The Constitution abides.

February 7, 2024

Perspective.

On a day of multiple major developments in the courts and Congress, stepping back to gain perspective is warranted. Despite a half-dozen stories that suggest Trump is moving inexorably toward accountability as the Republican Party dissolves before our eyes, nothing has changed.

Our task remains the same: We must defeat Trump at the ballot box—and all his MAGA collaborators up and down the ballot. No one is coming to save us, but that’s okay. We are more than up to the task—a fact we proved in 2018, 2020, 2022, and 2023.

Some of today’s developments will have enduring significance and deserve to be celebrated. But our struggle to preserve democracy is generational; we cannot tarry (or be distracted) over developments that may not immediately impact our short-term goals.

Yet, there were harbingers of hope in some of today’s developments, especially the unanimous decision in the DC Circuit Court of Appeals holding that presidents are not free-floating, preternatural entities immune from the constitutional provisions that create and limit their authority. It should not be news that a three-judge court affirmed such an obvious proposition—but it is. And we should be grateful that the Constitution abides.

To help us sort through a busy news day, here is an outline of the stories I address below:

Judicial decisions / actions

• DC Circuit rules that presidents do not have immunity from criminal prosecution after they leave office.

• Judge Aileen Cannon issues an order that denies Jack Smith’s request to keep sensitive intelligence information secret.

• Judge Engoron asks lawyers in the New York civil fraud case to comment on reports that Trump Organization CFO Allen Weisselberg will plead guilty to perjury for testimony given in the civil fraud trial.

Congressional actions

• Immigration bill and Ukraine / Israel aid bill dies in Senate.

• Standalone bill for aid to Israel fails in House after failing to secure 2/3 majority

• Mayorkas impeachment effort fails in House (by one vote).

• GOP Reps. Matt Gaetz and Marjorie Taylor Greene introduce resolution to declare that Trump did not engage in insurrection.

---

DC Circuit panel affirms that presidents do not enjoy immunity from prosecution

What happened?

A three-judge panel of the DC Circuit Court of Appeals issued an 87-page tour-de-force disposing of Trump's claims of presidential immunity. The opinion is here: US v. Trump | No. 23-3228. It was worth the wait.

The opinion is historically significant, dealing with an issue of first impression: Whether presidents are immune from prosecution and from oversight by Congress and the courts. If you can, try to read the gist of the opinion, which begins at page 18. But in case you don’t read the original, I provide important excerpts below.

What happens next?

Before turning to the opinion, it is important to note that the DC Circuit also issued a one-page “Judgment” that controls how and when Judge Chutkan can resume Donald Trump's trial. In sum, the DC Circuit gave Trump six days to file a notice that he will ask the Supreme Court for a stay of the DC Circuit’s ruling. If Trump seeks a stay from the Supreme Court, the DC Circuit’s judgment will be stayed until the Supreme Court rules on Trump's application for a stay; otherwise, Judge Chutkan is free to resume trial proceedings.

The Supreme Court should deny an application for a stay and should deny an appeal by Trump (a petition for certiorari). If the Supreme Court denies a stay and review, Judge Chutkan will hold a trial before the 2024 election. Any effort by the Supreme Court to review the DC Circuit’s ruling will likely delay a trial until after the election. See Ian Millhiser in Vox, The Supreme Court is about to decide whether to sabotage Trump’s criminal trial in DC.

The DC Circuit’s opinion.

The opinion of the DC Circuit is well-written and historic. Among the many passages that will be cited by future historians are the following:

In the statement of facts, the DC Circuit rejects Trump's insistent characterization that he is “the President.” Instead, the panel says that Trump is a “citizen.” The panel writes:

For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.

Trump argued that under Marbury v. Madison, the discretionary decisions of the president are unreviewable. The DC Circuit ruled that when the president’s actions are constrained by statute or the Constitution, the courts can review those actions:

Here, former President Trump’s actions allegedly violated generally applicable criminal laws, meaning those acts were not properly within the scope of his lawful discretion; accordingly, Marbury and its progeny provide him no structural immunity from the charges in the Indictment.

Trump argues that the prospect of post-presidency liability to criminal prosecution will inhibit the president from acting to the full extent of his powers. The court rejects that argument:

President Trump concedes that criminal prosecution of a former President is expressly authorized by the Impeachment Judgment Clause after impeachment and conviction.” In other words, the president is already subject to post-tenure prosecution for criminal conduct.

And during President Trump’s 2021 impeachment proceedings for incitement of insurrection, his counsel argued that instead of post-Presidency impeachment, the appropriate vehicle for “investigation, prosecution, and punishment” is “the article III courts,” as “[w]e have a judicial process” and “an investigative process . . . to which no former officeholder is immune.”

The DC Circuit considers Trump's argument that the “policy considerations rooted in the structure of our government” immunize former presidents from federal criminal prosecution. The DC Circuit rejects that argument as follows:

There is also a profound Article II interest in the enforcement of federal criminal laws. The President has a constitutionally mandated duty to “take Care that the Laws be faithfully executed.” U.S. CONST. art. II, § 3. As part of this duty, the President is responsible for investigating and prosecuting criminal violations.

It would be a striking paradox if the President, who alone is vested with the constitutional duty to “take Care that the Laws be faithfully executed,” were the sole officer capable of defying those laws with impunity.

The DC Circuit summarizes its rejection of Trump's executive immunity claims as follows:

At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches. Presidential immunity against federal indictment would mean that, as to the President, the Congress could not legislate, the Executive could not prosecute, and the Judiciary could not review.

We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter. Careful evaluation of these concerns leads us to conclude that there is no functional justification for immunizing former Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment. In so holding, we act, “not in derogation of the separation of powers, but to maintain their proper balance.”

Finally, the DC Circuit rejected out-of-hand Trump's claim that he is immune from prosecution because of “double jeopardy principles” embedded in the Impeachment Judgment Clause:

[U]nder the best reading of the Impeachment Judgment Clause, a former President may be criminally prosecuted in federal court, without any requirement that he first be impeached and convicted for the same conduct.

The Constitution prevailed over Donald Trump today. It will outlast him and impose judgment on him. It will take time, but the Constitution will abide.

---

Judge Aileen Cannon issues an order that denies Jack Smith’s request to keep sensitive information regarding witnesses and investigations confidential

In a little-noticed development, Judge Aileen Cannon issued an order rejecting standard requests by Jack Smith to maintain the confidentiality of information relating to ongoing FBI investigations, uncharged conduct of other potential defendants, and identifying information about witnesses. The order is here: US v. Trump | No. 23-80101.

The order is an outrage. For example, Jack Smith sought to protect the identity and personal information of witnesses to prevent intimidation. It is universally known that every judge, clerk, witness, and juror who touches a Trump case is subject to death threats. And yet, Judge Cannon pretends to be ignorant of the threats to witnesses in Trump cases. She writes:

Although substantiated witness safety and intimidation concerns can form a valid basis for overriding the strong presumption in favor of public access, the Special Counsel’s sparse and undifferentiated Response fails to provide the Court with the necessary factual basis to justify sealing.

Similarly, Judge Cannon rejected Jack Smith’s request to protect the code name of an undisclosed FBI investigation. She criticizes Jack Smith for failing to provide specific information that would compromise an ongoing confidential investigation! Cannon writes,

[T]he Special Counsel fails to identify the information at issue, provide any explanation about the nature of the investigation, or explain how disclosure of the code name would prejudice or jeopardize the integrity of the separate investigation (assuming it remains ongoing).

There is more, but you get the point.  It is time for Jack Smith to move to disqualify Judge Cannon. She is manifestly biased and incompetent to handle a national security matter.

---

Judge Engoron asks lawyers for information about Allen Weisselberg.

Judge Engoron is presiding over the New York civil fraud trial against Trump and is currently preparing the final judgment against Trump. Last week, the NYTimes reported that prosecutors were working out a plea deal with Trump Org CFO Allen Weisselberg for giving perjured testimony before Judge Engoron.

On Monday, Judge Engoron wrote to the lawyers in the civil fraud trial and asked them to provide Engoron with any information known to them about the potential plea deal. Engoron’s letter explains the reason for his inquiry as follows:

As the presiding magistrate, the trier of fact, and the judge of credibility, I of course want to know whether Mr. Weisselberg is now changing his tune, and whether he is admitting he lied under oath in my courtroom at this trial. Although the Times article focuses on the size of the Trump Tower Penthouse, his testimony on other topics could also be called into question. I also may use this as a basis to invoke falsus in uno.

Engoron’s letter suggests that he is contemplating rejecting all of Weisselberg’s testimony if it turns out that Weisselberg lied in some of his testimony. If that happens, much of the testimony offered in Trump's defense will evaporate. That would be very bad for Trump.

---

Senate Republicans kill immigration and Ukraine / Israel aid bill.

In a predictable and inevitable surrender to Trump, Senate Republicans admitted that the immigration bill is dead. One of the chief negotiators, Republican Senator Lankford, said that he would support a filibuster of a bill he helped to draft.

President Biden gave a speech at the White House to emphasize that Republicans were walking away from a bill that would achieve significant improvements to the immigration system, including:

• 1500 additional border agents.

• 4300 new asylum officers

• 100 new immigration judges

• 100 new machines to detect and prevent fentanyl from coming into America.

• Cutting asylum processing time from 5-7 years down to just 6 months.

• The expedition of work permits for families coming here for business.

• Increase in legal immigration visas.

• Emergency authority for the President to shut down the border.

---

House fails to pass stand-alone bill for aid to Israel.

As House Republicans preemptively announced their opposition to the Senate immigration/aid bill, they tried to rush through a stand-alone Israel aid bill on a “consent calendar”—which requires a 2/3 vote for passage. That vote failed. See The Guardian, Republicans’ standalone Israel aid bill fails in House vote | House of Representatives.

The stand-alone bill was opposed by 13 Republicans and 167 Democrats. Republicans opposed the bill because it did not contain spending cuts. Per the Guardian,

But 167 Democrats voted no after Biden had threatened to wield his veto, angered that the legislation appeared aimed at undermining the larger package, hammered out after months of negotiations with a bipartisan group of senators.

The situation is a mess, to say the least. There is overwhelming support for providing supplemental funding to Israel, but Mike Johnson’s inept handling of the larger immigration bill and the surprise vote on the stand-alone aid package led to its defeat. The GOP caucus and its leadership in the House are in chaos—a consequence of their surrender to Donald Trump.

---

House Republicans fall short in vote to impeach Homeland Secretary Mayorkas

In what may be a temporary setback, House Republicans failed to pass an impeachment resolution against Homeland Secretary Alejandro Mayorkas. The vote failed after three Republicans voted “No” and Democratic Rep. Al Green of Texas was wheeled in on a wheelchair at the last moment to cast the deciding vote. See CNN, House vote to impeach Mayorkas fails in stunning defeat for Republican leaders.

Democrats outmaneuvered Republicans by being able to count votes—a skill that Mike Johnson has not yet learned. Johnson was harshly criticized by his caucus for the embarrassing defeat:

House Republicans openly criticized their own leadership for not knowing the vote would fail ahead of time and not being prepared for the fiasco that played out.

“We need to know exactly where we are and we need to be careful not to get out ahead of our skis and put something on the floor that we don’t have certainty on,” said GOP Rep. Steve Womack of Arkansas.

“We behave sometimes like we’re in the minority,” he added.

“I would have thought that would have been basic,” GOP Rep. Ralph Norman said of the whip count heading into the vote. “They’re good on the other side of knowing that … Is it that hard?”

It is likely that Republicans will hold a second vote to impeach Secretary Mayorkas—which might pass. But for the moment, the defeat is another sign of the disintegration of the Republican Party under Trump.

---

House Republicans introduce resolution to declare Trump did not engage in insurrection.

In a ham-fisted effort to influence the Supreme Court’s consideration of Trump's disqualification by Colorado (and as a political stunt), Reps. Matt Gaetz, Elise Stefanik, and Marjorie Taylor Greene held a press conference to announce a resolution to declare that Trump did not engage in insurrection. See The Hill, Gaetz, Stefanik offer resolution declaring Trump ‘did not engage in insurrection’.

The resolution is meaningless. Even if it passes, a resolution by the House, standing alone, does not represent action by Congress. Moreover, the resolution will put additional pressure on vulnerable Republicans in districts won by Joe Biden in 2020 and will result in 212 votes (at least) against the resolution—a strong showing that many members of Congress believe Trump did engage in insurrection.

Speaker Mike Johnson has lost complete control of his caucus, which is now engaging in clownish and anti-democratic performance art.

---

Concluding Thoughts.

At the end of last week, Steve Kornacki took his “Trump is leading the horse race” show on a tour of MSNBC and NBC programs, leading to a new round of anxiety among Democrats. The truth is that polling shows a competitive race—with variability in polls depending on their quality. As Simon Rosenberg explained on Tuesday,

There are now four polls released in the last week showing Biden making meaningful gains [and] 3 have him leading.

In other words, the race is competitive and focusing on a single poll or date is misleading. But hey, doing so sells soap and drives clicks, so major media outlets will continue to emphasize bad news.

Speaking of good news, Joe Biden won the Democratic primary in Nevada with about 90% of the vote (85,569) with 75% of the votes counted. In the Republican primary, Trump wasn’t on the ballot, so GOP voters selected “none of the above” to show their support for Trump—somewhat similar to Joe Biden’s write-in campaign in New Hampshire.

Trump/“None of the above” garnered only 61% of the vote (32,666), with 71% of the votes counted. Nikki Haley won 31% of the vote (16,780 votes).

While the GOP primary is a hot mess (because there will also be a GOP party caucus), a reasonable interpretation of the results is that Biden has stronger support among Democrats than Trump has among Republicans—as shown in actual results of voting in the Nevada primaries.

The situation is (and will remain) fluid. The likelihood of a Trump criminal trial before the election increased significantly with the DC Circuit’s ruling today. While a conviction won’t disqualify Trump, keeping the insurrection front-of-mind for independents and disaffected Republicans is a good result. We can’t rely on Republicans to defeat themselves, but we should recognize that Trump is facing unique obstacles that Democrats can convert to their advantage.

So, at the end of a very busy news day, the takeaway is that we have every reason to be hopeful but no reason to be complacent.

Talk to you tomorrow!