The Probable Route for Supreme Court Review in Trump Indictment Concerning Presidential Immunity

Thread via Leslie McAdoo Gordon

I’ve been analyzing the Indictment for all issues & doing research & this is 1 of the questions I’ve been focusing on & I have finally settled on an answer: I think there is 1 issue DJT can raise on an interlocutory appeal based on a pretrial ruling:

Presidential immunity.

No other issue that I see will satisfy the requirements for an interlocutory appeal. If he tries them, they will get tossed out.

To raise Presidential immunity he just needs to file a motion to dismiss under Rule 12. He does need to get a final ruling on it from the trial judge.

Typically the court will enter a scheduling order setting forth a date for the fling of pretrial motions and there may or may not be a hearing on the motions. It varies by judge. Once the judge issues the order on the motion, an appeal can be filed to the DC Circuit.

The DC Circuit will then decide the issue (with de novo review, meaning no deference to the trial court) & issue an order from which DJT could seek review in the Supreme Court (called a petition for certiorari). They may or may not agree to wait for the Circuit to rule.

Then, regardless of what the district court and the Circuit have decided, the Supreme Court will make it’s own decision, again with no deference to the lower courts. This is because immunity is a legal issue for the courts, not a fact issue.

The existing law, as explained by the WSJ oped authors last week, is the President has “absolute immunity” from civil damages suits for his official acts while President. That ruling hasn’t been extended yet to criminal charges. The case is Nixon v. Fitzgerald, 457 US 731 (1982).

The Supreme Court said in Fitzgerald that due to the unique status of the POTUS & the many functions that make up his responsibilities, a broad scope of immunity applies to him & that even acts at the “outside perimeter” of his functions enjoy immunity.

They did not get into detail as to where exactly that perimeter is, but the case makes it pretty clear that they mean a vast scope. The case was 5 to 4. Powell, Burger, Rehnquist, Stevens, O’Connor vs. White, Brennan, Marshall, Blackmun.

The dissent argues that the majority opinions reading would make a POTUS immune from criminal prosecution also, which conflicts with the Constitution’s statement that an impeached POTUS can be prosecuted in Article II, § 3, clause 7.

White says the majority cloaked the “office” with immunity & the dissent wanted to cloak “functions” with immunity (no one was arguing the POTUS didn’t have some immunity – the question is what kind/how much, etc.).

I’m not sure White was right. I read the majority to say the POTUS has immunity for acts he undertakes that are within & at the furthest extent of the powers of the Presidency, regardless of whether people like them or not, & what’s not immune is what’s outside that perimeter.

An extreme example of the latter would be something like a murder. Likely everyone will agree the POTUS can’t shoot the Sec. of State dead & claim immunity. The office of the Presidency doesn’t have within it’s scope the personal elimination of rivals or annoying subordinates.

40 years on from the Nixon situation, I think it’s easier to see that both the majority and the dissent are kind of saying the same thing: things that are within the POTUS’ purview because they would be for any President (it goes with office) are things he can’t be sued for.

Until DJT, the courts have not had to grapple with this issue much, but in the last few years, the District Court in DC has had some cases dealing with this issue. Judges Mehta and Sullivan have both ruled that DJT did not have absolute immunity for certain civil suits.

Those decisions are wrong I think; they are not affording DJT the immunity described in Fitzgerald. They are doing so by framing the issue as one of DJT’s intent or presupposing his acts are unlawful.

The test, however, is whether a POTUS’s functions cover the conduct.

I believe the status of those is that, so far, the DC Circuit has had briefing and argument in some of those cases, but has not yet rendered any opinions. Those cases may play a role in whether the Circuit ends up participating in an appeal in the criminal case on this issue.

Timingwise, it is likely that the Circuit will rule on them before DJT’s lawyers can get a decision from the District Court in the criminal case. Thus, DJT may already have cert petitions in the Supreme Court on the issue of immunity when it gets decided in the trial court.

At a minimum, the DC Circuit’s view of the scope of immunity will probably be clear from it’s civil decisions even if an interlocutory appeal is taken in the criminal case. So, it would be a logical step to skip over the Circuit to the Supremes & maybe even consolidate the cases.

The reason that will likely be possible, when no other argument will be able to do it, is that absolute immunity is the kind of “right not to be tried at all” right that the Supremes say is necessary for an interlocutory appeal on the criminal side.

And, unlike the judicial immunity case in the First Circuit recently, Presidential immunity is not based on common law, but arises from the Constitution. Indeed, in the Fitzgerald case, the Supreme’s said that the question of absolute immunity qualified on the civil side.

It will be new law, but I think they will also say a claim of absolute immunity qualifies for the stricter standard for interlocutory appeals on the criminal side, & as I’ve said here, they may not think it makes sense to waste time in the Circuit, esp. w/the election looming.

On the merits, as I’ve say about Mehta & Sullivan’s opinions, I think the correct answer is the acts in the Indictment are immune. They fall w/i the “outer perimeter” of POTUS’ functions. When you strip out irrelevant factors & frame it correctly, I don’t think it’s a close call.

So, I predict DJT’s lawyers will raise this issue, the District Court will rule against them, the Circuit may as well, but might not, & if the Circuit rules against him, the Supremes will take the case & find he is immune from prosecution for what’s alleged in the DC Indictment.

I could be wrong, of course, and maybe the Supremes won’t have the courage to go this route, but I actually think they probably will. It will be fascinating to watch at a minimum.

Hopefully, we will get the right result from the courts because, while this is about DJT, it is more fundamentally about us, the United States, the Constitution, & the rule of law. As you know, I have little faith in the courts now, but in this situation, they’re our one hope.