Patterico's Pontifications

2/28/2024

Supreme Court Will Decide Trump’s Immunity Claim

Filed under: General — Dana @ 5:10 pm



[guest post by Dana]

The Supreme Court will hear Trump’s immunity claims, it was announced today:

The Supreme Court agreed Wednesday to decide whether Donald Trump may claim immunity in special counsel Jack Smith’s election subversion case, adding another explosive appeal from the former president to its docket and further delaying his federal trial.

The court agreed to expedite the case and hear arguments the week of April 22…

The decision is a significant victory for Trump for at least two reasons: He will now be able to argue for sweeping presidential immunity that, if granted, could undermine the bevy of legal challenges he faces, and he will also be able to push off a trial, likely for several weeks at least.

According to the order, the legal question the Court will decide is “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.”

If you recall, Trump lost his immunity appeal in early February when a three-judge panel of the D.C. Circuit found that he had no immunity from federal charges as former president. They wrote: “For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant.”

Donald Trump posted this bullshit after the Supreme Court announcement:

Legal Scholars are extremely thankful for the Supreme Court’s Decision today to take up Presidential Immunity. Without Presidential Immunity, a President will not be able to properly function, or make decisions, in the best interest of the United States of America. Presidents will always be concerned, and even paralyzed, by the prospect of wrongful prosecution and retaliation after they leave office. This could actually lead to the extortion and blackmail of a President. The other side would say, “If you don’t do something, just the way we want it, we are going to go after you when you leave office, or perhaps even sooner.”

Just incredible.

Judge Luttig was asked for his reaction to the news while making an appearance on CNN:

This is a momentous decision just to hear this case. There was no reason in the world for the Supreme Court to take this case. The three-judge panel…had written a masterful opinion denying the president’s claims of absolute immunity. Under the Constitutional laws of the U.S., there has never been an argument that a former president is immune from prosecution for crimes he committed while in office.

Compare and contrast said reactions…

–Dana

65 Responses to “Supreme Court Will Decide Trump’s Immunity Claim”

  1. Hello.

    Dana (8e902f)

  2. According to the order, the legal question the Court will decide is “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.”

    As this essay argues, the immunity question has little to do with the election interference indictment:

    ……..(E)ven if Trump were to prevail on his immunity argument, it wouldn’t affect the forthcoming trial very much because, with only one relatively minor exception, there’s no serious argument that Trump was acting in his official capacity as President when he engaged in the conduct charged in the indictment.

    For starters, all but one of the counts of the indictment allege that Trump conspired with others to violate the law through fraudulent conduct. And, with one discrete exception, Trump’s alleged agreements to commit such fraud were with persons outside the government….. …….
    It’s very hard to see how Trump’s agreements with the five private parties might have been undertaken in his official capacity as President of the United States. ……..
    ………
    ……..(I)t’s significant that all of the acts were “unrelated to any of [Trump’s] official duties as President of the United States.”………..
    ……..

    Prediction: At best, it will be a 7-2 vote against Presidential immunity.

    Rip Murdock (d2a2a8)

  3. It’s probably necessary that Trump exhaust every possible avenue of appeal here, just so we can at last have a sense of finality.

    JVW (1ad43e)

  4. Seal team 6 get ready!

    asset (7cbff8)

  5. Justice for the voter denied. SMDH. Inexcusable. My interest in this is quickly becoming exhausted.

    AJ_Liberty (f54fd1)

  6. What a bunch of pussies. Obviously, this drives a stake into any hope they will disqualify him, meaning that 14.3 is not self-executing.

    Kevin M (8676e4)

  7. It only takes four to grant cert.

    nk (f3dd18)

  8. Prediction: At best, it will be a 7-2 vote against Presidential immunity.

    They needed four votes to hear it. I think this is more an act of caution rather than a sign of agreement. I’d be guessing Thomas, Alito, Roberts and Jackson.

    Kevin M (8676e4)

  9. Kevin M (8676e4) — 2/28/2024 @ 6:18 pm

    The two voting for presidential immunity will Alito and Thomas.

    Rip Murdock (abc23c)

  10. Trump’s appeal was a delay tactic, and enough Justices acquiesced. Great.

    Paul Montagu (d52d7d)

  11. “There was no reason in the world for the Supreme Court to take this case.”

    This reminds of the lead up to the Obamacare decision. Any possibility that the law could be overturned was dismissed. And *of course* the ACA was Constitutional. I mean, the Supremes aren’t crazy. I don’t recall anyone predicting a 5-4 decision with Roberts flaking. Open your minds.

    lloyd (2f31a8)

  12. [quote]The Supreme Court said Friday (December 22, 2023) it will not immediately take up a plea by special counsel Jack Smith to rule on whether former President Donald Trump can be prosecuted for his actions to overturn the 2020 election results.[/quote]

    https://apnews.com/article/trump-january-6-justice-department-90b93eeb663ebaf67a2e0bc266390fa0

    So what changed between then and now?

    Davethulhu (4789b3)

  13. Open your minds.

    Sure. The president can shoot his wife on national television, but if it’s becasue she kept nagging him and distracting from his presidential business it’s OK.

    Kevin M (8676e4)

  14. So what changed between then and now?

    They allowed an appeals court to waste a solid couple of months first.

    Kevin M (8676e4)

  15. I now expect this case won’t produce a verdict by election day, Trump will be elected, on January 21 he’ll order the charges in this case and the documents case be dropped, and if he’s impeached, i.e., if the Dems have won the House, the Senate will let him slide again. Disgusting and dispiriting.

    lurker (cd7cd4)

  16. Let’s suppose that you are a Democratic cabal. And you have a senile figurehead in whose name you rule the country.

    And you now have the chance to have him vested with immunity for any crimes committed while in office. And let’s not forget his existing pardon power, which you exercise in his name, anyway.

    And the only person who can get him reelected for another four years is Donald Trump.

    What do you do?

    Hope to have the Republicans dump Trump as their nominee by quickly and expeditiously convicting him of a cartload of crimes? How ridiculous does that sound on how many levels?

    Or, do you do just enough to keep Trump on his heels (that’s a boxing term) till November and, if you have been good boys and girls and stayed off Santa’s naughty list, have yourselves a figurehead, now with criminal immunity, for another four years?

    nk (906ed1)

  17. #15

    Don’t be dispirited. Be engaged and angry.

    The electorate is going to have to save the country because the elites are incapable. That’s the most populist thing of all, isn’t it?

    Appalled (937965)

  18. Take Trump out of the equation…

    According to the order, the legal question the Court will decide is “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.”

    I haven’t seen anyone make the case that Presidents COULD be criminally charged post-tenure.

    Because we can go back to the Obama/Bush/Clinton years and pull out examples of “official presidential acts” that could fit in a criminal paradigm.

    whembly (5f7596)

  19. @13

    Open your minds.

    Sure. The president can shoot his wife on national television, but if it’s becasue she kept nagging him and distracting from his presidential business it’s OK.

    Kevin M (8676e4) — 2/28/2024 @ 10:35 pm

    That’s silly.

    Congress will impeach/remove, and both the FBI & DC police will charge the former president.

    Do you have any more fanfiction to share?

    whembly (5f7596)

  20. Donnie should have dessert before dinner because he will be afraid that he will leave no room for dessert while eating dinner and not eat all his dinner and that’s not good for a growing boy if he does not eat all his meat and vegetables and drink all his milk.

    The bottom line is that it is not in the Constitution. You want to present your rationales, hold a Constitutional Convention.

    nk (cefaf4)

  21. @20

    The bottom line is that it is not in the Constitution. You want to present your rationales, hold a Constitutional Convention.

    nk (cefaf4) — 2/29/2024 @ 8:10 am

    Neither is Qualified Immunity.

    But, I think you’re avoiding the question…can I ask why?

    whembly (5f7596)

  22. The text of the order:

    WEDNESDAY, FEBRUARY 28, 2024
    CERTIORARI GRANTED
    23-939 TRUMP, DONALD J. V. UNITED STATES (23A745)

    The application for a stay presented to The Chief Justice is referred by him to the Court. The Special Counsel’s request to treat the stay application as a petition for a writ of certiorari is granted, and that petition is granted limited to the following question: 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. Without expressing a view on the merits, this Court directs the Court of Appeals to continue withholding issuance of the mandate until the sending down of the judgment of this Court. The application for a stay is dismissed as moot.

    The case will be set for oral argument during the week of April 22, 2024. Petitioner’s brief on the merits, and any amicus curiae briefs in support or in support of neither party, are to be filed on or before Tuesday, March 19, 2024. Respondent’s brief on the merits, and any amicus curiae briefs in support, are to be filed on or before Monday, April 8, 2024. The reply brief, if any, is to be filed on or before 5 p.m., Monday, April 15, 2024.

    Kevin M (8676e4)

  23. The electorate is going to have to save the country because the elites are incapable. That’s the most populist thing of all, isn’t it?

    Common ground!

    Kevin M (8676e4)

  24. Congress will impeach/remove, and both the FBI & DC police will charge the former president.

    Congress might remove, but how does that affect immunity? If all he has to do is assert some specious connection to presidential duties (e.g. sending a mob to invade the Capitol and intimidate Congress) then it is hard to find something that could not be colored as such.

    Kevin M (8676e4)

  25. Because we can go back to the Obama/Bush/Clinton years and pull out examples of “official presidential acts” that could fit in a criminal paradigm.

    First, whembly, I want to hear your argument that Trump’s actions on J6 were part of his presidential duties.

    Kevin M (8676e4)

  26. @24

    Congress will impeach/remove, and both the FBI & DC police will charge the former president.

    Congress might remove, but how does that affect immunity? If all he has to do is assert some specious connection to presidential duties (e.g. sending a mob to invade the Capitol and intimidate Congress) then it is hard to find something that could not be colored as such.

    Kevin M (8676e4) — 2/29/2024 @ 10:44 am

    Because Trump’s attorney never argued for total immunity (despite the Orange Julius’ ranting on truth social).

    The job of the Presidency is so serious, that involves weighty issues that you don’t want a decision maker to be hamstrung by worrying if he could face political persecution from his ideological opponents once he’s out of office.

    Do we want a regime where Presidents of one party are routinely indicted by their successors of another party? For 230 years we did not have that, and then Biden broke the norm, and stretched the criminal law to do so. It is very unfortunate that this reckless move put the judiciary into the position of having to decide whether a President can be held criminally accountable for his official actions.

    The D.C. circuit’s decision is sweeping, saying that even a President’s official acts are not immune from criminal prosecution. This departed from Fitzgerald, which found immunity for official acts in the civil context.

    Distinguishing official from personal acts is itself a hard thing to do. One question is whether you should limit the inquiry to the acts themselves, or get into the purpose of the acts. Regardless how it goes, the Court would have to define the standards for making this distinction.

    Not easy.

    But, once a standard is set, the Court will likely remand the case back to the district court for more fact finding under this new standard. Which, in turn, would spawn more interlocutory appeals all over again.

    whembly (5f7596)

  27. @25

    First, whembly, I want to hear your argument that Trump’s actions on J6 were part of his presidential duties.

    Kevin M (8676e4) — 2/29/2024 @ 10:45 am

    What part? Please be specific.

    whembly (5f7596)

  28. “I haven’t seen anyone make the case that Presidents COULD be criminally charged post-tenure.”

    Indirectly: Why would Ford have pardoned Nixon if Nixon could have simply evaded prosecution by resigning?

    Constitution Article I Sect 3: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.”

    This gives the misimpression that one must get Senate conviction before a party is liable to prosecution. This is mistaken because
    1. The goal of impeachment is removal to protect government from corrupt or incompetent office holders. Prosecution is about punishment. The goals are different.
    2. A criminal trial has more rules. Impeachment can be driven by political sentiments that are not allowed in criminal court.
    3. Acquittal by the Senate does not necessarily mean not guilty of a crime beyond a reasonable doubt….it could mean that the offense is not judged to be a high crime or misdemeanor.
    4. Otherwise Congress would have a pardon power that it is not granted by the Constitution. 50% + 1 of the House could pardon any act by a President no matter what the evidence shows. Congress does not and should not have that power.
    5. Any office holder could evade punishment by resigning prior to impeachment or have his term expire before impeachment and removal. If you believe McConnell was right in saying that Trump could not be removed because he was already out of office, then there must be some criminal remedy.

    The justice system needs credibility — no man should be beyond the law. Trump is afforded a vigorous defense. Now, what offenses should be prosecuted? They should be serious and not directly tied to a proper execution of power. So Trump should not be indicted for his Zelensky shakedown, but should be for his Raffensperger shakedown. Of course, IMO

    AJ_Liberty (5f05c3)

  29. @28

    “I haven’t seen anyone make the case that Presidents COULD be criminally charged post-tenure.”

    Indirectly: Why would Ford have pardoned Nixon if Nixon could have simply evaded prosecution by resigning?

    Because we’re not really making an apples-to-apples comparison.

    Ford pardoned Nixon, not because Ford didn’t believe Nixon did anything wrong, but did so for political reasons to put the issue to bed, and to try to get the country to move forward.

    Constitution Article I Sect 3: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.”

    This gives the misimpression that one must get Senate conviction before a party is liable to prosecution.
    AJ_Liberty (5f05c3) — 2/29/2024 @ 11:13 am

    That’s how exactly how I think it reads.

    Let’s break it down…

    Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States:

    This is the the description that impeachment/removal is a political act. Technically, there’s no requirement for presumption of innocence nor even a facsimile of due process. It’s purely a political process whereby the punishment is only removal and/or future office disqualification.

    To continue the text:

    but the Party convicted

    Which means the SENATE has already rendered judgement of removal and/or disqualification. Right? Please respond that you see what I’m saying here…

    shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.”

    This means that a convicted former president would then be criminally liable for acts justified during the impeachment conviction.

    As such, normal presumption of innocence and due process is afforded to the former President, just like any other rando.

    whembly (5f7596)

  30. First, whembly, I want to hear your argument that Trump’s actions on J6 were part of his presidential duties.

    Kevin M (8676e4) — 2/29/2024 @ 10:45 am

    What part? Please be specific.

    whembly (5f7596) — 2/29/2024 @ 11:04 am

    For example, how are the activities described in Count One (Conspiracy to Defraud the United States—18 U.S.C. § 371) of the indictment part of Trump’s presidential duties?

    The Defendant (Donald Trump) enlisted co-conspirators to assist him in his criminal efforts to overturn the legitimate results of the 2020 presidential election and retain power. Among these were:

    a. Co-Conspirator 1, an attorney who was willing to spread knowingly false claims and pursue strategies that the Defendant’s 2020 re-election campaign attorneys would not. (presumably Rudy Rudy Giuliani).

    b. Co-Conspirator 2, an attorney who devised and attempted to implement a strategy to leverage the Vice President’s ceremonial role overseeing the certification proceeding to obstruct the certification of the presidential election. (John Eastman)

    c. Co-Conspirator 3, an attorney whose unfounded claims of election fraud the Defendant privately acknowledged to others sounded “crazy.” Nonetheless, the Defendant embraced and publicly amplified Co-Conspirator 3’s disinformation. (Sidney Powell)

    d. Co-Conspirator 4, a Justice Department official who worked on civil matters and who, with the Defendant, attempted to use the Justice
    Department to open sham election crime investigations and influence state legislatures with knowingly false claims of election fraud. (Jeffrey Clark)

    e. Co-Conspirator 5, an attorney who assisted in devising and attempting to implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding. (Kenneth Chesebro)

    f. Co-Conspirator 6, a political consultant who helped implement a plan to ubmit fraudulent slates of presidential electors to obstruct the certification proceeding. (possibly Boris Epshteyn)
    ………..

    a. The Defendant and co-conspirators used knowingly false claims of election fraud to get state legislators and election officials to subvert the legitimate election results and change electoral votes for the Defendant’s opponent, Joseph R. Biden, Jr., to electoral votes for the Defendant. ………

    b. The Defendant and co-conspirators organized fraudulent slates of electors in seven targeted states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), attempting to mimic the procedures that the legitimate electors were supposed to follow under the Constitution and other federal and state laws…….

    c. The Defendant and co-conspirators attempted to use the power and authority of the Justice Department to conduct sham election crime
    investigations……

    d. The Defendant and co-conspirators attempted to enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results. First, using knowingly false claims of election fraud, the Defendant and co-conspirators attempted to convince the Vice President to use the Defendant’s fraudulent electors, reject legitimate electoral votes, or send legitimate electoral votes to state legislatures for review rather than counting them. ……
    ……….

    In addition:

    Counts Two and Four allege that the same agreement also violated two other federal statutes: 18 U.S.C. § 1512(k), which prohibits conspiring to, inter alia, corruptly obstruct or impede “any official proceeding,” id. § 1512(c)(2), and 18 U.S.C. § 241, which prohibits conspiring to violate persons’ constitutional rights to vote and have their votes counted. (Count Three alleges that Trump himself actually “attempted to, and did,” corruptly obstruct and impede an “official proceeding,” namely, the January 6, 2021 certification of the electoral vote. That non-conspiracy count, too, predominantly alleges conduct that Trump undertook in his personal capacity, in coordination with other private parties.)

    Rip Murdock (d2a2a8)

  31. @30

    For example, how are the activities described in Count One (Conspiracy to Defraud the United States—18 U.S.C. § 371) of the indictment part of Trump’s presidential duties?

    I do find Smith leveraging 18 U.S.C. § 371 weird and seems like there’s zero precedent that this statute was used in this manner.

    Furthermore, SCOTUS has routinely admonished prosecutors/courts that “defrauding the United States” need to something of tangible value. I’ll see if I can find those cases again where the court stated this.

    In addition:

    Counts Two and Four allege that the same agreement also violated two other federal statutes: 18 U.S.C. § 1512(k), which prohibits conspiring to, inter alia, corruptly obstruct or impede “any official proceeding,” id. § 1512(c)(2), and 18 U.S.C. § 241, which prohibits conspiring to violate persons’ constitutional rights to vote and have their votes counted. (Count Three alleges that Trump himself actually “attempted to, and did,” corruptly obstruct and impede an “official proceeding,” namely, the January 6, 2021 certification of the electoral vote. That non-conspiracy count, too, predominantly alleges conduct that Trump undertook in his personal capacity, in coordination with other private parties.)

    Rip Murdock (d2a2a8) — 2/29/2024 @ 11:45 am

    This. Right here could be thrown out in this term too.

    US v. Fischer is the 1512(c)(2) case seeking SCOTUS to overturn 1512(c)(2) convictions. If SCOTUS rules in favor of Fischer, then Smith is left with just the weaker 2 of the conspiracy charges in DC.

    Frankly, Smith should’ve just tried to indict Trump with insurrection and be done with it. He’d probably get a conviction in DC anyways!

    I thought that Kevin M, was referring to Trump’s actions/non-action *on* J6.

    His ellipsis speech would definitely NOT fall into ordinary “official acts”.

    whembly (5f7596)

  32. > Do we want a regime where Presidents of one party are routinely indicted by their successors of another party?

    No.

    Do we want a regime where Presidents are able to use the power of the federal government to attempt to steal an election with no consequences?

    There are no good choices here, just different degrees of harm to the Republic.

    aphrael (39a5a8)

  33. whembly (5f7596) — 2/29/2024 @ 11:58 am

    Do any of his actions fall within Trump’s official duties?

    Rip Murdock (d2a2a8)

  34. The immunity question isn’t limited to what happened on January 6th, Trump is claiming he is immune for everything he did up to and including January 6th.

    Rip Murdock (d2a2a8)

  35. @33

    whembly (5f7596) — 2/29/2024 @ 11:58 am

    Do any of his actions fall within Trump’s official duties?

    Rip Murdock (d2a2a8) — 2/29/2024 @ 12:05 pm

    Outside of his campaign speeches… probably.

    Hence, why impeachment conviction is needed to open up legal liabilities of acts during the Presidency is needed.

    whembly (5f7596)

  36. Rip Murdock (d2a2a8) — 2/29/2024 @ 12:05 pm

    Do any of his actions fall within Trump’s official duties?

    Trump’s lawyers claim everything does because the president has a duty to see that the laws are faithfully executed, but in truth the only thing that has anything to do with his official duties was the attempted promotion of Jeffrey Clark as Acting Attorney General with the goal to get the Department of Justice to issue a false statement that they had found evidence of fraud that affected the 2020 election. (the false statement was not the election fraud, which Trump might have believed, but that DOJ had confirmed that)

    And there, the question arises of good faith.

    The Supreme Court probably only wants to clarify the law to say that while there is no immunity, there needs to be special jury instructions in the case of an official acting in his official capacity..

    Sammy Finkelman (1d215a)

  37. If supreme court agrees on immunity biden should send trump to cuba or Iran. Hey its not seal team 6!

    asset (ba70d2)

  38. I thought that Kevin M, was referring to Trump’s actions/non-action *on* J6.

    His ellipsis speech would definitely NOT fall into ordinary “official acts”.

    Then why did you ask?

    But I agree with Rip here — contesting elections, in general, are not official acts of the Office of the President. Matter of fact, that office cannot PAY for any election-related costs, nor can a President use office staff to further his re-election.

    Frankly, I think that Trump is just going to get a bigger bitch-slap than he already got. I disagree with Rip that it will be 7-2. It will be unanimous. There might be a recusal.

    Kevin M (8676e4)

  39. If supreme court agrees on immunity biden should send trump to cuba or Iran.

    Send him to North Korea with a really insulting ultimatum.

    Kevin M (8676e4)

  40. According to the order, the legal question the Court will decide is “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.”

    This crucial in that the Court rewrote what Trump wanted to be considered:

    The Court’s order treated Trump’s application for a stay as a petition for certiorari and rewrote the question presented in the case. Trump’s application for a stay presented two questions:

    I. Whether the doctrine of absolute presidential immunity includes immunity from criminal prosecution for a President’s official acts, i.e., those performed within the “‘outer perimeter’ of his official responsibility.” Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982) (quoting Barr v. Matteo, 360 U.S. 564, 575 (1959)).

    II. Whether the Impeachment Judgment Clause, U.S. CONST. art. I, § 3, cl. 7, and principles of double jeopardy foreclose the criminal prosecution of a President who has been impeached and acquitted by the U.S. Senate for the same and/or closely related conduct that underlies the criminal charges.

    ……First, the Court is not considering the second question at all. The U.S. Court of Appeals decisively (and correctly) rejected this argument…….

    Second, as Jack Goldsmith notes in this Xitter thread, the Court framed the issue in terms of “presidential immunity,” not “absolute immunity” as Trump had argued. Further, by asking both “whether” and “to what extent” a President may be immune, the Court can make clear that mere invocation of alleged “official acts” is not enough to make the prosecution go away, while still providing immunity for core executive prerogatives. …….
    …………
    Here’s the interesting part: It take five votes to grant a stay, but only four to grant certiorari. Thus the lack of a stay suggests a majority of the Court may have been inclined to affirm the D.C. Circuit, even if some had concerns about the lower court’s reasoning. That at least four voted to grant certiorari may also mean no more that at least four justices saw a need to refine the D.C. Circuit’s analysis so as to provide greater clarity about the scope of presidential immunity going forward.
    #########

    So the whole idea that the President must be impeached (and convicted) before being prosecuted for “official” acts has vanished..

    Rip Murdock (d2a2a8)

  41. Hence, why impeachment conviction is needed to open up legal liabilities of acts during the Presidency is needed.

    whembly (5f7596) — 2/29/2024 @ 1:04 pm

    As I posted above, the Court is not considering Trump’s claim that impeachment (and conviction) is required for a former President to be indicted.

    Rip Murdock (d2a2a8)

  42. @40

    So the whole idea that the President must be impeached (and convicted) before being prosecuted for “official” acts has vanished..

    Rip Murdock (d2a2a8) — 2/29/2024 @ 2:51 pm

    Cool, cool.

    Can’t wait for the next GOP administration to stretch and pull some federal statute to charge Obama for assassinating an american citizen.

    Or, Baker’s parents to sue Joe Biden for wrongful death.

    To be fair, I think SCOTUS is going to take the broad DC Circuit case and narrow it down a bit, essentially rejecting total immunity, but grant some sort of immunity for official acts. The tricky part is coming up with a structure to determine what constitute an official act.

    whembly (5f7596)

  43. As seen in #22, the Court framed the question as the Special Prosecutor suggested.

    The Special Counsel’s request to treat the stay application as a petition for a writ of certiorari is granted, and that petition is granted limited to the following question: 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.

    Kevin M (8676e4)

  44. @41

    Hence, why impeachment conviction is needed to open up legal liabilities of acts during the Presidency is needed.

    whembly (5f7596) — 2/29/2024 @ 1:04 pm

    As I posted above, the Court is not considering Trump’s claim that impeachment (and conviction) is required for a former President to be indicted.

    Rip Murdock (d2a2a8) — 2/29/2024 @ 2:54 pm

    ???

    I think impeachment would have to factor into their analysis though.

    whembly (5f7596)

  45. “alleged official acts”

    This is an interesting term, as it seems to imply that simply alleging that an act was “official” isn’t enough (nor should it be).

    Kevin M (8676e4)

  46. I think impeachment would have to factor into their analysis though.

    Well, Trump thinks that, but why should you (or we)?

    In any event, Trump WAS impeached for some of these acts. He wasn’t convicted of the crimes, but the House enumerated them AS crimes and the Senate did not say that those acts were not crimes, just that they had not been proved sufficiently.

    Kevin M (8676e4)

  47. Can’t wait for the next GOP administration to stretch and pull some federal statute to charge Obama for assassinating an american citizen.

    Or, Baker’s parents to sue Joe Biden for wrongful death.

    The President is already immune from civil suits; see Nixon v. Fitzgerald (1982). And Obama could point to the 2001 Authorization to Use Military Force as granting him immunity from prosecution. The American who was killed was an Al-Qaeda terrorist.

    Rip Murdock (d2a2a8)

  48. “Can’t wait for the next GOP administration to stretch and pull some federal statute to charge Obama for assassinating an american citizen.”

    I don’t think anyone will be that cavalier precisely because most citizens see assassinating terrorists as part of Presidential duties….and that collateral damage is an understandable consequence of that. No prosecutor (at least none that wants to avoid sanctions) would take a case to court that he does not believe in. The crime has to be one with a remote if any connection to official duties. Trump may have a duty to make sure that federal law is enforced. I don’t think this implies he has an official duty to insist there was election fraud without evidence. No court has or will entertain baseless accusations and pretend they are evidence.

    AJ_Liberty (5f05c3)

  49. @46

    I think impeachment would have to factor into their analysis though.

    Well, Trump thinks that, but why should you (or we)?

    In any event, Trump WAS impeached for some of these acts. He wasn’t convicted of the crimes, but the House enumerated them AS crimes and the Senate did not say that those acts were not crimes, just that they had not been proved sufficiently.

    Kevin M (8676e4) — 2/29/2024 @ 3:02 pm

    If there’s no Senate conviction, then, as a political matter there were no crimes.

    I worry that the lawfare is turning into a proxy for failed conviction of the political impeachment.

    whembly (5f7596)

  50. @47

    The President is already immune from civil suits; see Nixon v. Fitzgerald (1982).

    For acts during the Presidency.

    In Clinton v. Jones, POTUS is NOT immune to civil cases for acts outside of the Presidency.

    And Obama could point to the 2001 Authorization to Use Military Force as granting him immunity from prosecution.

    So Congress and the Executive branch can be judge, jury and executioner? Does due process matter at all? Are their truly limits?

    The American who was killed was an Al-Qaeda terrorist.

    Rip Murdock (d2a2a8) — 2/29/2024 @ 3:05 pm

    Irrelevant.

    What if that terrorist was on US soil in… say… Miami? Would Obama still be okay to authorize a drone strike against a US citizen, whom they believe is a terrorist at the time? In which, such a strike also kills his son?

    whembly (5f7596)

  51. @48

    “Can’t wait for the next GOP administration to stretch and pull some federal statute to charge Obama for assassinating an american citizen.”

    I don’t think anyone will be that cavalier precisely because most citizens see assassinating terrorists as part of Presidential duties….and that collateral damage is an understandable consequence of that. No prosecutor (at least none that wants to avoid sanctions) would take a case to court that he does not believe in. The crime has to be one with a remote if any connection to official duties. Trump may have a duty to make sure that federal law is enforced. I don’t think this implies he has an official duty to insist there was election fraud without evidence. No court has or will entertain baseless accusations and pretend they are evidence.

    AJ_Liberty (5f05c3) — 2/29/2024 @ 3:06 pm

    I want you and Rip to understand that there’s a status quo understanding of what is expected to be covered under the auspices of “official duties”.

    So, keep that in mind when you think about this immunity case percolating at SCOTUS currently.

    See: Al-Aulaqi v. Panetta

    This wasn’t a baseless accusations, and has been litigated for years by the ACLU.

    I believe the case is in appellate limbo at the moment, and may find it’s way to SCOTUS eventually, but here’s the synopsis of the last ruling:
    https://sgp.fas.org/crs/misc/noremedy.html

    The judge concluded that this case, implicating as it does warmaking powers, national security, and foreign affairs, contains multiple factors counseling hesitation on the part of the courts. Congress and the Executive had acted in concert using their powers concerning national defense and the military to authorize and use force against Al Qaeda and affiliated forces without geographical limits, the judge explained. Moreover, the record the judge was able to assemble from public records was replete with evidence that Anwar Al-Aulaqi was a leader of a targetable armed force who had proved to be “an active and exceedingly dangerous enemy of the United States.” Under these circumstances, permitting the plaintiffs to pursue a Bivens remedy against government officials would pull the court too far into “the heart of executive and military planning and deliberation” and raise “fundamental questions regarding the conduct of armed conflict.” The court thought it best to leave such matters to the executive branch and Congress.

    The court concluded that Al-Aulaqi’s citizenship did not change the analysis:

    Indeed, the danger posed by an individual who is aligned with an enemy of the United States is very real, whether he is a citizen of this or another country. The United States is in a congressionally-declared military conflict. Anwar Al-Aulaqi was an AQAP leader who levied war against his birth country, as unambiguously revealed by his role in the Christmas Day bombing, as well as his video and writings. He also was a U.S. citizen. Whether Plaintiffs can claim damages against the United States is a decision for Congress and the Executive and not something to be granted by judicial implication. The persons holding the jobs of the named Defendants must be trusted and expected to act in accordance with the U.S. Constitution when they intentionally target a U.S. citizen abroad at the direction of the President and with the concurrence of Congress. They cannot be held personally responsible in monetary damages for conducting war.

    After castigating the government for its “truculent opposition” to its order to produce certain classified declarations, the court nullified that order and turned to the claim that the targeted killing violated the constitutional prohibition on bills of attainder. This claim was easily dismissed because it did not involve a legislative action designed to punish an individual.

    I bolded something that struck out, which is a very common theme when reviewing cases asserting mis/maladministrations… here it is again:

    The persons holding the jobs of the named Defendants must be trusted and expected to act in accordance with the U.S. Constitution when they intentionally target a U.S. citizen abroad at the direction of the President and with the concurrence of Congress. They cannot be held personally responsible in monetary damages for conducting war.

    This (I’m waving my hands at) is what I’m talking about.

    It’s an accepted deference to the decision making process that shouldn’t be on the table.

    Truth be told, I’m okay with this. This is a very practical and legally sound justification.

    But, again, I implore you to think about that if SCOTUS has to rule on something because of what Trump did, don’t look at this as a prosecutor Smith v. Trump dynamic, and more of a generic former President v. adversarial prosecutor.

    Think about implications outside of Trump.

    Hence why I bring up the Obama assassinating a US citizen blurb…

    Or, Biden’s abdication of the rule of law at the southern border that led to lost lives.

    whembly (5f7596)

  52. Related to everyone’s favorite topic and the hero of so many because she temporarily “got Trump.

    Hope you enjoy what you paid for:

    NY AG James
    ·
    Feb 28, 2024
    @NewYorkStateAG
    ·
    Follow
    I’m suing @JBSFoodsUSA, the world’s largest beef producer, for misleading the public about its environmental impact.

    The beef industry is one of the largest contributors to climate change, and JBS has falsely advertised its commitment to sustainability and endangered our planet.
    NY AG James
    @NewYorkStateAG
    ·
    Follow
    JBS knows that people are more likely to buy products that will not harm the environment, so it has spent years advertising fake sustainability efforts to boost sales.

    In reality, JBS is increasing its beef production and its carbon footprint.

    NJRob (9e4120)

  53. OK maybe JBS was lying but the whole idea that it makes a difference is itself a lie. Cutting down on personal carbon dioxide impact – everything all together even – is like collecting tin foil in the United States during World War II, Or the meatless Mondays

    https://clf.jhsph.edu/stories/meatless-monday-then-and-now

    Sammy Finkelman (1d215a)

  54. If there’s no Senate conviction, then, as a political matter there were no crimes.

    How many times does this have to be said: Impeachment is not about criminality. It’s about politics. The above statement is just nonsense. All that the Senate determined was that, whatever Trump’s part in J6, it did not warrant THEM disqualifying him from further office. By a substantial minority vote.

    But the insurrection DID happen, and 100 people are going to do time over it. A jury might feel differently as to whether Trump was criminally culpable.

    It is beyond belief that people conflate the impeachment process with criminal trials. Apples and petunias.

    Kevin M (8676e4)

  55. You can impeach and convict a president for picking his nose in public, if you have the votes. There may be political consequences with the voters, but impeachment is about bad behavior, and very broadly so.

    Kevin M (8676e4)

  56. https://nypost.com/2024/02/21/opinion/biden-the-political-opportunist-might-sell-out-israel-to-save-his-own-hide (well, if he thought it would help him)

    …The first thing to understand about Joe Biden is he stands for nothing — except the advancement of Joe Biden (and his family’s finances, it seems).

    Well, standing for nothing means his natural inclinations are what feels right. And I do think he was affected by atrocities, both in Israel and Ukraine.

    The second thing to understand about Biden is his political superpower throughout his career has been to perceive the shifting center of Democratic Party opinion and move with it.

    Not the center. He gets pulled to the left, but can actually be pushed around from different sides,

    Hayward gives examples:

    Thus he went from being a moderate civil-rights skeptic and abortion opponent in the 1970s (along with Al Gore, Richard Gephardt and many other leading Democrats of the time) to a progressive race-baiter and pro-abortion fanatic in recent years.

    When the Democratic Party’s ideological center shifts, he’s always shifted instantly with it.

    He is the ultimate political chameleon or shape-shifter.

    In 1986 he declared he’d vote to support Robert Bork for the Supreme Court if President Ronald Reagan nominated him, but not even a year later, after leftist activist groups declared a jihad against Bork, Biden did an instant 180-degree turn and distorted the judicial confirmation process to defeat him.

    Biden is single-handedly responsible for our poisoned judicial politics ever since.

    Few political figures have done more to stain American politics since Chief Justice Roger Taney delivered the 1857 Dred Scott decision.

    The problem for Biden is his superpower of following his shifting party’s center works fine for a senator but doesn’t work for a president.

    The fury of progressive activists in the Democratic Party has always been Biden’s kryptonite,,,

    Sammy Finkelman (1d215a)

  57. Federal civil liability is as different from criminal liability as the right to keep and bear arms is different form the right to keep and arm bears.

    Criminal liability is, and cannot be anything but, predicated on statutes narrowly and strictly construed and applied only prospectively with all the familiar Constitutional and statutory safeguards. Its purpose is punitive to vindicate the peace and dignity of the United States.

    Civil liability is based on a hodgepodge of mostly judge-made laws, with alternative remedies and limitations both judge-made and statutory, and applied retrospectively. Its purpose is ameliorative to compensate monetarily a wrongful loss as best as possible.

    nk (1d5851)

  58. Can’t wait for the next GOP administration to stretch and pull some federal statute to charge Obama for assassinating an american citizen.

    The first court to hear it will dismiss it out of hand. That was an official act, by the CinC, during wartime, and you can whine all you want about it, but there is no recourse.

    Compare that to trying to coerce local officials to stuff ballot boxes. I think you’d have a hard time finding the president’s authority to do that.

    Kevin M (8676e4)

  59. There;s a problem with the indictment of the informant. It tries to prove him a liar the wrong way:

    https://nypost.com/2024/02/28/opinion/fbi-informants-flawed-rap-wont-help-hunter-biden-in-impeachment-probe-of-family-business

    Sammy Finkelman (1d215a)

  60. meatless Mondays

    I guess if they said “meatless Fridays,” it would have been a 1st Amendment problem.

    Kevin M (8676e4)

  61. I used to think that “grass-fed beef” was a fraud because the grass comes in bales and is fed to the cows in feed lots, but when the alternative is punching cattle on the open range, I decided that it’s not necessarily the worst thing. Why do they have to punch the poor things? Why can’t they just herd them?

    nk (1d5851)

  62. I think impeachment would have to factor into their analysis though.

    whembly (5f7596) — 2/29/2024 @ 2:57 pm

    From Jonathan Adler at Volokh:

    Trump’s application for a stay presented two questions:

    I. Whether the doctrine of absolute presidential immunity includes immunity from criminal prosecution for a President’s official acts, i.e., those performed within the “‘outer perimeter’ of his official responsibility.” Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982) (quoting Barr v. Matteo, 360 U.S. 564, 575 (1959)).

    II. Whether the Impeachment Judgment Clause, U.S. CONST. art. I, § 3, cl. 7, and principles of double jeopardy foreclose the criminal prosecution of a President who has been impeached and acquitted by the U.S. Senate for the same and/or closely related conduct that underlies the criminal charges.

    The Court limited its grant of certiorari to the following:

    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.

    There are a few points worth making about this. First, the Court is not considering the second question at all. The U.S. Court of Appeals decisively (and correctly) rejected this argument below. It was never a serious argument, and is not worth the justices’ time. No, a failure of the Senate to convict an impeached President does not preclude subsequent prosecution for the same or related acts.

    lurker (cd7cd4)

  63. @54

    If there’s no Senate conviction, then, as a political matter there were no crimes.

    How many times does this have to be said: Impeachment is not about criminality. It’s about politics. The above statement is just nonsense. All that the Senate determined was that, whatever Trump’s part in J6, it did not warrant THEM disqualifying him from further office. By a substantial minority vote.

    It would help if you would READ what I wrote Kevin.

    As a political matter, there were no crimes. As in, the Senate chose to NOT convict.

    But the insurrection DID happen, and 100 people are going to do time over it. A jury might feel differently as to whether Trump was criminally culpable.

    At no point was ANY even CHARGED with insurrection, much less CONVICTED as one.

    You know this.

    Continually to label this as an “insurrection” undermines what a true insurrection is.

    It is beyond belief that people conflate the impeachment process with criminal trials. Apples and petunias.

    Kevin M (8676e4) — 2/29/2024 @ 4:38 pm

    It’s beyond belief you’re ignoring the point.

    whembly (5f7596)

  64. The other Nixon, a judge, was impeached because he refused to resign after his criminal conviction and was collecting his judicial salary in jail. You’re not going to get the Court to rule that impeachment and a criminal trial are in any way interdependent.

    nk (c3cfc9)

  65. @64

    You’re not going to get the Court to rule that impeachment and a criminal trial are in any way interdependent.

    nk (c3cfc9) — 2/29/2024 @ 6:51 pm

    You’re probably right.

    Another thing that occurred to me that I didn’t realize…

    Presidents enjoys something that officials/Judges/prosecutors do not.

    Presidents have the Office of Legal Counsel to vet executive actions 24/7.

    Hence why courts created qualified immunity for officials/Judges/prosecutors.

    whembly (5f7596)


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