Well, I woke up early this morning in time to listen to the DC Circuit's hearing in the Trump v. US appeal on Presidential immunity. I hadn't intended to listen live, but I was up, anyway.
Some impressions. That's what is referred to as a "hot bench" - a LOT of close questioning by the judges.
It is always fraught to try to make predictions based upon judges' questions during an appeal hearing, but... here goes anyway.
First, I think this is going to be a 3-0 result finding that immunity does not apply. There is some chance that there will be a decision that the court is without jurisdiction to take the appeal, but I think that the arguments gave them an opportunity to reach the merits even if that were the case. That part of the discussion was quite interesting, but very much "inside baseball".
Second, the reason I am confident in my prediction was the nature of the questions, the fact that the government was not given such a skeptical reception to its argument, and because the Appellant has such a weak argument. The Achilles heal, so to speak, was (I think it was Judge Pan) the extended colloquy over whether a President could be prosecuted if Congress HAD convicted him at impeachment. Trump's attorney steadfastly refused to answer that question, and it was pissing off the Judge. It is a central plank of their argument, so I am not surprised that it irritated the judge.
Third, another weakness of the argument was pointed out (by I think by Judge Childs) that Congress might never impeach someone - it is discretionary - or that criminality might not be discovered until well after having left office, so that seems way too broad a reading of the concept of immunity. It was also pointed out that Trump took the exact opposite position during the impeachment itself, which his attorney tried very hard to dance around.
Fourth, I admit that I am already biased against the immunity argument, because I think it is ridiculous. I think the ridiculousness of the argument was explored to great effect by the judges.
Finally, I was having flashbacks from my time in the barrel. These kinds of arguments are the pinnacle of an advocate's experiences, and this was a good one. I thought both advocates had a real command of their material (as did the judges). This is exactly how an appellate argument is supposed to go - everyone is up to speed on the cases, has their facts lined up, and the argument gets reduced to those particular issues that the judges feel were unresolved by the briefing. That is what makes it difficult to predict outcomes - since some determinations have already been made and the judges don't even discuss those - but in this case, it was clear that all of the judges were troubled by the breadth of the claims in Trump's argument.
On balance, I thought the government attorney did a better job of answering the judges' questions and making the policy arguments. That was reflected, I think, in his opportunity to get over a minute into his argument before anyone even asked any questions (which surprised me - I thought they'd open with the jurisdictional question before he even presented any argument). I suspect we will have a decision before the end of the week.
