Thread by @lee_kovarsky

ADDITIONAL THOUGHTS ON TODAY’S DC CIRCUIT (CADC) ARGUMENTS ON PRESIDENTIAL IMMUNITY (PI) (LAYPERSON FRIENDLY).

Today, CADC heard oral arguments on whether DJT has PI for 1/6, in specific reference to Jack Smith’s prosecution in DC.

Trump almost certainly lost 3-0.

1/

The judges were Henderson (R-appointed), Childs (Biden), and Pan (Biden).

The major issues were as follows.

2/

(1) is there jurisdiction to decide PI before trial?
(2) If (1)=yes, is there PI in criminal cases (it formally applies only in civil cases as of now)?
(3) If (2)=yes, does it attach to all “official acts” that are “discretionary”? And how does DJT fare under that test?

3/

(4) Formally separate from PI, does the failure to convict DJT in the senate mean that he can’t be criminally prosecuted.

4/

On (1) only judge Childs seems genuinely concerned about the jurisdictional question. Basically, there’s a case called Midland Asphalt, and there’s a line that says that you can’t have a preliminary appeal of immunities not rooted “explicitly” in the constitution or statute.

5/

PI isn’t explicit. Both Henderson and Pan sounded very comfortable with the idea that Midland Asphalt’s single use of the word “explicit” did not preclude the panel from reaching the merits.

6/

On (2), only Henderson seemed to very clearly believe that PI exists as to criminal prosecutions, although there were times when Childs sounded like she may believe that as well.

7/

Pan seemed to believe that DJT’s argument on this question was undone by the concession that a former POTUS could be prosecuted after an impeachment + Senate conviction.

8/

On (3), it seemed very clear that, if all three judges were to reach the question, they would all rule against DJT there. Henderson seems like she very clearly wants to decide the case on this basis,

9/

repeatedly insisting that DJT’s actions in connection with 1/6 were not the type that would be immunized.

10/

On (4), none of the judges appeared to seriously entertain DJT’s argument, which is consistent with the mainline interpretation of the constitutional clause at issue. (The Impeachment Judgments Clause.)

11/

This case will go up to SCOTUS. Not only because it’s obviously incredibly important, in much the same way as the CO case was. But also because the CADC opinion might look pretty fractured – that is, different judges wanting to rule against DJT on different grounds.

12/

But it was a very bad day for Trump. The (realistic) positive bound of today’s outcomes was a scenario in which Henderson fought hard for his position, and that was certainly not the case.

/e