A nuclear bomb of a court term. Regulars here are familiar with my practice of doing a four-part discussion of the just-ended term of the US Supreme Court here each year in early July. You may also have expectations as to how I divide up this four-part discussion: expectations I will have to foil somewhat this year.
My usual pattern is this: the first installment contains some introductory material about the term just ended. It also usually contains a discussion of a "pet" case -- something that interests me for idiosyncratic, perhaps especially nerdy, reasons that would never get it to the front of anyone else's list. Or even necessarily ON somebody else's list. Last year my pet case involved the issue of personal jurisdiction of state courts over corporate defendants of interstate reach... four years ago my pet was part of the aftermath of Governor Christie's political blockage of the George Washington Bridge. Anyway: there will be no such idiosyncratic pet here. I will be discussing cases that could be on almost anyone's list.
The usual formula, again, is that the second post of the discussion concerns issues of the construction of federal statutes. The third involves constitutional law. The fourth? that has changed greatly from year to year. But it has often focused on issues of sovereignty: the status of Indian tribes and of Puerto Rico have fit in nicely under such a heading, as do such sovereignty-adjacent matters (for a republic) as voting rights and partisan gerrymandering.
This year, we have an entirely different pattern as befits the apocalyptic nature of this last session of the court. For the remainder of this post, we will discuss former President Trump's entanglements with the law, and three SCOTUS cases they have entailed. Tomorrow -- abortion (without regard to the distinction between statutory construction and the Constitution). The following day -- certain issues of criminal procedure, including one that involves free speech rights. Finally, our fourth panel together will discuss Chevron, and administrative law. Perhaps we'll slip some other matters in there. But important issues such as, say, gun control or intellectual property protections will be entirely ignored.
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There have been three cases argued before SCOTUS this term that directly involve former President Donald J. Trump. In the which they were decided, they are: Trump v. Anderson, Fischer v. US. Trump v. United States, The "TLDR" version of what follows is this: the first was the quashing of a bright idea; the second is much ado about little; the third is a disaster that is only mitigated by the fact that it could have been worse.
In Anderson, the Court ruled against the notion that states can decide for themselves whether an individual has committed "insurrection" in the sense required to invoke the 14th amendment, section three. The language of that section says that no person shall hold any office, civil or military, under the United States, if that person had previously sworn to support the US Constitution but then engaged in insurrection or rebellion against the government of the US.
Jefferson Davis, Robert E. Lee, and the whole lot of Confederate leadership had sworn such an oath upon entering the US military. None of them were to hold public offices -- THAT was the key point. I doubt that the thinking of the original authors of this text went much further than the immediate case before them and its post-bellum settlement.
Nonetheless, the language is generally applicable, and the Supreme Court of Colorado, late last year, upon a finding that Trump had in fact participated in an insurrection after having taken such an oath, ordered the Colorado secretary of state both to exclude Trump from the Republican primary ballot in the State and to disregard any write-in votes that Colorado voters might cast for him.
The people involved in pressing this idea were very bright and they were right to press it. The federal constitution does in fact specify that the time, place, and manner of elections is to be left to the states. It was reasonable to expect that they could go their own separate ways on who they would allow on their ballot with regard to their electoral votes. Alas....
In Trump v. Anderson, issued in January, the Supreme Court held unanimously that "the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates." The above quoted constitutional language, then, appears to be of no effect until such time if any as there is Congressional action implementing it. The order of the Colorado state supreme court was reversed.
The unanimity of the Justices in this matter arose, I submit, from a natural wariness about creating or encouraging a patchwork quilt of state qualifications and disqualifications for ballot access. "Every state for itself" didn't sound like a plausible rule to any Justice, including the three appointed by a Democratic president.
The most remarkable fact about this decision is how brief was the time that passed between argument and decision. This proves (as did US v. Nixon fifty years ago) that SCOTUS can move quickly when it understands that it needs to. Anderson was argued on February 4th of this year and the decision was announced on March 4. It only took a month. Jack Smith might have hoped for such an expeditious treatment when he argued Trump v. US on April 26. That one took twice as long, and exactly as much time as the Court could have given it within this session.
Indeed, the Court issued another Jan. 6 related case before it got around to Trump v. US. The "other 1/06" case was Fischer v. US. Joseph W. Fischer was a participant in the Capitol Hill riot of that day, Body camera footage shows him, in the words of the majority opinion, "near a scrum between the crowd and police who were trying to eject trespassers from the building."
In count three of a seven count indictment, the government charged Fischer with violating 18 U. S. C. §1512(c)(2), by attempting to interfere with an official proceeding. Fischer moved to dismiss that count, arguing that the provision criminalizes only attempts to impair the availability or integrity of evidence.
The court broke down 6 to 3. When you hear those numbers, in a case as politically polarized as this, you likely think that six nominees of Republican Presidents were on one side and the three nominees of Democratic Presidents were on the other. And, given the political context, you presumably believe that the challenged amount against Fischer was eliminated. In this case, it is a little more complicated than that.
First, this count was not simply eliminated. The matter was remanded to the trial court to assess the sufficiency of Count Three of Fischer’s indictment in light of SCOTUS' new interpretation of 1512(c)(2). The prosecution may yet save it. I'm deliberately skipping over the specifics of that interpretation here -- but it seems that the Court wants the government to have to show that Fischer messed with evidence or documents. That may be possible. Certainly some members of the crowd were aware that there were phony documents empowering certain phony electors to cast phony votes for Trump, despite their state's contrary instructions.
Second, the breakdown was not what you might expect, either. Amy Coney Barrett, the nominee that Trump pushed through late in his term, was on the 'Democratic' side of this split. Ketanji Brown Jackson, a Biden nominee, was on the 'Republican' side. Was that just some odd 'trading places' thing, like an Eddie Murphy movie?
No: it occurred because there is real ambiguity in the statute.
Why the Supreme Court ruled in favor of over 300 January 6 insurrectionists, in Fischer v. US - Vox
Also perhaps because Jackson is a former public defender. She may see a former client of hers in Mr Fischer.
The point, though, is that neither Fischer nor anyone else who matters was charged simply with the violation of this statute, and for many (perhaps) most of those who were charged with it, the prosecution may well be successful in saving its applicability by recasting its indictment as necessary. So ... much ado about little here. In the case against the former president with regard to January 6, the indictment already fits within the framework the Supreme Court's majority has created.
Now we get at last to the immunity case. The Court took its time and so, now, have we.
The Court ended up delivering a travesty. It broke down 6 to 3, or perhaps 5 to 1 to 3. The sixth justice in the majority, who wrote a concurrence that in important respects is a dissent, and the Justice I have according listed as the "1" in the middle, was Amy Coney Barrett. We'll come back to her.
The five, with the Chief Justice writing, gave only the barest whiff of lip service to the idea that POTUS is not "above the law". There are certain "core constitutional functions" for which, it appears, he literally and absolutely IS. Which are those functions and how easy it may be to have a Presidential act classified as one of them is left vague. There are other functions, "official" but not "core," for which Presidential actions have a merely "presumptive" immunity. And there are other "personal" acts a President may take, for which there is no immunity. The federal case against Trump for election interference has been shunted back to the district court in DC, which will have to decide into which of these categories various acts or alleged acts of defendant Trump fall.
All this is an exercise that seems designed to give a President monarchical status without quite calling it that, indeed while denying that it is doing what it is doing.
As a simply logical point, the whole personal/official dichotomy is misguided. It is precisely when a President is ACTING as President that he is most dangerous and it is there that the deterrent value of the criminal law is of most value.
The decision also involves evidential exclusions added on the the immunities -- so that in the course of excluding much presidentially generated evidence it evidently overturns US v. Nixon without saying so.
The only positive I see in the God-awful majority opinion is that it could have been worse. Some of the Trumpet nonsense, about in particular how a former president can only be tried for crimes if he has been first impeached and the convicted in the US Senate, was explicitly rejected. That argument was so incoherent that rejecting it was a very low bar, being explicit in this rejection an only slightly higher bar.
Justice Jackson in her dissent, summarized the majority concisely, it advances a view that "undermines the constraints of the law as a deterrent for future Presidents who might otherwise abuse their power." Indeed. That is not a side effect. That is the point. The majority has overturned US v. Nixon, though it has not said no.
Yet I will give the Justice in the middle the last word, simply because it is heartening news that Justice Coney Barrett seems to breaking her way free from the Trump/Bush bloc.
Barrett thinks it is clear that a least some of Trump's alleged behavior in the matters now in dispute in the federal criminal case is NOT immune. She has in mind here especially his request that the Speaker of the Arizona House of Representatives call a special session about election fraud claims.
“The President,” she says, “has no authority over state legislatures or their leadership, so it is hard to see how prosecuting him for crimes committed when dealing with the Arizona House Speaker would unconstitutionally intrude on executive power.”
In that respect and in others, Barrett's opinion labelled a "concurrence" is also a dissent. She might join dissenters more broadly in sessions to come. If Trump is in a position to make the next Supreme Court or two, one shudders to think of the context for those.
Tomorrow ... abortion.
Christopher, you omitted perhaps the most important aspect of Trump v. Anderson, which is its absurd finding that federal legislation is the exclusive vehicle through which Section 3 can be enforced. The four women justices dissented from that aspect of the decision.
ReplyDeleteIt is absurd because Section 3 provides that Congress may, by a vote of two-thirds of each House, allow an insurrectionist to hold office. As the dissenters write, "It is hard to
understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or
declining to pass implementing legislation." The majority's finding, as the dissent shows, is baseless. The majority simply decided to rewrite the Constitution, as it subsequently did in Trump v. United States.
If the states cannot enforce Section 3, then how can it be enforced? The dissent suggested one way: "judicial enforcement of that provision, such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score."
This aspect of the majority's decision seems like dicta, which would mean that lower courts may ignore it, though the justices may overturn a lower court that does so. As the dissenters quoted, "If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more." Who are they quoting? Chief Justice Roberts. By quoting this, however, the dissenters seem to assume that the majority decided that federal legislation is required to enforce section 3, rather than merely opine that it is. Perhaps the dissenters recognized that it makes little practical difference.