Thread by @lee_kovarsky

I READ THE TRUMP IMMUNITY BRIEF SO YOU DON’T HAVE TO!

Sometimes the client leaves the lawyer with nothing besides bad arguments, and that’s mostly the case here.

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The primary issue here is whether DJT has “presidential immunity” from criminal prosecution in the DC case, and he’ll lose that before the DC Circuit (“CADC”) – and probably before SCOTUS. There’s a secondary Impeachment Clause argument that is a LITTLE closer,

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but only a little, and DJT will lose that before CADC as well.

DJT has to win two separate planks to win the immunity argument, and it’s exceedingly unlikely that he’s going to win both of them.

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First, he’s gotta show that presidential immunity, which is at present only an immunity against civil claims for damages, extends to criminal prosecutions.

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Second, he must meet the pertinent standard for the immunity, if indeed it applies – that the charged conduct is within the “outer perimeter” of official POTUS responsibilities.

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The short version is that the 1st plank is a heavy lift and I’m not sure the briefing gets there – and the argument on the 2nd plank is DOA at the CADC. The briefing is transparently written w/ SCOTUS in mind, calling attention to auxiliary opinions written by R justices.

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The first plank, whether presidential immunity extends to after-term prosecution, is at least arguable. The issue hasn’t been formally decided, but Nixon v. Fitzgerald (1974) is the leading case and it’s pretty bad for DJT.

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Fitzgerald sued for damages following what he claimed was a wrongful termination, eventually naming Tricky Dick as a defendant. SCOTUS recognized a presidential immunity for civil damages.

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But a crucial issue in the case was the majority’s ability to distinguish that civil-damages immunity from criminal-prosecution immunity.

For, example, this language from Fitzgerald is bad for DJT:

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“When ... the Court acts … to vindicate the public interest in an ongoing criminal prosecution[,] the exercise of jurisdiction has been held warranted. In the case of this merely private suit for damages based on a President's official acts, we hold it is not.”

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And footnote 37: “The Court has recognized before that there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions.”

Yikes.

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And Chief Justice Burger, author of the leading decision rejecting a criminal-prosecution immunity (US v. Nixon), concurred separately in Fitzegerald to further emphasize that nothing about Fitzgerald could be construed as an immunity from criminal prosecution.

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DJT’s brief tries to suggest that Fitzgerald supports criminal immunity, but good luck with that. If the Court rules for DJT on this plank, it won’t be because of Fitzgerald.

DJT offers some policy arguments for the existence of a criminal-prosecution immunity.

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But there are going to be opposing policy positions, the DOJ Office of Legal Counsel has long treated an ex POTUS as a permissible subject of prosecution, and CADC isn’t going to spit in the face of the Fitzgerald opinion.

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On the second plank, which assumes for the sake of argument the existence of criminal-prosecution immunity, DJT is toast. Whether a former POTUS could invoke the immunity is whether the charged conduct was within the “outer perimeter” of official POTUS responsibility.

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These arguments are the arguments that one of America’s most conservative circuit judges, CJ Pryor (CA11), flamed last week – arguments about how DJT was actually pursuing election integrity rather than his private interests as a candidate.

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When Pryor wrote last week, it was formally about whether Mark Meadows was acting within the scope of his office, but DJT’s legal team has been unable to persuade even the most conservative R-appointed judges to take these arguments seriously.

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These are the “come on dude” arguments. DJT was trying to work the refs, not acting as neutral steward of American democracy.

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The Brief winds down with a textualist argument that criminal-prosecution immunity springs from the Impeachment Clause: “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

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According to DJT, because it says “convicted,” there can be no criminal trial following an impeachment acquittal before the Senate.

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OLC, the district court here, and a district court that addressed Agnew’s tax evasion, have rejected this position. So did Joseph Story. Both House and the Senate have rejected the mirror image argument that a criminal acquittal bars impeachment. So did a federal court.

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CADC isn’t going to buy DJT’s Impeachment Clause argument, and I don’t think SCOTUS will.

The orthodox thinking on the Clause is roughly as follows. The Impeachment Clause limits the penalties that would accompany a Senate Conviction, to removal and disqualification.

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The language at issue simply clarifies a question that would have arisen at the founding – whether other NON-LEGISLATIVE punishments were still available after a Senate conviction.

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The Clause makes clear that the answer is yes. But there was no need to answer this question w/r/t a Senate acquittal, so the Clause doesn’t answer it.

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The Clause makes clear that the answer is yes. But there was no need to answer this question w/r/t a Senate acquittal, so the Clause doesn’t answer it.

In the end, the Impeachment Clause argument is an attempt to treat a Senate trial as a form of criminal jeopardy,

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and argue that a subsequent criminal prosecution violates what we now call a double jeopardy rule. But this framing – with a Senate trial a form of criminal jeopardy – isn’t an understanding shared by Framers or the founding generation.

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If anything, the founding generation saw the new American impeachment proceeding as a decisive break with a tradition in which the House of Lords could impose criminal punishment.

/e

@myscienceparty you can think whatever you want man