Thread by @ElieNYC

Trump immunity arguments at SCOTUS start in 20 minutes. They should have started on December 22, but the Republican justices want to make sure Trump can be president again, so they start in 20 minutes.

Ultimately, I do not think they'll give Trump blanket immunity for all crimes. But the thing I'm listening for is "remand." I'm listening for Thomas, Alito, and Roberts to say that Trump may have *some* immunity Judge Chutkan didn't fully consider. And send the case back to her.

Remand would be the ultimate delaying tactic here. Because then Chutkan will have to make *another* ruling. And that ruling will be appealed, first to DC and then to SCOTUS, which will only hear the case next term, *after* the election, if Trump loses.

Remand is the play if the Republican justices fear they haven't already delayed this trial enough to get Trump through the election.
If they think they have, if they think there's no real chance Jack Smith can bring the trial before then... they'll rule against immunity, 7-2.

John Roberts starts out with questions for Trump's lawyer, D. John Sauer. Roberts doesn't often use his prerogative to go first, deferring to Thomas who is more senior.
So... this is all a good sign that Roberts is not buying the core Trumpian argument.

I'm assuming Sauer is sick/recovering from having his vocal chords flayed by Ramsay Bolton. His vocal quality is going to be rough to listen to, but not as rough as the stupid words coming out of his mouth.

The opening round of questions is about the "official acts" question. Trump is arguing that [trying to steal the election] is an "official act" that the President is immune from prosecution. Roberts is saying that the trial is *about* whether the act is official.

KBJ: So what was up with the pardon for President Nixon? If everybody thought that presidents couldn't be prosecuted, what was up with that?

I love her.

Gorsuch trying to segregate private conduct "for which no man is above the law" and public acts.

Alito wonders if the immunity Trump is asking for is too *robust.*
This right here is how he's going to get to remand. If the president says that he's acting officially, Alito wants a finding of fact to figure out if the act is official.

Alito says that perhaps you get immunity for official acts that are "plausibly" legal, Sotomayor says "plausible" may as well be "absolute" b/c there's always a plausible reason. Alito says ordering Seal Team 6 to assassinate a rival is not plausibly legal.

I'm struck, again, that SCOTUS could have easily dismissed this Trump argument in December because it was as stupid then as it is now, but they've let it get this far to help Trump get to the election.

Kavanaugh: "where do you think the DC Circuit went wrong?"

My man Sauer is just getting beat up now. I think Simon Cowell is about to show up and tell him he needs a cup of tea.

Barrett taking a whack at the pinata now.

ACB just rattled off a list of things that would clearly not be official and Sauer had to agree to it all.

WHICH SHOULD END THIS CASE SINCE TRUMP IS ASKING FOR ABSOLUTE IMMUNITY... but whatever

Alito clarifies that the ask here might be to exclude the official acts from trial, so the prosecution can't use evidence related to official acts.

Sotomayor pipes up to show that Alito's standard is, once again, stupid.

Every Alito, Thomas, and Gorsuch question is frankly code for "remand."

Roberts is not for remand. This could come down to Barrett.

Kagan's turn. She's using her "I just cold called you and you are unprepared and the next five minutes are going to be very bad for you" voice.

It's... uhh... a voice I know well. Getting literal flashbacks to bad times in CivPro.

Kagan asking Sauer if a President *literally ordering a coup* would be an official act.

Under Sauer's theory it's an official act and he's trying so hard not to say it and it's like listening to the internal monologue of an addict trying not to hit the pipe again.

Kagan: Can the president order a coup?
Sauer: If it's.. I did the job...
Kagan: CAN THE PRESIDENT ORDER A COUP?
Sauer: YOU'RE GODDAMN RIGHT HE CAN!

Gorsuch is basically pulling his questions from Truth social

Barrett kind of moves us to the ridiculous argument that the President must be impeached first before being prosecuted.

And Barrett is *killing* that argument

Folks... I *think* we might have Barrett on team "no immunity, no remand." But I'll have to see how she handles the government's argument before I'm more confident.

Also, Barrett dissembles a lot in oral arguments about her position. She talks one way but often votes another.

KBJ: We know that the POTUS has the *best* *lawyers* *in the world.*

She deserves some kind of award for saying that with a straight face. :)

But she said it to attack Gorsuch's position that holding the president accountable would make them "fearful"

I like KBJ vs Gorsuch much more than KBJ allied with Gorsuch. Though I acknowledge that the possibility of the latter is what makes her so effective at the former.

Sauer has cited Benjamin Franklin at least five times now.

In originalism circles, the order of authority is roughly.

1. James Madison
2. Thomas Jefferson
3. Any enslaver
4. John Adams if you must
5-20: Any available white man
21: Ben Franklin.

So, Sauer is losing.

KBJ: That's totally circular. You're using that argument to avoid constitutional questions. But you've asked us a constitutional question. It makes no sense.

Normally, Gorsuch or Alito would jump in here to help the Republican lawyer who is getting his ass handed to him. But they're letting this roll right now.

Now up, Michael Dreeben with the argument for the government against Trump's immunity.

I was initially surprised Dreeben took this, not Prelogar. But after listening to her yesterday on EMTALA I know that she had *literally more important things to do*

Thomas: Are you saying there's no immunity even for official acts?
Dreeben: Yes. BUT (explains separation of powers).

Thomas says presidents in the past have participated in coups, "yet there have been no prosecutions"??

Is this motherfucker serious? His argument is "Every president coups, why is mine getting charged?"

Dreeben: "BECAUSE THERE WEREN'T CRIMES!" (he didn't yell, I did, but he said "because there weren't crimes." )

Oh God, now Roberts wondering if they should send it back to the DC circuit because he's worried about presidents getting prosecuted in bad faith.

Roberts: "The court of appeals did not get into a focused consideration of what facts we're talking about or what documents we're talking about... they did not look at what courts usually look at when... taking away immunity."

And... that could be the ballgame

Roberts, Gorsuch, and Kavanaugh are more worried about a prosecutor going after a president for *political* reasons than A PRESIDENT TRYING TO OVERTHROW THE GOVERNMENT.

This is just about over.

And by "this" I mean the rule of law and by "over" I mean delayed indefinitely to help Trump.

Gorsuch suggesting that under the government's standard a president could be prosecuted for leading a "civil rights protest" in front of Congress and sought to "influence an official proceeding."

Yes, because Jan 6 and a fucking sit in are the same thing, Neil.

This is goddamn disgusting.

I'm going to keep listening because it is my literal job, but this is pretty much in the bag for Trump at this point. Remand to DC Circuit for decision on "official acts" and whether organizing a coup is one.

After November, if Trump loses, SCOTUS will return to the issue.

Alito: Are you really saying the president is subject to criminal laws like everybody else?

YES YOU DICK. THE PRESIDENT SHOULD BE SUBJECT TO THE LAWS LIKE EVERYBODY ELSE!

Alito: "I'm not talking about the particular facts of this case."

WHY? WHY THE HELL ARE NOT TALKING ABOUT THIS FUCKING CASE RIGHT IN FRONT OF YOU?

The question I'd have for the SCOTUS now is: If you do this, why would a Republican president every peacefully transfer power again?

Democratic presidents will because Democrats follow rules that don't apply to the other side. But why would Republicans just leave *ever again*?

Alito: Couldn't FDR's decision to inter Japanese Americans during WWII be charged [as a crime]?

He says that LIKE THAT'S A BAD THING?

And Dreeben is trying to say that he couldn't.

This country, and specifically this court, is a fucking joke.

Now onto self-pardons. Alito is just playing all the Fox News hits now.

I'm going to smoke. Biden should send Seal Team 6 to Mar-a-Lago because according to Alito there's no downside.

Alito just suggested that the last election was "questionably decided"

I have left my body and am texting things I can't say aloud to my friends.

Kagan is like the first person to be asking about the actual criminal acts Trump is charged with.

I assume Alito is not listening because Kagan is a woman while Gorsuch is probably sitting there emailing the New York Times because they got something wrong on the Spelling Bee.

I see the internet is unimpressed with Dreeben but that's being a little unfair. The Republican justices want to do this, there's nothing that Dreeben could say to stop them.

What he *could* be doing was making their hypocrisy more clear for the non-legal media following along.

But... SCOTUS advocates have to preserve their ability to argue another day, and blowing up the justices in one case
A: Doesn't help them actually win the case.
B: Actively hurts them in the next one.

Kavanaugh: "Like Justice Gorsuch, I'm not concerned with the here and now of this case, I'm concerned about the future."

I don't know why this is acceptable. I do know that the justices are sure they are right about ignoring the facts of THIS ACTUAL CASE.

Kavanaugh... who WORKED FOR KEN STARR... is basically saying that Jack Smith is politically motivated and his appoint in unconstitutional.

It's... maddening. And most of the media reports will not even point out this hypocrisy.

The "independent counsel" law was rewritten into our current "special counsel" law BECAUSE of the shit Kavanaugh helped Starr do! Everybody was like "that crap can't happen again."

Somebody get @neal_katyal and @MonicaLewinsky on the phone to blow up this asshole.

@neal_katyal @MonicaLewinsky Every time I try to no have a stroke listening to this bullshit, they say something even more risible and stupid.

@neal_katyal @MonicaLewinsky Kavanaugh: "President Ford's pardon. Hugely unpopular when he did it... now probably looked on as one of his better decisions."

What? WHAT? WHO THE FUCK THINKS FORD'S PARDON OF NIXON WAS A GOOD IDEA? WHEN DID I DIE AND GO TO HELL????

@neal_katyal @MonicaLewinsky This could be a men v. women 5-4 ruling.

Men: Let's kick this back to DC to further delay Trump's trial.
Soto, Kagan, Jackson: Why? That's fucking dumb.
Barrett: Ladies, I agree with you, but we shouldn't call the men fucking dumb. We should politely disagree.

@neal_katyal @MonicaLewinsky We're past the two and half hour mark for an argument where the Republican justices made their decision when they were appointed, some of them decades ago.

@neal_katyal @MonicaLewinsky KBJ is closing by trying to answer all of Gorsuch's questions, which would be effective if Gorsuch operated in good faith. But... he doesn't. So...

@neal_katyal @MonicaLewinsky I had hoped that *one* of the liberal justices would have made the point from the Common Cause brief, highlighting that the whole point of what Republican justices are doing is to give Trump delay.

Not a persuasive argument for the justices, but good for the media to hear.

@neal_katyal @MonicaLewinsky The case is submitted. Court doesn't come back till May 9th which will be a decision day.

But I think they won't decide *this* case until July 3rd for max delay. And that decision will be 5-4 to remand the case back to DC, for additional delay.

@neal_katyal @MonicaLewinsky I wish I had better news for you. Thanks anyway for following along with our national descent into madness.