Posts

We’re on the Unfuck Stage of Trump’s Abuse of Power

/33 Comments/in /by

I listened to the arguments at the Supreme Court over Trump’s tariffs (my live tweet of John Sauer and the plaintiffs; the transcript), with John Sauer arguing for Trump, Neal Katyal arguing for the small businesses that sued, and Benjamin Gutman arguing for Democratic states that sued.

The primary argument comes down to Katyal’s emphasis: that because tariffs raise revenues, they are part of Congress’ power.

Sauer was stuck, over and over again, attempting to argue that the intent of these tariffs was not to raise revenue, it was to encourage capacities in the US.

And I said there’s two buckets there. One is, first of all, when it comes to the trade deficit emergency, if no one ever pays the tariff but instead they direct their consumption domestically and spur the creation of a rebuilding of our — of our hollowed-out manufacturing base, that directly addresses the crisis. It’s more effective if no one ever pays the tariff. That’s the point of it, really. You know, that’s a fundamental point of it. And that’s one piece of these.

[snip]

That — those tariffs, if no one ever collects them but the threat of imposing those tariffs gets China and our other trading partners across the world to change their behaviors in a way that addresses this, then that’s the most effective use of the policy. So they’re clearly regulatory tariffs, not taxes. They are not — they’re not an exercise of the power to tax. They are the exercise of the power to regulate foreign commerce. And that’s why the statute says “regulate.” It doesn’t say “tax.” It says “regulate.”

Eventually, Katyal pointed out that the government had already bragged in declarations that they planned to make $4 trillion from the tariffs.

This is obviously revenue-raising. Their own brief to the Court says it’s going to raise $4 trillion.

No one talked about coffee, or anything else that the US has no ability to replace. Katyal did raise Switzerland, with which we have a trade surplus.

It’s just that this President has torn up the entire tariff architecture. You know, for example, he’s tariffing Switzerland, one of our allies, which we have a trade surplus, 39 percent. That is just not something that any President has ever had the power to do in our history.

Amy Coney Barrett asked why they had to impose tariffs on Spain and France.

These are imposed on — I mean, these are kind of across the board. And so is it your contention that every country needed to be tariffed because of threats to the defense and industrial base? I mean, Spain, France? I mean, I could see it with some countries, but explain to me why as many countries needed to be subject to the reciprocal tariff policy as are.

Sonia Sotomayor raised the silly tariffs on Brazil for hold Jair Bolsonaro to account.

But the President threatened to impose a 10 percent tax on Canada for an ad it ran on tariffs during the World Series. He imposed a 40 percent tax on Brazil because its Supreme Court permitted the prosecution of one of its former presidents for criminal activity. The point is, those may be good policies, but does a statute that gives, without limit, the power to a President to impose this kind of tax, does it require more than the word “regulate”?

After Sauer claimed there was some oversight to this, Elena Kagan observed that Trump keeps declaring emergencies.

The President has to make a formal declaration of a national emergency, which subjects him to particularly intensive oversight by Congress, repeat — you know, natural lapsing, repeated review, reports, and so forth. It says you have to consult with Congress to the — the maximum extent possible.

JUSTICE KAGAN: I mean, you yourself think that the declaration of emergency is unreviewable. And even if it’s not unreviewable, it’s, of course, the kind of determination that this Court would grant considerable deference to the — to the President on. So that doesn’t seem like much of a constraint.

GENERAL SAUER: But it is a —

JUSTICE KAGAN: And, in fact, you know, we’ve had cases recently which deals with the President’s emergency powers, and it turns out we’re in emergencies everything all the time about, like, half the world.

GENERAL SAUER: Well, this particular emergency is particularly existential, as Executive Order 14257 says, and, of course, no one disputes the existential nature of the fentanyl crisis, which, you know, we had an agreement last week to create progress on, which illustrates the effectiveness of the tariffs tool h

Even Sammy Alito all-but conceded that there was no real emergency here, the basis on which Trump has accrued the power to impose taxes. “Would you have the same suspicion that President trying to achieve a goal other than the raising of money,” in case of an undisputed emergency. Kavanaugh came in a few minutes later raising the India tariffs, asserting blindly that the purpose of them was to end the Russian war (no one asked why Trump set tariffs on India first or why he didn’t just impose sanctions).

I don’t bank lots on my impression of how arguments went. John Roberts was mostly silent, but when he did weigh in, it was always in ways fairly devastating for that argument. My guess, then, is that the women plus Justice Roberts, plus maybe Neil Gorsuch, will rule against Trump, though don’t hold me to it.

There were several other interesting parts of the discussion though. There was the discussion of what happens if plaintiffs win. It came up several times, but close to the end, ACB asked Katyal how reimbursement will work. He sort of answered it wasn’t his problem; he represents six fairly minor plaintiffs, not a Class. It would be a much bigger problem for the states, which probably make up half of imports to the US. Plus, as Bloomberg laid out, other businesses have, in recent days, been suing in order to accelerate the process of getting reimbursed. Katyal even suggested maybe Congress can straighten this out.

MR. KATYAL: We don’t — we don’t deny that it’s difficult, but I think what this Court has said in — in — in the McKesson case in 1990, a serious economic dislocation isn’t a reason to do something. Northern Pipeline, you guys stayed your decision for a while in order to let the congressional process unfold. There may be a congressional process here as well.

This Congress?!?!

The point being, we’re at the point of Trump 2.0, in what may be — now appears to be likely to — be the first area where the Court reverses one of Trump’s abusive power grabs. And it has to be a consideration of how to unfuck the problems Trump caused because courts (in this case, lower courts, but usually, it’s the Supreme Court) allowed Trump to continue abusing power while matters were litigated.

Another concern, and even Sammy Alito expressed it (!!!!), was whether Congress could ever claw back the authority to tariff if it is lost here. Here’s how Gorsuch first raised it.

JUSTICE GORSUCH: Okay. You emphasize that Congress can always take back its powers. You mentioned that a couple of times. But don’t we have a serious retrieval problem here because, once Congress delegates by a bare majority and the President signs it — and, of course, every president will sign a law that gives him more authority — Congress can’t take that back without a super majority. And even — you know, even then, it’s going to be veto-proof. What president’s ever going to give that power back? A pretty rare president. So how — how should that inform our view of delegations and major questions?

[snip]

JUSTICE GORSUCH: Fair enough. As a practical matter, in the real world, it can never get that power

The questions that resonated the most came from Gorsuch (though I suspect he sounded more gung ho against the government in arguing against Sauer than he necessarily is). At one point, he tried to get Sauer to see the risk that a Democratic President would just impose huge tariffs to address a climate change emergency.

Could the President impose a 50-percent tariff on gas-powered cars and auto parts to deal with the unusual and extraordinary threat from abroad of climate change?

GENERAL SAUER: It’s very likely that that could be done, very likely.

JUSTICE GORSUCH: I think that has to be the logic of your view.

GENERAL SAUER: Yeah. In other words, I mean, obviously, this Administration would say that’s a hoax, it’s not a real crisis, but — but, obviously —

JUSTICE GORSUCH: I’m sure you would.

Sauer pretty much dodged that question, stating that this Administration would declare it a hoax, but that would be of not interest if he weren’t in the Administration. Ketanji Brown Jackson followed up to lay out the problems of claiming the courts have no review.

JUSTICE JACKSON: Let me just ask one more question about the unusual threat. So, in your conversation with Justice Gorsuch that we had, the climate change tariff hypo and you indicated that there would be challengers to the notion that that was an unusual and extraordinary threat, and I’m just wondering, under your position, would they be able to make a legal challenge? Are you saying the Court would not be able to review that concern?

GENERAL SAUER: On that particular hypothetical, I think I said that would be a question for Congress.

JUSTICE JACKSON: So not a court?

GENERAL SAUER: Yeah. I don’t — in other words, that wouldn’t be the sort of thing the courts are going to weigh into, is this really an emergency. You know, that would not be — probably very unlikely. That would be a situation where at least there would be very, very, very deferential judicial review of that kind of determination, a legal dispute, but —

But even before that Gorsuch pointed out that if Congress could trade away its authority to tax, they could trade away their authority to declare war.

JUSTICE GORSUCH: General, just a few questions following up on the major questions discussions you’ve had. You say that we shouldn’t be so concerned in the area of foreign affairs because of the President’s inherent powers. That’s the gist of it, as I understand it, why we should disregard both major questions and nondelegation. So could Congress delegate to the President the power to regulate commerce with foreign nations as he sees fit —

GENERAL SAUER: We don’t —

JUSTICE GORSUCH: — to lay and collect duties as he sees fit?

[snip]

JUSTICE GORSUCH: But you’re saying we shouldn’t look —

GENERAL SAUER: He has broad powers in this very narrow assignment.

JUSTICE GORSUCH: — we shouldn’t be concerned with — I want you to explain to me how you draw the line, because you say we shouldn’t be concerned because this is foreign affairs, the President has inherent authority, and so delegation off the books more or less.

GENERAL SAUER: Or at least —

JUSTICE GORSUCH: And if that’s true, what would — what would prohibit Congress from just abdicating all responsibility to regulate foreign commerce, for that matter, declare war to the President?

[snip]

JUSTICE GORSUCH: Can you give me a reason to accept it, though? That’s what I’m struggling and waiting for. What’s the reason to accept the notion that Congress can hand off the power to declare war to the President?

GENERAL SAUER: Well, we don’t contend that. Again, that would be —

JUSTICE GORSUCH: Well, you do. You say it’s unreviewable, that there’s no manageable standard, nothing to be done. And now you’re — I think you — tell me if I’m wrong. You’ve backed off that position

Again, I’m not sure my read of Gorsuch has much salience. But we are at the stage — as Trump continues to murder-bomb people on a three degree of separation in an undeclared not-war not-drug action — where a right wing Justice asks whether Congress can cede their most fundamental authorities.

And where another one asks how we start to unfuck the damage Trump has already done.

Share this entry

Scott Bessent Fact Checks Donald Trump’s Lies about Tariffs

/48 Comments/in /by

In the wake of Trump’s batshit post from the other day, Politico reports that John Sauer has predictably asked SCOTUS to move quickly in accepting the tariff case for review.

In support of Sauer’s request for SCOTUS to consider the appeal immediately, Sauer included a declaration from Scott Bessent.

In it, Bessent confesses that Trump’s past claims that he had made trade deals were false. What Trump claimed in “fact sheets” were “deals” are in fact just “frameworks,” and Bessent is still working on negotiating “towards binding agreements.”

5. As of the date of this declaration, the United States has announced frameworks with Japan, Indonesia, the United Kingdom, the Philippines, Vietnam, South Korea, and the European Union. These frameworks set the parameters for continued negotiation regarding binding, final terms of agreements with these foreign trading partners. The President has found that these frameworks align these foreign trading partners with the national security and economic interests of the United States and help address the trade deficit.

6. In addition to the frameworks already reached, and which continue to be negotiated towards binding agreements, the United States is actively negotiating with many other countries to reach ways forward to address the emergencies declared by the President.

And whereas Trump claimed the deals contribute to agreements to invest $15 trillion in the US, Bessent only laid out “about” $2.35 trillion, covering both purchases and investments, that actually derive from these frameworks that aren’t deals.

9. The frameworks for trade agreements already in place contain additional provisions ‘whereby the trade partners agree to significant purchases from and/or investments in the UnitedStates (e.g., the European Union agreed to $750 billion in energy purchases and $600 billion in investment, and Japan and South Korea collectively agreed to about 1 trillion). These agreed upon frameworks total in the multiple trillions of dollars. The longer the delay in a ruling, the greater these commitments will become. If these agreed upon frameworks were unwound and the investments and purchases had to be repaid, the economic consequences would be catastrophic.

In short, Scott Bessent just confessed that Trump has been lying in his claims about tariffs.

That should undermine the entire claimed emergency in the first place. Trump’s own Treasury Secretary has made it clear Trump is lying about tariffs. There’s no reason SCOTUS should accord claims in his underlying Executive Orders any presumption of regularity.

Share this entry

In Batshit Rant Trump Seems to Beg John Roberts to Rule before Full Brunt of His Tariffs Hits

/45 Comments/in /by

A few weeks ago, when we were waiting for the Circuit Court of Appeals to issue its ruling on a challenge to Trump’s tariffs, I did this video providing my prediction for the way that Trump hoped to get the Supreme Court to uphold his claimed unilateral authority to impose tariffs.

On Friday, the court issued its ruling.

Seven judges joined in a per curiam opinion basically ruling that IEEPA, the basis Trump used to impose the tariffs in question, did not authorize the fentanyl-related and trade deficit tariffs in question. Three of those judges — a Poppy Bush, an Obama, and a Biden appointee — joined in a concurring opinion written by another Biden appointee, Tiffany Cunningham, which held that IEEPA doesn’t permit the President to impose any tariffs. And three judges — two George W appointees and an Obama appointee — joined in Obama appointee Richard Taranto’s dissent arguing that IEEPA did give the President authority enough to impose the tariffs before the court (the remainder of the judges on the per curiam were a Clinton appointee and two Obama ones).

While the court remanded the case to the Court of International Trade to adjust to SCOTUS’ recent rulings against universal injunctions (meaning CIT would have to certify a class of importers who qualify for relief), it basically froze its ruling entirely until October 14 to give both parties a chance to appeal.

The Clerk is directed to withhold issuance of the mandate through October 14, 2025, during which the parties may file a petition for a writ of certiorari in the Supreme Court. If, within that period, any party notifies the Clerk in writing that it has filed a petition for a writ of certiorari, the Clerk is directed to withhold issuance of the mandate pending (1) the Supreme Court’s denial of certiorari or (2) a judgment of the Supreme Court if certiorari is granted. While the issuance of the mandate is withheld, the United States Court of International Trade shall take no further action in this case.

Now, as Scott Bessent made clear in that video, the plan from the Administration was always to delay a SCOTUS hearing until October so that by the time it ruled in January, the country would become so reliant on tariffs that SCOTUS would uphold the tariffs even if it recognized they were unlawful.

Since Friday, Trump has been engaged in his typical ranting, first repeating claims already made that if he lost the ability to arbitrarily destroy the US economy it would, “destroy the United States of America.” Then, Trump moved onto his bullshit invocation of partisanship, claiming that “a Radical Left group of judges didn’t care” that if he couldn’t bring in the “TRILLIONS OF DOLLARS” he falsely claimed he had brought in, then, “our Country would be completely destroyed.”

But then today Trump added an additional ploy: urgency.

Lying this time that his tariffs were bringing in $15 trillion of investments, Trump wailed that “TIME IS OF THE ESSENCE!!!” because if  “a Radical Left Court” were allowed to terminate his tariffs, than the US would become the “Third World Nation” Trump is intent on making it.

Not only is this tweet financial fraud on a massive scale — none of the deals involve any enforceable investments, much less on a scale that keeps doubling with each passing day.

But it makes no postural sense. The tariffs will remain in place until at least October, just like Bessent wanted, unless the plaintiffs find a basis to appeal. And even then, it would be Trump’s far right SCOTUS making the decision, not the mixed group of appointees at the Circuit Court of Appeals.

The biggest reason to think the “TIME IS OF THE ESSENCE!!!” is that Congress is coming back and will have to pass a budget to deal with the destruction wreaked by Trump’s Big Ugly Bill if it understands that these tariffs are illusory, even while the tariffs themselves will continue to destroy small and even larger businesses.

Or perhaps more importantly, Congress is coming back with further evidence that Trump’s policies are deeply unpopular. Trump may feel the need to stave off the kind of rebellion we have yet to see from the captive right wing majorities on the Hill.

Whatever the reason, it represents a tactical flip-flop from the strategy Bessent laid out just weeks ago.

Share this entry

Trump Confesses He Will Bankrupt the Country Unless SCOTUS Lets Him Break the Law

/46 Comments/in /by

It’s my opinion that Solicitor General John Sauer succeeds because of the political pressure he brings to bear on Justices.

That was my immediate impression upon listening to the hearing in Trump v. US. Sauer was arguing a clearly unconstitutional stance, adopting arguments (in a case where Trump nearly got his Vice President killed) that the President could order SEAL Team 6 to kill his adversaries, and (having not reviewed the actual evidence) the right wing judges accepted his premise that this prosecution truly represented a case of meanie Democrats treating Trump badly under the law.

And based on that, the right wing justices wrote an opinion that gave themselves a preemptive veto over whether a former President could be prosecuted, effectively preventing meanie Democrats from upholding the law.

That’s what I think happened with SCOTUS’ abuse of the emergency docket to both overturn nationwide stays and to rubber stamp unconstitutional deportion practices. With their first ruling on April 7 in JGG, SCOTUS sent a mild rebuke to Stephen Miller’s bid to deport wide swaths of Venezuelans to a concentration camp under the Alien Enemies Act based on their tattoos: the ACLU couldn’t get a nationwide injunction against the practice under the Administrative Procedures Act, but each detainee could get a habeas review. Based on that precedent, the Trump Administration got their biggest slapdown of the term in AARP, where Justices intervened on Easter Saturday to make the government turn around buses rushing to deport more men under the Alien Enemies Act. In between the two, SCOTUS ruled that the government should describe what steps it had taken to return Kilmar Abrego Garcia after deporting him illegally.

None of these were good rulings, holding that Miller’s dragnet was wildly illegal. Rather, they were mild rebukes to Miller and tactical rebukes to courts. But then Sauer was confirmed on April 3 (before these rulings but after they were appealed) and Miller and Trump’s propaganda campaign wailing about nationwide injunctions and judicial coups ratcheted up. And against a background of SCOTUS rubber stamping any and all termination orders — with the single exception of the Fed Chair — SCOTUS engaged in exceedingly outrageous action in DVD, serially overriding a District Court’s effort to, one, enforce his orders and, two, prevent the government from deporting men to regimes like South Sudan pending a constitutional review. All this was done with tactical orders building off SCOTUS’ fondness for allowing the President to fire whoever he wants (except the Fed Chair), which itself was used as precedent to allow Trump to override due process for deportees until the courts could consider the legal niceties of it all.

Steve Vladeck is, of course, the source to read on the law of Emergency Docket. The law sucks. But I argue that the law sucks because SCOTUS is not responding to the law. They’re responding to Miller’s shrieks, John Sauer’s neat packaging up of those shrieks, and how both mirror in the Fox News bubble most if not all of these right wing Justices pickle in.

Which is what Trump is planning on in VOS Selections, the tariff case in which both right and left are trying to overturn Trump’s arbitrary illegal trade war. As I keep noting, this case is unique among all challenges to Trump’s unlawful power grabs, because conservative legal luminaries and NGOs like CATO, AEI, and the Chamber of Commerce have joined Democratic states in opposing the power grab. If SCOTUS will ever start reining Trump it, it is likely to be this case.

Back on May 28, the Court of International Trade ruled for the plaintiffs (along with small businesses like wine importer VOS Selections, a bunch of Democratic states), finding that IEEPA, the emergency authority Trump had invoked to impose or threaten tariffs, didn’t give him that authority.

After the hearing but before the court issued its ruling, DOJ submitted a bunch of declarations from Trump’s top officials (which because of the timing were never tested) claiming that if they lost the stick of IEEPA, it would lead other countries to stop negotiating on trade deals. Then, after the ruling, DOJ asked for a stay, relying on the argument in those declarations. The motion for a stay said that the plaintiffs — again, the lead plaintiff is a wine importer — would not be harmed by the period of uncertainty as this got litigated because if plaintiffs won, the government would simply pay them back.

For any plaintiff who is an importer, even if a stay is entered and we do not prevail on appeal, plaintiffs will assuredly receive payment on their refund with interest. “[T]here is virtually no risk” to any importer that they “would not be made whole” should they prevail on appeal. See Sunpreme Inc. v. United States, 2017 WL 65421, at *5 (Ct. Int’l Trade Jan. 5, 2017). The most “harm” that could incur would be a delay in collecting on deposits. This harm is, by definition, not irreparable. See Hughes Network Sys., Inc. v. InterDigital Commc’ns Corp., 17 F.3d 691, 694 (4th Cir. 1994). Plaintiffs will not lose their entitlement to refund, plus interest, if the judgment is stayed, and they are guaranteed payment by defendants should the Court’s decision be upheld.

Immediately after the CIT order, DOJ asked the Circuit Court of Appeals for a stay, playing really hard on how without a stay Trump wouldn’t have a stick with which to negotiate his trade war.

As members of the President’s Cabinet have attested, the CIT’s order would irreparably harm the economic and national security of the United States. The Secretary of Commerce explained that the injunction “would undermine the United States-United Kingdom trade deal that was negotiated in reliance on the President’s emergency tariff authority,” plus the recent “China trade agreement,” and “would jeopardize the dozens of similar arrangements with foreign-trading partners that” are being negotiated. A76. “Each of these negotiations,” the declaration explained, “is premised on the credible threat of enforcement of the IEEPA tariffs,” and the injunction could compromise that threat, so that “foreign counterparts will have reduced incentives to reach meaningful agreements[].” Id. That could “leave the American people exposed to predatory economic practices by foreign actors[] and threaten national security.”

Again, the government assured the court that plaintiffs — and everyone else who had paid illegal tariffs — would get paid back: “the government will issue refunds to plaintiffs, including any postjudgment interest that accrues.”

The small business importers responded by describing all the reconstitution of markets that would happen during the appeal, but also describing the problem with permitting the President to continue to use illegal leverage during a period of a stay.

The President has legitimate means of conducting foreign policy; imposing illegal tariffs is not one of them. The President cannot act illegally as a matter of policy convenience, be ordered to stop, and then plead prior reliance on his illegal acts. If Defendants’ arguments were adopted, an injunction barring virtually any illegal action could be stayed by virtue of claiming that the illegality might create useful leverage: If the President illegally detained innocent people without due process, he could argue for a stay of an injunction against that action on the ground that detention could be useful leverage against the innocent detainees or their families, and thereby advance some claimed U.S. foreign policy or national security interests.

On June 10, the Circuit Court of Appeals granted that stay without engaging in the relative harm to either side, instead pointing to Wilcox, one of two SCOTUS shadow docket rulings about the President’s authority to fire people which has since undermined stays generally.

Days before the hearing, Trump rushed out a bunch of things called trade “deals,” which were not written down and about which both sides continue to argue. That includes a “deal” with the EU, Pakistan, and Korea. And on July 31, having not made the 90 deals supposedly leveraged with the stay, Trump simply set new tariffs, Liberation Day Two Point Oh.

On July 31 (the same day as those new tariffs), the full Circuit Court of Appeals heard the appeal. I actually think the judges were far more split than others did (those judges more favorable to the government spoke up later in the hearing), but it was really hard for me to judge given that most judges on the Circuit participated. This is like a mini-Supreme Court ruling before the big one. Still, the conventional wisdom is, I think, that the Circuit will rule against Trump.

Even before that, though, Trump started working the refs.

Even before the hearing, he claimed that America was dead a year ago but was getting rich off tariffs.

A week after the hearing, boasting that the tariffs-not-deals would go into effect that night, Trump said only a “radical left” court could stop him.

Days later he lied about how much money tariffs were bringing in (here’s the reality), and claimed that if a “radical left court” ruled against him, it — not the tariffs — would cause a Great Depression.

Yesterday, he lied that “consumers aren’t even paying these tariffs” (they’re paying about a fifth of them), then lashed out at a Goldman economist who said that would soon change.

Then John Sauer got into the batshittery.

Monday, about the same number of days after the Circuit Court hearing as it was when DOJ submitted the declarations demanding leverage to negotiate deals they ultimately never negotiated, this letter was submitted under Sauer’s name (but not on DOJ stationery). It cited the July 27 EU deal, announced before the Circuit Court hearing, as well as others announced still earlier than that, as an additional authority (which is normally a new Court ruling that might impact a pending one). Most of it derives directly from Trump’s Truth Social bullshit (marked in brackets below), including the President’s claims that America was a shithole country a year ago and that if a court overturns the tariffs, it (and not the underlying illegal actions) will cause a Great Depression. But it presents these in such a way that neither DOJ’s lawyers nor Trump himself can be held accountable to the court for the obvious lies.

[The President believes that our country would not be able to pay back the trillions of dollars that other countries have already committed to pay, which could lead to financial ruin.] Other tariff authorities that the President could potentially use are short-term, not nearly as powerful, and would render America captive to the abuses that it has endured from far more aggressive countries.

There is no substitute for the tariffs and deals that President Trump has made. [One year ago, the United States was a dead country, and now, because of the trillions of dollars being paid by countries that have so badly abused us, America is a strong, financially viable, and respected country again.] If the United States were forced to pay back the trillions of dollars committed to us, America could go from strength to failure the moment such an incorrect decision took effect.

These deals for trillions of dollars have been reached, and other countries have committed to pay massive sums of money. [If the United States were forced to unwind these historic agreements, the President believes that a forced dissolution of the agreements could lead to a 1929-style result. In such a scenario, people would be forced from their homes, millions of jobs would be eliminated, hard-working Americans would lose their savings, and even Social Security and Medicare could be threatened. In short, the economic consequences would be ruinous, instead of unprecedented success.]

Just about the only claim from anyone but Trump is that, “There is no substitute for the tariffs and deals that President Trump has mad,” which was made in the underlying declarations (and so is not a new authority either).

This is Presidential social media tantrum, presented as legal authority.

The small business plaintiffs responded by noting that the government already said this, therefore it doesn’t count as a new authority, reiterating the harm of any stay, and debunking the claim — the only one that comes from DOJ lawyers — that there is “no substitute” for illegal tariffs, such as going to Congress.

If the Court is inclined to consider the substance of the letter, there is no basis for its declaration that there is “no substitute” for “the tariffs and deals that President Trump has made.” Even without IEEPA, the President can obtain ex ante authority to enter into trade agreements, see 19 U.S.C. § 4202(a), or submit agreements for congressional approval, including via fast-track procedures, as prior presidents have done, see 19 U.S.C. § 4501 (implementing the U.S.-Mexico-Canada Agreement).

Scott Bessent gave up the game the other day with Larry Kudlow (around 13:00). When Kudlow, who predictably allowed Bessent to spin a bunch of other bullshit unchallenged, suggested that if the Circuit Court rules against the government, then Trump has other ways of putting together the magical pony economic plan that Bessent had laid out in the interview.

Kudlow: If the tariff court wins on appeal, you’ve got other ways to put this trade and tariff policy together?

Bessent: Larry, good framing here would be if the tariff court rules against us, we will immediately — it will immediately be enjoined, so the tariffs will likely continue. Then it will go to the Supreme Court in October, then we would expect a ruling in January. But I tell you, Larry, the amount of money that’s coming in here, I think the more deals we’ve done, the more money coming in, it gets harder and harder for SCOTUS to rule against us.

As noted, this question — are there other legal ways to do this? — is the only one in Sauer’s letter that doesn’t derive directly from a Trump Truth Social post.

Bessent dodged the question and instead said that if the tariffs are ruled illegal, then they will just draw things out — just like Sauer did with Trump’s criminal case — until the cost of overturning the tariffs would be too big an ask for SCOTUS.

That is, they’re not even claiming any of this is legal.

They’re just boasting that if they can claim the US is paying its bills through inflated claims of tariff revenues, then the Roberts Court won’t dare uphold the law, for fear of being held accountable for the financial ruin Trump is rushing us towards.

And, as batshit as that Sauer letter is, they might well be right.

Update: I’ve annotated the letter.

Share this entry

Supreme Court Starts Cleaning Up Kristi Noem’s Sloppy Messes

/113 Comments/in /by

The Supreme Court intervened in two cases pertaining to Kristi Noem’s March 15 botched deportation effort yesterday.

First, John Roberts paused review of Kilmar Abrego Garcia’s case. And, shortly thereafter, the entire court ended James Boasberg’s Temporary Restraining Order on deportations under the Alien Enemies Act (captioned as JGG v. Trump), while holding that detainees must have access to habeas review before being deported.

Contrary to what you’re seeing from the Administration (and, frankly, many Trump critics), neither of these rulings settles Trump’s deportation regime, though the JGG opinion extends SCOTUS’ real corruption of rule of law in very ominous fashion (see Steve Vladeck on that, including his observation that just weeks after Trump called to impeach Boasberg, “Roberts has overruled Boasberg, in a move that Trump will view as sweet vindication”).

I’d like to consider them instead as means to help Kristi Noem clean up after her own incompetence. From a legal standpoint, there’s nothing (yet) unusual about the pause in Abrego Garcia’s case. Indeed, the timing of it may undermine the newly confirmed John Sauer’s efforts to win the case, as I’ll lay out below. As such it may interact in interesting way with the JGG opinion.

The JGG opinion intervenes in a TRO (which shouldn’t be reviewable at all) to take the case out of Judge James Boasberg’s hands the day before he was set to hear arguments on a preliminary injunction. That’s what Ketanji Brown Jackson laid out in her dissent: this was a naked intervention to prevent Boasberg from looking more closely.

I write separately to question the majority’s choice to intervene on the eve of the District Court’s preliminary-injunction hearing without scheduling argument or receiving merits briefing. This fly-by-night approach to the work of the Supreme Court is not only misguided. It is also dangerous.

The President of the United States has invoked a centuries-old wartime statute to whisk people away to a notoriously brutal, foreign-run prison. For lovers of liberty, this should be quite concerning. Surely, the question whether such Government action is consistent with our Constitution and laws warrants considerable thought and attention from the Judiciary. That was why the District Court issued a temporary restraining order to prevent immediate harm to the targeted individuals while the court considered the lawfulness of the Government’s conduct. But this Court now sees fit to intervene, hastily dashing off a four-paragraph per curiam opinion discarding the District Court’s order based solely on a new legal pronouncement that, one might have thought, would require significant deliberation.

Jackson notes that, as a result, key parts of this legal dispute will not be fully briefed, as Korematsu was.

At least when the Court went off base in the past, it left a record so posterity could see how it went wrong. See, e.g., Korematsu v. United States, 323 U. S. 214 (1944). With more and more of our most significant rulings taking place in the shadows of our emergency docket, today’s Court leaves less and less of a trace. But make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences. It just seems we are now less willing to face it.

The JGG opinion is silent about what happens to Boasberg’s contempt inquiry. While there are people, such as gay hair stylist Andry José Hernández Romero, whose deportation to El Salvador may have violated Judge Boasberg’s TRO and who — since he’s no longer in US custody — may not be stuck challenging their deportation in South Texas, it’s not clear whether any of the men who’ve been deported will be able to sustain the inquiry.

As for everyone else, the per curium opinion rebukes Trump’s original legal stance, which argued that Trump could declare a war and Marco Rubio could declare a bunch of people to be terrorists based on little more than tattoos and via that process deport them to slavery in El Salvador (though you wouldn’t know that from the Xitter posts of virtually everyone involved).

AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.

For all the rhetoric of the dissents, today’s order and per curiam confirm that the detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal. The only question is which court will resolve that challenge. For the reasons set forth, we hold that venue lies in the district of confinement.

So courts, including SCOTUS, might yet find that Trump was totally unjustified in declaring his own little war. Courts, including SCOTUS, might yet rule Trump’s use of the AEA beyond the pale. But the legal review of that decision will take place in the Fifth Circuit, where such an outcome is far less likely than in DC.

Indeed, this decision might will be an effort to outsource the really awful work of sanctioning egregious constitutional violations to the circuit most likely to do so.

This was an entirely tactical decision, in my opinion. A gimmick. An unprecedented intervention in a TRO to prevent Boasberg from issuing a really damaging ruling in DC, yet one that affirmed thin due process along the way.

Meanwhile, consider how Abrego Garcia’s fate might complicate all this. As noted above, Roberts’ intervention, thus far, is not unusual. Indeed, by pausing the decision, Roberts made way for Abrego Garcia to submit a response, which corrected some of the false claims that John Sauer made in his filing, his first after being sworn in as Solicitor General. (Erwin Chemerinsky also submitted an amicus.)

Having held that detainees should have access to habeas before deportation, one would think that would extend to Abrego Garcia, who was not given time to challenge his deportation to El Salvador.

The government’s concession that the AEA detainees should get habeas review provided a place for SCOTUS to backtrack to without directly confronting Trump’s power grab. But consider how AUSA Erez Reuveni’s concessions, his admission that DHS knew there was an order prohibiting Abrego Garcia’s deportation to El Salvador, limit SCOTUS’ ability to do the same. That’s one of two key points the Fourth Circuit — a panel of Obama appointee Stephanie Thacker, Clinton appointee Robert King, and Reagan appointee Harvie Wilkinson — made in its opinion, issued at about the same time as Roberts halted the order. Just as the government ultimately conceded that the AEA detainees were entitled to due process, the government conceded that Abrego Garcia should not have been deported to El Salvador.

As the Government readily admits, Abrego Garcia was granted withholding of removal — “It is true that an immigration judge concluded six years ago that Abrego Garcia should not be returned to El Salvador.” Mot. for Stay at 16; see also Cerna Declaration at 53 (“ICE was aware of this grant of withholding of removal at the time [of] AbregoGarcia’s removal from the United States.”).3 And “the Government had available a procedural mechanism under governing regulations to reopen the immigration judge’s prior order, and terminate its withholding protection.” Mot. for Stay at 16–17. But, “the Government did not avail itself of that procedure in this case.” Id.; see Dist. Ct. Op. at 4 (Mr. Reuveni: “There’s no dispute that the order [of removal] could not be used to send Mr. Abrego Garcia to El Salvador.” (quoting Hr’g Tr., Apr. 4, 2025, at 25:6–7)); see also Guzman Chavez, 594 U.S. at 531 (explaining that a non-citizen who has been granted withholding of removal may not be removed “to the country designated in the removal order unless the order of withholding is terminated”). Based on those facts, the Government conceded during the district court hearing, “The facts — we concede the facts. This person should — the plaintiff, Abrego Garcia, should not have been removed. That is not in dispute.” S.A. 98 (emphasis supplied).4

3 Consistent with this reality, the Government attorney appearing before the district court at the April 4 hearing candidly admitted that no order of removal is part of the record in this case. Dist. Ct. Op. at 14 (citing Hr’g Tr. Apr. 4, 2025, at 20 (counsel admitting no order of removal is part of the record), and id. at 22 (counsel confirming that “the removal order” from 2019 “cannot be executed” and is not part of the record)).

4 Of note, in response to the candid responses by the Government attorney to the district court’s inquiry, that attorney has been put on administrative leave, ostensibly for lack of “zealous[] advocacy.” Evan Perez, Paula Reid and Katie Bo Lillis, DOJ attorney placed on leave after expressing frustration in court with government over mistakenly deported man, CNN (Apr. 5, 2025, 10:40 PM), https://www.cnn.com/2025/04/05/politics/doj-attorney-leave-maryland-father-deportation/index.html; see also Glenn Thrush, Justice Dept. Lawyer Who Criticized Administration in Court Is Put on Leave, New York Times (Apr. 5, 2025, 5:41 PM), https://www.nytimes.com/2025/04/05/us/politics/justice-dept-immigration-lawyer-leave.html. But, the duty of zealous representation is tempered by the duty of candor to the court, among other ethical obligations, and the duty to uphold the rule of law, particularly on the part of a Government attorney. United States Department of Justice, Home Page, https://www.justice.gov/ (last visited Apr. 6, 2025) (“Our employees adhere to the highest standards of ethical behavior, mindful that, as public servants, we must work to earn the trust of, and inspire confidence in, the public we serve.”). [links added]

With footnote 4, the Fourth Circuit established that DOJ was attempting to retaliate against Erez Reuveni and his supervisor, August Flentje, because Reuvani told the truth. (See also Reuters, which was the first outlet I saw with the story, and ABC, the first to report that Flentje was placed on leave along with Reuveni.)

I was struck by the retaliation in real time, because in fact Reuveni did what a slew of other attorneys have had to do, confess he didn’t know the answers to obvious questions. But something — perhaps Sauer’s review that earlier fuckups may limit his ability to get relief at SCOTUS — led DOJ to overreact in this case.

That is, by retaliating against Reuveni so egregiously, Pam Bondi’s DOJ (Todd Blanche is reportedly the one who made the order, but it also happened after Sauer may have started reviewing the case), DOJ may have made it more difficult for SCOTUS to engage in similar gimmicks down the road.

The Fourth Circuit also anticipated that DOJ would lie about Abrego Garcia’s request to be returned.

5 To the extent the Government argues that the scope of the district court’s order was improper because Abrego Garcia never asked for an order facilitating his return to the United States, that is incorrect. See S.A. 88 (arguing that the district court has “jurisdiction to order [the Government] to facilitate his return, and what we would like is for the Court to enter that order”); see also S.A. 74–75; 85–87.

Indeed, Sauer did just that.

In opposing a stay of the injunction in the court of appeals, respondents insisted that they did “request[]” the injunction that the district court entered. Resp. C.A. Stay Opp. 9. But contrary to respondents’ characterization, the court did not merely order the United States to “facilitate” Abrego’s return, ibid.; it ordered the United States actually to “effectuate” it, App., infra, 79a. If there were any doubt on that score, the court’s memorandum opinion eliminated it, by reiterating that its injunction “order[s]” that “Defendants return Abrego Garcia to the United States.” Id. at 82a (emphasis added). Again, respondents clearly disclaimed such a request in repeatedly telling the court that it “has no jurisdiction over the Government of El Salvador and cannot force that sovereign nation to release Plaintiff Abrego Garcia from its prison.” Id. at 42a, 44

Ultimately, Sauer may get his proposed solution — that Abrego Garcia gets moved from El Salvador to someplace else. But before that happens, he’ll have to account for the Fourth Circuit ruling that there’s no convincing evidence that Abrego Garcia is the terrorist Kristi Noem claims he is and that DOJ itself laid out cause to return him to the US.

The Supreme Court exhibited a willingness to engage in a gimmick decision to bail Trump out of one fuckup Kristi Noem made the weekend of March 15, to ignore Judge Boasberg’s order and deport a bunch of men with tattoos into slavery. It has not yet bailed Trump out of the other fuckup, including Abrego Garcia on one of those planes. Thus far, Trump has made things worse by retaliating against Reuveni for refusing to lie.

Which just makes SCOTUS’ challenge — to invent a gimmick to bail Trump out — all the more challenging.

Update: Predictably, in his reply, Sauer blames Reuveni for not being told some unspecified sensitive information that might excuse the defiance of a judge’s order.

Respondents (Opp. 10-11) cite statements by the attorney who was formerly representing the government in this case, who told the district court that he “ask[ed] my clients” why they could not return Abrego Garcia and felt that he had not “received * * * an answer that I find satisfactory.” They likewise cite his statements that “the government made a choice here to produce no evidence” and that agencies “understand that the absence of evidence speaks for itself.” Opp. 12 (citing SA120, SA128). Those inappropriate statements did not and do not reflect the position of the United States. Whether a particular line attorney is privy to sensitive information or feels that whoever he spoke with at client agencies gave him sufficient answers to satisfy whatever personal standard he was applying cannot possibly be the yardstick for measuring the propriety of this extraordinary injunction.

Real judges would haul Sauer before them and insist he deliver that sensitive information withheld from the AUSA. Sadly, the Roberts court is well beyond that.

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

Refusing to Take Yes for an Answer: Remember the Pardons in the Desk Drawer

/77 Comments/in , , , , /by

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.

Share this entry

Judge Karen Henderson’s Floodgate Concerns

/201 Comments/in , /by

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.

Share this entry

John Sauer Says Joe Biden May Assassinate His Client

/148 Comments/in , /by

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.

Share this entry