You might be hearing that a president still could be prosecuted even for official acts if the presumption of immunity is rebutted. But that ignores three more granular features of the opinion that are akin to prosecutorial roadblocks. 1/
First, the bar to rebut that presumption is HIGH. The court says the question to ask is whether prosecuting the official act in question “would pose any dangers of intrusion on the authority and functions of the Executive Branch.” 2/
Second, the government can never use evidence of official acts that don’t clear that bar. Put another way, if it can’t be charged, it can’t come in, even to inform the jury’s understanding of a president’s knowledge or intent. 3/
What does that mean practically? Think about the various times that DOJ officials told Trump he had lost and/or that there was no widespread evidence of fraud justifying further investigations or action. All of those instances are off the table as trial evidence now. 4/
And third, in determining what is and is not official, courts cannot consider a president’s motive or purpose. A president raids the home of a political rival because of their beef, not because of any legitimately suspected criminal activity? The beef is irrelevant legally. 5/
Today’s decision forces Jack Smith and future prosecutors to do their jobs with both hands tied behind their backs even as to the small slice of conduct that might be fair game. And that, in and of itself, is not fair game at all. 6/
Moreover, before even getting to the divide between official and unofficial acts, the court confers absolute immunity for the president’s “exercise of his core constitutional powers. Don’t sleep on that either; we’ll see plenty of litigation ahead about what’s in that bucket. 7/
The bottom line: The majority has not put a thumb of the scale for former President Trump; they’ve put their whole hand on it.
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There are two absences in today’s SCOTUS ruling on presidential immunity that you should note. First, while making clear there is no immunity for unofficial acts, the majority doesn’t carve out any alleged conduct in the indictment that is definitively NOT immune. 1/
And that’s not because they are allergic to categorical determinations. Today’s decision makes clear that all alleged conduct stemming from Trump’s interactions with and/or direction of DOJ is absolutely immune. Why? 2/
Because, as Roberts writes, “[i]nvestigative and prosecutorial decisionmaking is ‘the special province of the Executive Branch,’ and the Constitution vests the entirety of the executive power of the President.” 3/
My favorite law school class was legislation (aka statutory interpretation)—and my read of the Fischer decision, putting on that hat, is textualism is a false god for the majority. 1/
There is literally no effort to deal with the plain language of the statute at issue; instead, the majority jumps right to what is usually a second-level analysis: How what it calls the “residual clause” should be understood from its surrounding words and structure? 2/
The majority ultimately determines that the residual clause is limited to obstruction or impairment of the integrity or availability of the use of evidence in an official proceedings. 3/
In lifting portions of the gag order today, Judge Merchan did remove the restrictions pertaining to jurors, but he left in place another order concerning the jury. And that order matters. 1/
Specifically, the judge notes that because of the "ample evidence to justify continued concern for the jurors," the protections laid out in a March 2024 order "regulating disclosure of juror information" will stay in place until he decides otherwise. 2/
What are those protections? A restriction on disclosure of the jurors' home and business addresses other than to counsel of record and, more importantly, a prohibition on the disclosure of juror names other than to each side, its lawyers, and their staff and consultants.
I try not to tweet and talk simultaneously (and just came off air from another SCOTUS decision morning), but the Manhattan DA’s brief mostly opposing the lifting of the gag order deserves attention today. 1/
When the DA first sought a gag order, it presented evidence of the threats dating back to last year. But
now, he cites recent, serious threats, including “bomb threats at the homes of two people involved in this case” on the first day of trial & online death threats to the DA and his employees. 2/
Note that the DA does not want the gag order to remain in place in its entirety. They agree with Trump that it is no longer needed with respect to trial witnesses. 3/
Last night, I was searching online for a segment in which I discussed being Jewish. Instead, I stumbled on a sub-Reddit in which a bunch of men were discussing me as “zaftig” or “thicc.” 1/
Now that I have an on-air job, I’ve become accustomed to what viewers and readers say about my work. Depending on who you ask, I am alternately brilliant and stupid, shrill and soft-spoken, too wide-eyed and overly jaded. Mostly, I try to put my head down and just work. 2/
But my body? As a person who struggles with my weight and sometimes even figuring out when/what to eat during the most grueling times, I was mortified and disappointed by the conversation I found. Please just don’t. 3/
NEW: In a new opinion tonight, Judge Aileen Cannon denies a motion to dismiss the Mar-a-Lago docs case due to alleged pleading deficiencies in the obstruction and false statement charges of the indictment. But there's a sweetener for Trump and his campaign chief Susie Wiles. 1/
And that sweetener was her decision to strike paragraph 36 of the indictment, which concerns Trump's alleged showing, while at Bedminster, a classified map of a country with "an ongoing military operation" "not going well" to a "PAC Representative" reported to be Wiles. 2/
Cannon says where prosecutors want to introduce evidence of prior crimes or wrongs, they have to provide "pre-trial notice" of the reasons justifying use of such evidence for purposes other than showing the defendant's propensity to act in a given way, and motion practice ensues. 3/