Donald Trump's Demand for Absolute Immunity for Crimes Committed While President Goes Far Beyond the Qualified Immunity Police Officers Get

Qualified immunity is a badly flawed doctrine the Supreme Court should abolish. But Trump's demands are much more extreme.

(Tannen Maury/UPI/Newscom)

Despite attempts to claim otherwise, Donald Trump's demand for absolute immunity for any criminal acts committed while president goes far beyond the qualified immunity currently extended to police officers and other government officials. A recent Politifact article (where I and other legal scholars were interviewed) explains why:

As former President Donald Trump petitions the courts to be held legally immune for his actions as president, he's begun comparing presidents and police officers.

In a Jan.19 Truth Social post, Trump argued that "a president of the United States must have full immunity, without which it would be impossible for him/her to properly function." He added that immunity is needed even for "events that 'cross the line,'" though he didn't specify what he meant.

"You can't stop police from doing the job of strong & effective crime prevention because you want to guard against the occasional 'rogue cop' or 'bad apple,'" he wrote in all caps….

Legal experts told PolitiFact that whatever the judicial ruling, Trump's suggestion that he's seeking what police officers already have is flawed.

"What Trump seeks goes far beyond" the protections police officers have, said Ilya Somin, a George Mason University law professor….

The legal protection that police officers and other government officials are afforded is known as "qualified immunity." It is intended to protect officers conducting official duties not only from being held financially liable for their actions but also from being forced to face trial over those actions.

But as the "qualified" denotes, this type of immunity is not all-encompassing for key reasons:

• It applies to civil cases, not criminal charges. "It has nothing to do with criminal liability," said Joanna C. Schwartz, a UCLA law professor. If officers are charged with a crime, as happened with the officers in the 2020 death of Minneapolis resident George Floyd, they can stand trial.
• In civil cases, accused officers have to invoke qualified immunity as a defense, and the judge may or may not grant them protection. The accused officer can still be pursued in a civil lawsuit if the judge decides that that officer acted incompetently or knowingly violated the law….

Schwartz said the qualified immunity defense "is very strong, but it is not insurmountable…."

Trump's lawyers have said in court that they are seeking much broader immunity than what police officers receive.

Trump "seeks full immunity, not just 'qualified' immunity," Somin said. "And he is seeking immunity for criminal conduct, not just civil violations."

During oral arguments Jan. 9 before the three-judge federal panel, one judge asked Trump's attorney, D. John Sauer, whether the president should, hypothetically, be immune from prosecution for ordering U.S. Navy commandos to assassinate a political rival.

Sauer said that unless the president had been impeached first, such a prosecution would be invalid.

If you don't want to take my word for the difference between the two, you should at least heed that of Joanna Schwartz, who is probably the nation's leading expert on qualified immunity.

As both she and I have argued in the past, qualified immunity is a badly flawed court-created doctrine that the Supreme Court would do well to reverse. But I must acknowledge QI is at least endorsed by current Supreme Court precedent. The absolute immunity Trump seeks has no such precedent behind it, and would be even more egregious than QI is. It goes much further, and would allow presidents to escape liability for even the most serious crimes. Moreover, unlike a cop on the beat, a president cannot readily argue that he has to make quick decisions on the fly with no opportunity to seek legal advice.

No government official deserves such sweeping immunity. And certainly not the one with the greatest potential to abuse it. Even if you trust presidents of your preferred party with that kind of power, ask yourself if you have similar faith in presidents of the opposing party.

Comments

[mydisplayname]

I wholeheartedly agree that Imbler v. Pachtman should be overturned and the near absolute prosecutorial immunity should be a thing of the past: many prosecutors undertake politically-motivated prosecutions and should be punished for doing so. I'm glad the Institute for Justice is working on the issue (see https://ij.org/immunity-for-prosecutorial-conduct/ ).

As the nations top prosecutor, every President has hundreds of attorneys working under his supervision through his direct subordinate, the Attorney General. While it would be illogical to remove any immunity from the Commander while his Officers continue to enjoy any immunity -- doing so would merely shift the ire of would-be litigants and their money-hungry attorneys from each Officer to his Commander -- it is certainly a topic worthy of discussion. No General would tolerate his footsoldiers having a greater immunity than himself and no less is true of any Commander.

[David Nieporent]

As the post notes, QI for government officials (and, implicitly, absolute immunity for prosecutors) is a civil doctrine only. Although in practice prosecutors can get away with almost anything, that's not a legal doctrine; they can be prosecuted for official acts that are crimes.

[Michael Ejercito]

Even if the official acts in question do not violate clearly established law (unlike, for example, perjury or accepting a bribe)?

[David Nieporent]

The "clearly established law" framework is related to QI, not a criminal prosecution. There is no principle of criminal law that says that you can't be prosecuted for an act unless someone else was previously prosecuted for that exact same act.

[Noscitur a sociis]

Obviously the officials acts would have to constitute a crime to be prosecutable. But if the elements of a crime are present, a government official can’t use the fact that their conduct wasn’t clearly established as illegal as a defense.

[Social Justice is neither]

And yet the marxists of the DNC are using a speech to prosecute a man, so there goes that theory.

[Noscitur a sociis]

What

[Imreasonable]

First, the DNC is NOT prosecuting him. Second, if you are referring to Jan 6 speech, despite his use of the term "peaceful", he told them to fight like hell, and when informed that the rally attendees had weapons (lots of them), he said, let them in, ... and I will march to the Capital with them. His speech was clearly a "call to arms" and an insurrection. Though not charged with insurrection itself, he deserves every single charge that has been made. He can prove to a jury he is not guilty (failed to do so to grand juries).

[rloquitur]

You people are idiots. Seriously. This stuff doesn't come out of nowhere. Donald Trump is being sued by Capitol Police for having made a political speech that is standard red meat. Donald Trump is being criminally charged for lobbying government officials.

They need a standard like those applied to judges.

[Sarcastr0]

This seems to argue that the real solution should not be some overbroad Presidential immunity. That would be over broad!

The real cause of justice is for only Trump to be immune, and due to the unique nature of his persecution, the proper scope shouldn't just be while he was President but for all time.

[Snorkle]

I'd make a deal with him.

Donnie gets to be immune from his current and any future legal actions against him.

In return, he has no recourse to that same system, loses his welfare security detail, and so on. He is persona non-grata with no rights or responsibilities of citizenship.

Maybe Vlad wants another toy dissident, or maybe we find out what Donnie boy's really worth when he as to buy protection.

[Estragon]

I’ve been saying this since the beginning. A global settlement to the criminal charges in exchange for surrendering his passport and being barred from legal re-entry. Do like the Romans did. It would even leave the huckleberries an opportunity to vote for a cipher, ala Thaksin Shinawatra.

Of course there would still be the Carroll verdicts but the guy’s worth 2 billion— just ask him!

[Estragon]

Oh, and he has to return the rest of the documents or tell us where they went.

[Brett Bellmore]

If there are any "rest of the documents", they probably explain why he hasn't been offed yet.

[Estragon]

There almost certainly are. There are texts between Nauta and (probably) Ivanka (it’s either her or Melania) about loading boxes of docs (curated from the larger set) onto the plane that went to Bedminster for the summer.

[Sam Bankman-Fried]

Yeah, Trump wants to have sex with both of them…and so do I. 😉

[Life of Brian]

Sweet Heyzeus. Proof positive that whackjob conspiracy theories are indeed a bipartisan phenomenon despite much wishful thinking to the contrary.

[Estragon]

Wrong place, posted below. You should read the indictment, it’s in there.

[Life of Brian]

I'm afraid this isn't treasure hunt night. Wrong which place? Below where? Which indictment? And how does mentioning a whackjob conspiracy theory somewhere in an indictment somehow normalize it?

[Estragon]

Gosh you are tiresome. These are phone records.

https://www.justice.gov/storage/US-v-Trump-Nauta-De-Oliveira-23-80101.pdf

I would like to direct your attention to page 23.

[Estragon]

See e.g. my comment on the Mackey thread about huckleberries confidently opining about what they believe the source materials say, rather than what they actually do.

[Estragon]

Oh don’t take your ball and go home

[Estragon]

“I’m afraid this isn’t treasure hunt night.“

It’s turned into hide and seek night seems like. Where’d you go Brian?!

[Estragon]

Proof positive you didn’t read the indictment my guy!!!

[Nige]

Ooh, do you think they're the documents that prove the 2020 election was rigged?

[ObviouslyNotSpam]

Don't be ridiculous. Giuliani has those documents--he said so!

[Nige]

Turns out those were Four Seasons Gardening brochures.

[OtisAH]

Kudos for not going with “all charges dropped if he drops out of the race.” For one it’s a bad faith argument made by people who just want to see Turnip skate. For another it misleads people toward the bullshit assertion that Turnip is only being charged for all of his crimes because he’s running. He’s charged for his crimes because he’s a criminal.

But he’d honor your deal the same as he honors any other. No deals.

[Brett Bellmore]

He's not being charged with bullshit crimes because he's running. It would be closer to the truth to say he's running because he's being charged with bullshit crimes; They've seen to it he can't just retire.

He's being charged with bullshit crimes because he had the gall to win in 2016.

[Sarcastr0]

If you think the charges are bullshit, the solution is to beat them in court.
Because your personal take is not and cannot be determinative of what is and isn't legit.

The solution is not to whip up a new, overbroad rule, that turns Presidents into Kings.

The solution is also not terrorism.

If your society is truly unjust, and you still want to stay in it, then the way forward is what MLK pioneered - civil disobedience and protest.

[Brett Bellmore]

Right. Over and over, and over again. When you've got a lunatic judge in NY who tried to have Trump's business empire shut down and sold off for pennies on the dollar before holding the trial, for instance.

Sure, in theory if you get a hundred charges brought against you in a hundred jurisdictions, you just have a hundred trials, and if you're innocent you'll win every one, right? No biggy. After that, what are you doing this Saturday?

[Sarcastr0]

Sure, it’s the lunatic judge. Or the lawyer was bad. Or the jury was tainted.

You are echoing the rationales you hear in prison from convicts. With about the same outcome-oriented reasoning.

And then you pivot to Trump being in court too much. Which is not a great defense for an indicted dude.
And is laughable if you know the first thing about Trump’s history of lawsuits.

And this is your argument for *absolute immunity?*
Whining that Trump is 91-times an innocent persecuted victim is not an argument.

[Brett Bellmore]

Yeah, when a judge proposes to impose the penalty before the trial, I'll call them a lunatic.

"And this is your argument for *absolute immunity?*"

I have no argument for absolute immunity, I keep saying that I find immunity claims absurd. That doesn't mean I can't think the lawfare he's not immune to is bogus.

[Sarcastr0]

So you're very wrong AND irrelevant to the discussion in the OP and this thread.

But eager to let everyone know how innocent you've determined Trump to be.

OK then.

[Imreasonable]

Brett, do you have a law degree? Because, if you read the charges, you will see the validity. Grand juries had no issue with them, for one. And, sure, no issue that Biden & Obama has classified docs, but they turned them over as soon as revealed.. no hide and seek in bathrooms. Plus, a very significant binder with state secrets is still missing. And, he called for armed rally goers to march with him to the Capital. Charging him doesn't seem like b.s. to most of us.

[OtisAH]

People like to ask “Doesn’t Turnip understand he’s arguing that Biden can have him assassinated?” No, he doesn’t because the argument is specific to him. He doesn’t mean “presidents.” He means “Donald J. Turnip.” Besides, for no less than 30 years now it has been an article of faith among Republicans and now MAGA that democrats are not allowed to act as president. So even if there is broad, unlimited presidential immunity (there isn’t), it only applies to MAGA just like every other right and privilege of the presidency.

[Orbital Mechanic]

I'm sure your argument would be exactly the same if it was someone named Clinton or Obama who made that speech. Right?

That aside, the prosecution is hardly relying on that one "standard red meat" speech. There is an extensive narrative and pile of evidence to back it up of his actions before and after that support the charges.

But by all means keep pretending that it is just a political attack on Trump's free speech rights, if that is what keeps you warm at night.

[rloquitur]

You're an idiot. First of all, Hillary really should have been prosecuted for her secret server etc. etc. But certainly not for speeches etc. etc. Trump's dox--seems like small beer to me, but the Jack Smith prosecution is just a prosecution in search of a crime. He wanted Congress to vote a certain way--he asked them to do it. Not a crime, dude.

[Sarcastr0]

Prosecutor-and-judge rloquitur has ruled!

[Rev. Arthur L. Kirkland]

Sputtering, disaffected, faux libertarian, right-wing bigots are among my favorite culture war casualties . . . and the precise target audience of a white, male, movement conservative blog with a receding academic veneer.

[MollyGodiva]

Trump is being criminally charged for stealing classified elections and spearheading a months long attempted coup.

[rloquitur]

And so let's say Congress agreed and said, you know what, Biden colluded: (1) with the feds to suppress the truth of the Hunter laptop and (2) in lawsuits to overturn ballot integrity laws, and therefore we are going to throw out Biden's electors and approve Trump's, then what?

That little thought experiment proves how f'd up Jack Smith's case is.

[MollyGodiva]

None of those are crimes. Hunter's laptop is not relevant. What you call ballot integrity laws the rest of us call voter suppression. Nothing Clinton, Bush, Bush Jr, Obama, and Biden did comes remotely close to Trump leading an attempted coup. It is just crazy that anyone would support him after that. His supporters yell the loudest about respecting law and order, yet give Trump a pass on one of the worst crimes in US history.

[Michael Ejercito]

What was this attempted, months-long coup?

[ObviouslyNotSpam]

Don't be obtuse.

[Sam Bankman-Fried]

Bush tortured detainees in order to elicit false confessions tying Saddam to 9/11.

[Nige]

Bush Jr started a war that went on for ten years under false pretences. Also, the torture thing, and throwing pallets of money away. Not to downplay Trump, but Bush Jr and his gang are real fucking monsters.

[ObviouslyNotSpam]

And yet, Obama declined to prosecute him. Presumably, not because he believed Bush was immune, of course.

[Nige]

Oh it was all in the interests of letting sleeping dogs lie.

[OtisAH]

“… yet give Trump a pass on one of the worst crimes in US history.”

This is true but also highlights what a bang-up job Aileen Cannon is doing in Florida. The man stole classified documents, refused to return them, and almost certainly gave or allowed look-sees at some of those docs to/by our enemies and putative allies like the Saudis. Yet the story is almost entirely written out of everything that is happening. Few people possibly even remember the case exists until they see the odd headline here or there at this point.

[Randal]

It’s not “lobbying” when you know what you’re asking for is illegal and you're backing up your “request” with threats and violence.

Maybe you don’t think that’s what happened, but that’s what he got indicted for. Not “lobbying.”

[Michael Ejercito]

What was illegal about what was being asked for?

and what were the threats and violence?

[Randal]

I invite you to read the indictment.

[Michael Ejercito]

The indictment argues that constitutionally-protected speech in a crime, and fails to allege anything that violates clearly established law.

[Randal]

Wow are you a moron!

The indictment explicitly excludes constitutionally-protected speech:

The defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.

The charges are about fraud and obstruction, not speech.

fails to allege anything that violates clearly established law

Even if that were true (it's not, fraud and obstruction are clearly established crimes), Qualified Immunity only applies in civil suits.

[Michael Ejercito]

The charges are about fraud and obstruction, not speech.

Not by any normal definition.

By Jack Smith's interpretation, the Cunt®™ (legally known as Hillary Rodham Clinton), Adam Schiff, and Robert Mueller would be guilty of fraud against the United States solely for their promotion of "Trump Colluded with the Russians®™ to Steal the 2016 Election" propaganda campaign.

[Randal]

Oh? What official proceeding were Hillary, Adam, and Robert obstructing?

[Sam Bankman-Fried]

So you believe Trump should have been impeached for appointing Rodenstain?? Because Rodentstain appointed Mueller.

[Michael Ejercito]

Oh? What official proceeding were Hillary, Adam, and Robert obstructing?

The executive power of the President.

[Randal]

The executive power of the President.

Hahahaha oh good one. Wiping away tears over here.

[not guilty]

Michael Ejercito, have you read the statute defining "official proceeding"? Yes or no? Per 18 U.S.C. § 1515(a)(1):

(a) As used in sections 1512 and 1513 of this title and in this section—

(1) the term “official proceeding” means—

(A) a proceeding before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a judge of the United States Tax Court, a special trial judge of the Tax Court, a judge of the United States Court of Federal Claims, or a Federal grand jury;
(B) a proceeding before the Congress;
(C) a proceeding before a Federal Government agency which is authorized by law; or
(D) a proceeding involving the business of insurance whose activities affect interstate commerce before any insurance regulatory official or agency or any agent or examiner appointed by such official or agency to examine the affairs of any person engaged in the business of insurance whose activities affect interstate commerce;

Which subsection covers the executive power of the President?

[not guilty]

Still waiting, Michael. Which subsection covers the executive power of the President?

[MollyGodiva]

Stealing classified documents is a well defined crime. Also people do not get a free pass out of jail just because they manage to come up with a crime that has not been specifically done before. That has never been the standard. Attempted coups are clearly illegal.

[Michael Ejercito]

Also people do not get a free pass out of jail just because they manage to come up with a crime that has not been specifically done before.

Here is the thing.

The principle of "ignorance of the law is no excuse" presupposes a fair chance to understand what the law prohibits or commands.

[Nige]

Are you saying Trump's too stupid to understand that he committed a crime?

[David Nieporent]

Are you saying Trump’s too stupid to understand that he committed a crime?

That may actually be true. It's certainly more plausible than his other defenses.

[ObviouslyNotSpam]

It's not stupidity. More like a mental illness, in which he cannot distinguish reality from fantasy. I'd accept that.

[OtisAH]

Why do you support for POTUS an adult who is incapable of understanding the law?

[Bruce Hayden]

How does he steal classified documents? What he did was order the GSA to ship the boxes containing his papers and records to his home at MAL, where they were secured by the Secret Service.

[Nige]

Then what happened?

[OtisAH]

Thanks for that summary of the abstract of the Reader’s Digest version of what happened when Turnip stole classified documents.

[David Nieporent]

Bruce lies in even the smallest ways. They were not "secured by the Secret Service." The Secret Service is tasked with ensuring the physical safety of an ex-president, not acting as security guards. They have no responsibility for preventing thefts at one of his buildings.

[ReaderY]

And when Don Corleone tells Peter Clemenza the family would be better off without Pauli, he’s just offering a run-the-mill opinion about his personal home life. Where’s the crime?

[Krayt]

Knowing QI is a hated thing, let's liken Trump's claims to it to associate it with QI hatred. Excellent rhetorical use!

Also, QI sob stories are presented as if the perps get off scott free. Rarely do stories talk of other legal consequences. As mentioned, QI is about civil liability AKA lawsuits. I wonder why legal ramifications are not mentioned. Could it be that diffuses the anger over it, which is not in keeping with money flowing into the pockets of lawyers? We need outrage! Thinking they got away with it when QI is approved, when quite probably that wasn't the only comeuppance, serves the rage.

[Krayt]

Ironically I don't have problems with much of the lawsuits, but I also monitor the motivations.

[Randal]

What other legal consequences?

[Brett Bellmore]

I think the reason legal ramifications aren't mentioned is that prosecutorial discretion means that often the civil route is the only hope of levying ANY consequences on the cop.

[EscherEnigma]

What are you talking about?

In many cases where QI is invoked, there are no legal consequences because cops and prosecutors decided to "Back the Blue" over pursuing justice, and a civil case is the closest the government employee is ever going to get to justice.

[iowantwo]

No mentioning of Obama executing an American Citizen without due process.
That crime of murder has no SOL. Trump can have his DoJ issue pre meditated murder charges.

[Krychek_2]

This would be the US citizen who chose to become an enemy combatant? Sure. Bring that prosecution. Maybe the judge will be able to stop laughing long enough to sign a dismissal.

[Don Nico]

Said who, K_2? Mr Obama's murder of Alawaki and his son in two distinct actions was in both cases completely extra-judicial.

[ReaderY]

It was not, however, extra-military. All military combat is extra-judicial.

[ReaderY]

I mean, Obama has nothing compared to the number of murders Lincoln committed. Or Roosevelt.

[Don Nico]

Miltary in the sense that Mr Obama was engage in a war to help KSA with neither authorization from or discussion with the Congress. Since were were not in a war, how was he our enemy?
It was murder of a US citizen with no due process. Stop trying to defend the indefensible.

[ReaderY]

Well, the Authorization for the Use of Military Force Congress passed after 9/11 was a heck of a lot more Congressional authorization than Lincoln had gotten when he got US troops to start shooting at those peacefully protesting Confederates. Since we were not in a war, how were they our enemy? Big murderer, that Lincoln!

[Sarcastr0]

You can argue policy or practice, but murder? That's just drama.
What's the jurisdiction?

[iowantwo]

US jurisdiction. Or do citizens lose rights when the leave our borders.

Eric Holder, at the time, claimed the President has the same power on US soil. Nobody mocked Holder.
The question becomes, who but the President, decides what is within Presidential powers?
A conundrum.
Of course congress can impeach the President and Senate convict. That would then open the path for the DoJ to file charges with the impeached person no longer in office. That would be the same legal argument Trumps lawyer used, replying to the judges hypothetical.

[Sam Bankman-Fried]

I think it was the Nixon DOJ—a sitting president can’t be indicted in a criminal matter.

[iowantwo]

And that is why Ford gave Nixon a full pardon. To stop any potential litigation.

[Sarcastr0]

Sounds like you mean federal.

But what crime? Even assuming your janky theory of guilt, there is no generalized federal murder statute. Because murder is usually a state crime.

[Life of Brian]

Your hot new theory -- just in the nick of time and for this situation only -- is that federal officials somehow can't be charged with murder because they're in the States but somehow not in a state?

[Estragon]

Are you touched in the head? It’s in the complaint.

[Life of Brian]

Didn't realize Obama had been officially charged with murder for drone strikes while in office. Did you maybe not read the subthread you parachuted into?

[Estragon]

Wrong place. Mea gulpa.

[iowantwo]

Bringing this back around to Trump, He has not been charged with insurrection. Thus Trumps lawyer stating a President can only be charged once removed from office by impeachment

[Sarcastr0]

It's a pretty weird situation.

And an academic one - not many actually think Obama is gonna be prosecuted for bombing that guy.

You don't go after my analysis, but ad hominem. Not even your usual shitty pedantry. That's how I know you've got nothing.

[Life of Brian]

You've provided no "analysis" and there's nothing to "have." Once again, you're engaging in grade-school "touching base" theory to coyly suggest there's some sort of bespoke (sorry, "pretty weird") rule that would somehow absolve Obama but not also apply to Trump.

[Nige]

What does that mean? When did Obama invoke immunity about, well, anything?

[Social Justice is neither]

Leftists like Sarcastr0 don't engage in analysis so much as "anal yes" in that they pull an argument out of their ass with which they agree with the byproduct that their arguments usually stink.

[Don Nico]

Of course no one went after Obama or is going to do so.
That does not mean it was eiether a legal or right thing to do.

[Sarcastr0]

This thread is explicitly not about the policy question (i.e. 'You can argue policy or practice, but...'. Or the moral question. iowantoo and LoB are talking specifically criminal liabilty.

I agree with you, its a much sillier question than the policy and moral inquiry.
But here we are.

[not guilty]

There are numerous federal statutes which criminalize murder, but such a statute ordinarily requires proof of additional facts showing a nexus to federal interests.

[Armchair]

US Code 1119

(a)Definition.—
In this section, “national of the United States” has the meaning stated in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)).
(b)Offense.—
A person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113.

This has been another episode of lawyers not knowing the federal criminal code.

[Sarcastr0]

This definition criminalizes nothing; it is a definition to be used by other statutes.

[Armchair]

"(b)Offense.—"

This has been another episode of reading comprehension for dummies.

[Sarcastr0]

"No prosecution shall be approved under this section unless the Attorney General, in consultation with the Secretary of State, determines that the conduct took place in a country in which the person is no longer present, and the country lacks the ability to lawfully secure the person’s return. A determination by the Attorney General under this paragraph is not subject to judicial review."

You're just awful at this. Cutting a statute short in order to look correct does not make you actually correct.

I don't know federal criminal law; maybe there is some part of it that would cover that killing (assuming it was found to be unlawful). But you are, as usual, doing a piss poor job of lawyering.

And coming in real hot that all the actual lawyers (as set I am not part of) are morons when confronted with your incisiveness, which is needless and sure makes you look like a stupid asshole.

[Armchair]

If you're not being deliberately obtuse, you're being deliberately deceptive. The law's pretty clear.

The US can prosecute if one US national murders another US national, even if it's in a foreign country (and the foreign country doesn't prosecute for whatever reason). Case law on it is pretty clear (US v White, 1991).

[not guilty]

"This has been another episode of lawyers not knowing the federal criminal code."

If that barb is directed at me, how does the statute you cite differ from what I said? In addition to the defendant having killed or attempted to kill another person, the prosecution needs to prove that the defendant was a national of the United States and that the victim/intended victim was a national of the United States who was outside the United States but within the jurisdiction of another country. Those essential elements relate to federal interests, in that no state would have extraterritorial jurisdiction to prosecute a killing that occurred entirely outside the state's borders.

[iowantwo]

But what crime? Even assuming your janky theory of guilt, there is no generalized federal murder statute.

I have no "janky theory" I only laid out the Existing Constitution process. The "crime" would be identified in the process, Yes?
Thats why process is important.

[Sarcastr0]

The “crime” would be identified in the process, Yes?

What? No.
What process are you even referring to? Congressional oversight? Impeachment?

[Don Nico]

Yes, murder.
The jurisdiction was either DC or the air base from which the drone was flown. The jurisdiction was in the US.

[TwelveInchPianist]

"You can argue policy or practice, but murder? That’s just drama.
What’s the jurisdiction?"

Are you suggesting that the President can order Seal Team 6 to assassinate a political rival as long as he happens to be outside the US?

[Sarcastr0]

I’m saying we may not have a current law that covers that.

[Armchair]

(a)Definition.—
In this section, “national of the United States” has the meaning stated in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)).
(b)Offense.—
A person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113.

[Sarcastr0]

shall be punished as provided under sections 1111, 1112, and 1113.

section 1111: "Within the special maritime and territorial jurisdiction of the United States"
section 1112: "Within the special maritime and territorial jurisdiction of the United States"
section 1113: "within the special maritime and territorial jurisdiction of the United States"

[Armchair]

"outside the United States but within the jurisdiction of another country"

This has been another episode of reading comprehension for dummies.

[Sarcastr0]

The full passage you quote shows that language is not creating a new offense for all murders done outside the United States:

"(a) Whoever kills or attempts to kill a foreign official, official guest, or internationally protected person shall be punished as provided under sections 1111, 1112, and 1113 of this title.
...
(c) If the victim of an offense under subsection (a) is an internationally protected person outside the United States, the United States may exercise jurisdiction over the offense..."

[Armchair]

If you're not being deliberately obtuse, you're being deliberately deceptive....and citing completely different laws to try to confuse the issue. But the actual law, (18 U.S.C. § 1119) is pretty clear.

The US can prosecute if one US national murders another US national, even if it's in a foreign country (and the foreign country doesn't prosecute for whatever reason). Case law on it is pretty clear (US v White, 1991).

[Don Nico]

Death from the sky. Drama? it does not get more dramatic even if you approved of it.

[Sam Bankman-Fried]

Trump killed a little American girl—did that make your dick hard when Trump assassinated her?? Probably the last time that happened. 😉

[Social Justice is neither]

No mention of the thousands of incidents of human trafficking by Biden as they bypass every last security standard and hoop lawful passengers must abide by to dump illegals all over the country.

[Nige]

This always seems like such a silly, albeit routine for the right, lie, except it's foundational to the Great Replacement conspiracy theory and currently a driving for of US conservatism.

[OtisAH]

Sure there is. You can go to the even stupider corners of the internet to see it now or wait a few minutes and one of the local jackasses will be along to join you.

[Rev. Arthur L. Kirkland]

Stupider corners of the internet than the current (Calabresi, Blackman, Volokh) version of The Volokh Conspiracy?

That sounds unlikely.

[MollyGodiva]

Alawaki and others had ample time and warning to turn themselves in. Instead they choose to be international terrorists. They are legitimate targets.

[iowantwo]

They are legitimate targets.

What due process is that? Or are you talking about the Presidents power to make the call?

[Don Nico]

Says you. You are not authorized to sanction murder from the sky.

[Randal]

Go for it, bring a charge against Obama. Who cares? We don't worship our politicians like you guys do. People get charged with crimes all the time.

Somehow you feel humiliated by Trump's crimes. The way to avoid being humiliated by Trump is to move on. Stop making excuses for him. Re-electing him isn't going to make the rest of us respect you or him. It's just going to give him more opportunities to humiliate you, Republicans, and all Americans.

[Randal]

Speaking of Trump's humiliations... he challenged Nikki to a dementia test over the weekend.

Oh lordy.

[Paladin_44]

Now that would be worth the price of admission. Any thoughts on who the administrator of the test should be? So many choices, so little time!

[Estragon]

Judge Judy!

[EscherEnigma]

I doubt such a case would be successful --not on the merits, but just for political reasons-- but I would welcome a DOJ to attempt to bring it.

We should be holding our presidents more accountable, not less accountable.

[iowantwo]

We should be holding our presidents more accountable

Who is this "we" ? DoJ? The corrupt DoJ?

But of course "we" can hold the President more accountable. By acting through our elected representatives using the Impeachment process.

[Randal]

Ah, yes. Let's impeach Obama for murder. That makes sense!

[Don Nico]

That was not the point. The point is that the public is willing to overlook even extra-judicial murder when it approves of the policy under which presidents take unauthorized action, such as joining a military operation in a proxy war.

[Randal]

That was not the point.

Whose point? This is your first contribution to the conversation. And a bit of a non-sequitur I must say.

[Don Nico]

That was my point. Are you looking to make an argument for the sport of it?
In fact, my comment was on point. Most of the commenters think that Mr Obama had immunity.

[Randal]

Do you typically enter conversations with “That was not the point?”

It’s very forward.

“Hi, I’m Randal. Nice day, don’t you think?”

“That was not the point. The point is that I prefer a warmer climate.”

[Sarcastr0]

extra-judicial murder

question begging. I don't think its a slam dung either way, but you don't get to assume.

[Don Nico]

S_0, Aside from Mr Obama, who sanctioned the murder? Be specific.

Where was the Congressional discussion of whether the US should have joined KSA mad bombing in Yemen?
You typically excuse a lot when the questionable deeds are done by a hero of yours.

[Sarcastr0]

Even calling it murder is question-begging.

I like that you call it an excuse that I haven’t convicted Obama already in my head already.

I explicitly don't absolve him or convict him.
You’re the overdetermined one here.

[iowantwo]

I explicitly don’t absolve him or convict him.

The question is not if Obama is Guilty

The only original question is does the president have unqualified immunity for crimes committed while in office?
There is no doubt a charge for killing a US citizen can be brought. Guilt or innocence would be delivered by a jury.
But the man is dead on direct orders of the President.
Again guilt is not the debate
Does immunity attach? Or do the double standards kick in?

[Sarcastr0]

You, above: "That crime of murder has no SOL."

You made guilt an issue.

No new goalposts.
Especially pretending something no one is arguing against is 'the debate.'

[Sam Bankman-Fried]

Trump’s first military order was for SEAL Team 6 to assassinate a little American girl. 9 other children and an SEAL were killed in the raid…but it was all worth it because the little American girl called Trump a poop head and so she had it coming. 😉

[ObviouslyNotSpam]

Why are you bringing up Obama?

(Especially considering Trump did the same thing within two weeks of assuming office.)

[ah....Clem]

Keep in mind that the argument is not "Trump is innocent."

The argument is "Trump is allowed to commit crimes with impunity, so he should not be held accountable for the crimes he has already committed. Or for the ones he is planning to commit in the future."

[Roger S]

If Trump is immune, then he is innocent. He has a right to give a speech, anyway.

[Nige]

No, if he's immune, he's above the law, which has certainly been the main argument in his defence.

[ReaderY]

The idea that “If Trump is immune, then he is innocent” is precisely “the king can do no wrong.” Not just can’t be prosecuted, but irreproachable. Americans didn’t want a king. This was a big part of the reason why.

[Roger S]

The US DoJ takes the position that the President has no immunity at all. I expect scotus to find a compromise.

[Flight-ER-Doc]

Really? The police officers in Fresno, CA who stole cash after a drug raid and were found to have QI because it wasn't explicitly pointed out to them that stealing is bad is civil, not criminal?

[Michael Ejercito]

Very great point!

[MollyGodiva]

No. The test is not "do the cops know what they did was illegal". The test is "Did the cops know what they did was a violation of constitutional rights." That is even a higher burden.

[David Nieporent]

Correct. But it was indeed civil rather than criminal.

[Voize]

Constitutional rights or federal statutory rights.

[EscherEnigma]

Yes.

QI isn't relevant to criminal cases. If you hear about a case where QI is being brought up, then it's a civil case, not a criminal case.

Remember that the same event can have both a criminal and a civil case. Remember OJ Simpson? He wasn't found guilty in his criminal case, but he was found liable in the civil trial.

Cases with cops can be the same. The cop may walk free in the criminal case, only to face a civil case. The cop may never get criminally charged because the prosecutor is A-OK with criminal cops, and still face a civil case.

[Michael Ejercito]

Here is the thing, though.

Must a prosecution allege an act that would violate clearly established law to be valid?

https://rumble.com/v37z0jb-system-update-131.html

At 1:05:44, Glenn Greenwald conceded "You could think of crimes that could be easily committed in furtherance of a criminal scheme to overturn an election. Threatening people with violence, using violence, blackmail, extortion, bribery, et cetera."

Obviously, this principle applies with equal force to a scheme to pass a health care bill, or cut taxes, or fund highways.

[Randal]

Obviously, this principle applies with equal force to a scheme to pass a health care bill, or cut taxes, or fund highways.

Yes, yes it does. You're learning!

[Drewski]

Yeah. They weren't found to have QI in a criminal case, because (a) that's not a thing and (b) they were not criminally charged. Instead, the victim sued them for violating constitutional rights. A lawsuit is a type of civil action. This one was dismissed on qualified immunity grounds.

Which is to say, it's not the act that is criminal or civil, but the type of action brought in court. Typically prosecutors bring criminal actions while victims (and government agencies) file civil actions.

[F.D. Wolf]

In this post, Somin endeavors to refute a legal argument no one has made, unless you wish to interpret a Tweet from Trump, a non-lawyer, as a legal argument.

In Nixon v. Fitzgerald (1982), the plaintiff sued former President Nixon (and others), claiming Nixon (while he was President) had wrongfully had him fired from his government position in retaliation for testimony he had given to Congress, in violation of whistleblower protection statutes. A 5-4 Court held the President was absolutely immune from lawsuits related to his conduct within the “outer perimeter” of his official acts.

The reasoning the Court gave was the President cannot be hampered in his duties with concerns about future lawsuits. The dissenters argued that, by that reasoning, the President would also be immune from criminal prosecution. After all, it would be illogical to say, “We can’t have the President worried about lawsuits when making decisions,” but it would be alright to have him worried about criminal prosecution. Of course, one could argue Fitzgerald was wrongly decided, but, nevertheless, it is precedent.

We all know Trump will lose at the Court of Appeals, because the D.C. Circuit is partisan trash that will always rule against Trump, but what the Supreme Court says could be interesting. I would be hesitant to even hazard a guess as to which way it would go. Or, more pointedly, I wouldn’t guess which way Roberts, Gorsuch, Kavanaugh, or Barret would go. (As for the others, I think I could probably guess).

[Randal]

They will deny cert.

[Don Nico]

That would be the most prudent and practical course. The three votes for cert are Thomas, Alito, and Gorsuch. All the rest would likely prefer (or could be persuaded by Roberts) not to take this case.

[Randal]

I don't think even Thomas or Gorsuch is that craven.

[Don Nico]

Well, I can hope so. But I also hoped that Haley would have come much closer than 10% in NH.

[not guilty]

SCOTUS granting the writ of certiorari requires four votes. A stay of proceedings in the lower court requires five votes.

I suspect it is unlikely that Donald Trump could persuade four justices to grant cert to the D.C. Circuit but fail to persuade the fifth justice to grant a stay, but that outcome is theoretically possible.

[David Nieporent]

but what the Supreme Court says could be interesting. I would be hesitant to even hazard a guess as to which way it would go.

SCOTUS will deny cert, but if it granted cert would rule 9-0 against Trump's "I am the King!" principle.

[Michael Ejercito]

If it has to go that far.

[F.D. Wolf]

Your argument is as compelling and thought-provoking as always.

[Don Nico]

I hope that you are correct

[ObviouslyNotSpam]

Sorry, but I think we're entitled to take Trump at his word. He doesn't get to operate in a universe where he alone decides what his words mean, a la Alice in Wonderland.

I don't mean we can always take him literally, but a reasonable interpretation of his words sounds reasonable to me.

For example, I took Trump seriously when he inveighed against the FCPA: "In May 2012, during a telephone appearance on CNBC, Donald Trump called the US Foreign Corrupt Practices Act (FCPA) a “horrible” and “outrageous” law and claimed that it put American businesses at a “huge disadvantage”."

According to the New York Times, soon after ascending to the throne, Trump tried to have the FCPA repealed: "President Trump wanted to strike down a law that prohibits companies from bribing foreign officials, calling the ban “so unfair” to American companies, two Washington Post reporters recount in a new book.

In the spring of 2017, Mr. Trump was at a briefing with Rex W. Tillerson, then the secretary of state, and aides in the Oval Office. At the mention of a bribery allegation, Mr. Trump “perked up” and told Mr. Tillerson that he wanted his help in scrapping the Foreign Corrupt Practices Act, the authors write.

That law, enacted in 1977 and heavily enforced since around 2005, prohibits companies that operate in the United States from bribing foreign officials to obtain or retain business. It has become a major factor in corporate decision-making about operations abroad.

Mr. Trump said that it was “just so unfair that American companies aren’t allowed to pay bribes to get business overseas,” according to the book, “A Very Stable Genius,” by Philip Rucker and Carol D. Leonnig.

“I need you to get rid of that law,” Mr. Trump told Mr. Tillerson.

Mr. Tillerson explained to the president that he could not simply repeal the legislation, according to Mr. Rucker and Ms. Leonnig. He pointed out that Congress would need to be involved in any effort to strike it down.

Undeterred, Mr. Trump told Stephen Miller, a senior policy adviser, to draft an executive action to repeal the law. Mr. Tillerson, the authors write, later caught up with Mr. Miller in the hallway, where Mr. Miller said he had some skepticism about whether that plan for unilateral executive action could work.

The anecdote meshes with the president’s past views of the anti-corruption law. In a 2012 CNBC appearance, he called it a horrible rule and said that “the world is laughing at us” for enforcing it."

And, as it turns out, the statistics suggest that Trump's animosity towards the FCPA may have influenced its enforcement during his Administration: "[f]rom 2017 through 2020 during the Trump administration, however, DOJ resolved a total of 83 corporate and individual FCPA enforcement actions, averaging 22 resolutions each of those years. This Trump-era average marked a 50% decrease in resolutions compared to the preceding eight years."

[Old Smokin' Egg]

So does Trump's legal theory mean that Biden could have Trump assassinated, without fear of prosecution?

[F.D. Wolf]

Possibly. Try asking Abdulrahman al-Awlaki about that. (Though you'll have to talk really loud.)

[Sam Bankman-Fried]

Why don’t you try asking his little daughter—the one Trump ordered SEAL Team 6 to assassinate. Only 1 SEAL died while killing her and so it was a successful mission.

[David Nieporent]

So does Trump’s legal theory mean that Biden could have Trump assassinated, without fear of prosecution?

Yes! That was Trump's lawyer's position before the D.C. Circuit.

[Estragon]

Cmon David, you’re not being fair…
I believe the position is that the assassination would be non-prosecutable if Congress has declined to impeach for that act. I could be mistaken though, the argument was a little hard to follow

[Randal]

So he just has to resign if it looks like an impeachment is coming.

[Sam Bankman-Fried]

You do realize Trump assassinated a little American girl and didn’t get impeached for it?!?

[Life of Brian]

Cute, but as you may recall the constitutional navel gazers were already declaring that not to be a barrier in Trump's second impeachment.

[Sarcastr0]

1) You dinging people for academic questions while diving into the debate of whether Obama is guilty of murder is about the level of consistency I expect from you.

2) I think you can still impeach once someone is out of office, but Randal might not agree with those naval gazers.

[Life of Brian]

Who's dinging who for what, dingbat? I was just reminding him there's a theory out there. One that -- once you get done chastising me for bringing it up -- you apparently actually agree with.

Your obsession with scraping up/making up something -- anything -- to pick at in nearly every single one of my posts seems to be bordering on LOBDS.

[Sarcastr0]

Oh, I’m sorry maybe constitutional navel gazers was complementary.

Do you even recall the shit your write?

Also what is accusing me of LOBDS? You reply to me about as much as I reply to you.

Rest assured, I do not seek out your posts.

[iowantwo]

I think you can still impeach once someone is out of office,
The Constitution only mentions which positions are eligible for Impeachment. Private citizens not on the list

[ObviouslyNotSpam]

Trump was impeached while in office; his impeachment trial took place after he had left office.

Impeachment refers to the House resolution which is used to trigger a trial in the Senate. It does not refer to the entire process from start to finish. That is why we can say that Trump was impeached twice, despite him having been acquitted both times by the Senate.

Colloquially, of course, people do use the term "impeachment" to refer to the entire process, but no lawyer should do so.

[iowantwo]

None of that is relevant to the comment I posted, or the thread it is attached to.

But I'm sure your pedantry makes you feel special

[Randal]

It’s hard to think about because the premise is so ludicrous… really it just serves to reinforce how ludicrous the premise is.

So let’s say SCOTUS were to ludicrously agree with Trump that ex-POTUSes can only be indicted on charges that they’ve already been impeached and convicted over.

Let’s further assume that there’s no legal hurdle to impeaching someone who’s out of office. It seems pretty loopy, but maybe that’s just because in the real world, the only penalty is to remove them from office, so… why do it?

But if Trump is right, there’s an additional penalty: it opens you up to criminal prosecution. So that means, if DOJ wants to prosecute, it first has to convince Congress to do an impeachment, potentially years after the fact. (Calabresi’s ridiculous Bill of Attainder theory starts to look a little better in this world.) That implies that the prosecution becomes a political question… any future Congress can impeach, which means candidates for the House and Senate will run on impeachment of past Presidents.

That sounds pretty fucking dystopian to me. You guys are all concerned that these Trump prosecutions are political. Wait until Senators are running on a platform of Trump-imprisonment. You couldn’t get more un-American.

Fortunately, the Trump argument that gets us there is too ludicrous to worry about.

[Life of Brian]

Let’s further assume that there’s no legal hurdle to impeaching someone who’s out of office. It seems pretty loopy, but maybe that’s just because in the real world, the only penalty is to remove them from office, so… why do it?

How quickly you forget: the second, out-of-office impeachment was the first hot edgy theory for how they were going to disqualify Trump from ever running again. The pesky lack of a Senate conviction meant 1) the hot edgy theory didn’t get to be tested; and 2) new and improved hot edgy theories were needed (A14S3 being the current winner by far, but probably will need to be displaced with yet something else in a month or so).

[Randal]

How quickly you forget. He was impeached while in office, and the Senate declined to convict because by then he was out of office. You were right the first time with the navel-gazing.

Nice to see stark confirmation that you’ll take whatever side of the argument gives you the best opportunity to make a snarky, meaningless comment, even if it means flip-flopping from one comment to the very next.

[Brett Bellmore]

"and the Senate declined to convict because by then he was out of office."

Well, they declined to convict, anyway. Some of the Senators who voted to acquit might have had that reason. But a fair number made clear that they voted to acquit because they thought he was innocent.

[David Nieporent]

Nah; nobody thought he was innocent. Votes to acquit were split between those who were spineless cowards and those who just don't think a Republican (especially Trump) should be held accountable for his actions. Some used the pretext that he was no longer in office.

[Brett Bellmore]

Ah, your mind reading assures you that the ones who said they thought he hadn't done anything impeachable were lying.

[Nige]

Oh the ironing.

[Randal]

Hi everybody.

[EscherEnigma]

Literally, yes.

Good thing he's wrong.

[Don Nico]

I think that is indeed Trump's theory. And IF (big IF) SCOTUS found for Trump, then BIden would be in the clear.

[Jason Cavanaugh]

Absolutely, provided that he followed the legal arguments Trump's lawyers have offered.

1) The President can't be held accountable at all for anything he wasn't Impeached and convicted of first.
2) An Impeachment trial after someone has left office is unconstitutional.

If Trump were really being persecuted, Biden could easily order him assassinated, and would obviously have plenty of time to resign before an impeachment trial could ever begin, which would mean he couldn't be convicted for it by the Senate, and thereafter would have absolute immunity.

Perhaps Trump should be careful in trying to get exactly what he wants.

[iowantwo]

have plenty of time to resign before an impeachment trial could ever begin, which would mean he couldn’t be convicted for it by the Senate, and thereafter would have absolute immunity.

Remember that Ford took a bunch of flak for Pardoning Nixon. His stated motivation was to start the healing process.

[fafalone]

Don't forget 3) The penalties are limited to removal from office, because Trump has also claimed that the Senate trial causes jeopardy to attach, rendering any criminal prosecution for the same acts impossible.

[Brett Bellmore]

Which is really stupid on a level that's hard to fully express, since the impeachment clause pretty specifically says the opposite.

Some days I wish everybody involved could lose, simultaneously. The lawfare against Trump is obnoxious in the extreme, but some of the defenses he's proposing against it are so stupid the mind boggles.

Could we just drop all this and go back to deciding who's President by holding elections?

[Magister]

Could we just drop all this and go back to deciding who’s President by holding elections?

We did that in 2020, so there's no need to "go back" except that Trump committed a bunch of crimes to try to change that.

[Nige]

'Could we just drop all this and go back to deciding who’s President by holding elections?'

You vote for Trump, so you don't support that any more.

[Jason Cavanaugh]

You are correct; I had forgotten about that argument.

Trump supporters show precisely who they are and what they don't care about (the law) by their support of such a person.

[Brett Bellmore]

"Schwartz said the qualified immunity defense "is very strong, but it is not insurmountable….""

It might be more accurate to say that, depending on the judge in question, it ranges from very strong to genuinely insurmountable.

[Social Justice is neither]

Except this is Trumplaw so there is no standard, right or protection they will not shit all over just to get their devil.

[Rev. Arthur L. Kirkland]

Prof. Somin has spoken. It's Steven Calabresi's turn to speak on behalf of all other Volokh Conspirators and explain why unqualified (or absolute) immunity is the least original Americans intended (and the least current Americans can do) for their presidents and government.

Speaking as a libertarian, natch.

Carry on, clingers.

[Michael Ejercito]

I am not surprised that crimijnal defense attorneys go for maximlaist arguments.

However, qualified immunity should apply, as it requires that the alleged acts violate clearly established law, and Harlow v. Fitzgerald has not been overruled.

[David Nieporent]

Once again: Harlow is a civil case. This is a criminal case. There is no immunity of any sort for criminal cases — not absolute, not qualified. None.

The logic of Harlow doesn't particularly translate well to criminal cases, either. 330 million Americans (fewer when Harlow was issued) could decide to sue the president; that could be seriously harassing. Only one person — the next POTUS — can decide to prosecute him. And that person has an institutional incentive not to do so haphazardly.

[Michael Ejercito]

So how would a prosecution which fails to allege an act that violates clearly established law be justified?

[Randal]

The same way any prosecution is justified. Crime prevention, primarily.

In that sense, it's particularly important to prosecute novel crimes, lest they become more common and then difficult to prosecute once a precedent of impunity has been set.

[Michael Ejercito]

People would not have a fair chance to understand that their conduct violates the law.

Novel interpretations of criminal law by prosecutors can never be justified.

[Randal]

Are you trying to argue that Trump didn't know that fraud and obstruction are crimes?

I mean, he could try that in court. Sounds pretty pathetic to me.

[Michael Ejercito]

No, he had no fair chance to understand that his actions constituted fraud or obstruction under the interpretation set forth by Jack Smith. Other commenters pointed this out.

This is not the first bullshit prosecution brought on by creative interpretations of criminal law by prosecutors. Remember Rick Perry?

https://bbs.stardestroyer.net/viewtopic.php?p=3857818#p3857818

[Randal]

Jack Smith's interpretation is irrelevant.

[Michael Ejercito]

It totally is relevant, as he is the one arguing that the alleged acts violated the law.

[Randal]

Well, he's either right or wrong.

[not guilty]

I wouldn't call Jack Smith's interpretation of the law irrelevant. His understanding of federal criminal statutes and the application of such statutes to the facts of the cases guided the government's discretion in determining which offenses to present to the respective grand juries.

That having been said, whether the facts averred in an indictment constitute a criminal offense is not a question that can be raised as of right in a pretrial interlocutory appeal. Appellate review of that question, as to each count of the indictment, can be had posttrial in the event of a conviction.

[Randal]

I was trying to use simple words and ideas for Michael here. But to elaborate a little...

The prosecutor's interpretation of the law isn't given any deference by the court. Which eviscerates Michael's hope that Trump can win a dismissal on the crazy notion that he couldn't have predicted Jack Smith's interpretation of the law and is therefore not bound by it.

[Brett Bellmore]

"It was impossible for me to predict that [Jack Smith] would interpret the law in this way." isn't much of a defense.

"It was impossible for me to predict that the law would be interpreted in this way.", OTOH? Yeah, that's a defense.

How is "The alleged conduct isn't even a crime!" a defense you would have to wait until an appeal to raise?

[Randal]

“It was impossible for me to predict that the law would be interpreted in this way.”, OTOH? Yeah, that’s a defense.

Maybe in theory, but it doesn’t make much sense in practice, because courts try to interpret the laws the way they think they’ll be interpreted by the public, with additional pro-defendent tiebreakers like the rule of lenity thrown in.

In other words, it’s hard to imagine a case where the judge says: I think the best interpretation of the law is strict, so you’re guilty, but I also think the best public interpretation of the law is lenient, so you couldn’t have known. Case dismissed.

Instead, the judge’ll just say that the best interpretation of the law is the public interpretation, so case dismissed for failure to allege a criminal act.

[Brett Bellmore]

I don't think we're disagreeing here. The defense wouldn't be that Trump couldn't predict Jack Smith's interpretation of the law, but rather that he couldn't have predicted that the law would be interpreted in that way, period.

That goes to the public interpretation of the law, doesn't it?

[Randal]

I don’t think the defense can be “I couldn’t predict the public interpretation of the law.” The public interpretation of the law is defined as the interpretation of the law that the public — including Trump — would most naturally predict.

He can of course argue that the public interpretation of the law doesn't apply to his conduct. Basically everyone tries that argument.

[Sam Bankman-Fried]

Do you think Sununu is fucking Haley??

[F.D. Wolf]

Only the next POTUS can charge him? That will certainly come as news to the Manhattan and Fulton County district attorneys.

[Drewski]

"There is no immunity of any sort for criminal cases — not absolute, not qualified."

It's not relevant to the topic but that's too broad a brush. Prosecutors and courts can grant immunity from prosecution (by their jurisdiction), for example, usually in exchange for cooperation. Stand your ground laws confer criminal immunity for certain acts, as do some "blue lives matter" laws.

Those are just a few examples, but again I'm not suggesting this supports Trump's position or is relevant to it.

[Randal]

Stand-your-ground laws and the like are affirmative defenses, but not immunity.

An affirmative defense is an argument you can raise at trial in hopes of dismissal or acquittal. But you have to provide evidence and make a case.

Immunity -- in a criminal context -- means that you can't even be charged, so there is no trial to be had. That's (I think) a big reason why an interlocutory appeal is being allowed for Trump's immunity claim. If he's immune, the whole trial is out of order.

[not guilty]

Donald Trump's claim of absolute immunity from criminal prosecution is not at all comparable to qualified immunity from civil damage suits for government officials. The doctrine of qualified immunity in civil cases developed in the context of civil damages actions against state officials under 42 U.S.C. § 1983. See, e.g., Pierson v. Ray, 386 U.S. 547 (1967); Scheuer v. Rhodes, 416 U.S. 232 (1974).

Since the wellspring of the doctrine is statutory, a Congress with the testicular fortitude to do so could abolish qualified immunity for damages actions. Trump is asking (albeit without supporting precedent) for an absolute immunity from criminal prosecution for a president who has not been convicted in an impeachment trial, which Congress would have no power to abolish.

[iowantwo]

Trump is asking (albeit without supporting precedent) for an absolute immunity from criminal prosecution for a president who has not been convicted in an impeachment trial, which Congress would have no power to abolish.

Biden is the 46th President since the constitution. We are not talking about turning lose 10's of thousands of criminals, like the restorative justice crowd.

The Problem with all the rabid "get Trump" crowd, is the willingness to abandon all constitutional guard rails to make it happen.

This is all really simple. Absolute immunity unless impeached, and convicted while in office.

I will accept congressional action far more than anything the corrupt DoJ pushes.

All of these should be rare. But the radical lawfare groups set out the change the legal landscape to win at all costs.

Reinforcing the guard rails is needed to calm things.

As is evident, Biden and Obama are just as exposed, more so, in many ways.

[ObviouslyNotSpam]

No.

[Rev. Arthur L. Kirkland]

.

I will accept congressional action far more than anything the corrupt DoJ pushes.

Better inhabitants of the reality-based world seem unconcerned about what disaffected, flailing, delusional right-wing rubes will accept.

Thank goodness the better Americans have won the culture war and will establish the rules by which all will be governed and with which all (except those destined for incarceration) will comply.

[Kleppe]

I suppose the guy who refuses to utilize the "READ MORE" function on his screeds would be an expert in extremism.

[Number 2]

“Absolute” immunity goes beyond “qualified” immunity? Who would’ve thought?

Join us again tomorrow, when Professor Somin points out that two is greater than one.

[SRG2]

...while Calabresi explains why because of an 1869 article in a local newspaper, 2 is actually less than 1 for Constitutional purposes.

[Roger S]

Trump was the President. He should be getting better immunity than a regular police officer.

[OtisAH]

He did have that. It’s why he wasn’t prosecuted while in office.

[A nerdy Fred]

"Power tends to corrupt, and absolute power corrupts absolutely."

History is very clear what happens when humans cannot be held to account.

I would not want this absolute immunity even in the hands of the person I most admire.

[iowantwo]

History is very clear what happens when humans cannot be held to account.

But congress has to power to hold the President Accountable.
The People have the power to hold congress accountable.

Again, we have had ONLY 46 Presidents. Its not really a crime wave.

[Magister]

We had 36 presidents (well, one guy twice) with one impeachment, and since then we've had a resignation to avoid impeachment and two others impeached, the most recent of those twice and now indicted on many felonies. That sounds like a crime wave.

[Drewski]

This is all very strange since anything covered by QI should already be covered by the presidential immunity doctrine (which immunizes him from being named personally in ant civil suit for official acts). Even if SCOTUS stripped presidential immunity away today, he'd be immune to 1983 actions because Bivens doesn't cover the President. If the Court also extended Bivens to make him amenable to suit, I don't think there's any question that the President could then claim QI.

In short, he has QI but doesn't need it, and it doesn't apply to any of his current legal issues, so why the fuss?

[David Nieporent]

Because Trump himself is claiming he has immunity, basing that claim in part on the existence of QI.

[Armchair]

Really, what Trump is arguing for is more akin to absolute immunity (as that possessed by prosecutors or judges), rather than qualified immunity. Looking at his arguments, I think we need to ask a few questions.

1) Why does absolute immunity exist for judges and prosecutors?
2) Should it exist?
3) What would happen if it didn't exist?
4) What are the parallels between the actions that absolute immunity for judges and prosecutors are meant to protect, and actions the presidency may need a similar doctrine to protect?
5) Are there any parallels between civil prosecutions by a motivated plaintiff in cases covered by absolute immunity, and criminal prosecutions by a motivated political party?

Answering these questions may be enlightening.

[Brett Bellmore]

I've always assumed that absolute immunity for judges exists because judges think it's a good idea that they have it, and they're the ones deciding the matter. Same general thing with prosecutors.

[loki13]

I mean, that's certainly one argument! The people who make (or interpret) the laws, will do so in a way to favor themselves.

That said, there are actual reasons for this. First, we aren't talking about immunity from criminal action- this is in regard to civil liability. But the reason for it is more basic- litigation breeds litigation. That's why there are so many rules about collateral attacks and "meta-litigation" (litigation about litigation, such as suits for malicious prosecution, abuse of process, etc.).

Seen in that light, we don't want the players in the litigation process to go through collateral lawsuits simply because they are part of the litigation process already, especially when there are usually remedies within the litigation process. In addition to the immunities you discuss, the idea of a "litigation privilege" that attaches to and protects actions taken during (and in furtherance of) litigation is fairly well-established.

The other thing is that this wasn't invented out of whole cloth; the concept of judicial immunity in the common law was already established in England, and was well-known in the states and cited by the Supreme Court in the 1800s. So it's not exactly novel, but keeping in line with the common law.

[SRG2]

Yes, but note the exception that absolute immunity applies only when they're functioning as judges or prosecutors. If a judge or prosecutor acts as an investigator - per a case last year, IIRC - and violates constitutional rights, they lose their immunity.

Trump wants absolute presidential immunity for anything. Actually, he wants absolute immunity for anything he does while being Donald Trump
- as do his follower - but that's a separate issue

[Brett Bellmore]

Well, anyway, the whole idea is stupid. The Constitution only grants immunity in one place: To members of Congress. And it's quite limited immunity.

The idea that anybody else gets constitutional immunity, and a better grade of it for that matter, by mere implication, is ludicrous. Basically ALL claims of immunity are bullshit. Trump's claim here is just a bullshittier grade of bullshit.

[loki13]

You understand that not every thing (not even MOST things) are based on the Constitution, right?

Oh, wait ...

Look, as I said above, this is rooted in the common law tradition. It's a doctrine, if you will.

The Constitution is not the source of all law. Heck, the Constitution doesn't even speak about privileges! Go figure, right? See also, FRE 501.

[David Nieporent]

The idea that anybody else gets constitutional immunity, and a better grade of it for that matter, by mere implication, is ludicrous. Basically ALL claims of immunity are bullshit. Trump’s claim here is just a bullshittier grade of bullshit.

Trump's claim is bullshit, but he is the only one advocating for "constitutional immunity." The discussion above was about QI and absolute immunity for prosecutors and judges; those are common law doctrines, not constitutional ones.

[Social Justice is neither]

Outside cynical self interest it's entirely possible that without it a judge or prosecutor could be targeted personally for every decision they make no matter how mundane (sound familiar) just to tie them up, drain their resources and enable media hit pieces until they start acting as desired.

[Brett Bellmore]

You mean, in much the same manner as the government can do to private citizens it doesn't like, and Scardina is doing to Phillips in Colorado? Yeah, welcome to the real world.

[Captain Motion]

It not only goes far beyond the qualified immunity given cops, it and the total immunity given judges and their prosecutor pals goes far beyond anything the Framers contemplated! The Framers debated the subject and gave immunity ONLY to congresspeople in narrow circumstances. Ergo, under expressio unius exclusio alterius est, no other government actor should have any immunity!! Bad dudes need to be treated as bad dudes regardless of their jobs!

[windycityattorney]

So I am trying to tie two things together here and I am coming up short. 1) Trump all caps demanding ‘total immunity’ for official acts or else the world ends [and his brief in the DC circuit of appeals making similar but more refined arguments but of the same theme.]

2) There being exactly fucking zero judicial findings that the acts in question were even ‘official.’

There is plenty of reasons to conclude that at least some of the acts at best would be attributed to ‘candidate Trump.’ Do candidate’s get qualified immunity? Criminal immunity? Didn’t Eastman try to argue he was carrying out official acts of Trump in the GA case to support removal and dismissal in federal court and he was shot down? Why would Trump fare any better in the D.C. case? Its all similar types of activities with an overarching goal of returning Trump to the white house [i.e, winning the election and candidates run for election.]

Trump’s attorney’s try to weasel around this issue by claiming Trump’s acts were in some undefined ‘outer perimeter’ of a president’s duties. State’s run elections. What exactly is the president’s role here? The attorneys claim Trump was responding to widespread claims of voter fraud. But all the claims were coming from his own camp or his own mouth. But ultimately that issue of whether the acts in question were presidential acts or candidate Trump acts [i,e, private] hasn’t been decided one way or another. It is just assumed in their briefing that his acts were ‘official.’ The whole thing is mind boggling to me. Its like they are going from point A to point M and skipping over every step in between.

[ObviouslyNotSpam]

What makes you think Trump wanted his immunity limited to "official acts"?

The "truth" in question called for "full immunity, without which it would be impossible for [him] to properly function. He added that immunity is needed even for "events that 'cross the line,'" though he didn't specify what he meant.

"You can't stop police from doing the job of strong & effective crime prevention because you want to guard against the occasional 'rogue cop' or 'bad apple,'" he wrote in all caps…"

"Full" is fairly unambiguous when attached to "immunity". Which "line" do you suppose he was referring to, when he implied that crossing it should also be covered by his immunity? And finally, his helpful example of "rogue cops" doesn't leave much to the imagination when he's using them as a reason to not deny immunity to all cops.