Mr. Chief justice, please, court. It's an old joke, but when an argument man argues against two beautiful ladies like this, they're going to have the last word.

She spoke not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome to another bonus episode of Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it, including all of the attempts to hold former President Trump accountable. I'm just going to say this is a lot right now, because usually we do those bonus episodes at the end of the term, but Donald Trump can't stop, won't stop, and we can't stop, and we won't stop. And that's because we're your hosts. I'm Melissa Murray.

I'm Kate Shaw.

And I'm Leah Lippman. And if you hear rain in the background, it is because I decided to decamp to Southern California, and Southern California decided to have monsoon season, but it.

Never rains in Southern California, and yet.

It has been raining for several days straight.

I think you need to take this up with Tony. Tony, Tony.

Okay.

Do you know what I mean by that?

You don't? Do you have any idea?

Okay.

All right. Stairs and Generation X.

So we finally got the DC circuit's opinion in the immunity case, and that is what we are going to be talking about today. We wanted to break it down, what it means and what will happen next. So first, maybe let's start with what happens next. Like, can the trial actually proceed? The DC circuit, in a unanimous opinion, rejected President Trump's arguments that he is immune from prosecution. This is the case that involves the January 6 indictment in DC. But the immunity arguments might extend to the other cases. And the DC circuit's reasoning and opinion makes clear courts probably not going to be receptive to those arguments elsewhere. Now that they've rejected the immunity arguments, can the trial proceed?

Right. So that's the bottom line holding, and we're going to break it down. But in terms of what happens next, the DC circuit was really attentive to this question, so it tailored its mandate. It seemed to try to prompt a quick resolution. So it said in the opinion that the mandate will issue on Monday, the mandate issuing would mean that the trial can happen in the near term. But, and this is an important part, the court said that the mandate will not issue Monday if Trump files an application for a stay of the mandate, in which case the mandate will only issue if and when the Supreme Court resolves the stay application.

And that's really important. It means that Donald Trump has until February twelveth to go to scotus to seek a stay of this ruling or the trial proceedings can occur. And it means that absent a stay, the trial is ready to go and he will be subject to a legal proceeding in the District of the District of Columbia.

What this means is unless the Supreme Court issues a stay, or unless Trump files a request for a stay, it's possible that the DC district court could actually go along with getting a trial up and running while the Supreme Court considers whether to grant sirari. Again, because this mandate that allows the district court to go forward with a potential trial, you can only stop that mandate if you get a stay. And unless the court grants a stay while they're sitting on a potential cert petition deciding whether to hear the case, that isn't necessarily going to stop the district court from going along with a trial. Now, in the event that the court granted cert, obviously that would stop the trial from happening. But that's kind of there. And the reason why that's potentially important is it takes four votes to grant certiari, but it takes five votes for a stay. And so in order to actually stop any potential trial, you would need five justices, not just the know, to grant Cert. We will kind of see what happens, but I think we will know more maybe at the end of next week or possibly early next, just because seems like Trump, his incentive is to file a stay application with the Supreme Court, get that further delay, then the Supreme Court is going to act on the stay application and.

Yeah. So we could know more about whether they're going to speed it up. Yeah.

And we should say that the DC Circuit actually took one delay tactic off the table that seemed important, which is that they said that the mandate is not going to be paused just because Trump files a petition for rehearing on bank, meaning, like, in front of the full DC circuit, it would only be paused if the rehearing petition is granted. So that, I think, almost certainly suggests that Trump is not going to pursue review in the full DC circuit, because there's not any real delay advantage in doing so. So I think he is likely to go right to the Supreme Court. And then the only question is, will there be five votes for a stay, which would, again, pause proceedings while the court considered what to do. But while the cert petition is pending, things could move forward. We could actually have a, you know, the DC circuit did what it could, I think, to accelerate these proceedings, although I think we all share the sentiment that the court sat on this longer than we expected, and yet now we have an opinion, and it's long and it's thorough. So let's break it down.

Well, before we break down the opinion, can we talk a little bit about what we think the Supreme Court might be likely to do here? Sure. Leah just said it takes four votes to grant Sarshiwari, requires five votes to stay the DC circuit's order. I think the stay is pretty likely to happen. I don't think the court is going to want to be in a world where there's a trial happening, a jury is unpanelled, and all of a sudden, Cert is granted and it stops. So I imagine there will be five votes, just as a practical matter, to stay this. And I think it's a certainty that the court should take this. I think it's very likely it will.

I also think the court has an institutional incentive to take the case, which is if, as we all kind of expect to happen, the court says President Trump can appear on the ballot in the upcoming election, then taking this case, in which I think the court is likely to reject Trump's version of immunity arguments, gives the court some additional credibility because it allows them to issue a ruling for Trump and against Trump and kind of balance out any public perceptions or coverage they might get about potentially favoring Donald Trump and the Republican Party.

Potentially. But they can only get that if they move expeditiously. Right? Or they should not be afforded any kind of goodwill for rejecting the immunity arguments if the effect of them slow walking the decision is that there can't be a trial anyway. Right. So it'll mean a lot, both what the court does here with respect to.

The stay and the application that we.

All expect, and also the when. And they moved very, very swiftly to schedule oral arguments in the 14th Amendment disqualification case. And, of course, that's a case where Trump really wants the lower court opinion to be reversed. So if they are happy to accelerate a Trump initiated case that is about Trump asking for some relief, but they're not eager to take up swiftly review of a lower court opinion that goes against Donald Trump, I think that will send a very clear message. And the public, I think, would be rightly very, very unhappy with the Supreme Court. So it just matters a great deal how quickly they move.

Okay, let's get into this opinion. And to be very clear, they took a long time on this, and they're definitely showing their work here. The three judges of the DC circuit. This is a methodical and exhaustive opinion that goes through all of Donald Trump's arguments, even this really stupid, you know, good on them. So, first of all, it's important to note that this is a procureium opinion. So what does that mean? Well, one, a procureium opinion is by the court. So typically, in an appellate opinion, there will be one judge who authors the opinion, and the other two judges can either join or not join, but the one judge is the author, unless it's a procarium opinion, where the one judge, or maybe a group of judges, is speaking for the entire panel. And here I thought it was really interesting that they made a decision to make this the decision of the panel, as opposed to any one judge. And I wondered if that was to insulate the three of them from the possibility of political blowback from Donald Trump's supporters, or whether this was sort of a brown versus board of education move or a Bush v.

Gore move, to sort of say, like, we are speaking with one voice, and that voice is the voice of the court. Who knows? I think maybe all of these things could be true, but I think it is notable that it's a procureium opinion.

Agreed.

Yeah. So the opinion is 57 pages long, and we'll note some general things about it before we actually dive into the specific arguments. Throughout the opinion, the judges repeatedly rely on separate writings by the following justices. Let's see if anything jumps out to you. Justices Thomas, Gorsuch, and Kavanaugh. It's almost like you're going to need one of these dudes votes, right, in order to get to five. And in particular, the opinion emphasizes the significance and import of the Supreme Court's 2020 decision in Trump versus Vance, which rejected President Trump's argument that he was immune from subpoena there from, again, a New York state office. That was a somewhat fractured opinion, but there, Justice Gorsuch and Justice Kavanaugh voted with the bottom line conclusion that President Trump was not wholly immune from the particular subpoena.

I do love this pulling of receipts as a judicial interpretive method. The pulling of receipts was noted and notable.

This panel has a host of receipts, not just from the justices, but, it turns out, from various republican senators and from Trump himself. As we'll get into in a, you know, overall, the opinion has some fairly memorable lines in explaining their overall conclusion that Trump is not immune. The opinion says, quote, 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.

So maybe we'll walk through a couple of the grounds that Trump had asserted for establishing this really expansive immunity that he was asking the court to embrace, and then we can break down what the court does with those arguments. So maybe let's just tick through the kind of three main ones first, which is, first, that the federal courts just lack the power to review the president's official acts just as a matter of the separation of powers. Two, that functional policy considerations, also rooted in the separation of powers, require immunity to avoid intruding on or undermining executive branch functions. And then three, an argument that we talked about a bunch after the stupid arguments, we still have to describe it.

We put on clown noses and talk about it.

That's right.

Dumb, dumb, dumb.

It's pretty bad. And the panel clearly agreed with this. But the argument that Trump was making was basically that the Constitution and its impeachment judgment clause does not permit the criminal prosecution of a former president unless Congress was able to both impeach and convict the president prior to the criminal prosecution.

And while they had to reject that dumb argument, they also took pains, and probably were pained to address Trump's argument that he was immune from prosecution under the double jeopardy clause as well. I'm not sure which of these arguments are dumber, but we'll discuss their analysis of that one, too. But we'll go through them in order, starting with the idea that the article three courts lack the power to review the president's official acts under the separation of powers doctrine. We've heard references to the very famous separation of powers clause in the Constitution. There actually is no such clause, but that doesn't stop people from invoking separation of powers ideas.

It's so weird that they invoke these implicit ideas around separation of powers, but can't seem to believe that there's an inherent right to control your own body. So very weird.

Presidents being able to do whatever they want and not have it be illegal is actually implicit in the concept of ordered liberty. Ordered liberty, famously rooted in the history just chaos. Speaking of being rooted in the traditions of this country in order to justify the expansive immunity Donald Trump invoked. What else? Marbury versus Madison, the foundational case establishing the proposition of judicial review, which is that federal courts can strike down acts of Congress. And here the says, you know, he relies on this oft quoted statement from Marbury. Former President Trump misreads Marbury and its progeny. So, spoiler power of judicial review and statements that Marbury made in the course of reaching that holding do not actually mean presidents are immune from any proceedings in federal court whatsoever.

In fact, the court went on to say, but as the Supreme Court has unequivocally explained, I. E. Read the footnotes, no man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. Mic drop.

And after quoting that line, they go on to quote a concurrence by one coach Kavanaugh, explaining that, quote, that principle applies, of course, to a president.

And that's from the 2020 advance case that we talked about already. Okay.

Master's tools. I love it.

I know we have been very hard on them, including even just a few minutes ago for the time they took to issue this opinion, but they took a lot of care with it. So we absolutely have to give them that.

Have they heard of all nighters?

I am sure they and their students everywhere. I am sure they have.

Okay.

All right. So in terms of his argument that functional policy considerations rooted in the separation of powers require immunity, the court has this to say. We conclude that the interest in criminal accountability held by both the public and the executive branch outweighs the potential risks of chilling presidential action and permitting vexatious litigation. And second, the court says, we examined the additional interests raised by the nature of the charges in the indictment. And this is now me, not the quote. These are really weighty interests that the court describes. And so the court goes on. Now I'm quoting again, the executive branch's interest in upholding presidential elections and vesting power in a new president under the constitution and the voters'interests, in democratically selecting their president. So I'm done with a quote now. So those are the interests that Trump sort of said are way less important and have to be outweighed by the interest in not chilling presidential conduct. And the court just didn't seem to find that a difficult balance to strike in favor of democracy.

I actually think this is really genius because they're basically disaggregating his arguments in favor of himself as president from the office itself and asking the public, do not think about him. And this office is coextensive. He's just a dude who was in this office. Let's really focus on the office.

Yeah.

And of course, the idea, know, President Trump uses the office to benefit himself personally has always been a kind of running theme of the Trump presidency and Trump campaign. And one of the concerns with him holding public office. And I thought that their analysis of these arguments and as you were saying, like, disaggregating the person from the office. This is the person who is asserting that it is in the executive branch's interest that someone not be held accountable for violating the law, when the executive, of course, is the chief law enforcement officer and has a duty to take care that the laws be faithfully executed. So I agree. I liked how they approached this here.

How do you think this will interact with the court statement? And I think it was Trump versus Mazars back in 2020, that in terms of a request for personal documents from the president, it would be hard to disentangle the man from the office. Do you remember that part of the chief justice's opinion? Because here they seem to be saying, we have to disentangle the man from this office, or the office itself is imperiled.

Yeah.

So there, I think it was, like, a little bit different, because you were dealing with a sitting president at that point. And so directing documents to the person who is in the office, and there, Congress was asserting an interest in the proper enforcement of the law to uncover legal violations. They are legal violations by a person who held the office. I think there, it might have been slightly more complicated. I still think the chief justice might have been too quick in rejecting that as a potential way of addressing the immunity argument. But here, I think it is, again, very easy to disaggregate this, because these are purely personal interests of inconvenience and wanting to put himself above the law versus the interests of the office. And in the course of rejecting this basis for immunity, the DC circuit took care to invoke President Trump against himself, speaking of the person versus the office. So the DC Circuit noted that during President Trump's 2021 impeachment proceedings, his counsel argued that instead of post presidency impeachment, the appropriate vehicle for investigation, prosecution, and punishment is the article three courts, and they cited testimony from the congressional record.

So I thought that that was a nice touch.

All right, let's get to the third argument. This is the one I believe I have repeatedly characterized as specious, if not stupid. And this is the view that Donald Trump is immune from criminal prosecution because he wasn't impeached by the House and convicted by the Senate of these acts. And the DC circuit basically said, lol, no, dude, I actually just wish they'd written that. That would have been exactly what this stupid argument deserved. But instead, they elaborated a bit, saying that, quote, former president Trump's interpretation also would permit the commission of crimes not readily categorized as impeachable. And if 30 senators are correct. Crimes not discovered until after a president leaves office. And here, the court quoted a statement from Senate Minority Leader Mitch McConnell who said, we have no power to convict and disqualify a former office holder who is now a private citizen, end quote. So, yeah, again, master's tools. Master's house.

No, but didn't you also like to see also statements of, like, another 30? Go on.

Sorry, ladies.

You troll so hard. Okay.

Judge Henderson, Judge Pan, Judge Childs.

The snark is just dripping. I love it. After citing the statement from Senate Minority Leader Mitch McConnell, they also cited, in a footnote, statements from a long list of republican senators basically saying that Donald Trump could not be impeached and convicted in Congress because he was no longer so.

Hmm.

There we are. I thought this was very definitely handled, although I also think for brevity, lol.

No would have sufficed.

Indeed. But that wouldn't have gotten them the whole master's tools bit.

I mean, it's true. They did show their work, though.

Yes. Good on that. And they also showed their work in rejecting the double jeopardy arguments. And here, I think they came a little bit closer to saying lol, no, just as they characterized the president's argument. So again, just to make clear what the argument in, that's argument in quotation marks, what the argument is here, President Trump argued he.

Argument esque. Right?

Argument esque argument adjacent. Argument. Curious. I don't know. But he was suggesting that his impeachment proceedings meant he was entitled to double jeopardy in that he could not be tried again for the same offense because he had been tried and not convicted, I e. Acquitted in the Senate, and therefore he could not be tried again for the same offense under the double jeopardy clause. Okay, so here's what the DC circuit writes about this argument. Former President Trump does not raise a straightforward claim under the double jeopardy clause, but instead relies on the impeachment judgment clause and what he calls, quote, double jeopardy principles. I love it. I love it.

Black letter law.

How about principles? Exactly. And the court goes on to say, if the double jeopardy principles, he and folks, are unmoored from the double jeopardy clause, we are unable to discern what the principles are or how to apply them. I think that's close to lol, no. Right?

It's DC circuits speak for lol no.

Okay, that's helpful. We'll be their lol translator because what they meant was lol, no or just bruh. Are you serious, bro? And that was not all. They note that, perhaps recognizing that normal double jeopardy rules disfavor his position. He claims that the impeachment judgment clause incorporates double jeopardy principles that are distinct from the double jeopardy clause. Again, this is borderline art, I would say.

Do you remember those perfume commercials that came out in the parfume decor? If you love Giorgio, you'll love Primo. This is sort of the same thing. Like, if you love the double jeopardy.

Club, you'll love double jeopardy principles, but.

Still like the same rancid toilet water.

There.

Also, I think, was some good real talk about the nature of impeachment. If we are going to take seriously what, if any, role impeachment should have in thinking about a later criminal prosecution, let's think about what impeachment is. And the court says impeachment is obviously a political process. And so impeachment acquittals are often unrelated to factual innocence. And the acquittal in this very impeachment trial is a perfect case in point. Right? You have 43 senators who voted to acquit, and in their own words, they invoked a variety of concerns about a conviction, many of which, again, in the words of the not guilty voting senators, had nothing to do with whether Trump committed the charged offense. There were, like, citations to jurisdictional reasons, the fact that Trump was no longer president, process based reasons regarding just how much time the impeachment proceedings, whether evidence could be presented. But there were also, though, just explicitly political reasons given. So all of this really cuts against any double jeopardy principle emanating from an impeachment proceeding under any circumstances.

Yeah, and the DC circuit cites some of the know, like, for example, Ron Johnson saying the Democrats vindictive and divisive political impeachment and noting that of. Right, these were the sorts of reasons that republican senators gave for not convicting.

So those are some highlights. I mean, this is a banger of an. Like, this does feel a little bit know, an artist who took just a long time in the studio, but it's a great opinion and it's a great album, but I could have used a little more Taylor swift, just, like, getting in there and getting out with.

Exactly. And know releasing these albums at mad speed and still winning fucking album of the year a record number of times.

Tortured poet society.

It's tortured poets department, but I'll forgive that slate error.

Great opinion.

Great opinion. Only because I'm still writing on the high of Tracy Chapman's performance, which is.

Just, like, still going through my students. Okay, quickly, my students yesterday morning were, like, talking, talking as I started teaching, and they wouldn't be quiet. And I was like, I know. I know. That fast car duet was incredible. And they all looked at me like, I have no idea what you're talking about.

Isn't that. What were you talking about?

I don't know, but not the duet. They should have been talking about, like, just something else. Constitutional law, maybe. And afterwards they were like, oh, we had no idea what you were talking about.

Isn't that just. I had not registered the Luke combs cover because I love Tracy Chapman and I love the song and the original version.

So I was just like, the entire.

Self titled album is glorious, and that's amazing. So good.

It's an amazing album. But I tweeted.

I know, but I was like, who.

The fuck is this guy? And then all these people swarm me, like, telling me what a great guy he was. I'm like, I just genuinely didn't know.

I had kind of complicated feelings about him doing a cover and getting this great numbers and all this success from covering Tracy Chapman's song and watching him in the duet made me warm to him because it was clear he was floored at the honor of being able to appear on stage with Tracy Chapman correctly.

And he really did. Yeah.

Again, very sincere. Moderated some of my views that I had.

I just literally was like, who is this person?

And people were like, what do you mean, you don't know Luke Combs? I'm just like. And you're like, don't know.

Genuinely, just tell me who it is, what happened? And they were just know. He's a good guide.

I'm like, I'm sure fine.

I literally don't mean.

That was when I asked you who.

Tony. Tony. Tony was. I'm not going to take you out and shank you.

Thank you, Melissa. That's so kind. I should have been more gracious when you mistitled Taylor Swift's forthcoming album, what is it called? The tortured poets department.

Oh, I thought it was dead poet society.

I know it sounds like that to us Gen Xers, but in fact, it is not.

Sorry, leah. My bad.

It's fine. Again, I'm being gracious. Apology accepted. Hashtag growth. It's not like double jeopardy or double jeopardy principles. Exactly. So back to the DC circuit opinion. One thing I had just wanted to note is a line that stood out to me, given that the Supreme Court is about to hear the disqualification argument later in the week, and that is in the course of rejecting President Trump's argument that functional concerns underlying the separation of powers required him to have immunity. Here, the court writes, in explaining the interests on the other side, quote, former President Trump's alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government, end quote. And I just thought, again, given that the Supreme Court is about to decide whether section three of the 14th Amendment disqualified President Trump for this action, the DC circuit's characterization of this as an unprecedented assault on the structure of our government stuck out to me. I think they are right, and I think that matters.

Can I ask a quick question before we leave the topic? Can I just float something, which is if you guys both think that what the court is going to do is probably rule for Trump in the Colorado case, but rule against him here, is there some possibility they just deny cert let the DC circuit opinion stand? I mean, it would move along more.

Quickly and they would have the same effect.

And the question is, if they don't, even if they ultimately, I mean, so it goes back to the timing question. But I'm just like, as I'm puzzling this, just, I wonder whether, I think.

There'S a possibility we should consider. I definitely think it is a possibility, but I think you are overestimating the extent to which the Supreme Court is going to get flak for the delay in the district court proceedings in this case if they ultimately reject his immunity. I mean, because, of course, the Supreme Court delayed the enforcement of the congressional subpoenas in Mazars, they delayed the enforcement of the subpoenas in the Vance case, and they actually didn't end up bearing any real costs for that because their opinions rejected the arguments. And it goes into this story about how understanding, assessing and evaluating the court requires so much more than just who won in this case. What's the bottom line? But I do think that's possible. I think it's greater than 50% chance they take the case.

But we shouldn't rule out the at least possibility.

It's a possibility. But I also think, I don't know that given the landscape and given who this person is and whether or not he may or may not be president going forward, I think the Supreme Court basically has to talk about the fact that, no, you're not immune if you use the trappings of your office to vindicate political grudges.

It would be ideal if they said that.

But if they. Next week, well, maybe it's better they.

Say nothing at all.

I think they have to conclusively decide whether that's okay. They can't just let it rest with the DC circuit.

My view, I'd be fine with this opinion?

No, it's a good one. But I mean, I think, you know.

Anything else we want to say about the DC circuit? DC circuit.

Thank you. It was worth the wait, I guess. It was a great opinion. We're still thinking about whether it was worth the wait, but thank you.

This was a good one. Strict Scrutiny is a crooked media production hosted and executive produced by Leah Lippman, Melissa Murray and me, Kate Shaw. Produced and edited by Melody Rowell. Thanks to Farah Safari for substitute producing this while Melody is away. Audio support from Kyle Seglin and Charlote Landis music by Eddie Cooper. Production support from Madeline Harringer and Ari Schwartz. And if you haven't already, be sure to subscribe to strict scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.