Lawfare Daily: What the Immunity Decision Says About Proving the Case Against Trump

[Introduction]

Benjamin Wittes: And the significance of footnote 3 is that within the category of immune behavior, it creates an exception. And so one of the questions that Judge Tanya Chutkan is going to have to think about in this remand is, what are the contours of these three categories? And what are the contours of this exception?

Natalie Orpett: It's the Lawfare Podcast. I'm Natalie Orpett, Executive Editor of Lawfare, with my colleagues, Lawfare Editor in Chief Benjamin Wittes and Lawfare Legal Fellow Anna Bower.

Anna Bower: The way that this footnote is written, it is not clear if what Roberts is saying is that this public record exception as we have described it is applicable to all types of situations in which a former president is being prosecuted.

Natalie Orpett: Today we're talking about Ben and Anna's recent article in Lawfare titled, “What's Going On in Footnote 3?” The article looks at a very specific issue buried in the Supreme Court's recent decision on presidential immunity and what it means for the future of Special Counsel Jack Smith's January 6th case against Donald Trump.

[Main Podcast]

So it's been a very busy week in the news and it was only a couple of weeks ago, on July 1st, that the Supreme Court issued a very important ruling in Trump v. United States with respect to the question of whether Jack Smith's case in D.C. against Donald Trump had to be dismissed on the basis of presidential immunity from criminal prosecution. So let's start, because it feels so long ago, with just reminding people what this case was about and what it found. Anna, can we start with you?

Anna Bower: We can. And Natalie, you're right, there has been a lot of news. This has been a year of a month. So I do want people to think back to, I think this opinion was issued by the Supreme Court on July 1st. This case is what we have called the presidential immunity case, but it is captioned Trump v. United States. And it's an appeal that arose out of Trump's charges in Washington D.C., that is the federal case that has been led by a Special Counsel Jack Smith. And it relates to conduct in the lead up to, and on the day of January 6th.

Trump is accused of various crimes related to efforts to pressure Mike Pence, for example into using his ceremonial role on the day of January 6th, when there's the joint session of Congress, to either basically count votes for Trump or to at least send the issue back to the states. There's a variety of other allegations in the indictment, but the main gist of it is that Trump is charged for obstructing the January 6th proceeding and efforts to defraud the United States and in the course of that conduct out of that case, as it proceeded in through the pretrial proceedings, Trump raised a claim of presidential immunity saying basically that he can't be prosecuted for conduct that he did while he was president. It went all the way up to the Supreme Court, and then earlier this month, we got the Supreme Court's decision. In that decision, if people remember, the Court basically determined that for the president's core function, so things like issuing pardons, that conduct, those official acts, are absolutely immune from prosecution. And then they came up with this second category of official acts that are presumptively immune from prosecution.

So those are things that aren't necessarily within the president's preclusive or conclusive powers, but things that are official acts nonetheless so in the course of analyzing the allegations in the indictment, for example, one of those things that the Court says is presumptively, but not absolutely immune, are Trump's communications on January 6th with his vice president, Mike Pence, and then the Court said that although at a minimum there's this presumption of immunity for that kind of conduct, the prosecution can then maybe rebut that presumption if it can show that there's no danger of intrusion on the authority and functions of the executive branch.

And then finally, in this third category, the Court said unofficial acts that the president did while he was in office are not subject to any type of immunity, and so a president can be prosecuted for those unofficial acts. So, I think that gives you a sense of the kind of main thrust of the opinion, but then we get to this other part that we are going to chat a little bit more about, which is this evidentiary ruling that the Court also set out in its opinion, and I think maybe I'll let Ben speak about that a little bit.

Natalie Orpett: Yeah, and let me just say first, before we turn it over to you, Ben, I think it's just notable to say that this piece that you guys did, which is focused on a footnote of a 119 page majority opinion, plus concurrences and dissents, is really one of very few analyses I've seen that relates to what is going to happen to this case on remand.

So, there's been a lot of discussion of what does the Court's analysis look like in terms of the separation of powers and the principles of immunity and the legal analysis that the Court sets forth. And by contrast, your piece is really looking at, okay, what does this mean in practical terms for Trump v. United States?

So Ben, with that said, why did you guys choose to focus on footnote three? And before we get into the nitty gritty of exactly what it says, what is its focus and why is it important on remand?

Benjamin Wittes: Yeah so, as Anna said, there are three categories in this. opinion, right? There's the category of absolutely immune stuff, which is ill defined, but reasonably well defined.

There's the category of not immune at all stuff, personal conduct, which is ill defined but reasonably okay defined. Then there's this intermediate category of presumptively immune stuff, which is almost entirely nebulous and very hard to define. And the significance of footnote three is that within the category of immune behavior, it creates an exception.

And so one of the questions that Judge Tanya Chutkan is going to have to think about in this remand is, what are the contours of these three categories? And what are the contours of this exception, which says, and we can get into the nitty gritty details, if it fits into this exception for public records of official acts you can use --- you can't charge the official act --- but you can use evidence of the official act.

So we can get into the details, but it’s this, a lot of people have spent a lot of time talking about these three categories, but there's been very little discussion of the exception. And one of the important things as you figure out how viable is a case against Trump going forward is how wide is this exception?

Is it very narrow and therefore there's all this immune activity and the government's kind of screwed? Or is it very broad, in which case, yeah, there's this formal immunity, but in fact there are a lot of ways around it, and the way you interpret all of that is packed into a single footnote. And so the way you interpret this footnote becomes really important to the vitality of a Trump case going forward.

Anna Bower: Right. And just to underscore where this footnote arises in the opinion --- and the context of it I think is helpful --- so as Ben mentioned, and as I discussed, in the main body of the opinion, there are these three categories and the Court says as an initial matter, Judge Chutkan is going to have to go through the indictment and basically take out any of the things that a president, that involves the president's official act that is subject to immunity, whether that means absolute immunity because it's a core power or presumptive immunity and the special counsel's office has not been able to rebut that presumption.

So that's the first step is just taking things out of the indictment that are immunized, that's protected conduct that the president cannot, the former president in this case, cannot be prosecuted for to begin with. But then the Court crafts in section 3(c) of the opinion, this kind of secondary evidentiary privilege that arises from the immunity itself.

And under that rule, even if you have an indictment and criminal charges that is all about unofficial conduct --- it could be official acts that are unprotected, it could be something like the classified documents case where there's just a time period of when the criminal activity started, and so that's all unofficial conduct, but maybe there's some evidence of official acts that need to come in while the president was in office, right? So you have these kinds of situations where you have an indictment charging unofficial conduct and the government in, at oral argument and in its brief, when this was being argued before the Supreme Court said, okay, even if we can't get some of this stuff in the indictment, so things like communications between Trump and DOJ officials about whether or not these investigations about voter fraud were really panning out, right?

So even if we can't get that in as charged conduct in the indictment, we still want to be able to have it admitted at trial for these very limited specific evidentiary purposes. And that's something that very often happens at trial with other evidence that maybe is inadmissible because it might be hearsay, but you can admit it for a very limited purpose, something like, effect on the listener, that kind of thing. And maybe you'll have a jury instruction in which the Court says, you can't take this as evidence of guilt itself, but you can consider this evidence for this other limited purpose. So that's what the government wanted to do with this class of things that would be protected, that can't be charged, but they still wanted to introduce it as evidence. And the Supreme Court said no, no, no, you can't do that. That would basically swallow the rule that we've crafted. And it would, do exactly what we have warned against, which is this threat to the functions of the executive.

So they, they craft this evidentiary privilege, or what seems to be like an evidentiary privilege, that is the secondary rule to the actual, jurisdictional immunity that would apply in terms of striking conduct from the indictment.

Natalie Orpett: I want to sort of talk through in just in practical terms what this is going to look like just to put a little bit finer point on the play by play.

And I have a question for you guys and in connection with that. So this case will go back to Judge Chutkan on remand. I'll note for people who are interested that we're not sure of exactly what the timing will be for that. Should be, I believe Anna, you told me around the beginning of August that the mandate will be returned to the D.C. Circuit and then it's up to the D.C. Circuit how quickly it then returns the mandate to Judge Chutkan for further proceedings at the district court. So we're not sure exactly what that timing will be, but probably sometime in August. Judge Chutkan is going to be faced with the initial threshold question, which maybe she will have Jack Smith's office do in the first instance, or maybe will decide on her own, which is of the indictment alleged conduct, what constitutes category one, fully immune, core presidential conduct, what constitutes category two, official conduct that is not core and is therefore presumptively immune, and what conduct is unofficial and therefore not immune at all.

So my question first before we get to this question of what the evidence would look like to prove the charges that do survive that initial threshold question in terms of not being part of the first category of completely immune, is, did you guys read from the footnote that in determining that threshold question of which category the charges are in, that there will be a restriction on discussing conduct that is official in just trying to, for example, argue that something is in category one versus category two, or is that not going to create a barrier for the prosecution?

Benjamin Wittes: So, I think it's impossible to restrict that conversation in litigating that question, because if you're trying to decide whether something's official or unofficial, you have to be able to discuss what it is, right? Right, so you can't say it's privileged from even being discussed, because then how do you characterize it, right?

The defense has to be able to say, this was Donald Trump doing X, which is his official responsibility under Article II, section whatever. Here are the circumstances and why we think it's official and not official and the prosecution has to be able to say, okay, this is clearly personal activity because he was acting more in his capacity as a candidate than as a president.

I think you have to be able to have that conversation or you can't even do the threshold analysis. And since the Supreme Court itself kind of does that, when it analyzes, for example, the conversations with Mike Pence or the conversations with the Justice Department, I think you have to assume that the district court is going to be able to do a certain amount of I guess the equivalent of what, in a different context, you would call jurisdictional discovery, right?

Looking at the circumstances of the allegation to figure out if you have jurisdiction to think about the case, or in this case, looking at the circumstances of the allegation to think about whether you have the power to consider this or whether the president is immune.

Natalie Orpett: Yeah, I agree with that. I do wonder whether Trump's team will try to argue to the contrary, that actually we can't talk about these things at all because part of the Court's reasoning for why, that official conduct should not be called into question is this notion that immunity is for the purpose of a defendant, in this case a former president, not having to answer for official conduct.

Benjamin Wittes: So I agree that they could argue that, but I think they won't want to, because they will want to make the argument that because he was having X conversation, which was characterized by X, Y, and Z, it does fall into the official, right? And they will want to characterize it as much as the prosecution may want to characterize it.

And so my guess is that they will not take the position that you describe. I also think that the Supreme Court itself did not take that position because it sent it down for, it basically said the district court is better positioned to do this in the first instance than we are, and if you were purely going off the papers, then that wouldn't be true.

Anna Bower: Well, and the Court also, it actually says that there might be need, for example, when you're deciding if the speech on January 6th is an official act, the Court says there needs to be more information such as who organized the rally, that kind of thing. So that just, to me, clearly indicates that the Court thinks that there would be some kind of need for at least a limited kind of evidentiary or fact finding situation.

So I think that it clearly is the case that here you can talk about the official acts in a pre-trial proceeding in which the job of the judge is to figure out whether these things are protected or not.

Natalie Orpett: Yeah, I agree with that. I do just wonder if Trump's team, although I agree with you, Ben, they do have a sword and shield problem here, whether they will raise that objection if as we think is plausible that part of the litigation strategy has been and will probably continue to be to delay as much as possible, but we shall see.

Okay, so moving on to the real focus of your piece, which is, so now we've passed the threshold question. We are looking at conduct in the indictment, charges that relate to conduct that are either in that second category of official and therefore presumptively immune conduct or non-immune conduct because it's personal or non official.

So let's talk about what the footnote says with respect to trying to prove those charges. If you're the prosecution, you need evidence to prove your case, obviously. And footnote 3 speaks exactly, in a very ambiguous way, as you guys will undoubtedly describe, about what that should look like. So talk us through what this footnote packs into a very short little couple of sentences.

Benjamin Wittes: Yeah, so in order to understand footnote 3, you have to understand Amy Coney Barrett's objection to the Roberts opinion, and in order to understand her objection, you have to understand the Roberts opinion itself.

So, the Roberts opinion, which represents six justices, in general, does not represent six, it represents only five on this key point. And this is because Amy Coney Barrett jumps off. So Roberts says, first of all, if it's immune conduct, it is at least presumptively immune. And that means not only that you can't be charged for it, but it means you can't use evidence of it to prosecute unimmune, non immune behavior. And this is really important in the January 6th case because Trump isn't charged with giving an order under Article, his commander in chief power to the military, right? And he's not charged with issuing pardons corruptly. He's charged with a variety of general offenses, three to be precise, an obstruction crime, defrauding, fraud against the United States, and a conspiracy against rights.

Some of the acts in this conspiracy are potentially immune. And so the government's position at oral argument was, it's fine if you declare the acts immune, as long as you let us use evidence of the acts in charging a non-immune behavior, much as you can use, say, First Amendment protected activity as an overt act in a conspiracy, right?

So Robert says no, and he analogizes this to the Speech and Debate Clause context, where not only is the act itself immune, you can't charge me, the Editor in Chief of Lawfare with the official act of editing a piece --- if there were editor in chief immunity, which, alas, there is not --- but you can't use that as evidence in some other case.

Let's say you charged me with murdering a writer, which I have often had the urge to do, and the reason was that their copy was so bad that the edit was impossible. You couldn't say, look at the conduct of Wittes in editing this piece. This drove him into a murderous rage, and he finished off the writer with a knife. That stuff is privileged, essentially. And Amy Coney Barrett jumps off at this point and she says, that's ridiculous, because if you take that seriously, then if you paid the president a bribe in exchange for something like a pardon, you could show the agreement to receive the bribe, you could show the payment, but you couldn't show the quo in the quid pro quo, that he actually issued the pardon.

And Roberts responds to this in a footnote. And he says, and footnote 3, which is one paragraph to respond to this rather weighty argument. And it basically says no, you can use the public record of the fact of the official act. You just can't use testimony about the president's thinking or actions in leading up to it.

So you can't make him testify or make his aides testify. And for a lot of reasons that I think we will probably go into, but I'm going to shut up here, this is a really complicated proposition, and one that potentially gives rise to a lot of different possibilities at the lower court level.

Natalie Orpett: Okay, so let's start doing that digging into the nitty gritty. I think it's probably, this is a very circuitous route, but maybe let's start with this notion of public records, which as you say, Ben, Roberts indicates you can use as evidence, public records. Anna, what does that mean exactly?

Anna Bower: We have no idea. It's unclear. So Roberts uses the term public records, but it's not clear if what he might mean is for example, an official record.

A government record that is an official record of something that some act that the president performed or some something that the president did. It's not clear if he just means, information in the public realm. So could you, for example, use a book that has been published or --- and again, we're putting aside for a minute, any other kind of evidentiary issues with admissibility related to hearsay or whatever, but just in thinking about this, it's not clear: is he talking about books, or is he talking about published news coverage, that kind of thing, or is he talking about public records, meaning something like, that's the equivalent of maybe like things that you could take into account under a judicial notice. So things that are just commonly known facts in the world that aren't subject to reasonable dispute by the parties.

It's really unclear what he means by a public record. The only thing that we know is that he says that in, for example, a bribery prosecution, the prosecutor may point to the public record to show the fact that the president performed the official act. He then distinguishes that from an example where you're introducing what he calls the private records of the president or his advisors, and so there is this public private distinction that he has in mind. It may reflect the categories I just described, or it may more so reflect just a distinction between things that are publicly available and things that might typically be subject to executive privilege or deliberative process privilege, that kind of thing. So it's really unclear, Natalie, what we're even talking about here when Roberts mentions the public record of the official act.

Natalie Orpett: Yeah, so let's actually use the bribery example that you mentioned, Anna, because you guys spent a good amount of time talking through what that would look like specifically and noted that it actually came up in oral argument. So Ben, walk us through what the bribery example would look like if you were trying to figure out how to apply Roberts's rule in footnote three.

Benjamin Wittes: So one possibility is that, let's say the official act was a pardon, right? One possibility is you could use the public declaration of a pardon, right? There's usually a formal document delivered to the defendant or convict. That has to be pled in court. You could show that was pled in court.

Another possibility is what about the White House statement that a pardon has been issued, that's a formal thing on the White House website, right? You probably couldn't use the public record in the form of a newspaper story about it. But what if the White House press secretary gets up and announces it or the Justice Department puts it on its website?

What constitutes a public record of a pardon is a relatively simple example. Let's take a much more, an example that's more pertinent to the January 6th case. What if the public act, the official act, is a tweet? So we assume that would be some kind of official act because it's something he did in public in his capacity as president.

But it is an official act that leaves a public record. So can you use the tweet because it is a public record of an official act? And if so, can you use the fact of the tweet, or can you use the substance of the tweet, which also has a public record, is a public record, and every type of official act leaves somewhere between zero and a really robust public footprint.

And the question is, at what point does that public footprint, first of all, it's become a public record of the act for purposes of footnote three. So let's talk about an extreme example that we wrote about in the piece. A lot of the activity that Donald Trump engaged in with respect to the pressuring of Mike Pence is presumably inadmissible now because these are official acts of the president communicating with the vice president. But the vice president wrote a book about all of this, and he details a whole lot of it, these interactions in the book. So this book is probably hearsay, and so it's probably inadmissible for other reasons.

But leaving aside the hearsay question, are these official records, public records of the official act? When Mike Pence writes about it, publishes it, is that a public record of these official acts that would otherwise be inadmissible? So there's a gazillion questions regarding which of these are and are not plausibly admissible, and there is just zero guidance in the opinion as to how to think about it.

Anna Bower: And there's also zero guidance as to whether bribery is maybe in some ways unique. The way that this footnote is written, it is not clear if what Roberts is saying is that this public record exception as we have described it, is applicable to all types of situations in which a former president is being prosecuted, or is it the case that bribery is actually a little bit unique because it's in the Constitution, because Congress has specifically enacted a statute that mentions official acts and that the Supreme Court has interpreted bribery to require a quid pro quo.

So there's this kind of question, of does this even apply to the situation that we have here where Trump is not charged with bribery, but the example that Roberts is using in the footnote is bribery? So there, it's really just a lot of questions that this footnote raises, Natalie, and it's unclear exactly how it would apply.

Also, since we're talking about bribery, the bribery example, I think that one of the things that this public record exception that Roberts kind of mentions in this footnote, one of the things that it really raises is this question of how exactly in a bribery prosecution, if you're introducing even the fact of the public act being performed, how does that not then do exactly what Roberts warns against, which is this question of second guessing the president's exercise of his official duties?

Because presumably in a bribery prosecution, the reason that you're introducing the fact of the official act being performed is that you're using it as circumstantial evidence that there really was a corrupt agreement to exchange the act for whatever it is, the thing of value that the president is accepting in return.

So it all just collapses in on itself in terms of the reasoning here. It's unclear exactly why Roberts thinks introducing the fact of the performance in a bribery prosecution would be any different from second guessing the president's conduct because you've admitted private records or communications between him and his advisors.

Natalie Orpett: Okay, so let's switch over to as you mentioned briefly, Ben, but I think it's worth diving in. You guys talk through at length applying this to the case of Mike Pence. So we have a lot of information about what the indictment is charging with respect to the conduct underlying the criminal charges that Jack Smith's office is bringing. And you guys walked through what that might look like and the range of ways that footnote three could be interpreted and what that would mean for being able to prove the charges relating to Mike Pence. Ben, can you just talk through some of that for us?

Benjamin Wittes: Yes. So, I think the first thing that's going to happen when the mandate comes to the district court is that in one way or another, she's going to say, which matters here are in dispute?

Which side do you both agree, based on the Supreme Court opinion, are immune acts that need to be stricken from the indictment? Which do you both agree are personal behavior that are not covered? And remember that Trump's lawyer made some concessions in that regard at oral argument or seemed to anyway.

And so there's going to be some category of thing that they're both going to agree. And I think the first step will be to identify those things. The second step is going to be, what are the parameters of the disagreement with respect to all of these other facts? And one of the things that the government could say in each of these areas is, yeah, this is an official immune act, and we have to take it out of the indictment, but there's a public record of it that we can use as evidence. So you're not going to strike it as evidence. And I think there's a whole lot of stuff with respect to the interactions with Mike Pence that fit into that category. For example, all of the tweets where Trump puts pressure on Pence. There's going to be a real argument about that. The government, I think, will get to argue, hey, this is an assuming arguendo that it's an official act. It's an official act of which it is its own public record. So all of the tweets come in. Trump's people will surely disagree with that. And you're going to have a district court ruling on that.

There are also parts where Trump, in those speeches, in those public statements, some of which are tweets and some of which are not, refers to his private communications with Mike Pence. And so surely the government is going to argue, hey, this is, subject to the hearsay exception for past admissions, basically.

He's admitted to this fact. It's a statement contra interests. And here it is in the middle of an official act that creates its own public record. There are a series of much harder questions. One of them is everything from the Pence book. And here the government has a higher burden, I think. First of all, it's not clear to me whether this is a public record of the official act, or whether it's Pence's private… I don't know what it is. I don't know how it operates under footnote three.

Even assuming that it's a public record under footnote three, the government would have to argue that it's subject to some hearsay exception, because it's pretty clearly hearsay. So I think there are a bunch of issues here that depending on how broadly you read the exception and other rules of evidence, you can imagine a lot, but not all, of the Mike Pence stuff coming in.

Then, there's this other thing, and I'll stop here, which is, of course, the government is not going to concede that because it is an official act, the conversations with the Vice President, that it is absolutely immune. They're going to argue that it's presumptively immune, and they get to overcome the showing of immunity, which will also be contested.

So I think a huge amount of stuff is going to be fought out --- including the parameters of footnote three --- over the conversations between Trump and Mike Pence.

Natalie Orpett: Yeah. And I just was going to add one additional layer to the complication, which is that in the ambiguity over what constitutes a public record, there's also the issue as an evidentiary matter, how much needs to be authenticated and how likely it would be that authenticating evidence that is trying to be admitted would in and of itself raise, arguably, official private conduct that the footnote does say pretty specifically should not come in. But Anna, let me turn to you for any other comments you have on the Mike Pence materials and how this might apply.

Anna Bower: Yeah look, I think Ben and I maybe have a different view of what, like I don't think that we in the piece, we're just asking what could possibly be included in a public record.

But I think that potentially Ben and I have a little bit more of a narrow view of what Roberts means by a public record. I, I think that the Pence book is almost certainly not included in that category. I think if I really had to pick one of those categories that we previously discussed, it might be something more like he means not public record, but maybe official record or something like a judicial notice type of category of facts.

So I think that I have a little bit of a more narrow view of what might be able to come in. But with that said, again, the footnote is so unclear we really have no idea. So it could be the case that the Pence excerpts from the Pence book, notwithstanding any hearsay issues, could come in for some limited purposes.

One of the questions that I have is, how then do you, because what's very unclear in the Court's opinion that the Court doesn't discuss is issues of things that arise in a trial setting, things like waiver or opening the door. So if, for example, you introduce some of this stuff through a witness.

And then, the defense gets up and starts cross examining that witness on certain matters. Is there a possibility that they have then opened the door further on redirect for things that maybe wouldn't otherwise have come in that are presumably official or protected acts? You know, there's just these kinds of questions that are really tricky that I think arise when you start thinking about things that might otherwise be protected conduct coming in through public record evidence and how that really might work with some of the other normal rules and functions of evidence and the kind of trial process. So I think that's something that I'm still thinking about, but certainly raises a lot of interesting questions.

And I think the Court just, it seems very clear that those kinds of practical things are, I think, not really on the Court's mind and not addressed, certainly not addressed in the opinion, but it just makes a mess of things on remand when you're actually trying to take this case through a trial.

Natalie Orpett: And on that point, is it the case, do you think, that given the very wide range of interpretations that you point out, there will certainly be dispute wherever Judge Chutkan falls on that range of interpretations? Will that be subject to interlocutory appeal?

Anna Bower: My, I think it will be. I think the Court is very clear that basically up through, any kind of evidentiary rulings, the pretrial, there's the going to be first the issues of the motion to dismiss but then there's all, and do you do these things at separate stages or do you do it all at once?

So does Judge Chutkan, before she can even decide on any of the other outstanding motions, does the prosecution basically just have to give her a list of not only just the indictment, but every single piece of evidence that they would want to introduce at trial? And she has to do this type of analysis for all of those things? And that is no small task, especially for a trial that is complex, has many witnesses, was expected to go on for many weeks. It, it really puts a big burden, not just on the prosecution to create this kind of, or facilitate that kind of maybe list of all the things that they want to introduce.

I don't even know if that's how it would work, but it's a certainly no small task for the trial court judge. And again, just really underscores what a mess this opinion makes for actually the practical matter of getting a case like this to trial, because even if a president, a former president, is not immune for all of his acts while in office, it certainly seems like as a practical matter, no prosecutor would even want to bother with going through this process because it's so unclear, so uncertain, and you really don't know if you're, at the end of the day, going to be able to get in the evidence that you need to.

Benjamin Wittes: Yeah, and just to be clear, it's not entirely clear to me that you can do this in only one round of interlocutory appeal, although I suspect a clever district judge can make a running start at it. Anything that she rules to be unofficial conduct, that is subject to interlocutory appeal, and then it would get sent back, and she would have to decide, okay, if it's in this category two, is the thing, is the presumption of immunity overcome?

And then that is subject to interlocutory appeal. Now you could imagine her doing a certain amount of, I find that this allegation is personal conduct, not subject to immunity. And assuming, arguendo, that it is subject to presumptive immunity, I find that the presumption is overcome, and thus trying to consolidate two rounds in one. But I do think the likelihood that you will have residual immunity issues after the first round of --- or the second round, since we’ve already done the first round of interlocutory appeal --- is not trivial.

Anna Bower: And also, and that kind of goes back to what I was asking, which is because of course, usually you do your motions to dismiss, the posture or the form of this motion that is pending, that is now going back to Judge Chutkan, is a motion to dismiss based on presidential immunity.

That's about the allegations in the indictment. But then you usually, as you're heading towards trial, have something called motions in limine, that's when you deal with kind of these evidentiary, or discrete evidentiary exclusions that the defense might want to keep certain evidence out before trial.

So do you even still do it in that order here? Because there's all these other motions to dismiss and those kinds of issues that Judge Chutkan still has outstanding issues to rule on, but the normal order of the pretrial process is just kind of shaken up here because the Court has said that these immunity issues have to be dealt with at the outset. So it's really unclear.

Natalie Orpett: So I think we can fairly conclude that there will be many months, at least months, of pretrial litigation long before this gets to trial. So, I think we're going to have to leave it there, but Anna and Ben, thank you so much for joining.

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