In anticipation of Thursday's oral argument, Jack Goldsmith (Harvard) has a long post at Lawfare: The Core Issues in Trump v. United States: One Road Map. From the introduction:
This essay provides a road map of the core legal issues in Trump v. United States as I see them. It is just a road map; I do not opine on how the Court should resolve most of the issues in the case. I am pretty sure that the Court will reject former President Trump’s immunity claim. But how the Court crafts its immunity analysis, and what collateral issues it addresses along the way, are enormously important to the impact of the Court’s decision on future presidencies. This impact will, I think, be a central issue at oral argument and a central consideration in the drafting of the opinion. I address the impact issue at the end of this lengthy piece, after first laying out how I think the various legal doctrines in the case fit together.
And from later on:
To understand what is at stake in the case, one needs to unpack three issues and understand their relationship to one another.
First, do the four criminal statutes Trump allegedly violated apply to the president? The § 1512 crimes apply to “whoever” does the bad acts; and §§ 241 and 371 apply to “persons” who commit the offenses. The applicability issue is whether these generally worded statutes, properly construed, govern official presidential action. A second-order applicability question is which official presidential actions do they apply to—all of them?; some subset, and if so, which one?; acts in which presidential power is not unduly burdened? (Another applicability issue, not examined here, is the question raised in Fischer v. United States on whether and how § 1512 applies to Jan. 6 events.)
Second, if the statutes govern some presidential conduct, are they constitutional, and if so, to what extent? This constitutionality issue is whether Congress has the authority to regulate the presidential actions in question, which reduces in this context to whether certain presidential actions implicate exclusive presidential power that Congress cannot regulate.
Third, if the statutes apply to the president and are constitutional, does Trump have immunity from prosecution for their violation? This immunity issue is the one formally before the Court. A second-order immunity question concerns which presidential actions should receive immunity. For example, assuming some immunity attaches, does it attach to all official acts, or a subset? And how would one determine which acts are official and which are private?
(Via Ed Whelan at Bench Memos.)
Posted at 6:26 AM