Thread by @stevenmazie

Kav on OLC opinions: clear statement rule for official acts, but none of these statutes in this case have a clear statement.

Kavanaugh seems REALLY INTERESTED IN EXPANDING PRESIDENTIAL POWER

Kav: some acts in indictment are private and some are official. Who decides which is which?

Sauer: the district court

Barrett: what if the criminal acts aren't discovered until after president leaves office? no chance for impeachment/conviction in Congress?

Sauer: better to under-enforce than "lose liberty"

Barrett cites Kagan's q on ordering coup: he couldn't be prosecuted for that even after impeachment proceedings, unless a statute made that specially criminal for the president?

Sauer: that's right

KBJ: difficult line-drawing is a function of the private/official distinction, right?

Sauer: right

KBJ: zoom out and tell me why pres would not be required to follow the law when doing official acts?

Sauer: the president does have the responsibility to follow the law. the q is what the remedy is.

KBJ: other people are prosecuted, why not pres?

Sauer cites Fitzgerald -

KBJ: clear that private civil liability is different! anybody on the street can sue him.

KBJ: I'm worried about presidents *not* being chilled. The most powerful person in the world going into office knowing there is no potential penalty for committing crimes! Why wouldn't the presidency become the seat of crime in this country?

Sauer: no worries about that

KBJ: tell me about this clear statement rule, did you argue that below? That isn't the question presented in this case.

Sauer: fairly included in the QP

KBJ: you're using that to avoid the constitutional question. So it's circular!

KBJ: why would Congress have to write "and the president is included" in every criminal law??

SAUER SITS. DREEBEN BEGINS.

Dreeben: Trump's position would license presidential bribery, sedition, murder and let Trump "perpetuate himself in power" to "subvert democracy"

As for potential abuses: there are layers of protections with Article III courts providing the ultimate protection.

Justice Thomas: is there no pres immunity even for official acts?

D: yes. President as head of Art II branch can assert doctrine re fulfilling Art II powers. But no blanket immunity.

Dreeben: the reason there were not previous prosecutions of presidents was there were not crimes.

Roberts: former president can be prosecuted because he's being prosecuted? That's tautologically true, and problematic. It's often easy to get a grand jury to bring an indictment. Should we rely on good faith of the prosecutor?

Let's send it back to lower court, maybe?

It's now clear why SCOTUS took cert. At least four justices didn't like the DC Circuit opinion's reasoning.

Alito: former president does have form of special protection, you seem to agree.

D: yes, due to general principle of avoiding constitutional questions.

Dreeben: relying on impeachment is very unreliable, esp. for conduct near the end of a president's term

Kav back on his clear-statement kick

Dreeben: this court's cases and OLC opinions do not speak that broadly - no need for every criminal statute to specifically name the president

Dreeben says a balanced interest incorporates both protection AND accountability for the president.

Bribery statute does not name the president...

Gorsuch jumps in: some core functions of the executive that can be immunized? you concede Congress cannot criminalize some things.

3 things are clear:
(1) nobody is inclined to grant absolute immunity, BUT
(2) the conservatives are not happy with the black-and-white DC circuit ruling against Trump, WHICH MEANS
(3) the ruling *won't* come quickly and will likely call for further proceedings in lower courts

So, big picture: the (already slim) chances of Jack Smith actually getting his 2020 election-subversion case in front of a jury before the 2024 election are dwindling before our eyes.

Word of the day: TAUTOLOGY

Dreeben: the president has no official role in the counting of electoral votes.

Alito now asking about "layers of protection" for presidents. Aren't some federal prosecutors nasty folk?

Dreeben: let's look at this case.

Alito: I want to talk in the abstract.

Alito cuts off Dreeben when he talks about Trump's allegedly criminal actions.

What about federal grand juries? How much protection is that?

Alito cites the old saw about indicting a ham sandwich.

And third level: all criminal defendants have protection.

Dreeben: all presidents know they are subject to conviction! Cemented by Watergate.

Dreeben cites Trump v. Hawaii about Korematsu being overruled...Alito quibbles...Dreeben discusses exigencies of national defense supporting criminal prosecution.

Alito now asking if presidents will pick AGs who will tell them that X and Y are legal even if dubious so they are protected from prosecution later.

Dreeben: the system has worked pretty well for ~200 years.

Alito is taking his time wow.

Dreeben flips script on Alito's concern: Trump appropriately challenged the election via lawsuits and lost all of them

Sotomayor: we fail but usually succeed.

If we fail repeatedly, it's because we've destroyed democracy on our own.

No man is above the law, either in official or private acts.

Kagan explores what the CORE roles of president are: commander in chief (w congressional oversight), veto, foreign recognition...

OK now, not core but official actions. What are those?

Kagan: OLC opinion says pres can be tried and convicted for bribery. Why is that true?

D: he doesn't need bribery to fulfill constitutional functions

Kagan: is that bc bribery isn't official? or bc it's official and still pres can be prosecuted for it?

D: the latter

Kagan is the only justice really trying to sketch the proper scope of presidential power here. Her colleagues should be, too.

Dreeben: there are only two criminal statutes that specifically name the president, meaning murder, etc., are off the board if the clear-statement rule is applied (Kavanaugh's pet theory).

Kagan cites KBJ saying that clear-statement isn't before us. Should we rule on it anyway?

Dreeben: you have discretion to do so. [goes on to opine expertly on principles that might guide the analysis - man is he good in the weeds]

Dreeben wraps up on this: Art I and Art II branches agree this is how we approach the law. Congress did apply these to official conduct.

Kagan following up on official/unofficial acts.

D: "I disagree with [Sauer] on everything else." Pushing fraudulent slates of electors is not official conduct. That is campaign conduct. Ginning up fake electors is not any part of a president's job.

Dreeben: Trump engaged in a "private scheme to achieve a private end". To use a president's office to advance that scheme "makes it worse".

Kagan: what about conversations with the vice president. Is that under exec privilege?

D: that's a tough q for DOJ. we take broad view to protect president from private lawsuits (Nixon v Fitz). Q is whether he was in role of office seeker or office holder. Open question.

Dreeben cites Trump asking Georgia secy of state for ~12,000 votes -- that is clearly in role of office-seeker.

Gorsuch: what if pres uses commander-in-chief powers to secure private gains?

Dreeben: a lot of concern about being reelected for a first-term president.

Gorsuch: so personal motivations off limits for core powers. So we're fighting over non-core powers. Removing an appointee?

Dreeben: depends on what kind of appointee. So maybe.

Two hours in:

This is a fascinating seminar on the bounds of presidential power (core and otherwise).

So fantastically subtle and nuanced that it's the death knell for Jack Smith's election-subversion case.

Dreeben: we are just as concerned as the Court is about undermining the power of the executive branch.

Kavanaugh now expressing Big Misgivings about special counsels and special prosecutors generally and how they harass presidents.

Starting to wonder if even this ponderous oral argument will wrap up before the election.

Barrett notes that OLC memo sounds like official vs unofficial acts

Dreeben: that doesn't quite work. there is a possibility of unlawful executive acts

Barrett: does motive matter to "public authority' defense?

D: no, objective facts disclosed to counsel

B: what's so bad about deciding that at threshold/interlocutory appeal

D: Court can craft procedural rules in line w that

Dreeben: better to alter procedural rules than blanket immunity to remove chance of prosecution.

Barrett: make it a jury question?

D: no perfect system - aim is to preserve effective functioning of presidency and accountability under the rule of law

Barrett: I agree (SHE IS NOT A VOTE FOR ABSOLUTE IMMUNITY)

Barrett: remand for trial to decide private/official. what about special counsel's request for speed?

SHE SPEAKS TO THE ELEPHANT IN THE ROOM -- TIMING. FOR THE FIRST TIME TODAY.

Dreeben: if court said X, Y. and Z were private acts, we think we can introduce the interactions w/ DOJ for evidentiary value and jury instructions could direct jurors on how to think about that evidence.

PATH FOR GETTING THE TRIAL GOING W/O FURTHER DELAY

KBJ: sufficient allegations that fall into private acts bucket that case should be allowed to proceed

Dreeben: yes

KBJ: we need a reason for applying the clear-statement rule. But there isn't.

D: in US v Sun Diamond, Scalia wrote for 9-0 court about what if pres received a jersey. Court said it had to be an official act. Clearly no presumption that presidents are immune generally.

KBJ: so we have private vs. official and core powers vs. non-core powers...but Trump is asking for immunity for ALL official acts. So maybe we don't need to drill down on which official acts trigger immunity?

Dreeben: that would be enough. But Sauer's official acts analysis is about outer-perimeter. That's much too broadly protective. There are as-applied constitutional challenges that can be used instead.

KBJ: so presidents have defenses even if they don't have blanket immunity.

D: yes, but Trump has never made that argument. He has put all his eggs in the absolute immunity basket.

Dreeben: there are no core acts in the indictment we think qualify for protection.

KBJ: so we shouldn't get into all that now

D: right, no need

It's a little-discussed perk/privilege of being the junior justice that she gets the last word from the bench in every oral argument. KBJ fully using that right now to excellent effect.

KBJ mentions @marty_lederman's amicus brief

@marty_lederman Dreeben: the legal regime we have works, and to alter it brings more risks.

@marty_lederman Sauer just waived his rebuttal.

what?

Never seen this before.

He must think he has the votes so <shrug emoji>

Not so sure he's right.

There seem to be four votes mostly against Trump—the four women. Kavanaugh is seemingly not in play. This is going to come down to Chief Justice John Roberts, who will write the opinion. What he'll say, not so sure.

@threadreaderapp pls unroll me