Did SCOTUS Just Say the President is a Dictator?

Bringing down the temperature on immunity.

Welcome to what feels like your now weekly Legal Jackal Post™ about Donald Trump’s ongoing court cases. On Thursday we got to listen to the oral arguments in Trump’s immunity case at SCOTUS, and I think we need to pump the brakes a little bit. And, of course, I had to talk about Kristi Noem murdering a puppy.

What was Trump’s argument?

I think it’s best if we start here and get into the oral argument afterwards. Trump was essentially arguing that the January 6th criminal case currently filed against him is unconstitutional because his actions that day were on the margins of (or were explicitly) “official acts” of the Presidency.

Trump’s team argued that his actions on that day cannot be considered criminal because he was acting as President and doing official stuff. How so? Trump’s attorney never really could explain it. Some of their other arguments captured headlines, like a military coup directed by Trump potentially being an “official act.”

OK, so is SCOTUS about to say that the President is a mafia boss?

This is a fair question to ask if you followed the reaction to the oral arguments on Thursday. I’ll be totally honest: I listened to them and was ready to jot down my thoughts, but I kept seeing DOOMTOPIA™ reactions and wondered if I was missing something. This one stood out to me:

I did not hear this at all when I followed along with the oral argument. So, I listened to people who came away with something different than I did, and I still remain convinced of the following: SCOTUS was not even close to buying Trump’s arguments.

That doesn’t mean all the justices agree with each other. I think the liberal justices, along with Amy Coney Barrett,¹ all clearly want to resolve this quickly and allow the case against Trump to proceed. The main question is whether or not John Roberts agrees with them, but it’s also possible they could pick up a vote from somewhere else too (Thomas didn’t say much at all during oral argument).

The general conclusion from those following the argument was that Trump was either going to be found immune or SCOTUS was planning to take action that would further delay the case. I don’t see a real possibility for the former to happen, and even the latter is up in the air.

So, tell me why I shouldn’t be freaking out.

There is an old adage about oral argument before SCOTUS: If your side is getting the majority of the questions, your side is losing. That definitely happened here, where the attorney for the Justice Department - Michael Dreeben - was peppered with questions by the justices.

But it was the nature of the questions to Dreeben that made it pretty clear to me that SCOTUS wasn’t at all interested in Trump’s arguments and was instead trying to find a limiting principle to the idea of Presidential immunity. You see, when Trump’s attorney was up, they were largely dismissive of his reasoning. At one point, Samuel Alito repeated a hypothetical infamously made at the lower court: Could the President order Seal Team 6 to kill his political rivals and/or members of Congress? Alito said it was obvious that the President could not, and that Seal Team 6 could lawfully refuse such an order.

Go back to my opening of this piece: Trump’s attorney posited that a military coup could be considered an official act of the President, which is something so ridiculous it should be laughed out of court. And I think people were horrified hearing an attorney for a Presidential candidate making those arguments, but it really speaks to the weakness of Trump’s position: In order for his actions on January 6th to be considered a “lawful” or “official act,” Trump cannot cede any ground at all.

Over and over again, the justices ignored the line of reasoning put forth by Trump’s attorney. Instead, they kept poking and prodding Dreeben to figure out where the line could be drawn on immunity. Here’s the thing: I think a lot of people have it in their heads that what’s before SCOTUS is the legitimacy of the January 6th case as a whole. But whenever a case is actually before SCOTUS, there is an issue that needs resolving. In this case, it was:

Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.

When you listen to the questions from the justices - even the conservative ones - it is pretty clear that they dismissed the argument that January 6th was an “official act.” What they were trying to parse was an official holding from the D.C. Circuit, which said: “[In the January 6th case], former President Trump’s actions allegedly violated generally applicable criminal laws, meaning those acts were not properly within the scope of his lawful discretion.”

That is pretty broad language, especially the part about violating, “generally applicable criminal laws.” You could see the same reasoning being used against, say, President Barack Obama for his decision to un-alive Anwar al-Awlaki, an American citizen who had defected to Al Qaeda. Does the D.C. Circuit’s language make it sound like Obama can potentially be prosecuted for that action? I would argue that it does. And you know this reasoning is bad because Jack Smith’s lawyer did not defend it during oral argument. That’s right: They essentially conceded that the D.C. Circuit went too far with their language.

The questioning from the justices around this topic sounded more like college dorm room riffing than a serious engagement with Trump’s arguments. I think they ultimately felt like the D.C. Circuit got the idea right, but the execution wrong and are now trying to pick up the pieces. My overall guess is that they conclude:

• The President is obviously not immune from prosecution for unlawful acts done in office.

• Regulations dictate the illegality of such acts.

• Because the President is not immune from prosecution for unlawful acts and the Regulations already provide a guideline, there is no need for the D.C. Circuit to figure out which of Trump’s actions were personal or official.

  • This last point might be up to John Roberts, who seemed to waffle a little bit. And Roberts might convince Barrett to join him.

I could be dead wrong. But I listened to the oral argument in real time and generally avoided Twitter, which can have an exponential effect on Freakoutism™ that is self-replicating. I did not hear anything that made me shoot up in my seat, and instead heard the justices trying to resolve the issue in front of them.

Kristi Noem killed a puppy.

In case you missed it, the Governor of South Dakota has a book coming out, and in it she describes how she shot a puppy. In her book, Noem describes the 14 month old puppy as “useless” in hunting and a chicken-eater, so she had to shoot it. RIP “Cricket.”

I am here to let you in on a little secret: There is no Cricket. I would put a ton of money on Noem’s story - which is apparently 20 years old and has never been told before - being made up.

Noem has been in politics for close to 20 years and has run (surprisingly) close races against her opponents, which included both Democrats and Republicans. She apparently killed this puppy and told a neighbor about it, and even her own kids were shocked to see her do it. Yet it has somehow remained buried right up until this moment, when her new book is about to come out.

Noem faced a barrage of criticism for her admission, and has since doubled-down. She also defended herself by saying, “Hey, that’s farm life; I had to put down three horses recently too.” Really? THREE horses? I am sort of the opposite of a farmer, but even I have to question what could possibly happen to three horses AT ONCE that requires you to kill them? Alien abductions?

So, why make up such a story? Is she trying to appeal to the MAGA base? It wasn’t until a little later in the day yesterday that I think the real reason emerged for it:

Noem’s story is achieving her goal: To avoid being selected as Trump’s VP. She knows that if Trump were to ask her, she could not reject him because (1) he would make it public (and complain about it), which in turn (2) destroys her future career in conservative media.

If you have paid attention to Noem over the past year, one of the weirdest things she does is do promos for local businesses in South Dakota. She was recently featured in an ad for a Texas-based dental practice. I have seen some former politicians move into the private sector for a big payout, but I can’t recall an active politician endorsing a private business in an ad campaign.

But I think Noem is simply looking for her payout. The salary of a South Dakota governor is around $120K, which is peanuts for someone of Noem’s stature. She wants the serious, seven-figure jobs that can set up her family with generational wealth, and you cannot do that if you have Trump hanging around your neck for the rest of your career. Noem is intelligent and probably knows Trump is likely to lose his reelection bid this year, so she is jumping off a ship in a way that doesn’t get her foot tangled in the anchor line.

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I’ll be back in a couple days to give my thoughts on the Manhattan trial. See you then.

1. Barrett does have a tendency to write differently than how she sounds at oral argument, so keep that in the back of your mind.