2/ Emptywheel:

Thomas: How do we determine what an official act is?

Ut oh.

3/ Via Scott MacFarlane:

Here comes the first hypothetical question. Chief Justice John Roberts asks ... what about an official act taken by a President (appointing an ambassador)... "for a bribe?"

Roberts - the bribe isn't an official act. But the appointing of an ambassador is one

(NOTE: I’M HAVING ENOUGH PROBLEMS TRYING TO DO ONE THREAD, LET ALONE 2, LET ALONE HAVING A DR APPT SOON… SO I’LL BE CUTTING ALL OF THIS SHORT SOON)

4/ Via MacFarlane:

Justice Sotomayor interjects with next hypothetical.... about what happens if a President orders an assassination.. "for personal reasons"

The DC appeals court used similar hypotheticals in January (Bribes and assassination)

Sotomayor cites amicus briefs received by Supreme Court in this case detailing how founding fathers once considered immunity for President, but didn't include immunity in founding documents of our nation

5/ I’m sure I’ve messed up the thread, and I’m posting when I can.

Elie Mystal:

Every Alito, Thomas, and Gorsuch question is frankly code for "remand."

Roberts is not for remand. This could come down to Barrett.
#SCOTUS

6/ Oy.

Mystal:

Kagan: Can the president order a coup?
Sauer: If it's.. I did the job...
Kagan: CAN THE PRESIDENT ORDER A COUP?
Sauer: YOU'RE GODDAMN RIGHT HE CAN!

7/ Emptywheel:

Kav now imagining that bc none of the statutes charged have a clear statement that POTUS could be charged.

Murder does not have a clear statement.

Scott MacFarlane:

A Trump-appointed Supreme Court Justice (Gorsuch) and Trump's attorney (Sauer) just did a round of hypothesizing about a future President pardoning himself

Both emphasize that such a prospect is untested and uncertain

8/ Emptywheel:

Kav seems set to say POTUS can't be prosecuted FOR ANY OFFICIAL act unless the crime says POTUS can be prosecuted. But may be willing to let DC District to review for official acts.

9/ Mystal:

Gorsuch is basically pulling his questions from Truth social

Barrett kind of moves us to the ridiculous argument that the President must be impeached first before being prosecuted.

And Barrett is *killing* that argument

10/ Mystal:

Folks... I *think* we might have Barrett on team "no immunity, no remand." But I'll have to see how she handles the government's argument before I'm more confident.

Also, Barrett dissembles a lot in oral arguments about her position. She talks one way but often votes another.

11/ Mystal:

Thomas says presidents in the past have participated in coups, "yet there have been no prosecutions"??

Is this motherfucker serious? His argument is "Every president coups, why is mine getting charged?"
Show more replies

Roberts: "The court of appeals did not get into a focused consideration of what facts we're talking about or what documents we're talking about... they did not look at what courts usually look at when... taking away immunity."

And... that could be the ballgame

12/ Mystal:

Roberts, Gorsuch, and Kavanaugh are more worried about a prosecutor going after a president for *political* reasons than A PRESIDENT TRYING TO OVERTHROW THE GOVERNMENT.

13/ Emptywheel:

SCOTUS now really bothered that Trump would have to go to trial. This is insanity.
Kav: It's a serious constitutional question whether statutes can be applied to the President.

This is insane.

But I guess he heard Trump's demands.

Gorsuch now wanting to claim an Article II challenge is immunity.

Gorsuch: Let's say President leads mostly peaceful protest in front of Congress, delays proceedings before Congress.

Gorsuch is simply ignoring the violence.

14/ Mystal:

This is just about over.

And by "this" I mean the rule of law and by "over" I mean delayed indefinitely to help Trump.

Gorsuch suggesting that under the government's standard a president could be prosecuted for leading a "civil rights protest" in front of Congress and sought to "influence an official proceeding."

Yes, because Jan 6 and a fucking sit in are the same thing, Neil.

15/ Griffin:

Justice Sotomayor: The president is only explicitly mentioned in a few federal statutes. "Justice Barrett made the point that if we say a president can't be included in a criminal law unless explicitly named, then that would bar the Senate from impeaching him for high crimes or misdemeanor because that means that he's not subject to the law at all."

17/ Justice Jackson tells Trump's lawyer that he seems to be "worried about the president being chilled." She argues a "significant opposite problem" would emerge:

"If the pres wasn't chilled, if someone with those kinds of powers, the most powerful person in the world … could go into office knowing that there would be no potential penalty for committing crimes, I'm trying to understand what the disincentive is from turning the Oval Office into the seat of criminal activity in this country."

18/ Griffin:

Alito: "Did I understand you to say, 'Well, you know, if he makes a mistake, he makes a mistake. He's subject to the criminal laws just like anybody else' You don't think he's in a peculiarly precarious position?"

Michael Dreeben, representing the U.S.: "He's under a constitutional obligation ... he's supposed to be faithful to the laws of the United States and the Constitution of the United States."
"And making a mistake is not what lands you in a criminal prosecution."

19/ Rupar:

so according to Trump's lawyers, if Trump returns to power he could sell all of our most sensitive military secrets to the CCP and he would be completely immune from prosecution so long as he kept it quiet until he left office. This is something SCOTUS is taking seriously!

20/ Via Emptywheel:

Alito again stops Dreeben from talking about the facts of the case.

We're at the point of this horrid hearing where Alito is suggesting it would be bad if the interned Japanese-Americans had recourse for their false imprisonment.

Roberts doesn't want to talk about history.

21/ Emptywheel:

LOLOL. Alito is horrified by the possibility that Presidents will appoint AGs who will rubber stamp their activities.

You know. Like Bill Barr.

Dreeben pretends that hasn't happened.

Alito suggests that if someone loses a close election and thinks they'll be prosecuted, they'll violently oppose it.

Alito really has flipped this entire thing on its head.

Dreeben not pointing out that SCOTUS ruled against Trump. yet?

22/ Emptywheel:

Soto, in really momentous voice, trying to emphasize how important principle that no man is above the law is.

23/ Mystal:

Now onto self-pardons. Alito is just playing all the Fox News hits now.

I'm going to smoke. Biden should send Seal Team 6 to Mar-a-Lago because according to Alito there's no downside.

Alito just suggested that the last election was "questionably decided"

24/ Emptywheel:

Dreeben notes "we are not wild about parties smuggling in other issues on interlocutory appeal."

25/ Via Scott MacFarlane:

Special counsel attorney: Ginning up a false slate of electors is not part of a President’s official job

26/ Mystal:

Kagan is like the first person to be asking about the actual criminal acts Trump is charged with.

I assume Alito is not listening because Kagan is a woman while Gorsuch is probably sitting there emailing the New York Times because they got something wrong on the Spelling Bee.

27/ 🤦🏻‍♀️Griffin:

Alito: "If an incumbent who loses a very close, hotly contested election & knows that a real possibility after leaving office is not that the pres is going to be able to go off into a peaceful retirement, but that the pres may be criminally prosecuted … will that not lead us into a cycle that destabilizes the functioning of our country?"
Dreeben, repping the U.S.: "I think it's exactly the opposite, Justice Alito. There are lawful mechanisms to contest the results in an election."