Supreme Court To Hear Trump DC Case Immunity Defense On Schedule Making Trial Before Election Unlikely
SCOTUS to hear case on the merits “limited to the following question: Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
The DC federal court case against Donald Trump involves his alleged violation of law in trying to overturn the 2020 election. As I wrote from the moment of the case, and many times thereafter, the case is fundamentally misunderstood and mistaken: Trump is not charged with insurrection or even causing the J6 riot; and the central theory of the case, that seeking to overturn an election in itself is illegal is not true, and therefore Trump is being charged with conspiracy to do something that is not illegal, Trump DC Indictment – Where is the crime?
All that aside, the case was moving towards a March 4 trial when Trump appealed denial of his defense that the conduct alleged was covered by presidential immunity. Special Counsel Jack Smith sought to go directly to the Supreme Court, to try to keep the trial on track, but was rejected in favor of allowing the Court of Appeals first to consider the issue. To no one’s surprise, the Court of Appeals rejected the immunity defense, and Trump sought a stay from the Supreme Court preventing the Appeals Court issuing a “mandate” for the case to proceed to trial pending the Court taking the case on the merits.
Today SCOTUS granted the stay and treated it as a grant of certiorari to hear the case on the merits.
The application for a stay presented to The Chief Justice is referred by him to the Court. The Special Counsel’s request to treat the stay application as a petition for a writ of certiorari is granted, and that petition is granted limited to the following question: Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. Without expressing a view on the merits, this Court directs the Court of Appeals to continue withholding issuance of the mandate until the sending down of the judgment of this Court. The application for a stay is dismissed as moot.
The case will be set for oral argument during the week of April 22, 2024. Petitioner’s brief on the merits, and any amicus curiae briefs in support or in support of neither party, are to be filed on or before Tuesday, March 19, 2024. Respondent’s brief on the merits, and any amicus curiae briefs in support, are to be filed on or before Monday, April 8, 2024. The reply brief, if any, is to be filed on or before 5 p.m., Monday, April 15, 2024.
With an April 22 argument, even a quick decision would mean, assuming Trump loses on the defense, that a trial in DC prior to the election is doubtful, as there is a lot of work to be done before trial, and the March 4 trial date was unikely even without the appeals. Of course, if Trump wins in the Supreme Court, the case likely is over.
MORE TO FOLLOW
TRUMP: "Legal Scholars are extremely thankful for the Supreme Court’s Decision today to take up Presidential Immunity. Without Presidential Immunity, a President will not be able to properly function, or make decisions, in the best interest of the United States of America." https://t.co/kYl8y3weoB pic.twitter.com/zXSTyhJmyU
— Breaking911 (@Breaking911) February 29, 2024
The NY Times notes that the fasted this could get to trial would be right before the election:
In settling on the week of April 22, the court picked the last three scheduled argument sessions of its current term and seemed to indicate that its decision would follow before the end of its current term, in late June.
That does not mean the trial would start right away if Mr. Trump lost. Pretrial proceedings, currently paused, must first be completed. By some rough calculations, the trial could be delayed until late September or October, plunging the proceedings into the heart of the election.
Democrats are bigly mad that the case may not get to trial before the election.
The Supreme Court is placing itself on trial with its decision to hear the former president’s total immunity claim. It remains to be seen whether the justices will uphold the fundamental American value that no one is above the law – not even a former president.
— Nancy Pelosi (@SpeakerPelosi) February 28, 2024
The Supreme Court taking Trump's immunity appeal is a major reward for legal delay tactics that may moot the entire case.
— Ari Melber (@AriMelber) February 28, 2024
To put together the two major stories from today, as I've said many times before: MITCH MCCONNELL DIDN'T STEAL THE SUPREME COURT FOR NOTHING
— Elie Mystal (@ElieNYC) February 28, 2024
"Former President Trump's effort to run the clock has a partner in the Supreme Court at this point." pic.twitter.com/bjgbTxA1RP
— Matthew Gertz (@MattGertz) February 28, 2024
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Comments
“to what extent does a former President enjoy presidential immunity”
Trump says completely, Smith says not at all. Can’t see the Court agreeing with either, but can see that a president gets a lot of slack before the red line is crossed.
If the Court goes the other way, lawfare will become the norm, and it will not stop with politics.
Challenging an election as the article points out is not illegal.
The issue is transcendant, however, as identified by the Court, not limited to an election challenge, but presidential conduct overall. There should not be a chill on action for fear of prosecution for almost all matters,
Yet.
Subotai Bahadur
I don’t believe Trump’s lawyers have ever argued he enjoys “complete immunity’ (although I’ve heard Trump himself use that phrase…which is very Trump). Instead, they’ve leaned heavily into the language used in the earlier Nixon case, meaning a president would enjoy immunity for acts executed in his official capacity as president….which makes a lot of sense, to me, for the very reason you cite; absent that grant of immunity, things are gonna get cray-cray for future presidents.
I think this is an important point because the left keeps repeating that line for the low-info voters and ignoring the reality that the Court has already created immunity for the president on civil actions.
Not calling for the Court to reject immunity. However,
his legal team suggested that even directing SEAL Team Six to kill a political opponent or selling pardons would be actions barred from prosecution given a former executive’s broad immunity to criminal prosecution. Unless first impeached and convicted.
I believe it was the government lawyer who made those arguments not Trump’s lawyers.
“The hypothetical was presented to Trump attorney John Sauer who answered with a “qualified yes” that a former president would be immune from prosecution on that matter or even on selling pardons.”
https://thehill.com/regulation/court-battles/4398223-trump-team-argues-assassination-of-rivals-is-covered-by-presidential-immunity/
Of course, it’s a red herring. The same kind of idiocy that no one is above the law as you hold someone below it.
It was a reductio ad absurdum question posed by Judge Florence Pan of the D.C. People’s Revolutionary Circuit at oral argument,
Nixon was for civil cases, Trump is charged criminally
Right. The first time the Court had to grapple with this immunity issue in a substantive way was Nixon…because it had really never come up before. The Court found the Executive does enjoy immunity from civil lawsuit for actions he took within the scope of his official capacity as president. The belief of Trump’s legal team is that the court will apply a similar line of reasoning for this novel criminal prosecution of a former president.
To me the redline disappears after impeachment and conviction in the Senate. That’s the legal remedy and after that a president can be prosecuted. Without the senate conviction, I think the president has to have significant official immunity in order to execute the office. The check on this power is The Congress. Otherwise, every president will be massively indicted in several jurisdictions, both at state and federal levels, as soon as they do anything in office. It will never end. Setting the bar at impeachment and conviction sets it very high but it follows the constitution.
Agreed. See comment above.
It appears that the Constitution says, in effect, that you first have to be impeached and then convicted by 2/3 of a jury of Senate peers, before you can be convicted by a unanimous jury of 12 citizens. That seems pretty reasonable. But what about an action that commences while in office and continues afterward, like improper retention of classified documents – depends on whether or not you are a Democrat?
No, it doesn’t say that at all. See my long comment below.
The Constitution is quite clear, only after a president is removed through impeachment, until and unless, a president has immunity
Not to be argumentative, but if it was clear, why is it before the Court?
Trump’s argument makes sense, but should there be unlimited criminal license if Congress fails to take what is a political act?
In this case he was impeached and acquitted. Perhaps that should be determinative. These days, who knows what will happen?
Because Trump
Period
It is before the court….well……because it is Donald Trump and also because the American communist party is wiping it’s feet on our Constitution. They think it is obsolete as it keeps them from gaining total control of the country and and flushing liberty down the toilet. They are truly an evil crowd.
Not only is it not clear, it’s not even murky. The constitution does not say this at all. See my long comment below.
Some think it unclear, because the Constitution is actually silent on what might happen when a criminal is in office and is not removed via impeachment.
I believe the language in the Constitution isn’t limiting. I believe it’s declaratory. It means that double jeopardy doesn’t apply (because impeachment is a political process, not a judicial process) even if the person impeached is actually removed from office. (And this is all the Constitution says. It is silent on what happens in other scenarios. It says neither that there must be a conviction in order to try, nor does it say a failed – or no – impeachment insulates the president from prosecution. These interpretations create an opportunity for intentional abuse – see below – that I think was hardly the intent of the authors.) Like the 2nd Amendment’s militia clause, it’s meant to be illustrative, rather than limiting. The declaration is saying, “Even in this situation, where one might expect double jeopardy to apply to impeachment and removal, it does not” suggesting that double jeopardy is likewise not invoked by any other result. (As the militia clause indicates “a militia is useful,” and it does not say “a militia is the only reason for the right to arms.” It’s a example of the principle.)
Look at it this way. There’s a president in office selling influence to foreign adversaries. If his party controls either chamber of Congress, the House could refuse to impeach him or the Senate could refuse to convict. According to the “limiting” interpretation of impeachment, this would result in the insulation of that person from all criminal liability after leaving office. Does anyone reading this think that the authors of the Constitution intended the document to be interpreted in such a way as to allow this abuse? I, personally, think not. I think a proper reading of the Constitution avoids such shenanigans. I believe the proper reading is that a president:
1. The purpose of impeachment and removal is to protect the Republic and the business of government from disruptions that can be caused by having a criminal in a position of public trust. Congress weighs whether or not removal will cause less disruption than continuance in office. In any event, the judgement is political in nature, so the rules of criminal (judicial) proceeding don’t apply.
2. Even a successful impeachment (resulting in removal from office) does not invoke “double jeopardy”
3. Neither the failure to impeach nor the failure to remove a president insulates him from criminal liability (on the same principle that permits trial in #2 – impeachment and removal is a political process, not a judicial process, and neither action nor inaction on Congress’ part has any effect on criminal liability)
Also, complete immunity is obviously not a “thing,” otherwise there would be no circumstances under which a former POTUS can be tried for crimes committed while in office (any reading of the impeachment language admits that a FPOTUS can, in fact, remain criminally liable for some acts while in office). Also, a president can theoretically pardon himself before leaving office, making all of the above irrelevant!
Actually the answer is either FULL immunity or NO immunity which is applied equally to ALL Presidents, not just the ones Democrats want to protect.
Full immunity is obviously the most best way forward as that protects EVERY President from what is happening today when you have a fully weaponised Government fully engaged in, figuratively…or is it, killing their main political rival out of spite.
There would have to be a crime involved, he didn’t commit one
Turley said it best.
“If you take a red pen to protected free speech in this indictment, it would be reduced to a virtual haiku.”
Will be entertaining to see how this affects Obama and his ‘droning’ of an American citizen….
I think it will be ruled that Obama is covered by Leftist Privilege.
Subotai Bahadur
Barry, peace be upon him, belongs to the protecte(D) class.
The court doesn’t see its role as election interference so delay is judicial modesty.
I wish this line of thought would be more aggressively explored by others in conservative media, particularly on Fox. It’s NEVER really discussed. Smith has essentially criminalized (Republican) politicians from questioning the results of an election. It’s insane.
Agree on all but Fox has not been conservative for many years.
Al Gore did the same. Those with TDS would say, “But he went through the courts.” But the right to petition government isn’t restricted to the courts. And there’s nothing you can’t ask a government official to do for you – it’s up to the official to inform you that what you’re asking for is illegal, unethical, or impossible. The exercise of a right can’t be converted to a crime. Like your momma may have said, “It never hurts to ask.”
Fox?
Paul Ryan’s Fox ?
Please
That thumping sound you’re hearing is millions of Democrats beating their heads against walls in sheer frustration….
I still say if the framers didn’t intend the president to have immunity, then why give him the power to pardon himself ?
if they rule against Trump, from here on in, every president will pardon himself before he leaves office
and it will become an accepted thing
something I seriously doubt that the framers had in mind
They didn’t explicitly give him the power to pardon himself. It probably never occurred to them. Maybe if they’d noticed that loophole they’d have plugged it. Maybe. But the fact is that the pardon power is plenary, so it does of necessity include himself.
But official immunity didn’t exist in their day. No official was immune from either prosecution or lawsuits. If a policeman wronged you, you could sue him and win.
That wasn’t sustainable. Eventually the courts realized that if officials had to live in constant fear of being sued they would never act. So they invented official immunity. Qualified for policemen and other minor officers, absolute for major officers, such as judges. (Funny, that.)
Actually, I disagree with you on the immunity question, in part. I believe that official immunity did exist, but was more limited that it is now. If an official was acting in his official capacity, the official was protected from damages. That said, if the official transgressed the law, he was no longer acting in his official capacity., and could be subject to suit like any other citizen.
Think of it this way: A Colorado police officer chases a suspect across a field for a distance. He stops the person, but by the time it happens, they are in Wyoming. The police officer is no longer a police officer where the arrest is made. His power to arrest is only that of an ordinary citizen of Wyoming. If an ordinary Wyoming citizen could not stop the person, the arresting Colorado officer has just committed false imprisonment. He should be liable in damages in Wyoming courts.
As I recall from first year criminal law last century, the Colorado cop would be protected by the hot pursuit doctrine. Remember that most immunity is judge-made, derived from the concept of sovereign immunity, which originated in England when the sovereign was the King, and which under the Constitution became the state and federal governments. The Constitution explicitly creates at least one type of immunity – for Congress-critters for statements on the floor and from being arrested traveling to/from Congress.
That the Court of Appeals rejected the immunity argument is not accurate:
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”
They didn’t reject presidential immunity, you see. The Court said if you try something like this against Obama you won’t succeed because immunity will protect him in that prosecution.
Obama had an American citizen executed without a trial.
Where is the justice?
No, he didn’t. He had an enemy of the United States killed, which is exactly what he is supposed to do. That’s what war is, and every president since Washington has relied on this inherent power.
You can’t seriously claim to believe that it makes any difference what passport an enemy holds. You can’t believe that an enemy soldier on the battlefield is somehow exempt from being killed, and the military must not aim at him, just because he has a US passport. That’s not only beyond ridiculous, it contradicts Quirin.
The theory that presidential immunity comes from the impeachment clause, and that a president can’t be prosecuted for anything he did in office until and unless the senate convicts him on an impeachment, and conversely that after that his immunity disappears, seems to me to be completely wrong. There is nothing in the constitution’s text to support it.
All the constitution says is that the maximum penalty in impeachment is removal and disqualification from “offices under the united states” (which ironically does not include the presidency!), and that conviction on an impeachment doesn’t prevent criminal prosecution. That does not mean that it’s necessary before a prosecution can happen.
Nor is this the source of presidential immunity. Presidential immunity is simply one example of the general official immunity that is not in the constitution but that the courts have invented for good reason. All officials have immunity for official acts; some have absolute immunity and some only qualified immunity, but everyone has it, so how can the president not? And in my view that immunity survives even impeachment and conviction. If it was an official act, then even after being removed from office it still can’t be tried in a criminal court. But if it was not an official act then there is no bar to prosecution just because he was not convicted on an impeachment.
The real question here is what is an official act. Trump’s lawyers would like it to cover almost anything the president does while in office, while Smith would like it to mean only acts specifically mentioned in Article 1 of the constitution. The truth has to lie somewhere between those extremes. I think the definition has to be expansive, but not unlimited.
If a president were to order the military to carry out a strike against someone he says is an enemy of the USA, and that person also happens to be his political rival, I don’t think it’s the place of the military or a court to inquire into his sincerity. Defining the USA’s enemies is a core function of the president, so if he is to have immunity on much more trivial decisions he must surely have it for such a momentous one. We either trust the president to make decisions like that, or we don’t. Congress could impeach and remove him, because it has the right and duty to second-guess him; that’s what oversight is. But I don’t think it would be for the courts to do the same, even after a senate conviction.
Agreed.
This situation is somewhat unique. The prosecution may argue that Trump’s acts with respect to the election results were personal acts as a citizen and candidate. OTOH, it can equally be argued that POTUS Trump had a right to take actions to prevent an election from being stolen (actions directly in defense of the Constitution and the Republic). Who invented the rule that personal and official interests are always mutually exclusive?
This doesn’t make any sense whatsoever. POTUS doesn’t get involved in elections, that is something POTUS has no purview over its in the hands of the states. Further its been well documented that Trump knew there was no fraud, combined with a complete failure of his election legal cases, along with connections to the insurrection that have been well established (links with the Cheese etc) who have already pled guilty in relation to electoral slate fraud. It strikes me as absurd to say it could ‘equally be argued’
Bullshit. That anyone proposes such a statement shows how unserious they are. It’s thoroughly documented that Trump to this day believes the election was stolen from him. He may even be right, but that’s neither here nor there. Nobody can seriously deny that this is what he believes, and has believed all along. There is not a shred of evidence to show that he knows, or has ever known otherwise.
That someone told him so is not evidence of anything. Lots of people told him lots of things. Lots of people have told you that the election was stolen; does that prove that you know that to be so?! Of course not. Lots of people have told you, but you don’t accept their assertions. So how can you claim that someone having told Trump something means he knows that thing to be true?
Show me, show us all, your evidence that Trump knew that the 2020 election was not stolen. He believes it was, as do tens of millions of Americans, including me. I will believe it was stolen to my dying day. I don’t care how many people tell me otherwise; I know what I saw on Election Day 2020, and it was shocking. I sat here watching poll stations shut down, counting stopped, and I KNEW that something was very very wrong with our democratic process. I knew the election was being stolen. I knew it then, I know it now. Can I prove it? Nope. And that is the problem that Trump faced, limited time to challenge votes, limited time to prove fraud.
That’s not to let Trump off the hook for his own role in his 2020 loss. He did it to himself. He stuck his nose up the genocidal Fauci gnome’s butt so far that he let swing states enact all kinds of crazy, often against their own state constitutions, that enabled his loss. He is not a smart person. I’m not a Trump fan, but between him and Biden, there is no contest. I’m voting Trump if it looks like he’ll lose my state (and he won’t).
……”POTUS doesn’t get involved in elections, that is something POTUS has no purview over its in the hands of the states”…..
So Algor and the Hildabeest had the right to question elections yet Trump doesn’t?
I can smell that leftist hypocrisy from 1500 miles away.
If Trump loses this then Brandon the pedophile needs to be charged with drug trafficking, human trafficking and slavery as well as treason for assisting an invasion of our border.
Ah yes making stuff up, interesting tactic
Why not? It’s what they’re doing to Trump, after all. Ironclaw is just proposing that they be served some of their own cooking.
Milhouse – you’re being unusually unequivocal today!
OK, just to be clear, I don’t actually approve of a future Trump administration bringing false charges against Biden, or against any Democrat. I just think it would serve them right, and that anyone who didn’t complain when it was done to Trump would have no right to complain then either.
But one that is very familiar to you, no? You keep stating things here that are completely incorrect, providing no sources at all. You’re an unserious person with a clear pattern: state something that is patently untrue (like that my post about Nex Benedict was incorrect; it was not), and then demand others defend against your crazy. You’re in the wrong venue, dude. That crap doesn’t fly here. As you are finding out.
If SCOTUS leaves this up to Congress and if both houses end up on the D side of things, Democrats will have succeeded in doing the very thing they have constantly accused Trump on wanting to do. They are setting up a puppet Congress with the Biden-handling version of the Politburo ruling. For the past three years the stage has been set for handing the economic engine of this nation over to the global elites who want complete global domination. We are far enough down this track that a fully Democrat government for the next four years would reduce the Constitution to a nice idea that had its place in history. While they’ll still swear to uphold it, it will be interpreted to mean whatever the new Progressive Marxist ruling class wants it to mean.
This was inevitable.
The Appellate opinion is .. to be nice .. incomplete.
The appeals court did a complete sh*t show of an opinion.
Instead of adding value to the various sides of this argument, they left so much unanswered that it will take until the end of the SCOTUS session in June to write a complete opinion, if then. The opposition didn’t do themselves any favors as so much is now left to the SCOTUS to draw from thin air that it will most likely make even more folks unhappy when the opinion comes down.
Is it possible to make leftists any more miserable than they already are?