Posted on 04/25/2024 10:29:40 PM PDT by SeekAndFind
The Supreme Court seemed skeptical on April 25 of former President Donald Trump’s claim that he should receive absolute criminal immunity, but it appeared to be open to allowing some level of immunity for presidents.
Conservative justices seemed poised to remand the case back to the district court in Washington with instructions on what constitutes official and private acts for further fact-finding proceedings. This would further delay President Trump’s trial in Washington and possibly other proceedings in Georgia, Florida, and New York, handing him a strategic win as he seeks to hold up cases until after the November presidential election.
Attorney D. John Sauer argued for President Trump, and former Deputy Solicitor General Michael Dreeben argued for Special Counsel Jack Smith. The case stems from President Trump’s attempt to dismiss Mr. Smith’s indictment related to his activities on and leading up to Jan. 6, 2021.
Justice Clarence Thomas kicked off questions by asking Mr. Sauer to pinpoint where in the Constitution he derives his concept of immunity. Mr. Sauer pointed to the executive vesting clause in Article II, which vests executive power in the president.
The justices spent much time wrestling with what constitutes an official act for which presidents should receive immunity. Justice Ketanji Brown Jackson, for example, wondered whether an act could be considered immunity if the president were acting in pursuit of private gain. It was her understanding, she said, that prior presidents understood they were vulnerable to potential prosecution.
Justice Jackson also asked why former President Gerald Ford would need to pardon former President Richard Nixon if he enjoyed immunity. Mr. Sauer responded that some of President Nixon’s conduct occurred in his personal capacity.
In defending his broad scope of immunity, Mr. Sauer pointed to Mississippi v. Johnson and Marbury v. Madison. Presidential immunity isn’t explicitly mentioned in the Constitution and therefore often provokes debate about what the founders intended. Justice Elena Kagan and Mr. Sauer sparred over the historical intent for presidential power, with the former noting that the founders were opposing a monarch at the time and didn’t include an immunity clause in the Constitution.
Justice Sonia Sotomayor told Mr. Sauer that there are some things “so fundamentally evil” that they have to be addressed. She further asked whether the president could order the military to assassinate someone.
She told Mr. Dreeben that “it’s hard to imagine” that a president could faithfully execute the laws while violating them.
A similar hypothetical came from Judge Florence Pan in the U.S. Court of Appeals for the District of Columbia Circuit. She specifically asked about an assassination by SEAL Team Six—something Justice Samuel Alito suggested was not plausibly legal. He also cautioned against “slander[ing]” the military unit, saying that it had to disobey unlawful orders.
Mr. Sauer said it could be an official act and asserted that inquiry into a president’s intent was inappropriate for determining immunity. He added that the indictment in question cut to the heart of conduct that should be covered by immunity.
Justice Kagan was also critical, suggesting that Mr. Sauer’s argument went way “beyond” what the Justice Department’s Office of Legal Counsel had advanced. At one point, she asked about whether the president was immune from prosecution for selling nuclear secrets to a foreign power or using the military to stage a coup. Mr. Sauer responded that allegations of criminal wrongdoing must first go through congressional impeachment and conviction.
Justice Amy Coney Barrett seemed skeptical of this point, noting that other government officials—such as the nine justices—are similarly subject to impeachment. She also wondered about the possibility that criminal conduct wouldn’t be discovered until after the president left office, raising the prospect that impeachment and conviction wouldn’t occur. According to Mr. Sauer, the founders assumed that risk and the nation can’t right every wrong with its system of separation of powers.
Justice Jackson wondered why the president would be able to violate the law through his official acts while other officials had to follow the law. She said that “lots of people” have to make life-and-death decisions. She voiced concerns that “the most powerful person in the world” could act without the threat of prosecution. The incentives of absolute immunity, she suggested, could turn the presidency into “the seat of criminal activity” in the country.
Justice Brett Kavanaugh, generally seen as a proponent of executive power, seemed to defend Mr. Sauer’s position by suggesting that he wasn’t trying to place the president above the law but rather was trying to distinguish between official and unofficial acts. He also said he worried that a charge in Mr. Smith’s indictment—conspiracy to defraud the United States—could be applied in a broad fashion.
Speaking with Justice Kavanaugh, Mr. Sauer asserted that a statute used to charge a president must contain an explicit provision mentioning his office.
Justice Alito asked whether the “robust” form of immunity Mr. Sauer advocated was “necessary.” He suggested a standard by which courts considered the plausibility of justifications for the president’s actions—something Mr. Sauer also criticized for wading into presidents’ intents.
Both Justices Alito and Sotomayor previewed a potential standard by leveling questions about whether reasonableness or plausibility should govern the evaluation of a president’s actions. Justice Sotomayor told Mr. Sauer that plausibility is generally applied in cases of qualified immunity, which law enforcement typically enjoys.
Justice Barrett homed in on whether Mr. Sauer believed private acts were exempt from immunity. He said he did but suggested the court could remand the case for further consideration of how to view the specific acts. Chief Justice John Roberts wondered about creating a “one-legged stool” by expunging official acts from the indictment. “How does that go forward?” he asked Mr. Sauer.
In exchanges with Justices Barrett and Kagan, he specified which indicted acts he thought were official. For example, he defended communicating with state officials about the election as official.
Mr. Dreeben suggested that although presidents don’t enjoy immunity for official acts, they could raise Article II defenses while facing prosecution. Justice Thomas asked him why prior criminal prosecutions hadn’t taken place against presidents. Mr. Dreeben claimed in response that crimes weren’t involved in previous acts. Justice Alito worried that Mr. Dreeben’s view of immunity was “diluted.” He also seemed frustrated with Mr. Dreeben’s position, telling him that he essentially believed presidents have a form of special protection—namely that statutes applicable to everyone must be interpreted differently when applied to them. Mr. Dreeben agreed, arguing that courts followed a general principle of construing statutes to avoid serious constitutional questions.
The justices decided to tackle a narrower question: “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 District of Columbia Circuit and District Judge Tanya Chutkan rejected that argument, instead claiming that presidents must face prosecution for alleged criminal wrongdoing.
Chief Justice Roberts said he was concerned about the lower court’s holding, which both he and Mr. Dreeben suggested was tautological. He also said he worried about “how easy” it would be for prosecutors to bring a case through a grand jury.
Mr. Dreeben also defended his position, saying that it wouldn’t allow politically driven prosecutions given that the Constitution precludes that type of case. The “vast majority” of Justice Department prosecutors were ethical, Justice Alito said. However, he told Mr. Dreeben that not all were like that.
Experts have speculated to The Epoch Times that the Supreme Court will likely broaden the scope of presidential immunity to include criminal liability but to a more limited extent than what President Trump has requested. If the justices took this course, they could remand the case to Judge Chutkan for further review and refinement of the case.
The case is expected to have far-reaching implications for the presidency and the nation’s separation of powers.
“It may be the most read opinion in the history of this country,” criminal defense attorney Keith Johnson told The Epoch Times.
“It will be the kind of thing that students will be talking about for decades to come.”
The most recent time the Supreme Court issued a major ruling on presidential immunity was in 1973, in Nixon v. Fitzgerald. The court ruled that presidents enjoyed absolute immunity from civil liability for actions that fell within the outer perimeter of their official duties.
The outcome of this appeal could delay lower court proceedings in President Trump’s Washington trial and his cases in Georgia and Florida. It’s unlikely that the Supreme Court, which is expected to release a decision in June, will write an opinion that delays his ongoing criminal “hush money” trial in New York.
Justice Neil Gorsuch asked Mr. Sauer about presidents’ potentially pardoning themselves, something that has been raised as a prospect in President Trump’s cases. Mr. Sauer told him that the law is unclear on that issue.
Delay till Trump is inaugurated, then rule a former president can be charged. That way all the previous ones can be arrested, but since Trump is the incumbent he can’t, at least for 4 years.
Abraham Lincoln committed a “fundamentally evil” act described by Sotomayor.
They should order ALL trials HALTED until after the election. there would be mass suicides on the left. And $DJT stock would explode, provoking yet more suicides.
I want to see some judges and DAs heads roll on the back
end of this political judicial schlock!
Wasn't Osama Bin Laden assassinated by a SEAL Team?
"Crafting a New Standard"
The leftists want the U.S. Supreme Court to establish a set of rules - a process - by which, the Department of Justice shall exercise Chief Executive administrative power OVER the President of the U.S.A.
Mike Davis said that’s going to happen.
Re my reply 7, above:
"Crafting a New Standard"
The leftists want the U.S. Supreme Court to establish a set of rules - a process - by which, the Department of Justice shall exercise Chief Executive administrative power OVER the President of the U.S.A.
The left wants the U.S. Supreme Court to establish a "Two State Solution."
So the left can use The Dept. of Justice Administrative State to "run the country" and "do the nation's business" when there is not a "Democrat in the White House."
“May delay trial until after the election”.
That is what has them so concerned. After the election there will be no need for a trial.
Here is a piece from Amy Howe at Scotusblog:
“Supreme Court appears likely to side with Trump on some presidential immunity”
Common law courts abhor decisions that are black and white. They decide cases on a case by case basis which keeps things ambiguous, and amplifies the power of the courts. The decision will declare that for some things Presidents have immunity, but not all, and the courts below will start again to decide the matter.
The power to challenge the "behavior" of the President belongs to Congress not the courts.
We have a system to try a President for bad behavior..It’s called Congress: Impeachment by the House and Tried by the Senate. There should be no side trials.
So did Obama. Killing American citizens with drones overseas
PDJT was acting both as President and candidate on 1/6. Under the 14th Amendment’s Equal Protection provision and his oath of office wherein he swears to faithfully execute the laws of the United States as chief executive. Was he to ignore multiple reports around the country of fraudulent voting? What if he wasn’t standing for re-election but asked his second in command Vice President to ask disputed states to re-examine their results? Would that be illegal? Democrats are trying to convince everyone that the Federal Government has no say-so yet the Constitution merely gives the States responsibility for “administration” of elections. Election Security is under the responsibility of Homeland Security and the DOJ, both Executive Branch and Presidential responsibility.
I am surprised Trump’s lawyer did not argue that if the president does not enjoy immunity from prosecution by a DA for his official acts as president, then the proper way to bring such a case was impeachment by the House of Representatives and trial by the Senate. After all, in impeaching former President Trump who was by then a private citizen as the Democrats did, this set a precedent that the House and Senate sure thought this was where such a case could be brought.
Over and above that even, they should have argued that not only was the impeachment process set forth in the constitution THE proper way to bring any charges against a former president for his official acts as president, but such charges were already brought against President Trump for the Jan 6 BS and he was acquitted by the Senate. Therefore bringing a case yet again in district court violates the 5th amendment provision against double jeopardy even if the SCOTUS held that the law courts rather than the impeachment process was the place to try this.....and if they hold thusly, aren’t they saying the 2nd impeachment the Democrats did was pure and utter BS?
He sure did. So did Obama when he had an American citizen and his nephew droned without due process. Seems to me that if district courts are the place to try this, then a DA needs to charge Barak Hussein Obama for the U.S. government's killings of U.S. citizens Anwar Al-Aulaqi, Samir Khan, and 16-year-old Abdulrahman Al-Aulaqi by drone in Yemen far from a conflict zone and without due process of law.
Exactly the argument I would make. Its not that the president is immune. Its that the place to charge him is the House and Senate as set forth in the US Constitution....and don't tell me that doesn't apply to former presidents because the Democrats ALREADY DID SO with their dog and pony show second impeachment of then private citizen Trump for the Jan 6 mostly peaceful protest.
If the SCOTUS does not rule that the House and Senate is the place to impeach and try a president or former president, then it will be open season for every partisan DA in a partisan district to bring criminal charges against a former president of the opposite political party. For example, a DA in a deeply red district could bring criminal charges against former president Obama for killing American citizens away from a conflict zone with no due process of law.......Does the SCOTUS want to usher in a series of tit for tat prosecutions by highly partisan political hacks of every former president? If they do not hold that the House and Senate is the place to do so then that is exactly wha they are going to get.
I sensed we had a Trump rally inside the Supreme Court yesterday. All the questions by the justices seemed to point in the direction of supporting the president‘s right to immunity.
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