Immunity Hot Take: The DC Case Against Trump Is Virtually Over
That doesn’t mean Jack Smith won’t keep trying to fight it.
For longer discussion, see my post this morning, Supreme Court: Trump Entitled To “At Least Presumptive Immunity From Prosecution For All His Official Acts”.
Here’s the Hot Take:
That was one minute.
You want longer? I appeared on the Matt Allen Show on WPRO in Providence, for a half hour discussion on the decision.
(If player doesn’t load, click here)
Note: I made one mistake in my radio interview, it was Smith not Trump who sought to get SCOTUS review without going through DC Circuit.
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Comments
AG Garland will just find another way.
Oh, I thought Garland was going to jail for Contempt of Congress. I guess not.
As a senior officer of the Coercive Organs of State Power, he in fact partakes of the absolute immunity for all acts until there is a purge. Congress will do nothing to him out of fear.
Subotai Bahadur
Why did you think that? It was always obvious that his own DOJ was not going to prosecute him, just as Holder’s DOJ didn’t prosecute him for the same offense. When’s the last time the DOJ ever prosecuted a member of its own administration, let alone an AG, for contempt of congress?
You forget: there is a “…..except for Trump” clause in the Constitution and Federal and state law – or so the Democrats and Joseph Goebbels media sincerely believe.
So yeah – the case will drag on.
I can’t see how Smith’s DC case isn’t dismissed or dropped. I think this is also a death knell to Fani’s case in GA as Trump all along has said he was acting in his capacity as President to make sure the election there was above board. Florida is going to be interesting. If the Judge rules Smith was not appointed legally to Independent Counsel that’s going to SCOTUS next year most likely.
For all the wailing and gnashing of teeth it looks like Bragg’s NY case is it and that has so much wrong it’s hard to see how that isn’t overturned.
I am surprised that Trump’s attorneys have not yet appealed Bragg’s case to a federal court.
Granted I have no expertise in criminal law, though I suspect that it cant be appealed to federal court until all state level appeals are exhausted and very well may never be appealable to federal court, especially since it is a state court criminal case.
Even though the NY court grossly misconstrued state law, I dont think that would be appealable to fed court.
The only thing that would get to federal court would be that inorder for the 34 counts to become a felony is if the falsified docs were in furtherence of another crime. The jury was effectively told to presume he committed those crimes.
If the errors in the NY trial deprived him of due process rights protected by the U.S. Constitution, federal courts would have jurisdiction over those issues.
I think your right but it will probably have to go through all the State courts first. I don’t know if that’s true, though
How long can the new york courts drag out the appeals process?
Justice delayed is justice denied and all that schiff.
Which is a conclusive presumption and illegal
Merchan doesn’t enter final judgement until sentencing, so it can’t yet be appealed.
Yes, in 99.999% of cases, that’s true. BUT, as Yale law professor Jeb Rubenfeld points out, because of the very unique circumstances of this case and the ‘irreparable harm’ it may mean for both Trump but also his voters, there’s another way, perhaps several other ways to appeal prior to sentencing.
https://youtu.be/u23t__ysVjU?t=1087
Not even the Ds have raised the possibility that the NY judge orders DJT imprisoned on the spot. That might be what it takes to get the federal courts to take the case.
Potential imprisonment isn’t the ‘irreparable harm’ Professor Rubenfeld has it mind, although that would likely be irreparable harm as well, particularly if it kept Trump off the campaign trail. Instead, the irreparable harm is the unlawful conviction itself. The professor gets into the appellate avenues around the 18:00 mark.
All it takes to get SCOTUS involved is a compelling federal interest
I am as well. There were a number of well-respected legal academics who have recently argued that there is in fact a clear pathway for appeal BEFORE sentencing. It will be interesting to eventually hear from Trump’s legal team why they didn’t find those arguments persuasive.
Trump has very good lawyers so I’m sure they have planned what they are doing out with care.
Which court would the appeal be filed with? That might be a reason why no appeal yet.
Southern District of NY, then 2nd Circuit and then the Supreme Court. The appeal wouldn’t be on the merits. Instead, it would be a motion for temporary restraining on ‘judgement of guilt,’ which the judge enters immediately before sentencing. As the professor explains, Trump hasn’t been convicted yet. A finding of guilt by the jury (or judge) ≠ conviction. A conviction doesn’t happen until the judge enters finding of guilt into the record. Most people don’t understand this because it’s such a formality it goes largely unnoticed. But, at the moment, Trump is NOT a convicted felon and won’t be until 10-days from now.
Unfortunately, this opportunity has likely now passed Trump because the Supreme Court is out of session….today. Who’s the Justice who oversees the 2nd Circuit (the justice who would decide an emergency application for restraining order)? Sotomayor. Had Trump’s team filed an appeal for TRO shortly after the jury verdict, SCOTUS would have had the opportunity to weigh in, if it wanted., before ending this term.
Don’t think it can be appealed until the sentence is delivered by the Democrat somehow appointed to this case and lots of others.
They violated Trump’s “due process” rights, they had a secret charge that was never argued or proven and he had no chance to defend himself from.
It should have been tossed already.
I read that they had to wait until 7/11 for the sentence before they can appeal. IDK if correct.
There is some way for Trump to appeal it directly to SCOTUS. It’s rarely used and even more rarely granted. But it can be done. If ever there was a case that called for it, this is it. It the same appeal Bush used in Bush v Gore. But I think Trump at least has to wait until sentencing. If he doesn’t do it then, then there’s something seriously wrong with his legal team.
Bush v Gore was immediately appealable to SCOTUS because there was a decision by the Supreme Court. SCOTUS is the normal 1st appellate court after a state supreme court verdict.
SB: ‘…because there was a decision by the FLORIDA Supreme Court…’
Thomas laid out the requirements in his concurring opinion
I read that and thought it interesting. When Thomas brought it up during arguments and Trump’s lawyer responded something like ” we are not prepared to do that at this time” it seemed clear to me they had already thought through that line of appeal and were making sure all the T’ were crossed first.
Smith’s case won’t be dismissed because Chutkan, Pan, et al, will simply deny Trump his ‘official acts’ protection
Yes, but because it’s a question of potential immunity, the appellate process on that specific question will have to be exhausted before trial can begin….which will take 18-mos, minimally, probably longer.
IMO, I think very little, if anything, of the “Jack Smith” and GA cases, will be left standing for the lower courts to proceed with, once all the Justices’ instructions have been addressed.
Whatever SCOTUS has not directly addressed, will be nullified by the injunction against conjecturing POTUS’ MOTIVES.
This is, of course, If Judge Aileen Cannon (FL) doesn’t MOOT everything when she throws Jack Smith’s butt right out of her Courtroom and the DOJ!
The beginning of the end…
Maybe
Trump should file a motion to quash the Maralago search warrant arguing the affidavit does not allege enough facts to overcome the presumptive immunity and Smith and the court are barred from considering motive.
NO ONE so far has explainedwhy Trumo’s autthroy as resident ti unilaterally deermine, with no accountability or explanation to anyone else, which documents are “classified” and which documents are NOT classified. Further, he has the authority, as ling as he is President, to determine what IA and IS NOT classified. And he has to do nothing more than simply decide all in his onwhether ay given document is/is no classified. ne more thing: by deciding ti remove ay given document from official custody and into his own, he autttomatically makes that document “nit classified”.
Thus since he decided to remove ALL the documents t Mar al Lago, his post-term privae residence, ALL the documents he had there re by definition NOT classified.
tht raid was, pure and simple, an attempt to la hands n a certain document (in ther words, a fishing exoediion” tto seize tht specific document, which as I nderstand it is a folder relatng tto sme gernment issue.. a vry sensitive issue because if published or revealed there aresme high up gummit uffishuls that will be somewhere between very embarrassed and indictable. I seem to remember they have sme connexion to the “Russian Collusion” team.
Bottom lin, IF that document was a Mar al Lago or any where else, in Trump’s custody or safekeeping, then it s NOT “classified” as he had so decided when he took possession of it.
Suck it up, creeps, is not Trump should be in the hoosegow, but these very FBI agents who raided i his home inappropriately. With evil intent. t
I’m renaming Monday, which is taken from Roman, Moon day
It’s Trump Day baby!!!
My man
“A Private Citizen Cannot Criminally Prosecute Anyone, Let Alone a Former President” – Clarence Thomas Questions Jack Smith’s Authority in Blistering Opinion on Immunity Ruling
THAT was a shot across the bow from Thomas declaring to Trump’s team to “go after Jack and the DOJ”.
Then both the DC AND FL cases go bye-bye immediately.
It appears as Thomas has ordered Judge Cannon to review whether the appointment was valid or not.
Thomas opinion is both short and concise.
She’s already doing so. Last I heard she set an order for a briefing to be followed by a hearing on this point and in doing so knocked aside the arguments of DoJ that they should simply be presumed to be validly appointed/authorized. She is doing a very methodical job that is severely PO the leftists who just wanna skip ahead past every other step and go straight to sentencing.
She is already doing that. It’s what the hearing last week was about.
Both at once?
This means the DC case against Trump is reduced to the fake elector certifications.
Do they get to call in Change.org as a witness to the organized campaign for faithless electors in 2016….. cause somebody paid for that hoo-haw?
It’s all up to the Hanging Judge to jail Trump
Which he very might do
They already gave Secret Service “the tour”
This is where we turn off the camera and lights and you guys disappear
When do they get a chance to throw out Bragg’s “novel legal theory”?
It seems to me the DOJ has a simple reply: Smith is NOT a superior officer. He is an inferior officer controlled by Garland. The AG has authority to appoint inferior officers to prosecute Americans. Case closed.
It’s to late for that, as Smith has taken acts (calling a grand jury) that can only be executed by a principle US attorney.
Thanks for your reply. Are you saying that only people confirmed by the Senate can impanel juries? There are no federal prosecutors that have not been confirmed by the Senate that can impanel a grand jury?
Yet, Jack Smith refers himself as special counsel. So he does what his boss wants him to do and without impartiality and neutrality. Also, the AG reports to the President. So Garland is bidding Biden’s orders to go after Trump. Guess Biden is immune with his criminal orders.
Well I dunno? Is hunting down your political enemy and throwing him in prison an “official act” as President?
This would seem to fall outside the scope of limited immunity??
Anyone else already picking out curtains for our next Attorney General and his marching orders? I’m sort of partial to a former clerk, current Congressman (although it would hurt me to see him out of Congress, but would allow him and a Republican gov to handpick a good replacement) who loves to chew on a good bone and has a love of restrained government.
I’m partial to Kash Patel.
People have been trashing Sotomayer for her dissent saying the majority makes it possible for the President to order a Seal Team 6 hit on his opponent and receive immunity. To me it seems it does. People are already saying the decision makes it impossible to indict Obama for ordering a hit on the American citizen working with the Taliban.
If that’s the case, why is this different from the president ordering a hit on his political opponent if he thinks the political opponent is working for the Taliban?
Someone else asked a similar question on the other thread. In his majority opinion, Roberts uses several examples to try and vaguely address this. A phrase he keeps coming back to is ‘within the scope of his exclusive authority.’ One case he cited is the Truman steel mill case, Youngstown, 343 U. S., at 655. In Youngstown, the Court held Truman acted ‘outside the scope of his exclusive authority’ when he nationalized several steel mills. Ultimately, it’s going to be up to the trial court to examine the specific circumstance of the alleged activity and determine of the president acted in that way, ‘within the scope,’ (as it did in Youngstown).
Is an extrajudicial assassination of an alleged treasonous politician on US soil ‘within the scope?’ I would think not. But, that’s going to have to be argued at a hearing and decided by a judge. If a judge decides it is, THEN the Executive would enjoy the presumptive immunity. But, if he doesn’t, he would not enjoy that presumption.
Like every new grant of immunity or privilege the Court has effectively created through the years – like spousal testimonial privilege, for example – the jurisprudence will have to be developed over time. Right now, it’s very confusing because it’s new critics have used that confusion to make outlandish claims (Seal Team 6, for example). But, after a couple decades of case law, I suspect this immunity won’t be any more confusing or controversial than judicial or prosecutorial immunity is today; both have similar standards of immunity to what has been extended to POTUS now.
Thanks for the very helpful reply.
The Congress drafts articles of impeachment including murder, conspiracy and denial of civil rights.
The Senate holds the trial and convicts.
The President is removed.
The federal prosecutors present before a grand jury the charges identical to the writs of impeachment.
The grand jury indicts, the former president is put on trial. The impeachment is, on its face, evidence that the actions were not constitutionally protected.
Well Biden just got through using a POTUS speech as a campaign/political event while supposedly addressing the SCOTUS ruling. Curiously several commentators today seem to be arguing in agreement with Biden’s list of talking points. In particular that this ruling is :changing’ the Constitutional order and that a POTUS can do ‘whatever they want’ without any consequence or restriction other than their own conscience/morality.
Well, Biden is living proof of this isnt he? 🙂
Do you have a specific example of a criminal statute Biden has violated as POTUS that you want him charged for after he departs office? His pilfering of classified docs was done prior to his term as POTUS so it doesn’t fit the argument. Even in that example Hur was appointed to conduct an investigation and decide whether the charges could be sustained through sentencing.
Are there federal statutes criminalizing perjury/false swearing (failure to abide by the oath of office requiring the faithful execution of the laws) and/or dereliction of duty (re: the border)?
Biden has re-confirmed that HE is THE threat to democracy.
daca>>I know its illegal but lets do it anyway
vp fjb>>>hey there are some documents that can use to get mo money from russia etc
I think I’l l put them in my garage
you mean like that,,Joey boy??
Pretty simple: Those charges were not invented and brought despite many years of scrutiny until Democrats and NeverTrumpers (BIRM) were angry at President Trump for winning the office, and the policies pursued while he was in office. Same thing for the state cases, both criminal and civil. NY passed a special law extending the time period for filing her type of lawsuit just so she could sue Trump in a kangaroo court.
When they reach SCOTUS again, I want someone to ask Justice Kavanaugh directly if his accusers should be able to haul him into a state or Federal kangaroo court on rape and sexual assault charges, or corrupt business practices, for which there is no actual evidence, because they don’t like his abortion ruling.
Don’t forget AJ Thomas’ separate concurring opinion, putting in words why the special counsel prosecution is in itself unconstitutional. This gives the Florida judge the much needed support to grant Trump’s motion to dismiss based on the bad appointment of the SP.
The Federal DC court must also go away. With the Jury pool consisting of a large number of Government influenced people a jury of peers is not possible. Cases should be brought in district courts far away from DC perhaps by lottery.
What about Trump’s right as a citizen to petition government? If he wasn’t dealing with Pence (over electors) and the GA AG (over votes and vote counting) in his official capacity, then didn’t he have a right in his personal capacity to petition any court, government agency, or government official to make any request for a favor or benefit that he cared to make? (I’d go so far as to say even a request for an illegal act should be permitted, as the citizens’ right to petition government should not be chilled by potential prosecution. It’s up to the office or officer petitioned to say, “Sorry, I can’t do that for you, it’s illegal.” Of course, bribery would still be illegal, and is even when what is being requested is itself legal.)
It is good that the SC quantified Executive immunity, and it is REALLY good that they didn’t use Sotomayor’s word-salad as the decision (which would have been an astounding disaster). Exempt for actions taken as the Executive, exempt for actions taken as mixed Personal/Executive, and not exempt for purely personal actions. Since 99% of the Executive’s time is spent doing things which have at least some Official-stuff to them, that puts the overwhelming vast proportion of his actions into the category of “Immune, unless you impeach and convict”
Sometimes, sanity prevails. The problem is there’s a lot of insanity fighting against it.
IMO, I think very little, if anything, of the “Jack Smith” and GA cases, will be left standing for the lower courts to proceed with, once all the Justices’ instructions have been addressed.
Whatever SCOTUS has not directly addressed, will be nullified by the injunction against conjecturing POTUS’ MOTIVES.
This is, of course, If Judge Aileen Cannon (FL) doesn’t MOOT everything when she throws Jack Smith’s butt right out of her Courtroom and the DOJ!