A SCOTUS Firehose in Trump v United States

After rage-tweeting throughout the oral argument in Trump v. United States, I find myself somewhat at a loss as to what points to focus on here. The positions staked out by the Court's most conservative Justices were themselves Trumpian, not so much in their audacity or mendacity but in their prolixity. It is impossible to interview Trump because while the interviewer tries to fact-check any given false statement (e.g., crime has skyrocketed), Trump's firehose of bullshit emits six or seven more lies. So too during the oral argument: Justices Thomas, Alito, et al made so many spurious arguments that attempting to deal with them one by one feels like a sucker's game.

Just to name a few lowlights:

*    Justice Thomas wanted to know whether he could use this case to invalidate Jack Smith's appointment.

*    Perhaps inspired by that non sequitur, later in the argument, Justice Kavanaugh seemed to think that flaws in an expired independent counsel law that is not the basis for Jack Smith's appointment warranted reading an extended excerpt from Justice Scalia's dissent in Morrison v. Olson, which he deemed correct, lamenting the decision that upheld the law that enabled Kavanaugh himself, as a young lawyer, to write porn while working for Ken Starr.

*    Justices Gorsuch and Kavanaugh seemed sympathetic to the idea that a federal criminal statute does not apply to the President unless it specifically says so, even when the statute's plain language provides no reason to doubt that it covers the President. For example, Trump is charged with conspiracy to defraud the United States, which, in the language of the statute, applies when "two or more persons conspire." To require more than that is not to require a merely clear statement. The President is obviously a person. A rule that every criminal statute must specifically mention the President to cover him would be what the cases disparagingly call a magic words requirement.

*    Justice Alito worried that if Presidents aren't secure in the knowledge that they can commit crimes while acting within the scope of their office, they'll fear that the next administration will unfairly try them on bogus charges, which will in turn lead them to stage a coup to hold onto power so they don't go to prison--because that's definitely the most likely scenario in which a President would try to stage a coup to hold onto power.

*    Justice Gorsuch also worried about incentives. He feared that a President who could face criminal charges would just try to pardon himself--and while the Court hasn't ever adjudicated whether that's permissible, it might uphold such an action, so apparently that's definitely a good reason to recognize immunity and thus give a President everything he might otherwise obtain via a self-pardon, which, remember, Justice Gorsuch was implying is a bad thing.

When attorney Michael Dreeben, arguing on behalf of the special counsel, gently tried to steer the argument back to reality, Justice Gorsuch justified the parade of horribles as a means of testing the limits of the principles on offer. "We're writing a rule for the ages," he humbly offered.

In principle, that's legitimate. The Supreme Court decides concrete cases but in doing so it announces legal rules and standards that govern future cases as well. It's reasonable to want to test various proposed rules and standards by asking whether they produce sensible results in hypothetical scenarios.

But you know what's even more important than ensuring that a rule or standard the Court announces produces sensible results when applied to hypothetical future cases? That it produces a sensible result in the case in which it is announced. Worrying that permitting Trump to face trial for his attempted coup could, in a hypothetical future, lead Presidents to take actions that are not in the country's best interest is like worrying about the side effects of using an epi pen in the middle of anaphylaxis.

* * *

In talking about the oral argument with journalists, colleagues, and students today, I've been repeatedly asked to predict an outcome. My best guess is that eight or nine Justices will reject the most aggressive version of Trump's immunity claim but that five or more will accept a seemingly more moderate one--in which a former President has some immunity for official but not private acts. I can't say what the details of that distinction will be but they don't really matter. A ruling in late June is highly likely. Even assuming an expeditious schedule of further pretrial activity uninterrupted by further interlocutory appeals, that would put jury selection some time in September, with a trial running through October and perhaps into November. That almost surely won't happen, meaning that Trump has already succeeded in delaying his trial until after the election--thanks in no small part to the Supreme Court.