Trump's Immunity Claims Are Idiotic. The Supreme Court Should Say So. Immediately.

This was a busy week for the Supreme Court's certiorari docket. The big news on Monday was that independent counsel Jack Smith filed a petition with the Supreme Court asking the Court to grant cert to bypass the DC Circuit and review the district court ruling on Donald Trump's various claims of immunity to prosecution for his role in seeking to obstruct and overturn the result of the 2020 Presidential election. Citing the Court's expeditious treatment of the Nixon tapes case in 1974, Smith argues that the Court should likewise act with alacrity here, lest Trump obtain the benefit of delay occasioned by the otherwise ponderous pace of the appellate process.

I shall return momentarily to Smith's petition, but it's also worth noting three other consequential activities on the Court's cert calendar this week. On Wednesday, the Court granted review in Fischer v. United States, which could jeopardize convictions of various of the January 6 insurrectionists and could have consequences for the Trump prosecution quite apart from the issues raised in Smith's petition. That same day the Court also granted cert to review the portion of the Fifth Circuit decision that upheld Judge Matthew Kacsmaryk’s invalidation of expanded access to the abortion pill mifepristone. In a modicum of good news, the Court did not grant the cross-petition of the plaintiffs who sought reinstatement of the portion of Judge Kacsmaryk's judgment that invalidated the original FDA approval of mifepristone.

Amidst these high-profile cases, it was easy to overlook a case in which the Court denied cert. On Monday, in Tingley v. Ferguson, only three Justices (one short of the four necessary to grant cert) voted to review the Ninth Circuit ruling upholding Washington State's prohibition on licensed providers performing "conversion therapy" on minors. Given what appears to be a circuit split, one could make a plausible argument that the Court should have granted. But two Justices who wanted to take the case went further to express the view that the state's prohibition amounts to censorship. Can you guess which two? If not, you haven't been paying attention.

If you can guess correctly, then you won't be surprised to learn the title of my new Verdict column on the case: Justices Thomas and Alito Want a Constitutional Right to Pray Away the Gay. To be fair to Justice Alito, his short dissent from denial of cert isn't as incendiary as Justice Thomas's longer one. But even so, in calling for strict scrutiny of laws regulating medical practice that happens to be accomplished through speech, both Justices Thomas and Alito make clear that they believe the First Amendment empowers them to substitute their amateur medical judgment for the views of both medical experts and elected officials. As if it weren't already over-determined, that view also suggests they'll be willing (indeed eager) to invalidate FDA approval of expanded access to mifepristone.

Back to the main story: what about Smith's petition? It is almost impossible to overstate how idiotic Trump's argument is. I'll focus on the most prominent and most idiotic. Here's the key language from Article I, Section 3 of the Constitution:

Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.

What's the argument based on that text put forward by Trump's team of crackerjack lawyers? They say that because the qualifying clause ("but the party . . .") allows for indictment, trial, judgment, and punishment of someone who is "convicted" by a Senate impeachment trial, it precludes indictment, trial, etc., of someone like Trump, who was acquitted by the Senate. 

The argument makes no sense because the provision as a whole makes the point that just as impeachment and a criminal case serve different purposes, so they have different consequences. The first clause states that conviction during a Senate impeachment trial does not result in a bill of attainder imposing criminal penalties. The "but the party . . . " clause then states what would be clear even if it weren't made explicit: someone who has been subject only to removal and/or disqualification via impeachment may nonetheless be criminally tried. The reason this qualification clause refers to "the party convicted" is not to grant immunity against criminal prosecution to officers impeached by the House but acquitted by the Senate. The reason is that the first half of the provision discusses limits on the consequences of Senate conviction, so the qualification is only necessary for such cases.

And that makes perfect functional sense, especially in Trump's case, in which many of the Republican Senators who voted against conviction at his second impeachment trial did so because they claimed that an impeachment trial is not proper for a former officer. So even if a Senate impeachment trial acquittal based on a conclusion that the officer was factually innocent did bar subsequent criminal prosecution (and to be clear, it doesn't), that would not justify barring prosecution where the reason for acquittal in the Senate has nothing to do with factual guilt or innocence.

But wait. The Trump team's argument is even dumber. As quoted by the district court opinion, Trump's lawyers argue that the constitutional language means "that the President may be charged by indictment only in cases where the President has been impeached and convicted by trial in the Senate." How stupid is that argument? Very. A hypothetical example can illustrate.

Suppose that Trump had never been impeached but that after he was out of office FBI agents found among the papers he illegally brought to Mar-a-Lago a collection of clearly authentic documents that proved beyond a shadow of a doubt that he had been a paid agent of the Russian government before, during, and after his presidency. Had the documents been discovered while Trump was President, they could have been the basis for impeachment in the House and trial by the Senate. However, under Trump's reading of the Constitution, he now cannot be charged with any crime, because he was not impeached by the House or convicted by the Senate, and only people who have been are subject to prosecution. Preposterous!

Note further that the clause on which Trump relies for his immunity claim sets out limitations on the consequences of all impeachments, not only those of the President. That means that the immunity, if it exists, applies, in the words of Article II, Section 4, to "The President, Vice President and all civil officers of the United States," including every federal judge and a great many other officers. But impeachment by the House and conviction by the Senate have never been understood as necessary conditions for criminal prosecution of such federal officers.

Judge Chutkan's opinion makes just this point (at p. 15a in Appendix 1 of Smith's cert petition). Her well-reasoned opinion also deals expertly and patiently with the kitchen sink full of other nonsense that Trump's lawyers threw in the way of the prosecution.

If Merrick Garland had appointed Smith in early 2021, by now the DC Circuit would have had a chance to consider Trump's appeal and reject it for the reasons set out in Judge Chutkan's opinion, and the Supreme Court could have quickly denied cert. The trial would have already occurred. If Trump were found guilty in this alternative universe, he might still be the frontrunner for the Republican nomination, but at least some measure of justice would have been secured for at least some time.

In our actual universe, the Supreme Court will have to act very quickly to enable Trump's trial to occur on anything close to its current schedule. To the Justices' credit, the same day that Smith filed his petition for cert before judgment, the Court acted. It issued an order giving Trump's legal team until next Wednesday to file a response. I would have preferred an even more expedited timetable, but this is where we are now.

What comes next?  Past practice--including in the Nixon tapes case and Bush v. Gore--suggests that the Justices will schedule an expedited oral argument. However, the timing would be tricky. Between Christmas and the New Year, oral argument might be delayed for two weeks or longer. Therefore, upon receiving Trump's brief on Wednesday, the Court could and should dispense with oral argument and almost immediately issue a brief opinion summarily affirming Judge Chutkan's ruling. Because Trump's arguments are so insubstantial, the Justices can act very quickly here without worrying that haste might lead them to an erroneous decision.

Meanwhile, each additional passing day rewards Trump's dilatory tactics. What do you say, SCOTUS? The clock is ticking.