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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, this is one of those weeks where no matter what's happening in the legal news, it pales in comparison. It feels trivial in comparison to what's happening in the broader world. And here, of course, I'm talking about Israel.
I'm not going to get into depth on that. That's not my area of expertise. But of course, my thoughts and I know everyone's thoughts are over there. Thank you for tuning in. As always, there is still important legal news, even if it's not on the level of what we saw in Israel. I did think it was important to draw your attention to one motion that we saw come across yesterday.
this week that really could have very broad implications as we move forward for our Constitution, for our democracy, and for the Trump prosecutions. So as always, thanks for listening. And I do really appreciate hearing your thoughts, questions, and comments. Keep them coming to letters at cafe.com.
It's always easy, and often correct, to react to Donald Trump's legal moves with disdain. He and his lawyers have made a habit of submitting court papers that read more like anger management sessions or social media rants or stream-of-consciousness airing of grievances than actual legal filings. But this one is different. Trump has moved to dismiss Jack Smith's federal election interference indictment on the basis of presidential immunity.
Unlike some of the drivel we've seen from Trump's lawyers over the years, this motion contains merit and nuance. At a minimum, it raises thorny issues that will require courts to break new ground. And while I wouldn't quite say it's more likely than not that Trump wins this one, he's got a realistic material chance of success. If he does prevail here, DOJ's 2020 election fraud case is toast and Fannie Willis's likely will be too.
I can already hear the outrage. But nobody's above the law. I know, I know, I'm with you. But it's simply non-responsive.
to react to reality with indignation. The fact is the president sometimes is above the law. Who else can invoke executive privilege to try to block subpoenas? Who else can pardon his cronies who might have testified against him and maybe pardon himself? Who else cannot be prosecuted by DOJ while in office? As we assess Trump's immunity motion, let's start with one vital thing we do know and then two others that we don't.
First of all, known thing number one, a federal official has absolute civil immunity and cannot be sued for actions taken within the scope of his federal job. This bit is settled thanks to Richard Nixon. Long story short, an Air Force analyst named A. Ernest Fitzgerald testified in Congress about wasteful military spending. Nixon had him fired. Fitzgerald sued Nixon for damages.
And the Supreme Court threw the case out, creating the modern conception of absolute immunity for the president from civil suits. Now, if you're wondering, well, how about the Paula Jones case when she sued Bill Clinton? Good question. The Supreme Court let that one proceed because while the lawsuit was filed while Clinton was president, the conduct occurred entirely before he took office. From there, we got depositions, lies under oath, a salacious independent counsel report, a presidential impeachment, and a great television miniseries.
Now, unknown thing number one, does a federal official have absolute immunity against criminal prosecution, not civil, but criminal prosecution for actions taken within the scope of the federal job? Now, you can see the arguments both ways here. DOJ will argue that civil immunity is one thing, but to elevate presidential protection to the criminal level is to invite consequence-free lawbreaking by one extraordinarily powerful individual.
Trump will counter that the Supreme Court's primary concern in creating civil immunity was that the president, in exercising his executive duties, should not be hamstrung by fear that he might get sued because of some difficult decision he has to make as president. That worry about impeding the functioning of the executive branch would be even more pronounced, the argument goes, if the president had to constantly fret not only about being sued, but about being prosecuted and thrown in prison.
Take whichever side speaks to you. The Supreme Court has left this make or break issue wide open, and we just don't know how it'll come out.
Now, unknown thing number two, did Trump's charged conduct fall within the outer boundaries of his job as president? Trump's team argues that everything he did, as alleged in the indictment, was well within his job as president. They say he made public statements about the election and certification. He communicated with DOJ about possible election fraud. He dealt with state officials, the vice president and Congress about, quote, the exercise of their official duties in the election certification proceedings.
End quote. That's a quote from Donald Trump's motion. In a vacuum, those things sound fine and dandy. Of course, Trump's lawyers offer a highly sanitized account of what he actually did. He didn't just have some theoretical chat with Mike Pence about the constitutional scope of his powers. He asked Pence to throw the election his way.
But even if we take Trump's actions in the worst possible light, that might not overcome an immunity defense. Let's consider the counter arguments that DOJ will make to Trump's claim that he was acting within the scope of the presidency. First, DOJ will say, but the president has nothing to do with elections.
Not really. True, the states administer elections and certify their results, but it's also not quite right to say that the president and the executive branch that he leads have no role whatsoever.
First, the president has a broad constitutional duty to, quote, take care that the laws be faithfully executed. By the way, what's with the framers use of random capitalization? They capitalize laws and care. I guess I can understand laws being sort of the whole idea. But why capitalize care anyway?
That's a pretty darn broad constitutional imperative. And the president holds the widest ranging authority of any American public official by far. The president oversees DOJ, which contains an election integrity branch. He oversees the Department of Homeland Security, which lists election security among its official duties. And he oversees the Federal Election Commission. Each of these agencies have roles in regulating or securing our elections.
Can't the president order DOJ to investigate potential election fraud, for example? Can't the president appoint the head of the FEC and set enforcement priorities? Can't the president deploy FBI assets or the National Guard if, for example, minority groups were being physically prevented from entering polling places? The point is not that Trump had any such noble intentions. He didn't. The point is that it's simply wrong to proclaim categorically that the president has nothing to do with elections.
Second, DOJ may well argue, but Trump committed a crime and that can't be part of the president's job. Get this. It may not matter. For one thing, this is a circular argument. Well, we've indicted you for a crime. Therefore, you committed a crime. Therefore, you are outside the scope of your official job. Therefore, you're not immune.
The problem is, if this argument holds, it would automatically defeat any and all immunity claims. But we know the Supreme Court has already recognized at least a civil form of immunity, so that circular argument simply cannot win the day. Moreover, the law is perhaps surprisingly tolerant of lousy official behavior, an
An allegation of malicious or corrupt motives does not affect a public official's immunity. And the motive that impelled the official to do that of which the plaintiff complains is wholly immaterial. Know how we know that? That's actually a quote from the Supreme Court. I don't talk that way. In a civil case back in 1896, he didn't think I'd go on all old timey syntax on you, did you? But again, that's what the Supreme Court said. The motive that impelled the official to do that is wholly immaterial.
So it's not about whether the officials actions were benevolent or evil, wise or foolish, or perhaps even legal or illegal. It's about whether they fall within the outer boundaries of the officials gig. Shooting somebody on Fifth Avenue certainly would not qualify, but making a bunch of calls from the White House to other government officials about the election, even with a selfish or evil intention, maybe. Third, DOJ and defenders of DOJ will say, but Trump was acting as a candidate, not as the president.
Again, prepare to be dismayed. It may not matter. As recently as 2020, the Supreme Court has recognized that it's difficult to draw a line between the president in his official and personal capacities. Indeed, DOJ itself recently argued in another case that, quote, a first term president is in a sense always a candidate for office, end quote. So again, this one isn't quite as clear cut as first impressions might dictate. Now,
Trump will not prevail in front of District Court Judge Tanya Chutkin, in my estimation. Judge Chutkin has made quite clear in her rulings on previous January 6th related cases her view that Trump deserves to be prosecuted. She seems intent on bringing Trump to trial before the election, setting trial for a mega expedited date in March 2024. She's not throwing this case out.
But Trump is not playing for Judge Chutkin here. In a sense, her ruling hardly matters. It certainly will be appealed either way.
The Court of Appeals for the D.C. Circuit will get the next crack at it. And then lurking above it all sits the U.S. Supreme Court. Of course, the high court doesn't have to take any particular case, and they typically grant review to less than 5% of all cases presented to them. But this one is as strong a candidate for review as you'll ever see. It poses unresolved constitutional questions, as the court has acknowledged.
which go to core issues of executive power and separation of powers. This case is custom made for Sarsha Harari.
I genuinely don't know what the court will do if it takes the case, though it's probably a good sign for Trump if he loses below and then the Supreme Court gets involved. According to SCOTUSblog's remarkable stat pack, the Supreme Court reversed the lower courts in 82% of the cases it considered during the most recent term. It stands to reason, really, if the court is fined with the result below, it can pass and leave it in place. But when the court does take a case, it's usually for a purpose.
If Trump does succeed on his immunity argument in the federal case brought by Jack Smith, then the Fulton County DA's case is likely finished too. Sure, the DA will argue that she's charged Trump under state rather than federal law, perhaps with marginally different conduct or angles. But if the Supreme Court rules that Trump cannot be prosecuted for his efforts while in office to steal the 2020 election in several states, including Georgia, as charged by Jack Smith,
Then Willis has nowhere to run and her case bites the dust too. Don't toss this immunity motion into the same pile of kindling where so many other Trump briefs have rightly landed. This one is for real. Thanks for listening, everyone. Stay safe, stay informed.
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