IN THE SUPREME COURT OF THE UNITED STATES
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THE UNITED STATES OF AMERICA v. DONALD TRUMP et al.
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Washington, D.C. Monday, January 15, 2024
The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:05 a.m.
CHIEF JUSTICE ROBERTS: We’ll hear argument this morning in Case 24-001, The United States v. Donald Trump, et al.
ORAL ARGUMENT OF SPECIAL COUNSEL JACK SMITH ON BEHALF OF THE UNITED STATES DEPARTMENT OF JUSTICE
MR. SMITH: Mr. Chief Justice, and may it please the Court. The question before the Court seems complex, but is in fact straightforward: Is a former president of the United States accountable for criminal behavior conducted while in office? There has been quite a bit of jurisprudence on adjacent questions of presidential immunity, but in 2½ centuries the Court has never isolated this particular question. Though the Constitution is silent on the matter, such a dire remedy is more than addressed by statute, precedent and relevant case law — all illuminating the speciousness of the petitioner’s claim. Of course the law recognizes certain categories of immunity. Furthermore, with respect to a sitting president, by policy and tradition, the Department of Justice offers executive protection against prosecution and litigation, deferring to the political process of impeachment for High Crimes and Misdemeanors. This tradition is designed to preserve the orderly function of the Executive Branch. But it is not immunity guaranteed by law, and it manifestly never has been meant to confer presidential impunity. Yet impunity is what the respondent seeks.
MR. ALITO: We find for the respondent, President Trump.
CHIEF JUSTICE ROBERTS: Proceed, Mr. Smith. I’m obliged to remind you of Nixon v. Fitzgerald, which offers guidance, does it not?
MR. SMITH: In that case, the Court accorded civil immunity for a President’s actions within the “outer perimeter” of his official responsibilities, and — once again — the Executive Branch has long held the view that a sitting President cannot be indicted while in office. But, first, those principles cannot be extended to provide the absolute shield from criminal liability that respondent, a former President, asserts. Neither the separation of powers nor respondent’s acquittal in impeachment proceedings lifts him above the reach of federal criminal law. Like other citizens, he is accountable for criminal conduct.
MR. KAVANAUGH: Not me.
MR. THOMAS: Me, neither. [THE JUSTICES EXCHANGE HIGH FIVES]
MR. SMITH: Secondly, it is shockingly clear that conspiring to subvert the Constitution and the peaceful transfer of power to a duly-elected successor falls nowhere near the “outer perimeter” of presidential duties. It doesn’t even fall within the same solar system. Because, if it may please the court, it is THE FUCKING OPPOSITE.
MS. SOTOMAYOR: I’ll remind counsel that shouting and profanity are insults to Court decorum, as is the spittle on your beard. But, come on, totally! If you hire a landscaper to beautify your garden and he sprays it with Agent Orange, is that within the scope of his official duties?
MS. KAGAN: No you di’int. No you di’int girl! Agent Orange! Oh, snap! Bitch, you cold!
MR. SMITH: My apologies to the court. That is not only the first time in my life I have ever breached courtroom decorum, it is the first time I even had an expression on my face. I attribute this to fear for the future of our Republic. Also, these past two years I’ve been drinking.
CHIEF JUSTICE ROBERTS: I’m hearing you assert a president’s vulnerability to the criminal code, but I am not hearing a cogent legal argument to support the assertion.
MR. SMITH: If the Chief Justice will permit, I propose to proffer an argument constructed not on law but on logic, human reason, the foundations of civilization.
CHIEF JUSTICE ROBERTS: Oh, my, Mr. Smith. Are you speaking of … of … common sense?
MR. SMITH: I am, sir.
CHIEF JUSTICE ROBERTS: All right. I will let you proceed. But let me warn you, counselor. You are on thin ice.
MR. SMITH: Thank you, Your Worship. Let us presume a president were on the golf course, having a dispute with an opponent, about a matter of the president having magically located a lost ball in the short rough. In his frustration and rage, this hypothetical president produces a pistol and shoots the other gentleman to death. Would he be protected by the “outer limits” described in Nixon v. Fitzgerald?
MS. CONEY BARRETT: Yes?
MR. ALITO: Agreed. People don’t kill people. Guns kill people.
MR. SMITH: That was meant to be a rhetorical question, but whatevs. Now, if the same hypothetical president were in the Oval Office, in an argument with a staffer over a missing Sharpie, and the president produced a pistol and shot the aide to death, would this act be protected by presidential immunity?
MR. GORSUCH: Are we assuming the aide stole the Sharpie and hid it somewhere in the Deep State?
MS. BROWN JACKSON: With respect, I believe no act of provocation is relevant to the subsequent act of capital murder. This hypothetical clearly falls outside of any “official duties” perimeter.
MR. GORSUCH: Shut up, rookie. You don’t get to ask questions. Go get Associate Justice Kavanaugh a beer.
MR. SMITH: I ask the Court to consider one more scenario. The president is conducting a cabinet meeting, and, after the Circle of Praise, falls into an argument with the Secretary of State about the president’s dream of a friendly merger with Russia in an all-stock transaction, plus throwing in “the very overrated Alaska” in the deal. The Secretary of State calls the idea “enchanting, but somewhat impractical,” and the president flies into a rage, whereupon he produces a pistol and fatally empties the cylinder into his appointee. This is clearly happening within the explicit context of official duties; is he therefore immune from prosecution?
MR. GORSUCH: Ooh, this is getting harder. I’d like to buy a vowel.
MR. ALITO: We find for the respondent, President Trump, God love him.
CHIEF JUSTICE ROBERTS: Thank you Mr. Smith. We shall now hear from counsel for the respondent, Mr. Trump.
MR. THOMAS: Could we move this along a little faster? I have a yacht to catch.
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