A Seat at the Sitting - April 2024

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Nathan Kaczmarek:  Good afternoon, and welcome to a Seat at the Sitting for April. As you’ve come to expect with this series, we are delighted to have a great panel of legal experts ready to walk us through this month’s SCOTUS docket in 90 minutes or less. I’m Nate Kaczmarek, Vice President and Director of Practice Groups.

 

Before I turn to introductions and the usual program table setting, one practice groups programming note for our audience, we would like to -- please join us next Tuesday here in Washington, D.C.—that’s April 16—for the Twelfth Annual Executive Branch Review conference. We have an incredibly full day of top-tier discussion focused on our nation’s second branch and the administrative state. So please visit our website to register for in-person attendance or to decide which sessions you’d like to join us virtually.

 

As you surely know by now, The Federalist Society is not an advocacy organization. All expressions of opinion today belong to our presenters. Turning to today’s moderator, I’m very excited that we have a great attorney in front of the Society to moderate this session. Danielle Thuman, how goes it this afternoon?

 

Danielle Thumann:  Everything is going well, thanks, Nate.

 

Nathan Kaczmarek:  Well, as I said, we’re delighted to have you and your expert capabilities to guide the conversation. Danielle is a Senior Attorney for Government Relations at Crown Castle. Before joining Crown Castle, she served as legal advisor to FCC Commissioner Brendan Carr, and before that, she was in the D.C. office of Wilkinson Barker and Knauer—WBK. Her undergrad is from UVA, and the JD is from the Catholic University of America’s Columbus School of Law. More complete bios for Danielle and our other experts are available for your review on our website, fedsoc.org.

 

This panel will cover upcoming cases, and, as always, we’ll go at the end of the program to audience Q&A. So please think of the difficult questions you like to ask in advance. We are live streaming across several of The Federalist Society’s platforms this afternoon. But if you have joined us by Zoom, your questions can be submitted with the Q&A function at the bottom of your screen, and we will endeavor to answer your questions—every question that our audience sends to us within reason, of course.

 

With that, I think we are ready to go. Danielle, thanks again for carving out the time to be with us. I will hand the program over to you.

 

Danielle Thumann:  All right, sounds good. Thanks, Nate, for the kind introduction. I am happy to be here with such esteemed panelists today. I am planning to introduce each of the panelists as we walk through the cases in the order that they are scheduled. And then following all of the presentations, we will have plenty of time for audience questions. So, as Nate mentioned, please submit them. I will be reviewing them and then posing them to their correct panelists as they come in.

 

So first up is Harry Graver, who’s going to be presenting on Snyder v. United States, which is on the docket for April 15. Harry works on appeals and motions practice, with a focus on federal overreach. He has argued multiple successful cases before the federal appellate courts, and he has briefed matters at all levels of the judiciary. Before joining Jones Day in 2021, Harry served as a law clerk to U.S. Supreme Court Justice Brett Kavanaugh and to Judge J. Harvey Wilkinson III of the United States Court of Appeals for the Fourth Circuit. Harry graduated from Harvard Law School at the top of his class. He also serves as an adjunct professor at the Scalia Law School at George Mason University. So, with that, I will turn it over to you, Harry.

 

Harry S. Graver:  Cool, thank you. So I’m going to talk about Snyder for a few minutes. For the first case up in April, Snyder is the most recent in a long line of public corruption cases put before the Court. This one, the question presented is whether Section 666—which is often referred to as the “federal programs bribery statute”—reaches only bribery or also something called gratuities. So it’s helpful to start just to parse the two concepts.

 

A bribe is a corrupt exchange. You need to pay a public official in return for an official action. A gratuity is more like a tip. It is a payment for a decision already rendered or already committed to. But there’s no quid pro quo. There’s no exchange of the illicit gift for the official act. Conventionally, bribery is thought to be much worse than gratuities because it corrupts the decision making process in a very different way.

 

So with Section 666, it’s different from a lot of the recent cases like McDonnell. That’s a 201 case that applies to federal officials. Section 666, which is important, applies to any agent of a state, local, or tribal government that takes more than $10,000 in federal funding, which essentially just means everyone else who works in government outside the federal government.

 

And the key text is this: Section 666 makes it illegal to corruptly solicit or demand or accept or agree to accept anything of value from any of those people or so that any of those people intend to be influenced or rewarded in connection with official business before them. The only thing to really keep in mind is the or-rewarded text because the whole case turns on that.

 

So the case itself arises out of Portage, Indiana. We got the mayor of Portage, Indiana, this guy, James Snyder. For those who don’t follow Portage politics closely, James Snyder ran in 2008 or so on a platform of improving trash collection. So that was his big thing and gets elected to improve trash collection. As part of that, he awards a number of contracts to a trash company. And all is well at this point.

 

As is very common and is allowed by law, James Snyder also works as a consultant on the side. It’s very, very, very common for local officials to have multiple jobs, so that part of it is not fishy. Where things start to go awry is that Mayor Snyder then goes to the trash company that won the contracts and said, “You guys should hire me as a consultant. I have all these great ideas. I know how local government works,” and they do so. And this becomes the fodder for a federal investigation.

 

Mayor Snyder says, “These were legitimate consultant services.” The federal government says, “All the money that was paid to you as a ‘consultant,’ what was really happening is it was an illicit gratuity. It was a tip for the contracts that you sent that company’s way.” This goes to a jury, jury agrees with the government, Seventh Circuit affirms, and the Supreme Court then takes up the case because there’s a circuit split at this point as to whether Section 666 is just a bribery statute or it applies to gratuities, too.

 

So here are the two main camps. What Snyder says, essentially, is that, yes. Remember, the language is influencer reward. Influence is really the language of a quid pro quo. It’s really the language of a bribery statute. Reward doesn’t necessarily mean gratuity. It can very naturally just mean a bribe. It’s just sort of a payment for -- you reach an illicit deal, and then when you just get the money after you committed the action, that’s naturally referred to as an award. And even if it’s close, everything else on the side of the ledger tips against reading this in a broad way.

 

They have a lot of arguments. But a few just to highlight, Section 666 punishes -- if the government is right that it reaches gratuities and bribes, it would be the only statute to punish the two in the same way. So again, usually bribes are thought of as much worse. When it comes to federal officials, bribes can get you ten years; gratuities can get you two. But if 666 is right, the same heavy penalty falls on the same act. They’re not treated as distinct offenses. So that’s kind of odd.

 

Then a lot of canons of construction tip heavily in Snyder’s favor. Again, this reaches essentially everybody in government outside the federal government because everyone takes $10,000 in federal money. So this would involve having a broad federal criminal statute superintending local politics. There’s no dollar figure when it comes to the gift. That can be changing hands.

 

If you want to look at Snyder’s brief, there’s a lot -- as you would imagine, a lot of colorful examples, but it reaches anything from sports tickets to baked goods and everything in between. And also what’s notable is political contributions. So there’s a First Amendment interest, too. So there’s a tremendously broad scope, which runs against decades plus of Supreme Court cases saying these laws should be construed narrowly.

 

On its side of the ledger, the government says, “Reward means reward.” All these canons, all these whatever that applies when the text is vague. It applies to things like the Hobbs Act, where you’re kind of just making it up as you go. But here, Congress specifically said “reward,” and that’s the language of a gratuity.

 

And their other points are that you don’t have to really sweat the consequences. There’s no reason to read this narrower than it’s naturally seen. So among other things, the statute has a corrupt mens rea. It has to be in connection with business that’s worth about $5,000 or more. You need to identify the particular act that you’re giving the illicit gratuity to. And in the government’s view, there’s a lot of guardrails then at that point, so you don’t have to really worry too much about reading the statute broadly. So those are the two main camps.

 

I think just sort of situating it and thinking about where this might go, for the last 30 years without -- I think without exception, when the Court has taken a case like this, the government has lost: so from McNally in 1987; you have Cleveland in 2000; you have Skilling and McDonnell and Kelly. There’s, I don’t know, somewhere near 10 cases over the last 30 years where the Supreme Court has said time and again, “The federal public corruption laws need to be construed narrowly.”

 

We are being very reluctant about having federal prosecutors superintend local politics, and when we are going to criminalize local politics or politics writ large, what needs -- it’s an area where you need bright lines and clear rules. And something like this where no one really knows what a gratuity is, no one knows the difference between a benevolent gift and an illicit baked good, that’s the kind of thing where, usually, it has seemed to hit a tripwire at the Supreme Court.

 

So if those principles hold here, it would seem that Snyder has a pretty strong chance of winning. This circuit split’s been on the books for a number of years. So the fact that the Court is taking the case now instead of letting the split linger, I think is probably another reason to think that Snyder has a good shot. But who knows?

 

I mean, this is an instance when the government does have at least a textual hook in ways that it hasn’t before which would allow it to, I think, at least have a little bit more of a colorable chance. But if you’re just pricing Vegas odds here, I think probably Snyder is smart money. So that’s United States v. Snyder.

 

Danielle Thumann:  Excellent. Thank you so much, Harry. All right. So next up is going to be Anya Bidwell, who will be presenting on two cases. You drew the short end of the stick today, Anya. The first one is going to be Chiaverini v. City of Napoleon, and the second is going to be Fischer v. United States, and they are both scheduled for April 15 and 16.

 

Anya is an attorney with the Institute for Justice and one of the leaders of IJ’s Project on Immunity and Accountability. Through this project, Anya works to promote judicial engagement and ensure that government officials are held to account when they violate individuals’ constitutional rights. Prior to this role, Anya was a litigation attorney with a top national law firm handling cases in trial and appellate courts. She earned her JD with honors from the University of Texas, where she worked as a student attorney at the United States Supreme Court clinic. So, with that, we will turn it over to you, Anya.

 

Anya Bidwell:  Thank you so much, Danielle. And thank you to The Federalist Society for assigning me the double duty. So the first one is Chiaverini v. City of Napoleon. The Supreme Court will decide whether a police officer who files a baseless criminal charge against a person is exempt from a malicious prosecution claim under the Fourth Amendment, simply because the officer also filed other charges against that person that were supported by probable cause.

 

So, for example, can I sue an officer who accused me of money laundering, even though there was no probable cause for that offense? Or is the fact that I also jaywalked and the charges were filed against me both for money laundering and jaywalking going to immunize the officer from a malicious prosecution lawsuit?

 

The facts of this case illustrate the question rather well. Mr. Chiaverini owns a jewelry store in Napoleon, Ohio. In 2016, he bought a ring and an earring from a jewel thief. He says that he didn’t know of the theft when he purchased the jewelry. Later that day, the owners of the jewelry from whom it was stolen called Mr. Chiaverini and asked him to return it. After he refused, the owners and Mr. Chiaverini both called the police. The police eventually ordered Mr. Chiaverini to return the jewelry to the owners. He refused, citing the advice of the store attorney to comply with instructions in the previously sent hold letter to retain the jewelry as evidence.

 

So fast forward two weeks, police officers meet with the prosecutor to discuss next steps. Following this discussion, one of the police officers signed a criminal complaint charging Mr. Chiaverini with three offenses: The first one is a misdemeanor of retaining stolen property. The second one is a misdemeanor of dealing in precious metals without a license, and the third one is a felony of money laundering.

 

Here’s the kicker. It’s not clear whether there was probable cause for the money laundering charge because Mr. Chiaverini, in contradiction to what the officer said in the arrest affidavit, did not know when he purchased the jewelry that it was stolen, and he was clear about it when he was interviewed by the officer. In addition, the money laundering statute applies only if the value of jewelry exceeds $1,000. But in the criminal complaint, the officer listed the value of $350, and Mr. Chiaverini says that he bought the jewelry for only $45. A municipal judge, nonetheless, issued search and arrest warrants based on all three charges. The police arrested Mr. Chiaverini and held him in custody for almost four days. His store was searched. During the search, the police seized jewelry, documents, and computers.

 

While all the charges were eventually dismissed after the prosecutors declined to bring the case to a grand jury, Mr. Chiaverini suffered consequences, especially due to the felony money laundering charge. When word got out that he had been charged and jailed for this money laundering, people who used to do business with him regularly were no longer accepting his calls. So he’s suing for the violations of his Fourth Amendment rights. He insists that there is no probable cause for the money laundering charge, and he provides a lot of evidence to show that there is no probable cause. And he says that, as a result, he suffered unlawful arrest and detention.

 

The Sixth Circuit does not buy it. The Sixth Circuit says—and that’s what kind of at the heart of this case—is that, “As long as probable cause existed to arrest and prosecute Chiaverini on at least one charge, his malicious prosecution and false arrest claims fail.” So, in other words, according to the Sixth Circuit, you can’t sue for malicious prosecution, even if that prosecution caused your detention and even if there was no probable cause to charge you with the crime, so long as a police officer can charge you with some other, perhaps more minor crime, as is the case here, for which probable cause exists.

 

That is the opposite of what the Eleventh Circuit held. In a similar case there, Judge William Pryor, writing for the majority, explained that centuries of common law doctrine urge a charge-specific approach, and bedrock Fourth Amendment principles support applying that approach. So, taking Judge Pryor’s words, in the Eleventh Circuit, Mr. Chiaverini appealed to the Supreme Court, which granted certiorari. In its merits brief, Mr. Chiaverini presented several arguments to support his position that he should have a claim for malicious prosecution for the money laundering charge.

 

So first, his argument is that at common law, a person who initiated a baseless charge could be sued for malicious prosecution, even if he has also initiated a valid charge at the same time. To support the statement, Mr. Chiaverini not only relies on Judge Pryor but also cites two leading treatises of the day, which are all in agreement that it is sufficient to maintain an action for malicious prosecution even if only some of the charges in the indictment were malicious and without probable cause. There are also nineteenth century cases from state supreme courts that say the same.

 

And second, Mr. Chiaverini says that this common law charge-specific rule is consistent with bedrock Fourth Amendment principles, namely the avoidance of arbitrary results and the protection of law enforcement interests. On the arbitrary results front, Mr. Chiaverini says that an officer can be insulated based on a decision by a prosecutor to combine his charges in one prosecution or separate them into several actions. In addition, a good charge for jaywalking—like I used in my previous example—can protect an officer from liability for a baseless charge of, let’s say, drug trafficking.

 

On the law enforcement interests. Mr. Chiaverini argues that adopting this common law approach would not open the floodgates, since there’s already qualified immunity as a protection and since we’re only talking here about civil suits for money damages, not the more common disputes arising in criminal trials about the suppression of evidence.

 

Respondent, the city of Napoleon, does not disagree that a plaintiff can succeed on a Fourth Amendment malicious prosecution claim, even if he proves that only one charge among many lacks probable cause. Respondent instead argues that Mr. Chiaverini cannot show that his arrest was caused by the fabricated charge. After all, respondent says, “There was enough ground to arrest based on the other two charges, and so Chiaverini cannot make out a Fourth Amendment malicious prosecution claim based on this baseless charge.”

 

“That makes sense,” as respondent explains. “The Fourth Amendment is not a guarantee against charges lacking probable cause but a guarantee against unreasonable seizure. Charges lacking probable cause may be unreasonable in some abstract sense, but unless they cause an unreasonable seizure, they will find no remedy in the Fourth Amendment.”

 

The thing is, Mr. Chiaverini agrees with this analysis. He concedes that on remand, he would have to show that his arrest was caused by the bogus charge. He is just asking the courts to make it clear that the Fifth Circuit was wrong when it held that so long as there is probable cause for one charge, there is no malicious prosecution claim based on the baseless charge. And the United States government that will also be arguing agrees with that, too.

 

So the real disagreement at this point is not whether the Sixth Circuit was wrong about its analysis of malicious prosecution claims. Everyone agrees that it was. The question really is whether to send the case back and allow Mr. Chiaverini to prove causation. The city of Napoleon is urging the Court to not do it. It says that Chiaverini can’t prove causation, and Mr. Chiaverini, along with the United States, says that the Court should send the case back.

 

I really like this case. It involves a civil rights issue, and it has a super strong backing at common law. So both conservative and liberal appointees will find a lot to agree on. And that’s always a good thing. So I think at the end of the day, the Court is going to adopt the Eleventh Circuit approach, the -- Judge Pryor’s reasoning and say that the Sixth Circuit was wrong. As to what it’s going to do with the issue of causation is a different question altogether. And I’d rather not go there at this point. Danielle, do you want me to now do the Fischer case?

 

Danielle Thumann:  Sure. Yeah. If you want to roll right into Fischer, that would be great.

 

Anya Bidwell:  Now, that’s another interesting case. I’d say Fischer v. United States is one of the most consequential cases that the Court will hear this term. It involves a January 6 rioter, Joseph Fischer, who was charged, in addition to things like assaulting a police officer and disorderly conduct, with obstructing an official proceeding, a law which was enacted as part of the Sarbanes-Oxley Act in the wake of the Enron accounting scandal.

 

The law says that—and I ask you to bear with me here because the text is important—the law says that whoever corruptly, one, alters, destroys, mutilates, or conceals a record, document or other object, or attempts to do so with intent to impair the object’s integrity or availability for use in an official proceeding or, two, otherwise obstructs, influences, or impedes any official proceeding or attempts to do so, is guilty of felony and can be imprisoned for 20 years. So under the sentencing guidelines, a conviction under the statute requires an eight-level increase in the offense level. This means that when the government charges the person under the statute, it is provided with substantial leverage.

 

So the question is, does this law only apply to evidence tampering, as Mr. Fischer argues, or does it apply to all forms of corrupt obstruction of an official proceeding, as the United States argues? And the key to this answer is in the work that the word “otherwise” is doing.

 

According to Mr. Fischer, the word “otherwise” indicates some connection between the Subsections 1 and 2 and means that subsection one about document tampering limits the scope of subsection two, making it also about document tampering. According to the government, the word “otherwise” is a typical way of introducing a catch-all clause that sweeps beyond what came before. So a person can be charged for document tampering, one, but also can be charged for otherwise obstructing a government proceeding, two.

 

Fourteen out of fifteen district courts that looked at the statute in relation to January 6 writers agreed with the government. One court in Mr. Fischer’s case disagreed and held that the statute does not apply beyond evidence tampering. That is the case that went to the D.C. circuit, where a divided panel overturned the district court, and Mr. Fischer petitioned for certiorari. The Supreme Court agreed to hear the case.

 

So the implications of this decision will reverberate widely. The statute was used to charge more than 300 January 6 defendants, including former President Trump, in more than 100 cases. It is the only felony charge a defendant faces. Already, a prospect of the Supreme Court deciding in favor of Mr. Fischer is triggering early releases of some January 6 defendants. This January, for example, D.C. district court judge, Amit Mehta, released a defendant 5 months into his 14 month term, saying that the Supreme Court’s grant of certiorari in Mr. Fischer’s case means that, in Judge Mehta’s words, “At a minimum, this case poses a close question.”

 

So who is Mr. Fischer and what did he do? He’s a former police officer from Pennsylvania who broke into the Capitol during the January 6 attacks. Before entering the Capitol, according to the prosecutors, Mr. Fischer sent text messages saying that members of Congress can’t vote if they can’t breathe and that he might need his police chief to “post my bail. It might get violent.” On January 7, Mr. Fischer wrote that he had been “pepper-balled and pepper sprayed, but entry into the Capitol was needed to send a message that we, the people, hold the real power.”

 

So Mr. Fischer was arrested on February 19, 2021, and he was charged with the second part of the statute, otherwise obstructing, influencing, or impeding any official proceeding. U.S. district court judge Carl Nichols dismissed the obstructing charge against Mr. Fischer, concluding that the charge is limited to evidence tampering that obstructs an official proceeding. The D.C. Circuit reversed. Judge Florence Pan, in the lead opinion for the Court, wrote that the meaning of the statute is unambiguous. She said that it applies to all forms of corrupt obstruction of an official proceeding other than the conduct that is already covered by the prior subsection.

 

But Judge Pan, she also acknowledged that outside of the January 6 cases brought in this jurisdiction, there is no precedent for using the obstruction provision to prosecute the type of conduct at issue in this case. Judge Gregory Katsas dissented. He wrote that the government’s interpretation of the law would render it both improbably broad and unconstitutional in many of its applications.

 

At the merits stage before the Supreme Court, both Mr. Fischer and the government agree that to determine the meaning of a statute, judges must interpret the words as taking their ordinary contemporary common meaning at the time Congress enacted the statute. According to Mr. Fischer, the word “otherwise” is commonly understood as a residual clause whose meaning is limited by the language that precedes it.

 

So, for example, to use Judge Katsas’ analogy, if a rule punishes anyone who punches, kicks, bites, or otherwise injures someone else, you would recognize that the examples involve physical injury and would understand that the residual term “otherwise” involves a physical injury. According to the government, the common meaning of “otherwise” is different. It’s a way of introducing a catch-all clause that sweeps beyond what came before, and so the document tampering is not limiting the obstruction.

 

Mr. Fischer also argues, however, that his reading is right because it’s consistent with the title of the law, which is the Corporate Fraud and Accountability Act. He also says that it’s consistent with the history of the law. The law was enacted in the wake of the Enron accounting fraud scandal and the disclosure that the company’s outside auditor had destroyed documents that could be incriminating for the company.

 

In addition, according to Mr. Fischer, the Supreme Court’s own precedent—one of my favorite cases, Yates v. United States—indicates that interpretations of the Sarbanes-Oxley Act should not be unmoored from its financial fraud origins. Yates, just a reminder, was about another provision of the Sarbanes-Oxley Act, criminalizing the destruction or concealment of any record, document, or tangible object to obstruct a federal investigation. And the question was whether an undersized fish that a commercial fisherman threw overboard counted as a tangible object. And the Court said it doesn’t because the meaning of the word in the Sarbanes-Oxley Act must be understood in the context of its origins, which was financial fraud.

 

The government, on the other hand, insists that the provision was enacted to address the larger problem that the Enron scandal brought to light, namely, the risk that corrupt obstruction could occur in an anticipated way not prohibited by statutes targeted at specific forms of obstruction. Moreover, according to the government, the provision is not breathtaking in its scope because it only applies to acts that hinder a proceeding. And the provision also requires defendant to act corruptly, which requires more than proof that defendant’s act was intentional or knowing.

 

Unsurprisingly, many amici weighed in on the issue. The most interesting, in my opinion, was the brief that was filed in support of neither party, and it was filed on behalf of a law professor and a linguistic professor from the Georgia State University. They used corpus linguistics as a methodology for understanding the common meaning of the word “otherwise” when used in similar sequences. As the statute here, after retrieving data from the corpus of contemporary American English and from the corpus of current United States Code, they concluded that the government is correct in its interpretation. They found no examples where “otherwise” plus verb, as is the construction here, functions to limit the scope of the verb to verbs that preceded the word “otherwise.”

 

Regardless of what corpus linguistic concluded, however, I agree with those like Judge Mehta who seem to think that the Court is going to reverse the D.C. Circuit and hold that the statute is limited to evidence tampering or at least the financial fraud aspect of the Sarbanes-Oxley Act. But even that kind of interpretation does not mean that former President Trump’s charges would be thrown out.

 

Unlike the rest of January 6 defendants, Trump’s obstruction charges are based on his alleged efforts to get Congress to use fraudulent electoral certification. So that is much closer to what the statute seems to cover, even if you look at it as only dealing with evidence tampering. By contrast, Mr. Fischer and other January 6 writers are accused of entering the Capitol in a way that shut down the vote count, and that is qualitatively different from the kind of conduct that we’re thinking about when we’re thinking about those provisions. So that’s Fischer, and it’ll be heard on the 16 of April.

 

Danielle Thumann:  Excellent. Thank you so much for your presentation on both of those cases because we don’t have speakers covering all of the cases that are teed up for this month, The Federalist Society has asked that I just briefly touch on Thornell v. Jones, and we have two more later on that we don’t have speakers for as well.

 

Thornell v. Jones is teed up for April 17. And in this capital case, Danny Lee Jones was convicted of two first-degree murder charges in Arizona and then sentenced to death. After a hearing, the federal district court denied Jones’s petition for relief, but the Ninth Circuit Court of Appeals found that Jones did not have effective assistance of counsel at his sentencing hearing. The Supreme Court is going to be considering whether the Ninth Circuit violated the Supreme Court’s precedence with its methodology for assessing prejudice under Strickland v. Washington.

 

So now, we will be turning to Timothy Sandefur, who is presenting on City of Grants Pass v. Johnson. Timothy is Vice President for Litigation at the Goldwater Institute. Before joining Goldwater, he served 15 years as a litigator at the Pacific Legal Foundation, where he won important victories for economic liberty in several states. He is the author of 4 books as well as more than 45 scholarly articles on subjects ranging from eminent domain and economic liberty to antitrust, copyright, slavery and the Civil War, and political issues in Shakespeare, ancient Greek drama, Star Trek, and The Walking Dead. He is an adjunct scholar with the Cato Institute, a graduate of Hillsdale College and Chapman University School of Law.

 

And I am going to petition The Federalist Society to have a separate webinar where we can talk more about all of your work on the political issues in Shakespeare, ancient Greek drama, Star Trek, and Walking Dead because that sounds fascinating. Yeah, Anya’s giving a thumbs up, so all right. Thank you. With that, I’ll turn it over to you, Timothy.

 

Timothy Sandefur:  I would enjoy that tremendously. So, Grants Pass v. Johnson is one of the more watched cases of the term. It’s going to be argued, I think, a week from Monday, and it’s going to attract a lot of attention. But the issues are not particularly complicated—certainly not as complicated as some of the other cases we’re talking about today.

 

The story begins, actually, in 2018, when the Ninth Circuit Court of Appeals issued a decision called Martin v. Boise. And in that case, the Court said that it violates the Eighth Amendment’s Cruel and Unusual Punishment Clause to arrest people for sleeping on the sidewalks or in public parks or in other places like this—putting out a tent or sleeping in a public area. It violates the Cruel and Unusual Punishment Clause to arrest a person for doing that if that person is “involuntarily homeless.”

 

Now, the term “involuntarily homeless” is really the centerpiece of all of this litigation because what the Martin case said is -- the Ninth Circuit went on to say that if there aren’t enough shelter beds available in the city’s homelessness shelters to accommodate the homeless population in the city, it is ipso facto cruel and unusual punishment to arrest that person for sleeping elsewhere because they can’t help it. There’s no shelter bed available for them, so they’re involuntarily sleeping on the streets, and therefore, it’s cruel and unusual punishment to arrest that person.

 

Incidentally, the Ninth Circuit went on to say that when doing this numerical formula—as it has come to be called, of number of shelter beds, subtract total homeless population—when doing that mathematics, you are not supposed to count the number of beds available at church-run homelessness shelters, even though churches typically are the most common form of shelter for the homeless, because to count them would violate the Establishment Clause. And that case was denied cert by the U.S. Supreme Court, what, six years ago when it was first decided.

 

Flash forward a few more years, and you have this case, Grants pass v. Johnson, which is a class-action lawsuit against the city of Grants Pass, Oregon, on the grounds that they are enforcing their camping -- their public camping bans, even though they provide insufficient shelter bed space for the homelessness population. The Ninth Circuit ruled in favor of the plaintiffs and allowed the case to proceed. And then it reheard the case en banc.

 

Now, while that was going on, while the case was still pending—and it takes quite a while for these cases to be decided—the Martin v. Boise case and the initial Grants Pass decision both contributed to an explosion of homelessness, particularly in the western states, in California, Arizona and elsewhere, where large homeless encampments started springing up. And city officials either failed or, if you like, refused to enforce city laws prohibiting public camping.

 

The worst of these was the Phoenix zone. I am speaking to you from Phoenix, Arizona, and it was just a few blocks down the street. The Phoenix zone was the largest homelessness encampment in the country: about a thousand people sleeping in tents on sidewalks and in public parks and empty lots for something on the order of 2 or 3 years through Phoenix summers, which easily reach over 120 degrees. In fact, I believe last year was the first year on record that we went through 6 entire months above 100 degrees without a break. This is also during the COVID pandemic. So I think we must all agree that it’s inhumane for there to be a zone and for the people residing there to be living there during this period of time.

 

Why was this allowed to go on? Well, there are two answers to that. One is that, according to the city, they really didn’t know what they were and weren’t allowed to do. As far as enforcing the cities laws against public camping. Part of the reason for that confusion is the Ninth Circuit’s own wording—both in Martin and in its initial Grants Pass decision—where the Ninth Circuit tried to have it both ways because in those decisions, despite saying that you do this numerical formula to find out whether people are involuntarily homeless, they dropped in footnotes that said, “Of course, we are not saying that cities cannot arrest people for sleeping in public parks,” etc. etc., even though that kind of was what they were saying.

 

This contributed to confusion on the part of good-faith city officials and police officers who honestly didn’t know what they could and could not do when it came to enforcing camping bans. But it also gave bad-faith city officials a really convenient excuse to just refuse to enforce laws against public camping, which is what happened here in Phoenix.

 

The city officials actually themselves intentionally operated the zone, actually transporting homeless individuals to the zone area from elsewhere in the city. And neighboring cities, of course, benefited from this by telling their homeless population, “Oh, you can’t do that here. Go over to the zone in Phoenix, and then that’s a handy cheap way to deal with your homelessness problem in, say, Tempe or Mesa.”

 

There was a lawsuit initiated by property owners in the zone area of Phoenix, arguing that city was -- that the city was purposely operating the zone as a sort of open-air homeless shelter and therefore committing a public nuisance, damaging their property. And the damage was quite severe. There were cases of arson, murder, trespass, the destruction of property, burglary, going on incessantly in the zone area.

 

The state court judge ended up ruling in favor of the plaintiffs in that state lawsuit, finding the city liable for operating a public nuisance by operating the zone. That decision came out, was finalized just last fall, and the city was ordered to clean up the zone, which they largely have done at this point. Meantime, the Grants Pass decision was still pending in the Ninth Circuit Court of Appeals because it had decided to rehear the case en banc. So it decided the case en banc finally, upheld its original ruling, and that case has now been petitioned to the U.S. Supreme Court.

 

So the questions before the U.S. Supreme Court are, basically, “Does the Eighth Amendment’s Cruel and Unusual Punishment Clause prohibit the local government from arresting people for sleeping in public parks or on sidewalks and so forth simply because there aren’t enough government-run shelter beds to accommodate the population?”

 

Now, as an initial matter, when we come to predicting what the Court is going to do, I think it’s very unlikely that the Supreme Court’s going to uphold the Ninth Circuit’s ruling. Both Republicans and Democrats—prominently included among the latter Governor Gavin Newsom of California—asked the U.S. Supreme Court to take up this case because this numerical formula theory was unworkable as a matter of law. I think it’s unlikely, therefore, that plus the makeup of the current U.S. Supreme Court makes it unlikely that the Court is going to uphold the Ninth Circuit’s ruling.

 

But there’s also an initial step in this analysis, which is, does the Eighth Amendment apply at all? Justice Thomas, for many years now, has been railing against the theory that the Eighth Amendment imposes limits on the kinds of crimes that can be proscribed or the kinds of arrests that can take place. He argues, as a good originalist, that the Eighth Amendment only prohibits punishments and that “punishments” means the penalties that are parceled out by a judge upon a finding of guilt and therefore should place no limits on it by itself on arrests by officers.

 

So it’s very likely, I think, that Thomas will take the opportunity of this case to make a pronouncement on that issue. I doubt he’ll get a majority of the Court to go with him because that would constitute a real dramatic change in Eighth Amendment jurisprudence. But it is possible because it’s been a long time since the Court has heard these kinds of issues.

 

I think instead, though, that the primary focus will be on this involuntariness issue. Does it render a person truly involuntarily homeless that the government has not provided that person with a shelter bed? Another lawsuit in Phoenix actually kind of points up the answer to that, in my opinion. There was also a federal lawsuit over the zone that was brought by homeless advocates against the city for how the city was acting in the zone area.

 

The plaintiffs in that case consisted of two homeless individuals, one of whom stated in the complaint that he had been sleeping on the streets for over 23 years, and the second of whom admitted that she not only had a social security card and income from social security but maintained a credit card account. These are people who are perfectly capable of making financial decisions in their lives and who cannot be characterized as sleeping on the streets because they truly couldn’t help it.

 

Logically speaking, if I get drunk at a bar and I drive home from the bar and I run over somebody or crash into somebody’s car on my way home, I cannot say that my actions were involuntarily -- involuntary just because the government didn’t hire me an Uber to drive me home that night. By the same logic, it’s really not plausible to argue that people can’t help it simply because the government hasn’t given them an alternative. I think that’s the most likely outcome of the case, but, of course, you never can tell.

 

Danielle Thumann:  Thank you so much for your presentation on that case. I will note that on April 22, the Court is hearing Smith v. Spizzirri. This case is about an interpretation of Section 3 of the Federal Arbitration Act. Drivers filed a suit against a Phoenix delivery service, claiming they were wrongly classified as independent contractors and denied benefits. The delivery company moved the dispute to federal court for arbitration. The Supreme Court will be considering whether the FAA allows federal trial courts to dismiss a lawsuit rather than stay the case when all claims are subject to arbitration, and federal courts are currently split on this issue.

 

The Court will also be hearing Department of State v. Munoz on April 23. In this case, a man from El Salvador married a United States citizen. The U.S. consulate in El Salvador denied the man’s visa based on the content of a body tattoo, which it considered gang related. Despite expert testimony that the tattoo did not convey a particular message, the consulate considered its decision final. A federal district court upheld the decision, but the Ninth Circuit found that the government missed a constitutionality required notification deadline, and it vacated the decision. So the Supreme Court will be evaluating two questions in that particular case: whether the consulate’s action impacted the right -- the rights of the man’s spouse and, if her rights were indeed violated, whether the consulate’s notification constituted due process under the law.

 

So next, we are turning to Roger King, who will be presenting on Starbucks Corp. v. McKinney. Roger recently retired as a partner with Jones Day. He now serves as Senior Labor and Employment counsel for the HR Policy Association. Roger specializes in labor and employment, healthcare, collective bargaining, contract administration, and representation campaigns. Roger represented the winning side as co-counsel in the landmark U.S. Supreme Court case known as Noel Canning, which successfully challenged President Obama’s authority to make recess appointments to the National Labor Relations Board.

 

After graduating from Cornell University Law School, he was a Captain and Legal Services Officer in the United States Air Force on the staff of United States Senator Robert Taft, Jr. and, subsequently, was appointed as Professional Staff Counsel to the United States Senate Labor Committee. So with that, we will turn it to you, Roger.

 

1. Roger King: Thank you, Danielle, and thank you, Nate, for including me this morning or this afternoon, depending on your time zone. So we’re going to change gears here a little bit and talk about the National Labor Relations Act and specifically Section 10(j), the injunctive relief portion of the NRA. And I know that discussion will be of interest to the practitioners in attendance today that have matters before the National Labor Relations Board.

 

But I want to paint just a little bigger picture here because I think all of the cases we’re considering today need to be also looked at not just in a narrow issue before the Court but what implications they may have in other areas of the law. And specifically, the Starbucks case has implications regarding Chevron and Loper and how much deference the courts—in this case, the Supreme Court—should give to a federal executive agency, specifically here, the National Relations Board. And that’s obviously an overriding issue as we discuss a lot of administrative law matters and other matters that come before our federal courts and also of interest to our clients and association members in my case.

 

So let me level set the discussion here, hopefully, at the beginning—Section 10(j) of the National Relations Act. If you don’t practice in the NRA space, let me just give you a little background.

 

So Section 10(j), upon the issuance of an unfair labor practice by the National Labor Relations Board and the seeking of a complaint as a result of such charge by its general counsel, permits the general counsel, if she or he believes that these circumstances are such that status quo needs to be preserved during administrative proceedings, can seek approval to go into federal district court from the National Labor Relations Board, the five-member board sitting in Washington, D.C.

 

If the NLRB approves the seeking of the injunction, the moving party, in this case, the general counsel of the NLRB, can go into a federal district court where the unfair labor practice allegedly has been committed or where the respondent employer in most cases does business. So the real crux of the matter before the Court, the central issue, narrow issue, is what standard should a federal district court apply when the government is seeking injunctive relief—in this case, Section 10(j) of the National Relations Act. And again, I want to go broad picture, then I’ll go narrow.

 

So the broad picture is, here, the government argues that since it’s proceeding in the public interest that the courts should give it leeway, that there ought to be a more flexible standard—I would submit an easier standard—for the government to prevail in its request for injunctive relief. And you have this private versus public injunction action scenario painted by the government. Again, the government argues that the courts need to give deference to government agencies because they have expertise in interpreting their underlying statutes of jurisdiction, and the Court should, in the equity area and the injunction area, be flexible.

 

So that’s the overview. The specific issue is how does Section 10(j) of the National Relations Act be interpreted? This case comes to the Supreme Court from the Sixth Circuit in a 3-0 decision. The panel was Sutton, Chief Judge Boggs, and Judge Readler. And I’ll come back to Judge Readler in a moment.

 

The Sixth Circuit, in a 3-0 decision, upholds the district court’s decision that an injunction should be issued against the Starbucks company. The facts are really rather brief and not in dispute, to a point, at least. Starbucks is involved, as you have read, I’m sure, in the media, in a national difference of opinion about unionization of its stores. And this particular case comes from Memphis, Tennessee, where Starbucks ultimately terminated a number of employees at that store for engaging in what Starbucks alleges is disruptive action. And I think they have a good factual record for that disruptive action.

 

The National Labor Relations Board, however, upon charges being filed by the Starbucks United Union, issues a complaint. After that complaint, as I mentioned, under 10(j), it’s potential for a complaint to proceed up through the general counsel’s office and to the Board for injunctive relief depending on the facts. Here, the Board decided to seek injunctive relief, was successful in the federal district court. Starbucks takes an appeal, Third Circuit affirms, 3-0. And then we have the issue of, “Well, what is the standard for issuing this injunction?” The Sixth Circuit has what is known as the just and proper or more flexible standard for issuing injunctions under Section 10(j).

 

Now, we have a circuit split here, and that’s one of the main reasons, if not the primary reason, that this case is before the Court. We have four circuit courts of appeal going one way, and we have six circuits, including the six, going another way. So what are these two different approaches?

 

The traditional approach taken by four circuit courts of appeal requires that the traditional standards and tests before injunctive relief can issue must be met before the National Relations Board can prevail. And just, again, to level set of our conversation, I’m sure all of us remember this from law school or our practice, but the four traditional factors are as follows: the likelihood of the moving party to succeed on the merits—a very important point, obviously—the issue of whether irreparable harm will occur absent the issuance of the injunction, the balance of equities. Does it favor the moving party or not? And finally, the public interest issue -- should the injunction issue for the public interest. That’s the traditional four-part test, and that test is utilized in this injunction area by four circuit courts of appeal.

 

The alternative test—the so-called more flexible test—or I would argue, as a management practitioner representing employers, is a very flexible test that the government says should be read in context of the entire National Labor Relations Act and should be read in the context of what the statute is trying to do, and that is to protect workers in the workplace generally. And as I said, there are six circuit courts of appeals, including the Sixth Circuit, that utilize this flexible test that the government favors. And if I were a government prosecutor, if I were the general counsel of the National Labor Relations Board, that’s the test I would also, of course, favor.

 

Well, the Sixth Circuit, as I mentioned on a 3-0 panel decision, applies its traditional test. Now, the panel was required by circuit case law, by precedent, to apply this so-called just and proper or flexible test. But Judge Readler -- and many of you may recall, Judge Readler. Chad Readler, was president of The Federalist Society chapter in Columbus while he was with our Jones Day firm -- and by the way, a mentee of mine when he was in the Jones Day Columbus office. I think he’s just an outstanding young jurist and someone we should watch.

 

At any rate, Judge Readler says, “Yes, I’m bound by the Sixth Circuit precedent, but I think it’s wrong. I think that the standard should be the traditional four-part test” that we just discussed. He writes a very interesting and thorough and excellent concurring opinion, and I think that concurring opinion is one of the reasons the Court, besides the circuit split, is taking a look at this case and why it accepted certiorari.

 

So the Court is faced with these two different tests, but it has these administrative law implications. And how far should the Supreme Court go in deferring to the National Relations Board on how Section 10(j) injunctions should be issued? What standards should federal judges apply?

 

So as a practical matter, this is very important for those of us that practice before federal district court judges. Many have, in my experience, absolutely no experience regarding the National Labor Relations Act. So a specific standard for them to follow before issuing injunctions is very important. Second, the practical implications here are considerable. This administration’s general counsel at the National Labor Relations Board, Jennifer Abruzzo—a very bright, very capable, experienced attorney—is pushing the envelope as far as she can on engaging the members of the Board to expand the National Labor Relations Act coverage for all types of worker rights.

 

So if an injunction is issued in one of these contested, unfair labor practice cases—like the one here out of Memphis involving Starbucks—it’s somewhat analogous or similar to a class action certification. The employer, if it’s faced with a loss on the cert for certification of a class action—or in this case, the 10(j), really, is put at a great practical and legal deficit. It has to seriously consider settling at that juncture. These cases that proceed through the administrative structure at the National Labor Relations Board can literally take years.

 

So this injunction, if it’s issued by a federal district court, sits there and is of great concern for employers, and the status quo can be very harmful. In this case, the federal district court ordered reinstatement of five of the seven discharged employees who were very contentious in the workplace, obviously, and engaged in what Starbucks thought to be very disruptive actions. So the practical implications of an injunction issuing against an employer in this climate that we see in federal labor law is quite considerable.

 

Now, it’s interesting. There were 13 amicus briefs filed in this case. And my son, who clerked for Justice Scalia, and I were discussing this case last night. And he said, “Roger, it’s somewhat unusual to see the 13 amicus briefs in this type of case.” And he said, “Frankly, when I was a clerk, we wouldn’t pay a lot of attention to some of them that were filed.” And having read all of the amicus briefs in this case, I think my son is absolutely correct. Some of them are purely political files, really don’t inform the court at all about the issues.

 

But there was one amicus brief that really caught my case. And Nate and Danielle, this is a new term that I think I’m going to be using in my practice, and that’s “exceptionalism,” exceptionalism, that federal agencies want to be accepted from traditional practices, in this case, of injunctive relief, and that they are somehow removed from the jurisprudence that has been in existence for decades in certain areas of the law. So they should have an exception. I think we shall see, as Loper unfolds, and hopefully, we’ll get a good decision on Loper clarifying the degree of deference to administrative agencies.

 

So, Danielle, just wrapping this up, oral argument is set for, I believe, the 23 of April in this case. I think it’s going to be interesting to see what administrative law implications come out of a narrow issue of Section 10(j) under the National Labor Relations Act. I think since the Court accepted cert in this case, I’m accepting at least a 6-3 ruling in favor of Starbucks, but I might be wrong. And those of us that try to read the tea leaves of the Court, of course, are always challenged. So that’s my synopsis of Starbucks. Happy to engage later in the Q&A.

 

Danielle Thumann:  Excellent. Thank you so much. On April 24, the Court will also be hearing Moyle v. United States. And in this case, the Court will consider the relationship between a state law related to abortion and a federal law about medical services.

 

Idaho’s Defense of Life Act makes it a crime for anyone to perform an abortion unless a physician acts within exceptions that the statute enumerates, while the federal Emergency Medical Treatment and Labor Act requires that facilities receiving Medicare funds offer necessary stabilizing treatment in emergencies, including medically necessary care that may result in the termination of a pregnancy. And the question presented to the court in that particular case is whether federal laws preempting state law that protect human life and prohibit abortions like Idaho’s Defense of Life Act.

 

So finally, we will turn to Professor John Yoo, who will be presenting on Trump v. The United States. John Yoo is the Emanuel Heller Professor of Law at the University of California at Berkeley, a Visiting Scholar at the American Enterprise Institute, and a Visiting Fellow at the Hoover Institution, Stanford University. At Berkeley, Professor Yoo directs the Public Law and Policy program and the Korea Law Center. Professor Yoo has published almost 100 scholarly articles and subjects, including national security, constitutional law, international law, and the Supreme Court. He also regularly contributes to the editorial pages of The Wall Street Journal, New York Times, Washington Post, Los Angeles Times, and National Review, among others.

 

Professor Yoo has served in all three branches of government. He was an official in the U.S. Department of Justice. He served as general counsel of the U.S. Senate Judiciary Committee under Chairman Orrin Hatch of Utah. He has been a law clerk for Supreme Court Justice Clarence Tyler Thomas and federal appeals judge Laurence Silberman. Professor Yoo graduated from Yale Law School and summa cum laude from Harvard College. So with that, I will turn it over to you, Professor Yoo.

 

Prof. John C. Yoo:  Thank you, Danielle. Thank you to The Federalist Society for giving me the easiest case of the term. And the reason why it is the easiest case is because everybody knows all the facts. There are no precedents. There are no circuit splits. There’s barely any case law on this topic at all. So the Supreme Court can just make everything up. And it’s our job today to discuss what materials they’re going to use when they decide this case of first impression.

 

So this is a great case. Before I went to law school, I thought the Supreme Court decided cases like this all the time and not all the cases that we just heard about, which are much more important but actually require a law degree to decide. On this one, I’m not sure whether you want a law degree or be a constitutional historian, a political scientist. There’s so many different kinds of arguments being made. There’s so many different considerations that the Court has to reach, and I don’t think they’re all just of a technical legal nature.

 

I don’t think I need to go into great detail on the facts. In fact, because President Trump here is claiming immunity from criminal prosecution, the facts, in a way, almost don’t matter. The charges almost don’t matter because whatever they are, President Trump is claiming absolute immunity—a claim, by the way, that was rejected both in the trial court and in the D.C. Circuit. Court watchers remember that the special counselor here who is prosecuting President Trump tried to seek accelerated briefing, tried to bypass a D.C. Circuit, and go right to the Supreme Court. And the Supreme Court said, “No, no, no, back to the D.C. Circuit, and you can get back here eventually,” and that’s exactly what happened.

 

In this claim of immunity, I would say there are no real precedents on point. The ones that the parties argue about are Nixon v. Fitzgerald, of course, and then actually interesting, Marbury. The Nixon v. Fitzgerald case, people may remember, finds absolute immunity from the president -- I’m sorry, for the president from civil lawsuits, not criminal lawsuits, but civil lawsuits.

 

And so President Trump’s argument is, “Well, the same considerations that led the Court to grant an absolute immunity from civil litigation for presidents should also” -- I’m sorry, former presidents as well -- “should apply to former and current presidents with regard to criminal cases.”

 

And if you remember, Nixon v. Fitzgerald talked about considerations like, “We don’t want presidents worrying about being sued while they’re making important decisions for the country. We don’t want presidents and their time and the schedule to be subject to just the various and random times, perhaps, when private litigants might choose to sue the president, that the presidents might have to spend a lot of resources defending themselves, even from frivolous lawsuits.”

 

So President Trump says, “Well, why can’t the same arguments which would allow absolute immunity for things a president does? And what’s the phrases at the outer perimeter, at least, of course, the constitutional functions, statutory functions, and then the outer perimeter of constitutional functions also be immune from criminal prosecution?”

 

Then President Trump says the other relevant precedent is Marbury. And, of course, Marbury has language in it that says that the courts will not question the decisions of presidents or try to dictate to presidents how they should perform their constitutional duties, how to use their discretion that’s given to them under the Constitution and under statutory law.

 

The special counsel responds on the point of these precedents that, of course, Nixon v. Fitzgerald doesn’t apply to criminal cases. I think that’s right. This is a case of first impression. I think everybody acknowledges that.

 

And then the Court says on the Marbury point, “Well, all that language” -- and this is actually the special counsel’s response on most of the arguments raised by President Trump. Most of the discussion in cases is about sitting presidents. Marbury is talking about the Supreme Court not intervening and dictating to sitting presidents how they should use their constitutional powers. The question is, what do you do about former presidents who are out of office?

 

So if it’s not governed by precedent, then how would you think the Court would go about deciding this? Well, then if you look at Dobbs and the sort of general methodology that’s being applied, I think, by the -- at least a majority of the Supreme Court, you would look at the text; you would look at the original understanding, and you would look at historical practice. And on those three points, again, there’s nothing exactly on point. There is, of course, in the constitutional text, no discussion of immunity explicitly, actually, not for civil or criminal cases. The most relevant text, I think, is the Impeachment Clause in Article I Section 3.

 

So let us all open up our pocket Constitutions, which we have had since the first week of law school, and take a look and see what it says. It says, “Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office under the United States.” There was another case about that, by the way. And then, “But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law.”

 

President Trump argues, “Well, that says you can only be prosecuted after you’ve been removed from office by impeachment.” I’m not so sure about that one. It could also mean that you don’t get double jeopardy protection, that even if you are convicted via impeachment and removed, that doesn’t -- or you’re not. That doesn’t implicate one way or the other how you’re treated under the criminal justice system.

 

My podcast co-host, Richard Epstein, and I have got in a long argument about this. Richard is quite convinced that double jeopardy does apply. I think this provision actually is not about giving an immunity. I think it actually really is about double jeopardy. But that’s the textual argument, and I think that’s really the only text that really is at stake here. You could go to the constitutional structure and ask, “Do you think it’s really a violation of the separation of powers? Is it a violation of the Executive Power Clause?” and so on. Both sides make very abstract arguments about this. It’s difficult to see how a court will reduce those abstract claims to how to decide this one in particular.

 

You can also look at the original understanding, which I think is also interesting. Both parties, I think they seem to agree that Federalist 65, which is written by Alexander Hamilton, is really the definitive text to try to figure out. Federalist 65 says -- and again, Hamilton is talking about what happens after you’re impeached and removed. He says, “After having been sentenced to a perpetual ostracism from the esteem and confidence and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law.”

 

So, again, President Trump says, “See, that backs up my reading. Doesn’t that say, ‘Only after you’re removed for impeachment, then you’re liable to prosecution and punishment’?” The special counsel responds—I think they’re probably right about this provision—“This provision and this discussion in The Federalist Papers is really just an explanation of why you don’t have impeachments with judges like the Supreme Court judges sitting as a trial judges, why you don’t use the courts at all for impeachment” because the next sentence after this sentence in 65 says, “Would it be proper that the persons who had disposed of his fame and his most valuable rights as a citizen in one trial should in another trial for the same offense be also the disposers of his life and his fortune?”

 

So when you read the full context of that paragraph, it doesn’t sound to me like immunity. It sounds to me, again, Hamilton saying, “Impeachment is not a criminal proceeding. It’s not even really a civil proceeding. It’s a special way that we remove people from office, and it’s different and independent from criminal prosecution.”

 

Last thing and then I’ll end my presentation is the last thing the Court would look at would be practice. And, of course, there’s very little practice here. And that’s because this Justice Department has decided to break with over 200 years of practice and, for the first time, bring federal charges against a former president. So I don’t think there really is any relevant practice.

 

The special counsel makes a big deal of President Nixon accepting a pardon from -- former President Nixon accepting a pardon from President Ford, and they ask, “Well, why would you need that pardon if presidents are already immune from subsequent criminal prosecution?” I don’t know whether that one single example that we have would make a big difference to the Court in terms of that kind of steady, widespread practice that they seem to be looking for, for example, in post-Fourteenth Amendment to today practice on question of abortion, for example, as we saw in Dobbs.

 

So let me just conclude. I -- because it sounds like everybody likes to conclude these with guessing what the Supreme Court will do. Again, as I said, I don’t think there’s any legal authority; I don’t think there’s any precedent. I don’t know if there’s any practice which dictates how the Court should come out. I think there’s a lot of constitutional political concerns about presidents using the criminal law to punish their political rivals. But I’m not sure the Constitution prohibits that.

 

That used to be in the hands of wise statesmanship, and now that that seems to be rapidly disappearing, people want the Constitution to save us from it. I’m not sure any constitutional text does that. So if I had to make a guess, I would say a majority of the Court will reject President Trump’s claim of immunity. But—and here’s the last point—that doesn’t mean he can’t make all these constitutional arguments, some of which we’ve already heard about.

 

I think actually several of the substantive charges are quite weak when they’re applied to January 6 and President Trump, like defrauding the United States or depriving every American simultaneously in the country of their voting rights. I think Anya was mentioning before this question of whether he can be charged with trying to destroy or tamper with evidence as part of an official proceeding of Congress might be the most serious one. But we’ll wait and see. Maybe after the Supreme Court opinion in the Fischer case, that might drop out as a potential charge, too.

 

But immunity means that he wouldn’t even have to make any of those arguments. And so that’s why I think the Court will deny immunity but then let him proceed to make his substantive attacks on the indictment. So thanks, everybody. Sorry for going on a little long for the easiest case of the term.

 

Danielle Thumann:  Not at all. Thank you so much for that presentation as well. So I think we will start with the Q&A. We have one question in from an audience listener. So we can go ahead and start there and then go back to my questions, and I’ll keep an eye on the Q&A chat. So as people have questions, please submit them. I’ll be watching it and directing those questions to the appropriate speaker.

 

The first question that we have in from a listener is to Anya. “Would the Fischer’s case interpretation of ‘otherwise’ reverberate into the Communications Act? And that language is obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable, whether or not such material is constitutionally protected.”

 

Anya Bidwell:  Yes, I think it would. The question, again, would be, “What follows? So what precedes otherwise, does it inform the word ‘objectionable’ if we’re talking about when we’re talking ‘is objectionable obscene, lewd,’ and so forth, or can ‘objectionable’ be something completely different?”

 

So I think whatever the Court decides in this case, when lawyers litigate the Communications Act, they would definitely be paying attention to how the Court looked at the word otherwise in this context, though, of course, here, we’re talking about otherwise plus verb and versus here that we’re talking about obscene, lewd, and so forth. That’s not a verb. But I really don’t think that that would make that much of a difference. So if I were a lawyer litigating Communication Act cases, I would definitely look at what the Court says here.

 

Danielle Thumann:  Okay, great. Turning next to you, Roger. Jumping back to the Starbucks case, you talked a little bit about the practical implications of a ruling in favor of Starbucks. But let’s talk a little bit about what impact a ruling for McKinney could have on businesses, if you could unpack some of the points that were made by the U.S. Chamber of Commerce and other businesses during the briefing.

 

1. Roger King: Well, our excellent brief on behalf of the HR Policy Association and the Chamber of Commerce and other business groups emphasizes the points, Danielle, that injunctions issuing against an employer in these types of labor relations cases can be very damaging.

 

So if the status quo is imposed, Danielle, let’s say for two years or so, while the administrative proceeding is going through an ALJ trial and then potentially to the board on appeal, the business entity is frozen in what it can do with respect to labor relations issues arising from the unfair labor practice charge. But let me just expand on that a bit further.

 

As I mentioned, the general counsel of the National Relations Board at present is really pushing the outer limits of the National Relations Act. And for those labor lawyers joining us today, they’ll know of a case called Cemex. And in this case, for the first time, this Board is requiring that employers stay really out of the election process where they traditionally have had a voice. And if they engage in certain actions that are deemed to be improper, unfair labor practices, the election option is lost, and a requirement to bargain—a bargaining order—is imposed.

 

So this general counsel is seeking, at least in one case pending in the district court in Massachusetts, a bargaining order, at least on an interim basis, while the unfair labor practice charges are being processed. So that status quo, not only in the Starbucks case of reinstating disputed worker discharges—reinstating those employees—but in the case I just mentioned out of Massachusetts, requiring an employer to bargain with a union before the ultimate case is ever decided as to whether bargaining should ultimately be required.

 

So just to sum it up, the practical impact of an injunction on a business entity, as the chamber brief mentions and as our brief mentions on behalf of the coalition of Democratic Workplace and the HR Policy Association, is considerable. And as I said, it’s somewhat analogous to a class action certification being granted by a court. The responding party is at a great disadvantage.

 

Danielle Thumann:  Thank you. So we have several additional questions that have come in. The first two are directed to Professor Yoo. I’m going to try to merge these two questions into one. So the first is, “Do you read anything into the way that the Supreme Court framed the question presented in the Trump case? Is there anything noteworthy about the wording? For example, does it suggest that the Court is --

 

Prof. John C. Yoo:  I think we lost Danielle, but I see the questions, and I’ll just proceed. So one question is, “Do the questions presented give a signal as to what the Court -- what else the Court might be interested in, what else it might do?” And I think there’s another question about, “Does immunity that Trump’s claiming extends to everything? Could President Trump, for example, as he famously said, shoot someone on Fifth Avenue and claim immunity?” And so, yeah.

 

One thing I didn’t get to is an argument, actually, that the special counsel spends a fair amount of time on which the Trump brief doesn’t spend very much time at all on, for obvious reasons, which is, even if there is immunity, did what President Trump allegedly did on January 6 fall outside the immunity? So this is also something that has been coming up through the D.C. Circuit in a case called Blassingame v. Trump, which is a case brought by, I think -- I’m not sure they’re former or current or both Capitol Hill Police who were injured on January 6, and they are suing.

 

And they’re saying, as you remember, Nixon v. Fitzgerald says there’s immunity from civil lawsuits for official acts, even those at the outer perimeter of the president’s constitutional authority. And so the claim there in Blassingame is what President Trump did on January 6 just wasn’t in his official capacity. It was in his personal capacity. And so I think these questions -- the question presented, could still give the court the opportunity, if it wanted to, to say there is some kind of immunity for presidents, but it doesn’t extend as far as everything. It doesn’t cover non-official actions, and then it could remand back to the trial court, as the D.C. Circuit has done in Blassingame, too, to look carefully at the facts and then decide, “Is this an official act, or is this an unofficial act?”

 

The Blassingame court drew the line -- the Blassingame D.C. Circuit court drew the line at when a president is acting as a candidate for reelection, by definition, they cannot be acting as president. Now, of course, we all know there are situations where it’s tough to figure out where that line falls, right? The president still travels around with his security detail when he was campaigning. The president is still flying around in Air Force One while he’s campaigning.

 

Of course, there’s still an effort to draw the line there. I believe, for example, in all those situations, the campaign reimburses the government for the cost of all that protection and transportation. But you could still see the Court say, “Well, perhaps the January 6 events are President Trump acting as a candidate for reelection.”

 

Now President Trump is going to say—I assume he has said that in other proceedings—that, “What I did on January 6 was part of my duty as president to execute the law, which includes preventing the formalization of a fraudulent election,” right? If he makes that argument, then that still might require the Court to make this fundamental decision about absolute immunity or not and try to maybe evade it a little bit by saying whether what happened on January 6 doesn’t involve -- first requires us to decide what the president was doing in his official or non-official capacities.

 

Danielle Thumann:  Great, thank you so much. And sorry about my connectivity. I made it almost a full hour and a half without my Wi-Fi dropping out. I’m not really sure what happened. But I am back, and we have two more questions in the chat. The first is for you, Roger, whether the Court’s decision on whether to overrule Chevron -- “Will the Court’s decision on whether to overrule Chevron impact the decision in the NLRB case because it is premised upon deference to the agency?”

 

1. Roger King: I think the short answer, Danielle, is yes. I mean, the degree of deference issue to executive agencies pending in Loper has such a tremendous potential impact on administrative law altogether. And we at The Federalist Society, of course, have been tracking this broader issue for some period of time. How much deference should we give to administrative agencies? Many of us think Chevron is wrongly decided and/or has been too broadly applied.

 

But absolutely, yes, because the issue -- the brief, short issue before the Court in Starbucks is what degree of deference should the Court give to how that section of the law, 10(j), the injunction section, should be given to the National Relations Board. And I think most of us would argue that the board has gone too far to enhance its own administrative preference approach and put respondents at disadvantage.

 

Danielle Thumann:  Thank you. All right. Turning back to the Grants Pass case, do any of the briefs address the failure of the jurisdiction in the city of Boise case to accept as-available housing provided by religious groups?

 

Timothy Sandefur:  Yes, some of them do, and I think it’s plainly right to do so. I think the Ninth Circuit’s dismissal of church-run shelters as a source of housing as part of this numerical formula was done very hastily by the Court. There’s not a great deal of analysis in -- I mean, the Ninth Circuit -- not a great deal of analysis by the Ninth Circuit as to why that would constitute establishment.

 

The idea is that a lot of these shelters say, “If you wanted to stay -- if you want to stay the night, you have to attend services” or something along those lines, “listen to our preaching or whatever.” And the idea is that -- I guess the idea is, if it’s involuntary for you to sleep on the street because the government doesn’t give you a bed, then I guess that that also would count as coercion for somebody to say, “If you want to stay the night, you have to attend services or something like that.” And then I guess the theory is that that would be government coercion.

 

That strikes me as really a step too far, logically speaking. I don’t think there’s anywhere near a majority on the U.S. Supreme Court that would stand for such a proposition. And it’s not really discussed on the merits, I mean, by the parties themselves in their briefs. It’s just discussed by the amici.

 

Danielle Thumann:  Great, thank you. I was going to say “in our last minute of time,” but we don’t really have a minute of time left. But maybe we can go over by a minute, Nate.

 

I was just going to say, before we close out, open questions to all for our listeners. If you can, in 20 seconds or less, hit on the biggest implication of each of these cases on our listeners, the average American. I know we’ve talked a lot about practical implications, but very truncated answer, and I’ll go around the group based on the way that I see you on my screen. So, Anya, we’ll start with you first.

 

Anya Bidwell:  Oh, great. So I do think that the Fischer case and the biggest implication is, it’s an important case, both when it comes to folks storming the Capitol and when it comes to President Trump. And as I mentioned earlier, I think that the case against President Trump could potentially still proceed even if January 6 writers prevail. And as Professor Yoo mentioned, the immunity is one thing, and it’ll be interesting to see how he engages with the substance of those claims. So this is definitely an important case to watch. And a lot of media outlets covered it as a case really about Trump, but it’s also very important on the facts of the case itself.

 

And with the Chiaverini case, it really -- the implications of it are very much about the state of the law today and the kind of criminal laws that we have on the books and that, very often, the government has an opportunity to use all these numerous laws to make the life really difficult for individuals. And I think that the Court on both sides of the political divide is paying very close attention to these kinds of issues. I argued the case just last month, Gonzalez v. Trevino, that also has the same implications with overt criminalization. And I’m hoping that both in Gonzalez and in Chiaverini, the Court will pay attention to that danger, which I think they already do. So that’s the bigger picture for Chiaverini.

 

Danielle Thumann:  Excellent. Thank you. All right, Timothy, next to you.

 

Timothy Sandefur:  This is an easy question for me to answer because homeless encampments have become a commonplace feature of city life in a lot of cities in the United States, particularly in the west. And if, as I expect to happen, the Ninth Circuit’s decision in Grants Pass gets overruled, that will allow city officials to take more effective steps to eliminate these encampments and to prosecute people for violating laws against camping on the sidewalks.

 

Now, that assumes that these city officials are willing to do that. And as we’ve seen, for ideological reasons, having nothing to do with the Constitution, a lot of city leadership in this country is not willing to take those steps. So it’s not going to be a panacea. But if the Supreme Court overturns the Ninth Circuit, it will be the first step toward a sane way of dealing with the homelessness problem that we are experiencing, particularly in the western states.

 

Danielle Thumann:  Thank you. All right. Roger?

 

1. Roger King: So what degree of deference should the federal courts give to executive agencies, specifically, when a government agency is seeking injunctive relief? Should it be an easier, more flexible standard, or should it be the traditional injunctive standards? And just on a broader concept, I like this new term of exceptionalism. To what degree should we except, if you will—E-X-C-E-P-T, right—except an agency’s interpretation of its underlying statutes? And I think the question is perhaps not nearly as much as we’ve had under Chevron.

 

Danielle Thumann:  Thank you. All right, Professor Yoo?

 

Prof. John C. Yoo:  Sorry. I think the short term is, of course, the resolution of this will dictate how speedily the special counsel can bring his case to trial against President Trump, which will have a, I think, a direct impact on the elections. But I think the longer term and I think more important impact is what this means for the independence and institution of the presidency and whether we’re going to turn to using prosecution as a means of resolving political disputes between the leaders of our majority parties. I hope it doesn’t have that long-term effect regardless of how the court decides the case in the short term.

 

Danielle Thumann:  Great. Harry, and then I’ll pass it straight to Nate to close us out. After you.

 

Harry S. Graver:  Yeah. I think the short of it is, if you’re in the habit of giving campaign contributions to state or local officials or bringing doughnuts over to a police station or hiring local officials, the government wins. Just make sure you are on very good terms with your local AUSA.

 

1. Roger King: Agreed.

 

Nathan Kaczmarek:  Well, thank you all. Thank you, Harry. I just noticed at the end there, you’re wearing -- showing off your Federalist Society swag for the presentation. Much appreciated. As promised, we covered a lot of ground.

 

Prof. John C. Yoo:  Wait. I’ll wear mine if you ever send me some. I don’t have anything fancy like he does.

 

Nathan Kaczmarek:  Dean insists that you pay full price, John. So I’m sure Harry paid full price.

 

Prof. John C. Yoo:  After decades of service, I don’t even get a fleece.

 

Timothy Sandefur:  Oh, somebody’s getting fleeced.

 

Nathan Kaczmarek:  Give me a call later, John. We’ll talk. I was going to say that our panel was all exceptional, but after Roger’s presentation in the Starbucks case and the coining of new terms in legal briefs, I want to be clear that, I mean the original meaning of that word. Our thanks to Danielle and our panel for their shared and very valuable expertise this afternoon. For our audience today, your feedback is certainly welcome at [email protected]. Have a good one. We are adjourned.

 

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