Indictment Watch: Supreme Court Hears Trump’s Immunity Case

Can presidents legally stage coups?

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The Supreme Court this week heard oral arguments for Donald Trump’s immunity case, and David has thoughts. However, he was too sick to join today so Sarah had to go solo (Ruminant style!), recapping the legal and political implications of the case, assessing the strength of the arguments and their significance for the future of our political system, and trying to imagine where we go from here in this bizarre election cycle.

The Agenda:
—Good and bad news for Trump
—What presidential acts are immune?
—Impeachment and conviction
—Going through the specific charges
—Can Trump stage a coup?
—ANSWER THE HYPOTHETICALS!
—Defining official acts
—The effect on Trump’s other cases
—The effect on SCOTUS as an institution

Show Notes:

—Bonus Collision newsletter

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Comments (99)
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  1. Chris Newman

    Sarah,

    Big fan, but I have to cavil at your passing discussion of the Alien & Sedition Acts. Which yes, were Bad Things, and yet still not quite as bad as you're making them out to be. The old maxim "the greater the truth the greater the libel" wasn't invented by Federalists to defend the Sedition Act, it was a well-established principle in the British law of seditious libel. And more importantly, the Sedition Act actually departed from that common law doctrine in that it DID recognize truth as a defense, and in fact only applied to writings that were "false, scandalous, and malicious." It also recognized the right of the jury to decide whether the writing in question actually met these standards. In both these respects, the Sedition Act was actually significantly more speech-protective--at least on paper--than the existing law of seditious libel. I say on paper, because that protection didn't necessarily mean much when the Federalists were hand-picking the judges and juries. Still, claiming that Adams & co. passed a law that didn't care about truth is just inaccurate.

    Regards,
    Chris Newman
    (I'm a prof at Scalia law just down the road from you)

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    Bill Dyer (aka Beldar)

    I was not able until today (Tuesday, April 30th) to listen to this episode of Advisory Opinions. Regarding the presidential immunity oral argument, I associate myself with every single word Ms. Isgur says here, and commend her both for her perspective (the long one) and her incisive legal analysis.

    I again perhaps abuse Dispatch Media's bandwidth by republishing here a comment I left on her Collision newsletter, written before I'd heard this podcast, that will demonstrate the violent congruence of our opinions — for which any credit goes only to her, my own opinions having been much influenced by her & Mr. French's prior discussions on all of these subjects.

    Yes, I'm wearing my Advisory Opinions ballcap.

    ============

    Shortsightedness runs rampant, especially in election years.

    An unbroken string of presidents dating back to the first one, the indispensable George Washington, have managed — despite some pretty fraught and perilous times — to avoid criminal prosecution as an ex-president. One, Richard Nixon, needed to resign from office, and to be pardoned by his successor, to keep the streak going. But Trump has broken it, bigly.

    I'm as worried as anyone about the prospect of a second Trump term. I'm still very worried about a Biden second term, which I expect will shortly become a Harris first term, even though my worries are of a different categorical sort than I have regarding a second Trump term. It's exactly as simple as this: One of these terrible candidates has called for the termination of all rules, including the Constitution, that obliged him to give up the White House, so I'll cast as meaningful a vote as I'm able against that one. But that's a short-term view, a now-to-November view.

    I do not want the Supreme Court of the United States to be taking a now-to-November view, not on as important a question as "What can, and can't, a president be tried for in criminal courts after he or she leaves office?"

    And yes, as Ms. Isgur correctly frames it, that question is more important than Trump's case. The nation needs it answered definitively by the Supreme Court of the United States. If you say, "But he may win again and pardon himself, and moot this and all other federal prosecutions!" then I will agree with you that that would be a terrible thing.

    And then I will tell you: Explain that to all your friends, and anyone with whom you have any influence, to help try to persuade them not to vote for him. And do not expect the SCOTUS to rush through a decision, before there's even been a trial held, that will spare the electorate the risk of turning this next election into the last election we'll ever have.

    (I'll reconsider if you can explain to me how you expect that we'll have another presidential election, if he succeeds in terminating all rules, including the Constitution, that could make him step down from office. Article II and the Twelfth and Twenty-Second Amendments, the source of those rules, are part of the Constitution. So you ought not hold your breath waiting for me to reconsider this assertion.)

    BUT:

    Even if the SCOTUS does nothing more than (1) reject Trump's claim of absolute presidential immunity and (2) send the whole thing back to the lower trial and appellate courts to figure out which charges a president may have a QUALIFIED immunity against, depending on the nature of the facts alleged and laws relied upon, that still is going to advance the cause of trying to achieve justice IN THIS CASE (as opposed to on this question).

    You were always smoking crack if you thought there'd be a verdict in the D.C. case before the election. If the SCOTUS has dashed those hopes, they were illusory to begin with and you've lost nothing of genuine value.

    If the SCOTUS gives any guidance AT ALL to the lower courts — which it need not do to decide, against Trump and all future presidents, the question of whether a POTUS can claim absolute immunity; and which it arguably shouldn't do (lest it be rendering an advisory opinion from a crystal ball) — then at least that much of the further proceedings against this particular defendant will gain decisive clarity.

    And if the SCOTUS gives no guidance at all — if it prefers to hold all of its options open until there's actually been a jury trial on the merits (which might moot everything with an acquittal); entry of a final judgment of conviction by the trial court on that jury verdict; a regular (non-interlocutory, pretrial) appeal of that final judgment to the court of appeals with jurisdiction, here the D.C. Circuit — then at least the first hurdle necessary to hold Trump criminally responsible for his crimes (assuming his presumption of innocence is overcome by proof beyond a reasonable doubt) will have been cleared.

    There will be more hurdles! But the key to winning the race is to jump them all, in order. One doesn't want to fall on the first, easiest one.

    Thus even if one's focus is on the case, and not the question, the definitive resolution of the "absolute immunity" defense — a question of spectacular constitutional importance! a question of initial impression! — will have been a big damn deal.

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      BillAZ

      I'm just jumping in here before listening to Sarah. The question is a BFD to quote our current POTUS but seems to me almost irresolvable - which may be why it's never been asked. It seems to me the case is what needs to be addressed and that's far simpler than the question.

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  3. J.Fisher

    Seems to me like the impeachment clause using “nevertheless” means that the founders were not making impeachment and removal the sole remedy for misconduct during office (criminal or otherwise). Logically that would negate the idea that impeachment is a prerequisite for criminal charges, no? lol lo

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  4. Roy Peled

    A word of experience from Israel (that supports Sarah's claim, which I otherwise don't really support):
    We have what might read as constitutional absolute immunity for official acts, but has been interpreted (rightly, I would argue) to be qualified.
    Each of our last four Prime Ministers (five if you can't Netanyahu twice for two separate periods in office) was subject to criminal investigations. So that supports one fear Sarah mentioned in the podcast.
    But then one was jailed and the other I think is very likely to be found guilty when his never-ending trial will end (the current). So perhaps that's a good thing?
    Another point of experience from here - Following the GAs advice does roughly immune you, as suggested by Dreeben. Indeed that makes her almost a co-president *on some specific limited matters* as Sarah feared. But if she does a good job, then she doesn't really engage in presidential thinking, just explains the limits. So not really a co-president, just someone with a final word on what's out of the scope of authority (which justices and judges do, so do we think of them as co-presidents?)

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      Aylene Wright

      Interestingly, I get the impression that the threat of prosecution doesn't actually seem to be something that influenced the behavior of current electeds in Israel that much, certainly not more than the usual noncriminal motivators of wanting to win elections.

      South Korea is also a democratic country notorious for ex-Presidents being indicted, and of Presidents being impeached in office as well. I recall one even sadly died by suicide to avoid either indictment, impeachment, or both. But that doesn't seem to have paralyzed SK Presidents into being afraid to do their jobs, either.

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      1. Roy Peled

        Indeed, but this is part of a larger discussion on the deterrent effects of criminal law... One can hope that the impact would grow over time. I think it is definitely evident that they rely heavily on legal advice from the GA on normal affairs, the problem is when they want to do something realy criminal (although one should say that it is highly highly doubtful that any of these cases would have been considered a criminal offense in US law).

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    Justice

    Is a blanket self-pardon even a thing? I thought that to receive a pardon you had to admit to a specific wrongdoing.

    I'm sure you lawyers have invented some fancy language to deal with this, but I'd be curious to hear how.

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      Bill Dyer (aka Beldar)

      This is very general, but authoritative and pretty good:

      https://constitution.congress.gov/browse/essay/artII-S2-C1-3-1/ALDE_00013316/

      On self-pardons, Ms. Isgur is correct: You can find a think-tank, law review article, or advocacy group that's published scholarly writing to support any and all permutations. I'm fond of this one by the Cato Institute's Ilya Shapiro from 2020, although I haven't studied the question thoroughly nor read many other competing arguments: https://www.cato.org/commentary/president-can-self-pardon-it-would-be-impeachable-offense

      See also, on the admission/imputation of guilt from accepting a pardon, and the need to accept it to claim the benefit of it during a later proceeding, this Wikipedia article gives you some of the broad signposts. https://en.wikipedia.org/wiki/Burdick_v._United_States

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        Justice

        Awesome response. Thank you.

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  6. Nic Neufeld

    I think we may be ready for that "QUESTIONS NOT CASES" AO merch, maybe a coffee mug?

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    Pat @ Tavi Hall

    From April 29th Morning Dispatch, "The justices seemed likely to decide that the former president is immune to prosecution for some official acts taken while in office, with a Supreme Court ruling in the case likely instructing the lower court to determine which conduct in Smith’s indictment constituted personal acts and which were official."

    In a criminal case, the jury determines if actions are made in self-defense. Will the jury also detrmine based on a judge given standard what actions were public or private? Or will the judge?

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      PaulH

      My sense is that the judge will make this decision. I have heard a number of commentators indicate that it will take the the judge some amount of time to determine which actions are or are not subject to immunity; and, that her decision could be subject to appeal.

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    Gibby

    Sarah did an amazing job doing it solo

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    Todd T

    Hey Sarah. I am incredibly impressed at your ability to pull off a solo podcast with a lot of content. You channeled some Ruminant energy!

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  10. Alec Ward

    Your reference to section 242 gave me an idea for the AO Suggestions Box: I’d be super interested in a recurring “better know a statute” segment in which you guys pick one of the frequently-litigated statutory provisions we hear about on the show (e.g. 1983, the federal fraud and bribery statutes, the APA, felon-in-possession) and discuss the basic statutory framework, key interpretive decisions, and how/why it comes up in present-day litigation.

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