Andy McCarthy paywalled column about it — to imply that Bill Clinton committed a crime that had not been prosecuted.
The government argues that the absence of any prior criminal prosecution of a President in American history merely “reflects … the fact that most presidents have done nothing criminal.” Resp.Br.37 (citation omitted). This claim is untenable. App.Br.17 (citing examples of Presidents accused of crimes in official acts, from John Quincy Adams to Barack Obama). American history contains many such examples—President Reagan’s alleged involvement in Iran-Contra, President Clinton’s pardon of Marc Rich, President Bush’s claims of “weapons of mass destruction,” President Nixon’s firing of Archibald Cox, etc. 5 None of the above conduct was prosecuted. “Perhaps the most telling indication of a severe constitutional problem” with this prosecution “is a lack of historical precedent to support it.” Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2201 (2020) (cleaned up).
5 Tim Arango, Ex-Prosecutor’s Book Accuses Bush of Murder, N.Y. TIMES (July 7, 2008), https://www.nytimes.com/2008/07/07/business/media/07bugliosi.html; Andrew C. McCarthy, The Wages of Prosecuting Presidents for their Official Acts, NAT’L REVIEW (Dec. 9, 2023), https://www.nationalreview.com/2023/12/the-wagesof-prosecuting-presidents-over-their-official-acts/; The Editors, Iran-Contra Scandal Begins with Shredded Documents, HISTORY (Nov. 13, 2009), at https://www.history.com/this-day-in-history/oliver-north-starts-feeding-documentsinto-the-shredding-machine.
With regards to Iran-Contra, Pearce noted that “in Chapter 27” of Special Prosecutor Lawrence Walsh’s report, “assumes that President Reagan is subject to prosecution and says, but we didn’t get there evidentiarily.”
In response to Judge Pan’s hypotheticals yesterday, he returned to noted authority, Andy McCarthy’s opinion, about Marc Rich, then said again that pardons had come up historically and not been charged. Pan raised it as a hypothetical, but Sauer wanted to make good and sure that pardons could not be charged because, he said, Andy McCarthy says so.
But then both times Pearce mocked the implications of Sauer’s logic, he did raise selling pardons, even though he left it off his response brief. And he added the scenario of corruptly getting someone not to testify against oneself by inviting them on a hike!
Incidentally, according to Anna Bower, Walt Nauta — the aide who has refused to explain what he knows about what happened to the stolen classified documents that got brought to Bedminster in 2022 — along with his attorney Stan Woodward (and of course Boris Epshteyn), were at yesterday’s hearing.
But the reason — one reason — why I find the way the way pardons have gotten floated repeatedly in this claim of absolute immunity is that, along with hundreds of documents, including nuclear secrets, found at Mar-a-Lago on August 8, 2022, DOJ found documentation about clemency granted by Donald Trump, probably including that of:
Oh, and also, some kind of clemency document — one that has some tie to Emmanuel Macron and therefore possibly a pardon beyond the one we know about — for Roger Stone, the guy who was convicted after refusing to disclose the substance of conversations he had with Donald Trump about advance knowledge of the Russian hack-and-leak. The same guy who, in 2020, was allegedly plotting assassinations with his former NYPD buddy Sal Greco.
It’s certainly possible that James Pearce — and so Jack Smith — want to have a clear decision that presidents can be prosecuted for their official acts simply out of getting the law right.
But both sides in this argument seem to understand there’s something more going on.
Judge Karen Henderson’s Floodgate Concerns
While Judge Florence Pan was asking, over and over, if Trump attorney John Sauer really was saying that a President could assassinate his rival and, if not impeached, avoid any accountability, Judge Karen Henderson expressed her disagreement with Sauer’s argument more circumspectly.
But she did express disagreement.
If I read her comments right, they mean that, at worst, Henderson would support remanding the case to Judge Chutkan to figure out whether the things of which Trump is accused are official acts. Indeed, by the end of a brutal set of questions, that seemed to be what Sauer was begging for, which at least would produce the delay his client seeks.
Henderson’s key lens — something she asked both Sauer and AUSA James Pearce — was, rather than distinguishing between private and official acts, instead distinguishing between discretionary acts and those mandated by law, ministerial acts.
Whether the progeny of Madison v. Marbury has distinguished between discretionary official acts and ministerial, by which they mean, imposed by law, and it’s the latter one by which he can be held liable.
This seemed to be the basis on which she wants to base jurisdiction (where Pan and Michelle Childs seemed inclined to argue they didn’t have jurisdiction). She seemed to be saying that a President could be prosecuted for things that were dictated by law but not for things not dictated by law.
Sauer didn’t get her point. He responded that nothing in the indictment was ministerial.
To which Henderson objected that the Take Care Clause requires the President to follow, “every one of … the laws.”
Why isn’t it ministerial when his constitutional duty, to take care that the laws be faithfully executed, requires him to follow those laws? Every one of them.
Sauer kept digging, arguing the Take Care Clause was entirely discretionary.
Henderson responded, getting to what, I think, is her point. The progeny of Marbury has given Article III courts jurisdiction over ministerial actions, which when yoked with the Take Care Clause requires the President to be subject to individual laws.
I think it’s paradoxical to say that his constitutional duty, to take care that the laws be faithfully executed, allows him to violate criminal law. Now, we’re at the motion to dismiss stage. The government has charged the specific criminal laws. We have to assume they’re true.
[snip]
We’ve gotten beyond Marbury in the sense that official acts have been subdivided into discretionary and duty-bound or ministerial. And in the ministerial or duty-bound, at least with respect even legislators and judges, they have been held criminally liable. And that’s in the face, at least with respect to the legislators, of an explicit privilege.
It’s clear that she was bothered by Sauer’s Take Care Clause arguments, which argued that everything included in the indictment might be covered by the Take Care Clause requiring that the President enforce the law.
Sauer seemed to recognize defeat: as he finished he asked again for a stay so Trump can appeal.
As mentioned, Judge Henderson asked the same question about Marbury of James Pearce, arguing for Jack Smith. He responded this way:
Our interpretation is much closer in line to what I think I heard Judge Pan setting out and similar to yours. It certainly does not erect an unreviewable power for the Presidency. I think the prime example of that is the steel seizure case. The Youngstown case. That was President Truman closing the steel mills. That was the court coming in and reviewing that. We see that all the way through to the present. And so it’s hard to see any world in which the court just says, we can’t intervene here.
I accept the court’s, Judge Henderson, the distinction between ministerial and discretionary acts. Compliance with the law is not some sort of discretionary call, right? It is something that, I fully endorse or agree with the idea of a paradox of a President’s, on the one hand, having the Article II Take Care responsibility, and on the other hand seeing the law, compliance with the law as optional.
That seemed to get Henderson where she wanted to go to decide the case. Then she revealed her worry: That in deciding against Trump, it will unleash a floodgate of similar criminal prosecutions.
Henderson: Let me switch and ask you, how do we write an opinion that would stop the floodgates? Your predecessors in their OLC opinions recognized that criminal liability would be unavoidably political.
Pearce: So, a couple of responses. Of course, that was with respect to a sitting President. I think the analysis is extraordinarily different with respect to a former President, which OLC, I’m sorry —
Henderson: But with respect to being necessarily political.
Pearce: There is a political process, which is impeachment. And we can talk about that. But there is a legal process which is decidedly not political. And that is a process which has the kinds of safeguards that a couple of members of the court here have already referred to. We’re talking about prosecutors who follow strict codes and who are presumed to act with regularity, grand jurors, petit jury eventually, and this court, Article III courts standing above it.
But I also want to push back a little against this idea of floodgates. At least since the Watergate era, fifty years ago, has there been widespread societal recognition including by Presidents and the Executive Branch that a former President is subject to criminal prosecution.
And Nixon was not about private conduct. Nixon was about — among other things — using the CIA to try to interfere with an FBI investigation. He then accepts a pardon, understanding that, after having resigned, so that also undermines this impeachment first argument. After Nixon, we then see a series of independent and special prosecutors investigating a range of different types of conduct.
[snip]
This notion that we’re going to all of a sudden see a floodgate, the careful investigations in the Clinton era didn’t result in any charges. The fact that this investigation did doesn’t reflect that we are going to see a sea change of vindictive tit for tat prosecutions in the future. I think it reflects the fundamentally unprecedented nature of the criminal charges here. Never before has there been allegations that a sitting President has, with private individuals, and using the levers of power, sought to fundamentally subvert the democratic republic and the electoral system. And frankly, if that kind of fact pattern arises again, I think it would be awfully scary if there weren’t some sort of mechanism by which to reach that criminally.
Ultimately, Pearce argued that Trump’s parade of horribles has been disproven by the last fifty years in which it has been presumed that former Presidents could be prosecuted, but none were, until Trump.
Henderson has been sympathetic to Trump’s past claims that he’s being treated differently, politically. So I can understand how it would concern her.
But as noted, once you’re dealing with a former President, that shouldn’t be an issue.
John Sauer Says Joe Biden May Assassinate His Client
In the hearing over whether Trump is entitled to absolute immunity, Trump’s attorney, John Sauer — assisted by some hypotheticals from Judge Florence Pan — backed himself into the corner demanded by his claims.
Joe Biden could order Seal Team Six to assassinate Donald Trump, then quit immediately, before Congress could impeach him, and there would be absolutely no way to hold him accountable for killing his opponent.
Okay then.
James Pearce, in his response, asked “what kind of world are we living in” when Sauer would argue that there would be a way for the President to assassinate his opponent, then resign, or sell pardons, resign, and get away with it.
That’s the world Trump wants, his attorney just argued.
When Michael Dreeben Accepted John Sauer’s Invitation to Talk about Speech and Debate
Trump’s appeal of Judge Tanya Chutkan’s immunity opinion is interesting for the personnel involved. The briefs repeat the very same arguments — and in some instances, include the same passages almost verbatim — made less than three months ago. But first Trump brought in John Sauer to argue his appellate cases, then in the last few weeks, former Deputy Solicitor General Michael Dreeben quietly joined the Special Counsel team (importantly, the Solicitor General appointed by Joe Biden has no role in this appeal).
That makes any changes in the arguments of particular interest, because accomplished appellate lawyers saw fit to add them.
Admittedly, two things happened in the interim to change the landscape significantly. In Blassingame, issued hours before Chutkan released her order, DC Circuit Chief Judge Sri Srinivasan laid out how a President running for reelection does not act in his official duty. In Meadows, 11th Circuit Chief Judge William Pryor adopted that analysis in the criminal context with regards to Mark Meadows in the Georgia case.
That provided both sides the opportunity to address what I had argued, on October 21, was a real weakness in Jack Smith’s first response: the relative silence on the extent to which Trump’s actions were not part of his official duties.
In total, DOJ’s more specific arguments take up just six pages of the response. I fear it does not do as much as it could do in distinguishing between the role of President and political candidate, something that will come before SCOTUS — and could get there first — in the civil suits against Trump.
Citing both Blassingame and Meadows, Smith and Dreeben invited the DC Circuit to rule narrowly if it chose, finding that the crimes alleged in the indictment all pertain to Trump’s role as candidate.
The Court need not address those issues here, however. The indictment alleges a conspiracy to overturn the presidential election results, JA.26, through targeting state officials, id. at 32-44; creating fraudulent slates of electors in seven states, id. at 44-50; leveraging the Department of Justice in the effort to target state officials through deceit and to substitute the fraudulent elector slates supporting his personal candidacy for the legitimate ones, id. at 50-54; attempting to enlist the Vice President to fraudulently alter the election results during the certification proceeding on January 6, 2021, and directing supporters to the Capitol to obstruct the proceeding, id. at 55-62; and exploiting the violence and chaos that transpired at the United States Capitol on January 6, 2021, id. at 62-65. The indictment thus alleges conspiracies to advance the defendant’s prospects as a candidate for elective office in concert with private persons as well as government officials, cf. Blassingame, 87 F.4th at 4 (the President’s conduct falls beyond the outer perimeter of his official duties if it can only be understood as having been undertaken in his capacity as a candidate for re-election), and the defendant offers no plausible argument that the federal government function and official proceeding that he is charged with obstructing establish a role—much less an exclusive and conclusive role—for the President, see Georgia v. Meadows, No. 23-12958, 2023 WL 8714992, at *11 (11th Cir. Dec. 18, 2023); United States v. Rhodes, 610 F. Supp. 3d 29, 41 (D.D.C. 2022) (Congress and the Vice President in his role as President of the Senate carry out the “laws governing the transfer of power”) (internal quotation marks omitted).
The short term goal here is to convince Judge Karen Henderson, the Poppy Bush appointee on this panel whose judicial views have grown as radical as any Trump appointee’s, to reject Trump’s claims. Ultimately, Jack Smith is arguing against Presidential immunity even for official acts, but a ruling limited to acts taken as a candidate might provide a way to get Judge Henderson to join the two Biden appointees on the panel, Florence Pan and Michelle Childs, in rejecting Trump’s immunity claims.
In both his briefs, Trump had — ridiculously! — argued that Nixon’s Watergate actions were private acts yet Trump’s January 6 actions were part of his official duties. Smith swatted that claim away in a passage noting that Nixon’s acceptance of a pardon served as precedent for the notion that a President could be tried for actions done as President.
That President Nixon was named as an unindicted coconspirator in a plot to defraud the United States and obstruct justice, Nixon, 418 U.S. at 687, entirely refutes the defendant’s efforts (Br.27-28, 41) to distinguish that case as involving private conduct. See United States v. Haldeman, 559 F.2d 31, 121-22 (D.C. Cir. 1976) (en banc) (per curiam) (explaining that the offense conduct included efforts “to get the CIA to interfere with the Watergate investigation being conducted by the FBI” and “to obtain information concerning the investigation from the FBI and the Department of Justice”) (internal quotation marks omitted). And President Nixon’s acceptance of the pardon represents a “confession of guilt.” Burdick v. United States, 236 U.S. 79, 90-91 (1915).
Again, once the categorization adopted by Srinivasan is available, it makes the comparison with Nixon far more damning.
One of the most interesting additions to the earlier arguments, however, is that Sauer added a second kind of immunity to Trump’s earlier discussion that the principles of judicial immunity carry over to Presidential immunity: Speech and Debate. In two cursory paragraphs, Sauer claimed that, like members of Congress, Trump should enjoy both civil and criminal immunity for their official, “legislative” acts.
Legislative immunity. Legislative immunity encompasses the “privilege … to be free from arrest or civil process” for legislative acts, i.e., criminal and civil proceedings alike. Tenney, 341 U.S. at 372. Such immunity enables officials “to execute the functions of their office without fear of prosecutions, civil or criminal.” Id. at 373–74 (quoting Coffin v. Coffin, 4 Mass. 1, 27 (Mass. 1808)).
Thus, legislative immunity “prevent[s]” legislative acts “from being made the basis of a criminal charge against a member of Congress.” Johnson, 383 U.S. at 180. A legislative act “may not be made the basis for a civil or criminal judgment against a Member [of Congress] because that conduct is within the sphere of legitimate legislative activity.” Gravel v. United States, 408 U.S. 606, 624 (1972) (emphasis added). Speech and Debate immunity “protects Members against prosecutions that directly impinge upon or threaten the legislative process.” Id. at 616.
Did I say two developments have changed the landscape of this discussion? I’m sorry, I should have added a third: In response to the September DC Circuit remand of Scott Perry’s appeal of Judge Beryl Howell’s decision that Jack Smith could have some stuff from his phone — in a panel including Henderson — on December 19, Howell’s successor at Chief Judge, James Boasberg reviewed the contested files anew and ruled that Smith could have most of them, including communications pertaining to “efforts to work with or influence members of the Executive Branch.”
Subcategories (c), (d), (e), and (f) comprise communications about non-legislative efforts to work with or influence members of the Executive Branch. Even if such activities are “in a day’s work for a Member of Congress,” the Speech or Debate Clause “does not protect acts that are not legislative in nature.”
Kyle Cheney (who snagged an accidentally posted filing before it was withdrawn) described what many of those communications would include, including Perry’s advance knowledge of Trump’s efforts to install Jeffrey Clark as Attorney General.
Boasberg’s order required Perry to turn over those communications by December 27; if he appealed that decision, I’m not aware of it. So as you read this Speech and Debate section, consider the likelihood that Jack Smith finally obtained records from a member of Congress DOJ has been seeking for 17 months, since before Smith was appointed.
The DC Circuit opinion in Perry is not mentioned in any of these briefs. But the developments provide an interesting backdrop for Dreeben’s much longer response to Sauer’s half-hearted Speech and Debate bid. Much of it is an originalist argument, noting that whereas Speech and Debate was explicitly included in the Constitution, immunity for Presidents was not, not even in a landscape where Delaware and Virginia had afforded their Executive such immunity.
Along the way, Dreeben includes two citations that weren’t in Jack Smith’s original submission: One from Clarence Thomas making just that originalist argument about Presidential immunity: “the Constitution explicitly addresses the privileges of some federal officials, but it does not afford the President absolute immunity.” And one from Karen Henderson, the key vote in this panel, noting that, contra Sauer’s expansive immunity claim, “it is well settled that a Member is subject to criminal prosecution and process.”
Unlike the explicit textual immunity granted to legislators under the Speech or Debate Clause, U.S. Const. art. I, § 6, cl. 1, which provides that “for any Speech or Debate in either House,” members of Congress “shall not be questioned in any other Place,” the Constitution does not expressly provide such protection for the President or any executive branch officials. See Vance, 140 S. Ct. at 2434 (Thomas, J., dissenting) (“The text of the Constitution explicitly addresses the privileges of some federal officials, but it does not afford the President absolute immunity.”); JA.604-06. By contrast, state constitutions at the time of the founding in Virginia and Delaware did grant express criminal immunity to the state’s chief executive officer. JA.605 (citing Saikrishna Bangalore Prakash, Prosecuting and Punishing Our Presidents, 100 Tex. L. Rev. 55, 69 (2021)). To be sure, the federal Constitution’s “silence . . . on this score is not dispositive,” Nixon, 418 U.S. at 705 n.16, but that silence is telling when placed against the Constitution’s Impeachment Judgment Clause, which presupposes and expressly preserves the availability of criminal prosecution following impeachment and conviction. See U.S. Const. art. I, § 3, cl. 7.
[snip]
The defendant suggests (Br.16-17, 18-19) that common-law principles of legislative immunity embodied in the Speech or Debate Clause, U.S. Const. art. I, § 6, cl. 1, inform the immunity analysis here, but that suggestion lacks support in constitutional text, history, or purpose. The Framers omitted any comparable text protecting executive officials, see Vance, 140 S. Ct. at 2434 (Thomas, J., dissenting), and no reason exists to look to the Speech or Debate Clause as a model for the defendant’s immunity claim.
In contrast to the defendant’s sweeping claim of immunity for all Presidential acts within the outer perimeter of his duties, the Speech or Debate Clause’s scope is specific: it is limited to conduct “within the ‘sphere of legitimate legislative activity.’” Gravel v. United States, 408 U.S. 606, 624 (1972). “Legislative acts are not all-encompassing,” and exclude a vast range of “acts in [a Member’s] official capacity,” such as outreaches to the Executive Branch. Id. Beyond that limitation, the Clause “does not purport to confer a general exemption . . . from liability . . . in criminal cases.” Id. at 626. Nor does it “privilege [Members or aides] to violate an otherwise valid criminal law in preparing for or implementing legislative acts.” Id. Courts have therefore recognized for more than 200 years that a Representative “not acting as a member of the house” is “not entitled to any privileges above his fellow-citizens” but instead “is placed on the same ground, on which his constituents stand.” Coffin v. Coffin, 4 Mass. 1, 28-29 (1808); see Rayburn House Off. Bldg., 497 F.3d at 670 (Henderson, J., concurring in the judgment) (observing that “it is well settled that a Member is subject to criminal prosecution and process”). The Speech or Debate Clause does not “make Members of Congress super-citizens, immune from criminal responsibility.” United States v. Brewster, 408 U.S. 501, 516 (1972). The defendant’s immunity claim, however, would do just that, absent prior impeachment and conviction.
The Speech or Debate Clause’s historical origins likewise reveal its inapplicability in the Presidential context. The Clause arose in response to successive British kings’ use of “the criminal and civil law to suppress and intimidate critical legislators.” United States v. Johnson, 383 U.S. 169, 178 (1966); see United States v. Gillock, 445 U.S. 360, 368-69 (1980) (noting that the English parliamentary privilege arose from “England’s experience with monarchs exerting pressure on members of Parliament” in order “to make them more responsive to their wishes”). In one instance, the King “imprison[ed] members of Commons on charges of seditious libel and conspiracy to detain the Speaker in the chair to prevent adjournment,” and the judiciary afforded no relief because “the judges were often lackeys of the Stuart monarchs.” Johnson, 383 U.S. at 181. That history has no parallel here: the defendant can point to no record of abuses of the criminal law against former Presidents, and the Article III judiciary provides a bulwark against any such abuses. [my emphasis]
Having been invited to discuss congressional immunity, Smith’s brief cites another comment from Henderson’s Rayburn concurrence elsewhere. “[T]he laws of this country allow no place or employment as a sanctuary for crime.”
see United States v. Rayburn House Off. Bldg., 497 F.3d 654, 672-73 (D.C. Cir. 2007) (Henderson, J., concurring in the judgment) (“[T]he laws of this country allow no place or employment as a sanctuary for crime.”) (citing Williamson v. United States, 207 U.S. 425, 439 (1908)). [my emphasis]
Tactically, all this is just an argument — an originalist argument — that even an immunity explicitly defined in the Constitution, Speech and Debate, does not — Judge Karen Henderson observed in 2007, when the question of immunity pertained to Black Democrat William Jefferson, in a case in which she sided with DOJ attorney Michael Dreeben — exempt anyone from criminal prosecution. Read her concurrence! She makes the same arguments about Tudor kings that Smith and Dreeben make!
But much of Jack Smith’s response, in my opinion, lays the ground work for other, future appeals. For example, this brief adopts a slight change in the way it describes the fake elector plot, emphasizing the centrality of Trump, “caus[ing his fake electors] to send false certificates to Congress,” a move that may be a preemptive response to any narrowing of 18 USC 1512(c)(2) that SCOTUS plans in the Fischer appeal of obstruction’s use for January 6.
Ultimately, Smith is still arguing for a broader ruling, rejecting Trump’s presidential immunity claims more generally. Ultimately, I imagine this adoption of language from Clinton v Jones is where Jack Smith would like to end up.
Given that, the Constitution cannot be understood simultaneously (and implicitly) to immunize a former President from criminal prosecution for official acts; rather, the Constitution envisions Presidential accountability in his political capacity through impeachment and in his personal capacity through prosecution. See Clinton, 520 U.S. at 696 (“[F]ar from being above the laws, [the President] is amenable to them in his private character as a citizen, and in his public character by impeachment.”) (quoting 2 J. Elliot, Debates on the Federal Constitution 480 (2d ed. 1863) (James Wilson)).
To get there without possibly fatal delays, though, Dreeben and Smith need to get Henderson to agree to at least a narrow rejection of Trump’s immunity claims.
And so, responding to Sauer’s invitation, Dreeben reminded Henderson of what she said about a case he argued 16 years ago.
But if I were Scott Perry, three days after he was ordered to turn over records about his plotting with Donald Trump to overturn the election, I’d be watching these arguments closely.