Supreme Court to Decide Whether to Decide Trump May Claim Presidential Immunity

The Court agreed to the special counsel's request for expedited briefing on whether to grant certiorari.

Yesterday, Special Counsel Jack Smith filed a petition for certiorari before judgment in United States v. Trump. Smith also filed a motion to expedite briefing on the petition and, should the petition be granted, on the merits as well.

Also yesterday, the Court granted the motion to expedite briefing on the petition for a write of certiorari before judgment, albeit on a slightly looser schedule than the special counsel had recommended. The Court has directed Trump's attorneys to file their response no later than December 20.

The question presented by the petition focuses on the question of presidential immunity, which is an issue in the special counsel's investigation, as well as other litigation arising out of the former President's efforts to prevent certification of the 2020 election results. The QP reads:

Whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.

In my view, the Court should answer this question in the negative--which was also the conclusion of a 2000 memo from the Office of Legal Counsel--but serious questions may remain about which of Trump's actions can appropriately considered to be illegal.

Comments

[Mr. Bumble]

...to be continued.

[Moderation4ever]

While I would agree that the question remains does the Presidency offer some immunity for speech and actions, I don't think that should be unlimited. I also appreciate that Jack Smith is doing this before the trial. First it is a waste of time and money if SCOTUS will grant broad immunity. Second it shows that Jack Smith is not simply interested in a show trial. If his only goal was to taint the former President with a trial, he could do that and leave the immunity question for appeal.

[F.D. Wolf]

I think you misunderstand the sequence of events. Trump raised the issue of immunity in a pre-trial motion. The district judge, after an inexplicable one-month delay, ruled against him. Trump then appealed this ruling to the D.C. Court of Appeals. Smith then asked the Supreme Court to take the highly unusual step of bypassing the usual appellate process, bypassing the Court of Appeals and ruling on the question directly.

[Mr. Bumble]

...because there is a desperate need to paint Trump as a convicted felon prior to the 2024 election.

[Paladin_44]

Brush, meet paint bucket.

[F.D. Wolf]

Yes, while guaranteeing any appeals would only be resolved after the election. If he were really interested in a quick resolution, he would have brought this case two years earlier. His goal is maximum effect on the election.

[Moderation4ever]

Jack Smith could not have brought the case two years ago as he was only appointed 13 months ago.

[jb]

You know you're commenting on a discussion that's literally about an appeal, right?

[Krychek_2]

At this point there's no real dispute that he's an as-yet-unconvicted felon, everyone but his partisans is acknowledging that. So I'm not sure just how much political muscle an actual conviction would add. You either care that he's a complete slimebucket or you don't.

[Mr. Bumble]

Well, so glad you've been selected to speak for "everyone".
However, that's not how the justice system is supposed to work.

[Krychek_2]

Was OJ Simpson less a murderer because he was found not guilty?

The justice system will run its course. In the meantime, there seems to be little doubt that he actually did it. What the courts have found, and what the voters know to be the case, are two different things.

[Mr. Bumble]

Welcome to Wonderland:

In Lewis Carroll's children's story Alice's Adventures in Wonderland (1865), the Queen of Hearts impatiently declares during the trial of the Knave of Hearts, ‘Sentence first—verdict afterwards’....

[Krychek_2]

No, you're assuming that facts only become true once a jury has determined them to be true. Or that the voters aren't entitled to decide for themselves what to believe.

Assume Trump is found guilty. Will that actually change anything for you?

[Mr. Bumble]

Did it change anything for you that OJ was found not guilty?

[Krychek_2]

Nice question dodge. Will it change anything for you if Trump is found guilty?

No as to OJ Simpson. I think the jury got it wrong, as juries sometimes do. And my point, which you still seem not to get, is that facts are objective whether or not a jury sees it that way. OJ Simpson either did or did not commit the murders; it's a binary choice. Trump either did or did not commit one or more of the crimes he's charged with; that, too, is a binary choice. And the voters don't have to wait for a jury to tell them to look at the evidence for themselves.

[Mr. Bumble]

Well, your question about Trump is a hypothetical where as OJ is a fact. However, if you mean by "change anything" you mean voting for Trump over Biden (if those are the choices) my answer would be no. Juries can get things wrong and a DC jury is probably more likely to.

[Mr. Bumble]

Forgive the stilted language. Edit function is no working.
That should read "However, if by "change anything...

[Terry Anne Lieber (Don't Feed Tony)]

Will it change anything for you once Trump is found not guilty? Rhetorical question...

[Krychek_2]

No, because again I'm distinguishing between legal guilt and factual guilt. Factually, I don't think there's any real question he did at least some of the things he's been charged with.

[David Nieporent]

.

No, because again I’m distinguishing between legal guilt and factual guilt. Factually, I don’t think there’s any real question he did at least some of the things he’s been charged with.

In fact, I don't think that Trump even disputes that he did most of those things. The dispute is primarily over whether those things are criminal.

[damikesc]

It'd indicate that he is not a nice or good person.

Fortunately, he is likely to be running against a thoroughly loathesome and blatantly corrupt individual.

Who is far more guilty of the "crime" Trump is accused of here than Trump is.

[Michael P]

Just like Joe Biden, then!

[Krychek_2]

Still waiting to see some evidence. Haven't ruled the possibility out, but so far his opponents haven't really come up with anything connecting Hunter's misconduct to him.

[Michael P]

Like you said -- everyone but his partisans acknowledge his factual guilt.

[Krychek_2]

Oh really? Who?

[Mr. Bumble]

The same people who have tried and convicted Trump and want him sentenced the the Phantom Zone?

[Krychek_2]

I doubt that "the same people who have tried and convicted Trump" also believe Biden to be guilty. I suppose there may be some overlap but I wouldn't think there would be much.

[windycityattorney]

Trump himself asked for a stay of all proceedings in the district court while the interlocutory appeal of the immunity/double jeopardy question is decided by the appellate courts. Because this is apparently an issue of near first impression; Smith is wanting to bypass the intermediate appellate court and have it decided by the US SUP CT. This is not an unreasonable request to make for the special prosecutor as any decision (for or against Trump) of the DC court of appeals was going to be appealed to the US SUP CT anyway.

[iowantwo]

isnt the purpose of the appeal process in the work product created in the first appeal is already done. All those written rulings and responding briefs are already done. The arguments already fine tuned. Now SCOTUS is going to have to do all the grunt work.

Again, Garland/Obama, back figured when the indictments would do maximum damage to the political campaign. Special counsels are designed because of the appearance the administration could not investigate itself. That is not the case with Trump.
Instead we have the Biden administration targeting his political rivals. So yes, the indictments could have happened a year sooner.

[Moderation4ever]

We all know this is going to SCOTUS so what the point of stopping at the Appeals Court? If SCOTUS want the Appeals Court to rule first, they will send it back. This route is rare but has been used.

[not guilty]

The government has also moved the Court of Appeals to expedite review in this appeal. https://storage.courtlistener.com/recap/gov.uscourts.cadc.40415/gov.uscourts.cadc.40415.1208578317.0_4.pdf The appellate court has ordered a defense response to the motion by 10:00 a.m. tomorrow and any reply by the government by 10:00 a.m. Thursday.

I expect the Court of Appeals will have a scheduling order in place before SCOTUS rules on whether to grant certiorari before judgment.

[not guilty]

I suspect that Judge Chutkan waited to issue her denial of Trump's motion until the D.C. Circuit opined in Blassingame v. Trump on whether Trump's conduct regarding January 6 was within the "outer perimeter" of official presidential duties. The Court of Appeals on December 1 opined that it was not (thus subjecting Trump to civil suits for damages). Judge Chutkan issued her order later that day.

[Mr. Bumble]

Do you really see any lrgitimate basis for civil suits?

[Mr. Bumble]

Edit still not working.

[not guilty]

Mr. Bumble, have you read Judge Amit Mehta's order? Thompson v. Trump, 590 F.Supp.3d 46 (D.D.C. 2022)?

[Mr. Bumble]

Here we go again.
No I did not, but the question was do YOU see any legitimate basis for civil suits?

[not guilty]

If you are unwilling to educate yourself, why should I respond to your rhetorical questions?

That having been said, yes I do see a legitimate basis for civil suits, for the reasons explained in Judge Mehta's thoughtful and well reasoned opinion.

The poet Thomas Gray wrote in 1742, "where ignorance is bliss, 'tis folly to be wise." If so, you must be in hog heaven.

[BrotherMovesOn]

NG, you can ask him a thousand times.
Bumble can't be bothered.

[Alpheus W Drinkwater]

Wolf: "...the highly unusual step of bypassing the usual appellate process..."

Apparently it's happened 14 times since 2018. It used to be highly unusual.

[Brett Bellmore]

"In my view, the Court should answer this question in the negative–which was also the conclusion of a 2000 memo from the Office of Legal Counsel–but serious questions may remain about which of Trump's actions can appropriately considered to be illegal."

Agree on both points:

First, there's precious little constitutional basis for Presidents having any sort of immunity.

Second, he's not President anymore.

Third, though, this doesn't mean that any of the charges he's claiming immunity to are actually legitimate.

[Doug Heffernan]

What makes a charge legitimate?

[Krychek_2]

To Brett, that it's brought against a Democrat.

[Terry Anne Lieber (Don't Feed Tony)]

While for Krycheck_2, a legitimate charge is something brought against a Republican.

[Krychek_2]

No, Brett has a history. I've defended Republicans that I thought were wrongly accused.

[jimc5499]

The majority of the "charges" were as a result of something that Trump supposedly did while he was STILL President.

[Brett Bellmore]

Yeah, so? Unless it was something he did as an exercise of his Presidential authority, that's irrelevant. If the President shoplifts while President, he's still committed a crime.

I don't believe there's any lawful basis for Presidents claiming immunity for private actions.

[Nameless But Highly Opinionated]

There's much constitutional basis.

And if the suit's brought under federal (DC) tort jurisdiction, why does the basis even need to be constitutional?

[F.D. Wolf]

One appreciates the hilarious irony of the of the ludicrous second impeachment, brought in a fit of pique by Nancy Pelosi and the Democrats and concluded only after Trump had already left office, potentially barring a criminal trial on the matter.

[Doug Heffernan]

Mitch McConnell could have agreed to scheduling that allowed it to happen before Trump left office. He did not.

This is the same Mitch McConnell that, after voting for acquittal, said that such acquittal didn't preclude criminal charges.

[Brett Bellmore]

That would, indeed, be hilarious, if it were not for the fact that the impeachment clause explicitly states that,

"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."

[F.D. Wolf]

Read that again and note the word convicted.

"Double jeopardy", at common law, barred a successive prosecution after a prior conviction or prior acquittal. An accused could enter a plea of autrefois acquit or autrefois convict, and if found to be true, the prosecution would be barred.

A plain reading of the Constitutional text seems to indicate the removal of the bar of "prior conviction" but not "prior acquittal". Why would the drafters use the phrase "Party convicted" as opposed to just "Party"?

[Area Man]

Because that clause is discussing the judgment after conviction. It’s saying that once conviction occurs then the only punishment is X and Y; but just in case anyone doesn’t understand that impeachment isn’t a criminal case, then we’re making it clear that someone convicted can still face criminal charges.

[santamonica811]

FD is not a lawyer, and it arguing (not unexpectedly) like a non-lawyer. While the rest of us looks at this, does the same analysis as you, and it's immediately obvious to us that your [ie, Area Man] analysis is correct, we need to understand that laypeople will not have the knowledge or training to get this somewhat-subtle point. It's good to be able to--in a kind and directly and clear way--rebut that misconception. You did a very nice job of it. On behalf of FD, I'll say, "Thanks for the clarification. Now that you've explained it; I can now see what you mean, and it's changed my position . . . at least on this one issue."

[jimc5499]

I found it funny that Pelosi stated that "We are going to impeach him!" before he was ever sworn into office.

[M L]

Almost as funny as the prosecutors who campaigned on "locking him up" on unspecified charges.

[David Nieporent]

[Citation needed.]

[Sarcastr0]

I Googled around and didn't find anything about Pelosi saying that.

[Alpheus W Drinkwater]

shocker

[NvEric]

"...the former President's efforts to prevent certification of the 2020 election results." --- you are biased in presenting a falsity.

At no time was an effort to made to prevent certification, but rather to prevent an examination of the results more closely. The actions of "unknowns" prevented scrutiny on 1/6/21, not any efforts by the lawfully acting President.

[SimonP]

Brett, a few questions:

(1) Do you believe that Trump actually won the 2020 election?

(Note: This is a yes or no question. "I don't know whether or not he did, for XYZ reasons, etc." is not responsive. I am not asking you what you know; I am asking you what you believe. If you do not believe anything in particular about whether Trump actually won, then this would necessarily imply that you do not believe Trump actually won the 2020 election.)

(2) Do you believe that Trump actually believes he won the 2020 election?

If you've answered "yes" to either of the above, then:

(3) If you believe that you actually won an election but have been denied that result, are appropriate responses to that (i) surreptitiously recruiting slates of "alternative" electors in various states, who would illegally hold themselves out as validly-selected electors under state law; (ii) calling and pressuring election officials to "find" votes and "decertify" vote counts; and (iii) weaving these actions together so as to prevent Congress from performing its responsibility in gathering and counting the electoral ballots, in accordance with the law. Or would you argue, instead, that the only real remedy to the putative harm is to be found in the courts, and if the courts deny the remedy, that's the end of the matter?

(4) If you believe that the first option under (3) is a legitimate way to respond to a "stolen" election, what is your basis for saying so? And if you believe the second option under (3) is the only legitimate way to challenge a "stolen" election result, would you agree that a candidate who pursues the first option is signaling that he doesn't really think he won the election?

[Krayt]

No he didn't win. Moreover, in court, his lawyers under oath, asked what haplened
said, "Not much".

Third, he was the freakin' president. If he saw massive corruption, he has near infinite resources to go hammer on rooting out an insidious threat to the nation.

Instead, he blabbered nobody in the deep state would listen to him, poor weak guy. This was hot air for the dupes to swallow.

[Brett Bellmore]

1, 2: I'm not sure why you asked the same question twice.

I don't think Trump won the election. (Neither did Trump, whatever you meant by that.) I think you can't rule out the possibility that he would have, if the election had been conducted in an entirely lawful manner, but that's not how things happened, and we'll never know. But I doubt it, I think Biden probably would have won even an honest election, though it would have been a closer thing. Turns out nothing CAN beat something, if you demonize the something enough.

But, of course, that has no bearing on the lawfulness of contesting the outcome. So I'll answer the rest of the questions anyway.

3i) I think that in several states, the alternate slates of electors were arranged in a lawful manner, actual Trump elector candidates filing a certificate contingent on positive legal developments. In other states, they cut too many corners. I'm not entirely sure who was in charge of the corner cutting, but I'd willingly believe they might face some legal liability. Lots of things people don't normally get prosecuted for could carry legal liability if prosecutors wanted.

3ii) Your sneer quotes don't make lawful requests into unlawful extortion.

3iii) I'm not sure of the significance of 'weaving together' sloppy work and legal requests. I don't think they materially interfered with anything Congress was doing, nor had any potential to. Nobody confused the alternate slates with the state certified slates, nobody was going to. It was, transparently, preservation of the challenge, not fraud.

4) I think that, yes, it's legitimate to arrange for alternate slates of electors to preserve an election challenge, though you shouldn't do so in a sloppy manner. I think it's legitimate to ask for access to election records so that you can go through them looking for irregularities. I think that Trump really should have dropped it, at the latest, when the EC voted, but that he was acting at least as lawfully as the Democrats had during the election in making ad hoc changes to election procedures. If you're going to let people cut corners, you should do so impartially.

[SimonP]

But, of course, that has no bearing on the lawfulness of contesting the outcome.

(2) is in fact central to the indictment, and Trump's defense to date.

I think that in several states, the alternate slates of electors were arranged in a lawful manner, actual Trump elector candidates filing a certificate contingent on positive legal developments. In other states, they cut too many corners. I’m not entirely sure who was in charge of the corner cutting, but I’d willingly believe they might face some legal liability.

It's a matter of public record that the only reason some electoral slates were qualified in the way you indicate is that the electors themselves sought legal advice on the question. The other slates did not "cut corners"; they either did not want to look like they were questioning the result, or did not take care in seeking legal counsel. In any event, the question is not whether the electors violated the law, but whether gathering the alternative electoral slates was part of a criminal conspiracy by Trump to subvert the election.

Your sneer quotes don’t make lawful requests into unlawful extortion.

Extortion is not the claim.

I’m not sure of the significance of ‘weaving together’ sloppy work and legal requests. I don’t think they materially interfered with anything Congress was doing, nor had any potential to. Nobody confused the alternate slates with the state certified slates, nobody was going to.

This, again, contradicts what's publicly known about the scheme. The plan was to send the slates to Congress and either have the fake electors "certified," or raise enough of a question that the whole thing would be tossed to the House to decide. The fact that it was not actually done, and things did not play out that way, does not obviate the criminal conspiracy to achieve that result.

I think that, yes, it’s legitimate to arrange for alternate slates of electors to preserve an election challenge, though you shouldn’t do so in a sloppy manner.

You are talking about the extra-judicial steps that Trump took like it's a court case. There was nothing to "preserve" here. There's no evidence that will be spoiled, or legal questions that must be timely raised. If Trump didn't think an election in a state was properly conducted, the way you "preserve" that question is challenging it in court. You don't scheme to create enough chaos so that the question can be resolved politically.

[Brett Bellmore]

"In any event, the question is not whether the electors violated the law, but whether gathering the alternative electoral slates was part of a criminal conspiracy by Trump to subvert the election."

If the electors didn't violate the law, or only did so inadvertently due to not getting good legal advice, then asking them to do it wasn't criminal, because you were asking them to act lawfully. I'm not a big fan of the way conspiracy law turns lawful acts into crimes just by positing the existence of a 'conspiracy'.

"The plan was to send the slates to Congress and either have the fake electors “certified,” or raise enough of a question that the whole thing would be tossed to the House to decide. "

To the extent that Congress actually has any discretion in counting the electors, (I personally think their role is entirely ministerial.) asking them to exercise that discretion is legal. Significantly MORE legal that, oh, asking Electors to be unfaithful, as I recall happening in recent Presidential elections.

Nobody was defrauded by the alternate elector slates. If Congress had counted them, it would have been because they decided to count them, not because they were tricked into doing so. I don't think they should have counted them, but Congress does shit I don't think they should, all the time, and without it being an illegal conspiracy.

"You are talking about the extra-judicial steps that Trump took like it’s a court case."

As it quite possibly could have become, or hinged on.

[Sarcastr0]

Waiting on a getaway car is a lawful act. Also part of a criminal conspiracy.

[David Nieporent]

.

Nobody was defrauded by the alternate elector slates. If Congress had counted them, it would have been because they decided to count them, not because they were tricked into doing so.

If I forge a check and my bank teller confederate cashes it, the fact that he wasn't fooled doesn't mean I haven't defrauded the bank.

[Brett Bellmore]

The teller is an agent of the bank. The majority of Congress are not an agent of Congress, they are the principal. So if Congress has discretion in counting electors, the majority can exercise it.

[Jason Cavanaugh]

After all these years, now you're suddenly unaware of what constitutes fraud?

Please see a Doctor; You're degenerating at an alarming rate.

[Michael Ejercito]

Were these fake electors using the names and identities of the real electors?

[iowantwo]

) surreptitiously recruiting slates of “alternative” electors in various states, who would illegally hold themselves out as validly-selected electors under state law;

The alternate electors would still have had to be certified by the state legislature.

It they were not certified, then the election would have been tossed to the House of Representatives, as provided for in Constitution.

[Bob from Ohio]

Why does a prosecutor care when a case goes to trial?

[jb]

What a weird question. Fortunately it was answered over 50 years ago in Barker v Wingo:

The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused. In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused. The inability of courts to provide a prompt trial has contributed to a large backlog of cases in urban courts which, among other things, enables defendants to negotiate more effectively for pleas of guilty to lesser offenses and otherwise manipulate the system. In addition, persons released on bond for lengthy periods awaiting trial have an opportunity to commit other crimes. It must be of little comfort to the residents of Christian County, Kentucky, to know that Barker was at large on bail for over four years while accused of a vicious and brutal murder of which he was ultimately convicted. Moreover, the longer an accused is free awaiting trial, the more tempting becomes his opportunity to jump bail and escape. Finally, delay between arrest and punishment may have a detrimental effect on rehabilitation...

A second difference between the right to speedy trial and the accused's other constitutional rights is that deprivation of the right may work to the accused's advantage. Delay is not an uncommon defense tactic. As the time between the commission of the crime and trial lengthens, witnesses may become unavailable or their memories may fade. If the witnesses support the prosecution, its case will be weakened, sometimes seriously so. And it is the prosecution which carries the burden of proof.

[Bob from Ohio]

That case did not involve a prosecutor request to speed a trial over a defendant's objections but a case where the state sought 5 years! of delays.

"Society" has no rights under the Bill of Rights, people do.

[jb]

So I guess you didn't read any of the language I quoted?

[Bob from Ohio]

Yes, and rest of the opinion.

Your language is just dicta.

[Michael Ejercito]

To be sure, courts often move trials along despite the defendants moving to delay proceedings.

But the court gives more leeway to a defendant's motion to delay criminal proceedings than a similar motion for the prosecution.

[jb]

The dicta still answers the question you asked.

[Bob from Ohio]

Not very well.

5 years of delay did not harm society too much in a murder case but 1 year for Trump's trial is too much for the persecutor.

[santamonica811]

I financially supported Trump before his first election run.

I very much want to know, before I cast my vote in 2024, if a jury of his peer finds him guilty of crimes. Just as I very much want to know if that same jury, when given all the facts, rejects a prosecutor's case and finds him not guilty.

I'm surprised you don't feel the same way.

[Bob from Ohio]

1) Political prosecutions aimed at re-electing Biden. 2) NY, DC and Atlanta juries will never acquit so who cares what they think. 3) Charges are all BS anyway, yes even the documents one.

[not guilty]

The Republican National Convention will begin on July 15, 2024. If I were a delegate to that convention, I would want to know whether Donald Trump has been found guilty or not guilty in the D.C. trial before selecting a nominee.

[Bob from Ohio]

"If I were a delegate "

But you will not be. The Trump delegates won't care, not one little bit.

[not guilty]

Yes, I know that the Trump delegates won’t care, not one little bit.

As Napoleon advised, never interrupt your opponent when he is making a mistake.

[Bob from Ohio]

We all know why the trial HAS to be before the election.

As I said, you getting a conviction and then Trump wins would be delicious. The howling will exceed 2016.

[not guilty]

There is no legal impediment to Donald Trump running for president after being found guilty, but the logistics thereof would present considerable difficulty.

Trump is presently scheduled to begin trial in the District of Columbia on March 4, 2024. The prosecution in Fulton County, Georgia has requested a trial date of August 5, and it is foreseeable that trial there will begin in the summer. Both trials will require Trump's daily presence in the courtroom.

If Trump is found guilty in D.C., his bond will be revoked while awaiting sentencing unless Judge Chutkan finds by clear and convincing evidence that he is not likely to flee or pose a danger to the safety of any other person or the community if released. 18 U.S.C. § 3143(a)(1). After sentencing and pending appeal he will be confined unless the judge finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released and further finds that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal, an order for a new trial, a sentence that does not include a term of imprisonment, or a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process. § 3143(b)(1).

In light of the above, it could well be that Trump will be attending his Fulton County trial by day and in lockup by night.

[Nige]

'The howling will exceed 2016.'

Trumpists howling for blood, yes.

[Sarcastr0]

Once again Bob is only concerned about due process when MAGA is involved.

What a tool.

[M L]

Charges brought for political effect need to be timed for maximum effect.

[Bob from Ohio]

Of course.

I wish the GOP nominates someone else and I still think Biden wins but it will be glorious if after all this extraordinary effort Trump wins anyways.

[Krychek_2]

If Trump wins again there's a real risk that the American experiment may be over. At this point he's not even pretending to care about the rule of law, constitutional niceties or anything that gets in the way of his power.

If you don't like Biden, there are other Republicans to support. I disagree with Nikki Haley and Chris Christie on policy issues, but either of them would be a competent president. The only reason to vote for Trump is if you want to burn the place down (as I understand some here do).

[M L]

Sure. Just like the first time he was elected. And when Obama was elected. And probably most others, too.

"At this point he’s not even pretending to care about the rule of law, constitutional niceties or anything that gets in the way of his power."

My stars. Stop the presses. This is about Woodrow Wilson, right? Or ... wait, so many possibilities, argh!

[Bob from Ohio]

"there are other Republicans to support."

"I wish the GOP nominates someone else "

"real risk that the American experiment may be over"

Stupid scare tactic. There is no risk, let alone a "real" one, from a dilettante like Trump who lacks focus.

The only risk is from your side thinking "we must not let Trump take office" by any means necessary.

[Michael P]

The left have a long history of breaking laws because they think the ends justify "by any means necessary".

[Krychek_2]

Oh, you can find people all over the political spectrum that have broken laws because they thought the ends justify the means. That you seem to think it's a problem restricted to the left says far more about you than it does about the left.

[Sarcastr0]

All 3 of you have made it evident you would cheer if Trump came in and started jailing liberals.

I don't believe you're even fooling yourselves at this point.

[Krayt]

Reason is now fully broken. Edits don't seem to take effect anymore.

Is this site handled by a noob programmer intern, who works a few hours twice a week?

[Brett Bellmore]

Sollum's teenage son, who found a copy of HTML for Dummies in a garage sale.

[mydisplayname]

So, if a sitting US President orders the murder by drone strike of a US citizen, that President can, after leaving office, be tried for that crime of murder (which has no statute of limitations)? In this non-hypothetical, we are considering Barack Obama's written direction to murder Anwar Nasser Abdulla al-Awlaki, a natural-born (Las Cruces, NM) US citizen lawfully visiting Al Jawf, Yemen, and who was accused, but not convicted, of financial misdoings.

Or how about Adam Yahiye Gadahn, a US citizen born into a family known for Jewish activism and having a family member on the board of the Anti-Defamation League? Can the President who ordered Gadahn's murder be indicted and tried for that murder?

Perhaps the Rockefeller Commission was a waste of time: perhaps all we need to do is to indict every President after he leaves office and let an unelected judge and obviously-fair-minded petite jury in a Podunk jurisdiction decide his fate. Perhaps the actions of Commander-In-Chief (in his sole discretion deciding such matters as what constitutes insurrection and what does not) differ from the actions of a President in mundane matters -- perhaps they do not.

Be careful what you wish for. The matter before the Supreme Court asks us to simultaneously condemn both Barack Obama and Donald Trump.

[Z Crazy]

Great point!

Obama murdered thousands of Libyan children.

Dubya murdered thousands of Iraqi children.

EACH of them murdered more children than Dylan Klebold, Eric Harris, Adam Stanza, and Nikolas Cruise COMBINED.

Why is Trump being prosecuted for whining about a stolen election and keeping some old dusty papers, but Dubya and Obama aren't being prosecuted for capital mass murder?

[M L]

Trump didn't do enough murdering, I think is the problem. War is the health of the state and all.

[Don Nico]

mydisplay was not talking about "co-lateral damage" but about the extra-judicial, targeted murder of name US citizens.

The rest gets excused with weasel words

[jb]

Brett already addresses this above.

The President should indeed be immune for acts exercising the powers of the Presidency. He should not be immune for random criminal acts that he happens to commit while holding the office. Yes, sometimes it will be complicated to figure out if something is an official act or not, but Trump's assertion here is that the President is absolutely immune for *anything* he does in office (like Brett's example of shoplifting) which seems fairly obviously absurd.

[Drewski]

The prosecution would have to make an initial showing that ordering the drone strike was not pursuant to Obama's duties in office. This would be difficult.

[Brett Bellmore]

Presidents can't do just anything pursuant to their duties, because they have a duty to comply with the Constitution, too. Ordering a hit on a citizen? I think that's hard to square with the Constitution.

But, of course, Obama wasn't above declaring he lacked any constitutional authority to do something, and then doing it anyway.

[Nige]

Is it weird that he's doing this while promising to prosecute Biden?

[F.D. Wolf]

Does the Constitution bar a subsequent criminal prosecution of a party who has been acquitted at an impeachment trial? A plain reading of the Constitution suggests the answer is "yes".

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.

Why did the drafters use the phrase "the party convicted" as opposed to "the party convicted or acquitted" or even simply "the party"? The answer seems plain enough, but if it isn't, at common law, a party accused of a crime for which he had been either previously convicted or previously acquitted, would enter a peremptory plea of autrefois convict or autrefois acquit, as appropriate. So, a plain reading of the Constitutional text suggests the Drafters were removing the common law bar of a prosecution based on a prior conviction, but not the bar based on a prior acquittal.

“Double jeopardy”, at common law, barred a successive prosecution after a prior conviction or prior acquittal. An accused could enter a plea of autrefois acquit or autrefois convict, and if found to be true, the prosecution would be barred.

A plain reading of the Constitutional text seems to indicate the removal of the bar of “prior conviction” but not “prior acquittal”. Why would the drafters use the phrase “Party convicted” as opposed to just “Party”?

[F.D. Wolf]

Edit not working, hence the repetition.

[Stephen Lathrop]

Simple. The clause you cite is about the limit of the power of impeachment. Criminal conviction is not otherwise under consideration.

[windycityattorney]

The US SUP CT has repeatedly rendered opinions on double jeopardy. When it is triggered; the contours of what type of punishments qualify etc...

A plain reading of the language might have one conclude that a defendant charged, tried, convicted and sentenced in State court cannot be simultaneously charged, tried and convicted/sentenced for the same act in federal court. But the Court says otherwise (in its separate sovereign analysis). I am aware of no precedent that says a failed impeachment bars subsequent indictment for same/similar acts which made up the impeachment.

I think that the argument that impeachment does act as a bar to prosecution is silly and done not with the purpose of being successful in getting the indictment thrown out...but rather done instead to allow the president an interlocutory appeal so as to cause delay beyond the election...which Trump desperately wants to do because then we may get to the also unprecedented question of whether a president in his second term can pardon himself for crimes alleged to have occurred in his/her first term.

[not guilty]

The applicable language of the Fifth Amendment is "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb[.]" Jeopardy has never attached. In the alternative, Donald Trump is not indicted for the same offense as he was tried for by the Senate.

Article I, § 3, ¶7 provides that "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[.]" Non-criminal penalties, IOW. At what point in a Senate impeachment trial is the accused "put in jeopardy of life or limb"?

Leaving that issue aside, Trump was tried in the Senate for incitement of insurrection. https://www.congress.gov/117/bills/hres24/BILLS-117hres24ih.pdf He is charged by the grand jury with violating 18 U.S.C. §§ 371, 1512(k), 1512(c)(2) and 241.

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304 (1932). "A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." Ibid., quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871).

Conviction under three of the offenses Trump is charged with requires proof of a conspiratorial agreement with at least one other person; incitement of insurrection does not. Conviction under § 1512(c)(2) requires proof a corrupt mental state and the existence of an official proceeding; incitement of insurrection does not.

[F.D. Wolf]

The question of whether double jeopardy applies generally to impeachment acquittals and whether it applies to this particular case are obviously two different questions. I was only addressing the first question.

The Fifth Amendment obviously postdates the Impeachment Clause. Are you suggesting it modified it? It codified the common law; it was not introducing some novel idea. "Life and limb" are terms of art. Do you imagine if the only punishment under a criminal statute were a fine that the government could try you over and over again?

No one has attempted to answer my specific questions about the "party convicted" language in the Constitution, nor did I expect one. Now, as you say, and I concede, if double jeopardy does apply generally, then one would have to analyze the specific articles of impeachment and compare those to the language of the statutes, which I certainly have not done.

[not guilty]

Being “put in jeopardy of life or limb” necessarily presupposes the potential for imposition of criminal punishment. An impeachment trial in the Senate carries no such potential, the remedies being limited to removal from office and/or disqualification to hold federal office thereafter. Were that not so, adoption of the Fifth Amendment would have rendered the language about a convicted official being liable and subject to jndictment, trial, judgment and punishment nugatory. Like Bill Clinton before him, Donald Trump was never put in jeopardy before the Senate.

As SCOTUS opined 85 years ago:

That acquittal on a criminal charge is not a bar to a civil action by the Government, remedial in its nature, arising out of the same facts on which the criminal proceeding was based has long been settled. Stone v. United States, 167 U.S. 178, 188; Murphy v. United States, 272 U.S. 630, 631, 632. Compare Chantangco v. Abaroa, 218 U.S. 476, 481, 482. Where the objective of the subsequent action likewise is punishment, the acquittal is a bar, because to entertain the second proceeding for punishment would subject the defendant to double jeopardy; and double jeopardy is precluded by the Fifth Amendment whether the verdict was an acquittal or a conviction. Murphy v. United States, 272 U.S. 630, 632.

Helvering v. Mitchell, 303 U.S. 391, 397-98 (1938).

[Kristian H.]

"but serious questions may remain about which of Trump's actions can appropriately considered to be illegal."

Pity there are so many unserious people involved in asking and / or answering them.

[ah....Clem]

Question for some of the smarter, better educated folks here:

Attorney Ken Belkin thinks that this appeal involves a question of fact, not law. "...it's really proper for the trier of fact, meaning the jury, to determine if he was acting within the scope of his presidential authority or not,"

If he's right, then the appeal is denied and the trial goes on. But what are the chances of this analysis prevailing at the Supreme Court? Too simplistic, or will the justices jump at the chance to dodge the issue by invoking this um... technicality?

[windycityattorney]

I don't practice in federal court. But where I am, a pre-trial motion to dismiss based on either some type of immunity or double jeopardy would be a pure question of law - which if denied as is the case here - would be subject to de novo review by a reviewing court.

So I am not so sure that Ken is correct here. Trump's lawyers initiated the appeal upon the trial judge denying the motion to dismiss (which itself was based upon a legal rather than factual argument) so it would appear they also don't agree with this interpretation.

[ah....Clem]

It seems pretty clear to me that the double-jeopardy argument is a question of law, not fact. And I'd be embarrassed to make it myself since it's so ridiculous.

Whether certain things he did while in office are immune from prosecution may be open to dispute, but I'd agree that this a matter of law, not fact. And of course anything he did after leaving office is not subject to such immunity.

[not guilty]

The availability (or not) of immunity is a question of law, not subject to jury determination. For example, SCOTUS has opined that the Speech or Debate Clause was designed to protect Congressmen "not only from the consequences of litigation's results but also from the burden of defending themselves." Helstoski v. Meanor, 442 U.S. 500, 508 (1979), quoting Dombrowski v. Eastland, 387 U.S. 82, 85 (1967).

[Kenneth Almquist]

Trump is arguing that even if the allegations in the indictment are true, Trump is immune from prosecution due to Presidential immunity. Whether the allegations in the indictment are true or false is a factual question for the jury. Whether Trump's argument is correct is a question of law, because the answer doesn't depend on whether or not the allegations in the indictment are in fact true.

[ah....Clem]

Thanks. That sounds correct.

[Nameless But Highly Opinionated]

He may claim it all he wants, no matter what happens.

[ReaderY]

There seem to be two very different questions here, with two very different analyses. Can petitioners simply use conjunctions to create a single run-on question out of as many different questions as they want?

[ReaderY]

The second part of the question is not based on double jeopardy. It’s based on the text of the Impeachment clause. “But the party convicted shall be nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to law.”

If a party acquitted can also be liable and subject to Indictment, Trial, Judgment, and Punishment, then what exactly is the clause doing there? What does it add that wouldn’t be there without it? And why does it only refer to conviction, not acquittal?

It’s a non-frivolous position.

[Voize]

The purpose of that paragraph is to prescribe the consequences of a conviction, it doesn't also describe acquittal only because that isn't the topic at hand.

[ah....Clem]

Correct. It says nothing and implies nothing in the event of an acquittal.

One might be able to find some implication in the "penumbras" of the sentence, but that requires a generous helping of motivated reasoning.