What to Listen for in Today's SCOTUS Argument on Trump's Claim of Immunity

Assuming that Donald Trump's goal is simply to delay his trial on federal charges of undermining democracy as long as possible, his claim that he has immunity for acts within the outer perimeter of his official duties as President and the further claim that his actions to overturn the result of the 2020 election fell within that perimeter have already succeeded. In granting certiorari and placing Trump's case on the plenary docket for argument rather than granting cert before judgment and summarily rejecting Trump's l'état-c'est-moi view months ago, the Court has given Trump a great gift.

To be sure, one can argue, as Professor Buchanan has argued on this blog (here, with links to earlier versions therein) that delay does not actually benefit Trump politically, but that argument goes to what Trump should want, not what he does want. In taking seriously Trump's immunity argument, SCOTUS has given him what he wanted when it could and should have given his frivolous argument the back of its hand. And yet, the fact that the case will be argued today tells us that at least four Justices voted to give it plenary consideration. That suggests at least a possibility that Trump could actually win on his absurd claim.

The least bad argument for the kind of immunity Trump seeks is functional and doctrinal. It builds on Nixon v. Fitzgerald--which held that a former President has "absolute Presidential immunity from damages liability for acts within the 'outer perimeter' of his official responsibility." Such immunity stems primarily from the concern that allowing lawsuits against a former President would chill the President from acting decisively in the national interest for fear of subsequent liability. Thus, in Nixon v. Fitzgerald the Court found that even the qualified immunity that protects most government officials does not suffice to protect the President--rooting absolute immunity in separation of powers. Trump's lawyers argue that just as the fear of civil liability should not be permitted to distract or dissuade a President from making tough judgments in the national interest, so, a fortiori, the President should not be chilled by the fear of criminal liability.

So far as it goes, that's not a bad argument, although even evaluated only in functional terms, the difference between civil and criminal liability is a double-edged sword. On one hand, criminal penalties are even more of a potential over-deterrent to bold Presidential action than is the prospect of civil liability. But on the other hand, as I told Politico, given the gravity of the offenses a President might (we might say did) commit, absolute immunity to criminal prosecution creates a serious under-deterrence problem. Moreover, there's another important distinction between civil and criminal cases: anybody among the millions of people affected by Presidential action could file a civil lawsuit, whereas the requirement of an indictment by a grand jury and the other protections of the criminal justice system substantially mitigate the risk of too-easy criminal indictment of a former President for a questionable judgment call.

In any event, there is a fundamental textual problem with Trump's functional argument. The impeachment clause expressly contemplates the prospect of criminal prosecution for what, of necessity, would be acts within the outer perimeter of the President's official duties. Yet, in what I have previously termed an "idiotic" argument, Trump's lawyers pretend that up is down by relying on the impeachment clause to say that impeachment and removal are prerequisites to criminal prosecution, even though its blindingly obvious meaning is simply that impeachment does not entail guilt within the criminal justice system, which must be pursued, if at all, separately.

I still regard that argument as the "most idiotic," but an amicus brief supporting Trump rivals it in its stupidity. Three of the lawyers on the amicus brief work for something called the America First Policy Institute (AFPI). (Its tremendous mission includes promoting "American greatness." Bigly.) The represented amici are three former generals, one of whom is this guy, who very strongly opposes Satan, so you might expect that his brief would be really good. If so, you'd be disappointed.

The AFPI/anti-Satan brief is a 13-page-long non sequitur that ostensibly addresses a question that was posed to Trump's lawyer during the oral argument in the D.C. Circuit by Judge Florence Pan: "Could a president order SEAL Team Six to assassinate a political rival?" The amicus brief says it doesn't take a position on whether Trump has the immunity he claims (which is plainly wrong, given that it says right on the cover that it is "supporting Petitioner"), and goes on to say that "a President cannot order the military to assassinate a political rival and have that order carried out."

That's a non sequitur because Judge Pan wasn't asking whether it is lawful for the President to order the assassination of a political rival. It obviously isn't. Nor was she asking whether military personnel would be obligated to carry out such an order. As the amicus brief states correctly, they would be obligated to disobey it. Even so, Judge Pan was asking what we lawyers (and other human beings) call a hypothetical question: Suppose the President gave such an unlawful order, and suppose that the order was carried out. What then? Would the President be immune from prosecution? By taking no position on that question, the amicus brief reveals that its authors either misunderstand the question entirely or are hoping that the Justices who read the brief are fools or knaves.

And of course, the amicus brief does take a position on the immunity question, not just in the caption, but in the structure of its argument. In addition to making the obvious and undisputed point that an order to assassinate a President's rival would be unlawful, the brief tries to reassure readers that it's not a problem if the President has immunity from prosecution because the illegal assassination order wouldn't be carried out, and even if it were carried out, the personnel who carried it out would themselves be subject to prosecution--which is a whole lot like saying it's not a problem if a mob boss cannot be prosecuted so long as the hitmen who do his bidding can be prosecuted. I could say more about the AFPI/anti-Satan brief but I've already engaged in overkill.

* * *

In listening to the oral argument this morning, I'll be most attentive to how seriously various Justices take Trump's very bad arguments. Do we hear any of them worry that allowing Trump to face criminal charges would invite criminal charges against all former Presidents--without acknowledging even tacitly that none of our previous Presidents (and, with one terrifying and potentially imminent exception) none of our likely future Presidents were malignantly narcissistic pathological liars who care not a whit for democratic norms or institutions? I know that at least four Justices must have thought Trump's immunity claim sufficiently weighty to warrant plenary consideration rather than summary rejection. The oral argument could give us clues as to why--and as to whether there is a fifth (or even a sixth) potential vote for the view that Donald Trump could shoot someone in broad daylight and not lose any support from his MAGA faithful or from Republican appointees to the Supreme Court.