January 6th legal proceedings and investigations megathread

[emailking]

Sauer sells selling nuclear secrets could have immunity if it was "structured" as an official act. (He caveats we would need an impeachment and conviction to prosecute.)

Says the same thing for ordering a coup. Could be an official act, depending on the circumstances.

[emailking]

Gorsuch wants to know if the President does not have immunity if it would create an incentive for Presidents to blanket pardon themselves before leaving office. Also said he's thankful the question of self pardon has never come before the court.

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Barrett brings up why is the President special and not other officials that can be impeached. Response is that it has been understood that the President is special in that.

Barrett brings up with if the conduct isn't discovered until the President is out of office and can't be impeached. Response is that the founders assumed the risk in that.

[emailking]

Long discussion and debate on whether statutes have to specifically call out as being applicable to the President in order for him/her to be prosecuted for them.

Now the government is up.

[emailking]

Alito questions whether the President is not in a special position with everything they have to deal with, that they cannot make a mistake. This is in response to Dreeben's claim that the President has an obligation to execute all of the laws.

[emailking]

Alito also seems to be concerned about the effects this decision will have for future Presidents beyond this prosecution.

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Alito also brings up the issue of blanket self pardon last day in office. Dreeben thinks it's not a big concern as there are adequate deterrents and there are only 2 Presidents for whom this issue has arisen.

[emailking]

I think the 4 women are all No's on this. Alito, Roberts, Gorsuch, and Kavanaugh might be inclined for limited immunity. We haven't heard much from Thomas but I assume he's in the latter category or for full immunity.

[emailking]

Dreeben did concede there are areas where the President's actions are completely unreviewable and cannot be legislated again (e.g. movement of troops on the battlefield).

[emailking]

Yeah they're spending a lot of time (both sides) talking about the scope of immunity and hypotheticals unrelated to this case. Dreeben does think they have authority to use this case to make a more general ruling but doesn't sound thrilled about it.

[emailking]

Alito also seems to be concerned about the effects this decision will have for future Presidents beyond this prosecution.

Gorsuch is also squarely in this camp and worried about how Presidents could be targeted by their successor.

[emailking]

I think the 4 women are all No's on this. Alito, Roberts, Gorsuch, and Kavanaugh might be inclined for limited immunity. We haven't heard much from Thomas but I assume he's in the latter category or for full immunity.

Did Roberts actually ask any questions earlier or say anything indicative? I haven't heard any, but haven't had a chance to listen from the start.

He hasn't talked much but he's had some questions.

[emailking]

Based on my reading of the highlights of the argument, this doesn't bode well for getting this trial up and running anytime soon.

Agreed.

[emailking]

Barrett brings up the issue of speed and remanding the case immediately for the private acts. Asks whether it is an option to drop the public conduct so it can be remanded immediately. Response is they want to present an integrated picture of the conduct but it's possible they could present interactions of Trump with the lawyers and Justice Department as evidence but with a jury instruction that criminal penalties cannot apply. (Hope I got that right). Also thinks that US vs. Nixon covers that issue of the evidence.

[emailking]

One thing I'm disappointed about is that Dreeben hasn't pushed or really even talked about the issue of speed and ruling quickly. Barrett is the only one who has brought it up (twice).

[emailking]

Trump's lawyer opted for no rebuttal. Arguments over.

[emailking]

Well she'll get the case back when they rule which will probably be in the summer. But a trial before the election I think just got a lot less likely.

[emailking]

Can we stop with the hyperbolics? lol

[emailking]

Can we stop with the hyperbolics? lol

No. SCOTUS pays attention to public opinion, so members of the public ought to make clear here, and everywhere else in the public domain, that SCOTUS will have lost all legitimacy if they go that extreme route. SCOTUS Justices and their clerks and anyone else associated with the judicial branch of government in general ought to be made fully aware of that anywhere on the internet or out in the real world where they may turn.

I'll rephrase. You should stop with the hyperbolics.

[emailking]

I'll rephrase. You should stop with the hyperbolics.

I think the much greater danger than excessive hyperbole is insufficient hyperbole.

Trump's lawyers literally just argued, directly to the faces of the Supreme Court Justices in oral argument, that the President ought to be allowed to order Seal Team 6 to assassinate their political opponents, and should be immune to prosecution if they do that.

The danger here is not something that should be minimized, it is something that should be emphasized.

The court didn't go for that. It was presented as a hyperbolic example. You're worried over nothing. And even if they ruled that directly we shouldn't arrest the Supreme Court and Congress (wtf?).

[emailking]

Even Trump's attorney conceded that ST6 has a duty not to follow illegal orders. The Justice Department can't just arrest anyone Biden tells them too, including say all of Congress, even if he would hypothetically face no prosecution for it.

[emailking]

Why would he do it when it wouldn't happen?

Also why would he do it when he's not an immoral thug like Trump.

[emailking]

The court didn't go for that. It was presented as a hyperbolic example.

You can't say that "the court didn't go for that" unless and until they rule contrary to that.

I can say it and I do. I listened to the whole thing.

[emailking]

https://twitter.com/harrylitman/status/1783561930201776323

Litman not bullish on a trial before the election, see above.

On air, I heard Neal Katyal (who's argued like 50 times in front of SCOTUS) that he still thinks a trial before the election is possible.

On air, Andrew Weissmann thinks if they remand the case back to Chutkan to scope out public vs. private acts, she could use the opportunity to have a detailed hearing on the matter with witnesses and evidence and everything. So there could be a "trial" in that sense, obviously with no jury or conviction or anything forthcoming. If she went that route, she wouldn't have to give them the 88 days she promised since it's not a trial, so she could do the hearing immediately and that would happen before the election for sure.

[emailking]

I actually heard the issue of Thomas's wife raised last night on MSNBC.