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

In a brief filed on Tuesday, former President Donald Trump urged the U.S. Supreme Court to deem former presidents absolutely immune from criminal prosecution for actions taken while president.

  • Trump filed a brief with the Court ahead of next month’s oral arguments in his appeal of the U.S. Court of Appeals for the D.C. Circuit’s ruling that former presidents, including Trump, are not absolutely immune from criminal prosecution. In that opinion, 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.”
  • Trump urged the Supreme Court to overturn the Appeals Court’s decision, arguing that the specter of criminal prosecution would chill a president’s ability to carry out the duties of the office and “incapacitate every future President.” Trump continued, “The threat of future prosecution and imprisonment would become a political cudgel to influence the most sensitive and controversial Presidential decisions, taking away the strength, authority, and decisiveness of the Presidency.” Trump also argued that his immunity arises from the Constitution’s separation of powers principle, writing, “The question of a former President’s criminal immunity presents grave constitutional questions that strike at the heart of the separation of powers.”
  • Special counsel Jack Smith is expected to file his brief with the Court by early April. 

The U.S. Supreme Court also heard oral arguments in two cases with First Amendment implications.

  • The first case, Murthy v. Missouri, stems from the Biden administration’s efforts to encourage social media sites to restrict misinformation about the COVID-19 vaccine. Individuals whose posts were removed, along with two states with Republican attorneys general, filed a lawsuit seeking to block government officials from communicating with social media sites about content moderation, arguing that the government violated the social media users’ free speech rights. A district court judge agreed with the challengers and issued an injunction preventing Biden administration officials from contacting social media sites. A federal appeals court upheld the injunction. During oral arguments, a majority of the Supreme Court justices referenced the broad implications of the lower court’s decision and signaled they are likely to side with the Biden administration. Justice Ketanji Brown Jackson, for instance, questioned whether it would be a free speech violation if the government contacted TikTok over a hypothetical viral challenge that encouraged teenagers to jump out of windows. Jackson wondered whether officials could “call the platforms and say: This information that you are putting up on your platform is creating a serious public health emergency, we are encouraging you to take it down.” Justices Elena Kagan and Brett Kavanaugh, both of whom have served in the executive branch before becoming judges, also pointed out that government officials’ communication with social media sites is no different from their contact with traditional news outlets. Kagan said, “I’ve had some experience encouraging press to suppress their own speech…this literally happens thousands of times a day in the federal government.”
  • The second case, National Rifle Association of America v. Vullo, involves a New York state official’s recommendation that banks and insurance companies sever ties with organizations that promote guns, such as the NRA. Maria Vullo, superintendent of the New York Department of Financial Services, issued the guidance in 2018, after the shooting at a high school in Parkland, Florida. The NRA argued Vullo violated the its First Amendment rights by coercing companies not to do business with the NRA. The U.S. Court of Appeals for the 2nd Circuit dismissed the NRA’s claim, finding Vullo immune from the lawsuit and writing that the NRA “failed to plausibly allege that Vullo crossed the line between attempts to convince and attempts to coerce.” A majority of the Supreme Court justices seemed to disagree, signaling they are likely to permit the NRA’s claim to move forward. For instance, Justice Samuel Alito suggested Vullo unlawfully leveraged her position as a government official to influence the companies’ conduct. Alito discussed the definition of “coercion” at length, saying, “There are a lot of different gradations, particularly when the official who’s making this request has that power and…I am sure that these insurance companies were well aware of the power of Ms. Vullo.” American Civil Liberties Union attorney David Cole, arguing on behalf of the NRA, characterized the free speech violation with reference to Supreme Court precedent dating back 60 years. He said, “Informal, indirect government efforts to suppress or penalize speech by threatening private intermediaries violate the First Amendment.” Decisions in both cases are expected this summer.

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