From the NYT live-blogging:
[U]ntil Mr. Trump wound up in court, the Supreme Court has never had a reason to decide whether former presidents are protected from being prosecuted for official actions. The Justice Department has long maintained that sitting presidents are temporarily immune from prosecution because criminal charges would distract them from their constitutional functions.... The closest the country has come to the prosecution of a former president over official actions came in 1974, when Richard M. Nixon resigned to avoid being impeached over the Watergate scandal. But a pardon by his successor, President Gerald Ford, protected Nixon from indictment by the Watergate special prosecutor. Mr. Smith’s team has argued that Ford’s pardon — and Nixon’s acceptance of it — demonstrates that both understood that Nixon was not already immune....
And:
A lawyer for former President Donald J. Trump told a federal appeals court panel... that impeachment is the only way to address criminal conduct by a sitting president, even one who ordered an elite commando unit to assassinate a political rival....
Also:
The former president arrived at the courthouse before the hearing even though he is not required to be there — and appellate judges often prefer to hear cases as intellectual exercises without the presence of defendants....
Winning the appeal is only one of Mr. Trump’s goals. He is also hoping that the litigation can eat up enough time to postpone the election trial — now set to start in early March — until after Election Day. If he retakes the White House, he could seek to order the charges against him to be dropped or try to pardon himself....
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55 comments:
Don't you have to first establish without a doubt that election interference occurred? Just because you can say something happened doesn't mean it has happened.
Let's all hope they rule against Trump quickly and unamomously. Then, perhaps, the supremes could also put an end to this gambit.
Did they mention that the act that was a potential crime that Nixon may have committed was using the federal government to go after his enemies including spying on them and using the IRS. The things the Obama Administration and the Biden Administration have done to Trump.
If Trump retakes the White House, these dorks are going to have a lot more to worry about than Trump pardoning himself.
This Judge Pan is less than impressive.
“appellate judges often prefer to hear cases as intellectual exercises without the presence of defendants.... ”
It’s an intellectual exercise regardless.
Sure would appreciate Ann's take on the oral argument.
Banana Republic ain't just a store in the mall.
even one who ordered an elite commando unit to assassinate a political rival....
Oh, come on.
Here's another spot where context is vital but omitted. Clearly this sentence was either (1) written and edited incompetently, or (as seems much more likely) (2) written and edited to cause the reader to infer that Trump actually did this.
What happened was that Trump's lawyer argued that the only remedy for criminal acts by a sitting president is impeachment in the House and conviction in the Senate. The judge posed some hypotheticals, including a sitting president's sale of pardons - could that be criminally prosecuted, or only remedied by Congressional impeachment and conviction? Only by the latter, the lawyer answered. Ok, says the judge (not the lawyer), then what if a sitting president ordered SEAL Team Six to assassinate a political rival?
The lawyer answers that such an act would swiftly and universally result in Congressional impeachment and convic-
Just yes or no, the judge interrupts, like the high school debater I once was.
I hope someday these "reporters" and editors (no quotes because you can surely be an editor with an agenda, but you're not supposed to be a reporter with one, pace all post-Watergate J-schools) wake up and realize what they've done to their profession. I'm sure most of them entered it with a desire to make the world a better place by shining bright lights into dark corners - but whatcha doing now, kids? Shining that bright light directly into the eyes of your readers so they can't see anything at all, it seems.
A President trying to stay in power after losing the vote hardly qualifies as "official duty". You would have to be an extraordinary narcissist to imagine it might.
As a Republican, (not to be confused with MAGA) I hope that he will be held accountable for any potential criminal charges. This is how democracy is supposed to operate.
On the other hand … I hope he wins. Then Biden, under presidential immunity and the banner of protecting the Constitution, can lock up Trump for insurrection.
What I’m hearing are butthurt lawyers arrayed against Trump who are dismayed to hear that only impeachment can be used against Trump. Prosecuting Trump has become a cottage industry and a hobby for lawyers. Lawfare needs to be scaled back.
"Mr. Smith’s team has argued that Ford’s pardon — and Nixon’s acceptance of it — demonstrates that both understood that Nixon was not already immune...."
I suspect what Ford's pardon and Nixon's acceptance really demonstrate is that no one really knew what immunity might exist. And we really don't know today (and won't know until and unless the Supreme Court decides it).
The optics are bad here as well: Numerous females banded to together to persecute Trump who is defended by a lone male attorney.
At some point historians are going to look back and try and understand what exactly was the straw that broke the camel's back and kicked off the civil war. Obviously the non-stop lies and attempted coup by Obama, Hillary and the Deep State leading up to and during Trump's administration will be on the list. The fraudulent election and crimes that took place on Nov. 3/4 2020 will be on the list. But the actual final straw will likely be some ruling that unleashes the full tyranny of the Deep State/Biden administration against the voting rights/freedoms of the 70,000,000+, well-armed folks who ACTUALLY voted for Trump in 2020 and who continue to support him today (or at least oppose the lie-factory in DC) - not to mention all the folks who are just sick and tired of the status quo fraud. We have obviously become a banana republic with a dictator at the helm (Obama, not Biden). We are clearly at a very critical juncture. One would like to think that the Constitution will win the day...but 240 years of history don't support that probability.
The DC Circuit means he is in the midst of his enemies.
"Don't you have to first establish without a doubt that election interference occurred? Just because you can say something happened doesn't mean it has happened."
No. Immunity would end things at the threshold, and you wouldn't reach the merits.
"Sure would appreciate Ann's take on the oral argument."
I didn't listen to much of it. I presume Trump will lose at this level.
The govt lawyer, Pearce, spoke in a rushed, nervous way that made him sound desperate rather than confident, even though he seems to have the stronger substantive argument.
I only caught the tail end of Trump's lawyer's argument and have no opinion about it.
"Oh, come on. Here's another spot where context is vital but omitted. Clearly this sentence was either (1) written and edited incompetently, or (as seems much more likely) (2) written and edited to cause the reader to infer that Trump actually did this."
Well, that was just me cutting it down to make it short. I thought it was obvious that it was a hypothetical. I was not motivated by a desire to make Trump look bad but by an avoidance of quoting too much and a confidence that my readers know a hypothetical (and an ellipsis) when they see them
What the NYT had was: "At one point, Judge Florence I. Pan presented Mr. Sauer with an hypothetical situation, asking if a president could be criminally charged for ordering SEAL Team 6 — an elite commando unit — to assassinate a political rival. Mr. Sauer said that a prosecution would be possible in that situation only if the president had first been found guilty in an impeachment proceeding."
The hack-D press are already lying and spinning.
Lying liars who lie.
Trump's lawyers by making the major plausible arguments in turn make it possible for the Appeals Court to write an opinion convincingly responding to these arguments. Such an opinion would then allow the Supreme Court to either (1) decline to hear the appeal or (2) close off any plausible route for a Supreme Court majority to write an opinion supporting Trump.
The coming Appeals Court opinion will be one of the great pivotal opinions in American judicial history.
⁷even the trump judge here not buying ridiculous assumption .
I'm sure that a president who ordered the assassination of a rival would totally respect any impeachment proceedings. Totally. No chance he'd attempt other actions to continue to secure his power. Or that the states would have to move on DC with force.
The judge who asked that question is a moron.
"A President trying to stay in power after losing the vote hardly qualifies as "official duty". You would have to be an extraordinary narcissist to imagine it might."
False framing of the issue. Trump was trying to show in effect that he DIDN'T lose the vote. But thereafter he peacefully left the WH once he lost the EC vote and January 20 rolled around.
Rich, where would you draw the line in terms of immunity? Could Texas indict, convict, and imprison Obama for criminal fraud for enticing Congress to support Obamacare by misrepresenting that "If you like your current plan, you can keep your plan?"
"As a Republican, (not to be confused with MAGA) I hope that he will be held accountable for any potential criminal charges. This is how democracy is supposed to operate."
So you think that, in my hypothetical above, Obama would have to be held criminally liable because DEMOCRACY requires it? Do you have any actual idea what "democracy" means? It doesn't mean "my preferred political outcomes."
"On the other hand … I hope he wins. Then Biden, under presidential immunity and the banner of protecting the Constitution, can lock up Trump for insurrection."
Sure, he can try. He's trying that already, isn't he? Nobody has indicted him for trying it.
Rich @ 11:12: "...As a Republican, (not to be confused with MAGA) I hope that he will be held accountable for any potential criminal charges. This is how democracy is supposed to operate."
"As a Republican..." I'm glad you gave us that credential. It adds a lot of credibility to your comments.
Trump will lose at this level and in the full appellate court level, too. He might have a chance with this argument at SCOTUS. Personally, I think Trump's lawyer is 100% correct from a constitutional point of view, and that Nixon was right, too- "if the President does it, it is legal". It is the nature of the executive branch- he is only answerable to Congress, not the judiciary.
I guess a good question would be, can Congress impose a penalty outside of removal from office and eligibility for any other? Can Congress throw him in the Congressional pokey?
Of course, all this supposes the legitimacy of criminal charges Trump has been hit with over January 6th- I find them laughably idiotic- trying to convince Pence to not accept the electoral votes isn't a crime since no coercion was involved, and all of Trumps other actions are not specically listed in any criminal statute- all Smith and his grand jury have done is create new categories for older laws to try to cover- something that should never be done for a specific defendent as a matter of justice. If you want criminalize something, then pass a fucking law that specifically makes illegal the thing you want to be illegal, but this means you have to let the precipitating miscreant go.
So, the Dems are crowing on TwitterX about the Seal Team murder hypo. Let's flip it. Let's say there was absolute proof that Biden was bribed in the State of Nebraska and the person who paid the bribe got a government favor from Biden.
Could Nebraska indict, arrest, try, convict and jail Biden while he is in office?
I should have been a law professor, but I didn't have the grades or desire. But I sure did enjoy calling out @TaxLawProf for her sloppy and imprecise thinking about an insurrection. I would have been crucified in class (by my Dem Constitutional Law prof) if I had made the same claims. Creighton Law has really declined. That's why I'm glad both my son and daughter didn't go there. Youngest daughter is a 1L at Minnesota; higher ranking even than WI. If Ann was still teaching at Madison, I would have pushed WI.
Leftwing partisan Barb McQuade is a MI law prof and regular on MSNBC. Sure would like to see Ann and Barb debate. It would be a beatdown.
BTW, Sauer is absolutely correct on the law and the policy. Judge Pan just pulled a law prof trick.
If Trump's lawyers are arguing that HE is above the law (of course I'm sure he'd argue something else if some other president were at issue), then they ought to be disbarred for making such absurd arguments. And I doubt that they are doing so in good faith -- they are doing so to make $$$ from a fool for a client whom they are exploiting for the aforementioned $$$.
No, a president cannot go out into the street and start shooting people, with the only recourse being that he is removed from office. Why the hypothetical was so limited as to killing one's rivals is beyond me. By Trump's argument, he could order the mass genocide, the creation of death camps and extermination of the Jews and other social undesirables and all that he would face is being kicked out of the White House to go live in his mansion.
History says otherwise. And rational thought as well.
I confess I do not understand why Trump is so insistent on proving his worst enemies right about him.
A President trying to stay in power after losing the vote hardly qualifies as "official duty"
More from Schrodinger's Dictionary. Trump simultaneously lost a completed election and was trying to prevent the election from being completed.
I didn't listen to much of it. I presume Trump will lose at this level.
Fucking brilliant.
Had Ford not pardoned Nixon, we would have a better understanding of what kind of immunity a president is believed to have.
At the time the pardon was seen as a blessing, now, maybe not so much.
(Biden appointed) judge:"Could a President order his political rival assassinated?" Asking for a friend.
Judge Pan: "I asked you a yes or no question. Could a president who ordered S.E.A.L. Team 6 to assassinate a political rival (and is) not impeached, would he be subject to criminal prosecution?"
Trump attorney, dodging the question, says "qualified yes -- if he is impeached and convicted first."
Why the fuck don’t TrumpWingers who presume the absolute worst and most insane shit about Biden apply a little Trumpian equivalence to that situation? If Trump is immune, Biden should be immune from prosecution the way that Trump claims he is. There shouldn’t be any prosecution of Biden, ever. Why even discuss it? And as for Hunter Biden and Jim Biden; hell, Biden should just pardon them! Like Trump pardoned Jared’s dad, and Steve Bannon, and Roger Stone and Mike Flynn and the rest!
Uh, right?
To bring bring the Seal Team 6 hypothetical down to earth, it’s been reported Obama ordered drone strikes that sometimes killed civilians (accidentally) and US citizens (intentionally). Can he be criminally prosecuted for those actions?
If a former President is subject to prosecution after his tenure, for acts taken during his tenure, without the House impeaching and the Senate convicting that President, I contemplate an endless cycle of politically motivated revenge prosecutions of former Presidents. Any Federal or State prosecutor could investigate and prosecute a former President for actions he took as President which arguably violated one of the millions of Federal and State criminal laws. That can't be right.
The president does not directly give orders to UCL team six. He would have to go through the chain of command. I am confident that somewhere along the way, somebody would refuse to participate in following an obviously illegal order.
This is also what people disregard when they think states are gonna have to move against Washington, DC or something like that. The armed forces and the police are not going to defend an impeached president.
Lets go further letting that spy balloon conpromise our nuclear secrets thats treason isnt it
Reddington nails the proper counter to the judge's hypothetical.
And Robother at 3:17 p.m. had me laughing out loud and wins the thread.
Reddington said...
To bring bring the Seal Team 6 hypothetical down to earth, it’s been reported Obama ordered drone strikes that sometimes killed civilians (accidentally) and US citizens (intentionally). Can he be criminally prosecuted for those actions?
No. This is the "official acts" distinction that is so central to the Trump case. No; we don't want to start second-guessing everything that Presidents do in terms of exercising their awesome powers in national security, etc. So Obama's having ordered drone strikes are deemed "official acts."
Trump, on the other hand, acting as a candidate to try to flip an election to himself is not an official act. Notwithstanding Trump's preposterous claim that he was acting officially, to root out fraud and corruption in vote counting. The Trump claim is legally and factually ridiculous. Trump wasn't trying to investigate a legitimately questionable election. Trump was trying to overturn a legitimate election.
It's pretty simple. Legally and factually.
robother said...
(Biden appointed) judge:"Could a President order his political rival assassinated?" Asking for a friend.
You have stumbled upon the inspiration for the Tweet of the Day today. It came from the very great Ron Filipkowski (former Marine, former prosecutor, former criminal defense atttorney, former DeSantis administration lawyer and now online editor at MeidasTouch), as he discussed the SEAL Team 6 poltical assassination hypothetical:
Ron Filipkowski
@RonFilipkowski·5h
On one hand, I’m glad the judges illustrated the absurdity of the Trump legal team’s position that he could assassinate his rivals, sell pardons, & sell military secrets to foreign govts & have immunity. On the other hand, he was sitting right there getting ideas for a 2nd term.
Richly funny stuff.
Dave Begley said...
BTW, Sauer is absolutely correct on the law and the policy. Judge Pan just pulled a law prof trick.
This is another one of your comments where, even when I try hard to give you the benefit of every doubt and the most favorable possible presumptions of facts and law, I still have no idea what you are talking about.
What exactly is the position? Judge Pan tried to nail it down with repeated "Yes or no" questioning, and Sauer never answered clearly and directly. He dodged. In the end, I believe that his position is that yes indeed if a President had ordered a military assassination of a political/electoral rival and was never impeached for it, or was impeached but escaped conviction and removal by a less-that-2/3 vote, that Presidnent would be immune from prosecution.
You tell me if I have that wrong. If I am wrong, be specific about precisely how I am wrong and what the actual Trump position is.
Well, that was just me cutting it [the SEAL Team hypothetical] down to make it short. I thought it was obvious that it was a hypothetical. I was not motivated by a desire to make Trump look bad but by an avoidance of quoting too much and a confidence that my readers know a hypothetical (and an ellipsis) when they see them
I do apologize; I didn't realize it was Althouse speaking. The excerpt I quoted in my comment was indented and appeared to have been directly from the NYT - but more careful reading on my part would have suggested, at least, that the NYT would only have produced a word-for-word transcript at that point.
I would've been more respectful to our host. I feel no such compunction with regard to the NYT.
That said... I still think it read like a veiled reference to either a past event (was Pence a "political rival"?) or a potential future one. In other words, it read pretty much just the way I would have expected the NYT to frame it. I'd expect to see it set out that way in tomorrow's "article" on the subject.
Given how nuts many state and federal prosecutors are, not to mention those International Prosecutors, the Supreme Court should eventually rule that a president can’t be indicted, much less convicted, of any crime allegedly committed during presidency.
The abuse of power has not come from the president, but from prosecutors.
On the other hand … I hope he wins. Then Biden, under presidential immunity and the banner of protecting the Constitution, can lock up Trump for insurrection.
So in other words, you're hoping for all-out war.
I contemplate an endless cycle of politically motivated revenge prosecutions of former Presidents.
Correct. Which is why nobody's been stupid and/or insane enough to try it.
Until now.
This whole charade is just about delay, only insane people would think total immunity to do whatever and no repercussions because I'll kill you if you disagree is a valid democratic principal.All about delay
Aren’t the allegations against Trump in this case largely about his inaction?
Will J. Richardson puts his finger on the Constitutional issue here.
If you think that what Jack Smith is doing now is politically motivated lawfare, just wait to see what happens if the Courts give it the green light.
I would have thought folks up in here would have more of a brain then to think this isn't anything but ludicrous no matter how far in the tank for trump they are?
"As a member of Congress, my first thought was, 'Well, then if the president is going to order out for the assassination of his political rivals and, say, there's a narrow margin in the Senate of a two or three votes in the opposition party — what's to keep him from murdering members of the Senate to make sure that he doesn't get convicted there in order to deny a two-thirds majority?"
"He can kill them because then he can't be impeached or convicted because he's murdered his opposition and he can't be prosecuted for it because he hasn't been impeached or convicted.'"Or he can just resign before an impeachment and what people from space would think a right wing House, a Johnson House ,would allow the votes to impeach and convict. C'mon man this ain't hard. DELAY DELAY DELAY
A lawyer for former President Donald J. Trump told a federal appeals court panel... that impeachment is the only way to address criminal conduct by a sitting president, even one who ordered an elite commando unit to assassinate a political rival....
Apparently none of these morons, including the "judge" who asked the question, are aware that it's the DUTY of members of the military to refuse to follow illegal orders, like this one.
So, not only would he be impeached, but the attack wouldn't happen.
Do you have to be a fundamentally stupid human being in order to be a Democrat? Or does being a Democrat make you a fundamentally stupid person?
"No. This is the "official acts" distinction that is so central to the Trump case. No; we don't want to start second-guessing everything that Presidents do in terms of exercising their awesome powers in national security, etc. So Obama's having ordered drone strikes are deemed "official acts."
If it's criminal, it's not official, surely?
If Trump can be prosecuted for his actions while President, why can't Obama for authorising the killing of American citizens without trial?
I thought that qualified immunity was pretty common for many positions when you are required by your job to take actions that have possible consequences.
Can we prosecute Obama for telling people to use a gun instead of a knife or punching twice as hard when that may have constituted a crime? Do we want presidents jailed for arresting a terrorist without serving a warrant? Can we arrest George Washington for applying non proportional force during the Whiskey rebellion? There could be thousands of small charges made for every president.
I think impeachment should always be the first step, then you can further disgrace a guilty president by proving beyond reasonable doubt that he corruptly benefitted from the act, if he did.
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