In court papers filed in federal court in West Palm Beach, Florida, the former president’s lawyers argued that he is immune from prosecution on the basis of presidential immunity.
This gets complicated because the media does indeed summarize it as just simple “Presidential immunity” but Trump’s lawyers are approaching this legal theory from various angles all which have different underlying basis.
There are two cases to note here. A civil trail related to the January 6th attempted coup and a criminal case related to the same event. The US Court of Appeals for the DC Circuit denied cause for dismissal in that case based on the legal theory that Trump was immune from CIVIL prosecution on that mater for having been once the President. Trump was granted the ability to carry the three judge ruling to SCOTUS to which Trump’s legal passed on moving on that appeal by allowing the time period to elapse.
The criminal case is being handled by Special Prosecutor Jack Smith, that is in the United States District Court for the District of Columbia and is being handled by Judge Tanya Chutkan. Trump’s legal team has recently filed with the US Court of Appeals for the DC Circuit a request for dismissal based on the legal theory that Trump is immune from CRIMINAL prosecution on that matter for having been once the President. That is pending schedule upon the docket.
Okay with that background. This case is being heard in the United States District Court Southern District of Florida, this is related to criminal charges that Trump mishandled classified documents in violation of the Presidential Records Act. This story circles around Trump’s legal team filing a request with the aforementioned court, a request for dismissal based on the legal theory that Trump is immune from questioning about the classification of records for having been once the President.
Interestingly, part of the cause for dismissal that was also filed in this filing were the following (and no, I shit you not):
The law is vague and cannot be ruled upon, therefore the law should be ruled unconstitutional. (Basically vague laws = unconstitutional).
The law targets Presidents to which, a law cannot regulate Presidents and thus should be ruled unconstitutional. (Presidents cannot be restricted by laws passed by Congress)
Special Counsel appointments are not well founded in law and are therefore unconstitutional. (* I’ll have a second comment on this if you really, really want to know the basis for this one.)
The Presidential Records Act in it’s entirety is unconstitutional. (Kitchen sink attempt.)
There were additional motions filed with the court but those were done via email and have not been released by the Court at this time.
Yeah, it’s easy to be confused because there’s a lot of this going around. But so far, SCOTUS hasn’t actually ruled on the matter to put the nail into the proverbial coffin. But we don’t hear about the Trump legal team basically starting every court case thus far with a motion to have the Judge recuse themselves because it is impossible for them to be fair. Why is it impossible for them to be fair? Changes from Judge to Judge, but the most recent one was because of an opinion the Judge had shared in her personal capacity that Trump’s legal team felt was too Democrat-ish to render fair rulings. It was summarily dismissed.
So Trump’s legal team uses a lot of various arguments with slight changes a lot in various venues. So that might be why you keep hearing them in the news.
NOTE: This is to add some context to the whole Special Counsel argument.
28 CFR 600 is what covers all the ins and outs of a Special Counsel appointment. Note the CFR there? That stands for Code of Federal Regulations. Regulations are created by the various Executive offices, but you might ask yourself, how can the Executive create something without Congress being involved, and this gets into the fine details of how the US Government works.
As you know LAW requires that Congress pass a bill in both chambers and then send it to the President for a signature or a veto. And if vetoed then Congress can override it with a ⅔ vote. LAWs usually don’t get into a lot of detail, they’ll usually do something along the lines of:
The United States Department of Defense shall build unto Congress an army worthy of Mordor and it shall not exceed the cost of $14 bazillion. Additionally, the following units are required to be purchased (insert a lengthy list of things Lockheed-Martin sent to Congress)
And that’s about it. Now the exact method for “who’s going to the local fighter jet store to pick up a few F-15s, who’s building the antitank missles, where is this all being delivered to, etc” All of that falls into whoever was named, in this case it’s the DoD. So now the DoD will begin issuing RULES and REGULATIONS on how to get that LAW done. How that happens is way longer than I want to talk for, but it’s complex.
Okay. So we’ve covered CFR. There is also USC which stands for United States Code. This is those LAWs “codified”. A law comes out of Congress as Public Law (or private law, but we’re not going to cover that). This is usually listed as Pub. L (Congress number)-(Number of law that has successfully been enacted). We are currently on the 118th Congress, thus the first law passed by this Congress would be called Pub. L 118-1 (note this does not apply to public law prior to 1901) All public, private, and everything else that comes from Congress gets put into a giant collection of books called the United States Statutes at Large (Stat), this is everything that has ever come from Congress. It is in the format of (volume) Stat. (numbered item), so the 5th thing in volume 23 is 23 Stat. 5 All of this eventually get codified so if one Pub. L cancels another prior Pub. L or amends it or whatever, the sum of all of those changes are in a final form in USC. Which that format is (title) USC (subsection). A title is a BROAD (and boy do I mean that word) subject matter. So like Title 16 is “CONSERVATION” and that is like National Park, endangered species, and just a smattering of all kinds of other things that remotely relate to that subject. Title 26 is all about taxes!! Subsection is a great way to drill down to a single thing in USC, but there’s also Chapters, Subsections, and so forth. And each title uses it’s own little scheme of subdivision, so boy oh boy is it fun to go through.
So quick recap, Congress passes various kinds of bills, the public law bills that get enacted are Pub. L, those are filed into Stat., and then any that cancel/update/amend/change previous ones are coalesced into USC. So you’d find all the historic tax brackets in Stat., you’d find the current tax brackets in USC. And all of those were established by Pub. L.
Okay, so I think that’s everything background you need. Sorry if you already knew it.
So 28 CFR 600, since its a regulation, has to state whence it gets its authority. That’s a requirement of all regulations. 28 CFR 600 cites the following:
5 USC 301
28 USC 509
28 USC 510
28 USC 515-519
5 USC 301 is a broad grant that basically says each department head may create regulations that they are granted power by law to do. It also bars, by default, the withholding of information from the public (but that’s not material here).
28 USC 509 and 510 are things about what the Attorney General (AG) can do and says that the AG is officially cleared to cite Title 5 powers (see that whole 5 USC 301 thing).
28 USC 515 is the first time we hear about Special Counsel. 516 to 519 indicate who can summon up one and who a Special Counsel can talk to etc. So specifically, all the various paragraphs in 28 CFR 600 fall into 28 USC 515(a) for Trump.
The Attorney General …, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct…
Which Trump’s legal team says the President cannot be one of those brought under this law. Because separation of powers.
So since 28 CFR 600 cites power from 28 USC 515, which cannot possibly have a President in there, 28 CFR 600 fails because 28 USC 515 fails. Or at least that’s the theory.
Thanks for that! I found it interesting. But I still don’t get the argument. Are they saying that
The Attorney General …, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct…
Cannot apply to Preisdents because Presidents are not included in the set of people that US Attorneys are authorized to conduct proceedings against? Or that since this is all based on US Code, and US Code comes from Congress, it magically can’t apply to the President?
I always thought all these arguments for Presidential Immunity were based on standing DoJ policy to not indict sitting Presidents. And that is based simply on the chain of command. It isn’t intended to shield corrupt Presidents, but rather to protect ethical Presidents. Since a President is the guy who the DoJ is ultimately accountable to, if they ever investigate a sitting President and exonerate him, his opponents will automatically assume it was rigged, even when it wasn’t. Where if you wait until he leaves office, (which is constitutionally guaranteed to happen), you can now have an investigation with more independence.
Thank you for taking the time to write this explanation. It was very helpful and insightful!
Part of the interest in following court cases is seeing clever litigators spar with each other using deep knowledge of the law and nuance arguments. So much of the Trump lawyers looks like unending streams of bad faith or straight up nonsensical arguments. Its depressing so much oxygen has to be spent on addressing these bad faith arguments. Such is the limits and burdens of following the law, I suppose.
You know I heard a saying once. The wheels of Justice are slow but grind exceedingly fine. Yeah, it takes a hot minute to get through everything, but when the arguments run out and the verdicts are handed out, boy are they crushing.
This gets complicated because the media does indeed summarize it as just simple “Presidential immunity” but Trump’s lawyers are approaching this legal theory from various angles all which have different underlying basis.
There are two cases to note here. A civil trail related to the January 6th attempted coup and a criminal case related to the same event. The US Court of Appeals for the DC Circuit denied cause for dismissal in that case based on the legal theory that Trump was immune from CIVIL prosecution on that mater for having been once the President. Trump was granted the ability to carry the three judge ruling to SCOTUS to which Trump’s legal passed on moving on that appeal by allowing the time period to elapse.
The criminal case is being handled by Special Prosecutor Jack Smith, that is in the United States District Court for the District of Columbia and is being handled by Judge Tanya Chutkan. Trump’s legal team has recently filed with the US Court of Appeals for the DC Circuit a request for dismissal based on the legal theory that Trump is immune from CRIMINAL prosecution on that matter for having been once the President. That is pending schedule upon the docket.
Okay with that background. This case is being heard in the United States District Court Southern District of Florida, this is related to criminal charges that Trump mishandled classified documents in violation of the Presidential Records Act. This story circles around Trump’s legal team filing a request with the aforementioned court, a request for dismissal based on the legal theory that Trump is immune from questioning about the classification of records for having been once the President.
Interestingly, part of the cause for dismissal that was also filed in this filing were the following (and no, I shit you not):
There were additional motions filed with the court but those were done via email and have not been released by the Court at this time.
Yeah, it’s easy to be confused because there’s a lot of this going around. But so far, SCOTUS hasn’t actually ruled on the matter to put the nail into the proverbial coffin. But we don’t hear about the Trump legal team basically starting every court case thus far with a motion to have the Judge recuse themselves because it is impossible for them to be fair. Why is it impossible for them to be fair? Changes from Judge to Judge, but the most recent one was because of an opinion the Judge had shared in her personal capacity that Trump’s legal team felt was too Democrat-ish to render fair rulings. It was summarily dismissed.
So Trump’s legal team uses a lot of various arguments with slight changes a lot in various venues. So that might be why you keep hearing them in the news.
NOTE: This is to add some context to the whole Special Counsel argument.
28 CFR 600 is what covers all the ins and outs of a Special Counsel appointment. Note the CFR there? That stands for Code of Federal Regulations. Regulations are created by the various Executive offices, but you might ask yourself, how can the Executive create something without Congress being involved, and this gets into the fine details of how the US Government works.
As you know LAW requires that Congress pass a bill in both chambers and then send it to the President for a signature or a veto. And if vetoed then Congress can override it with a ⅔ vote. LAWs usually don’t get into a lot of detail, they’ll usually do something along the lines of:
And that’s about it. Now the exact method for “who’s going to the local fighter jet store to pick up a few F-15s, who’s building the antitank missles, where is this all being delivered to, etc” All of that falls into whoever was named, in this case it’s the DoD. So now the DoD will begin issuing RULES and REGULATIONS on how to get that LAW done. How that happens is way longer than I want to talk for, but it’s complex.
Okay. So we’ve covered CFR. There is also USC which stands for United States Code. This is those LAWs “codified”. A law comes out of Congress as Public Law (or private law, but we’re not going to cover that). This is usually listed as Pub. L (Congress number)-(Number of law that has successfully been enacted). We are currently on the 118th Congress, thus the first law passed by this Congress would be called Pub. L 118-1 (note this does not apply to public law prior to 1901) All public, private, and everything else that comes from Congress gets put into a giant collection of books called the United States Statutes at Large (Stat), this is everything that has ever come from Congress. It is in the format of (volume) Stat. (numbered item), so the 5th thing in volume 23 is 23 Stat. 5 All of this eventually get codified so if one Pub. L cancels another prior Pub. L or amends it or whatever, the sum of all of those changes are in a final form in USC. Which that format is (title) USC (subsection). A title is a BROAD (and boy do I mean that word) subject matter. So like Title 16 is “CONSERVATION” and that is like National Park, endangered species, and just a smattering of all kinds of other things that remotely relate to that subject. Title 26 is all about taxes!! Subsection is a great way to drill down to a single thing in USC, but there’s also Chapters, Subsections, and so forth. And each title uses it’s own little scheme of subdivision, so boy oh boy is it fun to go through.
So quick recap, Congress passes various kinds of bills, the public law bills that get enacted are Pub. L, those are filed into Stat., and then any that cancel/update/amend/change previous ones are coalesced into USC. So you’d find all the historic tax brackets in Stat., you’d find the current tax brackets in USC. And all of those were established by Pub. L.
Okay, so I think that’s everything background you need. Sorry if you already knew it.
So 28 CFR 600, since its a regulation, has to state whence it gets its authority. That’s a requirement of all regulations. 28 CFR 600 cites the following:
5 USC 301 is a broad grant that basically says each department head may create regulations that they are granted power by law to do. It also bars, by default, the withholding of information from the public (but that’s not material here).
28 USC 509 and 510 are things about what the Attorney General (AG) can do and says that the AG is officially cleared to cite Title 5 powers (see that whole 5 USC 301 thing).
28 USC 515 is the first time we hear about Special Counsel. 516 to 519 indicate who can summon up one and who a Special Counsel can talk to etc. So specifically, all the various paragraphs in 28 CFR 600 fall into 28 USC 515(a) for Trump.
Which Trump’s legal team says the President cannot be one of those brought under this law. Because separation of powers.
So since 28 CFR 600 cites power from 28 USC 515, which cannot possibly have a President in there, 28 CFR 600 fails because 28 USC 515 fails. Or at least that’s the theory.
Thanks for that! I found it interesting. But I still don’t get the argument. Are they saying that
Cannot apply to Preisdents because Presidents are not included in the set of people that US Attorneys are authorized to conduct proceedings against? Or that since this is all based on US Code, and US Code comes from Congress, it magically can’t apply to the President?
I always thought all these arguments for Presidential Immunity were based on standing DoJ policy to not indict sitting Presidents. And that is based simply on the chain of command. It isn’t intended to shield corrupt Presidents, but rather to protect ethical Presidents. Since a President is the guy who the DoJ is ultimately accountable to, if they ever investigate a sitting President and exonerate him, his opponents will automatically assume it was rigged, even when it wasn’t. Where if you wait until he leaves office, (which is constitutionally guaranteed to happen), you can now have an investigation with more independence.
Thank you for taking the time to write this explanation. It was very helpful and insightful!
Part of the interest in following court cases is seeing clever litigators spar with each other using deep knowledge of the law and nuance arguments. So much of the Trump lawyers looks like unending streams of bad faith or straight up nonsensical arguments. Its depressing so much oxygen has to be spent on addressing these bad faith arguments. Such is the limits and burdens of following the law, I suppose.
You know I heard a saying once. The wheels of Justice are slow but grind exceedingly fine. Yeah, it takes a hot minute to get through everything, but when the arguments run out and the verdicts are handed out, boy are they crushing.
A wishful cliche that excuses the problems within because sometimes it does what we wanted.