The Supreme Court heard oral argument today in the Trump immunity case – Trump arguing that some or all of the D.C. federal court criminal charges were barred by his absolute immunity. (Docket) Both the District Court and D.C. Circuit rejected Trump’s legal arguments.
SCOTUS accepted the case for review on the following question:
“Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
The Court heard argument for 2.5 hours. You can listen here, and view the transcript here.
It was a fascinating argument. I thought Trump’s attorney was particularly good.
Here are a few highlights people have posted.
I appeared on the Tony Katz Show just as the argument was ending, to give my take on what happened. I think my take is generally in line with the consensus that Trump is likely to win on the issue of immunity for official acts, but send it back down to the District Court as to what parts of the indictment involve official acts.
If that happens, the likelihood of this case getting to trial by November approaches zero.
The last couple of minutes regard the various campus pro-Hamas tent encampments.
Katz (00:00):
Whole lot of questions that didn’t leave me thinking they were specific in any one direction. Tony Katz, great to be with you, Tony Katz today. William Jacobson joins us right now, Cornell Law professor from legalinsurrection.com. How I saw it as a layman is different than how somebody could see it in in the legal, but first let’s, in the legal profession. Let’s break down what I said here about what this case is. This case is about whether or not a president in the job of doing the president can be charged with a crime. Is that correct?
WAJ (00:34):
That is correct. The question that they took this case on was, and I’m reading it now, is ‘whether, and if so, to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office?’
This case regards official conduct of the president. The argument’s still going on <laugh>, I don’t know if I recall a longer argument where there weren’t multiple parts, but it’s still going on, but there’s been a lot of discussion about private versus public [sic – official]. The issue, the legal issue on which the court took the case assumes that a president is charged for official acts, and that is the question they are considering.
Katz (01:22):
So it’s interesting the idea of official acts because in the conversation with Trump’s lawyer, one of the things that they asked is if, is it an official act? If it benefits him, if it benefits, not necessarily Trump, but any president, is it, is it always an official act, even if the benefit comes to him directly? And I thought that was an interesting question because I could not figure out if they’re trying to understand the scope of the Trump’s team, or they’re trying to figure out how they would draw the line on what is and isn’t. And I couldn’t figure out how they were gonna draw that line. What did you take from that?
WAJ (02:04):
Yeah, I don’t think they will draw the line in this opinion.
I think they will simply find in response to their question that there is presidential immunity for official acts while done in office and send it back down to the district court to opine on whether the charges in this case involve official acts or not. I think the more interesting question is what if it’s a combination? And I don’t know if they will opine on that or reserve that for another day. And that I think is really the dilemma in this case is that it’s a mix of potentially official and potentially private acts that are alleged. And during the questioning, I forget which Justice it was, read, I think it might have been Barrett, well, what about this allegation? Is that public or private or what about that allegation? So I think that’s going to be the tougher question is what, what are you going do where it’s a mix of public and private acts? I’m sorry, official and private acts and that, I don’t know if they’ll decide that now.
Katz (03:10):
So that was indeed, your memory is solid, talking to William Jacobson, Cornell Law professor, the mind behind legalinsurrection.com. That was Trump’s lawyer, Sauer is his name, S-A-U-E-R. And he was speaking to Amy Coney Barrett, Justice Barrett. John Sauer is his name. And she asked, so you concede that private acts don’t get immunity to which Sauer responded we do. And then Barrett went to pages 46 and 47 of the brief that Sauer filed and just started going down the list. And it was a moment of, well, now it really gets tricky because we’re making the, the argument that there can be a private act, but who would get to decide the private act? And that’s the part where I lost my head. I’m like, how I have always looked at this case and said, I don’t know how the Supreme Court is going to say that someone can’t be charged. But I had not considered that there would be a differential to the idea of a private act in a public act. Were you able to determine in listening to the case being argued what they thought was a private act in a public act?
WAJ (04:29):
No. I mean, some things, you know, I don’t think so, and that’s why I don’t think the court’s gonna rule on it. I don’t think the court’s gonna go through the indictment line by line and say, this is public and can be charged. I’m not public. I keep saying public, this is official and can be charged, and this is private and can be charged. So I don’t think the court’s gonna do that. I think it’s gonna announce a rule that president has immunity for official acts, and then let the lower courts decide and rule based on evidence presented to them what is official and what is not.
Katz (05:05):
So in your view, what does this do to the Jack Smith case specifically on January 6th?
WAJ (05:15):
Assuming the ruling is, as I’ve just articulated, it means it’s certainly not going to trial before the election because that whole process is going to take time. I have no doubt [District Court Judge] Chutkin will rule on it fairly quickly, but then it goes up on appeal and possibly back to the Supreme Court. And while that’s all going on, even if that process were somehow miraculously to be concluded in a month or two, which I think is unlikely, it’s still too late to get a trial done before November.
Katz (05:44):
Let me go to the other side of this case…. it seems like the Justice Department was actually trying to say, yeah, it’s on the president and any president can be charged any time for any bad policy or any mistake based on evidence presented. That doesn’t work out well.
WAJ (07:04):
I mean, that’s the problem here. Once you loosen the rule about presidential immunity, then there’s no end to it. And, that’s what I think the fear is. I think the question is how far beyond or are they even going to discuss at this point what is an official act? Because the, I forget the term that they use, but the Trump team has a fairly expansive term. It’s not just the official act, but it’s everything surrounding it. And that would of course, expand it dramatically. And so they want to say anything that the president does that is even tangential to an official act. And again, I’m not thinking right off the top of my head of the word they use, but anything that’s even tangential is covered by immunity. I don’t know if the Supreme Court will get into that, how far beyond, I mean, there are things that are clearly an official act of the president, you know, signing a bill, signing an executive order, things like that.
But what about things that get into the political sphere that surround what the president does in an official capacity? I don’t know if they will get into that or if they will allow the lower courts to sort that out, but that’s where I think the real nub is…. So this is a messy situation. I think we’ll get a pronouncement of law and they’ll send it back down and say, come back in a year or two
Katz (08:46):
Talking to William Jacobson Cornell law professor legal insurrection.com.
Let me move it off the Trump case really quick and on to college campuses. As you follow these things and talk about these things, write about these things extensively, what you’re dealing with at Cornell, what’s happening at, at Columbia and, and NYU, I am hearing that in my own beloved Indiana, Indiana University now has an encampment. You’ve seen the arrests there at University of Texas, Austin, and there are some people on the political right who are arguing, you cannot arrest somebody for antisemitism. That somehow it is wrong for colleges to call in authorities to engage arrests. I have to tell you, I’m stunned by this type of theory because that’s not why these people are being arrested. Although if you’re preventing somebody from walking down the street and you’re targeting people because they’re Jews based on what the country describes as hate crimes, that could be allowed, correct?
WAJ (09:51):
Nobody is being arrested or moved off campus because they’re vile disgusting people. Okay? <laugh> They’re being moved off campus because they violated the campus rules against camping on university property. They don’t allow encampments on university property. They don’t allow taking over areas of campus. They don’t allow a lot of things regardless of what your viewpoint is. And so if somebody could come to me and say they allow groups they agree with to set up tent cities on campus, but they’re not allowing these people, then you might have a free speech sort of argument. But that’s not it.
I believe these protestors very strategically at a centralized level of the groups that are coordinating this nationally, have found that this is a really good tactic because you set up an encampment, you know it violates the rules at almost every university, maybe every university. Andm, and therefore, you know you are going to be challenged. You know you’re going create a confrontation. You’re going to create a confrontation outdoors where everybody can see it and video it. And then you get to play victim and you get to make the stupid arguments such as the ones you’re quoting, other people are making about free speech, when in fact it’s the encampment that’s the problem. And you get the university to back down and you proclaim victory.
So this is a very typical quote unquote, pro-Palestinian type of tactic. And we see it in Israel as well. They do something that they have a win-win situation. They win if there’s a confrontation and they lose, and they win if they win. So that is what is going on here. This is very strategic. It’s all nonsense.
There are many photographs of some of these tent cities. Not all of them, but many of them. I put one on my website last night from a local newspaper where the tents are identical. Somebody went out and put in an order for a bunch of tents. It wasn’t the students who showed up. These are, in many cases, not students bringing the tents they slept in last summer in the National Park. Somebody is coordinating this and they have decided that tent cities is the object that they want to be the focus of these protests for the reasons of I have articulated.
They also, and no one’s really picked up on this, they also call these ‘liberated areas’, things like that. Liberated from what, who is it liberated from? Well, it’s liberated from the United States. This is a reflection that this movement is not recognize the sovereignty of the United States.
And they say this, a lot of them, and I see it at Cornell in particular, they call the United States, they call our country Turtle Island. Turtle Island is the term that some Native Americans use as to the creation of the Earth. So this is very much a Khmer Rouge Year Zero sort of movement.
They do not recognize the United States. They want our system torn down. They want to start over with Turtle Island or Year Zero, whatever they want to call it, and they are liberating this territory from the United States.
Katz (13:07):
William Jacobson, we’re going to talk more about this in the future.
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