Ever Heard of a Klipspringer?

Neither had I. Also, it's Rosh Hashanah.

Happy New Year.

It being Rosh Hashanah, let’s start with the Unetaneh Tokef, the ancient piece of High Holidays liturgy that has to be the world’s dourest New Year’s meditation:

On Rosh Hashanah it is inscribed, and on Yom Kippur it is sealed—how many shall pass away and how many shall be born, who shall live and who shall die, who in good time, and who by an untimely death, who by water and who by fire, who by sword and who by wild beast, who by famine and who by thirst, who by earthquake and who by plague, who by strangulation and who by lapidation, who shall have rest and who wander, who shall be at peace and who pursued, who shall be serene and who tormented, who shall become impoverished and who wealthy, who shall be debased, and who exalted. But repentance, prayer and righteousness avert the severity of the decree.

And if one starts with the Unetaneh Tokef, one has already answered the question of what #YourMusicOfTheDay must be: “Who By Fire” by Leonard Cohen—a particularly clever modernization of the medieval poem. This is my favorite of his many recordings of it:

And then, inevitably, we end up thinking about one’s own contemporary list. Here’s mine for the year:

Who by the tweet and who by indictment, who by projection and who by incitement, who by the lie and who by the scam, who by delusion and who by self-delusion, whose brain shall be rotted and whose shall be enriched, who shall hallucinate and who shall see clearly, who shall deny reality and who shall face it, who shall be consumed by demons and who shall stare them down, who shall murder and who shall protect, who shall degrade themselves and who shall elevate themselves.

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Who shall get a Bluesky code and who shall have to wait for the next one?

• bsky-social-ntitc-qllwb

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I wrote another piece in Lawfare on possible Trump defenses in the Jan. 6 case with Saraphin Dhanani—this one specifically about a motion to dismiss Trump’s lawyers have promised arguing for presidential immunity from criminal prosecution. Our conclusion is that the defense is unlikely to succeed but may be a good way for Trump to delay his trial in an election year:

Any day now, former President Trump is going to file a motion in U.S. District Judge Tanya Chutkan’s courtroom to dismiss the Jan. 6 case against him based on some theory of presidential immunity.

We know this not because of some clairvoyance on our parts but because his attorney, John Lauro, has said so directly. On Meet the Press a few weeks back, he declared that “[e]verything that President Trump did was while he was in office as president. He is now immune from prosecution for acts that he takes in connection with those policy decisions, and the Biden administration has not addressed that.”

And in open court on Aug. 28, he informed Judge Chutkan that the Trump defense plans to file “a very complex and sophisticated motion regarding whether or not this court would even have jurisdiction over this case in light of the fact that … the indictment essentially indicts President Trump for being President Trump and faithfully executing the laws and executing on his Take Care obligations.”

In a previous article, we looked at Trump’s other likely defenses—as teased by Lauro—but reserved his executive immunity defenses for separate treatment. We broke these out both because the other defenses are all thematically linked—that is, as we argued, they operate most effectively in combination with one another—and because they are all essentially jury questions.

By contrast, the executive immunity questions don’t really interact with the other defenses; they stand alone. And importantly, they involve primarily questions of law, not fact. That is, they will give rise to a motion to dismiss, which—if successful—will make the case go away and if unsuccessful will not be available as a means of casting reasonable doubt as to Trump’s guilt in the minds of jurors. 

Lauro has given less information about his planned presidential immunity argument than he has about his other defenses, so our ability to assess it at this stage is a little bit more limited. That said, both from what he said on television and in court and from examining the history of presidential immunity claims, it is possible to piece together the contours of the likely arguments. 

The bottom line is that this defense is a bit of a moon shot for Trump, but it’s not a crazy moon shot given two important factors. The first is the composition of the current Supreme Court, which Trump’s lawyers may reasonably regard as a friendly forum for expansive arguments regarding presidential immunity. The second factor is an obscure feature of the law of interlocutory appeals in criminal cases, which—irrespective of the merits of the matter—may allow Trump to use this issue to create a substantial delay in the Jan. 6 trial. Given that this trial is currently scheduled for March 2024, the middle of an election year, that latter factor alone makes this line of defense worth considering seriously.

Note that in an earlier dog shirt, I expressed tentative skepticism of Ruth Marcus’s contention that this approach might allow Trump an early pre-trial appeal. Having now looked more carefully at the case law in question, I have concluded that Ruth is correct. This issue could create real delay.

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Today on Lawfare: Sept. 15, 2023

Over on the Lawfare No Bull podcast feed, we will be carrying all of the Fulton County court audio. Here’s the first installment from yesterday’s hearing:

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I really am not good visually so I asked DALL*E2:

Who knew? But it turns out a good economy looks like this:

It’s not what I would have predicted either, but heck, who am I to argue with generative AI?

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Acting #BeastMaster Paul Rosenzweig writes in with today’s #BeastOfTheDay: “This tiny fellow is the Klipspringer, which is Afrikaans for ‘cliff jumper.’ He perches on rocks (as here) to see the predators at a distance and jumps down to run away. Well warned, he has a good chance of survival. He is, we are told, faster than all but the cheetah but only two feet tall.”