Patterico's Pontifications

4/25/2024

Judge Luttig on the Supreme Court Today

Filed under: General — Dana @ 12:00 pm



[guest post by Dana]

This is helpful:

As with the three-hour argument in Trump v. Anderson, a disconcertingly precious little of the two-hour argument today was even devoted to the specific and only question presented for decision.
The Court and the parties discussed everything but the specific question presented.

That question is simply whether a former President of the United States may be prosecuted for attempting to remain in power notwithstanding the election of his successor by the American People.
thereby also depriving his lawfully elected successor of the powers of the presidency to which that successor became entitled upon his rightful election by the American People — and preventing the peaceful transfer of power for the first time in American history.

It is not even arguably a core power or function of the President of the United States to ensure the fairness, accuracy, and integrity of a presidential election. Let alone is it a core power or function of the President of the United States to ensure the proper certification of the next president by the Congress of the United States. Neither of these is a power or function of the president at all.

In fact, the Framers of the Constitution well understood the enormous potential for self-interested conflict were the President to have a role in these fundamental constitutional functions.

Consequently, they purposely and pointedly withheld from the President any role in these fundamental constitutional functions.

To whatever extent the Framers implicitly provided in the Executive any role whatsoever in these fundamental constitutional functions, it was a limited role for the Executive Branch,
through the Department of Justice, to inquire into allegations of fraud in presidential elections and ensure that the election was free, fair, and accurate.

The former president’s Department of Justice did just that and found that there was no fraud sufficient to draw into question the results of the 2020 presidential election.
The former president of course has refused to this day to accept that finding by not only his own Department of Justice, but also countless others of his closest advisors.

Whether undertaken in his or her “official,” “candidate,” or “personal” capacity, a President of the United States has never been and can never be immune from prosecution (after leaving office),
for having attempted to remain in power notwithstanding the election of that President’s successor by the American People.

Consequently, there is no reason whatsoever for the Supreme Court to remand to the lower courts for a determination of which of the alleged criminal acts might have been personal and which might have been official.

Neither is a clear statement from Congress that a president is subject to prosecution under the statutes with which the former president has been charged necessary in this particular case.

As applied to the former president for the criminal conduct with which he has been charged, there can be no question but that Congress intended a President of the United States to come within the ambit of the statutory offenses with which he has been charged.

For the same reason, it would be ludicrous to contend that the former president was not on sufficient notice that if he committed the criminal acts charged, he would be subject to criminal prosecution by the United States of America.

To hold otherwise would make a mockery out of the “plain statement” rule.

SMDH:

Remember this about blanket immunity for a president:

Nearly four years ago, all nine justices rejected Trump’s claim of absolute immunity from a district attorney’s subpoena for his financial records. That case played out during Trump’s presidency and involved a criminal investigation, but no charges.

Justice Clarence Thomas, who would have prevented the enforcement of the subpoena because of Trump’s responsibilities as president, still rejected Trump’s claim of absolute immunity and pointed to the text of the Constitution and how it was understood by the people who ratified it.

“The text of the Constitution … does not afford the President absolute immunity,” Thomas wrote in 2020.

—Dana

42 Responses to “Judge Luttig on the Supreme Court Today”

  1. Hello.

    Dana (8e902f)

  2. I would want ex-presidents protected from adventurous prosecutors who would challenge their acts as if they were committed by a member of the public.

    Presidents (and governors, judges and other government officials) act with authority granted by the political process. They are NOT members of the public when they act as such, and saying that they should be held to the same laws is preposterous. They can, for example, order armed men to do things that a member of the public would rightfully be imprisoned for had they done the same thing.

    The question arises when they do things that are NOT part of their official duties. A judge who ordered his ex-wife held on contempt charges, for example. Or a president who ordered those armed men to shoot his election opponent. But presidents HAVE ordered the deaths of citizens who have taken up arms against the nation or provided aid and comfort those those who have.

    Prosecuting Obama for ordering a drone strike in Syria that intentionally killed an American traitor is not the same thing as prosecuting Joe Blow who killed Ilhan Omar because he thought she was a traitor.

    This is a question that will hopefully resist the glib and political arguments that we constantly hear. It’s not that Trump was justified on J6, or that he was justified in subverting the electoral process prior to that. It’s that there are no defined limits here and the Court has decided here needs to be some lest the next “Trump” plays similar games.

    Kevin M (a9545f)

  3. 1:38:27
    [Alito] LET ME END WITH JUST A QUESTION ABOUT — WHAT IS REQUIRED FOR THE FUNCTIONING OF A STABLE DEMOCRATIC SOCIETY? WHICH IS SOMETHING THAT WE ALL WANT. I’M SURE YOU WOULD AGREE WITH ME THAT A STABLE DEMOCRATIC SOCIETY REQUIRES THAT A CANDIDATE WHO LOSES AN ELECTION, EVEN A CLOSE ONE, EVEN A HOTLY CONTESTED ONE, LEAVE OFFICE PEACEFULLY, IF THAT CANDIDATE IS THE INCUMBENT.

    01:38:59
    [Dreeben] OF COURSE.

    01:39:00
    [Alito ]ALL RIGHT. IF AN INCUMBENT WHO LOSES A VERY CLOSE, HOTLY CONTESTED ELECTION KNOWS THAT A REAL POSSIBILITY AFTER LEAVING OFFICE IS NOT THAT THE PRESIDENT IS GOING TO BE ABLE TO GO OFF INTO A PEACEFUL RETIREMENT, BUT THAT THE PRESIDENT MAY BE CRIMINALLY PROSECUTED BY A BITTER POLITICAL OPPONENT, WILL THAT NOT LEAD US INTO A CYCLE THAT DESTABILIZES THE FUNCTIONING OF OUR COUNTRY AS A DEMOCRACY? AND WE CAN LOOK AROUND THE WORLD AND FIND COUNTRIES WHERE WE HAVE SEEN THIS PROCESS WHERE THE LOSER GETS THROWN IN JAIL.

    01:39:44
    [Dreeben] I THINK IT IS EXACTLY THE OPPOSITE, JUSTICE ALITO. THERE ARE LAWFUL MECHANISMS TO CONTEST THE RESULTS IN AN ELECTION. AND OUTSIDE THE RECORD, BUT I THINK A PUBLIC KNOWLEDGE, PETITIONER AND HIS ALLIES FILED DOZENS OF ELECTORAL CHALLENGES AND IN MY UNDERSTANDING HAS LOST ALL BUT ONE THAT WAS NOT OUTCOME DETERMINATIVE IN ANY RESPECT. THERE WERE JUDGES THAT SAID IN ORDER TO SUSTAIN SUBSTANTIAL CLAIMS OF FRAUD THAT WOULD OVERTURN AN ELECTION RESULT THAT IS CERTIFIED BY A STATE, YOU NEED EVIDENCE, YOU NEED PROOF, AND NONE OF THOSE THINGS WERE MANIFESTED. THERE IS AN APPROPRIATE WAY TO CHALLENGE THINGS THROUGH THE COURTS WITH EVIDENCE, IF YOU LOSE, YOU ACCEPT THE RESULTS, THAT HAS BEEN THE NATION’S EXPERIENCE IN THE COURT IS WELL FAMILIAR WITH THAT.

    01:40:38
    [Alito] THANK YOU. .

    01:40:39

    https://www.c-span.org/video/?534673-1/supreme-court-hears-case-president-trumps-immunity-claim

    BuDuh (e33781)

  4. I very much believe that a number of governors acted wrongly in using their emergency powers during the pandemic. But I also believe that their actions were taken within the power that the state entrusted to them.

    The limitation on their exercise of those powers is not later prosecution, even though they technically violated statutes, but court injunctions, legislative changes to the scope of those powers, or in the extreme, impeachment. Subsequent elections may also affect how future governors act in those situations.

    The idea that “no one is above the law” is poppycock. When elected to office, some citizens are, temporarily, granted the power of the state which is fundamentally different than the power of the individual. This case is testing those limits in the aftermath of what appears to be gross abuse. It should not be examined in the balance of “What hurts Trump.”

    Kevin M (a9545f)

  5. I didn’t know that the Court typed in all caps. Is that just for Trump’s benefit?

    Kevin M (a9545f)

  6. Any police officer would understand “immunity” claims. Their jobs would be impossible if they were held to the same rules as a civilian. They have certain duties that require actions that the civilian does not have. In some matters, police officers are “above the law” or at least in a separate section of it.

    This is no different.

    Kevin M (a9545f)

  7. Let’s be honest: a lot of prosecutors would put Trump in jail until he dies for jaywalking, if they could.

    That doesn’t mean that all of the charges against him are without merit. It *does* mean that some of them are crazy-eyed zealots as unhinged as Laura Loomer.

    qdpsteve again (711764)

  8. Ryan Goodman has a thread here, noting the questioning of Trump’s attorney by Ms. Barrett, where she got Sauer “to concede core allegations are private acts.”

    Paul Montagu (d52d7d)

  9. Justice Roberts Skewers Lower Court, Biden DOJ Over ‘Tautological’ Immunity Argument

    Roberts took aim at the lower court’s opinion while questioning attorney Michael Dreeben, asking if the lower court and DOJ were arguing that Trump lacked immunity by virtue of the fact he had been indicted.

    “They said that there is no reason to worry because the prosecutor will act in good faith and there is no reason to worry because a grand jury will have returned the indictment,” Roberts said. “Now, you know how easy it is in many cases for a prosecutor to get a grand jury to bring an indictment and reliance on the good faith of the prosecutor may not be enough in some cases, I‘m not suggesting here, so if it’s tautological, if those are the only protections the court gave that is no longer your position, you are not defending that position, why shouldn‘t we send it back to the court of appeals or issue an opinion making clear that that’s not the law?”

    “Well, I am defending the court of appeals’ judgment and I do think there are layered safeguards the court can take into account that will ameliorate concerns about unduly chilling presidential conduct,” Dreeben responded. “That concerns us. We are not endorsing a regime that we think would expose former presidents to criminal prosecutions in bad faith, for political animus, without adequate evidence. A politically driven prosecution would violate the Constitution… It’s is not something within the arsenal of prosecutors to do.” (Ed. note: BwaHaHaHaHa!)

    “Prosecutors take an oath, the attorney general takes an oath. I don‘t want to overstate your honor‘s concern with potentially relying solely on good faith, but that is an ingredient and then the courts stand ready to adjudicate motions based on selective prosecution, political animus,” Dreeben told. “This court relied on those very protections in a case just two years ago.”

    lloyd (682e05)

  10. The dred scott judges make their fate and seal it. They seem to think a president can order seal team 6 to terminate with extreme prejudice a rival and then pardon the members of seal team 6. OK if thats the way you want it.

    asset (d5e224)

  11. Meh… whether SCOTUS sends the case back to district for pre-trial hearing determining whether the acts were of “official duty” or “private”… or, they reject any immunity at all.

    Whatever the spectrum will be if it doesn’t go the same way as Fitzgerald does for civil cases…

    You do know what the end results will be for future administrations… right?

    That, the outgoing POTUS will simply self-pardon for all acts done during the Presidency, including private acts.

    whembly (86df54)

  12. @10

    The dred scott judges make their fate and seal it. They seem to think a president can order seal team 6 to terminate with extreme prejudice a rival and then pardon the members of seal team 6. OK if thats the way you want it.

    asset (d5e224) — 4/25/2024 @ 1:18 pm

    It’s an insipid hypothetical…

    1) the military chain of command will refuse an obvious illegal order.
    2) if we’re ever at the point, there’s no point in the American experiment anymore. It’s over…it’s Civil War part 2, with a vengeance! And rightly so!

    whembly (86df54)

  13. It’s is not something within the arsenal of prosecutors to do.” (Ed. note: BwaHaHaHaHa!)

    Let’s talk to Tom Delay about his experience with the Travis County DA. Or several TX governors.

    Kevin M (a9545f)

  14. That, the outgoing POTUS will simply self-pardon for all acts done during the Presidency, including private acts.

    Would not help them in state courts.

    Kevin M (a9545f)

  15. If you go to the video I posted above and start after the 20min mark you will hear the flow from Kavanaugh to Barrett on the questioning of Sauer regarding “private acts.” There is no Perry Mason moment of trapping Sauer into a concession that is any different than what was already made clear by them in the lower courts.

    No new news here.

    BuDuh (e33781)

  16. whembly, ever notice how many of asset’s comments boil down to:

    “Give us on the left everything we want, or we’ll kill you!”

    qdpsteve again (711764)

  17. @14

    That, the outgoing POTUS will simply self-pardon for all acts done during the Presidency, including private acts.

    Would not help them in state courts.

    Kevin M (a9545f) — 4/25/2024 @ 1:28 pm

    Agreed. Different sovereigns

    whembly (86df54)

  18. “Give us on the left everything we want, or we’ll kill you!”

    Embrace the power of “AND”

    Kevin M (a9545f)

  19. @16

    whembly, ever notice how many of asset’s comments boil down to:

    “Give us on the left everything we want, or we’ll kill you!”

    qdpsteve again (711764) — 4/25/2024 @ 1:31 pm

    The left always been this way.

    It’s their religion, and if you don’t toe the line, you’re branded as a heretic.

    ’tis why I call them commies.

    They want nothing more than the Hammer & Sickle to “happen” in the US. What they don’t know, is that they won’t be the ones in charge.

    whembly (86df54)

  20. That, the outgoing POTUS will simply self-pardon for all acts done during the Presidency, including private acts.

    Would not help them in state courts.

    Kevin M (a9545f) — 4/25/2024 @ 1:28 pm

    Few of the crimes discussed (bribery to obtain an ambassadorship or a pardon, for example) would be crimes under state law anyway.

    Of course, those “bribes” have different name: campaign contributions.

    Rip Murdock (79ebbf)

  21. @16 Those who make peaceful change impossible make violent revolution inevitable (JFK) Most people like myself on the left are trying to avoid people getting killed. It is not my side that says run over protesters in the street even on jan. 6 2021. The woman at the capital who was shot I consider she was murdered.

    asset (d5e224)

  22. The Communists betrayed the Revolution almost from its inception. But they still cling to the lies and alibis that they think distinguishes them from the Fascists and the Finance Capitalists (yes, Finance Capitalists are most definitely a class of their own like Communists and Fascists) as they try to coopt Western liberal democracy for their own momentary interests.

    nk (bdd973)

  23. And I wish that people would stop conflating the immunities and indemnities that public employees enjoys with what Trump is asking for.

    The first are a matter of policy that the Congress and state legislatures have chosen to adopt and enact into law under the authority granted them by their respective Constitutions.

    The second is Trump is asking the Courts to, in effect, amend the Constitution. The Courts do not make policy. Their only authority is to look for it in the Constitution.

    Yes, yes, I know, Donnie wants a cookie, and if it’s not in the cookie jar mommy should bake him some, or it’s just not fair! Waah!

    nk (bdd973)

  24. @23

    The second is Trump is asking the Courts to, in effect, amend the Constitution. The Courts do not make policy. Their only authority is to look for it in the Constitution.

    nk (bdd973) — 4/25/2024 @ 2:36 pm

    Kindly point to where in the Constitution courts pointed to when affirming Qualified Immunity of Judges, prosecution and police.

    Thanks!

    whembly (86df54)

  25. Kevin M and whembly, yup and yup.

    The left isn’t even hiding it anymore. They want everyone either dead or enslaved to whatever whims they have at every second.

    qdpsteve again (711764)

  26. The first are a matter of policy that the Congress and state legislatures have chosen to adopt

    Hmmm. I was under the impression that “qualified immunity” was largely judge-created.

    Kevin M (a9545f)

  27. So, nk, let’s say that a President refuses to let an aide testify in a trial about some communication the president considers privileged. After he leaves office, the prosecutor in that case files obstruction charges against the former president. That’s OK by you?

    Kevin M (a9545f)

  28. Oregon recriminalizes drugs

    Three years into Oregon’s experiment with drug decriminalization, the state is reversing course. After seeing increasing overdose deaths, rampant homelessness, and open-air drug dens, state legislators swiftly passed a bipartisan overhaul of Measure 110 in under a month this year, reinstituting penalties for possession of hard drugs. Oregon’s Democratic Gov. Tina Kotek signed it into law on April 1, and it will take effect September 1.

    Well, kinda anyway

    The bill approved by lawmakers in the Oregon House on Thursday makes simple drug possession a new type of crime, a “drug enforcement misdemeanor.” Someone convicted of this crime would initially get probation for a maximum of 18 months instead of serving jail time. If the person then violated their probation, they could be sanctioned with a jail sentence up to 30 days. For a more serious violation, the court could revoke probation and hand the person a six-month jail sentence.

    Even after getting sent to jail on the probation violation or revocation, someone convicted of possession could secure early release to attend either inpatient or outpatient drug treatment. Violating the terms of that release would likely result in a return to jail for the remainder of the original six-month jail sentence.

    But a significant piece of the bill — one that’s entirely optional for county prosecutors and law enforcement agencies to adopt — would see drug possession dealt with outside of the court system. Instead of subjecting someone in possession of drugs to arrest or prosecution, a “deflection program” would see law enforcement refer the person to a behavioral health program, one offering “community-based pathways to treatment, recovery support services, housing, case management or other services.”

    Little baby steps.

    Kevin M (a9545f)

  29. Kindly point to where in the Constitution courts pointed to when affirming Qualified Immunity of Judges, prosecution and police.

    Thanks!

    I’ll need to ask Derek Chauvin. Sorry for the snark, but that’s civil immunity, not criminal immunity.

    And it’s based on either the Federal Tort Claims Act or 42 USC 1983, both laws passed by Congress, the first under its Article I authority (and Article III?) and the second under the Enabling Clause of the 14th Amendment.

    nk (bdd973)

  30. So, nk, let’s say that a President refuses to let an aide testify in a trial about some communication the president considers privileged. After he leaves office, the prosecutor in that case files obstruction charges against the former president. That’s OK by you?

    Ask me again at the Article V Convention.

    nk (bdd973)

  31. Kevin M (a9545f) — 4/25/2024 @ 12:55 pm

    I didn’t know that the Court typed in all caps. Is that just for Trump’s benefit?

    It’s for the benefit of the hard of hearing. That transcript almost certainly comes from the closed captioning. There may be other transcripts.

    Sammy Finkelman (1d215a)

  32. A president can be prosecuted for official acts -if the allegation is bribery. The question shoudd be where they honestly motivated/

    he court is interested in deciding general principles.

    Sammy Finkelman (1d215a)

  33. Trump already lost on Federal Tort Claims Act immunity in the E. Jean Carroll case. Who knew that calling little old ladies loonies out to sell a book was not within a President’s official duties?

    But here’s the real kicker, comrades. All federal crimes for which a former President may be prosecuted, including the ones Trump is being prosecuted for now, are creations of Congress.

    All Congress has to do is enact an affirmative defense that the defendant was at the time of the alleged crime the President of the United States acting in his official capacity. That’s policy and within Congress’s authority as much as enacting the criminal law in the first place.

    nk (bdd973)

  34. Luttig loves to pontificate upon a nonexistent concern that is not before the Court.

    Very disappointing to see a man so broken.

    NJRob (47aaf7)

  35. That’s policy and within Congress’s authority as much as enacting the criminal law in the first place.

    Yes, indeed. We must not let the courts enter onto a path of cleaning up legal messes left by Congress! That way lies madness!

    Kevin M (a9545f)

  36. @22 moderates who tried to make changes in russia, china, cuba and many other places were “delt” with by the regime leaving only the hard liners left. The communist cell was developed to take heavy casulties and continue on. Read about what happened in those countries before the revolution. Watch the movie the battle of algiers. or the long march.

    asset (630b0e)

  37. @29

    And it’s based on either the Federal Tort Claims Act

    Which is strictly only for Congressional HOUSE and staffing…

    or 42 USC 1983

    That only covers judges.

    , both laws passed by Congress, the first under its Article I authority (and Article III?) and the second under the Enabling Clause of the 14th Amendment.

    nk (bdd973) — 4/25/2024 @ 3:29 pm

    What about police officers and prosecutors? Where is it “that the Congress…have chosen to adopt and enact” that empowers the Qualified Immunity doctrine?

    Is it, maybe… I dunno, that it’s mostly a series of federal judicial construct (ahem ‘penumbra’ and ‘umbra’)?

    If so, why is it so much a stretch for you that the courts could come up with something for presidential immunites?

    whembly (86df54)

  38. And it’s based on either the Federal Tort Claims Act

    Which is strictly only for Congressional HOUSE and staffing…

    or 42 USC 1983

    That only covers judges.

    You may wish to doublecheck that, whembly.

    But I suggest that the effort would be better spent looking for immunity from criminal liability. And if at first you don’t succeed, give up! You will not find any.

    nk (be3f49)

  39. But I suggest that the effort would be better spent looking for immunity from criminal liability

    Immunity? Perhaps not. A higher barrier? Definitely. I doubt anyone here adopts the “total immunity” argument that the Mouth of Trump suggests. But I hear no good argument for “he’s just a citizen with no special responsibilities” either.

    If I see two men raping a woman and break it up with my CCW Glock, I am probably not going to fire at them as they flee for fear that I might hit a bystander, or be charged by some Soros DA for assault on the rapists. A police officer would have more latitude as his JOB requires him to use deadly force at times, where I have no such duty.

    This is the kind of “immunity” that people who are empowered by the state to act deserve, out of respect for their duty and authority. Sometimes it is taken to extreme, as in the case of the Ruby Ridge FBI sniper, but it exists and for pretty good reason.

    Kevin M (a9545f)

  40. No, wait, it’s been a while and I forgot. When Illinois had the death penalty, it did give the state executioner blanket immunity from prosecution for homicide. By statute.

    nk (be3f49)

  41. @38

    You may wish to doublecheck that, whembly.

    But I suggest that the effort would be better spent looking for immunity from criminal liability. And if at first you don’t succeed, give up! You will not find any.

    nk (be3f49) — 4/26/2024 @ 7:17 am

    You are correct, it says “federal employee”…for civil liability.

    So, my use of “what about Qualified Immunity” is inapt here as it’s only for civil liability.

    Thanks for you patience for dealing when I’m wrong.

    whembly (86df54)

  42. Dana, thanks for posting this. Luttig expresses my frustration.

    AJ_Liberty (8f5bbd)

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