In the presidential immunity decision, Footnote 3, Justice Barrett's concurrence, and the dissent make much about immunity and bribery. Justice Sotomayor writes, "Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune."

The emphasis is misplaced, however. Mini 🧵 The majority's FN3 says you don't need evidence of an official act to prosecute a president for bribery. That's correct. The bribe itself is a crime-- whether the official act is completed or not. A quid pro quo agreement alone = convict. That tracks P&I Clause/ U.S. v. Brewster.

Good morning. It’s John Glover Roberts’s world and we’re just living in it.

This morning, at 10am, the Supreme Court will start to wind down its October 23 term. We have decision days announced today, tomorrow, and Friday.

A few procedural reminders: We never know what decisions are coming and when. The Court announces rulings when the justices’ work is ready.

Decisions are handed down in reverse seniority by majority author. The longest serving justice goes last except the Chief. He’s the most senior by virtue of being CJ.

Here's the thing with the Louisiana Ten Commandments in public schools law. Supreme Court precedent already said hanging them in schools violates the Constitution under the First Amendment in a case Stone v. Graham (1980). Kentucky was slammed by the justices for a similar law. The Court summarily reversed the Kentucky courts, which held that Ten Commandment displays were constitutional *without* briefing or arguments. It was a 5-4 decision with Burger and Blackmun wanting full consideration. Only Stewart dissented on the merits. But here's the thing...

What might we expect from the Supreme Court today? Well, who knows, but there are five cases remaining from arguments held in 2023. Two of them are major cases, Rahimi and Purdue Pharma. Rahimi is about the firearm possession by people under domestic-violence restraining orders. Purdue Pharma is not a constitutional law case, but a bankruptcy issue related to the opioid crisis.
Rahimi was argued in Nov. (JGR, CT, SA, SS and EK haven't authored opinions from Nov. 23)
Purdue was argued in Dec. (JGR, CT, NG, and BK haven't authored opinions from Dec. 23)

Supreme Court arguments in Trump v. United States and presidential immunity will begin momentarily. I’ll thread argument highlights and commentary here: John Saurer for Trump: The Framers wanted an "energetic executive" and the "looming threat" of prosecution for "fearless action" would undermine the executive branch.

So, let's talk about the Georgia Court of Appeals. Now that Judge McAfee has granted the certificate of immediate review for the disqualification of Fani Willis, what's the process? The application for an interlocutory appeal will be randomly assigned to a judge. From there... it will be assigned to a staff attorney who will review the application and any supporting materials. That attorney will provide a memo providing a recommendation to the judge on whether the appeal should be granted or denied. The court has 45 days to act, so decisions are quick.

Good morning— let’s talk about the GA Constitution! Yesterday, Judge McAfee granted quashal on a number of charges related to Donald Trump and his allies’ alleged attempts re: inducing state officials to violate their oaths of office. So what does the Ga. Const. require? #gapol



The special demurrers centered on the fact the Fulton County DA did not articulate how the election interference defendants, if successful, would’ve suborned a constitutional violation. The Ga. Const. is unique. And it is very important here for Willis if she wants to indict.

Why was Judge McAfee's decision correct in the Fulton County case? The DA alleged that some defendants solicited state officials to violate their oath of office to uphold the federal and state constitutions, including the Secretary of State and members of the General Assembly. The U.S. Constitution and GA Constitution are different documents and election subversion could violate a number of different provisions of either constitution. What provision of each does the DA believe these co-defendants conspired to undermine and induce officials to violate?

NEW from me in the @ajc: Judge McAfee 𝘥𝘰𝘦𝘴 𝘯𝘰𝘵 have the power to disqualify @FaniforDA or the @FultonCountyDA from the 2020 election interference prosecutions under the Georgia Constitution without evidence of an actual conflict of interest. #gapol ajc.com/opinion/case-a… A few brief highlights of my argument. The standard for prosecutorial disqualification is an 𝘢𝘤𝘵𝘶𝘢𝘭 𝘤𝘰𝘯𝘧𝘭𝘪𝘤𝘵 not the 𝘢𝘱𝘱𝘦𝘢𝘳𝘢𝘯𝘤𝘦 of a conflict or an appearance of impropriety. Judge McAfee on February 15th suggested that the standard could be either.

Judge McAfee has entered to courtroom and we're on our way to hearing arguments on motions to quash subpoenas in advance of Thursday's motion to disqualify Fani Willis in the 2020 election case. McAfee: The motions for quashal are procedurally ripe for review.

The evidentiary hearing is still necessary to establish a record on the allegations of a conflict of interest.

Trump moves to dismiss the Fulton case because, he claims, trying him for election crimes in Georgia after the 2020 election violates Double Jeopardy: he was already impeached and tried in the Senate for inciting an insurrection.

This is so meritless it borders on the comical. Let's turn to the Constitution:

The South Carolina secession ordinance states the reasons plainly. First, was the “increasing hostility on the part of the non-slaveholding States to the institution of slavery” and second was the election of Lincoln, which for the rebels, embodied the peak of that hostility:

https://twitter.com/merylkornfield/status/1740184746733556055

Mississippi echoed South Carolina:
“Our position is thoroughly identified with the institution of slavery-- the greatest material interest of the world. Its labor supplies the product which constitutes by far the largest and most important portions of commerce of the earth.”

It seems like Ronna McDaniel could be in some trouble in Michigan and Donald Trump may be facing a fifth set of charges. A promise was offered in exchange for an official act unlike in Georgia where the preferred method appears to have been limited to browbeating state officials. And that’s before any other public corruption / election fraud conspiracy type crimes that could be well implicated.

COLORADO SUPREME COURT: TRUMP DISQUALIFIED FROM PRESIDENCY UNDER THE 14th AMENDMENT courts.state.co.us/userfiles/file… Like all of the Civil War Amendments, the Colorado Supreme Court says that Section 3 of the 14th Amendment is self-executing. Congress need not adopt legislation. Courts can do this work as they do for the 13th and 15th amendments and the remainder of the 14th Amendment.

Good morning from Fulton County: I suspect we’ll see a motion to revoke Trevian Kutti’s consent bond for witness intimidation of Ruby Freeman within the next two hours and would not be shocked if she’s indicted again for an additional racketeering act by the Grand Jury. #gapol Folks have asked why would she be much more likely to get remanded when Harrison Floyd has his bond conditions strengthened— his conduct, though plainly stupid, is nothing when compared to what Trevian Kutti appears to have done. These are different situations entirely.

This is a argument won’t carry water. The First Amendment does not shield acts of corruption. Trump could have complained about the election or made false allegations about the outcome all he wanted. He had no free speech rights to initiate *acts* to overturn the election. #gapol

https://twitter.com/tamarhallerman/status/1729257027912782242

The 1st Amend. argument always was much stronger when it came to questions about incitement of the January 6th riot because that alone was about speech. The Fulton County case is fundamentally about a scheme to deprive Georgians of the right to vote. That is not protected speech.

The idea that Radical Republicans would've believed the presidential oath is fundamentally different than other oaths of office is absurd. This semantics playing doesn't square with what the 14th Amendment was intended to accomplish-- to rearrange the entire constitutional order. The Colorado judge found that as a factual matter Trump incited an insurrection against the United States. Had Andrew Johnson done that, would Republicans in Congress shrugged their shoulders and fail to believe the 14th Amendment wouldn't apply to disqualify him? No damn way.

I strongly disagree with something @eliehonig said on CNN. There is no— zero—basis for a federal court to enjoin a state criminal proceeding consistent with federal court abstention doctrine, nor is there a federal constitutional right for a candidate for office to avoid a trial. Judge McAfee may well consider the political calendar in scheduling a trial but that’s a matter of judicial discretion not some kind of right as a trump. And it’s worth noting that Trump isn’t even the nominee yet— must Georgia play wait-and-see for a year? No. That’s wrong, too.

Some thoughts about the strange developments this week in Fulton County. The real problem with the state's position is that the DA's office made an assumption that the proffer video dissemination was an attempt to intimidate witnesses but had no evidence of that being the case. In fact, most assumptions were that it was an attempt by a lawyer working in the best interest of their client to show the videos. (Though it seems like a much more dangerous prospect of lawyers showing witness proffers rather than a lawyer releasing their own client's recording)

Petitioners seeking to disqualify Trump under Section 3 of the 14th Amendment in Minnesota will get another bite at the apple in anticipation of Trump securing the nomination— however— proceedings in Colorado could preempt them if that petition reaches the Supreme Court first. Diving in, the court thinks this is a partisan squabble first: “… this is an internal party election to serve internal party purposes, and winning the presidential nomination primary does not place the person on the general election ballot as a candidate for President….”

Oral arguments beginning at the Minnesota Supreme Court over Trump's eligibility to remain on the ballot under Section 3 of the 14th Amendment for engaging in insurrection or rebellion after taking an oath to the United States. Ronald Fine for petitioners: This is a request for the court to uphold the Constitution and preserve American democracy. Section 3 protects against oath-breaking insurrectionists because allowing them back in power is a threat to the Constitution.