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Tuesday, July 02, 2024
The penumbra of Trump v. US
I don't have a lot to add to the discourse over presidential immunity from people who know more about this. So let me highlight some incidental points from reading it.
• The majority repeatedly suggests that "speaking to and on behalf of" the public and on matters of public concern is a non-core/official function. This might affect future applications of Lindke and when public officials can block the public from web and social-media sites. To act under color, an official must possess actual authority to speak on the government's behalf. I argued that Knight Foundation (holding that Trump and his aides acted under color in blocking readers from his Twitter feed) would come out differently, because the President lacks formal speaking authority about much of the stuff on social media. But this case suggests I may have been wrong about that--in part because the majority cites Lindke to support this broad presidential power to speak to the public. I wonder if that power to speak holds for the "chief executive" of other governments (e.g., the chairman of the county legislature). If so, Lindke may not be as narrow as I thought.
• It seems to me that Justices Barrett and Jackson take a similar approach to criminal law. Both reject the idea of of "immunity" in favor of a defense to prosecution under the statute. Jackson argues immunity lifts someone from the obligations of the law, as opposed to an individual defense to a prosecution under a particular statute. While agreeing there are limits on prosecuting a former president, she sees that immunity at the statutory level--does the particular statute reach official acts and would allowing prosecution pose a danger of intrusion on presidential authority and function. This sounds similar to a defense as Jackson defines one--it is a constitutional defense to the application of that statute to the president and his conduct.
• Barrett makes explicit what is implicit in the majority--a trial court decision allowing the prosecution to proceed is subject to immediate appeal. The Article II defense is separate from the merits of the criminal charge and making him wait to challenge the decision would undermine the executive authority and affect the President's decisions in office. This has two interesting consequences for the collateral order doctrine.
First, Midland Asphalt v. US says that collateral-order immunity in criminal cases applies to "explicit statutory or constitutional guarantees that trial trial will not occur;" that includes arguments over excessive bail, double jeopardy, and Speech-or-Debate immunity. Lower courts have applied Midland to deny immediate review of denial of a defense of judicial immunity in a criminal case--although that issue is immediately reviewable in a civil action--because no constitutional or statutory provision creates that immunity. The majority makes clear that presidential immunity is atextual, but Barrett does not attempt to connect her argument to Midland's seemingly off-hand dicta. Maybe that means Midland does not limit COD to explicit rights (as suggested in Sell v. US, allowing COD review of an order to involuntarily medicate a defendant to render him competent).
Second, if what we label presidential immunity is an as-applied constitutional defense, it seems to me that COD should apply to other as-applied constitutional defenses to prosecution, such as the First Amendment. It rests on the same idea--the argument that Congress cannot criminalize the alleged conduct (because of the First Amendment rather than Article II, but still) is separate from and collateral to the merits of the prosecution (whether the defendant violated the statute). I imagine it turns on unreviewability on appeal from final judgment, which considers the broad public policy and interests lost by delaying review. The individual importance of the defendant's First Amendment rights differs from the structural importance of presidential independence and authority.
• The majority pretty obviously believes that everything Trump is alleged to have done--speaking with cabinet officials, speaking with state officials, speaking to the public about the electoral process and how it violated federal law, speaking to the VP--is official conduct. That the President has no role to play in state selection of electors or in the electoral counting is of no matter, because everything that happens in the country on every level is a matter of presidential concern (because he may be asked about it) and thus within his official functions. Other than lying about having sex with an intern and maybe shooting someone himself on Fifth Avenue (as opposed to ordering Seal Team 6 to do it), I am not sure what the President does that is not official. Although it does not conclusively say so, the majority opinion places a thumb on the scale on remand or shows its hand when the case inevitably (if Trump loses the election) returns to SCOTUS.
• I continue to look for a good explanation for why this immunity, once recognized, should not include an evidentiary component. If Speech-or-Debate immunity prevents the prosecution in a bribery case from offering evidence of a legislative act (e.g., a floor speech or vote), it seems to me that this presidential immunity prevents the prosecution in a bribery case from offering evidence of an official presidential act (e.g., granting a pardon or firing his attorney general or urging a state official to do something). I am not arguing that either situation is normatively good or correct. But if both immunities exist (as Barrett believes), why should they have different scopes? Someone please help me with this.
Posted by Howard Wasserman on July 2, 2024 at 03:46 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink
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