What’s Going On in Footnote 3? | A narrow path to convict Trump? Lawfare

What’s Going On in Footnote 3? | Lawfare

 

By Anna Bower and Benjamin Wittes//Lawfare Tuesday, July 23, 2024

In retrospect, the most consequential part of the oral argument in Trump v. United States—or “the presidential immunity case”—took place early in what became a marathon hearing. Chief Justice John Roberts posed what seemed like a skeptical hypothetical to Donald Trump’s lawyer, a man named D. John Sauer.

“Well, what if you have—let’s say the official act is appointing ambassadors, and the president appoints a particular individual to a country, but it’s in exchange for a bribe. Somebody says, I’ll give you a million dollars if I’m made the ambassador to whatever. How do you analyze that?”

Sauer argued in response that bribery is not an official act, so there would be no immunity in that case, but the chief justice wasn’t quite ready to let go of his question. “Accepting a bribe isn’t an official act,” he agreed, “but appointing an ambassador is certainly within the official responsibilities of the president. So how ... does your official acts ... boundary come into play?”

Analogizing the question to cases under the Speech and Debate Clause, which immunizes legislators for official legislative acts, Sauer responded that “the indictment has to be expunged of all the immune official acts, so there has to be a determination what’s official [and] what’s not official.”

Roberts, quite understandably, found this unsatisfying: “Well, you expunge the official. You say, okay, we’re prosecuting you because you accepted a million dollars. They’re supposed to ... not say what it’s for because the what-it’s-for part is within the president’s official duties?”

Sauer, like a good appellate advocate, skated over Roberts’s question, saying that “[t]here has to be, we would say, an independent source of evidence for that.” And then he whisked the conversation onto safer ground, talking about how the Jan. 6 indictment strikes at the “heartland of presidential power.”

The issue of whether official acts immunity would prevent prosecution of a former president for bribery by preventing inquiry into the official act he committed in exchange for the thing of value comes up several more times at oral argument. And it comes up in the court’s opinion too—although this time with a bit of a role reversal. In the opinion, it’s Justice Amy Coney Barrett who objects that the court’s ruling would preclude a bribery prosecution, and it’s Chief Justice Roberts—having adopted the role of Sauer—who cryptically suggests that prosecutors might use some extrinsic piece of evidence of an official presidential act and then hastily moves on to another subject.

The matter is important in both doctrinal and practical terms. In doctrinal terms, the exchange between Barrett and Roberts reveals one of the weakest aspects of the majority’s opinion—one that Roberts appears to understand, given that he probed Sauer on exactly the same point at oral argument. In practical terms, the matter is important because it might—and we must stress might—open up a loophole in the Court’s opinion that Special Counsel Jack Smith could exploit on remand to one degree or another.