Divided Argument

Back on the Island

Episode Summary

Will makes Dan interrupt his vacation to talk about the case you've all been clamoring for: Trump v. United States.

Episode Notes

Will makes Dan interrupt his vacation to talk about the case you've all been clamoring for: Trump v. United States.

Episode Transcription

[Divided Argument theme]


Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court Podcast. I'm Dan Epps. 


Will: And I'm Will Baude.


Dan: So, Will, you successfully persuaded me to podcast on vacation, something I have made you do, here and there in the past. I am in Oregon, not in Grants Pass, but in another part of Oregon, and I am taking time away from beautiful weather and seeing the sights to talk to you. 


Will: I appreciate it, and I think our listeners are going to really appreciate it. 


Dan: Well, don't you have a high opinion of us? We'll find out in the reviews. 


Will: I think if I tried to record the episode by myself, I would just get all the one-star reviews being like-- 


Dan: Yeah, that would be interesting if it was just you, just you with no co-host, just ranting [Will chuckles] without me to even keep you in check, you would just talk about how Justice Thomas deserves even more millions and millions.


Will: A listener to the show who is in my immediate family asked me about that particular claim I made, [chuckles] invited me to defend it. 


Dan: Well, I mean, you were inviting those kinds of invitations, right? It was a little bit of-- little flavor of trolling going on there.


Will: Is it trolling if you really believe it? 


Dan: Ah. You could believe lots of things, but you said that with a smile on your face, even if it wasn't visible. You know that and I know that and our listeners know that. Even you are willing to descend into the fray and just put one toe into the fray now and again. You can't always stay above the fray. 


Will: Maybe you should try recording an episode without me sometime, see if that finally-- 


Dan: Yeah, I don't know. It might get just increasingly deranged. 


Will: [chuckles] You just say, “Now I know if Will were here, he would say, ‘It's all fine. You're not giving him enough credit.’”


Dan: Yeah, I just wonder whether I could actually emulate that or whether I don't have it in me to come up with the rationalizations that you can sometimes offer for things that seem indefensible. 


Will: Yeah, well, I'm glad I add some kind of value. 


Dan: Well, let's see whether you can do that today, continues to be a lot that's been going on at the court, and we are not going to be able to do everything. I know people are going to be looking forward to hearing us talk about Loper Bright and the end of Chevron shortly after its 40th birthday. But that's not going to be today. That's on our docket. But the thing that I have time for and the thing that people are most demanding is a discussion of, got to be the most high-profile decision that came out in the last week or so, just given media attention, which is the Trump immunity case, Trump v. United States. And I have some thoughts about this one that we're going to get into. 


And I'm hoping that you will be here to tell me, give me the steel man, this opinion and give me the best possible version of it and how it's the best Supreme Court opinion ever written, and I just didn't quite realize it. So, we're going to find out about that in a couple moments. But before we do that, can we just ask you a question? In terms of looking back at the term, what do we think in the 10-20 years will be seen as the biggest decisions from this term? So, Loper Bright overruling Chevron, I mean, I assume that's going to have staying power as a big deal. 


Will: I assume, although it may be replaced by something. So, maybe in 20 years, people will all be talking about some case we've never heard of. But, yeah, Loper Bright seems up there.


Dan: Anti-Chevron, like if the statute is ambiguous, do the opposite of what the agency says. 


Will: And I assume Jarkesy is going to be significant, is [crosstalk] to go somewhere. And it might be the real answer is the administrative state. I think if you take Loper Bright and Jarkesy and you add some of the other-- the admin law decisions that are maybe less significant on their own.


Will: But Corner Post. 


Will: Corner Post on statute limitations, Ohio v. the EPA, just a substantive, hard look case, but in which the court engages in very aggressive administrative review. I think people may well be looking back at this as when the Constitution in Exile finally started to get back on the boat and start bossing the administrative state around or something. 


Dan: We're not supposed to say Constitution in Exile, right? 


Will: Why not? 


Dan: Isn't that a thing that liberals claimed that conservatives had said and then conservatives denied ever having said it? 


Will: Yeah, but then Steve Sachs wrote an article called The Constitution in Exile is a Problem in Legal Theory, so I'm allowed to say it, right? 


Dan: Okay, it's back now. 


Will: Well, it's not going to be an exile anymore. 


Dan: Yeah. [laughs]


Will: [laughs]It's like Napoleon is coming.


Dan: Well, just remember, we did get Napoleon back on the island a second time. So, Justice Sotomayor's hope may continue to spring eternal. Okay, other stuff. There were some things on the orders list, some dissents from denial and the like. We will maybe circle back to those at a more convenient opportunity. But for this episode, and given my limited time, I am recording this from an Airbnb on a somewhat uncomfortable bed on the Airbnb, kids are running around downstairs. So, we're sneaking this in through a limited window. So, I think we should focus on what the people most want. So, Trump v. United States. 


Will: The people want Trump. 


Dan: They sure do. We're already getting emails about it, and a friend of mine said he had just downloaded the latest episode and was actually really mad that it was not about the immunity case and [Will laughs] was giving me hard time about it.


Will: Our latest episode came out before the immunity case. 


Dan: That's what I thought. But people aren't always paying attention, and I don't know, maybe we could be ready to record these things 10 minutes after the decisions come out. But that's just not really how I process these things. And we have other things going on in our lives. 


Will: I certainly have a lot of processing to do. Everybody knows the background here that Donald Trump is facing or has faced felony charges in four different jurisdictions. The New York State courts that have convicted him, so go back to that, the Georgia State courts, which are now mired in some process scandal about Fani Willis’s conflict of interest, the Southern District of Florida, where he's charged with having unlawfully retained classified information and then also lied, cheated, and steal to avoid having to give it back. That case is in front of Aileen Cannon. And then this case, which is the one actually on appeal, which is a prosecution in the DC District Court, more or less for the attempt to overthrow the 2020 election. Both the conduct on January 6th and the surrounding fake elector schemes and various other parts of the scheme to try to find some way to stay in office. 


Dan: Yeah. And so that case had been proceeding pretty quickly. They had been in the district court, and then there was an interlocutory appeal to the DC Circuit to resolve this question about, the scope, if any, of the immunity of a President from criminal prosecution. And the DC Circuit decided that case quite quickly and wrote an opinion that I think a lot of people thought was well done. 


Will: Who thought it was well done? 


Dan: The people. You thought it was badly done? 


Will: Nobody thought it was well done.


Dan: Really?


Will: They're the reason the court took this case. Anyway, sorry. 


Dan: Just for the record, I thought that the general wisdom after that, I recalled, maybe this is not your circles, was that DC Circuit, under time constraints, did a good job with it, and, gosh, it was surprising the court took it. Didn't the DC Circuit do such a thorough job? And maybe in retrospect, that was dumb, and actually, of course, they were going to take it, and the stakes are so high, blah, blah, blah, blah. 


Will: I thought the general wisdom was the DC Circuit very resoundingly rejected basically any claim official immunity in reliance on Marbury v. Madison. And it did that instead of either saying, “Well, yes, there's official immunity in some cases, but doesn't apply here,” or even just doing a laser focus on the charges and saying, “Well, we don't really have to answer a lot of those questions, because in this case, this is all private conduct.” There are other paths they could have taken. And one theory is that having written a really broad opinion, that made it seem more necessary for the court to intervene if it didn't agree with the breadth of the opinion. 


Dan: Yes, that's quite plausible. I think it's also plausible to just say the stakes of this decision are so high that this is the kind of thing the Supreme Court should decide, even if we were going to affirm. 


Will: Right.


Dan: And so, people really did freak out after the cert grant. And in retrospect, that freaking out seems not wholly unjustified, given what happened. But my take post cert grant, and then it kind of bolstered a little bit by reading some stuff that Jack Goldsmith wrote about it at the time, we'll circle back to him in a little bit was that, “I see the case for them wanting to weigh in on this conclusively now, rather than let there be continued lingering uncertainty about what the Supreme Court thinks about this whole set of questions.”


Will: Right. Rather than say, “There is no circuit split. A circuit split is unlikely to arise in light of the peculiar facts presented here. In fact, we suspect that there's unlikely to be any future prosecutions quite like this one.” Although maybe that's not true. Maybe they think if they don't say something, there's likely to be a lot more prosecutions like this one. 


Dan: Well, that is a point that we will get into. Okay, so the court decides to hear it, hears it on a pretty expedited basis, and managed to get it decided by the end of the term, and it ended up being one of the last day cases. 


Will: Right.I think would have been the very last case, because the three last day cases were by Justice Barrett, Justice Kagan and Chief Justice Roberts. And so, I think as the senior most Justice, he would go last, right? 


Dan: Yeah. Save the best for last, depending on your view. 


Will: I was going to say going out with a bang but--


Dan: Yes. 


Will: Okay, so should we just talk about the court holds first? 


Dan: Let's do that. So, there's a couple moving pieces here. So why don't we walk through each of them? 


Will: Okay.


Dan: So, first one. 


Will: First piece. Core official power. Official acts that are also core executive power. 


Dan: What is core? 


Will: One moving piece is immunity for official acts and not for unofficial acts. That's a kind of divide that a lot of people had expected maybe. There are people who would say no immunity for anything, people who wanted even more immunity, and it's not clear what that means. But then the court's first extra gloss on that is official core.


Dan: So, just to freeze that first thing, though, at the outset, that doesn't mean that by virtue of being president, you get to commit all possible crimes for four years, and you have a get out of jail free card, you can murder your spouse. 


Will: Right. I think the president murdered his spouse that would not be official conduct, I assume.


Dan: Unless we, well, it depends on the hypo, right? 


Will: But, if the president on the side at night is just going out and robbing a 7-Eleven in a mask, not acting under any color of office, I assume that would not be an official act. 


Dan: Probably not. But again, we can draft the hypo all sorts of ways. Okay. 


Will: It'd be good for his ratings, probably at this point. [Dan laughs] The core is the set of stuff that's like a presidential power in Article II that Congress basically can't regulate.


Dan: Yeah. It's the stuff that he could do even at the lowest ebb. 


Will: Yes. 


Dan: So, it's the opposite of what I said before.


Will: Yeah, it's the things that are still at the zenith when they're at the lowest ebb, which is part of the problem. 


Dan: Yeah. 


Will: The classic example. People debate it, but the classic example is the pardon power. Person has the pardon power, it's basically his prerogative. There's precedent 150 years old saying that Congress can't regulate the pardon power. So, some might say the pardon power is in that category, if you believe the Supreme Court-- 


Dan: Well, can you just help me understand that a little bit? So, I take the point that Congress couldn't just pass a statute saying the President has to pardon people that we want him to, and the President can't pardon people who committed drug offenses, right? 


Will: Okay. 


Dan: Should that mean that, Congress can't say, the president can't take a bribe to pardon somebody? 


Will: Let's just say in 1870, 1872, the Supreme Court held that not only can Congress not say who the President can pardon, but Congress can't even say, as a rule of evidence, we're going to assume that if you got a pardon, you probably were guilty of insurrection, like when we're deciding forfeiture proceedings after the civil war, that even that indirect burdening of the pardon power violates Article II. 


Dan: Why does that indirectly burden the pardon power? That seems like it's a problem for people who got pardons, but-- 


Will: Right. Well, it's like drawing an adverse inference from the issuance of a pardon. That's not the inference that would have otherwise obtained without the statute. And so, I'm just saying that's the court's theory. So, if the pardon power is like that, maybe those cases are wrong, maybe Congress should probably do that. I know in lots of states there are more limitations on the pardon power, like the pardons have to be published in advance or they have to be in writing and stuff like that. But if the pardon power is like that, then the argument goes, Congress also can't criminalize giving a pardon for a corrupt reason. I'm not sure about the bribe. The bribe actually might be different. The court's a little confused about bribery, but--


Dan: Yeah. So, that's something we'll circle back to in a minute. But I guess, could you come up, say that what you are criminalizing is the taking of the bribe not-


Will: Right. Maybe-- [crosstalk] 


Dan: -the actthat the bribe is in exchange for it. 


Will: But I think that Congress definitely could not pass a treason statute or an obstruction of justice statute that said, “Pardoning traitors is aid in comfort to treason or pardoning your cronies in order to stop the investigation against you is a form of instruction of justice.” The idea is it can't do that. That's just categorically immune. 


Dan: Okay, so that's core. 


Will: That's core. 


Dan: Do we have a complete list of core?


Will: No, because to know what the complete list of core is, you need to know what your view is about Article II and there's a bunch of substance of disputes about that. If you ask today's majority, they would put the power to fire executive officials in core because the court's precedents in Salah Law and the other unitary executive cases say Congress can't regulate the president's power to remove people. That's also core. But of course, those cases are 5-4, and there are lots of cases on the other side, and they're not obviously correct. So, we can fight about that being core. 


Dan: Do we even have a sense of how much stuff is core versus not core, like in the abstract, how much stuff that presidents do? Maybe that question doesn't even make sense. 


Will: I mean, the implication from the opinion… So, the opinion treats the indictment as being in this case, in Trump's case, as having a little bit of core stuff, but mostly not core stuff. But I'm not sure that even-- again, the more you have a really substantive view of Article II, the more you think the executive power includes all sorts of substantive things, the more things you're going to think are core, and the more you think Article II is a sort of empty vessel. That's just the power to execute the laws, the more you're going to think very little is core. 


Dan: Okay. 


Will: That's a moving piece that the court's trying to move beyond. So, then we got unofficial acts. No, immunity. We got core official acts, which have absolute immunity. And then, like all good presidential power cases, we have a third category that's, I think, the most confusing category. Is that fair? 


Dan: Yes. This is the in between. 


Will: Official but noncore.


Dan: Yes. And do they give us a clear rule about immunity for these things? 


Will: No. They get at least presumptive immunity. [chuckles] So, I take it they might also get more than presumptive immunity. They might also get absolute immunity. They're not ruling that out. 


Dan: Why don't we just get to know that right now? 


Will: I think we don't get to know that because the majority opinion only has five or six people, and there aren't five people who all have the same view about that.


Dan: It's weird, though, to just say, we're going to give you the framework and maybe the most important piece of it, we're not going to tell you the answer yet, right? 


Will: There's a lot that's weird about this opinion, Dan. 


Dan: Yeah. 


Will: So, how do you disprove presumptive immunity? So, it's presumptive, the government has the burden of proof to beat it. What does the government have to do? The government has to show that the prosecution would not improperly burden or affect the president's exercise of their office. 


Dan: How do you do that? 


Will: I don't know. And this is a strange thing. I can't tell to what extent that's just an empirical question. Is this a big deal, or to what extent that's an invitation. That's part of a punt on how strong is the presidency. Like, you get to say, “Look, this won't really burden the president's office because after all, these are things that should be up to Congress, not the president, and leave that for the lower courts.” But the court says a lot about this category. So, then part of what the court’s opinion does is it walks through different categories of evidence in the indictment that are in this middle category and riffs about why they might be rejected and then says, “Well, we'll see.” So, it says a lot about it, but without really committing to a view about it. 


Dan: And maybe, is this the last piece, what kinds of evidence can prosecution use in its efforts to get past immunity and then ultimately to actually prove, successfully prosecute a president for crimes that were, say, nonofficial? 


Will: I think that is the last piece just before we get to it, I'll just briefly build [unintelligible [00:17:18] before. So, the opinion then walks through a bunch of stuff in the indictment and explains why it's official. Like, all of president Trump's tweets and conversations are all basically official because the president's job is talking, according to Trump v. Hawaii and so that's very probably protected. All the president's conversations with the vice president about the January 6th process are probably protected because the president and the vice president are supposed to be two peas in a pod, except maybe not because the vice president is also acting in the legislative capacity and so, etc. So, the court walks through all that stuff, gives a roadmap to why it might be covered.


Dan: This is not at all relevant, but the opinion it paints this picture of the vice president as the president's buddy, and they're working really closely on stuff, at least descriptively, over American history I think that has not actually really been the case. There's been various vice presidents who have tried to make power grabs and play a bigger role in administrations then it never works out. There's some really interesting stuff in the most recent Robert Caro LBJ book. [crosstalk] 


Will: Yeah, there's also a little funny originalist literature about this is like, “Was the vice president originally understood as primarily the President of the Senate, who, in a pinch, stand in for the President? Or were they primarily understood as part of the executive branch, who would then wander over and command the Senate? And the 12th Amendment changes this a little bit, so, anyway. There's a lot of that opining; its exact force, I think is a little unclear because ultimately those who are all questions, the court leaves for the district court to work out apparently between now and January 20th 2025. But those are there. Okay. Then the court takes this turn that I think surprised some people. I mean, it was discussed some argument, but it surprised some people, which is so. Once we've got our list, once we've figured out which the court does not figure out what the list is of protected conduct, you can't be charged for that conduct because it's protected. But the court says you also can't admit any evidence of that conduct at trial, because why? 


Dan: Because that would require the jury to speculate about the president's motives in performing those official acts. And apparently, we can't even give the juries an instruction to tell them not to do that, that it would taint their decision making. They would be mad, like, “Oh, the president made this decision, which we don't like, therefore, we're going to convict him of this other thing.”


Will: So, we fought a lot, discussed a lot, the Bruton case a while ago on this podcast about the Bruton rule about codefendant confessions and stuff. And that's famously one of the-- people often say it's one of the only areas where the Supreme Court has said jury instructions don't work. For many, many other things, it says, “Well, we'll just tell the jury to ignore it.” And then I think in Smith v. Arizona, which we haven't talked about yet on the show, Justice Alito and Chief Justice Roberts in a separate opinion they complain, like, “Aren't we always supposed to let jury instructions work? I can't believe the court-- in that case is not confident, we can just tell the jury, don't worry about it.” But here the court says, “Look, you can't just tell the jury don't worry about it. You can't just tell the jury these acts are privileged and you're not supposed to use them as a basis to convict them.” They think in reality, if you introduce this privileged conduct that juries don't like, there's a way that it'll be used against them. 


Dan: Okay, so what does that mean in practice? 


Will: So, the reason this is so important in practice for this case is, so the shape of the thing at argument is-- so at argument, Michael Dreeben, who was representing Jack Smith and the special prosecution said, or representing the United States, I should say, and made clear that he'd, like, consulted with the SG. So, this is like, fully US approved. Anyway, but Michael Dreeben said, “Look, there's a tiny bit of the indictment that talks about maybe firing somebody the justice department and trying to get them to bring bogus fraud suits. And so maybe we have to lose that part of the case. It's not that important. That's fine. But all the rest of this stuff, even if some of it's privileged, you know, is stuff we want to bring in as evidence of the conspiracy and how it worked, because the core underlying conspiracy is not privileged. So, whatever you guys say, don't worry, just let this case go forward. It'll limit a little bit how we present the evidence of trial, and that's fine. But we don't need to, like, go back to square one with the indictment.” 


Drafting it this way, I do think makes it more likely that you have to go back to square one, this case, and first you figure out what is protected, and then you have to pretend that it didn't happen in some way and sort of charge only the unpredicted stuff. 


Dan: Okay. So, there's a little bit more to say about exactly what the scope of that rule is and try to figure that out. I don't know if it makes sense to do that. Circle back to that when we talk about Justice Barrett. Okay, let me just linger on this majority a little bit, though. I think you basically covered the moving pieces. Was there any other big move you wanted to cover before I ask you some more questions about it? 


Will: Well, I think we have to talk for a minute about part V. 


Dan: Okay.


Will: Then the opinion closes with this statement about how the court sees itself and how it sees the rest of us. Basically says, “This is a really important question of lasting significance. This is, of course, one of the court's themes is, you might hate President Trump, but this is a, a rule for the ages. But in addressing the question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies. So, you all, you're losing your minds because you're just worrying what this is going to mean for President Trump. But don't worry. We're above all that. We're going to consider the profound consequences of the nation. Our first president had such a perspective.” And they go on about like, “This is what George Washington would have done and what he would have liked, I was to think in these broad terms. And so that's why we have to do this. And we're just the most principled umpires the country has ever had.”


Dan: Nobody else, everybody else is confused and hysterical, and they're clear thinkers.


Will: Unlike the political branches and the public at large. 


Dan: Yeah. What did you make of that? Is the court being the adult in the room there? 


Will: They certainly think they are. I think from the court's point of view, everybody else has lost their mind about Trump, including the Justice Department, including, “Why is it that we wait two years to appoint a special prosecutor and then suddenly try to push the whole case forward before the election, when DOJ is not supposed to think about elections?” I'm sure they have been following and don't have confidence in the neutrality of the trial judge and so on. So, from the court's point of view, Trump has successfully deranged his opponents. I'm sure some members of the majority have no love lost for President Trump, and they are needed to come in and think about, what are the principles we're going to want to have in the constitution when Trump is gone?”


Will: I'm not sure they're totally living up to that aspiration, but I think that's what they think they're doing. 


Dan: You know at some level, I have a certain amount of sympathy for that view, in the sense that I was always somewhat uneasy about these prosecutions. I think Trump has been very noxious for us and has done a lot of things I think are terrible. But we really were entering uncharted territory. And I think a lot of people were just cheering for criminal convictions without doing the big, systemic thinking about, “Is this really the path we want to go down.” And I was very influenced in my thinking. I've already called out Jack Goldsmith once, but influenced my thinking about Trump by something that Jack wrote pretty early, I think, in the Trump administration. I don't remember exactly when he wrote this, but he laid out this reference to the Sopranos, and Tony Soprano says, “I'm King Midas in reverse. Everything I touch turns to excrement.” I'm not going to swear, so we don't lose our family friendly rating.” 


And he said, “The danger with Trump is not just Trump, it's the way in which he's corrupting other institutions who have this immune response to try to deal with the crazy stuff he's doing by then themselves doing crazy things.” And I think that's clearly true. I think that we're seeing all sorts of stuff that is troubling from other institutions that have been deeply unsettled by Trump and are the white blood cells are coming out and they're trying to figure out how to deal with this infection, and that's causing really strange and troubling side effects. And you can make the case that maybe in some ways, that might even be worse. So, that if we could just hold the line on institutions and not do that that's the better way to get past a populist like Trump. I actually, at some level, have some sympathy for that bigger picture of you. 


I guess my takeaway reading this, and I gave a little bit of more hot takes on Twitter than I usually do because I was annoyed, is just that I don't think this is a terrible opinion. I don't think this is even a wholly implausible opinion. I think some of these arguments that it makes are reasonable as far as they go. It is just the sum total of this opinion, and then all the other opinions that these same Justices are making a swallow. They are just not reconcilable. 


The court is doing something very different here. It's engaging in a mode of analysis that it would think is illegitimate in other cases. And my view is just like, look, maybe-- we talk about some of these cases, we talk about Jarkesy, and I'm like, “Look, on the one hand, is this coming from this desire to cripple the administrative state maybe on the other hand, they got some arguments, 7th Amendment has to mean something, blah, blah, blah, blah, blah.” But then I read this, I'm like, “Okay, okay. This is what we're doing, too. I mean, there's just no consistency here. This is all BS.” And so I was pretty frustrated by it. I just thought, this is the kind of opinion that if it were about any other topic, the people in the majority would be writing furious dissents, lambasting the flexibility of the reasoning, the consequentialism, etc., etc. So, can you pull me out of that? 


Will: Well, you may have called the wrong guy. So, look, I actually agree with a lot of that. So, one way I put it is, if you view this as a consequentialist level, I think the opinion is some mix of basically unimportant and just hard to tell whether or not the prosecution against President Trump, the trial, could happen this summer or not. It's probably not that important. The New York trial doesn't seem to matter very much to the election. I'm not sure this trial would have either. And it all may be overtaken by election results anyway. And it's just hard to know what will the effect of this be in the future? 


Some people on Twitter are worried, now the presidents are really going to cut loose and do all sorts of lawless things they wouldn't do before because they don't face the threat of criminal prosecution. I doubt that. The checks were never that good, but the other not good checks we have aren't there. And on the other hand, when President Trump takes the second term and immediately tries to launch a RICO prosecution of Biden, Obama, and whoever else, this opinion will stand in the way. But, yeah, I think the opinion is more troubling at the level of craft. And obviously, we have different views about the merits of the court's opinions. But one way to just say that is like, what is the basis for this opinion? Where is it coming from? The core thing, the core thing makes sense to me. 


And this is what Justice Barrett says in her current opinion, basically is the core thing is just taking the Article II jurisprudence we already have, adapting it to criminal cases. We could bicker about how to do that. It's not obvious it has to go exactly this way, but that seems logical to me. The at least presumptive additional immunity for other official conduct that isn't core and the rule of evidence, where do they come from? The best authorities for them, as far as I can tell, are two things. One is legislative immunity. So, my understanding is that the immunity for speech and debate that's in the Constitution legislatures get also includes some rules of evidence, like, you're not allowed to introduce somebody's vote as evidence against them in various cases or something. 


In a 1982 case called Nixon v. Fitzgerald, where the court said that the president has absolute immunity for civil lawsuits for all of his official acts while in office. And there's a certain logic. You're like, well, if he has absolute and immunity from all these civil acts while in the office, I don't know why not criminal? You can distinguish criminal, but you can also say it seems like it should for criminal too. But I don't know, Nixon v. Fitzgerald 1982 is not exactly like Marbury v. Madison either. 


Dan: Okay, so just, you said the two main sources are, one an analogy to immunity for members of Congress who have immunity from what that's just something that the court made up. 


Will: No, no, right. In the constitution, it says that they're-- [crosstalk] 


Dan: It’s in the constitution. 


Will: Yes. 


Dan: So that doesn't seem great if you are looking to an immunity that's actually mentioned in the constitution to find one that isn't. And then the other thing is a Burger Court opinion, kind of fuzzy Burger Court opinion. That's not great. 


Will: I cheekily pointed this out on Twitter. But Chevron is also a Burger Court opinion from, like, two years after Nixon v. Fitzgerald. That's also about executive power and how the court should get out of the way and let the executive do its job. And Supreme Court kicked that to the curb in a very pious decision by the Chief on Friday. So, it's not like that's a bedrock. 


Dan: When you put those two cases together, it's just really hard to not be able to explain them as motivated by considerations that are external to pure legal analysis. 


Will: Let me throw some more spaghetti at the wall. 


Dan: Okay, okay.


Will: I forgot. The majority opinion also smells a lot like the majority opinion in Morrison v. Olson. The Scalia descent is the famous one, of course, the celebrated one. But the majority opinion is like, “Is the independent counsel unconstitutional?” Well, it depends on how much the independent counsel gets in the way of the presidency, and it's [Dan laughs] our job to decide whether they did or didn't. And in a way, the courts are talking about a similar test here. It's just--


Dan: Kind of a Goldilocks. 


Will: Yeah. Well, how do you do the separation of powers? How do you do the separation of powers? Well, separation of powers is a balance of powers, and so we just kind of balance. How much power we think people should have? Now, again, I'm with you that in many places, ways, the court has reformed from that. But there are parts of the court's separation of powers jurisprudence that are a little bit like this. I mean, why does the president have the power to remove officials even when Congress has said they can only be removed for cause? There's no clause in the constitution about that either. So, there's usually a lot of hand-waving about how important the president is. Maybe the court's executive power jurisprudence has always been a little bit dodgy compared to its normal standards. 


Dan: Yeah, I think that the separation of powers cases, you can put them on a spectrum. I mean, there are some that are like, “Hey, let's look at this specific constitutional provision.” And it's this thing that Congress tried to do consistent with that. Like, you have a case INS v. Chadha, the Congress tries to create this one house legislative veto, and the court is like, “Let's read the constitution.” And it's like, “You've got bicameralism. You've got presentment. This isn't there.” And then there's other cases where the court is just saying, “Well, does this violate the separation of powers clause?” There is no separation of powers clause. 


There's just a bunch of individual clauses that implicate the separation of powers, whereas instead, sometimes the court will just say, “Well, let's just give you our gestalt sense of the separation of powers and whether this is a problem without actually pointing you to any particular part of the Constitution. And this is very clearly, in that second line of cases, very little textual analysis, as I would say, this is not making a robust effort to be an originalist opinion. 


Will: Yeah, the risk of being accused of having hobby horses. It kind of reminds me of is Trump v. Anderson, the other case [Dan laughs] in which Trump was the cert petitioner earlier this year. And there too, the court seemed to think like, okay, the lower courts have lost their mind, but the Colorado Supreme Court is calling Trump an insurrectionist. And we've just got to put a stop to this nonsense before people destroy the system. They also came up with a structural principle without any real sources for it, other than a sense that it would be sensible and the country really needed it. So, my tentative thesis is it's the Midas, the Sopranos effect squared or something. They're aware of Trump's corrupting power in other institutions, and so then they feel the need to go all statesmanlike and try to save our institutions, rather than doing the normal we just call balls and strikes thing. 


Dan: This is a better opinion than the Anderson opinion? 


Will: [chuckles] Oh. 


Dan: They took longer on this. It spells out the analysis in a little bit more detail. 


Will: Yeah. The Trump v. Anderson opinion, they knew that what they were saying, it wasn't for the ages. They just needed to say something to get rid of the case. And this is what they could say. So, they did it quickly, shamefacedly, and under the banner of a per curiam opinion. And this one they did differently, but is it better? 


Dan: Well, I think it is a better written opinion. I'm not sure it is a better opinion. I mean, can we just talk about the merits for just one quick second, though? 


Will: Sure. 


Dan: People were asking this on Twitter, and I think I know the answer. But so, being the commander in chief of the military is core, right? 


Will: You're going to ask SEAL Team Six. 


Dan: Yeah. Say the question so that the listeners know what we're talking about. 


Will: Suppose the president orders SEAL Team Six to assassinate the other presidential candidate for reasons. Is that immune from criminal prosecution, right? That's the hypo that in the DC Circuit was seen as the moment that they lost the case was Trump's inability to give a straight answer to that question. 


Dan: I think that's immune. 


Will: I think it's unclear. [laughs] I think it's not even clear that it's immune. 


Dan: Isn't that core? That's like Commander in Chief of the military. Like, look, Commander in Chief of the military has to be core, right? 


Will: Well, but what Commander in Chief is hotly disputed. So, one view of Commander in Chief is it's just chain of command, but Congress can pass rules of engagement, for instance-- 


Dan: Yeah, that's the Baron-Lederman. 


Will: Yeah. I mean, so Congress passed a statute saying, the CIA is not supposed torture people anymore. And I think if you're John Yoo, you think that statute is unconstitutional. But if you're John McCain, you think that statute is perfectly constitutional. And that question might go to, can Congress have a statute saying SEAL Team Six should not assassinate people for political reasons? Suppose there's a statute that says that implicitly, the question is that statute constitutional? The fact that the president is the commander in chief doesn't totally tell us to what extent all uses of force are core.


And even if you think that, say, uses of force abroad during wartime are core, you might think that uses of force domestically during peacetime are not core, or you might draw the line somewhere else, and the opinion doesn't tell us any of that. 


Dan: Yeah, I guess that's right. Even if it were not sure, it would make it kind of hard to bring that prosecution because of the evidentiary rules.


Will: Well, I'm not sure whether the-- So, it would be official acts, but noncore. I mean, presumably be an official act, and then so be presumptively immune. But then maybe you can rebut the presumptive immunity. If you rebut the presumptive immunity, then I think the evidentiary presumption doesn't apply either. But we don't really know how you rebut the presumptive immunity. 


Dan: But the evidentiary stuff, even if you rebut the presumption with respect to the actual charged conduct, it still could be the case that proving that charged conduct might require looking at other stuff, and that other stuff could be stuff that is immune.


Will: It might be. It depends a little bit on the scope of the evidentiary ruling. This brings me to my next question for you, which is footnote three. 


Dan: Okay. What page are we on? 


Will: Page 32. So, this is Justice Barrett, who we'll get to eventually. 


Dan: Yeah. Oh, yeah, this is the Barrett one. 


Will: Says, “Well, wait a minute. Suppose that you're trying to prosecute somebody for bribery, the president did an official act in exchange for a bribe. How can you prosecute that if you can't show one half of the act?” And the court says, Justice Barrett makes this argument, “But, of course, the prosecutor may point to the public record to show the fact that the president performed the official act. And the prosecutor may admit evidence of what the president allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. What the prosecutor may not do is admit testimony or private records of the president or his advisers probing the official act itself.” 


Dan: I don't understand. I did not understand this at all. [Will laughs] What does that mean? 


Will: Right. I mean, there's three levels at which I don't understand this. So just semantically, I think they're saying something like, “There's a judicial notice exception to our evidentiary rule.” If the official act you want to bring in is something that basically you can take judicial notice of because it obviously happened, then it comes in after all. Now one question is, why? Which is not clear. Before Justice Barrett objected, this footnote presumably didn't exist. So, did the court change its position in response to Barrett's objection? [Dan laughs] And then at argument, this point was actually the point most firmly made by the Chief. At argument, the Chief kept saying, but you've got to be able to prosecute bribery. And how can you prosecute bribery if you can't consider both halves of the transaction? And he never got a good answer. 


One interesting theory about why the opinion is written this way is obviously important to the Chief to write this opinion and important to him to write it for a full majority. And I wonder to what extent he wrote the opinion in a way to keep everybody on board, even if it wasn't his first best choice. So, he might have been happy once Justice Barrett made the objection to walk back his evidentiary rule a little bit, depending on why he wrote the evidentiary rule the way he did. 


Dan: Can we just try to understand the actual rule a little bit more, though? 


Will: We can try. 


Dan: So, you can admit evidence of what the president allegedly demanded, received, accepted, or agreed to receive or accept in exchange. 


Will: Yep. 


Dan: What the prosecutor may not do, however, is admit testimony or private records of the president or his advisors probing the official act itself. So, I guess that means is you could have a witness come in and say, “Hey, the president said, if you give me a million dollars, I will pardon you.”


Will: Yes. 


Dan: Right. But then you couldn't say, have the White House Chief of Staff come in and say, “Oh, yeah, he said he was going to do this because he got a million dollars.” 


Will: Yes. 


Dan: Why is one better than the other? 


Will: Allowing the second evidence in, “Would invite the jury to inspect the President's motivations for his official actions and to second-guess their propriety.”


Dan: But how is that not also inevitable if you're saying that the President was accused of taking a bribe for this official? I mean, I don't understand. 


Will: What I think they don't want is they don't want you to say, look, this act was obviously a bad thing to do, and all the president's advisors said it was a bad thing to do. And therefore, that supports an inference that the president must have been bribed, that there must have been some ulterior motive for it. They really don't want you to make that kind of attack. So, they only want you to be able to bring a bribery case if you have direct evidence of the quid pro quo, not like indirect evidence of the quid pro quo. And so on, for a lot of statutes are not as clean as the bribery statute when it's like conspiracy to defraud the United States. I mean, when it's the January 6th prosecution.


So, President Trump is out there saying, “Let's go investigate voter fraud in Georgia.” And unless we have a letter, unless we have something explicit, making clear that's only because he's got some corrupt motive, we don't want the jury to say, “Look, everybody knows there's no voter fraud. All his advisors told him there was no voter fraud. Therefore, we can second guess his decisions and direct them to justice department.”


Dan: I guess it does seem like that would still be relevant and figuring out. It does seem like if you're trying to prove bribery, you would want to know, did the person do it because they were paid to do it or not? 


Will: Yeah, no, I think you would. The evidentiary part of the opinion, I think, is the most bizarre. I mean, I don't even want to say exactly, like, look, there are people calling this opinion the worst opinion since Dred Scott, and it's terribly wrong. I don't even know how to judge right and wrong in this opinion exactly, other than just to say it's weird. There's a lot of moving parts. It's not always clear what they're doing together, at least on our read, and not always clear what is driving them. And together that makes it really weird.


Dan: You know, the Chief does sometimes write opinions like this in that the chief is very smart. There is things I like about him, and I've said that before, but he sometimes writes these opinions that are obscure, but you can tell they're obscure because he wants them to be, not because he's not able enough. And that makes them frustrating. There are decisions where he deflects on what level of scrutiny are we applying? We're not going to say. And you could just tell that it's on purpose. And then some ways that makes it more frustrating where there's some Justices where you're just like, “Oh, yeah, I know you wasn't very clear, but you get an A for effort. You were really trying, and you just couldn't quite deliver.”


Will: Yes, and I do think one time that happens is when he is in charge of keeping the band together, and it's not easy. So, if you could imagine a range of views that the Justices of the majority have about this, and he's trying to get one opinion that five Justices will basically join without squirming away from, and he's partly lost Barrett, so he doesn't have any room left to maneuver. Then sometimes you keep the band together by saying something that works for both of them, even if it's not clear whose side it was on. 


Dan: Yeah, maybe that's the best that can be said of it. Okay, let me float a couple things, and we should talk about Barrett, I guess. 


Will: Okay. There's one more outrageous thing in here. 


Dan: Okay. First thing I was going to say is maybe this is similar to what we've already been saying, but my friend Matt Lawrence texted me shortly after the opinion and said, “My hot take is that the chief is systematically Trump proofing the government. Trump already did the things he did, and permitting prosecution for them would not change what happened if reelected Trump is not going to be afraid to do illegal things just because he might get prosecuted five years later. The danger that is most serious right now of tyranny is that Trump will be reelected and then prosecute Biden and other leaders from the administration, and the decision mitigates that.” And I thought that was maybe--


Will: That’s not silly. 


Dan: Yeah. It's not silly. And maybe that is what the Chief is saying in that part V, right? 


Will: Yes. And note that you could apply this theory as well to some of the other cases like Loper Bright. What is going to be the most immediate effect of Chevron? It's going to be that the Trump administration will have a slightly harder time coming up with bogus rationales to repeal Biden administration regs in the books. 


Dan: Yeah. So, Matt actually said, I wasn't going to quote him on this because I thought, I wasn't persuaded about it. But he said, “Reversing Chevron is also consistent with that theme.” To which my response was, look, that's something that had been in the works for a while, and I think is not Trump specific. I think that was where the certain amount of center of gravity and some of the conservative legal movement was headed regardless. But fair enough. 


Will: I'm not sure this explanation is actually an account of anybody's motives here. I'm not sure anybody was thinking, how are we going to Trump proof the government. If you really wanted to Trump proof the government, there was an opportunity to do that in Trump v. Anderson [Dan laughs] just saying. [chuckles] But I do think they might be aware of that. And again, I think that makes actually the consequences of these opinions is hard to evaluate. It's just hard to evaluate.


Dan: Yeah. And Jack Goldsmith had another point. This is my last Goldsmith call out on this in law fair basically just saying, “Look, this opinion rests on a bunch of consequentialist assumptions. And those might be right, they might be wrong, hard to tell but we don't really know, which is that the opinion seems to really lean into this idea that the thing we need is energy in the executive. This is something this theme that goes back to the federalist papers before the constitution was ratified. This idea that you want an energetic executive and that the dangers of prosecution heavily outweigh the benefits of ensuring that presidents don't have break the law. And I don't know, that might be right, might not be right. It’s not clear to me that it's doing law in the same sense that the court, these Justices in the majority normally tell us law is supposed to be done. I don't know, it might be good. I'm not super wedded to the idea that we should be able to prosecute Trump. 


It's just a super outcome-oriented decision when you compare it to the other kinds of opinions that the Justices who join this opinion normally right. I mean, I've already said that. So, I'm not going to keep saying it. 


Will: And it's especially weird just to say, look consequences might be okay, that might be bad, they might be good. So, we're not really sure if it's good or bad. And that's the main thing that is going for it. [laughs] The reports to justify it is a like consequentialist estimation, because it's not like it's handed down from some legal text or something. So, then that doesn't mean it's terrible, but it also is, like, what--? How did we get here? 


Dan: Yeah. 


Will: Okay. One more thing about core, which is at page 21. One other thing the court says is core is prosecutorial discretion. The executive branch has exclusive authority and absolute discretion to decide which crimes to investigate and prosecute, including respect to allegations of election crime, blah, blah, blah. That's why anything involving investigative and prosecutorial decision making is in the core category that can't be prosecuted. Therefore, Trump was absolutely immune for all of his conduct involving the Justice Department. Was that something that was settled before? I thought the scope of Congress's ability to regulate prosecutorial discretion was one of those things the court had always reserved, even United States v. Texas, which they cite for this proposition. I think, as a footnote that, like, well, it's complicated how much Congress can regulate the president's prosecutorial discretion. 


Dan: Yeah, I think that seems right to me. That is a pretty broad claim. 


Will: Imagine a statute that said, “Here's an important crime, election crime, and it is absolutely forbidden to consider partisanship in prosecuting election crime.” Congress said that. Is the court saying that's unconstitutional actually, the president gets to decide with how partisan to be in prosecuting election crime, and Congress can't stop him?


Dan: I guess so, yeah. 


Will: If true, that's wild. And I mean, wild enough in a case where that was the core issue, to decide that was true, but to decide that like--


Dan: Just offhandedly-


Will: By the way-- 


Dan: -totally unnecessary.


Will: I'm not convinced they're going to-- I mean, I know Justice Kavanaugh had written some things on the DC Circuit that were consistent with that view. So, maybe there are enough Justices in the court who believe it that they're not going to walk back from it. But that was one of those craft moments when I was just like, “What are we doing here?” 


Dan: Okay, so should we talk about Barrett? 


Will: Yeah, we should also talk about Thomas. 


Dan: Oh, yeah. Maybe we should do that first, because it's seniority order. He has a short little concurrence that I thought was quite interesting. So, he agrees with the majority, but he says, “Actually, there's maybe another problem here, which is actually the appointments clause, because the Trump is being prosecuted by a private citizen who is appointed as a special counsel by the AG and under the appointments clause-- So, first of all, someone who is prosecuting people, I think almost certainly an officer of the United States in some sense. Very, very hard to believe that person is not an officer of the United States. 


Will: I mean, not every person, not every line attorney in the US attorney's office is appointed. 


Dan: Because they don't have the power to bind the government. 


Will: I mean this is one of the debates. I mean, they kind of do because they can make concessions in a court to bind the government. But certainly, the person, the US attorneys are all officers. 


Dan: The AUSAs are not officers, they're just employees. They sure seem like officers to me. 


Will: All right, well.


Dan: What do you think? I mean, don't you think? 


Will: Yeah, actually, look, I think, yes, and I'm not sure that's the law right now, but yes. 


Dan: I mean, who formally makes the appointment of an AUSA? 


Will: Formally?


Dan: Yeah. The AG or the US attorney? 


Will: I'm not sure. 


Dan: Is the US attorney ahead of a department or is only the AG the head of a department? 


Will: The US attorney cannot be head of department because the AG is head of the department.


Dan: Yeah, because they're in the Department of Justice. Yeah. 


Will: Right.


Dan: Okay. Well, side note, but special counsel seems to me, under prevailing tests, I think, have to be an officer of the United States, not just like an employee, maybe a principal officer, maybe an inferior officer. 


Will: Yeah. Again, Jack Smith himself is the head of the current investigation. So, I think he's like a US attorney. So, he has to be an officer regardless. 


Dan: Yeah, he seems like an officer. 


Will: I'm not sure everybody detailed on his team as an officer.


Dan: Okay. Yeah. I don't need to resolve that. 


Will: Okay, but he was appointed by the AG, right? So, it's not good enough. 


Dan: Yes. The appointments clause says, “President shall nominate by with advice, and consider the senate, ambassadors,” blah, blah, blah, “and other, all other officers of the United States whose appointments are not herein otherwise provided for in the constitution, and which shall be established by law. But the Congress may by law vest the appointment of such inferior officers as they think proper in the president alone, in the courts of law, or in the heads of departments. And so, if you're taking this seriously, it seems to suggest that the office of the special counsel would need to be created or rather established by law, and that the power to vest the appointment of such officer in the attorney general as the head of the department would have had to be vested by Congress in the attorney general.”


And according to Justice Thomas, and I have not myself dug into the statutory framework, Congress does not seem to have clearly done so, either created this office or given the attorney general the power to fill it. And I thought that was pretty interesting. 


Will: It's very interesting. So, I mean, Justice Thomas acknowledge this, in defense of the scheme, 28 U.S.C. 533 does say, “The attorney general may appoint officials to detect and prosecute crimes against the United States.” So, if you were being like a textualist, you might say, “Oh, that looks like a statutory authorization to the head of the department to appoint officials to detect and prosecute crimes against the United States.”


Dan: But that's in the wrong chapter of the U.S.C.


Will: Right. [laughs] That's in the chapter dealing with the Federal Bureau of Investigation, although-- 


Dan: Yeah, I mean, that still seems relevant. Yeah. I don't know. 


Will: Well, and also the US code is not the law. I mean, I haven't gone back to figure out.


Dan: Yeah. Congress may not have decided where to put it. 


Will: Right. Maybe this is a public law. Maybe this is a positive law title. I don't know. I mean so again, there's some interesting questions there. There's also a sort of adjacent argument that Justice Thomas just alludes to, that you could also argue that Jack Smith is not even an inferior officer precisely because he's not really being supervised. The main test of whether you're inferior officer is whether there's adequate supervision by a principal officer. And so, you might say, while in principle, Merrick Garland could supervise him, the fact that Merrick Garland has decided not to supervise him makes him a superior officer, which would then require him to be confirmed by the Senate, which he hasn't been. 


These arguments have been made in some amicus briefs, I think, in this case, and also in some of the lower court cases. One thing that's especially important about this concurrence is, it would be equally relevant to the Florida prosecution, not just the DC prosecution. And in fact, Aileen Cannon has already scheduled oral arguments about whether Jack Smith is unconstitutionally appointed that various amici, I think, including Josh Blackman, will be orally arguing at. So, I don't know that was an intentional part of the concurrence or not, but I suspect that--


Dan: Somebody finally let Josh Blackman argue as amicus?


Will: Aileen Cannon. I suspect that Aileen Cannon will be heavily engaging with this opinion when she rules on that argument. And it wouldn't even be surprising if she thought this was pretty persuasive authority for invalidating Jack Smith's appointment. So, this case might take out not just the DC prosecution, but it might take out the Florida prosecution too.


Dan: That's big. Okay, so I don't know what to think of that. Did you think it was right or are you not sure? Or maybe you buy the statutory argument? 


Will: I also haven't dug into the statutory scheme that carefully. But so far, at first glance, I'm pretty skeptical of this argument. But appointments things are tricky and statutory things are tricky. And I'll read Aileen Cannon's opinion very carefully when she issues it. 


Dan: So then, Justice Barrett. 


Will: Yeah, my hero. 


Dan: I thought this was pretty good. 


Will: It's very good. It's not right, but it's very good. 


Dan: And she says a few things, so she joins a bunch of it. She doesn't join part 3C. 


Will: That's the evidence part? 


Dan: Yeah, but she says, “I would have framed things a little differently.” And then she does something interesting where she says, “Look, they talk about immunity, and what I really think they're doing is that's just shorthand for two propositions. So, first proposition is president can challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment. And second thing is he can obtain interlocutory review of the trial court's ruling.” So, it's a package of things that we just use that word immunity to refer to. 


And then she goes through and says, “Look, the question that's really coming up in these situations is this criminal statute something that Congress is allowed to criminalize when it comes to the president?” And that even to ask that question at the outset, you have to engage in statutory interpretation, and that often can be hard, but that should be step one.


Will: There are these canons that often a generally worded statute might not even apply to the president, really, under proper principles of statutory interpretation. 


Dan: Yeah. Yeah. 


Will: If it does, then we have to ask the Article II question. Okay. Congress has clearly decided to say you can't sell pardons for money. Now we have to ask, is that within Congress, Article II power? 


Dan: Yeah. And then she still seems to buy the majority’s test, which is you ask this, is there a danger of intrusion on the authority and functions of the executive branch? 


Will: Yeah, although, I mean, she seems to buy it if you apply-- Look, if all the majority means by all that stuff is what Justice Barrett says it means, I am much more reassured by the opinion, but because it's a little vague what the majority means, I can't tell whether they really agree or whether they have different views about how it works. But if the opinion comes to stand for Justice Barrett's refinement of it, that'd be great. That's then much more like ordinary constitutional law, ordinary Article II analysis as applied to the criminal context. And with the wrinkle, the sort of procedural wrinkle of making it a pretrial immunity rather than a posttrial defense. 


Dan: Yeah.


Will: Again, I like this opinion a lot. I view it as a great second best and sort of like, would have been great if this is what the court had coalesced around. What is the basis, though, for giving the president an interlocutory appeal of these things? Like, so ordinary people are prosecuted all the time for conduct where they have an arguable First Amendment defense. It's a case involving statements. Since they want to make some First Amendment claims or second Amendment defense, it's a gun case, and they want to make some Second Amendment arguments, and they don't get First Amendment immunity or Second Amendment immunity. We just say, “Move to dismiss the indictment, and if that doesn't work, file some motions in limine if that doesn't work ask for jury instruction and if that doesn't work, take it up with the 7th Circuit.” So why does the president get a different deal? 


Dan: Yeah, I think her opinion is actually in some ways weaker here than the majority because, I mean, the traditional rule, as I understand it, is you get an interlocutory appeal of immunity rulings, because the whole point of immunity is that it's immunity from trial, not just immunity from conviction or immunity from judgment. And instead, she's not really conceptualizing it that way anymore. She's saying more, this is as applied constitutional challenges to particular prosecutions. And she just seems to say, “Well, we've got a bunch of other decisions saying there could be interlocutory review and important situations. So, this seems like that.” 


Will: Yeah. And again, look, given the dynamic, I think this was a good theory to try to encourage the court to adopt. Even if the court [chuckles] has the strong intuition there has to be some kind of immunity, then what we're just working over what the immunity is then saying, okay, but let's have the immunity do the thing that ordinary constitutional law would have done, rather than invent a weird new thing that we don't really know what it is. 


Dan: Yeah.


Will: That would seem very good. 


Dan: Okay, so was that the interlocutory part, the part that you thought was most wrong about it or confusing? 


Will: Yeah, and totally forgivable. Again, as a, I like this opinion a lot. It's very sensible. Technically, I don't really know why we get to make an interlocutory appeal, but I understand.


Dan: It seems weird that she joins almost all of the majority, even though her analysis actually seems pretty different.


Will: That could be a move to try to get people to read the majority the way she wants to. If she said, “Look, I don't agree with any of the analysis, we should be asking it this way.” Then it's clear we're not asking it her way. And if she says, “Well, the whole majority opinion is consistent with this view, this narrow view, then maybe there's more of a chance that we'll, over time, just use her approach.”


Dan: Yeah, maybe. 


Will: But also, I just genuinely don't understand what happened to the majority opinion, exactly. So, it could be that the majority opinion really is consistent with her view and it's just ambiguous. 


Dan: Yeah. Okay. Anything else to say about that? 


Will: No. I guess one thing to add, I mentioned that Justice Thomas opinion, taken seriously, would have the effect of knocking out the Florida case. Also worth noting that one big consequence of the evidentiary part of the opinion might be to knock out the New York case. The standard view has been the hush money prosecution is obviously not an official act, and indeed, much of the conduct was preelection conduct. And so, he wasn't even a president yet. But apparently at trial, various things that happened while Trump was President came into evidence, like public statements he made and some form he filed and so on. And so, there's already been a motion for a mistrial on the grounds that the admission of that evidence violated the evidentiary principle that nothing about official act was supposed to come into play. 


I have also seen some speculation that's why the court put that in the opinion, to make sure they could sort of like the godfather, like today we settle all the family business. Like there's something in this opinion to knock out every prosecution against Trump. I'm not sure. It's a little conspiracy theory-ish to me.


Dan: The immunity piece of it as opposed to the special counsel piece of it, probably wouldn't knock out the Florida prosecution, right? 


Will: Right.


Dan: I mean, maybe there's some argument that the decision of what documents retain is like a core article to presidential power that maybe or something. But for the most part, that's based on post presidential conduct. 


Will: Right. And especially all the lying and stuff is post-presidential conduct. 


Dan: Yeah. 


Will: So, you need the Thomas concurrence to stop the Florida prosecution or it may stop on its own. 


Dan: Yeah. You need Trump to win and fire Jack Smith on the afternoon of January 20th.


Will: Dissents.


Dan: Yeah. So, dissent by Justice Sotomayor. I thought this was well done. I thought this was one of her better dissents.


Will: Bringing that Jarkesy energy someplace it belonged. 


Dan: Yeah. She really leans into this idea that the Chief Justice's opinion really bristles out that you're saying the president is above the law. We have this saying in our system: No man is above the law. And she brings some things to bear that maybe would have been helpful for there to be more engagement with by the majority. She seems to have some pretty good pieces of history on her side.


Will: Yeah. 


Dan: You know, like various things from the founding era, people saying, of course, the president should still have to face trial. And, oh, gosh, some states actually explicitly had immunity provisions in their constitutions for their governors, and some chose not to. I mean, there's a lot of stuff here. I haven't read everything, but I found it reasonably persuasive without knowing the background. And if I was just trying to do originalism, it seems like she gave me a little bit more to work with than the majority did. 


Will: Yeah. I will say there are a few places in there the majority did try to respond. The responses were not very persuasive. They're like, well, yeah, they talked about the president being prosecuted, but they didn't say for sure it would be for official acts or-- well, to send the most compelling piece of evidence is some statements from Charles Pinckney. But Charles Pinckney is not exactly a reliable authority in the separation of powers because he thought it was wrong to let the President nominate judges, [chuckles] which is a bizarre ad hominem. [Dan laughs] I mean, there's also a whole gloss thing going on to the extent you care about it. I do think the relatively settled assumption has been that while the president has immunity from prosecution while in office, people always said immunity from prosecution while he's in office was an important limitation to that. And even as recently as Trumps second impeachment trial, it seemed to be common ground that criminal prosecution would still be an available alternative for the conduct that he was being acquitted for. 


Dan: Yeah.


Will: I think Mark Tushnet even pointed out, like, shouldn’t some principle of estoppel say that if you in one proceeding beat the wrap by promising that you’ll be go after you in a second proceeding, [chuckles] you can’t then show up in the second proceeding and say, “Actually, I have immune because you didn’t go after me in the first proceeding.” Like that's something judges stopped us from doing a long time ago. 


Dan: Yeah, other normal litigants would not be allowed to do that. They'd be held to those representations. So, I don't necessarily need to go line by line on this dissent. But I thought it was well done. 


Will: But do you think it gets a little overheated at the end? So, at the end, it's like the dissent states confidently that the president can order the Navy's SEAL Team Six to assassinate a political rival, immune. Organizes a military coup to hold onto power, immune. Takes a bribe in exchange for a pardon, immune. Immune. Immune. Immune. 


Dan: I actually enjoyed the writing on that. I take your point that maybe there are arguments that that’s not the case if that were so.


Will: You would expect the majority to say so. 


Dan: Couldn’t the majority have been like, “This is not the result of our opinion.”


Will: Yeah, that’s fair. I would have said that’s overheated rhetoric. The majority will easily be able to say, “Oh, come on, that’s not what we were saying.”


Dan: But so just to be clear, the majority is saying that in all those hypos, the president is presumptively immune, correct? Ordering the Navy SEAL Team Six to do something is an official act. 


Will: Yes. Organizing a military coup, I'm less sure about, but let's assume yes. 


Dan: Yeah, I guess it just depends on but-- 


Will: But is it the US military--? [crosstalk] [chuckles] 


Dan: Yeah, I mean, presumably that's what it means. Take a bribe in exchange for a pardon. I mean, all those things at least evolve official acts.


Will: But the bribe in exchange for pardon, the bribe is not an official act. So there, that's just controlled by footnote three, that the bribe is unofficial, and then you're allowed to prove the pardon on the basis of the public record, [chuckles] I guess. 


Dan: Yeah, I guess, it's still not totally clear. And just to be clear, the court standard for when you can get past immunity, first of all, okay, you might still have absolute immunity for things that are not core, but even if you don't, to rebut the presumptive immunity, the court tells us, the prosecution would have to show that the prosecution would pose no dangers of intrusion on the authority and functions of the executive branch. Not like, pose no huge dangers. No dangers. 


Will: Well, and what is intrusion? Because, again, [Dan laughs] sometimes Congress has the power-- there are some laws that intrude on the executive branch, but that's just Congress is allowed to do that, right? Like, all the presidential record keeping acts or whatever, like, they're annoying, they intrude in the executive branch and the executive branch, that's just the way it goes. So, are they saying that actually Congress can never do that? Or does intrude have coded into it? Like-- [crosstalk] 


Dan: It's bad? Intruding is bad. 


Will: Intruding is bad. I mean, saying the president can't take bribes for pardons, that intrudes [chuckles] on the executive branch. The president might want to take bribes for pardons. 


Dan: Yeah. One of the many things I don't really understand. 


Will: Okay. And then what about, “With fear for our democracy, I dissent.” 


Dan: I quoted this on Twitter. I thought it was an interesting line too. The things that Trump is being prosecuted for, are meaningful threats to our democracy. I think you believe that, right? 


Will: But do you think our democracy would be any safer if Trump were prosecuted for them? 


Dan: I don't know. I think possibly. I'm not sure. I exist in a space of deep uncertainty here. I think possibly, I think the consequences of prosecuting him are indeterminate and quite possibly counterproductive, may make him more powerful, but there may be other-- I think she's also worried about the downstream effects of future presidents. I don't know. Maybe the threat of prosecution does rein in some crazy stuff. I thought part of the reason that maybe the whole Nixon saga would have unfolded differently if we had known he was immune for some amount of his conduct. Would we have gotten his tapes if he was immune, if we knew he was immune at the outset? 


Will: Yeah. I mean, it's debated whether it's all official acts.


Dan: This court wouldn't have given the special prosecutor the tapes, that's for sure. There's no way. There's no way. 


Will: Yeah, I think, hasn't Justice Kavanaugh already written about that? I agree with that. I guess that's what I'd say, as a consequentialist, again, it's just not clear to me. The democracy, the majority opinion, might be good for democracy because the prosecutions might be bad for democracy. It might be the other way around, I don't know. I am enough of a retributivist to just think, even though the prosecutions may well be counterproductive and may well fail, I just think you just can't let it go, regardless of the consequences, it's just like, you just can't run illegals. There’s no way. 


Dan: All she says is, “with fear for our democracy.” She doesn't say “with absolute certainty of the demise of our democracy.” I think it's totally reasonable to have fear. 


Will: Yeah, fair enough. 


Dan: Has resolved. Okay. 


Will: Although It's fear that our democracy will elect Donald Trump. [laughs] I think that's part of the fear. 


Dan: Well, no, I mean, immediately before that sentence at the very end of the opinion, she says she's talking about the more general problem moving forward all former presidents will now be cloaked in such immunity if the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. So, I don't think it's just about electing Trump. I think it's actually about the bigger problem. But just to flag. It's an “I dissent,” not the “I respectfully dissent.” That is a signal that this is a big deal. This is something that the Justice is very happy about. Justice Jackson does the same thing at the end of her separate dissent. 


She is the non-principal dissent Justice Sotomayor would say is the principal dissent and is referred to as such by the majority. Justice Jackson's dissent, I guess I didn't totally understand what the purpose of this dissent was. 


Will: The rule of law. 


Dan: Yeah, we got some capitalized rule of law going on. She seems to go on like a criminal law theory tangent. And she has this, talks about these different models. There's the individual accountability model. I don't know. This one didn't do a lot for me. Maybe I was missing it. 


Will: I think you're the target audience, like criminal law theory. [Dan laughs] So, one other thing, in a way, that makes me, again, on the consequences. This immunity only applies to the president. It doesn't apply to everybody else in whatever. Like SEAL Team Six is not protected by this, right? 


Dan: Yeah. 


Will: So, that's the other thing, I don't get totally about the really overblown consequences. I'm pretty sure when the President orders SEAL Team Six to assassinate a political arrival, SEAL Team Six is not going to do it. 


Dan: The president could just pardon them, though. 


Will: Could, but he might not. 


Dan: Yeah. 


Will: And I think they might not do it for other reasons too. I mean, they might not think it's the right thing to do and also be quite deterred by the criminal law. And you sort of saw this with Trump, like with the whole plot to overthrow the election is he kept losing people. He couldn't get Bill Barr to do the stuff he wanted, couldn't get these people do the stuff he wanted. Now a bunch of them are being prosecuted. And I would think in the next administration, in some sense, it might be even worse. Like you might think, “All right, the president has nothing to fear, but we do.” [laughs] It's all well and good for him to insist on this, but-- so, I guess that's a backstop. 


Dan: Yeah, maybe. Okay. Well, anything else to say about this? We've covered most of the things I wanted to say. 


Will: Yeah. I'm not sure it's bad, but I don't like it. 


Dan: Maybe this is a side effect of, you're the main person I talked to about all these Supreme Court decisions and then you've managed to persuade me that maybe there's a little bit more law going on here some of the time and there's some decent arguments here. You're subtly red pilling me on some of these. And then you just get to this and it's a total record skip needle scratch. And I'm just like, “Okay, maybe this is actually all made up after all. What are we doing here?” The sum total, I'm willing to buy-- I'd be willing to buy this if it came with other stuff, I'd be willing to buy the other stuff, it didn't come with this. But when you put it all together to package, then it just makes me, put on my legal realist hat again and just say, maybe they are just doing politics and just giving the Republican party what they want. 


Will: Yeah, but do you think, really John Roberts wants Trump or the Republican Party--? 


Dan: I don't know what he wants. Yeah, I don't totally know. 


Will: This legal realism doesn't seem very realistic to me. 


Dan: I don't think it totally describes what he's doing. 


Will: He's writing the opinion. 


Dan: He's writing the opinion, but he's also-- he is finessing a court where he is no longer the deciding vote on anything, right?


Will: So, here's one other version of this theory. Another version of theory is this is like a hostage video. [Dan laughs] The Chief has this opinion, [chuckles] he has an assignment, and he has a team he has to keep together. And he can’t explicitly say some of the things he might want to say. So, he is trying to subtly blink at us. 


Dan: So, should we read the first letter of each paragraph to see if they spell out, like help me-help me? 


Will: I still believe in the rule of law. 


Dan: [laughs] You're bringing a little bit more heat today on this one than I might have expected. I thought you were going to talk me down on this. Now I'm all worked up. 


Will: Well, again, look, most of the commentary about this opinion is unhinged, I think, and wrong. [Dan laughs] It's not helping. This opinion is not Dred Scott, and it's not even clear it's going to lead to bad consequences. 


Dan: Can I give you my tweet about this? This is my most viral tweet from yesterday. I said, give me this-- sometimes, I try to not do too many hot takes on Twitter, but sometimes the temptation is too strong. 


Will: Yeah. I thought you were not doing Twitter. 


Dan: Mostly I'm not. And then sometimes I hop on there. And it's hard for you to keep me away the last week of the term because it's so easy to get all the retweets. The temptation is just so overpowering. I've had multiple hundreds of and thousands of retweets. So, this is the one yesterday that did the best, which I said, “If Justice Garland had written a 5-4 decision for five Democratic Justices recognizing an unwritten constitutional principle shielding President Hillary Clinton from criminal prosecution, much of the conservative legal movement would have raged about it for a generation.” Okay, true or false? 


Will: True. 


Dan: I thought that was pretty clearly true. And certainly, especially if the decision was as unpersuasive as this one, or at least as crafted in the same way. Absolutely true. 


Will: Can I ask, what do you think Justice Kennedy and Justice Scalia would have done in this case? 


Dan: Same thing. 


Will: Same thing?


Dan: Probably. Yeah.


Will: Okay.


Dan: Yeah, same thing. Don't you think that? 


Will: I don't know. Maybe. I was having a moment where I was missing some of the old Justices. I'm thinking they would have done something different, but you're probably right. 


Dan: I could see Justice Scalia writing a somewhat more nuanced thing. Maybe a better version of a Barrett. 


Will: Well, and a more antagonistic one. Not a like-- 


Dan: Yeah, like a concurrence in the judgment. Not a-- Yeah. 


Will: No, but more of a like, what the hell are we doing here? 


Dan: Yeah. Okay, well, I think I've exhausted what I want to say about this. 


Will: Well, it's after midnight here in Chicago, so I'm exhausted. 


Dan: Yeah. Yes. Okay, so why don't you close this out? 


Will: Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thanks to all the listener feedback we've been getting. We've been skipping over some of it as we've been diving into these cases, but we're going to be coming back to a lot of it as we start circling back to things in the term. 


Dan: And send us an email pod@dividedargument.com. Leave us a voicemail 314-649-3790 merchandise at store.dividedargument.com and if there's a long delay between this and our promised Chevron-Loper Bright episode, it will because the President of the United States has ordered SEAL Team Six to assassinate us to stop us from talking, and he will now face no consequences for doing so.


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