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Doesn't this seem insane on the face of it?

It will be interesting to see how the justices vote on this one. If they think Trump, or any POTUS, deserves absolute immunity for anything and everything...just another step towards fascism.

Yes, I know the argument is impeachment is the solution, but it's really a non-solution.

weird timing regarding from AZ and MI false elector cases on this...maybe too peripheral to trump's immunity?
anyhoo, what's the conservative on SCOTUS got to lose if further delayed/deferred ? that's the unabashed strategy.

(speaking of conservative SCOTUS, how cute was that surprise from amy at what no-viability scenarios for the fetus allow mothers to be put at critical risk? awwww ! am sure she hugged it out with bigbear clarence.)

If they think Trump, or any POTUS, deserves absolute immunity for anything and everything...just another step towards fascism. - ges

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Nobody thinks that.

The correct decision will find some middle ground. A distinction must be drawn between a serious crime and a politically motivated prosecution whereby one DA in one city can effectively shut down a presidents election campaign.

I am listening to the coverage of the hearing. I think Trump's case is toast.

Amy Coney Barret asked Trump attorney John Sauer directly, does the immunity you describe apply to personal acts of a President? Sauer answered no. She then cited numerous acts alleged in the indictments and asked him public or private. He answered private to each.

That should be case closed. Sonia Sotomayor even asked whether that means these trials should proceed and let the trial court figure out which charges to reject while continuing litigation of the others.

Overall, the tone of the discussion sounds like the conservatives jurists seem eager to find any excuse to help Trump. They're alread doing so just by taking this case, imposing a stay and injecting a delay into his case. On the other hand, they seem to be eager to find something they can hang their hat on to rid themselves of this while citing logic that won't generate more blowback on them.

Truly, a bizarre hearing on a bizarre argument that shouldn't be occupying one second of the Supreme Court's time.


WTH

Kantanji Brown Jackson just asked Sauer a great question. Words to the effect of

You seem overly concerned about the prospect of a world in which the President fears prosecution for criminal acts while in office. Can we lay an alternate concern on the table? I'm worried about a world in which a President DOESN'T fear prosecution for violations of the law while President when the role of President already has such immense power.

Sauer responded by citing the bogus premise of his core argument, that up until now, the country has operated under a presumption that the President has immunity from official acts during his term. Of course, that has NOT been the assumption of the country since US 2.0 began in 1789. That's only the fractured fairy tale version of history Trump himself thinks he learned from Roy Cohn.

Trump is toast. At least he SHOULD be.


WTH

Listening to the argument.... the implications are immense to the future of democracy.

Sounds to me as if the defense is a camel trying to wedge its nose under the tent such that they can next argue that the base issue (interfering with the lawful transfer of power via election) is a valid executive action.

Doesn't this seem insane on the face of it?

Whichever way the Court rules, the first step to ensure a sound democracy is to not vote in a person without the integrity that founding fathers assumed would be inherent in a presidential candidate. That should be the first question a voter should ask themselves, does the candidate have the integrity to lead the country.

Guard rails can be put in place to try to limit the damage if the voters make a mistake on answering the integrity question, but guard rails should not be the first line of defense.

Aussi

I am listening to the coverage of the hearing. I think Trump's case is toast.

Amy Coney Barret asked Trump attorney John Sauer directly, does the immunity you describe apply to personal acts of a President? Sauer answered no. She then cited numerous acts alleged in the indictments and asked him public or private. He answered private to each.

That's a weird response by Sauer. In the case below, Trump argued that all of the acts in the indictment were "official acts." The DC Circuit court analyzed the legal issues on that basis. Their ruling didn't distinguish between personal/private and public acts of the President. They concluded that even the officials acts of a President did not enjoy immunity.

https://www.cadc.uscourts.gov/internet/opinions.ns...

That's why I think the Court granted cert - the lower court opinion was pretty sweeping in arguing that no official acts were immune from potential criminal prosecution.

I think it's a partial win for Trump if they get a Court ruling that holds that personal acts are not immune but official/public acts might be. He can then go back and instead of demanding categorical immunity, ask for an "act by act" determination of which actions were immune, and try to knock out some charges that way.

Roberts is the swing vote in this decision, and Roberts is unhappy with the Appeals Court's protection of former Presidents. Roberts seems to want protection for some official acts, while the Appeals Court said former Presidents are the same as everyone else in the justice system.

Roberts said little during the arguments, and so it is unclear which official acts are immune. Maybe all of them, or maybe just the ones in the Constitution (pardon, veto, etc.). A President could be criminally prosecuted after an impeachment (the Constitution is clear on that).

I find Roberts' summary of the Appeals Court decision somewhat insulting (“a former president can be prosecuted because he is being prosecuted.”). The Appeals Court wording: "The separation of powers doctrine ... permits the Judiciary to oversee the federal criminal prosecution of a former President for his official acts because the fact of the prosecution means that the former President has allegedly acted in defiance of the Congress’s laws." Or in the simple language Roberts seems to prefer: A former president can be prosecuted if he breaks the law.

This reading clarifies the argument about prosecutions for offical acts. Laws restricting some official acts (pardon, veto, etc.) are unconstitutional.


=== Impeachment ===
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.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.


=== links ===
Supreme Court appears likely to side with Trump on some presidential immunity
"With four of the court’s conservative justices – Thomas, Alito, Gorsuch, and Kavanaugh – appearing to lean toward some form of immunity for Trump, the ruling may hinge on Roberts, who although relatively quiet seemed dubious about the reasoning of the D.C. Circuit’s opinion, which he summarized as saying that “a former president can be prosecuted because he is being prosecuted.” And although Dreeben stressed the “layers of protection” available to shield a former president from unwarranted prosecutions, such as the assumption that prosecutors will act in good faith and the need for a grand jury to return an indictment, Roberts asked Dreeben why the court shouldn’t send the case “back or issue an opinion saying that’s not the law?”"
https://www.scotusblog.com/2024/04/supreme-court-a...

Supreme Court Of The United States Oral Arguments
CHIEF JUSTICE ROBERTS: -- the court of appeals below, whose decision we're reviewing, said, "A former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has allegedly acted in defiance of the laws." ...
"So, if it's tautological and those are the only protections that the court of appeals below gave and that is no longer your position, you're not defending that position, why shouldn't we either send it back to the court of appeals or issue an opinion making clear that that's not the law?"
https://www.supremecourt.gov/oral_arguments/argume...

United States Court of Appeals For The District Of Columbia Circuit
"In holding that it could not enjoin the President from using his discretion, the Court nevertheless affirmed the role of the Judiciary in checking the other two branches of government: “The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance.” Mississippi, 71 U.S. at 500." ...
"The separation of powers doctrine, as expounded in Marbury and its progeny, necessarily permits the Judiciary to oversee the federal criminal prosecution of a former President for his official acts because the fact of the prosecution means that the former President has allegedly acted in defiance of the Congress’s laws. Although certain discretionary actions may be insulated from judicial review, the structure of the Constitution mandates that the President is “amenable to the laws for his conduct” and “cannot at his discretion” violate them. Marbury, 5 U.S. (1 Cranch) at 166. Here, former President Trump’s actions allegedly violated generally applicable criminal laws, meaning those acts were not properly within the scope of his lawful discretion; accordingly, Marbury and its progeny provide him no structural immunity from the charges in the Indictment."
https://www.cadc.uscourts.gov/internet/opinions.ns...

Or in the simple language Roberts seems to prefer: A former president can be prosecuted if he breaks the law.

I think the more accurate simple language version is this: A former president can be prosecuted if he is accused of breaking the law.

You don't actually have to have broken the law to be prosecuted. Some innocent people are prosecuted. Some people are prosecuted because the prosecutors think their conduct was illegal and the defendant disagrees - and some of those people are vindicated on appeal.

And because we live in a world of imperfect information (and imperfect people), there's no omniscient philosopher-King that knows with certainty before the trial whether all persons who are being accused did, or did not, break the law.

Which is why Roberts characterized the appellate court ruling the way he did. Absent immunity, the rule isn't that anyone who breaks the law can be prosecuted. The rule is that anyone who the prosecutors accuse of breaking the law can be prosecuted. Institutionally, the grand jury system provides virtually no check on prosecutors' power (hence, the "ham sandwich" aphorism).

One can argue that this is the right result - that since any citizen of the U.S. can be prosecuted based on an accusation of lawbreaking, so too should an ex-President. But the factors that led the Court to grant total immunity to civil suits for acts taken during office are also at play with criminal suits. We want the President to be constrained by the law, but we don't want the President to refrain from doing lawful acts where reasonable people could disagree on what the law actually requires.

Every modern President has been found at one time or another to have violated the law - after all, there's not a single Administration that hasn't lost a case in front of the Supreme Court. I actually don't think there's a single Administration that hasn't lost at least one case unanimously in front of the Supreme Court. And since many of those cases involve clashes/disputes over the scope of regulatory/statutory power, I don't think there's a single modern President that you couldn't draft a "conspiracy to defraud" charge and get it through a grand jury.

Which is what Roberts (and Comey Barrett) were digging into....

albaby1: ...we don't want the President to refrain from doing lawful acts where reasonable people could disagree on what the law actually requires.

Trump's attorney, Sauer, under questioning by Justice Amy Coney Barrett, conceded that the core allegations are private acts, not presidential acts.

Dreeben, for the government, also said that these private acts -- like pressuring Pence and the DOJ -- would be used for evidentiary, not criminal liability and jury instructions could make that clear.

So, let's go. This shouldn't be a months long USSC delay.

Trump's attorney, Sauer, under questioning by Justice Amy Coney Barrett, conceded that the core allegations are private acts, not presidential acts.

But not all of them. And because the lower courts didn't conduct an assessment of the individual acts, the case isn't presented in a way that puts his specific acts before the Court. The lower courts just ruled - categorically - that there is never any immunity against criminal prosecution for an ex-President, regardless of whether the acts were official or private. Since that's the question before the Court, they can either agree with that or provide a different rule that says that some "bucket" of actions are immune and others aren't - and presumably some guidance on how lower courts are to decide whether a specific act falls into which category.

It doesn't sound like the members of the Court were on the same page on what that different rule might look like, so it might take some time for them to hash that out. It does sound like there's a majority that believes that some Presidential official acts might be immune from subsequent prosecution (just like all his official acts are immune from civil suit). That would almost certainly result in the case being sent back to the lower court to conduct further proceedings to determine which (or any) of the actions that underlay the charges were immune and which were not.

So, this almost certainly will result in a months-long SCOTUS delay, and probably several more months of pre-trial proceedings on the immunity issue before the case moves on. If the Court rules that immunity is available for some Presidential actions, I think it's almost a certainty that this case doesn't get to trial before November.

Clarence Thomas hearing Trump's immunity case, when his wife Ginni was directly involved in efforts to overturn the 2020 election,
tells you everything you need to know about the Supreme Court's new code of "ethics."

"If the Court rules that immunity is available for some Presidential actions, I think it's almost a certainty that this case doesn't get to trial before November"

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Up until Biden is declared the winner, then the SC will expedite the case to an immediate conclusion, lol #sarcasm

So, let's go. This shouldn't be a months long USSC delay.

I'm sure for at least a few of the conservatives on the court, delay is exactly what they intend.

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