The Alarming Implications of Trump's Immunity Claim

The Supreme Court will decide whether former presidents can avoid criminal prosecution by avoiding impeachment and removal.

When Congress impeaches and removes a federal official, the Constitution says, "the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law." While you might think that clause means impeachment and removal do not preclude criminal prosecution, Donald Trump's lawyers say it means a former president can be prosecuted for abusing his powers only after he is impeached and removed.

That is the improbable crux of the argument that the U.S. Supreme Court will consider on Thursday in the federal case that charges Trump with illegally trying to remain in office after he lost the 2020 presidential election. If the Court accepts Trump's claim that he "enjoys absolute immunity from criminal prosecution for his official acts," it will be endorsing the proposition that presidents can escape accountability for crimes, no matter how egregious, provided they avoid conviction in the Senate based on the same conduct.

One way for a president to forestall that result is to commit crimes toward the end of his term in office. Trump, for example, was impeached for inciting the 2021 Capitol riot, but he was no longer president by the time the Senate weighed the case against him.

Many Republicans—including Majority Leader Mitch McConnell (R–Ky.), who had castigated Trump for his reckless behavior before and during the riot—argued that it was not proper for the Senate to try a former president. Explaining his vote to acquit Trump, McConnell noted that the former president could still be held civilly or criminally liable for his role in the violent assault that interrupted congressional ratification of Joe Biden's victory.

"We have a criminal justice system in this country," McConnell said. "We have civil litigation. And former presidents are not immune from being held accountable by either one."

Trump's lawyers say McConnell was wrong about that. Their argument also implies that Richard Nixon was wrong to worry that he might face criminal prosecution after resigning from office amid the Watergate scandal.

Nixon resigned after articles of impeachment were proposed but before the House voted on them. By Trump's reasoning, he was free and clear of criminal liability at that point. Yet Gerald Ford, Nixon's successor, granted him a pardon "for all offenses against the United States" he may have committed as president, and Nixon accepted that pardon.

According to Trump, a president can avoid prosecution by leaving office before the Senate can convict him or by hiding his crimes well enough that they are not discovered until after he leaves office. And since the Impeachment Judgment Clause is not limited to presidents, it would seem, so could "all civil officers of the United States," contrary to the historical practice of prosecuting former federal officials who were never impeached.

Although there is no textual basis for treating former presidents differently in this respect, Trump argues that protection of executive power demands special leniency for them. Otherwise, he warns, the threat of frivolous, politically motivated prosecutions would have a paralyzing impact on presidential decisions.

As Manhattan District Attorney Alvin Bragg's legally dubious case against Trump shows, that threat is not entirely fanciful. Yet presidents have managed to do their jobs for many years despite this risk, undermining Trump's claim that "a denial of criminal immunity would incapacitate every future President."

A federal judge and a unanimous appeals court panel already have rejected Trump's immunity claim. During oral arguments in January, D.C. Circuit Judge Florence Pan explored the implications of that claim by asking whether a president who "ordered SEAL Team Six to assassinate a political rival" but "was not impeached" could be prosecuted for that crime.

According to Trump's position, the answer was clearly no: If that hypothetical president resigned immediately after the assassination order came to light, for instance, he could literally get away with murder. When a legal argument yields results as alarming as that, there is probably something wrong with its premises.

© Copyright 2024 by Creators Syndicate Inc.

Comments

[Minadin]

I'm so much less worried by Trump changing the standards of decorum, as a bombastic idiot who likes to sound very 'strong', than I am by the people in power who wish to destroy him, who don't say much, but are clearly willing to wield the entire power of the state and the media, that this is not an issue.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Yes. Trump is a bombastic idiot in many ways, but Biden and the Deep State are far more dangerous. The extent to which they have gone out of their way to come up with two frivolous impeachments and all these ridiculous bullshit charges is breathtaking. Trump didn't slow them down much in his first four years, I doubt he'd do much better in a second term, but since he scares them so much, I hope he wins.

[Minadin]

I'd like to apologize for my run-on sentence.

[JasonT20]

I’m so much less worried by Trump changing the standards of decorum, as a bombastic idiot who likes to sound very ‘strong’...

Why aren't you worried by the efforts of Trump and his followers to cancel the certified results of the election he lost? Do you agree with him that it was stolen from him? If so, do you think that the certified results should have been cancelled because you and a large majority of Trump voters believe that it was stolen? If so, why should that be enough to change the official results of an election?

Do Stop the Steal! believers understand what they wanted to happen? They wanted partisan legislators to decide that the election results were invalid due to fraud and just put their candidate in power. No trials with rules of evidence, advocates bound by ethics to not present something as evidence that they knew to be false, judges to rule on the law that are at least supposed to be objective and unbiased, or a jury chosen randomly and questioned on their ability to be unbiased that has to come to a unanimous verdict. That makes holding elections at all seem pretty pointless, doesn't it?

[Azathoth!!]

Do Stop the Steal! believers understand what they wanted to happen? They wanted partisan legislators to decide that the election results were invalid due to fraud and just put their candidate in power.

Clearly you don't understand what people wanted to happen.

Initially, they wanted the ballots verified as valid because so much strange crap had gone on--from the fake burst pipe, to the sudden midnight surge, to the red wagon ballot deliveries, to the activists covering the windows and expelling observers.

They were denied.

Then they wanted alternate slates of electors ready in case they managed to get a hearing

They were denied.

Finally, they hoped they could get some congressmen with spines to object enough to throw the election to SCOTUS or congress because the ballots were not verifiable and so one of the other mechanisms for choosing the president could be used.

They were denied.

At no point were they demanding a coronation despite what the left would have you believe.

And they would have you believe that because they couldn't fortify the other methods --and with both it is highly likely that Biden would not be in the White House.

There was no insurrection. There were only people, crying out for truth and transparency.

[JasonT20]

Sounds like I understand fine. All those alleged issues are things that needed to be evaluated in a manner that reflected one core fact: the official results. Challenges to questionable procedures routinely occur from armies of lawyers on all sides in every election. The expectation based on recent decades is that credible allegations of serious problems get heard by canvassing boards or in court. If nothing comes out of that and the results get certified by the designated state officials (governor, Secretary of State, or other), then the burden of proof that the election was valid was met. Additional challenges would then have the burden to prove that the results were not valid.

You say that the election should have been thrown to the Supreme Court or Congress. Why? The Constitution doesn’t allow that. Once states send in their Electoral Votes, Congress only has the job of counting them. And it only does anything else if no one gets a majority. The whole idea of Congress getting to decide whether the Electoral Votes are legitimate is wrong. The few Democrats that made their purely symbolic objections in 2000, 2004, and 2016 were wrong to do that because there was zero dispute over what the states had decided and certified their Electoral Votes to be.

Likewise, there was no such dispute in 2020. Trump and his fans didn’t accept that those results were correct, but no one could claim that Arizona, Georgia, and others really certified Trump as the winner. So, again, any objections were constitutionally wrong. Trying to “pause” the counting in Congress in order to get the SC or state legislatures to change the outcome after whatever partisan hearings they might have held would have been a violation of the Constitution and every Republican that voted to object didn’t care that it was.

People weren’t crying for truth and transparency. They were crying to hang Mike Pence. They were crying that they weren’t going to let “them” take their Trumpy Bear.

You’ve just illustrated exactly why we don’t let populist politicians decide whether their party won an election.

[BigT]

The 'official' results were not official until all those processes had run their course. Or do you disagree with due process?

And a hundred people shouting to hang Pence does not an insurrection make. Barging into the Capitol bldg was, for some, breaking and entering, and trespasssing for others. Nothing more. It's not like they burnt the place down or murdered cops.

The greatest damage from the incident is what the Donkeys have done because it sets new precedents that others will be tempted to follow. Could you blame Trump after he is re-elected, from going hard after his opponents? Or the Reps from using their own lawfare tactics in the future? This is banana republic stuff the Dems have birthed. Just like Schumer changing the rules on judicial appointments, it will come back to bite them, to everyone's loss.

[JasonT20]

The ‘official’ results were not official until all those processes had run their course. Or do you disagree with due process?

Um, that is what I am saying. Due process occurred, the processes ran their course, the Electoral Votes were cast in accordance with the law and the Constitution, and the only thing left to do was the oh so difficult job of opening the envelopes and adding up the total to publicly declare what everyone already knew. Anyone that didn't believe it had already had their opportunities to challenge the results in the proper forums. There wasn't anything new to say on Jan. 6 that hadn't already been floated out there at press conferences outside of Four Seasons Landscaping and the like.

To this day, there have not been any provable allegations of fraud that have led to anyone being prosecuted as part of some grand conspiracy to steal the election from Trump. Just the usual morons here and there that try and vote in two states. No where near enough to think that the results might have been different. (If voter fraud prosecutions were 1% of how much fraud actually occurs, and that all of that fraud was in Biden's favor, other than those guys from The Villages GOP stronghold in Florida, of course, none of the states Biden won would have been because of fraud.)

This is banana republic stuff the Dems have birthed.

I keep hearing that, but I am old enough to remember 6 years of an independent counsel trying to get anything at all to stick to Bill Clinton before finally finding Monica Lewinsky. Besides, there really isn't any doubt that Trump actually did the things he is being charged with. His defense is almost entirely that a) he was President, so he is immune from prosecution, b) it wasn't a crime to pay off a porn star not to talk about her claim that he slept with her and list the payments as "legal expenses" in his business records, or c) he declassified the documents in his mind, making them personal belongings he didn't have to give back when the government subpoenaed them.

Just like Schumer changing the rules on judicial appointments...

That was Harry Reid in 2014, after Minority Leader Mitch "Grim Reaper" McConnell and the rest of the GOP Senators had been holding up a bunch of Obama's nominees that would have been confirmed if given up or down votes. Just like he would later do in order to keep a Supreme Court seat open for over a year so it could be filled by Trump instead of Obama.

[MJBinAL]

Jason,
An old says is "tis better to remain silent and thought a fool, that to speak and remove all doubt."

You should stop now.

[JasonT20]

Why should I stop? Have I said something foolish? Please enlighten me.

[Bladernr1001]

Biden got more votes than Obama by a long shot. Does that not seem even a little suspicious to you? Does to me.

What with the rampant ballot harvesting, unauthorized drop boxes and governors in key battle ground states bypassing their legislatures to enact new election law edicts (which is unconstitutional) under the guise of the pandemic (but really turned out to favor the Dems) there is plenty of reasons to suspect that the 2020 election was not aboveboard. There simply was not enough time to root it all out through the legal system.

But ok, this time the Repubs I think are onto the game and will fight fire with fire to level themselves to the new playing field.....the Repubs will ballot harvest urge early voting and make sure the counts are on the up and up (many poll watchers were barred from direct observation in 2020).

[JasonT20]

Biden got more votes than Obama by a long shot. Does that not seem even a little suspicious to you? Does to me.

Why should it? More people voted. 129.2 million voted in 2012. 136.7 million voted in 2016. 158.4 million voted in 2020. So, nearly 30 million more votes were cast in 2020 than in 2012. Is it so shocking that Biden got 15 million more than Obama did in 2012 given that fact?

...there is plenty of reasons to suspect that the 2020 election was not aboveboard.

If the results came out opposite to what you wanted, and your preferred candidate had been telling you that he could only lose by fraud for almost a year, I get how you could say that. Claiming that "massive" fraud changed the election outcome from what it should have been is an extraordinary claim. That requires more than suspicions and motivated reasoning that things weren't "aboveboard." That requires hard proof that holds up when people get prosecuted for being part of the conspiracy. Of course, if all of the state AGs, election officials, and governors, including GOP ones, were in on it or were 'compromised', then yeah. Maybe that would explain why nothing beyond the scale of individuals casting one or two fraudulent ballots was discovered and prosecuted.

[JasonT20]

But ok, this time the Repubs I think are onto the game and will fight fire with fire to level themselves to the new playing field…..the Repubs will ballot harvest urge early voting and make sure the counts are on the up and up (many poll watchers were barred from direct observation in 2020).

Fight fire with fire? Urging their supporters to use early voting and mail ballots sounds like they plan on encouraging their voters to take advantage of legal voting procedures that Republicans as well as Democrats were making available over the last 20+ years before Trump started whining about how he could only lose if Democrats cheated.

Steve Bannon is on audio saying about how Trump would claim victory on election night before all of the mail ballots had been counted.

"And Trump’s going to take advantage of it. That’s our strategy. He’s gonna declare himself a winner."

"So when you wake up Wednesday morning, it’s going to be a firestorm."

"You’re going to have antifa, crazy. The media, crazy. The courts are crazy. And Trump’s gonna be sitting there mocking, tweeting shit out: ‘You lose. I’m the winner. I’m the king.’"

Trump did exactly that, and that was enabled by his disparaging mail voting for most of 2020 so that Republicans used mail ballots in much smaller numbers than Democrats. That was not at all true prior to 2020. There was no significant partisan advantage to mail ballots before Trump started making a big deal out of it. I guess it wasn't until Trump called it ripe for fraud that Democrats even got the idea to use it as a way to cheat, since 25% of the ballots cast when Trump won in 2016 were by mail.

[Azathoth!!]

You say that the election should have been thrown to the Supreme Court or Congress. Why? The Constitution doesn’t allow that. Once states send in their Electoral Votes, Congress only has the job of counting them. And it only does anything else if no one gets a majority.

Because there was no real way to verify the 'majority' that was used to put Biden in office. There were--already at that time, too many questionable practices, too many ballots unsigned, too many cases working into the courts for a real verifiable majority to be proved.

Because that is exactly what the 'cabal' was working towards. Eliminating the ability to accurately count and verify.

You just reiterated the idiocies you're known for and ignored everything said.

As expected.

[JasonT20]

Because there was no real way to verify the ‘majority’ that was used to put Biden in office.

Only in the minds of Trump supporters. Did the documents presented to Congress on Jan. 6 have the signatures of the appropriate Electors and state officials responsible under their states' laws? No one was disputing that Gov. Ducey, for instance, had signed and certified the Biden Electors as the valid ones for Arizona. Your contention, and those of the Republicans that objected to Arizona's EVs, was that there was doubt that the results were accurate and/or legitimate. But that is not in Congress's power to decide.

I don't see how the side of the political aisle that so often talks about states' rights and the role of federalism in our republic was so eager to have Congress effectively toss out the Electoral Votes of states because they weren't satisfied that the states ran their elections cleanly. Seriously, do you want a Democratic Party majority in Congress to be able to toss the Electoral Votes for a Republican at some point in the future because they claim that there was voter suppression or something like that?

Elections are legitimate when a) everyone that is eligible to vote is allowed to vote, b) eligibility to vote is determined by neutral criteria that aren't manipulated or arbitrary, c) the procedures for counting the votes is accurate and reliable and transparent, d) there is due process for deciding disputes and all rules were determined ahead of any ballots being cast. Trump supporters don't think that c) and d) were met, but it isn't just their self-interested opinions that matter. Confidence in election legitimacy by the whole electorate is fragile. It requires that all of those components be met, and it also requires the candidates and other political leaders to only make claims that they are not being met when they can back up those claims with evidence that satisfies objective observers. If claims of fraud, voters suppression, or other 'shenanigans' that 'taint' an election are only spread and believed by the partisans that lost the election according to the official results, then it hard not to view it as just sour grapes. When the people spreading the claims continue to do so after those claims have been addressed and countered with reliable facts over and over again, then it is impossible not to view it as the conspiracy theories of zealots.

[EdG]

So in other words, they were demanding a coronation and failing to obtain one, thus resorted to insurrection. Thanks for clarifying.

[Bladernr1001]

How does one stage an insurrection without guns or any kind of coordination?

This p[remise is so absurd it is hard to laugh.

[dan1650]

The crowd that was already at the Capital taking down barriers and preparing for a riot had one idea. What Trump encouraged the people at his rally to do was a complete different scenario. It is troubling so many know what Trump said but have been twisted by the DNC and their fake news media who use the illusionary truth effect to make them believe a lie, even while they know better, that still parrot the lie. Trump urged his followers to cheer on the over 150 members of Congress that were objecting to the irregularities and debating a 10 day audit of the ballots of the states demanding it. Considering what happened at the Capital completely and utterly stopped any consideration of an audit or the objections it seems it was the best thing to happen for the Democrats and worst thing for Trump. Regardless of the delusional rants of "he tried to stay in office" or "it was an insurrection" to take over the government those spewing that garbage actually know they are lying. Period. Trump used every legal means to get an honest election and did nothing that broke the law. Anyone that claims they have no doubts about the election are either brain dead or liars. Period.

[Sam Bankman-Fried]

Meh, Bush stole the 2000 election and failed to stop 9/11 and lied us into an asinine war all the while selling us out to China. Buh Biden

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

While I think Trump's claim is morally bankrupt, the legal case just amuses me. Lawyers sure do like themselves some quibbling. Personally, I think Presidents should be as prosecutable in office as anyone; the President is not a king, not immune just because he's the Big Cheese, and the proper conclusion is that if prosecuting the President interferes with executing his duties, then by George, he's got too damned many duties!

[Social Justice is neither]

Can I introduce you to this little known term: lawfare, maybe you've heard of it. What you are proposing is criminalizing official acts, not anything outside the duties of the office.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Can I introduce you to this little known term: minarchy, maybe you've heard of it.

What I am proposing is reducing how much government can do, so there are very few official acts. Perhaps you've heard of another idea, individualism, wherein people, individuals, take responsibility for their own actions, including holding others accountable for their own actions.

[Social Justice is neither]

Oh, I thought you were serious and proposing something real, not just indulging in fantasies. Those things are nice and if you could clean sheet society and human nature would be preferable but that's just doesn't have a feasible path in the short or mid term back here on planet Earth.

[mad.casual]

At the same time, when all you've got is a NYC DA, everyone's job is to serve as a ham sandwich.

[MJBinAL]

I understand the desire to keep a President legally accountable. However, while in office, the President must be impeached. The "crimes", from the "inciting a riot" nonsense of Jan 6, to the "classified" documents were all while he was still President. (unless you imagine that the boxes were all packed later ... obviously not.)

So here we are, attempting to prosecute a president for things done, or imagined done, while in office. This is the road to Banana Republic status. A nation where the new President can lead legal warfare against his predecessor with the goal of keeping him from challenging the new administration.

We could have had an impeachment trial despite McConnell's comments, but Trump was already out of office .... so what would be the point of kicking him out of office? And of course, the impeachment would have failed anyway as the incoming GOP House would not have cooperated.

This horrible lawfare storm must stop.

[BigT]

While the so-called crimes are flimsy, the Pres should not be above the law. If he/she commits a personal crime, not an official action, then he/she should be treated as any other - AFTER leaving office.

[flag58]

The the classified documents issue was not that he didn't have authority to view and store them as president but that legally he needed to return them when he left office and refused to do so.

[Bladernr1001]

Almost all the modern era presidents have had these quibbles over docs with the NA folks. Clinton had one of his cronies actually steal docs out of the archives by sticking them down his pants. They indicted the crony but didn't pursue Clinton at all.

So this docs thing is a bunch of crap too.....or you better start indicting ALL of our recent presidents.

[EdG]

Under your scheme, if Donald had murdered Melania the night of January 19, 2021, he would've gotten away with it because he'd be out of office before impeachment could take place and he'd be immune from a criminal murder prosecution because he strangled her while in office. Does that really make sense to you?

[MJBinAL]

You are an idiot.

[Freethinksman]

That is preposterous. There is nothing in the Constitution that even suggests "complete and total immunity" might be a possibility. There is, however, based on contemporary writings of the Founders, every reason to believe that giving any person the *legal* right to act illegally. It's isn't worth the time it takes to think it through. Trump is arguing that Joe Biden should be allowed to execute him with impunity. That is so dumb it boggles the mind. But immunity was never the point. And simply by agreeing to pretend that it was something more serious, the Supreme COurt handed him the win he was looking for; the win he is *always* looking for: delay. By sitting on this fucking nonsense for 2+ months the SC has effectively pushed the likelihood of a trial past the November election. On the upside, maybe more people will be able to see how justified the Jan 6 trial and the Documents case both are. Fighting tooth and nail to delay every facets of each proceeding, and receiving those gifts of delay by Cannon and the conservative majority of the SC are why both trials are scheduled so close to the election. It isn't like there is a dearth of evidence, or of witnesses who have sworn under oath to the things he is being charged with. The only strange thing about all this clown car mumbo pocus is that it has been allowed to drag out for so goddamnned long. And while Garland could have acted more quickly in assigning Smith to the cases, every single delay since then has been at Trump's insistence. And now he bitches about both how long it's taking and how fast it's moving,depending on his audience. Jesus I can't wait to be rid of this fucking phony "successful businessman" moron.

[MatthewSlyfield]

"Personally, I think Presidents should be as prosecutable in office as anyone"
This is a problem in the current structure of our government. Prosecutors not only work for the president, their authority is entirely derivative of the President's authority.
Criminally prosecuting a sitting President is impractical to the point of being impossible.

[MatthewSlyfield]

Also the President holds the power of pardon, and that power has no limits beyond it only applies to federal offenses. There is no constitutional bar against a self pardon.

[JasonT20]

There is no constitutional bar against a self pardon.

The Constitution doesn't say that the President can't pardon himself, true. But it can certainly be argued that the nature of the act of pardoning someone is that it has to be someone else. That is, it is inherent in the meaning of the word that one person pardons another person.

[dan1650]

That is all covered in the Constitution by the Framers. After a split second consideration I still choose to trust them over the biased and delusional opinions of those who have been brain washed by the illusionary truth effect that troublingly know better but still spew what a dishonest crowd tells them.

[Commenter_XY]

The issue is not so simple.

A POTUS has to make difficult decisions, all of questionable legality. Nonetheless, the decisions must be made; the office requires it. Example: Was it legal to assassinate Soleimeni? Was it legal to assassinate Al-Alakwi (and hundreds of others)? Every single POTUS, without exception, will make decisions during their time in office that will violate some law. No man has ever left the office of POTUS with ‘clean hands’. Not one; not even Washington left the Office with clean hands.

A POTUS must be free to act, especially when they are at the apex of their Constitutional power. The check on their behavior is the power of the purse, and/or impeachment and removal from office.

It is not clear to me there is a direct Article 3 ‘check’ here, like Congress has. I think the Founders made it that way deliberately, because they understood the nature of the POTUS job (and the kinds of decisions that must be made).

[MWAocdoc]

This is incorrect. A President who is "free to act" is one of the most dangerous threats to liberty and the democratic tools needed to support individual rights imaginable. Your argument, intentionally or through ignorance, is essentially fascist in origin and nature. America was founded on the (new at the time) principle that The People constitute government and grant it only the limited and enumerated powers necessary to maintain each of their equal rights and privileges. Your assertion that the only way for the President to defend America is to give her special powers outside the law, or to erode the Constitutional limitations on official actions, is very dangerous. In fact, Trump's assertion (and your support) is the culmination of decades and generations of accumulating violations of the Constitution and unconstitutional laws and powers in Federal departments and agencies. You should be ashamed.

[Commenter_XY]

I thought I gave a pretty good example of POTUS' (both parties) breaking the letter of the law (assassinations) for a national security aim. Prosecutable? Maybe. In the end, I don't think so: the POTUS is acting at his apex of power in my example.

There is a check on the POTUS, it is called Congress. They are the representative body closest to The People, and move faster than the Courts.

This is not a clear cut issue. That is the larger point, MWAocdoc.

[BigT]

No man has ever left the office of POTUS with ‘clean hands’. Not one; not even Washington left the Office with clean hands.

William Henry Harrison objects.

[EdG]

That is ahistorical and inaccurate. The Founders envisioned an extremely limited president. They were rejecting monarchy, not replicating it in the United States.

[Freethinksman]

No serious person believe for a second that will be serious deliberation over whether a President has "Complete and Total Immunity". The conservative majority of the SC threw him a bone and helped him delay the trial. But I sure wish they would. I wish the SC would come out with a full throated agreement of Trump's assinine claim. Then Biden can simply dispense with him and get to work running the government. The world is in dire straits and America is playing along with a wannabe dictator. Give Joe immunity to put an end to this idiocy!

[Mickey Rat]

Yes, defense lawyers will often make preposterous novel legal arguments in order to get their client off. I mean the Constitution explicitly mentions the death penalty as a appropriate punishment for certain crimes, but that still did not prevent defense lawyers from arguing that the death penalty is unconstitutional as cruel and unusual punishment.

[Michael Ejercito]

Prosecutors, on the other hand, are not supposed to make novel legal arguments about the guilt of a defendant.

One of the reasons absolute immunity exists for judges is because a vindictive prosecutor could get creative and charge a judge with obstruction of justice for ruling the "wrong" way.

Or a state prosecutor ideologically opposed to the death penalty could charge a federal judge with murder for sentencing a murderer to death.

Absolute judicial immunity is explained here.

https://benchbook.sog.unc.edu/sites/default/files/pdf/Judicial%20Immunity%20Mar.%202015.pdf

If there is substantial evidence that a judge solicited a bribe, or murdered his wife to continue a sexual relationship with his underage lover, then, yes, it would be proper to prosecute the judge in question.

But if a judge excludes evidence in a suppression motion, that can not be obstruction of justice.

If a judge sentences a criminal defendant to death, that can not be murder.

(The only exception is in the clear absence of jurisdiction)

[Lee Moore]

The parade of horrors seems to be that if the President can get away with crimes based on an argument about Presidential Immunity, it would be, er, absolutely horrible !

Although there is no textual basis for treating former presidents differently in this [ie Presidential Immunity] respect

Whoopie ! No mention of Presidential Immunity in the text of the Constitution, so the Republic is saved !

But wait…

and he shall have Power to grant Reprieves and Pardons for Offences against the United States

Nothing in the text about “except offences by himself”

Text for the goose is text for the gander. If the absence of text means there’s no Presidential Immunity, the absence of text means there’s no restriction on the President pardoning himself.

The horrors complained of are already there, however SCOTUS rules.

[EdG]

There is not absence of text regarding Presidential Immunity. The Impeachment Clause states he's still liable to criminal and civil actions whether or not he was impeached and convicted by Congress. Impeachment is a political process only.

[SRG2]

I think that a substantial majority of Americans hew to one of two propositions: there should be no presidential immunity for Trump or anyone else, and, there should be no presidential immunity except for Trump.

Regardless, the Trump defence argument is baseless and was in all likelihood raised as a delaying tactic - successfully, it seems, as the SC was dilatory in hearing it, and should have dismissed it without comment.

[Michael Ejercito]

How is the defence argument baseless?

[Sevo]

Because SRG is a TDS-addled shit-pile.

[SRG2]

There is no basis for arguing that presidential immunity extends to all actions, personal or governmental, a president takes. Ergo, baseless.

Did you even read the article above?

At a guess, you're in the "no presidential immunity except for Trump" camp

[MJBinAL]

YOUR statement of the defense position is inaccurate. The is no claim that PERSONAL actions are protected.

Up until now, EVERY president has had this immunity. It is so universally understood that:
- Obama's keeping classified documents was not challenged
- Obama's execution of US citizens on foreign soil was not challenged
- Various Clinton actions were not challenged ... ONLY his PERSONAL picadillo's using official facilities were challenged ... and even then only on the basis of his lying about them (perjury).

The selective nature of the Trump legal storm is demonstrated by Biden and classified documents. Biden took classified documents home as a senator (illegal in ALL cases) and again as a Vice-President (illegal in ALL cases). Further he shared documents with others (his ghost writer and others) (illegal in ALL cases). And the DOJ decided that he was just too old and senile to be prosecuted even though they confirmed he did it (when has that come up before? Never)

All Presidents have had immunity for actions taken as President, whether they were popular, justified, or not. What Trump's attorneys are arguing is not new. Up until now no court had ever tested it, they respected it as a matter of course.

[jimc5499]

During the Cuban Missile Crisis JFK held a press conference where he showed pictures of the missile installations in Cuba and pictures of Soviet ships transporting missiles as deck cargo. At that time the pictures were highly classified. It wasn't so much the pictures themselves as it was the resolution of the cameras that took the pictures. An issue was raised about JFK's violating national security regulations by showing those pictures. It was stated that the President has the final determination on classification and was within his authority to show the pictures.

[SRG2]

The is no claim that PERSONAL actions are protected.

True.

Up until now, EVERY president has had this immunity.

False. As a matter of unchallenged DoJ policy (cf. Mueller) every president is not charged while in office, hence they were not immunised – potential charges were merely held in abeyance.

There may be many reasons that successive DoJs declined to charge ex-presidents – possibly a fear of later retaliation being one. But it has never been a stated principle that presidents were immune, and the rationale for not proceeding against a sitting president disappears when the president is no longer sitting.

Where is post-presidential immunity to be found in the Constitution even merely by implication?

And the argument that impeachment is required first isn’t supported by text either.

Ergo, baseless.

[Michael Ejercito]

Is this sort of immunity even worse than qualified immunity enjoyed by police? Or absolute immunity enjoyed by judges?

https://benchbook.sog.unc.edu/sites/default/files/pdf/Judicial%20Immunity%20Mar.%202015.pdf

[MJBinAL]

Excellent Point.

[SRG2]

Even absolute immunity for judges has limits.

No Immunity if the Judge Acted Wholly Without Jurisdiction: judicial immunity applies even when the judge acts in excess of the judge’s jurisdiction, but not if the judge acts without jurisdiction at all.

No Immunity for Administrative Acts.Judicial immunity does not apply to purely administrative acts of a judge, such as employment decisions, but there may be qualified immunity in such circumstances, just as for other public officials

[Social Justice is neither]

Fuck off you marxist propagandist. Everybody with 2 functioning brain cells knows this logis is only to apply to Trump, not Biden or any President after him and most certainly not Obama or any President before. Couldn't find you arguing for life in prison for Obama's murder of a US citizen or the multiple frauds under Obamacare. Hell, you cunts were arguing against holding a BLM organizer responsible for the actions of those he organized to explicitly commit a crime but "peacefully protest and go home" is a bridge too far? Fuck off you lying hypocritical cunt.

[Michael Ejercito]

Very great points!

[Michael Ejercito]

McConnell noted that the former president could still be held civilly or criminally liable for his role in the violent assault that interrupted congressional ratification of Joe Biden's victory.
How exactly did he cause the violent assault?

[Z Crazy]

Did Dubya get prosecuted for murdering children in Iraq?

Did Obama get prosecuted for murdering children in Libya?

why all this fuss if Trump gets away with whining about a stolen election?

[Sam Bankman-Fried]

Trump ordered the assassination of a little American girl on his first day in office…to be fair she had it coming because she called Trump a poop head. Trump has the most civilian deaths on his hands because he helped Saudi Arabia escalate Yemen…unless you don’t consider Yemeni humans??

[BigT]

Nice satire.

Heretofore I thought you were at least semi-serious.

[Sam Bankman-Fried]

Nawar Al Awlaki!! Say her name!!!

[DaveM]

I do not accept this framing of Trump's position at all. To win an argument, you first must state your opponent's position to THEIR satisfaction. I read the petition. It says instead that a President cannot be charged with a crime for exercising his executive duties. The way this opinion piece frames it, Trump is saying that ANYTHING a President does is immune. That is a misstatement of his position.

[Sevo]

Sullum remains badly troubled by a raging case of TDS. On the rare occasion that he deals with Trump in an honest manner, it is totally surprising.
The asshole Sullum needs to STFU.

[Azathoth!!]

That is the improbable crux of the argument that the U.S. Supreme Court will consider on Thursday in the federal case that charges Trump with illegally trying to remain in office after he lost the 2020 presidential election.

But, as everyone knows, this didn't happen.

Trump left office exactly when every president does, as the new president is being inaugurated.

So he didn't try to illegally try to remain in office after he lost the 2020 presidential election.

He DID try to make sure that the election results were valid--in which he was illegally thwarted at every step by the left (and yes, that includes you, Sullum)

But he didn't stay in office one second beyond his legally allotted time.

[MJBinAL]

Good Summary

[TrueLibertarian2]

It is most definitely a good question for the Court to take up.

George W Bush could have been charged with a war crime for the Iraq war? He was doing his job, whether we agree and like it or not.

Obama ordered a hit on a US citizen on foreign soil. The guy was dangerous and all that, but it’s both a case of murder and denial of the killed’s right of due process. Nobody is suggesting Obama be put on trial for it. At least not seriously.

Bill Clinton lied under oath and used the power of his office to deny Paula jones her day in court. He sent his cabinet officials out to lie on his behalf on the Sunday morning shows and elsewhere. He was at least guilty of obstruction of justice, lost his law license, paid a big fine, and copped to a plea deal in the end. This one is a case against Trump’s claim of absolute immunity.

Nixon was pardoned, which also suggests he could have been tried for his crimes in office.

The way Trump wins this case is if there’s any chance that he was acting as president. He could claim it was his duty to assure the election was legitimate. I think if he chose to believe the only one of 100 advisers to claim that there was massive fraud is legit on his part.

Sorry to say. I don’t like Trump. I wouldn’t vote for him (or any Democrat). Not a snowball’s chance in hell.

[Sam Bankman-Fried]

Bush/Cheney tortured detainees in order to elicit false confessions tying Saddam to 9/11…that ain’t part of the president’s job!

Clinton gave misleading answers in a civil deposition which happens in 100% of civil depositions…which is why our civil law system is adversarial in nature because it’s your lawyer’s job and not the sheriff’s job to prove your case!! Tattling to the sheriff that someone lied in a civil deposition during discovery fails 99.9% of the time except when it’s the really good Democratic president that is balancing the budget does it. 😉

[BigT]

OBL would be proud!

[MJBinAL]

Bill Clinton, like Richard Nixon, got in trouble committing perjury covering up for things, not the the things themselves.

Nixon was pardoned, for this personal actions covering up the crimes of others.

[Liberty_Belle]

Justice Ketanji Brown Jackson, another liberal on the court, said Trump’s reasoning could mean presidents in the future could commit all sorts of crimes.

“I’m trying to understand what the disincentive is from turning the Oval Office into the seat of criminal activity in this country,” Jackson said. “If the potential for criminal liability is taken off the table, wouldn’t there be a significant risk future presidents would be emboldened to commit crimes in office?”

Now you’re cookin’ ! How could Sullum leave such a juicy quote out of this article ?