My Immunity-Case Prediction, Right and Wrong

Well, now that we’ve gotten the immunity decision, Trump v. United States, I think my Monday morning prediction was mostly right: The Supreme Court did indeed “recognize that presidents have immunity from criminal prosecution for acts that are within the ambit of their executive authority.” That said, I was wrong in forecasting that the Court would leave a path for Biden special counsel Jack Smith to streamline the indictment in a way that would enable him to bring former president Trump to trial prior to the election.

I was wrong about this because I was very persuaded, at the oral argument, by the concessions of Trump’s counsel, John Sauer, under pointed questioning by Justice Amy Coney Barrett (and, to a lesser extent, Justice Elena Kagan) regarding allegations in the indictment that appear to involve wholly private acts — especially the so-called fake-electors scheme.

Perhaps it has happened before and, in my dotage, I’m just not remembering. But I don’t recall an occasion when a lawyer in a big case made a major concession to his client’s apparent detriment — which he’d obviously deliberated over prior to making and decided his credibility as an advocate required it — and yet an appellate court second-guessed the lawyer.

That is what happened here. Chief Justice Roberts’s majority opinion (at p. 26) acknowledges that Sauer “appeared to concede” that the fake-electors scheme entailed “private” conduct. Yet Roberts proceeds to point out — not very convincingly, in my view — that certain aspects of the scheme intersected, at least at the margins, with then-president Trump’s arguably official responsibilities. Roberts refers to Trump’s communications with state officials (which were, at best, tenuous in connection with the electors scheme); and a precedent (which he really does not discuss in any detail) related to President Ulysses S. Grant’s intervention on behalf of Rutherford B. Hayes in the historically controversial 1876 election. In the main, Roberts implies that the premise of Sauer’s concession — namely, that “campaign conduct” is not “official conduct” — is at least overbroad.

As a result, the fake-electors scheme joins all of the other allegations in the indictment that are, or at least could be, presumptively immune from prosecution. That means it will be left to Judge Chutkan, on remand, to sift out what’s a private act from what’s an official one. Even if she concludes that the fake-electors scheme is private after the exacting analysis the Court prescribes, Trump will claim she is wrong and appeal. It will still be an immunity claim, so I assume it would again be taken up by the D.C. Circuit and, perhaps, the Supreme Court.

I don’t see any way that can happen before Election Day. So, to the extent I thought Smith would have a shot at getting to trial if he was willing to streamline the case down to indisputably private conduct, it turns out there is no indisputably private conduct . . . so there’s no point in trying to streamline.

I want to think about it some more, which means taking the time to study the opinion in a way I couldn’t today. I am inclined, though, to agree with Justice Barrett on this one (see her concurrence, p. 3 & n. 2). There are a number of allegations in the indictment that fall within the ambit of official acts. I don’t think the fake-electors scheme is one of them.

I also want to think more about Charlie’s post, too. He agrees with Justice Barrett’s framework for analyzing claims that a president’s official acts are non-prosecutable. Her framework, it seems to me, is at least similar to that of Michael Dreeben, who argued the immunity case on behalf of Smith and DOJ. In a nutshell, rather than acknowledging that a president has immunity from allegations involving official acts, Barrett would say the president has a claim that such allegations are unconstitutional under Article II (which defines executive power) as applied to the president in the circumstances of a case.

My impulse, as I said when Charlie and I went around on this last week, is that it’s largely a distinction without a difference. That is, whether it’s called “immunity” or “an as-applied constitutional challenge,” Congress’s power to criminalize official executive acts is prohibited. But there is perhaps more to the distinction than I’ve allowed. The Court says a president’s official acts are presumptively immune, which means the government has the burden to overcome the presumption — and, as the Court describes it, that’s a heavy burden. On the other hand, a defendant claiming that an application of a congressional statute is unconstitutional as applied to him bears the burden of establishing the constitutional violation. In the law, the assignment of the burden of proof is nearly as important as the proposition to be proved. It could make a difference.

Anyway, need to think on it some more.