Thread by @lee_kovarsky

THOUGHTS ON SPECIAL COUNSEL'S SCOTUS BRIEF ON IMMUNITY:

SHORT VERSION: PAY ATTENTION TO WHAT HAPPENS ON REMAND.

(1) SCOTUS is very unlikely to recognize official acts immunity, always has been, & the state of the case after principal briefing is unchanged in that respect.

1/

https://twitter.com/kyledcheney/status/1777480996943802707

(2) It is possible (and IMHO desirable) for SCOTUS to declare a lower-grade immunity for conduct that necessary to a function that the constitution assigns to the president ("skinny immunity").

2/

(3) It is virtually unthinkable that DJT could satisfy a skinny immunity standard, and there's really only one act charged in the indictment (abuse of DOJ/Clark) that might constitute an official act under even the broader standard.

3/

So the principal outcome set looks like this: (1) no presidential immunity; (2) official-acts immunity; (3) skinny immunity.

The question is, what would happen in each scenario.

4/

In scenario (1), the case goes back down for trial. Scenarios (2) and (3) are a little harder to pin down.

Scenario (2) would generate a question about whether official acts immunity would bar trial. That question dovetails with SCOTUS adjudication of another pending case.

5/

Specifically, Fissher v. United States is pending before SCOTUS and it could affect the viability of charges under 18 USC 1512. That's two of the four counts. I'm skeptical that what happens with Fischer is particularly likely to affect the Trump prosecution, but

6/

even if it did, there are still two counts left. And there is conduct satisfying each of those counts even if you subtract out the "official acts" and leave only "private acts." So I'm not sure how even a big win for DJT on the official-acts standard actually spoils a trial.

7/

Of course, the application of an official-acts standard may require additional trial proceedings that could produce additional delay, and such delay is in and of itself a victory for Trump, who seeks to push the trial past the election.

8/

My scenario (3) is skinny immunity, and I don't think the one piece of conduct that might satisfy official-acts immunity even plausibly satisfies a thinner immunity. If the Court goes with (3), DJT might try to delay in the trial court, but his arguments will be frivolous.

9/

Trump's SCOTUS brief raises a separate argument that the criminal statutes at issue don't criminalize presidential conduct - so you don't even need to reach the immunity issue. I would be SHOCKED if SCOTUS indulged this argument;

10/

It's outside the Questions Presented, it's not preserved, and (unlike immunity) the scope of the statute is not properly appealed in an interlocutory posture.

11/

So where do I land? I continue to think it extremely unlikely that the Court bars Trump's prosecution. The plausible outcomes are the (1) and the (3) - either that there's no presidential immunity from criminal prosecution or that there's a skinny immunity.

12/

And we can be reasonably certain that Trump's not going to be able to satisfy a skinny immunity. But it's not out of the question that, if the Court announces a skinny immunity, the application of that immunity to Trump's case entails delay that is going to piss folks off.

/e