Thread by @McAdooGordon

DJT SCOTUS case on immunity starting now.

Sauer arguing for DJT. Doing his opening statement now.

He's making the point that prosecuting POTUS after office undermines the POTUS while POTUS.

Thomas - source of immunity? Sauer - vesting clause.

Thomas - how?

Sauer - it infuses the POTUS with the powers of the govt, and Marbury - allowing for judicial review

Thomas - scope of official duties?

Sauer - Fitzgerald test, scope

Roberts - what about a bribe?

Sauer - this court has previously said that bribes are not official acts - Brewster case - bribes aren't official acts

Roberts - appointing an ambassador is official.

Sauer - yes, but this Court has said bribes for official acts are not official conduct.

Sotomayor - malum in law doctrine - some things so evil that they must be protected against.

She's going to the Seal Team Six hypo. 🙄

Doing so for personal gain. So, why would that be immunized?

Sauer is telling her that the motive is not supposed to matter as to official acts. Based on their prior cases.

Sotomayor saying he's asking them to let the POTUS be above the law.

She thinks false documents, murdering rivals, bribes are not official.

They are debating whether the improper purpose makes a difference for the immunity.

KBJ now. Confirming Sauer is talking about absolute immunity for official acts.

He agrees.

She sounds like she's just learned immunity law.

Confirming that official act = absolute immunity.

So, if using "trappings of office" could be used to shield personal objectives by making them look official.

Sauer says yes, but if you only look at purpose, then immunity does not exist.

She doesn't like his answer, so she switches to something else.

Claiming all POTUS' have thought they could be prosecuted so he's asking for a NEW rule.

Sauer citing Benjamin Franklin's claim that one prior example was an outrage.

KBJ - so what's up with Nixon's pardon.

Sauer - he was being investigated for BOTH private and public conduct.

Gorsuch jumps in and gets him to confirm that both parties agree that the POTUS CAN BE prosecuted for PRIVATE conduct.

Sauer agrees.

Gorsuch thus pointing to a DC precedent about discerning the difference between the two.

AND that further proceedings would therefore be needed.

Sauer agrees.

Justices are spicy this morning. Jumping in. They sound stressed actually.

I think they are sensing the historic moment they are in.

Alito now saying Sauer may not need to go quite so far in his ask of them if there was a different test about what constitute an official act.

Trying to filter out the "subjective" element - which would go to the purpose or motive.

ALito positing a different test. Not the one in FItzgerald per se.

Basically he's talking about taking the court OUT of the issue of motive, but looking only at what the court's would say are objectively official acts or not.

Sotomayor now asking why Alito is using a "plausibility" element for part of his test.

ALito pointing out for example that the Seal Team Six hypo isn't really "plausible" official conduct because military officers are duty bound to refuse to carry out an unlawful order.

Sotomayor asks to apply this test to the alternative electors scenario.

Sauer disputing that that is deceptive (alternates vs. fake) and thus it's not plausible that it was outside of official acts.

Kavanaugh now. He's agreeing with Sauer about that.

He's now pressing on the question of: don't the criminal offenses have to clearly say they apply to the POTUS because of POTUS's constitutional powers.

(There are a line of cases on that point, because of the POTUS' unique constitutional position.)

ACB now asking - since they agree private conduct can be prosecuted - which allegations Sauer agrees are private. She's reading some of the allegations to him.

He's agreeing some are private.

Roberts saying, so what's the consequences of that then? What should happen since all agree private can be proseucted?

Sauer - a two stage process - figure out what is private and strip out official, then apply immunity to the official.

Roberts - saying you're taking a leg off the stool, so how can you prosecute it, why would it be immune?

Sauer saying that's really the prosecutions problem.

Thomas - challenge Smith's appointment?

Sauer - in the FLA case, yes. Not in this case. We agree with Meese's argument. Hadn't raised YET when this case was appealed.

Alito getting clarification that Sauer is saying the govt can't use official acts to prove it's case.

Sauer agrees.

Me - Gorsuch, Kavanaugh, Thomas, Alito seem on board to me with Sauer's position. Likely also ACB.

Roberts maybe not.

Sotomayor is for the Special Counsel.

KJB hard to tell.

Kagan silent so far.

Kagan questioning now. She want's to focus on the allegations, which are personal, which are official.

Sauer has conceded that "political" or "campaign" is personal, not official.

Sauer arguing that the acts dealing with the alternate electors and talking to state officials is OFFICIAL.

Kagan not liking that.

Does it strike you as odd that your opinion goes way beyond OLC?

Sauer says OLC routinely protects the powers/perogatives of the POTUS, so normally supports his position.

Kagan - OLC talking about current, not former POTUS.

Sauer - but not directly opposed his view becuase just not addressed.

Kagan - what if the POTUS orders the military to commit a coup?

Sauer - Silence (translation: are you fucking kidding me?)

Sauer - the facts would determine if it was an official act.

Kagan - that sounds bad doesn't it.

Audience laughs.

Kagan - Framers did not put an immunity clause in the Constitution, while the whole point of the Revolution was against a monarch who was above the law.

(Me: there's no sovereign immunity clause in the Constitution either.)

Gorsuch: returning to Robert's hypo on bribery of an ambassador, there's a statute that prohibits a POTUS from doing that.

So, couldn't evidence of that then come in becuase the Congress has said that's outside the scope?

Sauer - It still might be a problem if the statute criminalized something that is a core power of the POTUS.

Gorsuch - what incentives would this set up. Maybe a POTUS would just pardon him/herself. They've not had to deal with that thankfully.

Gorsuch trying to help Sauer, who is not listening. G trying to make the point that subordinates could be prosecuted under the UCMJ if they followed an unlawful order. Sauer is fighting him on this softball unfortunately.

Kavanaugh clarifying that the OLC requirement of a "clear" statement that a POTUS be subject to a criminal statute all go toward protecting the POTUS; none go against. Sauer agrees.

Kav pointing out that executive privilege isn't expressly in the Constitution either, but the Court has unanimously said it exists.

Kav saying that the POTUS isn't a King is kind of a false argument because everyone agrees the POTUS can be prosecuted just like every other American for personal conduct.

Kav confirming that Sauer thinks on personal v. official would have to be decided first by the trial court.

ACB - why is there a special rule for just the POTUS having to be impeached/convicted first?

Sauer - it's a technical understanding of the Founder's understanding - previously stated by SG Bork

ACB teasing out the logic tree of Sauer's argument:

private - can prosecute
public - impeach/convicted only
impeachment/conviction - only if statute allows prosecution of the POTUS

He agrees.

KJB - why does POTUS not have to follow the law like everyone else? What is it about the POTUS that is different. Lots of people make consequential decisions.

Me: Because it's the POTUS. 🙄 A UNIQUE CONSTITUTIONAL ACTOR.

Sauer - He tries to answer, but she interrupts.

Sauer - the issue is not that he doesn't have to follow the law = the point is the REMEDY that applies.

KJB - you seem to be worried about the President being chilled. She's worried about the opposite.

What is the disincentive to turning the POTUS into a seat of criminality? If criminal consequences taken off the table won't we be incentivizing a worse problem than the POTUS feeling constrained.

He says that the history points the other way.

Jesus, now she's asking if he forfeited the argument about the clear statement rule because he didn't argue it below.

That point is being used as an explanation of how immunity would work, not his ask before the court.

She doesn't understand the clear statement rule. This whole line of questioning shows my point about her at the time of her confirmation.

She's inadequate at this level.

Now Dreeban (Special Counsel Jack Smith's lawyer) is arguing.

Sauer's voice sounded hoarse. A bit annoying.
Dreeban' voice is whiny. Super annoying.

My score so far: Thomas, Alito, Kav, ACB, Gorsuch all in favor of immunity of some scope.

Kagan and Sotomayor against it likely.

Roberts and KBJ still up in the air.

DJT has likely won this case, imo.

Thomas asking Dreeban why no prior criminal prosecutions of any Presidents given all that has happened.

Gives example of Operation Mongoose (potential overthrow of Cuban govt in early 60s).

Dreeban (I'm going to just use "D" for brevity from now on)

says that's because there were no crimes.

Me: What?

D uses murder as an example of a statute that doesn't specifically exclude the POTUS.

(Me: That would be private conduct tho.)

Roberts saying that maybe we can't rely on the "good faith" of prosections of any more.

D denies that he's defending a "political" prosecution.,

Me: My jaw may never come up off the floor.

Roberts worried that Court of Appeals concluded POTUS could be prosecuted because this former POTUS is being prosecuted. (He obviously isn't impressed with their opinion.)

Roberts saying that the CofA didn't address whether the conduct here was official or private.

D saying immunity not in the Constitution, so no need basically. (I'm really boiling down what he said.)

Roberts seems dubious about D's reasoning.

Alito now jumping in.

Alito focusing on the "clear statement" rule. (This rule is from OLC - it means that a statute that could criminalize something that is a core function of the POTUS is analyzed NOT to apply unless it's clear from the Congress that the POTUS is included.)

Asking why that whole analysis should have to go through the entire criminal justice process INSTEAD of immunity - which is the SC's position.

Kav clarifying - D agrees that the Congress CANNOT criminalize at least some acts that are core to the POTUS.

Kav stating that the cases and the OLC are not exactly on the same page. Wants to know how the SC argues it should apply.

Kav pointing out that even SC says the exception to it's theory is a "serious constitutional question." Why would that always be the case when the question is whether a criminal statute applies to the POTUS.

Isn't that the risk.

D concedes the risk to the President issue. He agrees it is a real problem.

I can't type because I'm laughing too hard at Gorsuch's questions.

He's asking about the POTUS leading a "mostly peaceful protest."

Gorsuch has D admitting that Congress can't criminalize some of the POTUS's action.

D wants to call it "an as applied challenge" to the statute. Gorsuch incredulous - you mean like immunity?

Gorsuch - nobody knows what "corrupt intent" means, but OK.

D saying that a POTUS has recourse to his AJ and others for advice.

(Me: Unless you don't like the advice given. 🙄)

Sotomayor asking about ACB's logic tree. Doesn't that mean the POTUS couldn't be prosecuted even if impeached if the statute said the POTUS couldn't be prosecuted for it.

(Me: Why would you be or want to be prosecuting a POTUS under a statute the specifically excludes the POTUS.)

Sotomayor getting D to agree that there is a limitation - the criminal law cannot be applied to the POTUS for things that are POTUS core duties.

Alito: So, if the POTUS makes a mistake based on advice he can be criminally prosecuted.

D = making a mistake is not what lands you in a criminal prosecution.

Me: THAT is total horseshit.

Big picture: on both sides of this argument, they are going around and around with whether something is actually a crime if the POTUS has power to do it.

D now talking about a public official acting in a public way for a public purpose or a personal purpose.

Says that the POTUS does not have a role in the certification process.

D on a rant - "you can't deprive millions of voters of their candidate."

Roberts interrupts: "Thank you counsel." Moves on to the next question.

Alito now talking about the layers of protections. Saying that there are certainly examples of prior bad actor AGs and AUSAs.

D wants to talk about this case. They are rare.

Alito says yes, but what they decide will affect all future Presidents.

D - the allegations here about the AG go to the point.

Alito: I understand the alleged facts. But the case will go beyond them.

Alito: How much protection is the Grand Jury? (SC cites that as a layer of protection).

D - probable cause . .

Alito - ham sandwich is a thing for a reason.

Alito: have you seen any cases where the GJ didn't indict when prosecutors really wanted to.

D = there are such cases.

Alito _ there's an eclipe once in a while too.

Audience laughs.

Alito moves on to internment of Japanese Americans. Could that be prosecuted?

D - now, probably. Not then for a bunch of reasons.
But would have to apply his position - an "as applied Article II challenge."

Alito: You think advice from an AJ is a defense.

D - Yes, it's a structural check.

Alito: Won't that just encourage a POTUS to appoint a supine AJ.

D - Congressional approval for AG guards against that.

ALito: Pardon power. We need to decide that. Are you speaking as the SC's lawyer only or for the UNITED STATES.

D - says he's speaking for the US.

ALito: So, don't we need to know the govt's position on that to decide this case?

D - not really, but he thinks all signs point to you can't pardon yourself (I agree with this.)

Alito: We agree that a stable democracy requires POTUS to peacefully turn over power. D = yes.

Alito: Wouldn't it create an incentive against that to set up a system that would cause incumbents to worry about being jailed after?

D - says no, but his answer is totally non-responsive to the question. He's saying that there's a right way to challenge.

Okay, but that doesn't address Alito's query.

Sotomayor now speechifying about democracy and the justice system.

She does correctly point out that there are no rules that are foolproof.

Kagan asking about what are the core things that POTUS can't be prosecuted - D agrees on her list. (It's stuff everyone will agree on where the POTUS more or less has exclusive power under the CONST.)

Now she's moving out from that to the broader issue of criminal laws generally. She's trying to understand the nuances and scope of his position.

Bribery again. Asking him whether that's private, or public conduct that can still be prosecuted as an official act because of his view that that there is no serious constitutional question about whether it is necessary for official.

His position is really not that different from the dissent in Fitzgerald. It basically it is a situation of "it should depend on a case by case basis."

Now she's trying to defend KBJ's dumb position that the statutory issue is not before them. (It isn't. No one said it was. It's an argument/explanation for why DJT's immunity argument is correct.)

D has "concerns" about sneaking in such arguments. 🙄 Suggests the Court could exercise it's discretion to decide it.

Unsurprisingly, D disagrees with Sauer about all the things S said were official, rather than private.

(The issue here is how you characterize the conduct.)

Kagan: is dealing with the DOJ official "core" protected conduct.

D - says it's official, which makes it worse. A private scheme to achieve a private end. Using official power to assist that effort makes the overall scheme worse is their view.

D - we are not seeking to impose criminal liability to an effort to replace an official, but rather to use that power to replace officials to advance the scheme to unlawfully stay in office.

Kagan now asking about POTUS talking to VPOTUS.

D - using the Fitzgerald rule of "outer perimeter" would need to analyze whether DJT talking to Pence is in or out as being POTUS acting as officer holder or seeker.

Gorsuch confirming that Blassingame is the precedent that would apply.

D fighting him a bit. G quips: "You think Blassingame is good enough for govt work."

D using the "find me 11,000 votes" would be an example of office seeker rather than holder.

Gorsuch - I'm just looking for whether you think that is the right test. D agrees it is.

Gorsuch says that this argument seems to have narrowed the gap between the parties' positions.

(I agree with this.)

Gorsuch saying that so, what about motive?

D and Gorsuch agree core powers are off limits to prosecute, regardless of the motive of the POTUS, even if it would help re-election, for example.

D saying for things that are not core, then "maybe" it could be prosecuted by including the motive for the conduct.

Gorsuch - if we allow "motive"or "intention" to color the questions, then what is left of any idea of immunity and why wouldn't it then apply to the core powers too?

Gorsuch - pointing out how messy it would be for the courts to separate out prosecutions based on "bad motives" esp to overcome.

D - you're asking a very difficult question. Claims this case is not being prosecuted by the SC based on political disagreement.

Gorsuch - fine, but the rule the you want us to apply with apply to the future POTUS's

Kav. You've said your position is the position of the US. Who have you consulted with on that? The President? The Attorney General?

D - the Solicitor General.

Kav. Talking about Morrison (this is the Independent Counsel statute case). He thinks wrongly decided. (THAT WAS MY ARGUMENT IN LAW SCHOOL THAT THE PROFESSOR DIDN'T LIKE. HA!)

Pointing out how disruptive that statute was to the POTUS, Democrats and Republicans. Says he has the same concern. We set up a system to prosecute the POTUS and that doesn't work out for us. Why isn't this Morrison redux (all over again.)

D - the Independent Statute time didn't create the kind of retaliatory prosecutions you're concerned about.

Kav - Presidents Reagan, Bush, and Clinton would probably disagree with you.

Kav. "False statements" by a President are easy to allege, can they be prosecuted?

D - Says it would require a nuanced analysis.

Kav. President Ford's pardon. Very controversial then, probably viewed by most as a good thing now. Do we want him worried about whether he can be prosecuted?

D - Pardons are in the core acts.

Kav. Obama's drone strikes?

D = Murder does apply to POTUS, but not to that kind of discretionary action within the POTUS job.

ACB - using defense of public authority as a framework potentially. She says narrower than Fitzgerald or Blassingame.

D - Word salad.

ACB - not sure I understand your answer.

ACB - you say this defense is one of the reasons immunity is not needed. Explain.

D - He agrees.

ACB - why wouldn't it be better to do this as an immunity because it would allow for interlocutory review instead of analyzing an after defense.

D - because it's a review of the general issue. Likes the current system of appeal after a jury trial.

D - But he would accept if the Court wanted to change the procedural rules that would apply to a POTUS challenge as a pretrial matter. Better than what DJT is arguing for.

ACB - Wouldn't it be much better for a judge rather than a jury to analyze Article II scope of duties in the first instance.

She's agreeing with him that Sauer's proposal for absolute immunity goes too far.

They agree that an immunity would apply to the states as well as the federal govt.

ACB - all these layers of protection you're talking about apply in the federal system, but they don't exist in the state system, right?

She's saying that immunity will have more benefit in the state systems.

(No kidding.)

Now, she's trying to get to how a remand would work if they decide there is official act immunity.

Is there a way for the SC to proceed if the official conduct is stripped out?

D -SC would like to present all the conduct to the jury for them to be able to understand the scenario.

The private things would still have evidentiary value. So they would want a jury instruction saying the conduct could only be used for intent, not for the substantive crimes.

(That answer will probably confirm the conservatives against the SC. It might have pushed ACB over into their camp too.)

KJB up now. Confirming his position that if official acts were stripped out then the trial on the rest could go forward without further appellate moves. He agrees.

OMG. Now, she's "struggling" with the clear statement rule again. She's asking him to explain it to her again. She asks "what constitutional question" is at issue in this case. "It seems completely tautological to me." (That's because you don't understand the concept.)

She's really seeking a primer on this concept, which is absurd. But, he's giving it to her now. 🙄

So, KBJ now going over ACB's logic tree. She's finally understanding the issues. 🙄 (It's like she only figures out in every case what the issues are only after the oral arguments. Insane.)

She's finally understanding that the SC's position is the basically the dissent position in Fitzgerald.

She's learning it in real time. Unbelievable.

KBJ now asking if this case is the right vehicle for these distinctions.

D - he thinks nothing they've alleged would fit into it.

She seems happy with answer. Upshot is that the district court would have to do that first.

KBJ says she thinks the issue of a chiling effect is real - based on potential future criminal prosecutions. Asks him to comment on the concerns of the opposite - no accountability rather than impeachment.

She thinks it's at least an equal concern. Can you talk about those competing concerns.

D - it would be a sea change. (How can this be correct given his position on Ford's pardon of Nixon?)

Sauer declines rebuttal.

He wasn't going to change anyone's mind, so he's saving his breath.

Final recap on votes. Okay, so this is extremely hard to describe because of the question that is being posed. How you articulate that question changes the votes.

So, for example, I think ALL 9 of them think that the POTUS simply cannot be prosecuted for some official things. A motion to dismiss such a case should succeed and likely could be appealed promptly. Example: giving a pardon. Also that all 9 agree the POTUS can be prosecuted, (impeachment or not) for purely private conduct. Example: he shoots his brother-in-law.

The three liberal justices are likely to say that the POTUS can be prosecuted for official acts that are outside the "core" functions of the President. "Core" would be things like the pardon, CinC functions, etc. They seem poised to say that the district court should figure that out first in some way.

Four of the conservative justices (Thomas, Alito, Gorsuch, and Kavanaugh) appear to be prepared to rule that the POTUS has immunity on the criminal front just as on the civil front as in Fitzgerald, with campaigning being outside the scope of the immunity. They also gave hints that the district court would have to parse out the private from the public in the first instance and would likely allow a prompt appeal
of that.

The remaining two conservative justices are a bit harder to read (and Thomas said so little that he could be in this group too, but my instinct tells me he's likely in the other group). Roberts seemed to have problems with both parties' positions. And ACB clearly didn't like the full scope of DJT's position. They look likely to me to go for a limited version of the immunity. Less than DJT's lawyers are asking for (full Fitzgerald type immunity), but they are definitely not going to say there is no immunity, but they don't seem comfortable with immunity only for the "core" functions either.

Remember that the district court ruled and the CofA affirmed that the POTUS has NO "immunity" once he leaves office. Strictly speaking, all 9 of them won't agree with that conceptually; they will find that the POTUS has some kind of protection. But the 3 liberals will call it something other than "immunity." Dreeban called it "an as applied Article II challenge," which they will probably go with.

The conservatives will I think - all 6 - assert that there is a broader protection. There will probably be at least two camps of what the scope is and how it functions procedurally.

So, DJT "wins" the case in the sense that a majority (and probably all the justices) will say that there is "immunity" or something like it for former Presidents and then they send the case back to Judge Chutkan with some kind of framework for applying it to this case.

I predict that the framework will be dictated by the middle - ACB and/or Roberts. They are the swing votes, their formulation will be the key to the other four getting the majority so they will have to compromise on the details.

So, if you don't look at the details and just ask the question who's for DJT and who's for the SC in a general sense, it's 6-3. Six for DJT: Roberts, Thomas, Alito, Gorsuch, Kavanaugh, ACB; 3 for the SC: Kagan, Sotomayor, KBJ.

Final thought: This is exactly the mess that the majority in the Fitzgerald case decided to avoid by saying the POTUS has absolute immunity even if the conduct falls within the "outer perimeter" of the POTUS's duties.