Below is my column in the New York Post on yesterday’s oral arguments on presidential immunity. As expected, with the exception of the three liberal justices, the Court appears to be struggling to find a more nuanced approach that would avoid the extreme positions of both parties. Rather than take a header off either cliff, the justices seem interested in a controlled descent into the depths of Article II.
Here is the column:
Writer Ray Bradbury once said, “Living at risk is jumping off the cliff and building your wings on the way down.”
In Thursday’s case before the Supreme Court on the immunity of former President Donald Trump, nine justices appear to be feverishly working with feathers and glue on a plunge into a constitutional abyss.
It has been almost 50 years since the high court ruled presidents have absolute immunity from civil lawsuits in Nixon v. Fitzgerald.
The court held ex-President Richard Nixon had such immunity for acts taken “within the ‘outer perimeter’ of his official responsibility.”
Yet in 1974’s United States v. Nixon, the court ruled a president is not immune from a criminal subpoena. Nixon was forced to comply with a subpoena for his White House tapes in the Watergate scandal from special counsel Leon Jaworski.
Since then, the court has avoided any significant ruling on the extension of immunity to a criminal case — until now.
There are cliffs on both sides of this case. If the court were to embrace special counsel Jack Smith’s arguments, a president would have no immunity from criminal charges, even for official acts taken in his presidency.
It would leave a president without protection from endless charges from politically motivated prosecutors.
If the court were to embrace Trump counsel’s arguments, a president would have complete immunity. It would leave a president largely unaccountable under the criminal code for any criminal acts.
The first cliff is made obvious by the lower-court opinion. While the media have largely focused on extreme examples of president-ordered assassinations and coups, the justices are clearly as concerned with the sweeping implications of the DC Circuit opinion.
Chief Justice John Roberts noted the DC Circuit failed to make any “focused” analysis of the underlying acts, instead offering little more than a judicial shrug.
Roberts read its statement that “a former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has acted in defiance of the laws” and noted it sounds like “a former president can be prosecuted because he is being prosecuted.”
The other cliff is more than obvious from the other proceedings occuring as these arguments were made. Trump’s best attorney proved to be Manhattan District Attorney Alvin Bragg.
If the justices want insight into the implications of denying any immunity, they just need to look north to New York City.
The ongoing prosecution of Trump is legally absurd but has resulted in the leading presidential candidate not only being gagged but prevented from campaigning.
Alvin Bragg is the very personification of the danger immunity is meant to avoid.
With cliffs to the left and the right, the justices are looking at a free-fall dive into the scope of constitutional and criminal law as they apply to presidential conduct.
They may be looking not for a foothold as much as a shorter drop.
Some of the justices are likely to be seeking a third option where a president has some immunity under a more limited and less tautological standard than the one the DC Circuit offered.
The problem for the court is presidential privilege and immunity decisions are meant to give presidents breathing room by laying out bright lines within which they can operate.
Ambiguity defeats the purpose of such immunity. So does a test that turns on the motivation of an official act.
The special counsel insists, for example, Trump was acting for his personal interest in challenging certification and raising electoral fraud since he was the other candidate.
But what if he wasn’t on the ballot — would it have been an official function to raise such concerns for other candidates?
When pressed on the line between official and nonofficial conduct, the special counsel just dismissed such concerns and said Trump was clearly acting as an office-seeker not an officeholder.
Likewise, the special counsel argued the protection for presidents must rest with the good motivations and judgment of prosecutors.
It was effectively a “Trust us, we’re the government” assurance. Justice Samuel Alito and others questioned whether such reliance is well placed after decades of prosecutors’ proven abuses.
Finally, if there is no immunity, could President Barack Obama be prosecuted for ordering the killing of a citizen by drone attack and then killing his son in a second drone attack?
The government insisted there is an exception for such acts from the murder statute.
In the end, neither party offers a particularly inviting path. No immunity or complete immunity each holds obvious dangers.
I have long opposed sweeping arguments of immunity from criminal charges for presidents. The devil is in the details, and many justices are struggling with how to define official versus nonofficial conduct.
The line-drawing proved maddening for the justices in the oral argument. The most they could say is similar to the story of the man who jumped off a building. As he passes an office window halfway down, another man calls out to ask how he’s doing. The jumper responds, “So far so good.”
As the justices work on a new set of legal wings, anything is possible as the nation waits for the court to hit ground zero in the middle of the 2024 presidential election.
Congress could fix this today without a new constitutional amendment.
Like White House staff (non-partisan civil servants that serve multiple presidents of both parties), Congress could make “legal counsel” in the White House and Executive Branch agencies career civil servants or longterm appointments.
In other words, no future president could choose his own government attorneys.
On sensitive issues, like does Biden have the authority today to order Seal Team VI to go after political opponents (like Trump). A future president would have to get a public legal opinion from these non-partisan government lawyers.
Presidents aren’t required to follow that legal advice, but presidents lose immunity from future prosecution when they disobey their non-partisan lawyers. Presidents only receive immunity from future indictment when they follow their lawyers’ advise.
Such a system would have prevented much of the alleged law breaking and war crimes allegedly perpetrated by the George W. Bush administration – where partisan Bush loyalists simply renamed torture to violate Ronald Reagan’s torture treaty or create an offshore prison to subvert American law.
If Trump had followed the advice of his own lawyers, he would like face “0” indictments. Trump ignored his lawyers and fired the truth-tellers which is why he now faces 91 felony counts.
+100
This just makes too much sense.
If the President does not choose, who then?
It is impossible to remove politics from a political structure.
A little too simplistic. If it were a single attorney, that attorney would have their own biases. Who would pick that attorney? How would you remove that attorney if the attorney demonstrated bias? How about three attorneys, and they couldn’t agree one way or the other, would the President be limited to accepting the 2 out of three position? What if there were three positions? What process to challenge the decision of the attorney/attorneys? Would you trust Comey to be that lawyer? Barr? Elias? We are supposed to have the check and balance of the legislature, but that disappeared, when the priority of the legislators became their parties, rather than their legislative body.
Anonymous said: “Congress could make “legal counsel” in the White House and Executive Branch agencies career civil servants or longterm appointments.”
In effect, this would give unelected civil servants, who cannot be dismissed by the President, immense influence and irrevocable direct power, over POTUS, and the Executive branch. And you think that is a good idea? I think it’s one of the worst ideas I’ve ever seen proposed.
Must rank right up there with the Supreme Court in that respect then, ayy?
We are actually in the middle of the 2024 presidential campaign, not the presidential election. We will be in the middle of the election at 3:45 AM on Nov. 6, when several swing states will suspend ballot counting to allow for the discovery — once again — of hundreds of thousands, perhaps millions of innocently “misplaced” mail-in ballots, all unfolded, needed to ensure Brandon’s victory. You heard it here first.
Aubrey Nagle said it best,
“Really really cool to watch Alito abandon all logic entirely by saying “leaving office peacefully is important, how could a president do that without immunity?” when the case in hand is literally about a president who did not leave office peacefully & instead tried a coup.”
Alito, the justice who likes to use historical precedent as a guide conveniently forgot Trump did not peacefully transfer power to his predecessor. He refused and encouraged a violent mob to send a message to Congress by attacking it and rioting.
Maybe we are focusing on the wrong individuals. Biden is being prosecuted thru his son. Trump can be prosecuted thru Kushner’s and Trump Jr’s actions. They were just as suspicious and immoral as Hunter Biden’s. That can circumvent the immunity barrier. Their children are not immune because they are not former presidents. At least that follows the logic of the right.
. He refused and encouraged a violent mob to send a message to Congress by attacking it and rioting
Come back when you find a grip on reality. The delusion you have created is not serving you well.
We all are aware that despite dozens of indictments, not a single one touches on the transfer of power.
It’s all about the transfer of power. Trump used violence to prevent a peaceful transfer of power. No other president has done that.
Trump encourage and let a mob attack congress to prevent the count from proceeding. That’s reality.
“That’s reality.”
Actually, yours is a textbook symptom of delusion. The delusional always feel that their delusions create reality.
Trump requested 10,000 to 20,000 National Gaurd Troops to be on site Jan 6. Speaker of the House Pelosi. The single person with the POWER to bring those troops in, refused.
Tell me again who encourged a mob. A mob poplulated by 100’s of participants under the control of 6 or more DC, or federal entitiies.
All of these outside the Presidents control
Trump did nothing to protect the Capitol. Full stop.
I begining to see the problem here.
oin
You have no idea that the Constitution exists, hence no concept of separation of powers.
Get back to me when you find a clue about the topic.
Wrong, no encouragement to attack or riot.
So why did the crowd after hearing half of trumps speech head to the capitol building and assault police officers and break windows gettin into the capitol building? Of those arrested, 100% were trump supporters, Today, many of those arrested are not longer trump supporters.
You are ABSOLUTELY wrong.. Please point to one thing that Trump did on J6 that was not peaceful. Look if you are going to lie, please try and make it plausible. a good lie is something that is founded in some believable truth if that believable truth is not there it becomes nothing more than a fairy tale.
Mr Turley this column is beneath you as it amounts only to “on the one hand yes and on the other, no”! You should, on such a momentous decision, taken an actual stand.
“I have long opposed sweeping arguments of immunity from criminal charges for presidents. The devil is in the details, and many justices are struggling with how to define official versus nonofficial conduct.”
I’m afraid that if we start to parse out the details we will see more and more prosecutions of incumbent Presidents as well as former Presidents as their political enemies seek vengeance for the least crime possible. Better to give them full immunity then to run to the courts for a decision
This shouldn’t be a difficult decision. What the conservative block of SCOTUS is trying to do is thread a needle that they think it exists.
Former presidents are not special. They are former presidents, private individuals with a title. What they should have made a clear distinction is what is an official act. A president’s official acts are pretty clear. Even the case of JW vs. NARA pointed this out. Clinton deciding to make a historical record of his term in a book was not an official act. He was not required by law nor did it affect policy. Judicial Watch argued it was an official act and that’s why the records it sought were claimed to be presidential record. They were not. Judicial Watch lost the case. I’m surprised SCOTUS didn’t mention this case as an example.
Conservative justices, especially Alito, tried hard to argue in Trump’s favor without making it look like he could claim full and absolute immunity from any prosecution. Trump’s actions were clearly criminal and not part of his job as president. Trump has been muddying the water so much that those with an inclination to support him try to take advantage of it to justify the claims he makes.
What they should have made a clear distinction is what is an official act.
You are oh so close, and yet planets apart.
This very simply rests on article 2 powers. Every agency of the federal Govt has power. They President has the soul power over all those agencies.
Can the DoJ investigate election processes? Then the President has that power to do his own investigation.
That’s not what defines official acts. What Trump did were not official acts.
“That’s not what defines official acts.”
Since you claim to know, what is the definition of “official acts?” Not examples. The definition.
Says Who? You???? Who out there gets to decide what was the reasoning a president makes a decision by. Who out there gets to decide why a president makes a decision and performs an action Who gets to decide if a decision or action was for the president the person or the office of the president?
What is lost in all the hypotheticals, centers on assuming immunity, means immunity from conviction. We are witnessing the actual political abuse, focuses on the process, being the retribution.
The world knows, every single legal challenge facing Trump will be appealed and overturned. The process is the retaliation. Thats why blanket immunity is the only option.
Whats the down side? We are 240 years into this young experiment. We have not yet had 50 presidents. Our Nations Justice System rests in the bedrock truth, that prosecutors(government) is littered with corrupt actors. Justice demands , the Accused is guaranteed every advantage over the government.
That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a maxim that has been long and generally approved; never, that I know of, controverted.
Benjamin Frankli
Insane. Just stop trying to be cute and say you want absolute dictatorship in the U.S.
The current adminstration’s autocratic actions far exceed anything President Trump could even dream of.
You are the one promoting dictatorship
Thanks for providing an opportunity to laugh maniacally at your delusion. Get back to me if Biden tries to overthrow an election.
He is trying to overthrow one now.
Even if your fever dream were true (and it’s not), it’s hypothetical. Ginny’s deeds aren’t hypothetical.
Here we go again.
Smearing with some nebulous “deeds”. Yet they are so criminally fraught, you cant even identify a single deed that might violate a law. Not even one.
Using political influence to obstruct election results is a crime. You just agree it’s a crime….
You always do this ‘name the crime’ schtick and when people do you just ignore them. Probably because you believe R’s can’t commit crimes like obstruction, fraud, espionage and witness intimidation.
Using political influence to obstruct election results is a crime.
Can the DoJ investigate elections. Can they interview elected officals concerning the votes and the process of certification? Is that within the DOJ constitutional power? Or are States immune from investigations?
Trump believes he’s immune from
anything criminal he does because he’s a former president. He still thinks he has certain privileges as a former president and is not a “normal person”. He’s above the little people.
Then What?
Suppose you argue, per the Left, that *the* president (not “a” president, “the” president) does not have immunity from prosecution — of any type (criminal or civil), anywhere (federal, state, local).
That, at least, would be a principled argument. But then what? Or is “then” too abstract, too forward looking?
At every step of the legal process, elites are trying to shift power away from juries toward Judges. The ability to delay the ultimate judgment of a jury (What are the facts of a case? Do they point to law-breaking guilt?) is mind-numbing to watch. Big-shot defendants like Weinstein with the $ are showing that jury verdicts are not invincible.
This is causing a breakdown in deterrence.
Who is more powerful?….the People via a scrupulously crafted system where a Jury decides, or the wealthy, powerful individual?
Power is incrementally being stripped from the People to enforce laws and norms. Too many ordinary people are being suckered into surrendering their power, thinking one elite or another should be entrusted with unchallengeable power. Either the elites work in service to the People, or the people end up subservient to the elites. Jury verdicts and their force were being whittled down in the Supreme Court yesterday. At least 2 Justices were proposing procedural inventions to disempower juries as finders-of-fact, and substitute District and Appellate Judges intervening before trial to ascertain immunity. This power grab by elites strips power from a Jury to decide the facts and guilt without interference or years of delay.
Too few Americans understand how our power — vested in a Jury of 12 independent thinking agents is — designed by our genius Founders — is being carved up before our very eyes.
The Grand Jury process (necessary for indictment) has already been commandeered by D.A.s as a rubber stamp. This explains how Bragg got away with an indictment when no other prosecutor thought there was a case. There was a time when Grand Jury members could stop an over-zealous prosecutor in their tracks by forcing him/her to answer questions.
The next step toward despotism is to do the same number on Trial Juries — with artful carveouts. Who is going to stand up for the power of Juries? Who is going to oppose the ability of elite defendants to delay, delay, delay?
Funny thing Is, Team Leo didn’t spend much time on the facts of the case they,’ve insisted on taking. I wish Dreeban would’ve pointed that out, in particular to Gorsuch and Kavanaugh.
Alito, as usual, was clueless and obnoxious. And the fact that Thomas didn’t recuse for conflict of interest says everything we need to know about the Court’s intentions for this case.
Looks like the best case scenario for Jack Smith, who doesn’t hold the position on lack of any immunity that you try to define him as having Turley, is for the case to get busted back down to district court for an evidentiary hearing before the election just so the public can hear the egregious behavior of trump and cronies should they choose to.
In that instance everyone gets a version of what they want…team Leo does what they’ve been hired to do and the evidence doesn’t get entirely squashed.
And for anyone in doubt of whether the court is in the bag for trump, yesterday should scuttle those doubts.
Anon: I’m sorry but could you repeat your message? I don’t seem to be able to understand it.
Really? Are you that clueless?
And the fact that Thomas didn’t recuse for conflict of interest says everything we need to know </i
Of Course a Supreme Court Justice using the rules of the court make that decision Thomas is not required to recuse
Judge Merchen however is required to recuse, and has not.
Your opinion based on Team Colors is duly noted, cancelling your relevance to the discussion
I suppose the fever dream is telling you Merchan should recuse because his daughter holds different political views than you and trump…
But while I’ll watch right wing media from time to time to see what you clowns will repeat verbatim the next day on the Turley blog, I’m not sure how this delusion compares to a judge sitting on a case at the SCOTUS after his wife played a role in the conspiracy to overthrow an elected government?
because his daughter holds different political views than you and trump…
That’s a meaningless sentence that buries the lede. Quite by design,
Judge Merchen’s Daughter is making money by generating opposition media content against Trump. The worse this court case,(controlled,by her father Judge Merchen) the more money his daughter makes.
Justice Thomas is married to a person that works outside the home. His single vote out of nine benefits no one.l
Okay quick crash course in differences between a democratic Republic and dictatorship: in a democratic Republic a judge’s daughter is allowed to have a political opinion and even earn a living from it…
But the wife of a judge playing an active role in a conspiracy to overthrow an elected government while the judge rules on a related case without recusing definitely falls within the dictatorship space.
OK a quick crash coarse in law.
An accusation is not fact.
A paper trail of communications with a chief of staff recently indicted in a false elector scheme in Arizona takes this beyond accusation sorry to say…
And while I’m saying stuff I should point out that you meant to say “course”.
Where is that communication barred?
The facts of the case were not germane to the discussion. the discussion was about presidential immunity
This is a fascinating constitutional challenge whose solution, should there be one, will reflect the prescience of Justice Gorsuch who said during oral arguments yesterday, “We’re writing a rule for the ages.” It was interesting to see just how the justices navigated around the sensitive theory of official integrity as somehow being the anchor chain here keeping everything else in its proper place. Their questions, though, belied a lack of faith and their pragmatic recognition that it may not be wise to rely on the integrity of those we elect and appoint. Hence, the need for a command, either as a new statute or the Court’s interpretation of an existing one, to protect not the president but the people who, after all, are in charge of this country. Amazingly, even while out of office, Trump has managed to seize the engines of government in ways that will make them better and more efficient. The testimony that was not given yesterday is perhaps the most powerful. Justice Jackson mentioned how complete immunity might make the presidency the seat of crime in the U.S. She could have used the current administration as an example of this. What the Biden-Obama administrations have done – from Russiagate to the current election interference and lawfare campaign – exemplifies what Justice Jackson was warning about – yet all this was done without official presidential immunity. Perhaps the answer is to leave everything alone but enact a statute to give the Supreme Court the only court with original jurisdiction for criminal cases brought against former presidents. This would reduce or eliminate bottom-of-the-barrel elected prosecutors of the sort we have in New York City and Fulton County, as well as politically motivated zealots like Jack Smith from paralyzing the nation with ham sandwich indictments designed solely to prevent the election of the current president’s opponent. While Justice Jackson got it right for the wrong reason, I have more faith in the U.S. Supreme Court to deliver justice than the motley crew of prosecutors and biased judges now running the show.
Too short-sighted. The composition of the Supreme Court could look very different 15-20 years out. It could be dominated by activist social engineers with their “any means possible” bravado.
The stability of our freedoms depends upon spreading power far and wide. It is a bone-head mistake to concentrate power in one place as suggested.
PbinCA: Thanks for the reply. I understand and accept your skepticism but differ with your statement that “It is a bone-head mistake to concentrate power in one place as suggested.” Sometimes doing so is wise, as in th military when we give commanding officers concentrated power to fight battles, or in an operating room when the chief surgeon runs the show. When authority is diffused, so is responsibility for the acts it permits. Yes, the Supreme Court could be very different in 20 or 30 years, just as it is different today from what it was 20 or 30 years ago. Even so, there is some involvement of the public by virtue of the president needing to nominate and the Senate needing to confirm persons to the Supreme Court. That, alone, is a vetting process significantly better than judges and prosecutors elected by local constituents who may have biases as we’ve seen in these lawfare cases. I accept that it may not solve all the problems or all of the specific problem we’re discussing, but it would be an incremental improvement over the present system.
A cleaner rule would be to give the president the ability to file interlocutory appeals for all criminal prosecutions regarding conduct while in office. Then any misguided cases can be tossed before much litigation.
Sammy: This would be one possible answer but realistically this just kicks the can to a higher level where, as in the case of the District of Columbia, we cannot be sure there is a difference in political philosophy between the district court and the Court of Appeals. In addition, often the best reasons for appeal are flushed out during the initial trial court’s proceedings and the appellate court would lack this if required to rule on an interlocutory appeal before any fact-finding is completed. To my suggestion of giving the SCOTUS original jurisdiction for criminal cases against former presidents, I also would recommend that any such statutory authority require that the attorney general of the United States be the actual prosecutor on behalf of the state or federal jurisdiction bringing charges. The aim here is to keep frivolous or marginally cognizable cases involving former presidents OUT of court and making the process of litigation more complex and more closely managed and scrutinized may prevent this as well as prevent abuses like the ones we are now suffering through.
The Congress would have to pass such legislation–and the POTUS might sign it into law. On the state level there are precedents; in Mass. our legislature has enacted some appeals/consideration of agency actions (the setting of auto insurance rates was a big example) being handled DIRECTLY by the Supreme Judicial Court, our antique name for our supreme court under our 1780 Constitution, reputedly the oldest in the world still in use.
A thought on a short circuit. Elsewhere I’ve read questionings of Jack Smith’s own appointment. Perhaps the Solution is to declare Jack Smith’s appointment Unconstitutional—and thus Null and Void. There. Problem solved. Then settle things properly, by an Election.
It IS SAD that Nancy Pelosi’s having those Demonstrators let in on the Feast of Epiphany kept the Congress from considering whether those Electoral Votes/Ballots were valid. There are even Constitutional problems with the Electoral Count Act of 1887 to be addressed; that Act’s original purpose was to protect
the Democrats’ power to suppress Black votes Down South. The revisions McConnell and others agreed to a few years ago largely took ANY power of Congress
to do ANY investigating of “Electoral Ballots”. Thus the next seriously disputed election, say Biden’s “loss” in the Electoral College, would probably lead to War Between The States again.
So, let Congress do what it’s best at—Compromising and Making Deals. For better or worse that’s what they did from the beginning of January to The Fifth of March 1877 because Inauguration Day March 4 was a Sunday. (We should consider changing terms to start on Washington’s [new] Birthday of Feb. 22nd to give more time to hack things out in the Future.) Final decisions were confirmed on March 3. Quite a story to it. Black man named Wormley did quite well out of the negotiations in 1877—most negotiations for the Electoral settlements were made at his hotel (Wormley’s) and he had everyone pay cash.
Hey, I gotta go do Other Things! Can’t talk no mo’!
if it goes the track of the court deciding what is within the scope of the powers of the office of the presidency, effectively the SC will be that arbiter by default because every decision by a lower court will be appealed to the S.C.
The answer is right there in the constitution. It’s called impeachment. Otherwise there is nothing else regarding prosecution of the president. And impeachment only applies when the president is in office because it is specifically used to REMOVE the president from office. Not the abortion of impeachment that Pelosi attempted. No successful impeachment should mean no prosecution after he leaves office. You have to get him while in office or he is free when he leaves office. That would even get Obama and Biden off the hook even though I detest the possibility.
The President was fighting some very strange election results all across the country in 2020 and the fact that he was the office holder is irrelevant. Tell me the last time a president increased his vote total by nearly 11 million and lost, especially to a man living in his basement.
The Supreme Court or the Congress should also revisit the question of “lack of standing” which seemed to be the default setting by most courts in 2020-2021.
This is Chicago Politics writ very large. I remind all respondents that Obama won his first primary by getting everyone else tossed off the ballot, including, I believe, the incumbent.
There is that 14th Amendment section. My reading of that section that a POTUS who is in Rebellion against the Constitution in NOT seeing the Laws Faithfully Executed, say by NOT having our immigration laws enforced, immediately ceases to be POTUS and doesn’t need impeached! Joe Biden is thus no longer our POTUS so everyone just start ignoring him and leaving him to babble in a corner. Unfortunately the SCOTUS in its decision deliberately didn’t address state enforcement of its provisions allowing removal of state officers/employees to go on unimpeded. So, when Joe Biden comes to town–just ignore him as the imposter he is. Tragic events might ensue if police protection were NOT provided during a POTUS visit. If his motorcade got caught in a jam of traffic confusion such as happened to a certain Archduke in June 1914 in Sarajevo something–anything–unfortunate might happen. (Our other worry is an Indira Gandhi-type situation.)
Anonymous said: “My reading of that section that a POTUS who is in Rebellion against the Constitution in NOT seeing the Laws Faithfully Executed, say by NOT having our immigration laws enforced, immediately ceases to be POTUS and doesn’t need impeached! Joe Biden is thus no longer our POTUS”
Assuming that you refer to Section 3, your interpretation would mean that any Federal officer who violates the letter of his or her oath of office is immediately terminated for cause, without requiring any further action from Congress or the Judicial branch. That, in turn (since virtually no Federal elected or appointed Federal employee faithfully honors that oath), means that we no longer have any such employees in any branch of the Federal government, which, as a necessary consequence, is thereby dissolved. Frankly, that is just fine by me, but I suspect it wouldn’t play well in Peoria, or pretty much anywhere else…
The constitution says nothing about presidential immunity other than clarifying that impeachment and criminal prosecution are not double jeopardy. So we are already into the land of SCOTUS deciding cases based not on what it says, but on what they think it should say. And the NY fraud case would not be affected anyhow since the actions happened prior to office. The classified document case would also not be affected because that happened after office.
Sammy, using your massive constitutional expertise, point out where prosecutors immunity is enumerated in the Constitution.
1. It is not and they should not get immunity.
2. They get civil immunity, not criminal. Prosecutors and judges have been prosecuted for crimes they commit on the job.
But Judges and Prosecutors do have immunity. It can be pierced. The fact remains, immunity is an invention of the Judicial Branch. As Presidential Immunity from civil suit, is an invention of the Judiciary. Just Pointing out, that for the branch of govt that has no power to legislate, Judges do a lot of it. Your hair on fire wailing that the Constitution does not mention immunity is meaningless, under illumination of history.
When Trump took those documents out of the White House, he was POTUS – therefore, it was an official act. And everything that happened afterwards related to those documents, stems from or flows out of that first official act.
He is only being prosecuted for crimes that happened a year or so after he left office. Even if you were to accept that he was allowed to move the documents when he was president, that in no way saves him from crimes he commits with them after he is president.
, that in no way saves him from crimes he commits with them after he is president.
You leftist always speak rhetorically.
Stop using the word crime, unless you name the action that violates the law.
He’s being prosecuted in DC for actions he allegedly took while still President, which is why the arguments focused on whether his motives were private, i.e., to keep himself in office.
Election integrity is a legitimate concern of every President.
Election integrity is a legitimate concern if the president is trying to ensure integrity, not undermine it.
Motives are subjective
That’s why we need to focus on constitutional power. Are the acts within A 2 powers?
actions he allegedly took
Yet you never identify the action.
Bragg/Colangelo also have charged Trump with the action of fraudulent accounting entries. A misdemeanor But WAIT there’s more! That accounting action is elevated to a felony by another criminal action. OH MY.
BUT 3.5 days into the Trial ,Bragg/Colangelo are keeping the second action a well protected secret.
What IS clear, Pecker is not the person to deliver that secret Action. Pecker has been a Great witness for the defense, obliterating the phony talking points presented by the prosecution.
So when the archives asked for the documents back, why did trump hide them and say he had no documents?
It also gives the President pardon power, except in cases of impeachment – presumably so he can’t pardon himself if he is under impeachment.
Do we want every president’s last act in office on the morning of Jan 20 to be giving himself a blanket pardon? If not, there has to be some presidential immunity.
It will be held that the president can not pardon himself, which is correct.
Not according to the Pardon power as stated in the Constitution
This entire fiasco reminds me of:
“Senate Majority Leader Harry Reid (D-Nev.) used the nuclear option Thursday morning, meaning he called for a vote to change the Senate rules by a simple majority vote. It passed, 52 to 48. Three Democrats voted against changing the rules — Sen. Carl Levin of Michigan, Joe Manchin of West Virginia and Mark Pryor of Arkansas.”
This was great until the Democrats had to face the rules. If all parties had a lick of sense they’d back off on all the ridiculous charges against President Trump and let the people decide who will be President.
If this goes the wrong way like Reeds nuclear option the Democrats will face the same fate that President Trump now faces.
The Democrats have the mind of the Media, or the Youth, particularly young women, in that they only live in the moment. They are driven totally by emotion. They never think ahead to how their precedents might affect them in the future. And they assume their natural advantages from the growing non-white population and radicalized youth give them permanent power. A big source of this mindset could be a side effect of concentration. Big cities and the entire major Media are so totally Democrat that the notion of the other side ever taking power again seems unthinkable to them.
I’ve said before – the biggest restraining force against prosecuting former Presidents for over 200 years is the notion that the other side will inevitably get back into power, and it is the nature of politics to get payback. Obviously, the people calling the shots on the Dem side have no fear of payback. They should. Probably they are right that a Trump 2nd term will have no ability to get revenge, but a future successor might be able to do so – in spades.
“There’s nothing a leftist hates more than being held to their own standards.” –Derek Hunter
Because of Democrats craven desire for power, they’ve brought us to yet another constitutional crisis. Thanks Nancy Pelosi for two bogus, baseless impeachments that has destroyed the serious nature of presidential impeachment. Thanks Chuck Schumer for changing the impeachment clause of the US Constitution by declaring the impeachment of Alejandro Mayorkas to be “unconstitutional”, thereby destroying the impeachment clause forever. Thanks Republicans for doing nothing while the US Constitution is wrecked. Useless, immoral leaders only focused on self-enrichment and the choreographed looting of the US Treasury. Bravo!
The House prosecution in impeachment Part 1 was based completely on fabricated information. Impeachment Part 2 was based mainly on fabricated information. The evidence of Prosecutorial malfeasance is clearly before the SCOTUS. Justice Roberts presided over both cases. He has clearly seen this in action in the Senate and now sees it in the US Court system. Question is will he do anything about it???
Trump’s attempted coup also had something to do with this crisis.
@shammy – You mean like Paige, Strozck, Comey, McCabe, et al that attempt, right Shammy?
The most absurd moments in the oral argument were when Dreeben said several times that the good faith of prosecutors, the vigilance of grand juries and the respect of judges for due process were sufficient guarantees for a President. In the current context, this is laughable.
It seemed to me that the Justices were heading to a close decision in favour of remanding to the District court to distinguish those allegations relating to official acts that benefit from immunity from other acts that do not. In doing so the Justices will likely fashion an objective test similar to the one devised by the D.C. Circuit in Blasingame. The decision by the District court about what’s in and what’s out would then be subject to appeal.
If that is how it plays out, there will be no trial on this before the election.
Daniel, I think the most absurd, yet illuminating part, was when Dreeban, when question, said the Presidents actions would be legal . . . .IF an inferior officer, like the AG appoved. An OLC memo, which has ZERO weight in any court, CONTROLS, or OVERIDES. Article II powers of the President of the United States
Remember the Clint Eastwood movie, “Absolute Power?”
give the progressives what they want. Then when Trump is elected charge Obama with capital murder, conspiracy to commit murder, and manslaughter (there were other Americans that were not specifically targeted). Because so much of today’s stupidity is directly attributable to Obama politicizing the federal government, it would be a fitting end.
“I have long opposed sweeping arguments of immunity from criminal charges for presidents. The devil is in the details, and many justices are struggling with how to define official versus nonofficial conduct.”
Here, the better option is SWEEPING IMMUNITY – because the Reality is, we have SWEEPING PROSECUTORIAL MISCONDUCT. And not just in some back-water rural state, but in New York, of all places.
I hope SCOTUS forgets what would be proper and appropriate if the U.S was not already a Banana Republic, but guess what – we are already a Banana Republic. Lawfare and a sleazy bunch like the Democrats, will do that to a country.
Wouldn’t it be nice if they just allowed the Constitution to dictate their rulings, rather than always trying to split the baby?
faceinacab wrote, “Wouldn’t it be nice if they just allowed the Constitution to dictate their rulings, rather than always trying to split the baby?”
To what exactly in Article II (or the COTUS) do you refer?
Section 1 of Article II, by far the longest section of the 4, relates to presidential elections. However, section 1 ends with what I consider an important note: “Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:– I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” While carrying out legal Executive authority is inherent, I can find no hint of immunity for criminal acts.
Section 2 describes Executive authority with a good portion contingent on Senate approval. Even the much-vaunted and misconstrued Commander-in-Chief clause is conditional [emphasis mine]: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States…”
Section 3 relates to the president’s relationship with Congress. Again, no hint of immunity.
Section 4 relates to the general terms under which a president or VP may be removed from office when found culpable by Congress.
Interestingly, your comment about Solomonic justice poses an interesting parallel to the prosecutors’ mad drive to exact political vengeance – in the Bible, Solomon determines which woman is the real mother by rendering his “split the baby” decision. The pretender is willing to let an innocent life be destroyed because of her twisted and fanatical mental state; the real mother is willing to forgo her kinship with the fruit of her loins if it will save her baby’s life. My suggestion is that we citizens (via Congress and state legislatures) consider the removal of persecutorial discretion from their chest of authorities; the secondary fruit of this decision is that both state and federal governments would logically (hard to use that word in relation to government) be forced to pass laws that are less subject to sweeping and generalized interpretation and less prone to prosecutorial zeal for wrongthink. That is to say, quality legislation that conforms to Article I, section 8 over the quantitative, demagogic mess we see today.
Personally, I generally think that Trump is being politically persecuted by these bootstrapped charges in both the State and federal courts. In that vein, I would support Obama’s prosecution for his extraconstitutional use of military force without a declaration of war by Congress – a 20-yr old mal-applied AUMF is not the same thing as a declaration of war. We citizens should stop accepting such unconstitutional warmongering from any president. As such, should Trump face prosecution for launching 59 cruise missiles at Syria just 7 months into his term of office w/o a declaration of war by Congress? To quote Yoda: “If you honor for what they fight for…yes.”
Sauce for the goose.
While carrying out legal Executive authority is inherent, I can find no hint of immunity for criminal acts.
But the definition of criminal is at the core of the debate. We all seem to agree that the IF you are President, it is not a crime to intentionally seek out and kill an American citizen, with not even a nod towards due process.
Stop using the term crime and replace it with Power. Is there an article 2 power? If there is, so to is there immunity.