Professor of Law, University of Texas. Habeas corpus, death penalty, some other law stuff, sentient space robots, kids who don't listen to me, and hot sauce.
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Apr 25 • 10 tweets • 2 min read
READING JUSTICE ROBERTS IN THE IMMUNITY CASE
It's reasonably clear that EK, SS, ACB, and ACB are the most hostile to the Trump position in immunity. I've seen very different opinions about what CJR was up to today. Let's look at every moment he spoke substantively
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PAGES 6-8: Involves circulating hypo that official immunity would mean that a POTUS that took bribes for appointment/pardon would be immunized. DJT lawyers try to get out of this by saying that accepting bribe part wouldn't actually be immunized so hypo wouldn't happen.
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Apr 25 • 18 tweets • 3 min read
QUICK THOUGHTS ON TRUMP ARGUMENT TODAY
The basic positions were as follows: Trump wants official acts immunity against criminal prosecution, which is really broad, Special Counsel wants something narrower (or no immunity at all).
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The Court seemed very much inclined to resolve not just the Question Presented (immunity), but a whole smorgasbord of questions about the potential criminal liability of a former POTUS (“FPOTUS”).
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Apr 25 • 73 tweets • 9 min read
I'LL BE LIVE-TWEETING THE PRESIDENTIAL IMMUNITY ARGUMENTS HERE.
For background, here's my segment with @NPR All Things Considered:
Any my @NYT argument that the Court should announce a skinny immunity:
1/npr.org/2024/04/24/119… nytimes.com/2024/02/29/opi…
Sauer (Trump's lawyer) is up giving opening statement now. Opening statement goes straight into parade of horribles - charging Biden for border policies, Obama for Anwar al-Awlaki, Bush for Iraq, etc.
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Apr 22 • 10 tweets • 2 min read
UNDERSTANDING THE FURY ABOUT SHAI DAVIDAI
People outside of uni communities might not understand why there is such a strong reaction to what he’s doing – that is, why so many of us find his narcissistic grandstanding to be especially worthy of peer-group scorn.
If you are a tenured faculty member at university, you are a principal member of a community, and you are expected to take care of other people in it.
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Apr 15 • 14 tweets • 2 min read
TRUMP’S IMMUNITY ARGUMENT CONTINUES TO BE IDIOTIC
Months of opportunity to improve the briefing on his immunity argument, and it’s still just awful.
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It’s still out-of-context quotes from Marbury v. Madison, a smattering of online content speaking to ancillary political points, and a deeply confused understanding of how a favorable finding of presidential immunity would affect his own prosecution.
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Apr 10 • 5 tweets • 1 min read
There's this whole parcel of Presidential Immunity discourse where MAGA pretends that the only thing standing between it and weaponizing DOJ against democratic presidents is a SCOTUS declaration that POTUS has "official acts" immunity rather than some other kind of immunity.
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Like know-nothing demagogues doing "reap/sow" memes and shit, like anybody looks at that movement and thinks that the precise contours of presidential immunity has any downstream effect on efforts to weaponize prosecutors.
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Apr 9 • 13 tweets • 3 min read
THOUGHTS ON SPECIAL COUNSEL'S SCOTUS BRIEF ON IMMUNITY:
SHORT VERSION: PAY ATTENTION TO WHAT HAPPENS ON REMAND.
(1) SCOTUS is very unlikely to recognize official acts immunity, always has been, & the state of the case after principal briefing is unchanged in that respect.
(2) It is possible (and IMHO desirable) for SCOTUS to declare a lower-grade immunity for conduct that necessary to a function that the constitution assigns to the president ("skinny immunity").
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Apr 5 • 4 tweets • 1 min read
HERE'S TRUMP'S PRESIDENTIAL RECORDS ARGUMENT, NUTSHELLED:
Imagine a marble bust of Abe Lincoln sits in the white house and the statute says it can only be moved around by "authorized" personnel, with authorization defined by Executive Order.
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Trump, who is not authorized by the Order, takes Abes' bust to Mar-a-Lago, later declares that the very act of taking it had the effect of a personal-record classification, and that right to declare records to be personal means that he was "authorized" to move it.
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Apr 4 • 5 tweets • 1 min read
I know folks wantto wish mandamus into existence, but a mandamus petition under 28 USC 1651 is literally organized like this:
- Introduction
I. THE TRIAL COURT VIOLATED CLEAR LEGAL DUTY TO DO [X]
I have been asking for 24 hours and nobody has produced anything remotely on the order of what's necessary for (I). Specifically, Cannon has no legal duty, let alone a clear one, to specify her jury instructions before trial.
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Apr 4 • 10 tweets • 2 min read
MOAR EXPLAINING RE: CANNON -
People are suggesting that Smith can mandamus Cannon's refusal to declare the PRA instruction - meaning ask the appeals court (CA11) to require her to do it before jeopardy attaches.
DOJ is just not going to be able to do that, and I wish folks would stop saying that it should. In order to mandamus a judge, it has to be the case that she's failed to do something there is a clear duty to do.
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Apr 3 • 11 tweets • 2 min read
APPELLATE RELIEF IN DOCS CASE
Folks are being a little overly optimistic about Jack Smith’s filing. IMHO there are two things driving that:
(1) A failure to distinguish between a mandamus petition and an ordinary appeal. (2) Confusion about what could be mandamused.
Cannon is indulging DJT’s batshittery about the Presidential Records Act (PRA) and might deliver a jury charge predicated on that error. At that point the jury will have been sworn, jeopardy will have attached, and it will be too late to correct the error.
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Mar 1 • 16 tweets • 3 min read
PRESIDENTIAL IMMUNITY EXPLAINER – TRUMP
1. SCOTUS just agreed to hear whether Trump has “presidential immunity” (PI) for his attempt to fraudulently subvert the 2020 election and stay in power.
1/2. In this context, PI refers to an immunity from criminal prosecution, unique to the president, for in-term conduct.
3. SCOTUS has never recognized any such immunity, so we don’t know what the scope would be if it did exist.
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Feb 6 • 17 tweets • 3 min read
ASTONISHING IMMUNITY OPINION
The DC Circuit took some time, but it sure seems worth it, for two reasons:
(1) The opinion is incredibly thorough and generally strong;
(2) The Panel eliminated what looked like fractures coming out of OA.
(1) There is interlocutory jurisdiction notwithstanding the Midland Asphalt argument;
(2) Former President (FPOTUS) does not have immunity from prosecution even for official acts;
(3) FPOTUS can still be prosecuted even if acquitted by Senate.
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Jan 11 • 5 tweets • 1 min read
Any faithful interpreter of text will read this piece by Mark Graber (@mgraber_), and will refuse to make or indulge further the argument that POTUS can't be DQ'd from future office because POTUS isn't an "officer of the United States."
1/balkin.blogspot.com/2024/01/eureka…
The entire POTUS-is-not-an-officer arguments represent the worst things about the new textualism. If you were to interview those skeptical of judicially applied textualism, they'd tell you that it too often feels like interpreters simply search for data that support
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Jan 9 • 13 tweets • 2 min read
ADDITIONAL THOUGHTS ON TODAY’S DC CIRCUIT (CADC) ARGUMENTS ON PRESIDENTIAL IMMUNITY (PI) (LAYPERSON FRIENDLY).
Today, CADC heard oral arguments on whether DJT has PI for 1/6, in specific reference to Jack Smith’s prosecution in DC.
Trump almost certainly lost 3-0.
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The judges were Henderson (R-appointed), Childs (Biden), and Pan (Biden).
The major issues were as follows.
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Jan 9 • 6 tweets • 1 min read
TRUMP WILL LOSE IN DC DISTRICT COURT, PROBABLY 3-0
Here's why.
On the jurisdictional issue, whether presidential immunity ("PI") can be appealed at this time, Judges Henderson and Pan seems sure that this won't preclude them from reaching the merits.
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Predictably, we start with a Childs question on interlocutory jurisdiction (Midland Asphalt, or MA).
Childs wants to know where presidential immunity is "explicit," which, she says, MA requires that it be.
ANSWER: Article II, Section 1, and impeachment judgment clause.
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Jan 5 • 16 tweets • 3 min read
THE “WHAT ABOUT ANWAR AL-AWLAKI” TALKING POINT
If you spend any time talking with R-side folks about the Trump immunity, they’ll invariably both-sides you with some reference to Anwar Al-Awlaki (AAA), a U.S. citizen that United States killed in a 2011 Yemeni drone strike.
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The strike was a part of a military counter-terror mission. The both-sides talking point is that Obama wasn’t prosecuted for murdering a U.S. citizen, so Trump shouldn’t be prosecuted for official acts that also commingle with criminality.
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Jan 3 • 27 tweets • 5 min read
SOME OBSERVATIONS FROM THE MEADOWS REMOVAL BRIEF, WHICH DOUBLES AS AN OUTLINE FOR OFFICER REMOVAL ARGUMENTS AT SCOTUS.
(AND ALSO AS A TEST FOR WHETHER COURTS ARE GOING TO BUY THE IDEA TRUMP WAS ACTING WITHIN THE SCOPE OF HIS OFFICE.)
First and foremost, Paul Clement filed this brief, so we are getting a window into what the arguments will look like when SCOTUS takes the case. Clement will file the cert petition and argue. For those who don’t follow this world, he’s the R-side’s apex litigator at SCOTUS.
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Jan 3 • 14 tweets • 2 min read
TRUMP’S “BAD ACTOR PROBLEM” WITH PRESIDENTIAL IMMUNITY
I finished reading the DC Circuit Reply.
Trump is on the horns of a dilemma with his presidential immunity arguments.
He has to win 2 positions @ once: (1) that presidential immunity from criminal prosecution exists at all (the existential question); and (2) that if it exists, it covers him (the coverage question).
In making both, he’s got what I’ll call a “Bad Actor Problem.”
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Dec 24, 2023 • 28 tweets • 4 min read
I READ THE TRUMP IMMUNITY BRIEF SO YOU DON’T HAVE TO!
Sometimes the client leaves the lawyer with nothing besides bad arguments, and that’s mostly the case here.
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The primary issue here is whether DJT has “presidential immunity” from criminal prosecution in the DC case, and he’ll lose that before the DC Circuit (“CADC”) – and probably before SCOTUS. There’s a secondary Impeachment Clause argument that is a LITTLE closer,
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