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.
President Ulysses S. Grant was arrested April 9, 1866 for speeding while in his horse buggy at the corner of 13th and M streets in Washington D.C. Speeding was a misdemeanor.
Allow me to continue, what powers does the Judicial have over the Executive and should not the current Executive be concerned with the proposed interference by the Judiciary on future administrations which could impact them if they are reelected? The old saying “delegata potestas non potest delegari” should be a warning concerning the delegation of powers between the three branches of Government.
When he was NOT A PRESIDENT.
” The first of the reported two arrests were in 1866, when Grant was commanding general; the third is said to have occurred in 1872, when Grant was serving as the president of the United States. While of questionable historicity, the third is the best-known; if it did occur, this would make Grant the only U.S. president to have been arrested while in office.
Both 1866 arrests were reported by the D.C. National Intelligencer. There does not appear to be contemporaneous evidence of an 1872 arrest. ”
WIKI
So the libs were lying then and are lying now. The former two horse speeding arrests look to have the occurred, while the third, as POTUS, was made up.
You cite WIKI? Such scholarship! Remarkable indeed!
Carry-on, but where does such lead?
Rich Torre, Wikipedia is ads good an encyclopedia as one will find.
JT says – “The ongoing prosecution of Trump is legally absurd but has resulted in the leading presidential candidate not only being gagged but prevented from campaigning.”
Which is utter BS, BS!
He is being gagged? Nonsense. baby trump can talk about anything, except witness in his trial and court personal and family members. And he is free to campaign, just not during the hours he is in court.
I know JT thinks that trump should have absolute immunity to what he says, you know free speech and all. But his free speech includes inciting people to harm witnesses and court personal. BS, trump does not have the right to intimidate witnesses and court personal.
So JT thinks pour baby trump should be let go to campaign when any other criminal defendant in the country does not get such accommodation. BS. If you’re accused of a crime, they don’t let you out to go to work, birthday party, whatever. No special treatment for trump.
Once again JT obfuscates the truth of what is happening.
Like many leftists … you do not really care about truth, justice, fairness, you just hate a person and want them destroyed by any means necessary. You want Bidens political opponent imprisoned because you know that in a fair honest election based on the merits of policies Biden will LOSE to Trump in a landslide and Biden will lose. All democrats know that which is why Biden/dems are trying to imprison Biden’s competitor… just like Vladimir Putin did.
… actually … biden/dems are doing worse than Putin bc Putin knew there was zero chance his competitor could defeat him in an election. Biden/dems KNOW Trump WILL defeat them, likely in a landslide… so they have resorted to attempting to ‘take-out’ bidens opponent bc the left does NOT believe that the citizens have the right to ELECT our govt. They are already dictators… and very obviously so. Our country is in a lot of danger because we can SEE that Biden/dems DO NOT RESPECT elections. Did they in 2020? No.
Dream on. trump has zero chance of winning. I have no care about truth? BS. There is a court of law collecting evidence. A jury will decide what is true or not.
What did I say that isn’t true above? What JT said obfuscates the truth of what is happening.
What are you afraid Of?
You are full of SHIAT! Trump is being gagged, and although he has ignored the gag so far, the judge is about to try to bring the hammer down.
The trial is a POLITICAL ACT of leftist LAWFARE. Trump is entitled to call the trial the POLITICAL ACT it is, and to talk about it ALL HE WANTS!
Anything else not only deprives Trump of his constitutional rights, but it deprives the American people of the right to hear from one of the two main Presidential contenders–and the one leading in every poll.
Moreover, the witnesses are out everyday trashing Trump to the media. He is entitled to respond.
Being stuck in Court all day for weeks on end deprives Trump of the right to meaningfully campaign. It’s pure sophistry to claim otherwise. Only an IDIOT LIBTARD would deny it!
Once again an IDIOT LIBTARD obfuscates the truth of what is ACTUALLY happening!
Utter BS as you say.
First it should be clear at this point that the Prosecution of Trump IS the democrats campaign, so not being ablt to talk about it IS restricting the campaign.
Next as is clear from Braggs alleged violations – Trump not only can not talk about witnesses – especially those who are slandering him daily.
But he can not even note what OTHERS have said about these people.
In what world is a defendant linking to something Johnathan Turley wrote about the case “witness intimidation”.
Next – it is irrelevant what YOU or Merchan or Bragg think Trump should be allowed to talk about – any prior restraint on ANYONE’s speech is preemptively unconstitutional – No rule in out constitution is more firmly established than the near impossibility of prior restraint of free speech being unconstitutional.
Free speech can not be criminalized AFTER the fact there is only a very narrow window in which speech that has already occurred can be sanctioned – Brandenburg vs. Ohio. The pinhole for prior restraint is even smaller.
The Pentagon papers case makes it clear that Government can not stop the publication of illegally obtained classified documents even if that might result in losing a war.
That is an unbeleivably high bar.
But in case you think there is some judicial exception – the courts tried to do this in 1838 and Congress passed laws barring judicial gag orders on defendants. In the later half of the 19th century SCOTUS determined that gagging defendants was unconstitutional. In the early 20th century they used the 14th amendment to extend that to state and local courts.
In the 60’s while the Shepard case was not about Gag orders per say – it was about the duty of the judge to protect the DEFENDANTS right to a fair trial – not the prosecution. The Bragg case makes the abuses in the Shepard case look minor.
It is as if left wing nuts Brag and Merchan took the Shepard case as a model rather than a warning.
It is already illegal to use threats of violence to intimidate a witness or a judge or a juror – or actually ANYONE.
One of the absurdities of this case is that Merchan as biased as he is has recognized that Trump can not be prohibited from criticizing the judge and the prosecutor. But he has interpreted that so narrowly that Trump can criticise Bragg – who does not even show up in court, But not Colangelo who has is actually in court presenting the case – he is the actual prosecutor but he and his ties to the Biden WH
Regardless, the only speech that Trump can not do is already criminal.
The existance of the gag order mean that you are engaged in preventing speech that is legal, you do not need to gag Trump to prevent him from threatening violence to witnesses. That is already a crime.
Pretty much by definition the gag order MUST be to prevent Trump from saying things that he would otherwise legally be allowed to say.
That is OBVIOUSLY content based restriction of free speech – which is almost entirely barred – with the exception of Brandonberg v ohio explicit threats of violence and child pornography – those are the ONLY content based restrictions of speech that ate allowed.
Thank you.
I don’t understand how commenters such as you think you’ll be getting any serious consideration from other commenters when you refuse to capitalize the president’s proper name and call him a baby. Serious discussion calls for serious writing. I do give you credit for using “obfuscate” properly, although I do not agree that Turley is doing any such thing.
Kathleen: here’s some “serious writing”. Trump never VALIDLY held the title of “President of the United States” because he CHEATED to get into office–read the REPUBLICAN Senate Intelligence Committee Report detailing all of the contacts between the Trump campaign and Russian operatives. Trump LOST the popular vote to HIllary Clinton but managed to get the Electoral College vote in certain swing states by means of having Russian hackers spread lies about HIllary Clinton. Trump trashed the office of the Presidency, stole classified documents, trashed the booming economy he inherited, trashed our relations with NATO and EU allies, trashed our public health, tried to start an insurrection, and has managed to convince most Republican-leaning voters that he did win in 2020 by spreading lies–despite the fact that there’s no proof, and all proof is to the contrary. He has been charged for his crimes, and now, is trying to claim he is above the law–cannot be prosecuted. Turley is paid to echo Fox programming, but he does know that Michael Cohen was convicted of the same crimes with which Trump is charged, and that the bribing of women was done for Trump’s benefit–to help hin “win” Evangelical voters. Therefore, if Cohen’s prosecution is valid, then so is Trump’s. And, because of all of the lying, attempt to foment an insurrection, all of the Americans who died unnecessarily because of Trump downplaying the seriousness of COVID and pushing fake cures, his cheating to get into office and subsequent crimes, he does not deserve the honorific title of “President”. WE, the American people, HAVE a President, and it isn’t Defendant Trump.
Wo Gigi….too much Kool-Aid. Do you think your ideas are original? No. They’re just the same old socialist/communist claptrap.
Gigi, we have been over this. Cherry picking from the senate report – which subsequent investigations including Mueller have proven false on numerous points, and then running that cherry picking through multiple spin cycles, does not make the senate report reach the conclusions that you want.
Did Russia try to influence the 2016 election ? With certainty.
And with absolutely no skill, no consequence and not even much of an effort.
Did they attempt to throw the election to Trump ? Nope.
There piss port and very limitted efforts seemed to have no particular favorite.
Did they attempt to “collude” – certainly – and arguably they succeeded in colluding with Clinton – There is some evidence that Danchenko is a Russian operative. Though honestly it does not matter. Clinton was actively looking for someone to manufacture false claims against Trump she did not care whether they were russian or not. Nor would it have mattered.
Clinton’s crime is NOT colluding with the rusians – which she likely did.
It is not manufacturing fraudulent dirt on a political opponent.
The crime is trying to get the FBI to abuse its power to engage in a political witchhunt.
That is BY FAR the most serious offense of the 2016 election.
We are actually fortunate that did NOT illegally rig the 2016 election.
As to Trump – you have spent 8 years proving that he ran with the intention of winning.
That he like every other political candidate did what he was legally allowed to to WIN.
And pretty much none of that involved Russia in anyway.
Kathleen – it is called free speech, and one of the merits of free speech is that the near absolute freedom of speech we permit allows speakers to call attention to their own flaws and idiocy.
The very things you are criticizing are speakers signally that they are NOT serious.
That is a GOOD thing.
It is better to have the loons out in the open howling at the moon, than in the shadows plotting.
Complete immunity during and after the presidency, private and public. If “we the people” aka Congress, thinks that the president committed a crime, impeach him and strip him of his immunity, then prosecute. So simple, foolproof and not subject to biased political prosecutors.
Anonymous: how blind ARE you? Do you think the Republicans in Congress who refused to convict Trump were motivated by anything other than politics? They all KNEW he was guilty, but put their party and grabbing of power ahead of American values.
Gigi… apparently you didn’t hear Trump’s lawyers … present their defense b4 the Senate. It was an excellent defense.
The J6 congressional hearing – from which much of these case evidence derives — was a PURE partisan dems only fake congressional hearing in which the speaker (Nancy) for the 1ST time refuses to seat ANY of the Rs that McCarthy wanted on that committee. So a congressional committee to investigate PDJT was comprised EXCLUSIVELY of Trump hating Dems and 2 Trump-hating Rinos. There was nothing valid about that BS fake j6 hearing.
Same is true re the Russian collusion special counsel (SP) investigation in which there was no original cause/justification to investigate and spy on Trump in the 1st place (Durham Report) . Every investigator on the SC was an extreme Trump hating dem and hillary voter. Even then, the Mueller report produced nothing but INSIGNIFICANT interference by Russia which is far LESS than WE DID to Putin in his prior election.
An HONEST investigation into foreign election interference would be to investigate ALL foreign interference. No doubt Chinese interference was FAR greater than anything Russia did. Seriously.
The filthy dossier was also a fabricated lie produced by a FOREIGN agent and paid for by hillary.
You are a dishonest or totally brainwashed woman… who just repeats what CNN or MSDNC tells her. There are many like you. I know a few.
Yes…dishonest or brainwashed….totally.
Gigi… LOL …you just began your rant with “Anonymous:…” hahaha. Most posts here are by….anonymous.
Once again JT obfuscates the truth of what is happening.
Leftist liars (yes redundant) name one thing our host has lied about
Trial Judges issue gag orders to protect the accussed and their right to a fair trial.
I have yet to find a gag order issued against the defendant only.
Iowan2 – good point.
Both the judge and the media present these gag orders as if the only person who does NOT deserve any protection …. is the defendant, Donald Trump. It’s scary to witness.
Most Americans want to believe we can trust our judicial system – that it’s not some lawless vindictive kangaroo court. In NY, DC, GA… it is and we are seeing it. It’s scary.
The defendant was threatening witnesses. Death threats were made against the judges family after trump doxed her. That is not free speech, it is a crime to intimidate witnesses.
A great example of forming an opinion but not understanding the fact.
‘Doxing’ is publishing public information.
Senate majority leader SChumer sent a hoard of protestors, and at least on assassin to the homes of SCOTUS judges. NOTHING happened to Schumer.
Dozens of Democrat legislatores encouraged voters to “get in the faces” of Republicans, and thousands of voters did just that. Rand Paul was attacked
No consequences for any of those politicians.
Free speech means exactly what is says.
Judges are not above the law. They cannot strip citizens of their enumerated rights.
“And he is free to campaign, just not during the hours he is in court.”
Do you know how ridiculous you sound or do you just not care?
Complete BS from both you and JT. There is only ONE “cliff” – and it’s to void the Constitution and make up law, like SCOTUS does all the time. The remedy for criminal behavior (except when the DHS Chief commits perjury in front of the nation, apparently) is in the US Constitution that you hate. Congress can remove a President in two days if they want. That’s far faster than any criminal trial. And I’m a criminal law attorney. JT has spent too much time not practicing to see clearly.
So you determine what is free speech??
No, you learn what is criminal speech. All the rest is free speech.
“If you’re accused of a crime, they don’t let you out to go to work, birthday party, whatever. ”
I guess YOU’RE INSANE. You haven’t noticed the demoncrats even let accused murders out on the streets.
To imagine high society white collars don’t run to Epstein Island for YEARS while the accusations battle through the corrupt system is to be a moron. YOU SIR, ARE A MORON.
Among the difficult issues here is how to deal with motive, and in particular whether a private motive converts what would otherwise be an official act protected by immunity into a private one that is not so protected.
The Court has held many times that motive should not be examined when determining whether an official act is protected, because doing so would undermine the immunity. This constraint drives much of the opposition to immunity, because it is said to allow the trappings of office to be used for criminal purposes.
The oft-repeated example is a Presidential order to the military to kill a political rival. Because the giving of orders to the military is a Presidential power, doing this is an official act. In oral argument, Kagan gave the analogous example of an order to stage a military coup to prevent succession. Unless you can examine motive, it is said, these official acts would be protected by immunity, in the absence of prior impeachment and conviction for them.
Trump’s counsel accepted this conclusion. Part of his reasoning could have been that while the President would have immunity, no other official would, and “just following orders” is not a defense. This is part of what drives the demand for internal legal opinions, of the kind obtained by Bush for his violent interrogations of terror suspects and Obama for his drone killings of Americans. These opinions insulate officials from criminal liability in most cases, because even if they are wrong they are evidence that the official did not act with the requisite criminal intent, since he was told by official counsel that his actions were lawful.
I would hazard that no Government or military official would participate in these kinds of potentially criminal activities today without an authoritative legal opinion that doing so was lawful. The world is different now from the way it was when Dulles and Bissell plotted with the mob to kill Castro, perhaps with the plausibly deniable OK from Eisenhower in the summer of 1959. No legal opinions were obtained.
But Trump’s counsel also accepted that these internal constraints might break down or change, that crimes might be ordered by the President and the orders might be followed and that impeachment and conviction might not occur. In these circumstances, he argued, the Constitution made a trade-off, accepting the risk to the political order of this kind of criminality as being less than the risk to that order of serial prosecution of Presidents whenever a rival faction comes to power. I think that makes sense.
I also wonder, though, whether there would really need to be an examination of motive as such in the assassination and coup examples. All you would need to do is look at the substance of the order and ask whether it is plausibly derivable from a Constitutional power enjoyed by the President. Let’s say Joe Biden ordered the Secret Service to kill Trump or Kennedy. What Constitutional authority does he plausibly have, regardless of motive, for that order? This is different from Trump’s alleged consideration of replacing the AG, which is a power he has under the appointments clause, again without regard to motive.
By the way, both sides seemed to agree that Trump’s reliance on private lawyers and others for advice and actions in his election challenges were not official acts. This would preserve much of the indictment with respect to the alternative electors plan.
Daniel, no. Presidential immunity and/or vulnerability, is centered about which branch of govt controls. – not whether he has immunity or not.
The House & Senate are responsible for ‘policing’ the POTUS. – The Judicial branch is not. This is by design, to avoid the sht-shows like we are seeing today.
People seem to not understand that everything a POTUS does is checked by the House and Senate.
And if any POTUS does something so egregious, that the House and Senate can remove, and even jail that POTUS.
Already, the House (Pelosi) ran an impeachment against Trump for making a phone call to Ukraine.
No conviction because the Senate saw the impeachment was a partisan move to protect their money laundering.
Anonymous: NO. NO impeachment because Republicans care more about preserving power than American values. There was nothing “partisan” about Trump attempting to gin up lies about Biden in exchange for aid to Ukraine that Congress had already appropriated–a perfect example of how Trump operates–everything for HIM. Trying to leverage aid to Ukraine in exchange for lies about biden was a crime, but gutless Republicans, except for Romney and Cheney, were afraid of Trump “primarying” them.
Joey blowhole and whole family is up past their necks in crimes in Ukraine and many other foreign nations. Money laundering and kickbacks and protection racket schemes and favorable gov grants.
The reason the demoncrats went insane is because we have the blowhole is guilty video and hundreds of news articles you fools have never read with all the gritty insider crime details.
You can start with Glen Becks two chalkboard hour plus layout of 20 plus demoncrat participants.
Your party is filled with inexcusable criminals and liars.
Pretty much everyone with a brain who paid attention at all knows it now.
The problem of course is people like you do not care.
A friend of mine, after I pointed out an obvious demoncrat national criminals move, just smiled and laughed, “Yeah they are so bad I love it.” He meant it. He didn’t care, so long as the demonrcats got away with it he was good.
What is to stop a president from having ever member of the opposing party killed? Then there will be no impeachment, no trial, no crime. Pretty simple way to stay in power. is that what you want from complete immunity?
Good point.
It does appear SCOTUS is not going to give blanket immunity. Either extreme is problematic.
The justices were asking: what are core and not core rights/duties of the POTUS.
So the question for this case is …
IS it a core duty of a sitting potus to ensure that an election – with a new and overtly less secure FORM of voting– is that a core obligation/duty of a sitting potus regardless of whether he/she is one of the candidates and may be a beneficiary of such an investigation into the authenticity/ reliability of the ultimate votes results.
IMO, yes. Challenging election results has occurred multiple times in US History. And 2020 was the start of a NEW election SYSTEM – mass mail-in and early in-person voting weeks b4 those ballots are counted. How are they secured for weeks b4 being counted? Who does the securing? Why should we trust them?
This new election system has never been investigated to DETERMINE if it is reliable. Every actual effort to honestly investigate the system in 2020 and since, on the merits, was stopped by dems/rinos and courts.
That’s really what is at issue here. CAN we trust this current and new election system to produce honest results.
France found they could not and returned to traditional voting. How is our new system any more trustworthy than France’s now rejected system? No one has any idea bc no one ever discusses it. Why not?
The FACT no one – no govt, no media– will even discuss the reliability of our election system publicly — and many even fight to forbid investigations … leads me to believe the American people have already been disenfranchised and the political elite class merely seeks to hide this reality from us.
No authentic election = the US has become a dictatorship. No American should be OK with that.
Anonymous: Uh, NO. Elections are RUN and regulated by the states–not the President. So, it’s not only NOT a “core” duty–it’s not his “duty” at all. States are the ones who certify their vote totals, which they send to Congress. That’s basic Constituional law. In addition, multiple states have ONLY had mail ballots–and there has never been any problem. In fact, there is no proof of any problem with mail ballots in 2020, because of the pandemic–all of the doubt Trump and Republicans have tried to raise are baseless. AND, there are valid ways to challenge the results of the election–Trump used them all–recounts, audis, forensic audits–lawsuits–they all proved he lost. The multiple audits are “investigations”–and they turned up no evidence of widespread voter fraud. Where is there any proof that mail ballots are unreliable, other than the lies Trump put out? Bear in mind, all polls predicted he would lose–and he did. Get over it.
Daniel: Nice food for thought. Thanks.
(my only substantive thought (not opinion) revolves around the status/conundrum over presidential “crimes” not discoverable/discovered until after presidential tenure. This is the palpable “gap” in counsel for Trump’s argument reliance on impeachment and prosecution as remedies. Could/Should “immunity” at the time of “crime” thus carry to prevent ex post prosecution?)
Given the importance accorded by the Constitution to an independent central government with a strong chief executive, I can’t imagine the Founders would want to expose a sitting or former President to prosecution for official acts by any of the hundreds of local and federal prosecutors spread across the United States, the sole exception being a President who had been impeached by Congress. However, as Lin points out, that leaves open the question of an alleged crime committed by a former President when the alleged crime was not discovered until after the President had completed his/her term of office. That question might be best resolved through Congressional legislation.
Thanks Lin. Trump’s counsel addressed exactly this in oral argument. It was to deal with this among other things that he made the point about trade-offs and relative risk.
Roberts made a point about motive that I think can be overcome. He gave the example of bribery to make an appointment. He said that there were two parts of the crime: a private part between the person paying the bribe and the President; and an official part, involving the Constitutional power of appointment. He suggested that, unless you could examine the motive for the appointment (i.e., to get the bribe), immunity would apply. He compared it to a stool with one leg, and seemed to be saying that this would insulate a President even in cases of bribery. I believe he viewed this as a weakness in the theory of immunity.
But I think you might be able to avoid having to examine the motive for the appointment as such. All you would need to do is investigate why the individual paid the money and what the President did for the money. If you could prove in this way that the money was paid by the individual because the individual wanted the appointment, and that the President could not otherwise plausibly explain why he was being paid, you could convict, without examining the President’s motives for the appointment as such.
and that the President could not otherwise plausibly explain why he was being paid
Do you mean paid, as in a contribution to an inaugural ball?
Or maybe several $Million to the spouses global charity?
I found it interesting that the DOJ counsel said FDR should have been prosecuted for interring Asian Americans during WWII.
I believe SCOTUS ruled that Biden cannot excuse college loan debt for students… but Biden, I believe, is doing it anyway. Is that a crime that Biden can be prosecuted for after he leaves office?
SCOTUS justices are apprehensive about assigning motive to presidential decisions… but can a motive be assigned to Trump for actively opposing the 2020 election results. The DOJ Prosecutor appears to have ASSUMED Trump’s motive.
Would it not be just as easy to ASSUME Biden’s motive to erase college debt is an effort to buy votes. Would that be illegal or criminal in any way especially since SCOTUS already ruled he can’t do that? IF his WH counsel says: ” go ahead Joe u can do that” IS that sufficient grounds to excise Bidens act in direct violation of a SCOTUS ruling? I don’t know.
IF Trump received legal advice that he should actively oppose what he was told – and there us evidence and legit grounds to question the authenticity of 2020 election results — IS that sufficient to excuse Trump as Biden would likely be excused? I don’t know.
The answer to your question regarding motive is that YOU CAN”T and therefore you DONT.
People get confused because nearly all crimes require specific intent – that means you must know what you are doing is wrong and you must do it anyway.
That is not the same as your motivation.
The 3 keystones of a criminal prosecution are means, motive and opportunity.
But this is a guide for what you need to successfully convince a jury of someones guilt.
Those are NOT the standards for determining whether an act is a crime.
There is absolutely no such thing as conduct that is criminal purely because of motive.
Juries can get into motive in determing Whether they beleive the defendant committed the alleged crime.
You can convict someone of murder without establishing motive – but it is really hard to persuade a jury that a person committed some heinous act for no reason at all. Especially when you do not have an eyewitness to the crime – and quite often you do not.
But courts are NOT supposed to consider motive when making decisions about THE LAW.
Murdering someone is a crime – whether you have motive or not. The LAW can not consider motive in establishing whether conduct is criminal.
Put more simply there is NOTHING that is a crime if you have a motive, but not if you do not.
There is no act that is a crime if you do it for good reasons, but legal if you do it for bad ones.
Juries consider your reasons – not to determine whether a crime was committed, but to determine whether YOU committed a crime.
If there were 10 people in the house at the time of the murder and no one saw the murder take place – the person most likely to have committed the murder is the one with a motive.
But murder is a crime – regardless of motive.
Analysis of intent – where intent is synonymous with motive has absolutely no basis in legislation, or in judicial determinations such as whether immunity exists.
Prosecutors are supposed to be barred from getting into the courtroom unless they can prove a crime has taken place.
The purpose of a trial is NOT to determine whether a crime has taken place – that is a judicial determination resting solely on the law.
The purpose of a trial is to determine if the accused committed the alleged crime.
If as in this case – the jury is essentially being asked to determine whether a crime took place as well as whether the defendant committed that crime – then the case should not be at trial. It is the judges responsibility to establish that the Prosecutor is trying the defendant for the commission of an ACTUAL crime as defined by the law – and who the defendant is and what their intentions are have absolutely nothing to do with that determination.
If the defense beleives the court has erred in eastablishing that there is an actual crime to be answered for – that MUST be appealed BEFORE the trial starts. We do not want Juries to EVER sit in judgement of people when it is not clear that an actual violation of the law is being alleged.
All of this applies to the supreme court and whether immunity applies.
Let me repeat this – Judges NEVER EVER should be dealing with someone’s intention – in fact they should not even be dealing with anything about a specific person when determining whether there is a crime to answer for. The question of immunity is the same.
Presuming that SCOTUS decides that presidential immunity is something that lower courts must decide,
Then their decision must be based on whether the alleged act meets whatever criteria that SCOTUS establishes to qualify for immunity or whether it does not. That decision must be made generically – immunity either exists for any president committing this act whatever their reasons, or it exists for NO president no matter their reasons.
Motive has a valid place in aiding a jury in deciding whether person X committed the crime they are accused of – when there is no eyewitness evidence. It has absolutely no place at all in determining whether an act was a crime.
John Say, I agree with that. The question of motive comes up when someone wants to argue that immunity cannot be granted to a President for official acts objectively defined, because doing so would allow the President to commit crimes by clothing them in the power of his office. The argument is that unless you can examine the reason for an official act, you will not be able to distinguish official from private conduct. A president who orders the killing of a rival would be shielded from criminal liability so long as he acted through the official chain of command. Thus, the argument goes, immunity cannot be allowed.
Trump’s counsel argued that this is a risk we might just have to accept, because it is not as bad as the risk of political prosecutions of successive Presidents when a different faction wins power.
I speculated that maybe you could avoid this by looking at the nature of the act rather than the motive for it, and asking whether that act is plausibly grounded in a Presidential power under the Constitution. It is hard to see how an order to kill a political rival could be grounded in the Constitution. By way of contrast, Obama’s drone killing of an American believed to be a member of a terrorist organisation in Yemen was justified by a carefully reasoned legal opinion citing various Constitutional and statutory sources of authority. Whether that opinion was correct or not is not the point. I mention it as an example of the kind of argument that would be made to demonstrate that a President’s act is within his authority and thus immune from prosecution. If a plausible argument could not be made, there would be no immunity.
Best analysis I have seen. It’s important to separate these matters. In this case, no crime has been committed, as it is not illegal to challenge the results of an election. It is done all the time, by Democrats as well as Republicans. In any event, it is usually impossible to ascertain a motivation, absent some declaration from the accused. Only the Shadow knows what evil lurks in the hearts of men.
On a side note, that means that there is no such thing as a “hate crime”, as that definition relies entirely on determining motivation.
O)ne of the reasons that the correct answer to this question is:
Presidents only have very limited absolute immunity – specifically for the excessive of article II powers exclusive to the president.
But the have immunity from prosecution for all other acts of any kind official or personal committed WHILE PRESIDENT, until after they have been impeached, convicted by the senate, and removed from office.
Then and only then can any prosecutor indict an ex-president.
What should be clear today is that there is no real danger of a rogue president going helter skelter.
As was pointed out by Two justices – the presidential assassination hypothetical is absurd on its face.
The military specicifcally but the rest of the executive is NOT going to execute and illegal order.
Further also addressed in the Immunity hearing – Presidential immunity does NOT apply to the rest of the executive.
If the President orders the WH cheif of staff to arrange the murder of a political rival – that COS can be prosecuted – even while the president is in office.
Further clear crimes – such as ordering the murder of a political rival will result in impeachment and removal – if they do not the republic is partisan beyond salvation so the entire question is moot.
The real danger is what we are seeing now – political prosecutions of ex presidents.
It is a mistake for SCOTUS to give the power to the courts or itself to decide what is and is not a political prosecution.
I would further note this entire debate is limited to ex-presidents – which is why it has never occurred before.
We have only had a few times in which an ex president ran for office again.
There was never before the MOTIVE to politically prosecute an ex-president.
It is already established that CURRENT presidents have absolute immunity until they are impeached and removed.
The case before the court is NOT about preventing presidents from committing Crimes while in office.
The impediments to that are:
those in the executive swore to uphold the constitution ad are not permityted to execute an illegal or unconstitutional order.
They are subject to prosecution if they do.
The president is subject to impeachment and removal – not just for actual criminal acts, but for pretty much anything the house and senate agree warrants impeachment and removal.
The current supreme court debate is NOT over what immunity Presidents have – that is ALREADY established.
It is not about thwarting crimes that might take place, it is not about the survival of the republic.
it is ALREADY true that you can not prosecute a president for anything until they are an ex-president.
All the nonsense about the president trying to stay in power is idiocy – If the president say stages a coup to stay in power and succeeds – which is structurally impossible in the US unless massive portions of the federal government – not just the president go completely lawless.
If he succeeds – he must be impeached and removed.
Put simply – absolute presidential immunity for presidents already exists.
The question before the supreme court is NOT about preventing anything.
It is about politically punishing an ex-president that you were unable to impeach and remove.
The worst case scenario for abslute immunity is that an ex president gets away with a crime.
With near certainty it will almost always withe be a small crime, or it will be a big crime that has near universal support.
A president is not likely to get away with executing a political rival (as president) unless the political rival is a terrorist caught in the act.
A president who rigs and election and succeeds – is still president. A president who rigs and election and fails – is no longer president.
The world will not end if the winners of the election are not able to extract revenge.
They will have the power to punish everyone who was involved in that alleged election rigging.
The point is that presidential immunity that can not be overcome without impeachment and removal is no threat to the country.
No case will ever arrise until any real threat has passed.
While the lack of presidential immunity for ex-presidents WILL result in more and more politicization of the courts.
If you honestly beleive that the prosecution of Trump is not at all political and is purely legitimate.
Allowing it to go forward will Guarantee that political prosecutions WILL come and very soon.
Barring it means that occasionally some president will get away with some small abuse of power that fails.
John, that is an excellent and wise explanation. That is likely, hopefully, how SCOTUS will rule.
The danger to The Office of Presidency is watching a former POTUS be indicted multiple times, in multiple courts, for really very frivolous reasons that most other citizens have never been similarly indicted.
The nation has survived fine without former presidents being repeatedly indicted in fed and state courts by their political opponents.
A few past president likely did get away with some crimes but likely not anything all that significant. Anything significant, a POTUS would be impeached, and convicted .. and removed and then possibly indicted.
I don’t want to see what is being done to Trump to become constantly repeated with most/all future potuses when they leave office. It’s awful.
Without pretty much blanket immunity, I fear that would be the future of the presidency.
@john say,
“it is ALREADY true that you can not prosecute a president for anything until they are an ex-president.”
So Trump being prosecuted as an ex-president. You just confirmed his trials are justified. You just agreed ex-presidents are not immune from prosecution. Trump claims he is.
Try as I might I found no authority for the Judicial Branch (Supreme Court any lower Court or the Department of Justice) having the power to determine what rights the Executive Branch beyond the Legislative Branch having the power to remove the Executive by Impeachment. To assume that the Courts can parse nuances is a reach of their constitutional rights. They have the right to tell subordinates of the judiciary they are out of line in their individual pursuits but not to determine what rights the executive has as those are within our Constitution.
The United States has moved into a new uncharted course of lawlessness where each branch of our government have assumed or neglected authorities’ that they do and do not possess. An Executive issuing orders contrary to its Constitutional authority, a Legislative surrendering authority to the executive contrary to their responsibilities (fiscal as an example), and finally a Judiciary so fearful of its own shadow unwilling to determine lawful interpretation of constitutional rights.
Do you think Biden loves our country? Do you think Bragg or Smith or the rest of Biden’s prosecutors of Trump love our country? Open your eyes and look at them. Are they motivated by justice or HATE? Will destroying Trump and denying more than half the population the right to choose their President save Democracy or perhaps destroy it?
When I look at Trump I see a wealthy and very imperfect man. However I can see and hear that he loves our country. Unlike the rabid Marxist God hating LEFT he believes our nation is special and worth defending against its many enemies. I believe these enemies are the same ones who are attempting to deny his election by any means legal or illegal. Trump has stated that “It’s not just ME they are coming after they are coming after YOU and I am standing in their way.” It sure looks like he is 100% correct about that.
Obama talked about “Hope and Change” He never defined it. Hope that our borders would be overrun? That billions of dollars would be shipped by night to Iran? That racism would become the centerpiece of his administration to open old wounds and divide us? Biden is the fulfiller of Obama’s dreams. Biden is Obama’s man. Only a fool would embrace Biden regardless of his opponent. Because if you don’t know it by now… they deeply hate our country and you along with it.
Spot on ^
The judicial branch is, by design, kicked to the curb on power to go after a President. – that responsibility belongs to the House and Senate.
And now we have the SCOTUS considering whether they/courts -actually- have power to go after Presidents?
If the the SCOTUS does not say “NO” then they are unconstitutional.
It would be nice if this Constitutional Republic experiment could last as long as Rome.
All comes down to the allure of temporary power.
Yes and that’s why it should be a 9-0 decision.
Yes, Biden DOES love our country, which is why he has worked so hard to turn around the disaster Trump left behind, got infrastructure, COVID relief, Inflation Reduction, CHIPS Act and other job-creating legislation passed, is getting prescription drug prices and junk airline fees under control. Why do you feel sorry for Trump, anyway? He has always been a pathological liar, cheater, womanizer, racist and braggadocious attention hog. You claim you see a “wealthy and very imperfect man” whom you claim “loves our country”. Trump is nowhere near as “wealthy” as he has tried to pretend to be–cheating on taxes, cheating on loan applications to borrow other people’s money to prop up his failing buisnesses and he has been sued thousands of times for refusing to pay valid debts. He refused to serve in the military because he believes that people who do serve are “suckers and losers”, and so he falsified nonexistent bone spurs to avoid military duty. Why do you fall for the line–“they’re coming after you”? That was a propaganda tactic used by Hitler. Why shoujld Trump get away with: 1. stealing classified documents, lying about returning them and hiding them and lying about “declassifying” them?; 2. lying on loan applications to borrow more money and on better terms than if he told the truth?; 3. starting an insurrection, even though there’s no proof of any fraud, and all polls predicted he would lose?; 4. falsifying campaign reports by lying about payoffs to women to hide his misdeeds? No one else could get away with these things-why should he?
Biden sat for a softball interview on Howard Stern show.
Biden claimed:
– He saved 6 people from drowning as a lifeguard (Lie)
– He received “salacious pictures” from women in the 70s that he handed to Secret Service (Definitely a lie and senators don’t have secret service protection)
– That he was arrested as a kid while standing with a black family on their porch as people were protesting desegregation. (Lie)
– That he was “runner-up in state scoring” in football. (Lie)
Next up in Biden Gump fantasy world: He started a shrimping company after Nam.
The @NYPost is reporting that Biden & his aides tried to bounce Karine Jean-Pierre last Fall because she’s the worst Press Secretary ever.
They didn’t want to fire her bc “they’re afraid of what folks are going to say”.
Acc to a source: “She doesn’t have a grasp of the issues and doesn’t spend the time to learn.”
Duh.
Another source: “She does not put in that level of work.”
“She thinks she’s doing an amazing job.”
“Karine has decided to stay come hell or high water.”
And they can’t or won’t fire her.
Live by DEI, die by DEI.
@monicacrowley
“Yes, Biden DOES love our country, which is why he has worked so hard…”
Biden and working hard do not belong in the same sentence.
Sorry, but no.
Biden is a greedy, filthy corrupt, traitor & sellout who has never had a real job and is about as lazy and entitled as it gets.
“Biden was always a pedo, liar & moron who could easily be bought & blackmailed.
He was installed to make controlled demolition seem like incompetence.”
I see no “Ambiguity of immunity”
Every POTUS has immunity from the judicial branch, BUT…
Every POTUS is subject (has no immunity) to impeachment/conviction in Senate.
Done.
Presidential Immunity may be the issue at hand, but the underlying argument that needs to be addressed lies within a corrupt judicial system that serves itself and a contemptible master. Lawfare, originating from an era of frivolous lawsuits, allows “plaintiffs” levels of immunity with little fear of retribution. Given the purposeful corruption of law for personal gain (money, power, control), It is doubtful that SCOTUS has the ability to apply immunity equally that serves “We The People”, first and foremost, as originally intended.
Turley you really ought to be ashamed for this one: “The ongoing prosecution of Trump is legally absurd but has resulted in the leading presidential candidate not only being gagged but prevented from campaigning.” According to the most-recent polls, Trump is NOT the “leading presidential candidate”. And, he is “being gagged” because his serious mental illness prevents him from complying with common decency and common sense–he just can’t stop slandering the judge, his family, witnesses and the NY legal system. Anyone else who verbally attacked the judge, his family, witnesses and the prosecutor would have been a guest at the graybar hotel a long time ago, which is where he should be. And, you claim he is being prevented from “campaigning’–he had Wednesday off, but played golf instead of campaigning. And, every time he sees those cameras, he starts “campaigning”. Another thing, Turley, you KNOW that the defense filed a pretrial motion to dismiss, claiming that Trump didn’t violate any laws–you KNOW it was denied, and you KNOW why–because the legal premise behind Trump’s prosecution is valid, so when you, claiming to be a law professor, pander to non-lawyers by spouting the nonsensical argument that the NY prosecution is legally invalid, you KNOW better. Michael Cohen was convicted for the same conduct, which he did solely to benefit Trump and hide the truth from the “unborn baby saving” Evangelicals.
As to the SCOTUS, Gorsuch seems to have some delusional notion that the Corut is going to create some law “for the ages” or something–a declaration about the parameters of when a POTUS can be charged criminally. That should not be because the SCOTUS is supposed to exercise restraint–meaning that they should narrowly tailor their ruling to the specifics of the “case or controversy”before them–period–and go no further. The SCOTUS should, as Justice Jackson said, simply return the case to Judge Chutkan, and not get into the weeds about criminal liability for “official” vs “non-official” conduct. The things Trump is charged with ARE illegal, and he has NO immunity for his conduct. And, his getting charged will not create the situation where any POTUS must fear that their successor will have them prosecuted for political reasons–Turley–you should be ashamed for even suggesting this, because it assumes that DOJ attorneys are minions of the POTUS–which, in Trump’s case, is probably true–but not for any other POTUS. The reason this issue never came before the SCOTUS before is because we’ve never before had an occupant of the White House who was nothing more than a power-hungry sociopathic narcissist with no moral compass. Nixon came close, but Trump has him beat.
Gigi, how about you ” complying with common decency and common sense” and step away from TDS rants? It is completely off topic.
Anonymous: I took the quote from Turley’s piece above, which is all about Trump. Why is that when someone points out that it is both juvenile and disrespectful — not to mention dumb when you are a defendant–to publicly insult the judge, his family, the prosecutor and witnesses– that you accuse the critic of being “deranged”? You know you don’t have any justifiable basis to defend Trump, who can’t even act “presidential”. There is also no rejoinder to the simple fact that Michael Cohen was prosecuted for the same conduct–so how or why is it wrong for Trump, who benefitted from the bribe, to be held accountable? You also have no answer for that one, either.
Gigi – I agree that Trump misses the mark by calling any judge or prosecutor “deranged” when the better descriptor is “calculated psychopath.”
Hate on. You have plenty of company.
Wow, TDS does exist!!!
You dont sound well.
Gigi the mind reader who KNOWS what you KNOW.
You are wrong on Trump completely. However, we know where your head is at!!
Gigi… daily, the media smears and tells its viewers that PDJT … IS guilty of every alleged crime he is accused of.
The judge’s daughter works for Adam Schiff. She posted a picture of Trump behind bars AS her leftist partisan father controls this case against a US President, DTrump. That alone is legit grounds for an eventual mistrial.
The judge himself is an overtly partisan Democrat who contributed to Bidens 2020 election. He is by no means an impartial judge. The accused has a RIGHT to an impartial judge and jury, both of which trump has been denied.
The Prosecutor is an extreme partisan Democrat who campaigned on “getting President Trump” by any means necessary – b4 ever seeing a shred of evidence. Same is true for Fanni in GA.
Trump is a candidate for potus in 2024, 6 months from now. He cannot permit himself to be SMEARED daily without defending himself publicly. He must defend himself in both the court room and the public arena. He is and will continue to do so bc that is the RIGHT thing to do.
The gag order is exclusively designed to stop PDJT from being able to defend himself against accusations 6 months b4 a national election.
EVERY frivolous case against Trump is brought by extreme partisan democrats… several of which were in direct coordination with Bidens WH. A REAL conspiracy, not merely a theory anymore.
Biden is also losing to Trump and will lose in a landslide if the election is honest. Dems know this which is WHY they refuse to run on the merits of the issues and policies and instead ACT like Vladamir Putin trying to imprison their political opponent. It’s shocking to witness this occur in our USA.
You seem to be just another radical leftists who cares nothing about justice, truth, honesty, fairness and the preservation of our country as a Democrat Republic where are Freedoms and rights are protected. You just want to destroy someone you don’t like personally by ANY means necessary which makes you a totalitarian. You recite a list of ad hominon attacks that you were told by a corrupt govt controlled MSMedia.
Whatever will NUTCHACHACHA do without affirmative action, quotas, forced busing, discriminatory “non-discrimination” laws, unfair “fair-housing” laws, redistribution of wealth, social engineering, the remainder of the communist American welfare state, etc., etc., etc.?
We obviously have a corrupt Supreme Court.
It is clear what they have in mind. Delay the trial, help Trump steal the election, and then give Trump complete immunity.
Good bye democracy.
I can see the stark wide open corruption of Trump’s prosecutors and their fallacious charges. When it comes to the SCOTUS… all I hear is liberal whining.
Wait, what? (Perry Mason) ^
Trump will never have complete immunity, even if/when the SCOTUS points out that it is Congress’ Constitutional responsibility to “police” every President (current and former)
Presidents can be impeached at any time. Trump was impeached after he lost in 2020. Sure, he was not convicted, but this path is the remedy for Bribery, high crimes… (you know, Biden stuff)
This is a “Separation of Powers” thing.
“…., help Trump steal the election,…”. So, if you “steal” what was previously “stolen”, what are you really guilty of? You are already questioning the outcome of something that has yet to happen, which allows you the privilege you specifically deny of others. On the bright side, I commend your assumption that Trump will win again, albeit not for the reasons you suggest.
We are not a Democracy! We are a Republic. Our Republic has been decaying since the Dems took over. It’s not Trump that is the threat here! But we all know where your head is at!!
Seriously?
Bidens DOJ and Trump-hating leftists in DC NY GA and now AZ— not to mention the BS to keep him off the Rep PRIMARY ballot so that DEMS could stop Rs from choosing our OWN candidate — have brought multiple insane and frivolous cases against THE R candidate for POTUS and a former US President… all bc dems do NOT BELIEVE IN ELECTIONS.
Dems/biden govt does NOT believe that the PEOPLE should be permitted to ELECT our own govt. Wow. DEMS EVEN believe they have the right to DENY Republicans our right to choose OUR own candidate.
So… did the dems commit massive election fraud in 2020. Yah… they are going FAR more extreme now… Vladimir Biden and his political oligarchs.
For many Americans who assumed the 2020 election was authentic… many no longer believe that. They SEE the Biden govt/dems viciously attacking their political opponent to bankrupt and imprison him on the most outrageous and frivolous charges I’ve ever seen. It’s scary to witness.
You have seen the dictator… and it is YOU and your out-of-control lawless, vindictive party… and EVERYONE in the world sees it.
You’d have to be deaf, dumb and blind NOT to see what is being don’t … TO… PDJT is … criminal and proof our govt has been already taken over by fascist totalitarians.
Hardly call them liberal. It’s not about Trump or the Presidency. The question is, what sort of country fo you want to live in? Three separate but equal branches. Can one even indict the other? I brought this case to the Federal courts when Congress and the President BOTH threatened a government shutdown. I was granted a hearing because they saw a case. I declined because once the parties received notice the case was filed, they changed their minds. I bet they did. MOOT POINT. I spoke to the Federal judge by phone who said he was pretty interested in hearing THAT argument. I am not paid to clean up the American government either. If the Courts cannot reason their way out of a paper bag, we’ll what use is that?
However, based on their intellect and power of reasoning, and their scores on the LSAT, their Class placement, their blatant bias, seems like just another day in American courts to me, minus the magnificent robes. I filed a Federal lawsuit against the NSA that went to Appeal in the Ninth Circuit. That was actually removed from the public record and dismissed by a three judge panel that told me to go jump off a bridge. I’ve filed and won lower court cases just by showing up in the courtroom. I have a reputation. You get what you get in American courts. These liberal guys couldn’t litigate a dog bite case. We know their so-called opinions come from outside counsel. Been there done that. What else ya got?
^ “Three separate but equal branches. Can one even indict the other?” ^
Yes! Congress/Senate has the responsibility to “police” the President.
2/3 majority for conviction (to protect against political lawfare abuse.)
And THIS is why the DOJ has no standing – IOW, every POTUS has immunity from the judicial branch.
Question: Does a potus have a constitutional obligation to ensure that a national election was authentic- that the results were the true “will of the people?” IS that a DUTY of a sitting potus regardless of whether he is also a candidate?
And… is it legitimate to question the authenticity of a national election if the FORM of that election has been dramatically altered for THAT election in question? I ask because for over 230 years our elections were … in-person voting on election day, with verifiable ID, votes counted on election day with Multiple poll watchers. In 2020, almost abput 75% of ballots – mail-in and in-person voting- were cast WEEKS before those votes were counted and stored for WEEKS in … storage facilities we have no knowledge were secure because that is NEVER discussed by the govt or media.
So.. IS there any legitimate reason for Americans to simply ASSUME that this new form of voting — that France tried and eliminated bc of rampant election fraud — deserves to be trusted?
IF Americans do not ELECT our govt, then we live in a dictatorship in which those who gave power over us CAN impose themselves on us.
It’s not unreasonable to believe that politicians and their donors do NOT want free honest elections. They want a ‘sure thing” – they want to control the RESULT of any and all elections. The only way to stop them from becoming the tyrants they WANT to be … is to conduct an extensive investigation in HOW these 10s of millions of UNCOUNTED ballots/votes are protected and stored for WEEKS before being counted.
How easy is it.. to obtain the key or code to a ballot storage room and switch real boxes of ballots with fraud ballot boxes? Polutical operatives have weeks to commit the crime. All they need is ONE partisan election board staffer to give them the code or key to the ballot storage room. It’s an EASY crime to commit.
That does not describe our elections for “230 years.” Read about how elections were done in the 1800s. Verifiable ID wasn’t a thing.
The president has no constitutional authority over presidential elections, despite what everyone wants to believe, which are run by the states. Constitutionally, states don’t even have to run presidential elections to assign electoral votes (in the early 1800s, many states simply had state legislators pick the electors).
Ok… so your argument is that the American People do not have any right to ELECT our govt. It can be imposed on us… by state legislatures? Is that your position?
If so then it’s obviously lawful for PDJT to have sought to have the electors from the 6 disputed states RETURNED to the states on j6, right?
The state legislatures would then review the new evidence of election fraud in their states and DECIDE which electors – Biden or Trump – would be sent back to congress for counting. Is that your view?
“The president has no constitutional authority over presidential elections . . .”
That is false.
It is called “The Take Care Clause:” The President “shall take Care that the laws be faithfully executed . . .”
Question: who runs elections–States or the POTUS–Simple answer–STATES. Which pro-Trump media outlet is claiming that there is some “duty” of a President to “ensure” the authenticity of an election? Whichever it is, they are lying. Elections are run by States–STATES certify the results and send them to Congress–that’s what happened in 2020–and, that’s what Trump tried to sop. AND, Trump didn’t “ensure” the authenticiy of the election in 2020–he tried to overturn it–with lies, fake Electors, pressure on the VP to refuse the certified votes and pressure on Secretaries of State to “find” votes he didn’t get, “Stop the Steal” rallies, promises that he would march with his supporters to the Capitol–all lies–all a magnificent display of malignant narcissism and the gullibility of people who watch TV and are fans of “The Apprentice”–a fake and fixed reality TV show.
Again you are … confirming that it was LAWFUL for Pense to … refuse to accept the Biden electors from 6 disputed states.
There were several in congress who were — b4 the riot that only helped biden– going to call for biden electors to ve returned to the state legislatures whole review of new election fraud evidence could be reviewed and a determination made re: WHICH electors – Biden or Trump- should be returned to congress for certification.
So you DO believe that it was lawful for congress to refuse to certify Biden electors from the 6 disputed states and let those state legislatures decide which set of electors get counted.
That also makes all the Trump alternative set if electors totally valid…to be decided BY THE STATES.
Pence had NO authority to refuse certified vote totals–NONE–where do you claim such authority came from? it was all part of the plot to circumvent the will of the American people. After bullying Secretaries of State to award him votes based on nothing but his refusal to accept reality failed, after multiple lawsuits failed for lack of evidence, after audits and recounts failed, Eastman came up with the idea that Pence would “refuse” to accept the certified votes, which would then cause Congress to refuse to certify Biden as the winner, and then, the question would be thrown to the state legislatures–most of which were Republicans, and they’d just ignore the election results because Trump said they should and award him the presidency that he really lost. THAT was the plot–and it WAS a plot–to avoid the inconvenient truth that Trump lost, just like the polls said he would. There was no evidence of widespread voter fraud. There stil isn’t. There was never any valid reason to “dispute” the results of the 6 states–the results were challenged with recounts, audits, forensic audits and lawsuits–the results didn’t change, but Trump can’t handle that, so he tried to get his fans to storm the Capital. There is NO such thing as “alternative electors” either–only the winning candidate has valid “electors”. The role of electors is to certify the winning candidate. That was NOT Trump, and they KNEW it. Those gullible people who signed pro-Trump Electoral College documents claiming that he won committed fraud, and they are being prosecuted, as they should be. The bottom line is: Americans didn’t want Trump, so we voted him out. He can’t handle that and he has managed to convince gullible people that he’s a victim of widespread fraud. It’s all a sham. Biden won. If you aren’t worried about how close the plot to steal the election came to working, then you shouldn’t be allowed to vote.
assume some immunity is a given, is executive privilege attached to it ? …would those already prosecuted where privilege had been denied now be set free ?
If POTUS has immunity, would those advisors in the whatever situation, also have immunity ?
Any line the court tries to draw between official and non-official acts will be completely subjective. Turley raises an important hypothetical- what if Trump had been fighting the exact same fight between November and January 2020-21 were the GOP convinced Mike Pence had been denied the Presidency by ballot fraud? Does the sitting President have no official interest in the conduct of a national election?
Dreeben’s assertions that inferior executive officers approving official acts in response to the Obama/Bush hypotheticals are particularly damning- inferior executive officers authority in such matters is entirely derived from the President himself, not the other way around. If inferior executive officers approval is indicative of official acts conferring immunity, then the President himself has even more authority to designate acts as such.
” No immunity or complete immunity each holds obvious dangers.” – J Turley
Snuck (false) premise ^
Complete immunity FROM THE COURTS, is not complete immunity.
Each President risks impeachment and conviction from the House/Senate.
As is Congress has the responsibility to “police” the President.
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.
The problem with all the criminal cases against Trump is Democrats have opened a Pandora’s Box. If they think these same laws will not be used against them they are mistaken. It is only a matter of “when,” not “if.” They obviously have not learned from Harry Reid’s debacle when he changed the Senate rules reducing the number of Senators needed to confirm a federal judge from 60 to a simple majority. In the short term it allowed Democrats to maintain control over who became a federal judge, but how did it fare in the long term? The answer can be summed up in three names, Gorsuch, Kavanaugh and Barrett.
@Mark
While I don’t disagree with your remarks in spirit, they are based on the assumption that democrats will lose or cede power, and that is in no way guaranteed; indeed, they will clearly go to any lengths to prevent it, for good. We really all need to wake up to the reality of what we are actually dealing with in the modern left, IMO – this is a regime, not a political party. Dem governance and its arms are thoroughly, laughably corrupt literally from top to bottom, and are absolutely totalitarian. They aren’t going to relent, and they don’t give a toss about elections. There are still too many of us that seem to think it’s the 90s and all is fair in love and war, it’ll come out in the wash; the wash is no longer even a thing. Four more years of dem control would likely seal the deal indefinitely, if not forever, and that could very easily result in something none of us want to go through – an actual ‘hot’ conflict within our country.
Yes, James. Glad I read your response b4 responding myself.
I’ll add…
Everything the left accuses Trump or the Right/Rs of doing… they ARE doing, in real time, themselves and merely fear that they will be treated as THEY treat us.
Actually, Rs/Trump won’t do to Dems what they do to us… because our goal is to RESTORE lawful governance to our country… to protect against another 1776 revolution.
Such a possible future US revolution will most likely occur if this madness and lawlessness is not stopped… yesterday. It will occur for the SAME reason it occurred in 1776— “no taxation without representation.”
If the citizens do not elect our govt (fraud elections) and it is imposed on us by the professional political class and their globalist foreign corp donors…. then we do LIVE UNDER A DICTATORSHIP and that will result, ultimately, in another bloody revolution on US soil which will be … pretty much annihilation of the USA as the republic we were designed to be. Foreign govts will also take that opportunity to destroy us totally.
It’s sad and shocking how much the left/dems have changed and become incapable of decency, patriotism- love of country… doing the right honorable just and moral thing. It’s exhausting to watch them behave in such anti-american ways … constantly, from burning the flag … to declaring the US is an evil country… to trying to destroy their political opponents with manufactured lies… to taking a knee on the ball field… to destroying authentic feminist advancements (now bio-males get say they are girls and beat the crap out of bio-females)… to sexualizing and sexually abusing our innocent children… to promoting racism & hate this time whites are the ones publicly shamed and discriminated against BECAUSE of the color of our skin… to censuring free speech in the public forum. It’s all insane. There is nothing liberal about this dem party and their cult followers. It is blatantly, unapologetically… and demonstrably… fascist.
“If they think these same laws will not be used against them they are mistaken.”
Like when HRC had her ‘investigation’ downgraded to a ‘matter’ despite evidence of her guilt?
Like Biden getting away with illegal classified docs because he’s ‘a sympathetic, well-meaning, elderly man with a poor memory’?
ETC.
Yah… the Special Prosecutor (SP)on Bidens absolutely illegal confiscation and failure to take ANY measures to secure classified govt records… the SP actually declared Biden will not be charged because he is “NOT COMPITENT to STAND TRIAL”.. but he is competent to run the most powerful country in the world with 3 wars going on now because of his incompetence?
Johnathon
Surely the go forward plan for every future president is issue himself a blanket pardon on his last day in office?
Immunity by another name.
In the past, American lawyers were dignified and rarely sued; doctors and lawyers never advertised. and Presidents were provided immunity informally.
Sotomayor and Kagan made an important point. If the president is immune from criminal prosecution because he’s immune from the law then he can’t be impeached because he’s immune from the crimes he’s accused of. Trump claims he’s absolutely immune from prosecution. But he can be impeached for allegedly committing crimes he claims he’s immune from. It’s a stupid course of logic.
What you are missing is that it is Congress’ responsibility to “police” the President.
2/3 for conviction to protect against political lawfare abuse.
The regular courts have FAR too easy a path for lawfare. -see 91 ridiculous indictments against Trump.
Sotomayor and Kagan’s point doesn’t hold water–an impeachment is not a criminal trial; a president can certainly still be impeached whether he is immune from criminal liability or not.
SCOTUS should rule that the sole remedy against a chief executive is impeachment by the House and trial by the senate, thus leaving the determination of what are and are not protected official acts up to the discretion of the representatives of the people in the United States Congress.
The alternative is for nine people on the Supreme Court to lay out official rules of conduct for a competing branch of government, in which case we are then no longer a constitutional republic with powers divided between three branches of government, but just an oligarchy ruled by nine justices.
Not really. Impeachment is a political process, not a legal one. While impeachment may be based on criminal conduct, other acts, such as using the Presidential office for personal gain, can also lead to impeachment. The House of Representatives has the power to impeach. The Senate is the body that holds the trial and can remove someone. The Judicial branch is not involved.
Elaine S ^
The whole idea here is that prosecution of a President MUST BE difficult.
Else the President will be controlled by lawfare (which is political.)
The constitutional requirement of a 2/3 majority in the Senate is intended to focus prosecutions of presidents to only the very egregious “Bribery, High crimes…
And, “Removal” is not the only remedy a POTUS faces. An impeachment and conviction could put Trump in prison for paying a lawyer… or cutting a tag off a mattress, if they wanted to.
And so we see that no President has “complete immunity” ever. They have only shifted into who is responsible to police them.
An impeachment and conviction could put Trump in prison for paying a lawyer
There is no article I power to jail.
Hilariously wrong, George. The Constitution gives Congress explicit, no equivocating, power to impeach and remove for any reason they choose. So, the President is definitely not immune from impeachment. If Sotomayor and Kagen said that, and I am granting you telling the truth about that, then they were either ignorant or lying.
Yancey, removing a president does not mean he subject to prosecution. The senate cannot put him in prison. Trump argues he’s immune from prosecution for acts he did as president. Removal doesn’t mean prison time. He’s immune from going to jail after being removed. He’s above the law.
According to Trump he can order the murder of his political rival and be immune from prosecution if Congress doesn’t impeach and remove him. He can take bribes and get impeached, but isn’t removed by the senate. He would literally be above all law.
“It’s a stupid course of logic.”
The only thing “stupid” here are S&G (big surprise), committing the conflation fallacy: You can’t eat apples because apples are oranges, and you’re allergic to oranges.
An impeachment is not a criminal prosecution.
Once again, the answer is staring us right in the face….This is what happens as a result of a fatally flawed electoral college system that produced an unhinged b hole of a president who never won a popular vote and stacked a Supreme Court in a completely partisan way.
So as this ex president farts his way through his current trial and fights like mad to avoid the other ones he’s earned we’re left to ponder how things got this crazy.
No, each State should have one vote, and whomever wins the state get the vote. Winner of the most States wins. Or are you someone that loves slavery, as only enslavers like popular votes. Words attributed to Ben Franklin ( He was an American Founding Father, bet you didn’t know that ) “Democracy is two wolves and a lamb voting on what to have for lunch.
“Liberty is a well-armed lamb contesting the vote.” Put another way, Democracy is two Democrats and a black man voting on who will pick the cotton. Liberty is a well-armed black man tell Democrats to pick their own cotton.
The electoral college was a by product of slavery. It put a system in place to protect slave owners’ power in the face of a growing population that would out vote them.
Not even close to accurate
Each state should award that one vote to the winner of the national popular vote for federal office. For state elections the statewide popular vote would suffice.
While we’re at it, congressional offices should incorporate a statewide vote…, no more districts.
Ranked choice voting should also be incorporated to at least make an effort to limit two party control of the system.
The house is contructed to represent the people. Each Representative, represents about the same number of citizens.
We already have state wide election of Senators. Only after a Constitutional amendment changed from Each State selecting their Senators. The method of selection was up to the State Legislature.
The construction of congress set up the House, to Represent the People, and Senate represented the States,
It has been lost to all the history challenged that we are not the nation of America. We are first and foremost States with a central govt to do ONLY those things individual States can not accomplish.
Elegantly written. Perhaps you could clerk for Justice Sotomayor.
So, you’re more intelligent than the men that wrote the constitution? Swing and a miss.
P Hammer: Maybe in some ways. I’ve had the luxury of watching history play out that wasn’t available to them. Plus, somewhere along the line, my generation began to frown on raping their slaves.
The electoral college worked exactly as the Founding Fathers intended.
To give outsized power to slave owners.
There is a lawsuit to lift the Trump Gag Order by a NYC lawyer/reporter, attorney Joseph Nierman, who filed a lawsuit against Judge Merchan in a New York appellate court. He has standing, and it’s an easy win. Gag orders are to protect the constitutional rights of another, Nierman points out, there is no other person to protect. Making the gag order 100% unconstitutional. As I watch America burn, I was hoping a big name litigator would love to get there name on this, but no, so far it seems lawyers today no longer protect American rights, and only sellout our justice system for their pocket book. Currently, only Republicans believe in our system, what happens when we stop?
It protects the fairness of the proceedings. Trump could taint any jury or intimidate his way out of an indictment or conviction.
Fairness? The blue mirage?
How can an unconstitutional gag order protect anyone’s rights? This is NOT ABOUT TRUMP and this obsessional hatred is the poison that is killing the rights that all of us have been provided by OUR constitution.
I guess I should have been more clear, so, a Gag Order can only be used in a two party lawsuit, for example : person A with constitutional right to freedom of speech, and person B with constitutional rights that could be violated by Person A using said free speech. A judgement is made on the balance of the two parties and whos protected right trumps the others and as such produce a gag order. Trump case, like any American in the same shoes, is the only person in the lawsuit/case. The STATE is not a person, and doesn’t have constitution rights. ( Because constitutional rights are the protections from the State)
Oh, I see, a NYC jury against President Trump or any Conservative Republican would be more than fair without question? Get serious George, the jury is as tainted as it was in “business valuation” trial run by a quack/hack judge who should be disbarred. If you want “fairness,” let’s put President Trump on trial here in Texas! Sound fair to you George, all other things being equal?
George, could the same be said for news outlets and their constant ‘opinion pieces’ against Trump?
Seems they do much more to possibly taint the minds of jury members. It’s been YEARS of ‘Orange man bad’.
Should they also have gag orders placed on them? To ‘help protect the fairness of proceedings’?
“It’s been YEARS of ‘Orange man bad’.” Do have any evidence whatsoever that Donald Trump is a fundamentally honest and good person?
Free speech is an enumerated right.
What exactly is purpose of gag order? IF Trump’s speech violates the law, he can be charged, but prior restraint is another violation of Rights.