Trump v. US thread.
Opinion below.
Bottom line #1: I agree that a Jan 6 trial cannot happen before the election (That was almost certain when the Court took this case)
But a great idea is floating:
Jack Smith can use evidentiary hearings as a mini-trial.
supremecourt.gov/opinions/23pdf…
Opinion below.
Bottom line #1: I agree that a Jan 6 trial cannot happen before the election (That was almost certain when the Court took this case)
But a great idea is floating:
Jack Smith can use evidentiary hearings as a mini-trial.
supremecourt.gov/opinions/23pdf…
2/ The Court remanded the case.
Commentators are overlooking the Court's emphasis on "presumptive immunity," rather than "absolute immunity."
See Chief Justice Roberts's concise summary at p. 6 below.
This presumption still opens a big door for trial court evidentiary hearings.
Commentators are overlooking the Court's emphasis on "presumptive immunity," rather than "absolute immunity."
See Chief Justice Roberts's concise summary at p. 6 below.
This presumption still opens a big door for trial court evidentiary hearings.
3/ The Court holds "absolute immunity" for "core constitutional powers" (p. 6 above).
But what are those "core" powers?
p. 8: "Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his 'conclusive and preclusive' constitutional authority."
But what are those "core" powers?
p. 8: "Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his 'conclusive and preclusive' constitutional authority."
4/ p. 9: "Congress may not criminalize the Pres’s actions within his exclusive constitutional power. Neither may the courts adjudicate... We thus conclude the Pres is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority."
5/ Elevating @lsolum's framing & my replies:
My new research shows:
A. lack of historical clarity about which powers were "exclusive";
B. "Exec power," while not an empty vessel, was still so unclear & overlapping that "exclusive" is a small textual set.
My new research shows:
A. lack of historical clarity about which powers were "exclusive";
B. "Exec power," while not an empty vessel, was still so unclear & overlapping that "exclusive" is a small textual set.
https://x.com/lsolum/status/1807793939703017473
@lsolum 6/ p. 9: "The reasons that justify the Pres’s absolute immunity from criminal prosecution for acts within the scope of Pres exclusive authority therefore do not extend to conduct in areas where authority is shared with Congress."
I think the history shows much shared authority.
I think the history shows much shared authority.
7/ Here is a preview of my historical research @SSRN
See Part I of this paper, p. 10-20, forthcoming @NotreDameLRev, which previews a longer legal history article, "The Un-Separation of Powers," forthcoming this summer.
papers.ssrn.com/sol3/papers.cf…
See Part I of this paper, p. 10-20, forthcoming @NotreDameLRev, which previews a longer legal history article, "The Un-Separation of Powers," forthcoming this summer.
papers.ssrn.com/sol3/papers.cf…
8/ I want to pause and emphasize the failure of Chief Justice Roberts achieve unanimity - as the Burger Court did in U.S. v. Nixon - or even win 1 vote from the other ideological side.
In my early read, the 3 moderate/left signaled space for consensus, and Roberts failed.
In my early read, the 3 moderate/left signaled space for consensus, and Roberts failed.
9/ p. 14-15:
"But as we explain below, the current stage of the proceedings in this case does not require us to decide whether this immunity is presumptive or absolute. See Part III–B, infra. [O]ne case...does not afford enough experience” to determine scope of immunity."
"But as we explain below, the current stage of the proceedings in this case does not require us to decide whether this immunity is presumptive or absolute. See Part III–B, infra. [O]ne case...does not afford enough experience” to determine scope of immunity."
10/ The Court finds some "exclusive" executive powers, based on repeating its huge historical errors on the meaning of "executive power," repeating Scalia's infamous mistakes about govt. prosecution and removal.
p. 20 is a whopper, but it doesn't block this case:
p. 20 is a whopper, but it doesn't block this case:
11/ This description of Myers above confuses holding and dicta, and this interpretation of Art II has been thoroughly debunked.
This repeating of its ideological assumptions about removal is shameless and ignores the historical evidence.
This repeating of its ideological assumptions about removal is shameless and ignores the historical evidence.
12/ This conclusion at p. 21 that the President's supervision of DOJ is "absolutely immune"...
is anti-originalist and ahistorical nonsense, but it also is just a small part of the much broader Jan 6 case against Trump:
is anti-originalist and ahistorical nonsense, but it also is just a small part of the much broader Jan 6 case against Trump:
13/ There is one exchange about "official acts" and bribery, in which Barrett shows the basic common sense that Roberts etc. lack.
Barrett on the left, Roberts footnote on p.32 on right:
Roberts staggeringly obtuse & reveals the fuzziness of his "official acts" distinctions:
Barrett on the left, Roberts footnote on p.32 on right:
Roberts staggeringly obtuse & reveals the fuzziness of his "official acts" distinctions:
14/ Other than these 2 (made-up) Art II powers of prosecutorial supervision and removal, the Court didn’t identify other “core” “exclusive” presidential powers…
Or give guidance about how to interpret “core” “exclusive.”
This big door for Trump hearings is a big silver lining.
Or give guidance about how to interpret “core” “exclusive.”
This big door for Trump hearings is a big silver lining.
15/ Readers are asking for more specifics about what Jack Smith could still pursue in DC trial court and in evidentiary hearings in Aug-Sept-Oct.
The answer:
Almost everything is still on the table.
Jan 6 Indictment here:
upload.wikimedia.org/wikipedia/comm…
The answer:
Almost everything is still on the table.
Jan 6 Indictment here:
upload.wikimedia.org/wikipedia/comm…
16/ Pausing to note a clear opportunity for - and judicial duty to write - a common sense per curiam...
between Justice Barrett's concurrence and the dissenters' (apparent) acceptance of "presumptive immunity" for Nixon v. Fitzgerald's "outer periphery" of Pres power...
between Justice Barrett's concurrence and the dissenters' (apparent) acceptance of "presumptive immunity" for Nixon v. Fitzgerald's "outer periphery" of Pres power...
17/ I've emphasized silver linings, but I'm also shocked that Roberts went so far to the right of that reasonable middle ground between Barrett & the dissenters.
The majority is a stunningly dangerous, extreme, anti-originalist unsupported view of presidential power and impunity.
The majority is a stunningly dangerous, extreme, anti-originalist unsupported view of presidential power and impunity.
18/ The remand to trial leaves almost the entire indictment and most of the factual allegations on the table,
Like the fake elector scheme.
Only a small set of facts and allegations (communications with DOJ officials, threats of removal) are immunized and inadmissible.
Like the fake elector scheme.
Only a small set of facts and allegations (communications with DOJ officials, threats of removal) are immunized and inadmissible.
19/ Join us tomorrow for a full conversation, starting 1 pm ET.
I’m on the second panel:
I’m on the second panel:
https://twitter.com/seattleulaw/status/1807859274011533762
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