Posts

Trump Wants to Hide His Attempt to Assassinate Mike Pence from Voters

/49 Comments/in , , , /by

In 2016, Donald Trump bragged, “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK?”

This election, Trump wants to hide from voters details of how he almost killed his Vice President, Mike Pence, and his claim that doing so was an official act protected by presidential immunity.

That’s the primary thing you need to know about the joint status report presented to Judge Tanya Chutkan in Trump’s January prosecution last night.

Jack Smith doesn’t propose a schedule (thereby avoiding any claim he’s trying to push pre-election developments), but he’s ready to get this process started right away. He does want Judge Chutkan to make determinations regarding immunity first and foremost. He cites Chutkan’s own order and SCOTUS’ remand order to justify that.

The Court has indicated that it intends to conduct its determinations related to immunity first and foremost. See, e.g., ECF No. 197 (Order denying without prejudice the defendant’s motion to dismiss the previous indictment on statutory grounds and specifying that he “may file a renewed motion once all issues of immunity have been resolved”). The Government agrees with this approach, both because the Supreme Court directed such a process on remand, see Trump v. United States, 144 S. Ct. 2312, 2340 (2024), and because the Supreme Court has “repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation,” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (internal citations omitted).

Trump, by contrast, wants to stall any consideration of immunity until December 13 by first litigating a challenge to Jack Smith’s appointment that Aileen Cannon approved but which conflicts with several binding precedents in the DC Circuit (and which Trump pointedly didn’t try before Chutkan last fall, when he submitted all his other motions to dismiss).

Trump-appointed Judge Mark Scarsi rejected Hunter Biden’s similar attempt to challenge David Weiss’ Special Counsel appointment in the wake of Judge Cannon’s ruling as untimely, and there’s good reason to believe that would be the likely outcome here, even before getting to the binding DC Circuit precedent.

You need look no further than Trump’s description of what he wants to challenge in the superseding indictment to understand why Trump wants to delay this fight until December: As I predicted, he wants to have the Mike Pence allegations thrown out.

In addition, while continuing to strongly maintain that many classes of conduct alleged in the Superseding Indictment are immune—including, but not limited to, Tweets and public statements about the federal 2020 Presidential election, communications with state officials about the federal election, and allegations relating to alternate slates of electors—President Trump may file a motion to dismiss focused specifically on the Special Counsel’s improper use of allegations related to Vice President Pence, along with other potential key threshold motions. Namely, in Trump, the Supreme Court held that President Trump is “at least presumptively immune from prosecution for” all alleged efforts “to pressure the Vice President to take particular acts in connection with his role at the certification proceeding.” Trump v. United States, 144 S. Ct. 2312, 2336 (2024). These same allegations are foundational to the Superseding Indictment and each of its four counts. See Doc. 226 at ¶¶ 5, 9(b), 11(c)-(d), 14, 51(b), 55, 67–90, 99–100. If the Court determines, as it should, that the Special Counsel cannot rebut the presumption that these acts are immune, binding law requires that the entire indictment be dismissed because the grand jury considered immunized evidence. Trump, 144 S. Ct. 2312, 2340 (2024) (“Presidents . . . cannot be indicted based on conduct for which they are immune from prosecution.”).

The Special Counsel’s inability to rebut the presumption as to Pence is dispositive to this case. The special counsel will be unable to do so as a matter of law, thus rendering the remainder of the case moot. Trump, 144 S. Ct. 2312, 2337 (2024) (“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.” (emphasis added)).

To be sure, he’s not wrong to challenge the inclusion of the Pence allegations. Nor is he wrong in his view of how central Pence is to this indictment (though he overstates when he claims it would moot all else; the fake electors plot might survive the excision of the Mike Pence allegations).

As I explained, Justice Roberts raised the conversations with Pence specifically. But as I also explained, that is one of the shrewd things Jack Smith did in superseding the indictment: he stripped out all other things that obviously fit under Roberts’ guidelines, leaving only Trump’s efforts to get Pence to throw out the votes of 81 million Biden voters and when Pence refused, Trump’s action — a tweet — that almost got Pence assassinated.

Trump may well succeed in arguing that he can’t be prohibited from asking Pence to overturn the results of the election so the two of them could remain in power because any such prohibition would chill the normal conversations between Presidents and their Vice Presidents. That is simply the absurd logical result of Roberts’ opinion: that a President can order his Vice President to steal an election because any prohibition on doing so would chill the authority of the President.

But if Jack Smith has his way, Trump will have to make that argument — once, probably in a court filing in October — before voters go to the polls in November.

There are a bunch of legal details in this status report. But given the near certainty that if Trump wins, the entire prosecution will go away, the only one that really matters is that, this election, Trump isn’t so sure that he would lose no votes if he shot someone on Fifth Avenue — or if voters learned why and how he almost had his Vice President assassinated in the US Capitol — as he was in 2016.

Trump doesn’t want to tell voters he thinks that as President, he could have Mike Pence shot on the Senate floor — shot as punishment because his Vice President refused an illegal order to steal an election — and be immune from any consequences for doing so.

Share this entry

The Superseding Trump Indictment Is about Obstruction as Much as Immunity

/70 Comments/in , , /by

In this Xitter thread, I went through everything that had been added or removed from the superseding indictment against Trump, based on this redline. The changes include the following:

  1. Removal of everything having to do with Jeffrey Clark
  2. Removal of everything describing government officials telling Trump he was nuts (such as Bill Barr explaining that he had lost Michigan in Kent County, not Wayne, where he was complaining)
  3. Removal of things (including Tweets and Trump’s failure to do anything as the Capitol was attacked) that took place in the Oval Office
  4. Addition of language clarifying that all the remaining co-conspirators (Rudy Giuliani, John Eastman, Sidney Powell, Kenneth Chesebro, and — probably — Boris Epshteyn) were private lawyers, not government lawyers
  5. Tweaked descriptions of Trump and Mike Pence to emphasize they were candidates who happened to be the incumbent
  6. New language about the treatment of the electoral certificates

Altogether, the changes incorporate not just SCOTUS’ immunity decision, but also the DC Circuit’s Blassingame decision deeming actions taken as a candidate for office are private acts, and SCOTUS’ Fischer decision limiting the use of 18 USC 1512(c)(2) to evidentiary issues.

The logic of Blassingame is why Jack Smith included these paragraphs describing that Trump and Pence were acting as candidates.

1. The Defendant, DONALD J. TRUMP, was a candidate for President of the United States in 2020. He lost the 2020 presidential election.

[snip]

5. In furtherance of these conspiracies, the Defendant tried–but failed–to enlist the Vice President, who was also the Defendant’s running mate and, by virtue of the Constitution, the President of the Senate, who plays a ceremonial role in the January 6 certification proceeding.

As I’ve said repeatedly, it’s not clear that adopting the Blassingame rubric will work for SCOTUS, even though they did nothing to contest this rubric.

That’s because Chief Justice Roberts used Pence’s role as President of the Senate to deem his role in certification an official responsibility, thereby deeming Trump’s pressure of Pence an official act. Smith will need to rebut the presumption of immunity but also argue that using these conversations between Trump and Pence will not chill the President’s authority.

Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.

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 ofInterest 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.

This is the most important advantage of superseding the indictment. When someone boasted to Bloomberg that Jack Smith’s purported decision not to have a mini-trial on these issues was a “win” for Trump, they envisioned that this meant there would be no media friendly election-season developments, providing a way to get through (a successful or stolen) election so future President Trump could throw the case out.

Such a hearing would have been the best chance for voters to review evidence about Trump’s efforts to overturn the 2020 election result as he campaigns to regain the White House.

The decision is a win for Trump and his lawyers, who have fought efforts to reveal the substance of allegations against the former president.

The decision to supersede this indictment may have turned what could have been an immediate dispute about the viability of the indictment at all into an evidentiary dispute to be managed later. We’ll find out more on Tuesday.

At the very least, Jack Smith suggests he has something viable on which to arraign Trump (and Trump’s Xitter wails treating this as a real indictment suggest he may believe that).

Smith will still need to overcome the presumption created out of thin air by John Roberts on all of this. But he may do so from a posture where the utter absurdity of Roberts’ ruling are made obvious.

That’s one reason it’s important that Smith has included the tweet via which Trump almost got Mike Pence assassinated.

Smith rationalized doing so by emphasizing that Trump wrote it neither in the Oval Office nor with anyone’s assistance.

92. Beginning around 1:30 p.m., the Defendant, who had returned to the White
House after concluding his remarks, settled in the dining room off of the Oval Office. He spent much of the afternoon reviewing Twitter on his phone, while the television in the dining room showed live events at Capitol.

[snip]

94. At 2:24 p.m., the Defendant personally, without assistance, issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!” [my emphasis]

This situates this Tweet, which almost got Mike Pence killed, a private act for which Trump has no immunity. It may not work. But that’s the logic.

But the other changes in this passage are all about Fischer, about showing how Trump deliberately sicced a mob on the Capitol with the goal of making it impossible to count the certifications.

After adding language from Trump’s speech (included based on the justification that the rally was paid for by private funds) in which he emphasized the certification process, Smith added other language describing how Trump’s mob disrupted the vote certification over which Pence was presiding.

Everything italicized below is new.

86d. The Defendant specifically referenced the process by which electoral votes are counted during the proceeding, including by stating, “We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.”

[snip]

90. On the floor of the House of Representatives, the Vice President, in his role as President of the Senate, began the certification proceeding. At approximately 1:11 p.m., the Vice President opened the certificates of vote and certificates of ascertainment that the legitimate electors for the state of Arizona had mailed to Washington, consistent with the ECA. After a Congressman and Senator lodged an objection to Arizona’s certificates, the House and Senate retired to their separate chambers to debate the objection.

91. A mass of people-including individuals who had traveled to Washington and to
the Capitol at the Defendant’s direction-broke through barriers cordoning off the Capitol grounds and advanced on the building, including by violently attacking law enforcement officers trying to secure it.

92. Beginning around 1:30 p.m., the Defendant, who had returned to the White
House after concluding his remarks, settled in the dining room off of the Oval Office. He spent much of the afternoon reviewing Twitter on his phone, while the television in the dining room showed live events at Capitol.

93. At 2:13 p.m., after more than an hour of steady, violent advancement, the
crowd at the Capitol broke into the building, and forced the Senate to recess. At approximately 2:20 p.m., the official proceeding having been interrupted, staffers evacuating from the Senate carried with them the legitimate electors’ certificates of vote and their governors’ certificates of ascertainment. The House also was forced to recess.

94. At 2:24 p.m., the Defendant personally, without assistance, issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

95. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.

96. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”

This narrative ties the mob, particularly the storming of the Senate chamber, directly to Trump’s goal of interrupting the counting of the electoral certificates. This instrumentality was always a part of the indictment — has been part of this investigation since no later than January 5, 2022. But Roberts’ dual interventions in the January 6 prosecutions forced Smith and crime scene prosecutors working under US Attorney Matthew Graves to make it far more explicit.

A significant number of mobsters either knew the import of the certificates ahead of time, and/or heard Trump describe the goal at the Ellipse, and when they stormed the Capitol, assaulted cops, and occupied the space that the Vice President had only just evacuated, they had the goal of preventing the authentic certificates from being counted.

And Jack Smith is making this argument before Judge Chutkan even as other prosecutors are making a parallel argument before other judges.

As DOJ laid out in their filing describing how they plan to retry Matt Loganbill (who joined Alex Jones as he opened a second, eastern front on the attack on the Capitol) under the new Fischer standard, Loganbill had the goal of getting Pence to shred the envelopes as early as December 20, 2020, and after he stormed the Capitol, he headed towards the Senate where he believed they were counting the vote.

  • On December 20, 2020, the defendant wrote to Facebook, “This would take place Jan 6 Witnesses should be 60 feet away while Pence counts the Electoral College votes . . . Pence should open all the envelopes and then stack all the EC ballots in a pile, he should then shred all the envelopes and burn the shreds.” Gov. Ex. 302.47.
  • On December 30, 2020, the defendant wrote to Facebook, “CALL SENATOR JOSH HAWLEY’S OFFICE T O D A Y AND LET HIM KNOW YOU SUPPORT HIS INTENT TO BE THE FIRST REPUBLICAN SENATOR TO CHALLENGE THE ELECTORAL VOTE ON JANUARY 6.” Gov. Ex. 302.49.
  • On January 6, 2021, at 1:20 p.m., the defendant sent a text message, “Are you watching what’s going on in the house/ elector certification.” Gov. Ex. 303.
  • On January 7, 2021, the defendant replies to a comment by another person on Facebook saying, “Why do you think we were trying every means possible to stop these idiots from stealing the presidency and destroying this nation.” Gov. Ex. 302.65

Evidence at trial showed Loganbill entered the Capitol, the location where the Electoral College ballots were located and where Congress and the Vice President were conducting the official proceeding.6 Gov Exs 101.1 and 701. Once inside, the defendant proceeded towards the Senate, where Congress would be handing objections to the Electoral College vote – attempting to obstruct Congress’ certification of the Electoral College ballots. The defendant knew where he was going. The government admitted a Facebook post by the defendant on January 7 and 8, 2021, he wrote, “They didn’t [let us in] at the chamber, we could have over run them, after 10-15 minutes of back and forth, we walked out” and “The only place [the police officers] wouldn’t give was the hallway towards the Rep. chamber.” Gov Exs 302.66 and 302.82, respectively. The “chamber” and “Rep. chamber” were where the Vice President and members of Congress would have been counting and certifying the Electoral College ballots. Gov Ex 701

[snip]

From this evidence, including the defendant’s express statement related to the destruction of the electoral ballots, the Court would be able to find, beyond a reasonable doubt, that the defendant acted to obstruct the certification of the electoral vote, and specifically, that he intended to, and attempted to, impair the integrity or availability of the votes (which are documents, records, or other things within the meaning of Fischer) under consideration by the Joint Session of Congress on January 6, 2021.

Of course, with any retrial, both parties would be permitted to introduce new evidence, or start the record over anew. Indeed, the government would likely introduce additional evidence related to the ballots and staffers attempts to remove the ballots from the chambers when the riot started.

6 According to the testimony of Captain Jessica Baboulis’ testimony, “[t]he official proceeding had suspended due to the presence of rioters on Capitol Grounds and inside the Capitol. ECF No. 31 at 23. As the Court said in its verdict, “It doesn’t matter to this count if he entered the building after the official proceeding had been suspended and Pence had been evacuated.” ECF No. 40 at 5. Loganbill attempted to and did obstruct the Electoral College vote, including the counting of ballots, the presence of members of Congress, and the presence of the Vice President.

Here’s how DOJ plans to prove that the Chilcoats, Shawndale and Donald, planned to prevent the votes from being counted by occupying the Senate.

[A]t approximately 2:46 p.m., the defendants watched rioters attempt to break open windows, then entered the Capitol building itself through a broken-open door on the building’s northwest side. A cell phone video shows that, after they learned of the breach, Donald Chilcoat cautioned Shawndale Chilcoat that they should let other rioters enter first. That way, if the police deployed pepper spray, those other rioters, and not the Chilcoats, would bear the brunt of it. In other words, the defendants knew they were not welcome, and they knew their entry might be met with force. After the defendants entered the building, they traveled to the Senate Chamber – the very place where the proceeding was taking place – and joined other rioters in occupying it. There, they took photographs and remained in the chamber while other rioters searched desks belonging to the former Vice President and to Senators.

Through their conduct, the defendants demonstrated an intent to invade and occupy the Capitol building and to stop the certification of the electoral college vote. And, critically, they were aware that this proceeding involved records, documents, or other things—specifically, the electoral votes that Congress was to consider. On January 4, 2021, via Facebook, a friend of Shawndale Chilcoat told her to “give Rob Portman a call and let him know what you think of him not rejecting the fraudulent votes.” Shawndale Chilcoat affirmed “just did.” Then, late on January 5 or early on January 6, Shawndale Chilcoat posted a message to Facebook saying that “[Vice President] Pence is stating he can not reject the votes.” On January 7, 2021, after the riot, Shawndale Chilcoat admitted “we were just trying to stop them from certifying the votes and didn’t know they were already gone.” On the same day, she also bragged, “[o]k so antifa is being blamed for breaking windows and storming congress. Um no, it was us I was with them and couldn’t be more proud.”

Here’s one of the most interesting things about yesterday’s superseding indictment.

The efforts to address Fischer are intertwined. While DOJ might be able to sustain some obstruction cases against rioters based on their own communications, and while Jack Smith might rescue this indictment with a focus on the effort to create fake elector certificates, Smith can only show that Trump almost got his Vice President assassinated if enough of the crime scene obstruction cases survive DC District review (and jury verdicts) such that Smith can show the mob was his instrument.

Jack Smith did things (describing that Trump was in his private Dining Room, not the Oval Office, noting that he sent the threatening Tweet with no assistance, labeling the rally a privately-funded speech, labeling Trump and Pence as candidates) that increase his chances of overcoming the presumption of immunity that John Roberts invented. But a number of judges (and some juries) are going to have to buy that a handful of members of the mob stormed the Capitol, and especially the Senate, with the intent of making it impossible to count vote for Joe Biden.

Here’s where things get interesting. As far as I’m aware, we have yet to see any of the superseding indictments for crime scene defendants against whom DOJ wants to sustain obstruction charges (we have seen superseding indictments against people against whom DOJ has replaced obstruction with something else, like rioting).

DOJ could have used a combined grand jury to do both, Trump and his mob. They’re each going to focus on the same issues: What staffers did to preserve the certificates as mobster came in, and the intent to prevent their counting.

They appear not to have done so; yesterday’s indictment lacks the date the grand jury was seated, which normal DC District grand juries have.

If that’s right, then Jack Smith (appears to have) seated a grand jury that could spend the next several months examining different charges, perhaps boosted by whatever precedents come out of the proceedings before Judge Chutkan and others, rather than simply sharing a grand jury with prosecutors doing much the same thing, addressing Fischer.

If Jack Smith succeeds in preserving this indictment — and that’s still a big *if* — then he will do so by making the argument that Trump, in his role as candidate, had the intention of using a mob to target the guy who played the ceremonial role of counting the vote. It would result in a collection of judicial holdings that presidential candidate Donald Trump had a mob target his Vice President in an attempt to remain President unlawfully.

Sure, John Roberts and his mob might yet try to overturn that. John Roberts might endorse the idea that presidential candidates, so long as they are the incumbent, can kill members of Congress to stay in power.

But doing so would clarify the absurdity of such a ruling.

Correction: Kyle Cheney reports that this is a grand jury seated last year. It has indicted other Jan6ers and so could do any 1512 indictments that require superseding.

Share this entry

Spirit of Revenge: John Roberts Says Joe Biden Can Demand an Investigation of Ginni Thomas

/91 Comments/in , , , /by

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.

Share this entry

Chief Justice John Roberts Just Invited President Biden to Pardon Nicholas Roske

/146 Comments/in , , /by

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.

Share this entry

Justice Roberts’ Drone Strike on George Washington’s Legacy

/146 Comments/in , /by

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.

Share this entry

Jack Smith’s Way Forward

/72 Comments/in , /by

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.

Share this entry

SCOTUS’ Republicans Allow Presidents to Use SEAL Team 6 To Execute Their Opponents

/229 Comments/in , /by

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.

Share this entry

Supreme Court Makes 18 USC 1512 a Paperwork Crime, But Does Not Address Corrupt Purpose

/34 Comments/in , /by

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.

Share this entry

Trump’s Other Immunity Claim: Stealing Boxes and Boxes of Classified Documents

/123 Comments/in , , , /by

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Share this entry