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.
Dear Prof Turley,
The entire 21st century (so far) is a testament to U.S. presidential immunity. From assassinating U.S. citizens (more than a few), algorithmic Droning, rendition, torture, overthrowing governments around the world to war and rumors of war.
Congress is vested with holding Presidents accountable, from high crimes to misdemeanors.. . But that’s like the hen house guarding the fox.
The three impeachments in my lifetime – from Clinton noodling Monica to Trump’s J6 Coup – were farcical. Hell, congress impeached Trump for the sins of Joe Biden in Ukraine .. . and look at that war-torn country now.
SCOTUS, and Justice Brown-Jackson in particular, trying to understand “what the disincentive is from turning the Oval Office into the seat of criminal activity in this country” strikes me as decades late and untold billions of dollars short. (i.e. divorced from reality.)
The Oval Office is a hot bed of criminal activity.
*”imagine what we can do with four more years .. . pause” ~ Joe Biden
A sitting president is not immune and is amenable to indictment and criminal prosecution.
The Constitution and Bill of Rights DO NOT provide the President with immunity from indictment or criminal prosecution.
The Department of Justice has no power to legislate, modify legislation, amend, or otherwise or variously alter or misapply statutory or fundamental law.
The Department of Justice’s position on “A Sitting President’s Amenability to Indictment and Criminal Prosecution” has no legal power, force, or weight and is illicit and unconstitutional.
A “careful weighing of evidence and testing of premises,” per Merriam-Webster, reveals that the actions of the Department of Justice do not comport with the Constitution in the case of presidential immunity.
__________________________
Department of Justice
Office of Justice Programs
A Sitting President’s Amenability to Indictment and Criminal Prosecution
The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.
October 16, 2000
M e m o r a n d u m O p i n i o n f o r t h e A t t o r n e y G e n e r a l
“In 1973, the Department of Justice concluded that the indictment and criminal prosecution of a sitting President would unduly interfere with the ability of the executive branch to perform its constitutionally assigned duties, and would thus violate the constitutional separation of powers. No court has addressed this question directly, but the judicial precedents that bear on the continuing validity of our constitutional analysis are consistent with both the analytic approach taken and the conclusions reached. Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.”
RANDOLPH D. MOSS
Assistant Attorney General
Office o f Legal Counsel
George, your opening line is misleading.
EVERY sitting President is at risk of impeachment/prosecution/conviction BY the House & Senate.
This is why the courts have no business in this ruse.
Separation of powers.
PS, if you have to push an appeal to authority, you know your argument is BS.
Dunning–Kruger Effect
The Dunning–Kruger effect is a cognitive bias in which people with limited competence in a particular domain overestimate their abilities.
– Wiki
________
Synopsis: Stupid people are too stupid to know they are stupid.
This discussion has nothing to do with constitutional impeachment and conviction.
This discussion has everything to do with indictment and criminal prosecution by several jurisdictions.
The DOJ did not propose that a sitting President is immune from impeachment and conviction.
The nut is in the bottom line of the DOJ’s position.
The DOJ wrote, “Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.”
I wrote, “A sitting president is not immune and is amenable to indictment and criminal prosecution.”
You wrote your personal opinion, whatever that is, which indubitably holds dominion.
The DOJ is innately biased toward the executive branch.
The Constitution provides no immunity.
Thank you so much, Anonymous “The Dastardly.”
Congress or the States must propose and ratify a constitutional amendment in order to provide immunity from indictment and criminal prosecution to the president.
Yes, but SCOTUS also has the power to change the constitution themselves.
You can find that in article III
But but SCOTUS is not intended to have the power to change the constitution themselves.
Changing “interpretations” is what the slimy ones do.
Sammy, thank you for citing the Constitution wherein it is provided that the “…SCOTUS also has the power to change the constitution themselves.”
Nowhere is the judicial branch provided the power of amendment in the Constitution.
The judicial branch must merely assure that actions comport with statutory and fundamental law.
“UNDER THIS CONSTITUTION”
This Constitution AS IS.
In fact, Article III, Section 2, states clearly that “[The] judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,….”
___________________________________________________________________________________________________________________________________________________________
Article III
Section 1
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Section 2
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,…
Congress or the States must propose and ratify a constitutional amendment in order to provide immunity from indictment and criminal prosecution to the president.
You got lost in the lefts narrative.
This about Article I power. Can the President be criminal prosecuted by exercising Article I power?
Jonathan, Bragg is NOT bringing this case and YOU KNOW THAT…….Biden is bringing this case, and the one in Miami, and the one in Atlanta, thats what happens when you allow stolen elections and do nit call it out, YOU KNOW it was stolen, quit playing games sir. Elect a man who has no brain function, thus the Marxist TAKES OVER. They do not care about the Rule of Law sir.
“It’s the [Obama], stupid!”
– James Carville
Wait, Biden is bringing this case? But I thought good old Joe sleeps all the time and is incompetent. Is Joe incompetent or is Joe a mastermind? Can’t have it both ways.
You have discovered a weapon in place (biological, dirty bomb, you pick it) ready to go off in New your City with a 2 hour timer. No one can disarm it without key information. The city can not move it or evacuate to the required 50 mile radius in 2 hours. A terrorist with full knowledge of the design and how to disarm it has been captured. Law enforcement has asked the President to authorize torture because it is the only way to save millions of people. His authorization would clearly be a felony. He might have immunity, but he is a Republican and probably does not. In Jack Smith’s world he would have to ok the torture, gas up air force one and to head to a country with no extradition treaty to the US. Is this what we want?
I would suggest immunity is not the real issue. The real issue is whether or not a candidate for any elected office can be prosecuted for challenging a close election. This may sound like a stupid rhetorical question. But if the answer is yes, then every democrat that challenged Trump’s 2016 win needs to be prosecuted along with any other politician who ever challenged a close election.
No one is saying that a candidate can not challenge the election results. They are saying that the candidate can not use illegal means to overturn and election that they lost.
But first it must be established (proven) a POTUS has used “illegal means.” Simply imagining and asserting does not cut it.
Quite the opposite. Immunity means there can be no prosecution even if there is indisputable proof. No immunity means that it goes though the normal process of hearings and a trial, and that is where proof is adjudicated. We want to be able to bring the case against Trump to trail.
Quite the opposite. Immunity means there can be no prosecution even if there is indisputable proof.</i
If the President exercises Article I power, there is no crime.
Prof. Turley, let’s put your Excellent Analysis into even clearer context by including the backstory here: We have in Office now, the antagonists in this case, all players from the opposition Party, all Democrats: 1.) a President, who took record numbers of Classified Docs over the years without any authority while Senator or VP, and somehow with complete ‘IMMUNITY,’ without any scrutiny, accounting or punishment whatsoever when this was discovered since he’s been ‘President,’ 2.) an ever “shrinking” AG selected by this President, and 3.) a rabid inquisitor as SC, who tried before to destroy a ranking member of the opposition (GOP Governor) with his same inquisitorial modus operandi. With all due respect to SCOTUS.. surely they have the same God-given eyes as we have to be able to see that all of this is Politically charged and motivated… and to serve ‘Justice,’ this must be seen front & center as a dominating factor in this case…
The case of Sen Biden stealing classified documents can be prosecuted after he is out of office, because Bragg says SOL is paused while the President is in office.
IMO the Supreme Court is incredibly untrustworthy.
The big problem right now is that Alvin Bragg has a great deal of immunity, and his target doesn’t. The court has to level this up.
This is a problem everywhere in law enforcement. Qualified immunity protects good cops from criminals who would make every arrest an occasion for personal revenge. Bad cops hide behind qualified immunity to commit fairly serious crimes, and there are YouTube channels where you can watch such uniformed rogues ad nauseum.
Bragg knows there is virtually zero risk to himself in pursuing a “get Trump” agenda. Maybe it’s not presidential immunity that needs correcting.
Great point, Bro.
It asks the ultimate questions, who governs the government.
The People. ALWAYS the people
To Amend. The People, and STATES. according to the Constitution.
One way or the other will this include “nice old gentleman even though he has a bad memory” or will being old with ment.. memory issues or party affiliations shield you?
James Madison nailed it when he had said this, “Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.” James Madison
Qualified Immunity – A Legal, Practical, and Moral Failure
https://www.criminallegalnews.org/news/2021/feb/15/qualified-immunity-legal-practical-and-moral-failure/
Acquiring knowledge takes too long….boring.
Why the maniacal obsession to destroy one man?
Because Trump is not under globalist control?
He’s controllable, but not enough?
Remember that tweet after Trump beat Hillary: “It is not enough to simply beat Trump. He must be destroyed thoroughly. His kind must not rise again”….that was Obama’s former campaign manager. What did he mean by “his kind”?
And now we have Biden, installed by the 2020 stolen election.
SC Hur found him not mentally fit to stand trial for his crimes. But there he sits in the Oval Office with the nuclear codes and wars on 3 fronts.
How would presidential immunity apply to a dementia patient?
“So it turns out the US president can be an actual, literal dementia patient and the US empire will trudge on completely unhindered by this. Literally anyone could be president and it would not matter. A coma patient could be president. A jar of kalamata olives could be president.” @caitoz
“Why the maniacal obsession to destroy one man?”
Because he is a criminal and a traitor who spearheaded the first attempted coup is US history. We don’t want to give him another chance.
Trump is the traitor and criminal? No. The guy sitting in the Oval Office right now is the criminal traitor — and there is actual evidence of it. Then look in Congress to see the rest of the bought-off traitors and criminals. Start with some of the more obvious like ‘gold bar’ Menendez and keep going on down the line. Then we can look at the “intelligence community.”
The left’s battle cry the day after Trump beat Hillary: “It is not enough to simply beat Trump. He must be destroyed thoroughly. His kind must not rise again.” And they have never backed off.
The first coup? Not quite. What would you call an effort to remove a president by filing false charges of made up misconduct? Wouldn’t that be a coup as well?
Who are you talking about? False charges? Concerning the current ex president under indictment, we will find what a jury in a court of law says about guilt or not guilt. False charges? Seems to me they have quite a bit of evidence, as opposed to the lack of evidence that the former president put forth concerning voter fraud.
Do you have exculpatory evidence that trump did not commit fraud with his business?
GEB is spot on. The one and only reason that Mr. Trump is in the courtroom is to keep him from becoming the next president.
I look forward to GEB posting more of his thoughts!!
SCOTUS is in between a rock and a hard place.
Not necessarily. As another poster indicated, they can remand back to the Circuit to decide which specific actions, between election day and inauguration day, are “outside” the perimeter of Presidential powers and duties…and against which existing criminal code(s)…does this (or any) president not have immunity.
That’s just another delay because the immunity question won’t be answered. The justices were not keen on setting a bright line due to the conservatives subversively batting for Trump. That’s Alito and Thomas.
Trump will continue to argue a demand the Supreme Court clearly define what is and is not an official act. This is why cops eventually just taze the guy who is constantly arguing every detail tryin to avoid arrest.
Justice Kagen said yesterday, “…there is no fail-safe system of government, meaning we have a judicial system that has layers and layers and layers of protection for accused defendants in the hopes that the innocent will go free. We fail routinely, but we succeed more often than not. In the vast majority of cases, the innocent do go free. Sometimes they don’t, and we have some post-conviction remedies for that. But we still fail. We’ve executed innocent people. Having said that, Justice Alito went through step by step all of the mechanisms that
could potentially fail. In the end, if it fails completely, it’s because we destroyed our democracy on our own, isn’t it?” Seems to me Kagen wants as much as any of the Conservative Justices to “get it right” before proceeding with a novel, first of it’s kind, case, with the Rights of the accused being preserved above expediency. Perhaps she’s onto something there?
, between election day and inauguration day, are “outside” the perimeter of Presidential powers
The time cut out you define is not in Art. II
For clarity, I bring up the time period, not as reference to Article II, but in this specific case DOJ is implying, if not delibrately asserting, the defendant lost his 1A Rights and Powers to investigate a federal election during that time period.
I get that.
But the constitution does not make the distinction.
Simple question.
Does the DoJ loss its Article two powers during that time frame?
The President of the United States has the exact same power as the DoJ.
President directs DOJ. They are not equal.
The DoJ only has powers delegated to it by the President. The President delegates his constitutional power. He does not lose the power he delegates.
JAFO said: ” they can remand back to the Circuit to decide which specific actions, between election day and inauguration day, are “outside” the perimeter of Presidential powers and duties…and against which existing criminal code(s)…does this (or any) president not have immunity.”
I’m skating on thin ice here, but I don’t think that resolves the dilemma, because it appears to require that SCOTUS exercise power it does not have. The Constitution is silent on any distinction between Presidential powers and duties during the “lame duck” period and the preceeding balance of his term. The opportunity to make such a distinction existed in drafting Article II, Sections 2 and 3, and again in the 20th Amendment (arguably this could have also been incorporated into the 22nd A.) so it is a defensible presumption that no such distinction was intended. SCOTUS may have the power to interpret the Constitution, but it lacks any enumerated power to create Constitutional provisions out of thin air.
#6, I believe you, I, many on this blog, and this Court will reach the same conclusion, ultimately. It doesn’t have the enumerated power to create a perimeter of Presidential Powers. Even with Seperation of Powers, I don’t think Congress could define, lt alone reign-in, that scope, either. But the Court can always determine if government is acting unlawfully against an individual, even a former president.
LOL, not so, they have always had IMMUNITY from Presidential actions, hell you do understand that ALL Congress and AL Federal Judges have this same Immunity for actions right?
Not really. The SCOTUS simply points out that it is Congress’ responsibility to “police” the President, via impeachment.
2/3 for conviction to protect against political lawfare abuse.
And that the regular courts have FAR too easy a path for political lawfare. -see 91 ridiculous indictments against Trump.
Sure, the courts may be tempted to usurp power over the presidents, but that power is currently given to the House/Senate.
It is quite clear that some immunity exists unless you are 100% filled with TDS and cannot see the future implications.
Obviously both extremes are wrong. Immunity doesn’t apply to every act, only official ones. To think that the president has no immunity just would incapacitate a president to make hard decisions thinking that he might later be arrested or sued.
Or such as making a simple phone call….
Obviously both extremes are wrong. Immunity doesn’t apply to every act, only official ones. </i
Wrong
Immunity covers constitutional powers. If it with in the power of the office, It cannot be prosecuted. If the power is abused, Congress has the enumerated power to Impeach, convict, and remove.
I vote for immunity while president and for acts committed during the presidency. As stated earlier the impeachment clause is there and should be used and then you can prosecute if the impeachment is successful. Otherwise leave the president alone. Yes I know that may leave us open to acts we don’t like and might be criminal but Congress has the route to removal. Nixon resigned because it was bipartisan and he would lose. All subsequent impeachments since have been partisan and failed, imagine that.
The Supreme Court, if they opt for a qualified immunity, should state the rules and be done with it. Punting back to the district court or court of appeals is just a kick the can ruling and serves no purpose except more litigation. We have had enough of this stuff. Make the ruling and then live with it. Does anyone here really think any district court or circuit court is really qualified to judge this case. No single judge could. I would better trust the 11 on the Supreme Court than any other jurist. Even the liberal 3 could have salient points that could be incorporated into any decision and try to work toward a 7-2 or 8-1 decision after an extended discussion, maybe even delaying a prompt decision.
It also would remove the tedious and continuing litigation that turns even a legal victory into poverty and then more possible candidates will say “why bother” to run for election. Do we want that? The media has made political office almost unpalatable. Why make it now legally unpalatable. We need more people running for office, not just those who lust for power and more riches and have deep pockets to fend off the lawyers. That will leave us with less than 1% of the population in needed political offices and dynasties.
Immunity is not dictatorship, we have basically had nearly total immunity since George Washington and still no dictatorship.
The left claims Trump wants a dictatorship but I cannot remember a previous president who has pushed his agenda for 8 years + since he left office, like Barack Obama (with HRC carrying his water)
TR Roosevelt tried but he and Taft ended up giving us Woodrow Wilson, the most racist president in the past 100 years.
At least FDR won elections 4 times but caused the change in the constitution to remove that option.
Impeachment should be the first step to going after a president OR FORMER PRESIDENT civilly or criminally. Period. That’s why impeachment is explicitly in the Constitution as the remedy for sitting and former presidents.
Former President is not in the constitution
“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.”
*************************************
Ooo! Oooo! I got it: It’s an easy one: No immuity, just make the prosecutor serve the sentence he sought if the POTUS beats him in court. Solves it all: no poltical prosecutions, down-side for thuggish behavior, easy decision by the judge and deterence against POTUS criminality.
Please note my copyright of the sagacity shown. LOL
LOVE IT!
Several points.
1) the current problem is that a Presidential candidate can be prosecuted (or sued in civil court) during the heart of a campaign. This is not merely a personal problem, but a system problem. As Clausewitz might have said: “Litigation is war by other means.”
2) most Presdients take actions, including the sales of arms, that cause the deaths of thousands people around the world. Do foreign governments have standing to bring actions in American courts against Presidents who harm their citizens?
3) there is a problem in quantity, not merely quality. The current problem is the sheer number of suits that Democrats have been able to field against Trump (and likey any future Presidential candidate they don’t like). A constant barrage of litigation from numerous quarters exhausts the financial and mental reserves of a candidate. Possibly the S CT needs to create a mechanism to funnel all such suits to a central adminstrator who makes sure this burden is sustainable. Since the lawfare strategy is an attack on a federal system, election of a President, there is justification for forcing control of state proceedings.
edwardmahl said: “Severl points…”
Point #2 could be largely solved by vastly reigning in the adminstrative state. Aside: where in the Constitution is the President authorized to be the arms salesman for defense contractors? I also think that it might be beneficial to undertake judicial reform to reduce lawfare against anyone, not just the President, possibly by structurally limitations on simultaneous adversarial actions against a single defendant on similar grounds, or from related plaintiffs. I have never been much of a fan of the ability of prosecutors to “throw the book” at an accused, particularly as that process has come to include Federal crimes that were created expressly to allow that kind of intimidation in the alleged interests of fighting organized crime. That would need to be hashed out carefully to avoid depriving anyone of his or her right to redress harm done by another, but it might go along way toward resolving Point #3, and possibly be of some help re Point #1.
You’d like to think that future leaders would see all of these issues being raised
and do less and less nefarious deeds, not more, no matter which party they’re in,
but these are modern-day American politicians so don’t hold your breath.
-Cat
“Likewise, the special counsel argued the protection for presidents must rest with the good motivations and judgment of prosecutors“
Har. Isn’t that rich.
Yes Rico! ^
Constitutionally, the DOJ is not the authority to police Presidents (current or former) – Congress is visa impeachment.
However, the SCOTUS could make a move here to usurp that power over the Executive. … and THEN over the legislative. – Kings!