Adam Liptak’s follow-up analysis of the Court’s immunity argument

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N.Y. Times. Adam quotes Pam Karlan, Mellisa Murray, and Michael Dorf, as well as excerpts from the oral argument. For example:

‘In the real world, Professor Karlan said, “it’s really hard to imagine a ‘stable democratic society,’ to use Justice Alito’s word, where someone who did what Donald Trump is alleged to have done leading up to Jan. 6 faces no criminal consequences for his acts.”

‘Indeed, she said, “if Donald Trump is a harbinger of presidents to come, and from now on presidents refuse to leave office and engage in efforts to undermine the democratic process, we’ve lost our democracy regardless what the Supreme Court decides.”’

The implication of the column is that the Justices were being irresponsible in “averting their eyes from Mr. Trump’s conduct.” My own take is that there is a more charitable interpretation of the Court’s questioning. The question of delineating the scope of potential presidential immunity from criminal prosecution is a serious one, even if in this particular case the rejection of an immunity claim should be straightforward (as I and others have argued). To be sure, it would be theoretically tenable for the Court to categorically reject any doctrine of presidential immunity from criminal prosecution (after the president leaves office) on the ground that, unlike the Speech and Debate Clause that confers a form of legislative immunity, there is no comparable clause in the Constitution conferring an equivalent immunity for the Executive Branch. That textualist argument seems to be part of Jason Willick’s view of how the case should be decided:

“A majority on the Supreme Court seems inclined to think some kind of immunity is necessary to nudge American democracy in the right direction. The best counter would have been that the fate of democracy belongs to the people and their elected representatives, who can destroy it if they are determined to — and that when the Constitution is silent, the Supreme Court should stay out of the way.”

But as Willick himself recognizes, a majority of the Court seems unwilling to reject the idea of presidential immunity completely. Even Michael Dreeben’s self-described “more nuanced” analysis would rule off-limits criminal prosecution of a former president in certain circumstances–and, crucially, provide for interlocutory appeal before trial to litigate the immunity issue (whether or not the word “immunity” is used to describe the doctrine).

Thus, back to Liptak’s concern that the Court “seems likely to say that at least some of Mr. Trump’s conduct was part of his official duties and so subject to some form of immunity.” But the second part of that sentence doesn’t necessarily follow from the first. As I suggested last night, the fact that some of Trump’s allegedly criminal conduct was official and not private in nature does not mean that it must be granted immunity; instead, even under a properly calibrated immunity doctrine, that conduct can–and-should–be deemed to be so objectively unreasonable to lack the benefit of any immunity doctrine the Court might adopt.

Liptak, among many others, fears that the application of the Court’s newly-minted immunity doctrine would entail a remand that prevents a trial occurring before the election. But, again, that’s not necessarily the case if (as the Washington Post and I argue) the Court is willing to declare, as it should, that as a matter of law the allegations in the indictment, even to the extent that they involve official conduct, fall outside the scope of the immunity that is available to presidents who act reasonably.

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Tenth Circuit rejects challenge to Colorado tax-related ballot initiative language requirements

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From Advance Colorado v. Griswold:

In 2021, the Colorado state legislature passed The Ballot Measure Fiscal Transparency Act (“HB 21-1321”), which requires certain language be included in state-imposed titles of citizen-initiated ballot measures. Specifically, if the proposal contains a tax change affecting state or local revenues, the measure’s title must incorporate a phrase stating the change’s impact on state and district funding priorities. In 2023, Appellants (collectively, “Advance Colorado”) proposed two tax reduction measures subject to the provisions of HB 21-1321. After Colorado’s Ballot Title Setting Board (the “Title Board”) included the mandated transparency language in each initiative’s title, Advance Colorado filed suit challenging HB 21-1321 as unconstitutionally compelling its political speech. The district court denied the corresponding request for a preliminary injunction, concluding the titling process qualified as government speech and, therefore, Advance Colorado was not likely to succeed on the merits of its claims. We agree that HB 21-1321’s requirements do not result in improperly compelled speech under the First Amendment of the United States Constitution.

And from later in the opinion (lightly revised):

The Colorado Title Board has existed and set ballot titles in a similar manner for over eighty years. As is the case today, when it was first formed the Title Board was solely responsible for setting a measure’s title without the influence of proposal advocates. The long history of the Title Board’s practices reflects the substantial control the government asserts over initiative titles and its legitimate interest in providing a standardized process for presenting measures to voters. Titling is statutorily separated and preserved as an express function of the government under Colorado law. Despite the catalytic role played by citizens in the initiative process, ballot titles are fully and exclusively crafted by the government through the Secretary of State’s office. Indeed, “[t]he fact that private parties take part in the design and propagation of a message does not extinguish the governmental nature of the message or transform the government’s role into that of a mere forum provider.” Walker [v. Texas Div., Sons of Confederate Veterans, Inc.]. Advance Colorado has failed to offer any evidence refuting this history of substantial government control.

Advance Colorado is also unable to demonstrate that . . . the general public perceives initiative titles to be the speech of private citizen-advocates. . . .

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Third-Party Politics in American History—A Response to Ned Foley

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In The Tyranny of the Two-Party System, Lisa Disch writes that the pervasive narrative that the United States is, and will always be, a two-party system is a product of “a reading of history that selects for continuity.” Indeed, historians Erik B. Alexander and Rachel A. Shelden would absolutely agree with both Disch and the Washington Post’s recent assertion that “[f]or much of U.S. history, there were more than two major political parties.”

The prevalence of third-party politics in American history is far greater than many educated observers of American politics today appreciate. In a fascinating new article, Alexander and Shelden argue that the two-party system remained fluid longer than traditional scholarly accounts suggest. The 1850s certainly did not mark the high water mark for third-party politics in the United States. In 1890, as Disch reminds us, the People’s Party won three gubernatorial races and achieved majorities in seven state legislatures. It also held fifty-two of the 332 seats in the U.S. Congress and three in the Senate. The People’s Party would continue to be a significant player in American politics through the election of 1896.

Returning to this history teaches us both that minor parties have played an important role in American politics, even when they did not win a majority of offices, and that a fairly modest difference in the election system of the 1800s, the ability of parties to cross-nominate, or “fuse” together on the same candidate, enabled the proliferation of ongoing, minor parties that took their role in the process seriously, frequently parlaying their ability to rally a bloc of like-minded voters into political alliances that changed the course of American history.  At this moment when American politics is failing, it is foolish to dismiss, out of hand, this history of third-party politics in America. It is also a major mistake to suggest that the only role that third parties have played in American politics is a spoiler role.

Winning is not the only way to measure the value of third parties. Beyond the relationship of the Liberty Party, Free Soil Party, and Anti-Nebraska Party to the antislavery movement’s success, I can say, based on my research, that the Populists were key to the passage of the direct primary and the initiative and referendum in Western states like Colorado. I suspect historians of the period would give the party a good deal of credit for the Sherman Anti-Trust Act and those early labor laws that the U.S. Supreme Court routinely struck down during the period. More recently, the Working Families Party and Conservative Party have each won significant policies for their core constituencies by delivering crucial votes in close races.

We should also not dismiss this history or denigrate its significance because its greatest potential is at the state level. For one, to measure the importance of third parties in terms of their national success is anachronistic. State and local politics was where governance happened in the nineteenth century.  Even today, it is a mistake to dismiss state and local politics. For workers paid by the hour, where you live matters. Only five states lack their own minimum wage statute. The same is true of paid sick leave and free college tuition. In the two states where fusion voting remains viable, New York and Connecticut, those parties have been critical to the passage of reforms that matter to the sort of people who have real needs and are not preoccupied with politics.

Nothing in this post is meant to take issue with Ned Foley’s basic point: It is preposterous to hope that a third-party candidate will win the presidency in 2024 and save our democracy. But even here, analytic caution is called for. We should not confuse independent candidates with a third-party label with third-party candidates such as James B. Weaver, who, running on a fusion ticket, carried five states on Election Day 1892 on the backs of the People’s Party, which itself became the second-largest party in four states that year, South Dakota, Kansas, Nebraska, and Oregon.

My point is this: We may differ about how exactly to characterize the democratic failures in the United States or their causes, but we cannot deny a few basic facts. Public trust in government institutions is at an all-time low. Authoritarianism is on the rise, as are partisan polarization and unapologetic racism and xenophobia. And the major political parties bear significant responsibility for this state of affairs. This is a time to think big (third parties) and be realistic, prioritizing achievable party-centric reforms—like relegalizing fusion.

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“Number of Trump Allies Facing Election Interference Charges Keeps Growing”

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N.Y. Times analysis of the various state-level prosecutions, discussing the extent to which they will deter similar efforts this year:

“Republican leaders, however, have been defiant in the face of the prosecutions. “We will not be deterred by this overreach,” the Arizona G.O.P. said in a statement Wednesday after a grand jury had handed up the charges, echoing the stances of leaders in other states.

“Josh McKoon, chairman of the Georgia Republican Party, said in an interview that “I don’t think that this is going to discourage the base of the Republican Party from engaging in politics,” adding, “I think what it actually does is it heightens, to an entirely new level, the importance of winning the 2024 election.”

“But a number of those who have been indicted are lawyers, which may give pause to lawyers advising the current Trump campaign.

““There will be more caution on the part of the lawyers,” said Manny Arora, who represents Kenneth Chesebro, another legal architect of the fake elector plot. Mr. Chesebro, who pleaded guilty to a felony in Georgia, has emerged as a key witness in all of the state inquiries, including one in Wisconsin, which has not yet led to charges.”

I spoke about these cases with Scott Detrow on NPR’s All Things Considered yesterday.

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“The Trump immunity case is easy. The Supreme Court shouldn’t make it hard.”

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The Washington Post editorial following yesterday’s argument takes essentially the same position as I advocated in my comment last night. First, the Court could adopt a “reasonableness” test to determine whether or not a president’s official acts are immune from criminal prosecution: “Judges could examine whether the president reasonably should have known a given action was illegal — because of contrary advice from his attorney general, for example, or because it’s just that obvious.” Second, the Court itself could apply that reasonableness test to the allegations in the indictment, without need for additional proceedings, to conclude that objectively no reasonable president would have done what Trump allegedly did: “The Supreme Court … could simply find that actions described in Mr. Trump’s indictment lie outside any plausible scope of presidential immunity.”

Let’s hope that at least five Justices have the wisdom to see the case this way.

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“Arizona defendant Christina Bobb plays key role on RNC election integrity team”

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Amy Gardner and Yvonne Wingett Sanchez in the Washington Post:

“When conservative lawyer and media personality Christina Bobb became the latest member of Donald Trump’s inner circle to be charged for her alleged role in the effort to reverse the 2020 presidential election results, it became immediately clear she would not have to give up her day job: senior counsel to the Republican National Committee’s election integrity team.

“For some, there is a certain irony — if not outright conflict — that a leading purveyor of false claims that the 2020 election was riddled with fraud is a major player in the national GOP’s efforts to protect the integrity of the 2024 vote.

“But not for Bobb, and not for her closest allies — including Trump himself, who through a spokesman defended only Bobb by name among all the 18 individuals indicted Wednesday in Arizona. If anything, Bobb’s indictment solidifies her identity as a dedicated Trump loyalist who fiercely fought to reverse his loss in the politically competitive state and potentially elevates her role within the RNC to help him win in November.”

The article then details the role that Bobb played in the Arizona “fake electors” scheme, based on the allegations in the indictment and evidence from the House January 6 Committee.

The article then continues to discuss the potential role that Bobb might play in this fall’s election:

“Some who have left said they fear that the party’s new election-integrity operation, particularly with Bobb in its midst, will veer toward embracing unfounded conspiracy theories that alienate more moderate Republicans.

““That was a bad hire,” Robin Vos, the Republican speaker of the Wisconsin Assembly, said in a televised interview about Bobb’s new job. “Christina Bobb is part of the fringe element that I don’t think helps to build credibility, not only in our party but in the entire country.”

“Stephen K. Bannon, the former senior Trump adviser, said in an interview Thursday that he recommended to the Trump team that people like Bobb and others who have strong connections to the election integrity movement be hired into the RNC because “we need that kind of will to fight — someone who is going to contest elections everywhere.”

“With direct access to Trump by phone, Bobb can also serve as a direct link between the RNC and the former president, taking his input and sharing internal strategy with him, Bannon said. But that can cut two ways if Bobb pushes the party’s election integrity operation toward activity that draws legal scrutiny, several GOP operatives said, speaking candidly on condition of anonymity.

“Until 2018, the RNC operated under a federal consent decree prohibiting the committee from participating in election-day operations — the result of a 1982lawsuit from Democrats charging the committee with trying to discourage Black voters from casting ballots through targeted mailings and positioning armed, off-duty officers at polls in minority neighborhoods.

““What we worry about is Christina Bobb going rogue and doing something dumb and us getting thrown back into the consent decree,” one GOP strategist said.

“If volunteers or campaign operatives misstep, “Marc Elias and his well-funded allies are going to try to get the consent decree reinstated, and that’s something we’re all concerned about,” said another GOP operative, referring to the Democratic elections lawyer.”

There’s more in the piece. The whole article is very much worth a read.

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