Then Yesterday we heard Trump v. United States – the case regarding whether the President will be protected from Jack Smith’s indictments due to Presidential Immunity and it seems rather clear that he will. The only remaining question is whether the case is first remanded and then returns to the Supreme Court or whether the Court saves time and eliminates uncertainty by making the obvious decision this June.
To understand how we can be so optimistic, we've extracted key parts of the transcript that show how the conservative Justices are all on the same page as President Trump's attorney.
The transcript to the Presidential Immunity Case can be found here. The hearing discussed complex Constitutional law issues and the understanding of presidential immunity going back to the founding fathers. It was deeply partisan with the democrat appointed Justices rather clearly against immunity – they would rather see the county destroyed than see the return of President Trump. However, as opposed to the thoughtless desperation of liberal justices, the Republican appointed justices were building a clear understanding through their discussion with the President’s attorney John Sauer – and this included Chief Justice Roberts, Justice Kavanaugh and Justice Barrett.
In one key discussion, Justice Kavanaugh reflected his agreement with Sauer that President Trump cannot be charged for any of the official acts under the statutes Jack Smith indicted him for because there is no clear statement that the President can be subject to the particular statutes:
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JUSTICE KAVANAUGH: Just to follow up on the OLC opinions question, as you read them and I think I read them, they articulate a clear statement rule as do this Court's cases for covering official acts. And your point, I think, but I just want to underscore this, is that none of the statutes alleged here or cited here have a clear statement covering the president, therefore, meaning that the president can't be charged for any official acts under this --under these statutes.
MR. SAUER: That's absolutely correct. They're extended way beyond. I mean, this is –
JUSTICE KAVANAUGH: Now that's separate from the question of what's official versus what's personal. But, for that bucket that is official, there's no clear statement, period?
MR. SAUER: That's right. And as to purely private conduct, we don't think the clear statement rule would be invoked. But, as to official acts, these statutes, the ones charged in the indictment, are just way far afield from purporting to criminalize in clear terms the president's official acts.
JUSTICE KAVANAUGH: And then your -- just to clarify this, the --the president's not above the law, the president's not a king, the Founders thought that. I think your point in response to that is the president is subject to prosecution for all personal acts, just like every other American for personal acts. The question is acts taken in an official capacity.
MR. SAUER: That's correct. And even those, of course, if there was impeachment and conviction, could be prosecuted on our view. And we'd emphasize the whole series of structural checks in addition to that which deter those kind --and have successfully deterred presidential misfeasance for 234 years.
JUSTICE KAVANAUGH: Then, on the source of immunity, it's not explicit in the Constitution, but also executive privilege is not explicit in the Constitution, yet in United States versus Nixon, the Court unanimously said that the Article II executive power in the Constitution encompassed executive privilege. And the same principle presumably would apply to executive immunity being encompassed within that executive power as historically understood.
MR. SAUER: That's absolutely correct. And there's a very telling passage in Free Enterprise Fund where this Court talked about how there's a letter from James Madison to Thomas Jefferson at the time of the founding where Madison said, hey, as to the removal power, they did not expressly take this away, so the 1789 Congress understood that it was left in place.
So, if the original understanding of the Executive Vesting Clause is broad enough to encompass that, it would have to be expressly taken away, which is the opposite of the presumption that they're advancing here.
JUSTICE KAVANAUGH: And then, lastly, I think you've acknowledged in response to others' questions that some of the acts in the indictment are private and your view is that some are official. Is it your position then that that analysis of which is which should be undertaken in the first instance by the D.C. Circuit or the district court?
MR. SAUER: Most likely the district court under the logic of Anderson.
JUSTICE KAVANAUGH: Thank you.
As we see above, Kavanaugh is perfectly in step with Mr. Sauer – he will protect the President’s immunity. Next, we go to Justice Barrett’s conversation with Mr. Sauer where it is made rather clear that impeachment and conviction for a given act must precede any potential criminal prosecution of that act.
When Barrett asked about conduct discovered after the President left office, where impeachment is no longer available, Sauer explained that under-enforcement was an accepted risk to preserve liberty. In other words, similar to a statute of limitations, if the President gets away with something such that it is discovered later when he retired, he cannot then be impeached and convicted in the Senate; and therefore his immunities are fully intact.
The logic flow of the discussion was clear – the defense by Sauer was impeccable, debate was tight and matters concluded without an air of residual disagreement. It appeared more that Barrett was having Sauer lay out the logic for the record:
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JUSTICE BARRETT: So, Mr. Sauer, you've argued that the Impeachment Clause suggests or requires impeachment to be a gateway to criminal prosecution, right?
MR. SAUER: Yes. I think that's the plain meaning of that second phrase in the clause.
JUSTICE BARRETT: Okay. So there are many other people who are subject to impeachment, including the nine sitting on this bench, and I don't think anyone has ever suggested that impeachment would have to be the gateway to criminal prosecution for any of the many other officers subject to impeachment. So why is the president different when the Impeachment Clause doesn't say so?
MR. SAUER: Someone very important has made the opposite suggestion as to the president himself, which is Solicitor General Bork, which is reaffirmed in the [Office of Legal Counsel of the US Department of Justice] opinions on this, where the --where Solicitor General Bork, in 1973, as to the issue of the vice president, reviewed historical materials, and he said the sequence is mandatory only as to the president. That is DOJ's view of the original understanding of the Impeachment Judgment Clause, which is exactly our position. The sequence is mandatory only as to the president.
Keep in mind that the criminal prosecution of a president -- president prior to impeachment contradicts, in our view, the plain language of the Constitution but also hundreds of years of history and what DOJ admits is the Framers' intent. And so we say that that practice, whatever its validity, should not be extended to this novel context, where it clashes with the constitutional structure.
JUSTICE BARRETT: What if the criminal conduct isn't discovered until after the president is out of office, so there was no opportunity for impeachment?
MR. SAUER: We say the Framers assumed the risk that --of under-enforcement by adopting these very structural checks. As Justice Scalia said in Morrison against Olson, the separation of powers prevents us from righting every wrong, but it does so that we do not lose liberty.
JUSTICE BARRETT: Okay. And the Special Counsel makes a point that I think is a pretty compelling one. You admit that if the president were successfully impeached that he could be criminally prosecuted after impeachment, right?
MR. SAUER: Assuming the prosecution was for the same conduct of which he was convicted, not impeached. He must be convicted. That word "conviction" is right there in the clause.
JUSTICE BARRETT: Okay. Okay. Granted. But you also say that these criminal statutes, unless they explicitly mention the president, don't apply to him. So how can you say that he would be subject to prosecution after impeachment while at the same time saying that he's exempt from these criminal statutes?
MR. SAUER: Well, there are statutes, as they concede, where a president --Congress has purported to do so.
JUSTICE BARRETT: A few. Two or three.
MR. SAUER: They haven't done a comprehensive review. I think it looks like all they did was text search for "president" in 18 U.S. Code. Again, under Franklin, that's a very telling indication that the word "president" is not in the statute isn't necessarily a --a --a magic word requirement, so to speak. But more fundamentally than that -- more fundamentally than that, they concede there are statutes that exist.
In addition to that, much impeachment could occur as a result of private conduct. So the Impeachment Judgment Clause does do significant work by authorizing the subsequent prosecution of a president there because of what the Framers, if you look at what they’re discussing in the thing, is --or in the Constitutional Convention, is principally concerns about private conduct, which, of course, we concede are not immune.
JUSTICE BARRETT: Okay. So just to pick up Justice Kagan's example of a president who orders a coup, let's imagine that he is impeached and convicted for ordering that coup. And let's just accept for the sake of argument your position that that was official conduct. You're saying that he couldn't be prosecuted for that, even after a conviction and impeachment proceeding, if there was not a statute that expressly referenced the president and made it criminal for the president?
MR. SAUER: There would have to be a --a statute that made a clear statement that Congress purported to regulate the president's conduct.
JUSTICE BARRETT: Okay. Thank you.
Next, on the matter of whether the President’s conduct at issue involved private acts or official acts, the interesting and again largely unchallenged determination is that given the President’s immunity for official acts, evidence relating to official conduct would be expunged, complicating or making impossible the prosecution of private acts that were related to the official acts.
Sauer goes on to explain that in the current case virtually all the conduct are official acts and that they are tied together with an allegation that the acts were done for private goals.
Notice in the language from the transcript below that Chief Justice Roberts is leading Sauer with a reference to a one legged stool, something I doubt Roberts innovated at that moment. It is clear Roberts is aligned with Sauer on this most critical aspect of the case.
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CHIEF JUSTICE ROBERTS: And what is the consequence in terms of going forward with your acknowledgment that those are private acts as opposed to official acts?
MR. SAUER: If you look at the --if you look at the --the indictment here, there's a bunch of acts that we think are just clearly official. There may be allegations that mostly relate to what the government has described here as private aim or private end. And the Court should remand or --or address itself but remand for a Brewster-like determination, which is what's official and what's private. The official stuff has to be expunged completely from the indictment before the case can go forward, and there has to be a determination at least on remand of what's official --a two-stage determination of what's official and what's private.
CHIEF JUSTICE ROBERTS: Well, if you expunge the official part from the indictment, how do you --I mean, that's like a --a --a one-legged stool, right? I mean, giving somebody money isn't bribery unless you get something in exchange, and if what you get in exchange is to become the ambassador to a particular country, that is official, the appointment. It's within the president's prerogative. The unofficial part is I'm going to get a million dollars for it. So, if you say you have to expunge the official part, how does that go forward?
MR. SAUER: In this particular indictment, where we say virtually all the overt conduct is official, we don't believe it would be able to go forward. I mean, there could be a case where it would, but if you look at --even the government's brief in this case divides up the indictment into things that, other than the electors allegations, don't really --are -- they haven't disputed that they are official acts. But what they do is say, well, we tie it all together by characterizing it as done, and these are the allegations that the Court just referred to, by an improper private aim or private end. Again, that's their words. And that just runs loggerheads, you know, dead-set against this Court's case law saying you don't look at with immunity determinations the --the --the motive – improper motivation or purpose.
Then, to put the nail in the coffin of Jack Smith, Alito makes clear that expungement includes precluding that evidence from trial:
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CHIEF JUSTICE ROBERTS: Justice Alito?
JUSTICE ALITO: When you say that the official acts should be expunged from the indictment, that in itself would not achieve very much unless evidence of those official acts were precluded at trial. So is that what you're saying, that the prosecution should not be permitted at trial to prove the official acts as part of the conspiracies that are alleged?
MR. SAUER: Absolutely. And we think that's just the clear implications of Brewster and Johnson and their discussion of this in a very analogous context.
JUSTICE ALITO: Thank you
In this same discussion, Justice Sotomayor attempts to argue that expungement need not occur but that an instruction to the jury could provide that they understand the official acts cannot be prosecuted. Sauer references the Chief Justice’s comment on the one legged stool and then explains this is the implication of official immunity.
CHIEF JUSTICE ROBERTS: Justice Sotomayor?
JUSTICE SOTOMAYOR: I'm a little bit confused by that. If you have a scheme to defraud or a scheme to accept bribery, there's evidence from which you can infer that scheme, and one of it is that the appointment actually happened. It's an official act. You wouldn't expunge that as evidence. You would instruct the jury that there's no liability for the actual appointment, that the liability is for accepting the bribe. Similarly here, I don't think the indictment is charging that the obstruction occurred solely because of conversations with the Justice Department. They're saying you look at all of the private acts and you look in the context of some of the public acts and you can infer the intent, the private intent, from them. So I'm not sure that I understand why your problems couldn't be taken care of at trial with an instruction if we believe --if the Court were to find --I'm not even sure how they could --but if it were to find that some public acts could not be the basis of criminal liability.
MR. SAUER: I think the best thing I can say to that is --and I think this ties into the Chief Justice's question about a one-legged stool. Brewster and Johnson and subsequent cases like Helstoski versus Meanor essentially say that, that this is a one-legged stool problem. It will be difficult for some of these prosecutions to proceed. And that is the implications of official immunity, which is dictated in the Constitution here by the Executive Vesting Clause.
From the above excerpts it appears that Justices Kavanaugh and Barrett as well as Chief Justice Roberts will protect presidential immunity and Sotomayor will not.
Note, we did not include the debate between the Justices and the government's attorney, Mr. Dreeben, because he had a weak mind and is not worth reading. As confirmation of his poor showing, when Mr. Sauer was offered his right to rebuttal, he turned down that opportunity - clearly indicating his calculation that Mr. Dreeben failed to make a persuasive case and did not threaten any of his key arguments:
CHIEF JUSTICE ROBERTS: Thank you, counsel. Rebuttal, Mr. Sauer?
MR. SAUER: I have nothing further, Your Honor.
This hearing went better than expected and we can confidently see an end to the legal troubles of the President when the Supreme Court issues decisions this June.
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