Accountability Is a Procedure, Not a Verdict

On October 2, 2024, a federal judge unsealed a filing by the Special Counsel's office in the federal case against Donald Trump. The document is not a verdict. It is an argument about which of a president's acts belong to the office and which belong to the man.

That distinction is the whole case, and it is narrower than the commentary around it suggests. NPR reported the filing's release (opens in a new tab) and the debate that followed. I read it as a question about institutional design rather than a question about one defendant.

I am not making a partisan argument here. I took an oath to support and defend the Constitution, and the part of that oath I keep thinking about is the boring part: the procedures that decide whether a claim gets tested.

What the filing argues

The Special Counsel's brief argues that the conduct at issue after the 2020 election was undertaken in a candidate's capacity, not in the official capacity of the presidency, and that it therefore falls outside the immunity the Supreme Court recognized in July 2024.

That is the structure of the argument. It is a legal claim about the character of specific acts, and it was filed by one party to a case. It is not a finding. Judge Tanya Chutkan had not ruled on the immunity question when the filing became public.

The defense position is the mirror image: that the acts were within the scope of the office, or that they are close enough to it that a president cannot be prosecuted for them without chilling the office itself.

Both positions are arguments about the same thing. What is a president doing when he is campaigning, and what is he doing when he is governing, and who gets to decide.

What the Court held in July

The Supreme Court's decision in Trump v. United States on July 1, 2024 set the frame. The Court held that a former president has absolute immunity from prosecution for conduct within his core constitutional powers, presumptive immunity for other official acts, and no immunity for unofficial acts.

That last category is where the litigation lives, because the line between official and unofficial is not self-executing. Somebody has to draw it, on a record, with evidence, and the drawing is reviewable.

The practical consequence is procedural. A case that would otherwise be about conduct becomes, first, a case about characterization. That is slower, and it is also the point. The Court did not resolve the case. It assigned the work of resolving it to a process.

The institutional question is not the electoral one

Most of the commentary I read in October 2024 treated the filing as a signal about the election. I think that is the least useful way to read it, for two reasons.

First, it makes the legal question subordinate to a prediction, and predictions about elections are the least reliable thing anyone writes. I have no idea how any of this affects a vote, and neither does anyone who tells you they do.

Second, it mistakes the mechanism for the outcome. The mechanism is what a country has instead of a strongman. A filing, a docket, a deadline, a ruling that can be appealed. Slow, procedural, and unsatisfying to anyone who wants the matter settled by an opinion column.

The thing worth watching is whether the mechanism operates normally. Does a former president appear as a defendant. Do deadlines apply. Does the court treat a filing from his lawyers the way it treats a filing from anyone else. Does the appellate process resolve the question rather than defer it indefinitely.

Those are small questions. They are also the ones that determine whether the precedent means anything.

A rule that applies only when it is convenient is not a rule. It is a preference with a citation.

Where the argument actually breaks

There are two ways to read the immunity decision, and the difference matters more than the partisan framing.

One reading is that the Court created a broad shield, and the litigation is now about how broad. Under that reading, the October filing is an attempt to fit the conduct into the narrow remaining category, and the outcome will depend on how much of the record the judge is willing to characterize as personal.

The other reading is that the Court set a test and handed it back to the trial court, and the filing is the first serious attempt to apply the test. Under that reading, the case is doing exactly what litigation is supposed to do, slowly.

I do not know which reading will win, and I am suspicious of anyone who does. What I can say is that the second reading requires the institutions to behave, and the first reading assumes they will not.

What I would tell a younger version of myself

I spent years in uniform and more years in federal work, and the lesson I keep relearning is that accountability is administrative before it is dramatic.

It is a signature on a document. A date on a docket. A record that exists because someone was required to make one. The drama is downstream of the paperwork, and when the paperwork stops, the drama is all that is left.

The case is a test of that. Not a test of one man, and not a test of one election. A test of whether the ordinary machinery can process a question this large without being redefined by it.

Whatever the courts decide, the thing I want to be able to say afterward is that the process ran. That the arguments were made in filings, answered in filings, and resolved by someone with the authority to resolve them.

That is a low bar. It is also the bar that most countries in history have failed to clear.

Accountability is not a verdict. It is the procedure that makes a verdict mean something.