Wrote Trump's lawyers in this application to the Supreme Court, quoted in "Supreme Court Gives Prosecutors a Week to Respond in Trump Immunity Case/The schedule the justices set was not particularly speedy, though nothing prevents the special counsel from filing sooner than the court’s Feb. 20 deadline" (NYT).
The panel opinion below, like the district court, concludes that Presidential immunity from prosecution for official acts does not exist at all. This is a stunning breach of precedent and historical norms. In 234 years of American history, no President was ever prosecuted for his official acts. Nor should they be. Presidents “must make the most sensitive and far-reaching decisions entrusted to any official under our constitutional system.” [Quoting Nixon v. Fitzgerald, 457 U.S. 731, 752 (1982).] Their decisions are the most politically controversial of any official, and they draw the most national attention and political ire, making “the President ... an easily identifiable target” for politically motivated prosecution. Id. at 753. If the prosecution of a President is upheld, such prosecutions will recur and become increasingly common, ushering in destructive cycles of recrimination. Criminal prosecution, with its greater stigma and more severe penalties, imposes a far greater “personal vulnerability” on the President than any civil penalty. Id. The threat of future criminal prosecution by a politically opposed Administration will overshadow every future President’s official acts—especially the most politically controversial decisions. The President’s political opponents will seek to influence and control his or her decisions via effective extortion or blackmail with the threat, explicit or implicit, of indictment by a future, hostile Administration, for acts that do not warrant any such prosecution. This threat will hang like a millstone around every future President’s neck, distorting Presidential decisionmaking, undermining the President’s independence, and clouding the President’s ability “‘to deal fearlessly and impartially with’ the duties of his office.” Id. at 752. Without immunity from criminal prosecution, the Presidency as we know it will cease to exist....
Posts
62 comments:
Disrupt his campaign? Hardly. The trial will be the cornerstone of his campaign. A conviction, on the other hand, would be disruptive if and only if he doesn't get bail on appeal. Considering he's followed everywhere by the secret service, he's not a flight risk
Nothing but upside.
Isn't this a separation of powers case. From Trump.
The Executive Vesting Clause provides that “[t]he executive Power shall be vested in a President of the United States of America.” U.S. CONST. art. II, § 1, cl. 1. For another branch to arrogate the “executive Power” to itself, or to purport to dictate how the President must exercise that authority, is a core violation of the separation of powers. As a direct corollary, the Clause provides that the Judicial Branch cannot sit in judgment directly over the President’s official acts, and that any attempt to do so violates the separation of powers. In Marbury v. Madison, Chief Justice Marshall described this doctrine as foundational and self-evident. “By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.” 5 U.S. at 165–66. When it comes to the President’s official acts, “whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion.”
Prof, isn't this a separation of powers case? From Trump.
The Executive Vesting Clause provides that “[t]he executive Power shall be vested in a President of the United States of America.” U.S. CONST. art. II, § 1, cl. 1. For another branch to arrogate the “executive Power” to itself, or to purport to dictate how the President must exercise that authority, is a core violation of the separation of powers. As a direct corollary, the Clause provides that the Judicial Branch cannot sit in judgment directly over the President’s official acts, and that any attempt to do so violates the separation of powers. In Marbury v. Madison, Chief Justice Marshall described this doctrine as foundational and self-evident. “By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.” 5 U.S. at 165–66. When it comes to the President’s official acts, “whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion.”
Presented without comment. Must’ve crossed the Is and dotted the Ts…
The potential to undermine Presidential power is obvious. The more interesting question is why the Democrat/Left is unconcerned about it coming back to bite a Democrat President. It has to be that they take for granted that any given Republican Attorney General will never use the weapon against a Democrat President, and that the entire DOJ bureaucracy stands by to ensure that result. Sadly, probably a very reasonable assessment.
Trump has an albatross, not a millstone. A millstone is preventative, an albatross is recriminative.
so, just to be clear.. resident Biden has absolute immunity FORcriminal prosecution?
Since,
Biden is a democrat (SORRY! i mean a democrat resident).. He can freely use the DOJ for political ends?
I always think it should be mementous, not momentous. Memory, not momentum. Maybe even mnementous,
I think the cases against Trump are political BS, but I don't support the immunity argument. Too much power!
My unlawyerly thought is that a President might only be immune from later criminal prosecution, for otherwise illegal acts in office, if and only if they were done with proper authorization and notification under processes and procedures codified into law.
For example, Nixon's plumbers breaking into the Watergate supposedly were authorized by Nixon under existing national security rules, albeit for bogus reasons. But Nixon and his henchmen conspiring to lie about their involvement and doing so under oath were straight up criminal acts.
Seems pretty simple to me. Get a note from teacher before you wander the halls during class. Notify the correct Congressional members as specified under law, or timely create (not postdated) the required Presidential Finding, or get a judge to sign off on a FISA warrant (that isn't a complete lie), or do whatever documentation required under law to make covert action legal, and you're safe from prosecution. Don't, go to jail later, with the presumption that your activities were illegal because you failed to follow the rules for performing otherwise illegal acts.
I think the cases against Trump are political BS, but I don't support the immunity argument. Too much power!
Serious Question:
IF Trump can be prosecuted while President; for whatever it was that they say he "did"..
Can Biden be prosecuted for Treason (for allowing Entire foreign armies across our borders?)
How about O'Bama?
Can he be charged with Murdering American Citizens with drone strikes in undeclared military actions?
Just Kidding :) Obviously, these new rules are NOT FOR DEMOCRATS
I think the cases against Trump are political BS, but I don't support the immunity argument. Too much power!
It's bad news when our guys start looking and sounding like the other guys.
The best part is that once the Democrats get the presidential immunity waived to "get Trump" it will be on the books to go after Biden, Obama, etc. They are relying solely on the idea that the DOJ is a creature of the Democratic Party and thus can't go after members of the Party without premission.
Most likely, the US Supreme Court will overturn Trump's 14th Amendment ballot ban. But the Supreme Court will never grant presidents "complete immunity" from prosecution for any crimes they want to commit. That is laughable. Trump knows he's lying and that they'll never grant him that privilege. It's another fake dodge to delay the trial as long as possible, because he knows he's guilty.
MSNBC lawyer Neal Katyal says this is weak brief.
But the brief calls a spade a spade. The whole point of this criminal case is to prevent Trump from campaigning and then throw him in jail before the election.
Sounds like a pretty damn good argument to this layman. And we are actually seeing what will happen if allowed to move forward. I would encourage the Texas AG to file suit against Obama TOMMORROW. Murder I don’t think is covered if this is not covered.
"Momentous" is the cromulent word. Not out of 'momentum' but 'moment.'
If it is so "novel" then why was no prior President criminally charged for his "official acts"?
Follow-up question: Why does the Constitution spell out impeachment and impeachment alone as the method for prosecuting Presidents for "high crimes and misdemeanors"?
The difference is that Trump lacks braying support from the establishment and JournoListic fronts.
" They are relying solely on the idea that the DOJ is a creature of the Democratic Party and thus can't go after members of the Party without premission. "
Yes you are exactly right, and for that matter so are the democrats that think that.
Founding fathers never considered lawfare…
“The potential to undermine Presidential power is obvious. The more interesting question is why the Democrat/Left is unconcerned about it coming back to bite a Democrat President.”
Maybe because the Democrat/Left can’t see beyond the end of their nose. On anything.
I think the cases against Trump are political BS, but I don't support the immunity argument. Too much power! It's bad news when our guys start looking and sounding like the other guys.
Obviously you feel strongly enough to post this three times. But it is not "us" acting like "them" so much as it is every single president so far, 48 out of 48, from the three different parties represented (Whig, Democratic, Republican) has acted under the color of immunity in practice and effect, whether the actual question has ever been posed to the highest court or not (it has not). This keeps the Chief Executive, who must be able to make decisions of a momentous nature every day and night, from being encumbered by rogue prosecutors eager to tie the President's hands in one way or another. That is a real danger as you can see yourself from the blizzard of lawfare unleashed on Trump post-presidency, almost always on "novel legal theories" to boot. It is not supreme power, for Congress always has the impeachment option available and we've seen it used freely already against Trump -- for the same acts that are being prosecuted now in at least one trial.
Trump's predicament actually proves the necessity of operating within that immunity while in office. The President has the OLC to advise on the legal constraints under which Executive Branch lawyers see as pertinent to any official acts. And I'll call out two other comments I've seen so far which illustrate the inherent limits of this "immunity" under discussion: (1) we are talking about "official acts" as noted above, that is actions taken to enforce the laws and policies of the USA done under official color; so (2) they are not unofficial acts taken to subvert the rule of law, like the example of Nixon suborning perjury.
But even then, look at Clinton. He did tell Monica to lie to the Special Counsel, and still no other prosecutor went after him when his term was up. And Obama as mentioned above droned an American teenager to death without a warrant or a trial or a designation as a terrorist. Under what law was that OK? None. But it was close enough to an official act to fall under the umbrella.
I believe they do need some immunity for official acts, but the two I cited immediately above had a remedy: impeachment. In one case it was tried and in the other the idea never really got traction so far as I know.
All these legal cases (lawfare) against Trump are invented and of no merit. Biden getting let off from more serious offenses because he is senile fits the pattern.
Do federal judges enjoy absolute immunity from criminal prosecution for their official acts? I bet they do. I bet federal prosecutors have immunity as well. If so, why not a president? The Institute for Justice found 5,500 federal appellate decisions involving claims of official immunity. But this is different because Trump.
Isn't Trump just demanding that normal sovereign immunity doctrine apply to him? Seems like an easy win.
Mind you, I think sovereign immunity is bunk and the courts were wrong to adopt it, but they have. And if they're going to have it for just about every other person who draws a government paycheck, then they should have it for Republican presidents too.
why does Trump need immunity?
He's innocent.
Trump's right. SCOTUS knows he's right. On the policy. SCOTUS views Smith as an oily snake. Immunity is inherently a question for legislatures. SCOTUS thus will view this petition as political. SCOTUS will also take a dim view of the DC Circuit's mandate ruling. And so methinks the path of least disruption will be that SCOTUS kicks it back to the DC Circuit with instructions to retract their mandate so as to permit Trump to file an en banc petition.
Prosecute presidents when mentally competent and excuse when demonstrably mentally infirm? Lawfare to block mentally competent presidents from appearing on ballots and keep demonstrably mentally infirm presidents in office? Ahhhhhhh, even the unwashed see something sinister's afoot.
The President would still not be immune from impeachment, just from prosecution by every Tom, Dick and Karen.
The claim that POTUS has "absolute immunity from criminal prosecution for their official acts" is ludicrous. The claim could only issue from someone of criminal predisposition and habit, one who very possibly has acted criminally in performing his official acts and fears he will be held to account. (Frankly, many of our presidents probably have acted criminally in performing their official acts, and should be held to account.)
If such a claim were given legitimacy (illegitimately) by the Supreme Court, we would then have rendered the POTUS--the office itself, applicable to all occupiers of the role--a supreme leader, utterly immune to any sanctions of the law for any illegal act or misuse of power that he performed under self-claimed aegis of "official duties."
"Serious Question:
IF Trump can be prosecuted while President; for whatever it was that they say he 'did....'"
It's not a matter of "what they say," it's a matter of what claims of criminal behavior can be supported by evidence or the testimony of participants or eye-witnesses, and what can be proved to have occurred.
"Can Biden be prosecuted for Treason (for allowing Entire foreign armies across our borders?)"
I thought you said this was a serious question. BS, as usual. There have been no "foreign armies" crossing our border.
"How about O'Bama? (SIC)
Can he be charged with Murdering American Citizens with drone strikes in undeclared military actions?"
This is, surprisingly from this source, serious. I'd say any POTUS should be subject to criminal prosecution for deaths, injuries, and damages caused by undeclared military actions. Any undeclared military action, by definition, has not been authorized by Congress, which has sole power to declare war.
But...what "American Citizens" are you referring to?
Hunter tells a Chinese national, who later wired him millions, that not only would his "uncle" be at the meeting, but his uncle's "BROTHER," emphasis in the original. Who could Hunter Biden's uncle's BROTHER possibly be?
https://twitter.com/hale_razor/status/1757427759729790983
Ignore the evidence of your own eyes, people, ignore the evidence of your own eyes! Of course Joe and Jill have twenty corporations that don't do anything but accept payments and shuffle around money. Who doesn't?
"For example, Nixon's plumbers breaking into the Watergate supposedly were authorized by Nixon under existing national security rules, albeit for bogus reasons."
I'd say "existing national security rules" that violate the Constitution and the law are invalid and criminal, unless and until ruled lawful by the courts. Were Nixon's plumbers' acts legally authorized by appropriate (and appropriately issued) search warrants? I'd say acts committed under "legitimate warrants" that were obtained by deceptive, false, or otherwise illegitimate means or pretexts are invalid, and thus, criminal acts.
"The best part is that once the Democrats get the presidential immunity waived to "get Trump" it will be on the books to go after Biden, Obama, etc."
Great! Let's hope so!
Immunity from prosecution for what, exactly?
"Why does the Constitution spell out impeachment and impeachment alone as the method for prosecuting Presidents for 'high crimes and misdemeanors'?"
"Impeachment" simply refers to the act of bringing charges and trying the President in Congress. That is the Congress' official tool to sanction a president. The penalties imposed by Congress run the gamut up to removing the President from office. There's nothing I'm aware of that prevents a president from being indicted criminally once found guilty in Congress and removed from office, if the nature of the crime(s) were grievous enough.
Do you think a president impeached and removed for rape, violent assault or other injurious offenses against another (or even the "lesser" felonies of theft, embezzlement, etc.,) would not or could not be criminally indicted and tried?
Robert Cook said...
"For example, Nixon's plumbers breaking into the Watergate supposedly were authorized by Nixon under existing national security rules, albeit for bogus reasons."
I'd say "existing national security rules" that violate the Constitution and the law are invalid and criminal, unless and until ruled lawful by the courts.
**************
Then you would be proving yourself to be an idiot. "Existing national security rules" are not not putatively unconstitutional. Courts don't rule on the constitutionality of every EO, regulation and law passed by Congress. If they had that power, courts would be superior to the legislative and executive branches.
The Israeli courts have arrogated that pwer for themselves, causing the government to be in continuous turmoil.
More Cook:
"I'd say any POTUS should be subject to criminal prosecution for deaths, injuries, and damages caused by undeclared military actions. Any undeclared military action, by definition, has not been authorized by Congress, which has sole power to declare war."
Yeah, so that means a POTUS couldn't take defensive military action against, say, the Houthis attacking our naval forces in international waters, w/o first declaring war against them. Ditto an invasion by,say, Russia against a NATO member we have a defense treaty with.
SNORT
Seems that outgoing presidents will just issue themselves blanket pardons on the way out the door then. Since that is possible is t the rest of this debate moot?
Supreme Court will never grant presidents "complete immunity" from prosecution for any crimes they want to commit. That is laughable.
Yeah it is laughable. It also is not even close to what's at issue. So you're laughable for writing such slop.
The SCOTUS could craft some remedy along the lines of Miranda or the exclusionary rule, that sets some kind of boundary as to how far prosecution of a former president could go, without barring them entirely.
Just find an emanation or penumbra somewhere.
JSM
Immunity from prosecution for what, exactly?
In the case at hand? For wanting to use the existing voting acts to have the ballots reviewed by the states so that he could ensure the proper electors were sent to the EC. That law has since been changed so that the VP role is "ceremonial" rather than official as it was in January 2021. Like the immunity question, the question of whether the VP could order recounts had not been tried.
There's nothing I'm aware of that prevents a president from being indicted criminally once found guilty in Congress and removed from office, if the nature of the crime(s) were grievous enough.
Yes, exactly, after conviction in the Senate and removal from office. So now tell us why no other President in history has been prosecuted for anything ever after leaving office. Even the ones, which is every president, who disputed the archivist's demands under the PRA were not prosecuted: the remedy was civil for Bush, Clinton and Obama.
Seems that outgoing presidents will just issue themselves blanket pardons on the way out the door then. Since that is possible is t the rest of this debate moot?
This why the Democrat lawfare strategy against Trump has made sure to entangle him in State courts for various BS charges. IDK if it is true he can't pardon himself for State convictions, but on the chance he could they are taking it to the limit.
Looking forward to Texas prosecution of Biden for aiding a foreign invasion of Texas. Don’t hate the players. Hate the new rules they put in place.
The problem with Trump's presidential immunity claim regarding the Capitol riot is that his actions were so obviously self-interested. Oh sure, there's a "public interest" in fair elections, blah, blah, blah, but his speech to the folks he sent up to Capitol Hill was about whether or not HE should remain as President.
Suppose a different situation: Congress is considering a bill to deprive recent immigrants to the US of voting rights to which they are entitled under then-existing law. The outgoing President opposes that bill, but he will be out of office by the time it passes, so he won't be able to veto it. The almost-but-not-yet-ex-President makes a speech and urges those who agree with him to "march up to Capitol Hill" and "fight like Hell" for the defeat of the pending bill. At the Capitol, things kind of get out of control. (for this hypo it doesn't matter whether or not Congress passes the anti-immigrant bill.) Then the new President, after taking office, directs the US Attorney for DC to prosecute the former President.
Do you think the same way about "Presidential immunity" in this hypothetical as in the Trump case?
The whole point of this criminal case is to prevent Trump from campaigning and then throw him in jail before the election.
... regardless of the merit of the charges, because polls indicate that many independents who currently say they'll vote for Trump have also said they'd change their minds if he were convicted of a crime.
Giving a president immunity from actions that can be declared actions of the office seems perfectly viable to me.
Walking down the corridor and raping/murdering/chopping up some people....probably doesn't count as "actions of the office".
The supreme court actually should just take this up and dispense with it, but it appears there can be a lot more money made by lawyers by sending it back to the corrupt washington court.
rhhardin, thank you for the millstone/albatross differentiation. Those have been a stone in my shoe for quite some time.
Unfortunately the Constitution is written with the implied understanding that the participants in government will respect the Constitutional powers and limitations outlined therein. If not, then ultimately the rules rather quickly devolve to "might makes right" wherein those with greater "power" and/or fewer scruples just grab whatever they can or do what they want, and dare anybody to stop them.
I believe that we are at this point now. I hope that the Supreme Court recognizes this.
The threshold is immunity for official acts. Committing murder or other vile acts are not official presidential acts. Contesting election results to get to the truth are official acts in the fact that the president is responsible to be sure laws are faithfully followed. It’s not an outlandish argument by any stretch, despite him being one of the candidates in the race. This was all while he was still President too - he was not an everyday citizen at the time. Why is this so hard.
Narr said...
"Momentous" is the cromulent word. Not out of 'momentum' but 'moment.'
"cro·mu·lent | ˈkrämyələnt |
adjective humorous
acceptable or adequate: the continental breakfast was perfectly cromulent | however you spell it, it's certainly a cromulent word.
ORIGIN
1990s: first used in the US animated television series The Simpsons.
I predict some blackboard time in Narr's future.
"So now tell us why no other President in history has been prosecuted for anything ever after leaving office."
Probably because no one wanted to do so. Politicians want to protect each other as mutual insurance against being prosecuted themselves. However, there was a close call of the possibility, but it was preempted when, soon after Nixon's resignation, President Ford granted a full pardon to President Nixon "for any crimes that he might have committed against the United States as president."
I'm pretty sure an agreement was made between POTUS Nixon and Veep Ford behind closed doors that Ford would pardon Nixon as a condition for Nixon's resignation, but at least that is marginally less corrupt than for a president, while still in office, claiming the right and being permitted to pardon himself for offenses for which he anticipates being indicted.
The claim that "absolute immunity from criminal prosecution for their official acts" is a misrepresentation of the claim.
There are two caveats to this immunity
(1) It only applies to official acts
(2) It can be removed by impeachment and conviction.
There's a reason that those after Trump misrepresent his arguments.
They know he's right.
I think it’s important to remember that the J6 peaceful and patriotic speech was in service to the 75 million people who voted for him, most of which believed it was a fraudulent outcome. Vote tinkering at that perceived scale is a disaster for our way of people-ruling life here. That was not simply a self-serving event.
I'm pretty sure an agreement was made between POTUS Nixon and Veep Ford behind closed doors that Ford would pardon Nixon as a condition for Nixon's resignation, but at least that is marginally less corrupt than for a president, while still in office, claiming the right and being permitted to pardon himself for offenses for which he anticipates being indicted.
Right Bob. That's why you're such a trustworthy source, because in your view Trump saying something but not doing it is "more corrupt" than a this-for-that secret agreement, which is the very definition of a corrupt act. Is this more of that weird progressive "your speech is violence but my violence is fee speech" inverted universe bullshit?
Cuz it smells like bullshit, Robert.
What options are available if an executive branch refuses to execute a law. Sippose an EPA administrator refused to enforce an environmental law passed by Congress. I suppose Congress could defund EPA, or refuse to confirm Presidential nominees. But really, isn't this what impeachment was intended for?
"'I'd say any POTUS should be subject to criminal prosecution for deaths, injuries, and damages caused by undeclared military actions. Any undeclared military action, by definition, has not been authorized by Congress, which has sole power to declare war.'
"Yeah, so that means a POTUS couldn't take defensive military action against, say, the Houthis attacking our naval forces in international waters, w/o first declaring war against them. Ditto an invasion by,say, Russia against a NATO member we have a defense treaty with.
"SNORT"
"SNORT," indeed!
A defensive military action to fend off or protect the lives of US servicemen from a foreign attack on our forces would not be an "undeclared military action," but a necessary defensive action to protect lives of men and women under attack.
(However, how likely would it be that defensive reaction could be implemented while the initial foreign attack was still in progress? Not very. Any military response after the fact, absent exigent circumstances needed to immediately protect American lives, would, under the Constitution, require a declaration of war by Congress.)
A defensive response to an assault against us does not automatically constitute a declaration of war. However, it probably would be impetus for Congress to vote for a declaration of war--or for the President to request Congress vote to make a declaration of war--if we were following the Constitution. (After the Japan attacked us at Pearl Harbor, President Roosevelt requested that Congress vote for a declaration of war against Japan, which they did. He, correctly, did not take it upon himself to make the declaration. However, our declaration of war against Germany several days later, also made by Congress, was the last time we have ever declared war against another nation. None of our military actions since then have been properly authorized by a declaration of war, either by Congress or the POTUS. Thus, all our military involvements--our wars--since then have been unconstitutional undertakings.)
Blackboard time? My fingernails are ready.
At least it's not the punishment cone.
I am unsure as to the constitutionality of the question. But Jerry Pournelle, a pretty sharp cookie, listed as one of the prime reasons for the 44 of 45 successful, peaceful transitions of power in this country to be the fact that we had never went after the exiting administration for official acts while they were in office. I believe he had a point. If you expect to be prosecuted (or persecuted) when you leave office, it is a powerful incentive to attempt whatever it takes to not leave office. After the way the left has gone after Trump, I expect them to attempt whatever it takes to stay in office this year. Because they for sure do not want Trump appointing US Attourney's to start investigating for real where the money has been flowing. Not to mention all the voting irregularities that keep popping up. I sure hope it is not too late to avoid the obvious next step, which involves Balkanization and lots of blood.
"Right Bob. That's why you're such a trustworthy source, because in your view Trump saying something but not doing it is "more corrupt" than a this-for-that secret agreement, which is the very definition of a corrupt act."
I have no idea what the above refers to or means.
BTW, "marginally less corrupt" does not mean "not corrupt."
Post a Comment