The Narrowest Ground for Deciding Trump v. United States

Holding that Jack Smith lacks defendant's standing lets the Supreme Court avoid the fraught question of presidential immunity for criminal actions

I argued in a blog post on Sunday, April 21st that Special Counsel Jack Smith lacked defendant standing to defend the U.S. government's victory in the D.C. Circuit, in the case of Trump v. United States. I pointed out that all nine justices, themselves, must ask the lawyers who argue both sides of Trump v. United States whether Jack Smith has standing to defend the D.C. Circuit opinion given that his appointment as Special Counsel was unconstitutional.  Jack Smith lacks standing to defend the D.C. Circuit's decision in Trump v. United States every bit as much as I lack standing to defend that decision.  Jack Smith is a private citizen in the eye of the law.

I want to argue in this post that disposing of Trump v. United States on jurisdictional grounds is a far better way of deciding Trump v. United States than would be wading into the constitutional morass of trying to decide on the merits, which actions that a President takes while he is in office he can be prosecuted for, and which he cannot be prosecuted for. This is a very fraught question of U.S. constitutional law that is best left unanswered, unless the facts of a live case or controversy imperiously demand that the Supreme Court decide it.

Many will believe that the answer to the presidential immunity question depends on whether the president is "corruptly" exerting the power of the office of the President of the United States or whether he is engaged in "non-presidential activities". If President Biden corruptly accepts bribes, paid to his son Hunter, in exchange for altering U.S. policy in Ukraine or towards China, many will believe that is an act that he could be prosecuted for. When President Barack Obama ordered the killing of a known terrorist by a Predator Drone Strike, which accidently led to the death of a U.S. citizen who was physically near that terrorist, President Obama could not be prosecuted for that act because the death of the American citizen was an unintended consequence of President Obama's legitimate exercise of his executive power as Commander in Chief. If President Biden were to walk out of the White House and shoot some random person walking down Pennsylvania Avenue many will believe that would be a crime that he could be prosecuted for.

The problem that the three hypotheticals just addressed show is what a slippery test would come to exist for anything other than a grant of blanket immunity to sitting presidents for all of the actions that they take while serving as President. Yet, I strongly doubt that the Supreme Court will be willing to give presidents blanket immunity for any crimes that occur during their terms in office.

I would urge the Supreme Court, instead, to duck the very hard problem of presidential immunity from criminal prosecutions, which could draw the Court into an endless game of second-guessing presidential decisions. This can be easily done by issuing a much narrower, and quite correct opinion that Jack Smith lacks defendant's standing in Trump v. United States. The blame for the Jack Smith screw-up lies squarely with Merrick Garland because President Biden's Attorney General broke the law by incompetently, and for political reasons, appointing private citizen Jack Smith to be Special Counsel to prosecute former President Donald Trump instead of designating one of the 92 Senate confirmed U.S. Attorneys to be a Special Counsel, with nationwide jurisdiction, to investigate the allegations against former President Donald Trump.

The reason why prosecutorial power should be confined to Senate confirmed U.S. Attorneys was well stated by Attorney General Robert Jackson in a speech entitled "The Federal Prosecutor". In that speech, Attorney General Jackson said:

"The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. ***

Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of federal district attorney from the very beginning has been safeguarded by presidential appointment, requiring confirmation of the senate of the United States. You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor."

Comments

[Rev. Arthur L. Kirkland]

"Holding that Jack Smith lacks defendant's standing let's the Supreme Court avoid the drought question of presidential immunity for criminal actions"

Perhaps one of this blog's right-wing law professors could express that thought in English?

Carry on, clingers.

[loki13]

Um.....

1. Attorneys don't have standing, parties do.

2. Also, standing (in the general sense) is really about the Plaintiff.

3. Further, there is a distinction between standing in a trial court and standing for an appeal. I mean, the US is not the defendant in the appeal, the US is the appellee/respondent in the appeal.

4. Also ... you know what, never mind. It's a Calabresi post.

[Bruce Hayden]

I think that Standing may be the wrong term, at least to those many lawyers who see standing as something possessed by litigation parties either possess or don’t. The problem is his authority to prosecute. If he isn’t even an inferior Officer, how does he legally represent the US, and absent being a Senate confirmed Principal Officer, how does he have the power to decide whether or not, and the extent which, to prosecute cases?

I noted the other day, a court submission in the FL case, block signed by a Senate confirmed USA, and then, below that, actually signed, by an AUSA, an inferior officer. That’s, I assume, what is supposed to happen.

Ever wonder why every bank branch has their own “loan officer”. It’s because non-officers cannot legally bind the bank to a contract, etc. As attorneys, we are taught to make sure that the other party has an officer signing on their part. I have gone so far as to require a board resolution to prove this.

[Rev. Arthur L. Kirkland]

"I think that Standing may be the wrong term"

Are you lecturing a law professor with respect to the meaning of a legal term such as standing?

(I think that dumbass might have taught civil procedure.)

[Lee Moore]

actually signed, by an AUSA, an inferior officer

Are not AUSAs merely employees, not inferior officers ? ie the block signing by the inferior officer (the US Attorney) gives the mere employee AUSA the necessary imprimatur then to sign in his best cursive.

I thought the pecking order was :

Attorney General = Principal Officer
US Attorney = Inferior Officer
Assistant US Attorney = Employee

The question is where Jack Smith fits in this menagerie. My understanding is that he thinks he is an inferior officer, though differing slightly from a regular US Attorney in not having been Senate confirmed, but appointed by the AG.

[Bruce Hayden]

US Attorneys are Principal Officers because they require Senate confirmation, as do the DAG and AAGs.

[Noscitur a sociis]

US Attorneys are Principal Officers because they require Senate confirmation

1. U.S. Attorneys don’t necessarily require Senate confirmation.

2. This gets it exactly backwards. Senate confirmation is the default for all officers. It can be changed for inferior officers, but leaving it in place doesn’t make someone a principal officer.

3. Every final decision on this question has confirmed that U.S. Attorneys are inferior officers. See, e.g., United States v. Hilario, 218 F.3d 19 (1st Cir. 2000); United States v. Gantt, 194 F.3d 987 (9th Cir. 1999).

Other than that, great comment!

[Bruce Hayden]

“1. U.S. Attorneys don’t necessarily require Senate confirmation”

You are nit picking. Actual USAs require Senate confirmation. 28 U.S. C. § 541(a). An acting USA, appointed by the AG, can serve for up to 120 days. 28 USC § 546. So, yes, a temporary, acting, USA need not necessarily be confirmed by the Senate. But his term in office is strictly limited (120 days vs 4 years).

[Noscitur a sociis]

1. People appointed under § 546(a) aren’t “acting” U.S. Attorneys—they’re regular U.S Attorneys. (Since you seem to give so much weight to signature blocks, check some of them out.)

2. A different part of the very same statute, 28 U.S.C. § 546(d), allows a court to appoint U.S. Attorneys if the position hasn’t been filled after long enough. Those appointments are exactly the same as ones under § 541.

3. Of course, both these arrangements would only be permissible for inferior officers,

Other than that, great comment!

[CigmaDom]

APPOINTMENT OF JOHN L. SMITH AS SPECIAL COUNSEL
By virtue of the authority vested in the Attorney General, including 28 U.S.C. §§ 509,
510 , 515, and 533,

https://www.justice.gov/d9/press-releases/attachments/2022/11/18/2022.11.18_order_5559-2022.pdf

[Bruce Hayden]

Yes, Smith was appointed (as an employee) by AG Garland. That doesn’t answer what sort of authority and power he has. The AG doesn’t have unlimited discretion in what he can do, and what he can delegate. Rather, he is limited by statute and regulations. One thing that he probably can’t do is make Smith an Officer of the US, and can only grant him so much discretion. And not being an Officer, Smith can’t sign pleadings, motions, etc, in his own name, but rather in the name of the AG, his supervisor and employer.

[not guilty]

I don't concede that what you are saying is correct, but if it were, how would that invalidate an indictment found by the grand jury and proceedings pursuant thereto in the District Court and the Court of Appeals?

The issue is before SCOTUS on Donald Trump's claim of immunity from criminal prosecution. The burden accordingly rests on Mr. Trump to establish his entitlement to such immunity.

[not guilty]

Jack Smith did not indict Donald Trump; the federal grand jury for the District of Columbia indicted him. That body has inquisitorial power independent of any court or prosecutor. As SCOTUS observed in Hale v. Henkel, 201 U.S. 43 (1906):

"But in this country it is for the grand jury to investigate any alleged crime, no matter how or by whom suggested to them, and after determining that the evidence is sufficient to justify putting the suspected party on trial, to direct the preparation of the formal charge or indictment."

Id., at 63, quoting Frisbie v. United States, 157 U.S. 160 163 (1895). It follows that any supposed defect in appointment of the Special Counsel does not invalidate the grand jury indictment.

Even if there were such a defect, it would have to be raised prior to trial by a Fed.R.Crim.P. 12(b)(3)(A)(v) motion alleging a defect in instituting the prosecution. The fact that such a defect is waived if not raised prior to trial indicates that it is not jurisdictional in nature.

[Brett Bellmore]

Oh, come on, you're describing the function grand juries might have had a century or two ago. Not how they function today, as prosecutorial sock puppets.

[not guilty]

The point is that the prosecutor is not essential to the functioning of the grand jury. The Fifth Amendment even separately lists charges by indictment and by presentment. A presentment is a notice taken by a grand jury of any offense from their own knowledge or observation.

Any irregularity in the appointment of a prosecuting attorney does not vitiate the validity of the charging instrument.

[Brett Bellmore]

In theory the prosecutor is not essential to the functioning of a grand jury functioning as the Constitution's authors intended.

In reality the grand jury has been warped into just a formality, and for all practical purposes the prosecutor is actually making these decisions.

How US Grand Juries Work

"Grand juries rarely decline to indict. In 2010, government statistics showed that federal grand juries brought charges more than 99% of the time."

It's virtually unheard of for a federal grand jury to not indict somebody the prosecutor wants indicted.

Now, it does go on to say that the prospect of the jury refusing to indict rises in highly public cases. But in this case the grand jury was recruited from the District of Columbia, the single most hostile to Trump jury pool in the entire country, and, of course, federal grand juries don't have to vote unanimously to indict.

So, forget ham sandwiches, Smith could have convinced this jury to indict a kumquat if he'd named it "Donald Trump". And you know that. So stop playing stupid, this indictment was Jack Smith's work.

[Mr. Bumble]

Whoa! Coming on strong there Brett.

[not guilty]

Contrary to what Professor Calabresi posits in the OP and in his earlier post, Jack Smith's participation in the prosecution affords Donald Trump no grounds for relief. The investigations predated the November 18, 2022 appointment of the Special Counsel. The grand juries in the District of Columbia and in the Southern District of Florida had ample probable cause to indict Trump and his Florida codefendants, irrespective of who the particular prosecutor was. A criminal defendant is not entitled to a friendly prosecuting attorney.

"In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (footnote omitted). An indictment returned by a legally constituted and unbiased grand jury, if valid on its face, is enough to call for trial of the charge on the merits. Costello v. United States, 350 U.S. 359, 363 (1956).

[Sarcastr0]

When uber-formalist Brett switches to a functionalist argument that is a sign.

[Brett Bellmore]

It's a sign that I've been irate for decades now about the way the jury system has been subverted in America.

The Constitution mandates both petite and grand juries, and the ones we have now are NOT the jury system the founders were mandating. They're a sham jury system designed to minimize the role of juries as much as possible. To that end the Court even has chosen to ignore that word, "all" in the 6th amendment.

This is a rule of law issue, Sarcastr0. We're not really abiding by the Constitution when it comes to juries, we haven't been for many decades. We're just pretending to, and the pretense wears ever thinner as time goes by.

[not guilty]

Actually, jurors at trial may be petite, corpulent, or anywhere in between.

[Sarcastr0]

This is a rule of law issue, Sarcastr0

Another long-held issue Brett has had with the legal system that pops ups specifically re: Trump.

Dunno where you got this from either. It's not the text. And not in American judicial practice, which with respect to juries made quite a break from the British practice.

But lets say you're right. That is an *utterly different goalpost* than arguing that the Grand Jury does not count in this case and Jack Smith must be substituted.

"We must change the procedure so that it is illegal so we can have the case thrown out for not following due process" is not the way to push your issue.
Because what it looks like is not a reform of the judicial system. What it looks like is throwing shit at the wall to defend Trump.

[Noscitur a sociis]

actually signed, by an AUSA, an inferior officer.

Once more, AUSAs are not inferior offficers.

[Bruce Hayden]

I really don’t care here, since they sign in the name of their USA.

[ReaderY]

But he clearly has apparent authority. Whether he has actual authority is a question of law. It is a merits question, not one of jurisdiction. The Supreme Court has discretion about what merits questions to decide.

Mr. Calabresi seems to be moving a few reluctant inches in the direction of acknowledging this by now saying that deciding this question instead of the one presented is a pragmatic step. This represents an improvement over his earlier claim that it has to be decided as a matter of establishing the Court’s jurisdiction.

[TheAmazingEmu]

So the Court has the authority to appoint an amicus to argue a position to the Court (and has in fact appointed amici to represent the United States before), so they could easily appoint him to argue the government's position in this case. So it's really a non-issue as far as anything practical is concerned.

[Riva]

Um...
1) The hack Smith lacks any authority to conduct this litigation. Call it lack of standing or whatever the F you want. He could not constitutionally convene a grand jury and indict President Trump.
2) The lack of authority is not irrelevant on appeal you numbskull.
3) You're a TDS deranged leftist nut so...you know what, never mind.

[not guilty]

Jack Smith “could not constitutionally convene a grand jury and indict President Trump.”

Riva, do you have any actual legal authority for that ipse dixit assertion? As SCOTUS opined fifty years ago:

Under the authority of Art. II, § 2, Congress has vested in the Attorney General the power to conduct the criminal litigation of the United States Government. 28 U.S.C. § 516. It has also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties. 28 U.S.C. § 509, 510, 515, 533. Acting pursuant to those statutes, the Attorney General has delegated the authority to represent the United States in these particular matters to a Special Prosecutor with unique authority and tenure.

United States v. Nixon, 418 U.S. 683, 694 (1974) (footnotes omitted). So long as a regulation issued by the Attorney General pursuant to his statutory authority is extant it has the force of law. Id., at 695.

By order dated November 18, 2022, the Attorney General appointed Jack Smith to serve as Special Counsel for the United States. Part B of the Order of Appointment states “The Special Counsel is authorized to conduct the ongoing investigation into whether any person or entity violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021, as well as any matters that arose or might arise directly from this investigation or that are within the scope of 28 C.F.R. § 600.4(a).” https://www.justice.gov/d9/press-releases/attachments/2022/11/18/2022.11.18_order_5559-2022.pdf

Part (d) of the Order of Appointment explicitly states “The Special Counsel is authorized to prosecute federal crimes arising from the investigation ofthese matters. The Special Counsel is also authorized to refer to the appropriate United States Attorney discrete prosecutions that may arise from the Special Counsel’s investigation.

[Riva]

Don't know where you found that verbal vomit you just posted. Wikipedia? Some Vox or Slate article. A brief from or for that hack Smith? Doesn't matter. The unconstitutionally appointed "Special Counsel" has the authority to do jack shit. no pun intended

[Sarcastr0]

A more pure ‘I reject reality and substitute my own’ I have not seen.

Makes sense Riva is the one to deliver.

[not guilty]

Why am I unsurprised that you don’t know where I find legal authorities, Riva? Once again, do you have any actual legal authority for your ipse dixit assertions?

It won’t break your keyboard to give a straightforward answer.

[not guilty]

Still waiting, Riva.

I am curious. Where and when did you receive your legal training, if any?

[#FFFFFFPride]

Can you publish your expectations for everyone else's posting schedules so they don't so rudely keep it you waiting?

[Brett Bellmore]

I can't avoid noticing that, when the founders intended to give Congress quite limited immunity, they did so explicitly. I also can't avoid noticing that they didn't explicitly give Presidents any sort of immunity whatsoever.

The idea that the Constitution gives Presidents greater immunity than Congress explicitly got, by mere implication, is absurd.

Maybe, maybe, some form of Presidential immunity would be a good idea. But, like lots of good ideas, you won't find it anywhere in the Constitution.

[Mr. Bumble]

Where in the Constitution does it give the Supreme Court to the authority to decide what is or isn’t Constitutional?

[Brett Bellmore]

That would be in Article III.

"The judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;"

The supremacy clause states that, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

See that "in Pursuance thereof"? Whether a purported law is actually "in Pursuance thereof" is clearly a case in law.

[Mr. Bumble]

I'll respectfully disagree. I think it was an open question until Marshall claimed the authority for the Court and Congress acquiesced.

[Bruce Hayden]

Called “bootstrapping”. And over 200 years later, the Supreme Court is not about to overturn that precedent, effectively giving away most of its power.

[Flight-ER-Doc]

They'd open themselves to a serious work schedule...

[Drewski]

You only disagree because you're a contrarian little troll, though, rather than for academic reasons. Courts in the Confederation had the power of judicial review, and the Founders expected US courts to follow suit. Marbury's holding of judicial review was uncontroversial at the time as it was merely formalizing a power most presumed to exist. Only around the time of the Civil War, when Southern states found it useful to deligitimize the federal government, did it become a talking point. Today, it remains a controversy only among those who seek the same ends, and also contrarian little trolls.

[Mr. Bumble]

Better to be a troll with an opinion rather than a self important asshole such as yourself.

[M L]

The founders clearly contemplated that the "rightful remedy" for constitutional infractions by the general government, such as an act of Congress for which there was no delegated power, would be for the States to nullify those actions.

And whatever "judicial review" means in your view, the founders did not think that judges should be the "ultimate arbiter" of constitutional issues.

[David Nieporent]

They "clearly contemplated" something that they somehow neglected to actually mention in the constitution?

[gnome]

Only the deep state has the power to process the President through the courts. And they're willing to prove it.

Under the Constitution the President has full administrative control over the Department of Justice.

[Alpheus W Drinkwater]

Yes yes, Brett! So happy when you post a comment I agree with 100 percent!

[M L]

As I've said before. As far as immunity from federal government prosecution during their tenure, the President would in effect be prosecuting or arresting himself. That's different from a member of Congress where the President would be prosecuting someone who is not himself.

After their tenure is over, I agree.

[Zarniwoop]

Standing

"You keep using that word, I do not think it means what you think it means."

[Mr. Bumble]

What do you think it means? Would authority be a better choice?

[Bruce Hayden]

Yes - see above.

[David Nieporent]

What do you think it means? Would authority be a better choice?

It's legally wrong, but analytically it would be a better choice, yes. The problem is that functionally it wouldn't be a better choice for Calabresi's purposes, because if there were actually no standing the case would have to be dismissed, whereas if Smith merely lacked authority, then the case would proceed with someone else acting as prosecutor.

[Jaypd]

my question is - if Calebresi self-immolates outside the supreme court, does the VC crew have any liability since they've known he's unstable for months now?

[Dr. Ed 2]

This is inappropriate.

[Rev. Arthur L. Kirkland]

The Volokh Conspiracy's Voice of Propriety has spoken.

[Magister]

I was expecting Dr. Ed 2 to say something like "SNOwplOw you!!!" but apparently he hit the fainting couch too quickly.

[Noscitur a sociis]

Joking about self-immolation=bad.
Hoping that someone gets lynched=fine.

Got it.

[EllaWilson]

Muted

[Noscitur a sociis]

How on earth would the Supreme Court adopting your position (either as written, or by using some more accurate terminology) avoid the need to "wad[e] into the constitutional morass of trying to decide on the merits"? The attorney general decided that the matter needed to be investigated by a special counsel, and a grand jury has found probable cause for the charges. And you acknowledge that a different person could fulfill the role of special counsel with no impediments. So how would deciding things that way actually do anything except delay the need to decide?

[Kazinski]

As a wise man once said:

"always remember lawyers' true superpower: The power to turn every question into a question about procedure."

https://reason.com/volokh/2021/09/11/lawyers-true-superpower/

[Bruce Hayden]

And it turns out that the entire investigation was initiated by AG Garland, 4th ranking Cabinet member and 7th in line of succession to the Presidency. Moreover, the FL documents case was made possible by a WH order to revoke Trump’s security clearances (unfortunately, for the prosecution, they hadn’t gotten around to revoking his DOE Q clearance by the time the allegedly classified documents were all seized by the FBI in their MAL raid). This came out yesterday with the order by Judge Cannon to declassify (and not redact) one of the documents produced by the prosecution to the defense.

Yes, AG Garland could sign court pleadings, etc - but he didn’t. But more importantly, a prosecutor reporting directly to the AG as an employee has no discretion. That makes the prosecution purely political. And puts into question funding the two prosecutions off budget from the special Independent Counsel slush fund. If the prosecution is controlled by the AG, which appears, at least legally, to be the case, then how can it be “Independent”?

[Bruce Hayden]

Let me expand a bit. There are four possible situations that Smith could be in here. He could be a Principal Officer, an Inferior Officer, an employee, or be illegally receiving a government paycheck. The latter is highly unlikely, since he was appointed by AG Garland, and his pay ultimately approved by him. He can’t be a Principal Officer, because he was never Senate confirmed. But he very likely cannot be an Inferior Officer, because their Offices have to be explicitly or through delegation by a Department head, by statute. Some Department heads have been delegated that power by statute. Apparently, the AG has not. Instead, he has roughly 100 Principal Officers (USAs, DAG, AAGs) reporting to him, and numerous AUSAs (Inferior Officers) reporting to them. Without that delegated power, all that the AG can legally do is hire Smith as a mere employee.

[Bruce Hayden]

Note, in advance, that some above have challenged my claim that USAs are Principal Officers and AUSAs are Inferior Officers (but rather employees). I don’t think, if true, that that really changes my argument.

[Jason Cavanaugh]

"Moreover, the FL documents case was made possible by a WH order to revoke Trump’s security clearances (unfortunately, for the prosecution, they hadn’t gotten around to revoking his DOE Q clearance by the time the allegedly classified documents were all seized by the FBI in their MAL raid)."

As with most things Bruce Hayden says, this is not true.

[David Nieporent]

First, presidents don't have security clearances, so there's nothing to "revoke." What Bruce is probably intending to refer to is Biden deciding that Trump didn't need to receive classified security briefings.

Second, having a security clearance does not entitle one to keep classified documents (let alone to lie about it), so it's utterly irrelevant to the prosecution.

[Dan Schiavetta]

The Prof. needs, among other things, a proofreader.

[Rev. Arthur L. Kirkland]

Nah. Engaging in random capitalization and general abuse of standard English has become an affectation for these disaffected right-wingers.

Maybe it's to emulate Trump. Maybe it's a flashing of gang signals to other ignorant, superstitious bigots. Maybe it's a sign of disrespect for modern America's norms. Or maybe they're just not that smart.

[Frank Drackman]

Or maybe it's that some of us speak other languages that don't have these stupid rules, and don't waste time on them. I remember writing a paper where misspelled words lowered your grade, then I Grad-Jew-ma-Cated Highschool and went on to Adult things.

[Rev. Arthur L. Kirkland]

Adult things . . . like random capitalization?

Don't they teach anything about being careful with stuff like that at on-the-spectrum school?

[TwelveInchPianist]

If you're using "on-the-spectrum" as a proper noun it should be capitalized, Arthur.

[MoreCurious]

Only if that is the actual name of the school.

[Rev. Arthur L. Kirkland]

"If you’re using 'on-the-spectrum' as a proper noun it should be capitalized, Arthur."

Get an education. Start with standard English.

(At the practical level, that is one vote for the illiterate sense of ignorance rather than the boorish, disaffected form of ignorance.)

[gnome]

It's OK. I think it's pronounced "fruffed".

[Rev. Arthur L. Kirkland]

This is a predictable result of law schools operating affirmative action programs for right-wing candidates for faculty positions.

UCLA seems to have learned its lesson. Will Northwestern be next?

[Frank Drackman]

They're in the same Conference now, "Coach" S

[Rev. Arthur L. Kirkland]

Would that make it easier for Northwestern to follow UCLA's precedent?

Faculty improvement is always a worthwhile endeavor.

[Bruce Hayden]

I very much agree here (if you substitute Authority and/or Power for Standing). I predicted similar with the CO exclusion from the ballot case the Court heard (and decided), in order to avoid a messy Due Process analysis, that wasn’t going to get any of the Dems onboard the majority decision. And was vindicated. The majority wasn’t going to let the CO decision stand, esp since it was based on the highly partisan J6 Committee report, where not a single Republicans selected by their House leadership was allowed to serve. That deprived Trump and the Republican caucus the power to confront witnesses and introduce their own. Moreover, the testimony behind the Report had been encrypted and deleted by the outgoing Dem majority staff. That wasn’t going to fly, as sufficient Due Process, with the 6 Justice Republican majority on the Court. But where to draw the line? That is why it would have been messy. So that question was dodged by deciding the case, in Trump’s favor, on simpler grounds.

[Kazinski]

"that wasn’t going to get any of the Dems onboard the majority decision."

All 9 justices concurred in the holding that Colorado did not have authority under Section 3 to to disqualify a federal candidate.

Where they parted company was the question of what procedure would be necessary to disqualify Trump, the majority said it had to be a procedure designated by Congress with sufficient due process protections like the current statute 18 USC 2383.

[ObviouslyNotSpam]

"...where not a single Republicans selected by their House leadership was allowed to serve. That deprived Trump and the Republican caucus the power to confront witnesses and introduce their own."

Welcome to, "How to Lie by Omission 101".

Your choice of words unfortunately leaves little doubt that you know very well that McCarthy withdrew all his nominees and refused to appoint any other Republicans to the committee after two of his five choices were vetoed by Pelosi for having blatant conflicts of interest. You also obviously know that Pelosi appointed two Republicans to the committee herself.

(Sorry, "RINOs", who don't count.)

[Bruce Hayden]

Blatant conflicts of interest? Like the ones she appointed from her own party? The reality is that the ones that Pelosi refused to seat on the committee were some of the best prosecutors on the Republican side of the isle, as evidenced by their questioning of witnesses in hearings. That was her real conflict of interest - that they were so skilled. That was the point when it was obvious that the committee was not setup to discover the truth, but rather to cherry pick evidence for a political hit job.

My point is that the minority party was NOT given their choice of members of the committee, which is customary. They were not given the opportunity to have their best attorneys cross examine Dem witnesses, etc. The two Republicans she did appoint to the committee turned out to be more radically anti-Trump than many of the House Democrats - which is why neither is still in office.

Of course, we still don’t know exactly what witnesses were heard by the committee, what they were asked, and how they responded, because their record was sealed, the testimony then encrypted and deleted, before turning power over to the Republicans in early 2023. All that we really have, in the report allowed into evidence (as an exception to the CRE Hearsay rule) was what the Dems and 2 renegade former Republicans said was said in their J6 report. Cherry picked testimony, along with the cherry picked video (which we know know, given access to the entire video feed).

Imagine a criminal trial where the prosecution got to pick the defense attorneys, even if the defense was more than willing to pick their own. That’s apparently what you think is fair, and fully comports with Due Process requirements. You then suggest that it’s fair because the prosecution didn’t exactly pick the defense attorneys, but just vetoed their choices if they were too skilled.

[David Nieporent]

The reality is that the ones that Pelosi refused to seat on the committee were some of the best prosecutors on the Republican side of the isle,

A corrupt wrestling coach and a real estate contractor are "some of the best prosecutors" for the GOP? None of the ~200 other GOP members of Congress, a large number of whom are lawyers, could do the job?

[Bruce Hayden]

Let me add - since when, before this, has a conflict of interest kept a Member of Congress off of a Congressional committee? Was Joe Biden (D-MBNA) kept off the Senate Banking committee? Conflicts of interest are a feature, not a bug, for Congressional committees. I remember when Patsy Schroeder (D-Denver) went on the House Armed Services Committee. Asked why, her answer was that she had a large military hospital and an AF base in her district. Rural members of Congress tend to predominate on Ag and Natural Resources committees, for similar reasons. Was Jon Tester (D-MT) prevented from sitting on the Senate AG committee, despite his family owning a farm in his home state? Which is good for him, because he needs to be winched up onto their combine for campaign ads every 6 years.

[Brett Bellmore]

"after two of his five choices were vetoed by Pelosi for having blatant conflicts of interest." utterly irrelevant reasons. The purpose of the minority members of a committee isn't to be the people the majority wants, it's to be the people the minority wants.

Period.

230 years of precedent that the majority simply does not have a veto over the minority's picks, out the window in order to get Trump.

[Sarcastr0]

The purpose of the committee was not to prevent you from whining it’s not fair, it is to investigate J6.

Given that purpose, conflicts of interest sure are relevant, and your myopia says a lot about your priorities re: the truth versus shielding Trump from Congress.

You are employing the same reductive fail as those who come to the VC saying all laws are valid if they have majority support and judicial review stymies the will of the people. Embracing conflicted committee members is just nuts.

[Brett Bellmore]

Again, totally irrelevant, because the minority members are not there to do anything the majority wants done. They're there to be the minority's representation in the room, and 230 years of unbroken precedent said that the majority had no say in who the minority picked.

You're just willing to toss long standing rules in the pursuit of Trump, because pursuing Trump is important. And following procedure isn't, if it gets in the way of anything you want done.

So, the right of the minority to pick their own committee members, enforced for 230 years, is now dead. You're really going to whine about that the next time you're in the minority.

[Nige]

Protecting Trump is *important* and if deliberately putting forward people with conflicts-of-interest to stymie the investigstion is what it takes, then it's UNFAIR not to go along with it as if it isn't the case.

[Sarcastr0]

There is no longstanding rule! You keep accusing me, and DMN, and the Dems, and everyone of not following a norm *your made up* And you call it a right?

the right of the minority to pick their own committee members, enforced for 230 years
You don't usually roll drama queen, but Trump sure inspires you. It is not a good look. You don't appear to know what a right actually is and how it works.

You point to longstanding practice...this is not a situation with precedent.
Previously, political parties have not submitted conflicted people to sabotage an investigation of an attempt to overturn a Presidential election.

Conflicts of interest sure matter, if you care about the function of the committee.

I work with panels and committees all the time, and conflicts *matter* from a baseline 'if you want things to work well' foundation.
I am for any investigatory or evaluation body avoiding conflicts of interest in general. Your telepathy remains dumb and bad in it's finding of bad faith.

Any institution with a function that hints it may be inconvenient for Trump is something you are suddenly suspicious of, and find liberal perfidy. This incudes multiple courts now AND in 2020, this committee, Congress in general, the GOP, grand juries, the concept of judicial review of election practice, the concept of conspiracy as a criminal charge etc. etc.

It paints a pretty stark picture not of some one with strong principles that sometimes go against current practice, but rather someone who is full on attacking every institution he can to defend Trump from the consequences of his actions.

[David Nieporent]

where not a single Republicans selected by their House leadership was allowed to serve.

Why do you continue to lie about this? They were. They chose not to.

Moreover, the testimony behind the Report had been encrypted and deleted

False, and a pretty dumb lie at that. Why would one encrypt something one was going to delete? How would one even know that it had been encrypted if it had been deleted?

[ObviouslyNotSpam]

Well, he could argue that the three Republicans Pelosi didn't veto were not "allowed to serve"...by McCarthy, who withdrew their names. But that would, of course, also be disingenuous.

[David Nieporent]

Yes, it would be. (You could also add Ken Buck, who testified that he volunteered to serve, and McCarthy wouldn't let him.) Of course, McCarthy couldn't actually stop any of those four from serving, but he could punish them if they tried.

[Vandalia]

In the same way that every federal conviction in the United States is invalid under your theory.

If the U.S. Attorney for a given district did not prosecute ALL aspects of the criminal prosecution PERSONALLY (from grand jury indictment to personally handling every aspect of an appeal), then it was an invalid conviction. The same for any civil case that is handled by an AUSA or Justice Department attorney not confirmed by the Senate.

Assistant United States Attorneys (AUSA) are not personally confirmed by the Senate either. And under your interpretation there is no constitutional provision for them to vicariously execute the power of the USA's.

[Vandalia]

This seems to be a “sovereign citizen” level argument.

“See?!? The flag in the courtroom has a fringe on it! This means that this is an admiralty court and the judge therefore does not have jurisdiction!”

Or there is a simpler argument: The Supreme Court cannot hear this case since they were appointed and confirmed in violation of the Constitution. There is not a quorum of validly appointed Justices, so every decision the Court has made over the last six years is invalid ab initio.

[Dr. Ed 2]

Two words: Rachael Rollins.

She was only confirmed with a 51-50 vote, and then resigned her position as USA-MA after two scathing DOJ reports about her. She was Suffolk County (Boston) DA before becoming USA and yesterday it came out that she charges some $19,163 on a state-issued credit card for things which, apparently, she wasn't supposed to.

I think the stronger argument here is Senate Confirmation -- that you have to have 51 people believing that you are of good character.

[Noscitur a sociis]

I realize you're impressed with yourself for recognizing the term "United States Attorney", but what does your comment have to do with anything?

[SRG2]

Are we sure that Calabresi exists and is not an invention of Profs. Somin and Volokh, deployed for satirical purposes?

[Frank Drackman]

I was going to say the same thing about the Reverend Jerry Sandusky-Kirtland

[Drewski]

In all seriousness, back when Kirk was less of a copypasta generator and more focused, he was so extremely partisan I sometimes wondered if he were a group project aimed at presenting hardcore-progressive views to the audience here to elicit debate (we had a much better commentariat in general then). Around the Artie-Wayne days it became clear that he is merely an ideologue, and now of course he has become a parody of himself, at least in the comments. I hope out in the world he's better-adjusted. I wish I could say the same about you, but I'm pretty sure you're legitimately mentally ill.

[Brett Bellmore]

As a creature of the extreme left, spending most of his time in the extreme left's bubble, naturally his sense of what is appropriate has evolved over the years to track the movement of that bubble. And the extreme left have gotten REALLY extreme over the past few years, they're practically Red guard at this point.

[ObviouslyNotSpam]

If that's the case, their invention requires "re-calabretion", because its recent output has been a bit wobbly.

[windycityattorney]

Supreme Court seems to desire bright line rules. While the lower courts didn't delve into whether all the actual acts alleged in the indictment were 'official acts' ...for at least some of them, we know the answer. The president has no constitutional role to serve in the joint session of Congress certifying the results of the election. Zero. Or in the electoral college.

Or more simply, a President running for re-election serves simultaneously in two capacities. 1) as president until a new one is sworn in and 2) as candidate for the office of President.

Actions taken in the capacity as 2 above enjoy no criminal immunity. Actions taken in 1 may or may not be immune. But they don't have to decide the contours of 1 when the indictment is all about a plan to obstruct the congressional proceeding to choose the new president and the various steps taken to fraudulently install himself as the winner of an election that he legally lost.

I.e, bright line rule would be candidates for re-election are treated as candidates for office when alleged to have illegally interfered in their own election and thus enjoy no immunity.

**Given this is a pre-trial motion to dismiss, I would assume the facts as alleged in the indictment have to be viewed as true (or in a light most favorable to the non-moving party) for purposes of deciding the motion.**

[Lee Moore]

The President is obliged to swear to “preserve, protect and defend the Constitution of the United States.”

and is obliged to “take Care that the Laws be faithfully executed, ”

Thus any departures from the Constitution or failure to execute the laws faithfully fall within the President’s official duties.

Thus for example, if an actual crowd of MAGA fanatics took over Congress during the joint session, threatening the assembled Congresscritturs with violence unless they confirmed the election of whoever the MAGA fanatics want confirmed, the President would certainly have an official duty to prevent such an assault on the Constitution. Likewise if a gang of Antifa thugs invaded the formal electoral vote procedure in Wyoming and forced the electors to vote for a candidate of the thugs choice, the President would be duty bound to do something about it.

Your exclusion of Presidential duties in matters relating to Presidential elections is overinclusive.

[windycityattorney]

The risk of self-dealing in your hypo is exposed when the MAGA fanatics who take over the chamber (or whatever) assist the current incumbent to (unlawfully) stay in power. The President, who as you say, has a duty to prevent such an assault on the constitution instead turns a blind eye because he would be the beneficiary. And since a divided Congress is unlikely to impeach & convict...according to said Presidents eminent legal defenders, he is absolutely immune and there is nothing anybody can do. They can't sue him, can't charge him...

Which is all to say all this is also a reason why the total immunity argument is total shit.

[ObviouslyNotSpam]

He's back!

[Sam Bankman-Fried]

Here’s Johnny!!!

[Noscitur a sociis]

The reason why prosecutorial power should be confined to Senate confirmed U.S. Attorneys was well stated by Attorney General Robert Jackson in a speech entitle "The Federal Prosecutor". In that speech, Attorney General Jackson said:

...

You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor.

The problem with Jackson's position (to the extent it was attempting to state a constitutional principle in the first place) is that virtually all federal prosecutors aren't confirmed by the senate, and (with the exception of the Attorney General and perhaps a couple others) none of them have to be as a constitutional matter.

[Kazinski]

As I pointed out in the first thread that Hunter’s Special Counsel Weiss seems to agree with Calabresi framing of the issue in his response to Hunter’s challenge to his authority:

“First, for the entire history of the United States Department of Justice (“DOJ”), the Attorney General has possessed the statutory authority to designate any officer of the Department to represent the United States in any court. The appointment of counsel from “outside the government” under 28 C.F.R. § 600.3 are not the exclusive, much less
primary, source of a Special Counsel’s delegated authority, nor could such a procedural
regulation limit the Attorney General’s statutory authority or confer any enforceable right on a defendant to dismiss his prosecution.
Second, the appropriation covers “independent counsel appointed pursuant to [the Independent Counsel statute] or other law.” Pub. L. 100-202, tit. II, 101 Stat. 1329, 1329-009 (1987) (emphasis added). Because the Special Counsel has been appointed by the Attorney General pursuant to statute and granted independence to conduct this prosecution, he falls squarely in the plain text of the statute.”

https://storage.courtlistener.com/recap/gov.uscourts.cacd.907806/gov.uscourts.cacd.907806.36.0_1.pdf

Calabresi and Weiss both agree that the Special Counsel have to be properly appointed as officers “pursuant to statute”.

But CFR 600.3 (a) allows the AG to appoint a Special Counsel from outside government:
“The Special Counsel shall be selected from outside the United States Government. ”

Which seems to make Smith kosher, but “selecting” isn’t the end of it, section (b) goes on to say he then has to be appropriately appointed:
“(b) The Attorney General shall consult with the Assistant Attorney General for Administration to ensure an appropriate method of appointment”

https://www.law.cornell.edu/cfr/text/28/600.3

Calabresi is arguing that Smith has not been appropriely appointed by statute, and the only appropriate method of appointment requires confirmation by the Senate.

[Balisane]

The world would have been a better place had Merrick Garfinkel's ancestors been thrown into concentration camps.

[Rev. Arthur L. Kirkland]

Profs. Bernstein, Blackman, and Volokh will issue a pass on that one, Balisane.

The other Volokh Conspirators will accept your contribution to their blog by cowardly silence, too.

[Balisane]

Why am I supposed to care whether Profs. Bernstein, Blackman or Volokh give me a pass or not?

[Rev. Arthur L. Kirkland]

My comment did not related to your reputation (or concern). It related to the reputations of Profs. Bernstein, Blackman, and Volokh.

[Sam Bankman-Fried]

Wait, I thought it was Professor Berenstain??? WTF??

[Alpheus W Drinkwater]

Gray square says what?

[ObviouslyNotSpam]

Bingo!

[ObviouslyNotSpam]

"I want to argue in this post that disposing of Trump v. United States on jurisdictional grounds is a far better way of deciding Trump v. United States than would be wading into the constitutional morass of trying to decide on the merits, which actions that a President takes while he is in office he can be prosecuted for, and which he cannot be prosecuted for. This is a very fraught question of U.S. constitutional law that is best left unanswered, unless the facts of a live case or controversy imperiously demand that the Supreme Court decide it."

The Supreme Court had a very easy opportunity to "dispose of" this case in February and failed to take it. What on Earth makes you think they are suddenly looking for a face-saving way out of it now?

[cottonmalone]

What do you think this guy does in his car at red lights?

[Balisane]

Probably better than what you do, which is to choke your chicken to Ricky Martin pictures.

[cottonmalone]

Yes.

[#FFFFFFPride]

Looks around intently as he seeks validation as a Good Citizen for wearing his mask. All the way over his nose too!

[Balisane]

Anyone still wearing a mask today should be gassed.

[EllaWilson]

Muted

[Daddyhill]

Hold your horses, Steverino. Last time I checked, the SCOTUS has never ruled on the constitutionality of the Special Counsel laws and rules. So your extrajudicial "citizen's veto" of those laws and rules is just no substitute for a high court ruling, now is it? Since it isn't a substitute, we must assume that the Special Counsel rules are constitutional at this time. Maybe you can persuade the Justices to take up that issue, find in your favor, and hand Trump a sort of GOOJF card.

But wait! You balk at the notion of the SCOTUS taking on a very thorny task, defining and delimiting presidential immunity, yes? So I'm going to guess you think they shouldn't have to take up the Special Counsel rules either. We certainly don't want to them to waste their time wading into a "morass" of "fraught" constitutional law. Unless of course that morass happened to be a FedSoc or AllHippMed project I imagine.

I also have to ask, Stevie-boy, what your opinion is of the constitutional grounds claimed for the firing (read: massacring) of Special Prosecutor Archibald Cox by Nixon's third-team DOJ hitter (there's always a Bork around when you need one). I'd like to hear what you have to say about how the Special Prosecutor's office functioned during the Clinton years. Oh, and by the way, as far as I know most if not all Special Counsels/Prosecutors have been private citizens ever since the Harding Administration. Hell, a year from now Ginni Thomas might be named a Special Counsel, after DJT has finished sharpening his knives.

[not guilty]

I remain puzzled by Professor Calabresi's quixotic argument as to the prosecuting attorney's "standing". How would a finding by SCOTUS that the Special Counsel's appointment was irregular invalidate the Court of Appeals opinion in this case? Such a finding would not spook the words off the page nor the pixels off the monitor.

[Commenter_XY]

NG, if Smith is not properly appointed, is one legal outcome here that everything has to start over again with a properly appointed SC? IOW, everything back to Square 1. If that is the case, does double jeopardy come into play if it goes back to Square 1?

I agree....you cannot 'unwrite' words in a brief, or 'unsee' pixels on a screen.

I do see a CJ Roberts finding the narrowest question to decide. I don't think SCOTUS really wants this case.

[not guilty]

Jeopardy attaches in a jury trial when the jury is sworn; in a bench trial, when the first witness is sworn. So jeopardy has not attached here, thus there is no double jeopardy problem.

If, for sake of discussion, Jack Smith’s appointment was irregular (it was not), his actions would still be those of a de facto officer, and the remedy would be appointment of a successor Special Counsel to take up where proceedings had left off. In the alternative, the United States Attorneys for the District of Columbia and the Southern District of Florida, respectively, could take charge of the pending prosecutions. (Possibly hiring staff members who have been working for the Special Counsel.)

SCOTUS framed the question presented for review on its own as “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” The Court would be loath to decide issues outside the question upon which it had granted cert.

Predictions of what the Court will do are necessarily speculative, but I suspect that SCOTUS may have concerns that the Court of Appeals rejected in toto the possibility of immunity from criminal prosecution for a former president. My prediction is that SCOTUS will opine that there are some circumstances, not present in the instant case, where a former president may enjoy immunity from prosecution. Actions as commander in chief of the armed forces and conduct of foreign policy come to mind. I would think that the Court will leave the contours of such immunity for future cases where the issues are squarely presented.

[Commenter_XY]

NG, thanks as always for a complete response.

I am concerned about the case, but not so much because of POTUS Trump. I can easily foresee circumstances where actions (decisions?) as CINC (for any POTUS) could become a legal quagmire. It is really too bad there isn't a pause button to allow some time to think through the implications of various outcomes.

[Stephen Lathrop]

I would think that the Court will leave the contours of such immunity for future cases where the issues are squarely presented.

not guilty, what would you think if Thomas, Alito, Gorsuch, Kavanaugh, and Barrett decide there is no way to know what contours of immunity apply in this case until they examine with encyclopedic thoroughness exactly which criminal immunities apply to ex-presidents generally?

[Homple]

Only a lawyer could think that the details of the law and jurisprudence mean anything at all to the anti-Trump witch hunters.

[Estragon]

Let me guess: you were one of the “thousands” of people turned away from protesting at the courthouse yesterday?

[Flight-ER-Doc]

Seems that if the USSC agrees with Prof. Calibrisi, then Smith is liable to the US Government for all the money he has wasted: Including his salary, the salaries of those working with him, rental for the office space, utilities, travel, etc....

[ObviouslyNotSpam]

You think?

[Martinned2]

Prof. Adler on Twitter, a propos of Calabresi's previous masterpiece:

This post by my co-blogger Steve Calabresi tries to make a the lawfulness of Jack Smith's appointment a matter of Article III standing. It's not.

Were Calabresi correct, Courts would have to assure themselves that the head of every agency was lawfully appointed in every case, even if issue wasn't raised. That is not the case (and no court has ever suggested otherwise).

Thus even if Calabresi is correct that the appointment of Smith as Special Counsel is unlawful (and I'm skeptical on that point), the argument in this post would still fail.

https://twitter.com/jadler1969/status/1782390420258820519

[Dilan Esper]

Yeah, Prof. Adler's tweet confirmed my hunch, which is that Prof. Calabresi is mislabeling this "standing" to make it a subject matter jurisdiction issue that would allow dismissal of the case, rather than argument that parties forfeit if they do not raise and which is subject to all the various arguments against any authority argument (ostensible authority, reliance, presumption of correctness of official acts, curability).

But you don't get to do this. If this is a standing argument, than anything is.

[David Nieporent]

Prof. Adler and Prof. Kerr have both been criticizing Calabresi's various insaner VC arguments on Twitter, instead of engaging with them at the VC itself. Make of that what you will.

[Mr. Bumble]

Well, Twitter has a much larger audience.

[MLugiii]

Normal, healthy, mentally sane Americans close their eyes and a vibrant, colorful image of a gay man dances into his head.
In it, he's thrusting his erect penis in and out of another man's butthole until he has a pleasurable, shuddering orgasm resulting in the powerful ejaculation of gobs and gobs of HIV infected man cream into the other man's colon. When they open their eyes, they're sweating and gag in disgust. Democrats picture that and think it's a sweet, natural, familial act. They'd volunteer their pre-teen boys for the fun if it won them credibility among the Democrat Party cocktail party circuit.

[Estragon]

Ban ‘em and they come back twice as deranged

[not guilty]

MLugiii, I doubt that many folks are as concerned about anal intercourse as you are.

I don't associate anal insertions with pleasure -- my only experience with that is receiving a prostate exam by my physician -- but I have had multiple women tell me that they enjoy it. There are a lot of nerve endings in that area.

Whether it is the proper concern of government is a very different matter. For the first ten years of my married life, my then-wife and I each committed a felony, punishable by five to fifteen years imprisonment, every time we had oral sex. Can you enlighten me as to how that was any business of the State of Tennessee?

[Sam Bankman-Fried]

Mayor Pete, I’m preggers!?! The condom must have broke! And it’s twins!?!

[Rev. Arthur L. Kirkland]

After MLugiii's performance, let's remember that Prof. Volokh has censored comments for use of the terms "p_ssy," "c_p succ_r," and "sl_ck-j_wed," claiming vulgarity and violation of "civility standards."

Of course, the censorship occurred when those words were used to describe conservatives, so perhaps there is an important distinction, in the professor's mind, between the censored comments and MLugiii's work.

(I recognize and defend Prof. Volokh's entitlement to censor as he wishes at this blog. His sandbox, his rules. Cheap partisan hypocrites have rights, too.)

[Alpheus W Drinkwater]

Ah, another new commenter who thinks it's cutting edge and original to describe homosexual sex acts explicitly to make a partisan point. Actually, we've seen it a million times here and it's hackneyed and stupid. A swing and a miss, none of us care about your hang-ups.

[David Nieporent]

another new commenter

No, it's the same one. He just changes his handle periodically. (Whether it's because he has been banned or just for attention.)

[Zarniwoop]

As DN points out, hardly "new".

Sounds like the exact same guy who'd be better ... served by an occasional visit to pr0nhub than spamming the VC with lame homoerotic fantasies.

[DocMerlin]

> If President Biden corruptly accepts bribes, paid to his son Hunter, in exchange for altering U.S. policy in Ukraine or towards China, many will believe that is an act that he could be prosecuted for.

They would be wrong. He can't be prosecuted for corruption. He is the president. He has to be impeached for corruption by the house then sentenced by the senate.

[Sam Bankman-Fried]

Yep, Ciaramella exposed Biden’s corruption…so strange that Republicans are the people that have animus towards him?!?

[Please, Daivd, Seek Help]

The Senate doesn't have a power to sentence; it has a power to convict. The result of a conviction would be removal from office. Any criminal sanction would have to come from, you know, an actual court.

[Martinned2]

Out of curiosity, why can't the president be prosecuted for corruption? (Other than because the DOJ says so?)

[Mr. Bumble]

Who would prosecute? As president he is the head of executive agencies (DOJ) and could kill any prosecution leaving only impeachment and removal ?

[Magister]

A special prosecutor, as occasionally appointed for sensitive matters. And sometimes the president does fire them; and sometimes the president's appointees resign or threaten to if this is done; and sometimes the president is forced to appoint a new special prosecutor by a combination of public opinion and the threat of impeachment (which might be as much about the president's response to the investigation of wrongdoing).

[Sam Bankman-Fried]

The Special Prosecutor was unconstitutional because every executive branch employee ultimately answers to and can be fired by the president. We can’t have another J Edgar Hoover.

[Martinned2]

Any prosecutor in the DOJ could prosecute the president. Just because the president might have the power to order them to drop the prosecution, doesn't mean he would, or even necessarily that he could. After all, arguably the duty to see that the laws be faithfully executed includes a duty not to interfere with a prosecution against himself where that prosecution is warranted given the evidence of offending and the public interest in a prosecution.

[Sam Bankman-Fried]

Rodentstain attempted to prosecute Trump and in the end it’s just dumb. The president can’t be indicted but they can be “prosecuted” in that they can be investigated which I guess is part of a prosecution.

[The Margrave of Azilia]

"the post of federal district attorney from the very beginning has been safeguarded by presidential appointment, requiring confirmation of the senate of the United States"

Oh that's reassuring. You wouldn't want decisions on the citizens' liberty being made by some random political hack. /sarc

Wake up the grand jurors; tell them to do their constitutional duty and no-bill any bad cases they think the prosecutor has sent to them.

I don't think it's very smart to rely on unchecked federal prosecutors to show restraint with their power. No amount of finger-wagging by Robert Jackson could make that happen.

[Martinned2]

Neither prosecutors nor grand juries make decisions on citizens' liberties. That's what judges and (petit) juries do.

[not guilty]

Professor Calabresi seems to posit that if the Special Counsel cannot defend the judgment of the Court of Appeals, the Supreme Court can somehow avoid ruling on the merits of Donald Trump's claim of immunity from criminal prosecution. That contention is specious. Even if no responsive brief had been filed on behalf of the United States as Appellee, SCOTUS would still be obliged to rule on the merits of Trump's claim of entitlement to immunity.

"No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it." Butz v. Economou, 438 U.S. 478, 506 (1978), quoting United States v. Lee, 106 U.S. 196, 220 (1882). "In light of this principle, federal officials who seek absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope." Butz, at 506.

[mydisplayname]

Agreed that "federal officials who seek absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope."

But can that be done outside of a live case and controversy? Calabresi offers interesting past instances and hypotheticals.

And if done outside of a live case and controversy, wouldn't that reorder the branches of government, placing the slow-moving Court (the "D" in the "PID control loop" of government) above the Executive charged with making whip-like split-second decisions (the "I" of the loop)?

Doubtless, "wading into the constitutional morass of trying to decide on the merits which actions that a President takes while he is in office he can be prosecuted for and which he cannot be prosecuted for" ... "could draw the Court into an endless game of second-guessing presidential decisions" and "is a very fraught question of U.S. constitutional law that is best left unanswered, unless the facts of a live case or controversy imperiously demand that the Supreme Court decide it."

[not guilty]

"But can that be done outside of a live case and controversy?"

Yes, it can be done. The Congress could enact one or more statutes providing for presidential immunity and defining the scope thereof.

[Martinned2]

Presumably that scope would have to be carefully tailored to avoid exceeding the legitimate interests of the federal government, and to avoid intruding on individuals' property rights (and other rights under the constitution)?

At a minimum, the immunity would have to be of the form "you can't go after the president while he's president, but feel free to prosecute or sue him after he leaves office", right?

[not guilty]

"At a minimum, the immunity would have to be of the form 'you can’t go after the president while he’s president, but feel free to prosecute or sue him after he leaves office', right?"

That is the present DOJ position regarding criminal prosecution. Congress could legislate that if it chooses, or it can confer a broader range of immunity to former presidents.

Civil suits are different. The extant law is that both current and former presidents are immune from suit for damages for actions taken within the "outer perimeter" of a president's official duties. This immunity is grounded in the constitutional separation of powers, so the latitude of Congress to legislate in this area may be more circumscribed than in the criminal context.

[John F. Carr]

The narrowest decision is a one sentence ruling, "the writ is dismissed as improvidently granted." Let everybody guess.

[Magister]

Wouldn't that leave the lower court decision in place? The only guessing then would be as to how they would eventually rule on the question when it came up in a different case.

[not guilty]

If that happens, it would indeed leave the Court of Appeals order in place. Let's hope that the current and future presidents will comport themselves in a manner that future criminal prosecutions will not occur. If they fail, the most likely venue for prosecution will be the District of Columbia, so the D.C. Circuit precedent would be controlling.

[John F. Carr]

Yes, the narrowest ground is to decide Jack Smith does not have authority to take this petition to the Supreme Court. Calabresi would get the narrow ground he asked for and Smith would go on with the trial.

Of course it won't happen. Precedent says the Independent Counsel was legal, and she (Alexia Morrison) had even more power. The Supreme Court won't call that decision a mistake without the question being presented directly by the parties. Technically it's a different statute now and the question is arguably jurisdictional. Realistically, I expect a decision on the merits.

[David Nieporent]

ack Smith does not have authority to take this petition to the Supreme Court.

That doesn't make any sense, since Trump is the one who took the petition to the Supreme Court.