Below is my column in the New York Post on yesterday’s oral arguments on presidential immunity. As expected, with the exception of the three liberal justices, the Court appears to be struggling to find a more nuanced approach that would avoid the extreme positions of both parties. Rather than take a header off either cliff, the justices seem interested in a controlled descent into the depths of Article II.
Here is the column:
Writer Ray Bradbury once said, “Living at risk is jumping off the cliff and building your wings on the way down.”
In Thursday’s case before the Supreme Court on the immunity of former President Donald Trump, nine justices appear to be feverishly working with feathers and glue on a plunge into a constitutional abyss.
It has been almost 50 years since the high court ruled presidents have absolute immunity from civil lawsuits in Nixon v. Fitzgerald.
The court held ex-President Richard Nixon had such immunity for acts taken “within the ‘outer perimeter’ of his official responsibility.”
Yet in 1974’s United States v. Nixon, the court ruled a president is not immune from a criminal subpoena. Nixon was forced to comply with a subpoena for his White House tapes in the Watergate scandal from special counsel Leon Jaworski.
Since then, the court has avoided any significant ruling on the extension of immunity to a criminal case — until now.
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.
The first cliff is made obvious by the lower-court opinion. While the media have largely focused on extreme examples of president-ordered assassinations and coups, the justices are clearly as concerned with the sweeping implications of the DC Circuit opinion.
Chief Justice John Roberts noted the DC Circuit failed to make any “focused” analysis of the underlying acts, instead offering little more than a judicial shrug.
Roberts read its statement that “a former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has acted in defiance of the laws” and noted it sounds like “a former president can be prosecuted because he is being prosecuted.”
The other cliff is more than obvious from the other proceedings occuring as these arguments were made. Trump’s best attorney proved to be Manhattan District Attorney Alvin Bragg.
If the justices want insight into the implications of denying any immunity, they just need to look north to New York City.
The ongoing prosecution of Trump is legally absurd but has resulted in the leading presidential candidate not only being gagged but prevented from campaigning.
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 special counsel insists, for example, Trump was acting for his personal interest in challenging certification and raising electoral fraud since he was the other candidate.
But what if he wasn’t on the ballot — would it have been an official function to raise such concerns for other candidates?
When pressed on the line between official and nonofficial conduct, the special counsel just dismissed such concerns and said Trump was clearly acting as an office-seeker not an officeholder.
Likewise, the special counsel argued the protection for presidents must rest with the good motivations and judgment of prosecutors.
It was effectively a “Trust us, we’re the government” assurance. Justice Samuel Alito and others questioned whether such reliance is well placed after decades of prosecutors’ proven abuses.
Finally, if there is no immunity, could President Barack Obama be prosecuted for ordering the killing of a citizen by drone attack and then killing his son in a second drone attack?
The government insisted there is an exception for such acts from the murder statute.
In the end, neither party offers a particularly inviting path. No immunity or complete immunity each holds obvious dangers.
I have long opposed sweeping arguments of immunity from criminal charges for presidents. The devil is in the details, and many justices are struggling with how to define official versus nonofficial conduct.
The line-drawing proved maddening for the justices in the oral argument. The most they could say is similar to the story of the man who jumped off a building. As he passes an office window halfway down, another man calls out to ask how he’s doing. The jumper responds, “So far so good.”
As the justices work on a new set of legal wings, anything is possible as the nation waits for the court to hit ground zero in the middle of the 2024 presidential election.
The left has been out to destroy the presidency since John F. Kennedy, then LBJ — they tried to disgrace him and he didn’t run the second time, then they humiliated Clinton with Monica, and oh yes – trapped Nixon in a lie which was a set up. They have not let up with political movements since the 60’s with one thing after another; can’t leave us alone to enjoy life. This all represents evil and nothing less than envy of others’ happiness.
Rather tha criminal prosecution the constitution provides a method to stop illegal actions by a president. . Impeachment is there so that it is up to congress as a whole tp try and convict a president for ‘illegal’ activities, and that is why presidential immunity from any agency other than congress should be all encompassing. The super majority requirement to convict is to prevent politicized prosecution and persecution.
I understood that the founders wanted a strong presidency because of the horrors of the British parliament.
I hate to be skeptical, but East coast conservative is like a southern moderate to liberal lawyer…They embrace consensus” with your feelings” groupthink…They will make a pressured cowardly opinion, and try to please both sides like betamale decisionmakers. I pray I am wrong but they allowed lockdowns, forced poison( shots), open borders , so not so sure life, liberty etc means a lot to the compromised…
What if Trump had not been a candidate and questioned the election? Joe Biden could have questioned the election himself after inauguration and requested a complete audit of any irregularities to put the question to rest. He didn’t. Wasn’t it Kentucky that just cleaned their voter rolls and found 40 000 people deceased, moved, felons some of whom voted in 2020.
I see no problem with the deceased, out-of-staters, and felons voting. They are entitled to participate in our democratic system just as much as anyone else. As long as they vote Democrat, their right to vote should be guaranteed by our Constitution.
We must respect the wishes of Abraham Linsoln when he said, “Democracy is the government of the people, by the people, for the people.” Take note that President Lincoln never said the people had to be alive.
Wasn’t it Kentucky that just cleaned their voter rolls and found 40 000 people deceased, moved, felons some of whom voted in 2020.
Were would I find the fact supporting this statement?
The time has come to dispense with the legal charade of prosecuting Trumpa and finding him civially liable. We can no longer depend on the legal process, even when conducted with judges and venues favorable to our cause. The time has no come when Trump and his key advisors and his attornies should be locked up as national security risks.
While as a graduate of Harvard Law School and a member of the bar for a decade it pains me greately to say this, we must all recognize that our judicial system can no longer be counted on when it comes to Donald Trump. He cannot be permitted to slip through the legal cracks. Trump and his key advisors and his attornies must be imprisoned now to save our democracy and protect our freedoms not just now, but in the future. In your heart, you know it’s the right thing to do.
“We can no longer depend on the legal process … Trump and his key advisors and his attornies must be imprisoned now to save our democracy and protect our freedoms” — And you practice law? To save our democracy and protect our freedoms I urge you to take up plumbing – no offense to plumbers intended.
If Trump were not a political candidate, and there were any certainty that he would never be running for any office, not a single one of the indictments and prosecutions would have occurred. SCOTUS needs to somehow weave that fact scenario into their decision because these political prosecutions are guaranteed to continue with future Presidents and ex-Presidents.
You’re too long winded.
Why do people complain about others being “too long winded”? How come you never hear people complain about someone being too brief and concise?
What’s wrong with impeachment which features the President being tried by a ‘jury of his peers’. If he/she is not impeached, he cannot be hauled up in front of criminal or civic courts. Period. Election to President has its privileges and one of them is immunity from prosecution by lower courts which of course can be motivated by lower concerns including bribery, blackmail, partisanship and such. The Framers wanted to avoid making a new King. Well, we have elections every four years, we have a two-term limit and we have impeachment. That’s enough. The ability to try them retroactively after they leave office for offences alleged either before, during or after their Presidency must be curtailed. Otherwise what is happening now will only continue, and no doubt worsen.
America has lost the ability to take care of problems quickly and efficiently. Everything gets mired in double and triple speak. It’s because the nation has lost its moral compass, the culture doesn’t hold together as one, so decline and decadence is now inevitable. Pity. It was a good experiment, but it seems to have failed.
I would suggest that that moving away from immunity would shield Congress and the Senate from responsibility for carrying out their duties properly. Impeachment itself has been degraded terrible in recent history but it is the proper avenue for defining the shape of Presidential powers.
Great observation.
This is just another step of congress shunting off their enumerated powers so they never have to risk offending voters.
Biden is going to declare a climate emergency to enact poflicies, that are impossible for congress to legislate, because the next election would be a bloodbath for dems.
Shifting responsibility from congress to the DoJ. (non political? BS) is for the benefit of worthless congress critters.
President Trump was impeached twice, but not convicted in the Senate. If the people were upset by that, they would have voted out their elected politicians. That did not happen, so the Senate got it right.
Let’s see. Trump is being prosecuted by the DOJ in Florida for refusing to comply with an FBI subpoena, right? Special Counsel Jack Smith says: “No one is above the law”. But the DOJ itself is now giving the middle finger to Congress, where the House has subpoened from the DOJ the audio interview of Biden by Hur. The DOJ now says: “Biden’s Justice Department replied Thursday to Comer and Jordan by refusing to hand over the audio, citing a lack of “legitimate congressional need” for it.” https://www.breitbart.com/politics/2024/04/26/merrick-garland-defies-final-warning-comply-biden-audio-subpoena-face-contempt/ So, there you have it. The DOJ gets to decide for itself what Congress “legitimately” needs, whereas Trump, the former President, must meekly submit. This is American law, 2024.
Supreme Court could kick the can back to the DC Circuit with some instructions:
* DC Circuit charged with developing some sideboards defining what is an official action versus personal action of a President.
My suggestions would be that
1) Official act would be anything undertaken by a President in his or her view that serves the best interest of the country. If he or she says a disputed act was accomplished in the best interests of the country, matter is resolved, no other person or official should have the power to over-ride the President’s declaration. Should such an individual have such after-the-fact power to second-guess the President, the President would be the second-most powerful individual in the country. Not a good prospect.
2) A non-official act might be to finagle the prosecution of a political opponent, to physically abuse the First Lady or any other individual, to go for a joy-ride while drunk and kill a pedestrian, or to rob a bank. The list could be encyclopedic, but these examples are simple and fairly obviously non-official acts.
3) It seems the Constitution is quite clear – Congress is the sole arbiter of proper conduct by a President. If he or she fails to conduct themselves appropriately, the House of Representatives acts as the prosecutor, and the Senate serves as the jury in an Impeachment based on alleged high crimes or misdemeanors. While no definitions are offered in the Constitution clarifying what is or what is not an impeachable action (or failure to act), the prosecution is not subject to a sole individual or even a relatively small group of individuals, but is the duty of a multitude of bi-partisan elected Representatives. the jury, the Senate, is the closest thing to a jury of the President’s peers that is found in this Republic. If a President is impeached by the House, and convicted by the Senate, it would appear appropriate for further prosecution to a specific act or actions related to the mis-deeds upon which the impeachment was based.
If the DC Circuit fails to satisfactorily clarify the parameters within which a Presidential act is immune from prosecution, the Supreme Court will get a repeat opportunity to address the Presidential Immunity matter, as it is most likely an appeal will kick the can back upstairs.
I’m not an attorney, just a boy from out West who grew up and still has a semi-functioning brain. If a President has no immunity, his or her power will be zero, and some country-hick district attorney will serve to kill this county’s ability to function as intended. The question then becomes, what are reasonable limits on a President’s immunity for official acts, which the DC Circuit and/or the Supreme Court must determine. Unfortunately, the final outcome may not be known for months or years as this quandary works its way through the system.
Meanwhile, I would suggest that the Supreme Court impose a stay on all litigation presently underway which prevents one of the principal candidates for President in the pending November 2024 election from campaigning effectively. If the multiple indictments of President Trump are valid, no harm will result from a six or eight month delay in proceeding.
My layman’s hunch is that such delays will prompt all present indictments involving President Trump to mysteriously and quietly fade away, never to be seen in court again, proving the reality that justice is not the prime mover here, but politics is the entire rationale behind this so-called legal circus.
Respectfully,
MontanaJer
MontanaJer, SCOTUS–one branch of government–shouldn’t rule on what presidents–another branch of government–can and cannot do, for the same reason a president should not be able to impose rules on the Congress, and Congress should not be able to impose its will on the judiciary.
A much better solution would be for SCOTUS to rule that they have no authority under the constitution to decide what presidential conduct is and is not permitted. That decision, under the constitution, is reserved for trial in a court of impeachment, where the decision is made by representatives of the People who are answerable to the People.
In that way SCOTUS–a body unaccountable to the People–need not set any rules of conduct, need not impose any judgments nor prior restraints on the executive, yet the executive is still answerable.
I highly recommend Federalists #65 and #66 (Alexander Hamilton), which make a compelling case that impeachment by the House and trial are the correct venue and method of dealing with misconduct by the executive.
What you are saying is that the Federal courts (and state courts?) could not hear any criminal case against a former President, even for manifestly unofficial acts, in the absence of impeachment and conviction. Not even Trump’s counsel argues for this, and the Court will not hold this.
Instead, I think the Court will hold that at least some official acts are immune and remand to the District Court to decide which, if any, allegations in the indictment would need to be excluded.
The challenge for the Court is how to define official acts that benefit from immunity and what process the District Court should use to reach its decision. I suspect they will draw on the D.C. Circuit’s decision in Blasingame to do this. That decision adopted an objective test to distinguish between actions by Trump in his capacity as President and actions by Trump in his capacity as a candidate. The former were immune from civil suit under Fitzgerald while the latter were not.
I also think the Court will clarify that the decision on this by the District Court on remand is subject to appeal before any trial.
If that is what happens, the trial could not be held before the election. If Trump wins, it will be dropped. If Trump loses, Biden might elect to drop it, or grant a pardon, in the interest of “unity.”
I agree. Trump’s second impeachment trial was already concluded and he was not convicted. Therefore, any indictment pertaining to J6 would seem to be double-jeopardy. I’m stunned that none of the legal eagles have noted this absurdity.
Over many years, I have observed the courts making new law on the fly without good cause, and clearly in violation of the constitution. We don’t need any more new law or new precedents, perse. We merely need the court to clarify what limits may exist to presidential immunity. Let’s be clear. The goal is to stomp on Donald Trump’s grave so that there may never be another Reaganesque, trickle-down theory president ever again. It’s not SCOTUS role to decide that question. That question belongs to the people. SCOTUS is there to protect the constitution, period! This is the balance that allows the pendulum to swing freely in either direction.
This brings it all back to the question of what are the limits on Presidential Immunity.
I agree closely with MontanaJer that it comes back to what is official conduct, and what is not.
Three points are clear:
1) We clearly cannot have a president, or former president subjected to double-jeopardy, after beingvtried for impeachment
2) Nor can we have the leading candidate and pteumptive nominee from an opposing party indicted by multiple courts, saddled with gag orders, and tied up in legal process, so that he or she cannot campaign.
3) Yet we cannot have a president who murders someone while in office or after serving.
Nor can we have a president who directs government officials to tie up an opponent in legal battles in order to win an election – shall we say, to retain office. I’m not saying that the Biden Administration did this, but I’m also not saying the Biden administration did not. Perhaps that is another question for congress or for SCOTUS.
Very thoughtful, but needless
If the action is within the power of the executive branch, then nothing can be a criminal act.
Congress can impeach and convict.
Thats the end.
Right now we are playing team politics. The pendulum will do what pendulums do.
The idiots in charge have opened another can of lies and destruction.
If the potus is not impeached AND convicted thus removed, HE is immune, for life, for his time in office.
Before of after Presidency, NO.
Everyone who argues otherwise is a liar and an idiot.
That is OUR CONSTITUTION.
Everything else we have now concerning is of course the breaking of that contractual agreement, which according to lawyers is a big no no.
I expect much quick, excessive, and further destruction soon, with vigor, to be preached and delivered upon us.
Thats why SCOTUS should be a 9-0.
The country needs clarity and concision from the Court.
Ketanji & Sonia need to tune in to: The Constitution
and tune out: all the MSNBC TDS trash talk.
Most predict 5-4 or 6-3.
I predict even the libs will rise to the occasion to deliver a decisive 9-0.
We’ll see.
Well, then why not trust the Constitution. Impeach then convict. It is right there in black and white. After a president is removed then he is fair game.
They don’t want to follow the law and the rules. They want to make up lies and ridiculousness, and use their shady criminal tactics to advantage and destruction, thus reaping the whirlwind. They love it, until it touches them.
Nixon was set up and removed by the powers that be and were then. THERE IS NO DOUBT ABOUT IT. I have heard the John Dean Nixon tape, a confession to Nixon, who was entirely clueless about the Watergate break in. Nixon had zero idea and zero involvement.
Thus, the criminals made up a big SAYING THEY MINDLESSLY REPEAT TO THIS DAY.
“The cover up is worse than the crime.”
Now, note how much they cover up today, and calculate how many crimes they constantly commit.
Not good.
I’m still wondering what was Barack Obama’s role in covering up the details surrounding the “accidental” drowning of his personal chef who was about to release his new cookbook with personal stories. They shut down that investigation lickety split. Case closed. No questions. LOL
I like Professor Laurence Tribe’s succinct and balls-accurate legal analysis of what the law requires: “The law is plain and clear. A President or former President shall be grant immunity from lawsuits unless the individual is Donald J. Trump or any other person of his issue.”
This balls-acccurate legal determination means that Donald J. Trump has no immunity. And it also means that should Baron Trump, President Trump’s son, seek to become President, he too shall be presumed guilty, pending the determination of the crime.
Isn’t there a clear line? If a regular person could be prosecuted for an alleged criminal act such as tax evasion or attempted murder or armed robbery, then so can an ex-President. The President should have immunity for all other acts except those for which the President has been impeached and convicted. Yes this gives the President a lot of leeway. But drawing a line in between will lead to endless confusion and litigation. There was a reason the Founders did not put in a clause allowing arbitrary prosecution of the President.
tax evasion or attempted murder or armed robbery,
With the exception of murder, these are not Article II, constitutional powers.
Remember, Obama murdered an American Citizen, without due process.
Yes, they cannot have that now, since they are so filthy they can’t help themselves or the USA.
Their new doctrine is WE WILL NOT FOLLOW THE LAW, and we will lie and cover up till we die.
If the MSM covered Biden’s presidency objectively, without bias, as professional journalists intent on only reporting facts, his poll numbers would be in the teens. Alas, the MSM is doing nothing of the kind and yet they still cant resuscitate Joe Biden’s dreadful poll numbers. So much for the MSM influence and power of persuasion. Memo to NYT, WaPo, CNN, MSNBC, NPR: put a fork in it, youre done! 🍴🥩
Biden’s 13th-Quarter Approval Average Lowest Historically. Averages 38.7% job approval
A table showing elected presidents’ 13th quarter job approval average rating. Joe Biden’s 38.7% 13th quarter average is three points lower than any other Post-World War II elected president behind George H.W. Bush at 41.8% in 1992. All other presidents had averages of 45% or higher.
From a broader historical perspective, Biden’s most recent quarterly average ranks 277th out of 314 presidential quarters in Gallup records dating to 1945. That puts it in the bottom 12% of all presidential quarters.
https://news.gallup.com/poll/644252/biden-13th-quarter-approval-average-lowest-historically.aspx
No worries, Scorecard and Hammer are ready.
Donald J. Trump Posts From His Truth Social
@TrumpDailyPosts
LETTER TO JOE: Dear Joe, now that you’ve committed to Debate on the now dying Howard Stern Show, no less, let’s set it up right now. I’m ready to go anywhere that you are. We could do it in D.C., even pinpoint the White House, or in New York when your Radical Left Fascists are finished with ELECTION INTERFERENCE against your Political Opponent, ME. In any event, let’s get it done – The People of our Country deserve to know why you have allowed 15 Million People, many from Prisons and Mental Institutions, to invade our Country at our now very OPEN Southern Border, or why you want everybody to foolishly have, in 5 years, an All Electric Car, which won’t go far, is very expensive, and will be Made in China, or why you are allowing Energy Prices to skyrocket, our Economy to crash, and Inflation to reach levels that we have never seen before. Maybe you have a reason for this, & you’ll have a chance to talk about it, but let’s get the Debate going, the American People have the right to know!
Donald Trump Truth Social 07:29 PM EST 04/26/24
Donald J. Trump Posts From His Truth Social
@TrumpDailyPosts
Stephen Miller: “If they say there’s no immunity for official acts, the moment Joe Biden leaves office, every single red city and red state DA in the country can charge him for financial crimes related to illegal student loan bailouts, can charge him for war crimes related to deaths of service members overseas, can charge him for human trafficking, human smuggling and by the way, more election interference than you can even count.”
If justice were the goal instead of impeding the ability to run for election that would be one thing for sure, but the White House cleared trials through the prosecution to obtain their goal of trying to silence Trump and keeping him in courts and not campaigning! How is that even near fair?
This is a very good piece, thanks. What it leaves out is common sense, that much of these arguments should be obvious to an average high school civics student … if there still were such a thing, anyway. But look where that leaves us, that matter has been appealed to SCOTUS. Well, that’s one point, here’s another that deserves some play. Why might a president NOT have immunity? And I’ll tell you why, because a reasonable person would not expect a president’s own attorney general to be neutral, one MUST expect a president’s attorney general to be 10000% on the president’s side. The founders certainly saw that. And all during the coup against Trump we were told how objective and independent the attorney general should be, and Barr certainly played it that way (IOW seditiously, blindly, incompetently). THAT is all before SCOTUS right now, too.
one MUST expect a president’s attorney general to be 10000% on the president’s side.
An ethical AG would adhere to the Constitution.
The Attorney General is an at-will employee of the president, not a Constitutional officer like a Supreme Court Justice. I find the very idea that a sitting president would tolerate an AG intent on prosecuting him to be more than a little risible.
I cant read the coded words so just tell me.
Is the AG in the pocket of the President and the AG takes direct orders from the President.
Because the Biden/Obama White House repeats from rote, that the NEVER talk to Garland, let alone give direct orders. (despite the existence of letters proving all that a lie)
Who cares about the AG ? The Congress can impeach and remove.
I guess you’re saying Barr was such a traitor and liar it made Trump vulnerable now. Okay I can see that.