Hi “One First” Subscribers (if you’re not already a subscriber, I hope you’ll consider becoming one)!
Tonight from 8:30–9:30 ET, I’ll do my best, through this Substack thread, to answer your questions about the Supreme Court term that’s now all-but behind us—including today’s ruling in the Trump immunity case; other major decisions from throughout the term; and where we go from here (TL;DR: sigh).
I can’t promise to have all of the answers, but I’ll do what I can to answer your questions.
Hi everyone! Thanks for joining tonight, and for your support of this newsletter.
I'm going to start going through the questions that have already been posted, but please feel free to post new ones, and I'll do my best to get to as many as I can between now and 9:30 ET.
Hi, Steve—Last night was quite a marathon! If you aren’t too worn out to answer a followup, I’d like to rephrase a question you answered in part.
How would legislation passed and signed by a future Congress and President that substantially reconfigures SCOTUS to create term limits and/or increase the number of justices or even just enacts some of the more modest reforms you’ve written about relating to the shadow docket,etc; OR legislation that affects, say, only ethics issues such as recusal, gifts, disclosure and discipline, get to SCOTUS for review.
Thanks to everyone for participating in tonight's SCOTUS Q&A! I hope I got to all of your questions over the last hour, but if I didn't, feel free to e-mail them to me.
I'll also plan to continue discussing a bunch of themes in future issues of the newsletter. I hope you'll consider subscribing if you don't already--or perhaps even upgrading to a paid subscription if you do:
Given the Court's belief in its own peculiar view of separation of powers, if a Congress and White House enacted a law explicitly changing the court's jurisdiction (again), or its size (again), what would be the recourse if some party challenged the law, it made its way to the Court, and the Court invalidated Congress's attempt to manage its scope? Or, given today's decision, is it on the newly-unaccountable Executive to just lock the justices out of the building or throw whatever other tantrum it likes to ignore/constrain the Court?
At some point, isn't it futile for one side to believe in the rule of law while the other parties to the dispute operate without compunction to accomplish their own aims? What remedies does the system offer for circumstances where one party operates in bad faith or without regard to law, norms, and tradition?
I've written before about this, but the reality is that the Supreme Court actually *depends* upon support from the political branches--for everything from its appellate jurisdiction to its ability to hire law clerks (or have a library, or computers, or...). In a world in which the Court was truly perceived to be abandoning the rule of law, presumably the political branches would just destroy it. That's the dangerous slope the Court starts walking down when it seems to show such disinterest in its credibility across wide swaths of the public.
Did Trump v. U.S. even try to square today's decision with Nixon v. U.S.? Or address the issue of grossly unlawful actions taken in connection with areas of presidential authority? Many of Trump's actions were taken more as a candidate than as sitting President. Does that change the impact, or is the distinction impossible to prove in practice?
There's surprisingly (and revealingly) little discussion of Nixon v. U.S. in the majority opinion. I think you can reconcile them at least to some degree, but doing so would require engaging with the very real possibility that, under the logic of Chief Justice Roberts's opinion, Nixon himself couldn't have been prosecuted.
What can Joe Biden do to rein in this dangerous, renegade court, now that he has all this sunny freedom to take official actions truly in the service of the American people?
I have ideas to send this man of actual conscience 👀💡
(And have "they" really forgotten who's President atm?)
To start, it would sure be nice if President Biden made reforming the Court (and making it more accountable) a more visible part of his platform. The Biden campaign's approach seems to be to make everything about Trump. But as today revealed, the Court is a pretty big lightning rod both on its own and even in that specific context.
On the subject of court reform, I think a case can be made that the volume of litigation requires an expansion of the court to allow it to handle more cases. I suggest increasing the court to 15 Justices sitting in three divisions of five Justices with cases and Justices randomly assigned to each division on a case-by-case basis. Decisions on each division should be referred for an en banc review whenever a decision invalidates a Federal or State law as unconstitutional, revokes a prior decision of the Court, or is certified by four Justices not otherwise involved in the case.
We may not have any other choice, except to be dominated, to be witnesses to our own destruction. Since morality has been removed from public life, Democrats had better start immediately to operate under the new rules.
Steve, I respectfully disagree, even while knowing that I have often been wrong when attempting to predict (about the future, which is difficult, as Yogi Berra acknowledged).
Given the astounding decision and opinion on immunity, and the horror that Democrats expect if Trump is elected, I do not think there would be 18 Dem Senators who would vote to convict in a trial of impeachment.
Given his new powers, if he should lose on November 3rd, Biden could do as Trump would do and declare an emergency. We can reasonably believe that Trump would do so, so those opposing him ought not feel bound by rules that he has shown - by creating an insurrection - he will break. It's crazy, but no one ought to refuse to accept the reality that the Supremes have created - if Trump is elected he will do whatever he wants, including refusing to leave office when his term ends. During his term in office he will also destroy the separation of powers, and thereby what we know as our democratic republic. He has promised to do that by stating that he will be a dictator on Day 1.
Taking the long (and optimistic) view, if there is a future Court comprising different justices, could you speak to how such a Court might reasonably go about reversing some of the recent decisions that (e.g.) overturn longheld precedents, dismantle the functionality of the administrative state, weaken civil liberties, or drastically shift the balance of powers? Given the extent to which respect for stare decisis (or lack thereof) has been an issue in arguing some of these cases, how could a future Court reverse some of these decisions that have now become precedents without further weakening the Court's commitment to adhering to prior decisions?
In finding 'special justifications' to reverse these decisions, could it avoid using the methodological tools currently being used by the conservative majority to overturn precedents? And would it be more difficult to reverse course on issues that could theoretically be addressed by Congress (e.g. Congress could redraft ambiguous statutes regarding federal agencies, pass a federal law establishing a right to abortion/reproductive care)?
Dems need to acknowledge that they have lost the battle to keep morality in politics. Start using the new rules immediately. Don't play perpetual defense. I hate that that's where we are, but Trump and SCOTUS have forced the issue.
Ok, Steve, very confused, non-lawyer here. Why does Chevron step 1 not just make the whole "need" to overrule it irrelevant? What stops any court (not subject to binding precedent; so, ya' know, not anyone in the Fifth Circuit) from just finding that the statue is not ambiguous and proceeding from there? If the courts already have control of the issue because of step 1, how are hampered by Chevron in the slightest?
This is a really good question that's hard to answer in this format. It's certainly true that tools were available for courts to disregard agency interpretations long before Friday's ruling in Loper Bright. I think the key is that the ruling formalizes that in a way that even more conscientious judges will be bound to follow. It's the final nail in the coffin, if you will--not the first step down the slippery slope.
Fortunately, I don't! (Although teaching Federal Courts this fall will be ... a challenge.
But taking your question seriously, I think there's still a lot to teach about why agencies are valuable, how agencies are controlled, and what agencies could do, even in a post-Ohio v. EPA, post-Loper Bright, post-Corner Post world to try to put their decisions on the strongest possible legal footing.
How do lawyer's in the private sector challenge rules rules on subjects that the Courts simply are unequipped to understand? Roberts says the Courts can deal with technical "Statutes" but in the APA case the courts are not dealing with statutes; they are dealing with Rules which are intended to implement statutes. Doesnt the demise of Chevron simply allow the Court to make unfettered and unreviewable political decisions that cannot be rationally challenged or suported?
A slight amplification if it is not too late. Roberts points out that statutes are ambiguous for several different reasons one of which is that the drafters deliberately were evasive in order to secure the votes necessary for passage. That is correct/ Adminstrative Lawyers call that l "studied ambiguity." But it seems that Robert's is saying that i in such cases, it is up to the Court to decide whether the Bill would have passed had the statute been clarified before the vote Is that how this decision is to be understood? And, if so, how is the Majority to decide that a particular statute was studied ambiguity in light of the fact that that often emerges from a close reading of the Legislative History which the Majority say is irrelevant?\
I'm getting a bit lost in the details here, but I think the short version is that this is going to be a big fight going forward--about exactly how far past the text of a statute courts should go in trying to answer that question.
The APA says the court's can only reject a rule if it is arbitrary ,capricious or contrary to law. Once you get passed the contrary to law--which is whether Congress delegated the power--- it is none of the Court's business what Congress intended or how the vote would have goneif a different statute had been passed.
It's certainly going to rain pretty hard for awhile. I think the question is whether the efforts are going to be targeted at specific rules/specific agencies, or whether it's going to be a wholesale assault on a dizzying array of long-settled rules. If it's the latter, it wouldn't shock me if the Court were to undertake a bit of a course correction (much like Rahimi vis-a-vis Bruen). Because I don't think a flood would be sustainable on the courts' side.
If Judge Chutkin makes factual rulings within the confines of this outrageous Supreme Court decision, is it not the case that Trump will appeal any or all of her findings? If so, isn't it a sham to have a trial court make the "factual rulings" only for it to reverse her on appeal on her decisions of what is "not an official act" Has not the Supreme Court just disguised the fact that it has not only declared itself an imperial court , but has also made the Presidency an imperial branch, thereby obliterating the separation of powers?
My theory is that the lack of specificity around the parameters of the immunity ruling is designed to give the RW bloc wiggle room for "adjusting" those specifics upon inevitable and imminent appeal, depending on the outcome of the upcoming POTUS election.
Call me jaded, but I'm just responding to what's observable under Roberts' watch, especially the last 8 years.
I would ask Steve whether he thinks such speculation is specious or warranted?
Good questions Bruce. IMO those questions are not 'specious'.
May I have Steve's & the Community's permission to develop Bruce's "lack of specify" observation. First, I think Bruce is dead on.
Is today's Opinion purportedly "one for the Ages" or is it 'dicta' about what acts are "official acts" or 'unofficial acts." I realize Roberts said that the "Seal Team 6" extra judicialkillings of an "Opponent" was "fanciful" but, what about "Hang Mike Pence" or kill my Vice President if he does not carryout my Coup?
Trying to tackle this whole thread in one response, I actually think that both the D.C. Circuit and SCOTUS would probably give a fair amount of deference to Judge Chutkan's application of today's ruling on remand. The problem is that, by the time that happens, either Trump will have been elected (in which case, the matter will shortly become moot) or he will have been defeated (in which case, the prosecution will go forward anyway).
But since the Court says the immunity is the sort that protects not just against liability but even against trial, the dist j's rulings on "official" or "not official" and "presumption of immunity overcome" or not, will be subject to interlocutory appeal(s), allowing the Oathbreaking Insurrectionist (see Trump v. Anderson, concurring op. of Sotomayor, Kagan, and Jackson, Jj.) to skate for life even if he loses the election so badly he admits it (yeah, right). Which suggests the question: if he wins, what kind of odds can I get on the prediction that the Court will deny the validity of a self-pardon for all acts before, during, and after a term, or any of those?
Joan, I thinkSteve will agree, IF there is Jury Trial, the Jury weighs the evidence and answers the Verdict Form(s). However, (there's always a'however') some facts may be litigated pre-trial in a motion for Summary Judgment under Federal Rule of Procedure & Evidence if there are any "Undisputed Facts" or matters accepted via "Judicial Notice".
Please explain how Jack Smith can try to prove his J6 case against Trump in light of the evidentiary rule set forth in Section III-C of today's decision? Thank you.
Sorry I missed this in my first run-through. I think this is the hardest and most troubling part of the whole ruling (and why Justice Barrett wouldn't join it). I suspect that Smith can take advantage of footnote 3 to use public statements and other items in the public record as much as possible to substantiate the charges in the indictment (or to file a superseding indictment). But his job definitely just got a lot harder.
What’s your take on Justice Barrett’s emerging jurisprudence, especially with respect to how history should be used in answering constitutional questions?
I don't think there's any doubt that Barrett's writings are the most *interesting* that we're seeing this term, even if there are other justices with whom I'm more likely to agree. She seems to genuinely be struggling, at least in her written opinions, with faithful application of her principles. I'm writing a piece, hopefully to be published later this week, about the virtues of her approach. What's remarkable is how quickly she seems to have been outpaced to her *right* not just by Thomas, Alito, and Gorsuch, but by the Chief Justice and Justice Kavanaugh, too.
Samuel. I am more interested in Justice Kentanji Brown's Dissentfocusing at one point on the Majority's barring of evidence of the "unofficial actor's" intent to storm the capitol, disrupt Congress, kill Mike Pence, on any actus rea or mens era like intent to electrocute policemen, hunt for the Speaker of the House and/or carry out hundreds of other intended criminal acts.
I am still reeling from the death of Chevron. But with respect to the Trump immunity decision, can you explain what the state of the law was re presidential immunity for criminal prosecutions before today’s decision? I thought it was kind of undecided but with a lot of language from the Nixon era pointing to no such immunity.
Formally, of course, it was unsettled. But at least within the executive branch and the Court, the understanding was that at least *former* presidents could be prosecuted. You see that in OLC memos about why *current* presidents couldn't be; you see it in the various opinions (and justices' papers) in Nixon v. Fitzgerald, where justices on *both* sides of the 5-4 decision assumed criminal prosecution was available. So...
Now I wish the Founders had incorporated the Federalist Papers into the Constitution, even if it was just explanatory Appendices — so much for history and tradition, textualism, conservatism and Originalism in one fell swoop.
Sorry I missed this hour. Just wanted to convey my appreciation for your willingness to help. I’m honestly having a hard time bringing myself to think about what this could mean.
You and me both. But this is just the beginning. There'll be a lot more discussion of these topics (and others) in this newsletter and elsewhere as the summer goes on.
In light of the immunity decision, any thoughts on why the founders apparently consciously did not provide for presidential immunity, yet made a point of providing legislative immunity for Congress in the Constitution? Hard to think of it as somehow an oversight.
Yeah. The contrast between the Speech or Debate Clause and the ... silence ... of Article II ought to be deafening, at least to those who think the Constitution should be interpreted to be consistent.
Seen from Earth the other planets appear to perform a slow, graceful dance, at times drifting back, pausing, then moving forward again. If they orbited the Earth this dance would punctuate circular orbits with smaller circles called epicycles. Kepler placed the Sun at one locus of elliptical orbits and assigned an orbit to the Earth. Epicycles resolved entirely into smooth orbits. Galileo peered through a newly-invented telescope and agreed at least in part. Clinging to its epicycles the Church placed him under house arrest. But you can’t change reality by arresting it. When another analysis makes more sense than my own I naturally start looking for textual support for mine, but when it becomes building epicycles it’s time to admit the other analysis works better.
The DC Circuit held:
- former presidents share sitting presidents’ absolute immunity from civil suit for official (but not private) acts;
- the interest in criminal prosecution shared by the people and the Executive branch overcomes immunity in most cases;
- not only does separation of powers not bar the Judicial branch from prosecuting Executive officers, it compels it.
- the Impeachment Judgment clause does not bar criminal prosecution of an officer who hasn’t been impeached;
- any officer immunity against indictment and criminal prosecution ends when the officer returns to private life;
- double jeopardy does not bar prosecution because impeachment conviction can only impose loss of office and perhaps disqualification from future office, which are not criminal punishments.
“Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct…It would be a striking paradox if the president, who alone is vested with the constitutional duty to “take Care that the Laws be faithfully executed,” were the sole office capable of defying those laws with impunity.”
Would prosecution conflict with the branch’s functions? Immunity would. The Circuit finds “a profound Article II interest in the enforcement of federal laws. The President has a constitutionally mandated duty to “take Care that the Laws be faithfully executed.” (art II§3).
SCOTUS held in Butz v Economou, 438 US 478, 506 (1978), “[A]bsolute immunity is essential for the conduct of the public business.” But defeating the public interest in officer accountability poses a far more serious danger to the conduct of the public business.
And the interest in criminal accountability “held by both the public and the Executive Branch” outweighs slim risks of vexatious prosecution & chilling presidential action.
The Circuit holds for the first time and persuasively that the separation of powers doctrine requires the Judicial branch to hear prosecutions involving official Executive acts because if guilty the president defied the Legislative branch’s laws.
“President Trump’s stance would collapse our system of separated powers by placing the president beyond the reach of all three Branches."
The judiciary must perform its role against officers of other branches. That's part of its job. Doing your OWN job does not violate the separation of powers regardless of its object. Only doing another branch’s job does.
Mr. Trump’s brief argues Fed No 77 in error. The phrase “only as to the president” only applies to the sitting president. The purpose of any immunity is uninterrupted conduct of the people’s business. Two circumstances allow prosecuting an officer: their leaving office, or their being convicted in the Senate - which results in their leaving office. Former officers may be prosecuted because when Article II §4 establishes Congress’ impeachment jurisdiction it excludes civilians. As the text must be read to make literal sense, the fact that former officers can’t be impeached means they needn’t be. It can’t be read to create two classes of civilians and immunize one. The Justice mandate and Titles of Nobility clauses bar that.
The Circuit notes that presidents know the impeachment judgment clause empowers prosecution after conviction so anything that could be chilled would be chilled anyway. Nor have they behaved as though they expected immunity.
- Mr. Clinton made a non-prosecution deal on leaving office.
- No constitutional problem was cited in President Ronald Reagan’s case. A junior officer fell on his sword and Mr. Reagan denied knowledge.
- President George W. Bush’s actions were cloaked in false statements & benefitted from anger over 9/11.
- President Richard M. Nixon was only spared prosecution by pardon. That certainly contemplated prosecution.
And the Circuit points out a danger. The Impeachment Judgment clause applies to all civil officers, so exempting former presidents would exempt all former officers.
Here's doctrine. When the text chooses an option it rejects all competing options.
- To expressly vest something sets expression as the required standard for that thing. It can no longer be vested by implication. The text has bound itself.
- To vest something only narrowly prohibits reading that thing as broad, even in another office, unless its vestiture in the second office is expressed as broad. We can no longer imply breadth for that thing. The text has bound itself. If the reason for narrowness is significant to the first vestiture while not to the second, we can try an argument - but we have to beware of epicycles.
The people ordain the Constitution by our preexisting rights, liberties, and powers. We have them all. Why does the text expressly protect some? It is imposing civic duties. While Amendments IX and X reserve our liberty to perform, vest, or ignore them, we ignore them at our peril.
By broadly honoring a right to petition for redress of grievances Amendment I’s Petition clause also imposes a broad duty to oversee government action. No time limit. No subject matter limit. No required office (in case that officer is the aggriever). The only checks are those expressed in other text.
Article I §6 expressly immunizes members of Congress against criminal charge or civil suit for 2 acts of office: speaking or debating in either House. It also immunizes members against arrest in either chamber, or when on their way to or from the Capitol. Then it checks the immunity for treason, felony, and breach of the peace.
This is as narrow as the text gets. Which acts of office are immunized? These. When can a member be arrested? Any time but these times. Any exceptions? Yes, for these charges, but for none other.
And who is immune? The text expressly grants some 25 narrow immunities but as you pointed out, only Congress is immunized against arrest or civil suit. Immunities are granted.
ITM Article I §3 subjects at least officers convicted in the Senate to other indictment, trial, judgment, and punishment, expressly including the president.
Amendments IV-VIII honor rights and liberties people retain during investigation, arrest, trial, and punishment, and in most civil suits. It makes no distinctions among current officeholders, former officeholders, and people who’ve never held office. Any executive immunity could easily have been set among these. None is.
The text’s final word:
Only a few offices, those with sole powers we must have available at all times, have understudies. Article II expressly creates a vice presidency in case the president is removed from office, dies, resigns, or can't discharge the office's powers & duties. Amendment XXV even establishes procedure for a temporary leave of office.
SCOTUS ignores it. SCOTUS doesn’t build a strong case for its opinion but lists a disconnected series of rebuttals of the Circuit from statute, caselaw, or a weaker use of doctrine. None addresses the people’s interest. They read like epicycles to maintain executive immunity.
You clearly were not surprised by the last two weeks (congratulations on the calls, doesn't make the outcome any better). With the composition of the Supreme Court unlikely to change until after the election (get even worse if Trump elected), besides voting for more reasonable elected officials down the ballot, what else can be done? Is it as hopeless as it feels given the candidates, the inability of Congress to enact legislation, the recent actions by Oklahoma and Louisiana to obliterate the Establishment clause, etc.?
The most important thing I can say tonight is DON'T BE HOPELESS. Talk to your friends. Talk to your family. Talk to Yankees fans, if you can stomach it. Talk about why the courts matter to them--and why they should vote like courts matter to them. And then talk some more.
I think the Court "showing themselves" so thoroughly may work to Biden's advantage. The mask is pretty much completely off at this point, and Trump is clearly responsible for it. "Keep talking" is a great takeaway, especially with the people we love.
(Gotta think hard about the Yankee fans part tho ☺️)
It's incumbent on the current administration to use all of the tools newly available under SCOTUS 's decree to disable the opponents who are assaulting our rule-of-law system. Imagine what a second Trump administration would do to its opponents, and do it to them first.
Steve, Thanks for opining and the coverage of SCOTUS>
Nature abhors a vacuum . And the Constitution apportions powers between three bodies. Within the Constitution, as you have explained, SCOTUS is both the ultimate Appellate court, and a court of original jurisdiction. Original jurisdiction seems to be clearly described in the Constitution. What is not described is the Appellate functions, and those seem to be designated by Congress. So in this three way power sharing arrangement, only one branch's functions are decided by statue -- the Court system (including the SCOTUS - outside original jurisdiction). The Constitution also is silent on Judicial Review. -- as I understand it the idea of deciding that a law is counter to the Constitution, as opposed to simply applying the statue to a case before it. (I fail to see how an Originalist interpretation allows judicial review.)
So my question is around the decisions this week that clearly shift power to the COURTs and away from both the Executive and Legislative branches. How would you suggest Congress practically reduce the scope of SCOTUS impact on daily American life? What would you suggest is an equitable distribution of power between the three branches? To use a baseball analogy, we need a referee, but we don't want them to have power over the rules, the teams, the fields or the players. We only want them to have power to call the acts within the game. (Paraphrasing Roberts "only calling balls and strikes")
I've written about this a bit in the newsletter, but to me the real problem is how unaccountable the Court has become. The way back up the mountain is for Congress to work on restoring accountability--an inspector general; docket reform; budget reform; etc. Not the super-political stuff that never has a chance, but "make the Court a coordinate branch of government" again types of reforms.
Alas, the Commission didn't make that many specific recommendations. And the ones it made depend upon support from both chambers of Congress. But I certainly *do* think we should be having serious discussions about meaningful Court (and court) reform--and wish the Biden campaign was more involved in pushing for them.
Please either today or this summer wrote about Jarkesy. It seems to be a huge judicial over-reaching, and because it's a constitutional interpretation can be much harder to overturn or address than Loper Bright Enterprises
Could President Biden, as an official act, add 4 (or more) Supreme Court justices? Could he make Hakeem Jeffries Speaker of the House? Could he get rid of the filibuster? (These are honest questions.) I guess it comes down to asking if there's anything President Biden can do to take advantage of today's destructive Supreme Court decision?
Lynn -- He could probably go on a carefully thought-out crime spree (seriously) without fear of either being convicted by the Senate after the House impeaches him, or criminal prosecution after he leaves office. Of course he won't.
What he should *really* do is start making the Court a bigger part of his re-election campaign. So far, it's all Trump, all the time. But the Court ought to be part of the story, too.
So, uh, what's the point of § 553 now? (Other than in instances where the statute requires N&C.)
Notice and comment for funsies? Skidmore "respect"? What's the point of building a rulemaking record if it's all a suggestion that a judge can discard because he/she/they think that the agency didn't come up with the "single, best meaning"? Does this spell the end of § 553(b) claims?
This is why Ohio v. EPA is, in some respects, an even bigger ruling than Loper Bright. I think the hard question going forward is whether Gorsuch's ... casual ... relationship with the record will set a precedent, or whether lower courts will try to be more faithful to the kind of review that 553 sure seems to contemplate. Maybe if the next case isn't an environmental law case, the justices will be a bit more circumspect?
People in the midst of crisis often don't recognize the problem until it's past remedy. And this is a crazy thought in and of itself:
As a thought exercise, what would happen if the judiciary branch as a whole were to take the Andrew Jackson position about unmoored decisions from the top level of the court system? ('John Marshall has made his decision, now let him enforce it.') I.e. if, rather than resigning en masse, the judiciary were to down tools in response to 'crazy' decisions without coherent reasoning in them. The Court relies on the belief among the broader community that it's legitimate.
Given that the Executive is not bound by criminal law for official acts, what remedy does a future Court have if the Executive didn't comply with orders from the court, be they reversals of conviction, orders overturning sentence, voiding indictments, etc? How is the immunity decision not the thin end of an impossible wedge even for the Court's authority itself?
This is why I've been sounding alarm bells about the implications of the Court's eroding credibility for some time now. The Court's power is far more fragile than we often appreciate. And the justices ought to be invested in burnishing the Court's credibility, not eroding it.
If trump wins in November, what steps does the government take to preserve and protect all the evidence and hold it safely in isolation until the 25-28 term is concluded? My fear is that government's evidence against trump and in a trump justice department might be subject to official presidential acts of spoliation. Is there any protocol for sealing off access to the evidence?
This is a well-thought-out concern. Hopefully, the relevant executive branch agencies could use the long lame-duck period (all the way to January 20) to make as much of a public record as possible...
Steve: Thanks for making yourself available for this seminal issue. In your view, does immunity arrogate by association to those who carry out an ordinarily illegal or criminal act at the direction of a now immune president or, are they subject to prosecution for the acts, even if the president isn't?
Maybe it should be a . . . *qualified* immunity? We can't have a bold and decisive president if his subordinates are worried they might be prosecuted for executing his orders and carrying out his plans, right?
So maybe subordinate executive officials could be prosecuted only if -- stay with me; I'm just thinking out loud here -- (1) the alleged crime was an unofficial act, and (2) it was *clearly established* that it was an unofficial act.
Yes, that all sounds sensible and easy to administer and just.
I actually think one of the ironies is that the subordinates remain completely criminally liable for doing only what the President told them to do. The problem is that the President retains the pardon power, so unless the subordinates were also violating *state* law, the President could say "do this for me and I'll pardon you," and, unless the subordinate had enough of a conscience to resign, that might actually work.
You answered one of my questions below. But I don't see why the imminity reasoning of the Court today couldn't be applied to subordinates acting at the direction of the president.
Sorry! There's no plausible argument that Article II of the Constitution protects subordinates the same way it protects the President. And the Supreme Court specifically held to the contrary in the civil damages context in Harlow v. Fitzgerald:
Not sure that would apply to Seal Team 6 carrying out what would be an ordinarily unlawful order under the military Code of Conduct. Lawful orders must relate to military duties.
I’m actually as concerned about Corner Post as the Chevron reversal. As I understand Corner Post, going forward any regulation can be challenged by simply forming a new company and claiming that you never had a chance to challenge it previously. It seems as any finality with respect to regulations promulgated through fully legitimate means can be subject to challenge at any future time
Yup. This is not an unreasonable reading of Corner Post. The good news, if there's good news, is that this is an easier fix than Chevron. All it would take is a right-thinking Congress passing a one-sentence statute. Maybe if we see a real flood of lawsuits, we'll see a push for that kind of statutory reform...
I saw somewhere that today’s ruling holds that prosecutors can’t even introduce evidence of official presidential acts into the record to prove the criminality of an unofficial act. Is that true?
This, to me, is the mind-boggling part of today's ruling. The Court held that evidence of official acts *can* be introduced if it's in the public record (see footnote 3), but not if it's not. I'm not sure how that line would hold (e.g., if the official act is secret when it happens, but become public later). But it's the exact point on which Justice Barrett broke from the majority--not just because it wasn't really presented, but because it's crazy. She's right on both counts.
Steve: Any idea from where in the Constitution, or anywhere in the history of US jurisprudence, for that matter, the Imperial Court majority derived its theory of presidential immunity?
To be fair, the Court has long taken an approach to interpreting Article II that reads a *lot* of stuff into it that isn't obviously there. The problem isn't the argument that we can make structural inferences from the Constitution; the problem is the justices' selective application of that principle.
What are the odds that if Trump gets elected and impeached again, his attorneys will still argue that criminal prosecution, not impeachment and removal, is the proper remedy for whatever he did that led to impeachment? (I'd say north of 50 percent.)
1) That the decision transfers a whole lot of power from agencies to courts in contexts in which we really would rather have scientific or public policy experts making the relevant calls; and
2) That the decision is made even more important by today's ruling in Corner Post, which opens the door to contemporary challenges to old (and long-settled) rules and regulations.
Thank you, this was so helpful. I suspect you'll be asked to be a guest on a lot of podcasts and news shows because of your expertise. If I remember correctly, you already have had some appearances.
If you take J. Sotomayor's 3 horribles: 1) Seal team shooting; 2) mounting a coup; or 3) taking a bribe for a pardon, is there enough wiggle room left in the official act vs. unoffical act distinction to hold that they are, unofficial acts, and thus outside the absolute immunity bar given to "core constitutional functions," assuming that you could prove that he was doing it solely for his personal benefit?
Also how much of the "guidance" on making the determination between official and unofficial is dicta? CJ Roberts specifically says that question is not before them, not adequately briefed, but then makes at least one definitive holding on that basis, carving out the communications with the Acting Attorney General.
Yeah, there's a lot of nuance here. The big question the Court doesn't answer is what *makes* an official act "official"? Is any order the President gives to a soldier an official act because of the Commander in Chief Clause? Or must the order have some specific substantive content? There's definitely wiggle room, but there aren't exactly going to be a flood of cases for the lower courts to flesh these points out...
What is the practical legal implications of ‘presumptive’ immunity? Is it a gating factor at trial before ‘presumed’ innocent? In other words, will there be an evidentiary hearing to determine whether the acts are ‘presidential’ and therefore immune or not? And are those evidentiary hearings inherently jury verdicts? And then once they are found to be ‘non presidential’ does this same jury hear the facts for determining a guilty or not guilty verdict?
Evidentiary hearings would presumably be before the trial judge alone. The issue is putting the burden on the government to overcome the presumption. Even if it can, it will take time (including the interlocutory appeals you contemplate). So even those prosecutions that can go forward after today will take ... a long time.
It's not clear to me if it will affect whether evidence that can't be used against a former President under today's ruling *can* still be used against them. I assume the answer is "yes," but if so, then the effects should be pretty modest. The larger concern is the specter of Trump pardoning all of his co-conspirators the day after he is sworn back into office next January.
I have to admit I haven't read the case yet. How did this majority reconcile their result based on the Constitution and the associated history. Is it just "separation of powers" period?
There are decent and plausible purposive-based arguments about interference with presidential prerogative. The problems are: (1) the hypocrisy of the justices making those atextual, unoriginalist arguments; (2) the completely unnecessary additional holding about not being able to use immunized conduct even as *evidence*; and (3) the lack of clarity about where the line is between those acts that can still be prosecuted and those that can't (the official/unofficial line).
Does this morning's Immunity Decision mean that "President-read-King Joe" can nationalize the Florida National Guard, then order them to detain a certain DJT indefinitely?
Perhaps without fear of criminal prosecution when he's no longer president. But he'd certainly be impeached for it; he'd probably be removed by the Senate; and he'd certainly lose the election.
As I recall, the only direct acts associated with the NYS records falsification/election interference ("hush money") case which occurred while Trump was pretending to be president were signing reimbursement checks for Michael Cohen --- clearly personal.
I think it raises *questions* about whether he can challenge any of the evidence that was admitted in the New York trial on the ground that it's constitutionally protected conduct under the rationale of Chief Justice Roberts's majority opinion. But the answer may well be "no." Beyond that, I don't think there are other implications for the NY conviction.
Update: 2 docket entries, 2 Hail Mary's, have been entered in Judge Merchan's case: (1) Trump's Attorney have requested a continuance of the Sentencing Hearing: (2) Trump' Attorneyss have or will file a Motion claiming the SCOTUS's decision a Federal Court Opinion can in some manner insulate Trump from New York Jury Verdicts (plural) that have been entered as a matter Law.
Thanks for the update. I can't wait to see how they justify paying off a porn star Trump slept with through his personal and business accounts as official conduct.
Certainly Patricia, under the New York state law Trump falsified his own personal business records with the specific intent to commit other Felonies , 34 other Felonies.
If you mean the ones in New York, I'd have to think the answer is certainly no, because those were based on his personal conduct (falsifying business records related to his own company). But I wouldn't put it past him to try and argue now that those were somehow official acts. (I'm not sure if he already tried to raise that argument in that case. If he didn't, he'd have a tough time trying to get a court to even consider it now. And on the merits it seems dubious, although he'd probably get at least 2 or 3 votes from this Supreme Court.)
The Justices sometimes put out calls to advocates to bring certain issues to them—i.e., “we save for another day the question of _____”. Any calls like this stand out to you this term?
Justice Thomas today invited challenges to the constitutionality of the Special Counsel. (It took some real chutzpah to do that in a case from which he should have recused himself.)
Steve: What's your take on the use of "official acts" criminal evidence in a prosecution? There seems to be some of Roberts' usual doublespeak on the matter in the decision.
I just touched on this above in my response to @Trich, but this, to me, is the most mind-boggling feature of the majority opinion. The idea that prosecutors can't use evidence of official acts to prosecute unofficial acts just ... makes no sense. My hope is that footnote 3 makes this a less significant point than it appears to be, but I think it can be argued both ways...
Thank you for hosting this. As much as I am disappointed by the majority opinion, do you think the majority was at least partially thinking of stopping the cycle of administrations prosecuting their predecessor (i.e., if we imagine a scenario of Trump winning in November)? I know, it would be a very benign read of the opinion.
I wrote about this a bit after the argument in April. I'm sure that's at least part of it. But there are so many ways to write an opinion that addresses (and accounts for) that concern without going nearly as far as the Court went today.
The problem is that (1) succeeding presidents can revoke it; and (2) the existence of a new EO will be taken as evidence that it wasn't already clear prior to the EO.
Hi everyone! Thanks for joining tonight, and for your support of this newsletter.
I'm going to start going through the questions that have already been posted, but please feel free to post new ones, and I'll do my best to get to as many as I can between now and 9:30 ET.
Hi, Steve—Last night was quite a marathon! If you aren’t too worn out to answer a followup, I’d like to rephrase a question you answered in part.
How would legislation passed and signed by a future Congress and President that substantially reconfigures SCOTUS to create term limits and/or increase the number of justices or even just enacts some of the more modest reforms you’ve written about relating to the shadow docket,etc; OR legislation that affects, say, only ethics issues such as recusal, gifts, disclosure and discipline, get to SCOTUS for review.
And would the Court have authority to decide the Constitutionality of legislation affecting itself?
Thanks to everyone for participating in tonight's SCOTUS Q&A! I hope I got to all of your questions over the last hour, but if I didn't, feel free to e-mail them to me.
I'll also plan to continue discussing a bunch of themes in future issues of the newsletter. I hope you'll consider subscribing if you don't already--or perhaps even upgrading to a paid subscription if you do:
https://stevevladeck.com/subscribe
Thanks everyone--and have a good night.
-steve
You can post your questions as replies here, and I'll do my best to start answering them at 8:30 ET!
Given the Court's belief in its own peculiar view of separation of powers, if a Congress and White House enacted a law explicitly changing the court's jurisdiction (again), or its size (again), what would be the recourse if some party challenged the law, it made its way to the Court, and the Court invalidated Congress's attempt to manage its scope? Or, given today's decision, is it on the newly-unaccountable Executive to just lock the justices out of the building or throw whatever other tantrum it likes to ignore/constrain the Court?
At some point, isn't it futile for one side to believe in the rule of law while the other parties to the dispute operate without compunction to accomplish their own aims? What remedies does the system offer for circumstances where one party operates in bad faith or without regard to law, norms, and tradition?
I've written before about this, but the reality is that the Supreme Court actually *depends* upon support from the political branches--for everything from its appellate jurisdiction to its ability to hire law clerks (or have a library, or computers, or...). In a world in which the Court was truly perceived to be abandoning the rule of law, presumably the political branches would just destroy it. That's the dangerous slope the Court starts walking down when it seems to show such disinterest in its credibility across wide swaths of the public.
Did Trump v. U.S. even try to square today's decision with Nixon v. U.S.? Or address the issue of grossly unlawful actions taken in connection with areas of presidential authority? Many of Trump's actions were taken more as a candidate than as sitting President. Does that change the impact, or is the distinction impossible to prove in practice?
There's surprisingly (and revealingly) little discussion of Nixon v. U.S. in the majority opinion. I think you can reconcile them at least to some degree, but doing so would require engaging with the very real possibility that, under the logic of Chief Justice Roberts's opinion, Nixon himself couldn't have been prosecuted.
I can't ask this nicely, so I'll just ask it:
What can Joe Biden do to rein in this dangerous, renegade court, now that he has all this sunny freedom to take official actions truly in the service of the American people?
I have ideas to send this man of actual conscience 👀💡
(And have "they" really forgotten who's President atm?)
To start, it would sure be nice if President Biden made reforming the Court (and making it more accountable) a more visible part of his platform. The Biden campaign's approach seems to be to make everything about Trump. But as today revealed, the Court is a pretty big lightning rod both on its own and even in that specific context.
Other Substack writers and pundits are also calling for Court reform to be a big part of Biden's campaign.
On the subject of court reform, I think a case can be made that the volume of litigation requires an expansion of the court to allow it to handle more cases. I suggest increasing the court to 15 Justices sitting in three divisions of five Justices with cases and Justices randomly assigned to each division on a case-by-case basis. Decisions on each division should be referred for an en banc review whenever a decision invalidates a Federal or State law as unconstitutional, revokes a prior decision of the Court, or is certified by four Justices not otherwise involved in the case.
Why can’t Biden do as he pleases and damn the consequences according to this ruling?
(1) He'd be impeached (and perhaps removed);
(2) He'd lose the election; and
(3) He believes in the rule of law.
Yeah, let’s not become the thing we are fighting against!
We may not have any other choice, except to be dominated, to be witnesses to our own destruction. Since morality has been removed from public life, Democrats had better start immediately to operate under the new rules.
Steve, I respectfully disagree, even while knowing that I have often been wrong when attempting to predict (about the future, which is difficult, as Yogi Berra acknowledged).
Given the astounding decision and opinion on immunity, and the horror that Democrats expect if Trump is elected, I do not think there would be 18 Dem Senators who would vote to convict in a trial of impeachment.
Given his new powers, if he should lose on November 3rd, Biden could do as Trump would do and declare an emergency. We can reasonably believe that Trump would do so, so those opposing him ought not feel bound by rules that he has shown - by creating an insurrection - he will break. It's crazy, but no one ought to refuse to accept the reality that the Supremes have created - if Trump is elected he will do whatever he wants, including refusing to leave office when his term ends. During his term in office he will also destroy the separation of powers, and thereby what we know as our democratic republic. He has promised to do that by stating that he will be a dictator on Day 1.
Biden and the Dems had better not wait. Start going after their opponents now. Start now to operate under the new rules.
Thank you!
Taking the long (and optimistic) view, if there is a future Court comprising different justices, could you speak to how such a Court might reasonably go about reversing some of the recent decisions that (e.g.) overturn longheld precedents, dismantle the functionality of the administrative state, weaken civil liberties, or drastically shift the balance of powers? Given the extent to which respect for stare decisis (or lack thereof) has been an issue in arguing some of these cases, how could a future Court reverse some of these decisions that have now become precedents without further weakening the Court's commitment to adhering to prior decisions?
In finding 'special justifications' to reverse these decisions, could it avoid using the methodological tools currently being used by the conservative majority to overturn precedents? And would it be more difficult to reverse course on issues that could theoretically be addressed by Congress (e.g. Congress could redraft ambiguous statutes regarding federal agencies, pass a federal law establishing a right to abortion/reproductive care)?
Dems need to acknowledge that they have lost the battle to keep morality in politics. Start using the new rules immediately. Don't play perpetual defense. I hate that that's where we are, but Trump and SCOTUS have forced the issue.
Ok, Steve, very confused, non-lawyer here. Why does Chevron step 1 not just make the whole "need" to overrule it irrelevant? What stops any court (not subject to binding precedent; so, ya' know, not anyone in the Fifth Circuit) from just finding that the statue is not ambiguous and proceeding from there? If the courts already have control of the issue because of step 1, how are hampered by Chevron in the slightest?
This is a really good question that's hard to answer in this format. It's certainly true that tools were available for courts to disregard agency interpretations long before Friday's ruling in Loper Bright. I think the key is that the ruling formalizes that in a way that even more conscientious judges will be bound to follow. It's the final nail in the coffin, if you will--not the first step down the slippery slope.
So what happens when a judge makes a wrong decision about a medication, and people die as a result? Can that judge be sued?
For better or worse, the answer is no: Judges have absolute immunity from suit for damages for bad things that happen as a result of their rulings.
I read a blog piece earlier today along these lines.
https://www.dorfonlaw.org/2024/07/is-loper-bright-big-deal.html
What do law school professors who teach administrative law do now?
Fortunately, I don't! (Although teaching Federal Courts this fall will be ... a challenge.
But taking your question seriously, I think there's still a lot to teach about why agencies are valuable, how agencies are controlled, and what agencies could do, even in a post-Ohio v. EPA, post-Loper Bright, post-Corner Post world to try to put their decisions on the strongest possible legal footing.
How do lawyer's in the private sector challenge rules rules on subjects that the Courts simply are unequipped to understand? Roberts says the Courts can deal with technical "Statutes" but in the APA case the courts are not dealing with statutes; they are dealing with Rules which are intended to implement statutes. Doesnt the demise of Chevron simply allow the Court to make unfettered and unreviewable political decisions that cannot be rationally challenged or suported?
Yes.
A slight amplification if it is not too late. Roberts points out that statutes are ambiguous for several different reasons one of which is that the drafters deliberately were evasive in order to secure the votes necessary for passage. That is correct/ Adminstrative Lawyers call that l "studied ambiguity." But it seems that Robert's is saying that i in such cases, it is up to the Court to decide whether the Bill would have passed had the statute been clarified before the vote Is that how this decision is to be understood? And, if so, how is the Majority to decide that a particular statute was studied ambiguity in light of the fact that that often emerges from a close reading of the Legislative History which the Majority say is irrelevant?\
I'm getting a bit lost in the details here, but I think the short version is that this is going to be a big fight going forward--about exactly how far past the text of a statute courts should go in trying to answer that question.
The APA says the court's can only reject a rule if it is arbitrary ,capricious or contrary to law. Once you get passed the contrary to law--which is whether Congress delegated the power--- it is none of the Court's business what Congress intended or how the vote would have goneif a different statute had been passed.
I will ask my Sister in Law, a Law School Professor and an expert on "standing".
Do you see any reason not to expect an absolute deluge of lawsuits on all kinds of regulations?
It's certainly going to rain pretty hard for awhile. I think the question is whether the efforts are going to be targeted at specific rules/specific agencies, or whether it's going to be a wholesale assault on a dizzying array of long-settled rules. If it's the latter, it wouldn't shock me if the Court were to undertake a bit of a course correction (much like Rahimi vis-a-vis Bruen). Because I don't think a flood would be sustainable on the courts' side.
If Judge Chutkin makes factual rulings within the confines of this outrageous Supreme Court decision, is it not the case that Trump will appeal any or all of her findings? If so, isn't it a sham to have a trial court make the "factual rulings" only for it to reverse her on appeal on her decisions of what is "not an official act" Has not the Supreme Court just disguised the fact that it has not only declared itself an imperial court , but has also made the Presidency an imperial branch, thereby obliterating the separation of powers?
This is my question as well. If nothing else, the lower court’s decisions will also be appealed and likely end up at the SC, again!
My theory is that the lack of specificity around the parameters of the immunity ruling is designed to give the RW bloc wiggle room for "adjusting" those specifics upon inevitable and imminent appeal, depending on the outcome of the upcoming POTUS election.
Call me jaded, but I'm just responding to what's observable under Roberts' watch, especially the last 8 years.
I would ask Steve whether he thinks such speculation is specious or warranted?
Good questions Bruce. IMO those questions are not 'specious'.
May I have Steve's & the Community's permission to develop Bruce's "lack of specify" observation. First, I think Bruce is dead on.
Is today's Opinion purportedly "one for the Ages" or is it 'dicta' about what acts are "official acts" or 'unofficial acts." I realize Roberts said that the "Seal Team 6" extra judicialkillings of an "Opponent" was "fanciful" but, what about "Hang Mike Pence" or kill my Vice President if he does not carryout my Coup?
Trying to tackle this whole thread in one response, I actually think that both the D.C. Circuit and SCOTUS would probably give a fair amount of deference to Judge Chutkan's application of today's ruling on remand. The problem is that, by the time that happens, either Trump will have been elected (in which case, the matter will shortly become moot) or he will have been defeated (in which case, the prosecution will go forward anyway).
But since the Court says the immunity is the sort that protects not just against liability but even against trial, the dist j's rulings on "official" or "not official" and "presumption of immunity overcome" or not, will be subject to interlocutory appeal(s), allowing the Oathbreaking Insurrectionist (see Trump v. Anderson, concurring op. of Sotomayor, Kagan, and Jackson, Jj.) to skate for life even if he loses the election so badly he admits it (yeah, right). Which suggests the question: if he wins, what kind of odds can I get on the prediction that the Court will deny the validity of a self-pardon for all acts before, during, and after a term, or any of those?
Don't wait for the results of the election. Start operating under the new rules now.
Joan, I thinkSteve will agree, IF there is Jury Trial, the Jury weighs the evidence and answers the Verdict Form(s). However, (there's always a'however') some facts may be litigated pre-trial in a motion for Summary Judgment under Federal Rule of Procedure & Evidence if there are any "Undisputed Facts" or matters accepted via "Judicial Notice".
Please explain how Jack Smith can try to prove his J6 case against Trump in light of the evidentiary rule set forth in Section III-C of today's decision? Thank you.
This, and particularly the fake electors scheme. Any chance Smith could prove the elements through non-“official” channels/communications?
Sorry I missed this in my first run-through. I think this is the hardest and most troubling part of the whole ruling (and why Justice Barrett wouldn't join it). I suspect that Smith can take advantage of footnote 3 to use public statements and other items in the public record as much as possible to substantiate the charges in the indictment (or to file a superseding indictment). But his job definitely just got a lot harder.
Great question, most concerning part of this decision to me
What’s your take on Justice Barrett’s emerging jurisprudence, especially with respect to how history should be used in answering constitutional questions?
I don't think there's any doubt that Barrett's writings are the most *interesting* that we're seeing this term, even if there are other justices with whom I'm more likely to agree. She seems to genuinely be struggling, at least in her written opinions, with faithful application of her principles. I'm writing a piece, hopefully to be published later this week, about the virtues of her approach. What's remarkable is how quickly she seems to have been outpaced to her *right* not just by Thomas, Alito, and Gorsuch, but by the Chief Justice and Justice Kavanaugh, too.
Sorry, but she’s still siding with the extreme right in most cases, while in some disparaging the left, so the distinction becomes a meaningless one.
Samuel. I am more interested in Justice Kentanji Brown's Dissentfocusing at one point on the Majority's barring of evidence of the "unofficial actor's" intent to storm the capitol, disrupt Congress, kill Mike Pence, on any actus rea or mens era like intent to electrocute policemen, hunt for the Speaker of the House and/or carry out hundreds of other intended criminal acts.
I am still reeling from the death of Chevron. But with respect to the Trump immunity decision, can you explain what the state of the law was re presidential immunity for criminal prosecutions before today’s decision? I thought it was kind of undecided but with a lot of language from the Nixon era pointing to no such immunity.
Formally, of course, it was unsettled. But at least within the executive branch and the Court, the understanding was that at least *former* presidents could be prosecuted. You see that in OLC memos about why *current* presidents couldn't be; you see it in the various opinions (and justices' papers) in Nixon v. Fitzgerald, where justices on *both* sides of the 5-4 decision assumed criminal prosecution was available. So...
Now I wish the Founders had incorporated the Federalist Papers into the Constitution, even if it was just explanatory Appendices — so much for history and tradition, textualism, conservatism and Originalism in one fell swoop.
Thank you.
Sorry I missed this hour. Just wanted to convey my appreciation for your willingness to help. I’m honestly having a hard time bringing myself to think about what this could mean.
You and me both. But this is just the beginning. There'll be a lot more discussion of these topics (and others) in this newsletter and elsewhere as the summer goes on.
Steve, this is great having your informed opinion on today’s Court opinions. Thanks for your time.
In light of the immunity decision, any thoughts on why the founders apparently consciously did not provide for presidential immunity, yet made a point of providing legislative immunity for Congress in the Constitution? Hard to think of it as somehow an oversight.
Yeah. The contrast between the Speech or Debate Clause and the ... silence ... of Article II ought to be deafening, at least to those who think the Constitution should be interpreted to be consistent.
Seen from Earth the other planets appear to perform a slow, graceful dance, at times drifting back, pausing, then moving forward again. If they orbited the Earth this dance would punctuate circular orbits with smaller circles called epicycles. Kepler placed the Sun at one locus of elliptical orbits and assigned an orbit to the Earth. Epicycles resolved entirely into smooth orbits. Galileo peered through a newly-invented telescope and agreed at least in part. Clinging to its epicycles the Church placed him under house arrest. But you can’t change reality by arresting it. When another analysis makes more sense than my own I naturally start looking for textual support for mine, but when it becomes building epicycles it’s time to admit the other analysis works better.
The DC Circuit held:
- former presidents share sitting presidents’ absolute immunity from civil suit for official (but not private) acts;
- the interest in criminal prosecution shared by the people and the Executive branch overcomes immunity in most cases;
- not only does separation of powers not bar the Judicial branch from prosecuting Executive officers, it compels it.
- the Impeachment Judgment clause does not bar criminal prosecution of an officer who hasn’t been impeached;
- any officer immunity against indictment and criminal prosecution ends when the officer returns to private life;
- double jeopardy does not bar prosecution because impeachment conviction can only impose loss of office and perhaps disqualification from future office, which are not criminal punishments.
“Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct…It would be a striking paradox if the president, who alone is vested with the constitutional duty to “take Care that the Laws be faithfully executed,” were the sole office capable of defying those laws with impunity.”
Would prosecution conflict with the branch’s functions? Immunity would. The Circuit finds “a profound Article II interest in the enforcement of federal laws. The President has a constitutionally mandated duty to “take Care that the Laws be faithfully executed.” (art II§3).
SCOTUS held in Butz v Economou, 438 US 478, 506 (1978), “[A]bsolute immunity is essential for the conduct of the public business.” But defeating the public interest in officer accountability poses a far more serious danger to the conduct of the public business.
And the interest in criminal accountability “held by both the public and the Executive Branch” outweighs slim risks of vexatious prosecution & chilling presidential action.
The Circuit holds for the first time and persuasively that the separation of powers doctrine requires the Judicial branch to hear prosecutions involving official Executive acts because if guilty the president defied the Legislative branch’s laws.
“President Trump’s stance would collapse our system of separated powers by placing the president beyond the reach of all three Branches."
The judiciary must perform its role against officers of other branches. That's part of its job. Doing your OWN job does not violate the separation of powers regardless of its object. Only doing another branch’s job does.
Mr. Trump’s brief argues Fed No 77 in error. The phrase “only as to the president” only applies to the sitting president. The purpose of any immunity is uninterrupted conduct of the people’s business. Two circumstances allow prosecuting an officer: their leaving office, or their being convicted in the Senate - which results in their leaving office. Former officers may be prosecuted because when Article II §4 establishes Congress’ impeachment jurisdiction it excludes civilians. As the text must be read to make literal sense, the fact that former officers can’t be impeached means they needn’t be. It can’t be read to create two classes of civilians and immunize one. The Justice mandate and Titles of Nobility clauses bar that.
The Circuit notes that presidents know the impeachment judgment clause empowers prosecution after conviction so anything that could be chilled would be chilled anyway. Nor have they behaved as though they expected immunity.
- Mr. Clinton made a non-prosecution deal on leaving office.
- No constitutional problem was cited in President Ronald Reagan’s case. A junior officer fell on his sword and Mr. Reagan denied knowledge.
- President George W. Bush’s actions were cloaked in false statements & benefitted from anger over 9/11.
- President Richard M. Nixon was only spared prosecution by pardon. That certainly contemplated prosecution.
And the Circuit points out a danger. The Impeachment Judgment clause applies to all civil officers, so exempting former presidents would exempt all former officers.
Here's doctrine. When the text chooses an option it rejects all competing options.
- To expressly vest something sets expression as the required standard for that thing. It can no longer be vested by implication. The text has bound itself.
- To vest something only narrowly prohibits reading that thing as broad, even in another office, unless its vestiture in the second office is expressed as broad. We can no longer imply breadth for that thing. The text has bound itself. If the reason for narrowness is significant to the first vestiture while not to the second, we can try an argument - but we have to beware of epicycles.
The people ordain the Constitution by our preexisting rights, liberties, and powers. We have them all. Why does the text expressly protect some? It is imposing civic duties. While Amendments IX and X reserve our liberty to perform, vest, or ignore them, we ignore them at our peril.
By broadly honoring a right to petition for redress of grievances Amendment I’s Petition clause also imposes a broad duty to oversee government action. No time limit. No subject matter limit. No required office (in case that officer is the aggriever). The only checks are those expressed in other text.
Article I §6 expressly immunizes members of Congress against criminal charge or civil suit for 2 acts of office: speaking or debating in either House. It also immunizes members against arrest in either chamber, or when on their way to or from the Capitol. Then it checks the immunity for treason, felony, and breach of the peace.
This is as narrow as the text gets. Which acts of office are immunized? These. When can a member be arrested? Any time but these times. Any exceptions? Yes, for these charges, but for none other.
And who is immune? The text expressly grants some 25 narrow immunities but as you pointed out, only Congress is immunized against arrest or civil suit. Immunities are granted.
ITM Article I §3 subjects at least officers convicted in the Senate to other indictment, trial, judgment, and punishment, expressly including the president.
Amendments IV-VIII honor rights and liberties people retain during investigation, arrest, trial, and punishment, and in most civil suits. It makes no distinctions among current officeholders, former officeholders, and people who’ve never held office. Any executive immunity could easily have been set among these. None is.
The text’s final word:
Only a few offices, those with sole powers we must have available at all times, have understudies. Article II expressly creates a vice presidency in case the president is removed from office, dies, resigns, or can't discharge the office's powers & duties. Amendment XXV even establishes procedure for a temporary leave of office.
SCOTUS ignores it. SCOTUS doesn’t build a strong case for its opinion but lists a disconnected series of rebuttals of the Circuit from statute, caselaw, or a weaker use of doctrine. None addresses the people’s interest. They read like epicycles to maintain executive immunity.
Steve, Yes, I will be on board at 5:30 PACIFC. I am a 30 plus year retired CA Litigator & Trial Attorney.
I remain an Active ABA Member. Let me review the Comments so far, regards, bsm.
You clearly were not surprised by the last two weeks (congratulations on the calls, doesn't make the outcome any better). With the composition of the Supreme Court unlikely to change until after the election (get even worse if Trump elected), besides voting for more reasonable elected officials down the ballot, what else can be done? Is it as hopeless as it feels given the candidates, the inability of Congress to enact legislation, the recent actions by Oklahoma and Louisiana to obliterate the Establishment clause, etc.?
The most important thing I can say tonight is DON'T BE HOPELESS. Talk to your friends. Talk to your family. Talk to Yankees fans, if you can stomach it. Talk about why the courts matter to them--and why they should vote like courts matter to them. And then talk some more.
I think the Court "showing themselves" so thoroughly may work to Biden's advantage. The mask is pretty much completely off at this point, and Trump is clearly responsible for it. "Keep talking" is a great takeaway, especially with the people we love.
(Gotta think hard about the Yankee fans part tho ☺️)
Steve, now that you have moved from Texas to DC what is "your" team??
😅
It's incumbent on the current administration to use all of the tools newly available under SCOTUS 's decree to disable the opponents who are assaulting our rule-of-law system. Imagine what a second Trump administration would do to its opponents, and do it to them first.
Steve, Thanks for opining and the coverage of SCOTUS>
Nature abhors a vacuum . And the Constitution apportions powers between three bodies. Within the Constitution, as you have explained, SCOTUS is both the ultimate Appellate court, and a court of original jurisdiction. Original jurisdiction seems to be clearly described in the Constitution. What is not described is the Appellate functions, and those seem to be designated by Congress. So in this three way power sharing arrangement, only one branch's functions are decided by statue -- the Court system (including the SCOTUS - outside original jurisdiction). The Constitution also is silent on Judicial Review. -- as I understand it the idea of deciding that a law is counter to the Constitution, as opposed to simply applying the statue to a case before it. (I fail to see how an Originalist interpretation allows judicial review.)
So my question is around the decisions this week that clearly shift power to the COURTs and away from both the Executive and Legislative branches. How would you suggest Congress practically reduce the scope of SCOTUS impact on daily American life? What would you suggest is an equitable distribution of power between the three branches? To use a baseball analogy, we need a referee, but we don't want them to have power over the rules, the teams, the fields or the players. We only want them to have power to call the acts within the game. (Paraphrasing Roberts "only calling balls and strikes")
I've written about this a bit in the newsletter, but to me the real problem is how unaccountable the Court has become. The way back up the mountain is for Congress to work on restoring accountability--an inspector general; docket reform; budget reform; etc. Not the super-political stuff that never has a chance, but "make the Court a coordinate branch of government" again types of reforms.
Thanks
What happened to all the recommendations from the 2021 Presidential Commission on the Supreme Court? Anything pertinent after this term?
Ah, the SCOTUS Reform Commission...
Alas, the Commission didn't make that many specific recommendations. And the ones it made depend upon support from both chambers of Congress. But I certainly *do* think we should be having serious discussions about meaningful Court (and court) reform--and wish the Biden campaign was more involved in pushing for them.
Just heard Pres. Biden give a brief response to today's decision.
They should ALL be implemented. Nobody should be appointed for life and have this much power- it’s effin insane.
Please either today or this summer wrote about Jarkesy. It seems to be a huge judicial over-reaching, and because it's a constitutional interpretation can be much harder to overturn or address than Loper Bright Enterprises
My take on Jarkesy is coming. It's complicated, which is why I'm taking some time for it. But fear not; it's on the list.
Thanks. Can't wait for this. Oh, yes, agree its complicated
I meant to say, please write something this summer about Jarkesy. Thanks
Could President Biden, as an official act, add 4 (or more) Supreme Court justices? Could he make Hakeem Jeffries Speaker of the House? Could he get rid of the filibuster? (These are honest questions.) I guess it comes down to asking if there's anything President Biden can do to take advantage of today's destructive Supreme Court decision?
Oohh I didn't see you had asked this, my question is similar ♥️
Lynn -- He could probably go on a carefully thought-out crime spree (seriously) without fear of either being convicted by the Senate after the House impeaches him, or criminal prosecution after he leaves office. Of course he won't.
What he should *really* do is start making the Court a bigger part of his re-election campaign. So far, it's all Trump, all the time. But the Court ought to be part of the story, too.
Thank you, Steve.
So, uh, what's the point of § 553 now? (Other than in instances where the statute requires N&C.)
Notice and comment for funsies? Skidmore "respect"? What's the point of building a rulemaking record if it's all a suggestion that a judge can discard because he/she/they think that the agency didn't come up with the "single, best meaning"? Does this spell the end of § 553(b) claims?
This is why Ohio v. EPA is, in some respects, an even bigger ruling than Loper Bright. I think the hard question going forward is whether Gorsuch's ... casual ... relationship with the record will set a precedent, or whether lower courts will try to be more faithful to the kind of review that 553 sure seems to contemplate. Maybe if the next case isn't an environmental law case, the justices will be a bit more circumspect?
People in the midst of crisis often don't recognize the problem until it's past remedy. And this is a crazy thought in and of itself:
As a thought exercise, what would happen if the judiciary branch as a whole were to take the Andrew Jackson position about unmoored decisions from the top level of the court system? ('John Marshall has made his decision, now let him enforce it.') I.e. if, rather than resigning en masse, the judiciary were to down tools in response to 'crazy' decisions without coherent reasoning in them. The Court relies on the belief among the broader community that it's legitimate.
Given that the Executive is not bound by criminal law for official acts, what remedy does a future Court have if the Executive didn't comply with orders from the court, be they reversals of conviction, orders overturning sentence, voiding indictments, etc? How is the immunity decision not the thin end of an impossible wedge even for the Court's authority itself?
This is why I've been sounding alarm bells about the implications of the Court's eroding credibility for some time now. The Court's power is far more fragile than we often appreciate. And the justices ought to be invested in burnishing the Court's credibility, not eroding it.
I think they burned their credibility to the ground.
They don’t care
Six of them don't care.
If trump wins in November, what steps does the government take to preserve and protect all the evidence and hold it safely in isolation until the 25-28 term is concluded? My fear is that government's evidence against trump and in a trump justice department might be subject to official presidential acts of spoliation. Is there any protocol for sealing off access to the evidence?
This is a well-thought-out concern. Hopefully, the relevant executive branch agencies could use the long lame-duck period (all the way to January 20) to make as much of a public record as possible...
I'm reminded of the end of Three Days of the Condor. https://youtu.be/vZNnDiDSUiI?si=xsH5ABECJ4pzv2IA&t=224
Steve: Thanks for making yourself available for this seminal issue. In your view, does immunity arrogate by association to those who carry out an ordinarily illegal or criminal act at the direction of a now immune president or, are they subject to prosecution for the acts, even if the president isn't?
Maybe it should be a . . . *qualified* immunity? We can't have a bold and decisive president if his subordinates are worried they might be prosecuted for executing his orders and carrying out his plans, right?
So maybe subordinate executive officials could be prosecuted only if -- stay with me; I'm just thinking out loud here -- (1) the alleged crime was an unofficial act, and (2) it was *clearly established* that it was an unofficial act.
Yes, that all sounds sensible and easy to administer and just.
I actually think one of the ironies is that the subordinates remain completely criminally liable for doing only what the President told them to do. The problem is that the President retains the pardon power, so unless the subordinates were also violating *state* law, the President could say "do this for me and I'll pardon you," and, unless the subordinate had enough of a conscience to resign, that might actually work.
Not sure I’d be willing to trust a president like Trump to pardon me either, even if I didn’t have a conscience.
This cluster is why SCOTUS should have realized that their vision is "unworkable," using the terminology of Justice Breyer.
You answered one of my questions below. But I don't see why the imminity reasoning of the Court today couldn't be applied to subordinates acting at the direction of the president.
Sorry! There's no plausible argument that Article II of the Constitution protects subordinates the same way it protects the President. And the Supreme Court specifically held to the contrary in the civil damages context in Harlow v. Fitzgerald:
https://tile.loc.gov/storage-services/service/ll/usrep/usrep457/usrep457800/usrep457800.pdf
Not sure that would apply to Seal Team 6 carrying out what would be an ordinarily unlawful order under the military Code of Conduct. Lawful orders must relate to military duties.
I’m actually as concerned about Corner Post as the Chevron reversal. As I understand Corner Post, going forward any regulation can be challenged by simply forming a new company and claiming that you never had a chance to challenge it previously. It seems as any finality with respect to regulations promulgated through fully legitimate means can be subject to challenge at any future time
Yup. This is not an unreasonable reading of Corner Post. The good news, if there's good news, is that this is an easier fix than Chevron. All it would take is a right-thinking Congress passing a one-sentence statute. Maybe if we see a real flood of lawsuits, we'll see a push for that kind of statutory reform...
True, but "right-thinking Congresses" are out of fashion.
I saw somewhere that today’s ruling holds that prosecutors can’t even introduce evidence of official presidential acts into the record to prove the criminality of an unofficial act. Is that true?
This, to me, is the mind-boggling part of today's ruling. The Court held that evidence of official acts *can* be introduced if it's in the public record (see footnote 3), but not if it's not. I'm not sure how that line would hold (e.g., if the official act is secret when it happens, but become public later). But it's the exact point on which Justice Barrett broke from the majority--not just because it wasn't really presented, but because it's crazy. She's right on both counts.
Thank you!
Steve: Any idea from where in the Constitution, or anywhere in the history of US jurisprudence, for that matter, the Imperial Court majority derived its theory of presidential immunity?
Oh, it's "implicit" in the "structure"; what, you can't see it?
To be fair, the Court has long taken an approach to interpreting Article II that reads a *lot* of stuff into it that isn't obviously there. The problem isn't the argument that we can make structural inferences from the Constitution; the problem is the justices' selective application of that principle.
What are the odds that if Trump gets elected and impeached again, his attorneys will still argue that criminal prosecution, not impeachment and removal, is the proper remedy for whatever he did that led to impeachment? (I'd say north of 50 percent.)
I'd say more than 100 percent, if that were mathematically possible.
Also, what in your view are the most important one or two takeaways from the Loper decision?
1) That the decision transfers a whole lot of power from agencies to courts in contexts in which we really would rather have scientific or public policy experts making the relevant calls; and
2) That the decision is made even more important by today's ruling in Corner Post, which opens the door to contemporary challenges to old (and long-settled) rules and regulations.
Thank you.
Thank you, this was so helpful. I suspect you'll be asked to be a guest on a lot of podcasts and news shows because of your expertise. If I remember correctly, you already have had some appearances.
If you take J. Sotomayor's 3 horribles: 1) Seal team shooting; 2) mounting a coup; or 3) taking a bribe for a pardon, is there enough wiggle room left in the official act vs. unoffical act distinction to hold that they are, unofficial acts, and thus outside the absolute immunity bar given to "core constitutional functions," assuming that you could prove that he was doing it solely for his personal benefit?
Also how much of the "guidance" on making the determination between official and unofficial is dicta? CJ Roberts specifically says that question is not before them, not adequately briefed, but then makes at least one definitive holding on that basis, carving out the communications with the Acting Attorney General.
Yeah, there's a lot of nuance here. The big question the Court doesn't answer is what *makes* an official act "official"? Is any order the President gives to a soldier an official act because of the Commander in Chief Clause? Or must the order have some specific substantive content? There's definitely wiggle room, but there aren't exactly going to be a flood of cases for the lower courts to flesh these points out...
What is the practical legal implications of ‘presumptive’ immunity? Is it a gating factor at trial before ‘presumed’ innocent? In other words, will there be an evidentiary hearing to determine whether the acts are ‘presidential’ and therefore immune or not? And are those evidentiary hearings inherently jury verdicts? And then once they are found to be ‘non presidential’ does this same jury hear the facts for determining a guilty or not guilty verdict?
That'll take at least 2 2- or 3-yr trips up and down the appellate ladder to sort out. The case *might* go to trial before the end of the decade.
Evidentiary hearings would presumably be before the trial judge alone. The issue is putting the burden on the government to overcome the presumption. Even if it can, it will take time (including the interlocutory appeals you contemplate). So even those prosecutions that can go forward after today will take ... a long time.
How does the reasoning in today's immunity decision affect Trump's co-conspirators, even at state level cases?
It's not clear to me if it will affect whether evidence that can't be used against a former President under today's ruling *can* still be used against them. I assume the answer is "yes," but if so, then the effects should be pretty modest. The larger concern is the specter of Trump pardoning all of his co-conspirators the day after he is sworn back into office next January.
I have to admit I haven't read the case yet. How did this majority reconcile their result based on the Constitution and the associated history. Is it just "separation of powers" period?
There are decent and plausible purposive-based arguments about interference with presidential prerogative. The problems are: (1) the hypocrisy of the justices making those atextual, unoriginalist arguments; (2) the completely unnecessary additional holding about not being able to use immunized conduct even as *evidence*; and (3) the lack of clarity about where the line is between those acts that can still be prosecuted and those that can't (the official/unofficial line).
Not to mention (4) the complete absence of standards to determine whether "presumptive" immunity is so-to-speak rebutted, and how.
The substack process is new for me. What do I do to see Steve's comments/answers as they start to appear, now that it's 8:30 EDT?
Just refresh this page every so often, he's already answered a few up above
And if you see a Reply box under a question click on it. It's not always Steve but it will include Steve's comments.
If you go back to the top of the comments and start scrolling, you'll see where he's answered questions underneath each particular question.
Does this morning's Immunity Decision mean that "President-read-King Joe" can nationalize the Florida National Guard, then order them to detain a certain DJT indefinitely?
Perhaps without fear of criminal prosecution when he's no longer president. But he'd certainly be impeached for it; he'd probably be removed by the Senate; and he'd certainly lose the election.
It would seem to.
Does this exonerate him from his most recent conviction?
As I recall, the only direct acts associated with the NYS records falsification/election interference ("hush money") case which occurred while Trump was pretending to be president were signing reimbursement checks for Michael Cohen --- clearly personal.
Concur Dale. The July 11 Sentencing of the 34 times New York State Felon remains sound.
Don't forget Judge Merchan has also made findings of 10 Counts of Contempt & warned the Perp of possible "incarceration"..
I think it raises *questions* about whether he can challenge any of the evidence that was admitted in the New York trial on the ground that it's constitutionally protected conduct under the rationale of Chief Justice Roberts's majority opinion. But the answer may well be "no." Beyond that, I don't think there are other implications for the NY conviction.
Update: 2 docket entries, 2 Hail Mary's, have been entered in Judge Merchan's case: (1) Trump's Attorney have requested a continuance of the Sentencing Hearing: (2) Trump' Attorneyss have or will file a Motion claiming the SCOTUS's decision a Federal Court Opinion can in some manner insulate Trump from New York Jury Verdicts (plural) that have been entered as a matter Law.
Short Answer: No.
Thanks for the update. I can't wait to see how they justify paying off a porn star Trump slept with through his personal and business accounts as official conduct.
Certainly Patricia, under the New York state law Trump falsified his own personal business records with the specific intent to commit other Felonies , 34 other Felonies.
If you mean the ones in New York, I'd have to think the answer is certainly no, because those were based on his personal conduct (falsifying business records related to his own company). But I wouldn't put it past him to try and argue now that those were somehow official acts. (I'm not sure if he already tried to raise that argument in that case. If he didn't, he'd have a tough time trying to get a court to even consider it now. And on the merits it seems dubious, although he'd probably get at least 2 or 3 votes from this Supreme Court.)
The Justices sometimes put out calls to advocates to bring certain issues to them—i.e., “we save for another day the question of _____”. Any calls like this stand out to you this term?
There are a bunch. Just to take one, Justices Kavanaugh and Barrett took a nice big shot at the "veterans' canon" in a decision in April:
https://www.supremecourt.gov/opinions/23pdf/22-888_1b8e.pdf
Justice Thomas today invited challenges to the constitutionality of the Special Counsel. (It took some real chutzpah to do that in a case from which he should have recused himself.)
Steve: What's your take on the use of "official acts" criminal evidence in a prosecution? There seems to be some of Roberts' usual doublespeak on the matter in the decision.
I just touched on this above in my response to @Trich, but this, to me, is the most mind-boggling feature of the majority opinion. The idea that prosecutors can't use evidence of official acts to prosecute unofficial acts just ... makes no sense. My hope is that footnote 3 makes this a less significant point than it appears to be, but I think it can be argued both ways...
Thank you for hosting this. As much as I am disappointed by the majority opinion, do you think the majority was at least partially thinking of stopping the cycle of administrations prosecuting their predecessor (i.e., if we imagine a scenario of Trump winning in November)? I know, it would be a very benign read of the opinion.
I wrote about this a bit after the argument in April. I'm sure that's at least part of it. But there are so many ways to write an opinion that addresses (and accounts for) that concern without going nearly as far as the Court went today.
Thank you.
The problem is that (1) succeeding presidents can revoke it; and (2) the existence of a new EO will be taken as evidence that it wasn't already clear prior to the EO.