“When the Supreme Court endorsed broad presidential immunity from criminal charges last month, it raised troubling questions about whether and how former occupants of the White House can be held accountable for abusing their powers. In an initial attempt to answer those questions, Special Counsel Jack Smith this week unveiled a superseding indictment in the federal election interference case against former President Donald Trump—the same case that prompted the Court’s ruling.
The viability of United States v. Trump is unclear at this point. The Supreme Court charged U.S. District Judge Tanya Chutkan with reviewing the charges against Trump in light of its ruling, and any decisions she makes will be subject to appeal. There is no chance that the case will go to trial before this year’s presidential election, and if Trump wins, we can be sure he will find a way to make it disappear. Smith’s revisions nevertheless suggest what it might take to successfully prosecute a former president despite the obstacles that the Supreme Court has erected.
The most notable change from the original indictment is the excision of any reference to Trump’s interactions with the Department of Justice (DOJ). The government initially portrayed those conversations, in which Trump pressured DOJ officials to investigate his baseless claims of systematic election fraud, as part of a criminal scheme to overturn President Joe Biden’s victory. But the Supreme Court explicitly ruled out criminal liability based on such contacts.
Trump was exercising his “conclusive and preclusive” authority as president when he urged the DOJ to validate his stolen-election fantasy, Chief Justice John Roberts wrote in the majority opinion. The executive branch has “‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute,” he wrote, “including with respect to allegations of election crime.”
As Justice Sonya Sotomayor noted in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, that holding seems to give presidents a lot of leeway to wield the federal government’s daunting prosecutorial powers against their political or personal enemies. Under the majority’s “view of core powers,” she said, “even fabricating evidence and insisting the [Justice] Department use it in a criminal case could be covered.”
Sotomayor also noted other possible implications of the majority’s position. When a president “uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution,” she warned. “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
Roberts faulted Sotomayor for “fear mongering on the basis of extreme hypotheticals.” But we do not need imaginary scenarios to understand the perils of assuring presidents that they need not worry about the threat of criminal prosecution as long as they are exercising their “core powers.”
The proposed articles of impeachment against Richard Nixon alleged, among other things, that he made “false or misleading statements to lawfully authorized investigative officers and employees of the United States” and that he interfered with “the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, [and] the office of Watergate Special Prosecution Force.” The issue of whether Nixon could have faced criminal charges based on those allegations was never litigated, because he resigned before he could be impeached, and his successor, Gerald Ford, granted him a pardon that covered any federal offenses he might have committed in office. But according to the Supreme Court’s reasoning in Trump v. United States, Nixon’s corrupt interactions with the DOJ would have been off limits for federal prosecutors.
Beyond that specific instruction, the Court was hazy about the extent of presidential immunity. “We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office,” Roberts wrote. “At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.”
What about Trump’s interactions with Vice President Mike Pence? Trump persistently pressured Pence, in private and in public, to intervene on his behalf during the congressional ratification of the election results by rejecting electoral votes for Biden. Citing the “contingent” electors that his campaign had recruited in several battleground states, Trump urged Pence to send both sets of slates “back to the states” so that legislators could resolve a nonexistent controversy about the actual results. Pence repeatedly resisted, saying he had no authority to do what Trump asked.
The original indictment portrayed those interactions as a key part of a criminal conspiracy to change the outcome of the election. That aspect of the indictment presented “difficult questions,” according to the Supreme Court. “Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct,” Roberts wrote. “Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.”
The question, Roberts said, is “whether that presumption of immunity is rebutted under the circumstances.” He noted that the vice president is acting “in his capacity as President of the Senate,” part of the legislative branch, when he oversees the electoral vote count. The government therefore “may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose ‘dangers of intrusion on the authority and functions of the Executive Branch.'”
Would that argument be correct? Maybe not, Roberts suggested: “The President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions. It is ultimately the Government’s burden to rebut the presumption of immunity.”
The new indictment tries to do that in several ways. It notes that Pence was Trump’s “own running mate,” meaning the intervention that Trump demanded would personally benefit both of them. It adds that “all of the conversations between [Trump] and [Pence] described below focused on [Trump] maintaining power.” The indictment points out that Trump “had no official responsibilities related to the certification proceeding, but he did have a personal interest as a candidate in being named the winner of the election.” It later reiterates that Trump “had no official role” in the certification process.
The indictment also emphasizes the private character of other conduct that might be construed as “official acts.” Regarding Trump’s pressure on state officials to reverse Biden’s victories, for example, the indictment notes that Trump “had no official responsibilities related to any state’s certification of the election results.” Discussing Trump’s “fake electors” scheme, the indictment likewise notes that he “had no official responsibilities related to the convening of legitimate electors or their signing and mailing of their certificates of vote.”
Like the original indictment, the revised version describes the notorious telephone conversation in which Trump leaned on Georgia Secretary of State Brad Raffensperger to “find” the votes necessary to reverse the election outcome in that state. But the indictment makes a point of noting that the participants in that call included “private attorneys” and White House Chief of Staff Mark Meadows, who “sometimes handled private and Campaign-related logistics” for Trump.
The indictment still relies on Trump’s social media posts to make the case that he pushed a phony grievance aimed at preventing Biden from taking office. But it argues that such communications should not be viewed as “official acts.”
Although Trump “sometimes used his Twitter account to communicate with the public, as President, about official actions and policies,” the indictment says, “he also regularly used it for personal purposes—including to spread knowingly false claims of election fraud, exhort his supporters to travel to Washington, D.C. on January 6, pressure the Vice President to misuse his ceremonial role in the certification proceeding, and leverage the events at the Capitol on January 6 to unlawfully retain power.” And when Trump riled up his supporters that day, stoking their outrage at the prospect that Congress was about to recognize Biden’s supposedly fraudulent victory, he was speaking at “a privately-funded, privately-organized political rally.”
The indictment lists five alleged co-conspirators, “none of whom were government officials during the conspiracies and all of whom were acting in a private capacity.” It describes four as “private attorney[s]” and one as “a private political consultant.””
“Both sides in the case agreed that a former president can be prosecuted for “unofficial acts,” a point that Chief Justice John Roberts affirmed in his majority opinion. But Roberts added that a former president is “absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.”
It is not clear exactly which conduct falls into that “exclusive sphere,” although Roberts said conversations in which Trump urged the Justice Department to investigate his bogus claims of systematic election fraud clearly did. Adding to the uncertainty, the majority said even “official acts” outside “the core” of a president’s duties merit “at least a presumptive immunity from criminal prosecution,” which the government can overcome only if it “can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.'”
The strictness of that test, combined with the lack of clarity about which acts are “official,” suggests that the distinction between “absolute” and “presumptive” immunity is apt to dissolve in practice. And even if it proves meaningful, the Court said absolute immunity might ultimately be required for all conduct “within the outer perimeter” of a president’s “official responsibility.”
Under the majority’s reasoning, Justice Sonia Sotomayor warned in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, a president “will be insulated from criminal prosecution” when he “uses his official powers in any way.” That shield, Sotomayor said, would extend to a president who “orders the Navy’s Seal Team 6 to assassinate a political rival,” who “organizes a military coup to hold onto power,” who “takes a bribe in exchange for a pardon,” or who insists that the Justice Department use fabricated evidence in a criminal case.
Instead of explaining why immunity would not apply in such situations, Roberts faulted Sotomayor for “fear mongering on the basis of extreme hypotheticals.” He dismissed the threat posed by lawless presidents because he was focused on the supposed need to protect “an energetic executive” from the threat of criminal liability.
As Sotomayor noted, however, presidents have been operating under that threat for a long time. “Every sitting President,” she wrote, “has so far believed himself under the threat of criminal liability after his term in office and nevertheless boldly fulfilled the duties of his office.”
Former President Richard Nixon, who did not suffer from a notable lack of executive energy, evidently shared that long-standing assumption. After he resigned amid the Watergate scandal, Nixon accepted a pardon from his successor, Gerald Ford, that covered any federal offenses he may have committed as president.
According to the proposed articles of impeachment, those offenses included many acts that would count as “official” in Roberts’ book, such as “false or misleading public statements,” misuse of the CIA and the IRS, and interference with an FBI investigation. If Nixon was immune from prosecution for those acts, his pardon is a bit of a puzzle.
As that episode illustrates, we need not conjure “extreme hypotheticals” to understand the danger of a president who feels unbound by the law. In the real world, the risk of presidential paralysis pales beside the risk of presidential impunity.”
“In recent years, the Roberts Court has shown greater and greater impatience with criminal defendants’ efforts to forestall punishment — even if the outcome would be cruel, needlessly painful or simply unjustified. The effect of this new hostility to delay is most sharply felt in the death penalty context. But a general hostility to foot-dragging in criminal cases is a through line in the court’s docket.
Justice Neil Gorsuch set the tone for this approach in 2019, when he complained that legal challenges to the death penalty were often used to stall or even derail execution. Courts, said Gorsuch, should “police carefully against attempts” to use constitutional challenges as tools to interpose unjustified delay.” In particular, he warned, “last-minute stays should be the extreme exception, not the norm.”
The court has since followed Gorsuch’s lead with an unsavory relish. Before 2020 and the death of Justice Ruth Bader Ginsburg, it was common for the Supreme Court to grant stays to hear legal questions that arose at the last stage of a capital case. Since then, it has only granted two such stays. In the same period, it has also vacated nine stays on death sentences imposed by lower courts.
The result has been predictable: Many of the convictions the court has let stand are plausibly described as “riddled with errors.” And in January, the court declined to hear a challenge to Alabama’s novel use of nitrogen gas to execute Kenneth Smith. Witnesses described Smith’s resulting death as horrific — extended and torturous — and not at all painless as the state promised.
The same is true of federal prosecutions. In the last half of 2020, the court stepped aside as the federal government sprinted to execute 13 people — as many as had been killed in the previous six decades. Justice Sonia Sotomayor noted that the court “repeatedly sidestepped its usual deliberative processes” to enable an “expedited spree of executions.” In its haste to see punishment done, the court waved away its usual rules.
Outside the capital punishment cases, the Supreme Court has added more and more constraints upon prisoners’ ability to challenge constitutional errors. Gorsuch and Justice Clarence Thomas in particular have urged that the longstanding right to challenge state court convictions in federal court be effectively gutted. The effect of their proposal would be to streamline even further the criminal justice process — shutting down almost all efforts to raise objections before they had even started.
All this makes the Supreme Court’s decision to hear Trump’s appeal for absolute immunity from all criminal charges even more unusual, and troubling.
Start with the weakness of Trump’s argument. There is absolutely no constitutional text, no precedent and no authority in the original debates over the Constitution’s ratification to support the idea for a former president’s absolute immunity. The argument advanced by Trump’s counsel is patently absurd. The idea that senators could impeach a president who threatened them with deadly violence and so no criminal justice process is needed, is facetious. The District of Columbia Court of Appeals rightly ridiculed it — and issued a comprehensive, tightly reasoned and unanimous opinion that presented no good cause for further review.
Trump is within his right to appeal the decision, but there’s no good reason for the Supreme Court to take it up and review it as a matter of law — especially given how thorough the D.C. Circuit was.
In fact, the court’s erstwhile concern with “unjustified delay” in criminal cases would seem to cut hard against hearing the case. It is, after all, a matter of common knowledge that the former president’s legal strategy is to run out the clock and thus prevent a trial prior to the election. Here then is a case where justice delayed may well be justice derailed.
Indeed, the grounds for the court rejecting Trump’s request to take up the immunity question appear much stronger than in Kenneth Smith’s challenge to the use of nitrogen gas. If Smith had been successful, Alabama could have found another, permissible way to kill him. If Trump’s trial is delayed enough, it may never happen. If Trump is back in the White House, he can easily quash the Justice Department’s case.
The Supreme Court’s attention, moreover, is a precision good. In the court’s 2022-23 term, the court issued just 58 decisions. Given that this scarce commodity is so infrequently used to prevent the miscarriage of criminal justice, the question must be asked: Why now? And why for this defendant?
There is no good answer. It is hard to see any legally sound reason why the Supreme Court should have decided to step in to hear Trump’s implausible and constitutionally destructive claim for absolute criminal immunity — especially when it has refused to hear so many other criminal defendants’ far more meritorious claims.”
“The Supreme Court ruled on Wednesday that Trump’s DC criminal trial, the one concerning his attempt to steal the 2020 presidential election, must be delayed for at least another two months. The Court already effectively delayed his trial for an additional two and a half months in an order handed down last December.
This order is a colossal victory for Trump, and could potentially allow him to evade criminal responsibility for his attempts to overthrow the 2020 election altogether. Trump’s goal is to delay his trials until after Election Day. Should he prevail in that election, he can then order the Justice Department to drop all federal charges against him.
Trump was able to secure such an order from the justices by exploiting the fact that the federal judiciary ordinarily does not allow two different courts to have jurisdiction over the same case at the same time. So, when a party to a lawsuit or criminal proceeding appeals a trial court’s decision, the trial court often loses authority over that case until the appeal is resolved.
The ostensible reason for the Court’s order putting the trial on ice is that the Court needs that time to consider a weak appeal challenging a ruling by Judge Tanya Chutkan, the judge presiding over his DC criminal trial.
According to Trump, the Constitution forbids any prosecution of a former president for any “official acts” he engaged in while in office. The implications of this argument are astounding, and Trump’s lawyers haven’t exactly tried to hide them. During one court hearing, the former president’s lawyer told a judge that Trump could not be prosecuted even if he had ordered “SEAL Team 6 to assassinate a political rival,” unless Trump were also impeached and convicted by the Senate.”
…
“Yet Trump has now, with Wednesday’s ruling, leveraged this ridiculous legal argument to delay his DC trial for at least four and a half months, and the delay will likely extend much longer because the Court will need time to produce an opinion. The Court will hear oral arguments in late April.
Simply put, Wednesday’s order is a disaster for anyone hoping that Trump may face trial before the November election. And, because the nominal reason for this order is to give the justices more time to decide if the president is completely above the law, this decision raises serious doubts about whether this Court can be trusted to oversee Trump-related cases in a nonpartisan manner.”
“In the less than three years since President Joe Biden took office, the Supreme Court has effectively seized control over federal housing policy, decided which workers must be vaccinated against Covid-19, stripped the EPA of much of its power to fight climate change, and rewritten a federal law permitting the secretary of education to modify or forgive student loans.
In each of these decisions, the Court relied on something known as the “major questions doctrine,” which allows the Court to effectively veto any action by a federal agency that five justices deem to be too economically significant or too politically controversial.
This major questions doctrine, at least as it is understood by the Court’s current majority, emerged almost from thin air in the past several years. And it has been wielded almost exclusively by Republican-appointed justices to invalidate policies created by a Democratic administration. This doctrine is mentioned nowhere in the Constitution. Nor is it mentioned in any federal statute. It appears to have been completely made up by justices who want to wield outsize control over federal policy.
And the implications of this doctrine are breathtaking. In practice, the major questions doctrine makes the Supreme Court the final word on any policy question that Congress has delegated to an executive branch agency — effectively giving the unelected justices the power to override both elected branches of the federal government.
Consider, for example, the Court’s recent decision in Biden v. Nebraska, which invalidated a Biden administration program that would have forgiven up to $20,000 in debt for millions of student loan borrowers. The Court did so despite a federal law known as the Heroes Act, which permits the secretary of education to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs … as the Secretary deems necessary in connection with a war or other military operation or national emergency.”
So Congress explicitly granted the executive branch the power to alter or forgive student loan obligations during a national crisis like the Covid-19 pandemic. But six justices, the ones appointed by Republican presidents, decided that they knew better than both Congress and the executive.
The premise of the major questions doctrine is that courts should cast an unusually skeptical eye on federal agencies that push out ambitious new policies. As the Court said in a 2014 opinion, “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”
In practice, however, this doctrine functions more as a freewheeling judicial veto than as a principled check on agencies. The Heroes Act, after all, is crystal clear in giving Education Secretary Miguel Cardona — and not the Supreme Court — final say over which loans are forgiven during a national emergency.”
“Less than a year into Donald Trump’s presidency, top homeland security officials were so alarmed about escalating tensions with North Korea that they held multiple meetings to prepare for a nuclear attack on American soil, according to a forthcoming book by Miles Taylor, who was a top official in the department at the time.
In an excerpt of the book Blowback: A Warning to Save Democracy from the Next Trump that was shared with POLITICO, Taylor describes acute concerns in the Trump administration in 2017 after North Korean missile tests — including one while then-Japanese Prime Minister Shinzo Abe visited Trump at Mar-a-Lago. Trump responded to the missile tests with increasingly bellicose rhetoric.
“In the national security world, anything having to do with nuclear weapons is handled with extreme sensitivity — well planned, carefully scripted — yet we didn’t know what Trump might say at any given moment,” writes Taylor, who was intelligence and counter-threats counselor to the secretary of homeland security at the time. “One day, he threatened North Korea ‘with fire, fury and frankly power the likes of which this world has never seen before.’ He almost seemed to welcome a nuclear conflict, which terrified us.”
Taylor said then-Defense Secretary James Mattis cornered him one day after a Situation Room meeting.
“‘You all need to prepare like we’re going to war,’ he warned. Mattis was serious. DHS should assume the homeland was in mortal danger.”
The Department of Homeland Security took a step it had never taken before, according to Taylor, who is best known for writing an anonymous op-ed in The New York Times in 2018 describing a “quiet resistance” in the Trump administration “of people choosing to put country first.”
“We convened every top leader in DHS to discuss the brewing crisis,” he writes in the new book, which is set for release on July 18. “Experts walked through various scenarios of a nuclear strike on the U.S. homeland, dusted off response plans, and outlined best-case scenarios which nevertheless sounded horrifically grim. I cannot provide the details, but I walked out of those meetings genuinely worried about the safety of the country. In my view, the department was unprepared for the type of nuclear conflict Trump might foment.””
“former President Donald Trump announced that he would seek a second nonconsecutive term as president. While it’s too early to predict Trump’s chances of going all the way, the former president is the current favorite to win the Republican primary again. But nothing is assured.
First, Trump remains popular and influential among Republican voters. According to Civiqs, 80 percent of registered Republican voters have a favorable view of the former president, and only 11 percent have an unfavorable view. Admittedly, he is a little less popular than on Election Day 2020 when 91 percent viewed him favorably. But the decline has been gradual.”
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“Republican voters also demonstrated their loyalty to Trump — or at least his vision for the party — when they nominated 82 percent of the nonincumbents he endorsed in contested Republican primaries for Senate, House and governor.
Granted, that isn’t as impressive as it seems. Several times, Trump endorsed candidates who were already well on their way to winning. And Trump’s endorsees did fail to win certain highly watched contests, like the primary for Georgia governor. But just as often, Trump’s endorsement seemed to give a meaningful polling boost to its recipient. For example, Ohio Senate candidate and author J.D. Vance went from trailing in the polls before Trump’s endorsement to leading in almost every survey afterward.
Trump also leads early polling of the Republican primary by a substantial margin. In most national surveys, he registers in the high 40s or low 50s, 20-30 points ahead of his closest competitor, Florida Gov. Ron DeSantis. (Though DeSantis is polling higher than he did earlier in the year.)”
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“Finally, Trump leads in polls of early primary states, albeit generally by smaller margins. A poll of Iowa conducted by a pro-DeSantis group over the summer showed Trump leading DeSantis 38 percent to 17 percent. In August, a poll of New Hampshire conducted by Saint Anselm College put Trump up 50 percent to 29 percent. And most recently, Susquehanna Polling & Research found Trump at 41 percent and DeSantis at 34 percent in Nevada in late October.1”
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“we’re still more than a year away from anyone casting their votes, so those numbers could change. But an analysis by my colleague Geoffrey Skelley in 2019 found that national primary polls in the first half of the year before the election are pretty predictive of who will win the nomination. Historically, from 1972 to 2016, candidates with high name recognition who polled in the 40s and 50s nationally won the nomination more than 75 percent of the time.”