The amicus brief SCOTUS could use to make Jack Smith go away
Alito, are you listening?
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While it has been clear for months now that Trump has little chance of beating the multiple criminal cases he’s facing on the merits, a little-noticed amicus brief filed at the Court of Appeals for the DC Circuit could provide a roadmap for the conservatives on the Supreme Court to sidestep Trump’s outrageous absolute immunity claim.
It’s a path that would allow SCOTUS to do Trump’s bidding without even having to rule on Trump’s Nixonian claim that “when the president does it, that means that it is not illegal.”
Trump will likely be before the Supreme Court relatively soon because Tuesday’s oral arguments at the DC Circuit, where his lawyers argued he should be granted absolute immunity for his actions as president, including inciting an insurrection on January 6, did not go well.
Broadly speaking, Special Counsel Jack Smith’s argument is that granting Trump absolute immunity would mean a president would be free to commit crimes to stay in office. Trump’s argument — rendered in breathless, dramatic prose by his lawyers — is that if he is prosecuted, it will “plague our nation for many decades to come and stands likely to shatter the very bedrock of our republic — the confidence of American citizens in an independent judicial system.”
Pretty much every journalist who watched Tuesday’s argument agrees it was a disaster for Trump, and that the DC Circuit will likely throw out Trump’s claim of absolute immunity. Law Dork’s Chris Geidner wrote that when Trump’s attorney, D. John Sauer, launched into his argument that Trump could be prosecuted only if he had been impeached by the House and convicted by the Senate, Judge Florence Pan used that to “utterly demolish” the absolute immunity contention. Judge Pan, Geidner wrote, got Trump’s lawyers “to agree that his argument would mean that a president could sell pardons, sell military secrets, or have SEAL Team Six assassinate a political opponent” without fear of prosecution as long as the Senate had not convicted him. (You can listen to that exchange below.)
WaPo’s Ruth Marcus used the same language, writing that “there was something clarifying about hearing [Trump’s] motion to dismiss demolished by the judges of the US Court of Appeals for the DC Circuit.” Staff at Slate wrote that Trump’s legal team got the chance to make their case for absolute immunity, and “it did not, uh, make a ton of sense — and it seems like the three appeals court judges picked up on this.”
So, it seems very likely that the court of appeals will uphold District Court Judge Tanya Chutkan’s ruling that Trump does not enjoy absolute immunity and can be prosecuted for his actions. However, Trump can appeal a loss at the DC Circuit to the Supreme Court with the hopes that some combination of the three justices who owe him their jobs and the other three hardline conservatives will buy his immunity argument.
And here’s where amicus briefs come in.
The argument that could let Trump off the hook
Amicus — literally “friend of the court” — briefs are written by people or organizations that aren’t a party to a case but purport to offer information helpful to the court. They are almost always filed at the appellate level rather than the district court. In particularly contentious cases, such as Dobbs v. Jackson Women’s Health, which overturned Roe v. Wade, the number of amicus briefs filed at the Supreme Court can exceed 100.
Precisely because the amici curiae filers are not parties to the case, those briefs can serve as a way to smuggle in policy arguments and novel legal theories that the parties themselves can’t make. That’s because parties in a case cannot generally raise new issues on appeal — they’re bound to the issues and arguments presented at the lower court level. Amici have no such restrictions, however. With that, it’s no surprise that Trump’s election interference case spawned some high-profile amicus briefs at the DC Circuit level. You can expect these same arguments — and perhaps these same amici — to appear in briefs at the Supreme Court when this case inevitably lands there.
Regrettably, the Court’s conservatives might be interested in the argument made in an amicus brief authored by Ronald Reagan’s attorney general, Edwin Meese III, and law professors Steven G. Calabresi — one of the founders of the Yale Federalist Society and current co-chair of the FedSoc Board of Directors — and Gary Lawson, a former Scalia clerk. Where amicus briefs are generally written in support of one side or the other, the Meese/FedSoc brief is ostensibly offered in support of neither party. However, the argument is 100 percent designed to get Trump out from under these criminal charges.
The argument raised by Meese and friends is not directly related to immunity. Instead, they assert that Jack Smith doesn’t have the authority to prosecute Trump. They have two reasons, both relatively technical. The first is that Jack Smith was a private citizen when Attorney General Merrick Garland appointed him as special counsel, and private citizens cannot be tasked with special counsel duties. (Smith was an assistant United States attorney during the Clinton and Obama administrations but has been a special prosecutor at The Hague, investigating war crimes in Kosovo, since 2018.) The second argument is that no statute authorizes the attorney general, rather than the president, with the advice and consent of the Senate, to appoint a special counsel.
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Calabresi and Lawson have trotted out this argument in the past, arguing against the appointment of Robert Mueller to investigate Russian interference in the 2016 election. In fact, their law review article arguing Mueller’s appointment was unconstitutional contains the same language as their amicus brief regarding Jack Smith’s appointment. While the brief purports to be an even-handed exploration of the constitutional issues of special counsel appointments, what it really argues is that Smith’s prosecution of Trump should be dismissed.
If enough conservatives on the Supreme Court latch on to this argument, it could provide them a way out of addressing the absolute immunity issue, given that the argument appears laughable. Even the highly conservative supermajority on the Court might not be inclined to agree that President Trump could quite literally “stand in the middle of Fifth Avenue and shoot somebody” and walk away scot-free as long as he was president when he did so. But the Court could theoretically rule on an alternate ground — that since Smith was improperly appointed, the charges must be tossed. In theory, of course, a special counsel could then be properly appointed, charges could be brought again … but by then, the 2024 election would be well in the rearview mirror.
Calabresi has followed a path familiar to many conservatives, first embracing the idea Trump is legally unfit to be president again and then reversing course. In August 2023, Calabresi said the 14th Amendment barred Trump from the presidency because he had engaged in an insurrection. He stated, “Trump is ineligible to be on the ballot, and each of the 50 state secretaries of state has an obligation to print ballots without his name on them.” He even wrote a blog post about it. Then, one month later, he flipped completely, saying that a law review article had now convinced him that the Insurrection Clause of the 14th Amendment does not apply to presidents.
With a different Supreme Court, one that was not utterly in thrall to the worst conservative impulses, this might not get anywhere, given that it is only an argument made in an amicus brief. However, after Justice Alito’s decision in Dobbs v. Jackson Women’s Health overturning Roe v. Wade, it’s evident that the conservatives are happy to use amicus briefs to get the results they want.
SCOTUS has appropriated briefs like this in the recent past
A Politico investigation found that the conservative jurists have leaned heavily on amicus filings from several anti-choice activist groups affiliated with Leonard Leo, the co-chairman of the Federalist Society.
In Dobbs, Alito relied on an amicus brief from Professor Robert P. George to make his historical argument that abortion had been a crime for centuries, even before the founding of America. One problem: George isn’t a historian. He studies philosophy and jurisprudence. Another problem: his understanding of the historical record, according to actual factual historians, is wrong. After the Dobbs opinion, 30 different historical associations signed on to a statement saying it was a “flawed and troubling precedent” to have a major historical inaccuracy in such an important court ruling. Alito’s opinion also relied upon an amicus brief from the rabidly anti-choice Lozier Institute to mischaracterize which countries permit abortion past 15 weeks.
To be fair, reliance on amicus briefs isn’t limited to conservatives, and if the absolute immunity argument makes its way up to the Supreme Court, the more rational members of the Court may look to amicus briefs as well.
At the DC Circuit, a group of former government officials and constitutional lawyers, many of whom are Republicans and served in Republican administrations, including Trump’s former counsel, Ty Cobb, filed an amicus brief arguing that it is well-settled that a president does not have immunity from criminal acts. Their brief points out that during Trump’s second impeachment trial, Trump’s counsel, in arguing against impeachment, instead said the courts were the proper venue to go after Trump, saying that “no former officeholder is immune” from criminal prosecution.
This brings us back, full circle, to Tuesday's arguments at the DC Circuit. Judge Pan pointed out that Trump’s legal team argued during impeachment that Trump’s crimes should be addressed in the courts, and now, in the courts, they argue that Trump’s crimes can only be addressed via impeachment.
Regardless of how this all plays out, it’s highly likely that Trump has gummed up the works enough that the original March 4, 2024, trial date is likely a nonstarter, as even a relatively swift path up to the Supreme Court is often not all that swift.
On January 5, the Court agreed to hear, on an expedited basis, Trump’s argument he should not be barred from appearing on the Colorado ballot. Even at an accelerated pace, oral argument in that case isn’t set until February 8. Trump has made clear his goal is to push all his criminal cases out until past the 2024 election, and if the conservatives at the Supreme Court help him slow play this one, he may very well get his wish.
That’s it for today
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