Get your popcorn ready. 10:00 EDT.

Question presented:

Quote:

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WHETHER AND IF SO TO WHAT EXTENT DOES A FORMER PRESIDENT ENJOY PRESIDENTIAL IMMUNITY FROM CRIMINAL PROSECUTION FOR CONDUCT ALLEGED TO INVOLVE OFFICIAL ACTS DURING HIS TENURE IN OFFICE.

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https://www.supremecourt.gov/oral_arguments/live.aspx

John Sauer arguing for Trump

Michael Dreeben arguing for DoJ


Pre-argument WAG:

6-3, immunity does exist for some official acts, remand to district court to see if the allegations in this case fit into the scope

In reply to BMX Bandit Not being too up to speed on this, I'm assuming this is going to be a rather lengthy process?

In reply to Rockdoc sorry to give lawyer answer but "it depends"

if court remands to district court to take briefing on scope of the immunity, then its probably into the fall before that issue is resolved.

on the other hand, court could find that there is no immunity for the acts alleged in the indictment and make that ruling in a few weeks.

its really completely a guess as to what the timing will be.

In reply to BMX Bandit Thanks. I've learned not to guess what the SP will do.

In reply to BMX Bandit

Quote:

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6-3, immunity does exist for some official acts, remand to district court to see if the allegations in this case fit into the scope

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Agree. That's the most likely outcome. A win for Trump in the sense that it reverses the lower court opinions finding NO immunity, but when they lay down the guidelines for official immunity to apply, it probably won't be broad enough to cover all Trumps acts. However, watch the district court continue to overreach on remand.

In reply to BMX Bandit " John Sauer arguing for Trump

Michael Dreeben arguing for DoJ"

*pops knuckles

Trump only needs time to win. Then he can actually pardon himself, in theory.

Dreeben was on Team Mueller, made some court appearances in the Manafort cases, IIRC. He's mostly an appellate lawyer but the times I was reading transcripts of his courtroom appearances he was either unprepared for trial court practice or having an off day but he was not that impressive.

I'm exhausted from all the legal battles and need a little respite.

OP - just make it easy on me this go around and tell me whether or not to be happy when we get the outcome.

In reply to MiamiHopper

MiamiHopper said:

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Dreeben has argued over 100 cases in front of SCOTUS. Not sure how many other people have done that.

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More than a few. Ever heard of the Solicitor General's office?

In reply to aggiehawg He is one of eight people who have done it. Just looked it up.

missed the start, sorry.

sotomayor:

creating false documents, bribery, killling a rival, etc etc. how are those reasonable to believe immunity attaches?

sauer:

improper purposes does not matter because it would gut immunity. (not the best answer, but he is right generally)


jackson:

are you asking for just immunity for official acts, or for all acts? Thomas asker earlier, how do you decide whats official? What do you do when president uses trappings of office for personal gain?

sauer:

too intrusive for courts to look at a president's motives.

jackson:

you suggested lack of immunity would be something innovative, but isn't it that its the status quo that there is no absolute immunity? constitution says they can be prosecuted after they are impeached. so how is there no prosecution allowed?

sauer:

cites benjamin franklin at convention.

jackson:

then why was nixon pardoned if he could not be prosecuted?

sauer:

president can be prosecuted for private conduct.


gorsuch:

then isn't the question: how do you determine what is private and what is not? how about blasingame standard?

sauer:

that would be a good standard.

gorsuch:

that left open possiblity fora trial

sauer:

it can, and this court can send this back down for futher proceeding.

alito:

what if the rule was a former president cannot be prosecuted for official acts unless there is no plausible basis to conclude it was not for his personal gain, rather than for the office

sauer:

we like that rule better.

In reply to nortex97

nortex97 said:

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Update; KBJ and Sotomayor are still idiots, today.

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KBJ asked a great question. sauer had no good answer.

sotomayor:

i think justice alito is suggesting that even if its an official act there may not be immunity if its not plausibly within the realm of acting for the office.

alito:

yes, thats what I said.

sotomayor:

i don't see why the plausiblity standard makes sense in this case, can you explain

alito:

not plausbile that ordering seal team 6 to kill rivals would have immunity.

sotomayor:

so what is plausible about a president creating a fake slate of electors being okay?

sauer:

cites the Grant case.

sotomayor:

even if the president knows the slate of electors is fake and fraudulent, as alleged in the indictment?

sauer:

uhhh, I don't think thats clear. Let me talk about something else.

Sounds like it's not great for Team Trump so far, but never can tell.

kavanaugh:

where did DC circuit go wrong?

sauer:

they said no immunity for official acts at all.

Barrett:

you concede no immunity for private acts. do you agree with special counsel characterization as private these acts: (reads the acts)

sauer:

sounds private
sounds private
sounds kinda private

Barrett:

as characterized, those would not be subject to immunity.


Roberts:

having acknowleded that, how do we move forward:

sauer:

on the non-private acts, take those out of the indictment.



(he pretty much admitted this case isn't going away)

In reply to Im Gipper

Im Gipper said:

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Sounds like it's not great for Team Trump so far, but never can tell.

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legal press (widely pretty far left of center) will publish articles with headlines like "scotus skeptical of Trump appeal," etc. The smaller conservative legal group will say something like "seemed to go pretty well/ we shall see."

But I have no idea.

thomas:

in assessing the official acts, do you differentiate president acting as president and president acting as a candidate?

sauer:

we do, they aren't the same

thomas:

you challenging the appointment of Smith?

sauer:

not directly in this case, but are doing in Florida.


alito:

when you say take out official acts from indictment, that is not a big deal unless evidence isn't allowed at trial on those:

sauer:

yes, that is what I meant.


(alito threw him a life raft)

In reply to BMX Bandit

Quote:

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he pretty much admitted this case isn't going away)

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Wow!

Guess he wants to keep his credibility. He knows lots of this is not subject to immunity.

kagan:

doesn't your case go way beyond the OLC rule that sitting presidents aren't prosecuted while in office? they have never said presidents are immune after leaving office

sauer:

I don't remember what OLC says exactly about immunity, but the trend is not prosecute a president.

kagan:

selling nuclear secrets to an enemy get immunity? ordering military to stage a coup?

sauer:

no, but need impeachment first.

kagan:

framers didn't include immunity in the constitution.

sauer:

they kinda did through the impeachment clause

In reply to aggiehawg

aggiehawg said:

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Staging a coup? These hypotheticals are getting pretty far afield.

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any idea what the final result on this looks like?

Strange thought on this one: it seems like a case where oral argument is more of a show than noticeably helpful to the outcome.

gorsuch:

you don't contest that anyone acting on behalf of president, even if president immune, the underlings are not immune?

sauer:

correct, but not to stop a core executive function

kavanaugh:

who should first decide if its an official act or personal act?

sauer:

district court

barrett:

you say impeachment clause is a required gateway to criminal prosecution? What if its not discovered until he leave office?

sauer:

constitution just assumes the risk. nothing you can do about it.

In reply to ThunderCougarFalconBird

ThunderCougarFalconBird said:

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aggiehawg said:

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Staging a coup? These hypotheticals are getting pretty far afield.

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any idea what the final result on this looks like?

Strange thought on this one: it seems like a case where oral argument is more of a show than noticeably helpful to the outcome.

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It is hard to tell with these Swiftian hypotheticals. For the justices to go full bore A Modest Proposal about coups and murder and tying those to the alternate slate of electors has thrown me. Even ACB wnt down that road.

But I'm not liking Sauer's presentation here. He got himself in a poor position during arguments before the DC Circuit and he hasn't figured out how to finesse his wy out of it. And it was Judge Pan who first crafted the SEAL Team Six assassinating a political rival upon orders by a POTUS.

jackson:

theoretically, why is president not required to follow the law when performing an official act?

sauer:

I disagree with the characterizing, the president is required to follow the law, the question is "what are the consequences of not doing so." for president, consequence can't be going to jail.

Swiftian hypos are necessary because Team Trump argued absolute immunity. This lawyer seems to have backed off that knowing it we weak and no one was going to back it.