Trump’s Presidential Immunity Question

Hello and welcome back to The Collision. A lot has happened in the past week, from Hunter Biden getting indicted on tax fraud to the special counsel investigating Donald Trump requesting the Supreme Court settle a dispute about presidential immunity—and the sooner, the better.

We’ll get into both topics in a bit.

The Docket

  • The House of Representatives voted Wednesday to formalize an impeachment inquiry into President Joe Biden. The party-line vote saw all 221 Republicans support the inquiry after the White House indicated it would not consider subpoenas from the investigating committees valid unless the inquiry were official. That resistance is reportedly what compelled the holdout Republicans skeptical of the impeachment investigation to get on board, even if some of them say the evidence of wrongdoing by Biden is lacking.
  • Hunter Biden refused to testify before House Republicans on Wednesday, defying a subpoena. Instead, the president’s son held a press conference outside the Capitol to demand a public hearing rather than the private interview requested by the House Oversight and Judiciary committees. The GOP chairman of those respective committees, Reps. James Comer and Jim Jordan, said Wednesday they will “initiate contempt of Congress proceedings.”
  • Testimony ended Wednesday in former President Donald Trump’s civil fraud trial in New York. Trump was scheduled to testify on Monday for a second time—this time, as a witness for his defense team—but the Republican frontrunner announced last weekend that he would not. Judge Arthur Engoron will render a verdict sometime early next year over just how much Trump will owe after making a summary judgment that the former president had inflated his wealth. Engoron will also make a judgment about whether Trump will be prevented from running his business.
  • A fun scoop from the Atlanta Journal-Constitution: “The apology letters written by two of the attorneys who struck plea agreements in the Fulton County election interference case are just one sentence long and hand-written on lined notebook paper.” Be sure to click over to see these apology letters from Scott Hall, Sidney Powell, and Kenneth Chesebro.

SCOTUS May Weigh In on Presidential Immunity

President Donald Trump speaks in the Oval Office on September 11, 2020. (Photo by Anna Moneymaker-Pool/Getty Images)
President Donald Trump speaks in the Oval Office on September 11, 2020. (Photo by Anna Moneymaker-Pool/Getty Images)

This week, special counsel Jack Smith asked the Supreme Court to answer the question: Is Donald Trump immune from prosecution because he was president at the time of his alleged crimes? Tanya Chutkan, the federal judge presiding over Trump’s election interference trial in Washington, decided earlier this month he did not have absolute immunity from prosecution. Smith is now trying to skip the next step—allowing Trump’s team to appeal the question to the U.S. Court of Appeals for the District of Columbia Circuit—and go straight to the Supreme Court.

Chutkan wrote in her opinion that Trump’s “four-year service as commander in chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.” But, of course, that misses the point a bit. The question isn’t whether Trump is immune from criminal process for the rest of his life because he was once president. The question is whether Trump can be prosecuted for official acts he took while president if a later president believes those acts violated federal criminal statutes.  

But Chutkan is not the only one who has weighed in on this question. As we noted last week, the D.C. Circuit has ruled that Trump did not enjoy absolute presidential immunity from being sued for his actions on January 6. But, as the unanimous panel noted, the bar for filing a civil suit is lower—or at least different—than for a criminal prosecution. The New York-based 2nd Circuit this week also held that Trump had waived the argument that he might be immune from suit in the civil defamation lawsuit brought by E. Jean Carroll.

The Supreme Court hasn’t said whether it will take the case, but it has asked Trump’s team to weigh in by next Wednesday, December 20. After that, the justices could decide whether to take the case in a matter of a few days or weeks. (But then there’d be weeks of briefing, an oral argument, and another week or more before the opinion would be issued.)

Given the short timeline, we thought we’d answer a few obvious questions:

Why is Smith doing this? 

Speed. The trial is currently set for March 2024 and Smith wants to go to trial as soon as possible in the hopes of resolving the case before the 2024 election really gets underway. That, of course, isn’t going to happen for a few reasons: March is already in the middle of the GOP primary (meaning the idea that politics are somehow not going to be a part of this trial is a fantasy), this is unlikely to be the only motion that Trump’s team files that could delay the trial, and even if Trump is convicted, his inevitable appeals will take months if not years.

But even so, Smith’s petition makes sense. This is a question of national importance that won’t be resolved by the D.C. Circuit, since the Supreme Court would likely weigh in on appeal however the lower court decided. And even though the D.C. Circuit would probably resolve this quickly by judicial standards—six weeks or so—that’s a long time in the real world: We’re talking about arguments and decisions from both courts on this question all before a trial scheduled to start in March.

Will the Supreme Court accept the case? 

Yes, eventually it probably will. But the real question is whether it’ll take it now. The fact that the court asked for a briefing on the question is a pretty good sign that at least four justices—the minimum required to take a case—will just rip off the Band-Aid and vote to accept it. Assume that the three liberal justices are persuaded there is a need for speed, and Smith only needs one more. 

On the other hand, it’s not hard to imagine the justices deciding to treat Trump like any other criminal defendant—and in doing so, decide that the eventual trial date is none of their concern. The “non-institutionalist justices” (Thomas, Alito, and Gorsuch)—the ones least concerned with the practical effects of the court’s decisions—are unlikely to be moved by the arguments for why this case deserves special treatment. 

That leaves Chief Justice John Roberts, Justice Brett Kavanaugh, and Justice Amy Coney Barrett as potential fourth votes. Our money is on Roberts being that fourth vote. (If they do accept the case, we will never know who the four—or more—votes were). 

So it’s likely the court will take the case, but it’s far from a sure bet. Alternatively, the Supreme Court could decline to hear the case now, let the D.C. Circuit decide Trump isn’t immune from criminal prosecution, and decline to hear it after that too—letting the D.C. Circuit’s decision stand because the justices agree with it (or at least six of them do). 

How would the Supreme Court decide it? 

This is the big question and it goes to the very heart of why we give immunity to some public officials. Judges, for example, enjoy absolute immunity from prosecution for their judicial acts—even if they acted corruptly or maliciously—because we don’t want every judicial act subject to meta-litigation. (We should note this doesn’t apply to actions outside legal decisions they make on the bench, which is why we see some judges prosecuted on bribery charges, for instance.) Legislators and prosecutors also enjoy absolute immunity for most of their official acts too. Why? Because we want these people to do their jobs without fear or favor. So how should we think about a president?

On one end of the spectrum, not many people would argue that a former president can’t be charged with murder for, let’s say, shooting someone on Fifth Avenue just because he was president at the time he pulled the trigger. On the other end, it would seem like a bad idea to allow a current president to bring fraud charges against his predecessor for overpromising and underdelivering on a policy proposal, such as “if you like your health care plan, you can keep it.” 

And to make this discussion more concrete, one of the things that Trump is charged with is “attempt[ing] to use the power and authority of the Justice Department to conduct sham election crime investigations.” Where does that fall on our spectrum?

It’s hard to guess where each justice will fall on this question because it involves questions about executive power, separation of powers, and all the future hypotheticals about how someone might abuse their power. In one outcome, presidents could be afraid to perform basic parts of their job because they might be charged with a crime down the road. In the other, current presidents could break the law with impunity for four years without fear of any future consequences. 

I’d expect the Supreme Court to decide whether to take the case just before the New Year. 

Hunter Biden’s Legal Problems Are Getting Worse

With the House of Representatives formalizing its impeachment inquiry of President Biden this week—related to questions of Biden’s involvement in his son Hunter’s business dealings overseas—let’s take a look at the younger Biden’s own deepening legal problems.

The Department of Justice charged Hunter Biden last week on three felony counts and six misdemeanor counts of tax evasion and fraud—a remarkable development since a plea deal that would have charged Biden with just two misdemeanor tax fraud counts fell apart over the summer. This is the second federal indictment he’s faced, after special counsel David Weiss charged Biden in September on three gun charges.

If convicted of every tax charge, Biden could face up to 17 years in prison. And the indictment paints a picture of Biden as negligent and irresponsible, choosing to spend his money on an “extravagant lifestyle” rather than pay his tax bills. Prosecutors listed Biden renting a “lavish house on a canal” in Venice, California; support to buy a Porsche; stays at luxurious hotels; and even an airline ticket for an “exotic dancer.” Biden has since paid back his tax liabilities, and it’s up to a prosecutor’s discretion whether to actually charge offenders who have done so. Many times they don’t—but it’s not often the target of the investigation is a member of the sitting president’s own family.

What happened to bring about these serious charges, particularly after Weiss and his team seemed reluctant to charge Biden with anything a few months ago? In less than a year, Biden’s case has gone from no prosecution, to a short-lived plea deal with Biden copping to lesser charges, to the two indictments. Something had to trigger the change in Biden’s legal fortunes. 

To Republicans, the chain of events suggests a Justice Department that had to be dragged, kicking and screaming, to prosecute the son of the president. Weiss, who only asked Attorney General Merrick Garland to appoint him special counsel in August, only pursued these indictments after the breakdown of that plea deal with Biden’s legal team in July. At every step of the way, goes the argument, the public pressure campaign from House Republicans—including the testimony from two IRS whistleblowers earlier this year who accused the DOJ of slow-walking the investigation—had to force their hand.

First behind closed doors and then in a public hearing in July, those whistleblowers testified that Justice Department officials made all sorts of inappropriate interventions into the investigation of Biden’s tax and financial records, and that Weiss was stymied from bringing charges in two jurisdictions by the U.S. attorneys there. The whistleblowers even alleged that Weiss had requested, and was denied, special counsel status way back in 2022. These were some strong accusations, and Garland and Weiss both have denied any claims that Weiss was given anything but “complete authority” to pursue his investigation.

But it’s unlikely that these accusations, and the media attention they received, had no bearing on the decision to ramp up Biden’s prosecution, one former high-ranking DOJ official told The Collision. For whatever lofty ideals law enforcement may have about pursuing justice blindly, the reality is an investigation of the son of the president is going to be influenced by politics. 

Weiss, who began his investigation during the Trump administration and requested to stay on with Garland’s DOJ, may have honestly reached the conclusion by the beginning of 2023 that prosecuting Hunter Biden was unnecessary. Or, as Republicans and the IRS whistleblowers allege, perhaps the Biden DOJ really did make it difficult for investigators to pursue Hunter Biden—though even one of those whistleblowers did testify that he had no evidence that Garland lied to Congress about Weiss’ independence.

Regardless of which story is closer to the truth, the mere suggestion that the DOJ may have been hindering an investigation into the son of the president could have helped tip the scales—as long as there were other grounds on which to prosecute. As the former official noted to us, it would be a reasonable application of the DOJ’s principles of federal prosecution to consider the fact that the son of a president can’t be perceived as “getting off” for conduct that might be prosecuted in another circumstance.

Abbe Lowell, Hunter Biden’s attorney, argued the only reason for this latest indictment was his client’s status as the president’s son. “Based on the facts and the law, if Hunter’s last name was anything other than Biden, the charges in Delaware, and now California, would not have been brought,” Lowell said in a statement to reporters last week.

Biden and his legal team can complain about unfair attacks from congressional Republicans, who themselves will continue to complain about a Justice Department pulling out all the stops for Biden. But another way to look at the situation is that the system worked: A politically prickly prosecution seems to be heading toward a reasonable end, thanks in no small part to the political pressure from congressional oversight.

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