OYEZ TWO: Can The President Shoot A Dude? Liveblogging SCOTUS On Presidential Immunity!
Did you have a fun morning listening to the Trump administration try to argue that congressional authority is NOT A THING? Ready to watch them make an even dumber argument about state powers?
This one goes all the way back to the campaign, when Michael Cohen fronted $130,000 to keep Stormy Daniels quiet about bumping bits with the president's mini Mario Kart at a golf tournament in 2016. Cohen was eventually paid back through a "retainer agreement" through the Trump Organization. You can see President Horndog's EKG signature on one of the checks, which was "grossed up" to cover Cohen's tax liability.
Cohen eventually pled guilty to making an illegal campaign contribution, and now the state of New York has questions about how the Trump Organization, Deej 'n' Eric wound up laundering that cash. Did they perhaps violate accounting regulations to hide a crime? Did they illegally deduct the payments as a business expense?
The answer is YOU AREN'T EVEN ALLOWED TO ASK, obviously! Well, at least according to Trump and his merry band of hooligans, who argued with a straight face that Trump can literally shoot someone in the middle of Fifth Avenue, and law enforcement cannot even investigate it while he's in office. They even got the Justice Department to dummy up a brief saying UH HUH, THE PRESIDENT IS TOO ABOVE THE LAW.
Actually, it's even crazier than that. Their contention is that no one even remotely associated with the president can be investigated while he's in office, because it might touch on him some way, which is UNLEGAL.
It's so, so damn stupid. Like, orders of magnitude dumber than the Mazars and Deutsche Bank cases. Trump lost at trial, lost on appeal, and is throwing a Hail Mary pass hoping that SCOTUS will bail him out and tell Manhattan District Attorney Cyrus Vance to get fucked. Not gonna happen.
Let's liveblog it! Listen HERE.
11:41 Oh, Lord. Now we have to listen to fucking Jay Sekulow yelling? What have we done to offend the universe?
"Temporary presidential immunity" is required or all the local state's attorneys will harass the president. Blahblahblah. Cyrus Vance is IN CAHOOTS with the House Democrats.
11:44 Chief Justice Roberts: But if a grand jury can investigate, why can't it subpoena?
Sekulow: Supremacy Clause!
Roberts: Doesn't your theory lead to grand juries investigating the president being UNLEGAL, too?
Sekulow: Well, sure, now that you mention it!
Roberts: But we let Bill Clinton be deposed in the Paula Jones case.
Sekulow: But that was in a federal court, not a state court.
11:47 Justice Thomas: Just give me something. Find me some bullshit from the Federalist papers. Something — I want to help you, man.
Sekulow: Colloquy between Jefferson and Adams?
11:49 Justice Ginsburg: Are you really going to come up here and tell us the president is above the law?
Sekulow: I am! "The president is not to be treated as an ordinary citizen!"
11:51 Justice Breyer: Why can't Trump just argue that the subpoenas are unduly burdensome like everyone else in America?
Sekulow: President is far too busy tweeting to make legal arguments. How can you force the president to defend himself?
Breyer: He's not here today, is he? He'd hire a lawyer like you.
11:53 OMG, Sekulow just argued that he couldn't talk to Trump today because he is so busy defeating pandemic with his manly hands and bigly brain. LOL, forever!
11:55 Justice Alito: Come on, how could Paula Jones be allowed sue civilly in federal court, but the Manhattan District Attorney can't criminally investigate?
Sekulow: SUPREMACY CLAUSE!
11:56 Justice Sotomayor: The president can't tell state courts how to execute justice, but he can order them not to investigate himself? Really?
Sekulow: State prosecutors are all presidential harrassers! The president is king!
Sotomayor: Immunity is only for official immunity, but you want criminal immunity for non-official acts?
Sekulow: THERE IS ONLY ONE PRESIDENT.
12:00 Justice Kagan: Are you really going to come up here and say the president is above the law? For serious?
Sekulow: I am. Cyrus Vance is cahootsing with Adam Schiff. Presidential harassment!
12:02 Justice Gorsuch: Can you maybe take it down a notch and give me some pretext to differentiate this from Clinton v. Jones?
Sekulow: No. But I can invoke the specter of infinity subpoenas raining down on the president and interrupting his TV time?
Gorsuch: Please just give me something?
Sekulow: No, but I can yell the same thing louder.
12:04 Justice Kavanaugh: What Gorsuch said. Please make some kind of hairline distinction between Clinton v. Jones and Trump's business laundering the hush money payment.
Sekulow: Ummmm .... criminal cases are very scary and burdensome?
Kavanaugh: You're leaning pretty hard on Justice Breyer's concurrence in Clinton v. Jones, not the main opinion.
Sekulow: Cyrus Vance is BAD!
Kavanaugh: But the statute of limitations is going to run if we let you stop the clock here.
Sekulow: What a shame.
12:07 Next up is Solicitor General Noel Francisco, a REAL lawyer to argue that Vance has to pass a "special needs test." Your tax dollars are paying this guy. Yay!
Roberts: Looks like you're taking a less extreme position than that loon Sekulow.
Francisco: Well, we'll defend that shit if we have to. But we'd prefer you to adopt the "special needs" test from Nixon. Then if Trump wins another term, we'll come back and try out Jay's nutbaggery, if only to play for more time.
12:10 Justice Thomas: How can we assess whether this is too burdensome?
Francisco: You interpose a federal court to assess whether state courts are too biased.
FRANCISCO IS A LUMINARY OF THE FEDERALIST SOCIETY, WHICH WILL FIGHTING TO THE DEATH FOR LOCAL CONTROL. Except, not today, apparently.
12:12 Justice Ginsburg: Hello, Federalism! And, not for nothing, being forced to disclose those tapes was pretty burdensome for Nixon. And he still had to do it.
Francisco: Trump is king. No one can constrain the president. Local sovereignty is cool and all, but state prosecutors just need federal judges to sign their permission slips. Obvs.
12:15 Justice Breyer: Why does the president get blanket immunity? Let him argue that it's overly burdensome or intrusive like anyone else!
Francisco: YES, AND how about we flip the presumption and say that the burden to prove need is on the local prosecutor? Since the president is king and all?
12:18 Justice Alito (clearly relieved to have Francisco to deal with, and not that loon Sekulow): Please make some reasonable sounding words to allow us to flip the presumption against state grand juries?
Francisco: Of course, good sir! But not with any specificity. And let's pretend that I didn't just say ten minutes ago that, once you put that standard in place, I'm going to argue Jay Sekulow's maximalist position that the president is totally above the law.
12:22 Justice Sotomayor: If there's credible suspicion of criminal activity, why is there need for a special standard for the president?
Francisco: All litigation is burdensome, and the president shouldn't be burdened. Particularly because local prosecutors are BIASED liberals.
12:24 Justice Kagan: The Nixon standard was for presidential conduct and executive confidences, not personal conduct. Why is local criminal process for private conduct subject to a heightened standard?
Francisco: BIAS! PRESIDENTIAL HARRASSMENT!
12:26 Can we just take a moment here and acknowledge the mindbending insanity of arguing that local prosecutors are illegally biased when Donald Trump is literally tweeting orders to the Justice Department to investigate private citizens. This morning it's Joe Scarborough, but he's tried for years to get Hillary Clinton and Joe Biden prosecuted.
12:29 Justice Boofbreath: Define burdensome.
Francisco: 2300 biased prosecutors raining subpoenas down!
12:31 Next up Carey Dunne from the New York County District Attorney's Office.
Dunne: Can we just come back to the point that we're investigating the Trump Organization for laundering a hush money payment to a porn star through their books? Not president Trump, not an official presidential act, nothing to do with executive privilege.
12:34 Justice Roberts: I like this case better than the Deutsche Bank one. Thanks for that! But, okay, let me just toss you a softball about a "higher standard" for state courts.
Dunne: Cool! Okay, so the grand jury can't work with whatever nonsense standard Sekulow and Francisco want about getting a federal judge to sign off before they can serve any entity near the president. But we're happy to counter any argument of executive privilege or individual burden that Trump wants to advance to defeat the subpoena.
12:36 Justice Thomas: But won't a grand jury indict a ham sandwich?
Dunne: No. But if so, then let the president argue undue burden in federal court if he thinks any particular litigation cuts into his Executive Time too much.
12:41 Justice Ginsburg: Please respond to these supposed federalists who are bitching about an impending flood of subpoenas from 2,3000 local prosecutors?
Dunne: Right? What a bunch of liars. In the 30 years since Clinton v. Jones, there hasn't been a flood of civil suits against the president. But now they want to invoke some slippery slope shit?
12:45 Justice Breyer: Okay, if we wanted to make a special presidential standard, what would be the pluses and minuses?
Dunne: Yes, AND! Let the president argue in federal court that a subpoena presents an undue burden. That is his special standard.
12:48 Justice Alito: How about we make the state prosecutor jump through a bunch of hoops to protect the president? Because I'm like the world's biggest proponent of local control, but not of Republican presidents.
Dunne: Well, to be fair, we asked Mazars for the information, not the president. But sure, let him argue that it's a huge burden.
Alito: But what if a state grand jury or prosecutor blabs? How is that even fair to the president?
Dunne: Umm, aren't all grand juries secret? And if that's the issue, LET THE PRESIDENT ARGUE IT UNDER THE UNDUE BURDEN STANDARD.
Alito: But Vance is a bad dude who's going to leak to the New York Times!
Dunne: Uhhh .... no. And that's illegal.
Alito: Is too! Is too! Seen it on Fox!
12:52 Justice Sotomayor: Let's be clear, you're not agreeing with Francisco about some special presidential standard
Dunne: No, and adopting Francisco's reasonable-sounding standard is the same as Sekulow's nutbag standard, because prosecutors can never prove exigency when there's no possibility of indicting a sitting president. And if you want to find such a standard, we sure as hell met it here. Memories fade, records get destroyed, the statute of limitations tolls — cough it up!
12:57 Justice Kagan: Crap on Sekulow's ranting about burdening the president some more.
Dunne: Ayup, that guy's a fuckin' clownshow! Trump is a "distractable president," but it ain't our problem that he gets the shits thinking about his business having to cop to laundering that hush money payment through its books. That's not a burden, it's FEAR OF GOING TO JAIL. Not the same thing!
1:01 Justice Gorsuch: Hey, you know how Justice Alito says your position is the same as Francisco's? I'd also like to pretend you said that.
Dunne: Well, as I said, Francisco wants to flip the presumption so that the prosecutor has to demonstrate need in federal court before issuing the subpoena, rather than the president having to demonstrate the subpoena is burdensome.
1:06 Sorry, feed problems. Justice Boofkeg just tried to argue that this is different from Paula Jones because an individual litigant can't wait, but a criminal prosecutor can wait until the end of the term because he's a shameless hack. Dunne points out that fears of a gazillion prosecutors pales in comparison to the possible deluge of individual civil litigants.
1:11 Justice Thomas: Give us an example of an argument of undue burden on a president that might work.
Dunne: Demanding that the president show up for a week of depositions would do it. But, reminder, we're just talking about making his business admit what it did to cover up a crime — not the same.
1:13 The Court is so done with this case, can barely be bothered with follow up questions.
1:17 Oh, FFS, Kavanaugh again. After he pretends away the statute of limitations issue, Kavanaugh wonders why New York prosecutors can't just wait one or five more years to investigate. Dunne reminds him that the issue is third parties, who would also be above the law and might have the statute of limiations if Francisco and Sekulow win.
1:20 OH MY GOD Sekulow is back for closing statements, which he is clearly ad-libbing. His tone is so OFF for the Supreme Court.
Aaaaand that's a wrap.
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.