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How the Supreme Court’s decision on Trump’s immunity could turn on a single question

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How the Supreme Court’s decision on Trump’s immunity could turn on a single question (CNN)​

"The Supreme Court will likely produce thousands of words when it decides this year whether former President Donald Trump may claim immunity from special counsel Jack Smith’s election subversion charges.

But for now, court watchers are stuck parsing the first 29."

Those 29 words: “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”
There are some clues in that question and some important distinctions that are relevant. BLUF: I think they are going to narrow the scope of immunity and remand for a factual determination (thus delaying the trial). Here are the important words:

"Whether"; "to what extent"; "former president"; "conduct alleged"; "official acts"; and "during his tenure". Now, as to why.

As the author suggests: "Although the question appeared straightforward, some experts saw worrying signs for Trump below the surface in how the wording seemed to reject his most aggressive claims. But the tea leaves presented a mixed picture for prosecutors as well. They suggest the possibility of an outcome that will require even more of a delay and additional legal wrangling before the case can go to trial, even if Trump’s claims of absolute immunity are rejected by the justices."
 
My Take:

One can analyze the issues as questions. Although this immunity claim is presented in the framework of one case, it is applicable to multiple cases and I think that is why the Supreme Court took it (mostly to delay the trials). The real issue is much broader, but they placed markers about what disagreements exist among the Justices. The questions:

"Whether?" I think all of the Justices will acknowledge and reaffirm the existence of Presidential Immunity, although its existence is absent from the Constitution itself. This is a SCOTUS-created immunity, and they are not going to give it up, and for good reason, since it is ostensibly based upon the separation of powers. But... that question becomes less salient in this case, because the Executive branch (through DoJ) is taking action against the Executive. But, they have to engage the Judicial branch to do so.

"to what extent"? This is the key question that is going to occupy most of the opinions (I predict at least three). These will be determined by the ancillary questions.

"former president"? Right now, Trump is a former President. Distinctions can be made about his acts while in office, and those that occurred before (NY Stormy Daniels), during (Jan 6, Georgia) and after (Florida documents case). Even though this only involves one scenario, I think the Court will distinguish all of them, so they don't have to address them seriatim.

"conduct alleged"? This, again, is to distinguish, for example, between "retaining" documents, and "taking" documents (Florida); whether the pre-election actions in the Stormy Daniels case (keeping her under wraps) merged with post-election actions (making the payments)(NY); Pre-Jan 6 and post-Jan 20; campaign and official activities, and whether those were "during his tenure"?.

Finally, and most crucially, what were "official acts"? The gravamen of all of these cases is the scope of presidential power. This will, again, be the bulk of discussion in the opinions. Even the most "conservative" of the Justices will have to address this question, as what is swept within "official" is critical. I think this also indicates why the non-"conservative" Justices went along with taking it. This is also where most observers see a problem for Trump. Let's look at the cases in that light:

First, paying hush money is not an "official act", especially as it was from Trump's private funds, and the activity being covered up occurred prior to his presidency. See Clinton v. Jones.

Second, the Court will have to distinguish the Nixon cases - between civil immunity (Nixon v Fitzgerald - "The President's absolute immunity extends to all acts within the "outer perimeter" of his duties of office.") and criminal immunity (US v. Nixon - "Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute unqualified presidential privilege of immunity from judicial process under all circumstances.").

Third, the Court will have to address whether campaign activities are distinguishable from "official acts", and whether there is a colorable claim that engaging/interfering with State election processes is within presidential responsibilities.
 
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Former appeals court conservative judge Michael Luttig was interviewed this A.M. and believes the wording is asan
attempt at consolidating the government's description of the question vs the Trump legal team's claims of immunity.

He said the discrepancy results in the justification for the court to be briefed 50+ days from now vs the Court not involving itself
or issuing a ruling without another briefing.

The main story I see in this is the Court turning down Jack Smith's December request and now getting involved at all.
The 1974 and 2000 courts moved at lightening speed in deciding who would be POTUS, vs this 6 - 3 majority responding as
slowly as avoidance of direct accusations that it is slow rolling this permits it to get away with.

Prior comments by Judge Luttig on Wednesday,

 
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Just as procedural aside, the Supreme Court converted a "Petition for a Stay" by Trump of the DC Appeal decision into a "Petition for Certiorari", which is a rare procedural maneuver (but within its discretion), and apparently requested by Jack Smith. This actually speeds up the process (even though they've delayed arguments until April).
 
The premise that Trump presents, that presidents must have absolute immunity, otherwise every president risks being charged with crimes as soon as they leave office has three glaring errors:

1. We have a history of over 200 years without any president needing immunity until Trump.

2. It ignores the grand jury system (sufficient evidence to move forward with trial) as well and the jury system in which the prosecutors must prove beyond a reasonable doubt to a unanimous jury that the defendant committed a crime within their jurisdiction.

3. Trump's position pre-supposes that criminal prosecution of former president(s) is strictly political with no basis in criminal statutes.

The prospect of a future president, knowing he/she enjoys absolute immunity, being able to commit any crime, up to and including jailing or assassination of political rivals with no fear of consequences is ludacris on its face.

Is there precedent for such a position? Not in modern history, but if we go back to the Roman Empire, the collapse began when the emperor found he could run roughshod over the law by simply buying off a handful of key senators. When this happened, the people lost faith in the system, and eventually, the emperor consolidated his power base, becoming a dictator.

There are people in this country who deny this could happen here, and there are people who would welcome it.
 
Whatever the decision I'm confident it will be a split one. The verdict maybe split also granting some immunity while not giving carte blanch. If Trump loses in regards to his particular take it will be due to one or two conservative judges voting against Trump.

I'm confident the president does need some immunity to do their job without fear of reprisal. Do we want the family of Laken Riley filing a wrongful death suit against Biden for reversing policies on the border?
 

They didn't need it because they had immunity and therefore no filed lawsuits or criminal charges.

Secondly the President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. The idea there is no remedy for a wayward president isn't true. In order for a president, the leader of the country to be effective the office grants the president special powers and authority and immunity to an extent to be determined.

3. Trump's position pre-supposes that criminal prosecution of former president(s) is strictly political with no basis in criminal statutes.
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He can argue or pre-suppose anything he wants. Its a free country. Whether it meets the Supremes and constitutional scrutiny remains to be seen.

The prospect of a future president, knowing he/she enjoys absolute immunity, being able to commit any crime, up to and including jailing or assassination of political rivals with no fear of consequences is ludacris on its face.
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Ironic you bring up jailing political rivals. There are some who think the powers in office are trying their utmost to throw a political rival leading in the polls into jail. You'll claim its justified in this case but this is exactly what you worry about a president doing in the future. This is against Trump so hell yeah. As for the rest of it no, the president would be quickly impeached and removed from office.
 

the powers in office are trying their utmost to throw a political rival leading in the polls into jail.
And what stands in their way? Why isn't Trump in prison as we speak?

1. The judiciary from top to bottom, basing their decisions on the 4th, 5th, and 6th amendments in the Bill of Rights.
2. The jury system. It is not left to the powers in office, but to ordinary citizens. They get to decide who goes to prison.
3. The appellate system, which allows for review of virtually every decision any judge ever makes as well as every guilty verdict brought by a jury.

The idea there is no remedy for a wayward president isn't true. In order for a president, the leader of the country to be effective the office grants the president special powers and authority and immunity to an extent to be determined.

Trump, while in office, claimed there was no need to impeach him, since he would be subject to prosecution once he left office anyway. Once out of office, Trump claimed to prosecute him amounts to double jeopardy because he was tried and acquitted in the senate. In other words, "Heads I win, tails you lose." And of course he is also making the same argument you are, that presidents must be immune from prosecution, just like all 44 presidents before Trump enjoyed.

The only thing that prevented 44 previous presidents from being prosecuted is lifelong presidential immunity? GTFOH!
 
Well, no. We have a history of over 200 years of Presidents committing crimes and/or conspiring to commit crimes and not being criminally charged for it after they leave office. We have one set of rules for over 200 years of Presidents and former presidents and a different set of rules for Donald Trump.
I’m not sure of the relevance of that complaint. Are you opposed to prosecutors cutting immunity deals with criminals?
Stealers Wheel said:
3. Trump's position pre-supposes that criminal prosecution of former president(s) is strictly political with no basis in criminal statutes.
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I can’t say I blame him for that perspective given that elements of the Federal government and military conspired against him from day one and the DOJ’s actions in this case are unprecedented. Is it still paranoia when they really are out to get you?
Stealers Wheel said:
The prospect of a future president, knowing he/she enjoys absolute immunity, being able to commit any crime, up to and including jailing or assassination of political rivals with no fear of consequences is ludacris on its face.
Click to expand...
That’s not a problem particular to this issue and we’ve seen it before in our country’s history.
 
What color is the sun on your home planet?
 
Stealers Wheel said:
What color is the sun on your home planet?
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There are some posters whose "contributions" are not even worth reading. They just clog up threads with worthless crap. I didn't even realize they'd posted until you responded.
 

I hesitate to submit a Newsweek article, but at the bottom they throw in a few experts. The article describes a few possibilities, Do you think these are plausible scenarios? The idea is that if the USSC isn't focused on the merits, the case should proceed as soon as the intent of USSC is clear.

In the article they say:
"the Supreme Court court answers "

and that could be issued before the scheduled hearing in April.


Jack Smith's alternative in Trump presidential immunity case

The Supreme Court may address presidential immunity in very broad terms, leaving prosecutors enough space to put Trump on trial
www.newsweek.com

How much of this is likely or true?
 
I have no problem with Newsweek, although it is not the publication it used to be. As far as scenarios? Yeah, there are some possibilities, as they discuss.

"The question as posed by the Supreme Court allows them to answer it as a general proposition, and not specifically as to Trump and the DC case". I think this is a very plausible scenario. It's kind of a "middle ground" approach. The Court would essentially lay out the "standards" for review, then remand to the trial court to "proceed in accordance with this opinion," which would leave Judge Chutkan with the possibility of essentially finding as she already has and moving forward to trial. Those same standards, moreover, could be addressed by other courts in other proceedings (e.g., Florida, Georgia and NY).

"Stephen Gillers, a New York University law professor, said that Chutkan would invite argument from the Department of Justice and from Trump's lawyer, but would not invite testimony from witnesses, before applying the Supreme Court decision." I think this is very likely. As an initial matter, the facts as alleged in the indictment would be "assumed" for purposes of determining if dismissal is required. The matter could then be re-raised after trial when all of the testimony and evidence is before the court.

"Shipley also wrote on X that the argument about whether Trump tried to illegally overturn the 2020 election in the lead up to the January 6 riot will largely become irrelevant if the Supreme Court reverses the conviction of Joseph Fischer, one of the January 6 defendants." Here I strongly disagree. While that argument will be made, the charges against other Jan 6 defendants are much narrower than Smith's indictment - limited to the activities of Jan. 6. The indictment, on the other hand, alleges a series of actions as part of a continuing effort and a conspiracy. "[T]he Supreme Court agreed to hear a challenge to the Department of Justice's (DOJ's) interpretation of the "obstruction of an official proceeding" charge", but the "question presented" was so vague that there are innumerable ways that the Supreme Court could answer it: "Did the D.C. Circuit err in construing 18 U.S.C. § 1512(c) (“Witness, Victim, or Informant Tampering"). Which prohibits obstruction of congressional inquiries and investigations. to include acts unrelated to investigations and evidence?"

The question, as presented, and the Briefs filed, are wildly disparate. Indeed, the argument Defendant made is incredibly narrow and tortuous, ignoring the actual language of the statute itself, and not even following its own question. 14 of the other District Court Judges in DC followed the same analysis as the DC Circuit Court of Appeals. Judge Nichols is the only one to deviate from this standard and logical approach. There is a lot of room for SCOTUS to "clarify" without obviating a federal law entirely. (Of course, they might do it anyway.)
 
Another view: The Supreme Court is asking the wrong question in Trump’s immunity case (Michael Conway, MSNBC).

"Unfortunately, I believe this is the wrong question. And the way it is worded runs the risk of delivering the wrong answer.

The court has formulated an overly broad question to be answered in the appeal, rather than the straightforward one: whether Trump is absolutely immune from prosecution for the crimes alleged in the indictment obtained by special counsel Jack Smith.

Obviously, the court’s wording is subject to interpretation. And not all legal observers are as pessimistic as I am. Some have opined that the inclusion of the words “official acts” in the court’s order actually narrows the scope of the decision.

But I respectfully disagree."
 
You had to be deaf, dumb and blind, if you thought any state’s decision to block someone from a ballot on a federal election would be applicable to all states. It was showboating all the way. And no, I’m not a MAGA troglodyte like many of you accuse someone of because you don’t like their view.
 
Having seen how the Court  majority manipulated the question in the Trump v. Anderson Opinion to block Trump's removal by any means, and noting that Thomas did not recuse himself, I am now of the opinion that this Court cabal will use every means possible to assist Trump in returning to power.

That includes slow-walking this case, and ultimately issuing an opinion that will allow him to engage in as much abuse of the system as is possible. It began in this case by asking and answering a question not before them which is intended to create as broad a path as possible. They intend to muddy the waters, as they are already doing.

I had thought that they were going to use this case as a vehicle to narrow the issue, but I now think it is far more nefarious than that. I think they are going to use it to spike all of the current prosecutions. I think they're going to start with issuing a decision to overturn the Jan 6 conviction in Fischer v. United States. I think they are going to use that case to overturn all of the 18 U.S. Code § 1512(c)(2) convictions for "obstructing an official proceeding" by narrowing the scope of the law to "investigations".

Then, in this case, they will expand the "outer perimeter" of "official action" to include Trump's behavior between the election and Jan 6. But - only of he wins.

I think it is now time to acknowledge that the "conservative"/revanchist cabal thinks it is time to strike. They are going to use that majority to eliminate all threats to Trump. They are fully on board with the fascist takeover. Moreover, it doesn't matter if Trump loses anyway, because they will use their power to block any Biden (or other Democratic) administration's effort to prosecute Trump or his supporters.

The coup is over. Democracy lost.

I'll be ecstatic to be proved wrong.
 


You may be right that the USSC will keep him out of jail but you and I and voters everywhere can keep him out of office.

If the court overturns Fischer, would they also want to do the same as the phrase 'decision to strike the law down'? Is there a claim that something about the law is unconstitutional?
 
Rather than strike the law down directly, they will follow the path they have in several other arenas - they will "interpret it out of existence". They will narrow its scope to meaninglessness. I genuinely believe that they are intending to "interpret" 18 U.S. Code § 1512(c)(2) in such a way that none of the insurrectionists - including Trump - can be charged under that statute.

They could say that "official proceeding" only included investigations, and that Congress' actions on Jan 6 were not "investigatory in nature", therefore the statute is inapplicable. This, despite the explicit definition of 18 U.S. Code § 1515:
(a)As used in sections 1512 and 1513 of this title and in this section—
(1)the term “official proceeding” means—
(A) a proceeding before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a judge of the United States Tax Court, a special trial judge of the Tax Court, a judge of the United States Court of Federal Claims, or a Federal grand jury;
(B) a proceeding before the Congress;

Or they could adopt Judge Nichols' (a Trump-appointed Judge) interpretation of 18 U.S.C. § 1512(c)(2), which provides:
He is the only one on the DC bench to have interpreted the statute narrowly - indeed, even more narrowly - asserting that "The Court therefore concludes that § 1512(c)(2) must be interpreted as limited by subsection (c)(1), and thus requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding." It's a ridiculous interpretation of the language, but the one the Judge relied upon.

My concern, frankly, is the majority's penchant for expounding on ridiculous interpretations of statutes.
 
Wow. I didn't realize this until reading your posts. The clarification is much appreciated.
 
soap box said:
You may be right that the USSC will keep him out of jail but you and I and voters everywhere can keep him out of office.
Click to expand...
I think it is vital to the survival of democracy - not just in the United States, but around the world - that Trump be relegated to embarrassing history. But, I think mortal damage had already been done.
soap box said:
If the court overturns Fischer, would they also want to do the same as the phrase 'decision to strike the law down'? Is there a claim that something about the law is unconstitutional?
Click to expand...
Tonight, after having reread the Trump v. Anderson opinions - and hearing that they have put off the immunity argument until the bitter end of the term - I am in a funk. I'm more convinced than ever that the SCOTUS cabal are actively protecting Trump from prosecution. Talk about election interference...
 
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