The Lawfare Podcast: Debriefing on the Presidential Immunity Argument at the D.C. Circuit

Quinta Jurecic: Having good representation is what you want in a case like this, right? You want both sides to be able to sort of set out the best possible arguments. And counsel for the special counsel, I thought, did a really nice job as well. There have been some arguments, um, in this Trump litigation where the panel really kind of wipes the floor with Trump's counsel.

Um, and that certainly was not the case here, even though I think that. We all agree that Trump is not going to win this one.

Benjamin Wittes: I'm Benjamin Wittes, and this is the Lawfare Podcast, January 10th, 2024. Yesterday, a panel of judges at the D. C. Circuit Court of Appeals heard oral arguments in former President Trump's appeal of Judge Chutkan's denial of his claims of presidential immunity in the January 6th case.

We had a live stream yesterday afternoon to go through it all. Joining me on YouTube and in the Virtual Jungle studio was Anna Bower, who was in the room for the argument, Scott Anderson, Quinta Jurecic, and all the way from France, Roger Parloff. We talked over what happened in every phase of the oral arguments yesterday. Anna Bower discussed what it was like in the courtroom where both former President Trump and special counsel Jack Smith were seated.

We talked about the merits and the jurisdictional questions the judges considered. We talked about our impressions about what the judges may be thinking about the case and how the lawyers performed. We even talked about whether Lawfare was once again first in line, and we looked forward to what happens next.

It's the Lawfare Podcast, January 10th, debriefing on the presidential immunity argument at the D. C. Circuit.

I know that the question that everybody wants us to address first is, was Anna first in line, and what was the line situation? But we're not going to address that first. We're going to address that right at the end, because we're going to keep you watching.

So if you want to know, what the line story is, you're going to have to watch to the end. But we are going to start with Anna Bower, who was in the courtroom, fought her way in, had to claw people's eyes out in order to get there. And, uh, so was Donald Trump. And so, uh, Anna, give us a sense of the scene. How close were you to Donald Trump?

Did he glare at Jack Smith and vice versa? Uh, was Jack Smith there? And, uh, uh, give us a sense of what the courtroom, uh, ambiance was like.

Anna Bower: Ben, this was the most relaxed hearing that I've been to with Donald Trump so far in attendance. Uh, I, I went to most of the arraignments except for the New York one, and all of them felt very dramatic.

There, there was a very kind of intense, uh, security situation. But this felt a little bit more relaxed and kind of run of the mill. It almost felt like, uh, the security services were getting used to what it means for a former president to show up for, uh, hearings in court. Um, so I think that maybe that will be what it feels like as we get more and more into the trial phase of some of these, uh, various cases. But, Jack Smith was there. Uh, he showed up long before Donald Trump did. Uh, he was-- he seemed to be in a pretty jovial mood and, and was chatting a lot with other prosecutors who were there before Trump arrived. Trump arrived and it was very kind of, you know, everyone was talking and then he came in and things kind of quieted down, but it wasn't, you know, the feeling that one had at some of the arraignments where everyone was kind of feeling the history of the moment. It just felt a little bit more like, oh, the defendant has arrived. Um, I will say something that is very notable in terms of who else attended other than Trump.

He was joined by Walt Nauta, who is his co-defendant in the Mar-a-Lago classified documents case and and still remains his personal valet. You know, Nauta is kind of a constant presence or shadow in Trump's life and and travels with him on the campaign trail very often. They--I recently, as I understand--they, you know, were, celebrated New Year's Eve together.

And so it's not unusual that that Nauta is with Trump, but it was very striking to see Nauta who is a co-defendant in a different criminal case, attending this hearing alongside Trump. Nauta was also joined by Stanley Woodward, who is is his counsel in the Mar-a-Lago classified documents case. Uh, and then also in the court today was Boris Epshteyn, who, uh, is a close advisor of Trump, who himself is, I believe, is a, is a lawyer, but maybe not a practicing lawyer.

He has kind of more of a, uh, political kind of communications or advisory role with respect to Trump. But it was very interesting because throughout the argument, there were a few times, uh, or maybe it was just one time, but there was a moment in which Epshteyn passed a note up to one of Trump's attorneys, John Lauro, who, who is the, you know, handling trial court matters, uh, for Trump in, in some of these cases.

Um, so it is kind of just interesting to see, you know, there's been a lot of reporting around the kind of hold that Epshteyn has over some of these attorneys. Rolling Stone had previously reported that the reason that Drew Findling, who was Trump's attorney previously in the Fulton County case, the reason that he departed is because Epshteyn, you know, did not see eye to eye with him.

So it was just very interesting to see a person who, uh, apparently has more of a kind of, you know, political advisory role with respect to Trump kind of, you know, passing a note during this appeals court hearing to one of his attorneys. So that that's the scene. Um. As in terms of whether there was a stare, uh, if people remember the stare heard around the world, which was, um, in federal court in, in, in, in Florida, where Jack Smith kind of, uh, stared daggers at Trump during his arraignment.

Uh, that was not the case here, but there, there was a moment as Trump was departing the court where I did see, you know, Jack Smith had his back kind of turned to Trump and was in the middle of chatting, and then he looked over and, and, and, you know, watched Trump exit very briefly. But that was kind of it in terms of any interactions between those two men.

Um, so hopefully that gives people, uh, a sense of the feel and the scene in the room. Um, but I will leave it to others to describe the actual, you know, what happened in terms of the substance of the arguments.

Benjamin Wittes: Yeah. So, uh, one other ambience question. I mean, D.C. Circuit arguments do not normally pack a courtroom.

I have been to hundreds of them, and I don't recall a time that the D. C. Circuit has ever, like, been super full. I mean, even in, you know, big cases, people don't tend to sort of pack it into, it's a sense that it's a sort of step on the way to the Supreme Court. How full was it? Was it mostly press? Were there a lot of onlookers? Who comes to a D. C. Circuit argument other than Boris Epshteyn and of a Donald Trump interlocutory criminal appeal?

Anna Bower: Yeah, I mean, like Ben, as you said, appeals court arguments are usually super boring. It's like pulling teeth to get members of the public to go because--

Benjamin Wittes: --They're not boring to us nerds. But, like if you, if you had told me that Donald Trump was going to want to attend a D.C. Circuit argument, I would, like, has he ever listened to one?

Anna Bower: Right to, to the lay person is what I mean in terms of it being boring.

Usually I like, I love attending appeals court hearings. But, uh, I think that the average person would be bored out of their mind by, uh, an oral argument at the D. C. Circuit, uh, and it certainly seems like the kind of thing that Donald Trump would be bored out of his mind watching, uh, but he did seem to be listening very intently.

He did a few times, you know, kind of nod or--and there were even a few times that his counsel interacted with him, uh, uh, Sauer. A few times during the argument, he kind of gestured back at him with an open palm, very dramatically to say, you know, uh, "the former President," you know, and that kind of thing. So there was a little bit of, uh, showmanship with respect to, you know, Donald Trump being in the room, but in terms of who attended, it was, it was really surprising and interesting that this is actually the, I think, it is the largest group of members of the public who have attended in the courtroom itself that I have seen in covering these cases. Um, it, there, there was a very long line of members of the public to get into the courtroom and they filled up, you know, there, it was a pretty small courtroom.

I want to say that there's maybe like ten rows on each side, and I think if I had to estimate members of the public got about, you know, four rows. Out of that media only took up two rows, and then the rest was like, you know, reserved for court staff, for the prosecutors, for Trump's team. So it was a very full courtroom.

Not everyone who wanted to get in did get in, but it was very interesting to see that there were, um, many members of the public who showed up there. It wasn't kind of like the arraignment where people were waiting overnight, but it was a very long line in terms of public access to get in.

Benjamin Wittes: No line information, Anna.

Anna Bower: Oh, great. Okay.

Benjamin Wittes: We're holding that till the end.

Anna Bower: I will stop there.

Benjamin Wittes: Alright. Quinta, were you bored out of your skull, uh, to use Anna's formulation? Like, what did they talk about?

Quinta Jurecic: I will say, I found the argument, uh, very interesting, which maybe shows that--

Benjamin Wittes: Yeah, so did I.

Quinta Jurecic: --I'm in the right line of work. So the panel, uh, was three judges, Judge Karen LeCraft Henderson, who is a George H. W. Bush appointee, and then Judges Michelle Childs and Florence Pan, who are both Biden appointees. Um, I will say, from the beginning, I think that the, my sense at least, was kind of that, you know, if anyone was going to be potentially, you know, on Trump's side, it was probably going to be Judge Henderson. Uh, overall, I will say from the, the tone of the questioning, right from the beginning, it seemed like all three judges were pretty skeptical of Trump's position, um, including Henderson, who really came out swinging in a way that is pretty uncharacteristic for her, and Scott, who's actually clerked on the D. C. Circuit, can, can talk more about that. At a high level, the issues that the argument addressed, uh, the, the Court sort of started by asking counsel for, for both sides what they thought about whether or not the Court had jurisdiction to hear this case at all. And that's because of an amicus brief filed by the group American Oversight, which argued that essentially because of the procedural posture of Trump's appeal, that the D. C. Circuit can't actually weigh in on this question until the trial itself is done. Meaning that we'd have to sort of push the immunity question back until the end of all these criminal proceedings. Neither the special counsel nor Trump took that view. They both were making the case to the judges, uh, that the Court did have jurisdiction.

I will say, uh, Judge Childs seemed the most interested, potentially, in, uh, the, the question of whether or not the Court had jurisdiction. That doesn't mean that she'll vote that it doesn't. Uh, often judges, you know, will raise these issues to kind of get a sense of the strongest counter arguments, but I did think that was notable, that she seemed, uh, she was sort of the person who was pushing that.

Judges Henderson and Pan, on the other hand, were really diving into the merits, um, right away. I, I would say generally the sort of scope of the questioning addressed, you know, whether the courts had the issue to sort of consider, uh, the appropriateness of presidential conduct at all. Judge Henderson was really pushing on this based on an argument that Trump made, uh, based on Marbury vs. Madison.

I'll just say, you always know it's a good sign when an appellate argument descends into a debate over Marbury. So Judge Henderson was somewhat skeptical of that argument. And then, of course, the panel really dove into the question of whether there is, first off, any sort of a broad absolute immunity, um, that would cover most, if not all, uh, presidential conduct, which the lower court really rejected. Um, and then ask, you know, well, what if there is immunity in some cases, but not others, and how do we kind of divide that out? I will say for me, the, the most striking moment, uh, was a n exchange, I believe between Judge Pan and Trump's counsel, John Sauer, where Pan was, was really pushing him on, you know, a range of sort of extreme hypotheticals.

What if the president did X in your view? Would it be permissible to prosecute him as a former president if he hadn't been impeached and convicted on those grounds? And Sauer was arguing that that is a permissible exception for prosecution. And at one point, Pan asked, all right, what if the president asks SEAL Team 6 to assassinate a political rival, and for whatever reason, uh, he is not impeached, or if he is impeached, he is not convicted on that basis, could he be prosecuted for that under your theory?

And Sauer sort of wouldn't say, uh, what his answer was, which I think was, was, uh, quite telling, and suggests maybe the extent to which his argument kind of takes him down, uh, what I would argue is a bit of a concerning path.

Benjamin Wittes: Right. Alright so Scott, first of all, does Trump have a chance of prevailing before this panel?

And secondly, assuming the answer to the first question is a hard no, uh, is he going to lose on jurisdictional grounds or on merits grounds?

Scott R. Anderson: Really hard questions, hard to predict for sure, uh, to be certain. Uh, look, I think the odds of Trump winning before this panel on the merits are very low. All three were very openly skeptical, as, as Quinta's already spelled out.

Of the oral arguments, you know, did they have a clear vision, I think, or articulate, like, a, give us a clear picture of where they think the line falls and how it applies to all of Trump's conduct. No, but you don't need all of Trump's conduct to fall within the scope of whatever or outside the scope, whatever presidential immunity they may acknowledge at a certain point to uphold these indictments.

Um, so you, I don't think they're going to win that argument. No, nobody seemed to take seriously, frankly, Trump's argument that, you know, he cannot be criminally prosecuted unless he's impeached and convicted by the Senate. In fact, that was used primarily as a foil to undermine his other argument as to the breadth of presidential immunity more generally.

And so, nobody really seemed to be biting into that. I don't think there was a serious line of questioning about that either way. So, neither of the merits arguments are there. I think all three judges hinted and took seriously the jurisdictional question. Uh, Florence Pan at one point said expressly, it is a, I forget the exact phrasing she used, but something like, it's a compelling argument or a persuasive argument to some extent, and then kind of hedged herself because she was like, whoa, wait, that's not what I'm supposed to do in oral argument, is say, this argument is compelling. People are going to read this. I took that as saying, people are going to read too much into this, so she tried to kind of hedge it a little bit. But they all took it seriously. Um, so it's certainly possible. But then they also dug really deeply into this escape clause that, uh, the amicus provided in their final footnote of their brief, this, uh, hypothetical jurisdiction escape clause, um, which we can dig into.

Which is itself a very controversial and legally questionable by a lot of people's standard step for the court to take in terms of actually how it approaches and thinks of its jurisdiction. But they seem to be leaning into that as a bit of an escape clause or at least open to it and exploring it in questioning.

So, you know, I don't know exactly where this comes out. I suspect you will see them address the merits either hypothetically or actually on the merits one way or the other. Um, the Court is, you can tell from the scheduling, very sensitive to the timing on this. Um, that escape clause in theory will let them, uh, you know, tee up either the merits or the jurisdictional issue for the Supreme Court.

So hopefully, you know, limit the need to go back to the court twice, um, with whatever, you know, decision they might have. Um, I'm not sure I bite into that argument. I, I, I do feel, still think the jurisdiction argument presents some risks, which we can dig into in terms of timing, uh, more so than, uh, the special counsel or Trump's counsel's approach of, of not leaning into the, uh, the more demanding mid, uh, Midland Asphalt rule.

But regardless, it seemed clearly their interest in the merits. Most of the questioning was on the merits. If they were, came in here with a strong idea that they're going to get rid of this on jurisdictional grounds alone without reaching it, the merits, on hypothetical jurisdiction, these questions wouldn't have gotten the depth and attention that they got.

Um, so it seemed clear to me there, that's really where the focus of their thinking and analysis is for, for really all three judges. Um, again, I, you know, Judge Henderson, I thought, might be more interested in dodging the merits of this issue, but she really squared them head on in some ways was kind of the most frank about saying that the Trump's argument was paradoxical, um, in how he thought about his obligations of the Take Care Clause, the ability to pursue unlawful activity and then have no criminal accountability for it, even when it's in his personal interest.

That's pretty compelling. That's a pretty openly questioning thing to do, and it clearly suggests Trump has engaged in questionable personal conduct. And bear in mind she's doing this and the other judges made similar statements. All three are doing this with Trump in the room. I actually think this might have been a case where they may have been even a little more assertive and willing to make these kind of strong arguments and assertions and feeling be engaged on this. Maybe it's an effort to kind of push back on whatever kind of intimidation factor might have come in by Trump trying to sit there himself and stare them down.

I don't know, but it was an interesting dynamic. It was frankly a much more lively and active debate than you hear in these cases and more so than I was expecting. And again, one where they clearly are dubious of the President's argument--former President's arguments--and, and engaging on them, uh, uh, skeptically.

Benjamin Wittes: Alright, Roger, tell us why Scott is entirely wrong and it is completely clear that you can, that they either will or dispose of this on jurisdictional grounds or clear that they won't. What, what does Scott have wrong here, uh, or put a different way, how do you read the tea leaves coming out of this argument?

Roger Parloff: What he got howlingly wrong was, um--no,, I'm going to take a little bit of a concurrence here. Um, but I think it's pretty clear what they're going to do with the jurisdictional issue. Uh, the, the judges were sort of asking Pierce, is it James Pierce? Uh, what do we do? You know, how do we do this? And Pierce was coaching them and saying, okay, you don't say, "we're dismissing, and by the way, here's how we'd come out." You can't do that, but you can say, "we're not positive we have jurisdiction. We're going to assume we do. We're going to decide it." And, and, and that's how you do it. And, and so I, I think that's how they'll do it. I do think Michelle Childs was a little more concerned than the others about whether that was an advisory opinion, but I think they said her, uh, they, they calmed her and said, you know, this is an Article III jurisdiction that we're talking about. This is statutory jurisdiction. It's not quite as binary and, and cruel. Uh, you know, you do have, you're going to have jurisdiction sometime, either, either not, whether it's now or after if he's convicted.

Uh, you know, you do have jurisdiction. It's just a question of when. Apparently there is one opinion, I don't know which, maybe you all do, where one of the courts suggests, calls the, this, this ruling we're all talking about called Midland Asphalt, more of a suggestion than a requirement. So, I, I think that's how that will go.

I will give a little bit of a concurrence, if not a dissent about, um, Henderson. She definitely said some things that were, you know, caustic toward Trump, but she's not going to uphold what Judge Chutkan did. She's not going to say uh, "that was the impression I had. It was fairly clear to me." She's not going to say, "there's no immunity for, in criminal cases."

She's going to say, and she has a weird theory, and a potentially problematic one if it were more than her. She has a, a theory that you do look at whether it's official acts, but it's not official acts. It's discretionary official acts versus ministerial official acts. And this gets to be really weird and where it could become catastrophic is if she, as she wants, seems to want to do, is to send this back to Chutkan and say, go through the indictment, charge by charge, and tell us which are the ministerial ones and which are the discretionary ones because you can only go forward on the ministerial ones--this would be a catastrophe. Plus it would give another level of--it would be this pinball between Chutkan and the, and the DC Court and, and, and it would, um, run out the clock and, uh, Trump could end this whole thing.

It will never get the trial in. So I, I was worried about, uh, that line of questioning. I, and I did think it was pretty clear she's not going to affirm in, uh, in whole what, uh, Judge Chutkan did.

Scott R. Anderson: Yeah, I 100 percent agree with Roger. I actually don't think any of the three judges seem entirely on board with Chutkan, Judge Chutkan's holding.

I mean, all three were trying to find a way to split Trump's conduct and distinguish certain conduct from other hypothetical presidential conduct. And that was the context of a lot of the discussions here. You heard a lot of discussion about Blasinggame um, the civil context immunity decision we saw come out of the DC Circuit two weeks ago, three weeks ago now that, you know, did its line drawing exercise on the civil context.

You saw them very much asking like, well, what should we be doing with this? Um, you saw her, Judge Henderson, primarily bring up this ministerial versus discretionary duty, which is a concept that DC Circuit is borderline obsessed with when it comes to relief and approaches to the President versus executive branch officials.

Uh, Ben and I were actually plaintiffs in a lawsuit where this was the key issue a couple of years ago. Uh, uh, that, so we, we spent a lot of time with us a few years ago about some more powers reporting and it's coming back to haunt me now. You know, there's definitely a line drawing exercise, and so I think it is actually unlikely we are going to see Judge Chutkan's opinion kind of just upheld categorically, even by two judges of the panel.

I think they're going to be some line drawing exercise, but I'm not sure that ends up with this ping ponging situation, because again, a lot of the alleged conduct that Trump has can fall out because these are essentially conspiracy claims, right? You only need certain concrete acts to, uh--along with other elements--to prove the conspiracy in these cases.

So you only really need some of them to survive whatever the standard is. And I think that's kind of was a bit of the strategy of the special counsel in bringing these sorts of charges as opposed to like a whole litany of other more specific charges. This is much more appellate proof, because you don't need to prove all the facts aren't outside the scope of immunity.

So, so I'm not sure it gets there. You do need, you know--you could, depending on which specific facts are disqualified, but they also all seem clear, at least, or at least very troubled by the idea that a lot of what Trump did would be within the scope of presidential immunity. Um, so I think the line drawing exercise seems likely to leave enough outside that.

The outcome, uh, will be upheld, uh, coming up. Um, if not, the, uh, point down. The other thing I was gonna do about hypothetical jurisdiction, this is just worth flagging. Hypothetical jurisdiction, as I mentioned, is very controversial. And was actually had people petitioning for cert to this court this past term over it.

Um, I don't believe the Court granted cert, if I recall correctly, but I actually I forgot to look that up before we started, but I remember there was a cert petition specifically about whether this idea of there being statutory jurisdiction that you can assume, meaning in this case, well, this is really about like how we think about interlocutory appeal and the statutes that line up those sorts of procedures, therefore we can assume around it.

Unlike if it were a constitutional constraint on jurisdiction, like standing doctrine, for example, where it's a constitutional hard constraint. You're not supposed to be able to assume around it, although there are other ways people get around it. So, you know, in theory, like, if you rely on that, you may be teeing up another issue for the Supreme Court, where in theory, if you rely on hypothetical jurisdiction and go forward, uh, the Supreme Court could then say, well, there's no hypothetical jurisdiction here, go back and see if you have actual jurisdiction, then come back and talk to us.

The real answer here is that the Supreme Court can drag its feet. Or it can't. Like they have ways to drag their feet on all of these avenues. I think the clearest way they can't, and that's why both trump and the special counsel's office are inclined to this route, is to say Midland Asphalt is not as hard a rule as it is read by these amicus, that in fact when they say it's an explicit constitutional or statutory requirement, they just mean it's a clear one, um, and that their subsequent case law hinting that that's actually how courts have interpreted and applied it in a variety of contexts, not as actually demanding express, but as demanding very compelling, a high bar, something so you can't lead to a bunch of frivolous interlocutory actions.

And they would argue, as the special counsel's office basically did in this argument, that the combination of this being not as hard a rule as people think and the like overwhelming, overwhelming, compelling interest of the public in getting the resolution of this issue combined mean this issue should go forward in spite of the strict regime as Midland Asphalt.

This is a third context where you get this. I don't, I wouldn't rule that out. This Court seemed you know, maybe more interested in the jurisdictional escape clause for some reason, but I, I think it brings its own risk, including that it is bringing, relying on a rule that was much broader application that you could see much more range of opinions on for reasons totally unrelated to Trump, to the Supreme Court that then going to be involved in this appeal as well.

Um, so I'm not sure it accomplishes the apparent goal of expediting these sorts of proceedings at all. Um, I'm still concerned about it. And, and then--I'm not sure it actually makes a lot of sense. I'm not convinced the Court's going to find its way there eventually, even though they were definitely curious about it in this oral argument. But a lot of thought evolves from oral argument to written opinion in these cases at times.

Benjamin Wittes: Well, not when the written opinion comes out within 48 hours as this one is going to do. Roger, everyone is saying, as Trump would put it, that they don't understand this distinction between the ministerial and discretionary matter that you and Judge Henderson, um, referred to, uh, and that they need a little, uh, refresher on this. So, uh, what is the distinction that she is drawing here that you say is terrifying?

Roger Parloff: Well, the part about it that I thought was terrifying was when she started to talk about remanding and having Judge Chutkan go through the indictment and try to--

Benjamin Wittes: But just walk us through the underlying, the underlying analytical point that she's making.

Roger Parloff: And I'll say, you know, what I have understood it to mean in the past, and which is actually what Sauer understood it to mean. With your more specialized DC Circuit knowledge, perhaps you, you know, uh, something else. But this is, uh, derived from a line of cases of coming out of Marbury v. Madison. There are things that government officials do where they don't really, it's, they don't have any discretion.

Somebody is supposed to come to them, give them a deed, they're supposed to stamp it, you know, uh, find out does it have x, y, and z on it. If it does, you stamp it, it's approved. That's ministerial. There are things like uh, foreign policy of the United States where, uh, the President, uh, should we invade this country or not?

That's discretionary. It's, um, it's a very different sort of power. Now, she was using it in a weird way, uh, because, I mean, to me, there, there, the way I understood it, there were relatively few ministerial roles for a president, but, uh, she seemed to think that almost anything, that if you were alleging a crime, then it goes without saying that the President isn't empowered to commit crimes, and therefore it's ministerial.

I didn't quite get that, um, so maybe you have a better idea of what she understood. Sauer seemed to understand it the way I understood it, and saying, you know, "well, nothing, nothing alleged here is remotely ministerial." So I'm a little at a loss.

Benjamin Wittes: Yeah, so I gotta say, I was a little bit at a loss to that, too.

I think the President does have some uh, sort of purely ministerial functions. There aren't that many of them. It's not like, um, it's not like, a lot of offices which have, issuing a marriage license, right, is a ministerial fund, right, that have no discretionary aspect. You're simply commanded to do them.

And I thought the relevance of the distinction was if a function is purely ministerial, the argument that you're , you have immunity for engaging in it is much stronger than if you can say, well, that action was a discretionary act that nobody forced you to do. No, nobody demanded that you, you know, kill that guy on 5th Avenue.

You chose to do it. And there are criminal laws against shooting people on 5th Avenue, though, by the way, not on 6th Avenue where it's, it's always legal. So, Scott. What did Sauer mean by this? What is Henderson--how did you read her argument?

Scott R. Anderson: Well, I think she's pulling this from how the D. C. Circuit thinks about, uh, like civil remedies, like injunctions primarily, and how they approach the executive branch.

The D. C. Circuit has a particularly strong line of case law that essentially boils down to the idea that, although it doesn't quite technically go this far, that the courts cannot enjoin or compel the President himself to take any actions in the same way they can lower executive branch officials. But, they leave open this carve-out saying for a purely ministerial duty of which there's no inherent discretion, there we can review the President's actions, say, in fact, separation of powers concerns be damned. There's no discretion here. And in fact, we can compel the President to pursue this ministerial duty. That's the stamping the element, right? And this was the issue in our war powers lawsuit, because we essentially were arguing there is no discretion left for the President based off the steps he's taken. He's obligated to file this report, he failed to report. Uh, back of--this is the lawsuit Ben and I pursued back in 2020.

Here, what I think Henderson is saying, "Look, in the cases of criminal laws, you have hard prohibition. There is no discretion around you cannot murder people. There is no discretion around these sorts of lines."

It's very different from when you're trying to compel the executive branch to do something. There, there's often elements of discretion involved with what the executive branch is trying to do. But she didn't seem to be saying, like, "Yeah, there's prosecutorial discretion, but a huge part of the Take Care Clause is just abiding by the law, and there is some conduct that is clearly inconsistent with the law to an extent that is effectively ministerial."

That is a broader concept of that than like the DC Circuit, I think, would apply in the kind of injunction context. But there's a compelling logic there. I mean, she's essentially saying some things are just beyond the pale, clearly beyond any sort of reasonable interpretation of the law. And those are the things people should be held criminally accountable for.

If there's any gray area, give the President the benefit of the doubt. But if it's an indisputable ministerial, as the way she's framing it, that is outside the scope and that is clearly criminal. So I think there's actually an intuitive, compelling-ness if that's how you're reading, if I'm understanding her correctly. Um, but that, that framework, the way of thinking that, well, I think the other judges got to a similar place. Uh, they didn't bite into that way of getting there.

It's worth noting Trump's lawyer, Sauer, the way he phrased it, he said, "Oh, Take Care Clause obligations. I think those are all discretionary." And then he kind of moved on. That's a wild thing to say, to say that the President is never compelled to abide by the Take Care Clause, to abide by the law.

I think if he was pushed back on that, he actually would have to roll back that kind of categorical dismissal, uh, of that line of argument. But because the other judges didn't buy into that framework, there wasn't that much engagement on it. But that's how he got around it, and, like, that's a problematic assertion if that's what he's forced to rely on. Um, so maybe we'll see more of this in a Henderson concurrence, which she, which she often likes to do, uh, write separately, um, kind of drilling into this concept a little bit more.

Benjamin Wittes: All right, Quinta, let's do the gameplay here, um, uh, the, uh, the, the after game analysis here. Only two lawyers arguing here, Mr. Sauer and, uh, and surprisingly to me, not Michael Dreeben who, uh, wrote the briefs, uh, but, uh, a different lawyer from the special counsel's office. How'd they do? Uh, one of them obviously had a way harder job than the other, uh, so. What, uh, handicaps should we give to, to Sauer on this, given that he was, he had a real uphill run, and how do you think, uh, both sides did?

Quinta Jurecic: I have to say, I thought the quality of the representation on both sides was really strong. Um, Sauer certainly ended up making some, I would argue, pretty absurd arguments, but he did so with aplomb, and except for the assassination bit, I think generally he was doing his best to make those arguments in sort of the most reasonable possible way.

Um, I think it's telling, for example, that he spent so much time really digging in on this double jeopardy Impeachment Clause argument, which is sort of--I ultimately find silly--but it's sort of very dry and technical rather than, you know, a big bombastic sweeping claim about the nature of presidential power.

Um, of course, when, when he did get back into having to argue that, he did argue that the President could permissibly carry out an assassination of a political rival without being prosecuted for it under some circumstances.

Benjamin Wittes: No, he, wait, wait, he didn't quite say-- well, under some circumstances.

Quinta Jurecic: Under some circumstances.

Benjamin Wittes: What he said was, I refuse to--without saying this--I refuse to answer that question because I refuse to acknowledge the possibility that such a president wouldn't be impeached and removed and therefore subject to criminal prosecution.

Quinta Jurecic: Right. Although that opens up the possibility, uh, which the special counsel noted in, I believe in some of the briefing before the DC Circuit, which is that the President, under Trump's theory, could stand during the State of the Union and call for the assassination of members of Congress, and if those members of Congress were then assassinated, perhaps by SEAL Team 6, I don't know, I don't think Jack Smith specified, uh, then if you got rid of enough of them, uh, he wouldn't be able to be impeached.

Uh, so there's--it's the perfect crime, right there. Um, so jokes aside, um, I do think that Sauer did a really good job. I mean, the-- having good representation is what you want in a case like this, right? You want both sides to be able to sort of set out the best possible arguments. And counsel for the special counsel, I thought, did a really nice job as well.

There have been some arguments, um, in this Trump litigation where the panel really kind of wipes the floor with Trump's counsel, um, and that certainly was not the case here, even though I think that we all agree that Trump is not going to win this one. I'm curious if anyone disagrees with my take.

Benjamin Wittes: Yeah, does anybody have, uh-- Anna, did you, you were there, um. My impression was that Sauer did a very creditable job with a ridiculous hand.

Anna Bower: I mean, I think that's right. My only complaint about, about Sauer's performance is that I think he might have had a cold. And so his voice was a little bit raspy.

Benjamin Wittes: He had some serious vocal fry going on.

Anna Bower: Um, and it sounded-- I know that some folks were wondering if there were some audio issues, but he he he genuinely, I think, maybe just had, was getting over a cold or something, and it was it was actually a little bit difficult to understand him in the courtroom at times.

Um, but I think that he did as well as a person, as an attorney, could have in in those circumstances and with a client who is Donald Trump. Uh, um, and, and I will also say that just, you know, the, the AUSA who argued at Pierce, he did, I thought an excellent job and, and he was very compelling. Um, uh, I did-- the only answer that I was a little bit, you know, and I, I don't think that this was his anything on him, but I, I did think that it was interesting when one of the judges asked him, you know, "Why isn't the special counsel's office arguing this jurisdictional argument when arguably, you know, advances your interest of, you know, uh, speeding up the case?" and he, he kind of gave this answer that's, you know, appealing to the interest of justice for both the public and the defendant and getting the law right, which just like, I mean, sure, you, that's what you've got to say, but he also made this comment that I thought was interesting and revealed maybe the real reason, which is that, uh, you know, he, he says something to the effect of, "You know, it might speed up the case, but that's kind of empirically difficult to, uh, judge." And, and so I think maybe that is a reference to the fact that, you know, it could very well be that the jurisdictional kind of grounds sends things back to Judge Chutkan and resumes, uh, you know, the trial and speeds things along and we get to a March trial date like everyone expected.

But it also could be the case that the jurisdictional, uh, jurisdictional ruling slows things down. Uh, so I, I, I, it seemed to me that that kind of revealed what was actually going on there strategically. But I, I thought that, you know, all the parties did, did a good job. And, and, uh, I, even though I very much disagree with many of Sauer's arguments, he still managed to walk a very fine line between, you know, being someone who is in a difficult situation but is doing as well as anyone could in that situation as an attorney.

Benjamin Wittes: Yeah, we're getting some comments in the, uh, YouTube, uh, comments, uh, ragging on Sauer's performance. And I just want to say your job as a lawyer in those situations is to go in and represent your client. And your client, this client, has a, a weak argument, but that the, the deployment of which can eat up time, which is in his strategic interest.

And so your job is to make the best case you can to a, uh, for a bad argument--it's, it's not an argument that's going to prevail--and to along the way eat up as much time as you can. And I think Sauer did that as well as anybody could. And as to people who don't like his voice, look, the guy's got a cold. Give him a break. I thought it was an example of fine lawyering and fine lawyering does not necessarily mean you're gonna win. If Donald Trump wins this case, it'll be by winning the election or by hanging a jury eventually. He's not going to win on this grounds. That's not what they're trying to do.

Scott R. Anderson: Just the other thing I, the one part I thought I thought was really weird that happened twice is he had these very weird exchanges with Florence Pan where he came off as very slippery because she kept trying to get him to make an obvious concession that is a logical conclusion of his argument, which is that if Trump were impeaching convicted, then yes, he could be charged and there would not be an immunity issue.

But he refused to accede at any point or to acknowledge that that was even a possibility to at any point say, no. He said, "I would do a qualified yes." This is as close as he got to that, which is absurd. I don't think that's actually always good advocacy. Otherwise I agree with strong. But I suspect it's because his clients in the room-- and he's got a really difficult client.

I mean, we know how Donald Trump thinks about this stuff. He does not like to give an inch on any of this stuff. And so I kind of suspect he's stuck a little between a rock and a hard place where he has to compromise maybe some better principles of advocacy where you might say, "Well, Judge, we're not addressing this scenario. Yes, possibly we can deal with that separately. That's not the facts before us." Instead, he's forced to be kind of hardline about it. And I think that's because he knows that's what his client likes and he wants that client to stay his client.

Benjamin Wittes: Yeah. So I agree with that. And I also think that that was a tactically bad failure to concede, but I also think he probably made an additional calculation on that, which is, which is that it's costless to him because if he concedes it, uh, then she writes, "Trump's counsel concedes, as he must, that blank," uh, and cites to the point in oral argument. And if he doesn't concede, uh, she writes, "Trump's counsel concedes, as he must," and then that, you know, that this specific issue would go away. Uh, if he, like, he effectively did concede it, he just didn't acknowledge he was conceding it.

And so, I don't think it has a lot of cost to him, but I do think it was a certain, there was a certain amount of preening in front of the client there. Okay, so, I wanna go back to, uh, since we're talking about Florence Pan, a interesting theory that she floated, uh, Roger, which was that we don't really need to reach a whole lot of this stuff.

All we need to decide is that, assuming we have jurisdiction at all, is that Trump's crazy theory about the Impeachment Judgment Clause is crazy and clearly wrong, and everything else falls apart once you decide that. So here's how this theory works, and then I'm just gonna ask you to reflect on this, uh, this part of the argument because I actually think there might be something to this.

So she goes, "Okay, look, your theory is that, not that there's absolute immunity, but that there's the, you acknowledge that the President can be prosecuted if he is impeached and convicted. In other words, not that he is absolutely immune, it's that he's absolutely immune without that precursor step. Um, so you acknowledge that he can be prosecuted."

So the question is whether you're right about, not whether you're right about the necessity of the precursor step. And this gets to, uh, Scott's, these, these exchanges with Sauer on the point where he kind of acknowledges it, but kind of doesn't. And so the logical import here is that if this point fails, that this is not a necessary precursor step, well, then you're left with a binary.

Either there's absolute immunity-- clearly wrong--or there's not any necessary precursor in the form of the Impeachment Judgment Clause. So my question to you, Roger, is, is this a clever way of getting around a whole lot of issues, like difficult issues, basically just saying, Hey, he acknowledges, even though he doesn't quite acknowledge, that everything falls apart once you lose this. Uh, and by the way, that's the most ridiculous part of his argument.

Roger Parloff: Yeah. I, I don't think she'll actually, given that, you know, she has to worry about further review also, I don't think she'll put all her eggs in one basket in terms of her, her ruling. But I think it's a powerful point that--and, and I, I think the government had made the point too in its brief that, you know, you, you have a lot of separation of powers argument, arguments, and you have a lot of policy arguments, but then you concede that if X, Y, and Z happens, yeah, you can prosecute him. And, in fact, ordinarily, if you're impeached, it's most likely has some, it's an official act. So, you can actually be--you're conceding, uh, you're likely conceding, that you can be criminally prosecuted even for official acts. So it's a big concession. It's a, it's an important adversarial point. I think they'll still go through all the other arguments to be safe. But, um, no, I think it's a good thing to, to focus on.

The other thing that was interesting is that there was really virtually no one, no one really even bothered to argue, uh, about that Impeachment Judgment Clause. You know, nobody was taking seriously this argument that Trump might be right about his interpretation. There was virtually no, uh, argument about that clause itself. It was just, "Doesn't it reduce to that clause?" really, uh, uh, given what you've said. And just, in case readers don't know, or listeners, what we're talking about is the phrase, uh, it's the Impeachment Clause, "Judgment in Cases of Impeachment shall not extend further than to removal from Office and disqualification to hold and enjoy office, but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishhment, according to Law."

And so the clause is generally understood to be saying, "Congress itself can't impose any punishment other than you're removed from office and may be disqualified to hold office. But after that, once you're out of office, you can be tried for, criminally." The way Trump is asking the court to interpret it is, it's, it is to look at the lines, "but the Party convicted shall nevertheless be liable..."

it doesn't said, say, "but the Party acquitted shall be, nevertheless be liable." And he was acquitted. He's saying, "I'm home free. You can't go, go get me." There was really nobody that took that argument seriously. I think everyone understood it.

Benjamin Wittes: Right. But, uh, but, but I do think Pan's argument that, without that argument, the other argument, the, uh, the immunity argument, actually doesn't work. And I think that's a, like, the, the immunity argument to some degree depends on the Impeachment Judgment Clause argument. That's an interesting point to me, and I, it's actually one that I hadn't really thought about until she raised it.

Roger Parloff: It is that once you make the Impeachment Clause argument, you're conceding that absolute immunity, absoluta absolute immunity, doesn't really exist.

Because you've conceded that, yeah, you can be prosecuted, even presidents, even for official acts, if you're convicted.

Benjamin Wittes: But moreover, that the reciprocal is also true. That if you were absolutely immune, you wouldn't need the Impeachment Judgment Clause.

Roger Parloff: Exactly. Yeah.

Benjamin Wittes: Um, and so that there's a, there's a, that these two arguments are more intertwined. And to be fair to Sauer, I think he acknowledged that. He, he described them as two mutually reinforcing arguments, but the thing that is mutually enforcing, the element that's mutual, that mutually reinforces them, is in fact the weakest part of the argument.

And I think her point-- and I, I, I give her credit for it because I don't think it's in the briefs-- is, her basic point is, you know, we don't really need to do more than give a little tap to that argument, and then the whole thing falls apart. All right, so, Quinta, while we were talking, you dropped in our, uh, our chat Trump's reaction on the stairs of the court to the oral argument, since we talked about his, the, uh, presence in court, what did he do after court and how do you think Judge Tanya Chutkan is likely to react to it?

Quinta Jurecic: Well, uh, he apparently went, left the court and then, uh, spoke to a number of reporters and commented that, um, and I quote, "I think they feel," I assume they means the Democratic Party, "this is the way they're going to try and win and that's not the way it goes. It'll be bedlam in the country. It's a very bad thing. It's a very bad precedent. It's the opening of a Pandora's box."

So I will say to me that certainly reads like a coded threat about what will happen if the prosecution moves forward. If I were Judge Chutkan, I would be looking at that and wondering what's up with that gag order.

Benjamin Wittes: So if she were to interpret this as a threat directed at witnesses, at court personnel, and rather than just a generic prediction of bedlam, uh, she could you know, issue some kind of show cause order. My sense is that she's a little less sensitive to this sort of thing than you are. Then again, she was swatted the other night, and God knows how she's feeling about it now.

All right, before we get our line news. I am going to give you each one minute to articulate what is going to happen in as few words as you can and how long it's going to take. Scott.

Scott R. Anderson: I don't know.

Benjamin Wittes: Quinta.

Quinta Jurecic: Uh, DC Circuit narrows Chutkan's ruling. Trump appeals to have it heard en banc. DC Circuit denies that. He then appeals up to the Supreme Court. I don't know what the Supreme Court does.

Benjamin Wittes: And how long will it take before the panel rules?

Quinta Jurecic: I don't know. End of the week? 48 hours? Soon.

Benjamin Wittes: Anna?

Anna Bower: Easy question is how long it'll take. It'll be very quick, within a week, I think. The hard question is how it all turns out. I think based on what we heard that it's, it's certain that Trump is going to lose.

It's just the question of how he loses. I think we might see an, uh, several, you know, kind of maybe, can--some concurrences, some fracturing amongst the panel in terms of exactly how they decide, which could cause some problems in terms of what happens with the delays and and what the Supreme Court does.

So I guess I'm with Scott in answering I don't know exactly how but I, you know, I, I, I think that it's unclear to me if there's a unified perspective among the three judges other than that Trump, you know, is going to lose.

Benjamin Wittes: Roger?

Roger Parloff: I think it will be, uh, two will actually vote to uphold Chutkan, and then Henderson will have a long and strange concurrence.

I think the, uh, it will be hedged in the hypothetical jurisdiction way, uh, the way I described earlier.

Benjamin Wittes: Oh, and how long is it going to take, Roger?

Roger Parloff: Uh, a week.

Benjamin Wittes: A week. Okay, here is the correct answer. It is going to, uh, be decided on Friday. And it is going to be decided narrowly on jurisdictional grounds because that will piss off Scott the most.

And that is actually what they're going to talk about at conference tomorrow. They're going to be like, "How can we dispose of this unanimously in a fashion that will make Scott look bad?" And, uh, and they're just, it's all about, about Scott having to issue a mea culpa on rational security. That's what they're going to do. And, uh, so look for that.

Anna, we have come to that point in the show that everybody wanted at the beginning and we held on to. We had a thousand concurrent viewers all waiting breathlessly for you to tell us about the line. What's the story? How was the line today and were you first in it?

Anna Bower: All right. I am pleased to report that Lawfare was first in line in the media line, but I feel like it is a false victory or a hollow victory because it feels like it was, I don't know that I was first, I don't think I was --definitely don't think I was first on the scene. Here's what happened. The Court decided to not have one entrance that was open to the public this time, but three. Uh, so there's, uh, three different entrances, uh, to the courthouse. I always go in through the Third Street entrance.

And so I showed up at the Third Street entrance in the very early hours of the morning. And to my surprise, there was no one there. And I was, Kind of freaking out for a little bit because, um, I, I wasn't sure if that meant that the entrance would not be open, uh, at seven o'clock, which is when the doors of the courthouse were supposed to open. But eventually more and more people, you know, joined me and, and we had a line.

What I did not know is that there was another, there were two other lines that were going on outside these other entrances and the courthouse doors were supposed to open at seven. And luckily just for the entrance that I chose, they actually did open at seven. And so I was able to go immediately up to the courtroom and get in line outside of the courtroom.

Uh, but apparently, I didn't know this until later, the other courthouse doors, for some reason, the staff there didn't open them until, you know, like a half hour afterwards.

Benjamin Wittes: Oh, so you like, you like got, we were first in line as a result of rank favoritism on the part of the marshals for the Third Street entrance?

Anna Bower: Well, right. Well, kind of, but here's what is very funny, is that I was sitting next to another reporter who was also at the Third Street entrance and-- or maybe she was coming in from one of the other entrances and she was with a member of the public. And I have no idea what this gentleman's name is, but I was sitting in the first of the line next to outside of the courtroom. And he saw me and she said, he immediately goes, "Is that Anna Bower from Lawfare? How did she get in here already? Does she know someone?" And, and so I have been accused of, of being, of having favoritism from the marshal service by this man. And so whoever you were, I will tell you that it was totally not favoritism. It just happened to be that the Third Street entrance opened, uh, at seven, whereas the other entrances for some reason didn't. So while we were first in line, I feel a little bit guilty about claiming it because it wasn't out of any kind of, you know, uh, particular like dedication to the line this time. It was more of just by luck.

Benjamin Wittes: All right. Well, you know, I'd rather be lucky than good. All right. We are going to leave it there, except that there are two small items of business we have to deal with first. The first is, did, and for those for whom this is a new reference, you know, get used to it. He's a character who comes up in this show every now and then.

Did the "no foreskin, no peace" guy show up, or not?

Anna Bower: He wasn't there. I was at least the entrance. I mean, look, the Third Street entrance, maybe that's not his spot, but it was last time. He was all about the Third Street entrance last time, but this time around he was not there. And after the hearing, I didn't see him.

I will say though, I did see, we were just talking about Judge Chutkan. I did see Judge Chutkan as I was walking out and she seemed to potentially be surrounded by people who were, you know, security personnel. Um, yeah, so it was, but it was very just, you know, interesting that, you know right when Trump is leaving, Judge Chutkin seemed to be coming into the courthouse. But, as to the "no foreskin, no peace" protestor, I did, did not see him this time.

Benjamin Wittes: Well, he is, uh, we, we keep an eye out for him because he's one of the things that makes the Barrett Prettyman Courthouse, uh, the awesome place that it is. All right. The second item of business is that Scott Anderson has a clarification, perhaps, induced by my making fun of him in my own prediction.

Scott R. Anderson: The one thing I'll say about what's coming next, I am far less convinced than other people in the Supreme Court will grant cert on this. I think there is a serious chance that they will-- if the DC Circuit narrows Chutkan's opinion substantially and does it in a fuzzy way, that enough justices can read into it what they think the right standard should be, there's a good chance that they might just not grant cert. And that's actually the fastest way to get back to trial.

Anna Bower: I think that's right if they don't do weird things with the jurisdictional stuff.

Scott R. Anderson: Agreed. A hundred percent. Exactly. On the merits. The jurisdiction, that's why the jurisdiction stuff makes me nervous. It's just one more way that justices could see a need to intervene.

Benjamin Wittes: All right. We are going to leave it there. Thank you all for joining us today.

The Lawfare Podcast is produced in cooperation with the Brookings Institution. Our audio engineer this episode is the one and only Anna Hickey of Lawfare.

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