Please allow me one more thread on the immunity ruling. The substantial wrench SCOTUS has thrown in the NY case against Trump comes solely from one passage in the decision, section III-C, and it relies on a weird, inexplicable detour in CJ Roberts’ reasoning. ...
1/17
... Until III-C, the ruling is based on separation of powers arguments & its policy goal is to ensure that presidents can act “without undue caution” & “free from undue pressures & distortions.” But in III-C, Roberts suddenly veers off course into a discussion of jury bias ...
/2
... Until then, remember, his ruling only erects limits on prosecutions for *official* acts.” If he’d stopped there, the ruling would have had had no impact on Trump’s NY convictions, which are for purely unofficial acts. ...
/3
... But in III-C, Roberts turns to whether prosecutors can present official acts as proof of crimes involving unofficial acts. NY prosecutors *did* introduce some such evidence. And this is where Roberts’ reasoning gets so tortured that he loses Justice Barrett (below). ...
/4
... Roberts suddenly raises the specter that, if jurors hear about an official act, even while adjudicating crimes relating to*unofficial* acts, they’ll run a “unique risk” of becoming “prejudiced by their views of the president’s policies and performance while in office.” ...
/5
... Legally, this is beyond strange. 1st, I don’t remember any briefing on this issue. 2d, I don’t think it came up at oral argument. 3d, it has nothing to do with separation of powers. 4th, it has nothing to do with assuring “undistorted” presidential decisionmaking. ...
/6
... 5th, the criminal justice system has many ways to fight jury bias,
beginning with elaborate jury selection processes. 6th—& as Justice Barrett observes below, in rejecting Section III-C —judges can exclude any piece of evidence if they think it’s unduly prejudicial. ...
/7
Yet Roberts, with 4 brethren signing on, says that neither jury selection nor evidentiary rules work for ex-presidents with respect to this one narrow category of evidence: official acts. Where does this notion come from? And where does it leave us? ...
/8
... The notion is also psychologically strange. Roberts seems to theorize that a juror’s potential political bias against an ex-president will be manageable so long as the proof involves unofficial acts, yet will spiral out of control if an official act is mentioned. ...
/9
... That makes no sense. In the NY case, for instance, potential jurors were vetted extensively about their views of Trump & politics. Roberts theorizes, tho, that they can only listen fairly to Stormy Daniels; they'll become too biased if they hear from Hope Hicks! ...
/10
... And it’s actually weirder than that. The theory seems to be that the jury can remain fair hearing Hope Hicks describe events from 2016 (during the campaign) but will become too biased if they hear her describe events that occurred in 2018 (when Trump was president). ...
/11
Voir dire either works or it doesn’t. If you think it won’t work for ex-presidents then, logically, you’d also have to bar trying presidents for unofficial acts. But that would make presidents unambiguously above the law & Roberts doesn't want to admit he's doing that. ...
/12
... So he makes this illogical compromise with himself. He’ll nominally permit prosecutions for unofficial acts but he’ll exclude *evidence* of official acts—which may end up sabotaging those prosecutions too. Like, oh, say, just for instance, People v Trump in NY. ...
/13
... How does a mind like CJ Roberts’—who was one of the finest supreme court advocates of his generation—take an unbriefed whim like this and create from it such an illogical obstacle to prosecuting ex-presidents for even *unofficial* acts? ...
/14
... And how do 4 other justices sign on?
The standard euphemism for 6-3 or 5-4 rulings like this one is to say that the justices voted along “ideological” lines. Here, that’s strained, though...
/15
... The majority’s ostensible ideologies—originalism, textualism—offer no explanation for the policy-driven outcomes of this case, as conservative critics have noted. (Below.) Even “expansive” views of exec power can’t explain the illogic of III-C ...
/16 bit.ly/45RQaa9
... Politics, tho, might. Subconsciously, might Republican appointees want their party’s candidate’s crimes to go away? Subconsciously, might they sense that they prefer writing majority rulings to dissents & that, with a Democratic Prez, that could change? Hmm.
/17-end
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Though it’s outside @lawfare’s bailiwick, readers have expressed interest in the E. Jean Carroll v Trump cases. The appeal of the verdict in the 1st case to go to trial, known as Carroll II (because it was filed 2d), will be heard Friday. Here’s an overview ...
/1
Fri.’s appeal concerns the May 2023 $5M verdict for sexual abuse & defamation. (Trump’s opening brief in the other case, Carroll I, is due 9/13. That’s the Jan. 2024 $83.3M verdict, for defamations in 2019 & 2023—the last one triggered by the Carroll II verdict.) ...
/2
One key issue at Friday’s argument will be whether USDJ Lewis Kaplan abused his discretion in letting the jury hear testimony from Natasha Stoynoff (an former People reporter) & Jessica Leeds (airplane passenger) about similar alleged Trump assaults. ...
/3
Now that Trump has purported to “remove” his NY prosecution to federal court again, does Justice Merchan have power to rule on Trump’s immunity motion &, if he denies it, to sentence Trump? My thoughts here, but I invite @lee_kovarsky or anyone else to correct me. ...
1/5
Under 28 USC 1455(b)(1) Trump’s filing is untimely ("after trial"). He hasn’t sought USDJ Hellerstein’s leave to file late, and Hellerstein hasn’t granted it, so maybe Merchan can just go ahead. In addition ...
/2
... under 1455(b)(3), removals of criminal cases (unlike removals of civil cases) do not deprive the state judge of power to rule on most matters, the only exception being entry of “judgment of conviction.” ...
/3
To comply with SCOTUS’ immunity ruling, SC Jack Smith’s superseder is conservative; it doesn’t push the envelope. That’s wise, but painful. I think the case survives, but SCOTUS has req’d suppression of highly probative evidence of grave crimes. ...
1/14
Two caveats: 1st, the cuts were not nec’ly Jack Smith’s decisions; DOJ was involved. 2d, it’s possible that stuff that was cut might resurface later, offered as “evidence” of unofficial acts. But not much, IMHO. A few tweets, maybe—if that. ...
/2
Clearly, the whole DOJ/Jeff Clark chunk of the case had to go; SCOTUS was explicit about that. But all parts of the case have been watered down, due to suppression of damning conversations Trump had with DOJ, WH counsel, & WH advisors. ...
/3
When the govt files the “joint status report” tomorrow in US v Trump (DC), look for whether the govt is seeking Judge Chutkan’s preclearance of just the indictment or of *all* evidence it plans to present ...
1/8
... As my @lawfare colleagues explain below, the superseder scrubs the indictment of many official acts, but govt might yet try to resurface some purged allegations as evidence of the remaining *unofficial* acts for which Trump *can* be prosecuted. ...
/2 lawfaremedia.org/article/the-su…
@lawfare ... SCOTUS left unclear whether Judge Chutkan’s—& potentially SCOTUS’s—preclearance is req’d only for acts alleged to be crimes in the indictment, or for every scrap of evidence proving those crimes: 100s of exhibits & weeks of testimony. ...
/3
Because SCOTUS’s 6/28 ruling in US v Fischer narrowed the scope of 18 USC 1512c2 (obstruction of a proceeding), it’s important to find out if it’s still viable in Jan. 6 cases, in part because 2 of 4 charges in US v Trump (DC) are 1512c2 & conspiracy to commit it, 1512k. ... 1/7
... DOJ is now pursuing at least 4 J6 defendants under 1512c2. All are rioters who riffled thru docs on Senators’ desks. Fischer requires proof that defs "impaired the availability or integrity for use in [a] proceeding of ... docs ... used in the proceeding,” or tried to. ...
/2
I mentioned two of these cases yesterday (below), which I thought were the first clear examples, but a reader—@sfoguj—just alerted me to two more, that actually came a week earlier. ...
/3
Here’s the filing in which the govt commits, for the first time, to trying to prove that two Jan 6 defendants violated 18 USC 1512c2 (obstruction of an official proceeding) despite SCOTUS'S dramatic narrowing of that law’s scope in Fischer v US. ...
… Govt argues to USDJ Colleen Kollar-Kotelly that it can use the existing indictment but she must give this new jury instruction, requiring proof that defendants impaired the availability or integrity for use in a proceeding of records, documents, or objects. ...
/2
... The govt also outlines how it plans to prove its case. It says the Chilcoats traveled from OH to DC for the rally. They each made videos as they climbed the scaffolding to the Upper West Terrace, with her saying, “We’re going to show them how they need to vote today.” ...
/3