Welcome to a whirlwind week at The Collision. We knew with the Supreme Court hearing oral arguments Thursday in the 14th Amendment disqualification question, we’d be publishing a day later. But we hadn’t counted on special counsel Robert Hur’s report into President Joe Biden’s retention of classified documents dropping the same week as both the Supreme Court hearing and the ruling from the D.C. Circuit Court that Donald Trump is not immune from criminal prosecution for actions he took when he was president.
There’s a ton to get into, so consider the Docket cleared for this week. We’ll kick off with the basics on Hur’s investigation.
For Biden, Good News and Bad News
Here’s the topline takeaway from the report from special counsel Robert Hur: He is recommending the government bring “no criminal charges” against Biden for his retention of classified documents he obtained during his time as vice president.
“We would reach the same conclusion even if Department of Justice policy did not foreclose criminal charges against a sitting president,” Hur added in his report to Attorney General Merrick Garland this week. But the report didn’t end there, unfortunately for Biden. While the report clears Biden legally, it bolsters the political case against the president’s advanced age.
The lengthy report, which Hur was required to provide confidentially to Garland but which the attorney general chose to release to Congress, describes Biden’s “significantly limited” memory and “limited precision and recall” during his interview with investigators as they asked him whether he knew that he had retained classified material in violation of the law. The uncovered classified documents included a box of papers related to the war in Afghanistan, discovered in the garage of Biden’s Delaware home, which “looks more like a place a person stores classified documents he has forgotten about or is unaware of,” Hur’s report says.
The report goes on to list several examples of Biden’s lack of recall during his interview with investigators, from the exact term of his vice presidency, to the contours of the internal debate in the Obama administration about Afghanistan, to even the year of the death of his son, Beau. All of this, Hur argues, would be used to argue reasonable doubt to the charge that Biden knew he was unlawfully retaining these documents.
“We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory,” Hur writes. “Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him—by then a former president well into his eighties—of a serious felony that requires a mental state of willfulness.”
The report raises so many questions about Biden’s age and cognitive abilities that the president made the rare move to read a statement and take questions from reporters Thursday night at the White House, ostensibly to respond to the report itself.
“The special counsel acknowledged I cooperated completely. I did not throw up any roadblocks. I sought no delays,” Biden said.
He defended himself by blaming his own staff for the retention and placement of those documents, and admitted that he should have overseen the transfer of documents from his vice presidential office to his home. “I take responsibility for not having seen exactly what my staff was doing,” Biden said.
He also responded directly to what he called “commentary” on his age and manner.
“I know there’s some attention paid to some language in the report about my recollection of events,” Biden said. “There’s even [a] reference that I don’t remember when my son died. How in the hell dare he raise that?”
The Immunity Two-Step
This week, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously rejected Donald Trump’s argument that he was categorically immune from prosecution by special counsel Jack Smith for any crimes he may have committed trying to overturn the 2020 election. This may have seemed like a done deal after Trump’s lawyer was forced to concede during oral arguments last month that under his logic a president could order Seal Team 6 to assassinate a political rival and—unless that president were convicted in an impeachment trial—he could not be charged with a crime after leaving office.
While it’s true that this week’s outcome was not a surprise, it’s still a question the Supreme Court has never answered.
It may seem nuts that a former president could argue he’s immune from anything after he leaves office. But the Supreme Court has previously held that former presidents do have absolute immunity from civil liability for their official acts. This means that a former president can’t be sued for an action he took while in office unless that action was purely a matter of personal conduct. But in those cases, the Supreme Court was careful to note that there is a “lesser public interest in actions for civil damages than, for example, in criminal prosecutions.” So, here we are.
The better question is: What happens now? The trial was set to start March 4, but U.S. District Court Judge Tanya Chutkan has already scrapped that date. Trump, of course, wants to delay the trial until after the election.
So what are his options? This is where things get a little hairy.
On the same day it released its immunity decision, the D.C. Circuit panel issued an order saying that if Trump tries to ask all of the other judges (there are 15 in all) on the D.C. Circuit to hear his case, they’ll allow Chutkan to move forward with the trial. But if he skips that step—one that would delay his case by months—and goes directly to the Supreme Court, Chutkan will have to hold off on setting a trial date until the Supreme Court either decides whether he is immune or specifically says that the trial can move forward before it decides the immunity question.
This gets to a nagging issue with this case: the ticking clock of the looming election. Donald Trump is the likely Republican nominee, and if he wins the general election, the criminal cases against him—all of them—will be put on hold while he is in office, or dismissed entirely. It’s why Smith’s team wants to speed up the process and why Trump’s team wants to slow it down. These are political, not legal, arguments for why the courts should act, yet the D.C. Circuit appears also to be influenced by the time crunch.
So here are the many ways this could go: Trump now has 90 days to ask the Supreme Court to hear his case. Then the court can ask the Department of Justice to respond. Then the case goes on the schedule for the justices to talk about during one of their weekly conferences. They could decide right then whether to take it. Or they may not. Or they could decide not to take it but allow time for one or more of the justices to write a dissent from denial. And if they take the case, the constraints of the court’s schedule means the justices almost certainly wouldn’t hear it until the fall—maybe even as late as November, by which point, the election will be over.
Or the Supreme Court could tell Trump that he’s welcome to file his appeal in the normal course but the justices won’t delay his trial while his appeal is pending. Of course, the whole question on appeal is whether Trump can be tried in the first place.
At the end of the day, a few things are true:
1) It’s becoming harder and harder to imagine Trump will stand trial before the election. While not set in stone, the Department of Justice has a policy of not trying candidates in the couple months before an election. Defendants generally get about two months to prepare for trial. And a trial like this would probably be scheduled to last for two weeks or more. Since Super Bowl Sunday is upon us here’s an analogy: If Trump uses the full 90 days he has to file an appeal to the Supreme Court, Smith will get the ball on his own 20-yard-line with about 30 seconds to go and needs a touchdown.
2) Very smart Supreme Court litigators will tell you with confidence that the Supreme Court is not going to take this case … and also that it will definitely take this case. It takes four justices to agree to hear a case at the Supreme Court. When Jack Smith tried to skip the D.C. Circuit, he told the Supreme Court it should take this case because it involved an issue of national importance. How can he say otherwise now? On the one hand, it’s easy to see why justices would vote not to take the case if they agree that Trump is not immune from prosecution: Just let the D.C. Circuit decision stand and move on. On the other hand, they may also think it important for the Supreme Court to rule Trump is not immune. And why. And to say it now before the next case comes up after, say, former President Biden is indicted.
The 14th Amendment Gets Its Day in (Supreme) Court
The Supreme Court convened Thursday to hear oral arguments on the question of whether Colorado could remove Trump from its Republican primary ballot after the state’s Supreme Court found that he was disqualified under Section 3 of the 14th Amendment to the Constitution. A reminder of what this section says:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Two hours of justices questioning both sides made one thing clear: It’s hard to see how Colorado wins this case. So for any of you still holding out hope that “this one neat trick” would keep Trump off the ballot, your dreams may be dashing against the rocky shores of reality.
But here’s what we won’t know until we get the court’s opinion: What is the final vote and on what grounds does the court decide the case?
The questions the justices ask during oral arguments don’t always reliably indicate where each justice will ultimately land, but in this case they did seem to send notable signals. Based on the questions, seven justices (Clarence Thomas, Samuel Alito, Neil Gorsuch, Amy Coney Barrett, Brett Kavanaugh, John Roberts, and Elena Kagan) seemed to believe that Colorado does not have the power to remove Trump from the ballot. It was harder to gauge where Ketanji Brown Jackson and Sonia Sotomayor would land. Both liberal-wing justices clearly rejected some of the Trump lawyer’s arguments—but perhaps not all of them. So will this be a 7-2 decision, or will Chief Justice Roberts be able to persuade his colleagues to speak in a unified voice?
The second question is what the court will say about why Colorado can’t remove Trump. There is no controlling Supreme Court precedent on this question, so the justices are more or less starting from scratch. As we’ve covered in this newsletter before, a lot of different—and plausible—arguments exist. But on Thursday, most of the justices appeared to agree that Colorado’s position is an odd one.
“I think that the question that you have to confront is why a single state should decide who gets to be president of the United States,” said Kagan at one point to a lawyer arguing against Trump’s position. “In other words, you know, this question of whether a former president is disqualified for insurrection to be president again, just say it, it sounds awfully national to me.”
With their questions, the skeptical justices seemed to acknowledge several criticisms of the Colorado argument. For one, it would be odd for a post-Civil War amendment that was intended to curb the power of the states to empower an individual state like this. For another, how could Congress vote to restore a candidate to the ballot if, as here, a state can remove a candidate from the ballot before that candidate even filed his paperwork? And finally, how and by what standard would the Supreme Court be able to review different factual findings by different states using different standards of review, different witnesses, and different processes? The framing of a majority opinion striking down Colorado’s removal can be seen in all these lines of attack.
What will happen now? The nine justices will go to their private conference room, talk about the case, then vote. The most senior member of the majority (in this case, likely the chief justice) will then assign someone to draft the majority opinion. For a case of this magnitude, the chief justice will probably assign it to himself.
After he is done drafting the opinion, he will send it to the other eight justices, who will either agree to sign onto his opinion or decline. They may offer edits. They may write their own opinions and circulate those to see who will sign on. In the end, we’ll end up with a majority opinion and possibly some concurring opinions, and of course dissenting opinions for those who don’t sign onto the majority.
The last case the Supreme Court heard on an emergency basis like this was the 2021 vaccine mandate case. (Full disclosure: That case was argued by Sarah’s husband.) The court issued its opinion six days after hearing oral arguments in January 2022. Fun fact: Before the vaccine mandate case, it had been at least 50 years since the court had heard oral arguments on an emergency petition like this. We live in interesting times!
One More Thing
One fascinating part of the Colorado argument was witnessing three methods of judicial interpretation collide. There were the textualist arguments: What is an officer, and is it different from an officer of the United States? Originalist arguments: Could the ratifiers of the 14th Amendment really have meant to exclude the president—and only a president who had not previously taken an oath of office—from its reach? And consequentialist arguments: Won’t a bunch of blue states knock Trump off and a bunch of red states knock Biden off—arguing, perhaps, there’s an “insurrection” on the southern border—and only a handful of states would be left to decide the presidential election?
It will almost certainly be a lopsided victory for Trump, but we may learn even more about each justice’s judicial philosophy when the opinion is released.