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Maybe the Supreme Court Should ‘Take a Walk:’ A Deep Dive Into Thursday’s Oral Arguments

Aaron Walker  |  6:15 AM on April 26, 2024
Meme

Okay, folks, it’s time for another patented Aaron Walker Deep DiveTM…

… (this is not actually trademarked) … 

… as we talk about Thursday’s Oral Arguments before the Supreme Court dealing with presidential immunity, Professor Turley’s live posting and more considered article on it, and, for comedy’s sake, the live blogging of Elie Mystal (who is a man). In addition to that, we have listened to the full audio and we will have our own thoughts on the subject, especially toward the end of this piece. This is all in addition to the “highlight reel” we provided yesterday.

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For starters, you can listen to the oral arguments yourself, here:

But we will repeat a caveat from the last time we did a deep dive into oral arguments:

[G]uessing from questions what a justice is thinking … can really lead you astray. Sometimes a justice will essentially make an argument with a question. For instance, famously during the oral argument in Citizens United, Justice Scalia asked then-solicitor-general Elena Kagan if the law she was defending would mean that certain books are banned. He was clearly forcing her to say ‘yes,’ to build the argument that the law was unconstitutional. But also sometimes a justice will ask about a particular issue because he or she is struggling with it. In other words, the justice is asking ‘what do you say to this argument?’ because they are not sure themselves what they would say to it, and if the lawyer gives a good answer, the justice might adopt that answer when writing an opinion.

And before we dive into Turley’s live posting on TSMSFKA Twitter (The Social Media Site Formerly Known As Twitter), we want to start off by saying that the best argument for Presidential immunity is … pretty much what is happening right now. After all, isn’t it just a huge coincidence that Trump is facing four different criminal charges all across America, at the same time, in an election year? Not to mention having to deal with E. Jean Carroll’s nonsense defamation suit, the New York fraud trial that apparently had no victims, and having to fight Colorado’s attempt to kick him off the ballot entirely, which involved the Colorado Supreme Court actually attempting to mislead people about Trump’s words. More than a few people, including this author, thinks this is straight up ‘lawfare’ designed to abuse the criminal justice system to cause the courts to interfere with the election.

Every person with more than two brain cells to rub together can see the political advantages of such criminal trials. For one, it ties Trump down. Right now, Trump is required to be in court every single day of his New York City trial, which severely limits his ability to campaign. Indeed, how can he do much else? Second, it puts him in general under the courts’ control, including gag orders that trample on Trump’s First Amendment rights. And with Trump allegedly violating that gag order, it means the judge has the ability to throw him in jail. In the New York case, he is facing at least 90 days in jail, which could cause him to miss his nominating convention. Then if he is convicted, well … that becomes a campaign ad: ‘Do you want a convicted criminal in the White House?’ And, of course, that also means that Trump might even be sentenced to prison, and be expected to serve time when he needs to be on the campaign trail or perhaps even in the White House.

And, arguably, this sort of thing has happened before. From 2010 to 2014, Virginia had a governor named Bob McDonnell and he was considered a rising star in the Republican Party. He might have been a leading candidate for President in 2016, until Obama’s Justice Department went after him. He was convicted of accepting bribes, but McDonnell argued that even if he had committed all the conduct that the government alleged, the statute didn’t cover what he had done. The district court found against him. The Fourth Circuit found against him. But then he won in the Supreme Court. Unanimously. They vacated the verdict below and, as far as the law is concerned, he was never convicted nor could he be tried again. (McDonnell v. U.S., 136 S. Ct. 2355 (2016))

But by then the damage was done. We haven’t seen hide nor hair of McDonnell since then. The federal prosecutors lost, but what a coincidence? They wrecked the political career of a man who might have presented a serious challenge to the Democratic nominee in 2016.

Oh, and the prosecutor involved in that case? Jack Smith.

People keep saying Smith is an independent prosecutor, but the Biden administration knew exactly what they were getting when they appointed him: A political attack dog, who doesn’t mind stretching the law to get his man. So, yeah, maybe Smith made his own decisions, but that’s a bit like releasing a starving wolf into the same cage as a sheep and pretending you don’t know what the outcome will be. The Biden administration might have been a little fuzzy on the details, but they knew what Smith would do: He’d go after Trump and get him on anything he could.

And we happen to think all of this—this legal jihad against Trump and even Jack Smith’s checkered history in pursuing political prosecutions—was on the Supreme Court’s mind as they dealt with this.

So, with all of that in mind, let’s start with Jonathan Turley’s live posting on the argument. The argument was unusually long, but they were unusually momentous.

So, what is going on here is that Trump’s lawyers have been arguing that the immunity should only be for things that are official acts of office. For instance, if Trump did what Paula Jones said Bill Clinton did to her, he almost certainly wouldn’t be immune under his lawyer’s theories—because wagging Slick Willie around a woman’s face is not an official duty of the President of the United States. We don’t bring up that example entirely facetiously, but rather because this would be applying doctrines of civil immunity that have grown out of Clinton/Jones litigation to a criminal context. Several times the justices looked at a D.C. Circuit case called Blassingame v. Trump, 87 F. 4th 1 – (D.C. Circuit 2023) which dealt with a similar divide between private actions and official acts of office by Donald Trump, saying he was immune from civil suit arising from official acts of office. The Supreme Court seemed to be seriously considering whether to extend the civil immunity presidents and former presidents enjoy to criminal cases.

We think Trump’s lawyer frankly did a pretty good job right out of the gate explaining why this doctrine must exist:

Without presidential immunity from criminal prosecution, there can be no presidency as we know it. For 234 years of American history, no president was ever prosecuted for his official acts. The Framers of our Constitution viewed an energetic executive as essential to securing liberty. 

If a president can be charged, put on trial, and imprisoned for his most controversial decisions as soon as he leaves office, that looming threat will distort the president's decision-making precisely when bold and fearless action is most needed. Every current president will face de facto blackmail and extortion by his political rivals while he is still in office.

The implications of the Court's decision here extend far beyond the facts of this case. Could President George W. Bush have been sent to prison for obstructing an official proceeding or allegedly lying to Congress to induce war in Iraq? Could President Obama be charged with murder for killing U.S. citizens abroad by drone strike? Could President Biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policies?

The answer to all these questions is no. Prosecuting the president for his official acts is an innovation with no foothold in history or tradition and incompatible with our constitutional structure. The original meaning of the Executive Vesting Clause, the Framers' understanding and intent, an unbroken historical tradition spanning 200 years, and policy considerations rooted in the separation of powers all counsel against it.

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The Vesting Clause is an obscure provision that says that ‘no President shall ever wear a vest’ which currently disqualifies Glenn Youngkin from running for the White Hou— … okay, we made that up. It actually says ‘[t]he executive Power shall be vested in a President of the United States of America’ and, frankly, as a textual basis for this immunity, we are less than impressed. The actual argument—which we think is the argument that won the day when Colorado tried to disqualify Trump from the ballot—is more from the structure of the Constitution itself.

Back to Turley:

Now, this gets into a point of contention for both Trump’s lawyers and the Special Counsel’s lawyers. Trump’s lawyers say that everyone understood until Trump came along that this immunity existed and that is why Trump is the first former president to be prosecuted, because they are going against that conventional wisdom. The Special Counsel’s lawyers say that everyone understood until now that the President was subject to prosecution and no president was a criminal before now.

(Yes, the special counsel’s lawyer really said that. The exact quote was "The reason why there have not been prior criminal prosecutions [of Presidents] is that there were not crimes.")

We think the truth is they are both wrong. We think that presidents weren’t actually sure where the courts would come down if anyone tried to put a former president in prison. And we think they were deterred by the concern that once you opened that pandora’s box, that there would be a cascade of retaliation.

After all, realistically, are we going to pretend Trump was the first former president who could have been indicted—even if we limit it to truly private acts? In 200+ years? That's simply not plausible.

Then we get to the Special Counsel’s lawyer, Frank Drebin Michael Dreeben:

For the record, Turley is bad at constructing threads. Often he fails to put each new post after the most recent one, so we are doing our best at catching each thread—but it is a challenge. We guess if his job as a law professor and lawyer doesn’t work out, he shouldn’t try to make a living off of TSMSFKA Twitter.

We actually think that what Barrett was suggesting is that she might reject immunity from federal prosecution, but accept it in the context of state prosecution. That might effectively nuke the Georgia trial. We also think this might fit a theme of not letting state governments interfere with federal elections, which is obviously an undercurrent in the Colorado disqualification case, and is a hidden issue in the NYC trial currently underway.

And then we get kind of a mic drop moment:

In short, Trump's lawyer had a chance to offer more argument and to rebut the other side and ... he chose not to.

Turley was perplexed, but we think this might explain it:

Indeed, there might be a certain psychology in this, saying in essence to the other side ‘I feel I did so well, that I don’t need to say any more.’ There are shades of Johnnie Cochran resting the defense without calling any witnesses in the OJ Simpson case in that.

(Love him or hate him, its hard to deny that Cochran was one heck of a lawyer.)

In any case, later Turley posted his more considered and organized column on the subject later that day:

Turley’s basic thesis is that there are dangers on both sides. Turley has indicated in the past that he recognizes, like we do, that Trump being subjected to lawfare. In his column he argued that Alvin Bragg is actually helping Trump’s arguments—albeit inadvertently:

If the justices want insight into the implications of denying any immunity, they just need to look north to New York City.

The ongoing prosecution of Trump is legally absurd but has resulted in the leading presidential candidate not only being gagged but prevented from campaigning.

Alvin Bragg is very personification of the danger immunity is meant to avoid.

Of course, the other end is extreme examples like ‘what if the President ordered special forces to murder his opponent and he tried to pretend he had official reasons for doing that?’ Bluntly, twenty years ago, this author would have flat out denied that the President should be granted any immunity at all. It is only seeing how the system can be abused, particularly seeing how it is currently being abused against Trump, that has brought us around to understanding why immunity probably needs to exist.

But Turley is right to think there are dangers to either granting or denying immunity.

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This brings us back to law school when one of our professors was talking about a scenario involving torture. We don’t feel confident enough in our memory to name the professor, but he said something like this:

Imagine that a person had set up a nuclear bomb and the FBI has him in custody. It is set off to go in an hour in the middle of a big city in five hours, unless they can locate the bomb and enter in the correct code to disarm it. Further, imagine that the FBI determines that the only way to get that information is to torture him and that is what they start to do. So, then the bomber’s lawyer finds a federal judge and says ‘my client is being tortured as we speak. I want you to enjoin the FBI from torturing him.’ And the government’s lawyer explains exactly why the torture is happening. What should a judge do?

Well, the judge doesn’t want to actually say torture is legal, right? But he or she doesn’t want that nuclear bomb to go off either—even if the judge isn’t in the blast range. So maybe the judge … goes for a little walk, for about five hours or so. And then when the judge returns, s/he writes an opinion condemning the torture but declaring, alas, that s/he couldn’t intervene in time, so the issue is moot. The time to grant an injunction is passed.

That paraphrase is very lose, but we think we capture the idea very accurately. And maybe the Supreme Court should do something similar. Maybe they should just slow walk this entire issue, until November—or maybe even January. Maybe they need to put every case where presidential immunity might plausibly apply on hold while they just sit on the issue. If Trump wins in November, he would be able to shut down the federal prosecutions next January. And then maybe the Supreme Court only has to issue a narrow ruling that says that Trump’s actions are totally immune from state action—they can avoid the thorny issue of immunity from federal prosecution.

Because as we said a few minutes ago, right now, no one really knows if there is any criminal, federal, presidential immunity, and maybe that is for the best. Trump still has to worry he might be prosecuted by his successor, but we get past this crisis. We’re not sure that’s a good idea, but it is something we are contemplating. And maybe the Supreme Court will think of this, too.

We certainly don’t think the Supreme Court needs to address this quickly, and we don’t think speed is a good idea. The disqualification issue needed to be solved immediately, because the process needed clarity. The American people had an interest in knowing immediately whether Trump can be President. But the American people don’t need this case to be resolved before November, and the more time the Court takes to think on this, the better their answer would be.

Anyway, those are the reactions of the very serious Professor Turley and we have nothing but respect for him. And we will share whatever additional thoughts we have left over in a minute. But first, let’s make fun of Elie Mystal, a.k.a. Mad Scientist Fat Albert. Of course, we have to give credit to Former Senior Advisor to the President of the United States, Stephen Miller for that nickname:

But like when the Supreme Court discussed whether Trump should be kept off the ballot, Mystal had a meltdown in real time during this oral argument. For instance, one of the (unintentionally) funniest posts Mystal wrote during the disqualification argument was:

And well, he had a similar cycle yesterday: 

Shorter Elie: ‘Why couldn’t we have this election interference sooner?’

In case you don’t know, in this context ‘remand’ means to send the case back down to the lower courts for further rulings and decision-making. And yes, the Supreme Court might then eventually hear a new appeal, and that could kick the federal criminal trials past the election. We are totally broken up about the possibility.

In other words, maybe they will take a walk. Sometimes it takes the Supreme Court a long time to decide. For instance, the first oral argument in Brown v. Bd. of Education occurred in December of 1952. The decision wasn’t handed down until May of 1954, about a year and a half later. We tend to think this question is less pressing than making sure children of all colors have an equal opportunity in education.

We think the better approach is to leave the question ambiguous.

There’s a minor error here and we won’t make fun of Elie for this, because posting on social media often includes human errors, but Roberts is the most senior justice. Of course, Thomas is more senior, chronologically, but the chief justice is always the most senior justice. That can be particularly relevant when opinions are assigned. The rule is the most senior justice in the majority assigns who will write the opinion, which can help in subtle ways.

This is accurate, more or less. Trump’s lawyer’s voice sounded very rough. But the Special Counsel’s lawyer sounded very whiny and nerdy in the worst way—and this author says that as a certified nerd.

It shows that Ford was concerned that someone might attempt to prosecute Nixon, but it doesn’t show that Ford was convinced that Nixon could be prosecuted. We tend to look at a pardon the way we look at carrying a gun: ‘It’s better to have it and not need it, than to need it and not have it.’

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Cry more.

We did not think things went very badly for him, and we will note that Mystal was wrong about how things went in the Colorado case, too. Of course, Sotomayor, Kagan and Jackson gave him a very hard time, but the remaining justices were not as skeptical.

This is another example of how Elie is kind of a poor lawyer. We have seen many cases where one lawyer asks for X, and the other lawyer asks for Z, and the court says ‘we’re giving you Y, which is between X and Z.’ In this case, if the Supreme Court splits the difference, that is still a pretty big win for Trump.

Seriously, has Elie never haggled over the price of anything?

That’s not a quote or an accurate paraphrase. He's goofing on 'A Few Good Men.'

He is wrong to say Barrett ‘dissembles’ because that implies dishonesty. It's not her job to tell us now how she is going to rule and she would deny she is making any representation on the subject. 

But he accidentally stumbles into a good point. Barrett did sound skeptical of many of the arguments. But she also sounded skeptical on many arguments during the Colorado disqualification argument and then voted with the unanimous majority in that case. There was nothing inconsistent with that—we said at the time that a justice could easily be skeptical of one argument but accept another—and she was softer in her position than the other conservatives (counting Roberts as a conservative in that case).

This is where his bias comes in. He is also touching on a stupid argument made by the liberal justices. We may be used to Presidents who somehow make millions of dollars while being President who are not paid that much for that job, but we can’t always assume that a former president will have the money to hire the best attorneys. And of course, we have seen a recent jihad against any lawyer who represented the President, trying to disbar them or otherwise destroy their careers.

Mystal then gets, well … racist:

The cut off text reads: ‘So, Sauer is losing.’

Still, his racism and aggrievement aside, his argument misses the point. Franklin was cited to argue that the founders indicated to him that they believed that immunity was implicit in the Constitution. In other words, Franklin was cited as a witness, reporting on what the founders as a whole were saying, not necessarily about his views. What the convention as a whole felt beats the views of any single founder, even Madison.

You know by now this accurately characterizes Dreeben’s argument, but Elie misses how dumb it was. There is no finding of guilt right now, and we all know there is a presumption of innocence. So, what we have is an allegation of criminal conduct and it is on the basis of that allegation—backed up by what the law calls ‘probable cause,’ a very low standard of evidence—that Trump is being prosecuted. And are we really going to pretend that no prosecutor could have gotten an indictment against any former president?

For instance, later on, there is this exchange:

JUSTICE ALITO: … So moving on to the second level of protection that the D.C. Circuit cited, federal grand injuries will shield former presidents from unwarranted indictments.

How much protection is that?

MR. DREEBEN: Well, it -- it affords two levels of protection. One is the probable cause finding requires evidence. I think some of the fears about groundless prosecutions aren't supported by evidence.

And they're not going to get out of the starting gate.

JUSTICE ALITO: I mean, there -- there's the old saw about indicting a ham sandwich.

If you haven’t heard, there is a saying among lawyers that a prosecutor could indict a ham sandwich, as a way of saying that prosecutors have very little trouble getting indictments when they want one.

Back to this exchange:

MR. DREEBEN: Yes, but I think Justice Alito –

JUSTICE ALITO: I mean, you -- you had a lot of experience in the Justice Department. You come across a lot of cases where the – the U.S. attorney or another federal prosecutor really wanted to indict a case and the grand jury refused to do so?

MR. DREEBEN: There are such cases.

JUSTICE ALITO: Are there?

MR. DREEBEN: Yes. But I think that the other --

JUSTICE ALITO: Every once in a while there's an eclipse too.

(Laughter.)

We often talk about arguments that don’t pass the laugh test, and the claim that Grand Juries won’t wrongfully indict a former president literally failed that test during the argument.

Back to Elie:

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Uh, maybe because 1) Trump didn’t try to overthrow the government and 2) these prosecutions look political as heck. And the fact that he doesn’t understand either point shows he continues to be a terrible lawyer because he can’t understand how other people think.

But the tears are starting to flow:

And up until now, we could embed the posts. But Twitchy doesn’t embed posts if they have certain curse words in them, so in the next instance, we are going to have to quote what he said, with minor censorship, instead of embedding the post (and this won't be the last time):

Gorsuch suggesting that under the government's standard a president could be prosecuted for leading a ‘civil rights protest’ in front of Congress and sought to ‘influence an official proceeding.’ 

Yes, because Jan 6 and a f——g sit in are the same thing, Neil.

Well, if you actually read the obstruction statute, both would appear to be covered. For instance, the law doesn't require the obstruction to be violent.

The actual exchange, you will be shocked to learn, is more nuanced. Alito is pointing out that the President often has to work in areas where the law is murky:

JUSTICE ALITO: -- do you really – I mean, presidents have to make a lot of tough decisions about enforcing the law, and they have to make decisions about questions that are unsettled, and they have to make decisions based on the information that's available. Do you really -- did I understand you to say, well, you know, if he makes a mistake, he makes a mistake; he's subject to the criminal laws just like anybody else? … You don't think he's in a special -- a peculiarly precarious position?

And again, Mystal starts to have a potty mouth tantrum, so we will only quote him:

Alito: ‘I'm not talking about the particular facts of this case.’ 

WHY? WHY THE HELL ARE NOT TALKING ABOUT THIS F——G CASE RIGHT IN FRONT OF YOU?

Because the Supreme Court is not concerned merely with the immediate situation but with the implications of their rulings down the road. Duh.

And the really dumb thing about that comment is that he implicitly understood that when he praised the liberal justices for talking about hypothetical cases. Again, he seems like a bad lawyer who has trouble understanding where people he disagrees with are coming from.

‘Democrats follow rules that don't apply to the other side’? Is he serious?

We are back to having to quote him, instead of embedding the post:

Alito: Couldn't FDR's decision to inter Japanese Americans during WWII be charged [as a crime]?

He says that LIKE THAT'S A BAD THING?

And Dreeben is trying to say that he couldn't. 

This country, and specifically this court, is a f——g joke.

We believe that upon his death, FDR is likely to have faced a harsh divine judgment for what he did to Japanese Americans during World War II, but we also think it would not be a good idea to criminally prosecute FDR—imagining hypothetically that he had survived the war. And Alito did note that at the time the Supreme Court said it was legal, as wrong as that is.

Also, it did become noticeable after a while that the special counsel’s lawyer didn’t seem to believe any democratic president could be charged with a crime for historical wrongs.

Except what Alito is saying is that if the Supreme Court doesn’t grant immunity, then we would expect that presidents would start attempting to pardon themselves on their last day in office. And Alito was careful to say the Supreme Court had never ruled on whether a president could pardon himself. He was talking about the incentives they might create.

Indeed, bad incentives are a continuing theme. Dreeben kept arguing that if the president consults with his attorney general before doing something and the attorney general says that it is legal, that this would be a complete defense to any prosecution. That led Alito to say, in essence, doesn’t that create an incentive for the president to appoint a ‘yes man’ who will never tell the president anything he wants to do is illegal? Dreeben tried to pretend that wasn’t exactly what his approach would entail.

He did not. That is not an actual quote in the transcript.

Yep, he’s going more and more off the rails.

He could have given a better presentation without hurting his standing before the court. In fact, it might enhance it.

First, we never thought that Ken Starr was politically motivated.

Second, Kavanaugh did say that he thought that special counsel statute was unconstitutional. It’s almost as if his work history doesn’t prevent him from making a neutral assessment of an issue, or something. How shocking!

Indeed, we thought Kavanaugh was the most interesting when he said that the Supreme Court case that said that the independent counsel law was constitutional (Morrison v. Olson, 487 U.S. 654 (1988)) was a mistake. He brought it up at least twice, and the second time he spoke extensively about Scalia’s dissent in that case:

And [Scalia] said: And I think this applied to the independent counsel system, and it could apply if presidents are routinely subject to investigation going forward. ‘One thing is certain, however. It involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute? What would the reaction be if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as picking the man and then searching the law books or putting investigators to work to pin some offense on him? To be sure, the investigation must relate to the area of criminal offense’ specified by the statute, ‘but that has often been and nothing prevents it from being very broad.’ I paraphrased at the end because it was referring to the judges.

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That would be Justice Robert Jackson being cited there, quoting a speech he made as an attorney general and it's worth quoting more of it:

There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn't blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff will be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning. What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

If the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm — in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

Is there a better description of what is happening to Trump right now than that? And we have to think Kavanaugh had that on his mind. It's this kind of thing that makes us think that selective prosecution is very much on the justices' mind.

Anyway, returning to Mystal, we are back to having to quote him:

The ‘independent counsel’ law was rewritten into our current ‘special counsel’ law BECAUSE of the s—t Kavanaugh helped Starr do! Everybody was like ‘that crap can't happen again.’ 

Somebody get @neal_katyal and @MonicaLewinsky on the phone to blow up this a——e.

Lewinsky and blow are in the same sentence?


Mystal goes on:

Every time I try to no have a stroke listening to this b—t, they say something even more risible and stupid.

He’s so mad, it’s making him dyslexic.

Kavanaugh: ‘President Ford's pardon. Hugely unpopular when he did it... now probably looked on as one of his better decisions.’ 

What? WHAT? WHO THE F—K THINKS FORD'S PARDON OF NIXON WAS A GOOD IDEA? WHEN DID I DIE AND GO TO HELL????

And then in the next quote, he gets sexist:

This could be a men v. women 5-4 ruling.

Men: Let's kick this back to DC to further delay Trump's trial.

Soto, Kagan, Jackson: Why? That's f——g dumb.

Barrett: Ladies, I agree with you, but we shouldn't call the men f——g dumb. We should politely disagree.

Sorry, is he claiming that Thomas was appointed to help Trump?

Jokes aside, what he is claiming is that these Republican appointees are not truly independent, which ignores that on balance Republican appointees on this Court are more likely to vote in a way that upsets their own party—which remains true even if you don’t include Roberts.

We’re very sorry you might not get your election-interfering trials before the election.

As if this lawfare crusade against Trump isn’t itself a kind of madness. How far should we distort the rule of law to get one man?

Anyway, that was it for Mystal (who is a man), but we wanted to take a few moments to add anything important we had heard in the oral argument that neither analyst had covered.

First, we noticed that Jackson said repeatedly that there is no language in the Constitution granting immunity. We think Trump’s attorneys would have been well served to say something like ‘there was nothing in the Constitution about judicial immunity, either, but somehow the federal judiciary had no trouble finding that by reasoning from the structure of the Constitution.’

At one point, Sotomayor argued that if the President didn’t violate some criminal statute then he can’t be impeached for it. That is, frankly, the narrowest interpretation of the executive impeachment clause we have ever heard.

And there is something interesting in that. Many have claimed that the grounds of impeachment for the president or other officers cannot be reviewed by the courts. In short, the legal determination of whether or not an act is impeachable is left to Congress alone—the House in deciding what to impeach a person for and the Senate in deciding whether to convict. So, if a president convicted by the Senate went to the courts and said ‘I was not properly impeached, because the grounds of my impeachment are not valid,’ many claim the courts would be powerless to intervene. This has led some people to claim that therefore Congress can impeach anyone in the executive for any reason—even jaywalking, as happened in the Fallout universe.

We have been skeptical of that claim because if the actual language of the executive impeachment clause is meaningless why are there two impeachment clauses and why are they written differently? Of course, most people don’t know there is a second impeachment clause, but there is one. The executive impeachment clause might be familiar to you. It says:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

That is in Article II, Section 4. But there is another clause, which we call the judicial impeachment clause, which reads:

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour[.]

That is found in Article II, Section 1—practically next to the Executive Impeachment Clause—and while it doesn’t specifically say anything about impeaching a judge, it has been read as implying that they can be impeached for a lack of good behavior since 1803—the same year the Supreme Court decided Marbury v. Madison, 5 U.S. 137 (1803). So why have two different legal standards for impeachment, if the actual words don’t matter?

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Obviously, that is not relevant in this case, but it is interesting.

Also, we thought this exchange was unintentionally funny, dealing with the ‘take care’ clause. That refers to Article II, Section 3, which says that the President ‘shall take Care that the Laws be faithfully executed.’ That part is cited in this exchange:

JUSTICE SOTOMAYOR: All right. And the only words in the Constitution is -- that -- that have to do with the president and law is that he shall take care that the law be faithfully executed.’ Correct?

MR. DREEBEN: That is right.

JUSTICE SOTOMAYOR: Hard to imagine that a president who breaks the law is faithfully executing the law. Correct?

MR. DREEBEN: He has to execute all of the laws.

All of the laws, you say? Such as our immigration laws? Or how about the laws that say that student loans have to be paid back? We could name probably a dozen laws the Biden administration has chosen not to enforce.

The only good news for the current President in this exchange is that this is not his lawyer saying this, but rather a lawyer for the special counsel. That reduces, but doesn’t eliminate, the embarrassment.

But that brings us to another point. This special counsel’s lawyer—and Justice Jackson—kept arguing that future presidents would have an incentive not to engage in the politicized prosecution of former presidents. For instance, Justice Jackson said this:

JUSTICE JACKSON: All right. The final sort of set of questions that I have have to do with what I do take as a very legitimate concern about prosecutorial abuse, about future presidents being targeted for things that they have done in office.

I -- I take that concern. I think it's a real thing. But I wonder whether some of it might also be mitigated by the fact that existing administrations have a self-interest in protecting the presidency that they understand that if they go after the former guy, soon they're going to be the former guy and they will have created precedent that will be problematic.

So I wonder if you might comment on whether some of the caution from the Justice Department and the prosecutors and whatnot comes from an understanding that they will soon be former presidents as well.

The lawyer for the special counsel agreed with her softball question, and this author couldn’t believe how dumb this was, because this was THE LAWYER FOR THE SPECIAL COUNSEL. The official position of the Biden administration is that Jack Smith and his office is acting totally independently, and the Biden administration has no ability to control them. So how can the hope that prosecutors might be reined in by the President be relevant to this discussion of the behavior of a special counsel? Are they admitting that Jack Smith would back off if Biden ordered him to?

Further, it’s kind of ridiculous to suggest that the current president would be afraid of being prosecuted when he leaves office. We are reminded of a T-shirt that said: “Don’t mess with old people. Life in prison is no longer a deterrent.” Any sentence Biden might serve is unlikely to be a long one.

Dreeben also had this weird claim that didn’t pass the laugh test: ‘prosecutors have no incentive to bring a case to a grand jury and secure an indictment when they don't have evidence to prove guilt beyond a reasonable doubt. It's self-defeating.’

He had the nerve to say that after his boss, Jack Smith, tried to prosecute Trump, the presumptive nominee of the Republican Party. Smith wrecked Bob McDonnell’s political career based on a prosecution that was overturned by a unanimous Supreme Court—but you don’t think maybe he felt like he still accomplished his mission?

The final point we wanted to make is that we haven't seen anyone mention that in truth, both sides agreed that a president/former president had some immunity. Dreeben admitted that, for instance, a veto could not be the basis of a criminal charge against the president, as well as a pardon, the recognition of a foreign nation or a presidential appointment. He waffled a bit about the president’s commander-in -chief powers, but was supportive of that immunity in at least some contexts. So, there was no lawyer standing before the Supreme Court that day arguing that there was no such thing as presidential immunity. They were simply negotiating over the scope.

And that is it for this author’s notes and we will wrap things up, here. None of this is an exact science but we feel pretty good predicting that if Supreme Court doesn’t actually ‘take a walk’ as we suggested (and the Supreme Court does have an institutional genius for avoiding sticky questions), then there seems to be no dispute that the president has some immunity, and we think the court will be likely to say that there is more immunity than the special counsel would like.

Tags: CONSTITUTION CRIME SUPREME COURT TRUMP

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