Lawfare Daily: Are Former Presidents Immune From Criminal Prosecution? We’re Still Not Sure

[Introduction]

Lee Kovarsky: The court says that you overcome the immunity, the presumptive immunity, if you show that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the executive branch, right? And how broadly or narrowly Judge Chutkan applies that standard is where all of the work is going to be done in this case.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, Editor in Chief of Lawfare, here with Natalie Orpett, Lawfare's Executive Editor, Quinta Jurecic and Roger Parloff, Lawfare's Senior Editors, Lawfare Courts Correspondent and Legal Fellow Anna Bower and Lee Kovarsky, the Bryant Smith Chair in Law at the University of Texas at Austin.

Natalie Orpett: There will have to be a ton of litigation, a ton of examining what each of these individual acts is, but once a determination is made, it can go off on interlocutory appeal. So that will hugely slow things down.

Benjamin Wittes: Today, we discussed the Supreme Court's immunity decision in Trump v. United States. We talked about the majority's immunity framework, what might constitute an official act, how Justice Thomas’s concurrence matters in the South Florida case, and what Judge Chutkan will do next.

[Main Podcast]

We're going to start with Roger. Just walk us through what the majority opinion did. And then we're going to have Natalie walk us through the dissents. So Roger, what did the Supreme Court do this morning?

Roger Parloff: It found that at least one part of the case is absolutely immune. And that is the portion that relates to Jeff Clark, the DOJ episode where the conspirators were going to have the DOJ issue a false letter to Georgia and other swing states pretending that there was election fraud, and the AGs were refusing to do it, and he was going to replace them with Jeff Clark.

And he is absolutely immune, that has to do with core constitutional powers. It's not just the power to remove an officer. It also has something to do with the fact that prosecution is a core executive power. So that is a, absolutely immune. The rest of the indictment, they go through, and every official act is presumptively immune at a minimum.

And he says, the majority says, this is Chief Justice Roberts, it's a 6-3 ruling. The majority is saying that we do not need to decide whether that immunity must be absolute. Or instead, whether a presumptive immunity is sufficient at this stage of the proceedings, because none of the courts below addressed the question of which issues were official or not, which acts were official or not.

And so they're going to send it back in the first instance, which means that Judge Chutkan would need to make several thousand rulings, it sounds like, about what are official acts and what are not, and then that would be appealable again. He continued to go through categories of the indictment. The incident with the vice president twisting, his attempt to pressure Pence to not count the votes.

That is certainly the ruling is that is presumptively immune. There would be an opportunity to rebut that, but it sounds like the court is pretty certain that's going to be immune. Then there is a third category, the broad range. The broad range of conduct, Trump’s communications with state legislators, trying to twist their arms.

He says that would be a very fact specific inquiry requiring assessment of numerous alleged interactions with a wide variety of state officials and private persons. Then there would be the conduct on January 6th itself, says that all his tweets and the speech are a president's public communications, are likely to fall comfortably within the outer perimeter of his official responsibilities.

Benjamin Wittes: And are thus presumptively immune.

Roger Parloff: Presumptively.

Benjamin Wittes: But again, there's a litigatable question how immunity applies to it.

Roger Parloff: There's an outside chance you could go --- they talk about this thing that perhaps to the extent that he was speaking as a candidate for office, which you remember was the D.C. Circuits way of dividing official acts from unofficial acts in a civil case against Trump. Then that might weigh in the favor of that being unofficial or overcoming the, either that or overcoming the presumption that it's presumptively immune. But then it says this thing. It says the indictment reflects these challenges. It includes only select tweets and brief snippets of the speech Trump delivered on the morning of January 6th, omitting its full text or context. Whether the tweets, that speech, and Trump's other communications on January 6th involve official conduct may depend on the content of the context of each.

So you get an idea of the thousands of rulings that are going to have to be made. It actually sounds to me like almost every exhibit would need to be reviewed beforehand and apparently the Supreme Court would get an opportunity. All those questions would be appealable. It's also clear that you can never, the court can never look into the defendant's state of mind.

Benjamin Wittes: Or at least the intention behind a given act.

Roger Parloff: That's right.

Benjamin Wittes: For immunity purposes.

Roger Parloff: Yeah, you may not inquire into the president's motives. Which in fairness is the rule in civil immunity context, but still, it's extraordinary. It's extraordinary. I've never read a ruling --- all rulings, Supreme Court rulings are “on the one hand, on the other hand.” Here are the principles. We need to steer a course between X and Y. This is not that way. This is on the one hand, and on the one hand, and on the one hand, and now we'll look at the indictment in light of these principles. And there's only one hand, and it's all concerned about letting the president have a free hand.

And it's breathtaking, both in terms of what it does to this case and in terms of what happens in the future if this man returns to office.

Benjamin Wittes: All right. So Lee, I want to ask you whether you have any sense of what would mitigate this doctrine? Do you, it seems to me they've divided the world into three baskets, right?

That which is obviously immune, that which is an official act, to which a presumption of immunity applies but can be overcome, and that which is private, and therefore immunity doesn't apply at all. And they've given Judge Chutkan two tasks before a trial can take place. One is to identify that which is in basket two, which is to say, and figure out whether immunity applies, and the second is to figure out which is in basket three, where there's no immunity to talk about, and to cull from the indictment anything that is in basket two, where you don't overcome the immunity, and anything that's in basket one.

Is that a fair summary?

Lee Kovarsky: Yeah. The easiest way to think about all of this evidence that Roger just recited and to fit it into the framework you described is that she's got to decide whether the Pence stuff gets absolute immunity or just presumptive immunity and then everything else she's got to decide whether or not it's official or private conduct.

And then, separately, for all the stuff that's in the presumptive immunity category, there's this --- what will be when people actually spend the time with this --- the most important line in the entire opinion is on page 14 when the court says that you overcome the immunity, the presumptive immunity, if you show that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the executive branch, right?

And how broadly or narrowly Judge Chutkan applies that standard is where all of the work is going to be done in this case, right? That's the presumptive category. That's where all of this stuff is going to get funneled into and she's going to have a hearing and decide all the stuff under that standard.

And I have no idea what that standard means.

Benjamin Wittes: And do you look at it and say, okay, this is a lot of work for the district court, but it basically does allow a trial on some facts to go forward? Or do you look at it and say, as I take it Roger does, this is blows up this case in the first instance, and secondly, gives a permission slip to presidents in the future?

Lee Kovarsky: I think it definitely blows up the case, if what you mean is the case isn't going to go forward anytime soon. I think after all the dust settles, there's still going to be lots of conduct that isn't immunized and that the prosecution will be able to go forward, at least theoretically, and that last caveat's important, right?

I say at least theoretically, because of course, if Trump wins the election, then he's either going to dismiss the prosecution or self-pardon.

Benjamin Wittes: All right. Natalie, talk to us about the dissents. What did the dissenting justices have to say? And there's more than one dissent here. What distinguishes the two from one another?

Natalie Orpett: Yeah actually if it's okay with you, I'll start with Justice Barrett’s concurrence because she makes, in my mind does a little bit of diplomacy. She has a couple of variations on the theme of “what I understand the majority to be saying is X,” and some of the time I would argue that she is giving a very generous interpretation of what the majority says, and in other cases, I would say she is adding some clarity that doesn't exist, building on what the majority says, to say, “this is what the majority is indicating and let me flesh it out for you a little bit.”

What she focused on, is she argued that, okay, these three categories of conduct that you have to characterize the alleged conduct into. the core constitutional powers versus other Article Two powers versus unofficial acts. Those are all fine, but properly conceived. The president's constitutional protection for immunity is very narrow.

She says the majority left open this second category of what are all these other Article Two powers that have, as we were just talking about, presumptive immunity. I think that I would now give some concrete answers as to what is not official or what does not get presumptive immunity.

So she sets out a test that she does not put as in opposition to what the majority says, but proposes it as an additional clarification. So her test would be whether--- the relevant first step in the test, whether the relevant criminal statute reaches the president's official conduct.

And second, if it does, whether the prosecution can apply, so long as applying that statute under the circumstances wouldn't unduly intrude on executive functions. So by way of example, she says, it's clearly not immune because it is clearly not an official act to call the speaker of the Arizona House to pressure him to take action with regard to the election in Arizona.

Another thing she does is she puts a lot of reliance on the fact of interlocutory appeals. So this sort of gets at one thing that Roger was talking about, and Lee actually, which is that there will have to be a ton of litigation, a ton of examining what each of these individual acts is. But once a determination is made, it can go up on interlocutory appeal.

So that will hugely slow things down.

Benjamin Wittes: And just to clarify, immunity judgments are appealable before trial on an interlocutory basis, unlike almost any other judgment that a district court makes before trial other than dismissal, because an immunity is a claim that you have a right not even to be tried, and therefore it gets litigated before anything else happens in the trial, which is why this case went up when it did.

Sorry to cut you off, Natalie.

Natalie Orpett: No, it's a good clarifying point. And she puts, Justice Barrett puts so much reliance on interlocutory appeals as a safeguard to counter what the majority says with regard to the chilling effects that not having immunity as it proposes probably more broadly than what Justice Barrett says.

Because her point is that if you can bring things up on interlocutory appeal, you are effectively saving yourself from having to defend yourself in court or in a trial. It doesn't look the same as assuming right away these broad swaths of immunity because you can always challenge what the district court judge decides on appeal.

The one thing that she does disagree with about the majority opinion, and actually says she agrees with the dissent in this respect, is an aspect of the majority opinion that I will say I personally found really, really troubling, which is that the majority says that the prosecution cannot introduce evidence of official acts in the course of trying to prove its case with regard to unofficial acts.

So, basically, the majority says that if the prosecution is allowed to say things about the president's conduct that was official in order to make for example, prove mens rea with respect to a crime, for which the alleged conduct is clearly unofficial. The majority says that's not allowed.

Justice Barrett says that's impossible. She raises a hypothetical that came up at oral argument with regard to bribery, which this idea that if you're the jury, you need to both know the quid and the quo of a quid pro quo. So if someone bribes the president to be appointed as ambassador, but the appointment authority that the president has is clearly an exclusive authority and therefore immune, if you're not even allowed to introduce that fact of the appointment as evidence, then how can a jury possibly understand what the bribe was? So I think that's the gist of Justice Barrett's, unless anyone else has anything to add on that concurrence.

Benjamin Wittes: Yeah, I will just say that Justice Barrett's concurrence is roughly where I expected the body of the court to be, and I thought she was going to be the center, at the center of gravity of this opinion, and she turns out to be the far left flank of the majority.

Okay, so now, Natalie, we're going to skip over Justice Thomas's concurrence because it has a very special role in this discussion, which Anna is going to talk about shortly, but let's do the dissents first because Thomas's, as his lone concurrences often are, it is a bit of a jag off the mainstream of the conversation.

So Natalie we have two dissents. How would you characterize them?

Natalie Orpett: So Justice Sotomayor's dissent comes first and I would say that it is, she is quite alarmed. She starts with, in her first paragraph, “because our constitution does not shield a former president from answering for criminal and treasonous acts,” saying that the former president has committed treasonous acts, and ends with, “it is with fear for our democracy that I dissent.” It is no holds barred. She starts with a discussion of the allegations in the indictment again for the purpose of saying, hey, listen, this is the backdrop of this case that comes before us.

This is what I was thinking to myself is like the anti-ostrich opinion. This is the, okay, this is all nice and good and interesting constitutional questions, but let's actually look at the case before us. Let's --- I think Quinta and I have both raised this point many times over the course of many months --- but there's a tension between those who want to treat this situation and this president as just another, question of institutions and balance of power, and there are others that want to see him and his conduct as truly an anomaly that requires a line of inquiry that recognizes the uniqueness of the situation.

A couple of main concerns that come up in this dissent. She expresses a number of times a serious concern into the fact that the majority says that you cannot inquire into the president's motive, which is something that Roger mentioned. She says, how could you possibly prove that a president did something that looks like an official act --- it can be plausibly put under that heading --- but it was completely corrupt if you're not even allowed to inquire into motive.

She goes through, just taking a totally different take than the majority on what the Constitution says, what the founders contemplated, what the historical record says. Which is just an interesting, as a side note, an interesting “we're all textualists; we're all originalists now” part of the dissent.

She says that the majority has misread Fitzgerald, which is the famous suit about civil, presidential liability from civil actions. Basically saying, among other things, the logic underlying most of the principles for which it is being cited by the majority, are completely inappropriate for a criminal context, as opposed to a civil context.

She makes the point that the majority's fashioning of immunity actually goes broader than what Trump had even asked for, because by creating these three categories, it actually even confers criminal immunity on conduct that the president may have been impeached and convicted for, which is exactly not what Trump's team had argued with respect to what the impeachment clause would do. And I imagine Anna will talk more about the impeachment clause as well.

The other context in which her concern about motive, on inability to look at the president's motive, comes up is in this difficulty of dividing between unofficial and official acts. Basically that if there's any label of an official act that can be slapped on conduct, that it becomes official and therefore it narrows to a nullity anything that is official, sorry unofficial conduct.

The last couple things. She talks about the balancing test between protecting the president's ability to fulfill the demands of office, which is one of the principles underlying the grant of immunity, versus, on the other hand, the public interest in the fair administration of justice and making sure that we uphold a system where no one is above the law.

And she basically says that the majority has completely neglected the second part of the balancing test and is only showing concern for the possible chilling effects of a president who is trying to fulfill the duties of office while having to worry about being criminally prosecuted after he is out of office.

On the same point of concern with the evidence that Justice Barrett focused on as well, she gave a useful hypothetical, which was that if the president says in an official speech that he's going to stop a political rival by any means necessary, and then he hires a private hitman, the jury wouldn't be able to hear evidence of the speech to prove the mens rea of the murder, though the murder would clearly be an unofficial act, if the speech could be construed as an official act.

Benjamin Wittes: Are there salient features of Justice Jackson's dissent as distinct from Justice Sotomayor's that bear emphasis?

Natalie Orpett: She writes that she fully signs on to Justice Sotomayor's dissent.

She writes separately to add, I think, two main points. One is that the normal accountability mechanism that we have through the criminal justice system is perfectly sufficient, and there's no reason we have to step away from this tried and true method. We use it in every other facet. She takes issue with the lack of clarity in the majority's opinion for all the reasons we've touched on already.

And she spends quite a bit of time talking about what effect this might have going forward if you entirely remove the deterrent of potential future criminal prosecution as a means of deterring abuses of power for presidents in the future.

Quinta Jurecic: Can I actually weigh in a little bit on, on Justice Jackson's opinion?

Benjamin Wittes: By all means.

Quinta Jurecic: Because I think there's some interesting stuff going on here also and how she, one of her refrains is really that this is about the judiciary and really the Supreme Court itself aggrandizing. And so here I'm drawing on work by Josh Chafetz on judicial aggrandizement and work by Mark Lemley on what he calls the Imperial Supreme Court, where there's this sort of line of scholarship that has gotten a lot of attention recently, particularly with the court's recent decisions and the administrative law space, on the court sort of making itself the ultimate arbiter of all of these various issues. And Jackson doesn't cite that scholarship directly, but does repeatedly say: this is an instance where the court is arrogating to itself the ability to make these ultimate calls. And that she seems to read it as an effort at holding onto or even grabbing at institutional authority in a way that I think is very interesting.

And to me, perhaps helps square the circle a little bit between, how to situate this with a lot of John Roberts other work, which I think has not been particularly Trumpist, MAGA, whatever you want to call this, and the more sort of aggressive posture that this majority opinion takes.

Benjamin Wittes: All right, so Lee, before we talk about the application of this to the instant case, I want to ask you about the application of it to President Nixon, because it seems to me that President Nixon --- the so-called smoking gun tape was him directing an executive branch official, if memory serves, H.R. Haldeman to tell the CIA to get the FBI to back off an investigation, right? That's the smoking gun tape. Is it absolutely immune under this ruling, or is it just presumptively immune?

Lee Kovarsky: I don't want to get too far over my skis in answering that question. I'm not sure. I think it has to do with the way that the agency is set up and the way, the reporting structure of the intelligence apparatus to the president.

Benjamin Wittes: But clearly Nixon had some degree of immunity he didn't know about, right?

Lee Kovarsky: Yes, clearly some degree of immunity for that. Right. And if it's either absolutely immunized or if the prosecution doesn't overcome the immunity, then not only can he not be prosecuted for that, then they can't even use it as evidence to show that he was aware of some scheme associated with prosecuting him for different crimes.

Benjamin Wittes: I would think Nixon would have wanted to know that! I feel a little bad for him that he left some arguments on the table here. All right, Quinta, I gave you a very specific assignment, which was to go through the indictment in the January 6th case in light of the test that Lee read earlier and the principles that Roger cited, to try to imagine what's clearly coming out of the indictment, what's litigable for possible immunity or for presumptive immunity, but where the much suffering Jack Smith has his work cut out for him, and what is either conceitedly or arguably private activity that this decision doesn't affect at all.

So with the caveat that Quinta has had three hours to work on this project, which Jack Smith will, by the way, have had a team working on for the last three months, thinking about, “so what would happen if an opinion like this came down?” Where are we? Or to put it another way, how fucked is Jack Smith?

Quinta Jurecic: I confess I don't know, because, as Lee pointed out earlier, I don't know how to implement this test. I don't even know what the test is, really. So I went through and my plan was to, highlight the indictment in different colors to color code it based on where different things went.

And I just, I couldn't---

Benjamin Wittes: It's all brown now, because you put all the colors on all the--

Quinta Jurecic: Exactly, exactly. It's just really difficult to figure out what the test is. Roberts says presumptive immunity, you can get through it if you show there's no danger of intrusion on the authority or the functions of the executive branch, but then Roberts seems to understand the danger of intrusion on the authority or the function of the executive branch in a very broad way.

For example, he includes pressuring Mike Pence to interfere in the electoral count in that category. Whereas if you had given me that test without any guidance as to how Roberts interpreted it, I probably would have said, okay, presumptive immunity, but it's over, overcome because Pence is acting as part of the legislative branch --- this is a space in which the president has no authority, all these different things --- but then Robert seems to think that it actually is within the scope.

So I truly don't know, and I know Justice Jackson in her dissent points to other examples of where that's unclear, although I don't have the specific passage up in, in front of me.

Benjamin Wittes: And it's a heads, I win, tails, you lose situation because presumably Judge Chutkan has to kind of muddle through and take a sort of blindfolded stab at the donkey with the tail. And then whatever she does is subject to D.C. Circuit review, and then the majority of five justices may have a very different impressionistic sense of it. So she's like, how many different ways to get reversed are there?

Quinta Jurecic: And then also when you're trying to divine the dividing line between the, I don't, this is so confusing.

The presumptive immunity extends to the outer perimeter as long as the president's actions are not manifestly or palpably beyond his authority. That is a quote from the Blassingame opinion at the D.C. Circuit, which is saying, we're going to create a clean dividing line between official and unofficial acts for the purposes of civil litigation regarding January 6th based on is Trump acting as the president or as a candidate.

But that quote from Blassingame, it's actually citing language that Blassingame is citing from another D.C. Circuit opinion, which was overruled on separate grounds, unrelated. And it's not the portion of Blassingame that is setting out the official versus unofficial section. If you're Chutkan, what do you do with that?

I don't know. I can absolutely make an argument that you can have the kind of, candidate-president divide there, but I'm not a hundred percent sure that the court has, is adopting Blassingame in this context or not. So the whole thing is really, really muddled. I think the, I'm confident that the portion that focuses on the Justice Department personnel is---

Benjamin Wittes: That's gone.

Quinta Jurecic: Yeah, that's gone. So that's the only thing that I am 100 percent confident about.

Benjamin Wittes: Okay, but there's something else we should be 100 percent confident about, which is that Amy Coney Barrett, in an oral argument had a colloquy with Trump's counsel, in which she got him to concede that a bunch of facts, a bunch of allegations in the indictment are purely personal and not.

And so we can say definitely that stuff's coming out. But definitely this stuff is staying in, because they've conceded it. So what does that set of facts look like?

Quinta Jurecic: It's even worse than that, Ben, because there's something that Sauer, Trump’s counsel, conceded in a colloquy with Barrett, but then, according to Roberts in the majority, unconceded later in the argument.

So I actually don't know what Sauer was arguing in these instances. So the specific issues… so there’s a colloquy with Barrett and a colloquy with Kagan in the oral argument. And so there is a bucket of conduct that Sauer seemed to concede, or did concede rather, is fully private. I will just read quotes to you from what Barrett and Kagan said.

This is Barrett here: “Petitioner turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results. Petitioner conspired with another private attorney who caused the filing in court of a verification signed by petitioner that contained false allegations to support a challenge.”

So Sauer agrees that that is private. Then later with Justice Kagan, Justice Kagan goes back to that and confirms, “the defendant signed a verification affirming false election fraud allegations made on his behalf and a lawsuit filed in his name against the Georgia governor.” And Sauer says, “yes, that is private.”

Now we get to the point. So there's sort of the bucket of election litigation challenges, that is 100 percent definitely private, Trump has conceded that. Now, we get to this question of the thing that Sauer sort of conceded and then unconceded. So this is Barrett, “three private actors, two attorneys --- including those mentioned above,” so that's the two private attorneys, “and a political consultant helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding. Petitioner and a co-conspirator attorney directed that effort.” So Sauer then says, “yes, that's private.” But then, in response to a question from Justice Kagan, says, “okay, the defendant called the chairwoman of the Republican National Committee, asked her to gather electors, targeted states falsely represented to her such that electors’ votes would be used only if ongoing litigation among the states changed the results in the defendant's favor.”

Then Sauer says, “we have taken the position that is official.” And that is the kind of rollback move that the Chief Justice cites in his majority opinion where it's not totally clear whether or not Trump has conceded the aspects of the fake elector's plot were private, or maybe some aspects of them are, but some of them aren't, which is how I read it. Like maybe interacting with Ronna McDaniel is somehow official, but interacting with Giuliani in the context of the fake elector's plot isn't, but it is, I think this goes to Roger’s point that--

Benjamin Wittes: Every fact is going to have to be litigated.

Quinta Jurecic: Exactly. It's very, very hard to do.

Benjamin Wittes: All right before we go to what that litigation looks like, I want to pause and talk with Anna about the big winner in this litigation, Judge Aileen Cannon. There is an Easter egg for Judge Cannon in here, and it's a matter that we've talked about on Lawfare Live a number of times. Anna, tell us about the gift that Clarence Thomas gave to Judge Aileen Cannon.

Anna Bower: So Justice Thomas wrote a concurring opinion that I should mention no other justices joined, but in this concurring opinion he discusses a matter that is pending before Judge Cannon in the classified documents case. I was just in Fort Pierce last week in which there were a series of hearings on this issue.

It is the question of whether or not Jack Smith was lawfully appointed as special counsel. People can watch our discussion about those hearings and those arguments if they want more details, but the kind of long version of it shortened, is this question of whether or not the attorney general appointing Jack Smith complied with the appointments clause and whether there was statutory authorization for the creation of the Office of Special Counsel Jack Smith.

Thomas basically addresses this, which was not in any way a part of the litigation before the court on this immunity question, but he writes an entire concurring opinion on this very issue. And he says that it's really difficult for him to see why it is that the special counsel's appointment was lawful and in compliance with the Constitution. He sets out a background in this concurring opinion about how under the Appointments Clause, Congress must establish by law any office or officer of the United States that is not otherwise provided for in the Constitution --- so for example, the presidency --- and what that basically means is that you have to have a statute that creates the office and vests the attorney general with the power to fill that office. Thomas says, “I don't see how any of the statutes that were cited by Attorney General Merrick Garland when he appointed the special counsel clearly establish the office of the special counsel and give the Attorney General the power to fill that office.”

And he cites the Nixon case, which again we've discussed before. In that case, the Supreme Court looks at these statutes, some of these statutes, that were cited by Garland in the appointment order, and says that at that time, the independent counsel who had been appointed by the attorney general, basically those statutes were sufficient to provide for that authority.

And Thomas basically says well the court didn't really deal with that case and the text of these statutes. He indicates that maybe it's dicta, and he says that because this prosecution is so consequential, we should at least be able to have some kind of more fulsome explanation of why these statutes authorized the special counsel's appointment.

Then he goes on to discuss this issue of the principal versus inferior officer issue, which has also been raised. There's this question of even if there is a statutory authorization for the creation of the special counsel's office under the Constitution as a general matter, principal officers must be nominated by the president and confirmed with the advice and consent of the Senate whereas inferior officers, the Congress can delegate or vest the Attorney General with a power to appoint inferior officers.

So there's this question about whether or not Special Counsel Smith was appropriately appointed because it all depends on whether or not he's a principal or inferior officer. If he's a principal officer, for example, then the appointment would not have been proper because he has not gone through the confirmation process. So all of that said, Justice Thomas writes this whole opinion on this issue. I think-

Benjamin Wittes: None of which was briefed before him in this case, correct?

Anna Bower: None of this which was briefed. But Ben, I think it really --- and I know that this is only one Supreme Court justice, and Thomas writing these lone concurring opinions in which he has a pet project.

Benjamin Wittes: He does that.

Anna Bower: He does that, but I think it is still consequential and matters as it relates to this pending decision before Judge Cannon for-

Benjamin Wittes: Oh, I think so. Just last week we were talking about will she, won't she, would she do that, it'd be crazy. There's an on point Supreme Court decision. There's these federal statutes. Come on, she's not going to do that. And then Justice Thomas writes a lone concurrence that says, “you go girl,” right?

Anna Bower: Exactly. And I think, and I even said in our morning meeting this morning that the more that I look at what happened last week, the more convinced I am that Judge Cannon really might dismiss these classified documents charges on the Appointments Clause challenge.

And I think that you can look at this concurring opinion as something that, in her mind, she might take as validation of the seriousness with which she is taking this argument, but also maybe as an invitation and a roadmap of sorts for her to actually dismiss the charges on that basis. It's an opinion by a sitting Supreme Court justice who is saying, I agree with you.

And then the other consequential issue here, Ben, is what would happen when it goes up on appeal. We've talked before about the potential option that the special counsel has to, on appeal if Judge Cannon's decision is overturned, could seek reassignment of the case when it goes back to the trial court.

There is a process under Eleventh Circuit precedent for that procedure. I think, though (A) I think already it was very unlikely even without this concurring opinion that the 11th circuit, the first time that the special counsel goes up on appeal would reassign the case. But putting that aside, I think that this concurring opinion makes it even more unlikely that Judge Cannon would be reassigned because it makes it look like-

Benjamin Wittes: She's not being ridiculous anymore.

Anna Bower: Exactly, that she's not being outlandish, she's not being ridiculous. She's got the support of at least one of the nine most powerful judges in the country. So there's that. And the other thing that I want to say too in terms of whether or not this really gives her spurs her to dismiss on the basis of the Appointments Clause, I just want to point out the possible scenario that we could then have here, which is that not too long before the election. I don't know how long Judge Cannon's going to take to decide this issue, but it could very well be that not too long before a presidential election, she dismisses the charges against Trump. And there's not enough time for it to then go to the 11th circuit and the 11th circuit reverses.

And that would be a great gift to the Trump campaign because then for several weeks, maybe even several months, they have the ability to make it a talking point that, oh well these bogus charges were dismissed.

Benjamin Wittes: All right. Before we wrap up, I want to talk about what happens now, because that is totally unclear to me.

So Lee, let's start with you on this, because you're the defense lawyer among us. The Supreme Court remands for proceedings in the first instance in the district court, consistent with these principles nobody here can, from Roger to Quinta to Anna to Natalie to you, figure out what quite, what that looks like.

What happens now in the district court? Does Trump file again for immunity based on the unavailability of a certain set of facts? And then you litigate that? Does the government come in and say, all right, we don't think you're immune here. We don't think you're immune here. Who moves for what to get this process started?

Lee Kovarsky: I think there's already a pending motion, and so the case is going to go back down. My guess is that they'll just make a new motion or amend the existing motion, and then Judge Chutkan will just have an immunity hearing. One of the interesting wrinkles here is that although Judge Chutkan had committed herself to giving Trump three months fo, to prepare for trial, meaning the start of jury selection, she could actually go faster with this immunity hearing.

Benjamin Wittes: And how is that?

Lee Kovarsky: Because she's not, when she said you're going to have three months to prepare for trial, she means for trial for selecting the jury.

Benjamin Wittes:  Oh, I see. You mean that if she wanted to have kind of a mini trial.

Lee Kovarsky: She is going to have a mini trial. She's going to have a hearing. She's going to take paper on the motion for presidential immunity. And I assume she's going to have a hearing on it.

Benjamin Wittes: But a hearing can be a lot of different things. A hearing can be, we have arguments about it point by point. A hearing can also be, we call the relevant witnesses and we develop a record and then for each witness, Judge Cannon would do it the latter way, right?

We have a separate day hearing for each paragraph in the indictment and we call all the witnesses and then you guys make arguments about whether this constitutes immunity or not or an official act or not. What kind of hearing do we know from this? What kind of hearing it's going to be?

Lee Kovarsky: I think it's going to be a pretty thick hearing.

Just to take one example, the passage in the opinion where the Chief talks about we've got these isolated snippets of communication from the president on January 6th, but we don't know what it means in the context of this other communication. And so you're going to have all of these other pieces of communication that have to come in order to establish that context, like people testifying about what he meant when he said that thing and so forth.

And so I actually don't know how you do the job that the Chief Justice describes without having a pretty robust hearing. So I actually expect the case to go back and there to be like a fair amount of evidence taken. Now, I don't know what the calendar is going to be, I don't know exactly who's going to move for what, but I know in the end you're most likely going to have Judge Chutkan calendaring a hearing where the sides actually put on evidence that they would have otherwise put on in the trial itself.

Benjamin Wittes: Roger, what do you think? When you read this opinion and you look at the calendar and you've been in court with Judge Chutkan, what are you expecting her to do?

Roger Parloff: Well yeah, definitely goes back for a hearing. I don't know why It would be an evidentiary hearing. In fact, it sounds I think it would be, you would have the parties brief as much as you can about what they think is absolutely immune, what they think is presumptively but rebuttably immune, and what is private or unofficial and not immune.

I don't know why you would need live witnesses, and in fact, to the extent that this is about immunity and Roberts is saying you can't even use this stuff if it is immune, you can't even use it for evidentiary purposes. I don't know if you can present it even in a hearing, but, maybe I'm thoroughly confused.

But the clock, forget about the clock. This will never ever go to trial. It is hard to take this decision seriously and have the discussion we're having because it is dripping with disingenuousness.

Anna Bower: Yeah, so just to jump into I think Judge Chutkin’s going to move very quickly here to set whatever briefing schedule and potential hearing dates as quickly as possible.

I don't think that she's--- again, it depends on if it's going to be an evidentiary hearing or not. If it's not an evidentiary hearing, I agree with Roger, maybe not on the point that you can't have an evidentiary hearing, based on this opinion because of the reasons that are given in the opinion for someone not being subject to prosecution.

I think it raises a different question if it's an evidentiary hearing to determine the immunity question. But I do think that looking at this opinion, what the majority does a lot is say, “look at the allegations in the indictment.” And it is a question that is raised in the supremacy clause immunity context, which is a kind of similar inquiry.

There's this question of whether or not there should be an evidentiary hearing or whether the court should just look at the allegations in the indictment. So I think that is a question that Judge Chutkin's going to ask herself and might even invite briefing from the parties on that in terms of whether or not it's purely just a legal question of how the allegations fall into the buckets that we've discussed versus the need for an evidentiary hearing.

So we will see.

Benjamin Wittes: All right. Before we close, I just want to have a brief conversation about how this affects the other cases. Everybody agree with me that it has no implications for New York?

Anna Bower: Some of the conduct in New York were things that he did during his term of office.

Benjamin Wittes: Signing a personal check or two.

Anna Bower: Yes, I think that it's really unlikely that those are, that any of those things count as official acts that are… oh, Lee's maybe disagreeing with me.

Lee Kovarsky: There's that one tweet where he says, oh, it's a reimbursement, it's not a payoff. Or something like that. Now, I think that's likely private conduct, but that's more than just writing a check, and that also happens while he is the president.

So it's a key piece of evidence. I do think it's private conduct, though, so I think it probably doesn't affect it, but it's more than just writing a check.

Anna Bower: Yeah, and he's got the tweets. There are tweets that were in evidence, things that he did while he was, things like that. But my point is just basically that I'm doubtful any of them are official acts that are subject to a presumption of immunity.

Benjamin Wittes: Yeah, I tend to agree. And just so that we're clear, the mechanism by which this gets litigated is presumably in the first instance, some motion to set aside the verdict to Justice Merchan, and then when he denies it, it can become part of the appeal, right? And he can argue to the First Division and then the New York Court of Appeals that the Supreme Court, intervening action by the Supreme Court should affect the case.

All right, Florida. I have one observation about it, which is it does seem to me to vindicate the decision by Special Counsel Smith to bring the case in Florida, because if he had brought it in Washington and tried to establish venue in Washington, the acts he would have had to cite would be official, arguably official acts covered by this opinion.

Whereas in Florida, it does involve purely post presidential conduct. Other than Anna's point about Clarence Thomas's concurrence, can anybody identify other implications for the South Florida case?

Anna Bower: I will just add here that I have a piece that is coming out hopefully very soon that is about the second part of these hearings that took place. There's one exchange that I will just point to because Trump's team has tried to say that there are certain elements of the classified documents case that he took action during his presidency by causing the boxes to be moved while he was still president, that kind of thing.

Judge Cannon was actually very much pushing back on certain representations that were being made by Emil Bove about the relevance of things that were occurring during Trump's presidency in terms of his access to briefings and that kind of thing. She kept saying, “but the point here is this is all post-presidency.”

So I think that she's maybe less convinced than you might otherwise think given some of her other rulings. I think that this is one that she maybe would not necessarily look to, but Roger, do you have any ideas about that or thoughts on things that maybe relate to conduct during Trump's presidency?

Roger Parloff: Yeah, of course, I'm still, as you can tell, I'm shell shocked by what I've read and I haven't really absorbed this opinion fully, but there's a lot of evidence that the government would like to produce about the things that were happening before they left the White House. They want to show that he knew what was in these boxes. These weren't just boxes packed by third parties, and oh, they who knew they had these documents? These were boxes that he kept by his bed in the residence, and people would sometimes go in, his staff secretary would send somebody in to, can you go get a document from, one of his boxes by the bed, and all this discussion of how much he knew about them, that he helped pack them, that he was involved in it.

So why would you not need to go through exactly the same cumbersome and reviewable and crazy process of saying was this presumptively official and can you rebut it and say that there's no conceivable intrusion? Can you use that evidence not according to there's this footnote three in Robert's opinion where he engages Barrett in a dispute about would this be, could you even use this as evidence.

And it's unintelligible to me. And it certainly seems like he could file a motion now and say, we’ve got to clear this up. And everything stops while we do this. And interlocutory appeal. And here we go.

Anna Bower: Yeah. And Roger, on that point, I think there's also… I would need to look back at the indictment, but I think that in addition to what he knew about what was in the boxes and that kind of thing, there's also things that are like public statements about his class, like about declassification and that relate to that declassification defense that I think he made during his presidency.

Roger Parloff: That's right. And then also, there's this tricky thing about transporting the boxes out and on Tuesdays and Thursdays and Saturdays, he says, I intentionally designated them private.

And even if he didn't that the act of taking them out is a official act of designating them at private. And yes, it's crazy, but she has credited it already, the judge. So what do you do with that under this analysis? I don't know, I think everything is on the table at this point.

Benjamin Wittes: All right, and Anna do you agree with me that this has profound implications for aspects of the Georgia case, if it ever unfreezes?

Anna Bower: Yes, I think that it has, especially for the case against Jeff Clark. I would be absolutely shocked if his attorneys do not move to dismiss the charges against, even though this is a presidential immunity opinion, it seems like because there's these like weird kind of evidentiary privileges that might be created-

Benjamin Wittes: But they are evidentiary privileges vis a vis the president, not vis a vis anybody else.

Anna Bower: Right so, but I'm really curious, Ben, what you think about the impact on the charges against Jeff Clark in Fulton County. His basically entire case of the Fulton County prosecute, prosecution is related to this draft letter and all has to do with like internal DOJ kind of deliberations about whether or not to send this draft letter.

Benjamin Wittes: I think it means you have to, now Jeff Clark has to be severed.

Anna Bower: Yeah.

Benjamin Wittes: Because you cannot have the same jury consider, or maybe Trump has to be severed because there are these facts for which Trump is clearly immune. The Justice Department stuff number one, first on the list, that nobody else is going to be immune for.

So it's not that I think Jeffrey Clark gets immunity for that. But everything that they're finding presidential immunity here at the federal level is going to operate against the states as a Supremacy Clause matter. Lee, do you agree with that?

Lee Kovarsky: Yes. The reason I raised my virtual hand was just to say that I think if you want to zero in on the most, clumsiest bull in a china shop part of the opinion, it's that part 3(c) about how the evidence can't come in for other stuff. As other people have pointed out, it's just like incoherent and unintelligible. Like the idea that, oh, you can just point to the public record of the thing. That would seem to wipe out the whole rule you just set forth. And it's just going to create all of these problems for prosecuting these other people and these massive problems in the Florida prosecution.

And so I just wanted to underscore everything that Anna was saying in that respect. That's an awful, awful, awful part of the opinion today, just in terms of legal craftsmanship.

Benjamin Wittes: Why does it create a problem for prosecuting Jeff Clark rather than say, create a problem for trying Donald Trump?

Lee Kovarsky: Because you, you seem very certain that it bars only evidence in a prosecution against Donald Trump.

And if you're right, then I think that it doesn't create quite this problem for everybody. I am less certain of that interpretation.

Benjamin Wittes: But why? It seems to me, it is a presidential immunity doctrine, not a presidential chief of staff or a Justice Department senior official immunity doctrine. Why does anybody else get the benefit of it? They don't in the civil context.

Lee Kovarsky: I don't, again, I don't know that there's a logical reason why they should, it just strikes me that there's very sloppy language. It's very broad language about how this stuff can't come in if it's conduct that would be immunized. Now I get it. We should, like reasonable readers, read it to have implied limitations. Like when we come in as against the president or, all of those things. I'm like: sure. I'm just, frankly, not ready to extend the courtesy of that presumption to this court, and all of the judges are going to be implementing its language.

Anna Bower: Yeah and I'm gonna agree. That's what I was referencing when I said these like weird potential evidentiary privileges that this opinion could create. But the other thing I just want to point out, and you alluded to this, Ben, Mark Meadows, as I've said before, has a deadline July 27th to file his appeal of his Supremacy Clause --- or excuse me, his removal appeal --- but he also has pending Supremacy Clause motions before judge McAfee, that kind of thing.

I actually think that this, I need to look at the indictment and think a little bit about it more, but I actually think that in his case, there's less impact than it would be in the Jeff Clark scenario. Because of the nature of the conduct that is alleged and the fact that it relates to the Raffensperger call, which Trump has said related to resolution of private litigation and that kind of thing.

So I think that there's maybe less impact on the Meadows case if there is an evidentiary privilege for parties who are not the president. But I need to think about it a little bit. I do think though, certainly Paul Clement, who is Meadows attorney, is going to be looking very closely at this opinion to, as they or draft their petition for a writ of cert and then ultimately file it next month.

Lee Kovarsky: Last thing I'd add on top of that is just that a lot of these charges are conspiracy charges, which introduces another anomaly, right? Because Trump would theoretically be responsible in some of these conspiracy frameworks for stuff that the co-conspirators did.

So would it be the case that the evidence could come in to show the thing the co-conspirator did and Trump would ordinarily be liable for that vicariously, but now he's not liable for that vicariously, even though we found the co-conspirator did it. There's just all sorts of weird stuff.

Benjamin Wittes: On that cheerful note we are going to leave it there. Roger Parloff, Quinta Jurecic, Anna Bower, Natalie Orpett, Lee Kovarsky, thank you all for joining us today.

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