Happy (legal) new year - part I

HAPPY (LEGAL) NEW YEAR!

PART ONE

Ok, stop me if you heard it before: Two lawyers are arguing the merits of a legal issue. How many opinions do they come to? The usual answer is five; each attorney arguing both sides of the issue, totaling four opinions, and one more synthesizing the four to arrive at a fifth opinion.

The correct answer is unknowable. Lawyers will argue incessantly and sometimes never stop.

Like most every year, 2024 will see the Supreme Court answer some of our most vexing legalquestions. For instance, we’ll find out by June whether the right to bear arms regarding people  convicted of domestic violence can be banned. My guess is that in spite of the Justices’ questions during oral arguments, unless there is a regulation predating 1791 (as stated in Bruen) the answer is that people convicted of these offenses are protected by the Second Amendment.

Other questions presented to the Supreme Court will include the validity of the South Carolina redistricting plan, an adequate notice question, the constitutionality of the Consumer Financial Protection Bureau, whether a bump stock device meets the statutory definition of a “machine gun,” a couple of First Amendment cases, and the mifepristone case (Dobbs II?) to name just a few.

But it’s two cases not yet on the Court’s docket that will command the most attention at the beginning of the year. These two cases will bear not just on legal proceedings scheduled for later in the year, but will define the nature of democracy, governmental powers, and the rule of law.

Both involve Donald Trump. The questions raised will address the breadth of Amendment XIV, s. 3, and whether a president enjoys immunity from criminal prosecution. For more than a month and no doubt over several weeks into the New Year, legal talking heads will authoritatively opine over every media outlet as to what the outcome of each question will be.

As indicated above, there will be an infinite number of opinions. Ergo, I can see no reason why I shouldn’t offer my opinion. After all, I couldn’t possibly muddy the legal waters any more than they’d already been muddied.

Before I start, a few caveats. First, there is no more loathsome person in public life than Donald John Trump. If he’s the Republican nominee and on my general election ballot, I will take great joy in voting against him for a third and hopefully last time. In fact, it’s my great (unrealistic) hope that he’s incarcerated by Election Day 2024. Hey, a boy can dream.

Second, I intend to be as dispassionate as I can. Lawyers are trained to marry the facts with the law while remaining detached from the parties involved. Personal feelings can impede rational legal analysis.

Third, I won’t be the first, nor the last, to say that current Supreme Court is the most political Court in my lifetime, if not in all our history. I have commented on its most recent political advocacy disguised as reasoned legal opinions, which you’re invited to review on this blog.

Fourth, and this is important, nobody ever got rich betting on what a judge or jury would do. The same can most emphatically be said of Supreme Court justices. That said, I’m not forecasting what the eventual outcomes will be reached, just what I think they should be.

Fifth, this is not intended to be a law review article but a general overview of what might be accessible to the general reader. I’ve written a law review article, and this isn’t a law review article.

So, the “easy” one first.

“Immunity”

Let’s describe what it is we’re speaking about. According to the Legal Information Institute sponsored by Cornell Law School,

“Immunity refers to legal protection that exempts a person from liability, punishment, or legal action that would otherwise apply. Immunity can be granted in various contexts, including criminal and civil cases, administrative proceedings, and legislative inquiries.”

In the federal D.C. district court, Donald Trump argued that he is exempt from “liability, punishment, or legal action…” for any (all?) acts he performed while he was president. Judge Chutkan denied Trump’s motion for immunity and Trump appealed to the D.C. Circuit Court where a three-judge panel will hear the appeal on January 9, 2024.

Special Counsel Smith, hoping to expedite the process, filed a motion with the Supreme Court arguing that no matter which side prevails at the Circuit Court, the losing party will appeal to the Court so basically why wait? The Court in a one sentence statement denied the motion. So, we’ll just have to wait until the Circuit Court decides after the January 9 hearing to see whether the Court will hear the inevitable appeal. It should and must do so.

The basis of Trump’s immunity assertion is nowhere contained in the body of the Constitution. What is included in the Constitution is the provision that all executive and judicial officers can only be removed from offices during their terms for high crimes and misdemeanors. Those were thought to be political, not necessarily legal crimes. For example, if a president orders the Treasury Department to audit the tax returns of his political opponents, that would be an inexcusable abuse of power, thus impeachable.

The question, then, is what happens when an abuse of power also violates statutory law? In regard to a president, that remains to be seen. However, we have seen what happens to other officers when they are removed from office either by impeachment or resignation.

For instance, Vice President Spiro Agnew, in a plea deal with the Department of Justice, resigned his office and entered a plea of nolo contendre in federal court for one count of tax evasion related to his accepting kickbacks from state vendors while he was governor of Maryland. Hehad even accepted these payments while serving as vice president. I agree, this isn’t quite on point, but it gets us closer.

Let’s go to his ostensible boss, Richard M. Nixon. He was subject to criminal investigation by special prosecutor Archibald Cox for the Watergate break-in and related offenses. During an unrelated senate investigation into the Watergate matter, it was disclosed that Nixon had recordings of conversations conducted in the Oval Office.

Upon learning this, Cox sought recordings of over 60 conversations between Nixon and White House aides. Cox persisted and when he sought a court order requiring Nixon to produce the tapes, Nixon fired him. Cox was replaced by Leon Jaworski, who continued to pursue the tapes,eventually litigated the issue before the United States Supreme Court.

In U.S. v. Nixon, the unanimous 8-0 Court (Rehnquist recusing due to a perceived conflict of interest, they used to do that then!) rejected Nixon’s claim to a comprehensive blanket application of executive privilege and held that it did not apply to materials for use in a criminal investigation and trial. This was game, set, and match – Nixon resigned the presidency 16 days later.

What’s interesting is what came next. Thirty days later, Nixon’s successor, President Gerald Ford, gave Nixon a full and complete pardon for acts Nixon “may have committed” while president. There is something to consider here. Clearly Nixon and Ford thought Nixon was subject to criminal prosecution. That’s why Ford issued the pardon and why Nixon accepted it.

But what was perhaps more interesting was the Court’s position on this matter. One line jumps out: “when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice."

To me this holding could easily be analogized to a general interest in “Immunity” as Trump claims.

The question remains, will the Court hear the appeal from the Circuit Court? Yes, it will. Why? For any number of good reasons, but two stand out to me. First, it’s a matter of an unresolved first impression. Like in the 1970s with Nixon’s executive privilege claim, Trump’s immunity claims scream for clarification.

Second, there are multiple court cases pending that could be impacted by the Court’s resolution of the immunity question. If the Court holds against Trump, the federal and state criminal prosecutions can proceed. On the other hand, if the Court holds that Trump has blanket immunity for acts he committed while president, those criminal charges disappear.

In many respects, in this legal chess game, both sides are trying to control the center of the board so they can topple their opponent’s king. In his claim for immunity, Trump is trying to play his most favorable end game.

Which only leaves the question, what will the Court hold?

Bear in mind that nobody ever got rich betting on what verdict a jury would render or what a judge would decide. Take that last part x 9 and you’ll understand how hazardous, if not possibly embarrassing, making any prediction is in this matter.

On the other hand, I’m old so I have nothing to lose. There is one caveat here, there may be a difference between what I think the Court should do and what it will do.

Here’s what I think the Court should do. Recall that in U.S.v. Nixon, the Court unanimously held that Executive Privilege could not shield information regarding any criminal investigation or prosecution. Twenty-four years later in 1998, in Clinton v. Jones, the Court once again unanimously rejected Clinton’s assertion that the civil case against him be tossed on separation of powers grounds and held that a sitting president can be sued civilly for acts committed prior to him becoming president and could not be delayed until the president’s term of office expired.

Thus, Clinton’s separation of powers argument did not immunize him from having to participate in a civil trial.

***NOTE: For those with poor memories or were not yet born, shortly after Bill Clinton taking office, Kenneth Starr was appointed special counsel to look into alleged financial improprieties while Clinton was governor of Arkansas. This expanded to an investigation into the allegedly questionable use of several White House offices, e.g. “Travelgate.”  Some eight years later, the final report penned by Starr’s successor found no evidence of any improper financial actions.

BUT, as the saying goes, sex sells. And Clinton evidently was no stranger to straying from his marriage. When he was governor, Clinton allegedly and unsuccessfully propositioned a woman(Paula Jones) who was a state employee. Ms. Jones refused the governor’s proposals.

Paula Jones claimed that in retaliation for her reflection of Clinton’s sexual advances, she endured adverse job actions. After a few years, and apparently with the encouragement of Clinton’s political opponents, Ms. Jones filed suit against Clinton who was by then the president.*** However, none of Jones’ claims of rejected sexual advances and retaliation occurred when Clinton was president, making this a pretty straightforward case to resolve.

The Court said straight out that Clinton’s claim of immunity under a separation of powers theory was not found in the Constitution. Moreover, the Court didn’t think that the pretrial and trial proceedings would significantly interfere with the president’s duties.

Some rule similar to that articulated in Clinton could be fashioned in the Trump case. Although Clinton involved a civil action and Trump faces criminal prosecution, Trump is out of office and would not be burdened as Clinton might have been. Also, neither the charges in Clinton’s case or the charges confronting Trump had any relationship to the mandated or discretionary duties of the presidency. This is an important point moving forward.

Moreover, perhaps a rule for a sitting president can be fashioned in a criminal matter where all the pretrial actions could be conducted while a president served in office, and the statute of limitations could then be tolled until a president left office and the trial could commence.

In this instance, Trump is not in office and although has a tight schedule what with running for president and all, and there is no reason under any statutory mandate and nary a mention of immunity in the Constitution, I believe Trump will fail in his immunity assertion.

So that’s what I would do, but what will the Court do?

If past is truly prologue, Justice Alito will fabricate some “history” to support the notion that only presidents named Trump have complete blanket immunity for any offense committed anywhere at any time for the entirety of their lives.

Justice Thomas will concur on the grounds that English common law, from which American law was derived, prior to 1791 recognized that the sovereign as chief magistrate was immune from any legal action for any acts he committed. Thomas obviously wants us to forget about Charles I.

The others will break as follows: Justices Brown, Kagen, and Sotomoyer will find that Trump is not immune from criminal acts committed while president; Gorsuch, Coney-Barrett and Kavanaugh will seek the most narrowly tailored rule regarding immunity; and Roberts will be left wondering how things went so bad.

To be clear, in my mind there’s no doubt as to the outcome of this matter. Based on the case law(see e.g., Thompson v. Trump (2022), Clinton v. Jones (1997), Nixon v. Fitzgerald (1982), U.S. v. Nixon (1974)), the president has absolute immunity regarding the specifically enumerated duties of his office, has qualified immunity regarding any discretionary acts (based on an objectively reasonable basis of analysis) he performs in his official capacity, and because criminal acts are outside a president’s official enumerated or discretionary duties there is no immunity from criminal charges.

Anything less would stand 237 years of constitutional structure and order on its head, the clear intent of the framers, the careful crafting of immunity rules since 1974, and the clear understanding that an application of absolute immunity in this case creates a sovereign beyond the rule of law.

One last related issue. Along with his Hail Mary Amendment V immunity claim, Trump also filed a rather hilarious Double Jeopardy pleading. At the risk of seeming disrespectful, this argument is ludicrous. I mean 1L ConLaw ludicrous.

Simply put, double jeopardy prevents the government from repeatedly prosecuting an individual multiple times for the same alleged criminal offenses on the same set of facts. A caveat to this is that because of federalism, a person could be prosecuted at the federal level and again at the state level for the same or similar offenses on the same set of facts. In real world legal practice, it’s more complex than that but the point is that once a criminal defendant is tried and acquitted for an offense, the government can’t repeatedly retry the individual for the same charges.

So, to review, double jeopardy requires a retrial, in a court, on criminal charges, after an initial acquittal in a criminal proceeding.

Donald Trump is asserting double jeopardy on the basis that the charges he faces in the D.C. federal court were adjudicated in his impeachment trial in the Senate, in which he was “acquitted.”

Cue laugh track here.

An impeachment is not a criminal trial. It is a political process by which an official of the executive branch or a jurist in the judicial branch can be removed from their office of public trust. It does not require the commission of a crime, although sometimes an alleged criminal act underlies the impeachment process.

An official/jurist could be impeached by the House and tried and removed by the Senate for the gross dereliction of an official duty. Clearly these “high crimes and misdemeanors” have be serious enough to undermine the public’s trust and confidence in the governing institution.

By way of example, then Minority Leader Gerald Ford filed several bills calling for the impeachment of Associate Justice William O. Douglas for, gasp!, writing books. Because Ford disagreed with the content of the books, he argued that because these books undermined anysense of judicial objectivity, therefore calling into question the very integrity of the Court, Douglas had to be removed from his position on the Court.

Was this ridiculous? Yes. Did anyone ask where the criminal smoking gun was? No. Did these calls for impeachment ever get a review by the House Judiciary committee? Nope.

The point here is that impeachment in a political, not a criminal legal process. Because the Senate couldn’t get 67 votes to “convict,” in this instance Trump, doesn’t mean he was “acquitted” in a criminal matter by a jury of his peers. In fact, 57 senators voted to convict.

What are we to conclude from this factoid?

The bottom line is that the impeachment process and the criminal legal process are as similar asis an elephant and a turtle. Neither can nor should be seen as comparable to the other. But Team Trump will continue to litigate this legal abomination and intellectual vomit solely to delay the inevitable legal proceedings.

Perhaps Team Trump could look at Article I, s. 3, cl.7:

“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.”

And so it goes…

HAPPY (LEGAL) NEW YEAR – PART II (AMENDMENT XIV, s. 3) coming….