Donald Trump’s lawyer was playing a weak hand before the Supreme Court in the immunity argument.
Donald Trump’s lawyer was playing a weak hand before the Supreme Court in the immunity argument.
A n occupational hazard of having argued cases in court as a lawyer is that I can’t listen to oral arguments without second-guessing the advocates in real time — even lawyers who are typically very good at what they do. I’ve seen some really bad lawyering in my time, as well as good lawyers who were put in impossible positions by their clients. But I’m not sure I’ve ever seen anything as blinkered and insane for no good reason as Michael Dreeben’s approach to the Supreme Court Thursday morning, arguing on behalf of special counsel Jack Smith in Trump v. United States.
This was the last Supreme Court argument of the term, involving Trump’s claim of “ABSOLUTE IMMUNITY” from prosecution. The appeal arises from Smith’s indictment of Trump in federal court in D.C., which seeks by creative lawyering to federally criminalize Trump’s effort to overturn the 2020 election and hold him criminally responsible for January 6. I’ll walk through the stakes, the strategies, and the arguments of Trump’s lawyer below. In a second installment, I’ll cover Dreeben’s bizarrely ill-considered performance.
Immunity and Its Roots
The argument started with Trump’s lawyer, John Sauer. Sauer had an impossible task, bound by bad facts and a bad client who forced him to take an indefensibly overreaching position.
Trump isn’t making up his request for immunity from whole cloth. The Supreme Court held, in Nixon v. Fitzgerald (1982), that presidents have absolute immunity from civil-damages lawsuits for their official acts. Thus, Richard Nixon was immune from suit for firing a federal employee on pretextual grounds, even if he may have violated the law in doing so. Federal courts have recognized, largely on structural and policy grounds, a variety of absolute, conditional, or qualified immunities for various officials (legislators, judges, prosecutors, cops), for varying types of legal proceedings (from criminal prosecution and/or civil suit, or from being hauled into state court), so this is not untrod ground.
Only members of Congress have such an immunity expressly recognized in the Constitution, in the speech-and-debate clause. Some other immunities, such as for foreign states and their agents, are codified in federal statutes that explain when they do and don’t apply. But most are grounded openly in policy, even if that policy draws strength from tradition and history. Everyone recognizes that public officials cannot serve the voters if they do not have at least some protections from continual harassment in the courts that makes them fear taking the actions they were elected or appointed to take. The Nixon Court, writing eight years and three presidents after Nixon left office, was open about this:
We consider this immunity a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history. . . . Because of the singular importance of the President’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government. As is the case with prosecutors and judges — for whom absolute immunity now is established — a President must concern himself with matters likely to arouse the most intense feelings. . . . Yet, as our decisions have recognized, it is in precisely such cases that there exists the greatest public interest in providing an official the maximum ability to deal fearlessly and impartially with the duties of his office. [Quotations and citations omitted.]
The Nixon Court also cited “the sheer prominence of the President’s office” in making him “an easily identifiable target for suits for civil damages.” That concern is more pointed where any American might file a civil lawsuit, but the president’s political prominence can also attract prosecutors. There’s a fair debate about whether the Court ought to have put itself in the position in the first place of recognizing non-textual immunities, but notably, the solicitor general’s brief doesn’t ask the Court to overturn Nixon or reject the framework of immunities that surround other offices. If the Court works within that framework, however, it is not necessarily the case that official acts of the president need to be given absolute, rather than qualified, immunity.
Justice Ketanji Brown Jackson was the most vocal critic of immunity:
If there’s no threat of criminal prosecution, what prevents the president from just doing whatever he wants? . . . I think that we would have a really significant opposite problem if the president wasn’t chilled. If someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority could go into office knowing that there would be no potential penalty for committing crimes, I’m trying to understand what the disincentive is from turning the Oval Office into . . . the seat of criminal activity in this country.
If the potential for criminal liability is taken off the table, wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they’re in office? . . . [The Office of Legal Counsel] has said that presidents might be prosecuted. Presidents from the beginning of time have understood that that’s a possibility. That might be what has kept this office from turning into the kind of crime center that I’m envisioning.
My first thought in hearing a liberal judge say this: Man, the Nineties are really over, and so is the moral panic over “Lock Her Up.” The Court in Nixon recognized that the threat of criminal prosecution isn’t the only check on the president in his official acts:
A rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive. There remains the constitutional remedy of impeachment. In addition, there are formal and informal checks on Presidential action that do not apply with equal force to other executive officials. The President is subjected to constant scrutiny by the press. Vigilant oversight by Congress also may serve to deter Presidential abuses of office, as well as to make credible the threat of impeachment. Other incentives to avoid misconduct may include a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President’s traditional concern for his historical stature. The existence of alternative remedies and deterrents establishes that absolute immunity will not place the President “above the law.”
The problem for Sauer is that he doesn’t just have to convince the Court that presidents should be immune from prosecution for their official acts; in order to actually get the indictment dismissed, he has to convince them to apply some standard that defines “official acts” broadly enough that it covers Trump’s campaign to reverse the outcome of the 2020 election. And Trump, in his public pronouncements, has contended that he should be totally immune from this prosecution.
But that’s a really heavy lift, and Sauer got no help from the bench. The great bulk of what Jack Smith alleges is things Trump did in his capacity as a candidate for reelection, and which he could have done if (as he was between November 2016 and January 2017) he was a real-estate developer and private citizen who had just been on a presidential ballot. Trump gave speeches, called governors and legislators, riled up crowds, and generally tried to use his public influence to bend decisions to his way? He ordered campaign subordinates and party loyalists to file bogus lawsuits and cast fake electoral votes? All of these things can be done by a party nominee who holds no public office. They are not official acts, in the simplest sense of being things only a public official can do.
In determining what counts as an official act, Sauer embraced the D.C. Circuit’s ruling in Blassingame v. Trump (D.C. Cir. 2023), but Trump lost that case, at least at the pleading stage. Blassingame involved a civil lawsuit by Capitol police and members of Congress who blamed Trump for the January 6 riot at the Capitol and sought damages for injuries. The court applied the Nixon v. Fitzgerald rule and concluded that the facts stated in the complaint showed that Trump was acting as office-seeker, not office-holder, in his remarks on January 6. The D.C. Circuit did, however, hold out the possibility that Trump might win on immunity later on a fuller factual record. It’s also difficult to draw much guidance from Blassingame, given that the panel in that case delivered three separate opinions.
Tomorrow and Tomorrow and Tomorrow
Of course, in order to understand what’s actually going on in Trump v. United States, you need to grasp the stakes the players are playing for. Sauer undoubtedly knows he has no chance of getting the Court to accept the argument Trump makes on social media. But Trump’s real goal is to delay the trial as long as possible, so he won one round just by getting his appeal heard by the Court, and he will win another round if the Court accepts even just barely enough of his argument to require further hearings in the lower courts to decide what in the case might be an “official act” that cannot be prosecuted.
Dreeben, representing Smith and the Biden Justice Department in general, has the opposite incentive. If he was purely representing the interests of justice, his task would be to focus narrowly on arguing for a standard that properly distinguishes official presidential conduct from what Trump did. Instead, Dreeben pressed repeatedly for a standard designed to kick the immunity determination down the road so that it would be decided later in the case — perhaps by a jury unschooled in the law — instead of up front by the courts with a right to immediate appeal, as is customarily how immunity issues are litigated. He had no real legal support for this; he just wanted it. This is consistent with Smith’s legally improper view that the Justice Department has an interest in using a trial of Trump to make a case to the voters before Election Day. Only Justice Sonia Sotomayor was clearly in favor of Dreeben’s approach.
Dreeben’s other priority, like that of solicitor general Elizabeth Prelogar in last week’s Fischer argument, was to articulate the Biden administration’s legal-resistance themes about the uniqueness of Trump and January 6 — even if doing so undercut his credibility with the conservative justices and reduced his likelihood of obtaining a favorable outcome in the Court’s opinion.
Powers and Motives
Sauer opened by going big: “Without presidential immunity from criminal prosecution, there can be no presidency as we know it.” But he immediately ran into Justice Clarence Thomas asking him to “be more precise as to the source of this immunity?” In fact, while the Court’s decision may yet turn on the absence of textual support for immunity, that was about the last time anybody discussed the matter.
The hard question, for Sauer, came next from Thomas and Chief Justice Roberts: how to determine what’s an official act, and what isn’t. The test case is bribery, which the Constitution explicitly lists as a crime justifying the impeachment of a president — but an essential element of bribery is taking bribes in exchange for official acts. Sauer offered a highly unpersuasive argument that a bribery indictment should be reviewed with all references to official acts taken out — and this anticipated an argument from Dreeben about how to handle an indictment that mixes official and unofficial acts. Justice Elena Kagan followed a similar line in asking Sauer about what happens if a president sells nuclear secrets or orders the military to stage a coup.
A principled line in deciding when a criminal charge involves a president’s official acts is to look objectively at what the president is alleged to have done, and whether or not it involves decisions about how to exercise the powers of his office — including how far to press claims of the legal authority of that office. The Court’s conservatives returned repeatedly to this theme. They got little help from Sauer. They got less help from the liberal justices, or from Dreeben.
Sotomayor, for example, offered this hypothetical:
If the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him, is that within his official acts for which he can get immunity? . . . Because he’s doing it for personal reasons. He’s not doing it like President Obama is alleged to have done it, to protect the country from a terrorist. He’s doing it for personal gain. And isn’t that the nature of the allegations here, that he’s not doing them — doing these acts in furtherance of an official responsibility; he’s doing it for personal gain?
Jackson chimed in: “Isn’t the work, though, of the improper motive at least in the absolute immunity context to tell us what are official acts and what are not?”
This is entirely the wrong way to think about structural separation of powers rules. As I have warned before, it’s the easiest thing in the world in politics to draw lines based upon motivations and good faith and declare that your friends have good motives and your enemies are all venality. Sometimes, that’s true, and it’s fair political argument; but legal rules should not be so subjective. After all, Biden is siccing federal prosecutors on Trump on the theory that Trump is a corrupt person, and he’s being cheered on by the same people who professed horror when Trump said that Hillary Clinton should be locked up for being a corrupt person, or when Trump dispatched Rudy Giuliani to Ukraine to unearth proof that Biden was a corrupt person, or when Republicans wanted Bill Clinton impeached or prosecuted for being a corrupt person. Immunities, by their nature, protect the office even when its holder is guilty of wrongdoing. If they apply only when the president’s enemies agree that he is well-meaning, they are useless parchment guarantees — in this case, without even the parchment.
Justice Elena Kagan, confronting Sauer’s argument that presidents have valid official roles in ensuring the integrity of American elections, shot back: “attempting to defend the integrity of the election, I mean, that’s the defense. The allegation is that he was attempting to overthrow an election.” Now, it’s true that a court sometimes needs to take evidence and perhaps hold a hearing on immunity if there are contested issues about what acts were official, and it’s not obvious from the indictment. But by having the inquiry turn on whether the president was right in his challenge to the integrity of the election, she’s again collapsing the inquiry into one of subjective good faith rather than one of acting in an official versus an unofficial capacity.
Justice Samuel Alito argued for a more objective standard that looks something like qualified immunity:
Suppose the rule were that a former president cannot be prosecuted for official acts unless no plausible justification could be imagined for what the president did, taking into account history and legal precedent and the information that was provided to the president at the time when the act was taken. . . . What if it did not involve any subjective element, it was purely objective? You would look objectively at the various relevant factors?
Trump’s Case
In any event, Sauer found himself friendless and cornered from all sides in actually trying to draw the line in a way that would immunize anything but a small corner of Smith’s indictment. Thomas extracted a concession that Sauer accepted the Blassingame line distinguishing “between the president acting as president and the president acting as candidate.” Barrett drilled in even further:
JUSTICE BARRETT: So you concede that private acts don’t get immunity?
MR. SAUER: We do.
JUSTICE BARRETT: Okay. So, in the Special Counsel’s brief . . .he urges us . . . that there were sufficient private acts in the indictment for the trial to go — for the case to go back and the trial to begin immediately. . . . Petitioner turned to a private attorney, he was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results. Private?
MR. SAUER: As alleged. I mean, we dispute the allegation, but—
JUSTICE BARRETT: Of course.
MR. SAUER: —that sounds private to me.
JUSTICE BARRETT: Sounds private? Petitioner conspired with another private attorney who caused the filing in court of a verification signed by Petitioner that contained false allegations to support a challenge. Private?
MR. SAUER: That also sounds private.
JUSTICE BARRETT: Three private actors, two attorneys, including those mentioned above, and a political consultant helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding, and Petitioner and a co-conspirator attorney directed that effort.
MR. SAUER: You read it quickly. I believe . . . that’s private.
That’s the bulk of Jack Smith’s case, given that most everything else in the indictment consists of Trump’s public statements or his communications with Congress and state officials. While Sauer argues that those were presidential communications, they rather clearly were specifically targeted to promoting his reelection and could and would have been undertaken even if he’d been a private citizen at the time.
Sauer responded to a series of questions from Kagan on communications between Trump and other public officials — and even the chair of the Republican National Committee — by claiming that they were official acts. He had no apparent takers. Sauer even offered a preposterous analogy to “President Grant sending federal troops to Louisiana and Mississippi in 1876 to make sure that the Republican electors got certified in those two cases, which delivered the election to Rutherford B. Hayes.” But ordering movements of the Army is obviously an official act, and one that was within the scope of Reconstruction, which Grant had been administering in military and political capacities for eleven years by then. Grant wasn’t acting as a candidate, and he wasn’t a candidate in that election.
The one piece of the case that Sauer dug in on more properly was the indictment’s allegations about Trump trying to misuse the Justice Department to pursue fraud allegations, including discussing replacing DOJ personnel — which are plainly official acts. But even if he could get those allegations stricken entirely from the indictment, it would not matter much.
All of this leads to an important point: Even though the Court is acutely aware that a key Rubicon has been crossed with the prosecution of Trump, the justices aren’t focused at all on helping Trump out of his current pickle; their attentions are on the long-term implications of the rule for future presidents. As Justice Neil Gorsuch said, “I’m not as concerned about this case so much as future ones. . . . We’re writing a rule for the ages.” Justice Brett Kavanaugh added, “I’m not focused on the here and now of this case. I’m very concerned about the future.” Which is precisely why it is likely that the Court won’t rush to put out a half-baked opinion (as it did in the Colorado ballot-disqualification case) but should be expected to decide the case with some care, knowing that whatever it decides may be with the republic long after everyone involved is gone.