Can Justice Amy Coney Barrett Rescue This?

Yesterday’s SCOTUS oral argument was a disheartening and scary glimpse into an autocratic future. But there still might be a narrow path forward to trial before the election.

Justice Amy Coney Barrett, photo courtesy of NPR

By now you’ve probably heard about yesterday’s head-exploding oral argument before SCOTUS. 

Legal experts were appalled by what transpired before the Supreme Court over Trump’s claims of “absolute presidential immunity.” Most observers, including me, had expected the Court to toss Trump’s arguments rather summarily. After all, if you give the White House unchecked powers through immunity from criminal prosecution, you’ve set up a tyrant, not a president.

While it still isn’t likely that a majority of the justices will give Trump all he wanted, i.e., absolute presidential immunity for all his official actions, it appeared that the reactionaries on the Court were prepared to cut him a very big break.

The male justices were focused on the question of how much immunity from criminal prosecution the ex-president ought to have for his official actions, as if it were already a given that he ought to have at least some. This could result in a huge expansion of presidential powers and their inevitable abuse.

The liberal female justices were appalled, especially when Trump’s lawyer John Sauer reconfirmed that, in the Petitioner’s view, any “official” acts by the president were entitled to immunity, including ordering the assassination of a political rival or staging a coup.

In the center of this was Justice Amy Coney Barrett, who unexpectedly suggested a path through this mess. Unlike her more extreme male counterparts, Justice Barrett was correctly focused on the facts and issues presented by this case, and whether the trial could move along expeditiously by focusing on the private, non-official criminal acts undertaken by Trump, leaving any “official” acts out as alleged offenses in and of themselves.

In today’s piece, I’ll review the bad news first, and really, there’s no sugarcoating this. The reactionaries appear prepared to jettison our democracy by severely limiting the ways presidents can be later charged for their criminal behavior, so long as it was done within the president’s “official” powers. Critically, and for purposes of this case, such a ruling likely will result in a delay of Trump’s D.C. trial past the November election as the district and appellate courts grapple with which aspects of Trump’s behavior were “official” and subject to whatever new immunity rule the Court may announce.

I want to offer a reason, however, to hope. A close examination of what was said, and not said, during oral argument leaves open the possibility that whatever presidential immunity rule the Supreme Court comes up with could still allow a remand for trial rather than a further hearing on the question and yet another trip up the appellate courts with endless delay. This is admittedly a narrow and tricky path forward and would require the Chief Justice to sign on. But after reading my analysis, perhaps you might agree that it is still one workable path that allows for the trial to get going.

As I remarked in my piece yesterday, so much of our future, and indeed even the plight of the world, has depended on just one or a few traditional conservatives still managing to do the right, principled thing. It might happen again here, who knows?

Stick to the question at hand

Law school professors drill it into their students. One of the main limitations on our courts is that they issue rulings no broader than necessary to settle the matter before them. This is to prevent judges from engaging in policy making as if they were members of a legislative rather than a judicial body. Conservative judicial principles are supposed to demand such limitations and a strict adherence to them.

The D.C. Court of Appeals understood the assignment. Its decision was rendered based upon the specific question presented by Trump’s appeal: Does the president have absolute, blanket immunity for all actions taken while in office? That panel, with both Republican and Democratic appointees, unanimously and emphatically said no. The president does not have such immunity, not even for “official” acts committed under the pretense of serving as president, including his attempt to subvert the Justice Department in furtherance of his illegal goals.

That is consistent with the text of the Constitution, which nowhere mentions immunity from criminal prosecution for the Executive. To the contrary, it expressly allows for such prosecution in the Impeachment Judgment Clause, which says after conviction upon impeachment that 

“the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

So much for the conservatives’ strict textualist principles. Those went out the door when the shoe was on the foot of their party’s ex-president.

The question of whether Trump enjoys absolute presidential immunity should have been the only question the Court took up, because it was the only one Trump raised on appeal. Again, this is a normal limitation courts impose in order to avoid speculative or “academic” opinions. Once the Court of Appeal ruled that he did not, Trump could have still raised specific instances during trial where his role as president provided some measure of defense. 

Instead, the Court posed another question that neither of the parties had presented, asking “[w]hether 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.”

In plainer English, the justices wanted to know whether there were any “official acts” that actually were immune from prosecution, calling the question now before it was even raised by Trump.

This was a big red flag. At least four of the justices, by asking this question, were ready to parse the actions of an ex-president into “official” and “non-official” (i.e., private) actions, and then to look within the “official” acts to determine whether some qualified for immunity under some kind of new, as-yet-unannounced rule.

Such a new rule could wind up delaying the case considerably. That’s because the Court could then send the question back to Judge Chutkan to analyze which of Trump’s official actions were immune and which were not under the new rule. That would require a full blown hearing, a lengthy written opinion, a trip up to the Court of Appeals, and possible review by the Supreme Court again. 

No way that happens before November.

Stick to the facts of the case

Another basic legal principle is that courts should use the facts of any case as the boundaries for whatever they are deciding. While courts, and especially the Supreme Court, do sometimes pose hypotheticals to demonstrate the slippery slope that might ensue were a given rule adopted, conservative judicial principles require that courts limit their opinions to the facts presented, to the extent possible.

But that’s not what we witnessed in oral argument yesterday. Several of the male justices seemed at pains to avoid any discussion of Trump and his alleged criminality. Instead they posited some hypothetical, future president who might be constrained by their ruling today.

“I’m not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives,” said Justice Gorsuch, saying he wanted to craft a “rule for the ages.”

“I'm not focused on the here and now of this case,” added Justice Kavanaugh. “I’m very concerned about the future.”

“I want to talk about this in the abstract,” quipped Justice Alito. 

(As for Justice Thomas, well, we all know how he would vote, and that he should have recused himself long ago.)

Justice Ketanji Brown Jackson picked up on this unusual departure from the norm. In her understated but devastating way, she reminded the Court that it should stay in its constitutional lane and stick with the case as presented, not speculate about “all these abstract questions.”

“[W]e've a lot of talk about drawing the lines,” she said to the government’s lawyer, Michael Dreeben, referring to the line between official and unofficial acts. “[I]f we were going to do this kind of analysis, try to figure out what the line is, we should probably wait for a vehicle that actually presents it in a way that allows us to test the different sides of the standard that we'd be creating, right?”

For Justice Alito, his “abstract” discussion appeared to buy squarely into the discredited idea that the prosecution of Trump is some kind of political payback led by President Biden, and not a sincere effort to hold Trump accountable for attempting to overturn the election. Alito asked,

[I]f an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?

Okay, so hang on a sec. Trump most definitely did not go off to a “peaceful retirement.” He incited a riot at the Capitol and conspired to overturn a democratic election. And he’s running for re-election now. And it was not Biden who prosecuted Trump as a “bitter political opponent,” it was the Justice Department, acting independently and eventually appointing a Special Counsel. Alito is painting a fantasy wholly disconnected to what actually happened.

Worse still, he appears to be suggesting that if presidents like Trump fear prosecution after leaving office, they will be more likely to try and stay in office illegally. This is the ultimate “Look what you made me do!” argument.

Only in very rare instances

So what kind of rule around immunity are the reactionaries looking to craft?

Justice Kavanaugh, who is no fan of the Special Counsel law and is big on expanding presidential authority (except of course when it comes to things like student loan forgiveness or vaccine mandates), appeared fixated on limiting criminal prosecutions of ex-presidents to instances where Congress has officially listed the president as someone specifically subject to the law. Justice Gorsuch did a pile on with this, citing a law prohibiting the use of federal property to solicit donations that specifically mentions the President.

See? Congress can list the President this if it chooses to! But it doesn’t follow that not including the President somehow creates an exemption. This is especially true once the “President” is no longer in office and becomes just a regular citizen.

Moreover, it is a rare subset of laws that include the President specifically, and Kavanaugh and Gorsuch know it. This legal sleight of hand also reveals their underlying thinking: Somehow laws of general application should not apply to the President unless they specifically say so. In other words, the President, and the President alone, is above the law.

If the reactionaries get their way, the new “rule” won’t wind up being much of a limitation at all upon presidential power, and it could wind up knocking out several aspects of the case against Trump. For example, was it an “official” act to try and co-opt the Justice Department into a sham investigation of non-existent voter fraud? Was Trump’s call to Brad Raffensperger where he wanted to “find” another 11,780 votes an “official” act because he was president when he did it, and he was just “officially” trying to make sure there was election integrity down in Georgia? Was it an “official” act when he pressured Mike Pence to violate his constitutional duties by throwing out the electoral slates of seven battleground states?

A rule crafted by the reactionaries would likely try to sweep all of this under the rug and immunize it from criminal prosecution.

The Barrett option

Professor Steve Vladeck and legal commentator Ryan Goodman of Just Security highlighted a narrow path through this mess, raised somewhat out of the blue by Justice Amy Coney Barrett. The exchange seemed to trap Trump’s lawyer Sauer into a point made in the briefs by the Special Counsel, and it’s worth reviewing in full:

Barrett: So you concede that “private acts” don’t get immunity.

Sauer: We do.

Barrett: Okay. So, in the Special Counsel’s brief, on pages 46 and 47, he urges us, even if we assume that there’s—even if we were to decide or assume that there was some sort of immunity for official acts, that there was sufficient private acts in the indictment for the trial to go, for the case to go back and the trial to begin immediately. And I want to know if you agree or disagree about the characterization of these acts as private. (Emphasis added.)

”Petitioner turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results.” Private?

Sauer: As alleged, I think we dispute the allegation—

Barrett: Of course.

Sauer: But that sounds private to me.

Barrett: Sounds private. “Petitioner conspired with another private attorney who caused the filing in court of a verification signed by Petitioner that contained false allegations to support a challenge.” Private?

Sauer: That also sounds private.

Barrett: “Three private actors, two attorneys including those mentioned above and a political consultant, helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding, and Petitioner and a co-conspirator attorney directed that effort.”

Sauer: You read it quickly, I believe that’s private, I don’t want to—

Barrett: So those acts you would not dispute. Those are private, and you wouldn’t raise a claim that they were official.

Sauer then listed a number of things that they would assert were official, but he did not dispute the characterization of the above acts as private.

You can hear the exchange here:

Why does this matter? Barrett noted later, in questioning the government’s lawyer Michael Dreeben, that the normal thing for a Court to do would be to announce a rule around “official acts” and remand (that is, send back) the case for further hearings around that rule. But she wanted to know whether the private conduct that she earlier walked Sauer through would be enough to proceed to trial with, by dropping the “official conduct” allegations.

Dreeban agreed that there was a way to do this. They would allege the violations of the law based on private conduct only, with the “official conduct’ used as evidence, for example, of the ex-president’s intent. He agreed that the government would accept a jury instruction that official acts could not be used as a basis for culpability, but that they could be considered as evidence of the President’s guilty state of mind.

You can listen to that exchange here.

If Justice Barrett presses this point, an opinion written by her and joined by the liberal justices and, we hope, by the Chief Justice might get around the problem of further delay. It could find that, notwithstanding the new rule, the government can proceed on the alleged private conduct allegations alone, using the official actions as mere evidence of his Trump’s intent and not as factual bases for a conviction.

This admittedly is a difficult needle to thread, and Barrett, were she ultimately inclined to pursue this thinking, would need Roberts on board. The Chief Justice held his cards fairly close during oral argument, indicating at one point that he believed that some kind of presidential immunity for some official acts was needed, but not venturing which ones or how extensive. At times he seemed skeptical of a workable rule. He also appeared to have assumed that the normal course of business—announcing a new rule and having the court then apply it to this case—would be followed here. 

Justice Barrett would need to lobby Roberts to adopt her thinking here, which appears to be the only way the government could get its trial back on track this year once the Supreme Court rules. I offer this not necessarily because I think it is the likeliest of outcomes. I don’t pretend to know how these two Court members will act given time to reflect on the arguments, and the reactionaries do form a powerful bloc of four already. But it does give me some hope that all is not lost here. And that is no small thing, because we have seen people on the right rise to surprising principles when pressed.

As author Ian Caldwell writes, hope is the thing “whispered from Pandora's box only after all the other plagues and sorrows had escaped.” It is “the best and last of all things.” The Amy Coney Barrett solution, provided in acknowledgement of the need for speedier justice, provides just a bit of hope that she will do the right thing and that, somehow, Roberts will join her. 

Crazier things have happened. Yesterday’s oral argument was very difficult to endure, but as we saw with the debt ceiling, the budget, and aid to Ukraine, we should never admit defeat when one clear path still remains, however narrow.