Week in a Nutshell, 3/1/24

March 1, 2024

Week in a Nutshell, 3/1/24

Donald Trump greets supporters during an election night watch party at the State Fairgrounds on February 24, 2024 in Columbia, South Carolina. (Photo by Win McNamee/Getty Images)

Here is some of the legal news making the headlines this week:

The Supreme Court agreed to hear former President Donald Trump’s appeal of the D.C. Circuit Court of Appeals’s ruling that former presidents, including Trump, are not absolutely immune from criminal prosecution.

Trump raised this immunity defense in the election subversion prosecution brought by special counsel Jack Smith. Trump argued that separation of powers and double jeopardy protections should preclude the criminal prosecution of a former president. He has also argued that the specter of criminal prosecution would chill a president’s ability to carry out official duties.
In rejecting Trump’s defenses, the D.C. Circuit Court panel unanimously held, “The Executive Branch’s interest in upholding Presidential elections and vesting power in a new President under the Constitution and the voters’ interest in democratically selecting their President…compel the conclusion that former President Trump is not immune from prosecution under the Indictment.”
The Supreme Court has now scheduled oral arguments in Trump’s appeal for the week of April 22. The question before the Court will be: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

The Supreme Court also heard oral arguments in two other major cases this week.

The justices appeared likely to strike down Texas and Florida social media content moderation laws. The statutes, passed in the wake of the January 6, 2021 insurrection, bar social media companies from making editorial judgments about content on their platforms. Arguing on behalf of Florida, the state solicitor general said that social media platforms “do not have a First Amendment right to apply their censorship policies in an inconsistent manner and to censor and de-platform certain users.” However, the lawyer arguing on behalf of the social media companies said the platforms would not be able to function without some discretion over content: “Given the vast amount of material on the Internet in general and on these websites in particular, exercising editorial discretion is absolutely necessary to make the websites useful for users and advertisers.” Justice Elena Kagan offered a glimpse of her views on the case, suggesting that preventing platforms from making their own editorial judgments is “a classic First Amendment violation.” Justice Clarence Thomas, by contrast, signaled he would likely vote to uphold the laws, asking the lawyer representing the social media companies, “Can you give me one example of a case in which we said that the First Amendment protects the right to censor?”
The Court seemed divided over whether the Bureau of Alcohol, Tobacco, Firearms and Explosives may ban bump stocks, a device that attaches to semiautomatic firearms and enables them to fire bullets at quick speeds similar to a machine gun. The Trump administration enacted the ban in 2018, following the mass shooting at a country music festival in Las Vegas–the deadliest in modern US history. The case does not hinge on Second Amendment rights, but it does concern the power of administrative agencies. The justices spent some time discussing firearm mechanics and whether bump stock attachments essentially transform rifles into machine guns. Justice Amy Coney Barrett said, “Look, intuitively, I am entirely sympathetic to your argument. I mean, it seems like, yes, this is functioning like a machine gun would.” However, Barrett and other justices wondered whether the decision to explicitly ban bump stocks should be left to Congress, while other justices suggested that firearms with bump stocks are exactly the type of weapons that Congress intended to be covered by its machine gun ban. Justice Ketanji Brown Jackson questioned, “Why would Congress want to prohibit certain things based on whether the trigger is moving as opposed to certain things that can achieve this…lethal kind of spray of bullets?”

Manhattan DA Alvin Bragg asked a judge to impose a partial gag order against Trump in the hush money criminal prosecution.

In arguing for the gag order, Bragg cited Trump’s “longstanding history of attacking witnesses, investigators, prosecutors, judges, and others involved in legal proceedings against him.” Bragg detailed the many instances in which Trump used social media posts, speeches, and other public appearances to criticize prosecutors, court personnel, and witnesses against him in lawsuits — including a 2023 social media post that featured a picture of Trump holding a baseball bat aimed at an image of Bragg’s head.
Bragg, in his court filing, also noted that the gag order request substantially mirrored the gag order already imposed on Trump in the criminal case being overseen by special counsel Jack Smith in Washington, D.C. The D.C. Circuit Court recently upheld that narrow gag order, which precludes Trump from publicly criticizing prosecutors, court staff, and witnesses in the case. Bragg’s request goes a step further by also seeking protections for jurors.
The gag order, if implemented, would not cover Bragg. Joyce Vance discussed Bragg’s decision to exempt himself from its scope on this week’s CAFE Insider podcast, saying, “[A prosecutor’s] job is not to make yourself the center of attention. You’re supposed to have a thick skin and just keep going…I think most prosecutors have been there in a place where they were involved in a case where folks threatened their personal safety and we are just hardwired to keep going.”