"President Trump is still liable for everything he did while he was in office. We have a criminal justice system in this country. . . and former presidents are not immune."
Senator Mitch McConnell, on the Senate floor, explaining that even though he didn't vote to convict Trump after his impeachment, that the law would judge him.
Yeah, well, maybe presidents are immune after all.
The Supreme Court heard the Trump lawyers argue that U.S. presidents are immune from prosecution for official acts. And nearly everything the president does is an "official act," they argued. That includes encouraging states to send fake elector ballots and organizing a coup d' état to attempt to stay in office.
We know something now we didn't know four years ago. We now know that the way to stop a political crime (like an attempted coup d' état) is by a political process -- impeachment -- not the legal process. The legal process doesn't work for political crimes. And if a president has the support of over one third of the U.S. Senate, then the president can do anything he wants. That includes shooting someone on Fifth Avenue or having Seal Team Six kill his political opponent. The president could say he was doing that as part of his job. If the president openly took a million-dollar bribe in exchange for appointing someone an ambassador, that, too, would be done as part of an official act. Again, the remedy is impeachment, not prosecution.
And a senator in an impeachment trial, when looking for a "high crime and misdemeanor" to justify conviction, would observe that for a president essentially nothing is a crime. That means he is innocent of that high crime and misdemeanor, so he cannot be convicted. Catch 22.
I asked a close observer of the U.S. Supreme Court what he thought. Conde Cox is a commercial and business disputes lawyer. He has been a member of the bar of the U.S. Supreme Court for 29 years. That entitles him to the privilege of viewing Supreme Court hearings in person, including most recently the Colorado ballot-access case. He sent me this quick observation. He carries out his national bankruptcy practice from Ashland, Oregon.
Comment by Conde Cox
I did not attend in person today in Washington, D.C. the Supreme Court's oral argument in the presidential immunity case.
I did listen to the live audio. It is much more difficult to assess the posture of the Supreme Court by listening to oral argument by audio than it is to assess the likely outcome via in-person attendance at the oral argument.
That said, my takeaway is that this case appears most definitely to involve a split decision. That is unlike my prior (correct) prediction of a nine-zero vote in the Colorado ballot disqualification case. I predict a six-three decision for a remand to the District Court to hold many, many hearings over what constitutes “official acts” that would be subject to immunity from prosecution. I also predict that the majority of probably six -- or perhaps five, with Justice Coney Barrett bolting from the other conservatives -- will adopt and articulate a new “test” for what constitutes an “official presidential act.” Creating this test will require an overwhelming amount of pretrial litigation before the case against Trump can go to trial.
The likely litigation over coming months and years will include a fight over whether an official act might include Trump’s aiding and abetting the January 6 insurrection. As a practical matter this will allow him to avoid all accountability for his attempt to prevent the Electoral College votes from being counted on January 6, 2021. The waters over presidential immunity will have been so muddied by this court that it will take forever to learn whether Trump can hide behind the cloak of “presidential official acts.”
If the Court rules as I predict, delaying interminably a trial on election interference, in 50 years people will see this as the 21st Century’s equivalent to the 19th Century’s Dred Scott decision. That case ignominiously confirmed the right of a Southern slave owner to reclaim his “property” after the slave had escaped to a free state, and declared that Black people of whatever status were not U.S. citizens and had no right to access the federal courts. The Dred Scott decision has come to be viewed as flatly wrong, and a precipitating cause of Civil War. If Chief Justice Roberts goes with the other conservatives and if this is a 5-4 or 6-3 decision favoring Trump, then “The Roberts Court” will go down in history as one of the most out-of-step and hurtful Supreme Courts in our nation’s history.
12 comments:
Whatever the Supreme Court decides in this case, they have insured that Trump will not be held accountable for his coup attempt until well after the election, giving him the opportunity to simply pardon himself along with all the “patriots” who assaulted police and our Capitol building if he wins. According to FiveThirtyEight, although President Biden's approval rating is low, it's currently higher than the Supreme Court's. Cases like this make it easy to see why. Maybe Biden should put Trump's 'Seal Team Six' argument to the test.
What I thought was fascinating was the argument that there were checks to keep military leaders from following an unlawful order. That THEY could be held criminally liable for breaking the law- even at the Presidents order. But if they did follow order and were charged (assuming there was someone to charge them) then the omnipotent President could decide to not press charges or pardon them anyway. One of the justices suggested the reason the constitution is silent on presidential immunity is because the writers had just finished a war to end monarchical rule. They would not fathom this debate.
60 years ago I was inspired to become a lawyer by decisions in the federal courts which recognized the injustice of racial segregation. That inspiration continued as courts spelled out how justice required equal treatment for those other than the rich and powerful.
My 50 year legal career provided me with the opportunity to represent people seeking their civil rights. It also gave me the chance to be a trial court judge for 16 years wherein I felt guided by the concept of justice.
Now in retirement I find a majority of our Supreme Court does not believe in the idea of justice, but rather sees their job to be a political one.
Were the ideas about justice just a farce?
Apparently the Supreme Court is blind to their role in upholding the Constitution.
From my reading, it would appear that the court's questioning and discussion is leading in the direction of our President as monarch.
I especially liked the two-headed dog… 😱
Maybe Richard Nixon should not have resigned after all. Wasn't Bill Clinton convicted of perjury? What about the 50 governors? A governor is the head of the executive branch at the state level.
There is much to consider regarding presidential immunity. Please look up Amwar Nasser Abdulla al-Awlaki, Abdulrahim Anwar al-Awlaki (16 years old), and Nora al-Awlaki (a little girl). All were killed, at different times. President Obama is said to be directly responsible for the killing of the first of these. Maybe it was just an accident that drone strikes in furtherance of presidential objectives killed the other two. All were American citizens. Arguably, none had due process of law. I suppose this is where presidential immunity comes in. I think it's good that the Supreme Court is tackling this issue. Presidents do kill people. The question is what to do about that. It's not just about January 6, 2021, classified documents, Michael Cohen, Karen McDougal, Stormy Daniels, or the 2020 presidential vote in Georgia, although these are important matters.
I don’t think there is any problem with an American president ordering the killing of an American citizen who is engaged in terrorist violence against America or its allies.
Pardon me if I gag at the thought of of King Donald the First. The entertainment comes as his Toadies and abettors ( here's looking at you, John Taney Roberts) find themselves being guided up the steps of the Guillotine.
I find it immeasurably saddening that you are being placed in a position of questioning your entire Career.
So you're saying that Biden should have seal team six kill Trump immediately? Because I hate to admit it, but I kind of agree...
Woke, I'd rather see Seal Team Six do a Dark Rendition of El Caudillo de Mar a Lardo to Gitmo, and held incommunicado , attending his trial by ZOOM Conference.
Post a Comment