Patterico's Pontifications

7/1/2024

Open Thread: Supreme Court Ruling On Trump Immunity

Filed under: General — Dana @ 9:03 am



[guest post by Dana]

The Supreme Court ruled 6-3 along ideological lines. You can read the full opinion here.

From Chief Justice Roberts:

The court holds that a former president has absolute immunity for his core constitutional powers. Former presidents are also entitled to at least a presumption of immunity for their official acts. There is no immunity, the court holds, for unofficial acts.

From Justice Sotomayor’s dissent:

. . .the Court gives former President Trump all the immunity he asked for and more. . . because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.

. . .

Historical evidence reinforces that, from the very beginning, the presumption in this Nation has always been that no man is free to flout the criminal law. The majority fails to recognize or grapple with the lack of historical evidence for its new immunity. With nothing on its side of the ledger, the most the majority can do is claim that the historical evidence is a wash.

The majority today endorses an expansive vision of Presidential immunity that was never recognized by the Founders, any sitting President, the Executive Branch, or even President Trump’s lawyers, until now. Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them.
Today’s Court … has replaced a presumption of equality before the law with a presumption that the President is above the law for all of his official acts.

The majority’s dividing line between “official” and “unofficial” conduct narrows the conduct considered “unofficial” almost to a nullity. … Under that rule, any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune. Under the majority’s test, if it can be called a test, the category of Presidential action that can be deemed “unofficial” is destined to be vanishingly small.

. . .

When Presidents use the powers of their office for personal gain or as part of a criminal scheme, every person in the country has an interest in that criminal prosecution. The majority overlooks that paramount interest entirely.

Note: The lower courts will determine “if any of Trump’s actions, were part of his official duties and thus were protected from prosecution.”

Long live the king.

—Dana

224 Responses to “Open Thread: Supreme Court Ruling On Trump Immunity”

  1. Hello.

    Long live the king, eh?

    Dana (f7f735)

  2. It’s not at all unexpected based on how oral arguments went.

    Observer (18372f)

  3. It’s a tough call, Dana. How to protect Presidents from a “lawfare” kind of situation? I really dislike DJT, but I would be equally unhappy to see lawfare against another POTUS.

    It’s almost like the majority and minority are talking about different things.

    The hardest part of justice for me, growing up, was the knowledge that it is better to let a guilty person go than to convict an innocent person.

    I realize my opinion will be not be popular.

    Simon Jester (ff9c91)

  4. The lower courts will determine “if any of Trump’s actions, were part of his official duties and thus were protected from prosecution.”

    I wonder why they didn’t do that in the first place?

    BuDuh (a6b63d)

  5. Biden, the sitting President, now has an agonizing decision to make.

    The danger of J6 is past and the crimes are now a matter for the courts.

    But what do you do with an already convicted felon of dual nationality, facing prison, as well as more criminal charges and more prison, and on friendly terms with America’s enemies, who is in possession of critical national security secrets?

    nk (051548)

  6. Reposted from older thread:

    The dissents overlook the more likely prospect of an Executive
    Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly
    and fearlessly carry out his duties for fear that he may be
    next. For instance, Section 371—which has been charged
    in this case—is a broadly worded criminal statute that can
    cover “‘any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.’” United States v. Johnson, 383 U. S.
    169, 172 (1966) (quoting Haas v. Henkel, 216 U. S. 462, 479
    (1910)). Virtually every President is criticized for insufficiently enforcing some aspect of federal law (such as drug, gun, immigration, or environmental laws). An enterprising prosecutor in a new administration may assert that a previous President violated that broad statute. Without immunity, such types of prosecutions of ex-Presidents could quickly become routine. The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid. Ignoring those risks, the dissents are instead content to leave the preservation of our system of separated powers up to the good faith of prosecutors.

    SCOTUS does a good job in forming prospective prosecutors from politically “stretching” the law to meet their partisan agendas.

    Yeah, glad for the majority SCOTUS to signal that they’re not leaving the “preservation of our system of separated powers up to the good faith of prosecutors.

    whembly (86df54)

  7. @4

    The lower courts will determine “if any of Trump’s actions, were part of his official duties and thus were protected from prosecution.”

    I wonder why they didn’t do that in the first place?

    BuDuh (a6b63d) — 7/1/2024 @ 9:22 am

    Silly you…

    It would generate lengthly, immunity claims that the courts would have to resolve before beginning the trial, which would’ve definitely take years.

    The goal, all along, was to get a judgement before the election. That’s all that mattered.

    whembly (86df54)

  8. It’s almost like the majority and minority are talking about different things.

    Liberal jurists tend to think of the decision’s results, irrespective of the merits.

    Conservative jurists tend to think of the decision’s merits, irrespective of the results.

    Kevin M (a9545f)

  9. But what do you do with an already convicted felon of dual nationality, facing prison, as well as more criminal charges and more prison, and on friendly terms with America’s enemies, who is in possession of critical national security secrets?

    Well, despite him leading you in the upcoming election, you have no choice but to arrest him and hold him incommunicado. For national security. What could go wrong?

    Kevin M (a9545f)

  10. Orin Kerr, as usual, nails it:

    I don’t know if Trump is going to be reelected in 2024. But I know that, if he is, he’s going to preface every blatantly illegal thing he does by saying, “Official act, this is an official act.”

    lurker (c23034)

  11. Would Nixon’s order of hush money payments to subordinates who were acting on his orders, or those of his delegatees, have been immune? For that matter, are subordinates who are carrying out specific orders from the CINC also immune? Such as orders to kill Bin Laden? Does it matter if the order is facially unlawful?

    Kevin M (a9545f)

  12. But what do you do with an already convicted felon of dual nationality, facing prison, as well as more criminal charges and more prison, and on friendly terms with America’s enemies, who is in possession of critical national security secrets?

    What dual nationality? I hope this isn’t another joke I’m not getting. There are shames I can endure, but that would be pushing it.

    lurker (c23034)

  13. None of this helps him in NY. Nor would it help him if he paid hush money to a woman who he screwed in the Lincoln Bedroom. Even if he told her that it was an official act.

    Kevin M (a9545f)

  14. What dual nationality? I hope this isn’t another joke I’m not getting

    It’s only potential. ANd apaprently not even that. His mother was a British subject, but Trump does not benefit from that for two reasons:

    1) Until 1983, British subject status descended only through the father (which is a bit weird when you think about proof)

    2) His mother became a US citizen before Donald was born, which under UK law severed her issue from any such benefit.

    Kevin M (a9545f)

  15. What dual nationality?

    Mary Anne MacCleod Trump was a British subject, an immigrant to the United States.

    nk (051548)

  16. I know that, if he is, he’s going to preface every blatantly illegal thing he does by saying, “Official act, this is an official act.”

    lurker (c23034) — 7/1/2024 @ 9:47 am

    That used to be called ”by the book”

    BuDuh (a6b63d)

  17. Yeah, okay, what Kevin said too.

    nk (051548)

  18. 1) Until 1983, British subject status descended only through the father (which is a bit weird when you think about proof)

    Is that why some considered Obama a dual citizen at birth?

    BuDuh (a6b63d)

  19. From Steve Vladek (H/T: Patterico’s Twitter feed):

    The majority opinion in Trump says that (1) official acts can’t be evidence; and (2) motive is irrelevant.

    If that’s the case, how could a president ever actually *be* prosecuted for ordering the military, in his capacity as commander in chief, to kill his chief political rival?

    lurker (c23034)

  20. Thanks Kevin and nk.

    lurker (c23034)

  21. Obama could probably claim four citizenships. British Commonwealth, post-independence Kenyan, adoptive Indonesian, and United States.

    nk (051548)

  22. If that’s the case, how could a president ever actually *be* prosecuted for ordering the military, in his capacity as commander in chief, to kill his chief political rival?

    Impeachment no longer exists?

    BuDuh (a6b63d)

  23. What does impeachment have to do with it?

    lurker (c23034)

  24. Congress gets to decide if the order was a high crime or misdemeanor.

    Or is this hypothetical based on a fully cooperative military that actually executes such an outlandish order? If so, then I think there is a lot more to worry about.

    BuDuh (a6b63d)

  25. @19

    From Steve Vladek (H/T: Patterico’s Twitter feed):

    The majority opinion in Trump says that (1) official acts can’t be evidence; and (2) motive is irrelevant.

    If that’s the case, how could a president ever actually *be* prosecuted for ordering the military, in his capacity as commander in chief, to kill his chief political rival?

    lurker (c23034) — 7/1/2024 @ 10:19 am

    This is some dumb caca. (wanted more expletive as it deserves but the swear filters won’t allow).

    Two things:

    1) Easily impeachable and fast too.

    2) Easily not official acts, as murdering your political opponent is NOT a core executive function…anyway.

    The coping here is mentally defective, and it’s a shame that our host chose to link it.

    whembly (86df54)

  26. The main thing is the Supreme Court raised the stakes in the election. They were already pretty high. I have a feeling that will end up not polling well for Trump. My feel is that most undecideds have a belief that the system will somehow constrain Trump in a second term. That seems a whole less probable now, don’t you think?

    Appalled (36916d)

  27. Impeachment no longer exists?

    The claim is that it no longer works. But really it will work in cases where public outrage is sufficient to put the screws to partisan senators. In Trump’s first impeachment, “public outrage” was confined to people who still talk about Iran-Contra. In the second impeachment, it might have worked had the Senate leadership (I’m looking at you Mitch) been equally outraged.

    Still, it’s tough. Andrew Johnson survived despite the opposition Republicans having a supermajority in 1867 — internal rivalries worked in Johnson’s favor.

    Nixon, however, would have been convicted. A president who had his opponent(s) killed would galvanize public opinion.

    Kevin M (a9545f)

  28. Congress gets to decide if the order was a high crime or misdemeanor.

    I wish that canard would go away.

    Kevin M (a9545f)

  29. A) President gives highly questionable order declaring that is was an official act

    B) Congress, through impeachment, proves that it was clearly not an official act.

    C) through the holding from today’s opinion the president can now be prosecuted because of the declaration of congress.

    Simple.

    BuDuh (a6b63d)

  30. I wish that canard would go away.

    Kevin M (a9545f) — 7/1/2024 @ 10:33 am

    So, how does it supposed to work?

    BuDuh (a6b63d)

  31. …how is it…

    BuDuh (a6b63d)

  32. The criterion for impeachment is “high crime or bad behavior” in modern language.

    Kevin M (a9545f)

  33. Isn’t this unusal?

    Justice Thomas’ concurrance gives Judge Cannon a little more sustenance if she rules that Jack Smith’s Special Counsel status is unconstitutional:

    I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure. If there is
    no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President. No former President has faced criminal prosecution for
    his acts while in office in the more than 200 years since the founding of our country. And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes. If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special
    Counsel’s appointment before proceeding.

    whembly (86df54)

  34. Ok. I am assuming ordering the killing of your political opponent is bad behavior. Yes?

    BuDuh (a6b63d)

  35. @28

    Congress gets to decide if the order was a high crime or misdemeanor.

    I wish that canard would go away.

    Kevin M (a9545f) — 7/1/2024 @ 10:33 am

    You can blame Democrats for that.

    whembly (86df54)

  36. Congress can decide whatever it wants in an impeachment proceeding. That doesn’t make it admissible to rebut a constitutional immunity from criminal prosecution.

    lurker (c23034)

  37. @29

    A) President gives highly questionable order declaring that is was an official act

    B) Congress, through impeachment, proves that it was clearly not an official act.

    C) through the holding from today’s opinion the president can now be prosecuted because of the declaration of congress.

    Simple.

    BuDuh (a6b63d) — 7/1/2024 @ 10:33 am

    That’s actually incorrect.

    The impeachment process is wholly a separate thing, and unique only to Congress’ prerogative.

    The only think mentioned in this Immunity case is that SCOTUS rejected the premise that President/Former-Potus must be impeached before facing criminal charges.

    What this case instructs, though, is for courts to determine what acts or official or not.

    Congress can impeach to their heart’s content irrespective to what the court may or may not do.

    whembly (86df54)

  38. Kevin M (a9545f) — 7/1/2024 @ 9:54 am

    Would Nixon’s order of hush money payments to subordinates who were acting on his orders, or those of his delegatees, have been immune? For that matter, are subordinates who are carrying out specific orders from the CINC also immune? Such as orders to kill Bin Laden? Does it matter if the order is facially unlawful?

    I think the Supreme Court didn’t think this thing through carefully enough (and they often don’t)

    They distinguished between official acts and non official acts. I would say official acts are things he could not do unless he was president. Speeches, unless addressed to official bodies, aren’t really official acts, as anyone can make a speech.

    They said you couldn’t go into a president’s motive. This I think did not fine tune it enough. You don’t want people examining a president’s actions for political motives – they often have political motives. That is his right by virtue if holding the office. But you do want bribery to be illegal.

    The second category should be things for which he has no extra ability to do because he is president. Like flinging a paperweight at an adviser because he didn’t like what he said to him and hitting him on the head and causing a concussion and killing him. Even if this took place in the Oval Office, he didn’t gain any extra power to do so by virtue of being president. Similarly, drunk driving or speeding..

    https://www.washingtonpost.com/history/2024/05/31/ulysses-grant-arrested-president-trump

    https://en.wikipedia.org/wiki/Arrests_of_Ulysses_S._Grant

    The first two of the reported arrests were in 1866, when Grant was commanding general; the third is said to have occurred in 1872, when Grant was serving as the president of the United States. While of questionable historicity, the third is the best-known; if it did occur, this would make Grant the only U.S. president to have been arrested while in office.[a]

    Both 1866 arrests were reported by the D.C. National Intelligencer. There does not appear to be contemporaneous evidence of an 1872 arrest,[5][6] but from the 1890s onward, a number of newspaper articles about Officer William H. West (died 1915) included the claim that he had arrested Grant in 1872. In a 1908 profile in The Sunday Star—the sole detailed narrative of the event[7]—West said that he arrested Grant for speeding in a horse-drawn carriage after a warning for doing so the day prior, and that Grant was brought to the police station, where he put up $20 (equivalent to $510 in 2023), which was forfeited the next day when Grant did not appear in court. Other accounts differ but generally involve a fine of similar value, the impoundment of the carriage, or both. After the MPD appeared to confirm the veracity of the arrest in 2012, a number of news media outlets accepted it as fact, although in some cases with reservations. However, because of the lack of contemporaneous documentation, historians at the Ulysses S. Grant National Historic Site have questioned whether the event occurred.[6]

    Grant is characterized as resistant to police authority in the first narrative and as deferential in the latter two…

    It could be that the arrest was never made official.

    Perhaps there should be two other categories:

    3) Things a president has a right to do, like appoint someone or nominate someone to a position, or even where he has a doubtful but colorable right to do, like forgive student loans, where nevertheless he could be prosecuted if he was bribed to do so. But the issue of whether he had a right to take that action would not be part of the case. Just the fact of bribery.

    4) Things clearly illegal, though his being president enabled him to do that. This would be like commissioning members of the U.S. Army to do murder someone where it was not part of an armed conflict.

    I think they really have to leave things up in the air a bit, and they tried, imperfectly..

    As for Nixon, he never authorized, even privately and unofficially agreed to, the payment of money to silence the Watergate burglars. John Dean did that on his own. And when he sought “authority” (actually cover) from Nixon on March 21, 1973 to pay money to E. Howard Hunt the argument he used was not Watergate which Nixon had no interest in covering up past about June 30 1972, but that he would talk about the break-in to Daniel Ellsberg’s psychiatrist’s office. (Dean didn’t tell Nixon that he had already paid the money to Hunt!! That’s how dishonest he was.)

    This is something which the current Supreme Court would hold was within the outer perimeters of his authority and – this is precisely what they wanted not to consider but should be an important consideration – done for government related reasons.

    Sammy Finkelman (e4ef09)

  39. Ok. I am assuming ordering the killing of your political opponent is bad behavior. Yes?

    Also a high crime. Killing people is a serious crime in every country except Russia.

    Kevin M (a9545f)

  40. John Dean ordered the Watergate break-in because he wanted the burglars to get caught because Liddy was about the break into the McGovern campaign headquarters and there was a double agent in there (named Tom Gregory) who caused every attempt to bug the McGovern campaign headquarters to fail but now this was about not to be prevented.

    I think John Dean wanted to make Spiro Agnew president. John Dean had an interest in McGovern being the nominee.

    Sammy Finkelman (e4ef09)

  41. I would say official acts are things he could not do unless he was president.

    Not quite true. There are things he can do that others can also do, but are nonetheless in furtherance of his Executive powers.

    For example, anyone can call Zelensky on the phone and, if you get him to answer, can badger him until he hangs up. When a President (or a Senator…) does it, it’s an official act.

    Similarly, anyone can tour a steel mill if you can arrange it with the owner. But when a presidnet does it, it’s an official act.

    Kevin M (a9545f)

  42. @40:

    Unbelievable. In most meanings of the word.

    Kevin M (a9545f)

  43. Of course, if Biden did order Trump’s assassination — in the name of national security — he might well get away with it. Barring civil war or some other extra-judicial response.

    Kevin M (a9545f)

  44. and there is always the “Now who’s naive, Kay?” response.

    Kevin M (a9545f)

  45. Sheesh…

    Sotomayor’s Immunity dissent reads like any other O r a n g e M a n B a d hyperbolic screed from the leftist legalese community.

    whembly (86df54)

  46. If there is one Justice I agree with the most, it’s Barrett. It’s an added bonus that she’s a good writer.

    But what do you do with an already convicted felon of dual nationality…

    Dual nationality?

    Paul Montagu (383f45)

  47. Never mind about dual nationality.

    Paul Montagu (383f45)

  48. Dual nationality?

    Asked and answered

    Kevin M (a9545f)

  49. Also a high crime. Killing people is a serious crime in every country except Russia.

    Yeah but don’t forget that the Mueller Report proved Trump = Putin and Putin = Russia

    steveg (40d13a)

  50. John Dean ordered the Watergate break-in…

    False.

    Paul Montagu (383f45)

  51. John Dean ordered the Watergate break-in because he wanted the burglars to get caught because Liddy was about the break into the McGovern campaign headquarters and there was a double agent in there (named Tom Gregory) who caused every attempt to bug the McGovern campaign headquarters to fail but now this was about not to be prevented.

    I think John Dean wanted to make Spiro Agnew president. John Dean had an interest in McGovern being the nominee.

    Sammy Finkelman (e4ef09) — 7/1/2024 @ 10:54 am

    LOL! Show your work.

    Rip Murdock (d2a2a8)

  52. I agree with Sotomayor. Where is the Constitutional text? Where is the historical basis?

    And please, pretty please, don’t give me precedents that the President cannot be sued civilly under the Ku Klux Klan Acts or the Federal Tort Claims Act. Duh! Federal court jurisdiction does not exist unless Congress creates it. The Court can interpret those statutes’ reach in regard to the President and other Officers.

    The six gerbils just made this whole pile of toilet paper up. Like they were a Constitutional Convention. Worse than Roe v. Wade.

    nk (12b5ef)

  53. Rip Murdock (d2a2a8) — 7/1/2024 @ 12:15 pm

    LOL! Show your work.

    For some of these tings I have, or had things the rest is deduction:

    John Dean ordered the Watergate break-in: This is what the testimony shows. He attributed it to other people.

    https://www.commentary.org/articles/james-rosen/john-deans-watergate-whitewash

    In fact, numerous scholars, myself included, have argued that the great mass of evidence that emerged after 1974 shows that Dean was motivated to assume his central role in the Watergate cover-up not because he suffered from “blind ambition” (the title of his 1976 memoir) but because he wanted to conceal his role in authorizing the ill-fated break-in and wiretapping operation at Democratic National Committee headquarters. Dean was no bystander, no Brutus seduced by power, but a Cassius, a lead actor in the crime. Indeed, the original Watergate prosecutors, led by Assistant U.S. Attorney Earl Silbert, concluded that Dean stood “at the center of the criminality.” He vehemently denies having ordered the Watergate operation and has spent much of the last two decades litigating or threatening to litigate, without success, against historians and others who have so argued.

    Sammy Finkelman (e4ef09)

  54. @52

    I agree with Sotomayor. Where is the Constitutional text? Where is the historical basis?

    And please, pretty please, don’t give me precedents that the President cannot be sued civilly under the Ku Klux Klan Acts or the Federal Tort Claims Act. Duh! Federal court jurisdiction does not exist unless Congress creates it. The Court can interpret those statutes’ reach in regard to the President and other Officers.

    The six gerbils just made this whole pile of toilet paper up. Like they were a Constitutional Convention. Worse than Roe v. Wade.

    nk (12b5ef) — 7/1/2024 @ 12:31 pm

    The majority addresses that too…

    The principal dissent’s starting premise—that unlike Speech and Debate Clause immunity, no constitutional text supports Presidential immunity, see post, at 4–6 (opinion of SOTOMAYOR, J.)—is one that the Court rejected decades ago as “unpersuasive.” Fitzgerald, 457 U. S., at 750, n. 31; see also Nixon, 418 U. S., at 705–706, n. 16 (rejecting unanimously a similar argument in the analogous executive privilege context). “[A] specific textual basis has not been considered a prerequisite to the recognition of immunity.” Fitzgerald, 457 U. S., at 750, n. 31. Nor is that premise correct. True, there is no “Presidential immunity clause” in the Constitution. But there is no “‘separation of powers clause’” either. Seila Law, 591 U. S., at 227. Yet that doctrine is undoubtedly carved into the Constitution’s text by its three articles separating powers and vesting the Executive power solely in the President. See ibid. And the Court’s prior decisions, such as Nixon and Fitzgerald, have long recognized that doctrine as mandating certain Presidential privileges and immunities, even though the Constitution contains no explicit “provision for immunity.” Post, at 4; see Part II–B–1, supra. Neither the dissents nor the Government disavow any of those prior decisions. See Tr. of Oral Arg. 76–77.

    whembly (86df54)

  55. The Haldeman tapes show that AG Mitchell ordered the break-in.

    Paul Montagu (383f45)

  56. because he wanted the burglars to get caught

    The only explanation.

    because Liddy was about [to] the break into the McGovern campaign headquarters

    Silent Coup and other sources.

    and there was a double agent in there (named Tom Gregory) who caused every attempt to bug the McGovern campaign headquarters to fail

    Liddy had an inside man (recruited by Robert F, Bennett later Senator from Utah) who planted bugs that never worked.

    Right now I find this:

    https://www.nytimes.com/1973/01/12/archives/studentspy-may-lose-credits-for-political-job-absence-not-explained.html

    Mr. Gregory, 25 years old, testified in the Watergate bugging‐burglary trial here today and said that he was hired by E. Howard Hunt Jr. last spring to engage in political espionage against Senator Edmund S. Muskie of Maine, then the front‐running Democratic candidate.

    Later, he said, he performed the same task from within the campaign organization of the eventual Democratic nominee, Senator George McGovern of South Dakota.

    As part of an honors program for exceptionally bright and industrious students, he was to have received 16 credits for his participation in those campaigns and his authorship of a term paper about his experiences.

    “But if all of this is true, then he won’t get any credits,” said J. Keith Melville, Mr. Gregory’s faculty adviser at the university. “At least he won’t get any from me. He was supposed to be working for the Democrats, not against them.”

    Actually he was. Or he was a double agent, maybe a triple agent. There was a Senate report I think that mentioned the failed bugs

    Liddy was going to go ahead with a break into McGovern headquarters since Gregory did not seem to have any success in planting the bugs – and Gregory quit in order not to be involved. I think it was too much for him to be a triple agent.

    Yesterday, the chief prosecutor roughly sketched the dimensions of Mr. Gregory’s involvement—his recruitment by Mr. Hunt, the defendant who pleaded guilty today, his jobs in the headquarters of Senators Muskie and McGovern, his drugstore meetings to receive his $175 weekly salary, and his decision to quit when asked to participate in a burglary.

    John Dean prevented that burglary.

    John Dean told Liddy to go first into the DNC. I think hoping or planning for them to get caught. I don’t know how he expected the burglars to get caught but that he expected them to be caught is the best explanation. Not something having to do with prostitutes.

    Sammy Finkelman (e4ef09)

  57. A horrible oversight by the Founders that makes one wonder how the Nation managed to survive for 235 years, eh? Thank Heaven Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett finally came along and received Enlightenment.

    nk (9946e9)

  58. As long as official acts isn’t too broad I’m OK with this. But if it would be an official act for Biden to have Trump targeted for prosecution (and I can see how it would be) I think this is to far. But we’ll see. Devil is in the details.

    Time123 (ab3cfe)

  59. Paul Montagu (383f45) — 7/1/2024 @ 1:04 pm

    The Haldeman tapes show that AG Mitchell ordered the break-in.

    Liddy came up with a massive espionage plan. John Mitchell was afraid to say no, because he had confidence in Nixon, and he told him to reduce it two times. The third time he was kind of noncommittal. According to Larue.

    Your source does not give Haldeman’s exact words about what Mitchell said. I think Mitchell clearly did not want the whole thing to take place. . It is possible that Mitchell knew but could not flatly refuse permission because he felt Liddy had the confidence of Nixon.

    But there is some testimony that John Dean and Jeb Stuart Magruder told Liddy to do it. It wasn’t Liddy’s idea to break into the DNC. He wanted to go into the McGovern campaign headquarters. Liddy never spoke with anyone higher up like Haldeman. Only Magruder and Dean.

    I think it is all connected with not wanting Tom Gregory to be exposed.

    Sammy Finkelman (e4ef09)

  60. @58

    But if it would be an official act for Biden to have Trump targeted for prosecution (and I can see how it would be) I think this is to far.
    Time123 (ab3cfe) — 7/1/2024 @ 1:13 pm

    I think this immunity case states that Biden would also be immune to future criminal prosecution, even if anyone else would be charged under the various civil rights statutes.

    Because only the POTUS (and delegated prosecutors) has the power and discretion to investigate and bring charges.

    whembly (86df54)

  61. https://www.nationalreview.com/news/when-does-robert-hur-get-his-apology/

    The Biden Age Issue Comes to a Head

    In February, when special counsel Robert Hur’s report described President Biden as a “well-meaning, elderly man with a poor memory,” the mainstream media couldn’t possibly believe it.

    He rides a bike after all, MSNBC’s Rachel Maddow told us. He couldn’t possibly be facing mental decline.

    But the Biden Americans witnessed on stage at the first presidential debate last week was not the young-for-his-age 81-year-old Democrats and the media had portrayed. He struggled to form coherent sentences and at times appeared downright confused. (While the debate seems to have confirmed Hur’s findings in full view of the public, he may yet be further vindicated if House Republicans succeed in their effort to force the release of the audio tapes of his interview with Biden.)

    In the wake of the live-action trainwreck, NR’s Charles C. W. Cooke has urged readers to remember who has lied to them about Biden’s mental fitness and cognitive abilities:

    When they suggested that Biden was impressive and sharp behind closed doors, they were lying to us. When they talked about “cheapfakes” and “deceptive editing,” they were lying to us. When they pulled out the “misinformation experts say . . .” garbage, they were lying to us. When they proposed that Robert Hur’s report was “partisan” or “unfair,” they were lying to us.

    So now, we’ll do just that. What follows is a look back at some of the worst offenses.

    Just five months ago, when the Hur report claimed Biden’s “memory was significantly limited,” the mainstream media developed a narrative dismissing the claims because Hur apparently was not fit to make such a judgment. (Nevermind the fact that the president’s failing memory was put on display shortly after the report’s release, when, moments after he defended his memory in televised remarks, Biden appeared to refer to Egyptian president Abdel Fattah el-Sisi as the president of Mexico while answering a question about hostage negotiations in Gaza.)

    Apparently only a neurologist can make observations about a person’s memory. MSNBC’s Molly Jong-Fast accused Hur of not being a “good faith actor.” “He’s not a neurologist, right?”

    MSNBC’s Ari Melber accused Hur of being ageist, while Jeffrey Toobin appeared on CNN to criticize Hur for making “unnecessary points” about Biden’s age.

    American environmentalist and journalist Bill McKibben called Biden’s age his “superpower.”

    That thing about Biden not being able to recall when his son Beau had died, even within several years? No cause for alarm, according to experts sourced by the mainstream media.

    As NBC News reported at the time, “Forgetting the names of acquaintances or having difficulty remembering dates from the past doesn’t affect decision-making or judgment, brain experts say.”

    At the New York Times, a neuroscientist told readers, “Many of the special counsel’s observations about Mr Biden’s memory seem to fall in the category of forgetting, meaning that they are more indicative of a problem with finding the right information from memory than actual Forgetting [sic].”

    “Public perception of a person’s cognitive state is often determined by superficial factors, such as physical presence, confidence, and verbal fluency, but these aren’t necessarily relevant to one’s capacity to make consequential decisions about the fate of this country,” writes Dr. Charan Ranganath, a professor of psychology and neuroscience at UC Davis. “Memory is surely relevant, but other characteristics, such as knowledge of the relevant facts and emotion regulation — both of which are relatively preserved and might even improve with age — are likely to be of equal of greater importance.”

    Former CNN White House correspondent John Harwood also came to Biden’s defense at the time, sharing an interview he had done with Biden at the White House ten days before Hur did. Harwood also defended Biden’s less-than-reassuring press conference, claiming it “showed the same thing his performance in office has shown for 3 years: he can do the job.”

    And former White House correspondent Brian Karem went so far as to say Biden should speak in front of the camera more often. Bloomberg columnist and podcast host Matthew Yglesias said Biden, “seems totally fine and I think needs to do more press.”

    Just last month, the media spent a whole news cycle focused on dismissing video evidence of Biden’s decline as “cheap fakes,” with headlines like: “Misleading GOP videos of Biden are going viral. The fact-checks have trouble keeping up.” (NBC); “Right-wing media outlets use deceptively cropped video to misleadingly claim Biden wandered off at G7 summit,” (CNN); “Seeing is believing? Not necessarily when it comes to video clips of Biden and Trump,” (AP); and “‘Cheapfake’ Biden videos enrapture right-wing media, but deeply mislead,” (WaPo).

    The Washington Post explains that “cheap fakes” are “deceptively edited videos” that “misrepresent events simply by manipulating video or audio, or by leaving out context” and that they’ve “become staples of Republican attacks against Biden.”

    But after Biden’s cognitive abilities were on display on Thursday, even the most Biden-friendly media could no longer turn the other cheek.

    MSNBC host Joy Reid said Obama and Biden allies were texting her that Biden appeared “extremely feeble and weak,” while MSNBC host Alex Wagner reported from the debate spin room that there had been a “uniformly negative reaction to Biden’s performance tonight.”

    Morning Joe host Joe Scarborough said just last month, “I have spent a good bit of time talking to Kevin McCarthy through the years and hours with Biden in 2024. There is no comparison: Biden is far sharper, more intellectually curious, and far more insightful on global affairs than any House GOP speaker I have met over 30 years.”

    But he did a quick post-debate about face, questioning whether Biden should remain in the race. “If he were CEO and he turned in a performance like that, would any corporation in America, any Fortune 500 corporation in America keep him on as CEO?” he asked.

    While the media hit a breaking point, Biden allies made the rounds on the Sunday shows in an attempt to assuage voter concerns.

    Senator Raphael Warnock (D., Ga.) said Biden should “absolutely not” drop out of the race. Representative Jim Clyburn (D., S.C.) said Sunday that President Biden should stay in the presidential race and dismissed his disastrous debate performance as a consequence of “preparation overload.”

    But as far as the media was concerned, it appeared the damage was done.

    The editorial boards of the New York Times and the Atlanta Journal-Constitution have called on Biden to drop out of the race. (Still, the editorial board of the Philadelphia Inquirer, however, confusingly doubled down on its support of Biden and suggested Trump is “the only person who should withdraw from the race.”)

    And while a Politico headline acknowledged “Biden bombs,” the outlet apparently just couldn’t help itself from adding, “Trump pounces.”

    Indeed…

    …and people wonder why trust in the media is at an all time low.

    whembly (86df54)

  62. Ryan Goodman has a helpful graph. The problem is that a president or ex-president is going to declare everything he does as official acts, therefore a prosecutor must overcome presumptive immunity at every turn, at least until there are more court decisions to establish a clear line. Advantage: Criminal president.

    Paul Montagu (383f45)

  63. Sammy Finkelman (e4ef09) — 7/1/2024 @ 12:50 pm

    Again, without any direct evidence, it is completely pure speculation.

    Rip Murdock (d2a2a8)

  64. Trump would, if reelected again, be a domineering Executive.

    From my dictionary: “a boss who shifts between autocracy, persuasion, and consultation”

    A King is completely unchecked, a King could chop the heads off of the Court, Congress and abolish the institutions. Then have morning coffee.

    Every branch of our government should autocratic in the sense that it should absolutely wield the all of the powers invested in that branch by the Constitution, absolutely.

    Here is what the Court has ruled for the immunity from liability of the legislative branch. “even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes.”
    So Orin Kerr linked above knows that every member of the legislature can also say “this is an official act” (within context) as can every member of the Supreme Court. The dispute arises over “in context” and context is most difficult in the Executive because its a 24/7 gig
    Scholars have always noted “the uncertainty at the margins” and that remains.

    steveg (40d13a)

  65. I don’t think official acts are what a president declares to be official acts, but something either is or isn’t. I don’t like that speeches are – on the other hand things officially archived by the White House probably are.

    Sammy Finkelman (e4ef09)

  66. This immunity existed before Trump 6-3, so he wasn’t “given” anything

    steveg (40d13a)

  67. I don’t think official acts are what a president declares to be official acts…

    But that’s exactly what Trump’s lawyers will present wrt the Jack Smith and Fani Willis prosecutions, if they proceed.

    Paul Montagu (383f45)

  68. https://www.commentary.org/articles/james-rosen/john-deans-watergate-whitewash

    Consider his account of a meeting that President Nixon held with H.R. Haldeman in the Oval Office on the morning of March 27, 1973, when the cover-up was rapidly unraveling.

    Haldeman related to the president the gist of a conversation that a pair of lawyers for the Nixon reelection campaign committee had had with Jeb Magruder. The latter, who died in May, was the critical link in the chain-of-command for the Watergate break-in. Magruder was the youthful campaign aide who received the final order to move against the Democratic National Committee, issued to him by a more senior political figure— Dean himself, as I and others have argued, and as he denies —and transmitted it to G. Gordon Liddy and his squad of ex-spooks, who carried out the operation. What Magruder had to say in March 1973 about the origins of the DNC operation was of critical interest to the president.

    I know John Dean lied in a 1982 book (Lost Honor) about what Taylor Branch’s column in Esquire said in 1976 about who was Deep Throat.

    (You couldn’t check the column – they weren’t individually indexed in the Reader’s Guide to Periodical Literature.

    It was obvious to me that John Dean was lying in his testimony to the Senate Watergate Committee because he spoke in a monotone – which could only be because he was afraid that the Voice Stress Analyzer would catch him in lies.

    Sammy Finkelman (e4ef09)

  69. @67

    I don’t think official acts are what a president declares to be official acts…

    But that’s exactly what Trump’s lawyers will present wrt the Jack Smith and Fani Willis prosecutions, if they proceed.

    Paul Montagu (383f45) — 7/1/2024 @ 1:52 pm

    Of couse Trump’s lawyers is going to present that defense.

    It’s up to Jack Smith and the courts to adjudicate whether or not immunity applies.

    SCOTUS basically scolded the district/appellate courts that they didn’t do their homework… meaning, no determination was made which acts where official v. not-official acts when determining immunity.

    It’s the ultimate “show your work” admonishment.

    whembly (86df54)

  70. Paul Montagu (383f45) — 7/1/2024 @ 1:52 pm

    Trump’s lawyers will present wrt the Jack Smith and Fani Willis prosecutions, if they proceed.

    Trumps lawyers will argue after the fact

    This is not a president attempting to immunize himself before the fact by memorializing certain things as official acts.

    I think the Supreme Court went a little bit too far – but not much too far.

    They don’t want another Rick Perry prosecution, which involved the motivation for a veto threat.

    https://en.wikipedia.org/wiki/Rick_Perry_veto_controversy

    On August 15, 2014, Texas Governor Rick Perry was indicted by a Travis County grand jury, but has since been cleared on all charges.[1][2][3] The first charge of the indictment was abuse of official capacity, a first-degree felony, for threatening to veto $7.5 million in funding for the Public Integrity Unit, a state public corruption prosecutors department. The second charge, which has since been ruled unconstitutional,[4] was coercion of a public servant, a third-degree felony,[5] for seeking the resignation of Travis County District Attorney Rosemary Lehmberg, a Democrat,[6] after she was convicted of drunk driving and incarcerated. Lehmberg was a district attorney in Travis County, Texas, and the Travis County DA’s office managed the Public Integrity Unit’s operations. The veto was seen as retribution for Lehmberg not stepping down. Perry pleaded not guilty to both charges.

    On July 24, 2015, the Texas Third Court of Appeals dismissed the indictment for coercion of a public official on the basis that the indictment violated Perry’s First Amendment rights to free speech.[4] The indictment for abuse of power, a charge which his lawyers said is a misdemeanor,[7] was likewise dismissed, in February 2016.[2][8] …

    Sammy Finkelman (e4ef09)

  71. You maybe didn’t need special presidential “in the course of his duties” immunity.

    Eugene Volokh, UCLA School of Law professor, writing in The Washington Post said that the Texas Constitution gives Perry the right to veto bills and he cannot be prosecuted for using his lawful and constitutional authority as Texas Governor.[26] Volokh said Perry’s statements in the media threatening the veto are protected by the First Amendment to the U.S. Constitution and cited the Texas Courts of Appeals’s case State v. Hansen as support for the First Amendment protection of Perry, where the court stated, “Coercion of a lawful act by a threat of lawful action is protected free expression”.[26]

    Other news reports, however, have highlighted the fact that that additional district attorneys in Texas, who were Republican, had also been charged with DUI’s during his governorship and against whom Perry took no similar action as he directed against the Democrat, Lehmberg, of Travis county.[27][28] A spokesman for Rick Perry said, however, “They were not in charge of the Public Integrity Unit, which receives state taxpayer dollars…we don’t have any evidence that they behaved as inappropriately and abusively to law enforcement as Lehmberg did.”[27]

    The Supreme Court intended to put a stop to any nonsense like that indictment.

    Sammy Finkelman (e4ef09)

  72. Just a thought — since the stakes for the election went up, given what Trump will likely do with the power granted to him, don’t be surprised by three possibles:

    1. Biden suddenly agrees to drop out in favor of Harris immediatley

    2. The New York court says Trump has to go to jail and he does not stay out pending appeal.

    3. Biden (or Harris) uses new found powers to make a finding regarding Trump’s abuse of classified documents requiring his detention. All officials implementing decision operate under a Presidential pardon.

    People do not always play by the expected rules when threatened by somene who never plays by the rules. Since the Supreme’s pulled a Dredd Scott out of their robes, we are in a Constitutional crisis, and some interesting things may now happen.

    Appalled (36916d)

  73. Anybody else struck by Thomas pulling a textual (so to speak) about the legitimacy of the Special Counsel while concurring in the antithesis?

    nk (e0cb65)

  74. I don’t think any of these three things would happen and the last two could be seen as illegitimate.

    And what would be the point of Judge Merchan remanding Trump to jail? And Trump doesn’t have any more secret documents and wouldn’t sell them or flee the country, and they never were very important.

    Trump isn’t yet threatening to throw out all the rules.

    Sammy Finkelman (e4ef09)

  75. @72

    Just a thought — since the stakes for the election went up, given what Trump will likely do with the power granted to him, don’t be surprised by three possibles:

    What “power” will be “granted” to him?

    SCOTUS emphatically said to treat all presidents equally.

    1. Biden suddenly agrees to drop out in favor of Harris immediatley

    I think that’s their only option.

    We need some more cogent than Biden… and VP Harris can take over there. She’s wrong on 99.9% of the politics, but at least she has all of her marbles.

    2. The New York court says Trump has to go to jail and he does not stay out pending appeal.

    If Merchand tries to jail Trump, Democrats are going to get rolled.

    But, that won’t happen, as Trump has very appealable paths to stay prison.

    3. Biden (or Harris) uses new found powers to make a finding regarding Trump’s abuse of classified documents requiring his detention. All officials implementing decision operate under a Presidential pardon.

    LOL… there’s a lot of fantasy in this sort of conjecture.

    People do not always play by the expected rules when threatened by somene who never plays by the rules. Since the Supreme’s pulled a Dredd Scott out of their robes, we are in a Constitutional crisis, and some interesting things may now happen.

    Appalled (36916d) — 7/1/2024 @ 2:13 pm

    The idea that SCOTUS pulled a “Dredd Scott” is so farcical… I can’t think of a more stronger synonym for ‘absurdity’.

    whembly (86df54)

  76. @73

    Anybody else struck by Thomas pulling a textual (so to speak) about the legitimacy of the Special Counsel…

    nk (e0cb65) — 7/1/2024 @ 2:20 pm

    I’m struck how he snuck that in…

    As, the controversy over the Special Counsel was NOT part of the main immunity arguments.

    whembly (86df54)

  77. Thomas was saying there’s another issue that the district court would do good to deal with sooner.

    Was Smith’s appointment even legal?

    Sammy Finkelman (e4ef09)

  78. There’s a problem with transferring money to another candidate. Hard money is limited to $3,300 a person per campaign.

    Sammy Finkelman (e4ef09)

  79. I agree with Sotomayor. Where is the Constitutional text? Where is the historical basis?

    Washington. Jefferson. Lincoln. These folks all did things that involved either the use of military force against US citizen, or in Jefferson’s case an enormous payment of government money without permission.

    The Constitution sets the Executive up as a powerful figure with unique duties. He should no more be subject to petty laws than a police officer should be treated the same as a private citizen in a shooting. Both have DUTIES that require them to make choices and take actions that the average citizen does not have.

    Kevin M (a9545f)

  80. A horrible oversight by the Founders that makes one wonder how the Nation managed to survive for 235 years, eh? Thank Heaven Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett finally came along and received Enlightenment.

    Except for all the cases over the last 230 years where this principle was constructed.

    Kevin M (a9545f)

  81. Now, it’s perfectly fine to argue that precedent should not have constitutional weight, that only what is printed in the Constitution or its amendments matters. If one wants to promulgate Executive Privilege, say, go write an amendment and try to get it passed. There are good reasons to want this, such that it is nearly impossible to repeal a precedent as things will just get reinterpreted to mean the same thing anyway.

    But we don’t work it like this. It is precedent that precedent matters. Sotomayor’s dissent is a dishonest use of textualism, pretending that there haven’t been a pile of decisions over the last 2 centuries establishing that the Presidency is a unique office which MUST be set apart in some ways.

    Kevin M (a9545f)

  82. Washington. Jefferson. Lincoln.

    The poor old guys. Paralyzed by fear that they would be prosecuted for carrying out their duties as President.

    Except for all the cases over the last 230 years where this principle was constructed.

    What cases? Nixon was made to turn over some stuff to a grand jury in one case, and got a civil case against him for wrongful termination dismissed. What else?

    nk (20d4ea)

  83. If impeachment is insufficient to correct an out-of-control Executive, feel free to fashion something that works better. But note that for every frustrated righteous impeachment there are probably 20 unreasonable attempts, so you cannot make it too easy, either.

    The Founders had real problems with who tried impeachments, as well as who held the pardon power and what limits could be imposed. In the end, they decided that these were political questions. As they are.

    Kevin M (a9545f)

  84. You know that Caesar still divorced Pompeiia, right? The principle is above suspicion, not above the law.

    nk (20d4ea)

  85. What cases? Nixon was made to turn over some stuff to a grand jury in one case, and got a civil case against him for wrongful termination dismissed. What else?

    Executive privilege was an old idea even then. Did it appear on a stone tablet? Why wasn’t Nixon indicted? Did they have nothing to base that on? YOU’RE the effing lawyer, don’t ask me to cite cases.

    Kevin M (a9545f)

  86. Pompeia

    nk (20d4ea)

  87. This does not mean that anything he does is immune. The preposterous “shooting his opponent” thing is just there to inflame, as are most of the horribles on parade. Is asking his DoJ what the limits of the law are a crime? Probably not. Even for anyone else. Directing subordinates to do something the DoJ TOLD him was illegal WOULD be a problem, even with immunity (assuming they were correct), as illegal acts are likely outside his legal powers.

    Probably the best historical case would have been the Ellsberg burglary as it at least marginally touched on national security (attempting to discredit the Pentagon Papers was a valid, if futile, national security objective). Had Nixon authorized it, could he be prosecuted? Likely not with today’s ruling.

    But the bugging of the DNC offices at the Watergate? I’m sure that there were national security cover stories, but it seemed more likely to be for illegitimate reasons. It is not a presidential duty to undermine political opponents.

    Kevin M (a9545f)

  88. With Trump… I’m still very irked that he’s the GOP candidate and could win. I was a DeSantis guy, but would’ve eagerly supported any other GOP candidates moreso than Trump.

    I just happen to read and understand that what SCOTUS did today and it didn’t give the president any additional power.

    It reaffirmed the power the presidency already has, only that it’s taken this long for a controversy like this to reach SCOTUS>

    whembly (86df54)

  89. I don’t know, Kevin, why wasn’t Nixon indicted? Or any other President? Maybe because the sound sound exercise of prosecutorial discretion turned out to be as good enough as the Founders thought it would be?

    nk (20d4ea)

  90. The real problem the Court addressed is that not only does the Executive have duties that may require him to take resolute action, but he also has political enemies who will question any action that can be questioned.

    Biden has taken a number of actions with respect to the Southern border. While many of them have seemed poorly chosen, the operation of the Border Patrol is within his remit. Without immunity for those choices, established today, a subsequent hostile administration could ruin what remains of his life with legal tomfoolery.

    The question here is what is and is not a Presidential duty, and I see no reason to think that undermining the Electoral Count is one. Wishes are not duties.

    Kevin M (a9545f)

  91. Put it another way.

    SCOTUS has now emphatically closed the door that Biden, nor Mayorkas could be criminally prosecuted for not following the law for their border policies.

    The *only* avenues to check these sort of mis/maladministration is impeachment, power of the purse, passing veto-proof statutes demanding enforcements and at the ballot box.

    whembly (86df54)

  92. Maybe because the sound sound exercise of prosecutorial discretion turned out to be as good enough as the Founders thought it would be?

    The thing that informed that “discretion” was the belief that he was immune while still president. You have a better case pointing at the pardon.

    But even with this decision, he still has to answer for the documents case and he still has to answer for the false elector fraud, neither of which invoke ANY presidential duty, and only the possible involvement of Grant in the resolution of the 1876 election as an historical argument (and even there his efforts were to diminish the false electors).

    Kevin M (a9545f)

  93. passing veto-proof statutes demanding enforcement

    I think “imposing administrative penalties” for lack of enforcement would be better. Making it a crime not to enforce would be a dead letter now. Zeroing out budgets in response would be much better.

    Kevin M (a9545f)

  94. the sound sound exercise of prosecutorial discretion turned out to be as good enough as the Founders thought it would be?

    Where is that in the Constitution? Oh, yeah, precedent.

    Kevin M (a9545f)

  95. Where is the 25th Amendment in the Constitution? Your arguments are for an Article V Convention, not for a Partisan 6 decision.

    nk (20d4ea)

  96. @93

    Zeroing out budgets in response would be much better.

    Kevin M (a9545f) — 7/1/2024 @ 3:37 pm

    I’ve been advocating for that for years.

    Congress has to do more to jealously protect their turf AND demand an executive to enforce the laws on the books.

    The “power of the purse” is probably *the* hammer at Congress’ disposal to push the executive.

    whembly (86df54)

  97. @95

    Where is the 25th Amendment in the Constitution? Your arguments are for an Article V Convention, not for a Partisan 6 decision.

    nk (20d4ea) — 7/1/2024 @ 3:50 pm

    Are you… currently imbibing on your favorite drink?

    I’m not following your positions lately…

    whembly (86df54)

  98. @89 I suppose Booth saved Lincoln from being prosecuted for suspending habeas corpus. We’ve been able to rely on prosecutorial discretion up until now, because up until now discretion was the operative word.

    lloyd (7935a8)

  99. (W)hy wasn’t Nixon indicted?

    Nixon was pardoned one month after he resigned, which would have been very little time for the Justice Department to obtain an indictment. The whole point of the pardon was to forestall an indictment. In fact, a pardon was discussed between then WH Chief of Staff Alexander Haig and VP Ford weeks before Nixon’s actual resignation.

    Rip Murdock (d2a2a8)

  100. Your arguments are for an Article V Convention

    Yeah, let’s freeze everything to 1789 unless we can get an amendment passed.

    Look, the Constitution sets up a structure, and a number of things are inherent to that structure. Separation of Powers is an obvious one. The Executive is an entire branch of government and therefore has significant governmental powers not explicitly listed. Conducting foreign affairs can be pretty broad (puns not intended). Commander-in-chief encompasses what? Then here are the various departments.

    There are parts of this decision that I find vague and dislike. Is ordering the IRS to audit someone an official act? I don’t think that I like it being after-the-fact and case-by-case. I assume that there will be more said by the DC Circuit, now that their claim that there was no immunity of any kind has been put to rest.

    Kevin M (a9545f)

  101. Are you… currently imbibing on your favorite drink?

    Yes. Nescafe Colombian blend.

    I don’t know about my other positions, but my position here is that the Court fixed something that did not need fixing, and did it without a Constitutional basis, out of practically whole cloth, with dubious precedents and spurious arguments, based on phantasmagorical concerns, from partisan and not juridical reasons.

    nk (20d4ea)

  102. Where is the 25th Amendment in the Constitution?

    Could the 25th have been constructed from 1st principles? I doubt it. Other things can be, such as whether a revolver is covered by the 2nd. And the 25th is unworkable as we have seen — it is only useful in a non-adversarial situation, like when the president’s personal interest conflicts with the country’s and there is no good way to finesse that (e.g. West Wing 4×23)

    Kevin M (a9545f)

  103. Rip, see @92 where I suggest that the pardon DOES suggest they thought the president could be indicted. OTOH, the potential charges had little to do with core duties.

    Kevin M (a9545f)

  104. I’ve added more of Sotomayor’s dissent to the post. Good reading.

    Dana (cd2f0f)

  105. Sotomayor is just working the knife on textualism and “history and tradition.” And the president IS equal under the law … to all the other Executives. Really, it’s a unique position and it has unique duties and requirements. Do we really want a world where President AOC can haul Biden before a court to answer for “his genocide in Palestine”?

    Kevin M (a9545f)

  106. Long live the king.

    Meh.

    Kevin M (a9545f)

  107. Do we really want an America where Trump can request Putin to send over the Wagner Group to “preserve order” and order our Armed Forces to stand down, and the only thing he’ll need to worry about is an Allied landing on the Jersey Shore?

    “Vote for the zombie! It’s important.”

    nk (a71d91)

  108. “Sotomayor” and “good reading” are words that go together like “nails” and “chalkboard”.

    lloyd (1367ae)

  109. What does he have on those six gerbils? Were they all guests at Jeffrey Epstein’s island at some time or another?

    nk (a71d91)

  110. Official act can mean, for some purposes:

    “Any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.”

    An official, including Presidents, should have immunity for doing something they should be doing, since government officials are supposed to act according to law in the public interest.

    They don’t always do that but if it can be proven that an action was not part of the job, or not done according to the law, not in the public intersst, or for personal gain, etc., then it would not be an official act. No immunity.

    I think this is the right rule. I think the Court could have held that attempting to overturn a valid election can never be an official act, but I would never expect the Roberts Court to jump to that holding, instead of remanding to a trial court to develop the evidence.

    DRJ (496584)

  111. @107:

    The Founders clearly thought that the Executive could be guilty of treason. They discussed it as a reason to limit the pardon power. What you suggest would be treason. How would you place that in his core powers? I’m not sure that being CinC or boss of foreign affairs includes “surrender” as it would grossly violate his oath.

    Also, there is still impeachment, either the formal method, or what Franklin described as “the alternative.”

    Kevin M (a9545f)

  112. but I would never expect the Roberts Court to jump to that holding

    See Kagan’s torturing of the Texas social media law and the 6th Circuit’s bad, no good, awful opinion, while refusing to actually rule it unconstitutional as the lower court didn’t address the necessary issues. Again the Court refused to jump in. Reading it, I had the feeling that there was no consensus on what to do, particularly with the less fraught Florida law.

    Kevin M (a9545f)

  113. Also @107:

    What you describe would be adequate grounds for a military coup.

    Kevin M (a9545f)

  114. I can’t see, in practical terms, how this is much of any benefit to Trump since it didn’t rule these charges were official. Smith will argue the things he did weren’t official, Trump’s team will argue it is, DC Circuit has already ruled that they weren’t.

    So the delay may be helpful, but the ruling only supplied the delay, not a win. If Trump wins he can pardon himself, and if Congress doesn’t like it, they can impeach, but good luck.

    Colonel Klink (ret) (96f56a)

  115. Exactly, Colonel.

    It isn’t surprising that the majority of the Court (especially this majoroty) would hold that a government official can’t be targeted for motives. This is as much about Justices servong as government officials as it is about Presidents.

    DRJ (9d44fe)

  116. Should Obama have been subject to prosecution for ordering the drone strike that killed Anwar Al Awlaki (sp?), an American citizen, in 2011? Awlaki had actively encouraged war against the US, but no court ever sentenced him to death.

    On the other side of things, does anyone seriously believe that Seal Team 6, or any other unit in the US military, would obey such an obviously unconstitutional order such as Sotomayor hypothesized? If so, why?

    RL formerly in Glendale (7a2d64)

  117. does anyone seriously believe that Seal Team 6, or any other unit in the US military, would obey such an obviously unconstitutional order such as Sotomayor hypothesized? If so, why?

    The only reason is because they are unhinged wrt Donald Trump and assume that he will infect all around him with the madness they project.

    Kevin M (a9545f)

  118. On the other side of things, does anyone seriously believe that Seal Team 6, or any other unit in the US military, would obey such an obviously unconstitutional order such as Sotomayor hypothesized? If so, why?

    Doesn’t really matter if they complied, but probably not.

    In this ruling, Robert’s basically said “core” acts are specifically limited by Article 2, and in that the duties are specified, or not, in Section 2.

    Section 2.
    The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

    He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

    The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

    So there are really high level guidelines, but the details are where it matters, and there aren’t many. If you’re purely textual, the presidency is a part time job outside of wartime and he has few duties.

    Colonel Klink (ret) (96f56a)

  119. Just when you thought that it could not get any crazier:

    Trump Amplifies Calls to Jail Top Elected Officials, Invokes Military Tribunals

    Former President Donald J. Trump over the weekend escalated his vows to prosecute his political opponents, circulating posts on his social media website invoking “televised military tribunals” and calling for the jailing of President Biden, Vice President Kamala Harris, Senators Mitch McConnell and Chuck Schumer and former Vice President Mike Pence, among other high-profile politicians.

    Mr. Trump, using his account on Truth Social on Sunday, promoted two posts from other users of the site that called for the jailing of his perceived political enemies.

    One post that he circulated on Sunday singled out Liz Cheney, the former Wyoming congresswoman who is a Republican critic of Mr. Trump’s, and called for her to be prosecuted by a type of military court reserved for enemy combatants and war criminals.

    “Elizabeth Lynne Cheney is guilty of treason,” the post said. “Retruth if you want televised military tribunals.”

    A separate post included photos of 15 former and current elected officials that said, in all-capital letters, “they should be going to jail on Monday not Steve Bannon!” Those officials included Mr. Biden, Ms. Harris, Mr. Pence, Mr. Schumer and Mr. McConnell — the top leaders in the Senate — and Representative Nancy Pelosi, the former House speaker.

    This doesn’t seem like the guy I want to hand power and immunity over to.

    Kevin M (a9545f)

  120. If you’re purely textual, the presidency is a part time job outside of wartime and he has few duties.

    That “heads of departments” suggests that the Executive branch has lots to do. But it also argues against the Unitary Executive who commands those countless minions to do his bidding.

    Kevin M (a9545f)

  121. Should Obama have been subject to prosecution for ordering the drone strike that killed Anwar Al Awlaki (sp?), an American citizen, in 2011? Awlaki had actively encouraged war against the US, but no court ever sentenced him to death.

    Probably not because the Bush era Authorization to Use Military Force which states:

    That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

    This was defined by Congress to give powers to the President as defined by the war powers act. Anwar al-Awlaki was a high ranking member of Al Queda and as such was a legitimate target. A Republican Congress reviewed this case and had questions about it, but said that unfortunately the justification was, at least, arguable, and changing the AUMF by Congress (as defined by the WPA) would be needed to clarify. That was 11 years ago and it still hasn’t.

    There’s a nice discussion of it here.

    Basically, the AUMF gave Pres Bush incredibly broad latitude, hence SOF deployment all over the world, Africa, Malaysia…Obama traded out some of the boots on the ground for drone strikes, Trump continued. The AUMF allowed the President to designate enemy combattants, and al-Awlaki was certainly an AQ leader, and we’ve been targetting them pretty much everywhere. We’re hitting the Houthis today under the AUMF. Both Republican and Democrat Congresses have continued to let it stand. Every few years there’s an attempt to end it, but it’s failed every time.

    I’d be for ending it, replacing it with something a bit more judicious. Don’t get your hopes up though, if a President wants someone in Somalia dead, justification is pretty easy to get. Get a finding, have Congressional leaders briefed, Bob’s your uncle. There’s also the ticking time bomb scenario, some things you just have to do.

    Colonel Klink (ret) (96f56a)

  122. This doesn’t seem like the guy I want to hand power and immunity over to.

    After reviewing all the findings on the AUMF, this might be time to end it. Naming enemy combattants isn’t something I want Trump to be choosing with all his current rhetoric. He did say a lot last time but basically just thought telling everyone he was doing it was easier than actually doing it, so ¯\_(ツ)_/¯.

    Colonel Klink (ret) (96f56a)

  123. Trump, personally, is clearly undeserving of any immunity, but this issue should not be about Trump but about what protection the president should receive. If today’s decision did not involve Trump, would it still be setting up an unaccountable king?

    Am looking forward to the day when Trump is not part of our politics in the hope that the unhinged reactions he’s provoked, pro and con, will be a thing of the past. Am still bothered by Sotomayor’s hypothetical which seems to me straight out of fantasy world. I have several lifelong friends who served in the military and they all took their oath to defend the Constitution seriously. If the country ever got to the point where Seal Team 6, or any unit in the military, even contemplated for a second obeying an order to assassinate a political leader, then a controversial Supreme Court decision on immunity would be the least of our problems. Can’t wait for the end of this sort of video game rhetoric.

    RL formerly in Glendale (7a2d64)

  124. Sotomayor putting that in was just dumb. This ruling doesn’t do what the headlines say it does.

    Colonel Klink (ret) (96f56a)

  125. Its getting more difficult to watch, listen to the nevertrumpers who would gladly sacrifice the power of the executive for all tomorrows in order to get a leg up on Trump today.
    They reflexively default to “Trump is existential threat to our democracy” therefore whatever diminishes Trump = the greatest good

    steveg (8dac75)

  126. Its getting more difficult to watch, listen to the MAGATrumps who would gladly sacrifice the nation for all tomorrows in order to get a leg up on the libz today, LOLZ.

    They reflexively default to “Trump isn’t an existential threat to our democracy” therefore whatever diminishes the nation = the greatest good for Trump

    Colonel Klink (ret) (96f56a)

  127. This ruling comes at a time when we have one of the weakest executives since July 2 1881. Robert Hur’s findings meant immunity for Biden would be an unnecessary redundancy

    steveg (8dac75)

  128. #121
    I appreciate that Awlaki was a bad guy who appears to have committed treason and probably met the fate he deserved. Also appreciate that the AUMF was crafted by serious people and that Obama did not take lightly the decision to order the drone strike. But I still don’t see how even an AUMF can override the guarantee in the Constitution that no American be deprived of life, liberty or property without due process of law, especially since the Constitution sets forth particular requirements for finding someone guilty of treason. I just don’t see how the Executive can order the extrajudicial killing of an American citizen like that — by what standards and by whom will the president be held accountable? I don’t think Obama should have faced prosecution for making the order but have a difficult time squaring the vast national security state erected since 1947 with the restrictions the Constitution imposes on government power.

    RL formerly in Glendale (7a2d64)

  129. On the other side of things, does anyone seriously believe that Seal Team 6, or any other unit in the US military, would obey such an obviously unconstitutional order such as Sotomayor hypothesized?

    Yes.

    If so, why?

    Because the U.S. military is no saintlier than any other collection of murderers, rapists, and thieves who have rampaged across the Earth killing, raping, burning, and pillaging since the beginning of time.

    Or we can go playing fields of Eton with “Theirs not to reason why. There but to do and die.”

    Whichever best lets us sleep peacefully in our beds at night only because rough men stand ready to do violence on our behalf. Cf. George Orwell

    nk (c20c59)

  130. Was the 20th century all that long ago?

    Was the the U.S. drone strike in Kabul, Afghanistan, that killed Zemari Ahmadi, an Afghan aid worker, and nine members of his family, including seven children, to cover Biden’s senile old ass for the Kabul airport terror attack on our troops, that long ago?

    nk (c20c59)

  131. Anybody else struck by Thomas pulling a textual (so to speak) about the legitimacy of the Special Counsel while concurring in the antithesis?

    I’m struck. Seems like Thomas is sending a message to Judge Cannon, as now she could use his dicta to dismiss the case.

    Paul Montagu (b7a39f)

  132. @131

    I’m struck. Seems like Thomas is sending a message to Judge Cannon, as now she could use his dicta to dismiss the case.

    Paul Montagu (b7a39f) — 7/2/2024 @ 5:54 am

    Yeah, she cannot just dismiss the case on that basis. She could probably kick Jack Smith off the case, but they have other DOJ prosecutors, appointed/nominated that can take over.

    whembly (86df54)

  133. Im not shocked by this ruling.
    It does seem consistent with the qualified immunity we give police and district attorneys.

    Joe (844973)

  134. I have had little regard for Thomas since Navarette v. California. In his dissent, Antonin Scalia called the majority opinion authored by Thomas a “freedom-destroying cocktail”. And now Thomas and company have served up a double.

    nk (eee80d)

  135. @133 It’s especially rich that prosecutors and judges, enjoying qualified immunity, are bitching about the President getting a version of that.

    whembly (86df54)

  136. NEW YORK (AP) — Former President Donald Trump’s lawyers have asked the New York judge who presided over his hush money trial to set aside his conviction and delay his sentencing, scheduled for next week.
    ….
    In prior court filings, Trump contended he is immune from prosecution for conduct alleged to involve official acts during his tenure in office. His lawyers did not raise that as a defense in the hush money case, but they argued that some evidence — including Trump’s social media posts about former lawyer Michael Cohen — comes from his time as president and should have been excluded from the trial because of immunity protections.
    https://apnews.com/article/trump-hush-money-supreme-court-immunity-3d97d2e9497a5a208c1309aec7a0cd6a

    He had also claimed immunity in the E, Jean Carroll case on the basis that he was defending the reputation of the Presidency.

    Yeah, a conscienceless sociopath is just the person to grant immunity to, certain to count the nuanced angels dancing on the opinion authored by six pinheads, and not claim and act on absolute immunity for everything he does.

    nk (eee80d)

  137. whembly (#135 and others),

    Your stance, in general, is that the current court decision is inherent in the constitution — these are not new rights granted to the President. (Guess you are a Bob Barr unitary presidency kind of guy.) Since neither of us are lawyers, arguing this out will probably result in both of us sounding uninformed and stupid.

    Even you should agree that the ruling raises the stakes of the election, as it provides that there are less restraints on the Presidency than many thought (or imagined, if you prefer). Now you might say, that makes it super important that the President show that he still can function. I’m more concerned with someone who will not abuse his power. (See #119 above).

    This isn’t an election about inflation, tariffs, or immigration. It is about whether we just continue to muddle along or decide we just need a strong man to shake everything up and put all the bad people on the unemployment line if not in jail and hope that he won’t pick on me.

    The choice stinks. But it’s pretty obvious. I prefer muddle than to trust that the system can handle a Mussolini wannabe.

    Appalled (b1f725)

  138. Colonel Klink (ret) (96f56a) — 7/1/2024 @ 9:04 pm

    I’ve said here, repeatedly, that the AUMF wasn’t a good path. The semi-war it authorized left the matter of wartime rules ambiguous and didn’t offer a good way to declare the war over. Congress should rescind the AUMF now, replacing it if needed with something far less encompassing. Or perhaps just rescind it, forcing the President to justify any action he orders on its own merits (e.g. Reagan’s Libya bombing).

    Kevin M (a9545f)

  139. To me, this decision says three things:

    1. The president has absolute immunity over his Section 2 actions (although I wonder about taking a bribe to appoint an Ambassador)

    2. The president has presumptive immunity over other official acts, such as his management of executive departments or delegated authority (e.g. tariffs). He can be charged here, but the FIRST order of business is a determination of whether immunity applies.

    3. The president has no immunity over unofficial acts, such as exhorting a mob to intimidate Congressfolk.

    How is this fundamentally different from the qualified immunity that many government actors enjoy?

    Kevin M (a9545f)

  140. no American be deprived of life, liberty or property without due process of law,

    He got due process of law — the AUMF. Police shoot criminals all the time, and it’s allowed if it happens under conditions specified in the law and/or police regulations.

    Had Al Awlaki surrendered to US authorities, he would have been given a trial and if found guilty been punished under the law. HE didn’t. Instead he said “Come and get me, coppers!” and they did.

    Kevin M (a9545f)

  141. Yeah, a conscienceless sociopath is just the person to grant immunity to

    Well, nominate and elect better people.

    Kevin M (a9545f)

  142. Maybe we need a constitutional amendment allowing vetting of all presidential candidates as to mental and physical suitability. It’s not like that could be abused, right?

    Kevin M (a9545f)

  143. Trump NY sentencing to be delayed to allow time for him to file an immunity claim.

    Kevin M (a9545f)

  144. AIUI, Trump’s immunity motion involves evidence used at trial from his presidential correspondence.

    Kevin M (a9545f)

  145. whembly (#135 and others),

    Your stance, in general, is that the current court decision is inherent in the constitution — these are not new rights granted to the President. (Guess you are a Bob Barr unitary presidency kind of guy.)

    I don’t really have a stand per se… I’m just reading what the majority ruled in the Immunity case.

    I think I dig ACB’s concurrence/minor dissent than the full majority. In that she’s saying that POTUS doesn’t have express immunity per Constitution, but does have constitutional claims to challenge alleged criminal charges as unconstitutional. (which places the burden on POTUS).

    Whereas the majority, in short, gave qualified immunity to POTUS. (thus the government having the burden to pierce immunity claims).

    Since neither of us are lawyers, arguing this out will probably result in both of us sounding uninformed and stupid.

    Speak for yourself.

    This SCOTUS rule isn’t even that hard to read and understand.

    Even you should agree that the ruling raises the stakes of the election, as it provides that there are less restraints on the Presidency than many thought (or imagined, if you prefer).

    In practice, this really doesn’t change all that much.

    It’s just that SCOTUS chose to go the same route, namely qualified immunity, that is afforded to prosecutor, judges and public officials.

    I think I like ACB’s position more, (still marinating her ideas) as its much more neat and tidy textually…. but that ‘qualified immunity’ box is now open and I understand why the majority chose this route. It’s consistent with the judicial fiction that is Qualified Immunity.

    Now you might say, that makes it super important that the President show that he still can function. I’m more concerned with someone who will not abuse his power. (See #119 above).

    What you have is some sort of (non-enemy) Manchurian Candidate situation. Biden isn’t calling the shots. It’s obvious.

    That’s a problem, and moreso dangerous than someone you believe may/may not abuse his power.

    This isn’t an election about inflation, tariffs, or immigration. It is about whether we just continue to muddle along or decide we just need a strong man to shake everything up and put all the bad people on the unemployment line if not in jail and hope that he won’t pick on me.

    I disagree. It’s about all of that.

    Life hasn’t been good under the Biden era.

    That will definitely be on the ballot box as it should.

    The choice stinks. But it’s pretty obvious. I prefer muddle than to trust that the system can handle a Mussolini wannabe.

    Appalled (b1f725) — 7/2/2024 @ 7:47 am

    The choice does stink.

    But with Biden… that is not something to “muddle” through. I’d agree with you if it’s Harris, rather than Biden. But, a demented figurehead whereby the powers-that-be that is control Biden is a far danger that you appreciate.

    whembly (a43e5a)

  146. “Im not shocked by this ruling.”
    My problem is with the process…it does appear that a President can goof with the electoral process, evade impeachment because “it’s too late in his term”, and then evade prosecution by claiming a witch hunt and using endless delay tactics. There should be an accounting for the electoral mischief, and it should have been timely. Whatever the result. The Court could have accelerated the process as Jack Smith requested. The idea of official and unofficial is pretty obvious stuff. It’s quite the stretch to insinuate that swapping electoral votes was in any way official…or obstructing a Congressional proceeding. We can argue whether it elevates to criminal; we can’t argue that a President should be allowed to push Constitutionally-dumb schemes as part of Article II.

    nk: “Because the U.S. military is no saintlier than any other collection of murderers, rapists, and thieves who have rampaged across the Earth killing, raping, burning, and pillaging since the beginning of time.”

    Wow, that’s quite the slander….seems to casually dismiss much of the required sacrifice…and the code of ethics. There’s good and bad across society. Just as there are good and bad lawyers despite having a code of ethics there to. But a code does suggest an expectation and a self-policing. Personally, I don’t think an illegal order would be followed

    AJ_Liberty (86087a)

  147. All of this makes Biden’s decision to hog the stage awfuller.

    Kevin M (a9545f)

  148. This bit keeps coming back to me.

    Helter skelter in a summer swelter
    The birds flew off with a fallout shelter
    Eight miles high and fallin’ fast
    It landed foul on the grass
    The players tried for a forward pass
    With the jester on the sidelines in a cast
    Now, the halftime air was sweet perfume
    While sergeants played a marching tune
    We all got up to dance
    Oh, but we never got the chance
    ‘Cause the players tried to take the field
    The marching band refused to yield
    Do you recall what was revealed
    The day the music died?

    Kevin M (a9545f)

  149. evade prosecution by claiming a witch hunt and using endless delay tactics.

    2/3rds of the delay were at the DoJ before Smith was even appointed.

    Kevin M (a9545f)

  150. #140
    I get the point, and of course the AUMF has a lot of legal weight, but still don’t think it’s due process when the Executive gets to sentence an American citizen to death without a trial. If Awlaki was engaged in combat against the US (I don’t recall if he was) it would be different as of course our troops get to shoot back, but targeting someone with a drone strike seems like an execution, more like a Star Chamber proceeding than what the Constitution allows, or should allow anyway.

    RL formerly in Glendale (7a2d64)

  151. #145

    I don’t really have a stand per se… I’m just reading what the majority ruled in the Immunity case.

    Part of the art of legal opinion writing is asserting whatever the judge has in mind is in the Constitution, awaiting discovery by the wise justice wielding the pen. You objected to my assertion that the Court granted the Presidency some additional immunity he did not have.

    This SCOTUS rule isn’t even that hard to read and understand.

    Funny thing — lawyers disagree. There are now fights going on about the ability to prosecute a President for taking a bribe to deliver a pardon. (By the way, something yielding that result directly conflicts with Federalist 69 — “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.”)

    https://twitter.com/lee_kovarsky/status/1808153938832568617?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Etweet

    What you have is some sort of (non-enemy) Manchurian Candidate situation. Biden isn’t calling the shots. It’s obvious.

    That’s a problem, and moreso dangerous than someone you believe may/may not abuse his power.

    This is our fundamental disagreement. I accept that and move on. Biden isn’t drooling, by the way. He’s just too old for the job (as is Trump) and has about 6 good hours a day, per the reporting leaking out.

    Life hasn’t been good under the Biden era.

    That will definitely be on the ballot box as it should.

    A lot of bad happened because of COVID and lingering issues from how the government dealt with that. (See inflation). I think a lot of the bad feeling isn’t the economy, it’s MAGA and adjacent media complaining incessantly. I would prefer a resolution to immigration. Trump tossed that into the dumpster because that would interfere with his campaign. But Biden certainly allowed his left flank to talk him into opening the borders in an unacceptable fashion. By voting for him, I end up “accepting” that, but Trump dishes out a whole lot more unacceptable to me.

    Appalled (b1f725)

  152. The ruling is a net win for the Biden campaign and nevertrump because Trump will run his mouth about putting people in jail.
    He could easily say he believes there are some people who have done very bad things, but it would be best for our country if we move on-then move on
    But he can’t control his mouth. Trump has a very good shot to win, but his lack of a verbal filter could lose it for him at anytime

    steveg (8dac75)

  153. I get the point, and of course the AUMF has a lot of legal weight, but still don’t think it’s due process when the Executive gets to sentence an American citizen to death without a trial.

    al-Awlaki was not just any American, he served in an Al-Qaeda operational role, with involvement in numerous terrorist plots, including the including the 2009 Christmas Day airline bombing attempt in Detroit and the 2010 plot to blow up U.S.-bound cargo planes. He also had e-mail contacts with Nidal Hassan, the perpetrator of the Fort Hood Massacre, and served as an English language propagandist for Al-Qaeda. The US government designated him as a “Specially Designated Global Terrorist” and at the same time the UN Security Council in 2010 described him as a “leader, recruiter, and trainer for al-Qaeda in the Arabian Peninsula.”

    Had al-Awlaki been located in the United States he would have received due process, but he was located on the battlefield actively engaged in activities against the United States. The Fourth and Fifth Amendments don’t apply on foreign battlefields.

    ……….(A) targeted killing of a U.S. citizen who has joined al-Qa’ida or its associated forces would be lawful under U.S. and international law. Targeting a member of an enemy force who poses an imminent threat of violent attack to the United States is not unlawful. It is a lawful act of national self defense. Nor would it violate otherwise applicable federal laws barring unlawful killings in Title 18 or the assassination ban in Executive Order No. 12333. Moreover, a lethal operation in a foreign nation would be consistent with international legal principles of sovereignty and neutrality if it were conducted, for example, with the consent of the host nation’s government or after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted.
    ………
    ……….A use of force under such circumstances would be justified as an act of national self-defense. In addition, such a person would be within the core of individuals against whom Congress has authorized the use of necessary and appropriate force. The fact that such a person would also be a U.S. citizen would not alter this conclusion. The Supreme Court has held that the military may constitutionally use force against a U.S. citizen who is a part of enemy forces. See Hamdi, 542 U.S. 507, 518 (2004) (plurality opinion); id. at 587, 597 (Thomas, J., dissenting); Ex Parte Quirin, 317 U.S. at 37-38. Like the imposition of military detention, the use of lethal force against such enemy forces is an “important incident of war.” Hamdi, 542 U.S. at 518 (plurality opinion)…….Accordingly, the Department (of Justice) does not believe that U.S. citizenship would immunize a senior operational leader of al-Qa’ida or its associated forces from a use of force abroad authorized by the AUMF or in national self-defense.
    ……….
    The Due Process Clause would not prohibit a lethal operation of the sort contemplated here. In Hamdi, a plurality of the Supreme Court used the Mathews v. Eldridge balancing test to analyze the Fifth Amendment due process rights of a U.S. citizen who had been captured on the battlefield in Afghanistan and detained in the United States, and who wished to challenge the government’s assertion that he was part of enemy forces. ………The due process balancing analysis applied to determine the Fifth Amendment rights of a U.S. citizen with respect to law-of-war detention supplies the framework for assessing the process due a U.S. citizen who is a senior operational leader of an enemy force planning violent attacks against Americans before he is subjected to lethal targeting.
    ……….
    In view of these interests and practical considerations, the United States would be able to use lethal force against a U.S. citizen, who is located outside the United States and is an operational leader continually planning attacks against U.S. persons and interests, in at least the following circumstances: (1) where an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) where a capture operation would be infeasible-and where those conducting the operation continue to monitor whether capture becomes feasible; and (3) where such an operation would be conducted consistent with applicable law of war principles. In these circumstances, the “realities” of the conflict and the weight of the government’s interest in protecting its citizens from an · imminent attack are such that the Constitution would not require the government to provide further process to such a U.S. citizen before using lethal force.
    ………
    Similarly, assuming that a lethal operation targeting a U.S. citizen abroad who is planning attacks against the United States would result in a “seizure” under the Fourth Amendment, such an operation would not violate that Amendment in the circumstances posited here. ……
    ……….

    Rip Murdock (d2a2a8)

  154. There are now fights going on about the ability to prosecute a President for taking a bribe to deliver a pardon.

    You know, like a pardon to Marc Rich after his wife gave millions to the DNC.

    Kevin M (a9545f)

  155. I would prefer a resolution to immigration. Trump tossed that into the dumpster because that would interfere with his campaign.

    So would I. But neither side was offering a resolution. Once side offered a stopgap and the other side loaded the stopgap down with poison pills. A resolution involves a final status for the millions of illegals, the conditions imposed if any, and a thorough revamp of our unworkable immigration laws.

    Kevin M (a9545f)

  156. it would be best for our country if we move on-then move on

    But he can’t move on. He couldn’t even move on in that debate, always going on about BIden’s last answer. The man is self-centered in the extreme, so insecure that the least slight has to be avenged. An inferiority complex masked by a superiority bluster.

    Kevin M (a9545f)

  157. #154

    A lot of the left ties the original sin afflicting our country to Bush v. Gore. I tie it to Clinton’s decision to hang on at all costs after he was caught lying in a judicial poceeding.

    Appalled (b1f725)

  158. 155

    All I ask for is imigration law that we can agree to enforce.

    Appalled (b1f725)

  159. You know, like a pardon to Marc Rich after his wife gave millions to the DNC.

    ex-wife
    bribe sent to DNC

    Clintonesque

    steveg (8dac75)

  160. Pardons and appointments have always been suspect.

    Back before the IRS, the most coveted political appointment was Collector for the Port of New York.
    I wonder why

    steveg (8dac75)

  161. Kevin

    Your post on Marc Rich made me think about pardons, so I went to the link below
    https://www.businessinsider.com/most-controversial-presidential-pardons-commutations-in-us-history-2023-4

    Andrew Jackson tried to pardon George Wilson for the crimes of stealing mail and endangering a mail carrier, but Wilson refused to accept. The Supreme Court ruled the pardon could be rejected.
    Wilson was hanged for his crimes

    This made me think on a couple levels
    1. Odd
    2. Law enforcement and punishment have changed
    3. The Supreme Court got involved

    Another interesting pardon was Andrew Johnson in 1868 offering a blanket pardon for all Confederates and then backtracking and only pardoning the confederates who asked for one

    steveg (8dac75)

  162. @139

    To me, this decision says three things:

    1. The president has absolute immunity over his Section 2 actions (although I wonder about taking a bribe to appoint an Ambassador)

    Appointing Ambassador and accepting a bribe are two distinct things.

    No one could criminally charge POTUS for appointing anyone, as POTUS alone can do so via Article II. But, accepting a bribe would NOT fall under Article 2 actions, and thus should be held liable criminally (with proof of bribe of course).

    2. The president has presumptive immunity over other official acts, such as his management of executive departments or delegated authority (e.g. tariffs). He can be charged here, but the FIRST order of business is a determination of whether immunity applies.

    That’s my understanding as well.

    3. The president has no immunity over unofficial acts, such as exhorting a mob to intimidate Congressfolk.

    Correct too. But POTUS may have 1st Amendment claims though.

    How is this fundamentally different from the qualified immunity that many government actors enjoy?

    Kevin M (a9545f) — 7/2/2024 @ 8:25 am

    Precisely my question too.

    whembly (86df54)

  163. @143

    Trump NY sentencing to be delayed to allow time for him to file an immunity claim.

    Kevin M (a9545f) — 7/2/2024 @ 9:12 am

    That surprises me… Merchan should’ve rejected it immediately as none of the NY trials was over any Article 2 acts.

    whembly (86df54)

  164. @157

    #154

    A lot of the left ties the original sin afflicting our country to Bush v. Gore. I tie it to Clinton’s decision to hang on at all costs after he was caught lying in a judicial poceeding.

    Appalled (b1f725) — 7/2/2024 @ 11:44 am

    I’d go back further…

    To the Borking and technical lynching of Thomas (led by our current POTUS).

    Funny how politics is nothing more than the old adage of “what comes around, goes around”.

    whembly (86df54)

  165. How is this fundamentally different from the qualified immunity that many government actors enjoy?

    Since I said that, I’ve reconsidered. “Qualified immunity” for the President would be MUCH more favorable to the President than this.

    Why? Because to get past qualified immunity, you have to point to an exact matching case showing they should have known better, and there are few if any cases limiting what Presidents can do.

    Kevin M (a9545f)

  166. That surprises me… Merchan should’ve rejected it immediately as none of the NY trials was over any Article 2 acts.

    But some of the evidence at trial was from presidential communications, which is at least presumptively out of bounds.

    Kevin M (a9545f)

  167. To the Borking and technical lynching of Thomas (led by our current POTUS).

    They were getting even for Abe Fortas.

    Kevin M (a9545f)

  168. @165

    How is this fundamentally different from the qualified immunity that many government actors enjoy?

    Since I said that, I’ve reconsidered. “Qualified immunity” for the President would be MUCH more favorable to the President than this.

    Why? Because to get past qualified immunity, you have to point to an exact matching case showing they should have known better, and there are few if any cases limiting what Presidents can do.

    Kevin M (a9545f) — 7/2/2024 @ 1:13 pm

    That’s a very astute observation.

    whembly (86df54)

  169. I’m struck. Seems like Thomas is sending a message to Judge Cannon, as now she could use his dicta to dismiss the case.

    Paul Montagu (b7a39f) — 7/2/2024 @ 5:54 am

    I had to look it up to remember. Thomas is the Circuit Justice for the Eleventh Circuit. So if Aileen Cannon who is in the tank for Trump — a tank cannon? — dismisses the case and the DOJ appeals, Thomas will have his thumb on the scale no matter how the Circuit judges may be inclined to rule. At least delay it if not bump it up to the Supremes for decision.

    nk (a7f00b)

  170. @166

    That surprises me… Merchan should’ve rejected it immediately as none of the NY trials was over any Article 2 acts.

    But some of the evidence at trial was from presidential communications, which is at least presumptively out of bounds.

    Kevin M (a9545f) — 7/2/2024 @ 1:15 pm

    Was that presumption borne out of the Nixon case?

    whembly (86df54)

  171. @169

    I’m struck. Seems like Thomas is sending a message to Judge Cannon, as now she could use his dicta to dismiss the case.

    Paul Montagu (b7a39f) — 7/2/2024 @ 5:54 am

    I had to look it up to remember. Thomas is the Circuit Justice for the Eleventh Circuit. So if Aileen Cannon who is in the tank for Trump — a tank cannon? — dismisses the case and the DOJ appeals, Thomas will have his thumb on the scale no matter how the Circuit judges may be inclined to rule. At least delay it if not bump it up to the Supremes for decision.

    nk (a7f00b) — 7/2/2024 @ 2:25 pm

    Put the politics aside, please and humor me.

    Considering how Jack Smith was tapped by Garland to be the Special Counsel… an attorney who was not appointed/confirmed…

    Do you think Justice Thomas is right? Or not?

    Let’s play the hypothetical… let’s say Thomas was wrong and SCOTUS “blessed” what Garland did in selecting Smith as Special Counsel.

    …fast forward to a hypo 2nd Trump Term (or really any future GOP potus).

    What’s to stop Trump’s AG from tapping one of the following from conducting prosecution of the Bidens, Obamas and Clintons, who hasn’t been POTUS nominated/Senate confirmed as US Attorney:
    Rudy Giuliani
    Alina Habba
    Alan Dershowitz
    John Eastman
    Mike Davis (the honey badger)



    or even:
    Sidney Powell????

    Or maybe, just maybe… Trump’s defense attorney in Florida and even Justice Thomas might be on more solid ground than you give credit.

    Just a thought?

    whembly (86df54)

  172. Because it relates to his non-core duties, I imagine. I’d have to read the appeal. Some correspondence may have stronger protection that “executive privilege” especially after leaving office.

    Kevin M (a9545f)

  173. @172

    Because it relates to his non-core duties, I imagine. I’d have to read the appeal. Some correspondence may have stronger protection that “executive privilege” especially after leaving office.

    Kevin M (a9545f) — 7/2/2024 @ 2:44 pm

    Roger that bud… I need to read his new appeal when I get a chance.

    whembly (86df54)

  174. Do you think Justice Thomas is right? Or not?

    The DC Circuit answered that question five years ago when they rejected Roger Stone’s challenge on the legality of the Special Counsel, so the prevailing law says it’s right.
    As a lawyer friend of mine once said, another word for dicta is “bullsh-t”, but if a case goes to the Supreme Court, I expect Thomas to be writing the majority opinion.

    Paul Montagu (8a5990)

  175. @174

    The DC Circuit answered that question five years ago when they rejected Roger Stone’s challenge on the legality of the Special Counsel, so the prevailing law says it’s right.
    As a lawyer friend of mine once said, another word for dicta is “bullsh-t”, but if a case goes to the Supreme Court, I expect Thomas to be writing the majority opinion.

    Paul Montagu (8a5990) — 7/2/2024 @ 2:53 pm

    So consider my hypo above.

    Would you accept that a future GOP potus’s AG tapping Sidney Powell as Special Counsel to investigate Democrats?

    whembly (86df54)

  176. To the Borking and technical lynching of Thomas (led by our current POTUS).

    They were getting even for Abe Fortas.

    Kevin M (a9545f) — 7/2/2024 @ 1:16 pm

    That is quite a lag time.

    norcal (df08ac)

  177. Would you accept that a future GOP potus’s AG tapping Sidney Powell as Special Counsel to investigate Democrats?

    I would hope that they would find someone more competent and less ethically vulnerable to spend the taxpayers’ money on, but that’s about the only objection I would have.

    I’m not crazy about Jack Smith’s performance, either. He seems to have trouble in an adversarial system, which is to say ours, where he is not both judge and prosecutor like in the European system or where the judge is not on the side of the government.

    nk (15d18f)

  178. Clarence Thomas was replacing Thurgood Marshall, the first black Supreme Court Justice. I’ll keep it clean and say that Clarence Thomas was like Thurgood Marshall the way George H. W. Bush was like Lyndon B. Johnson.

    nk (15d18f)

  179. Would you accept that a future GOP potus’s AG tapping Sidney Powell as Special Counsel to investigate Democrats?

    No, of course not. Nor John Eastman. Are you seriously arguing that Smith is of the same sort of whackadoodle Yahoo as Sidney Powell?

    I could accept a GOP lawyer of repute, however. What is your point? That Smith would have been unlike to be confirmed?

    Kevin M (a9545f)

  180. Clarence Thomas had cred as a black southerner during Jim Crow. That he was appointed by Bush only shows that elections matter. I’m getting the feeling that Thomas has had about as much whitesplaining as he can stand.

    Kevin M (a9545f)

  181. Thurgood Marshall’s words are so apropos right now.

    https://en.wikipedia.org/wiki/Thurgood_Marshall

    When asked at a press conference what was wrong with him that would cause him to leave the Court, he replied: “What’s wrong with me? I’m old. I’m getting old and coming apart!”

    Here’s looking at you, Joe.

    norcal (df08ac)

  182. Judge Aileen Cannon is carefully examining every question. I don’t know if it is true that this was settled.

    The question is: What is the universe from which an Attorney General can select a special counsel?

    Is it limited to people who were confirmed by the Senate and hold some position at DOJ?

    Sammy FInkelman (e4ef09)

  183. Trump used this ruling to postpone his sentencing.

    It’s really frivolous, as his payment of money to Michael Cohen has nothing to do with his presidential authority, but his sentencing will no longer be on July 11 but September 18 or later, so they can hold a hearing.

    Sammy FInkelman (e4ef09)

  184. What’s to stop Trump’s AG from tapping

    anyone at all as a prosecutor?

    Basically politics or a written by Clarence Thomas Supreme Court opinion.

    Sammy FInkelman (e4ef09)

  185. The question is: What is the universe from which an Attorney General can select a special counsel?

    The answer is this one, as it’s a Section 2 responsibility of the executive branch and has been the case all the way back to 1875.

    Colonel Klink (ret) (96f56a)

  186. Trump used this ruling to postpone his sentencing.

    It’s really frivolous, as his payment of money to Michael Cohen has nothing to do with his presidential authority, but his sentencing will no longer be on July 11 but September 18 or later, so they can hold a hearing.

    Sammy FInkelman (e4ef09) — 7/2/2024 @ 4:39 pm

    I’m a little surprised, I would think that an triumphal appearance at the convention following sentencing (to prison, in order to make his martyrdom complete) would be just the kind of spectacle that Trump enjoys.

    Rip Murdock (d2a2a8)

  187. #153
    Thanks for the DOJ analysis. Even though I agree with the ultimate result, as Awlaki was not a good guy and probably deserved it, I’m not happy with, and don’t believe the Constitution supports, the idea that a “high ranking” official can unilaterally decide that a US citizen living abroad should be killed. I hate making these comparisons because I believe that we in fact are the “good guys” and our foreign adversaries are not, but the principle the DOJ enunciated sounds like something Putin might say to justify the murder of a Russian expatriate. The executive, through the DOJ, concluding that the executive has the power to order an extrajudicial execution does not strike me as an adequate guarantee of due process, even though the DOJ analysis reflects some serious and careful consideration of the issues.

    Anyway, to continue in this vein would probably require me to propose a feasible alternative, which at least for now escapes me. Hopefully an Awlaki situation doesn’t come up again.

    RL formerly in Glendale (7a2d64)

  188. Here are the details on why the court allowed the sentencing to be postponed:

    Yet Mr. Trump’s lawyers have argued that prosecutors built their case partly on evidence from his time in the White House. And under the Supreme Court’s new ruling, prosecutors not only cannot charge a president for any official acts, but also cannot cite evidence involving official acts to bolster other accusations.

    In a letter to Justice Merchan, Mr. Trump’s lawyers on Monday asked the judge to postpone the sentencing while he considered their request to set aside the conviction. In response, the district attorney’s office wrote that prosecutors did not oppose Mr. Trump’s request.

    “Although we believe defendant’s arguments to be without merit, we do not oppose his request for leave to file and his putative request to adjourn sentencing pending determination of his motion,” wrote Joshua Steinglass, one of the assistant district attorneys who tried the case against the former president.

    Mr. Trump’s lawyers proposed filing their court papers on July 10, and the district attorney’s office said it would respond two weeks later.

    Justice Merchan granted those requests on Tuesday and said he would rule on Mr. Trump’s motion to set aside the verdict on Sept. 6. Then, if a sentence “is still necessary,” the judge will impose it on Sept. 18, he said.

    Kevin M (a9545f)

  189. The judge is letting Trump’s defense to throw some stuff at the wall, it’s going to get denied, he’ll be sentenced.

    Colonel Klink (ret) (96f56a)

  190. I had to look it up to remember. Thomas is the Circuit Justice for the Eleventh Circuit. So if Aileen Cannon who is in the tank for Trump — a tank cannon? — dismisses the case and the DOJ appeals, Thomas will have his thumb on the scale no matter how the Circuit judges may be inclined to rule. At least delay it if not bump it up to the Supremes for decision.

    nk (a7f00b) — 7/2/2024 @ 2:25 pm

    On your last point, I see a lot of hand wringing over delays the immunity decision will cause, and frankly I don’t get it (i.e., it’s the hand-wringing I don’t get; the delays themselves are certain).

    If, as seems likely, Trump is re-elected, does anyone in the known universe doubt he’ll fire Smith and order all federal charges against him dropped? Since he’s already obtained delays that assure no verdict before Inauguration Day, who cares if his doomed prosecutions are delayed further? Maybe he’ll wait for the appeals to be adjudicated before he orders the cases closed, and maybe he won’t, but that he’ll kill them sooner or later isn’t in question. For some time now, the only possibility of prosecuting and punishing him has required that he first be defeated at the polls, and that door closed Thursday.

    lurker (c23034)

  191. The judge is letting Trump’s defense to throw some stuff at the wall, it’s going to get denied, he’ll be sentenced.

    Colonel Klink (ret) (96f56a) — 7/2/2024 @ 7:25 pm

    Ken White isn’t so sure:

    Josh and I discuss how this snarls all of the criminal cases against Trump — even those that are mostly about events that occurred before or after his presidency — ensuring years more of litigation before trial and, quite possibly, requiring the overturning of his New York conviction, which he has already demanded. (emphasis mine)

    lurker (c23034)

  192. More from Popehat, expressing my own views and, if you’ve followed our host’s Twitter feed, you know they’re his as well:

    [T]he Court’s gesture toward possibly allowing some prosecutions in the future is illusory. The undefined and seemingly open-ended category of “core functions” that enjoy absolute immunity; the broad and ill-defined category of “official acts” that enjoy at lest a presumption of immunity and possibly full immunity; the prohibition on considering motive behind official acts; and the prohibition on using official acts as evidence of intent or knowledge — they all combine to mean that the next president (which very well may be Donald Trump) can break criminal laws at will. With the current Congress, impeachment is almost certainly impossible, and now criminal consequences are off the table. So, great.

    lurker (c23034)

  193. And just to close the loop, here’s Pat on Twitter:

    I have read the majority opinion, the concurrences, and Sotomayor’s dissent. Still need to read Jackson’s. The majority has crowned a king, and smugly dismissed concerns about the consequences as “fear mongering.” One of the most shameful decisions in the Court’s history.[…]

    Our country will continue, at least in name, but the central principle of the founding—the idea that no man is above the law—has been taken from us.[…]

    The majority sees more danger in prosecuting a criminal president than it sees in a criminal president.[…]

    The Court has said: “no man is above the law”—and you know it’s true, because “the law” is that this one man *is* above the law!

    Indeed.

    lurker (c23034)

  194. but the central principle of the founding—the idea that no man is above the law

    Was that really the central principle? I though “liberty” was in there someplace.

    Kevin M (a9545f)

  195. “If the President does it, it’s not illegal.”

    Kevin M (a9545f)

  196. It may not be the central principle, but it’s one of them.

    lurker (c23034)

  197. “If the President does it, it’s not illegal.”

    For all the decades that’s been a punchline for which Nixon was universally and properly mocked, it’s just SMDH unbelievable that it’s now actually the law.

    lurker (c23034)

  198. People may have mocked Nixon, but he wasn’t wrong. This ruling just brought it out in the open.

    Kevin M (a9545f)

  199. He was wrong for 50 years until yesterday when the Court all but explicitly overruled US v Nixon.

    lurker (c23034)

  200. @179

    Would you accept that a future GOP potus’s AG tapping Sidney Powell as Special Counsel to investigate Democrats?

    No, of course not. Nor John Eastman. Are you seriously arguing that Smith is of the same sort of whackadoodle Yahoo as Sidney Powell?

    I could accept a GOP lawyer of repute, however. What is your point? That Smith would have been unlike to be confirmed?

    Kevin M (a9545f) — 7/2/2024 @ 3:31 pm

    My point, is Justice Thomas’ point.

    If you’re going to give someone the power of the US Attorney, with near unlimited budget, that is the DOJ’s Special Counsel. Then, it must be someone who’s already been nominated by the POTUS and confirmed by the Senate.

    Special Counsel office is a far more powerful office, than that of the regular US Attorney office (locked into their respective states). At a minimum, it should be someone who was appointed/confirmed.

    Otherwise, we’d would have the likes of Sidney Powell heading the SCO.

    whembly (86df54)

  201. @188

    Here are the details on why the court allowed the sentencing to be postponed:

    Yet Mr. Trump’s lawyers have argued that prosecutors built their case partly on evidence from his time in the White House. And under the Supreme Court’s new ruling, prosecutors not only cannot charge a president for any official acts, but also cannot cite evidence involving official acts to bolster other accusations.

    In a letter to Justice Merchan, Mr. Trump’s lawyers on Monday asked the judge to postpone the sentencing while he considered their request to set aside the conviction. In response, the district attorney’s office wrote that prosecutors did not oppose Mr. Trump’s request.

    “Although we believe defendant’s arguments to be without merit, we do not oppose his request for leave to file and his putative request to adjourn sentencing pending determination of his motion,” wrote Joshua Steinglass, one of the assistant district attorneys who tried the case against the former president.

    Mr. Trump’s lawyers proposed filing their court papers on July 10, and the district attorney’s office said it would respond two weeks later.

    Justice Merchan granted those requests on Tuesday and said he would rule on Mr. Trump’s motion to set aside the verdict on Sept. 6. Then, if a sentence “is still necessary,” the judge will impose it on Sept. 18, he said.

    Kevin M (a9545f) — 7/2/2024 @ 6:49 pm

    Kev has made me re-evaluate my original position.

    In light of the recent SCOTUS ruling, it looks like Merchand has an off ramp to declare a mistrial, as he allowed into court and jury instructions presidential communications that was NOT given a chance to determine if it was official or not.

    I think this borks the DC and Georgia case as well and… possibly even the FL documents case (excepting the obstructing charges).

    whembly (86df54)

  202. Special Counsel office is a far more powerful office, than that of the regular US Attorney office (locked into their respective states). At a minimum, it should be someone who was appointed/confirmed.

    Except that conflicts with established law, and would require Thomas argument to be exactly the opposite of his unitary executive argument in this and a dozen other cases. Thomas is a hack, so consistency and logic are fairly foreign to him, as well as ethics and a solid understanding of the founding principles.

    Colonel Klink (ret) (96f56a)

  203. The drumbeat of freedom used to be “innocent until proven guilty.” Is it now “no man is above the law?” “I was blind, but now, I see.” – Justice
    ——-
    I’ll take Manhattan, the Bronx and Staten Island, too.

    It’s so beautiful walking through the zoo.

    felipe (44e42a)

  204. @193 “Our country will continue, at least in name, but the central principle of the founding—the idea that no man is above the law—has been taken from us.[…]”

    This was never the central principle. The founders were personally aware of how the law could be abused. The central principle was limited government with the people as the ultimate check on power, (not prosecutors from one branch) and this ruling is in keeping with that.

    lloyd (a3fdf9)

  205. @202

    Except that conflicts with established law, and would require Thomas argument to be exactly the opposite of his unitary executive argument in this and a dozen other cases. Thomas is a hack, so consistency and logic are fairly foreign to him, as well as ethics and a solid understanding of the founding principles.

    Colonel Klink (ret) (96f56a) — 7/3/2024 @ 5:56 am

    Nothing here is providing a rebuttal.

    Please try again.

    whembly (86df54)

  206. Except that conflicts with established law, and would require Thomas argument to be exactly the opposite of his unitary executive argument in this and a dozen other cases.

    Colonel Klink (ret) (96f56a)

  207. @206

    Except that conflicts with established law, and would require Thomas argument to be exactly the opposite of his unitary executive argument in this and a dozen other cases.

    Colonel Klink (ret) (96f56a) — 7/3/2024 @ 6:21 am

    Okay, can you show your work though?

    *How* would it conflict with established law?

    *Why* it would be the opposite of this unitary executive theory?

    *What* dozen of other cases?

    whembly (86df54)

  208. Oh my goodness, Whembly! If Klink answered those questions he might actually present a persuasive argument.

    felipe (e0a511)

  209. Would you accept that a future GOP potus’s AG tapping Sidney Powell as Special Counsel to investigate Democrats?

    If an AG is going to make the preposterously bad decision of picking Ms. Powell to investigate something, the AG should be able to do so. She reports directly to him, so the buck stops at the AG. There are arguments that question whether the SC is actually an officer subject to the Appointments Clause, and they’re arguments should not be settled by dicta from a single partisan judge.

    Paul Montagu (6dd6cb)

  210. @209

    If an AG is going to make the preposterously bad decision of picking Ms. Powell to investigate something, the AG should be able to do so. She reports directly to him, so the buck stops at the AG. There are arguments that question whether the SC is actually an officer subject to the Appointments Clause, and they’re arguments should not be settled by dicta from a single partisan judge.

    Paul Montagu (6dd6cb) — 7/3/2024 @ 7:28 am

    Yeah, I don’t think AG should circumvent the Appointment Clause.

    …and it’s far from settled either.

    Hence why Judge Cannon is seemingly doing her due diligence in establishing the record to make such a determination.

    What I don’t understand, is that let’s say all the courts says Jack Smith was improperly tapped and can’t continue to prosecute. That doesn’t mean the case is over… Garland can simply tap an existing appointed/confirmed US prosecutor and continue the case.

    whembly (86df54)

  211. @208

    Oh my goodness, Whembly! If Klink answered those questions he might actually present a persuasive argument.

    felipe (e0a511) — 7/3/2024 @ 6:33 am

    Just trying to help a fella out. 😉

    whembly (86df54)

  212. Yeah, I don’t think AG should circumvent the Appointment Clause.

    It’s not a matter of matter of circumvention, it’s a matter about whether it even applies. But like I said about dicta and a single partisan judge.
    https://www.justsecurity.org/61227/constitutional-challenge-special-counsel-mueller-post-no-2-office-appointments-clause-applies/

    Paul Montagu (6dd6cb)

  213. It doesn’t matter what the established law is. Trump’s gerbils will make up whatever they want.

    nk (117916)

  214. Anyway, here’s the DC Circuit opinion in the case which Paul referenced @212.

    TL;DR [T]he Congress may by Law vest Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
    U.S. Const. art. II, § 2, cl. 2.

    nk (9e5b9f)

  215. Whembly @ 201, considering the ramifications of the immunity case:

    I think this borks the DC and Georgia case as well and… possibly even the FL documents case (excepting the obstructing charges).

    I have to ask if this actually bothers you. I have to wonder why a political tendency anxious to dismantle the administrative state now wants to concentrate more power in the executive.

    Appalled (88a1a3)

  216. @215

    Whembly @ 201, considering the ramifications of the immunity case:

    I think this borks the DC and Georgia case as well and… possibly even the FL documents case (excepting the obstructing charges).

    I have to ask if this actually bothers you.

    That the cases are mostly falling apart?

    Eh… not really, since I recognize that most of this political lawfare, treating Trump differently than every other President.

    I don’t buy into arguments that Trump is this unique horrible person that would destroy this country. I have more faith in our constitutional order.

    I have to wonder why a political tendency anxious to dismantle the administrative state now wants to concentrate more power in the executive.

    Appalled (88a1a3) — 7/3/2024 @ 10:53 am

    This isn’t new. It’s always been this way.

    It just took this long for a controversy to appear before SCOTUS to rule on something that was always there. (namely POTUS has criminal immunity for official “good faith” acts).

    whembly (86df54)

  217. Former crack head ? hunter now advising joe and sitting in presidential meetings! Woodrow wilson again!

    asset (e04d5e)

  218. @214

    Anyway, here’s the DC Circuit opinion in the case which Paul referenced @212.

    TL;DR [T]he Congress may by Law vest Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
    U.S. Const. art. II, § 2, cl. 2.

    nk (9e5b9f) — 7/3/2024 @ 9:13 am

    Great. Good thing DC Circuit opinions never gets overturned.

    …oh wait.

    You do know what you are advocating for…right?

    AG Garland could tap *YOU* as Special Counsel to investigate/prosecute “x”.

    Would that be a good thing? Maybe for you… but will it be a good thing for America that future AGs can simply tap anyone they want to investigate their political opponent? Having FAR MORE power and budget than even an US Attorney nominated by the POTUS and confirmed by the Senate?

    The key bit is the following:

    The Appointments Clause requires that all federal offices “not . . . otherwise provided for” in the Constitution—every office other than the president—must be “established by Law,” by Congress.

    After reading Thomas’ and other amici briefs (ie, Meese)… the basic premise of the arguments is that SC Smith is exercising the massive prosecutorial powers of the Executive Branch from inside an “Office” of the United States, as only “Officers” of the United States have the authority to act on behalf of the DoJ in the way he has acted, such as:
    -convene a grand jury
    -gather evidence
    -seek an indictment
    -prosecute the indictment in a federal district court.

    The DoJ and the AG were both created by Congress and given the authority to exercise those powers. Congress has also created many other “Offices” within the DoJ that are to be headed up by “Officers of the United States” nominated by the President and confirmed by the Senate.

    Those include the 93 “US Attorneys.”

    But there is no “Office of Special Counsel” within the DoJ that was created by Congress. That “Office” is a DoJ regulation put in place by for AG J. Reno during the Clinton Administration. No one can convincingly argue that this current iteration of the “Office of Special Counsel” is truly an “Office of the United States” in the same sense as a U.S. Attorney.

    Furthermore Jack Smith has never been nominated by a President and confirmed by the Senate to be an “Officer” of the United States.

    The AG can certainly create positions within DoJ, those positions are normally “inferior officers” or “employees.” However, neither of which can wield the prosecutorial authority of the Executive in the same manner as SC Smith has been able to via the DoJ’s own regulation of the “Office of Special Counsel”.

    The AG *is* allowed to re-allocate responsibilities between already existing Offices and Officers, which is why moving a Senate confirmed U.S. Attorney into a position as “Special Counsel” with a specific mission or area of responsibility is different than bringing in a private citizen to do the same.

    All Garland had to do is tap an existing US Attorney. But because he didn’t, he allowed the Trump defense an opportunity to challenge the constitutionality of his charges simply because Garland tapped a private citizen, rather than an existing US Attorney.

    I think there’s merits to review this.

    whembly (86df54)

  219. Which meetings? I think one argument Jill has for Joe not quitting is that if he does, Hunter Biden may relapse, and the longer he stays president, and off drugs, the better. Or maybe Joe Biden does not yet want o pardon his son. But this is probably so that there is someone Joe Biden trusts who can remind him of what was said.

    Sammy Finkelman (c2c77e)

  220. @193 “Our country will continue, at least in name, but the central principle of the founding—the idea that no man is above the law—has been taken from us.[…]”

    This was never the central principle. The founders were personally aware of how the law could be abused. The central principle was limited government with the people as the ultimate check on power, (not prosecutors from one branch) and this ruling is in keeping with that.

    lloyd (a3fdf9) — 7/3/2024 @ 6:01 am

    That anyone would claim that “no man is above the law” isn’t a founding principle is gob smacking.

    lurker (c23034)

  221. @202

    Except that conflicts with established law, and would require Thomas argument to be exactly the opposite of his unitary executive argument in this and a dozen other cases. Thomas is a hack, so consistency and logic are fairly foreign to him, as well as ethics and a solid understanding of the founding principles.

    Colonel Klink (ret) (96f56a) — 7/3/2024 @ 5:56 am

    Nothing here is providing a rebuttal.

    Please try again.

    whembly (86df54) — 7/3/2024 @ 6:05 am

    The rebuttal is that dicta isn’t law. Josh Blackman and Set Tillman made Thomas’ argument in an amicus brief, and the majority ignored it. No one can stop Thomas from blathering on Supreme Court letterhead about anything he wants, but until five justices put it in an opinion, the DC Circuit holding is law and Thomas’ blather is just blather.

    lurker (c23034)

  222. Trump’s crimes are “unique”, no other person having been or running for the presidency has tried to subvert the constitution to stay in office via a coup.

    His state court charges continue to stem from his personal crimes and their coverup.

    I still don’t see any of the people claiming “lawfare” also claiming he didn’t do it. Mainly because he did it out and the open and dared anyone to hold him to account. Lots of them just spout tweeters/bookface level, but when you call them on their complete lack of understanding, they want you to tutor them. How about this, why don’t you research it by reading federal law, the constitution, all things that might be more reliable than uncle Bob’s Facebook post of a meme picture, and are free to read online.

    Colonel Klink (ret) (96f56a)

  223. Colonel Klink (ret) (96f56a) — 7/3/2024 @ 2:22 pm

    Trump’s crimes are “unique”, no other person having been or running for the presidency has tried to subvert the constitution to stay in office via a coup.

    A peaceful (and doomed) attempted coup. The riot was someone else’s idea

    Sammy Finkelman (e4ef09)

  224. A peaceful (and doomed) attempted coup. The riot was someone else’s idea

    As I said, coup, whether successful or not. Because the attempted murder (of democracy) didn’t succeed, doesn’t make it not a crime.

    Colonel Klink (ret) (96f56a)

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