Last week, the Supreme Court ended the oral argument calendar in its October 2023 term. The very last sentence from a lawyer was something that is rarely heard: “I have nothing further, your Honor.”

How rare? The court had 61 oral argument sessions this term and only in one did a lawyer waive their right to rebuttal – it was this last one – one that could shape the future of presidential immunity. In one of the potentially most significant cases before the Supreme Court of the United States, Trump v. United States, the lawyer for the petitioner waived rebuttal.

Donald Trump’s lawyer was D. John Sauer, a seasoned advocate with much experience in appellate advocacy. He knows the power of a rebuttal; in fact, he did one to address three specific points in the D.C. Circuit in this case.

The fact that Sauer waived rebuttal came up a lot in the punditry shortly after the arguments were over, but we should be thinking about how that specific act, that procedural abdication, may have a lasting impact on the American democratic experiment.

Lawyers in the United States are trained to zealously advocate for their client. We are a passive adversarial system where the decider (the judge, judges or justices) chooses a position based on the best arguments made by those lawyers.

The side that bears the burden of proof usually goes first and also gets the last say. In criminal trials, prosecutors get a rebuttal for a closing argument before the case goes to the jury, same for plaintiffs in civil trials. In the world of appeals, the one bringing the appeal (called by many names: petitioner, appellant, etc.) has the last word with a rebuttal in oral arguments. So, too, is the process before the highest court in the country, the United States Supreme Court.

This is a powerful tool. You get to be the last voice in the jury’s mind or the last voice in the justices’ thoughts before the nine conference; you get to respond to what was argued right before you. The responding party does not get that benefit. It is not a back-and-forth non-stop; it is a back-and-forth-and-back, ending with the party bringing the case.

So why, given this guaranteed benefit against the backdrop of zealous advocacy, would a lawyer ever choose not to use it? Could it have been tactical? Obviously, a lawyer who has a right to advocate and chooses not to must believe they’ve won, or at least gotten enough to know when to quit, when to no longer need to exhaust energies. So, what hand was shown by this based on the oral arguments in Trump v. United States?

One of the things that the justices seemed to press Michael Dreeben on (the lawyer for the United States) was whether there are “core” powers that the Constitution gives the president that could conceivably be immune from criminal prosecution, whether the constitutional structure in Article II allows some level of presidential immunity, (even applicable to state prosecutions). That is to say, are there functions so central to the executive functioning of the presidency that they need to be afforded immunity?

Did Trump’s lawyer believe the justices of the Supreme Court showed him enough to rest his case, to not need to argue further because the justices alluded to carving out layers to this core in order to determine what are or are not “official acts”?

The Supreme Court decided to review this case ostensibly because it wanted to articulate a more specified principle (than the one handed down by the D.C. Circuit) on the scope of presidential immunity. In so doing, the wheels of the legal process turn – they turned slowly from when the D.C. Circuit had its oral argument (Jan. 9, 2024) to when it issued its opinion (Feb. 6) to when the Supreme Court decided to review (Feb. 28) to when it heard oral arguments (April 25) to when it will likely issue its opinion (late June). For the first six months, only one issue was playing out before even the actual determination of whether or not specific acts rose to the level of a crime could be in a position to be determined.

The Supreme Court is a court that reviews law, not facts. Trial courts can do that when they try facts, but that takes time. How to separate out what is or is not an official act or what layers of presidential functions are core will take time. Counts in the indictment will have to be analyzed, one by one, and at many points, a ruling by the trial court can be appealed. More time.

Courts can interpret laws from arguments that lawyers put forth in specific cases, but those interpretations ultimately impact all Americans. A process that takes time. What can happen faster? Voting. Perhaps the intention of the framers of our government was to ultimately put this in the hands of the people, of the voters, the very essence of our democracy. It is in this political arena, the vote, that may be the bulwark to prevent harm to democratic ideals.

All of this is leading up to a presidential election in November – in a little over six months. About three months after that, the winner will be sworn in as the next president of the United States. One of those core powers that Michael Dreeben acknowledged as immune from criminal prosecution was the pardon power. Twice in the oral argument, it was asked – once by Justice Gorsuch directed to John Sauer and once by Justice Alito directed to Dreeben – whether a president could pardon himself.

Lawyers advocate for their clients’ interests. When those interests don’t align with the values of the system in which the advocacy exists, the ballot box becomes the voter’s vehicle for zealous advocacy. So, for American voters from now until November, it is certainly not the time to say “nothing further.” It is the time to decide what America you want and decide what values the person who occupies the office of the president of the United States should also advocate for.

For voters, there is something further.

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