Serious Trouble
Serious Trouble
Donald Trump Wins The Immunity Idol

Donald Trump Wins The Immunity Idol

A sweeping SCOTUS ruling makes it functionally impossible to prosecute Trump; lower courts will spend years sorting out how to apply the convoluted ruling; the court constrains regulatory agencies

Dear listeners,

Hi, it’s Ken. Remember when most people thought that the Supreme Court would find a way to help Donald Trump without making crazy new law?

Well. About that.

On this week’s Serious Trouble, I explain why the Supreme Court’s decision on Donald Trump's appeal in the January 6 prosecution is the worst of all possible worlds: it doesn’t resolve anything, it remands the case to the lower courts for extensive litigation on immunity issues, it doesn’t give clear guidance on how to resolve those issues, and raises barriers to prosecuting a former president for crimes that, practically speaking, are insurmountable.

Josh is skeptical, but I’m convinced: the Court’s gesture toward possibly allowing some prosecutions in the future is illusory. The undefined and seemingly open-ended category of “core functions” that enjoy absolute immunity; the broad and ill-defined category of “official acts” that enjoy at lest a presumption of immunity and possibly full immunity; the prohibition on considering motive behind official acts; and the prohibition on using official acts as evidence of intent or knowledge — they all combine to mean that the next president (which very well may be Donald Trump) can break criminal laws at will. With the current Congress, impeachment is almost certainly impossible, and now criminal consequences are off the table. So, great.

Josh and I discuss how this snarls all of the criminal cases against Trump — even those that are mostly about events that occurred before or after his presidency — ensuring years more of litigation before trial and, quite possibly, requiring the overturning of his New York conviction, which he has already demanded.

In other news, the Supreme Court’s clarification and narrowing of the “obstructing official proceedings” statute may not have a big impact. The Justice Department reports that there are no January 6 defendants convicted on that theory alone, and Trump’s prosecution relies on a theory that fits within the narrowed statute — not that it matters much in light of the immunity decision.

Meanwhile, in Florida, Judge Cannon has delivered Trump a mixed result on some of his motions, rejecting his argument that the Mar-a-Lago search warrant was premised on false statements but allowing hearings on his arguments that the warrant wasn’t sufficiently specific and that prior courts incorrectly applied the crime-fraud exception to the attorney-client privilege in his case.

Finally, we’re not an administrative law podcast. Or are we? People pursued by administrative agencies are in Serious Trouble, are they not? With that in mind, Josh and I explore the meaning of two important administrative cases you may have heard of.

First, the Court struck down so-called “Chevron Deference,” meaning that it won’t defer to regulatory agencies’ interpretation of their own power when Congress is vague in defining it. I argue that the existence of the doctrine reflects political disfunction — it’s not that Congress is intellectually incapable of being clear, it’s that they’re politically unable to pass clear laws. Second, the Supreme Court said that if the SEC wants to accuse you of securities fraud and take your money, they have to give you a jury trial under the Seventh Amendment. This is right, and I’m alarmed if you think it’s wrong.

Check it out! The start of the episode, where I explain just how bad the Trump decision is, is free; the rest, including our exploration of how it’s going to affect the various specific Trump cases, is paywalled. Subscribe to get the whole episode, future premium episodes, and to participate in our discussion forum.



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Serious Trouble
Serious Trouble
An irreverent podcast about the law from Josh Barro and Ken White.
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Ken White