John Sauer (Credit: Patrick Semansky/AP)
John Sauer, representing Trump, gives opening statement. Already answering questions posed by Chief Judge John Roberts.
Says indictment uses vague statutes (2 of 4 in this indictment relate to 1512(c)(2) to criminalize “core authority” of the presidency.
Sotomayor already arguing what Trump did was for “personal gain” unlike what Obama did–one example used by Trump’s team is could Obama be indicted for drone strikes that killed an American–bc Obama did it “to protect the country.”
“The president is entitled for personal gain to use the trappings of his office without facing criminal liability.” She mentions “creating false documents” as an example of committing a crime outside of scope of authority.
KBJ: Claims presidents since the beginning of time understood they could face criminal prosecution.
She then says the understanding stems from presidents being prosecuted “after impeachment.”
Which is exactly what Sauer/Trump argue. Whoops.
Gorsuch seems to suggest what is the most likely outcome. SCOTUS kicks this back to Chutkan to hold an evidentiary hearing to determine what elements of the 4-count indictment represent “official” acts v personal.
Sotomayor back to alternative electors. “What is plausible about the president assisting in creating a fraudulent of electoral candidates?”
Sauer disputes her description as he should. Calls it a “mischaracterization” of the indictment.
Can’t help but think this is Sotomayor’s way to support 1512(c)(2) in Smith’s indictment.
Sauer admits some of the allegations in the indictment (he also disputes the allegations) would be considered private–such as working with private attorneys on alternative slate of electors.
Thomas raises Meese amici that argues Smith is unlawfully appointed as special counsel.
Sotomayor asked a question and I have no idea wtf she just said. I don’t think Sauer does, either.
Kagan joins ACB in parsing the indictment to ask Sauer which allegations represent official v personal.
This really can be such a slippery slope–sort of mind blowing to consider
OH FFS Kagan asks Sauer “How about if a president orders the military to stage a coup? Is that immune?”
Kagan: Is it an official act?
Sauer answers, it sounds like it.
Kagan: The answer sounds like to me it’s like, oh it’s official but sounds really bad.
Gorsuch expressing concerns about precedent of incumbent presidents always considering criminal liability when making decisions in office.
Kavanaugh and Sauer discussing exec privilege protections and the broad scope of the 4 charges in Smith’s indictment–again, 2 1512(c)(2) and 2 similarly vague “conspiracy” charges.
KBJ asking why the president should be making official acts without a responsibility to follow the law. She’s arguing that other “high powered people” also have to follow the law.
This is silly–the president has powers that no one else has. So now the president is comparable to, what, a mayor or judge?
“When we are talking about liability, I don’t see how the president stands in any difference” than anyone else.”
HAHA OMG KBJ wonders aloud about turning the oval office into “the seat of criminal activity in this country.”
Michael Dreeben now up for Jack Smith.
MY GOD WHY DO ALL THESE FED PROSECUTORS SOUND LIKE WOMEN?
Dreeben served on Robert Mueller’s team.
Thomas asks Dreeben if there no immunity even for official acts? Dreeben says yes.
Thomas asks why no criminal prosecution of past presidents for military operations such as coups. Dreeben argues bc they were not illegal lol ok.
Roberts asking about circuit court general conclusion that a president can be prosecuted because he’s been prosecuted. That logic “concerns me.”
Roberts criticizing circuit court for not considering what was official and what was personal. “They had no need to look at what courts normally look at when you talk about questions of privilege or immunity.”
WOW.
Roberts describes circuit panel’s reasoning as “tautological.”
Not a good sign for the 3-judge panel.
Kavanaugh again turning back to separation of powers issues related to Congress passing laws and which ones apply to the president.
“It is a serious Constitutional question whether a statute can apply be applied to the president’s official acts.”
Argues Congress needs to speak with some “clarity.” Now again discussing how vague “obstruction” and “conspiracy” laws can easily be applied to a president.
Kavanaugh: Especially “risky” in the hands of a “CREATIVE PROSECUTOR WHO WANTS TO GO AFTER A PRESIDENT.”
Gorsuch gets Dreeben to agree there are specific core functions of the presidency that Congress cannot regulate.
He says yes, Gorsuch suggests that in itself is a form of immunity. Now asking about 1512c2.
Can a president be prosecuted for obstruction of an official proceeding if he led a civil rights protest in Washington that delays a government proceeding?
Dreeben tries to say no and tries to rely on intent and “corruptly” elements. Gorsuch tells him to assume both elements are met–he meant to do it.
Dreeben did not answer that one well.
Alito presses Dreeben on the idea that the president is like everyone else in terms of following the laws.
Alito calls 371–conspiracy to defraud the US– a “peculiarly open-ended statute.”
It would apply to any fraud in any government function, Alito suggests.
Dreeben counters that presidents have no official role in certifying the election.
Alito: “Whatever we decide will apply to all future presidents.”
Dreeben unconvincingly argues that future presidents won’t violate the law bc they have the best lawyers and an attorney general who will steer him properly. Alito counters that is not always the case.
Alito: “This case will have effects that go far beyond this prosecution.”
Alito very skeptical of Dreeben’s position that oh don’t worry about the slippery slope here because an attorney general will give the best legal advice on whatever he is going to do.
Alito generally asks, “What is necessary for a stable democratic society?”
Asks if permitting criminal prosecution of a president will “lead us into a cycle that destabilizes our country?”
Sotomayor retorts that a stable country relies on the “good faith of public officials assuming they follow the law.”
Sotomayor: “No man is above the law either in his official or private acts.” Just blabbering nothingness.
Kagan asking about official v personal acts in the indictment. Dreeben again goes back to working with “private lawyers to gin up fraudulent slate of electors is not part of a president’s job.”
It is to achieve a “private” end–argues what Trump did was in his role as a candidate and this was campaign-related.
Which is something presidents do every single day.
Gorsuch: “Every first term president, everything he does, can be seen through the prism of his personal interest in re-election.”
Asks if removing an appointee is core power–this speaks to Smith’s allegations that Trump’s attempts to replace Jeff Rosen with Jeff Clarke is somehow a crime.
Dreeben says depends on motive. HUH?
“Everything he does…he wants to get re-elected. If you are allowing motive to color that, I wonder how much is left. Presidents have all matters of motives.”
Gorsuch reminds Dreeben “we are writing a law for the ages.”
He also hints that SCOTUS will soon address the definition of “corruptly” in 1512c2.
Kavanaugh joins Gorsuch in expressing concerns how this case/decision will affect the future.
This precedent will “cycle” back over and over.
Kav asks about a president making false statements to the public and whether prosecutable.
Dreeben says that has never happened so basically no. THAT IS THE EVER-LOVING POINT.
ACB seems to agree absolute immunity is not a thing.
But she asks Dreeben to drop official acts from indictment and only prosecute on personal/private conduct. Dreeben basically argues all the allegations work together as evidence in the indictment.
KBJ seems to agree with ACB that whatever is deemed personal/private isn’t protected by immunity.
Lots of back and forth btw absolute immunity v core duties or outer perimeter of authority.
All done.