Trump SCOTUS Immunity Argument – Consensus Is Trump Likely To Get At Least A Partial Win
My quick take: “I think they will simply find … that there is presidential immunity for official acts while done in office and send it back down to the district court to opine on whether the charges in this case involve official acts or not.”
The Supreme Court heard oral argument today in the Trump immunity case – Trump arguing that some or all of the D.C. federal court criminal charges were barred by his absolute immunity. (Docket) Both the District Court and D.C. Circuit rejected Trump’s legal arguments.
SCOTUS accepted the case for review on 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 Court heard argument for 2.5 hours. You can listen here, and view the transcript here.
It was a fascinating argument. I thought Trump’s attorney was particularly good.
Here are a few highlights people have posted.
SCOTUS was unimpressed to say the least with DC appellate court decision and justifiably so.
The 3 judges took less than a month after oral arguments to issue an opinion—a rush job noted by Chief Justice Roberts: pic.twitter.com/hUo7SHDaix
— Julie Kelly 🇺🇸 (@julie_kelly2) April 25, 2024
Trump lawyer argues for presidential immunity.
He brings up these three examples.
1. Bush lied to congress to induce war with Iraq.
2. Obama ordered drone strikes to kill U.S. citizens abroad.
3. Biden induced foreigners to enter the U.S. illegally.pic.twitter.com/aPN1uowOcX
— Citizen Free Press (@CitizenFreePres) April 25, 2024
Justice Jackson gets embarrassed by Trump lawyer John Sauer when she tries to describe America where the president has immunity:
“The regime you've described is the one we've operated under for over 234 years.” pic.twitter.com/yo15zSUkhA
— Greg Price (@greg_price11) April 25, 2024
Justice Alito tears apart D.C. Court opinion that sufficient protection exists without immunity in the form of federal grand juries and “the professionalism and trustworthiness of Attorney Generals and DOJ.
Alito gives examples of corrupt AGs and says prosecutors can get a grand… pic.twitter.com/Kx3m4ODj1D
— Bad Hombre (@joma_gc) April 25, 2024
TONY KATZ SHOW
I appeared on the Tony Katz Show just as the argument was ending, to give my take on what happened. I think my take is generally in line with the consensus that Trump is likely to win on the issue of immunity for official acts, but send it back down to the District Court as to what parts of the indictment involve official acts.
If that happens, the likelihood of this case getting to trial by November approaches zero.
The last couple of minutes regard the various campus pro-Hamas tent encampments.
Transcript (auto-generated, may contain transcription errors)
Katz (00:00):
Whole lot of questions that didn’t leave me thinking they were specific in any one direction. Tony Katz, great to be with you, Tony Katz today. William Jacobson joins us right now, Cornell Law professor from legalinsurrection.com. How I saw it as a layman is different than how somebody could see it in in the legal, but first let’s, in the legal profession. Let’s break down what I said here about what this case is. This case is about whether or not a president in the job of doing the president can be charged with a crime. Is that correct?
WAJ (00:34):
That is correct. The question that they took this case on was, and I’m reading it now, is ‘whether, and if so, to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office?’
This case regards official conduct of the president. The argument’s still going on <laugh>, I don’t know if I recall a longer argument where there weren’t multiple parts, but it’s still going on, but there’s been a lot of discussion about private versus public [sic – official]. The issue, the legal issue on which the court took the case assumes that a president is charged for official acts, and that is the question they are considering.
Katz (01:22):
So it’s interesting the idea of official acts because in the conversation with Trump’s lawyer, one of the things that they asked is if, is it an official act? If it benefits him, if it benefits, not necessarily Trump, but any president, is it, is it always an official act, even if the benefit comes to him directly? And I thought that was an interesting question because I could not figure out if they’re trying to understand the scope of the Trump’s team, or they’re trying to figure out how they would draw the line on what is and isn’t. And I couldn’t figure out how they were gonna draw that line. What did you take from that?
WAJ (02:04):
Yeah, I don’t think they will draw the line in this opinion.
I think they will simply find in response to their question that there is presidential immunity for official acts while done in office and send it back down to the district court to opine on whether the charges in this case involve official acts or not. I think the more interesting question is what if it’s a combination? And I don’t know if they will opine on that or reserve that for another day. And that I think is really the dilemma in this case is that it’s a mix of potentially official and potentially private acts that are alleged. And during the questioning, I forget which Justice it was, read, I think it might have been Barrett, well, what about this allegation? Is that public or private or what about that allegation? So I think that’s going to be the tougher question is what, what are you going do where it’s a mix of public and private acts? I’m sorry, official and private acts and that, I don’t know if they’ll decide that now.
Katz (03:10):
So that was indeed, your memory is solid, talking to William Jacobson, Cornell Law professor, the mind behind legalinsurrection.com. That was Trump’s lawyer, Sauer is his name, S-A-U-E-R. And he was speaking to Amy Coney Barrett, Justice Barrett. John Sauer is his name. And she asked, so you concede that private acts don’t get immunity to which Sauer responded we do. And then Barrett went to pages 46 and 47 of the brief that Sauer filed and just started going down the list. And it was a moment of, well, now it really gets tricky because we’re making the, the argument that there can be a private act, but who would get to decide the private act? And that’s the part where I lost my head. I’m like, how I have always looked at this case and said, I don’t know how the Supreme Court is going to say that someone can’t be charged. But I had not considered that there would be a differential to the idea of a private act in a public act. Were you able to determine in listening to the case being argued what they thought was a private act in a public act?
WAJ (04:29):
No. I mean, some things, you know, I don’t think so, and that’s why I don’t think the court’s gonna rule on it. I don’t think the court’s gonna go through the indictment line by line and say, this is public and can be charged. I’m not public. I keep saying public, this is official and can be charged, and this is private and can be charged. So I don’t think the court’s gonna do that. I think it’s gonna announce a rule that president has immunity for official acts, and then let the lower courts decide and rule based on evidence presented to them what is official and what is not.
Katz (05:05):
So in your view, what does this do to the Jack Smith case specifically on January 6th?
WAJ (05:15):
Assuming the ruling is, as I’ve just articulated, it means it’s certainly not going to trial before the election because that whole process is going to take time. I have no doubt [District Court Judge] Chutkin will rule on it fairly quickly, but then it goes up on appeal and possibly back to the Supreme Court. And while that’s all going on, even if that process were somehow miraculously to be concluded in a month or two, which I think is unlikely, it’s still too late to get a trial done before November.
Katz (05:44):
Let me go to the other side of this case…. it seems like the Justice Department was actually trying to say, yeah, it’s on the president and any president can be charged any time for any bad policy or any mistake based on evidence presented. That doesn’t work out well.
WAJ (07:04):
I mean, that’s the problem here. Once you loosen the rule about presidential immunity, then there’s no end to it. And, that’s what I think the fear is. I think the question is how far beyond or are they even going to discuss at this point what is an official act? Because the, I forget the term that they use, but the Trump team has a fairly expansive term. It’s not just the official act, but it’s everything surrounding it. And that would of course, expand it dramatically. And so they want to say anything that the president does that is even tangential to an official act. And again, I’m not thinking right off the top of my head of the word they use, but anything that’s even tangential is covered by immunity. I don’t know if the Supreme Court will get into that, how far beyond, I mean, there are things that are clearly an official act of the president, you know, signing a bill, signing an executive order, things like that.
But what about things that get into the political sphere that surround what the president does in an official capacity? I don’t know if they will get into that or if they will allow the lower courts to sort that out, but that’s where I think the real nub is…. So this is a messy situation. I think we’ll get a pronouncement of law and they’ll send it back down and say, come back in a year or two
Katz (08:46):
Talking to William Jacobson Cornell law professor legal insurrection.com.
Let me move it off the Trump case really quick and on to college campuses. As you follow these things and talk about these things, write about these things extensively, what you’re dealing with at Cornell, what’s happening at, at Columbia and, and NYU, I am hearing that in my own beloved Indiana, Indiana University now has an encampment. You’ve seen the arrests there at University of Texas, Austin, and there are some people on the political right who are arguing, you cannot arrest somebody for antisemitism. That somehow it is wrong for colleges to call in authorities to engage arrests. I have to tell you, I’m stunned by this type of theory because that’s not why these people are being arrested. Although if you’re preventing somebody from walking down the street and you’re targeting people because they’re Jews based on what the country describes as hate crimes, that could be allowed, correct?
WAJ (09:51):
Nobody is being arrested or moved off campus because they’re vile disgusting people. Okay? <laugh> They’re being moved off campus because they violated the campus rules against camping on university property. They don’t allow encampments on university property. They don’t allow taking over areas of campus. They don’t allow a lot of things regardless of what your viewpoint is. And so if somebody could come to me and say they allow groups they agree with to set up tent cities on campus, but they’re not allowing these people, then you might have a free speech sort of argument. But that’s not it.
I believe these protestors very strategically at a centralized level of the groups that are coordinating this nationally, have found that this is a really good tactic because you set up an encampment, you know it violates the rules at almost every university, maybe every university. Andm, and therefore, you know you are going to be challenged. You know you’re going create a confrontation. You’re going to create a confrontation outdoors where everybody can see it and video it. And then you get to play victim and you get to make the stupid arguments such as the ones you’re quoting, other people are making about free speech, when in fact it’s the encampment that’s the problem. And you get the university to back down and you proclaim victory.
So this is a very typical quote unquote, pro-Palestinian type of tactic. And we see it in Israel as well. They do something that they have a win-win situation. They win if there’s a confrontation and they lose, and they win if they win. So that is what is going on here. This is very strategic. It’s all nonsense.
There are many photographs of some of these tent cities. Not all of them, but many of them. I put one on my website last night from a local newspaper where the tents are identical. Somebody went out and put in an order for a bunch of tents. It wasn’t the students who showed up. These are, in many cases, not students bringing the tents they slept in last summer in the National Park. Somebody is coordinating this and they have decided that tent cities is the object that they want to be the focus of these protests for the reasons of I have articulated.
They also, and no one’s really picked up on this, they also call these ‘liberated areas’, things like that. Liberated from what, who is it liberated from? Well, it’s liberated from the United States. This is a reflection that this movement is not recognize the sovereignty of the United States.
And they say this, a lot of them, and I see it at Cornell in particular, they call the United States, they call our country Turtle Island. Turtle Island is the term that some Native Americans use as to the creation of the Earth. So this is very much a Khmer Rouge Year Zero sort of movement.
They do not recognize the United States. They want our system torn down. They want to start over with Turtle Island or Year Zero, whatever they want to call it, and they are liberating this territory from the United States.
Katz (13:07):
William Jacobson, we’re going to talk more about this in the future.
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Comments
Hmm more than am”partial” win I believe, they won’t even take it up till after the election
SCOTUS waits until June to issue decision, and issues after the Jan 6 case. Trump team will argue that sorting out the remaining indictment and charges needs to come first., before any discussion of official/private acts.
No trial before the election and likely the inauguration.
My impression was that they were focusing on Democrats, not Trump, as the structural threat.
And they would be correct in that
They are trying to decide if the President will control the Executive Branch or the Executive Branch will control the President.
Exactly, this is especially true when it comes to obstruction of justice charges. When the President is a Republican, the Democrats consider any oversight of the DOJ obstruction. In reality under the Constitution, the President is the Justice Department, he is the one charged with faithfully executing the laws.
I remember they tried to hang GWB for firing US Attorneys who served at his pleasure.
The Wide Latina remains one of the dumbest voices on the Court.
She’s got some serious competition from the affirmative action hire
I actually disagree. Jackson seems much sharper than Sotomayor in oral arguments.
Oh, that’s a low bar to clear.
What by pointing out plainly that the entire Trump immunity claim is completely retarded on the basis that allowing Presidents to commit crime might embolden them to commit crimes.
No, by ignoring the Constitution which plainly states that w/o removal via impeachment
the president cannot be held accountable under the law. Think if it were otherwise, any hick prosecutor could disrupt any presidency by bringing any silly charge against a president for crimes real or imagined
This is a seriously dumb comment. The impeachment clause says exactly the opposite. Maybe actually read the clause.
Any hick prosecutor with can demonstrate a crime to the required standard. Your basically arguing against the entirety of american history.
“This is a seriously dumb comment.”
LOLOL! You seriously had the hubris to post this?
Self=awareness clearly isn’t one of your strong points, is it?
What is the crime that Trump committed on J6, and the facts supporting it? The fight like Hell comment? That phrase has been used again and again by leftists when speaking of demonstrating for their political rights and interests. It’s like a corporate CEO saying, “We take our responsibilities seriously.” Everything Trump said and did that day was either a public act or so intertwined with hit as to be indistinguishable from an official act. He was exercising as the President his own 1st Am rights to raise a serious concern about the integrity of the electoral processes. In the states he sought to have certifications returned to the state legislatures for hearing on that very issue and, if serious infractions and election law violations were found to have been done, to reject the prior certification. Everything that Trump said and did that day was in connection to official proceedings by Congress and the President’s actions that day in relation to those proceedings are his own official acts. It’s no different from a president politicking for the votes on a piece of legislation that, the passage of which, would aid his political position and campaign.
Jesus you are totally ignorant of the facts aren’t you. From inciting the crowd, to not doing anything when they breached capitol building, to opining that it was Mike pences fault when he was threatened to multiple fake slates of electors and a pressure campaign on Pence to systemic lies about fraud in the election. How much evidence do you people need. Your insane
When you get to a fact, it will be a first.
*You’re
“Your insane”
“You’re,” and you end a sentence with a period.
Here, let me show you.
“You’re retarded.”
You’re not much of a lawyer. Unlike me, a great lawyer. You obviously don’t know criminal law pertaining to incitemen
You don’t know the law relating to incitement. The holding in Brandenburg remains good law. There can be no criminal consequence to punish inflammatory speech unless that speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Trump’s speech was half a mile or so from the capitol. He was still giving his speech when the first breach happened (you know, when the DC CP opened a gate to let some revelers through). But besides all that, Trump isn’t charged with incitement. He’s charged with two counts of obstruction and conspiracy to obstruct an official proceeding. Those obstruction charges are going to be dismissed after SCOTUS for the second time reverses a Smith prosecution for abusing a federal criminal statute by trying to stretch it into something it’s not. Smiths case will be lit on fire when it reverses the Fischer conviction under the same obstruction charge. You should listen and not speak.
You are forgetting Trump having repeatedly offered National Guard troops, which was turned down by Speaker Pelosi and Mayor Bowser, and him repeatedly preaching non-violence to the crowd. Alternate slates of electors have not been uncommon, in the past. Etc. As for inciting the supposed riot, Brandeis says that the incitement has to be to imminent violence, hard to do a mile away.
Besides, he wasn’t indicted for any of that, but rather for Obstruction under 18 U.S.C. § 1512 (c)(2), except that the interpretation of the statute utilized by Smith ignores its connection to (c)(1), which limits it to document destruction and the like. And the Supreme Court heard oral arguments on their LawFare misinterpretation of the statute a week or so before this case (Fischer v US). The 6 Republican Justices seemed poised to jettison it.
Sorry. Brandenburg, not Brandeis.
It’s only retarded because it prevents asshole Leftists like you from prosecuting your political opponents.
People see you assholes are breaking the country apart, not Trump.
I will laugh then when Trump gets elected, pardons himself and has Obama prosecuted for murder.
Immunity will be looked at differently then.
Democrats have shown why there is a need for Presidential immunity.
My one concern is that playing games with wording, ie for acts done officially, just means Democrats have wiggle room to continue with their attacks because all they will do is claim everything they are litigating is because what ever act they are prosecuting is done so because they will claim it was an unofficial non presidential thing and thus they can continue to litigate and criminalise Trump.
In a sane world all Presidents are protected by Presidential immunity regardless of whether you hate him or not.
Well that was our lovely Amy, a snake in the grass if there ever was one
I actually dislike her the most, even more than all the left ding bats that can’t define a woman
Because she is a traitor, she takes her orders from Roberts. I knew we were in trouble with her and her little house on the prairie routine during questioning, when Feinstein couldn’t stop praising her intelligence
Oh what a collective bunch of idiots and DEI’s
ACB = RBG, version 2.0. Thank you, DJT.
It was McConnell actually. President Trump had to get a list from McConnell of who he was willing to support
McConnell held President Trumps judge nominations as black
Ail.
He would even let him make recess appointments, his own party President. What a freaking snake
You keep repeating that BS, even after it’s been pointed out to you again and again that it was not up to McConnell, because the senate needs the House’s permission to adjourn for more than three days.
Then at worst 50% of the problem still sits with Republicans given they held Congress and the Senate for half of Trumps first term 🙄
mailman needs to read Codavilla, and get educated on the meaning of “UniParty”.
Amy has young children who have been threatened by the deep state. She’s in their pocket, but I don’t think she’s happy about it.
“Democrats have shown why there is a need for Presidential immunity.” What by you pretending that due process hasn’t existed and that there isn’t overwhelming evidence of Trumps crimes. You people act so guilty its unbelievable
Well, no. Your assertion that the evidence is overwhelming is pure, mindless, spin.
In the DC, Trump did nothing that other politicians have done before. What is new are the novel, LawFare designed, statutory misinterpretations utilized to indict Trump. Which violates Due Process. As for the FL case, nothing that Trump did in office was illegal. He ordered documents shipped to his MAL home, and implicitly declassified them. But then the Biden WH ordered that his security clearances be revoked, so that the classified documents he had in his possession would be unlawful. As of this last week, after Judge Cannon ordered documents declassified, and unredacted, we know that the entire FL prosecution was initiated by the WH and AG working closely together.
The DC case won’t survive appeal, if nothing else, from its Due Orocess problems, even if it survives this challenge. The LawFare statutory misinterpretations being utilized are both wrong, and because they are novel, didn’t put Trump on notice that his behavior was criminal. The FL case right now isn’t likely to go to trial, and if it does, will have jury instructions that lean towards acquittal, and if, by some miracle, it gets to a jury, they will acquit.
Good grief, it’s hard to know where to start given the incredible ignorance you’ve demonstrated. Do you actually know anything about the law and constitution?
You seem to be wilfully ignorant of just about every aspect of well everything.
Let’s take one of your dumbest claims. Trump was told repeatedly during the course of his presently about his responsibility with respect to classified docs, he has admitted on tape that they were classified, he lied to his own lawyer about the classified docs at mara lago. It’s it unquestionably the case that he is guilty, which is why he is desperate to delay the trial and hope he gets elected which is literally his only means of escaping justice
LOL. A flatulent little Brit dingus like you is calling Bruce Hayden ignorant?
Your lack of self-awareness, quite frankly, is approaching legendary status.
Several basic flaws in your theory:
1) the assumption that the documents were still classified after Trump, with plenary declassification authority, ordered them shipped to MAL.
2) the assumption that the copies of these formerly classified documents were still the property of the federal government, and not his personal property, as personal papers. Again, he had plenary power to decide what 2as a personal document and what was a Presidential Paper.
3) the assumption that he unlawfully retained documents he didn’t have a security clearance to view. Turns out he did have a security clearance until months after the MAL raid, and after that raid he didn’t need one.
Jay Bratt, in his indictment of Trump, just assumed these issues away in his indictment. And it might have worked with a Dem appointed trial judge, but they got Judge Cannon, a Trump nominee, who is holding their feet to the fire. All of those assumptions will have to be validated before trial, and I expect that to be unlikely, as things are going right now.
The prosecution tried to play games with the case, and when she figured it out, she was not amused. They were running a second grand jury, in DC, which meant out of sight of the ED FL. Not good. Then they played games with classified documents by denying Defense lawyers required Brady information, because it was classified, but then slow walking their security clearances (yes, this was also routinely done with J6 defendants). Cannon ended this by telling them essentially no trial until their Brady disclosure was complete. Then she provided counsel with two sets of possible jury instructions, concerning those assumptions I mentioned above. Smith and Bratt were livid because they didn’t like either set (both eviscerated their case) but can’t file an interlocutory appeal, until she finalizes the jury instructions. And that may be not until she is ready to go to trial, which probably isn’t going to be until the Immunity decision in this case is released, probably in June. Which means little possibility of a trial until August or September, and with the expected interlocutory appeal by the prosecutors, maybe not until September or October, which, of course, is right before the election, which means that it will likely be pushed into 2025.
Other than that – slam dunk for the Special Prosecutor.
The representative from the Al Qassam Brigade has been heard from.
Name, describe, identify the “overwhelming evidence” of “Trump’s crimes.” You won’t. You can’t. Because there is nothing. He incited nothing at the Capitol. He wished a peaceful demonstration in support of a political position to be taken in Congress to reject certifications of electoral votes from states that had serious election law violations and irregularities.
I suggest you read the multiple indictments and look at the public record. There is absolutely loads of evidence. I refer to some of it in another post.
READ: I’m just regurgitating bullshit I heard on CNNMSNBC and don’t know anything myself.
See my comments at 3:46 am above. Bratt, in his indictment, just assumed away critical elements of his case, such as that the documents were still classified, that they didn’t belong to Trump, and that he wasn’t authorized to see them. So, no, the indictment doesn’t show the strength of their case, but is rather just wishful thinking on their part.
Don’t you mean to say that Democrat Presidents have proven why Presidents do not and should not have immunity?
They already have immunity. They will NEVER be prosecuted (and they know that) but Republican Presidents who go against the deep state will continue to be prosecuted. They want immunity for themselves but not for others.
This is the most compelling argument for complete immunity — Equal Protection: Democrats already have it.
“Group A has this thing that nobody should have therefore Group B should have that thing too” is a strange piece of logic.
The politics of atomic weapons is going to flip your lid, kid.
Strangely enough I’m not worried about the Democrats nuking the GOP headquarters.
With regards to your last sentence, that’s how it was until Democrats broke the system. In order to save Democracy (TM), of course.
I was happy to hear Alito say what I’ve been saying for months
“”a couple days before he leaves office, every President will pardon himself”
which in itself, has the same effect as immunity
not what the framers had in mind, IMHO
The framers probably didn’t mean to give the president the power to pardon himself. They certainly expected that if he committed a crime in office he would be prosecuted. The whole concept of official immunity didn’t exist in their day, at all.
But what they meant to do is irrelevant; the fact is that they did give him that power, so if this doesn’t go Trump’s way it’s likely that every president from now on will do just that. However a pardon will only protect him from federal prosecution, not from state prosecution. Official acts immunity almost certainly applies to state prosecutions too.
The responsibility for this sits solely on the shoulders of Democrats who’s actions have demonstrated why Presidential immunity is so important.
the Constitution give a president the power to paedon, there are no restrictions attached
Exactly. The people who drafted and ratified it probably didn’t mean to allow him to pardon himself, but they did.
If they throw it down to the district court does anyone believe they won’t rule that none of Trump’s alleged acts were official? These people lack any subtlety and don’t care if everyone sees it.
Roberts alluded to the lower court ‘rushing things’
might give them pause
That would require more intelligence than most communist are capable of
Amy showed the way…
This is the problem with partial immunity. Democrats will just claim what ever they are trying to criminalise Trump for was a “non-official” act, thus justifying their continued actions to put him in jail.
Yeah….this would be a terrible standard because the left will use Youngstown Sheet and Tube as presidence ( which was from a dissenting opinion as I recall) to say that unless Congress approved of this act then it’s automatically private conduct and then things like executive orders become prosecutable later on….. which in Joe’s case might be a good thing.
And each of those decisions would then be appealed up the chain.
However we shouldn’t be in the situation where an appeal is even needed.
Presidents should be able to perform their duties without the threat of criminal proceedings being held over their heads by their political enemies the moment they have the power to act.
This is a bad thing and it shouldn’t take the mind the size of a planet to work out why that’s a bad thing.
This is just an absurd position to take. The opposite is the problem having the most powerful person in the world with effectively unlimited unconstrained powe your basically saying you want a dictatorship
Reducto absurdum. The Executive is not unconstrained. His orders can be ruled unconstitutional by the Judicial branch, and he can be impeached and removed from office by the Legislative branch.
you miss the point,….by going through that again, the process becomes the punishment
Except that the purpose of the prosecutions is to interfere with the election later this year, and pushing the trials into next year effectively kills them.
The purpose of the prosecutions is to hold a criminal to account
No, it isn’t. They are being brought in bad faith. All of them.
So Obama can kill American citizens without due process because a DoJ lawyer said that was ok?
Well ok then, clearly all Trump needs to do is get Rudy installed as his AG and magically just like that Democrats will change their standard and suddenly what was on for Obama is now not ok for Trump.
No, 0bama can order the military to kill enemies who are making war on the USA, because that is a president’s primary job. The whole idea that it makes a difference what passport an enemy holds is beyond ridiculous. Nobody could possibly believe such an absurd idea. And it certainly has no support in the constitution or any statute, and explicitly contradicts any number of court decisions.
All the DOJ did was confirm that this was indeed the case.
Then Democrats should have argued this point. The very fact they did not try to make this very point tells you the point your think hiur making was irrelevant in this case.
I cannot wait for Trump to get Rudy set up so we can get some nice warm vengeance served up! 😂
In effect they did, Drebben made the point that the President has no role in certifying elections, the states run the election, slates go to congress and the VP counts it. It simply cannot be that the President can possibly be involved as part of his duties certifying his own election. The president cannot include as part of his official duties subverting an election
Which he never did. Sending alternate slates of electors is nothing new, and the Constitution provides that Congress decides which to accept. And trying to find more (presumably legitimate) votes is again nothing new, or illegal. That’s essentially what Gore tried to do in FL in 2000, and is in play with every recount. Calling it “corrupt” is just trying to cover that it was business as usual.
“The president cannot include as part of his official duties subverting an election.”
Post specific proof that Trump himself subverted the election.
You can’t, so you won’t.
You can thank me later for adding the period to your flaccid, punctuation-deprived sentence.
@Bruce
The evidence indicates he did, and the only prior example of an alternate slate of electors had contingent language. In the cases we have PA had contingent language that was it, the rest were fraudulent representations. You simply don’t have an argument here. Your just factually incorrect in every respect.
No, it doesn’t. The constitution is completely silent on the question. It doesn’t say who decides. The twelfth amendment is horribly drafted.
I don’t think Eastman’s overall theory is correct, but he is 100% correct that Congress didn’t solve anything in 1877 by simply legislating its opinion. If its opinion was correct then no legislation was needed, and if it was incorrect then no legislation could make it correct.
They do argue it, whenever this example is brought up.
It wasn’t relevant to argue it in this hearing, because Trump’s lawyer never asserted that 0bama was guilty of murder, but only that without immunity some dishonest prosecutor might have falsely charged him with it.
Which isn’t a good argument, because if that were to happen he would have a perfect and obvious defense and the charges would be dismissed. I’m sure that when he took that decision he didn’t even consider whether he would have immunity. All he considered was whether it was in fact legal.
Which isn’t a good argument, because if that were to happen he would have a perfect and obvious defense and the charges would be dismissed.”
You’re clearly just writing shit you have no idea about because dishonest Democrats have been doing exactly this in an election year and the corrupted Democrat Judiciary is 100% in on the game.
It is because of these dishonest and corrupt actions by Democrats that has shown us why absolute immunity is so critically important now..
Can Obama declare war, on an individual, without congressional approval?
Can congress delegate the declaration of war to the president?
Say, we’re not at war, can Obama order the military to kill an american citizen spy for another country?
Once you’ve declared a “worldwide war against bad people”, there is no limiting principle on who you can kill.
0bama didn’t declare war on anyone. The USA was at war, and this person was an enemy soldier. That is a simple fact. The entire idea that it’s illegal to kill enemy soldiers in war time is too ridiculous for words. And so is the idea that it matters what passport an enemy soldier carries. Nobody has ever proposed such an idea before the 0bama strike.
To answer your actual question, no, a president can’t declare war, but he can recognize that a state of war exists, and act accordingly. That’s what GWB did on the evening of Sep-11-2001.
Some people seem to believe that a state of war cannot exist without a declaration; that has never been the law, and the courts have repeatedly rejected it.
The War Powers Resolution (which is of dubious constitutionality) merely requires the president in such a case to formally inform Congress within 48 hours, and limits his authority to fight an undeclared war to 90 days.
None of which is relevant here, since Congress did declare war.
Sort of. It can provisionally declare war, leaving it up to the president whether and when to begin actual hostilities. That’s what it did with the Iraq war.
If he can do so for an alien, then he can probably do so for a citizen too. “Enemies of the USA” are not limited to wartime.
It’s been established law, since before the USA even existed, that neither habeas corpus nor due process applies to the military acting against enemy soldiers. SCOTUS recently modified that only to enable a very limited habeas process to prisoners of war who deny that they were ever enemies in the first place, and claim that they’re being held improperly. It agreed that once their status as enemies has been established, that is the end of their rights.
Your logic fails here because, in theory, a president wouldn’t need to give due process to a US citizen “domestic terrorist” not immediately engaged In violence here in the US. He could just order a drone strike on their camp out in the boonies. No American citizen can be declared an enemy combatant and assassinated without due process. if they are not currently committing immediate violence…..otherwise the 4th and 5th amendment’s don’t mean much….
That is just wrong, and you cannot cite any authority for it. It has never been the case that the military needed to concern itself with what passports our enemies happened to hold. Military action is not subject to due process, any more than it’s subject to habeas corpus.
By the way, where did you come up with the exception for “immediate violence”? It plugs an obvious hole in your purported principle, but where in the constitution do you find it? Your principle is made up, and so is your exception; if the principle were valid then there couldn’t be such an exception.
Joy Reid weighs in saying the court is illegitmate being made up of 6 Republican politicians and that team Trump did not present any constitutional arguments.
https://www.youtube.com/watch?v=6IAGFRkhVIs
Joy Reid is illegitimate.
And weapons-grade stupid, and a racist besides.
As far as I know nobody disputes that the president has immunity for official acts. As I understand it the question before the court is not whether he has immunity for official acts, which everyone agrees he does, but for “conduct alleged to involve official acts”, i.e. conduct he alleges was official but the state alleges was private. As I understand it, Smith agrees that official acts are immune, but has an extremely narrow view of what is an official act, while Trump is arguing for an extremely broad view.
Trump seems to be arguing that if it could possibly be official, and he says it was, then no court can question his assessment, while Smith seems to be saying that if it could possibly be private a prosecutor can allege that it was. The truth has got to be somewhere in between those two extremes, and it seems to be that in accepting the case SCOTUS has promised that it will at least give useful guidelines on how the lower courts should resolve such a dispute. Just repeating what everyone agrees on anyway won’t cut it.
That is incorrect. Team Biden and the Special Counsel explicitly said there is no immunity period, even on core executive functions.
https://www.youtube.com/watch?v=yZRjCZ0W3CQ&t=1s
Listen to it again, and all the way through. He seems to start out by alleging something like that, but then starts backtracking, and basically ends up saying something like “well, it’s not immunity per se, it’s called the ‘public authority defense’,” which is basically the same thing.
I did. You are wrong. Own it.
Thomas: Are you saying there is no immunity, even for official acts?
Mr. Dreeben: That is correct your honor.
Why is that so difficult for you?
Keep listening. He goes on to contradict it.
There is no way to reconcile the rest of what he says with the position that you are attributing to him.
LOL, just just validated Juris’s comment.
Dweeb position was “No immunity”
No, it was not. Listen to the whole thing, and you will see that. Quoting only the first sentence is dishonest.
The prosecution seems to have an allergy to the word immunity. They want to call it all kinds of other words instead of what it is. In short, they want to redefine it to “All Presidents have immunity for everything they did except for Trump, because… Squirrel!”
Yes, but the bottom line is that they admit the immunity for official acts exists, regardless of what you want to call it. They claim that the acts involved here were not official.
They said there was no immunity, but were forced to admit that there was an equivalent for core Article II powers.
and who gets to determine, “official acts”, just as has been litigated with regard to personal vs presidential records,..it has to be the president, if anyone else gets to decide, then we do not have a presidency
This is the problem with partial immunity because it leaves room for Democrats to continue with their never ending political witch hunts.
No, it doesn’t have to be the president. That’s only one possibility. It could be the courts. Or it could be the current president, whoever that might be.
Ditto for the Presidential Records Act. It’s not clear who decides what is a personal record. The Clinton Sock Drawer case did not decide that question; all it said was that whoever decides, it isn’t the Archivist.
What’s 100% clear is that a president has no right to simply declare an official record to be “personal” and take it for himself; the only open question is whether there’s any remedy if he illegally does so.
It absolutely does simply because Democrats will just find another way to continue their attacks and, or more likely, just stack what ever mechanism is created to determine what is and is an official act with their loyal people.
I don’t think there is a useful limiting principle if you allow a third party decide what someone was thinking. Mind reading isn’t a thing.
Given that limitation, I think the tie has to go to the defense. If any presidential act *could possibly* be official, we need to defer.
I see it as a variation on the Blackstone’s formulation theme (which it seems we’re quickly forgetting in this culture).
If the *current* administration is permitted to redefine what a *previous* administration did as personal acts which are not covered by Presidential immunity, or a *court* of any level is allowed to do the same, the Presidency is trash. Anything any President does can be reinterpreted into something they can be sued or imprisoned for. There is no “Well, generally they have immunity except for this one thing” is the loose thread on a sweater. Pull that and you don’t have a sweater any more.
If it’s up to the courts, then it’s no different from any other factual determination that the courts already make routinely. What matters is not how something can be “reinterpreted”, but what it actually is.
1. Bush didn’t lie at all. He told the exact truth, and he claims that he lied were themselves lies. Trump’s lawyer said “allegedly”, meaning that Dem liars could have made such an allegation.
1a. Even if he had lied, lying to Congress, when not under oath, is not a crime, any more than lying to the public is. What Trump’s lawyer suggested was that Bush might have been prosecuted for “obstructing an official proceeding”; but that is an extreme stretch (especially since the court seems on the verge of deciding that this offense can’t be extended beyond its original context of destroying evidence).
2. That is not any kind of crime, and is undisputably an official and legal act. Ordering strikes on the USA’s enemies is the president’s primary job. The idea that he could have been prosecuted for murder is just ridiculous, as is the idea that it makes the slightest bit of difference what passport the targets held.
3. This is at least an offense on its face, but (assuming Smith won this case) it would be difficult establishing that he offered an inducement, especially since his public pronouncements since he took office have all been that they should not come. His actions, of course, have spoken very differently, and as the proverb says they speak louder than words; but proving that in court could prove difficult.
Then again, the offenses Smith is alleging are just as ridiculous. Trump could stipulate to practically all of Smith’s factual allegations and still not be guilty of anything, even without immunity.
The first is Perjury. It is a crime.
The second is *murder*. The fact that they were on foreign soil makes it a federal case. But that they were US Citizens makes it *a crime*.
I’ll give you the third. But, as you said, it’s no less inane than what Mr. Trump has been charged with.
1. No, it is not perjury. Perjury is telling a material lie while under oath. Bush was not under oath, so nothing he said, even if he had told a lie, and even if it were material, would still not be perjury.
2. That’s too ridiculous for words. War consists of killing the enemy. Killing the enemy in wartime is not only not murder, it’s a legal duty. Where on earth do so many morons get the idea that it makes any difference what passport an enemy holds? Not only does common sense say otherwise, so does 240 years of US jurisprudence.
So according to the Milhouse theory a president can designate anyone a terrorist and murder them on a whim?
Who exactly do you imagine it is who identifies enemy soldiers in war, in order to shoot them? How do you imagine a military action is conducted, if not by the military simply identifying enemies, to its own satisfaction, and shooting them? You can’t be seriously suggesting some kind of due process for each individual! It would be impossible to conduct war under such a restriction.
In general, how the military fights wars is none of the judicial branch’s business. It’s not a criminal process, so it’s not subject to judicial authority.
“Then again, the offenses Smith is alleging are just as ridiculous. Trump could stipulate to practically all of Smith’s factual allegations and still not be guilty of anything, even without immunity.”
I’m finding this hard to square with the indictment, on what basis do you say the allegations are ridiculous?
The indictment is false, and was made in bad faith. All of its arguments are invalid.
And that still didn’t stop the hack DA from raising the charges and the hack Judge from agreeing with the DA to get the case under way.
Once again this demonstrates why absolute immunity is so important now.
Bad faith Democrats have shown us why it must be so.
What indication is there that any Democrat CARES? If you leave them an opening to attack a former Republican President via insane court cases, THEY WILL. Trump is just the first. We don’t need to hypothesize. Democrats have demonstrated what they will do!
It doesn’t matter whether Democrats care or not. The law is the law, and it doesn’t depend on what Democrats do. You can’t pretend the law is not what it is, just because it happens to be convenient for Democrats.
In other words, it’s literally an insurrection.
I listened to all of the Trump side and most of the special counsel side and I thought both lawyers took fairly extreme positions on immunity. I think the total immunity that the Trump lawyer advocated would never be accepted by any Supreme Court. However, I think he was deliberately extreme.
With a court inclined to seek compromise and split differences, the Trump lawyer made it possible for the court to reject their appeal but still remand the case back to the district court to sort official acts from private acts.
In the end, whether Trump’s actions were official acts or private acts comes down to whether or not there were serious problems with the conduct of the 2020 election. Personally, I feel that a fair investigation of the election, the J6 protest, and the legal and congressional aftermath, would exonerate Trump in the sense that his complaints were legitimate.
Even without immunity, none of the acts Smith is alleging are crimes!
But here we are with Democrats weaponisation of Government Departments with the dole objective of getting Trump.
Democrats have demonstrated through their acts why total Presidential immunity is so important.
Tyrants have a long history of crushing dissent, in real life and film.
“The woman has a right to speak. Arrest anyone who listens.”
–Captain Esteban, Zorro the Gay Blade
“still remand the case back to the district court to sort official acts from private acts.”
This is an issue all on it’s own. Do we want partisan lawyers and courts mindreading to find charges?
Because an act can be official AND work in a person’s interests at the same time.
The solution is there– if a president is impeached and convicted they can be charged. If not, no.
The end.
No, that is not a solution, it’s a dishonest and invalid claim, without any basis in the constitution.
GOP justices embarrassed themselves so badly, carrying water for Trump to delay his trial is a bad look.
Rushing to trial, in such flimsy cases is an even worse look. We all know that the purpose of trying to try these cases this year is to interfere with the Presidential election in November. Your delays are a direct result of the prosecution wishing away the legal and structural infirmities in their case. As was made clear here today, the prosecutors just assume that Trump didn’t have immunity for actions he took while in office. Their lawyer said that multiple times. Yet, the prosecutors have qualified immunity for most of what they do within the scope of their jobs. Why should the President have less immunity than they have, when his job is far more important. They aren’t mentioned in the Constitution. He is repeatedly mentioned, and Article II is dedicated to his power. Yet they get immunity, and he doesn’t? That’s potentially a huge hole in their case, that they just assumed away. Similarly, their LawFare (mis)interpretations of statutes are also a glaring hole. The obstruction of Congress charges require that the statute be taken out of context, and used in a way that it wasn’t intended. The statute is part of Sarbanes-Oxley, passed in the aftermath of Enron, etc, to criminalize financial crimes. Their interpretation requires that it be severed from the previous paragraph. The statutory interpretation rule of ejusdem generis requires just the opposite, that the second paragraph be limited by the first, which would limit the statute to bookkeeping crimes and the like. The key to LawFare prosecutions like this is that they invariably violate the Notice requirement of Due Process, because they are novel interpretations, haven’t been used before, and haven’t been affirmed by the appellate process. . Which means that they know that they won’t survive appeal.
Finally…. we agree on something!
Again Trump’s lawyer is playing the opposition’s game by entertaining ridiculous ‘what ifs’….the Constitution is clear in Article 1, Section 3, Clause 7. and unless SCOTUS claims itself the authority to amend the Constitution, a president is immune from prosecution and the president alone decides what are official acts, unless Roberts wants to reverse Marbury v Madison. Speaking of Roberts, he wants to ‘punt’ and send it back to the same corrupt DC Court of Appeals, which lends credence to the report that Roberts declined Trump’s election challenge because he was afraid of riots. knowing that if he decided correctly that there would be riots, possibly at his house
Roberts knows the current administration will not act to defend any SCOTUS judge who goes against them. They will stir up the mob and send it. This is not a guess, this is established fact since we already have examples.
By design, impeachment is separate and distinct from a criminal proceeding. Impeachment and conviction by Congress operates to remove an individual from office; it does not, however, preclude criminal consequences for an individual’s actions. Those who have been impeached and removed from office are still subject to criminal prosecutions for the same underlying factual matters, and individuals who have already been convicted of crimes may be impeached for the same underlying behavior later. A number of federal judges, in fact, have been indicted and convicted for conduct which has formed the basis for a subsequent impeachment proceeding.
The text of the Constitution does not address the sequencing of impeachment and other legal proceedings. Generally speaking, historical practice has been to impeach individuals after the conclusion of any related criminal proceedings, although this might simply reflect practical convenience as such proceedings can alert Congress of improper behavior that may warrant impeachment. Nonetheless, nothing in the Constitution demands this order of events.
https://constitution.congress.gov/browse/essay/artI-S3-C7-1/ALDE_00000037/
(emphasis added)
That is complete bullshit. There is nothing in the constitution, and certainly nothing in that clause, creating any kind of immunity. And what on earth does Marbury have to do with it?
In the oral arguments today, in Trump v US (the Immunity case), Trump’s attorneys pushed that there should be immunity for official acts of the President. The prosecutors have qualified immunity for their professional acts, and the President needs it even more, to be free to execute his responsibilities. They specifically did not assert immunity for personal (non official) acts. What that would require was essentially a two step process, of first determining whether an act asserted in an indictment would be official or private. Then a review of whether what remained asserted criminal acts. Five of the Justices (Thomas, Alito, Gorsuch, Kavenaugh, Barrett) seemed to lean towards that view.
Smith’s lawyer on the other hand essentially asserted that the President does not have immunity from prosecution, but then backed up under fire to accept that he can’t be tried for exercising his core Article II powers. Which is essentially immunity. And the Five pushed him on that. But when faced with the possibility of a political prosecution, especially by a succeeding President’s Justice Dept, he asserted that former Presidents were protected by a three levels of protection: the professionalism of the DOJ, the professionalism of the prosecutors, and the grand jury system. I am pretty sure, that in view of the present federal cases against Trump, the Five weren’t buying it. The Independent Counsel isn’t, but is instead being directed by a corrupt President (Trump’s opponent) and AG, the prosecutors are utilizing novel LawFare derived legal theories (violating DOJ policy, as well as Due Process), and a good prosecutor can get a grand jury to indict a ham sandwich (which was thrown in by at least one of them). It’s notable that the FL prosecution tried to hide some of the DC grand jury testimony through classification. We learned a bit this week about the origins of the case, when Judge Cannon ordered much of it unredacted – esp that that prosecution originated in the WH and with the AG.
There was an interesting discussion when the Republican Justices pushed the Smith Attorney on edge cases, such as Korematsu (Japanese internment), GW Bush invading Iraq, Obama droning American citizens, etc, and, of course, Watergate. Don’t remember if someone threw in Jackson and his Trail of Tears, or that was in comments somewhere. The Smith Attorney put all these deep within core Article II powers, justifying effective immunity for them. But these were all far more major transgressions than those asserted against Trump.
CJ Roberts mostly stayed out of the discussion. Gorsuch, Alito, and Kavenaugh seemed the most aggressive and suspicious of Smith’s side’s arguments. Thomas led off, but, as is typical didn’t say as much as the others. But he’s married to the most political spouse, so I have little doubt about his sympathies. Barrett seemed like warm, but I don’t see her jumping the other way on something this important. Of the three Dems, Jackson seemed the most engaged. She continues to surprise. I didn’t feel that Smith’s attorney had her convinced. Neither of the other two engaged that much, and very little with Trump’s attorney. Sotomayor didn’t seem as sharp as the rest. Maybe it’s being the Wise Latina (and she truly was the AA hire), or she really could be sick.
My prediction is that with the five votes for Trump fairly secure, CJ Roberts joins them, in order to keep their ruling narrow. Jackson is a possibility, though she seems sometimes to move left after oral arguments. It could be that she is still new, or the female thing of seeming to join a consensus, when in a verbal discussion, but not really doing so. I don’t see the majority getting Karen on board, because I think that she more believed the Smith 3 layer of protection (and before joining the Court, was the more political of the Three), and without her, no Sotomayor. My prediction right now is 6-3, but possibly 7-2, in favor of Trump, with the Karen/Sotomayor dissent being, again, fairly weak, and maybe a concurrence by Alito or Gorsuch calling them out on it. We shall see.
Allowing the courts to determine what acts of the President are official vs personal places the courts above the President, allowing them to second-guess any of his actions and throw him into court if he should decide something they don’t like. In short, that would be judicial interference in the Executive branch, on *THE* Executive. That should be a 9-0 decision to dismiss in any reasonable court.
Great comment, except that you keep spelling “Kagan” as “Karen”, which gets a bit confusing.
Sorry. Spellcheck on my iPad.
Judge Jackson worries that the guaranty of immunity would turn the President into the boss of bosses of the world’s largest crime syndicate. It could lead to Hunter turning the Whitehouse into a major heroin transshipment center.
The Supreme Court *should* make the following determination, and write it so clearly that even a 5-year-old can understand. The Leftists on the court won’t go for it, but (censor) them. This is too important to go for a 8-1 or 7-2 decision full of mindless mush. In short, it needs to be “Lower courts can’t interfere with the Executive branch”
Executive Privilege between a President and his advisors is inviolate. It cannot be removed by subsequent Presidents, or any single judge, but only by the Supreme Court in cases of criminal misconduct or after impeachment and conviction in the Senate.
The President has broad unrestricted immunity for his official actions during his term. He is subject to the courts for personal actions during his term. The *sole* decider of what is a personal action and what is an official action is the President during his term. Don’t like it? Impeach and convict him.
Presidential immunity continues after his term and cannot be revoked other than by impeachment and conviction.
The President has sole Article II authority to determine what papers of his are Presidential records and what are personal. This extends to after his term. NARA is just a filing agency for the papers he determines are Presidential records (which the PRA already states). Subsequent administrations cannot revoke his authority over his personal or Presidential records without conviction in impeachment. They can *request* documents back, but the former President can only be forced to return documents after a review by the Supreme Court and their order.
The President is shown in full features in the Constitution, the Judiciary is pretty vague.
If the POTUS has no immunity, exactly where does the Judiciary find a place in the Constitution for immunity of judges/prosecutors to live ?
Either everyone has immunity or no one has immunity. Now if I was a judge I’d be hugely worried about no immunity given some of the appalling decisions that have come down via the judiciary in recent years.