SCOTUS has got its work cut out for it on the presidential immunity question
Jonathan Turley has written a good article on the dilemma facing the Court:
There are cliffs on both sides of this case. If the court were to embrace special counsel Jack Smith’s arguments, a president would have no immunity from criminal charges, even for official acts taken in his presidency.
It would leave a president without protection from endless charges from politically motivated prosecutors.
If the court were to embrace Trump counsel’s arguments, a president would have complete immunity. It would leave a president largely unaccountable under the criminal code for any criminal acts. …
Alvin Bragg is the very personification of the danger immunity is meant to avoid.
With cliffs to the left and the right, the justices are looking at a free-fall dive into the scope of constitutional and criminal law as they apply to presidential conduct.
They may be looking not for a foothold as much as a shorter drop.
Some of the justices are likely to be seeking a third option where a president has some immunity under a more limited and less tautological standard than the one the DC Circuit offered.
The problem for the court is presidential privilege and immunity decisions are meant to give presidents breathing room by laying out bright lines within which they can operate.
Ambiguity defeats the purpose of such immunity. So does a test that turns on the motivation of an official act. …
The line-drawing proved maddening for the justices in the oral argument.
Maddening, but necessary.
This is all unnecessary. The Constitution shows what to do. Impeach and then convict. After that Article 3 courts can handle it. This all goes back to Marbury vs Madison. If this isn’t stopped no one will want to run for president. Good set up for a real dictator.
“Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” John Adams
well Dreeben is the one that sunk the govt appeal on arthur andersen, because he’s not a really good lawyer, in his mind, a drone strike that kills innocents is totes fine, because a govt lawyer gave the advice, like the esteemed harold koh, in the case of awlaki, which makes that silly panjandrum that judge pan put up, as fake as any other endeavor re seal team 6, drones yes, operators no,
admittedly I think leslie mcadoo, noted that barrett seems to have gotten lost in the thickets, willing to give smith and by extension chutkin too much leeway
that case shepherded by andrew weissman, a slithy tove, it’s at the centerpiece of sydney powell’s collection of lawfare pieces, who is still fighting this lawfare, she made as minimal concessions as possible,
Robert you have a point, but all the Lawfare against conservatives is pointing at that as well. Only the Deep State side will work for the top seat, only weaker people would want to try and make a name fighting for the Presidency
In my opinion Dreeben sank his own case by asserting that inferior executive officers approval of an action makes it “official” in the case of Obama and Bush. However, those officials only authority is derived directly from the President himself- otherwise their opinions on what is official business of the President is no more meaningful than some guy off the street. If their approval gives Obama a pass, for example, then any President has that exact same power times 10. In other words, if the President says it is official business, then it is official business.
Dr. Turley makes a good argument.
Geoffrey Britain.
I have been pounding that drum for decades. Morality and Religion are verboten now.
I wonder if anyone else had been offered the case and turned it down. It might have been instructive if Dreeben had been offered the case, turned it down and gone public with his reasons (without violating any confidences), but I guess he wasn’t up to it.
I guess the Supreme Court can’t rule on the facts of the case and can’t say that there was no insurrection. That’s a pity too. It would have left the momentous constitutional question aside and resolved the case.
“I guess the Supreme Court can’t rule on the facts of the case and can’t say that there was no insurrection. That’s a pity too. It would have left the momentous constitutional question aside and resolved the case.”
One of the odd things during oral arguments was that CJ Roberts, in particular, shut down any discussions about auxiliary matters, such as the underlying charges. I thought that maybe it was to keep things on track. The Obstruction charge is very problematic, so no surprise that it came up. But then I started wondering why I thought that it was so problematic, and then remembered. A week and a half ago, there were oral arguments before the exact same Supreme Court, in the case of J6 Defendant Joseph Fischer (v US) on interpreting that Obstruction statute, 18 U.S.C. § 1512(c)(2).
The issue discussed in those oral arguments was that the DOJ is using a LawFare type (mis)interpretation of that statute as an omnibus felony Obstruction statute. Their interpretation ignores 18 U.S.C. § 1512(c)(1), which presumably greatly limits the reach of (c)(2) (“(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so”) to whoever “(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding”. The LawFare is treating 1512(c)(2) as standalone, when statutory construction rules (esp ejusdem generis) require that the two paragraphs be read together, with (c)(1) limiting the scope of (c)(2) to similar types of actions. My prediction, after oral arguments is either 6-3 or 7-2 (with Jackson as the swing vote) in favor or reversal rejecting the DOJ’s extremely broad interpretation of this Obstruction statute – which forms the felony portion of the DC indictment against Trump by Smith.
https://www.scotusblog.com/2024/04/justices-divided-over-jan-6-participants-call-to-throw-out-obstruction-charge/
https://www.law.cornell.edu/uscode/text/18/1512
“… endless charges from politically motivated prosecutors.”
Well, there’s your problem right there.
This is a case where both parties’ positions are absurd – Smith’s position appears to be that there is no immunity because the the DOJ is infallible. Trump’s position is that there is absolute immunity.
At least Smith’s position makes sense strategically, if not legally or logically. If the case has to go back to the judge for a finding of fact about whether Trump’s activities were official, it delays the case until after the election.
I don’t get Trump’s position, though. Either he thinks he’s going to lose on an “official action” analysis and therefore has to take the absolutist position, or it’s a case of Trump being Trump.
Either way – whose idea was it to nominate this guy for president again anyway?
Bauxite still on that BS.
Obama and Fast &Furious?
Bauxite, Re Trump and his absolute immunity argument, you’re missing two or three things.
First, it only applies for official acts to the outer perimeter of Presidential responsibilities. Thus, instigating and oversight sparking a debate by Congress on the previous elections security and validity (ie, J6) remains definitely within the realm of presidential immunity (cf, oath of office, he’s charged with with the “faithful execution of the law”, something both Biden and Majorkas have clearly violated on immigration.)
Second, Team Trump lawyers contend that if non-official Presidential conduct that may be tortious or criminal, he is still liable after Presidential term of office for prosecution.
Third, while impeachment is the Congress prerogative, it can challenge offensive conduct — criminal or not — subject only to a Senate supermajority vote (or, two-thirds) for conviction and removal from office.
The abject problem with qualified immunity is that holding Trump to this level easily implies that Obama and others like Cabinet members and others at the highest official levels (eg, Senate approved) are also subject to prosecution while in office.
The only remaining fuzzy area is the 25th Amendment, which requires a series of officials to mutually decide on suspending Presidential powers.
As of now, this has only been used twice for medical sedation and recovery from surgical procedures to the President.
Using it for psychological or psychiatric intervention has been much advocated by the histrionic far Left against Trump. I’m betting it will be used in this way, eventually.
The muddled benefit consequences has won out, thus far, resulting in no such use.
This administration has pledged to wage war against christians and jew police and
farmers
It has detained non violent protesters without trial and put them before tribunals that would be repugnantly unbalanced in any other country
It murdered some protesters and drove others to suicide with their cruelty
The Great Orange Whale must be slain.
CC(TM) will pursue him to the depths of Hell. It’s his soul’s work.
What effect will the decision have on the conduct and vulnerability of lesser officials, federal, state and local or will there be different standards?
}}} “… endless charges from politically motivated prosecutors.”
Well, there’s your problem right there.
To Dems, this is not a problem, it’s a feature.
}}} What effect will the decision have on the conduct and vulnerability of lesser officials, federal, state and local or will there be different standards?
What letter followed their names on the ballot, if elected, and who did they vote for, if not?
Aye, there’s the rub.
Bauxite:
Who gets to decide what is within the authority of the office of president? Especially if the sitting President is the highest ranking law enforcement officer in the country?
I mean in one corner of the circus, they are stacking nonsensical and novel applications of charges for non -violent offenders for mr fischer, for example or my paisan from Miami, who was in another city, at the time, sentenced to 22 years,
meanwhile every criminal inciter and terrorist seems to get a get out of jail card, thanks to fat alvin, or some other soros DA, like Matthew Graves