Thread by @baseballcrank

Thomas: So, this presidential immunity...where does it come from in the Constitution? There he goes again asking about that pesky Constitution.

Thomas asks how you tell what acts are covered; Roberts follows up asking directly about bribery for an official act. Sauer tries to separate the bribe from the official act.

Sauer: you review the indictment after removing the official acts. Roberts: how do you tell a bribe was in exchange for the official act, then?

The Court is likely to have some sympathy for Trump's request for presidential immunity in the abstract, but Sauer has an impossible job trying to classify the bulk of the DC indictment as official conduct.

Sotomayor (I think) is now pressing an unhelpful (to the govt) theory that the key distinction is the president's self-serving motivations. No, the core question is whether he is acting within the broadest conception of his official powers.

Of course, textually, both bribery & treason are obviously prosecutable because the impeachment clause defines those as crimes when committed by the president.

Some of this should not be so hard because we already have caselaw on legislative, judicial, prosecutorial, & police immunities.

KBJ also pressing the "for personal gain" line - what matters more in this case is that nearly all of Trump's indicted acts were in his capacity as a candidate for re-election - they were things he could have done at the same stage in Nov 2016-Jan 2017.

Trump gave speeches? Called legislators and state election officials? Filed election lawsuits? Riled up a mob? These are things he could have done as a real estate developer.

Sauer concedes that a sitting president could be prosecuted for private conduct, citing US Grant being pulled over for speeding while POTUS.

Gorsuch presses DC Circuit's Blasingame test; Sauer embraces that test, esp as laid out by Judge Katsas. Sauer is playing for a further factual proceeding that would delay things. cadc.uscourts.gov/internet/opini…

Alito: So, you started by talking about the essential nature of the immunity, but why can't we just have an objective test that asks if the president's act was plausibly legal under the broadest possible view of his official powers? Why an absolute rule?

Unsurprisingly, I'm much more sympathetic to Alito's preference for an objective test than to the liberals' focus on a president's motivations, which is more easily twisted by his opponents.

Sauer is trying to analogize what Trump did to US Grant in 1876 sending federal troops to ensure certification of GOP electors for Hayes in 1876. Of course, Reconstruction was a distinct context & while that election may have been stolen by the GOP, the Democrats had committed mass murder to suppress black GOP vote, so I would not go there. Frankly, 1876 was stolen by both sides.

Barrett zeroes in on private acts: lies spread by Trump's private atty, false filing by Trump lawyers, plan to submit fraudulent electors through lawyers - Sauer concedes that all of those are private & prosecutable. Very big if obvious concession.

Sauer's argument about public acts starts with Trump using DOJ, which is (as I've argued in the Georgia case) the most obvious example of an official act in these cases.

Thomas: President's acts as candidate are different from official acts, right? Sauer: Yes.

Thomas now trying to throw Sauer a bit of a lifeline on the appointment of Jack Smith, but Sauer concedes that it's not really an issue squarely presented in this case.

If Sauer is looking for a friend on this bench who will get the indictment thrown out, he hasn't found one yet. (Properly so). The best he can hope for is delay and some narrowing of a few of the allegations.

Sotomayor now suggesting that the immunity issue could be sent to the jury (by an instruction), which is not how any of this works.

Kagan is getting into examples of Trump talking to state legislators & governors, Sauer is trying to claim that these were official acts. Kagan says the issue is that Trump was "trying to overthrow" the election - NO. She was right the 1st time: what matters is that these were things he could do as a private candidate.

Kagan: What if POTUS sold nuclear secrets to a foreign power? Sauer: More like bribery, but it depends if it is structured as an official act. [He doesn't say, but sending pallets of public cash comes to mind]

Kagan is trying to get into the president ordering a military coup, which is really not necessary to this case. The essential fact of January 2021 is that Trump *didn't* activate government power in his scheme, which is why it failed. And he didn't ask bc he knew he'd be denied.

Gorsuch suggests, and he may not be wrong, that we're gonna end up in a world where each president pardons himself every four years.

KBJ: Other officials know they could be prosecuted if they break the law, why doesn't the president have to follow the law? This is not a fair characterization - there *are* immunities for other types of public officials.

KBJ worried more about the danger of presidential criminality than about chilling, targeting of presidents. Warns that the Oval Office will become a "crime center." Man, the Nineties are over.

Dreeben to Thomas: no prior presidential acts were prosecutable because there were no crimes. That seems...not a line he wants or needs to defend. This is a courtroom, not CNN.

Dreeben's argument that the president can't be indicted for killing people because they're terrorists is, again, some serious question-begging.

Roberts characterizes Dreeben's position as "tautological...a former president can be prosecuted because he's being prosecuted." Dreeben doesn't help himself by saying, don't worry, the grand jury would never indict somebody who didn't commit a crime.

Dreeben: "A politically driven prosecution would violate the Constitution." Prosecutors don't have the power to do that, he says. This is a trainwreck. He's just up there hitting himself in the face with a hammer.

Dreeben seems to have forgotten that THE INDICTMENT HE IS DEFENDING LITERALLY CHARGES THE ABUSE OF THE JUSTICE DEPARTMENT

Dreeben says it's "more balanced" to just let the wheels of the legal system handle the propriety of prosecutions. Alito: You're just arguing against "the most far-reaching aspects" of Sauer's argument.

Prelogar has made some bizarre strategic decisions in past oral arguments such as Fischer & Dobbs, but I have to believe she's sharp enough that she would not be up there flailing like this in what ought to be a slam-dunk for DOJ.

Gorsuch: did you just say to Kav that there are core Art II functions Congress can't criminalize? Dreeben: Yes, but we don't call that immunity. Gorsuch: now, we're getting somewhere in narrowing the dispute.

Gorsuch refers to Dreeben's position as "euphemized" immunity. Dreeben says, for example, that a president can't be prosecuted for issuing pardons (which is weird if he was bribed for one).

Gorsuch asking if presidents can be prosecuted for leading a "mostly peaceful" protest for "civil rights" to block Congress from meeting. Dreeben: Well, maybe, but he can get good legal advice from the attorney general.

Gorsuch: so, whether he's prosecuted depends on whether he listens to the AG's advice? Dreeben: I don't think most presidents would ignore legal advice.

He might want to rethink that given some of the things Biden has done.

Narrator: it is ready to do no such thing

Now, Dreeben is reiterating his view that presidents can't be prosecuted for exercising those "core powers" explicitly in Article II. So, he can be indicted for, say, issuing regulations governing domestic policy? Because I have bad news.

Alito: Wait, presidents have all kind of decisions to make.

Dreeben: 371 conspiracy charge is malum in se. Alito: c'mon, this is a very broad statute. Dreeben: interfering with the functions of the federal government is bad. No president needs to do that.

Dreeben is, at long last, starting to talk about how the role of a presidential candidate is not the same as the role of the president.

Alito now revisits the idea that the president is protected by the ethics of prosecutors. Sure, most are honorable, but "there have been exceptions," right? Dreeben: Look at the charges in this case! These are all, honorable charges.

Alito asks Dreeben if John Mitchell & A. Mitchell Palmer were honorable AGs. Dreeben has to grudgingly admit they were not. Alito: we have to remember that our decision will affect many future cases.

Alito: grand juries? You know you can indict a ham sandwich. Dreeben: There's no evidence of there being any groundless prosecutions. Prosecutors have no incentive to ever bring cases to the grand jury unless they have the evidence to convict.

Dreeben is offering endless odes to how totally trustworthy the executive branch is, which is a wholly off-message way to argue that it's dangerous to give executive officers legal immunity.

Alito asks if an 18 USC 241 charge could have been brought against FDR for Japanese internment. Dreeben: today, yes. Not then because FDR's lawyers advised him to do it. Alito: Even J. Edgar Hoover said there was no threat!

I did not have, on my scorecard for today, Joe Biden's administration admitting that Franklin D. Roosevelt committed acts that would get him thrown in federal prison today.

Dreeben declines to take a position on whether the president can pardon himself. Alito gets him to clarify that he speaks for the DOJ on this, not just for the Special Counsel's office.

Dreeben: There's no risk of presidents pardoning themselves, nobody would do that unless they know they are guilty. Dreeben's understanding of civics is all middle-school level or lower.

Alito: we've seen around the world where losers of elections get thrown in jail. Dreeben: that would only happen in the specific facts of this case.

Sotomayor: in the vast majority of cases, the innocent go free. But we do execute innocent people, no? Dreeben: the ultimate safeguard is the good faith of the prosecutors.

Narrator: this is also not gonna happen. I can't possibly see this Court determining that the bulk of this indictment alleges official acts, or see how anyone listening to this argument hears a majority leaning in that direction.

https://twitter.com/ElieNYC/status/1783517766856667491

Kagan: is bribery not immune because it's not an official act? Where is the line? Dreeben: general principles depend on what the Office of Legal Counsel says. This is textbook rule-of-lawyers mindset.

Dreeben says the principle is whether the prosecution would raise a serious constitutional question. That's circular. Kagan is trying to help him here.

Dreeben: "We are not wild about" interlocutory immunity appeals, too many other things can be smuggled in.

Dreeben says that Congress has endorsed the propriety of this prosecution...by passing the conspiracy statute in the 1860s, when it was understood entirely to protect federal revenue from tax fraud.

Kagan: is removing or threatening to remove a DOJ official "core protected conduct"? Dreeben: That's part of a "private scheme" so it's an aggravating factor even though it is a use of his official power. Essentially argues that official acts can be part of a conspiracy charge. Offers no standard for how much official action might raise issues with a conspiracy charge.

Dreeben claims that, under Nixon v Fitzgerald, there would [trails off into undecided vagueness] be issues with whether the overall presidential conduct is in his capacity as office-seeker or office-holder even when using official power.

Gorsuch trying to get Dreeben to say whether he is embracing the Blasingame framework. Dreeben, who appears to think he gets to tell the justices what to do, says DOJ hasn't decided that yet.

Dreeben's argument is so terrible that I will have to re-read the transcript to believe some of the things I heard.

Gorsuch asks about the role of motivations. Gets Dreeben to acknowledge that this is a troubling standard, every president wants to get re-elected. Dreeben says presidents can't be indicted for pardons regardless of motive. Maybe the standard is objectives, not motives.

Gorsuch asking whether Dreeben claims that appointment & removal powers are core powers that are not prosecutable. Dreeben says "maybe...the Department has not had to take a position." Again, it's up to SCOTUS, not DOJ, to decide this. Make an argument for a standard! Not just "we'll decide that later."

Gorsuch: so, we can define motives as objectives, there are some motives that can be prosecuted, some that can't? My concern is for future cases based on bad motives. Dreeben: "You're raising a very difficult question."

Dreeben: 371 charge has to be to defeat something the government is doing, and "by deception." Deception of whom?

Kavanaugh: Morrison v Olson was one of the Court's worst mistakes. Independent counsels [including Ken Starr's office, which he worked for] were bad for Reagan, HW Bush, Clinton presidencies. Reading aloud from Scalia dissent. Don't we have to judge rules by what they allow to happen?

Kav: History tells us it's not gonna stop, it will be used against the next president. Why is this not Morrison v Olson redux?

Dreeben: We don't have the same regime of independence as opposed to accountability. Effectively acknowledges that this prosecution is accountable to Biden.

Dreeben: Lawrence Walsh didn't do vindictive prosecutions! Eventually, he didn't bring charges against everyone!

Dreeben completely, at all points in his argument, focuses only on the risk of a president being unjustly convicted, never even considers the idea that criminal investigation & prosecution may be bad, too.

Kav: could LBJ have been prosecuted for lying us into Vietnam? Dreeben: They didn't try to do that to him, so don't worry.

Dreeben suggests that executive officers lying to Congress could be prosecuted.

Kav: Could Ford have been prosecuted for pardoning Nixon? Dreeben: immune. Kav: Obama droning? Dreeben: OLC looked at this and said the murder law didn't apply. The lawyers went through a process so there is no risk of prosecution.

Barrett: Your standard does not sound so different from official acts, what's the difference? Dreeben: There is such a thing as an unlawful core executive act. Barrett: I don't even understand what you're saying.

Dreeben: "It depends upon objective facts disclosed to counsel...a complete defense to prosecution." Barrett: why not allow that to be asserted at the outset instead of later in the case as a defense?

Dreeben, like Sotomayor, argues that immunity is for the jury. Again, not how immunity works in any other context.

Dreeben backtracks, says that a motion could be made to a judge, but only if immunity was really clear on the face of the indictment. This is the real stakes: the Special Counsel's office wants to play for delaying the immunity decision as far into the case as possible.

Barrett: If immunity comes from Art II, that protects from state prosecution too, right? All of your descriptions of institutional protection in DOJ don't apply to state prosecutors. Dreeben agrees. "If the Court thought that you need a more categorical rule for the states," could find one in the Supremacy Clause. But still suggests it should not be decided at the outset.

Surreally, Dreeben discusses the prospect of a former president being criminally tried in state court as a hypothetical situation that we might face some day, as opposed to a thing literally going on this week.

Dreeben now presses for the use of "evidentiary value" of official acts, with just a jury instruction that they are not to be criminalized. Contrasts to Speech & Debate clause, where speech in Congress can't even be evidence.

KBJ telling Dreeben she's "struggling" with his argument about the clear-statement principle for deciding when a statute can be used to charge the president. Isn't the ultimate Q, she asks, whether the Constitution allows the POTUS to be charged?

KBJ drawing out explicitly that Dreeben's argument kicks the immunity decision to a case-by-case inquiry, but she offers him the opportunity to say that all the Court needs to do is just reject absolute immunity, rule that nothing in this indictment is an official act.

KBJ, not buying what Dreeben is selling, notes that prosecutorial abuse is a legitimate worry, but argues that perhaps each administration has an incentive not to prosecute a predecessor due to fear of retaliation in kind. Which would be more persuasive if that Rubicon had not yet been crossed.

Sauer, perhaps prudently, declines to offer any rebuttal. As badly as this argument went for him, Dreeben did a dreadful job and Sauer getting back up would only run the risk of making things worse.