Tonight at 9 ET/8 CT, I’ll do my best, through this Substack thread, to answer your questions about this afternoon’s Supreme Court order taking up, on an accelerated basis, former President Trump’s claim that he is immune from the January 6 criminal prosecution in D.C. (and to keep that prosecution on hold pending a final ruling):
Hi friends! I'm going to start responding to the questions that have already come in. But please feel free to add new ones in reply to this comment if you'd like. And thanks for your support of "One First"!
Hi All! We've reached the 9:00 hour here in Austin, so I'm going to cut things off here.
But please feel free to continue participating in the thread here, or to send me additional questions via e-mail. I hope you've found this useful, and I hope you'll consider subscribing to "One First" if you don't already.
Our next bonus issue (the February installment of "Karen's Corner") will drop tomorrow morning.
WHY?! For God's sake - they're going to make it impossible to have the trial before the election! Talk me down from this ledge.....I'm gonna be sick....
Mr Vladeck ia an extremely impressive man. He us also a victim of a failure of imagination. This isn’t some deep issue that the rest of us (those who aren’t constitutional lawyers) just don’t understand. This is real simple. The court intends to pave the way to the presidency, and probably the end of democracy, for Trump. Everyone in the known universe should have known this is what they’d do. The five hacks were hired to do this.
I’m an old man. I know that comments like this are completely useless. But I’ll add to them anyway. The crisis we face is a party of thugs quite willing to do anything whether within the bounds of constitutional and democratic behavior or not to take power - and I mean power, not something trivial like winning an election. Then on the other hand we have an entire society that has grown accustomed to democratic norms and (sort of) decent behavior and only have constitutional means to defend themselves against anti constitutional behavior. And then you have people like the 5 hacks on the court who know exactly what they are doing: using multi syllabic arguments to defend and promote the thugs. Does anyone want to bet on the Colorado decision?
What a crock, especially waiting so long to do this. So much for all the speculation from all you non political lawyers that they would not grant a stay. So much for taking up a bogus case where any lawyer like me, or any non lawyer, could answer in 5 seconds-no immunity. I agree, running out the clock is the plan from every Republican, from the lowest to the highest. This stinks to high heaven, and I predict there is no DC trial this year. Our country is so screwed. Really. The rule of law has always depended on the honor system, and that is now out the window. Really sad and pathetic and frightening. I agree with Bowman Cutter.
"Presidential immunity for conduct alleged..." Will the Court rule on whether the conduct for which Trump is being prosecuted does actually involve official conduct?
Will this put the trial past the election? I don't see late April for oral argument as particularly "expedited" given the circumstances. Why can't they set it for day after tomorrow? Its not as if there hasn't been extensive briefing AND argument already. All anyone has to do is change the blinkin' caption on their pleadings.
I think your next book should be title "pocket veto" about the courts slow walking cases until they can declare them moot. See emoluments clause cases among others. I believe it was Melissa Murray (but possible Leah Litman) who said that SCOTUS paid no price at all for all the stalling tactics during the TRXXX administration and therefore would feel no need to work at speed here. I do wonder if any horse trading with respect to the Article 3 case is now lost.
I'm curious to see who files an amicus brief in support of this effort. While I would oppose my states AG (Texas) from filing one, I can absolutely see him doing it just the same.
I'd like Mr. Vladeck's opinion: why would SCOTUS agree to hear this case? And what possible case precedence would SCOTUS possibly reference for their ultimate decision?
Your recent newsletters/opinions supporting the belief that SCOTUS would decline hearing this case and uphold the appeals court's well-crafted opinion rejecting immunity has been dashed.
At the moment - to use a '70's term - I am bumming hard.
Yes, the Court would have probably had to weigh in on presidential absolute or criminal immunity at some point. Now, in an election year, and with a pending trial of one of the candidates to boot, however, is not that point IMO. For a Court (or at least a Chief) who has vowed to (at least blatantly) steer clear of politics and elections, it has now jumped in with both feet. I can't wait to see its next conditional or situational democracy ruling in the Colorado 14.3 ballot case where, no doubt, it will decide the people of that state don't have the right to put who they want on their ballot while, quite possibly, deciding the rest of the country won't have the ability to know if they're voting for a felon come Nov. All is not yet lost, but the Court majority has put its thumb undeniably on the scale --- it could have denied the stay but granted cert. and thus allowed the trial process to resume. Now, it may well be up to the majority of the American people to forcibly remove that thumb via the ballot.
Will there be a trial? Will it be before election? If Supreme Court tables this till after election, does it lose even last shred of credibility from 60 percent of America? And how does THAT play out?
The phrasing of the QP seems to make it very difficult for the Court to cleanly affirm the DC Circuit. What are the chances that this goes the way of Mazers, i.e., the Court crafts a new rule related to the presidency and then remands to the lower courts to apply it to this case?
I believe your position has been clearly articulated. What potential new angles might Trump's attorneys or advocates use in oral arguments or amicus briefs? How would you address those if you were the government? Did the SC take this case, which looked straightforward, because of the importance to the upcoming election? Does this timetable create a sufficient delay in the DC and Florida trials that his SC appointees have given him a win? We all need some help to not leap off the cliff. Please try!
How did they end up sitting on this for 2 weeks? Seems like those 4 (+) who wanted to hear the case would have not been pondering it all this time. Just how expedited do you see the schedule as being? Almost 2 months out till the arguments.
The order refers to considering if a former president has any criminal immunity for "official acts" while in office. Seems like a potential red flag? Seeing the court frame Trump's destructive conduct off the bat as official acts seems kind of not great?
Is there any way the DC trial will be able to conclude before the election? And please tell me that there is no reasonable chance that even THIS court will buy Trump’s immunity argument.
The legitimacy would have been enhanced by a decision not to take it coupled with a strong affirmation of the lower court. It’s the point I made about a failure of imagination. We’ve all grown up in Institutions we believed in. You have obviously had a significant career appearing before the court. I’ve been in other parts parts of government and worked with and for people I respected. This court is now a different animal. Hard to believe but there we are.
When does the law work for us ordinary humans? Trump undermines the rule of law and we just sit and watch. The Supreme Court is undermining the justice system and we just sit by and watch it happen. What should ordinary citizens do to express their rights?
What's so accelerated about this? Good lord, they could insist on instantaneous filings and arguments next week. They could stop the stay and let the district court move forward. Justice delayed IS justice denied = and the people being denied it are the citizenry of this country.
Do you agree with these possible reasons for the delay in granting cert?
- There were 4 votes for both the cert and the stay, and the Court held the case until there was a 5th vote for a stay.
- There weren’t 4 votes for cert, but some justices were preparing inflammatory dissents from the denial of cert or draft summary affirmance. The majority decided granting cert would be better for the reputation of the court.
Steve, do you have any thoughts on why we hear "we can't pursue this legal process during a political campaign"? It would seem that a campaign is merely an extended set of interviews for a new job in the public sector. Are there other cases where a criminal defendant is viewed as untriable because they tell the court they are out looking for a new job? It seems strange that the conventional wisdom creates such a low barrier-to-entry loophole to avoid, or largely delay, a judicial proceeding for the convenience of the defendant.
You are doing a great service to the nation, Professor. My concerns lie less with the particular candidates than with the overall system that elects them. HRC and Trump are the two most-despised Presidential candidates since the advent of modern polling. My question therefore does not address how or whether to punish Trump. My question is (assuming you agree), how do we get rid of rigged primaries and the Electoral Clg? How do we make democracy *sustainable*, in order to prevent future Trumps?
Ive read your comment and with equal respect there comes a point when things aren’t so complicated. I’m sure that all of those ins and outs are sort of there. But they are like the nuts under the shell. They hid what is happening: the hacks see a delay as their best approach to clearing the way for Trump so that’s what they have done . It was clear a while ago that this court would decide against Colorado and find a way to help Trump on this. They are quite good at getting the political results they want.
So they denied Smith’s request for cert before judgment two months ago to allow the DCCCA to finalize a ruling, it’s got to be some granted cert now because they didn’t like the result? Has this happened before where it was obvious a small number who wanted to grant cert, but wound up in dissent, got to simply air their grievances?
The operative sentence from the SCOTUS cert grant 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 phrasing raises several questions: Why wasn’t this expressed as “conduct alleged to involve unofficial acts,” which is the “conduct alleged” as the basis of the prosecution’s case?
Also interesting is that a former President’s immunity from civil suits will not be addressed (see the decision holding that there is no such immunity by the DC CA) although in theory there should be little or no distinction between both types of immunity (civil and criminal).
According to the indictment handed up by a federal grand jury, Trump faces four charges: conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights.
Steve, which one/s of these allegations fall outside of the SCOTUS review and could still be pursued if presidential immunity is granted?
By the way, who is the Petitioner and who is the Respondent in this case? Trump appealed the matter to the USSC but they granted Special Counsel's request. Talk about confusing!
Here are my questions: (1) Is it possible that when the Court decides the case, they’ll remand for more fact finding? (2) Suppose instead that they rule that Trump has no immunity in this situation. How soon would the mandate issue? (3) How soon could a trial realistically begin? (4) How likely is it that the trial will in fact be conducted before the election? (4) This is even more speculative, but what position do you think that Roberts’s commitment to democracy, as shown e.g. in NFIB v. Sebelius, led him to take here - did he want to rule against Trump as part of a “grand bargain” to balance out the Colorado case, or did he want the courts to stay out of the election and leave it to the people to vote between the candidates? (5) Finally, how likely do think it is that the Justices are and will be approaching the case in a partisan way as many people would say they did in Bush v. Gore?
Assuming a decision comes in late June, if the court finds Trump does not enjoy absolute immunity, do you believed Judge Chutkan would feel obligated to postpone a trial past the election? The *unwritten* policy is a DOJ policy, and I am not familiar with any doctrines that would interfere with a trial court's usual control - and discretion - over its own docket.
There was no reason in this world for the Supreme Court to take this case…. Under the constitutional laws of the United States, there has never been an argument that a former president is immune from prosecution for crimes that he committed while in office.” Judge Michael Luttig.
There is a split between two of the Courts of Appeals as to whether the Jan 6 incidents fall into the definition of "obstructing an official proceeding." Do you think that issue will be addressed by SCOTUS, as it is one of the prosecution's allegations against Trump?
Sounds right. The question is what happens now---the Argument is 4/22. Do you think that there is a Majority to simply adopt the DC Cir Decision and issue a decision promptly or will the compromisers nallow this to be dragged? Do you have any thought as to who will file Amici for the Trumpian Position? It seems to me that the Amici for Immunity are filing for purposes of the delay.
Steve: Don't want to get too much further into the legal weeds here, but what possible arguments or legitimate assertions could Trump make that weren't already debunked if not outright destroyed by the DC Circuit ? And does it, in fact, make any different to the Court that the matter before it has been briefed to within an inch of its life by two other federal courts ?
This is a rather clumsy process for Q&A. Requires constantly scrolling to see responses. Hope you're exploring other mechanisms that work more smoothly. Zoom?
Hi friends! I'm going to start responding to the questions that have already come in. But please feel free to add new ones in reply to this comment if you'd like. And thanks for your support of "One First"!
Hi All! We've reached the 9:00 hour here in Austin, so I'm going to cut things off here.
But please feel free to continue participating in the thread here, or to send me additional questions via e-mail. I hope you've found this useful, and I hope you'll consider subscribing to "One First" if you don't already.
Our next bonus issue (the February installment of "Karen's Corner") will drop tomorrow morning.
Night all!!
WHY?! For God's sake - they're going to make it impossible to have the trial before the election! Talk me down from this ledge.....I'm gonna be sick....
Mr Vladeck ia an extremely impressive man. He us also a victim of a failure of imagination. This isn’t some deep issue that the rest of us (those who aren’t constitutional lawyers) just don’t understand. This is real simple. The court intends to pave the way to the presidency, and probably the end of democracy, for Trump. Everyone in the known universe should have known this is what they’d do. The five hacks were hired to do this.
I’m an old man. I know that comments like this are completely useless. But I’ll add to them anyway. The crisis we face is a party of thugs quite willing to do anything whether within the bounds of constitutional and democratic behavior or not to take power - and I mean power, not something trivial like winning an election. Then on the other hand we have an entire society that has grown accustomed to democratic norms and (sort of) decent behavior and only have constitutional means to defend themselves against anti constitutional behavior. And then you have people like the 5 hacks on the court who know exactly what they are doing: using multi syllabic arguments to defend and promote the thugs. Does anyone want to bet on the Colorado decision?
My only question is, Are you fucking kidding me???
What a crock, especially waiting so long to do this. So much for all the speculation from all you non political lawyers that they would not grant a stay. So much for taking up a bogus case where any lawyer like me, or any non lawyer, could answer in 5 seconds-no immunity. I agree, running out the clock is the plan from every Republican, from the lowest to the highest. This stinks to high heaven, and I predict there is no DC trial this year. Our country is so screwed. Really. The rule of law has always depended on the honor system, and that is now out the window. Really sad and pathetic and frightening. I agree with Bowman Cutter.
"Presidential immunity for conduct alleged..." Will the Court rule on whether the conduct for which Trump is being prosecuted does actually involve official conduct?
Will this put the trial past the election? I don't see late April for oral argument as particularly "expedited" given the circumstances. Why can't they set it for day after tomorrow? Its not as if there hasn't been extensive briefing AND argument already. All anyone has to do is change the blinkin' caption on their pleadings.
Will Judge Cannon use this as an excuse to delay the FL trial since Trump is also pleading immunity there?
Steve--
Thanks for your organizing this and your thoughtful responses.
Does SCOTUS have a complaints department?? The people have the right to a trial and a verdict before November. And the trial should be broadcast.
I think your next book should be title "pocket veto" about the courts slow walking cases until they can declare them moot. See emoluments clause cases among others. I believe it was Melissa Murray (but possible Leah Litman) who said that SCOTUS paid no price at all for all the stalling tactics during the TRXXX administration and therefore would feel no need to work at speed here. I do wonder if any horse trading with respect to the Article 3 case is now lost.
Why is the Court dragging its feet when it could have simply refused to accept the case?
Please offer any insights into the way that the QP was tailored, thanks!
I'm curious to see who files an amicus brief in support of this effort. While I would oppose my states AG (Texas) from filing one, I can absolutely see him doing it just the same.
I'd like Mr. Vladeck's opinion: why would SCOTUS agree to hear this case? And what possible case precedence would SCOTUS possibly reference for their ultimate decision?
Your recent newsletters/opinions supporting the belief that SCOTUS would decline hearing this case and uphold the appeals court's well-crafted opinion rejecting immunity has been dashed.
At the moment - to use a '70's term - I am bumming hard.
Do you think the Supreme Court took the case to let Trump argue so they can uphold the Court of Appeals but show he had due process?
Is this a per curiam Order? Is there any way to know if any justices opposed granting cert?
Is the briefing schedule unusually truncated?
Yes, the Court would have probably had to weigh in on presidential absolute or criminal immunity at some point. Now, in an election year, and with a pending trial of one of the candidates to boot, however, is not that point IMO. For a Court (or at least a Chief) who has vowed to (at least blatantly) steer clear of politics and elections, it has now jumped in with both feet. I can't wait to see its next conditional or situational democracy ruling in the Colorado 14.3 ballot case where, no doubt, it will decide the people of that state don't have the right to put who they want on their ballot while, quite possibly, deciding the rest of the country won't have the ability to know if they're voting for a felon come Nov. All is not yet lost, but the Court majority has put its thumb undeniably on the scale --- it could have denied the stay but granted cert. and thus allowed the trial process to resume. Now, it may well be up to the majority of the American people to forcibly remove that thumb via the ballot.
Will there be a trial? Will it be before election? If Supreme Court tables this till after election, does it lose even last shred of credibility from 60 percent of America? And how does THAT play out?
The phrasing of the QP seems to make it very difficult for the Court to cleanly affirm the DC Circuit. What are the chances that this goes the way of Mazers, i.e., the Court crafts a new rule related to the presidency and then remands to the lower courts to apply it to this case?
I believe your position has been clearly articulated. What potential new angles might Trump's attorneys or advocates use in oral arguments or amicus briefs? How would you address those if you were the government? Did the SC take this case, which looked straightforward, because of the importance to the upcoming election? Does this timetable create a sufficient delay in the DC and Florida trials that his SC appointees have given him a win? We all need some help to not leap off the cliff. Please try!
How did they end up sitting on this for 2 weeks? Seems like those 4 (+) who wanted to hear the case would have not been pondering it all this time. Just how expedited do you see the schedule as being? Almost 2 months out till the arguments.
The order refers to considering if a former president has any criminal immunity for "official acts" while in office. Seems like a potential red flag? Seeing the court frame Trump's destructive conduct off the bat as official acts seems kind of not great?
I’m surprised they took so long for this decision - I thought the longer it took the more likely they would not grant the stay.
Would love to hear your thoughts on this and the question presented.
Is there any way the DC trial will be able to conclude before the election? And please tell me that there is no reasonable chance that even THIS court will buy Trump’s immunity argument.
The legitimacy would have been enhanced by a decision not to take it coupled with a strong affirmation of the lower court. It’s the point I made about a failure of imagination. We’ve all grown up in Institutions we believed in. You have obviously had a significant career appearing before the court. I’ve been in other parts parts of government and worked with and for people I respected. This court is now a different animal. Hard to believe but there we are.
So does this mean the “You have to be impeached first” argument is dead, because the Court is apparently not considering that?
When does the law work for us ordinary humans? Trump undermines the rule of law and we just sit and watch. The Supreme Court is undermining the justice system and we just sit by and watch it happen. What should ordinary citizens do to express their rights?
What's so accelerated about this? Good lord, they could insist on instantaneous filings and arguments next week. They could stop the stay and let the district court move forward. Justice delayed IS justice denied = and the people being denied it are the citizenry of this country.
Do you agree with these possible reasons for the delay in granting cert?
- There were 4 votes for both the cert and the stay, and the Court held the case until there was a 5th vote for a stay.
- There weren’t 4 votes for cert, but some justices were preparing inflammatory dissents from the denial of cert or draft summary affirmance. The majority decided granting cert would be better for the reputation of the court.
Steve, do you have any thoughts on why we hear "we can't pursue this legal process during a political campaign"? It would seem that a campaign is merely an extended set of interviews for a new job in the public sector. Are there other cases where a criminal defendant is viewed as untriable because they tell the court they are out looking for a new job? It seems strange that the conventional wisdom creates such a low barrier-to-entry loophole to avoid, or largely delay, a judicial proceeding for the convenience of the defendant.
You are doing a great service to the nation, Professor. My concerns lie less with the particular candidates than with the overall system that elects them. HRC and Trump are the two most-despised Presidential candidates since the advent of modern polling. My question therefore does not address how or whether to punish Trump. My question is (assuming you agree), how do we get rid of rigged primaries and the Electoral Clg? How do we make democracy *sustainable*, in order to prevent future Trumps?
Ive read your comment and with equal respect there comes a point when things aren’t so complicated. I’m sure that all of those ins and outs are sort of there. But they are like the nuts under the shell. They hid what is happening: the hacks see a delay as their best approach to clearing the way for Trump so that’s what they have done . It was clear a while ago that this court would decide against Colorado and find a way to help Trump on this. They are quite good at getting the political results they want.
So they denied Smith’s request for cert before judgment two months ago to allow the DCCCA to finalize a ruling, it’s got to be some granted cert now because they didn’t like the result? Has this happened before where it was obvious a small number who wanted to grant cert, but wound up in dissent, got to simply air their grievances?
Where’s the live thread?
The operative sentence from the SCOTUS cert grant 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 phrasing raises several questions: Why wasn’t this expressed as “conduct alleged to involve unofficial acts,” which is the “conduct alleged” as the basis of the prosecution’s case?
Also interesting is that a former President’s immunity from civil suits will not be addressed (see the decision holding that there is no such immunity by the DC CA) although in theory there should be little or no distinction between both types of immunity (civil and criminal).
Hypothetical:
1. Court rules on May 1 that Presidents aren't kings,
2. Through some miracle, Trump wins Electoral College
3. Trials complete on November 15. Guilty on every and all counts, in all courts: DC, Georgia, Florida, NY(?).
4. January 6: Congress says.....Trump is ineligible per 14th Amendment....?
So the Electoral College electors do .... what? And then SCOTUS has to re-examine Colorado case, but as if it wasn't a state making the determination?
According to the indictment handed up by a federal grand jury, Trump faces four charges: conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights.
Steve, which one/s of these allegations fall outside of the SCOTUS review and could still be pursued if presidential immunity is granted?
Until today, I truly believed that Trump would face accountability over Jan 6. Now that seems all but impossible. Any reason for hope?
By the way, who is the Petitioner and who is the Respondent in this case? Trump appealed the matter to the USSC but they granted Special Counsel's request. Talk about confusing!
Here are my questions: (1) Is it possible that when the Court decides the case, they’ll remand for more fact finding? (2) Suppose instead that they rule that Trump has no immunity in this situation. How soon would the mandate issue? (3) How soon could a trial realistically begin? (4) How likely is it that the trial will in fact be conducted before the election? (4) This is even more speculative, but what position do you think that Roberts’s commitment to democracy, as shown e.g. in NFIB v. Sebelius, led him to take here - did he want to rule against Trump as part of a “grand bargain” to balance out the Colorado case, or did he want the courts to stay out of the election and leave it to the people to vote between the candidates? (5) Finally, how likely do think it is that the Justices are and will be approaching the case in a partisan way as many people would say they did in Bush v. Gore?
Assuming a decision comes in late June, if the court finds Trump does not enjoy absolute immunity, do you believed Judge Chutkan would feel obligated to postpone a trial past the election? The *unwritten* policy is a DOJ policy, and I am not familiar with any doctrines that would interfere with a trial court's usual control - and discretion - over its own docket.
Steve, your Q&A makes being a subscriber so valuable. Thanks for all your opinions and knowledge. Thanks to all those that responded as well.
There was no reason in this world for the Supreme Court to take this case…. Under the constitutional laws of the United States, there has never been an argument that a former president is immune from prosecution for crimes that he committed while in office.” Judge Michael Luttig.
There is a split between two of the Courts of Appeals as to whether the Jan 6 incidents fall into the definition of "obstructing an official proceeding." Do you think that issue will be addressed by SCOTUS, as it is one of the prosecution's allegations against Trump?
Steve: Do you have any sense who will argue this for DOJ? Michael Dreeben is on the briefs and is well-known. Is it likely to be him?
Sounds right. The question is what happens now---the Argument is 4/22. Do you think that there is a Majority to simply adopt the DC Cir Decision and issue a decision promptly or will the compromisers nallow this to be dragged? Do you have any thought as to who will file Amici for the Trumpian Position? It seems to me that the Amici for Immunity are filing for purposes of the delay.
Steve: Don't want to get too much further into the legal weeds here, but what possible arguments or legitimate assertions could Trump make that weren't already debunked if not outright destroyed by the DC Circuit ? And does it, in fact, make any different to the Court that the matter before it has been briefed to within an inch of its life by two other federal courts ?
This is a rather clumsy process for Q&A. Requires constantly scrolling to see responses. Hope you're exploring other mechanisms that work more smoothly. Zoom?