Thread by @emptywheel

Thomas: How do we determine what an official act is?

Ut oh.

Roberts goes right to bribes -- but an example which is very common, someone gives $$$$ to be made Ambassador.

Roberts, of course, has gutted bribery statute.

Jack Smith had raised pardons and bribes, which is ... rather close to Trump's known acts.

Sauer dodges by falsely claiming that this indictment is made up of official acts.

Soto goes RIGHT TO drone striking a presidential rival.

Boom.

Sauer: Depends on hypothetical.

Soto: We would be creating situation in which POTUS is entitled--not to make a mistake--but entitled for total personal gain to use trappings of his office, that's what you're trying to get us to hold, w/o criminal liability.

KBJ: When one is using trappings of his office to achieve personal gain, then not acting officially.

Sauer: That could be made in every case.

KBJ: So what was up with the pardon for Nixon. If everyone thought he had immunity, what was up with that pardon?

Gorsuch gets Sauer to agree that POTUS can be prosecuted for private conduct.

[The lawyers on the Florida case may be uncomfortable with that.]

Gorsuch seems to want to adopt Blassingame.

Sauer says they should adopt Katsas' Blassingame prosecution.

Gorsuch grasps onto the "further proceedings" out.

Alito: My Q is whether very robust form of immunity is really necessary. Suppose rule were former POTUS cannot be prosecuted for official acts unless NO plausible justification could be imagined taking into account history and legal precedent and info provided to POTUS.

LOLOL

Alito claims there would be objective facts to get to official acts.

He and Gorsuch are off on an adventure.

"This would be applied on purely objective grounds" says the guy who said you can't try to save a life adult woman in hopes of saving a non-viable fetus yesterday.

Soto: Might as well give absolutely if you require plausible, anyone could argue plausible.

Alito: One could argue it is not plausible to order SEAL Team 6, bound by UMCJ not to obey illegal orders [as if that ever was enough].

Sauer now trying to ... I'm not sure what, about whether Trump knew the fake electors were fake.

Kav: For some official acts not w/in Article II official power.

"I'm assuming exclusive powers are walled off and can't be prosecuted."

Meaning, pardon for bribes are legal.

ACB going through allegation after allegation to get Sauer to agree that they are private acts.

Sauer also accepts acts done as candidate are private.

Thomas: did you challenge appointment of Jack Smith?

Sauer: We hadn't raised [appointment] yet when this went up on appeal.

[Well, you missed your chance. But I'm sure Abbe Lowell is going to be intrigued by that exchange.]

Soto: I don't understand why your problems couldn't be handled at trial.

Sauer says fake elector certs is official act.

Kagan: Does it strike you as odd that your view of immunity goes way beyond what OLC has claimed?

Kagan: If POTUS sells nuclear secrets.

Sauer: If it's structured as official act.

[Claiming he'd have to be impeached first, doesn't ask about if he has stolen the docs first.]

Kagan: Order military to stage a coup?

Gorsuch now looking for Congress to pass new law.

Gorsuch now parroting Trump, one of incentives would be for President to try to pardon himself. We've never answered whether POTUS can do that.

It's fairly clear that at least some of the right wingers believe Trump's bullshit about these prosecutions being political.

Gorsuch now imagining that bc you can prosecute people who would be ordered to do something illegal, that's good enough.

Remember: Trump ordered Pence to do something illegal. Pence decided he could not do it. But Gorsuch would have PENCE facing prosecution for Trump's order.

Kav now imagining that bc none of the statutes charged have a clear statement that POTUS could be charged.

Murder does not have a clear statement.

Kav seems set to say POTUS can't be prosecuted FOR ANY OFFICIAL act unless the crime says POTUS can be prosecuted. But may be willing to let DC District to review for official acts.

ACB: What if criminal conduct is not discovered until after office.

Sauer: Too bad!

ACB: "A few, two or three," noting that POTUS is not explicitly included in most crimes.

KBJ: This line drawing, private or public, is being necessitated by that underlying assumption of immunity.

KBJ: We would have opposite problem if President was not chilled, if most powerful person in the world could go into office knowing there is no potential penalty for crime.

Sauer trying to sneak his clear statement rule by pointing to the MTD in statutory grounds.

KBJ: You asked for immunity which is different thing.

KBJ, exasperated: That's totally circular. Doesn't make sense to talk about clear statement in context it has come up, in immunity question.

Thomas: No presidential immunity even for official acts?

Dreeben: Can assert Article II objections to criminal laws that prevent POTUS from accomplishing constitutional functions.

Thomas: Coups and Operation Mongoose, but not prosecutions. Why?

[Conflating coups in Iran w/coups in DC.]

Reminder that a WHOLE BUNCH of Thomas' former clerks wrote key opinions authorizing things like torture.

Roberts exploits Dreeben's treatment of one line of DC Circuit opinion as a tautology to use to dismiss entire opinion.

Roberts now saying that the things that protect NORMAL citizens from abusive prosecution -- like a grand jury -- aren't enough for the President.

Dreeben: There is no immunity unless this court creates it today.

SCOTUS now really bothered that Trump would have to go to trial. This is insanity.

Kav: It's a serious constitutional question whether statutes can be applied to the President.

This is insane.

But I guess he heard Trump's demands.

Gorsuch now wanting to claim an Article II challenge is immunity.

Gorsuch: Let's say President leads mostly peaceful protest in front of Congress, delays proceedings before Congress.

Gorsuch is simply ignoring the violence.

Gorsuch: Nobody knows what corrupt intent is. He knows he's doing wrong.

Gorsuch is literally writing this opinion to excuse Trump for having launched a violent attack on a co-equal branch of Congress.

Soto swoops in to try to rescue Dreeben. Notes how narrow the bribery statutes are that include him explicitly.

One thing no one is talking about is that Trump was intervening in actions SPECIFICALLY reserved to Congress (and the states).

Dreeben: President has to enforce the law.

Alito: Did you really say he's subject to the laws just like anyone ELSE?

Alito REALLY finds it unfair that Trump would be treated like anyone else.

Alito: I don't want to dispute the particular application, the particular facts here. Wouldn't you agree that that is peculiarly open?

Alito: As I said, I'm not discussing the particular facts of this case.

Dreeben: As applied to this case, the President HAS NO FUNCTION.

Dreeben: You can't deprive millions of voters to have their vote count --

Roberts interrupts as Dreeben defends the rights of 81M Biden voters.

Alito AGAIN says that there aren't enough protections.

And AGAIN dodges the facts of this case.

Alito again stops Dreeben from talking about the facts of the case.

We're at the point of this horrid hearing where Alito is suggesting it would be bad if the interned Japanese-Americans had recourse for their false imprisonment.

Roberts doesn't want to talk about history.

LOLOL. Alito is horrified by the possibility that Presidents will appoint AGs who will rubber stamp their activities.

You know. Like Bill Barr.

Dreeben pretends that hasn't happened.

Alito suggests that if someone loses a close election and thinks they'll be prosecuted, they'll violently oppose it.

Alito really has flipped this entire thing on its head.

Dreeben not pointing out that SCOTUS ruled against Trump. yet?

Soto, in really momentous voice, trying to emphasize how important principle that no man is above the law is.

Note: For some reason Jack Smith isn't pointing to explicit prohibition on POTUS to order up an IRS investigation, which Hunter Biden has raised.

Dreeben notes "we are not wild about parties smuggling in other issues on interlocutory appeal."

Kagan asks abt the Clark allegations.

Dreeben: We do agree that that's official powers. Seeking as candidate to oust lawful winner of election. Aggravating.

Dreeben: We're not trying to impose criminal liability for threatening to remove Rosen. We're trying to impose criminal liability for fraud to get DOJ to send out fraudulent letters.

Gorsuch: Blassingame appropriate?

Dreeben: We agree with distinction between office seeker and holder. If objectively reasonable, then Fitzgerald kicks in.

The crazy thing abt Gorsuch claiming we don't know what corrupt is in 1512 is even the most constrained definition -- improper personal benefit -- would make Trump's actions corrupt.

Kav asks who in DOJ has weighed in. (Even asks if POTUS weighed in.)

Dreeben explains they reached out and consulted w/SG.

Kav: One of court's worst decisions was Morrison v. Olson, talking about how CLINTON (and others) was hampered by Independent Counsel structure.

Kav: Why is this not Morrison v. Olson redux if we agree with you.

Dreeben: Independent Counsel favored independence at expense of accountability. Dreeben notes that Walsh did not say proof amounted to prosecution.

Kav: Bush, Reagan, & Clinton, whether rightly or wrong disagree

Kav: Ford's pardon. Now looked upon as one of better decisions in POTUS history (!!).

Ford: Could I be investigated myself for interfering in investigation of Nixon?

ACB points to Barron language in drone-killing and says that there's a line between official and not.

Dreeben: The only way he could have implemented orders is by CinC. those seems like core Exec acts. There is such a possibility of an unlawful executive act.

ACB trying to make public defense an interlocutory appeal.

Dreeben, allowing that there might be some procedures to raise public authority defense, says it's dramatically different than recourse suggested by Sauer.

ACB: I agree.

Dreeben is inviting SCOTUS to give POTUSes immunity at state level under supremacy clause.

He notes that States can still say that this is private conduct (as GA was).

ACB wonders (in part for speed) if SCO could proceed on private conduct.

Dreeben trying to protect the Clark and Pence actions at least as proof of intent.

Pretty amazing that you could try to get your VP assassinated and have that be public action.

KBJ: Why is it not enough to say that all official acts get immunity.

Dreeben: That's Fitzgerald. Extremely protective.

KBJ: Is this the right vehicle for test (core v not) official acts.

Dreeben: We don't think there are any core acts that would be off limits under Article II.

KBJ: We should wait for an appropriate vehicle?

Dreeben: I don't see any need in this context.

KBJ asks if Admins have interest in protecting presidency.

Only if Admins believe they are a president and not a king.

KBJ: Can you talk about concern of president being unbounded?

Dreeben: Would be a sea change to announce rule of immunity that no other president has had or needed.

No rebuttal from Sauer.

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