For those who want a very deep dive into the issues that the Supreme Court will be exploring at the oral argument on Thursday in Trump v. United States, I highly recommend Harvard law professor Jack Goldsmith’s new article “The Core Issues in Trump v. United States: One Road Map.”
Goldsmith states that he is “pretty sure that the Court will reject former President Trump’s immunity claim,” but he emphasizes that “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.” He explores the interrelationship among three questions: (1) as a matter of statutory interpretation, do the four criminal statutes that Trump is alleged to have violated apply to the president? (2) if and to the extent that they do, does Congress have the constitutional authority to regulate the presidential actions at issue? (3) if so, what immunity does Trump have from criminal prosecution? (I confess that I am struggling to make sure that I understand the line between the second and third questions.)
In considering the impact on future presidencies, Goldsmith highlights that the statutes that Trump is charged with violating could apply to all sorts of “everyday presidential actions.” He notes in particular how special counsel Robert Mueller’s report on alleged Russian interference in the 2016 election adopted a very expansive view of how one of these statutes (on obstruction of justice) applies. Under Mueller’s view, the statute “could potentially apply to any presidential firing of an executive official in connection with that official’s ongoing executive performance.” Indeed it “sweeps much broader than that”:
Any executive action by the president with an “improper motive”—whatever that means—that benefits the president in connection with an “official proceeding” potentially implicates § 1512(c).
Interestingly, Michael Dreeben, the lawyer who is arguing for special counsel Jack Smith on Thursday, worked extensively on the Mueller investigation.