In a unanimous panel opinion in United States v. Trump the United States Court of Appeals for the District of Columbia Circuit has handed an important victory to Special Counsel Jack Smith. Donald J. Trump is "citizen Trump" now and is not entitled to a President's immunity from prosecution. The Supreme Court denied Smith's motion for certiorari before judgment, forcing him to wait for the D.C. Circuit to act. Trump will now bring the issue to the Supreme Court, likely forcing Judge Chutkan to further delay the trial that is the country's most important case. The one that could save us from the revenge return Trump has threatened.
But Harvard's Jack Smith - former head of the Justice Department's elite Office of Legal Counsel has handed the Trump lawyers their next brief on a silver platter in an essay posted today on Lawfare. The issue presented is whether the Circuit court panel has incorrectly framed its argument. The nub of the issue is how to preserve Presidential prerogatives. The prevailing theory is a "clear statement" rule - a statute that could impinge on presidential prerogatives should be read narrowly unless its intent to do so is clear. Goldsmith summarizes the point this way, relying on a view expressed by Bill Clinton's Assistant Attorney General at the Office of Legal Counsel and Solicitor General, the late Walter Dellinger who wrote
“[G]eneral statutes must be read as not applying to the President if they do not expressly apply where application would arguably limit the President's constitutional role.” Dellinger added: “[S]tatutes that do not expressly apply to the President must be construed as not applying to the President if such application would involve a possible conflict with the President’s constitutional prerogatives”
The D.C. Circuit panel, says Goldsmith got this wrong, saying that as Smith argued "the application of the statutes in the Jan. 6 case, like the bribery statute, “raise[s] no separation-of-powers issues because the Constitution grants a president no power to engage in a criminal conspiracy to defeat a federal government function through deceit, corruptly obstruct a congressional proceeding, or violate others’ constitutional right to vote.”
But the D.C. Circuit panel got this backwards, says Goldsmith. The panel wrote
“[t]he separation of powers doctrine, as expounded in Marbury and its progeny, necessarily permits the Judiciary to oversee the federal criminal prosecution of a former President for his official acts because the fact of the prosecution means that the former President has allegedly acted in defiance of the Congress’s laws.” It added that “former President Trump's actions allegedly violated generally applicable criminal laws, meaning those acts were not properly within the scope of his lawful discretion.”
Goldsmith responds that
the court gets matters exactly backwards from the perspective of the plain statement rule. That rule holds that the generally applicable laws at issue here do not apply to the president if the statute “possibly conflicts” (as Dellinger put it) with the president’s constitutional prerogatives. By contending the opposite—that the president was not exercising lawful discretion because he allegedly violated generally applicable laws—the D.C. Circuit’s reasoning is in conflict with the plain statement rule.
I think I see the point - one must establish first that the acts are not taken in pursuit of the President's duties. But the President's duties are to faithfully execute the laws and to protect and defend the Constitution. Smith must show that Trump's acts were in bad faith- that they lacked support in facts and in law.
The prudence in jurisprudence directs judges - and citizens - to look to the consequences of their actions. In this case the consequence is delay in the prosecution of a trial that is of the highest importance - one that Trump seeks to delay beyond his return to power so that he can engage in the unprecedented act of pardoning himself while getting retribution on his foes.
The Supreme Court should stay out of this thicket, allow the case to go to trial, and review it then, if needed.
- GWC 2/7/2024
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