Note from Elie: Presidential Immunity: Not As Ridiculous As You’ve Heard 09:41

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Download the Viator app now to use code Viator10 for 10% off your first booking in the app. Regret less. Do more with Viator. Hey, everyone. Ellie here wishing you a happy Friday. Well, we made it through week one, at least, of Donald Trump's criminal trial in downtown Manhattan. I've had plenty to say on CNN and elsewhere. Hope you've got a chance to see some of that. My

My overarching observation for week one, though, is this is all pretty normal in a good way. Yes, we've got Donald Trump in the defendant's chair, but this is our process at work. And by and large, what you're seeing is the way criminal trials work. I think that's a credit to, first of all, the system. System's not perfect, but it works. The

The judge is doing a really nice job, I think, controlling his courtroom and keeping things moving efficiently. And the lawyers, the lawyers are professionals on both sides. This isn't your usual Trump defense team. These are pros. Donald Trump himself, even look, his statements outside of court have been outrageous and at times flagrantly violating the gag order. But in the court itself, he has not gotten away with much at all in terms of histrionics. He hasn't tried much of what he has. The judge has refrained.

quickly snuffed out. Now, I'm not promising you this is going to continue. I'm sure that as the trial itself gets underway, we will see many more unexpected developments, many more ups and downs. I don't think everyone's going to remain on such good behavior, but for now, it's a good start, and I find it encouraging to see that.

Now, this week, we're going to shift focus a bit. We're still in Trump world, but we're going to look ahead to next week's Supreme Court argument over presidential immunity. It all sort of ties together eventually. And I'm sure that after that, we'll get back to the criminal trial and summing up my thoughts on that. As always, I love to hear your thoughts, questions and comments. Please keep them coming to letters at cafe.com.

Go ahead and laugh off Donald Trump's immunity argument. He'll probably lose eventually, and you'll end up being right. But it's not as simple as gravely intoning that no man is above the law, dropping the mic, and asking what we're even doing here in the first place. There's more to the immunity question than that. And Trump's argument, though unlikely to prevail, isn't nearly as ridiculous as the glibly dismissive strawman takedowns would have you believe.

So let's start off with what we do and don't know. We do know that civil immunity for federal officials is well-established and uncontroversial. This doctrine goes back to a 1982 Supreme Court case called Nixon v. Fitzgerald. Nixon as in Richard, and Fitzgerald as in some guy you never heard of who was a federal employee, got fired, and then sued for damages.

The Supreme Court held that federal officials from the president on down cannot be held civilly liable for actions taken within the scope of their jobs. Hiring and firing federal personnel falls squarely within the president's official duties, the court found. So Nixon was clear and Fitzgerald was out of luck.

But we don't know the answers to two key questions. One, is there a criminal counterpart to civil immunity? And two, if so, what are the precise parameters? These issues have come up from time to time over the past few decades, but the court is dutifully punted. Now the justices have taken up Trump's argument in Jack Smith's 2020 election subversion case, which will be argued next week, and they've got to address criminal immunity head on.

Now, a reasonable person might wonder, what's the purpose of immunity anyway? Why would we give federal officials a windfall? Why would we give them a free pass? Immunity may have that effect, but it's not intended as some type of insider's fringe benefit. The legitimate policy reason, as articulated by the Supreme Court in the Nixon case and many times since, is that it's not intended to be a

is that public officials make difficult decisions every day that impact people's health, finances, and lives. We don't want those policymakers hamstrung or influenced by worries that they might be sued or perhaps indicted for those decisions. The paramount concern for the presidency itself, Trump's advocates surely will argue next week, is that an overzealous prosecutor might choose to criminalize official decision-making.

What if, for example, some politically ambitious prosecutor in Arizona indicted Joe Biden for manslaughter because his border policies allowed people to enter the country illegally and one migrant committed murder? Think this is ridiculous? It is. But it's also not inconceivable. What if, for example,

Witness, for example, one longtime former federal prosecutor who argued in a national news outlet that Trump should be indicted for manslaughter for his handling of COVID-19. It could happen if the wrong prosecutor takes the reins.

Indeed, immunity does have its legit purposes, but it sure needs to fire its public relations agent immediately. As a legal doctrine, immunity has got a bad rap thanks to common but oversimplified and misleading terms like blanket immunity and absolute immunity.

Those phrases suggest that a president can never be prosecuted for anything he does from the moment he puts his hand on the Bible at noon on January 20th until he departs office four years later. It's exceedingly easy to roll our eyes at such a claim. Of course, a president can't shoot somebody on Fifth Avenue and get away with it. But it's also not quite what Trump actually argues in the case heading to the Supreme Court. At least it's not anymore. He included this preposterously overbroad claim in his earlier briefings, but he since dropped it wisely.

Now, Trump makes two arguments in his actual Supreme Court brief. One of them is stupid as hell, but the other isn't half bad. The lousy one is Trump's claim that a president can be indicted only if he's first been impeached by the House and convicted by the Senate.

That construct has no basis in the Constitution, the case law, or common sense. Impeachment and indictment are separate and unrelated processes, and there's nothing in our laws to indicate that the latter depends on the former. Moreover, this claim leads to absurd outcomes. This is how Trump's lawyers back themselves into the infamous answer that, yes, a president can order a SEAL Team 6 to assassinate a political opponent and get away with it, unless he's first been impeached and then convicted.

Now, Trump's better argument is that a federal official is entitled to immunity from prosecution, but only for acts taken within the scope of the job. Now, this one's got support in prior Supreme Court rulings. It's the same framework the court adopted in the civil context in Nixon, and it leads to reasonable real-world outcomes.

When confronted with the SEAL Team 6 hypothetical, Trump's team should have responded that no, a president would not be criminally immune because ordering a hit on a political opponent is plainly outside the scope of the presidency.

The problem for Trump here, as ever, is the facts. It takes Simone Biles-level gymnastics to argue that Trump's actions after the 2020 election were just part of the president's workaday job of ensuring fair elections rather than an effort to steal the thing for himself. So Trump's lawyers might ultimately win on the law if the Supreme Court rules that a president can be criminally immune within the scope of the job, but then lose on the facts if the court finds that Donald Trump acted outside the scope in this case.

Here's where District Court Judge Tanya Chutkin dropped the ball. The judge, who has shown herself to be a sharp jurist with a masterful grasp of the law, wrote a blistering 48-page opinion dismantling the claim that Trump or any president is categorically immune for all conduct during the presidential term.

But Judge Chutkan failed or refused to do the next part, which also happened to be the hard part. She didn't even address Trump's claim that he's entitled to a limited form of immunity that protects a president only for official acts within the scope of the presidency. It would have been easy for the judge to consider and dismiss this claim, yet she inexplicably skipped it.

Indeed, the Court of Appeals tried to pick up the slack for Judge Chutkin when it issued its ruling two months later, as they found that even if some limited form of criminal immunity does exist, Trump was outside the scope of the job. The problem, however, is that the Court of Appeals is not a fact finder. That's up to the trial level district court.

Now the door remains open for an outcome that Smith surely dreads. The Supreme Court might remand the matter, send it back down to Judge Chutkan so she can hold a hearing to determine whether Trump acted within or outside the presidency. We know she'll rule against Trump eventually, but it'll take precious time and then Trump can restart the appeals process afterwards. Wash, rinse, repeat.

If the court does send the case back down, then Smith's chances of trying it before the 2024 election slip from unlikely to nil. And in that deceptively likely scenario, Trump will once again somehow manage to win by by losing. Thanks for listening, everyone. Stay safe and stay informed.

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