This. Is. Not. A. Drill.

A bizarre day at SCOTUS

We’ll return to our irregularly scheduled programming in a moment, but I thought you might need some reassurance this evening: You are definitely not crazy if you thought what happened at the Supreme Court on Thursday was some weird sh*t.

Even Auggie was shocked.

This, as Protect Democracy’s Ian Bassin never tires of reminding us, is not a drill.

“Frog in boiling water alert,” Bassin posted as he listened to Thursday’s arguments. “Who could have imagined 8 years ago that in the Trump era the Supreme Court would be considering whether a president should be above the law for assassinating opponents or ordering a military coup and that *at least* four justices might agree.”

For the moment let’s leave aside the prognostications and various tea-leaf readings about what the Court will do.

Sufficient unto the day is a quick review of what we actually heard, or more precisely the heaping load of sophistry the lawyers for the ex-president dumped at the feet of the nation’s highest court.

In case you need someone to keep track for you, The Atlantic’s David Graham kept a running tally:

Here are a few things that Donald Trump’s lawyer says a president ought to be immune from prosecution for doing:

• selling nuclear secrets

• employing the U.S. military to assassinate a political rival

• launching a coup

But — and this is the crazy-making part — Graham says that the justices were frighteningly warm to Trump’s arguments.

Backward reels the mind, once again. You might recall that Trump’s lawyer, John Sauer, told the DC Court of Appeals that the president could order Seal Team Six to assassinate a political rival — and not face prosecution.

On Thursday, Justice Sonia Sotomayor asked him to elaborate on the subject of presidential assassinations and immunity. (Editor’s note: This actually happened.)

SOTOMAYOR: I’m going to give you a chance to say if you stand by it: if the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him, is that within his official acts that for which he can get immunity?

Sauer: It would depend on the hypothetical. What we can see could well be an official act.

Sotomayor: He could. And why? Because he's doing it for personal reasons. He's not doing it — like President Obama is alleged to have done it — to protect the country from a terrorist. He's doing it for personal gain. And isn't that the nature of the allegations here, that he's not doing them — doing these acts — in furtherance of an official responsibility? He's doing it for personal gain."

Sauer: "I agree with that characterization of the indictment. And that confirms immunity, because the characterization is that there's a series of official acts that were done for an honorable…

As you know I am not a lawyer, but I believe the technical legal term for Sotomayor’s reaction is gobsmacked.

Sotomayor: “I am having a hard time thinking that creating false documents, that submitting false documents, that ordering the assassination of a rival, that accepting a bribe, and countless other laws that could be broken for personal gain, that anyone would say that it would be reasonable for a president or any public official to do that.”

Then the coup thing came up. The exchange was equally bizarre. Justice Elena Kagan asked Sauer whether a president could ask the military to stage a coup and escape prosecution because the attempted overthrow of the government was an “official act” — even if he was no longer in office.

Kagan: Well, he's gone, let's say, this president who ordered the military to stage a coup. He's no longer president. He wasn't impeached. He couldn't be impeached. But he ordered the military to stage a coup. And you're saying that's an official act?

Sauer: I think it would depend on—

[ Oh sweet Mary, Joseph, Jesus, and the wee donkey…]

Kagan: That's immune? [?!?!!!???]

Sauer: I think it would depend on the circumstances, whether it was an official act. If it were an official act, again, he would have to be impeached—

Kagan: What does that mean, depend on the circumstances? [In other words: WTAF?] He was the president. He is the commander-in-chief. He talks to his generals all the time. And he told the generals, I don’t feel like leaving office. I want to stage a coup. Is that immune?

Sauer: If it's an official act, there needs to be impeachment and conviction beforehand because the framers viewed that kind of very low risk—

Kagan: “If it's an official act.” Is it an official act?

[By which she means: Is this real life?????]

Sauer: On the way you've described that hypothetical, it could well be. I just don't know. We'd have to, again, it's a fact specific context, specific determination— ….

Kagan: The framers did not put an immunity clause into the Constitution. They knew how to; there were immunity clauses in some state constitutions. They knew how to give legislative immunity. They didn’t provide immunity to the president. And, you know — not so surprising — they were reacting against a monarch who claimed to be above the law. Wasn’t the whole point that the president was not a monarch and the president was not supposed to be above the law?

Where to begin? I suggest with a double bourbon.

Attorney Michael Dreeben, who represents special counsel Jack Smith, told the justices: "Such presidential immunity has no foundation in the Constitution. The framers knew too well the dangers of a king who could do no wrong.”

But smart court observers seem to think that the justices might bail Trump out on this one. While the Court is unlikely to accept Trump’s most extreme claims of TOTAL IMMUNITY, they may rule in a way that might have the same effect, by making it impossible to hold a trial before the election.

Via the Wapo:

No lower court has determined whether the allegations in Trump’s indictment amount to official acts that could be shielded from liability or private conduct. But when the Supreme Court agreed to take the case, it rephrased the question it would consider as: “whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

That means the high court’s ruling is likely to require lower courts to separate out Trump’s official acts from his private ones, as alleged in the indictment, before proceedings can restart in the election obstruction case. If the D.C. trial is stalled until after the election, and Trump returns to office, he could pressure his attorney general to drop the federal charges against him.

Judge Luttig’s Take

Here’s Judge Michael Luttig’s commentary on Thursday’s arguments (I’ve unrolled his Xitter thread):

As with the three-hour argument in Trump v. Anderson, a disconcertingly precious little of the two-hour argument today was even devoted to the specific and only question presented for decision.

The Court and the parties discussed everything but the specific question presented.

That question is simply whether a former President of the United States may be prosecuted for attempting to remain in power notwithstanding the election of his successor by the American People, thereby also depriving his lawfully elected successor of the powers of the presidency to which that successor became entitled upon his rightful election by the American People -- and preventing the peaceful transfer of power for the first time in American history.

It is not even arguably a core power or function of the President of the United States to ensure the fairness, accuracy, and integrity of a presidential election.

Let alone is it a core power or function of the President of the United States to ensure the proper certification of the next president by the Congress of the United States. Neither of these is a power or function of the president at all.

In fact, the Framers of the Constitution well understood the enormous potential for self-interested conflict were the President to have a role in these fundamental constitutional functions.

Consequently, they purposely and pointedly withheld from the President any role in these fundamental constitutional functions.

To whatever extent the Framers implicitly provided in the Executive any role whatsoever in these fundamental constitutional functions, it was a limited role for the Executive Branch, through the Department of Justice, to inquire into allegations of fraud in presidential elections and ensure that the election was free, fair, and accurate.

The former president’s Department of Justice did just that and found that there was no fraud sufficient to draw into question the results of the 2020 presidential election.

The former president of course has refused to this day to accept that finding by not only his own Department of Justice, but also countless others of his closest advisors.

Whether undertaken in his or her “official,” “candidate,” or “personal” capacity, a President of the United States has never been and can never be immune from prosecution (after leaving office), for having attempted to remain in power notwithstanding the election of that President’s successor by the American People.

Consequently, there is no reason whatsoever for the Supreme Court to remand to the lower courts for a determination of which of the alleged criminal acts might have been personal and which might have been official. Neither is a clear statement from Congress that a president is subject to prosecution under the statutes with which the former president has been charged necessary in this particular case.

As applied to the former president for the criminal conduct with which he has been charged, there can be no question but that Congress intended a President of the United States to come within the ambit of the statutory offenses with which he has been charged.

For the same reason, it would be ludicrous to contend that the former president was not on sufficient notice that if he committed the criminal acts charged, he would be subject to criminal prosecution by the United States of America.

To hold otherwise would make a mockery out of the “plain statement” rule.

Amen.

You may commence with the mood-altering substance of your choice.