Trump v. US thread.
Opinion below.
Bottom line #1: I agree that a Jan 6 trial cannot happen before the election (That was almost certain when the Court took this case)
2/ The Court remanded the case.
Commentators are overlooking the Court's emphasis on "presumptive immunity," rather than "absolute immunity."
See Chief Justice Roberts's concise summary at p. 6 below.
This presumption still opens a big door for trial court evidentiary hearings.
3/ The Court holds "absolute immunity" for "core constitutional powers" (p. 6 above).
But what are those "core" powers?
p. 8: "Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his 'conclusive and preclusive' constitutional authority."
I'll be live-tweeting tonight's debate, to the extent that I can keep up and have the stomach for it.
🧵 1/ I note that Donald Trump has already lost the expectations pre-game, which may (or may not) be a big deal. politicalwire.com/2024/06/27/mor…
2/ "A @nytimes Siena College poll found 60% of registered voters thought Trump would perform 'very' or 'somewhat' well in tonight’s debate. Only 46% said the same of Biden.
Overall, nearly half of voters anticipated a poor showing for Biden."
Low expectations. Maybe good news?
@nytimes 3/ I'm sorry this matters, but Biden has a frog in his throat, and even when he cleared the frog, his voice is flat and monotone. His answer on inflation is fine substantively, but the vocals are really not good.
His answer was good.
But he sounds weak.
@RickPildes 3/ Barrett picked up on the Special Counsel's argument of the absurdity that crim statutes need a clear statement, if only a tiny number of statutes include (she said only three or so). Surely Congress did not mean for presidents to be broadly immune so generally from crim law.
At @FedSoc National Student Convention, @NoahRFeldman is telling this audience that the formalist separation of powers & Scalia’s Morrison dissent are anti-originalist and dangerous…
And he’s crushing it. He is quoting Madison Federalist 47-51 and the audience is uncomfortable.
@FedSoc @Harvard_Law 3/ @NoahRFeldman says the Constitution’s original structure is functionalism and “checks and balance,” not formal “separation of powers.”
I haven’t put the point this strongly, but my research shows he’s more right than wrong.
And more historically correct than Scalia.
Thank you @NotreDameLRev (Vol. 100) for accepting "Venality and Functionality: A Strangely Practical History of Selling Offices, Administrative Independence, and Limited Presidential Power."
I'm deeply honored & excited to work with you!
#newlawrevarticles papers.ssrn.com/sol3/papers.cf…
3/ My @SSRN draft "Freehold Offices v. Despotic Displacement" has more detail on:
The Opinions Clause;
The Ratification Debates;
Common law default rules for "good cause" removal; Charts on the Founders' Bookshelf & 18th C. English dictionaries: papers.ssrn.com/sol3/papers.cf…
My good friend Jeff Cohen (@BCLAW prof. former prosecutor) persuaded me that I was wrong about a criticism of the @ManhattanDA case against Trump:
These purely internal records like paystubs could count for intent to defraud.
1/
2/ Last April, I wrote in @nytimes:
"What, in practice, is the meaning of 'intent to defraud'? If a business record is internal, it is not obvious how a false filing could play a role in defrauding if other entities likely would not rely upon it and be deceived by it."
See below:
@nytimes 3/ The statutes 175.05 & .10 require:
"falsifying business records...with intent to defraud."
A false tax return or FEC filing would defraud the govt, but I asked how a pay stub would defraud anyone if no one ever relies on it or even looks at it: nytimes.com/2023/04/05/opi…