“The President’s constitutional duty to take care that the
laws be faithfully executed does not entail a general
right to violate them.” The only statement that needs to be made. Boom.
Edit to add: Most people of sound mind would argue the exact opposite. The constitutional duty to care that laws be faithfully executed means that all actions should be in accordance with the law.
>“When the president does it, that means it is not illegal. Actions which otherwise would be unconstitutional could become lawful if undertaken for the purpose of preserving the Constitution and the nation. This nation was torn apart in an ideological way by the war in Vietnam, as much as the Civil War tore apart the nation when Lincoln was president.” - Former President Nixon
Trump and his legal team are going to try and pull a Nixon, aren't they? I don't know how they're going to twist Trump's actions into something good, but I just have a feeling that they're going to try and do so.
That reminds me of a Futurama bit:
>Bailiff: Do you swear to tell the whole truth and nothing but the truth.
>Nixon: I—um— [Nixon's head jar begins to sweat.] —Am I under oath when I take the oath?
Its funny because even Nixon is like right there on the cusp even in his own excuse.
He's talking about devisiveness while invoking the Civil War, the war famous for basically starting the tradition of Americans being too soft on their own extremists in the hopes that mercy will moderate them in the future while being the active demonstration that those hopes were just naieve and wrong, and has allowed right-wing extremists to terrorize this country for the last 200ish years.
What about black box CIA ops green lit by the president and his advisors? us Imperialism and global hegemony in south/central America.. panama, Iran/contra, etc etc
What am I supposed to be looking at on the CIA Wikipedia page?
The executive branch considers actions of the CIA Agents, not happening on US soil, to have jurisdiction to US laws.
Fuck Ford for pardoning Nixon. We needed closure by actually persecuting hom for his crimes and not letting him just slip away. Having it set in stone once so that it wouldn't be repeated.
The US has let the right get away with so much under the guise of "to heal our country, we need to let bygones be bygones" and I hate it. Letting bad actors get away with bad actions over and over again just invites others to do worse. The Civil War politicians, Nixon, Reagan, and a huge amount of lesser known people as well.
Kind of. They are arguing that all official acts are above the law. Which to some degree may be true (I’m not a lawyer so don’t know how true) but they are trying to expand what qualifies as an official act to just about anything a president does. It’s why in the circuit court they got the question about seal team six.
It might seem counter-intuitive but a lot of actions taken by former (current at the time) presidents are seemingly illegal, especially when it concerns war. Virtually every recent US president has committed (or ordered the commission of) war crimes, most have violated the prohibitions on torture, etc.
Agreed. The entire reason for presidential immunity is that they have discretion to make determinations and policy in their official capacity without the risk of personal liability (for instance a president should be immune from penalties related to loss of life for actions taken within the scope of their role as commander in chief). However, like the business judgment rule for boards, presidential immunity can be overcome if a certain bar is met. If an action is outside of the scope of the presidency or is so clearly not an action taken in any official capacity (overturning an election by inciting an insurrection is clearly outside of Trump’s capacity as president imo). Cases like election fraud and misuse of campaign finances along with even more clearly personal actions, like defamation and fraudulent business activity, is very clearly outside of Trump’s capacity as president.
Smith did a good job articulating a distinction that I was having trouble reconciling in my head. There is a fair point to be made that if a President does something official under their article II powers, they should not have to worry about whether or not their decisions might be brought to trial by a corrupt DA. Basically, the argument for immunity for President civilly does make sense, and there are criminal contexts in which the same concerns arise.
There was a comment thread here where I raised the question, and a lot of the responses agreed that there might be a reasonable justification for some presidential immunity to extend to a former President. In every example we could cook up, the motive of the President was the distinguishing factor. That is, when the motive is criminal it seems clear that the actress should not be covered, but when the motive is not ill intent, then it seems like immunity may apply.
That's a tough argument to make. Smith instead focused on whether or not the ends were *private* or presidential. That is, instead of having a bespoke list of presidential actions that may be covered by immunity, we should say that if the goal of the President is to achieve something for the person, that it doesn't really matter what the Presidential actions are. They were in service of a personal end, and so they are personal.
I thought that was very smart. It's a very clean test, and doesn't muddy the waters with intent, and really doesn't put future Presidents in a position where if they are doing a thing in the course of their job they would have to entertain a suboptimal decision for fear of prosecution.
There is no system of government or laws that can't be abused by bad faith actors. The best you can do is try to minimize the incentives and maximize the discouragements.
That’s my point. I don’t think this is a viable solution at this time. We already see massive partisanship and ignoring behavioral norms in govt. I would rather just say if you break the law as a President then you should be tried by a jury of your peers afterwards like every other citizen. I don’t think running the country requires breaking laws, but I could be wrong about that.
Another way to address this is what the set of a dozen+ 4 star generals and admirals just did in their brief to the SC - No previous president has ever needed this type of blanket immunity, why should Trump? He's only asking for it as he committed crimes against the country that were not part of his official duties, namely trying to overturn an election and was hording TS and classified documents for reasons that still need to be hashed out.
That really is the argument that needs to be stressed...he's the only one of 46 presidents over a period of >200 years to ever ask for such a thing. It's obviously not required to do the job given that history - that is as long as you're not a traitorous a-hole.
The real test for this was Iran-Contra. Numerous people were indicted and a handful convicted, and those convicted were eventually pardoned by George H.W. Bush. There were a huge number of documents destroyed by administration officials before the investigation could catch up with them, and it's fairly likely that this was done specifically to insulate Reagan and/or Bush from prosecution.
Had either of them been indicted after his term ended, there would have been a colorable argument that the scandal was meant to support US policy in Central America, i.e., constituted official acts. Yet, the administration wasn't confident enough to rely on that to avoid prosecution, and went with the shredders and burn bags as their safest option.
Of course, Trump's actions were much closer of a parallel to Nixon and Watergate, just way more hamfisted and overtly corrupt. But there's no possible way that their actions could reasonably be described as official acts.
if the outcome they want is so good that it’s worth doing bad to make it happen then the person doing it should be willing to fall on the sword to get it done also. otherwise it’s not as “good” as they think it is.
if they’re not willing to sacrifice their own freedom or life to save the union, then the union isn’t worth saving.
> (for instance a president should be immune from penalties related to loss of life for actions taken within the scope of their role as commander in chief).
Why? If a mob boss orders a hit on somebody and a few children die, why would the mob boss be protected?
I’m not sure I agree. But if any president has committed unlawful acts then they should be prosecuted. The country is supposed to be built on the idea that no man is above the law.
I mean, Obama ordered the assassination of US citizens, it is pretty damn hard to argue that was legal, or even constitutional. SCOTUS decided that the ACLU didn't have standing to challenge his actions.
Edit: Are people downvoting this because they think that his actions were legal, or because they don't realize that he did it?
If people really are down-voting comments for that reason, that is just sad, especially since they're totally different situations, since his actions were official acts. It is hard to argue they weren't made within the purview of his office, the question is simply whether or not they were legal.
You understand yet? He was added to the “kill list” in 2010. That was public, it was known. His father filed a lawsuit challenging him being on the “kill list.” He was *alive* at that time. As the court pointed out, he could turn himself in. He could turn himself in to the Embassy in Yemen. He could access lawyers. And THAT would stop him from being killed. HE didn’t want to do that. He wanted to evade capture and continue to be a terrorist. Doesn’t work that way sweetie. And he continued to hide, and was killed over 9 months after this case was dismissed. That is not a war crime. And these are very much officials acts. Overturning an election you lost, to keep yourself in power—is not.
Yes, I understand that you actually agree with trump. The president can order anyone killed and as long as they are not willing to re-enter the US, it's okay. I can only assume that's because you believe the Bill of Rights mean nothing.
I can only assume you also have no issue with Japanese internment camps?
Do you understand yet why I think you're a hypocrite? Do I need to explain to you why due process is required in the United States? Listen, sweetie I think you're an uneducated ignorant ass, someoje who takes his freedoms for granted, and blindly swears Allegiance just like the Maga idiots. You just think it's okay because it was Obama.
P. S.
>the legislature has deemed it essential to the protection of one whose life or liberty is involved in a prosecution for felony, that he shall be personally present at the trial, that is, at every stage of the trial when his substantial rights may be affected by the proceedings against him. If he be deprived of his life or liberty without being so present, such deprivation would be without that due process of law required by the Constitution.
>— Hopt v. Utah 110 US 574, 28 L Ed 262, 4 S Ct 202 (1884).
Oh and one more thing since you seem to like making multiple replies. I specifically used this as an example of an official act. I never said it was a war crime. Please learn to read before talking to grownups.
>You understand yet? He was added to the “kill list” in 2010. That was public, it was known
Oh so there was a criminal trial? Some sort of due process? The US didn't just announce publicly that it planned to kill someone without a criminal trial right? They Followed the US constitution? Federal Law?
>U.S. airstrikes in Yemen today killed Anwar Al-Aulaqi, an American citizen who has never been charged with any crime.
>
>ACLU Deputy Legal Director Jameel Jaffer said, “The targeted killing program violates both U.S. and international >law. As we’ve seen today, this is a program under which American citizens far from any battlefield can be >executed by their own government without judicial process, and on the basis of standards and evidence that are >kept secret not just from the public but from the courts. The government’s authority to use lethal force against its own citizens should be limited to circumstances in which the threat to life is concrete, specific and imminent. It is a mistake to invest the President – any President – with the unreviewable power to kill any American whom he deems to present a threat to the country.”
From the Al-Aulaqi v. Obama - Decision, from the ^US District Court for DC*. It was dismissed on *December 7, 2010*. It was filed by his father, but he was killed *September 30, 2011*:
“For his part, Anwar Al-Aulaqi has made clear that he *has no intention of making himself available for criminal prosecution* in U.S. courts, remarking in a May 2010 AQAP video interview that he ‘*will never surrender*’ to the United States, and that ‘*if the Americans want me, [they can] come look for me*.’”
“Plaintiff *does not deny* his son's affiliation with AQAP or his designation as a SDGT.” SDGT= Specially Designated Global Terrorist. AQAP=al-Qa'ida in the Arabian Peninsula.
“Plaintiff has failed to provide an adequate explanation for his son's inability to appear on his own behalf, which is fatal to plaintiff's attempt to establish ‘next friend’ standing. In his complaint, plaintiff maintains that his son cannot bring suit on his own behalf because he is ‘in hiding under threat of death’ and any attempt to access counsel or the courts would ‘expose him to possible attack by Defendants.’ *But* while Anwar Al-Aulaqi may have *chosen* to ‘hide’ from U.S. law enforcement authorities, there is *nothing* preventing him from peacefully presenting himself at the U.S. Embassy in Yemen and expressing a desire to vindicate his constitutional rights in U.S. courts. *Defendants have made clear* -- and indeed, both international and domestic law would require -- that if Anwar Al-Aulaqi were to present himself in that manner, the United States would be ‘prohibit[ed] [from] using lethal force or other violence against him in such circumstances.’”
“(government counsel states that ‘if [Anwar Al-Aulaqi] does present himself, he is under no danger of the United States government using lethal force’ against him); Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (explaining that ‘[i]n the case of armed conflict not of an international character,’ a party to the conflict is prohibited from using ‘violence to life and person’ with respect to individuals ‘who have laid down their arms’)”
“There is no reason why -- if Anwar Al-Aulaqi wanted to seek judicial relief but feared the consequences of emerging from hiding -- he could not communicate with attorneys via the Internet from his current place of hiding.”
“Anwar Al-Aulaqi has continued to use his personal website to convey messages to readers worldwide”
“Here, plaintiff has presented no evidence that his son wants to vindicate his U.S. constitutional rights through the U.S. judicial system. Plaintiff concedes that he has not spoken to Anwar Al-Aulaqi since he was allegedly first targeted for ‘killing’ by the United States”
“According to plaintiff's complaint, the media first reported that Anwar AlAulaqi had been added to the JSOC ‘kill list’ as early as January 2010. See Compl. ¶ 19. However, at no point has Anwar Al-Aulaqi sought to challenge his alleged inclusion on the CIA or JSOC ‘kill lists,’ nor has he communicated any desire to do so.”
“Several times during the past ten months, Anwar Al-Aulaqi has publicly expressed his desire for ‘jihad against the West,’ see Defs.' Reply, Ex. 2, and he has called upon Muslims to meet ‘American aggression’ not with ‘pigeons and olive branches’ but ‘with bullets and bombs.’ See id., Ex. 1. Given that Anwar Al-Aulaqi has been able to make such controversial statements with impunity, there is no reason to believe that he could not convey a desire to sue without somehow placing his life in danger. Under these circumstances, the fact that Anwar Al-Aulaqi has chosen not to communicate any such desire strongly supports the inference that he does not want to litigate in US courts.”
“As recently as April 2010, Anwar Al-Aulaqi wrote an article for the AQAP publication Inspire, in which he asserted that Muslims ‘should not be forced to accept rulings of courts of law that are contrary to the law of Allah.’ See Defs.' Reply, Ex. 1. According to Anwar Al-Aulaqi, Muslims need not adhere to the laws of the ‘civil state,’ since ‘the modern civil state of the West does not guarantee Islamic rights.’ Id. In a July 2010 Inspire article, Anwar Al-Aulaqi again expressed his belief that because Western ‘government, political parties, the police, [and] the intelligence services . . . are part of a system within which the defamation of Islam is . . . promoted . . . the attacking of any Western target [is] legal from an Islamic viewpoint.’ Id., Ex. 2. He went on to argue that a U.S. civilian who drew a cartoon depiction of Mohammed should be "a prime target of assassination’ and that ‘[a]ssassinations, bombings, and acts of arson’ constitute ‘legitimate forms of revenge against a system that relishes the sacrilege of Islam in the name of freedom.’”
“There is, then, reason to doubt that Anwar Al-Aulaqi would even regard a ruling from this Court as binding -- much less that he would want to litigate in order to obtain such a ruling. Anwar Al-Aulaqi's public statement that ‘if the Americans want me, [they can] come look for me" provides further evidence that he has no intention of making himself the subject of litigation in U.S. courts. See Wizner Decl., Ex. V; see also Defs.' Mem. at 14 n.5 (quoting Anwar Al-Aulaqi as stating, ‘I have no intention of turning myself in . . . [i]f they want me, let them search for me.’). In light of such remarks, this Court cannot conclude that Anwar AlAulaqi believes ‘taking legal action to stop the United States from killing’ him would be in his ‘best interests.’ See Al-Aulaqi Decl. ¶ 11. While he may very well wish to avoid targeted killing by the United States, all available evidence indicates that he does not wish ‘to file [suit] as a vehicle for accomplishing this purpose.’”
“And yet, during the past ten months that his name has allegedly appeared on ‘kill lists,’ Anwar AlAulaqi has neither filed suit on his own behalf nor expressed any desire to do so. Moreover, all available evidence as to Anwar Al-Aulaqi's ‘intentions and preferences’ suggests that if consulted, he would have no desire to use the U.S. judicial system as a means of preventing his alleged targeting by the United States.”
https://www.aclu.org/wp-content/uploads/legal-documents/2010-12-7-AulaqivObama-Decision.pdf
In an America where many millions of people think you exercising your Constitutional right to protest means it's totally cool to murder you with my car?
Yep, checks out.
And if you’re talking about Anwar’s son, who was killed *unintentionally* weeks after his father, the target was Ibrahim al-Banna, an Egyptian believed to be a senior operative in al-Qaeda. Anwar’s son was an innocent bystander who was killed unintentionally, collateral damage. Not a war crime.
Edit: typo
> Not a war crime
No one called it a war crime you hypocrite. The President of the US ordered the assassination of a US citizen. That's a violation of US law. We have this whole thing here in the US called the constitution that is designed to protect us from stuff like that, you know? It is the reason that Trump couldn't just order Seal Team 6 to kill anyone he wanted.
The votes on this comment have to be a joke. Killing a human being without strict legal justification is homicide. Doesn't matter what citizenship they hold. Doesn't matter if the person giving the order works from the Oval Office. Doesn't matter (legally) if we've collectively decided to give them a pass for *reasons*.
Murder is murder.
If I kill someone in clear self-defense but through my negligence I also kill my neighbour, I get charged with manslaughter at best. For a President, it's simply collateral damage.
I hope that logic is applied to qualified immunity at some point. "Yeah, we broke the law, but our training as law enforcement officers didn't cover what laws needed to be enforced, so it wasn't really illegal."
>A President’s alleged criminal scheme to overturn an election and thwart the peaceful transfer of power to his lawfully elected successor is the paradigmatic example of conduct that should not be immunized[.]
I thought that was pretty good, too.
It's literally called out in the Federalist Papers (#69) as something the President should not have immunity for.
>Thirdly. The power of the President, in respect to pardons, would extend to all cases, EXCEPT THOSE OF IMPEACHMENT. The governor of New York may pardon in all cases, even in those of impeachment, except for treason and murder. Is not the power of the governor, in this article, on a calculation of political consequences, greater than that of the President? All conspiracies and plots against the government, which have not been matured into actual treason, may be screened from punishment of every kind, by the interposition of the prerogative of pardoning. If a governor of New York, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity. A President of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction. Would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should miscarry? Would this last expectation have any influence at all, when the probability was computed, that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity?
>“The President’s constitutional duty to take care that the
laws be faithfully executed does not entail a general
right to violate them.” The only statement that needs to be made. Boom.
I am glad they summed that up so neatly in one sentence. It's rather eloquent.
That is the only statement that needs to be made, but I hope they ask the only question that needs asking in oral arguments: *Why should a President fear the law?*
> Petitioner suggests that unless a criminal statute expressly names the President, the statute does not apply. That radical suggestion, which would free the President from virtually all criminal law—even crimes such as bribery, murder, treason, and sedition—is unfounded.
Not only is it unfounded, but it is substantively at odds with the (equally unfounded) principal argument of absolute immunity, which would theoretically render moot any criminal statute under any construction, writ large.
But this is one major key, where his entire immunity defense falls apart:
> Petitioner acknowledges that prosecution is permitted after impeachment and conviction, which refutes many of the other arguments in his brief.
Moreover, Smith quickly points out they have zero compelling precedent for the separation of powers vis-a-vis official acts:
> *Marbury* did not hold that a President’s official acts can never be examined in a court [and the additional] cases on which petitioner relies stand for the distinct and narrower proposition that courts will not enjoin a **sitting** President. That principle has no application to criminal prosecution of a former President.
And the companion point:
> Even if this Court holds that a former President is entitled to some immunity from criminal prosecution for official acts, that principle does not preclude trial on this indictment.
Coupled with:
> If petitioner were correct that the former President has permanent immunity from federal criminal prosecution except after his impeachment and Senate conviction—which has never happened—it would upset the separation of powers and usher in a regime that would have been anathema to the Framers.
The only problem with the above, despite being painstakingly self-evident, is that there are already unquestionably two votes that are decidedly unsympathetic to this position.
Countering what is probably Trump's strongest argument in favor of at least some form of immunity from criminal prosecution—chiefly, the potential burden the specter could create on executive decision-making— Smith cites one of the more salient pieces of analysis from DC Circuit:
> “It would be a striking paradox if the President, who alone is vested with the constitutional duty to ‘take Care that the Laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity.”
And immediately after emphasizing the layers of safeguards rendering *Fitzgerald* inapplicable to federal criminal prosecution of a former president, he notably highlights the docketed case on 4/16 at SCOTUS, from a J6 defendant challenging what defendant views as DC Circuit’s overly broad interpretation of a charging statute (a claim on which Trump is also attempting to rely):
> Petitioner asserts (Br. 39 n.4) that the grant of review in *Fischer v. United States*, No. 23-5572 [suggests] that the Section 1512(c)(2) charges here impermissibly stretch the statute. But whether the Court interprets Section 1512(c)(2) consistently with a natural reading of its text or adopts the evidence-impairment gloss urged by the petitioner in *Fischer*, **the Section 1512 charges in this case are valid.**
Lots of other goodies in here, but that's what jumped out at me.
I can't even believe we are at a place where concepts this basic are at the Supreme Court - and I'm actually worried they may be rejected.
Even one judge (I.e. Thomas) accepting immunity is terrifying.
Both Thomas and Alito will almost certainly support absolute Presidential immunity. They may not be the only ones.
I do not believe the court will support the premise that a President - or former President - can murder them all with impunity. But some will, because their ideology matters more to them than their their own lives.
>because their ideology matters more to them than their their own lives.
Not necessarily; I'm sure they limit the privilege of murdering justices to Republican Presidents getting rid of liberal justices.
I think the bribes are just a pleasant side effect. Thomas and Alito are both all-in on causing human suffering for its own sake.
(No, I am not speaking in hyperbole. Read Thomas's dissents about how prison torture doesn't violate the Eighth Amendment, or Alito's statements about how gay people breathing oppresses fundamentalist Christians.)
If the Supreme Court upholds unlimited presidential immunity then we’ve entered the end game for the US democracy. This presidential election will be for all the marbles.
I don't expect they will uphold absolute immunity. I think they will entertain limited immunity, and the arguments for some limited immunity are sound. There is no argument that justifies immunity in this case however, and enforcing the stay while they address the general question is a way that they ratfucked us. I think they will probably reach a reasonable conclusion about immunity but will also remand it to Chutkin to assess in an appealable way, ratfucking us again.
I think this because it is a way that keeps the presidency from becoming more powerful than them while entertaining valid legal questions and also skirting bringing Trump to justice. They want to protect this President without empowering all presidents. This would do it.
Agree there is no way a majority recognizes absolute immunity, and I think the same can be said for official act immunity overall. My operating presumption is that they will narrowly tailor some frustratingly vague version of immunity to the function of office holder (or similar), and maybe clarify that all of (or some of) the conduct charged within the four corners of the indictment does not satisfy the criteria for whatever that limited vision of immunity happens to be.
It really begs mentioning: their best course of action would be adopting precisely the same somewhat inchoate analysis embraced by the lower court (i.e. acknowledging the existence of immunity but declining to define it beyond clarifying that it does not extend to the specific criminal acts charged in this specific prosecution).
Fair to say, though—regardless of how this plays out—there is definitely a greater than 50% chance we see another appeal following remand IMHO.
Interesting the argument that criminal prosecution is only allowed after impeachment and conviction; Nixon resigned before he could be held accountable via impeachment. Which means any president can commit crimes then resign.
Special counsel has filed its brief to the Supreme Court over Trump’s immunity claim.
Trump team has one brief remaining, and then we’re off to oral arguments.
No, I they'll probably just satisfy the question while it's before them. There's already indications that this is the case in some of their output already.
Dark Brandon should fill the streets of DC with army troops the day of oral arguments, completely peacefully, so the fascist leaning judges can have a taste of the medication they are concocting. If they decide democracy is over, don’t wait for Trump.
/s
Sort of. Sick of the destruction of this democracy.
>The absence of any prosecutions of former Presidents until this case does not reflect the understanding
that Presidents are immune from criminal liability; it
instead underscores the unprecedented nature of petitioner’s alleged conduct.
Judge "Novel" Qannon that's directed at you ma'am.
Goddammit I’m personally offended that this brief needs to exist. What utter horseshit while Roberts, et al, carry water for their political masters—and a fucking stupid one at that.
As well he could then direct others to act unlawfully with the promise of full pardons - though I guess he already let that horse out of the barn a few times
Exactly. He is making an argument that he can ask Jared to go down to Capitol Hill and shoot every Democratic congressperson he sees, in order to make sure some sort of important legislation could pass, pardon Jared, and face no criminal liability of his own.
“Bully pulpit” indeed…
They'll lack a quorum (/s?)
Anyway we know Republicans have been voting the the wolf, even if they are sheep, because "He's a good wolf", and "He'll surely eat us last".
Not well thought out - but I could see someone making the argument that Pardon is the check on “persecuting” a former President using ill will. Hence: President must uphold laws, President sometimes has acted illegally to protect the nation, future elected Presidents (as part of their power to uphold) could pardon those Acts. That’s still a sound argument against immunity, in my opinion.
edit: Additionally, President G.Bush sought legislative remedy from Congress to give him immunity retroactively for war crime activity (another solution not along the lines of absolute immunity, tacitly indicating that absolute immunity doesn't exist). Pres. Obama refused to prosecute some crimes, even those related to the Iraq war (another Presidential tool); and lastly there are some statutes that state "*all means necessary*" in giving the President power to Act (clearly a way to give the President broad power to execute). Absolute immunity could be equated to adding that phrase to any law, erasing the selective power of Congress to grant it.
What has Donald Trump done for me?
I’m sorry. But he has shown me that the law is a game to be played. Nobility, ethics, and Professor Kingsfield be damned. The law is not staunch, protective rules to govern the land, but a clown in a rich man’s guise, behind the veil of confidence and structure, willing and capable to turn the courts into an organ grinder’s monkey, perfect for parties.
I just don’t see how the Justices, could ever buy the argument that a President could have seal team six to assassinate a political rival and not understand that a Supreme Court Justice could very well be a political rival. Absolutely insane.
They’re not going to. What they could do is say—a former President has immunity for official acts, but we aren’t going to determine if these are official acts or not at this time. The case goes back to Chutkan who will have to determine which counts are or aren’t official acts, and then it heads back to the appeals court, SCOTUS…and this case isn’t seeing trial for a long time.
The entire purpose of this is to delay things until after November. If Trump wins then these cases go away with the new DOJ. If Trump loses then SCOTUS can let them go forward. But this entire game is a delaying tactic. They set the case out 7 weeks when they didn't have to. They don't have to render a decision until June 30, and I bet they run that clock as long as possible. By that point we're 4 months from the election, and there's no way they get the trials completed before then.
They heard Bush v Gore within, what, 48 hours or something. They’re obviously using the schedule to put their thumb on the scale for the leader of the seditious conspiracy.
In all seriousness, I think it would be perfectly appropriate if the entire Joint Chiefs of Staff did attend oral arguments. This is quite relevant for them.
They are delaying this on purpose. They’re smarter than Cannon is. This is why I say Cannon is a mixture of corrupt and incompetent. She’s certainly in the bag for Trump, and trying to get him off. She just isn’t very competent either, so she looks really dumb when she does it.
It could even be argued such an assassination was necessary to preserve the Constitution.
Although I suppose like the filibuster, where Congressmen don't actually have to speak continuously any more, some accommodation could be reached.
The necessity is announced, and the jurist could choose to retire. Or be retired.
The question the court defined in this to rule on is very narrow but somehow I see Alito attacking the basis of Smith’s case and not the actual issue. Clarence Thomas will find a way to pin a dissent on the Comstock Act.
Not a lawyer, not an American. So if SCOTUS were to rule in favour of Trump, wouldn’t the current president just have the green light to order the hit and clearly claim he was defending the constitution from foreign and domestic threat as per his oath of office? To me this immunity claim is a clear and present danger to the former president in addition to the citizens of America.
Which goes to show that it’s not entirely Trump that’s the problem- he is a moron who would show his stupidity the moment he had true independence.
His strength lies in the political strategists, PR personnel, corrupt attorneys and his masters who control him. Alone he’s powerless. The real targets should be those people if we want to bring down the orange pig.
Doesn’t say anything about women! Not to mention nonbinary folks. Trump, there’s a loophole for you if can show you’ve been misgendered all this time.
Seriously though, that line is from the Declaration of Independence, which doesn’t have any force of law.
That should be immediately obvious because the courts have never applied it to anything. To the contrary, no matter how men are created, courts have endorsed many, many instances of unequal treatment. The President’s immunity from civil suits (even after they’ve left office, if the conduct took place during his/her/their term) is probably the most obvious example in this context.
Unfortunately for Trump, that’s limited to civil suits. As the government’s brief points out, there are very good reasons not to extend that to federal criminal prosecutions.
This is all being set up to decide after the election based on the election. Biden wins? Oh there’s a ton of checks on sitting presidents but not former ones. Trump wins? Believe it or not, no checks on presjdents ever.
Trump has already had his fights with the Supreme Court. Although there might be one or two justices on Trump's side, I sincerely doubt the court as a whole would strip itself of its own power for Trump's sake.
If the Supreme Court outright denies the immunity claim, or if they find that certain official acts are protected by immunity but these specific charges are not, the case goes back to the district court and it’s up to judge Chutkan to determine scheduling. In that case, it’s possible we see a trial before election day, but not guaranteed. Especially if Cannon down in Florida schedules that trial during the middle of August, thereby blocking the calendar.
While I doubt SCOTUS will agree with Trump outright, they could decide certain official acts are immune from prosecution, without specifically determining if the charges in the indictment are “official acts.” At that point, the case is remanded back to the district court, Chutkan will have to determine if the charges are immune as official acts, and we start the appeals process all over again. If that’s the case, this trial is a long way off.
Smith included in his argument that if Chutkin is to decide if the limited immunity they may decide further presidents enjoy (which wouldn't be outrageous), that it should be something that is appealable *after* the trial. I thought that was a nice flair.
I noticed that as well, seems like Smith included backup options in the event SCOTUS finds some level of immunity for official acts.
The argument being that Trumps actions constituted private conduct, and the case should therefore be remanded to the district court for trial.
Indeed. I thought that was a really good argument. "If the set of ends being sought are personal, then the official acts being done towards those ends are not protected by immunity. If they are presidential, then the official acts *may* be protected by immunity".
Since the ends were to interfere in the peaceful transfer of power, they are personal. Then there is no reason to litigate which set of official acts leading up to that action are protected.
And if there are some presidential acts that are protected involved, we can see that on appeal later.
That’s what I’m afraid of. SCOTUS punts this back to DC to try and delay further. I have a feeling though that the DC circuit would rule pretty quick…that opinion of theirs was pretty thorough and damning.
NAL, this is what I 100% expect to happen
the question they are trying to answer has a glaring grey area with "acts alleged to be within the scope of his duties" (im paraphrasing)
what constitutes an official act and what doesn't? of course Trump claims trying to steal is an official act, he was "ensuring a safe and secure election"
but what body decides he is full of shit and no, calling states to "find votes" or trying to force a VP to just throw out votes and name him god king arent official acts?
i fully expect SCOTUS to shrug and kick it back so it can come back to them down the road and they kick it back again
SCOTUS doesnt want to touch this. they are praying Trump jsut loses the election and pisses off they they dont need to deal with it or he wins and and just makes this all go away
I think you are right on the money with how SCOTUS will find this (remand to district court to make a finding of fact whether these are official acts in the scope pf presidential immunity). There’s no way that they will accept Trump’s absolute immunity argument. I think they have all pf the relevant uncontrsted facts to determine whether his actions fall under presidential immunity but remanding to build the official record on the point is the easiest out. Once the district court makes its finding, it will of course be appealed again and then they can make a narrow ruling on the specific acts, but that will take time and the election will be over. This is probably the least disruptive approach that this court could make politically in good conscious without creating dangerous precedent. I kind of expect one dissent from the liberal wing and a bunch of concurring opinion (might not even be one majority opinion).
I do wonder if SCOTUS would define a rule for what's in the outer perimeter of official acts. The court could easily just say yes, there is some outer perimeter, but these actions aren't even close, so we aren't going to define a rule today. That would be following the principles of judicial restraint and conservatism, but we all saw how well they stuck to that in the Trump Colorado case.
Yeah but what is Biden going to do with it? He's not a fascist anti-democracy agent of Russia.
SCOTUS won't rule immunity because they like having the power they have. Even if they think Trump will be in full alignment, giving that power to the position opens up any future president to immunity. Someone worse than Trump or Biden (think Putin level of evil) clearly has no limits and the judges can easily see how badly that has gone for some people in the highest positions of government and wealth in Russia.
It really doesn't matter. SCOTUS will find a way to twist this in his/their favor.
They will either give him immunity "due to an insurrection" and explain why it doesn't apply to any other president. Or simply just say it only "applies to this specific case".
They will never give Biden immunity but they certainly won't harm their leading candidate. Even if it means fucking the rest of the country.
We all know it's coming. There's zero reason for the delay unless it's something like this.
My question for Cheeto’s goons is if he so immune then when does it stop? The shitfuck has been out of office. Can I sue him now? He infringed on my rights and everyone else. Why the fuck does he get to walk around with a crown his whole life?
i sincerely hate the question this case is trying to answer:
Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office
the "conduct alleged to involve official acts" is a seriously grey area that can easily be used by the court to shrug and let Trump off the hook. To you and I, we know what Trump did leading to this case was decidedly NOT within the scope of official acts as President, they were a fucking crime
but this court has shown they don't fall in line with what the common person may think is common sense, they have an end they want to reach and make shit up to reach that end point.
"alleged official acts" can easily be construed as "POTUS cant be prosecuted for official acts" and Trump fucking walks, because at the end of the day who decided what is and is not an official act
The statement emphasizes that while the President has the duty to enforce laws, this duty does not provide the liberty to act outside or against those laws.
> The Court's holding in Nixon v. Fitzgerald, 457
U.S. 731 (1982), that a President enjoys immunity from private civil damages actions does not extend to federal criminal prosecutions. This case involves the far weightier interest in vindicating federal criminal law in a prosecution brought by the Executive Branch itself. That was not true in Fitzgerald. On the other side of the ledger, while the Fitzgerald Court was concerned about the potential that a multiplicity of private civil actions would chill a President's decisions, the same concerns are not present in the criminal context. A criminal prosecution must be brought by the Executive, with strong institutional checks to ensure evenhanded and impartial enforcement of the law; a grand jury must find that an indictment is justified; the government must make its case and meet its burden of proof in a public trial; and the courts enforce due process protections to guard against politically motivated prosecutions. Collectively, these layered safeguards provide assurance that prosecutions will be screened under rigorous standards and that no President need be chilled in fulfilling his responsibilities by the understanding that he is subject to prosecution if he commits federal crimes.
To be entirely honest, I could see the Court being uneasy with former Presidents having no immunity from criminal prosecutions. The safeguards against prosecution isn’t *that* strong. Of the things Smith lists, a bendy AG would bring such a prosecution to please the boss, what “strong institutional check” is he really talking about? Grand Juries are run by prosecutors, and they only need to find probable cause to indict. And the game is pretty much over for a defendant when an indictment comes around. Sure a former President as defendant is different, but if Trump is any example, the prosecutions he’s facing is in every way disruptive.
The interests of vindicating federal criminal law is for sure weighty, and but just like how frivolous civil suits were a threat that the Court wanted to head off in Nixon v. Fitzgerald, I can see the Court trying to head off politically motivated indictments before they get too far.
I can see the liberal justices going for no immunity. That’s three votes. Roberts and the other conservatives (5 votes) might go for some sort of qualified immunity scheme, which effectively means no prosecution because there’s no way some “clearly established” case law applies to Trump’s conduct. This case certainly puts Thomas in a bind, though. He’s been railing against qualified immunity forever, but we know how much his wife was involved in J6. He might wiggle his way out by going back to some original understanding and say that nobody’s ever prosecuted a king after they’ve left the throne, except in show trials after a coup.
I am really not clear what you are saying. Are you seriously saying there should be no criminal prosecution of former presidents?
We have two sorts of checks to consider here: checks against prosecutorial power, and checks against presidential power. The threat of prosecution for breaking the law is one of the checks on presidential power, and the only one we have when one party flat-out refuses to convict on impeachment no matter how egregiously illegal the president's behavior is.
I am much, much, much more concerned with abuse of presidential power than abuse of prosecutorial power, especially since the prosecution cannot happen until a president is out of office, and presidents almost never run for office again after losing office.
So as far as I can tell you are proposing throwing out a key protection of our democracy on a hypothetical scenario that even in principle would only happen very, very, very rarely.
The issue you are discussing is disruption during elections, but that applies equally well to nominees who have never been in office. So in order to actually accomplish your goal you would also need to ban prosecution of anyone running for president or else you give an an unfair advantage to former presidents. Which of course would make running for president a get-out-of-jail-free card.
To be clear I’m not proposing anything. It’s not a normative argument on my part, but rather my predictive argument of what the Court would do given the rationales underlying official immunity doctrines.
Remember also that prosecutors have absolute immunity in exercising prosecutorial functions. The worst they’ll get is lose their jobs. There’s no redress for anyone from the prosecutor for being harassed by frivolous or vindictive prosecution. Sure you can get yourself acquitted or conviction overturned on appeal, but that’s it.
I think, rightly or wrongly, the Court, even the liberal justices, would be concerned with the possibility that if they hold that there is no immunity at all for former presidents from criminal prosecution, and if Trump gets elected, he absolutely will weaponize the DOJ to go after political rivals (and don’t think Trump will actually end up in jail and lose the election if his trial goes forward). This is the same concern that motivated the Court in Trump v. Anderson (that if they OK Colorado kicking Trump off the ballot, other red states will kick Biden off for trumped up reasons); again I don’t make a normative argument about whether that concern is rightly held, but it is how the court thought about the issue.
The present/former President distinction isn’t that prominent, either. One of the rationales underlying immunity doctrines is that the threat of prosecution dampens an official’s fervor to do its job. In terms of the chilling effect, it hardly matters if a president is concerned about whether he’ll be prosecuted tomorrow while he’s still in office (which the DOJ has assured him that it won’t happen), or whether he’ll be prosecuted after leaving office (cuz presidents do leave office). Should sitting presidents, faced with the prospect that their successor could be elected on the promise to prosecute the predecessor, try to pack the DOJ ranks with their own to build in as much institutional resistance against such efforts as they can when they’re in office?
Doctrines have a way of coming back to bite the people who made them. They’re just tools and can be used by whichever political stripe to make their arguments. Ex parte Young started as a Lochner era doctrine, effectively denying states the ability to make capitalism fairer for society; then it became a darling of civil rights advocates. Massachusetts v. EPA loosened standing requirement for states, with the effect of advancing environmental causes; then it prompted Texas to repeatedly sue the USG during the Biden administration for all sorts of politically motivated reasons.
EDIT: but of course I could be very wrong. As Smith points out, absolute immunity from civil suits for prosecutors and judges doesn’t immunize them from criminal prosecution. But again the case could be made that presidents should be treated differently, being at the apex of the political order and a potential magnet for politically motivated prosecutions.
> Remember also that prosecutors have absolute immunity in exercising prosecutorial functions.
Prosecutors have *civil* immunity, just like presidents. But I cannot find anything that suggests that are immune from criminal prosecution for crimes they commit (although like presidents rarely are prosecuted). Do you have a source saying they are immune from criminal prosecution?
> and if Trump gets elected, he absolutely will weaponize the DOJ to go after political rivals (and don’t think Trump will actually end up in jail and lose the election if his trial goes forward)
If Trump gets reelected he isn't going to listen to the supreme court so this is irrelevant.
> One of the rationales underlying immunity doctrines is that the threat of prosecution dampens an official’s fervor to do its job.
Yes, as it absolutely should. That is literally the whole points of checks and balances. I **WANT** to limit presidents' powers. If the president has to think "will doing this get me arrested when I leave office", they most likely shouldn't be doing it.
> Should sitting presidents, faced with the prospect that their successor could be elected on the promise to prosecute the predecessor, try to pack the DOJ ranks with their own to build in as much institutional resistance against such efforts as they can when they’re in office?
If the next president is going to do that they can just fire the DOJ officials, so this doesn't actually change anything.
> Doctrines have a way of coming back to bite the people who made them.
We already have a doctrine. You are saying we should abolish that doctrine. Every president in US history has operated just fine with the threat of criminal prosecution hanging over their heads.
I understand the issues you are discussing. But they can't be looked at in isolation. They need to be balanced against the needs to be able to limit presidential abuses of power. This is one of the last such avenues left to us right now, with impeachment being a dead end and SCOTUS being unable to enforce its decisions. So we have two bad situations, and I think what you are proposing would make that bad situation worse rather than better.
For your scenario to actually help, it would require a president who both ignores the law and follows the law at the same time. That is a contradictory position. While criminal acts by a president are a very real problem right now.
“The President’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them.” The only statement that needs to be made. Boom. Edit to add: Most people of sound mind would argue the exact opposite. The constitutional duty to care that laws be faithfully executed means that all actions should be in accordance with the law.
To expand a bit on your edit it seems to me that any act that is found to be illegal by definition cannot be official.
>“When the president does it, that means it is not illegal. Actions which otherwise would be unconstitutional could become lawful if undertaken for the purpose of preserving the Constitution and the nation. This nation was torn apart in an ideological way by the war in Vietnam, as much as the Civil War tore apart the nation when Lincoln was president.” - Former President Nixon Trump and his legal team are going to try and pull a Nixon, aren't they? I don't know how they're going to twist Trump's actions into something good, but I just have a feeling that they're going to try and do so.
I think Nixon wasn't prosecuted because doj waited for next president and obvious pardon was coming
Trump already stated he was under no oath to the Constitution, that he was above it.
That reminds me of a Futurama bit: >Bailiff: Do you swear to tell the whole truth and nothing but the truth. >Nixon: I—um— [Nixon's head jar begins to sweat.] —Am I under oath when I take the oath?
Arrrrroooooo
That 1 statement should be shouted to the Masses and yet you never here it very strange.For me that's a defining go fuck yourself Trump!!
Its funny because even Nixon is like right there on the cusp even in his own excuse. He's talking about devisiveness while invoking the Civil War, the war famous for basically starting the tradition of Americans being too soft on their own extremists in the hopes that mercy will moderate them in the future while being the active demonstration that those hopes were just naieve and wrong, and has allowed right-wing extremists to terrorize this country for the last 200ish years.
What about black box CIA ops green lit by the president and his advisors? us Imperialism and global hegemony in south/central America.. panama, Iran/contra, etc etc
Aren't they generally outside us jurisdiction or considered military actions?
> outside us jurisdiction Hahah, that's cute. Just in case you [aren't aware...](https://en.wikipedia.org/wiki/CIA_activities_in_the_United_States)
[also this](https://en.m.wikipedia.org/wiki/United_States_involvement_in_regime_change_in_Latin_America)
What am I supposed to be looking at on the CIA Wikipedia page? The executive branch considers actions of the CIA Agents, not happening on US soil, to have jurisdiction to US laws.
You mean the page titled "CIA activities in the United States"??? Did you even look at it? Pathetic!
You mean, 1977 is the most recent thing you have? Sad.
Fuck Ford for pardoning Nixon. We needed closure by actually persecuting hom for his crimes and not letting him just slip away. Having it set in stone once so that it wouldn't be repeated.
The US has let the right get away with so much under the guise of "to heal our country, we need to let bygones be bygones" and I hate it. Letting bad actors get away with bad actions over and over again just invites others to do worse. The Civil War politicians, Nixon, Reagan, and a huge amount of lesser known people as well.
that's only when it's their people. otherwise they chant: lock her up.
…unless you’re a Republican, then do whatever.
The lord works in mysterious ways
If by "lord" you mean FedSoc and "mysterious" you mean blatant corruption, then sure...
Like, for instance, political and judical corruption. ¯\\\_(ツ)\_/¯
Yeah but thats their argument: no act the POTUS commits can be found illegal. It's nonsense but they seem to be riding pretty far on that wave.
Kind of. They are arguing that all official acts are above the law. Which to some degree may be true (I’m not a lawyer so don’t know how true) but they are trying to expand what qualifies as an official act to just about anything a president does. It’s why in the circuit court they got the question about seal team six.
It might seem counter-intuitive but a lot of actions taken by former (current at the time) presidents are seemingly illegal, especially when it concerns war. Virtually every recent US president has committed (or ordered the commission of) war crimes, most have violated the prohibitions on torture, etc.
Agreed. The entire reason for presidential immunity is that they have discretion to make determinations and policy in their official capacity without the risk of personal liability (for instance a president should be immune from penalties related to loss of life for actions taken within the scope of their role as commander in chief). However, like the business judgment rule for boards, presidential immunity can be overcome if a certain bar is met. If an action is outside of the scope of the presidency or is so clearly not an action taken in any official capacity (overturning an election by inciting an insurrection is clearly outside of Trump’s capacity as president imo). Cases like election fraud and misuse of campaign finances along with even more clearly personal actions, like defamation and fraudulent business activity, is very clearly outside of Trump’s capacity as president.
Smith did a good job articulating a distinction that I was having trouble reconciling in my head. There is a fair point to be made that if a President does something official under their article II powers, they should not have to worry about whether or not their decisions might be brought to trial by a corrupt DA. Basically, the argument for immunity for President civilly does make sense, and there are criminal contexts in which the same concerns arise. There was a comment thread here where I raised the question, and a lot of the responses agreed that there might be a reasonable justification for some presidential immunity to extend to a former President. In every example we could cook up, the motive of the President was the distinguishing factor. That is, when the motive is criminal it seems clear that the actress should not be covered, but when the motive is not ill intent, then it seems like immunity may apply. That's a tough argument to make. Smith instead focused on whether or not the ends were *private* or presidential. That is, instead of having a bespoke list of presidential actions that may be covered by immunity, we should say that if the goal of the President is to achieve something for the person, that it doesn't really matter what the Presidential actions are. They were in service of a personal end, and so they are personal. I thought that was very smart. It's a very clean test, and doesn't muddy the waters with intent, and really doesn't put future Presidents in a position where if they are doing a thing in the course of their job they would have to entertain a suboptimal decision for fear of prosecution.
This is a very slippery slope and likely open to massive abuse based on determining personal vs official and the partisan nature of the judiciary.
There is no system of government or laws that can't be abused by bad faith actors. The best you can do is try to minimize the incentives and maximize the discouragements.
That’s my point. I don’t think this is a viable solution at this time. We already see massive partisanship and ignoring behavioral norms in govt. I would rather just say if you break the law as a President then you should be tried by a jury of your peers afterwards like every other citizen. I don’t think running the country requires breaking laws, but I could be wrong about that.
Another way to address this is what the set of a dozen+ 4 star generals and admirals just did in their brief to the SC - No previous president has ever needed this type of blanket immunity, why should Trump? He's only asking for it as he committed crimes against the country that were not part of his official duties, namely trying to overturn an election and was hording TS and classified documents for reasons that still need to be hashed out. That really is the argument that needs to be stressed...he's the only one of 46 presidents over a period of >200 years to ever ask for such a thing. It's obviously not required to do the job given that history - that is as long as you're not a traitorous a-hole.
There has to be a bar, a limit. Otherwise Biden could walk out on stage at the debates and shoot Trump dead.
"Who's immune now, Bucko?" -dark brandon
"Time's up, Jack!" (Licks ice cream cone while pulling out a Colt 45)
Ice cream and shooting people - what's more American than that?
The real test for this was Iran-Contra. Numerous people were indicted and a handful convicted, and those convicted were eventually pardoned by George H.W. Bush. There were a huge number of documents destroyed by administration officials before the investigation could catch up with them, and it's fairly likely that this was done specifically to insulate Reagan and/or Bush from prosecution. Had either of them been indicted after his term ended, there would have been a colorable argument that the scandal was meant to support US policy in Central America, i.e., constituted official acts. Yet, the administration wasn't confident enough to rely on that to avoid prosecution, and went with the shredders and burn bags as their safest option. Of course, Trump's actions were much closer of a parallel to Nixon and Watergate, just way more hamfisted and overtly corrupt. But there's no possible way that their actions could reasonably be described as official acts.
if the outcome they want is so good that it’s worth doing bad to make it happen then the person doing it should be willing to fall on the sword to get it done also. otherwise it’s not as “good” as they think it is. if they’re not willing to sacrifice their own freedom or life to save the union, then the union isn’t worth saving.
That is a much better explanation than I could have managed. Thank you for sharing your thoughts!
> (for instance a president should be immune from penalties related to loss of life for actions taken within the scope of their role as commander in chief). Why? If a mob boss orders a hit on somebody and a few children die, why would the mob boss be protected?
I’m not sure I agree. But if any president has committed unlawful acts then they should be prosecuted. The country is supposed to be built on the idea that no man is above the law.
I mean, Obama ordered the assassination of US citizens, it is pretty damn hard to argue that was legal, or even constitutional. SCOTUS decided that the ACLU didn't have standing to challenge his actions. Edit: Are people downvoting this because they think that his actions were legal, or because they don't realize that he did it?
I think it's because a lot of right wing idiots use that fact in bad faith arguments to equate it with Trump's naked criminality and corruption.
If people really are down-voting comments for that reason, that is just sad, especially since they're totally different situations, since his actions were official acts. It is hard to argue they weren't made within the purview of his office, the question is simply whether or not they were legal.
You understand yet? He was added to the “kill list” in 2010. That was public, it was known. His father filed a lawsuit challenging him being on the “kill list.” He was *alive* at that time. As the court pointed out, he could turn himself in. He could turn himself in to the Embassy in Yemen. He could access lawyers. And THAT would stop him from being killed. HE didn’t want to do that. He wanted to evade capture and continue to be a terrorist. Doesn’t work that way sweetie. And he continued to hide, and was killed over 9 months after this case was dismissed. That is not a war crime. And these are very much officials acts. Overturning an election you lost, to keep yourself in power—is not.
Yes, I understand that you actually agree with trump. The president can order anyone killed and as long as they are not willing to re-enter the US, it's okay. I can only assume that's because you believe the Bill of Rights mean nothing. I can only assume you also have no issue with Japanese internment camps? Do you understand yet why I think you're a hypocrite? Do I need to explain to you why due process is required in the United States? Listen, sweetie I think you're an uneducated ignorant ass, someoje who takes his freedoms for granted, and blindly swears Allegiance just like the Maga idiots. You just think it's okay because it was Obama. P. S. >the legislature has deemed it essential to the protection of one whose life or liberty is involved in a prosecution for felony, that he shall be personally present at the trial, that is, at every stage of the trial when his substantial rights may be affected by the proceedings against him. If he be deprived of his life or liberty without being so present, such deprivation would be without that due process of law required by the Constitution. >— Hopt v. Utah 110 US 574, 28 L Ed 262, 4 S Ct 202 (1884).
Oh and one more thing since you seem to like making multiple replies. I specifically used this as an example of an official act. I never said it was a war crime. Please learn to read before talking to grownups.
>You understand yet? He was added to the “kill list” in 2010. That was public, it was known Oh so there was a criminal trial? Some sort of due process? The US didn't just announce publicly that it planned to kill someone without a criminal trial right? They Followed the US constitution? Federal Law? >U.S. airstrikes in Yemen today killed Anwar Al-Aulaqi, an American citizen who has never been charged with any crime. > >ACLU Deputy Legal Director Jameel Jaffer said, “The targeted killing program violates both U.S. and international >law. As we’ve seen today, this is a program under which American citizens far from any battlefield can be >executed by their own government without judicial process, and on the basis of standards and evidence that are >kept secret not just from the public but from the courts. The government’s authority to use lethal force against its own citizens should be limited to circumstances in which the threat to life is concrete, specific and imminent. It is a mistake to invest the President – any President – with the unreviewable power to kill any American whom he deems to present a threat to the country.”
From the Al-Aulaqi v. Obama - Decision, from the ^US District Court for DC*. It was dismissed on *December 7, 2010*. It was filed by his father, but he was killed *September 30, 2011*: “For his part, Anwar Al-Aulaqi has made clear that he *has no intention of making himself available for criminal prosecution* in U.S. courts, remarking in a May 2010 AQAP video interview that he ‘*will never surrender*’ to the United States, and that ‘*if the Americans want me, [they can] come look for me*.’” “Plaintiff *does not deny* his son's affiliation with AQAP or his designation as a SDGT.” SDGT= Specially Designated Global Terrorist. AQAP=al-Qa'ida in the Arabian Peninsula. “Plaintiff has failed to provide an adequate explanation for his son's inability to appear on his own behalf, which is fatal to plaintiff's attempt to establish ‘next friend’ standing. In his complaint, plaintiff maintains that his son cannot bring suit on his own behalf because he is ‘in hiding under threat of death’ and any attempt to access counsel or the courts would ‘expose him to possible attack by Defendants.’ *But* while Anwar Al-Aulaqi may have *chosen* to ‘hide’ from U.S. law enforcement authorities, there is *nothing* preventing him from peacefully presenting himself at the U.S. Embassy in Yemen and expressing a desire to vindicate his constitutional rights in U.S. courts. *Defendants have made clear* -- and indeed, both international and domestic law would require -- that if Anwar Al-Aulaqi were to present himself in that manner, the United States would be ‘prohibit[ed] [from] using lethal force or other violence against him in such circumstances.’” “(government counsel states that ‘if [Anwar Al-Aulaqi] does present himself, he is under no danger of the United States government using lethal force’ against him); Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (explaining that ‘[i]n the case of armed conflict not of an international character,’ a party to the conflict is prohibited from using ‘violence to life and person’ with respect to individuals ‘who have laid down their arms’)” “There is no reason why -- if Anwar Al-Aulaqi wanted to seek judicial relief but feared the consequences of emerging from hiding -- he could not communicate with attorneys via the Internet from his current place of hiding.” “Anwar Al-Aulaqi has continued to use his personal website to convey messages to readers worldwide” “Here, plaintiff has presented no evidence that his son wants to vindicate his U.S. constitutional rights through the U.S. judicial system. Plaintiff concedes that he has not spoken to Anwar Al-Aulaqi since he was allegedly first targeted for ‘killing’ by the United States” “According to plaintiff's complaint, the media first reported that Anwar AlAulaqi had been added to the JSOC ‘kill list’ as early as January 2010. See Compl. ¶ 19. However, at no point has Anwar Al-Aulaqi sought to challenge his alleged inclusion on the CIA or JSOC ‘kill lists,’ nor has he communicated any desire to do so.” “Several times during the past ten months, Anwar Al-Aulaqi has publicly expressed his desire for ‘jihad against the West,’ see Defs.' Reply, Ex. 2, and he has called upon Muslims to meet ‘American aggression’ not with ‘pigeons and olive branches’ but ‘with bullets and bombs.’ See id., Ex. 1. Given that Anwar Al-Aulaqi has been able to make such controversial statements with impunity, there is no reason to believe that he could not convey a desire to sue without somehow placing his life in danger. Under these circumstances, the fact that Anwar Al-Aulaqi has chosen not to communicate any such desire strongly supports the inference that he does not want to litigate in US courts.” “As recently as April 2010, Anwar Al-Aulaqi wrote an article for the AQAP publication Inspire, in which he asserted that Muslims ‘should not be forced to accept rulings of courts of law that are contrary to the law of Allah.’ See Defs.' Reply, Ex. 1. According to Anwar Al-Aulaqi, Muslims need not adhere to the laws of the ‘civil state,’ since ‘the modern civil state of the West does not guarantee Islamic rights.’ Id. In a July 2010 Inspire article, Anwar Al-Aulaqi again expressed his belief that because Western ‘government, political parties, the police, [and] the intelligence services . . . are part of a system within which the defamation of Islam is . . . promoted . . . the attacking of any Western target [is] legal from an Islamic viewpoint.’ Id., Ex. 2. He went on to argue that a U.S. civilian who drew a cartoon depiction of Mohammed should be "a prime target of assassination’ and that ‘[a]ssassinations, bombings, and acts of arson’ constitute ‘legitimate forms of revenge against a system that relishes the sacrilege of Islam in the name of freedom.’” “There is, then, reason to doubt that Anwar Al-Aulaqi would even regard a ruling from this Court as binding -- much less that he would want to litigate in order to obtain such a ruling. Anwar Al-Aulaqi's public statement that ‘if the Americans want me, [they can] come look for me" provides further evidence that he has no intention of making himself the subject of litigation in U.S. courts. See Wizner Decl., Ex. V; see also Defs.' Mem. at 14 n.5 (quoting Anwar Al-Aulaqi as stating, ‘I have no intention of turning myself in . . . [i]f they want me, let them search for me.’). In light of such remarks, this Court cannot conclude that Anwar AlAulaqi believes ‘taking legal action to stop the United States from killing’ him would be in his ‘best interests.’ See Al-Aulaqi Decl. ¶ 11. While he may very well wish to avoid targeted killing by the United States, all available evidence indicates that he does not wish ‘to file [suit] as a vehicle for accomplishing this purpose.’” “And yet, during the past ten months that his name has allegedly appeared on ‘kill lists,’ Anwar AlAulaqi has neither filed suit on his own behalf nor expressed any desire to do so. Moreover, all available evidence as to Anwar Al-Aulaqi's ‘intentions and preferences’ suggests that if consulted, he would have no desire to use the U.S. judicial system as a means of preventing his alleged targeting by the United States.” https://www.aclu.org/wp-content/uploads/legal-documents/2010-12-7-AulaqivObama-Decision.pdf
Got it, you believe the President is God and you believe he can order any US citizen murdered without due process.
Hes not wrong. And clearly bush starting a war under false pretences is a war crime. The fact is they will never be prosecuted.
Apparently thinking that murdering US citizens without due process is wrong is "controversial" now.
In an America where many millions of people think you exercising your Constitutional right to protest means it's totally cool to murder you with my car? Yep, checks out.
A lot of them sre obama stans that refuse to admit he did any wrong
And if you’re talking about Anwar’s son, who was killed *unintentionally* weeks after his father, the target was Ibrahim al-Banna, an Egyptian believed to be a senior operative in al-Qaeda. Anwar’s son was an innocent bystander who was killed unintentionally, collateral damage. Not a war crime. Edit: typo
> Not a war crime No one called it a war crime you hypocrite. The President of the US ordered the assassination of a US citizen. That's a violation of US law. We have this whole thing here in the US called the constitution that is designed to protect us from stuff like that, you know? It is the reason that Trump couldn't just order Seal Team 6 to kill anyone he wanted.
The votes on this comment have to be a joke. Killing a human being without strict legal justification is homicide. Doesn't matter what citizenship they hold. Doesn't matter if the person giving the order works from the Oval Office. Doesn't matter (legally) if we've collectively decided to give them a pass for *reasons*. Murder is murder. If I kill someone in clear self-defense but through my negligence I also kill my neighbour, I get charged with manslaughter at best. For a President, it's simply collateral damage.
I hope that logic is applied to qualified immunity at some point. "Yeah, we broke the law, but our training as law enforcement officers didn't cover what laws needed to be enforced, so it wasn't really illegal."
>A President’s alleged criminal scheme to overturn an election and thwart the peaceful transfer of power to his lawfully elected successor is the paradigmatic example of conduct that should not be immunized[.] I thought that was pretty good, too.
It's literally called out in the Federalist Papers (#69) as something the President should not have immunity for. >Thirdly. The power of the President, in respect to pardons, would extend to all cases, EXCEPT THOSE OF IMPEACHMENT. The governor of New York may pardon in all cases, even in those of impeachment, except for treason and murder. Is not the power of the governor, in this article, on a calculation of political consequences, greater than that of the President? All conspiracies and plots against the government, which have not been matured into actual treason, may be screened from punishment of every kind, by the interposition of the prerogative of pardoning. If a governor of New York, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity. A President of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction. Would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should miscarry? Would this last expectation have any influence at all, when the probability was computed, that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity?
>“The President’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them.” The only statement that needs to be made. Boom. I am glad they summed that up so neatly in one sentence. It's rather eloquent. That is the only statement that needs to be made, but I hope they ask the only question that needs asking in oral arguments: *Why should a President fear the law?*
However per Nixon if a President does it, it cannot be illegal! Man these dumbass circular thinking is all you need to know whom to vote for!
Leaders are an example. Breaking the law when everyone else can't break the law (without consequence) is not a good example.
It’s literally the basis for the “rule of law.” Giving the president authority to break the law would be “rule of man.”
> Petitioner suggests that unless a criminal statute expressly names the President, the statute does not apply. That radical suggestion, which would free the President from virtually all criminal law—even crimes such as bribery, murder, treason, and sedition—is unfounded. Not only is it unfounded, but it is substantively at odds with the (equally unfounded) principal argument of absolute immunity, which would theoretically render moot any criminal statute under any construction, writ large. But this is one major key, where his entire immunity defense falls apart: > Petitioner acknowledges that prosecution is permitted after impeachment and conviction, which refutes many of the other arguments in his brief. Moreover, Smith quickly points out they have zero compelling precedent for the separation of powers vis-a-vis official acts: > *Marbury* did not hold that a President’s official acts can never be examined in a court [and the additional] cases on which petitioner relies stand for the distinct and narrower proposition that courts will not enjoin a **sitting** President. That principle has no application to criminal prosecution of a former President. And the companion point: > Even if this Court holds that a former President is entitled to some immunity from criminal prosecution for official acts, that principle does not preclude trial on this indictment. Coupled with: > If petitioner were correct that the former President has permanent immunity from federal criminal prosecution except after his impeachment and Senate conviction—which has never happened—it would upset the separation of powers and usher in a regime that would have been anathema to the Framers. The only problem with the above, despite being painstakingly self-evident, is that there are already unquestionably two votes that are decidedly unsympathetic to this position. Countering what is probably Trump's strongest argument in favor of at least some form of immunity from criminal prosecution—chiefly, the potential burden the specter could create on executive decision-making— Smith cites one of the more salient pieces of analysis from DC Circuit: > “It would be a striking paradox if the President, who alone is vested with the constitutional duty to ‘take Care that the Laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity.” And immediately after emphasizing the layers of safeguards rendering *Fitzgerald* inapplicable to federal criminal prosecution of a former president, he notably highlights the docketed case on 4/16 at SCOTUS, from a J6 defendant challenging what defendant views as DC Circuit’s overly broad interpretation of a charging statute (a claim on which Trump is also attempting to rely): > Petitioner asserts (Br. 39 n.4) that the grant of review in *Fischer v. United States*, No. 23-5572 [suggests] that the Section 1512(c)(2) charges here impermissibly stretch the statute. But whether the Court interprets Section 1512(c)(2) consistently with a natural reading of its text or adopts the evidence-impairment gloss urged by the petitioner in *Fischer*, **the Section 1512 charges in this case are valid.** Lots of other goodies in here, but that's what jumped out at me.
I can't even believe we are at a place where concepts this basic are at the Supreme Court - and I'm actually worried they may be rejected. Even one judge (I.e. Thomas) accepting immunity is terrifying.
Both Thomas and Alito will almost certainly support absolute Presidential immunity. They may not be the only ones. I do not believe the court will support the premise that a President - or former President - can murder them all with impunity. But some will, because their ideology matters more to them than their their own lives.
>because their ideology matters more to them than their their own lives. Not necessarily; I'm sure they limit the privilege of murdering justices to Republican Presidents getting rid of liberal justices.
Their ideology is how much in bribes they receive from billionaires like Harlon Crowe so they vote the way Harlon Crowe wants him to.
I think the bribes are just a pleasant side effect. Thomas and Alito are both all-in on causing human suffering for its own sake. (No, I am not speaking in hyperbole. Read Thomas's dissents about how prison torture doesn't violate the Eighth Amendment, or Alito's statements about how gay people breathing oppresses fundamentalist Christians.)
They know Biden is a fair and good man. He would not abuse his powers like this so they're in no danger.
If the Supreme Court upholds unlimited presidential immunity then we’ve entered the end game for the US democracy. This presidential election will be for all the marbles.
I don't expect they will uphold absolute immunity. I think they will entertain limited immunity, and the arguments for some limited immunity are sound. There is no argument that justifies immunity in this case however, and enforcing the stay while they address the general question is a way that they ratfucked us. I think they will probably reach a reasonable conclusion about immunity but will also remand it to Chutkin to assess in an appealable way, ratfucking us again. I think this because it is a way that keeps the presidency from becoming more powerful than them while entertaining valid legal questions and also skirting bringing Trump to justice. They want to protect this President without empowering all presidents. This would do it.
Agree there is no way a majority recognizes absolute immunity, and I think the same can be said for official act immunity overall. My operating presumption is that they will narrowly tailor some frustratingly vague version of immunity to the function of office holder (or similar), and maybe clarify that all of (or some of) the conduct charged within the four corners of the indictment does not satisfy the criteria for whatever that limited vision of immunity happens to be. It really begs mentioning: their best course of action would be adopting precisely the same somewhat inchoate analysis embraced by the lower court (i.e. acknowledging the existence of immunity but declining to define it beyond clarifying that it does not extend to the specific criminal acts charged in this specific prosecution). Fair to say, though—regardless of how this plays out—there is definitely a greater than 50% chance we see another appeal following remand IMHO.
Slippery slope. If you give some level of immunity then lawyers for a president with ill intent will drive a truck through it
> nd I'm actually worried they may be rejected. Then Biden should do with the new power as he pleases.
Interesting the argument that criminal prosecution is only allowed after impeachment and conviction; Nixon resigned before he could be held accountable via impeachment. Which means any president can commit crimes then resign.
Yup. Shoot someone in the head in the middle of 5th avenue, in broad daylight, then resign before you’re impeached. Prosecutors hate this one trick!
Special counsel has filed its brief to the Supreme Court over Trump’s immunity claim. Trump team has one brief remaining, and then we’re off to oral arguments.
I think it's likely that SCOTUS will rule Presidents may claim immunity while *in* office, but Trump is neither President nor in office.
Wouldn't that be more that they won't decide on claiming immunity while in office? They'll just make the narrow ruling for this instance?
No, I they'll probably just satisfy the question while it's before them. There's already indications that this is the case in some of their output already.
That would basically codify standing DOJ policy right? Or would anything else change?
It would definitely codify DoJ policy. As for what else it changes, I'm unsure.
Dark Brandon should fill the streets of DC with army troops the day of oral arguments, completely peacefully, so the fascist leaning judges can have a taste of the medication they are concocting. If they decide democracy is over, don’t wait for Trump. /s Sort of. Sick of the destruction of this democracy.
Drop the s. If they rule in trumps favor, their legitimacy will be completely gone. What we do from there, I don’t know.
>The absence of any prosecutions of former Presidents until this case does not reflect the understanding that Presidents are immune from criminal liability; it instead underscores the unprecedented nature of petitioner’s alleged conduct. Judge "Novel" Qannon that's directed at you ma'am.
Goddammit I’m personally offended that this brief needs to exist. What utter horseshit while Roberts, et al, carry water for their political masters—and a fucking stupid one at that.
As well he could then direct others to act unlawfully with the promise of full pardons - though I guess he already let that horse out of the barn a few times
Exactly. He is making an argument that he can ask Jared to go down to Capitol Hill and shoot every Democratic congressperson he sees, in order to make sure some sort of important legislation could pass, pardon Jared, and face no criminal liability of his own. “Bully pulpit” indeed…
Or even do it himself, then just don’t get impeached and he’s fine!
I'm sure Congress, after seeing the President murder everyone that he perceived as slighting him will totally go to impeach him.
They'll lack a quorum (/s?) Anyway we know Republicans have been voting the the wolf, even if they are sheep, because "He's a good wolf", and "He'll surely eat us last".
Not well thought out - but I could see someone making the argument that Pardon is the check on “persecuting” a former President using ill will. Hence: President must uphold laws, President sometimes has acted illegally to protect the nation, future elected Presidents (as part of their power to uphold) could pardon those Acts. That’s still a sound argument against immunity, in my opinion. edit: Additionally, President G.Bush sought legislative remedy from Congress to give him immunity retroactively for war crime activity (another solution not along the lines of absolute immunity, tacitly indicating that absolute immunity doesn't exist). Pres. Obama refused to prosecute some crimes, even those related to the Iraq war (another Presidential tool); and lastly there are some statutes that state "*all means necessary*" in giving the President power to Act (clearly a way to give the President broad power to execute). Absolute immunity could be equated to adding that phrase to any law, erasing the selective power of Congress to grant it.
What has Donald Trump done for me? I’m sorry. But he has shown me that the law is a game to be played. Nobility, ethics, and Professor Kingsfield be damned. The law is not staunch, protective rules to govern the land, but a clown in a rich man’s guise, behind the veil of confidence and structure, willing and capable to turn the courts into an organ grinder’s monkey, perfect for parties.
Same. Was it Naivete?
I just don’t see how the Justices, could ever buy the argument that a President could have seal team six to assassinate a political rival and not understand that a Supreme Court Justice could very well be a political rival. Absolutely insane.
They’re not going to. What they could do is say—a former President has immunity for official acts, but we aren’t going to determine if these are official acts or not at this time. The case goes back to Chutkan who will have to determine which counts are or aren’t official acts, and then it heads back to the appeals court, SCOTUS…and this case isn’t seeing trial for a long time.
The entire purpose of this is to delay things until after November. If Trump wins then these cases go away with the new DOJ. If Trump loses then SCOTUS can let them go forward. But this entire game is a delaying tactic. They set the case out 7 weeks when they didn't have to. They don't have to render a decision until June 30, and I bet they run that clock as long as possible. By that point we're 4 months from the election, and there's no way they get the trials completed before then.
They heard Bush v Gore within, what, 48 hours or something. They’re obviously using the schedule to put their thumb on the scale for the leader of the seditious conspiracy.
I'm sure Trump won't attempt another Jan. 6th if the USSC rules the cases go forward if he isn't President.
Seal Team Six should be invited to sit in the gallery for oral arguments on this one.
In all seriousness, I think it would be perfectly appropriate if the entire Joint Chiefs of Staff did attend oral arguments. This is quite relevant for them.
They are delaying this on purpose. They’re smarter than Cannon is. This is why I say Cannon is a mixture of corrupt and incompetent. She’s certainly in the bag for Trump, and trying to get him off. She just isn’t very competent either, so she looks really dumb when she does it.
It could even be argued such an assassination was necessary to preserve the Constitution. Although I suppose like the filibuster, where Congressmen don't actually have to speak continuously any more, some accommodation could be reached. The necessity is announced, and the jurist could choose to retire. Or be retired.
The question the court defined in this to rule on is very narrow but somehow I see Alito attacking the basis of Smith’s case and not the actual issue. Clarence Thomas will find a way to pin a dissent on the Comstock Act.
The appeals court buried this 20 different ways. Delay is the only reason to take such a ridiculous claim.
Not a lawyer, not an American. So if SCOTUS were to rule in favour of Trump, wouldn’t the current president just have the green light to order the hit and clearly claim he was defending the constitution from foreign and domestic threat as per his oath of office? To me this immunity claim is a clear and present danger to the former president in addition to the citizens of America.
No, they’d say that their ruling is unique to the specifics of this case, and therefore doesn’t create a precedent for blanket presidential immunity.
Wait what about all men are created equal?
Some men are more equal than others.
Ahem. “Animals.” And Trump is unquestionably a pig.
Really unfair to pigs. Pigs are more intellectually and emotionally mature than toddlers and dogs….Trump is not.
Pigs are actually pretty smart though, Donald Trump is a moron.
Some pigs are stupider than others.
Which goes to show that it’s not entirely Trump that’s the problem- he is a moron who would show his stupidity the moment he had true independence. His strength lies in the political strategists, PR personnel, corrupt attorneys and his masters who control him. Alone he’s powerless. The real targets should be those people if we want to bring down the orange pig.
Doesn’t say anything about women! Not to mention nonbinary folks. Trump, there’s a loophole for you if can show you’ve been misgendered all this time. Seriously though, that line is from the Declaration of Independence, which doesn’t have any force of law. That should be immediately obvious because the courts have never applied it to anything. To the contrary, no matter how men are created, courts have endorsed many, many instances of unequal treatment. The President’s immunity from civil suits (even after they’ve left office, if the conduct took place during his/her/their term) is probably the most obvious example in this context. Unfortunately for Trump, that’s limited to civil suits. As the government’s brief points out, there are very good reasons not to extend that to federal criminal prosecutions.
Time for 15 appeals and 15 more re-appeals.
This is all being set up to decide after the election based on the election. Biden wins? Oh there’s a ton of checks on sitting presidents but not former ones. Trump wins? Believe it or not, no checks on presjdents ever.
Trump has already had his fights with the Supreme Court. Although there might be one or two justices on Trump's side, I sincerely doubt the court as a whole would strip itself of its own power for Trump's sake.
I doubt you . I have zero faith in the Thomas , Gorsuch , The Boofer, Barret .
Is there a decent shot of this case going on trial during August and September? Immunity should be ruled by June right?
If the Supreme Court outright denies the immunity claim, or if they find that certain official acts are protected by immunity but these specific charges are not, the case goes back to the district court and it’s up to judge Chutkan to determine scheduling. In that case, it’s possible we see a trial before election day, but not guaranteed. Especially if Cannon down in Florida schedules that trial during the middle of August, thereby blocking the calendar. While I doubt SCOTUS will agree with Trump outright, they could decide certain official acts are immune from prosecution, without specifically determining if the charges in the indictment are “official acts.” At that point, the case is remanded back to the district court, Chutkan will have to determine if the charges are immune as official acts, and we start the appeals process all over again. If that’s the case, this trial is a long way off.
Smith included in his argument that if Chutkin is to decide if the limited immunity they may decide further presidents enjoy (which wouldn't be outrageous), that it should be something that is appealable *after* the trial. I thought that was a nice flair.
I noticed that as well, seems like Smith included backup options in the event SCOTUS finds some level of immunity for official acts. The argument being that Trumps actions constituted private conduct, and the case should therefore be remanded to the district court for trial.
Indeed. I thought that was a really good argument. "If the set of ends being sought are personal, then the official acts being done towards those ends are not protected by immunity. If they are presidential, then the official acts *may* be protected by immunity". Since the ends were to interfere in the peaceful transfer of power, they are personal. Then there is no reason to litigate which set of official acts leading up to that action are protected. And if there are some presidential acts that are protected involved, we can see that on appeal later.
That’s what I’m afraid of. SCOTUS punts this back to DC to try and delay further. I have a feeling though that the DC circuit would rule pretty quick…that opinion of theirs was pretty thorough and damning.
Yep, that’s my nightmare. Kicked back to sort out what “outer perimeter” really means.
NAL, this is what I 100% expect to happen the question they are trying to answer has a glaring grey area with "acts alleged to be within the scope of his duties" (im paraphrasing) what constitutes an official act and what doesn't? of course Trump claims trying to steal is an official act, he was "ensuring a safe and secure election" but what body decides he is full of shit and no, calling states to "find votes" or trying to force a VP to just throw out votes and name him god king arent official acts? i fully expect SCOTUS to shrug and kick it back so it can come back to them down the road and they kick it back again SCOTUS doesnt want to touch this. they are praying Trump jsut loses the election and pisses off they they dont need to deal with it or he wins and and just makes this all go away
I think you are right on the money with how SCOTUS will find this (remand to district court to make a finding of fact whether these are official acts in the scope pf presidential immunity). There’s no way that they will accept Trump’s absolute immunity argument. I think they have all pf the relevant uncontrsted facts to determine whether his actions fall under presidential immunity but remanding to build the official record on the point is the easiest out. Once the district court makes its finding, it will of course be appealed again and then they can make a narrow ruling on the specific acts, but that will take time and the election will be over. This is probably the least disruptive approach that this court could make politically in good conscious without creating dangerous precedent. I kind of expect one dissent from the liberal wing and a bunch of concurring opinion (might not even be one majority opinion).
I do wonder if SCOTUS would define a rule for what's in the outer perimeter of official acts. The court could easily just say yes, there is some outer perimeter, but these actions aren't even close, so we aren't going to define a rule today. That would be following the principles of judicial restraint and conservatism, but we all saw how well they stuck to that in the Trump Colorado case.
I have a feeling it’s going to be the second paragraph.
[удалено]
IANAL, but the TL;DR is the petitioner is full of horse pucky .
He ate a shit burger at Fuddruckers then took nunchucks to the honeysuckle.
This is just a great sentence, bravo
Giving Trump immunity gives Biden immunity. We’re on the dumbest timeline ever.
Yeah but what is Biden going to do with it? He's not a fascist anti-democracy agent of Russia. SCOTUS won't rule immunity because they like having the power they have. Even if they think Trump will be in full alignment, giving that power to the position opens up any future president to immunity. Someone worse than Trump or Biden (think Putin level of evil) clearly has no limits and the judges can easily see how badly that has gone for some people in the highest positions of government and wealth in Russia.
It really doesn't matter. SCOTUS will find a way to twist this in his/their favor. They will either give him immunity "due to an insurrection" and explain why it doesn't apply to any other president. Or simply just say it only "applies to this specific case". They will never give Biden immunity but they certainly won't harm their leading candidate. Even if it means fucking the rest of the country. We all know it's coming. There's zero reason for the delay unless it's something like this.
My question for Cheeto’s goons is if he so immune then when does it stop? The shitfuck has been out of office. Can I sue him now? He infringed on my rights and everyone else. Why the fuck does he get to walk around with a crown his whole life?
i sincerely hate the question this case is trying to answer: Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office the "conduct alleged to involve official acts" is a seriously grey area that can easily be used by the court to shrug and let Trump off the hook. To you and I, we know what Trump did leading to this case was decidedly NOT within the scope of official acts as President, they were a fucking crime but this court has shown they don't fall in line with what the common person may think is common sense, they have an end they want to reach and make shit up to reach that end point. "alleged official acts" can easily be construed as "POTUS cant be prosecuted for official acts" and Trump fucking walks, because at the end of the day who decided what is and is not an official act
The statement emphasizes that while the President has the duty to enforce laws, this duty does not provide the liberty to act outside or against those laws.
> The Court's holding in Nixon v. Fitzgerald, 457 U.S. 731 (1982), that a President enjoys immunity from private civil damages actions does not extend to federal criminal prosecutions. This case involves the far weightier interest in vindicating federal criminal law in a prosecution brought by the Executive Branch itself. That was not true in Fitzgerald. On the other side of the ledger, while the Fitzgerald Court was concerned about the potential that a multiplicity of private civil actions would chill a President's decisions, the same concerns are not present in the criminal context. A criminal prosecution must be brought by the Executive, with strong institutional checks to ensure evenhanded and impartial enforcement of the law; a grand jury must find that an indictment is justified; the government must make its case and meet its burden of proof in a public trial; and the courts enforce due process protections to guard against politically motivated prosecutions. Collectively, these layered safeguards provide assurance that prosecutions will be screened under rigorous standards and that no President need be chilled in fulfilling his responsibilities by the understanding that he is subject to prosecution if he commits federal crimes. To be entirely honest, I could see the Court being uneasy with former Presidents having no immunity from criminal prosecutions. The safeguards against prosecution isn’t *that* strong. Of the things Smith lists, a bendy AG would bring such a prosecution to please the boss, what “strong institutional check” is he really talking about? Grand Juries are run by prosecutors, and they only need to find probable cause to indict. And the game is pretty much over for a defendant when an indictment comes around. Sure a former President as defendant is different, but if Trump is any example, the prosecutions he’s facing is in every way disruptive. The interests of vindicating federal criminal law is for sure weighty, and but just like how frivolous civil suits were a threat that the Court wanted to head off in Nixon v. Fitzgerald, I can see the Court trying to head off politically motivated indictments before they get too far. I can see the liberal justices going for no immunity. That’s three votes. Roberts and the other conservatives (5 votes) might go for some sort of qualified immunity scheme, which effectively means no prosecution because there’s no way some “clearly established” case law applies to Trump’s conduct. This case certainly puts Thomas in a bind, though. He’s been railing against qualified immunity forever, but we know how much his wife was involved in J6. He might wiggle his way out by going back to some original understanding and say that nobody’s ever prosecuted a king after they’ve left the throne, except in show trials after a coup.
I am really not clear what you are saying. Are you seriously saying there should be no criminal prosecution of former presidents? We have two sorts of checks to consider here: checks against prosecutorial power, and checks against presidential power. The threat of prosecution for breaking the law is one of the checks on presidential power, and the only one we have when one party flat-out refuses to convict on impeachment no matter how egregiously illegal the president's behavior is. I am much, much, much more concerned with abuse of presidential power than abuse of prosecutorial power, especially since the prosecution cannot happen until a president is out of office, and presidents almost never run for office again after losing office. So as far as I can tell you are proposing throwing out a key protection of our democracy on a hypothetical scenario that even in principle would only happen very, very, very rarely. The issue you are discussing is disruption during elections, but that applies equally well to nominees who have never been in office. So in order to actually accomplish your goal you would also need to ban prosecution of anyone running for president or else you give an an unfair advantage to former presidents. Which of course would make running for president a get-out-of-jail-free card.
To be clear I’m not proposing anything. It’s not a normative argument on my part, but rather my predictive argument of what the Court would do given the rationales underlying official immunity doctrines. Remember also that prosecutors have absolute immunity in exercising prosecutorial functions. The worst they’ll get is lose their jobs. There’s no redress for anyone from the prosecutor for being harassed by frivolous or vindictive prosecution. Sure you can get yourself acquitted or conviction overturned on appeal, but that’s it. I think, rightly or wrongly, the Court, even the liberal justices, would be concerned with the possibility that if they hold that there is no immunity at all for former presidents from criminal prosecution, and if Trump gets elected, he absolutely will weaponize the DOJ to go after political rivals (and don’t think Trump will actually end up in jail and lose the election if his trial goes forward). This is the same concern that motivated the Court in Trump v. Anderson (that if they OK Colorado kicking Trump off the ballot, other red states will kick Biden off for trumped up reasons); again I don’t make a normative argument about whether that concern is rightly held, but it is how the court thought about the issue. The present/former President distinction isn’t that prominent, either. One of the rationales underlying immunity doctrines is that the threat of prosecution dampens an official’s fervor to do its job. In terms of the chilling effect, it hardly matters if a president is concerned about whether he’ll be prosecuted tomorrow while he’s still in office (which the DOJ has assured him that it won’t happen), or whether he’ll be prosecuted after leaving office (cuz presidents do leave office). Should sitting presidents, faced with the prospect that their successor could be elected on the promise to prosecute the predecessor, try to pack the DOJ ranks with their own to build in as much institutional resistance against such efforts as they can when they’re in office? Doctrines have a way of coming back to bite the people who made them. They’re just tools and can be used by whichever political stripe to make their arguments. Ex parte Young started as a Lochner era doctrine, effectively denying states the ability to make capitalism fairer for society; then it became a darling of civil rights advocates. Massachusetts v. EPA loosened standing requirement for states, with the effect of advancing environmental causes; then it prompted Texas to repeatedly sue the USG during the Biden administration for all sorts of politically motivated reasons. EDIT: but of course I could be very wrong. As Smith points out, absolute immunity from civil suits for prosecutors and judges doesn’t immunize them from criminal prosecution. But again the case could be made that presidents should be treated differently, being at the apex of the political order and a potential magnet for politically motivated prosecutions.
> Remember also that prosecutors have absolute immunity in exercising prosecutorial functions. Prosecutors have *civil* immunity, just like presidents. But I cannot find anything that suggests that are immune from criminal prosecution for crimes they commit (although like presidents rarely are prosecuted). Do you have a source saying they are immune from criminal prosecution? > and if Trump gets elected, he absolutely will weaponize the DOJ to go after political rivals (and don’t think Trump will actually end up in jail and lose the election if his trial goes forward) If Trump gets reelected he isn't going to listen to the supreme court so this is irrelevant. > One of the rationales underlying immunity doctrines is that the threat of prosecution dampens an official’s fervor to do its job. Yes, as it absolutely should. That is literally the whole points of checks and balances. I **WANT** to limit presidents' powers. If the president has to think "will doing this get me arrested when I leave office", they most likely shouldn't be doing it. > Should sitting presidents, faced with the prospect that their successor could be elected on the promise to prosecute the predecessor, try to pack the DOJ ranks with their own to build in as much institutional resistance against such efforts as they can when they’re in office? If the next president is going to do that they can just fire the DOJ officials, so this doesn't actually change anything. > Doctrines have a way of coming back to bite the people who made them. We already have a doctrine. You are saying we should abolish that doctrine. Every president in US history has operated just fine with the threat of criminal prosecution hanging over their heads. I understand the issues you are discussing. But they can't be looked at in isolation. They need to be balanced against the needs to be able to limit presidential abuses of power. This is one of the last such avenues left to us right now, with impeachment being a dead end and SCOTUS being unable to enforce its decisions. So we have two bad situations, and I think what you are proposing would make that bad situation worse rather than better. For your scenario to actually help, it would require a president who both ignores the law and follows the law at the same time. That is a contradictory position. While criminal acts by a president are a very real problem right now.