Lee Kovarsky
@lee_kovarsky
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Professor of Law, University of Texas. Habeas corpus, death penalty, some other law stuff, sentient space robots, kids who don't listen to me, and hot sauce.
Joined March 2020
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CHARGES DROPPED AGAINST ALL UT STUDENTS.
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This guy should be off the force before the morning.
@MiddleEastEye
Here’s
@EmoryUniversity
economics professor Caroline Fohlin knocked to the ground with her head on the concrete. Her glasses are thrown off. She shouts “I’m a professor”
#Gaza
#Protesters
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QUICK THOUGHTS ON TRUMP ARGUMENT TODAY
The basic positions were as follows: Trump wants official acts immunity against criminal prosecution, which is really broad, Special Counsel wants something narrower (or no immunity at all).
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READING JUSTICE ROBERTS IN THE IMMUNITY CASE
It's reasonably clear that EK, SS, ACB, and ACB are the most hostile to the Trump position in immunity. I've seen very different opinions about what CJR was up to today. Let's look at every moment he spoke substantively
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I think we’re looking at a skinny immunity in an ACB opinion joined by the libs + CJR. ACB is dialed into the timing issues – she asked about them in a not-hostile way! – but I suspect this is going back down with some procedural steps that are going to lengthen the timeline.
/e
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Here are some big-picture observations/predictions:
(1) On the legal question of whether the prosecution is finished, it seems quite clear that there are five votes to let this prosecution go forward – CJR, SS, EK, ACB, and KBJ.
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This times 1,000,000.
Justice Barrett is easily the best justice of the Trump trio.
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(2) Those same 5 seem unlikely to vote for the official-acts immunity – the broad immunity Trump wants.
(3) There do seem to be 5 that are going to vote for at least some kind of immunity – CJR, CT, SA, NG, and BK.
(Honestly ACB seemed hostile to the Trump position today.)
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It's possible that CJR shifts positions, of course, but I think the interpretation of this stuff is pretty clear and if it holds, he's a fifth vote for a skinny immunity that DJT won't meet - but that might involve procedures that further delay the trial.
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The Court seemed very much inclined to resolve not just the Question Presented (immunity), but a whole smorgasbord of questions about the potential criminal liability of a former POTUS (“FPOTUS”).
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From a substantive perspective, I’m not sure that it wasn’t a decent day for Special Counsel.
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(6) At least five justices seemed very skeptical of Trump’s attempts to characterize much of the conduct in the indictment as an official act, or otherwise within the scope of the immunity.
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Everyone was pretty much true to forecast, with the exception of BK, who was a little more hostile to Special Counsel than expected, and ACB, who was surprisingly (not to me TBH) unwilling to indulge the Trump theories.
In the end,
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(12) In the same vein as (11), Alito suggested that a good reason for immunity is so you avoid Presidents likely to pick AG’s who will staff OLC with attorneys likely to give POTUS favorable opinion letters that preclear unlawful conduct. Just wild, wild causal stories here.
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(7) Given that there are 5 that seem both to favor a skinny immunity & to be skeptical of Trump’s characterization of official acts, I’m not certain what a lot of additional process would do in the way of actually changing what conduct can form the basis of the prosecution.
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(4) Given (3), the Justices might want to send the case back down for some sort of initial determination about what conduct is immunized, creating further delay. I can't tell here.
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All in all, I’ve seen this reported as a bad day for Jack Smith. From a timing perspective, certainly – the timeline on the case just got longer, and the Court is going to be fractured and there will be a bunch of different opinions.
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(5) The degree of delay in (4) is in the particulars – especially whether the Court is going to indicate that there needs to be some sort of interlocutory review of Judge Chutkan’s immunity decision.
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(11) There were some truly wild moments, like the suggestion that there needs to be presidential immunity to spare the court from having to reach the question of self-pardons.
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(8) It seems like there might be enough Justices interested in reaching an issue blatantly outside the scope of the questions presented – under what circumstances that generally applicable criminal statutes apply to presidents, even in the absence of an immunity question.
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& that private conduct was fair game for prosecutors.
(10) Although (9) sucked a lot of airtime in arguments, I don’t think that BK has the votes for this framework. ACB seemed uninterested and CJR’s questions don’t make much sense if he were on board for this type of rule.
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But the Court would need to reach that question any ways because an outgoing POTUS could pardon private conduct too.
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(9) BK was the primary engineer of questions about (8), and he seemed to suggest that “core” presidential conduct couldn’t be criminalized, that official acts outside the core required a clear statement rule that a president was covered by the generally applicable statute,
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CJR clearly doesn't buy this, thinks that an official acts rule would preclude prosecution for something like this, which shouldn't be precluded.
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PAGES 6-8: Involves circulating hypo that official immunity would mean that a POTUS that took bribes for appointment/pardon would be immunized. DJT lawyers try to get out of this by saying that accepting bribe part wouldn't actually be immunized so hypo wouldn't happen.
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PAGES 32-33: CJR again returns to this question, again seemingly not buying the idea that official acts immunity is workable because you couldn't ever prosecute a bribes-for-appointments case. I think I misread this a little in real time, but understand it now.
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THAT'S IT FOR CJR! Still, it seems pretty clear to me that he came into argument simply not buying the official acts immunity,
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Indeed, in real time I read this as an oddly Trump-favorable comment in view of the prior exchange on PAGES 6-8, but now I see it's just the same point state differently.
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This tells me that he thinks either (1) there ought be a less tautological reason to reject immunity entirely or (more likely) (2) that there is at least some immunity and a court needs to get into which acts are immunized under what standard.
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but also interested in either a better reason to reject presidential immunity altogether or (more likely) clear immunity criteria - narrower than official acts immunity - against which to measure individual pieces of conduct in the indictment.
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They charged the professor with battery of a police officer for this shit. Please, knuckleheads who don’t know anything about policing or police force, keep telling me this is exactly as it should be.
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PAGES 74-76: Expresses concern that court below had a "tautological rule" that alleging a crime meant that there was no official act immunity, so it didn't get into what acts would be immunized.
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my timeline fucking sucks but this makes me happy every time i see it.
Margot Robbie realizing that her fan has a hearing problem and leaving her hand free to speak sign language
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FWIW I think there were moments with Dreeben where what seems to be the 5-justice majority here (ACB, CJR, KBJ, SS, ESK) was actually trying to figure out what a workable rule would look like. And relying on Dreeben and his extraordinary experience inside DOJ for help.
There’s a huge intellectual thrill in listening to well-delivered oral arguments but also worth noting that it’s largely performative and the justices don’t really change their minds
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You start to explain that “you are calling me Nazi but I’m Jewish and you are the one demanding state violence against an outgroup” and then you stop because you realize you are responding to a person who probably sticks crayons up their nose
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I'm proud to sign the linked OPEN LETTER to UT.
If we take seriously our responsibilities as a teachers of young people and we don't stand up for freedom of speech on campus - even speech with which we might disagree - what are we even doing.
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guys he had a giant sword.
Police at UCLA just PULLED GUNS OUT on an elderly protestor.
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@ChiCyph80
Sure, I don't think we're getting a verdict before election, folks gonna have to accept that.
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just finished an interview and apparently i missed prelogar - alito fireworks and NEED SUMMARY
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TAPS FUCKING SIGN
I'll be live tweeting presidential immunity tomorrow!
Prediction - we're going to be talking about an ACB as the median vote and annoyed at the Trump lawyers.
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FWIW Marty seems to have same bottom line as most non-alarmists. It seems unlikely the court adopts an immunity standard that would exclude much of anything in the indictment.
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ACB said she found special counsel's argument here was "compelling," very bad for Trump.
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have not made bed one single day since i left home at 18
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I'll be live tweeting presidential immunity tomorrow!
Prediction - we're going to be talking about an ACB as the median vote and annoyed at the Trump lawyers.
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CJR sounding skeptical of how well prosecutor norms work and BOY DO I HAVE QUESTIONS ABOUT WHY WE ARE HEARING THAT IN THIS CASE AND NOT OTHERS. For another day.
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It's been fun having a lotsa people run their nazi-accusation subroutines on me during passover, but I'm going to cleanse my timeline.
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@carl_claws
Oh I wasn’t demanding an answer see, that wasn’t literal. I was just making fun of an anonymous Twitter troll.
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@peyman_razaghi
That feels like an interesting thing to say, but it's actually not his job and his PD leadership is cringing right now.
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SA wants to know if a president can pardon himself. SA says that Court needs to know self-pardon answer to decide this case because now every president will self-pardon. I'm sorry this is wild.
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Quick observation while Alito does this with Dreeben - the Court is highly fractured here. There don't seem to be 5 for the broadest version of official acts immunity, but there do seem to be 5 for at least some lesser immunity.
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Dreeben underscoring that there's not even a core function over the horizon here, because there is no role for POTUS in certifying presidential election winners, likely for obvious reasons.
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I don't actually want to be a part of this story; was just trying to offer some thoughts on why faculty might resist student punishment even if they disagree with student conduct.
Gonna go back to course planning my issue preclusion unit.
/e
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Sauer giving answers here that aren't seeming to convince ACB. Sauer just stepped in it tho - seems not to understand ACB question here. Question is that if FPOTUS can be prosecuted after impeachment/senate conviction, how can you then say he has immunity.
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Quick layperson note - there are two separate things to watch: (1) how broad is the immunity, and (2) how would it apply to DJT's case. Trump needs to hit home runs on both, and at least CJR seems to not even be buying the broader immunity argument.
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NG says maybe we want immunity so that there doesn't need to be incentives to self pardon and COURT "thankfully" hasn't had to decide that issue.
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(1) amazing teacher, richly deserved, and she leaves it all on the field for the students;
(2) super annoyed when i have to share 1Ls with Tara, it depresses my student eval scores in comparison.
So deeply honored to be selected as “Professor of the Year” by the students at Texas Law. This is truly humbling. Many thanks to all the wonderful students
@UTexasLaw
!!
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The awesome thing about occupying this intellectual-identity space at the moment is that on any given day one group of people will scream and email you that you genocider and another will do same but substitute nazi/kapo.
I’m a scholar of the Israeli-Palestinian conflict and a longtime advocate for peace and for Palestinian rights. I have publicly opposed Israel’s occupation of the West Bank, and its blockade and now destruction of Gaza. I support the rights of students and faculty to peacefully
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KAFKAESQUE
Trump says he has difficulty sitting for long periods of time and staying awake: “I'm here in a courtroom, sitting here... Sitting up as straight as I can all day long. It’s a very unfair situation”
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CJR does not seem to be buying the idea that you can Sauer can get out of the hypothetical (bribed pardon/appointment) simply by saying that accepting bribe isn't an official act. (This is bad for Trump.)
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Sam Alito asks whether you really need robust criminal prosecution immunity (official acts) to do the Presidency the right way. From anyone else this would read as a hostile question.
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KBJ now confirming that we only care about public/private distinction if official acts immunity applies. Sauer agrees. Wants to know more abstractly though why POTUS shouldn't be required to follow law when do even official acts. He has best lawyers in the world.
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CT asking why there were no prosecutions when presidents participated in coups (Mongoose). Dreeben says there were no prosecutions in those cases because there were no crimes.
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This exchange says clearly to me that CJR is going to recognize SOME immunity, although I can say that it also seems to be that it's going to be a narrow immunity. More confident about first part than second.
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So, says Dreeben, how can there be serious constitutional question when FPOTUS used fraud to accomplish those things.
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SA thinks there's going to be a destabilizing cycle where election losers get thrown in jail.
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& if there's lesser immunity, then there's the next logical question of how that's litigated - where it goes, etc. I don't get the sense that ACB & CJR are going to force down the accelerator, even if they seem inclined against a broad immunity that reaches much of anything here.
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ACB now asking about Impeachment Judgment Clause argument. If IJC argument is right - impeachment & convinction is necessary before prosecution - doesn't that effectively immunize every single official who could be impeached. (Incl. Justices themselves!)
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DID SOMEONE SAY OIL SPILL
Professor Shugerman had a piece yesterday explaining the ways in which the Alvin Bragg case against Trump is quite thin gruel and a very bad idea, calling it an embarrassment and a mistake. Kudos to him.
I believe Shugerman has said he has never voted for a Republican. That
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Sauer says that if you declare official acts immunity as something that exists, then there needs to be lots of subsequent proceedings. (Trump wants this because of delay.)
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CT asks Dreeben whether there is no presidential immunity. Dreeben says indeed that there is no presidential immunity, but fallback is that there's an immunity for core constitutional functions (this is the skinny immunity for which I've been advocating).
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KBJ says that absence of presidential immunity isn't some doctrinal innovation that might loose a slippery slope, but that it's been the status quo forever.
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@iputadollarin
yeah i get that he prob didnt intend to use it and golly i'm pretty far left on police violence issues but from officers' perspective HE HAD A GIANT SWORD
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SA now marching through assertions that there are checks against abusive DOJ prosecutions - now up, grand juries.
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DREEBEN UP FOR SPECIAL COUNSEL
(PS, I have to go teach criminal procedure in 45 mins, so this will end at that time.)
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Quick aside - we still don't have comments from BK and ACB, who IMHO are the most important to hear from. The NG and SA questions, though, aren't great for Trump.
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SS is definitely angling at a standard that there's no immunity for even official acts done for personal gain. Sauer answers that the doctrine says that all official acts are immunized, whatever the motive alleged.
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Thomas question - wants to know source of immunity, Sauer says it's in the Vesting Clause of Section 2. Then segues into language from Marbury v. Madison about how courts can't review presidential activity.
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Dreeben and CJR disagreeing over this language in DC Circuit opinion, which is a little weird because both also seem to understand that it's pretty inessential to resolution of this case. CJR is concerned that you need to get into which acts get immunity.
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Dreeben's position is that (1) you can't criminalize core constitutional functions; (2) if something is near the core you need to use avoidance rules; (3) stuff away from the core is subject to criminal law.
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SS asks whether you can immunize official acts done for personal gain - this distinguishes Trump's case from arguments about Obama, Bush, Biden, etc.
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Now we are on an EK hypo about ordering generals to stage coup. EK just got Sauer to admit that his answer that yes, there's immunity for that, sounds terrible.
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Sauer (Trump's lawyer) is up giving opening statement now. Opening statement goes straight into parade of horribles - charging Biden for border policies, Obama for Anwar al-Awlaki, Bush for Iraq, etc.
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EK notes that there was no immunity in constitution for president, that founders knew how to do that because it was in state constitutions and that founders not doing that makes sense because rebelling against tyrannical monarch.
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Sam Alito says that there's a difference between avoidance protections versus immunity protections because a trial would mean that FPOTUS would have to endure the indignity of trial. (My word, not SA's, who says "FPOTUS wouldn't get to do other things.")
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SA now saying that we can't totally trust DOJ not to undertake improper prosecutions, which is obviously a stepping stone to the argument that you need immunity to stop bad faith actors in the future.
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CJR now asks whether the fact of prosecution means that the acts aren't official (this was lower court position). CJR says (properly IMHO) that this is problematic part of the lower court opinion.
Dreeben is trying to defend it though.
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KBJ asking whether doing something unlawful for personal gain can be an official act. KBJ, like SS, favorably invokes CT question about provenance of any presidential immunity.
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SA asks Dreeben to just admit that the President has uniquely important things to make decisions about and therefore needs unique protections.
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may it please the court:
my client asserts as ground 1 for habeas relief the denial of his constitutional right to a cold one on the back nine.
KAFKAESQUE
Watters claims ‘they’ are draining Trump’s brain by having him sit all day: You’re going to take a man who’s usually golfing and you’re going to sit him in a chair in freezing temperatures
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I can't tell if all Justices are very interested in this clear statement issue or if they've just been dragged this way over the course of the argument. Only BK had any interest in this in the first vollies of questioning.
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Sauer responding (my words here) that POTUS is just fundamentally different than others who also exercise life-or-death discretion. Sauer also says that structural checks POTUS even if POTUS is immune as FPOTUS.
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Dreeben running through all the institutional checks on the president being prosecuted in this case, NG seems unimpressed.
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Sauer quotes back Ben Franklin from constitutional convention. Plus everyone thought that presidents couldn't be prosecuted based on subsequent precedent.
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BK seems like he is clearly going to buy the new argument that you can't criminalize presidential conduct without clear statement rule. Seems unclear whether this attempt to slice the world into a world of private conduct (everything) and official acts (clear statement only).
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