Monday Open Thread

What's on your mind?

Comments

[Commenter_XY]

What's on my mind? The debate debacle of POTUS Biden.

Who is really running this country? Because it isn't POTUS Biden.

The man we saw last Thursday evening was cognitively diminished; I was mocked for pointing this out months ago.

How does 25A get instantiated?

[Kazinski]

I got some heat from pointing it out too.

This is from Sarcastro about 10 months ago in response to an AP poll about Biden’s age I posted:

“Y’all keep fucking that age chicken, but it’s at variance with all the other stuff you’re trying, and I think that’s part of why it never caught on. Well, that and all the bad faith ‘Biden misspoke – proof he’s a vegetable!’ nonsense.”

I think it finally caught on, but not because it was repeated so often, or because people we’re trying ‘stuff’, but because it was a concern then for me, and others, and its hardly gotten better.

And then there are those who say “I don’t care if he’s too old, his handlers can deal with the Chinese invasion of Taiwan if it happens late at 8pm.”
Oh yeah the latest report is Joes family, mainly Jill and Hunter want to fire all the handlers.

[Don Nico]

We need a lucid President, not a puppet manipulated by semi-anonymous handlers.

[Kazinski]

Once Jill and Hunter fire the current staff, I'm sure there will be top people in charge, mainly Jill and Hunter.

Here is CNN's headline:

Biden’s family encourages him to stay in the race as they discuss whether top advisers should be fired

https://www.cnn.com/2024/06/30/politics/biden-family-camp-david-debate/index.html

[Brett Bellmore]

By "top staff", I suspect they mean, "25th amendment relative cabinet officials". Only, they probably should have done this purge a few weeks ago, if that's their aim.

[dwb68]

yeah, its too late to purge. The October surprise will be Biden collapsing like Hillary.

[Don Nico]

Jill may be in charge of the campaign, but she is not the person in charge of policy, national security, etc. Those are the people most deeply threatened by Biden's debate failure.

[Lee Moore]

I’m not sure quoting Sarcastro gives you much of a window into what Sarcastro is, or was, thinking. But there were other lefty posters on the recent “Debate” thread started by Josh who have interestingly different takes, such as :

1. “Wow that was embarrassing, er what to do ?”
2. “He’s not up to debating but in private he’s perfectly capable of paying attention and understanding, and anyway a President doesn’t need to be capable of walking and chewing gum at the same time, he can do it in series.
3. “Doesn’t matter if he’s got dementia. it wouldn’t matter if he was dead, or was a turnip. He’s wearing a D rosette and that’s good enough.

The folk in 1 are obviously worried that Biden is not up to it, and obviously so, and that is either (a) bad for the US and/or (b) liable to be noticed by a number of uncommitted registered voters and thus bad for D prospects in the election.

The folk in 2 are currently bathing in that river in Egypt. Most will get out, dry themelves off, and join camps 1 or 3.

The folk in 3 are much more numerous than you would imagine. Thus the “debate debacle” is not really about these folk.

It’s about the folk in 1. Those who genuinely didn’t realise, or couldn’t bring themselves to realise, that that steel jawed razor sharp executive whizz Joe Biden is no longer what he was. They are alarmed, concerned, and otherwise bothered and bewildered. (Note that you should not assume that any and all Dem politicos and pundits who appear to be in camp 1 are bothered and bewildered. They may simply see an opportunity for self advancement from a change of front man.)

My prediction is that the folk in 1 (including those who see opportunities for self advancemet) are sufficiently numerous that Joe will bow out, duly advised by Jill, in the time honored manner. This outcome is baked in, and it is just a matter of settling on the amount, who is to pay it, and how it is to be decorated. We’re not talking book advances here. It needs to go up a notch. (Legal question – I assume this would not be a Blago, ie there’s nothing illegal about paying a candidate to withdraw ?)

My best guess is that Michelle will be the replacement.

[Michael P]

Section 4 of the 25A requires the VP and a majority of the Cabinet to declare in writing to Congress that the President is unable to carry out the powers and duties of the office, followed by two-thirds agreement by both houses of Congress in the likely event that the President denies that disability.

I don’t think we are at the point where enough Democrats will admit the truth that we would get that two-thirds vote.

[Lee Moore]

I disagree. The Republicans are not going to stand in the way of President Kamala. And the Cabinet is not going to vote him out unless they're confident that the Congressional Ds are OK with it.

But it won't come to that. He'll bow out "gracefully."

[Brett Bellmore]

Look, they don't need him to bow out from being President, or being the face of the administration.

They need him to bow out from being the candidate.

Nothing in the Constitution makes Harris the Presidential candidate if Biden drops out of the race. Keep that in mind.

They're not going to 25 amendment him, unless maybe he refuses to give up the nomination, and they decide they need to be brutal. That would mess up the lame duck period, and they're going to be going hog wild during those months.

[Lee Moore]

I agree that practically 25A is not going to happen. It's just a negotiating card in case Jill is too greedy.

[Stephen Lathrop]

I hear that some things in campaign law could make Harris a formidable obstacle to handing off Biden's campaign war chest to anyone but her. I don't understand how that works, but Lawrence O'Donnel said it, and he is usually a good source on nuts-and-bolts political topics.

[Malika the Maiz]

From what I've read Harris can use money raised for Biden-Harris, which is considerable.

[Lee Moore]

What, if anything. prevents a candidate from spending campaign funds on his or herself ? Do you need a colorable excuse that the mansion beside Lake Como is to be used in the campaign - or can you just go for it. (Legally, I mean.)

[Brett Bellmore]

Yes, you actually can get into legal trouble spending the money on yourself. There's a lot of stuff on the margin you can get away with, like hiring relatives for campaign staff, but there is a line in there somewhere, and people have gotten nailed for crossing it.

[Dr. Ed 2]

Harris v Michelle would be Ford v Reagan (1976) on steroids.

Remember they had to get rid of Spiro Agnew first.

[Brett Bellmore]

Yes, there is that. I believe you're right that the accumulated funds would be hard to transfer.

They made a lot of trouble for themselves refusing to admit until this late in the game that Biden really did have problems.

[BadLib]

My understanding is that the Biden campaign could transfer the war chest to a PAC. However that PAC couldn't coordinate with whoever the Democratic nominee ends up being which can be limiting (for example, it couldn't pay for travel expenses for the candidate but could run ads for the candidate - but those ads may not be consistent with the candidate's preferred messaging as coordination is not allowed).

Also Biden could, I think, "return" donations to big donors with a suggestion that they donate them to the eventual candidate. This could help solve some of the donor fatigue problems among big donors who felt they had already purchased their desired regulations with their original donation and would not be happy that they had to pony up again to the new candidate and pay twice for the same thing.

[dwb68]

I disagree, see below. If he bows out as nominee because he's unfit, its admission hes also unfit for the current Presidency.

[Brett Bellmore]

By implication, sure, and that could lead to the 25th amendment being invoked, but it wouldn't make Harris the nominee.

[dwb68]

She's the VP. Hard for me to see a scenario/rationale where she lets herself be sidelined.

[WuzYoungOnceToo]

Hard for me to see a scenario/rationale where she lets herself be sidelined.

What makes you think she can prevent being sidelined?

[Dr. Ed 2]

She is treacherous.

[KenveeB]

It could just be an admission that he's not fit for another 4 years.

[dwb68]

You cant stop a train once its out of control.

[AmosArch]

Its kind of funny how they're, including Eugene, are trying to spin this as some sort of draw because...

*pulls out card*. Trump is bad too!

Okay, even if you accept that how is this relevant to this particular event?

Uh cause he um *pulls out another card* LIED.

Okay even if you accept that how is his supposed lying in this event remarkable from the lying you accuse him of doing every day or even the lying Brandon is doing? Seems to me you are just engaging in desperate deflection to hide the very obvious disaster of Biden's performance.

[Kazinski]

I don't see in that way, the people who see it as a draw genuinely don't like Trump.

All the polls say the people who are going to decide this election are the double disapprovers, that disapprove of both Trump and Biden. Its a lot easier to make up your mind when you only disapprove of one candidate.

I don't like him personally, but despite the pandemic the country was in better shape when Trump left than when he got elected. I don't think that's disputable, as I've pointed out before real household net worth was up 16% under Trump according to the WSJ.

[hobie]

In the debate Trump stated that [uneducated, rapist, shithole country] immigrants are taking 'Black jobs'. What are 'Black jobs'? What was he implying?

[Kazinski]

Your answer might be here:

https://www.blackjobs.com

But I interpret it as taking the jobs of Black people that currently have them.

But it's just the 2024 equivalent of Romney's "binders full of women", those that want to take faux outrage do, everyone else knows what he means.

[Riva]

The fact is that all net job creation under the Biden administration has gone to the foreign-born, many many many many of whom are illegal. And many of whom have assaulted and raped American citizens.

[Malika the Maiz]

What did you think of Trump's performance?

[Lee Moore]

Surprisingly restrained, for the most part.

[Malika the Maiz]

Lol!

[Mr. Bumble]

OK, now tell us what you think.

[Malika the Maiz]

If a person says X was restrained and another person says lol that tells you they think that's laughable.

[Brett Bellmore]

Trivially, everything is "laughable" in the sense that physics won't reach in and stop you from laughing. Or typing "LOL", either.

Trump was remarkably restrained, relative to normal Trump. I guess he quickly realized that it was his debate to lose, and had enough self control to refrain from saving Biden.

[Mr. Bumble]

"...to refrain from saving Biden."
That was CNN's job (nice hand signals Dana) but even they couldn't do it.

[apedad]

First of all, the President doesn't run the country and there are many entities which are just as powerful (if not more powerful in some ways) that he has absolutely zero control over:

Congress
Federal Courts
States
Media
Social Media
Corporate board rooms / stockholders
Specialty groups (NRA, Chambers of Commerce, Save the Whales, etc.)

Nor does a President fully control the political environment, i.e., decide which issues to address:

COVID
Ukraine/Israel
Global Warming

It's also like saying a captain controls a large oil tanker.

They may give an order (turn starboard three degrees), but that tanker is going to continue on its path for a while - and will only change once the crew has made the changes (and as we know the "crew" doesn't always fully agree with the captain's decision).

And a President is also our nation's figurehead - and maybe that's good enough.

[apedad]

Also Biden cares about Americans (even you guys).

Trump simply doesn't care about anyone - and especially you.

[Mr. Bumble]

Tell that to the families of the thirteen dead soldiers from the "perfect" Afghan withdrawal.

[Frank Drackman]

Pretty weak, what next? Hey-Zeus loves me? (pretty sure he doesn't even if he wasn't a made up fictional character) Sleepy/Comatose Joe loves Puppies? Even accepting that he'll be alive on January 20, 2025, I can hear his final cry as he gets on the Helicopter to Delaware "Bo died in Iraq!!!!!!!"

Frank

[Kazinski]

"By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it. I have never known much good done by those who affected to trade for the public good. It is an affectation, indeed, not very common among merchants, and very few words need be employed in dissuading them from it."

- Adam Smith

"Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience."

- C S Lewis

I'm voting for the Robber Baron. And his son.

[Kazinski]

"By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it. I have never known much good done by those who affected to trade for the public good. It is an affectation, indeed, not very common among merchants, and very few words need be employed in dissuading them from it."

- Adam Smith

"Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience."

- C S Lewis

I'm voting for the Robber Baron.

[Mr. Bumble]

All arguments for not fearing a second Trump presidency.

[dwb68]

The cabinet is running the country. Likely, each cabinet member is only exposed to him for a brief period, after naps, so they dont know how bad it is. With any elderly person there are good and bad days, and even within the bad days there are hours of sharpness.

[Brett Bellmore]

The lady across the street slipped into dementia while we knew her, and even when it got pretty bad you'd not have known it in a short conversation. If you spoke with her longer you'd notice that she had forgotten what she'd said a few minutes earlier, but every individual sentence was fine in isolation until quite close to the end.

I'm not saying Biden is following this exact path. He frequently utters incomprehensible sentences, but does seem to be able to keep track for a few minutes, even if he can't remember which standard talking points have become insupportable.

So if you're making allowances for garbled speech, he might seem reasonable in short doses.

[ducksalad (5/30 bad, really!)]

It could be sundowning, which happens sometimes with mid-stage dementia. That would explain him being (relatively) more coherent and aware at morning political rallies, and perhaps morning cabinet meetings.

[dwb68]

I think this is right, and why many cabinet officials have not experienced it the way we did during the debate.

[TwelveInchPianist]

I've also seen people with dementia read books aloud perfect well.

But then they flip to the copyright notice and begin reading that with the same enthusiasm that they read the text.

So Biden's performance while reading a teleprompter might not be as much of an indication as one would hope.

[Joe_dallas]

Brett – I have dealt with 7-8 clients with dementia and/or alzheimers. If you havent dealt with anyone suffering from dementia or alzheimers, it can be difficult to recognize. I didnt recognize it in my first two clients until they had started to enter the advanced stages. Its a lot easier to recognize the signs once you have dealt with few with cognitive decline. Lots of short term memory loss, as you noted forgetting what was said a few minutes ago. My observation is when dealing with financial matters , there is a heavy focus on trivial issues.

One of the more common symptoms is angry outbursts in frustration because they cant figure out what is going on. That typically starts when the person enters the advanced stages. biden has shown that behavior. Though the anger outburst generally dont start until the more advanced stages which Biden probably isnt there yet.

[Kazinski]

Doesn't even need to be dementia. My mother is 96 she doesn't have any dementia she gets up at 5 every morning reads the NY Times, wins the Wordle (she just broke her streak of winning 20 days straight). She's working on two afghans she designed herself, using graph paper and charts. She has her credit cards memorized because she doesn't trust Amazon with them.

She's completely lucid, but she doesn't have the stamina, does have trouble with new concepts, or technologies. And goes off on a tangent talking about minutia or memories from 30-90 years ago when everyone else is on a different subject.

Being lucid, even sharp, for half the day still doesn't mean you are fit to be president. After getting up at 5 she goes back to bed by 10 or 11 and sleeps until 4pm.

[Joe_dallas]

Kaz - Your mothers behavior is reasonably consistent with several of my elderly family members , aunts uncles, parents, grandparents, etc., only one of which who started having dementia issues at age 90.

Most of have dealt with elderly parents , some with and some without impaired mental faculties. It doesnt take a medical degree to be able to recognize serious levels of cognizant mental decline that Biden has been exhibiting for the last few (several) years.

[SimonP]

Who is really running this country? Because it isn’t POTUS Biden.

I’m not sure that Biden’s performance in the debate, as bad as it was, is sufficient to prove his cognitive abilities – any more than Trump’s many rambling, bizarre speeches should be used to diagnose his own cognitive state.

In any event – even if we were to concede that Biden is in cognitive decline, he has a remarkably good record (for a Democrat) for someone that y’all are trying to convince the rest of us is napping and shitting his pants most of the time. Compare it to Trump’s single legislative accomplishment – a budget-busting tax cut – and the regular drumbeat of his chaotic administration. (Are we at war with North Korea or Iran yet? Did he just fire a member of the Cabinet over Twitter? Why is he meeting with Putin without his own aides or interpreter? What is up with all of this corruption?).

Given the choice, I would choose a stable presidency, supported up by experienced professionals and regularly held in check by Congress and the courts, to a constantly chaotic one, imposing any number of culture war mandates on the country via executive order and dubious legal moves, disregarding Congressional limits on its authority and finding the judiciary far more amenable to executive overreach.

Trump wants to launch a trade war tomorrow. He wants to round up millions of undocumented immigrants – including, one would assume, so-called Dreamers and spouses of American citizens, as well as refugees, asylum seekers, and other categories of legal immigrants and the illegal immigrants that hold up our economy – and put them in prisons pending a massive deportation operation that will strain our relationships with their home countries. He wants to mandate culture-war issues from the White House, putting an end to state-by-state approaches to trans kids, abortion, contraception access, and so on.

That’s a pretty vigorous agenda, isn’t it? Maybe we’re better off with a weak president who isn’t trying to disrupt so much of the American economy and society.

[bernard11]

Trump wants to launch a trade war tomorrow. He wants to round up millions of undocumented immigrants – including, one would assume, so-called Dreamers and spouses of American citizens, as well as refugees, asylum seekers, and other categories of legal immigrants and the illegal immigrants that hold up our economy – and put them in prisons pending a massive deportation operation that will strain our relationships with their home countries.

These alone should be seen as utterly disqualifying, even without considering his rhetoric about immigrants. To dehumanize people, to ruin their lives, for the sake of appealing to xenophobia is the behavior of a moral monster. It is saddening that he has so many devoted followers.

No one who calls people vermin, or accuses them of poisoning our blood, or characterizes illegal immigrants as mostly violent criminals should be anywhere near the White House.

[Commenter_XY]

Yes SimonP, POTUS Biden is the second coming of Pres Jimmy Carter. Definitely keep his cognitively challenged ass on the ticket. By all means.

[SimonP]

The best argument for voting against Trump is that all of his supporters seem to be childish morons.

[Bwaaah]

Like people who are prone to just hurling insults? The best argument?

[Jason Cavanaugh]

You mean like this?

https://reason.com/volokh/2024/07/01/monday-open-thread-60/?comments=true#comment-10623643

[myself]

The man we saw last Thursday evening was cognitively diminished; I was mocked for pointing this out months ago.

And rightly so.

Biden was clearly terrible at the debate, hard to understand, looking extremely unhealthy, and at times seeming confused.

But there's lots of other instances where he's been perfectly clear and coherent, the next day for instance.

The debate performance seems to have been due to some combination of bad prep, having a cold, and perhaps the wrong cold med.

It's a red flag since it shows he doesn't have a ton of strength before he is incapacitated, but he's still capable at the moment.

[Kazinski]

In response to reactions to the debate the Biden campaign is sending out a rather bizarre email to supporters calling those want to replace Biden the 'Bedwetter Brigade'.

I say bizarre because they are including post debate poll results, from a Democratic Pollster that shows Biden down by 3 points to Trump, 48-45.

The purpose of the poll is to show that the other putative Democratic candidates are also down by at least 3 points. But it can hardly engender confidence.

Here is Data for Progress headline:

In Post-Debate Poll, Voters Think Biden Is Too Old to Be President Yet Alternative Candidates Perform Similarly Against Trump

https://www.dataforprogress.org/blog/2024/6/29/in-post-debate-poll-voters-think-biden-is-too-old-to-be-president-yet-alternative-candidates-perform-similarly-against-trump

I actually think they are mostly right, that a new candidate is unlikely to change the race much, besides inciting bad feelings from Biden diehards, and bruised feelings from jilted candidates. A different candidate from the Democratic shortlist is unlikely to convince swing state independents that the policies that turned them against Biden are going to change.

Trump isn't ahead because of likability. He's ahead because when he left office inflation was 1.8%, gas prices were 2.36gal, 30 year mortgage rates were 2.71, and the SP 500 was up 76% from when he took office. Those might not be because of his policies, but that's the facts. And gas prices, mortgage rates, inflation may not be all Joe's fault, but they are all much worse excepting the stock market which is fine.

[Krayt]

This is a perfect storm coming up. The waves sweeping through Europe, combined with Biden's apparent issues.

What's the response? Put your head in the sand, cover your ears, la la la la la.

[Brett Bellmore]

The thing is, Presidents don't have a lot of power to single handedly improve things. Maybe gradually, with the help of Congress, but mostly not by themselves.

They have vast power to screw things up. Biden's been demonstrating that.

[Joe_dallas]

Biden hasnt been the one screwing things up -
Its the people he surrounded himself around.

[Brett Bellmore]

Right, and who picked them?

[Joe_dallas]

Both Biden and the current democrat operatives.

[Commenter_XY]

POTUS Biden lost the election with that debate debacle. He cannot recover from that, and truthfully, there is no recovering from cognitive diminishment as a result of age. What you saw on that debate stage was as good as it gets.

Absent jail, assassination or some other sudden event; the election dynamics completely changed last Thursday night. Team D has 45 days to change their candidate. That is just the political dimension.

We have entered into a very dangerous period geopolitically, where our enemies know our CINC is cognitively diminished. Our country is at risk.

[Don Nico]

"Team D has 45 days to change their candidate."
Fewer (37) if the nominee is to be on the Ohio ballot.

[Mr. Bumble]

Candidate or candidates?
Does Harris get dumped too?

[Malika the Maiz]

This is ridiculous. I think Biden did poorly at the debate and I can't believe he is the nominee, but the idea it demonstrates he is especially "cognitively diminished" is silly. More cognitively diminished than Reagan in 84? The country didn't all then. It seemed to me he got up there, he struggled and mis-said things. This idea that invokes the 25th is too far out there. I'd love a POTUS who is genuinely sharp, but we often don't have that (and wouldn't with Trump, who would be the oldest President ever if elected and regularly says bizarre things). This isn't 25th Amendment territory.

[Michael P]

Ronald Reagan was not cognitively impaired or diminished in 1984, or even in 1990: https://www.snopes.com/fact-check/ronald-reagan-alzheimers-disease/

In 1984, Reagan was eight years younger than Biden is now. In 1992, at Biden's current age, Reagan gave a better speech than Biden has been able to in years.

[Malika the Maiz]

"In 1984, Reagan was eight years younger than Biden is now."

You do know how dumb this is given your candidate will be older than Biden is now when he is in his Presidential term?

From your source: "Reagan's doctors said much the same thing while he was in office despite the former president's *memory lapses and bouts of confusion in public*, most visibly during the 1984 presidential debates"

I'll remind you Biden hasn't been diagnosed with Alzheimer's either, people seem to be arguing that because of his *memory lapses and bouts of confusion in public* he has something like that.

[Michael P]

Do you know how dumb “whatabout Orangeman bad?!” is when we’re discussing Biden vs Reagan?

Reagan’s performance in the 1984 debate was leaps and bounds better than Biden’s performance in the most recent debate, or even in 1988.

[Malika the Maiz]

1. If you're going to point out age I'm happy to point out your candidates oldness.

2. "Reagan’s performance in the 1984 debate was leaps and bounds better"

"the former president’s *memory lapses and bouts of confusion in public*, most visibly during the 1984 presidential debates”" Your cited source.

Own goals are difficult, I understand, but there they are.

[Brett Bellmore]

Trump's age is one of the reasons I was supporting DeSantis during the primaries. Not that he's developed dementia yet, but he is starting to stop learning from mistakes, and of course you have to worry about what he'll be like 4 years from now.

I think we might actually have been able to nominate somebody other than Trump, if not for the lawfare causing Republicans to understandably unite behind him. At that point dumping him looked like allying with the Democrats, and became psychologically impossible for most Republicans even if they'd have preferred somebody younger.

[Malika the Maiz]

I, however, believe Republican voters can achieve agency.

[Michael P]

I agree entirely. The only time I've voted for Trump was in the 2020 general election, because he was a better choice than Biden. Trump got re-nominated this year because Democrats wanted to make him Democratcy Enemy #1. Republicans likely would have moved on if not for all the lawfare.

[Malika the Maiz]

I, however, believe Republican voters can achieve agency.

[Brett Bellmore]

I'm a believer in what they call "soft determinism". Having agency doesn't mean your choices don't have causes. Not being caused would be "random", not "free will". It just means YOU make the choices.

[myself]

Trump has had an iron grip on the GOP since 2015, they were re-nominating him regardless of whether or not he was charged.

People talk about Trump's age but it doesn't hurt him electorally because he still looks energetic. They're not even worried about dementia because even with bizarre statements and confusion you got the same thing with 2015 Trump.

I mean Trump stood on the debate stage and claimed to have won "two regular club championships" as an obese 78 year old. Instead of being mocked for claiming the championships (he obviously massively cheated) it barely even registered.

[Don Nico]

Malika,

Skip the age nonsense. We can't say that he has clinical dementia; but we do know that standing with mouth a gap, slack-jawed, and blankly staring into the distance is a sign of poor mental and physical health. Let's examine the head-in-the -sand arguments that Biden can govern while in bad physical and mental health and contrast with Reagan.
Reagan faced Gorbachov who was actively seeking rapprochement with the US. China was led with Deng Shao Ping who was push China toward a more open society. There was no Kim with nuclear weapons and ICBM. Iran was angry but without a heavily armed set of clients.

[Mr. Bumble]

"...than Biden has been able to in years."
That should read "ever".

[Riva]

Hey, I'm with you. Stick with the corrupt reptile. He's a winner.

[Joe_dallas]

Reagan had significantly high cognitive capacity in 1984 than Biden had in 2020. That is really not subject to debate, at least not by anyone being objective.

The majority of prominent democrats (media, etc) were fully aware of Bidens declining cognitive capacity in 2020. They are simply pissed off that they cant hide it anymore.

[not guilty]

Ronald Reagan had a significantly bad first debate in 1984. At the second debate he was asked if, at 73, he is too old to be President. He quipped, "I will not make age an issue of this campaign. I am not going to exploit, for political purposes, my opponent's youth and inexperience," and went on to win re-election by a landslide.

[Don Nico]

More importantly, he was faced with a much safer world in his second term.

[Joe_dallas]

Along with being surrounded with people with a much better understanding of the geopolitical realities. He certainly wasnt surrounded by so many anti-semites or individuals working behind the scenes supporting a terrorist sponsoring state.

[Frank Drackman]

1985-1989 neither the German Inner Border or West Germany/Berlin was really “Safe” nor the Persian Gulf, Crew of the USS Stark didn’t consider it “Safe” when an Iraqi Mirage F1 hit them with an Exocet missile, (oh yes, France, one of our “NATO Allies”) Biggest failure was allowing Ear-Rock/Ear-Ron to agree to a Ceasefire in 88′, they should have been allowed to continue fighting forever, like the Red Spot on Jupiter. Oh, and Roosh-a had over a thousand SS-20's targeted on Western Europe and 30 Armored Divisions in E. Germany, Poland and CZ

Frank

[myself]

You mean the Cold War?

[Don Nico]

Indeed a Cold War that was diminishing in intensity.
Your "comment" is empty.

[bernard11]

Reagan had significantly high cognitive capacity in 1984 than Biden had in 2020. That is really not subject to debate, at least not by anyone being objective.

Whether that's true or not, and I don't think it is, and I especially don't think either of us in position to judge, it's irrelevant. Reagan-1984 is not on the ballot.

If we want to talk about cognitive abilities, the proper comparison is not Reagan, it's Trump, who is, in fact, a delusional idiot who is out of touch with any reality outside his own head, and is so steeped in his own ignorance that it is silly to expect him to make sensible judgments about complex issues.

[Kazinski]

The only way Biden can possibly stay in the race is to take a cognitive test given by an independent expert and pass it and release it.

And if he can't pass he shouldn't still be president.

[Frank Drackman]

I'd see if he can go a few days without shitting himself, and you won't find it on "Web MD" but shitting yourself is a complication of Parkinson's Disease. The main problem is Constipation due to the loss of Dopamine, but eventually the Dam has to break, and "Whammo!!"(HT (Dr) Bill Cosby)

Frank

[Jason Cavanaugh]

Where's Ronny Johnson when you need him?

[tylertusta]

TBH, I think Biden’s dementia debacle really got rolling with the Hur report.

It reframed Biden’s image with the public, followed shortly by Biden going on national television and proving Hur correct. Now the debate just reminded everyone that Biden just isn’t capable of being President.

[Commenter_XY]

It's over for POTUS Biden. I am sure there is a DC or NYC grand jury ready to indict Pres Trump for elder abuse. 😉

[tylertusta]

They already are looking for anything to indict him over, so don't give them ideas!

[PaulS]

We have had the wives of the two presidents before Biden considered to be president (one ran/one says No) - It's a little unfair that Jill Biden isn't in the mix - she could probably get President Biden to bow out if she was the replacement? Then VP Harris could stay as VP - don't even have to change out the yard signs

[Don Nico]

Trump had a clear mission in mind in the debate: convince his supporters to hold fast. Trying to convince undecided voters was secondary.
He succeeded in what he needed to do.
Biden needed to assure the country that he is not "too old." Despite the comments of the wishful thinkers, he failed miserably. Hence the panic among Dem big wigs and donors.

[Moderation4ever]

I have to agree with you that Joe Biden needed to assure the public of his ability to continue as President and he failed to do that. Panic is natural, but must be followed by acceptance and that means Democrats need to get a new candidate.

[hobie]

Whatever the result of the immunity decision will be today, I predict Barrett will be voting against immunity. If one remembers during the colloquy, Barrett didn't engage in hypotheticals like Alito and Harlan did, she rattled off multiple examples of very bad Trump behavior during the coup. It was clear she did not like what Trump attempted

[Brett Bellmore]

If Trump did half the bad stuff he's accused of, I'd hate him, too. Fortunately, it's more like a quarter.

[hobie]

We kinda have a lot of photographic and documentary evidence of the bad stuff.

[Brett Bellmore]

Yeah, and there's a lot of people who are delusional about what the evidence actually demonstrates.

I keep coming back to that call with Raffensperger, where Trump asks for access to election records to prove fraud happened, and, aided by a deceptive paraphrase, TDS sufferers are absolutely convinced he demanded that Raffensperger manufacture fraudulent votes. That's evidence, and evidence of that delusion I was talking about.

[Malika the Maiz]

How is it a deceptive paraphrase? The *exact* quote is "I just want to find 11,780 votes"

[Brett Bellmore]

Georgia officials fact-check an infamous Trump phone call in real time

"Trump asked Raffensperger to "find 11,780 votes, which is one more than we have, because we won this state.""

Or, as the WaPo put it,

"President Trump urged fellow Republican Brad Raffensperger, the Georgia secretary of state, to “find” enough votes to overturn his defeat in an extraordinary one-hour phone call Saturday that legal scholars described as a flagrant abuse of power and a potential criminal act."

Except, of course, Trump never asked Raffensperger to find anything. He asked for access so that he could have his own people look for fraudulent votes.

And what are you finding incriminating here? That he knew how many fraudulent votes he needed to find? What the hell is incriminating about that?

No, I understand the reasoning: They weren't there to find, Trump obviously agreed with you they weren't, so "find" was just a euphemism for "create".

But that's you reading criminality into facially innocent language.

[Malika the Maiz]

Did he not say “I just want to find 11,780 votes”?

[Brett Bellmore]

Yes, he did. As opposed to having said he wanted Raffensperger to "find" them, which is the paraphrase people keep treating like a quote.

But if you think there are more than 11, 780 fraudulent votes to be found, if you're given a chance to look for them, what exactly is wrong with saying you want to find them?

[hobie]

Uh

[Stephen Lathrop]

Bellmore, did you read that NPR link you posted? Read all of it, and tell me whether it reports evidence which sufficiently incriminates Trump to put him in prison.

[Brett Bellmore]

I'm not arguing that Trump was right about the fraud being there to find. He had people in the know saying there wasn't, he had people on the outside saying there was, and he foolishly decided to believe the latter, though not entirely without reason to distrust the insiders.

I'm arguing that HE thought it was there, and he was trying to find it. That's what he SAID, after all!

Sure, if you start out assuming he didn't believe they existed, that leaves him suggesting committing fraud as the only remaining interpretation of the call. But that's an interpretation that's driven by your assumption he actually agreed with you! It's not driven by his actual words.

[Riva]

Nothing. although it was probably illegal to record the call. Certainly underhanded.

[not guilty]

On what basis was it probably illegal to record the call? Georgia and the District of Columbia permit recording of telephone calls with the consent of one party to the conversation.

[Riva]

I believe the party recording the call was in Florida, where it is illegal to record without consent.

[bernard11]

Look, Brett. This is utter fucking bullshit.

First, by the time of the call there had been two recounts confirming Biden's win in GA. How many do you, or Trump, need to be convinced? How long is he entitled to go on demanding recounts? Until one shows him the winner? Then how many does Biden get? When does Biden get access to the data?

And of course he wanted his people involved. Because he knew damn well they weren't there. The last thing Trump wanted was an honest count. That's why he wanted his own people to do it. Consider his implicit assumption that all fraudulent votes, all errors, favored Biden. Why? Because that's what his people were going to find.

Your defenses are fantastical - complete fucking nonsense. He thought he won (No. He didn't think so. ) so he was entitled to have his own count confirm it.

Did you read the transcript, Brett? If you are concerned about Biden's cognitive abilities, you should be terrified about Trump's. He spewed lie after lie, made up shit, and raved like a madman. If he believed half of what he said he needs to be institutionalized.

[Bob from Ohio]

"He spewed lie after lie, made up shit, and raved like a madman."

So just like always.

[WuzYoungOnceToo]

He spewed lie after lie

Yeah, like when he said…

– repeatedly, that the U.S. inflation rate was 9% in Jan. 2021
– that unemployment was at 15% when he took office
– that people paid $400/month for insulin before he capped it at $15
– that his opponent told Americans to inject bleach into their arms to treat Covid
– that his opponent called Neo-Nazis “very fine people”
– that he is “the only president this century that doesn’t have any — this decade — any troops dying anywhere in the world”
– that he once got arrested at an anti-segregation protest
– that none of the classified documents he took with him were highly-classified
– that billionaires pay an average income tax rate of 8%…as opposed to the 3% he claimed previously
– that he remembers standing at Ground Zero the day after 9/11
– that he’s declared a “national climate emergency”
– that he gave one of his uncle’s a purple heart for his WWII service
– that another of his uncles was eaten by cannibals in WWII
– that he’d been to Iraq and Afghanistan twice as President, even though he’d never once been to either country as President
– that gas at-the-pump prices averaged $5/gallon when he took office, even though they didn’t hit that level until a year after he’d taken office
– that he got student loan forgiveness, “passed by a vote or two”
– that firearms manufacturers are the only industry in the country that have immunity from lawsuits
– that there was no Covid-19 vaccine available when he took office
– that, “You couldn’t buy, in fact, a cannon when the Second Amendment passed”
– that he’d “been in and out of Iraq and Afghanistan over 40 times”
– that he’d been “against that war in Afghanistan from the very beginning”
– that he used to drive a tractor-trailer
– that “The number of small businesses is up 30% compared to before the pandemic”
– that “No governor in Virginia has ever won when…he or she is the same party as the sitting president.”
– that Al Qaida is “gone from Afghanistan”
– that prices for new automobiles are back to their pre-pandemic levels
– that he’d been endorsed by the Boilermakers Union, even though that Union had actually endorsed his opponent
– Etc, etc, etc.

Oh, wait a minute….

[Riva]

Funny thing, you can recount a fraudulent ballot a thousand times and you'll get the same result.

[myself]

Everyone who has worked with Trump knows that's his MO.

Say he sees a really nice porche parked on the road and tells you "I want that car".

So you track down the owner and offer to buy but he's not interested, you tell Trump and he shakes his head and repeats to you "I want THAT car".

Now, he doesn't explicitly tell you to steal the car, but you know if you do steal the car for him he'll be happy with you and maybe give you a bonus, meanwhile if you don't get him the car you're in big trouble.

So obviously he wants you to steal the car.

It's just like Weisselberg, you really think Trump's reaction to finding out his CFO was stealing from him was to give him a $200k raise and $500k bonus? No, Trump didn't want to pay the payroll taxes so Weisselberg committed expense fraud (with Trump's full knowledge) instead. When it came time to clean up the books for the presidency they made his compensation legit.

The point of the Georgia call was obvious, for Raffensperger to get rid of enough Biden votes for Trump to win the state. Trump didn't care how it happened, but he likely expected it would involve fraudulently throwing out legal votes and he expected Raffensperger to follow his direction and do that.

[bernard11]

Brett, you've offered up absurd defenses of Trump, one after the other.

"He was just negotiating over the classified documents. No need for a search warrant." Fucking laughable.

"Hey, everyone has all kinds of bankruptcies. No biggie." Fucking laughable.

And see my comment below about the GA business. Once again, you beclown yourself.

Sure, if we accept your ridiculous defenses it's only a quarter, but that problem with that is that they are, in fact, laughable.

[tylertusta]

If Roberts writes the opinion as many suspect, I could see Barrett writing a concurrence speaking to the specifics of Trump's actions.

But I could see her also joining the other conservatives in an opinion that says that Presidents in principle have some form of immunity from criminal prosecution, but its contours as applied Trump's specific case will be determined later.

[not guilty]

A seasoned Supreme Court advocate once told me that oral argument rarely wins a case, but it can certainly lose one. Donald Trump's counsel during oral argument repeatedly conceded that a president can be prosecuted after he leaves office for his private conduct or unofficial acts.
https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-939_f2qg.pdf
See, pp, 18, 28-31, 45-46, 57-58.

[tylertusta]

I can see where Trump’s concessions at oral argument may come back to haunt him at the district court. However, even with those, the Supreme Court still lacks enough facts to settle the indictment itself.

If the Court finds that immunity exists in principle, then Chutkan will have to undertake fact finding to figure out which of the rest of Trump’s actions were private and which were official.

[Bob from Ohio]

"Donald Trump’s counsel during oral argument repeatedly conceded that a president can be prosecuted after he leaves office for his private conduct or unofficial acts."

Duh, of course he did. Everyone knows SCOTUS was never going to buy 100% immunity.

Trump won a lot today.

1. no possible liability for core acts including "absolutely immune from prosecution for the
alleged conduct involving his discussions with Justice Department officials". 2. strong presumption of immunity for official acts 3. remand necessary for determination and 4. broad guidance language which is going to make it difficult to prosecute for talking to pence or his public comments.

[tylertusta]

At every stage of this appeal, Trump has said that unofficial acts are not immune. We can thank our news media for obfuscating what Trump's actual arguments were.

Where Trump will run into trouble is that his lawyers conceded during oral arguments that several acts in the indictment were unofficial and thus not immune. He gave up arguments he may have been able to make at the District Court.

Chutkan will probably latch onto those concessions to build a logical bubble with which Smith will continue his prosecution. There's no guarantee that the bubble will be popped on appeal, so Trump may have shot himself in the foot.

[Bob from Ohio]

Well, its getting a bit in the weeds for me now but maybe trial counsel can point to SCOTUS language that negates the effect?

Its not going to trial though before November and if he wins, never will.

[hobie]

Plus, the supremes have been engaged in a long game of dismantling the federal government and executive power (and, some would argue, amassing more power for the judiciary). It would be a tad hypocritical of them to give the executive sweeping immunity

[Riva]

I suppose that's possible. But you should think of the consequences. What will happen to the corrupt creep Biden if President Trump wins another term and there is no presidential immunity for official acts? Food for thought.

[Brett Bellmore]

A senior home, is what will happen. Trump isn't going to try to jail a guy who genuinely is losing his mind, and the DOJ wouldn't go along with it even if he was that vindictive.

[Riva]

If it were President Trump in such circumstances, the left would chuckle and say, let a pretrial examine settle that. I would give them the same courtesy. And of course, there are always Biden’s accomplices. They want lawfare I say give it to them. Only way to stop them because they won’t stop.

[Mr. Bumble]

Well, it's July.
Pride month is over.
Tractor Supply Co. woke up about woke.
Biden is not getting younger or more cogent.
Trump is still facing 3 court battles and various appeals and sentencing day is coming in Judge Merchan's court.
Retail establishment and restaurants continue to close down and "good news" John Deere is closing a plant and moving jobs to Mexico.
Inflation won't die and prices remain high.

Happy Independence Day America: 248 years (will we make 250?).

[Frank Drackman]

Not to brag, but July 4 is your's truly's Geburtstag also, Fireworks in Atlanta literally going off to welcome my genius to the world. Amurica could do worse than to go back to July 4, 1962

Frank

[Riva]

comment deleted,

[Commenter_XY]

Loper Bright and the slow chipping away of the administrative state (presumably).
How does the death of Chevron play out, in a pragmatic sense?
Does it mean more lawsuits in the long term, challenging agency rulings?

For decades, libertarians have been yammering about chipping away at the administrative state and reducing the influence of the Federal government. Now the hour is at hand. What happens?

[hobie]

Hopefully it will mean that the DEA deciding what drugs to schedule will get struck down and the drug war will end

[Commenter_XY]

We lost the war on drugs; see Kensington (in Philly).

[Bwaaah]

Here's the live action there. Watch the living horror of addiction unfold. It's painful to watch.

[Brett Bellmore]

There is no winning the war on drugs, there's only choosing the victims: The people stupid enough to use drugs, or the people who don't use them but are subject to the police state and black market the effort to save the stupid from themselves creates.

I never supported drug relegalization because I thought drugs were harmless. I support it because I prefer victims who brought it on themselves to innocent victims.

[Frank Drackman]

Only the dead have seen the end of war, write that down, I just made that up. Been to California lately? more Marriage-a-Juan-a stores than you can bang a Bong at, even in the Godforesaken areas (i.e. more than 10 miles from the coast) but every day non-stop local news stories about another "Drug Related Murder" some Tomas, Ricardo, or Hernando getting offed, OK, bad example as most of them are traficking Co-Cai-ain-a or Meth, not Grass, but there's still more Marriage-a-Juana-a bought ill-legally than legally, probably because the Bud-Tenders at the legal stores tend to be such woke pricks (don't ask me how I know, I got the Glaucoma, I only smoke on Doctors Orders!) people would rather deal with a criminal

Frank "Actually, Dave IS here"

[Drewski]

I doubt we'll see more challenges to agency regulations but agencies will win less often than they did before. Not drastically so, since Chevron has been in disfavor for a while. In regards to rulings, we'll probably see a series of strategic challenges to Auer and Seminole Rock first - once they inevitably follow Chevron, the floodgates will be open.

[Commenter_XY]

Why Auer and Seminole Rock first?

[Drewski]

Because agency rulings don't spring directly from the agencies' interpretation of their statutory authority. The regulations do but those are grandfathered in. New regs will be challenged on a statutory basis.
Agency rulings depend on their interpretation of the relevant regulations and guidance. As long as courts must defer to those interpretations, challenging the rulings is futile.
Auer and Seminole Rock set these deference standards and are still controlling,but because their rationales flow from Chevron (they are sometimes called Chevron's progeny), it's likely they'll get whacked sooner rather than later.

[ducksalad (5/30 bad, really!)]

I predict we'll see "workarounds"-

(a) Quietly settle individual challenges out of court while preserving the regulation for everyone else.
(b) If there is a cooperative POTUS, get the regulation made into an executive order. It's not bulletproof but lower level courts may be more reluctant to slap down the president than a nameless bureaucrat.

Of course they could also do what they're supposed to: get a Congressman to draft their proposed regulations into a bill and try to get it passed.

[Kazinski]

France's first round of its election just happened, with the far right and the far left getting most of the votes.

Macron's party in the middle was crushed.

The projections indicated Macron's risky decision to call voters back to the polls for the second time in three weeks appeared to have backfired.

"French polling agencies said Macron's grouping of centrist parties could finish a distant third in the first-round ballot. Those projections put Macron's camp behind both Marine Le Pen's National Rally and a new left-wing coalition of parties that joined forces to keep her anti-immigration party with historical links to antisemitism from being able to form the first far-right government in France since World War II."

https://www.newstribune.com/news/2024/jul/01/french-far-right-national-rally-holds-strong-lead/

I wish they'd add historical context like this to out election coverage: "her anti-immigration party with historical links to antisemitism".

Like say "Biden's party with historical links to slavery and Jim Crow", or " Trump's party with historical links to the abolition of slavery".

[Mr. Bumble]

Paging Martinned2 for an explainer.

[Martinned2]

"historical links to antisemitism” is putting it mildly. Some of the founders fought on the German side in World War II.

Le Pen senior has quite a track record too: https://en.wikipedia.org/wiki/Jean-Marie_Le_Pen#Prosecution_concerning_Holocaust_denial

[Kazinski]

The first action US troops saw in the European theater was against French troops in North Africa.

I'm sure quite a few French saw action on the German side and I doubt many of them were volunteers.

[Martinned2]

Does volunteering for the Waffen-SS count? https://en.wikipedia.org/wiki/Pierre_Bousquet

[Frank Drackman]

Waffen-SS gets a bad rap (OK, and I'm Jewish so blow me) it literally means "Armed Security Force" and was the equivalent of our Army Rangers or Marine Raiders, or Ear-Ron's Revolutionary Guard. OK, maybe they do deserve a bad rap (ever talked to an Army Ranger? ( a real one, not some HR pogue who just took the course) those guys are certifiable, and that's coming from a guy who's had to read a few Inkblots for his own behavior

Frank

[Martinned2]

Here's another co-founder of the Front National with a history in the SS: https://en.wikipedia.org/wiki/L%C3%A9on_Gaultier

[Frank Drackman]

You really want to continue this? I have a Gland Kleagle robe worn by a former DemoKKKrat Senator from West Virginia, only worn for the occasional Cross Lighting.

Frank

[Mr. Bumble]

Rioting engulfed the streets of Paris last night as thousands of enraged left-leaning voters set light to rubbish, smashed up shop windows and launched fireworks after Marine Le Pen’s RN steamed to victory with 33% of the first round vote.

https://www.dailymail.co.uk/news/article-13587059/Protests-sweep-Paris-humiliated-Macron-DEFEATED-Le-Pens-National-Rally-election-round-Presidents-allies-say-far-right-stands-gates-power-seven-days-stop-catastrophe-ahead-second-round.html

[Brett Bellmore]

It's kind of like if Hitler's foes had decided to save him the trouble and went and set fire to the Reichstag themselves for real. You do NOT beat back right wing populists by rioting when they win elections. You empower them by convincing the public you really do need to be dealt with.

[Martinned2]

You do NOT beat back right wing populists by rioting when they win elections.

I don't think you want to cite Hitler for the proposition that the best way to deal with the extreme right is to let them run the country.

[Bob from Ohio]

Wait til I tell you that most of the founders of the US Democratic party bought and sold humans!

[Martinned2]

The difference is that most of the founders of the Front National are still alive, and haven't exactly recanted.

[Bob from Ohio]

"most of the founders of the Front National are still alive"

Gaultier and Bousquet [your links] are not.

LePen pere is but he's 98, he doesn't run the party. He's not going to be PM or president.

[Ed Grinberg]

.

France’s first round of its election just happened, with the far right and the far left getting most of the votes. … “[Marine Le Pen’s] anti-immigration party with historical links to antisemitism”

It is indeed very helpful of them to point out this context. I wonder though: did they at all discuss “the far left [party’s]” current "links to antisemitism"? I bet they didn’t. How odd…

[Martinned2]

100% they did. It's one of the main reason why Macron's party may not fully back the left in districts where the left came second and Macron's party came 3rd.

[Stephen Lathrop]

If Ds were alert enough, or responsible enough, or had political means effectual enough, to field an upstart rival instead of Biden, there is a chance—I think it is an odds-on chance—that Trump’s numbers would decline notably. Problem is, none of the candidates whose names are currently being bruited optimize the D’s chances.

Harris is not popular among Ds. Everyone also understands that to shoulder Harris aside would risk provoking ill feelings among race-conscious voters.

Newsom, Whitmer, and Buttigieg look about good enough to lose narrowly in the electoral college, even if some of them might have a shot to win the popular vote. Booker might have more power to turn out black urban voters in swing states, and thus do better against Trump in the electoral college. Problem is, Booker is sufficiently well known to suggest he may not have upside enough to surge against Trump.

Wild-card candidates whose names do not come up in present polling thus look worth considering. If you start with the premise that bypassing Harris is a real problem, then you must conclude that any wild-card candidate must be chosen for capacity to minimize that problem.

I take that to mean that the best Biden alternative the Ds could field would likely look as much like Obama as possible—black, male, young or youngish, perceived as charismatic and capable enough to both debate Trump, and to go on the attack on the campaign trail. In short, someone centrist Ds and progressive Ds would be glad to support, who could also inspire high turnout among urban blacks in swing states. Also, in context of this election, a young candidate seems more likely to recruit the customary stay-at-homes among millennials and gen Z.

What candidates are available who fit that bill of particulars? Three names come to mind. Colin Allred, a U.S. rep from Texas who is currently in a race to unseat Ted Cruz in the Senate. Reverend Raphael Warnock, the newly elected U.S. Senator from Georgia. And Wes Moore, the newly elected Governor of Maryland.

Allred is 41 years old; Warnock is 56 years old; Moore is 45 years old. All three offer compelling personal histories. Moore’s biography also includes combat experience in Afghanistan.

I think any of those three could launch an insurgent candidacy against Biden, and with energy and good organization stand a fair chance to attract funding and knock Biden out of the race. It would be a risk for any of them. For Warnock there would be the added complication of reducing the D Senate count. It would be a terrific personal political risk for any of them to do it.

But I think a credible challenge to Biden is what this nation’s political future calls for. I urge any of those three to move quickly, test the waters, and if they can attract funding, declare their candidacy.

The first to act enjoys the chance to become an up-from-nowhere candidate. That would be reminiscent of Obama with regard to personal background, and like John Kennedy with regard to appeal to voters—and especially younger voters—longing for a generational transition in American political leadership—a particular appeal which Trump will prove powerless to match.

[Brett Bellmore]

"Everyone also understands that to shoulder Harris aside would risk provoking ill feelings among race-conscious voters."

"If you start with the premise that bypassing Harris is a real problem, then you must conclude that any wild-card candidate must be chosen for capacity to minimize that problem."

A gentle way to acknowledge that the Democratic party is lousy with racists. But the reasoning is fairly sound.

May I contribute that people without executive branch experience have a lousy track record as Presidents; It's not an entry level executive position.

Yes, I'd include Trump in that observation; He made all sorts of mistakes stemming from that lack, which somebody with executive experience in government wouldn't have made. Turns out I was wrong: Experience in business doesn't transfer over well to government.

So from that list you'd really want Moore, on that basis.

[Stephen Lathrop]

Moore would be my first pick too. Not that he has had that much time to establish an administrative track record in Maryland.

[ThePublius]

So, it's all about race?

[Brett Bellmore]

In the Democratic party? Yeah, race, sex, mental illness.

Harris explicitly got her present position on the basis of her race and sex, with other considerations secondary.

[Commenter_XY]

Brett....Heels Up got her start with Willie Brown, those secondary considerations were not so secondary for him. 😉

[bernard11]

You know, I'm tired of this shit about Harris.

If sexual misbehavior is such a big issue for you why are you ardently supporting Trump?

Just stop.

[ThePublius]

Are you stomping your feet now? 🙂

Trump didn't sleep his way into the Presidency. Harris, on the other hand, made her career on her back.

[Commenter_XY]

They don't like it when turnabout becomes fair play, ThePublius.

[Jason Cavanaugh]

Your wife must be an absolute pig.

[Kazinski]

The only problem with that is with current Democratic party rules, its almost impossible for someone to push Biden out, he's got to jump.

What would they be campaigning for? The primaries are over, the delegates pledged.

[ducksalad (5/30 bad, really!)]

What's the enforcement mechanism on delegate pledges? Suppose some delegates ignored their pledge on the first ballot and Biden failed to get a majority. The convention could try to eject or replace them, but that also takes a majority vote.

[Brett Bellmore]

Yeah, he has to jump, or they have to utterly destroy him. And Jill doesn't want him to jump.

It will be interesting to see how they persuade Jill to change his mind.

[Vryedni]

What ever happened to commenter... I want to say "Queen Amalthea?" Is that name right? Close? Anyway, you know who I mean.

[Mr. Bumble]

Dead or sent to the phantom zone.

[Frank Drackman]

+1 for PZ reference, that scared the wee out of me as an 8yr old reading my Superman Comic Books (me and Jerry Seinfeld, unlike Jerry, I gave them up when I found my sisters Betty & Veronica cardboard "Dress Up" game)

Frank

[Malika the Maiz]

Banned.

[Vryedni]

Do you know and if so how, or are you conjecturing?

[Malika the Maiz]

It was me, got an email I was banned and could not post under the handle anymore. Dr. Ed and Frank Drackman, ok though!

Really demonstrates problems with EV's whole "speech" stance imho.

[Vryedni]

Thanks. Fascinating and disturbing. Was the email from EV? What was the purported offense?

[Malika the Maiz]

Just a generic email saying no more posting, and if I tried it said something to the effect of "you cannot post." No explanation at all.

[Vryedni]

From Eugene or unsigned from Reason?

[Malika the Maiz]

You know what, I went back and checked. No email at all. Just when I tried to post under the handle it said I couldn't.

[Brett Bellmore]

Maybe at this point we should invoke Hanlon's Razor: "Never attribute to malice that which can be adequately explained by neglect, ignorance or incompetence."

It's possible that Reason has a very badly designed commenting system, where banning somebody's handle results in all their comments being deleted from the database. And they occasionally screw up and ban somebody for no good reason, at which point there's no going back.

[Vryedni]

I'd like to believe that, and I won't rule out the possibility, but I'm skeptical.

[Brett Bellmore]

I'd find it easier to believe it if Reason would actually EXPLAIN why it happens, instead of claiming they can't comment on moderation decisions because it would violate the privacy of the person who got banned.

[Vryedni]

Yeah, like I said below, that strikes me as sleazy. Like editing or disappearing posts without publicly noting the change, something the more principled bloggers here, Eugene, Orin, Ilya, Adler, don't do.

[Vryedni]

Just noticed this was ambiguous, so to be clear, what I'm saying the more principled bloggers like Eugene, Orin and Ilya don't do is edit or delete their own posts without noting it on the blog. And I think the practice should be comparable for deleting comment thread comments or banning the commenters outright.

[Martinned2]

Yes, that's how I ended up Martinned2. Some glitch in the matrix, I assume. Not worth arguing about.

[Vryedni]

Interesting. Thanks.

[Bwaaah]

I was wondering what happened to Queenie. I am glad you are alive. And I find your new persona less antagonistic. Is that my imagination?

I suspect it was a technical glitch. You were never close to the edge of acceptable, in my opinion. (But almost always at the edge of annoying, which is no more than...annoying.)

[Kazinski]

There was the time, if I recall correctly that you went over the top with some back and forth personal snark with one of the other usual suspects. Might not have been you, but I think it was.

Then EV commented asking people to knock it off.

[Vryedni]

IMO it would be more helpful, if only as a matter of prospective guidance, to note and explain the deletions/bans in real time, not leave us to speculate like this.

[Bwaaah]

The commenting system might use a 4-byte integer as an individual message counter, which would limit a poster to around 4 billion messages. That would explain why you couldn't post anymore.

[Mr. Bumble]

"We reserve the right to delete any comment for any reason at any time."

[Malika the Maiz]

Sure, and I'm critical over how that is applied.

[Mr. Bumble]

Team up with the Rev and start your own blog.

[hobie]

Shame. Looks like the Rev has been onto something. Liberal commentators cancelled. Shit-stirring bigots apparently not. What about that David Behar [sp?]? He seemed to hate everyone so I don't know where he fit in

[Vryedni]

Yeah, but only up to a point. The most flagrant bigot... can't remember his current handle, but he used to be "Aktenberg," keeps showing up under different names, so I assume he's getting banned.

[Frank Drackman]

He’s not a “Reverend”, "Rev" is the universally recognized legal abbreviation for “Revolting” which he certainly is. Are you Walter White? not recognizing Mike’s “Universal Gesture” for “Keys”
and anyone that get’s that reference…..

Frank

[Bwaaah]

"Universal gesture for keys": https://youtu.be/NxLCSen9xrw

[Brett Bellmore]

I'm curious, too. I get the impression that lately Reason has not just been banning commenters, (Without any explanation to everybody else.) but going back through the past comments and removing them, which for me really crosses the line into Orwellian history re-writing.

It's not just suddenly somebody has no new comments appearing. You go back to prior threads, and they've been disappeared.

Every site that I've seen start doing THAT eventually went full censor.

[Malika the Maiz]

Concerning, yes.

[Mr. Bumble]

...and yet you're still here (like the Rev.) under a different screen name.

[Vryedni]

I don’t agree that it demonstrates a problem with his speech stance. It’s a private blog. Gatekeeping however he wishes is consistent with free speech advocacy. It does, however, imply partisan, viewpoint-based moderation, given, as you say, Dr. Ed’s and Drackman’s permission to continue spewing their obnoxious and offensive in pretty much every way imaginable drivel.

Also, banning commenters without noting it publicly on the site just rubs me poorly. Quietly disappearing people just seems wrong. In the Before Times, Eugene and Orin commendably always did it publicly, even though it guaranteed a pain in the ass public tantrum in response.

[Malika the Maiz]

Maybe. He seems to often decry a "culture" of censorship too, though it seems to vary (sadly often as to which 'side' that benefits currently).

FWIW I think he's a very principled fellow, but he's also very politically motivated. It's his blog, sure, but it's also a public blog, holding out his views and *inviting* discussion and extolling resistance to orthodoxy. It's a tough tightrope to walk.

[Vryedni]

Agree to disagree. Regardless, I’m glad you’re still around.

Was the email from Eugene? [ETA: Just noticed your response upthread, so never mind.]

[Frank Drackman]

Riffing on Marsellus Wallace after gettin Boo-Fooed by Zed&Maynard
"I'm pretty effing far from OK"
Marsellus is sort of like Confused-us, you can live your life just based on his quotes and do pretty well.

Frank "Fuck Pride"

[Michael P]

Just before "Malika the Maiz" started posting, maybe?

[Malika the Maiz]

The only problem with EV's recent post is this:

1. It's true that Democrats are not happy with the idea of a candidate who seemed to perform poorly on non-partisan criteria

2. It's also true that Republicans are a-ok with the idea of a candidate who seemed to perform poorly on non-partisan criteria. In fact, it's probably more of a feature than a bug to many of them.

[Michael P]

Donald Trump has a lot of policy and economic arguments he should be president again. Biden seems to rely on the claim that Republicans will ban all the January 6th abortions, because you ain't Black if you have doubts about voting for Biden: https://www.foxnews.com/politics/biden-claims-debate-performance-won-more-undecided-voters-than-trump-nj-fundraiser

[Malika the Maiz]

Trump dodged very basic and pointed questions throughout and was clearly, easily, upset to a wild degree about any attack deemed personal on him, often replying with barely coherent conspiracy theories.

[Brett Bellmore]

Fancy that, a Republican thinking Jake Tapper of all people might be a bit biased against him. How could anyone think that?

Tell you what: This time the Democrats got a debate with CNN moderating. Does ANYBODY think CNN doesn't favor Democrats?

Next time, how about Trump picks the people running the debate, instead of Biden? Fair is fair.

[Malika the Maiz]

The conspiratorial answers I'm referring to were not about the moderators.

[jb]

You know Team Trump agreed to have the debate on CNN, right? The whole framework for the debates was negotiated between the campaigns; one team didn't get to set the rules and the other team had to just accept them all.

[Don Nico]

Trump did not perform poorly to his supporters. He said just what they expected him to say.

[Josh R]

Assuming Biden has lost 2-to-3%-points in the polls since the debate (early numbers indicate such a drop), that leaves Democrats with a tough choice.

Had he lost 5 or more, it would be much easier to replace him. Had he lost nothing, it would much easier to keep him. But with this reality, it isn't clear if the chaos caused by choosing a replacement gives the Democrats a better chance of winning. Either way, the odds aren't good (perhaps like choosing between hitting or standing with 16 versus a Ten in blackjack).

To win, Biden needs to gain back some of what he lost as we get further from the debate and then be lucid at the next debate.

[Brett Bellmore]

Assuming there IS a next debate. If Biden really thinks it isn't true, then his best move is to challenge Trump to another debate, ASAP, and crush it. Put a rest to the talk of dementia.

But Biden doesn't really think it isn't true, or else he wouldn't react with so much anger to suggestions that he get tested. That's the way a guy who suspects it's true and doesn't want confirmation acts.

I've seen people go through this, horrifying as it is, and it's an accelerating process. You can spend years gradually declining, then you hit a point where you've lost your margin, your reserve capacity, and you fall off a cliff.

So, if it really IS dementia, Biden might be doing a good imitation of a vegetable by election day.

It's not going to get easier as time goes by to pull off a replacement. Though I suppose it will get easier to convince people it's necessary...

[Vryedni]

It's exactly like the 16 vs 10. Can't win with him and, as long as Kamala's alive, can't win without him.

[tylertusta]

Even if Biden lost 10% in polling, it's too late to replace him.

But it's never too late to bury your head in the sand and pretend there isn't a problem.

[Commenter_XY]

Josh R....there is no tough choice here. The entire world saw that the US POTUS is cognitively diminished. POTUS Biden will not recover from that debacle.

Don't believe me? All POTUS Biden has to do is ask for Jackie or tell us more about Uncle Bosie, just one more time.

[Martinned2]

Of course there's no tough choice here. Even if Biden was in a coma he'd still be the obvious choice if the alternative is the guy who made it his mission in life to end US democracy and the rule of law.

[ThePublius]

"...made it his mission in life to end US democracy and the rule of law."

Do you really believe that? If so, it puts you in the lunatic fringe. And, it's straight out of the Democrat-Alinsky playbook.

[Commenter_XY]

They are having trouble coming to grips with reality, ThePublius; Team D's candidate is becoming a walking cauliflower before our very eyes.

[Martinned2]

Have you ever heard him speak? Every word out of his mouth, or at least the coherent bits, are just a version of "Pretty country you've got there. I'd be a pity if something happened to it."

[ThePublius]

That's baloney. He's not extorting anyone.

[Ed Grinberg]

“Pretty country you’ve got there. I’d be a pity if something happened to it.”
compare:
“We are five days away from fundamentally transforming the United States of America.”
That should've been our first clue...

[Mr. Bumble]

Yeah, just what we need, another Edith Wilson presidency.

[Commenter_XY]

The difference is, Dr. Jill was evidently A-Ok with Joe showering with their daughter Ashley. That is the kind of human being who would be calling the shots for Joe.

The other difference is that Edith Wilson was childless.

I want POTUS Biden to stay in the race. 🙂

[WuzYoungOnceToo]

his mission in life to end US democracy and the rule of law

Yeah, that's why he was a dictator for 4 years and is still in the White House.

[Martinned2]

Just because he wasn't very good at it, doesn't mean you should elect him to try again.

[WuzYoungOnceToo]

You suck at trying to appear intelligent, but we keep giving you opportunities to try again.

[Moderation4ever]

It is more than points; it is the fact that the debate was meant to show that Joe Biden was still able to do the job of the Presidency. He failed and there no way to build back. The polls show a 2% drop but that will not get better and in a close race that is all that is enough to lose.

[Don Nico]

Biden has to look completely lucid and in full health at every public outing now. No fade-out moments.
That will be difficult. Expect him to be far more cocooned than he has been with many surrogates appearing for him.

[Martinned2]

Of course he would. Is there a single policy area that Trump won't intentionally seek to make worse?

Donald Trump would yank the United States out of the Paris climate accord for the second time if he wins the presidency again in November, a campaign spokesperson told POLITICO Friday.
(...)
When asked Friday if Trump would repeat his removal of the United States from the landmark climate agreement, Trump campaign national press secretary Karoline Leavitt replied, “Yes, he has said that” he would.
Trump’s planned withdrawal isn’t a surprise, given his previous withdrawal and the lobbying by conservatives. Trump himself railed against the Paris accord in his debate with President Joe Biden in Atlanta on Thursday, saying the agreement was “a rip off of the United States” and “a disaster.”

At this rate, I fully expect him to announce him to announce an annual Purge, like in the movie.

[Mr. Bumble]

Paris Accord; Hahahahahaha

[ThePublius]

We want the U.S out of the Paris accord, that's one of the issues that propels his base.

[Martinned2]

Yes. That's exactly the "Destroy Everything" attitude that scares the rest of us so much.

[Mr. Bumble]

Look in your own backyard for something to scare you.

[Martinned2]

What do you think I've been spending much of today doing? But at least in continental Europe most countries have democratic systems that stop lunatics taking over the asylum. Even in France you need 50% of the votes in your district to win a seat.

[Bob from Ohio]

"continental Europe most countries have democratic systems that stop lunatics taking over the asylum."

Really? 20th century says otherwise.

[Martinned2]

Note that I wrote in the present tense. We learned from that experience, you didn't.

[Mr. Bumble]

Present also says otherwise.

[Commenter_XY]

Your democratic systems in Europe leave much to be desired; remember Adolf Hitler? How about Milosevic? Tell me all about your wonderful democratic systems.

[Martinned2]

I wrote in the present tense. We learned from our mistakes. It would have been nice if you had too.

[ThePublius]

There's no "destroy everything" attitude.

The whole climate scare thing is a gigantic grift. It's a scare to extract money from the populace, and seize more and more control.

If the elites were really concerned about the catastrophic effects of climate change, why don't they act like it?

Solar and wind will never scale, economically or environmentally, to satisfy world energy needs. EVs won't, either. Additions to the trace amounts of CO2 in the atmosphere are not a problem.

It's all a big fraud.

[Bwaaah]

That’s exactly the “Destroy Everything” attitude that scares the rest of us so much.

There's no "Destroy Everything" attitude on the right. There's a "The Sky is Falling" attitude on the left, and to pay for an irrational fear of a what may be, they allow the destruction of what so many of us have. Even worse, they foreclose the possibility of expanding the number of people who might enjoy what is possible today, again, to pay for their catastrophic vision of tomorrow.

Catastrophism. Only an already enriched intellectual could embrace such an alarmist future as a reality, and set aside the present potential that so many more will never enjoy because their future rests within an already defeated vision.

[Kazinski]

And people ask me why I'd vote for Trump.

There's one answer right there.

If Paris was such a great treaty, then why didn't Obama, or Biden, try to ratify it?

[Martinned2]

Because there are too many Republicans in the Senate who wouldn't ratify a "Sliced Breat is Great" treaty.

[Brett Bellmore]

If I have any complaint about the Paris accord and Trump, it's that he followed the procedure in it for withdrawing, which took most of his administration to complete.

He should have simply held a press conference and stated,

"I am not withdrawing from the Paris accord.

The Paris accord is a treaty. Treaties require Senate ratification to take effect, and the Senate has not ratified this one, which means we are not party to it to begin with. As such, we are not bound by any of its terms, including the procedure for withdrawing from it.

Thus, I am not withdrawing from the accord. I am simply going to stop pretending we are a party to it. Starting this very moment, I am ordering the Executive branch to stop treating this unratified treaty as binding.

Some of you may cite the Vienna convention on the law of treaties. Certainly, there were voices in the my administration who did that.

We didn't ratify that one, either."

[Martinned2]

Tl;dr "the United States can do what it (= whoever is President) likes, consequences be damned. Who needs a rules-based international order anyway?"

[Bob from Ohio]

"Who needs a rules-based international order anyway?”"

One of our rules is that agreements with foreign countries to be binding must be ratified by the Senate.

[ThePublius]

"rules-based international order"

Gee, that sounds very Nazi to me.

[Mr. Bumble]

Which Martinned2 would have been living under but for the US.

[Martinned2]

Give me your address and I'll send you a thank you note for your personal sacrifice in defeating the Nazi's.

[Mr. Bumble]

You can send it to my late father, care of me.

[Martinned2]

Yes, because the Nazi's were famous for being so law abiding. /s

[WuzYoungOnceToo]

I fully expect him to announce him to announce an annual Purge

Every time I think you've already made yourself look as stupid...and quite probably mentally ill...as possibly, you one-up yourself.

[CountmontyC]

Ever notice that those who most often accuse those on the right of being "conspiracy theorists" are those that are the biggest conspiracy theorists around?

[WuzYoungOnceToo]

Ditto "fear mongers".

[dwb68]

So I guess the dems are going with “everything is fine, its fine, that debate performance is fake news.” smh

Who is running the country? It isnt Biden.

I'll repeat what i said yesterday: If you follow the removal logic to its inevitable conclusion, Harris has to be the Dem nominee whether the Dems like it or not.

If Biden steps aside as the nominee, its an admission he is unfit. I cant see any scenario where either Biden steps aside as nominee and/or the Dems remove him as nominee without conceding he’s unfit for the Presidency. You can’t have an unfit President with his finger on nukes, not even for 4-6 months*.

The Cabinet/VP will be forced to 25th amendment him. That makes Harris the Acting President. Its dubious Harris would go along with any plan where she is not the nominee**.

So, if Biden is cast aside as nominee, its either Harris as nominee and Acting President, or a constitutional crisis where an unfit guy holds office.

I know people don’t like Harris, but she is fully capable (she was CA AG, a big office, that counts for something). She polls about the same as Biden. The election is not a likeability contest, we have unlikable vs unlikable felon. Most importantly, when people see you in a job, their reservations about you doing it melt away. As Acting President, she will assume the mantle of de facto incumbent and get a bump.

I am not a Harris fan, but I think its a mistake to think she can’t beat Trump. She will look prepared, young, and competent beside him. She can beat him, and she very well might.

* I expect Iran, Hezbollah etc to challenge the US in the next 6 months to exploit Bidens perceived weakness.

** no Newsome. This will split the Dems who think Harris is being shafted because shes black. I can see Whitmer being the VP. This is a smart move with MI in play, but its hard to see how Harris gets cast aside so Whitmer is Pres, or why she’d go along with this plan.

Also, yes, Trump should step aside too, but we arent in that universe. When the dust settles, I expect Trump to pledge to resign after 2 years and upsell his VP choice.

[Martinned2]

The US refused to elect the most capable candidate it's had this century because she was a woman. (Sorry, "unsympathetic.") What makes you think it would elect a woman of colour?

[Mr. Bumble]

Did you spend the weekend getting high?

[dwb68]

I, too, want to know what you are smoking?

[Don Nico]

And Hilary was a lot smarter and capable than Harris, who was only selected because she is a black woman.

[Martinned2]

Hillary was more qualified than any presidential candidate of either party since Bush sr. (Unless someone wants to argue for Al Gore.)

[Brett Bellmore]

Hillary combined a huge level of political competence with the morals of a snake. The charisma of a snake, too. This qualified her to play Evil Vizer to Bill's Sultan, but nobody in their right mind makes the Evil Vizer the Sultan in his own right.

Her enormous competence enabled her to take over the Democratic party from within, and gift herself the nomination. Her negative charisma resulted in her losing the election to a NY real estate magnate and reality TV star.

[Mr. Bumble]

Yeah, she was so politically competent that a back bencher from IL took her first chance at the presidency away.

[David Nieporent]

Her negative charisma resulted in her losing the election to a NY real estate magnate and reality TV star.

…despite getting millions more than votes than he did.

[Mr. Bumble]

Irrelevant. Change the Constitution if you don't like the current system.

[David Nieporent]

Irrelevant to the point. I didn't say she won. I said that MAGA claiming she had "negative charisma" is pretty absurd given that she was far more popular than Donald Trump.

[WuzYoungOnceToo]

Irrelevant to the point. I didn’t say she won. I said that MAGA claiming she had “negative charisma” is pretty absurd given that she was far more popular than Donald Trump.

It's not even remotely absurd if you're bright enough to understand that, for many voters, there are considerations that override deficiencies in charisma. For instance, do you suppose there were many feminists who would have voted for a woman no matter what her other qualities? Or other voters who would have voted for anyone BUT Trump?

What's absurd (and just plain simple-minded) is proclaiming, "She won the popular vote, therefore she was at least as charismatic as her opponent".

[Brett Bellmore]

They both knew how Presidential elections work, going in. If she wasn't trying to win the EC, she's stupider than I'll credit.

[WuzYoungOnceToo]

…despite getting millions more than votes than he did.

So she was as dumb as you are, in that she focused on something that didn't matter.

[David Nieporent]

No. You're being both dishonest and stupid. Dishonest, because I never said that she "focused on" popular votes. Stupid, because you're pretending that it was a specific strategy. If football team A racks up 500 yards in a game and its opponent team B only gets 200, but through whatever fluke — whether it's turnovers, or bad calls, or whatever — B wins the game 10-9, we do not say that football team A ha a stupid offensive coordinator because he "focused on" the wrong thing (gaining yards rather than scoring points). We recognize that the way to win games is to gain lots of yards, and if team manages to win despite gaining many fewer yards, it was just a bit of luck.

[Frank Drackman]

Are you an Alabama fan? Because that’s the kind of BS they say when they lose, “We gained more yards” “We only lost because of Turnovers/Penalties/109 yard return of a missed Fieldgoal on the last play of regulation”
Been to lots of Foo-Bawl games, never saw one decided by how many yards were gained.

Frank

[bernard11]

So you don't think trying to gain yards is a sound strategy at football?

Sure, sometimes the team that gains fewer yards wins. That doesn't mean trying to gain ground is a stupid idea.

I do agree that some of Hilary's late campaign moves were poor. I suspect that she thought she had a sure win, and was trying to pile up the points rather than lock down the win.

[WuzYoungOnceToo]

No. You’re being both dishonest and stupid. Dishonest, because I never said that she “focused on” popular votes.

I never claimed that you said that. I said that she focused on it, and that you focused on it here. So tell us again who is being dishonest?

Stupid, because you’re pretending that it was a specific strategy.

I'm not pretending anything. Among other bone-headed mistakes, she ignored and took for granted states (like WI) whose electoral votes went to Trump, costing her the election. She spent more time in truly blue-locked states like California than in the rust belt.

And your football yards gained vs points scored analogy is braindead. Gaining yardage always advances you toward the other team's end zone, which always increases your odds of being able to score. But getting more votes in states that are already a lock for you doesn't do anything to increase your chances of winning the electoral college.

[bernard11]

Hillary combined a huge level of political competence with the morals of a snake.

Don't want a President with "the morals of a snake," Brett?

Odd, coming from you.

[Commenter_XY]

We have a POTUS (and VPOTUS) with the morals of a serpent. 😉

[bernard11]

No we don't, you jerk.

What are you criticizing, exactly? Aside from the BS claims about the "Biden Crime Family" that you so love, and complaints about Harris' sexual behavior, which is almost unbearably laughable coming from a Trump cultist.

You like Trump? Fine. But don't pretend that he's not a lifelong grifter and conman. You make yourself look stupid.

[CountmontyC]

What made her the " most capable candidate" this century?

[Moderation4ever]

Hillary Clinton would have been a fine President, but she was not good at running for President. Harris could win if Democrats support her, and she runs a good campaign.

[Martinned2]

Leaving to one side that the Hillary Clinton's skill at running for President was mostly hampered by the fact that she didn't behave as meekly as many Americans like their women, the fact that the distinction between "being president" and "running for president" matters is an enormous indictment of US democracy. Once upon a time the idea was that voters would elect whichever candidate was better at being president.

[dwb68]

Sure there is that, and also insulting the people you expect to vote for you, and hiding your illness and collapsing on camera. Oh yeah, and negotiating to give 150 billion to Iran in a super secret late night delivery. Oh, there is also wiping her server.

Sure, besides all those things she was the epitome of competence.

Smoke some more copium.

[Bob from Ohio]

"Once upon a time the idea was that voters would elect whichever candidate was better at being president."

"Once upon a time" is a traditional intro to a fairy tale.

When did this utopia exist?

[WuzYoungOnceToo]

Hillary Clinton’s skill at running for President was mostly hampered by the fact that she didn’t behave as meekly as many Americans like their women

Your eyes must be a deep shade of brown.

[DaveM]

Wow, four head-scratchers in one, short comment. I don’t normally like to nit-pick to this extent, but this dashed-off comment kind of just stuck in my teeth.

Refused to elect. This is such an odd phrase. What can you possibly mean by it? You can ask people to vote for your candidate, but if they decide to elect someone else, they’re not “refusing” to vote your way, they’re choosing to vote their way. People don’t owe your team a vote, you’ve got that completely backwards.

Most capable candidate. A non-sequitur; if she was, indeed, the “most capable” she would have won the election. Just brain-storming here, but calling half of the country “deplorable” is the opposite of capable, it’s politically stupid. Especially when you need the support of some of those people in order to win.

Because she was a woman. That’s just projection on your part. I couldn’t care less that she was a woman, and it’s insulting for you to infer otherwise. If you’re trying to win people to vote for your team, the first step is probably not to insult them.

What makes you think they’d elect a woman of color?. This is clearly meant as another “deplorables” type of insult, but in fact it’s a self-fulfilling prophecy. It sounds like you yourself don’t believe a woman of color can be elected, which is why you never ask anyone else to. Give it a try, you might be surprised.

[David Nieporent]

Most capable candidate. A non-sequitur; if she was, indeed, the “most capable” she would have won the election. Just brain-storming here, but calling half of the country “deplorable” is the opposite of capable, it’s politically stupid. Especially when you need the support of some of those people in order to win.

She did not, of course, call "half of the country" deplorable. She called half of Trump supporters deplorable. (Note: this has proven to be a drastic underestimate.)

[WuzYoungOnceToo]

(Note: this has proven to be a drastic underestimate.)

Note: You've been proven to be full of shit and mentally deranged.

[Brett Bellmore]

Fair enough. A quarter of the country. The point still remains: It was a really stupid self-own.

[Bwaaah]

I think David is trying to be magnanimous about the whole thing. And your deplorable view is noted.

[Kazinski]

Yeah, we all know what she is capable of, we took a pass.

[Commenter_XY]

M2, whatever you are smoking, I want it.

[Moderation4ever]

I think trying to sell the 25th Amendment idea is silly. Joe Biden is competent to be President he just isn't up to running for President. These are too different things. I agreed that Kamala Harriss could handle the job of President and is not the incompetent that is Trump. Best scenario for my money, Biden withdraws and endorse Harris as his successor. Democrats fall in line behind Harris. Will it happen, unlikely.

[dwb68]

They are the same. A man who cannot remember his lines for a debate performance should not be in charge of nukes, period.

[Don Nico]

"Kamala Harriss could handle the job of President"
What is your hard evidence. I watched her as AG of SF and of CA, and I saw no such ability.

[WuzYoungOnceToo]

Joe Biden is competent to be President he just isn’t up to running for President.

Let's all just step back and admire the abject idiocy of that comment for a moment.

[WuzYoungOnceToo]

ROFLMAO!!! This one is even funnier:

I agreed that Kamala Harriss could handle the job of President and is not the incompetent that is Trump.

Even the Dem shills at Comedy Central don't take her seriously.

https://www.youtube.com/watch?v=72vUngNA9RM

[Frank Drackman]

Good news for the D's is Sleepy/Comatose has the Demented vote locked up (alot of them are literally locked up) Bad News is they're Demented and as likely to vote for "45/47" as Sleepy. Other
Bad News is with "45/47" it's the first time convicted Felons have one or their own to vote for (isn't being an Un-convicted Felon like Sleepy or the Late Ted Kennedy/Milhouse Nixon worse?)

Frank

[tylertusta]

And there we have it. Presidents have absolute immunity from criminal prosecution for official acts.

Link to opinion: https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

[David Nieporent]

And there we have it. Presidents have absolute immunity from criminal prosecution for official acts.

No, that's an overstatement. They have absolute immunity only for core presidential powers; they have presumptive immunity for other official acts. (And no immunity at all for unofficial acts.)

[Mr. Bumble]

Mr. Picky is back.

[Brett Bellmore]

I think that was actually a proper qualification.

[Bwaaah]

Agreed. And Mr. Picky is back.

[Mr. Bumble]

Proper maybe but irrelevant as regards to a trial before the election.

[BrotherMovesOn]

Could you at least try to be less effeminate?
It's really off-putting and it's obvious you have nothing but effeminate insults to offer. Thanks!

[BrotherMovesOn]

Imagine being such a simpleton that you react to an attorney clarifying a legal distinction, on a legal blog! no less, by saying "Mr. Picky".
The mind reels.

[Bwaaah]

"I take particular issue with calling him 'Mr. Picky'."

[Mr. Bumble]

Assumes you have a mind. Fact not in evidence from your trolling of my comments.

[tylertusta]

You are correct. I'm still reading through the opinion.

[Josh R]

Accordng to Sotomayor, the ruling de facto gives the president absolute immunity. She first argues there is no distinction between absolute and presumptive immunity. And then goes on the say barring evidence of offical acts in a trial undermines the prosecution ofr unofficial acts. She might be correct at least as it applies to Jack Smith's Jan 6 case.

Also note that Justice Barrett would have immediately ruled, without remand, which of Trump's actions could go to trial, and permitted using immune official acts in the trial as evidence.

[Kazinski]

That would be unusual for the Supreme Court because that’s going to require a fact based inquiry, and allow Trump to make his own arguments.

She criticized the court in Trump v Anderson for deciding more than they had to, now she wants to reach down in the weeds and do the trial courts job.

[WuzYoungOnceToo]

Accordng to Sotomayor,

So you're basing your assessment of the ruling on a dissent that sounds like it was written by a child throwing a tantrum.

the ruling de facto gives the president absolute immunity. She first argues there is no distinction between absolute and presumptive immunity.

The self-evident stupidity of that assertion should have been enough to tell you to not take her arguments seriously.

[Riva]

Hey David, aren't you the guy that denied that there was an argument for immunity rooted in separation of powers?

[tylertusta]

I'll defend David here: While he disagrees with the decision today, when talking about this topic he has been respectful and thoughtful. Even his criticism of my overly enthusiastic hot take was appropriate, in my view.

There are others here more worthy of criticism on this topic than David.

[Riva]

well, I can’t speak to your experience but from what I recall he was, shall we say, less than receptive when I suggested that separation of powers concerns strongly supported a finding of immunity.

[Kazinski]

Jack Smith?

[Riva]

Well sure, Chutkan, together with virtually entire DC federal court system. And also Biden’s DOJ which is orchestrating this farce.

[Kazinski]

It "necessitate[s] at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility."

[Mr. Bumble]

All 119 pages.
Judge Chutkin and Jack Smith weep.

[tylertusta]

Smith might eventually win on whether some of Trump's acts are not immune. Looks like the Court is endorsing the Blassingame test.

But Friday's ruling on Fischer plus today's opinion in Trump probably dooms any hope of a pre-election trial of Trump.

[Mr. Bumble]

Dooms with a capital D.

[Bob from Ohio]

"Smith might eventually win on whether some of Trump’s acts are not immune."

Maybe, but not before the election. DC has to decide, then DC circuit reviews and then inevitable cert grant.

[tylertusta]

Maybe, maybe not. Given the contempt oozing from the DC Circuit for Trump, Trump's appeal might last a grand total of five minutes there.

After that, it'll be up to SCOTUS to pick it up or not.

[Bob from Ohio]

"contempt oozing from the DC Circuit "

That assures a cert grant. The DC opinion was so bad here that no SCOTUS could let it stand.

[tylertusta]

I'm positive that the poorly written DC panel decision cost Smith the votes of Chief Justice Roberts.

[Riva]

I wonder how the legal professoriate on this site who posted pieces praising and agreeing with the DC Circuit will react? I’m sure they’re feverishly working on something. Maybe trying to delete those articles.

[Kazinski]

Law professors are never wrong, in their view it was the Supreme Court that made the error.

Ilya will be along shortly to explain it.

As happened after Trump v Anderson in blogs all over the country and comments here.

[tylertusta]

I agree with Kaz. They'll disagree with the Court's opinion and criticize it.

In addition to that, we're going to see them pouring over both the Trump and Fischer decisions to find some nugget that might save Smith's prosecution. They have elephants to find in any mouse holes they can find!

[JesusHadBlondeHairBlueEyes]

Weird, you'd think they would rule on the merits and not on their personal preferences or emotions...

[tylertusta]

Maybe the DCCA panel will take the hint from SCOTUS and not screw it up again.

[Riva]

I don't think they can control themselves.

[tylertusta]

The most surprising thing about the decision was how Roberts restrained himself from criticizing the panel. That must have been hard for him.

[Riva]

He should have been more critical. The DC federal courts are strongly in need of some rebukes and it would go a long way to restoring some sanity back into the system.

[tylertusta]

He may have felt he couldn't do it while also writing the majority opinion.

[Moderation4ever]

Not necessarily. The idea of a trial before election was doomed by SCOTUS's taking its time for this ruling. That said Judge Chutkin can start hearings almost immediately are the charged offenses covered as official acts. This will be an opportunity for Jack Smith to take his case to the public. Handled correctly this could be the equivalent of a trial.

[Bob from Ohio]

Keep hope alive!

[tylertusta]

I enjoy it when they inadvertently concede this whole thing is about politics and the election in Nov.

[Frank Drackman]

So no murder rap for "45/47" taking out Soul-Man-Ani???

[LawTalkingGuy]

Joe Biden has the chance to do the funniest thing ever.

[hobie]

I see where you're going

[LawTalkingGuy]

Maybe not. I mean that might be funny too, but I was thinking ordering the State Department to revoke all the conservative justices' passports right before they go on their vacations.

[Commenter_XY]

That is actually pretty funny. Official act, POTUS Biden would be immune.

[Bob from Ohio]

From criminal prosecution. What crime would that violate in any event?

Courts are still going to order the US government to do or not do things.

[hobie]

You are correct, I did not see that one coming. I was thinking more along the lines that since SCOTUS today gave POTUS carte blanche to have his branch do whatever he wants he could have DOJ seize voting machines in Alabama, or have Buttigieg start a public works project on all streets surrounding Mar a Lago. Sky's the limit now, baby! And Biden has about 7 months to wield his new imperial powers

[WuzYoungOnceToo]

I was thinking...

If that were true you then wouldn't have typed any of the stupidity that followed it.

[Frank Drackman]

I don't get it (nothing new) we Ass-Burger's be dat way, what's so funny, is he funny like a Clown? he's here to amuse us? What the EFF is so EFFING funny??????????????

Frank

[Darth Buckeye]

No surprise. The question now is: what constitutes an "official act?" There is only a presumption of immunity for official acts. Not a mind-blowing decision. But Progressives will read it as such.

[hobie]

Right. And now we go through the whole rigmarole of: Me and the boys weren't trying to steal election, we were just securing the integrity of the election as the chief executive officer blah blah blah. Then off to SCOTUS with that one. Then, maybe, we have a trial

[tylertusta]

Things would have been simpler had the Senate convicted Trump.

[Mr. Bumble]

Which time?
Do you seriously consider that either impeachment was justified?

[LawTalkingGuy]

The one where he tried to stay in power illegally after he lost an election? Yeah, that's pretty justified.

[JesusHadBlondeHairBlueEyes]

You guys made having a legal theory illegal.

It's sickening.

[LawTalkingGuy]

Since most coups have a veneer of legalism about them it is actual is good to make a "legal theory" where the loser of an election gets to stay in power "illegal." Far from sickening, its the appropriate response to coup attempts.

[JesusHadBlondeHairBlueEyes]

It wasn’t a couple attempt. The Democrats are now saying they won’t certify Trump if he wins.

Is that a coup attempt?

[LawTalkingGuy]

Yes it was. Did he lose the election? Yes. Did he try to stay in power by extra-legal means? Also yes. That’s a textbook coup.

Yeah it would be. But if you’re gonna try a coup and brush it off as no big deal, don’t be surprised someone else does it as well. You had the chance to support democratic norms and you blew it to support a semi-illiterate game show host who doesn’t give a fuck about you. Embarrassing shit.

[Brett Bellmore]

I think it's a bit of a stretch by current standards to say that Trump was employing extra-legal means.

He was trying to get the Senate to exercise discretion in the performance of a ministerial role. Damningly, that particular abuse is pretty routine.

He arranged for alternate slates of electors to be submitted to Congress, in addition to the certified ones. Precedent from the Nixon-Kennedy election is that's legal.

The attack on the Capitol certainly was extra legal, but THAT has never remotely been pinned on him, and actually defeated the strategy he was following.

[tylertusta]

And at the time it wasn't even clear that the VP's role was ministerial! Yet to hear Smith and others here talk about it, it was fraud.

[LawTalkingGuy]

Ministerial roles don’t involve discretion, dude.

The “alternate slates” of electors were fraudulent documents because they weren’t contingent.

[LawTalkingGuy]

It was only “unclear” because lawyers violated their oaths and made up an unsupported theory that was sovereign citizen levels of fucking stupid

[Brett Bellmore]

"Ministerial roles don’t involve discretion, dude."

I know, that's why I called it an abuse which was damningly routine.

[Frank Drackman]

The voices tell you that?

[LawTalkingGuy]

No. Just all the evidence in the public record, including, Trumps own public statement and actions.

[tylertusta]

The second impeachment. No, I don't think that either impeachment was justified.

My point was from a prosecution standpoint, if Trump was convicted them Smith wouldn't have had to bother with immunity at all. Conceivably immunity does not exist if someone is impeached and convicted in the Senate:

"...but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."

[Mr. Bumble]

If Trump had been convicted by the Senate none of these indictments and trials would be happening.

[tylertusta]

I don't know about that. Democrats are a vindictive bunch these days.

[Kazinski]

The steal the election allegation was going to be quite a heavy lift to get a conviction on.

In Bush v. Gore, Stevens dissent suggested using the Hawaiian electors scheme to appoint an alternate slate of electors to allow more time for the Florida Supreme court to resolve the Florida recount issues.

That's the strategy the Trump campaign followed, appointing alternate slate of electors, kick the investigations back to the states for further proceedings.

[Josh R]

It requires the prosecution to show he did so corruptly, knowing there was no legitimate basis for further proceedings. Trumps' best defense: I am a petulant child who honestly thinks falsehoods are turths. That's a high crime, deserving of impeachment, removak and dsiqualification.

Also in some states, the electors claimed to be offical ones rather than backups. Those cases are being tried in state courts.

[SRG2]

Absolute immunity for core official acts.

[WuzYoungOnceToo]

I was actually a little surprised. I didn't listen to all of the oral arguments, but I listened to most of Trump's lawyers' and they struck me as a bit weak, and most of the justices sounded like they were pretty skeptical of them.

[tylertusta]

If you get an opportunity to listen to the gov't's part of oral argument then I think you should.

While some Justices were skeptical of Trump's position, the conservatives were even more skeptical of the government's position.

And everybody there agreed that the DC Circuit panel opinion was wrong.

[WuzYoungOnceToo]

Yeah, clearly I didn't listen to enough of it to get an accurate sense of things.

[Bored Lawyer]

The opinion is not bad, but still leaves some areas murky. What exactly does “presumptively immune” mean? Usually it means, that you start out assuming that there is immunity, but the prosecution can rebut it and show that it is not immune.

So how exactly does that work here? They give some hint of that when discussing the talking-to-Pence allegations:

It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.

Seems pretty opaque to me. How exactly is the district court supposed to do that?

[hobie]

Excellent point. Now we have to go through the inevitable slog for the 'presumption test' steps. What a nightmare

[Kazinski]

Two months ago I suggested:
"Maybe it just comes down to mens rea, which is an essential element of almost any crime: if there is any reasonable case that the President is attempting to “faithfully execute the laws” then the courts should assume that was his motivation and the conduct was not criminal as a matter of law.

I think that’s what they are going to end up doing is coming up with some fettered immunity rule based on official acts, or at least kick it back to the appellate level to more fully develop the issue."

[SRG2]

So Nixon wasn't entirely wrong to note that if the president does it, it's not illegal.

[Brett Bellmore]

Really, nobody thought Nixon was entirely wrong about that. Just relevantly wrong.

[Frank Drackman]

Duh

[Mr. Bumble]

Paging not guilty, paging not guilty.

[not guilty]

I just got back from taking my kitty to the vet. I will comment after I have read the opinion. (Unlike some commenters, I pay attention to original source materials.)

[Mr. Bumble]

Hope your pussy is OK (cheap shot but seriously hope he/she is OK; lost mine a few years ago and still miss him).
As for parsing the original source material, I don't think it shows a path to a trial before the election.

[Zarniwoop]

"no path to trial before the election" is pretty clearly correct.

[not guilty]

SCOTUS tasked the District Court with making certain determinations in the first instance upon remand. Fortunately Judge Chutkan has guidance in distinguishing official and unofficial acts from the D.C. Circuit’s decision in Blassingame v. Trump, 87 F.4th 1 (D.C. Cir. 2023), a case arising in the context of a civil suit for damages.

The Court of Appeals there opined:

When a first-term President opts to seek a second term, his campaign to win re-election is not an official presidential act. The Office of the Presidency as an institution is agnostic about who will occupy it next. And campaigning to gain that office is not an official act of the office. So, when a sitting President running for a second term attends a private fundraiser for his re-election effort, hires (or fires) his campaign staff, cuts a political ad supporting his candidacy, or speaks at a campaign rally funded and organized by his re-election campaign committee, he is not carrying out the official duties of the presidency. He is acting as office-seeker, not office-holder—no less than are the persons running against him when they take precisely the same actions in their competing campaigns to attain precisely the same office.

87 F.4th at 4 [italics in original].

In light of Blassingame, the District Court need not tarry long with her determinations on remand. The trial cannot likely conclude by election day, but September 30 would be a fine date to begin selecting a jury.

[Bob from Ohio]

Hope dies last.

[Mr. Bumble]

...of course assuming Trump isn't serving time in NY.

[Kazinski]

At least some of the acts he was charged with in NY happened when he was President, signing the checks for instance. This may give him grounds for appeal to explore the issue.

[not guilty]

How is signing those checks with intent to defraud arguably an official act?

[tylertusta]

Maybe he signed them "President Donald Trump?"

[Kazinski]

I heard they are already filing a motion that some of the evidence the jury heard would have been exempt from production under today's ruling.

I'm sure there will be more to come.

[Kazinski]

How about giving a speech at the ellipse and exhorting citizens to go “peaceably” lobby Congress?

I predict at least one more trip up the appellate ladder to find out.

[tylertusta]

Once Chutkan receives the mandate, I expect her to very quickly set a trial date for sometime around the beginning of October.

Whether she can actually start on that date is another matter- one that she may not have any choice on.

[not guilty]

I expect that Judge Chutkan will act expeditiously. I would anticipate an order striking from the indictment allegations concerning the discussions that Donald Trump had with the Acting Attorney General, the Acting Deputy Attorney General and other DOJ functionaries, finding that prosecution of Trump for his attempts to pressure Mike Pence to take particular acts in connection with his (legislative) role at the electoral count certification proceeding does not pose any dangers of intrusion on the authority and functions of the Executive Branch, and finding that the balance of Trump's conduct alleged in the indictment did not involve official acts.

Monday, September 30, would be a fine day to begin selecting a jury.

[Bob from Ohio]

Hope dies last.

[tylertusta]

Judge Chutkan is going to find that it's going to be very difficult to start a trial on September 30th.

[not guilty]

Why would that be difficult?

Suppose Judge Chutkan upon remand issues an order that: (1) strikes some allegations of the indictment as impinging on the core constitutional powers of the president, (2) finds that the prosecution has rebutted the presumption of immunity as to Trump's attempts to pressure Mike Pence to take particular acts in connection with his (legislative) role at the electoral count certification proceeding, and (3) finds that the balance of Trump's conduct alleged in the indictment constitutes the unofficial acts of an office-seeker pursuant to Blassingame v. Trump, 87 F.4th 1 (D.C. Cir. 2023). Such a ruling would require Trump to stand trial.

Trump would no doubt seek to appeal that interlocutory ruling as a collateral order within the meaning of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). To come within this "narrow exception" in a criminal case, however, a trial court order must, at a minimum, meet three conditions. First, it "must conclusively determine the disputed question"; second, it must "resolve an important issue completely separate from the merits of the action"; third, it must "be effectively unreviewable on appeal from a final judgment." Flanagan v. United States, 465 U.S. 259, 265 (1984), quoting Coopers Lybrand v. Livesay, 437 U.S. 463, 468 (1978).

Today's ruling confirms that "As for a President’s unofficial acts, there is no immunity." (Slip op., p. 15.) As the Court opined at page 5:

The parties before us do not dispute that a former President can be subject to criminal prosecution for unofficial acts committed while in office. See Tr. of Oral Arg. 28. They also agree that some of the conduct described in the indictment includes actions taken by Trump in his unofficial capacity. See id., at 28–30, 36–37, 124.

IOW, today's order contemplates that Donald Trump is going to stand trial in the District of Columbia. An appellate ruling in his favor would not preclude a trial. An order for Trump to stand trial on some, but not all, claims in the indictment would be just as effectively reviewable on appeal from a final judgment of conviction as it would be on a pretrial, interlocutory review. The third criterion of the collateral order test is not met.

I surmise that Judge Chutkan will act quickly upon remand. Any purported appeal would have to be taken within 30 days of her order. That allows enough time prior to September 30 for Trump to file a notice of appeal, for the Special Counsel to move to dismiss the appeal for lack of a final judgment, and for the Court of Appeals to adjudicate that motion to dismiss.

[tylertusta]

The third criterion of the collateral order test is not met.

Except this is a case about immunity, which is about not having to from stand trial in the first place. Chutkan's resolution of an immunity question is effectively a final decision for the purposes of appellate jurisdiction.

With an interlocutory appeal almost certain, the only way that the trial starts before election day is if Smith gets a royal flush: A rapid, perfunctory denial from Chutkan, an even faster and contemptuous denial from CADC, and a SCOTUS that somehow doesn't want to stay the case over the summer.

Given CJ Roberts' anger at the CADC's handling of the case before, I doubt that SCOTUS will let them do it again.

[not guilty]

"Except this is a case about immunity, which is about not having to from stand trial in the first place. Chutkan’s resolution of an immunity question is effectively a final decision for the purposes of appellate jurisdiction."

Donald Trump's claim that he should not have to stand trial in the first place was what made Judge Chutkan's initial order denying Trump's claim of absolute immunity an immediately appealable collateral order. No Trump has played out that hand, and he has lost before SCOTUS insofar as he claims a right not to stand trial at all.

In light of today's ruling, Trump will have to stand trial inasmuch as the indictment charges unofficial acts/private conduct. Under controlling D.C. Circuit precedent, that includes the bulk of the indictment. Blassingame v. Trump, 87 F.4th 1 (D.C. Cir. 2023). Trump's amenability to trial is now the law of the case in a manner that it was not before.

Bleating "immunity" is no longer a talisman that Trump can display to the indictment like brandishing a cross at a vampire.

[not guilty]

Typo correction. In the second paragraph of my last comment, that should have been "Now Trump has played out that hand, and he has lost before SCOTUS insofar as he claims a right not to stand trial at all."

[tylertusta]

I think you'll find that "bleating immunity" will work quite well for Trump this summer.

SCOTUS did not decide all of Trump's immunity points- and in fact they only resolved one (in his favor). The record by the District Court was incomplete and the court just kicked it back down for Chutkan to do her job and find facts:

"The concerns we noted at the outset—the expedition of this case, the lack of factual analysis by the lower courts, and the absence of pertinent briefing by the parties—thus become more prominent. We accordingly remand to the District Court to determine in the first instance—with the benefit of briefing we lack—whether Trump’s conduct in this area qualifies as official or unofficial"

SCOTUS did not have enough information to rule on those points, but it certainly can when the case bounces back up before trial.

And it's going to bounce back up at least once more, depending on how stubborn Chutkan and the CADC is.

[not guilty]

It is uncontested that the indictment avers conduct taken by Trump in his unofficial capacity. To reiterate the language I quoted upthread from page 5 of the opinion of the Court:

The parties before us do not dispute that a former President can be subject to criminal prosecution for unofficial acts committed while in office. See Tr. of Oral Arg. 28. They also agree that some of the conduct described in the indictment includes actions taken by Trump in his unofficial capacity. See id., at 28–30, 36–37, 124.

That represents a rejection of Trump's claim that he is entitled not to stand trial at all. This matter accordingly is unlike lawsuits where an appellate ruling in the defendant's favor will foreclose a trial.

[tylertusta]

I don’t think it’s likely to happen.

In order for that gambit to work, Smith would have to surrender every fact in his indictment except the ones that Trump conceded. If Smith tries to bring in anything else that Trump didn’t already concede, and if Chutkan finds in favor of Smith, then Trump will appeal.

I expect Trump to fight the contours of his concessions to limit the damage, and when Chutkan rules against him there, it’s off to the appeals court.

Also, Smith knows that he’s going to need every piece of evidence and testimony he can introduce now that the Court has cut off his ankles with Fischer, which was arguably his strongest charge due to the riot being front and center.

I can see Smith proactively slimming down his prosecution with a superseding indictment to try to avoid the Fischer problem, but limiting his case to only the concessions is a starvation diet.

[not guilty]

tylertusta, you have not deigned to address how the third Coopers Lybrand characteristic of an appealable collateral order is met. Such an interlocutory order, to be immediately appealable, must “be effectively unreviewable on appeal from a final judgment.” That would apply to a case where an appellate ruling in the defendant's favor would preclude a trial being held at all.

That is not this case. Donald Trump is not immune from prosecution fur his unofficial acts/private conduct. He will stand trial therefor. In the event of conviction, he has the right to take a posttrial appeal to the Court of Appeals. A pretrial ruling that some acts are unofficial can be as effectively adjudicated in a posttrial appeal as it would be in a pretrial appeal. A pretrial ruling that some acts are official, but the government has nevertheless rebutted the presumption of immunity, can be as effectively adjudicated in a posttrial appeal as it would be in a pretrial appeal.

Such a pretrial ruling does not constitute an immediately appealable collateral order under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), and its progeny.

[tylertusta]

You’re operating on the premise that the Court resolved the immunity question, but it didn’t. The Court only resolved some of the issue. As the Court noted, the record is incomplete and they cannot say whether Smith has overcome a presumption of immunity. The Court then directed the district court to conduct such fact finding.

And it is those factual determinations made by Chutkan that Trump would appeal.

As I said, the only way that Trump cannot appeal is if both Smith and Chutkan accept every one of Trump’s arguments on the remaining disputed facts and whether they are private/public. That would prevent Trump from being able to appeal.

I don’t see Smith (whose inclination is to yell ‘damn the torpedoes, full speed ahead!’ on everything) and Chutkan (who never met an anti-Trump legal position she didn’t like) doing that. They don’t have it in them to surrender most of Smith’s case just for the small chance that they can get Trump in the courtroom by October. The temptation in a Trump case is just too much, and they’ve lost all perspective. And if they did, I don’t think Smith would have enough of a case left to survive to trial since Trump has other pending motions to dismiss.

No, what they’re likely to do is try to turn the evidentiary hearing into a substitute for the actual trial where Smith gets to air his evidence in public. And Smith hunkers down and prays for the appeal to go his way.

The idea that Trump will not get an interlocutory appeal from what comes out of the district court’s upcoming determinations is just fantasy. Trump has at least one more appeal before trial.

[Kazinski]

Orin Kerr on Twitter has a different view:
"If my quick skim of the Trump immunity case is correct, there's exactly zero chance Trump will be tried before the election. And, if Trump loses in 2024, it's not clear on which counts he would be tried at all. It would take years to figure that out. (Quick skim, at least.)"

[not guilty]

Thank you, Mr. Bumble. He apparently has a urinary tract infection, nothing major. He is resting comfortably in my lap and purring.

[Frank Drackman]

If he wasn’t a made up mythical being I’d have prayed to Hey-Zeuss, Allah, Con-fuse-us, Buddha, for your Feline. Franky-Frank is an Animal Lover (People? not so much) Have a Pomeranian, Ferret, and a big (not fat, muscular, haters) Tabby, and no, H8ER’s all Shelter Pets, (Yes, you can get Pom’s and Ferret’s at the Pound)
As a Wee lad I heard that fairy tale about how Animals can talk at Midnight Christmas Eve, (One of Baby Hey-Zeus’s Baby Miracles, no doubt) I’d try and stay up and see if whichever Dog/Cat we had at the time had anything to say.
Anyone else heard that old Myth? Seem to remember a Cartoon about it.
Frank

Thanks to AlGore’s Wikipedia
‘The Night the Animals Talked is an animated children’s Christmas television special, first shown on ABC television on December 9, 1970. It was repeated four times on ABC, in 1971, 1972, 1973 and 1977.[1] The American/Italian co-production was based on a legend that all of the animals could talk at midnight, on the night that Jesus was born”

[Mr. Bumble]

Nothing uncommon with male cats; glad to hear it's nothing serious.

[Commenter_XY]

NG, I will be very interested in your take.

[JesusHadBlondeHairBlueEyes]

I'm guessing it will be borderline hysterical.

[not guilty]

A few initial observations, being as objective as I can be while keeping in mind Justice Robert Jackson’s observation about his SCOTUS colleagues: “We are not final because we are infallible, but we are infallible only because we are final.” Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring in result).

Donald Trump is not entitled to dismissal of the indictment. “The President, charged with enforcing federal criminal laws, is not above them.” (Slip op., pp. 13-14.)

There are three categories of presidential conduct. For his exercise of core constitutional powers, presidential immunity must be absolute. (Id., at 6.) The reasons that justify the President’s absolute immunity from criminal prosecution for acts within the scope of his exclusive authority do not extend to conduct in areas where his authority is shared with Congress. (Id., at 9.)

The president is entitled to at least a presumptive immunity from criminal prosecution for acts within the outer perimeter of his official responsibility. “At a minimum, the President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the Executive Branch.” (Id., at 14.)

As for a President’s unofficial acts, there is no immunity. The separation of powers does not bar a prosecution predicated on the President’s unofficial acts (Id., at 15.)

In the instant case, Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials. (Id., at 21.)

The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct. (Id., at 23.) “It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.” (Id., at 24.)

The majority opined that the District Court on remand must determine in the first instance whether the fraudulent elector scheme is official or unofficial conduct. (Id., at 25-28.) Justice Bear It opined at footnote 2 of her concurrence that Trump’s alleged attempt to organize alternative slates of electors is private and therefore not entitled to protection.

The District Court must determine on remand Trump’s whether conduct in connection with the events of January 6 itself is official or unofficial. (Slip op., pp. 28-30.)

[Commenter_XY]

So NG, the 'path' for Pres Trump to defend against these charges is to persuade a jury (if it ever gets to trial) that he (Trump) was acting within his core constitutional powers (whether he actually was or not).

We need to work on the spelling of Justice Barrett's name. 😉

As always NG, thx for taking the time out to share your thoughts. Also glad your cat will be Ok.

[not guilty]

"So NG, the ‘path’ for Pres Trump to defend against these charges is to persuade a jury (if it ever gets to trial) that he (Trump) was acting within his core constitutional powers (whether he actually was or not)."

No. Judge Chutkan should determine in the first instance whether the indictment charges conduct within the core constitutional powers of the President. If so, that language should be stricken from the indictment, and the jury will not consider it. That would include Trump's discussions with the Acting Attorney General and Acting Deputy Attorney General. Not much other than that occurs to me off the top of my head as to the indictment alleging conduct within the core constitutional powers.

My cat and I thank you for the kind words.

[tylertusta]

Judge Chutkan should determine in the first instance whether the indictment charges conduct within the core constitutional powers of the President.

I believe the opinion says that any act that is found to be immune can't be presented to a jury, not just acts that are core constitutional powers.

[not guilty]

The Chief Justice opined for the Court at page 30:

Presidents therefore cannot be indicted based on conduct for which they are immune from prosecution. As we have explained, the indictment here alleges at least some such conduct. . . . On remand, the District Court must carefully analyze the indictment’s remaining allegations to determine whether they too involve conduct for which a President must be immune from prosecution. And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct.

At trial the prosecutor may not admit testimony or private records of the President or his advisers probing the official act itself. (Slip op. p. 32 fn. 3.

Those restrictions would apply to conduct for which immunity applies. Absolute immunity applies to conduct within the core constitutional powers of the President. Whether the presumptive immunity that attaches to other official acts applies is for the District Court to determine on remand. If so, the evidentiary restrictions attach as well.

Commenter XY posited argument to the jury by Trump that he was acting within his core constitutional powers (whether he actually was or not). I pointed out (perhaps not in sufficient detail) that that is not a jury question.

[Commenter_XY]

President Trump could assert his job was to ensure a clean election in an extraordinary national circumstance (global pandemic), NG. Perfectly legit core constitutional function of the presidency. I don't know what Pres Trumps lawyers will ultimately argue. But it seems to me that one argument is that once there is an official act by the POTUS, it falls under his core constitutional powers, and is therefore immune.

To me, the key is moving all those acts specified in the allegations against him into official acts within the 'core constitutional power' of being POTUS. If I understood correctly, a prosecutor can't use the official act as evidence to prosecute something else, either.

This case has a lot of twists and turns.

[tylertusta]

Thanks for the clarification.

[SRG2]

Sotomayor: " Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them."

[Bob from Ohio]

Delicious. She is so whiny!

[LawTalkingGuy]

You're a really bad person. All you care about is other people's misery.

[Commenter_XY]

Schadenfreude

I think that is what you were looking for.

Not that you ever experience this. Nah. 🙂

[Bob from Ohio]

If Soto had written the majority, LTG would have been kind and understanding towards Trump supporters, no doubt.

[LawTalkingGuy]

I mean yeah. I wouldn’t make fun of your misery. Just think it’s kind of sad and pathetic. Maybe point out your hypocrisy given your lack of empathy in other areas.

[Bob from Ohio]

I didn't say "my" misery.

[LawTalkingGuy]

Your is plural. After you learn ethics, learn English.

[Bob from Ohio]

But then you talk about my lack of empathy.

Your is both plural and singular in usage, it depends on context.

"Your car is nice, Bob." "Your cars are nice, Bob and Tom."

[LawTalkingGuy]

Your lack of empathy is well-documented. Do you need me to remind you of your greatest hits yet again?

And you’re correct it is contextual. Let’s go over the context, shall we?

“ LTG would have been kind and understanding towards Trump supporters, no doubt.”

“Trump supporters” is plural. You support Trump, therefore you are part of this group. When I used “your” it was plural based on the context you set up.

[LawTalkingGuy]

Not as much as Bob and other conservatives do on a regular basis. I mean that’s his default emotional state. That’s part of what makes him a bad person.

[Rev. Arthur L. Kirkland]

.You’re a really bad person. All you care about is other people’s misery.

That about all these bigoted clingers -- from the Volokh Conspirators and other Federalist Societeers to their uneducated, superstitious, disaffected right-wing fans -- have left these days. They have lost the culture war and failed at the marketplace of ideas. They hate modern America (especially young and educated Americans; our leading research and teaching institutions; our strongest, educated, diverse communities; and our preferences for reason, science, modernity, inclusiveness, education, progress, and the reality-based world).

Carry on, clingers. So far as your betters permit.

[Commenter_XY]

Arthur, you came up for air. Wondered what happened to you. I understand, after last Thursday evening.

[Rev. Arthur L. Kirkland]

Two shows in Chicago. Modesty (or at least a reluctance to provoke envy) disinclines me to provide details.

I figured this blog could produce a few days of multifaceted bigotry, faulty legal analysis, and disaffected delusion with or without me.

[Frank Drackman]

Hey Revolting, long time, no See, get caught sneaking Und-a-roos into your Cell again?

Frank

[hobie]

Be honest, what dissent in all history is not a whine

[Commenter_XY]

None...they are all whines. You're right about that.

[Bob from Ohio]

"what dissent in all history is not a whine"

IDK, sometimes they are just disagreements about the meaning of a clause or a few words.

[Martinned2]

Well, 240 years was a pretty good run...

[Bwaaah]

Care to share your definition of "the end"?

[Martinned2]

It turns out the President can shoot someone in the middle of 5th avenue after all. So from now on elections are optional, and so is complying with the bill of rights.

[Longtobefree]

But only if he is in uniform leading the army against insurrectionists.
If it is just him as a person shooting some random illegal, all bets are off.

[Martinned2]

Uniform? The commander in chief doesn't have to wear a uniform. I don't think any commander in chief since Washington has done that. And from now on the President's claim that he thought someone was an insurrectionist is entitled to absolute immunity, no questions asked.

[Mr. Bumble]

All full of piss and vinegar this morning aren't we.
Weekend high wear off?

[Noscitur a sociis]

It turns out the President can shoot someone in the middle of 5th avenue after all.

Literally the one example of a thing that a president is unambiguously not immune from, under the opinion.

[Martinned2]

The President, not Congress, is in charge of shooting at people. So shooting at people is at the core of his absolute immunity, as per the Supreme Court's new test.

[WuzYoungOnceToo]

It turns out the President can shoot someone in the middle of 5th avenue after all. So from now on elections are optional, and so is complying with the bill of rights.

You either have the worst addiction to hyperbole I've ever seen, or you're one of the dumbest SOBs on the planet...or both.

[ThePublius]

You're having a pretty jerky day.

[Bored Lawyer]

I see you did not bother reading the opinion. Your comment is not even a caricature of it.

[not guilty]

"It turns out the President can shoot someone in the middle of 5th avenue after all."

I'm not so sure that he can perform the act himself or hire a private hit man to do so. If he orders the military to do so, however, he would be absolutely immune under today's ruling.

A political candidate assassinating his political opponent is not as far fetched as it may seem. I represented a Defendant-Appellant who was convicted of premeditated murder in the shooting death of the Democratic nominee for re-election to the state senate. My client was the Republican nominee at the time of the shooting. State v. Looper, 118 S.W.3d 386 (Tenn.Crim.App. 2003).

The killing occurred at a time so near to election day that a replacement Democratic nominee could not be selected. The decedent was a longtime incumbent, and his widow was elected on write-in ballots.

[Mr. Bumble]

Was the murder the result of something political or for some other reason?

[not guilty]

The government's theory was that the defendant's motive was to eliminate his opposition so close to Election Day that he would be elected by default. He was arrested and charged with murder before Election Day, but still got more than 2,000 votes. There was no evidence of personal animosity between the accused and the decedent.

The decedent's family asked the prosecutor not to seek the death penalty. The State did seek life in prison without the possibility of parole, which the jury imposed pursuant to a bifurcated sentencing hearing. The jury found as the sole aggravating factor that "The murder was committed against a national, state, or local popularly elected official, due to or because of the official's lawful duties or status, and the defendant knew that the victim was such an official[.]"

I argued on appeal that the evidence was insufficient for a rational trier of fact to conclude that Senator Burks was murdered "due to or because of the official's lawful duties or status." I asserted that the evidence at trial taken in the light most favorable to the State, showed at most that Mr. Burks was killed not because of his official duties or status, but instead because he was a candidate for office.

The Court of Criminal Appeals rejected my argument:

The fact is that the victim was both the incumbent state senator for the district and a candidate for reelection, and his death would create a vacancy for this office. The record fully supports the determination of the jury that the defendant killed the victim to create a vacancy in the position for which the defendant was a candidate.

118 S.W.3d 386, 438 (Tenn.Crim.App. 2003).

I have said before on these threads that I have represented clients more vile that Donald Trump. That case is one that I had in mind.

[Mr. Bumble]

Thanks. Who knew a state senate seat was so desirable as to be worthy of murder.

[Bwaaah]

Fascinating story. And evidence that you don't suffer from TDS:

I have represented clients more vile that Donald Trump.

[WuzYoungOnceToo]

I’m not so sure that he can perform the act himself or hire a private hit man to do so. If he orders the military to do so, however, he would be absolutely immune under today’s ruling.

Ordering the military to murder someone on U.S. soil is a core Presidential power?

[not guilty]

Per page 6 of the opinion of the Court, the President's core constitutional powers "include, for instance, commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and appointing public ministers and consuls, the Justices of this Court, and Officers of the United States." [Emphasis added.]

Under today's decision President Biden could order the armed forces to assassinate Clarence Thomas and Samuel Alito and remain immune from criminal prosecution. Which, come to think of it, . . .

[WuzYoungOnceToo]

commanding the Armed Forces of the United States

That you think that your interpretation of that to mean "including assassination of U.S. citizens on U.S. soil" is even remotely rational is reason to not take you seriously (as if we didn't already have enough reasons).

[Krayt]

Assassination of a politcal rival is not a legitimate exercise of presidential powers.

[not guilty]

"Assassination of a politcal [sic] rival is not a legitimate exercise of presidential powers."

I seriously doubt that legitimacy is what six members of SCOTUS are concerned about. The immunity doctrine that Chief Justice crafted is cut from whole cloth -- just like the qualified immunity from suit under 42 U.S.C. § 1983 initially recognized in 1967.

[Martinned2]

"Legitimate" is exactly what the Supreme Court has told is no longer matters. Motive is irrelevant. Bribery is irrelevant. All that matters is whether something is a Presidential power (broadly defined) or not.

[Voize]

Roberts listed commanding the Armed Forces as a core constitutional power of the President, entrusted to him alone and shared with no other branch of the government, and that he has absolute criminal immunity when exercising his core powers. There was no qualifier that the commands have to be legitimate to enjoy immunity.
Anyone who obeyed that order might face civil and criminal liability, and at least face a trial, but according to this opinion not the President for giving it.

[Commenter_XY]

I think some uber-lib heads are exploding today, much like that scene in that movie The Kings Man with Samuel L Jackson where all the heads explode. LOL.

Or, they are doing the screaming lady thing again.

[SRG2]

I think anyone with any tendency towards anti-authoritarianism will bemoan today's decision. I also think that every pro-Trump supporter is thinking, "great, this is a big win for Trump", without thinking of the consequences when other presidents try the same shit.

[Don Nico]

" consequences when other presidents try the same shit"
That it does. Today's ruling clears Mr Obama of any liability for the extra-judicial murder of a US citizen.

[Bored Lawyer]

Yes, it does. At least for those abroad who were arguably involved in terrorism. And I would agree with such a ruling, even though I despise Obama.

[Jason Cavanaugh]

You agree with extra-judicial murder? No Due Process necessary?

That's an interesting take...

[Bored Lawyer]

So any president who prosecutes a war is a criminal?

[Jason Cavanaugh]

I thought it was clear that I was referring to US citizens, as Don Nico did.

I don't agree that once you leave US territory, that Due Process is no longer mandatory and you can be murdered at the say-so of the President/DoD.

[Commenter_XY]

If a POTUS is acting within their core constitutional power, then yeah, the POTUS can order someone's death and that is it. In that case, it was a US citizen who chose terror. Obama gave the green light to wax his ass. I have no problem with his decision.

The kid was an innocent bystander who was in the wrong place at the wrong time.

[Kenneth Almquist]

According to the opinion, “In dividing official from unofficial conduct, courts may not inquire into the President’s motives.” So in terms of immunity, it doesn’t matter whether the President orders an assassination of an individual because the individual is involved in terrorism, or because the individual is a Supreme Court justice that the President would like to replace. In my view, the former is arguably justified while the latter is clearly wrong, but the Court declines to distinguish between these two cases.

[WuzYoungOnceToo]

I find it a bit of a stretch to conclude that any reasonable court would interpret using military forces to commit murder that is not in furtherance of any Presidential duty as "official conduct", just because he used the military that he's authorized to command to do so. It's like saying that a public official using his state-provided vehicle to take a joy ride to Vegas was engaging in "official conduct" simply because he was authorized to drive said vehicle.

[Brett Bellmore]

I tend to agree, but the problem is that we already have Presidents ordering hits on citizens outside the US, and also outside any declared war or war zone. Just on their say-so, basically.

The step from that to putting out a military contract on a citizen on US territory is pretty short. I suppose it will first be breached in a claimed "terrorist" plot, but probably won't stay so restricted.

[WuzYoungOnceToo]

The step from that to putting out a military contract on a citizen on US territory is pretty short.

I'd call that a huge leap, not a short step...for multiple reasons. I also didn't like the drone strike on Anwar Al-Aulaqi (not because he didn't have it coming, but for the same reasons you don't like it), but comparing that with a political assassination on U.S. soil is a big stretch.

[Frank Drackman]

My Only Friend, the End,
Jimmy M's Death Day coming up, will this be the year he comes back?

Frank "Mother? I have something to ask you"

[Brett Bellmore]

I think it’s pretty significant that the Court declared that firing cabinet members was within the sphere of absolute immunity. Pity they hadn’t ruled that prior to Trump taking office, that stupid investigation over him firing Comey could have been avoided.

Also significant, though, is that the Court refers to Trump's "co-conspirators", not alleged co-conspirators. Maybe a bit of a "tell" as to how the Court is going to treat cases coming back to it?

[NOVA Lawyer]

Pity they hadn’t ruled that prior to Trump taking office, that stupid investigation over him firing Comey could have been avoided.

What stupid investigation? The Senate Intelligence Committee could have still made the very same inquiries it did because this decision doesn't say a President cannot be impeached for official actions.

And the Mueller investigation was about Russian interference in the 2016 election.

Whatever you think would have been avoided wouldn't have been.

[Brett Bellmore]

Ha, ha. Rewriting the origin of the Mueller investigation already?

Mueller investigating Trump for obstruction of justice, Washington Post reports

" Comey testified before the Senate intelligence committee last week and confirmed that he gave Mueller the memos he wrote detailing his interactions with Trump ahead of his firing. In one memo, Comey said Trump tried to direct him to drop an investigation into former national security adviser Michael Flynn.

Comey said he believed Mueller would look into Trump for obstruction of justice."

The Court's ruling today neatly removes the basis for the Mueller investigation, by confirming that Presidents have plenary authority to fire, and to dictate prosecution decisions by the DOJ. So that firing Comey or ordering that Flynn by left alone, couldn't be predicates for an investigation.

[JesusHadBlondeHairBlueEyes]

Meuller's investigation was about blocking any transparency to all the illegal actions taken by the Feds during Trumps campaign, as well as giving then cover to continue.

[Noscitur a sociis]

The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Corney in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:

(i) any links and/or coordination bet ween the Russian government andindividuals associated with the campaign of President Donald Trump; and
(ii) any matters that arose or may arise directly from the investigation; and
(iii) any other matters within the scope of 28 C.F.R. § 600.4(a).

https://www.justice.gov/archives/opa/press-release/file/967231/dl

Other than that, great comment!

[NOVA Lawyer]

Rewriting the origin of the Mueller investigation already?

You do understand the Mueller investigation started with: "Carter Page, who years later would become an unpaid adviser to Trump’s campaign, shares information and research with a Russian national whom the FBI later accuses of being a Kremlin spy."

Or maybe origins doesn't mean what you think it means.

[Zarniwoop]

Meanwhile, I just finished reading NetChoice.

Another day, another bench slap for the 5th Circuit.

[Stephen Lathrop]

Supreme Court Rules: When the president does it, it's not a crime.

[Don Nico]

That's your journalistic ethnics on display

[Bored Lawyer]

SL gives another comment showing he has the understanding of a two year old.

[Drewski]

Huh. The Trump decision is pretty much what everyone predicted as likely. It's also the easiest answer, essentially extending presidential immunity to encompass criminal acts. The real question is why it took so long to do what law bloggers did in hours.

[tylertusta]

Today's opinion should not have surprised anyone.

But it did.

[Stephen Lathrop]

Question for the lawyers in today's brave new world:

If a president conspires with others in his administration to levy war against the U.S., and sets a plot to commit violence in motion, does that get presumptive immunity?

[WuzYoungOnceToo]

Oh, FFS.

[Riva]

No, that may get you a book contract for a new fiction thriller. Or probably not, given that no one outside of MSNBCs small core audience would be stupid enough to believe it.

[Drewski]

I think so, although that would meet the opinion's criteria to overcome such a presumption.

[Stephen Lathrop]

How so? Maybe the president conspires with his vice president to do it. Isn't that always core presidential conduct?

Seems to me there are a lot of commenters here who are a bit slow to wake up to the new reality—an absolute, unpunishable power for POTUS to commit crimes during any activity he cares to color as official duty. You just saw SCOTUS say that to enable bold action by a president is more important than the notion that no man is above the law—and the bolder the better. But you comment as if some realistic legal accountability remains. Not while this Court sits.

[Commenter_XY]

This is easy. In Lathropistan, the world you occupy, the answer is yes.

[Stephen Lathrop]

Have you read the opinions? The answer seems to be yes in your world, too.

If you think otherwise, try showing otherwise.

[Rev. Arthur L. Kirkland]

THE VOLOKH CONSPIRACY
RACIAL SLUR SCOREBOARD

This white, male, conservative blog
with a thin, misappropriated academic
veneer — dedicated to creating and
preserving safe spaces for America’s
vestigial right-wing bigots -- has
operated for no more than

SIX (6)

days without publishing at least
one explicit racial slur; it has
published racial slurs on at least
THIRTY-ONE (31)
occasions (so far) during 2024
(that’s at least 31 exchanges
that have included a racial slur,
not just 31 racial slurs; many
Volokh Conspiracy discussions
feature multiple racial slurs.)

This blog is outrunning its
remarkable pace of 2023,
when the Volokh Conspiracy
published racial slurs in at least

FORTY-FOUR (44)

different discussions. The
current pace would make
the Volokh Conspiracy the
Babe Ruth of Bigotry in 2024.

These numbers likely miss
some of the racial slurs this
blog regularly publishes; it
would be unreasonable to expect
anyone to catch all of them.
This assessment does not address
the broader, everyday stream of
antisemitic, gay-bashing, misogynistic,
immigrant-hating, Palestinian-hating,
transphobic, Islamophobic, racist,
and other bigoted content published
at this faux libertarian blog, which
is presented from the disaffected,
receding right-wing fringe of
American legal thought by members
of the Federalist Society
for Law and Public Policy Studies.

Amid this blog’s stale, ugly right-wing thinking, here is something worthwhile.

>This one is good, even inspiring, too.

[Rev. Arthur L. Kirkland]

Today's Rolling GemStones, in the wake of two magnificent shows in Chicago (home of Darryl Jones, Barack Obama, and Chicago blues):

First, Mick tossed a few lines from this one into Midnight Rambler.

Next, the best bar band anyone has heard, sanctifying the Checkerboard Lounge.

It is unfortunate this downscale site limits links.

[Frank Drackman]

The "Town with the Big Shoulders" also home to John Wayne Gacy, Richard Speck, Rod Blagojevich(It's required that every Illinois Governor look like a Soprano's character)

[Rev. Arthur L. Kirkland]

A guy who claims to be a doctor, yet can't avoid illiteracy in written discussion?

[MoreCurious]

I'm willing to bet that the number of followers of this blog who believe Drackman is a doctor is exactly zero. No one who is as illiterate, vulgar, inarticulate, and pathetic as he reveals himself to be with every comment ever graduated from high school much less medical school.

[Rev. Arthur L. Kirkland]

I waver on whether Drackman is the sock puppet of one of the Conspirators, writing the things that guy wants to get off his chest but doesn't have the guts to associate with his name or perhaps institution.

I am confident that a number of the gullible right-wingers who frequent this blog are convinced Drackman is a physician.

[Brett Bellmore]

Oh, come on. I'm sure you're not stupid enough to believe that isn't an act he's putting on.

[BrotherMovesOn]

Great tune. Since it wasn't on Tattoo You, someone made up their own cover art, which I guess is even more common nowadays.

[dwb68]

Unfortunately, I see a lot of Dems going through the stages of grief. Anger, denial, bargaining. No, Biden is not winning the election. His handles and Jill Biden are in denial. Some in the party are bargaining. If I were a Dem voter, I'd be angry, but that wont happen until Nov when the full realization hits.

No, shouting out "The Supreme Court let Trump off, YOU MUST VOTE DEM" into the Threads thought bubble will not convince people to vote for a senile old man who cant even remember his debate lines.

They need to replace Biden, soon, or its game over.

[tylertusta]

I think they’ll move to Plan C (or is it D? E? I can’t keep track anymore).

We'll see them push for Merchan to sentence Trump to prison time and toss him in jail immediately.

[Mr. Bumble]

Right now that seems to be their only option; Casey Jones you better watch your speed...

[Stephen Lathrop]

Using the new SCOTUS totalitarian charter in place of American constitutionalism, there is a lot better prospect that Trump will throw Merchan in jail than vice versa.

[Commenter_XY]

Your angst and wailing are just not satisfying enough. Cry harder, lathrop. More tears, please.

[Stephen Lathrop]

You are not even trying to defend the legal abomination you seem to want inflicted on the nation. Can you tell me what makes you behave like that?

[WuzYoungOnceToo]

Can you tell me what makes you behave like that?

Can you tell us what makes you behave like a pompous raving lunatic?

[dwb68]

ahh, yes, the old "forcing legislators to do their job legislating is totalitarianism" trick. The Democrats fall for it every time.

[Frank Drackman]

Good, that's where he needs to be, preferably with a large Hell's Angel cell mate (Hey, your side jokes about how "45" is gonna get Boo-Fooed at Rykers, I'm just doing the same)

Frank

[Frank Drackman]

Will that prevent people from voting for him?, I mean if he doesn't catch Jeffy Epstein's Disease at Rikers.

Frank

[Moderation4ever]

The question is how long it takes the Democrats to get to acceptance and to tell Joe Biden he cannot run as the party nominee. The sooner they do that the better their chance of winning the Presidency. I am not a fan of a contested convention, too late.

[Stephen Lathrop]

A process question for the lawyers:

If a prosecutor is struggling against a presumption of presidential immunity, and needs testimony from the president’s chief of staff to overcome the presumption, will the chief of staff be able to quash the subpoena with an assertion that he cannot respond without compromising official business conducted between the president and himself?

More generally, how broadly among administration staffers will presumption of immunity spread impunity from any requirement to testify?

Remember that the new rule is apparently that there can be no enquiry into a president's state of mind to establish he was actually not engaged in official conduct.

[Riva]

Hmm? So you think Biden's Chief of Staff will try to avoid the flurry of subpoenas after the new Trump adminstration takes power. Probably, but don't expect it to work, if that's what you're hoping for.

[Darth Buckeye]

Reading Sotomayor's dissent is comical. She talks about the protections offered a President in criminal cases...

"Justice Department policy requires scrupulous and impartial prosecution. . . ."
"“[A] criminal prosecution cannot be commenced absent careful consideration by a grand jury at the request of a prosecutor; the same check is not present with respect to the commencement of civil suits in which advocates are subject to no realistic accountability”)."
"If the case nonetheless makes it to trial, the Government will bear the burden of proving every element of the alleged crime beyond a reasonable doubt to a unanimous jury of the former President’s fellow citizens. "

Is she paying attention to the NY trials? An unscrupulous prosecutor could indict a ham sandwich. And that same prosecutor could bring the case in a jurisdiction where the defendant is highly unpopular. How about we try President Obama in some rural jurisdiction in an all red county in South Carolina or Tennessee.

[tylertusta]

The parallels between the dissent in Trump and the dissent in Fitzgerald are remarkable.

Almost as if the cases are related to each other...

[Riva]

Seal Team Six should hire a defamation attorney.

[Bob from Ohio]

It shows a low opinion of US soldiers. No seal team would obey such an order of course, and would be fully justified under the UCMJ.

[Paladin_44]

Agree, no Team would. However, recall Eddie Gallagher to active duty and issue him a presidential order? Not so sure...

[Rev. Arthur L. Kirkland]

There were many military veterans among the un-American insurrectionists at the Capitol. Why would any sensible person trust that type of worthless, unpatriotic, deplorable asshole in this context?

[Frank Drackman]

Veteran's are regular Amuricans, Revolting, you get the occasional Presidential Assassin (Lee Harvey O) Cannibal (Jeffy Dahmer) and someone really Revolting, like Senator Lindsay Buckingham-Nicks Graham-nesty, but the only reason you're free to Mind Meld with Mick Jagger's Penis is the sacrifice of your "Bettors"

Frank

[Joe_dallas]

I have long stated that sotomayor doesnt belong on the SC due to behavior in Ricci and dissent in Shuette v Bamn. Combine this with her gross delusional mischaracterization of the opinion in this case, and her gross understanding of facts in the covid cases, shows her deep partisanship.

I have given Jackson the benefit of the doubt. However her dissent in this case and her total lack of understanding of tax and constitutional law as demonstrated in her Moore concurrence should leave every objective observer with the question as to why she ever made it to an appeals court, much less the SC.

Note that kavanaugh screwed up the history of pass through entity taxation. Note also that the US India tax treaty overrides the statute, so one of the questions is how the court overlooked the treaty.

[Rev. Arthur L. Kirkland]

You prefer superstition-addled, partisan grifters who conceal lavish gifts provided by people who appear before them and promote a broader judicial agenda?

That's the position of the type of un-American wingnut who can't be replaced fast enough by better Americans.

[Stephen Lathrop]

Buckeye — Tell me what crime you think Obama committed for which a grand jury in South Carolina or Tennessee would hand down an indictment.

[Joe_dallas]

Lathrop -
the 34 counts required a second crime to become a felony.
there was no second crime.

[not guilty]

"the 34 counts required a second crime to become a felony."

Unclear on the concept of an inchoate offense? The 34 counts each required intent to defraud which included intent to commit or conceal another crime. Actual commission or concealment was not required.

[Bob from Ohio]

Jack Smith continues to bring a wrecking ball to US law.

Two big losses this week. Plus Arthur Anderson, plus the McConnell case.

[tylertusta]

And it ain't over yet. The FL case might generate some precedent too!

[Bob from Ohio]

Maybe hyper aggressive stretching of laws is a bad idea!

[tylertusta]

You'd think that the DOJ will take the hint.

But not this DOJ. It's full speed ahead.

[hobie]

So SCOTUS specifically shot down pressuring Mike Pence and having the DOJ do shenanigans. It is iffy on inciting the 'peaceful protest'. But they definitely did not shoot down the fake elector schemes. Specifically saying:

"Unlike Trump’s alleged interactions with the Justice Department, this alleged conduct cannot be neatly categorized as falling within
a particular Presidential function. "

And so now we are basically going to have a trial within a trial about these fake electors. And if the government can make their case, I think SCOTUS will back it...even Harlan. The fake electors was a bridge too far...and illegal as hell

[Bob from Ohio]

"I think SCOTUS will back it"

Not before the election. In fact the orals before SCOTUS won't happen before the election.

If Trump wins, there will never be an opinion.

[tylertusta]

There's a small chance (a teensy tiny one) that Trump allows the prosecution to continue as he thinks that he can beat Smith.

[Rev. Arthur L. Kirkland]

There may be a chance better Americans resurrect the prosecutions of Trump, if necessary, down the road. How many Catholic priests figured they had beaten the rap, then experienced accountability imposed by legislation? Would this be the first time Trump thought a limitation permit had lapsed before being held to account by a jury?

[Frank Drackman]

I know a certain former Penn State Foo-Bawl Coach who certainly didn't beat the rap.

[Rev. Arthur L. Kirkland]

Sounds like lifelong Republican and well-connected backwater conservative Jerry Sandusky, a criminal who was protected for decades by lifelong Republican and well-connected backwater conservative phony Joe Paterno at some cow-town school in the part of the Pennsylvania that might as well be in West Virginia, Kentucky, South Carolina, Idaho, or Mississippi.

[Frank Drackman]

Wow, sounds like you know him well, Jerry, I mean Revolting

[Rev. Arthur L. Kirkland]

I have known many lying, deplorable, backwater Republicans and conservatives. Most of them gullible enough to be superstitious, many of them bigots to one degree or another (and in one manner or another), some of them criminals. In some half-educated, shambling parts of the country it is hard to avoid those kinds of obsolete right-wing losers.

[Noscitur a sociis]

There may be a chance better Americans resurrect the prosecutions of Trump, if necessary, down the road.

How? Once a criminal statute of limitations runs, that's it, and everything will expire before the 2028 winner takes office.

How many Catholic priests figured they had beaten the rap, then experienced accountability imposed by legislation?

Criminal accountability? I'd think it's zero, since criminal statutes of limitation can't be revived retroactively. Is there a particular case you're thinking of?

[JesusHadBlondeHairBlueEyes]

Having an alternative slate of electors isn't a crime.

It's called being prepared.

Good grief.

[SRG2]

No. But issuing fake certificates is, and supporting such fakery - by purporting to be an elector when you're not - is hence also criminal.

[Frank Drackman]

Yeah right, wait until Comatose Joe and his Caregivers try the same shit in January 2025

[Rev. Arthur L. Kirkland]

Forgery is a crime.

Even a Federalist Society- or Volokh Conspiracy-level clinger should be able to understand that point.

[Bored Lawyer]

"specifically shot down pressuring Mike Pence "

Nope, read it again. That was remanded. The district court can still find that there is no immunity for that one.

(The DOJ they definitely ruled was immune.)

[hobie]

Nonsense. They made it pretty plain that they're not gonna buy that argument regardless of remand

"Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct."

[Noscitur a sociis]

You may want to try reading the very next paragraph:

The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. Ibid. Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of "presiding over the Senate” is “not an ‘executive branch 'function.” Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Underthe Twenty-Fifth Amendment to the Constitution 2 (Aug.28, 1974). With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President's communications with the Vice President concerning the certification proceeding does not pose “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457 U. S., at 754; see supra, at 14.

[hobie]

Yes, I saw that. And it is a good point. And I'm surprised Harlan would concur with it. But the two paragraphs give a lot of leeway in either direction, and there lies the wiggle room. And I don't expect the dark forces of the Heritage to mull the choices

[Stephen Lathrop]

Sure they can. If they can get any evidence without need of subpoena power.

[not guilty]

"So SCOTUS specifically shot down pressuring Mike Pence and having the DOJ do shenanigans. It is iffy on inciting the ‘peaceful protest’. But they definitely did not shoot down the fake elector schemes."

The Court ruled that the discussions with the Department of Justice give rise to absolute immunity. Pressuring Mike Pence is presumptively immune, with the prosecution having the burden on remand to persuade the District Court that a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would not pose any dangers of intrusion on the authority and functions of the Executive Branch.

[Brett Bellmore]

It somehow wasn't in the Kennedy-Nixon election, though. So the fact that it's not a Presidential function doesn't mean it's illegal. It just means he gets tried on it.

[Joe_dallas]

Supreme court rules on president immunity

Roberts' opinion holds that the former president has immunity for official acts with his constitutional authority. Further that the president does not have immunity for unofficial acts.
The sends the case back to the lower courts to determine if his actions were official or unofficial.

An entirely reasonable opinion.

Sotomayor and Jackson showing their partisanship - misconstrue the opinion in the dissent

[ThePublius]

I haven't read the decision or the dissent. Can you please elaborate on that last point?

[Joe_dallas]

Granted I havent read their dissents in full, though both dissents characterize Roberts opinion as granting immunity for all acts both official and unofficial, criminal and non criminal. They may have corrected themselves later in the dissents, though the opening paragraphs of both imply immunity for all acts.

Roberts opinion should not have been controversial – ie immunity limited to official acts and a remand back to the lower courts for fact finding to determine which acts were official and unofficial.

[ThePublius]

Thanks.

[Joe_dallas]

Sotomayor's dissent
"Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitutionand system of Government, that no man is above the law.Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President, ante, at 3, 13, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent."

One of the most dishonest openings in a dissent ever. That doesnt not even come close to what the Roberts opinion held.

[Joe_dallas]

Jackson out did Sotomayor's dishonesty in her dissent. Falsely claiming Robert's opinion granted immunity for criminal prosecution.

[SRG2]

Where in the Constitution does it state that a president has immunity?

[Keldonric]

I was thinking the same thing about judicial immunity, prosecutorial immunity, and forms of qualified immunity afforded to other state actors. From what I was able to read, they are doctrinal and not constitutional. Judges may have immunity for even allegedly malicious and corrupt acts performed in the judicial sphere. IANAL. This is one of the links I read. https://law.justia.com/constitution/us/article-3/10-judicial-immunity-from-suit.html#:~:text=judges%20.%20.%20.%20are%20not%20liable,been%20done%20maliciously%20or%20corruptly.

[Voize]

Those other immunities extend to civil liability, not criminal.

[Brett Bellmore]

Judges have immunity because judges got to decide whether judges had immunity, essentially.

[Stephen Lathrop]

Joe_dallas — You got that wrong. Roberts did not rule a former president does not have immunity for unofficial acts. He ruled there is a presumption of immunity for all presidential acts, until a lower court can prove some of them unofficial, with both hands tied in heavy mittens to obstruct ability to subpoena evidence. And then SCOTUS gets to decide if it likes what happened. See, with the new rules, everything is about procedure; SCOTUS does not intend to be bound by evidence from below.

[Joe_dallas]

Lathrop - you knowledge of history research is bad - so bad that you cant even understand the history of an opinion issued this morning.

Granted, you didnt misconstrue the holding as bad as Jackson or sotomayor, yet you did mangle the holding egregiously.
Read the opinion again - it did not hold what you just stated

[Noscitur a sociis]

You got that wrong. Roberts did not rule a former president does not have immunity for unofficial acts.

Incorrect:

As for a President’s unofficial acts, there is no immunity.

He ruled there is a presumption of immunity for all presidential acts, until a lower court can prove some of them unofficial

Also incorrect: they did not suggest that there is any presumption of officialness, and it's the job of the prosecution, not the court, to prove things.

Other than that, great point!

[Michael P]

Will there be a debate between Donald Trump and Joe Biden in September?

Is there any downside for either Trump or RFK Jr if they have a "side" debate between now and then, perhaps hosted by someone like Joe Rogan, regardless of whether Biden joins them or not?

[Frank Drackman]

What are the odds Comatose Joe is alive in September? Come to think of it was he alive last week? They can do amazing things with Corpses now a days.

Frank

[Intelligent Mr Toad]

I still think that both Trump and Biden will die of natural causes, and Trump is more likely to die sooner than Biden. Biden is three and a half years older, but Trump is clinically obese (according to the numbers and the charts), and that counts for more than three and a half years.

[Mr. Bumble]

No telling when Joe Black will come calling but by appearances Joe looks closer to the end than Donald.

[Frank Drackman]

The definition of Obese
1: Is Bullshit as it's based on BMI which has nothing at all to do with Body Fat, it's merely your weight in Kilograms divided by your height in Meter's squared. Purely by coincidence, many peoples BMI is close to their % Body Fat.
2: Once you get to be an Old Fuck, fatties actually have a better survival rate, admittedly the numbers are skewed by the terminally ill (Like Comatose Joe, there's a difference between "Slim" (like me, 5'8" 140, just like in High Screw-el) and "Frail" (Comatose Joe)
3: So let me guess? you couldn't pass "Calculus for Idiots" so do whatever it is that requires you to tell everyone you're "Intelligent"

Frank

[Brett Bellmore]

An awful lot depends on the actual details of their health, which we're not privy to. If Trump is just heavy, without any resulting pathology, it really means very little.

Anyway, Trump is estimated to have a BMI of just a shade over 30. Remember, he's quite tall. Sure, he didn't come by that by lifting weights, but as far as being clinically obese, Trump barely makes the cut, he's within a couple pounds of just being listed as "overweight".

[Frank Drackman]

Funny how when they announced his BMI in 2016 we never got Hillary Rodman's numbers, she's got the Body Habitus of a Munchkin

[Commenter_XY]

No, there will not be a debate in September btwn POTUS Biden and Pres Trump.

[Brett Bellmore]

Does Trump really want to given former Biden voters any other option besides voting for him or staying home? It might cost him a close state or two.

[Stephen Lathrop]

Suggestion for Jack Smith. Stop wasting your time. You are getting nothing past this Supreme Court that would inconvenience Trump in the slightest. The fix is in. Resign.

[WuzYoungOnceToo]

Get professional help. Seriously...I mean that.

[Frank Drackman]

A year from now, if by some miracle Comatose Joe is still producing CO2 (that "Open Mouthed" expression Joe had during the debate? it's a tell for someone retaining CO2, not a good thing, typically seen in the final stages of terminal conditions)
you'll be thanking whatever mythical Surpreme Being you believe in that Comatose has Immunity for all the bullshit a competent Federal Prosecutor could charge him with

Frank

[Bored Lawyer]

One thing to point out is today's SCOTUS immunity decision has ZERO impact on Trump's acts before and after office. The documents case springs to mind. There is no immunity for that, Period.

[Stephen Lathrop]

Let’s see about that. My guess is that Smith has lost any ability to subpoena any of Trump’s closest associates during his presidency. Good luck proving Trump knew he had lost the election without that evidence. Maybe a lawyer can help me out with this question. If Cassidy Hutchinson wanted to testify to what she heard Trump say on various occasions, does Trump’s presumption of immunity enable him to get a court order to shut her up? Of course I get that what Hutchinson heard Trump say at the pre-riot rally is totally precluded by Trump's expressive super-power, which a president always enjoys.

[tylertusta]

I think you confused the DC case and the FL documents case. Smith has tried to craft his FL indictment to avoid Trump's time as President.

For example, the indictment isn't for Trump taking documents out of the White House, but rather for retaining them in FL after he was no longer President.

[SRG2]

Whereupon Cannon decides to hold a hearing to inquire whether this case has any effect on the Florida case.

[tylertusta]

Maybe. I think it would depend on what Smith intends to use at trial.

[SRG2]

More likely, IMO, it depends on whether Cannon thinks she still needs to slow-walk the case.

[tylertusta]

I think it's ironic how Cannon is intensely criticized by the peanut gallery, so she takes her time and builds a strong record of her decisions.

Only for her to be criticized for taking too long.

[SRG2]

She has evidently taken far longer than necessary, e.g.,, by holding unusual/irregular hearings and continued to delay hearing days and postpone trial dates.

Fuck off, basically.

[tylertusta]

"Evidently takes too long:" She handles the motions with due care and deliberation. Gives parties time to respond and then reply.

"Unusual/Irregular hearings:" Which ones?

"Delay hearing days:" Which ones?

"Delayed trial start date:" Yes. Obviously. This is a complex case, and she can’t proceed to trial without resolving these motions ahead of time. She's also doing Chutkan a solid here by not tying up the calendar should Chutkan throw caution into the wind.

How many novel questions of law is she handling here? And just how many of those novel questions has she come down on the government’s side?

[Mr. Bumble]

You know, time is of the essence an election is coming up.

[tylertusta]

I wouldn't call it zero, but it's probably minimal.

Smith won't be able to use immune acts to support his case, but he might not need them.

[Longtobefree]

Exactly who gets the immunity for the fake cover sheets, and the 'pruning' of the actual documents?

[Michael P]

"You get immunity! You get immunity! You get immunity! Everybody gets immunity! Except you, Orange Man -- nobody is above the law."

[WuzYoungOnceToo]

I think at least as important (or at least impactful) as what the debate revealed about Biden's cognitive state to those who were either not paying attention for the past 4 years or were such brain-dead partisans that they just rabidly rejected what was painfully obvious...is what it revealed about how thoroughly dishonest the Dems and their media shills who spent those 4 years gaslighting them about it are.

[Commenter_XY]

Those people are currently bathing in De' Nile.

[Intelligent Mr Toad]

ON MY MIND: Word of the day which should not be allowed to drop out of usage: flagitious

[Stephen Lathrop]

I guess Trump now enjoys another power no president could ever previously dream of. In service of his presumed immunity, he can bribe any potential witness to prevent testimony against him down the road. Unobstructed obstruction of justice power. Another new thing for the American presidency.

[Joe_dallas]

Lathrop - You need to get help - mental health help
Though sotomayor and Jackson should also seek help. You are getting your erroneous belief from the dissents which were even more distorted than the typical msn reporting. See my comments on the dissents above

[SRG2]

This looks pretty sane to me:
Its analysis rests on a questionable conception of the President as incapable of navigating the difficult decisions his job requires while staying within the bounds of the law.

[Brett Bellmore]

The difficulty is that staying within the bounds of the law doesn't necessarily imply staying outside the bounds of a courtroom.

I personally think that, as a textual matter, the fact that the Constitution expressly grants members of Congress very limited immunity, and is utterly silent on judicial and executive immunity, ought to settle the matter; You don't grant by implication in one part of a document what you expressly grant in a different part, and certainly not to a greater extent.

That said, it's clearly improper, if not constitutionally prohibited, to prosecute a government officer for acts within their delegated discretion. Do members of Congress ever get prosecuted for voting for laws? Judges for deciding cases? For taking bribes to do so, sure, but not for the actual act.

But this seems more of an "as applied" defense, than a matter of immunity.

Sad to say, though, I understand that the current trends in lawfare against political opposition would make the Court think some sort of atextual immunity is necessary anyway. In an ideal world the Supreme court would simply suggest an amendment in the form of dicta, and Congress would get to work on the patch. But things are a bit too politicized at the moment for that to work.

[SRG2]

I personally think that, as a textual matter, the fact that the Constitution expressly grants members of Congress very limited immunity, and is utterly silent on judicial and executive immunity, ought to settle the matter; You don’t grant by implication in one part of a document what you expressly grant in a different part, and certainly not to a greater extent.

Precisely so.

[Kenneth Almquist]

As I read the law, if a member of Congress accepts a bribe in exchange for a vote for or against a law, and actually votes as agreed, he can be charged under 18 U.S.C. § 201 (b)(2)(A), which has a maximum sentence of 15 years.

If the member of Congress accepts the bribe but doesn’t actually vote as agreed, then he can be charged under 18 U.S.C. § 201 (c)(1), with a maximum sentence of 2 years.

The discrepancy makes sense. In the first case, the functioning of government is being undermined. In the second case, unsympathetic victims (people attempting to bribe Congressmen) are being scammed. But what it comes down to is that the 15 year maximum sentence under 18 U.S.C. § 201 (b)(2)(A) amounts to 2 years for accepting a bribe plus 13 years for voting for or against a law.

So Congressmen can be prosecuted for the act of voting for or against a law, even though that is an act that falls within their official duties.

[Stephen Lathrop]

Joe_dallas — Please try to found your insults on direct references from the decision under discussion.

[Joe_dallas]

Lathrop - your response and the dissents grossly mischaracterize the opinion. You went off condemning the opinion based on what was not in the opinion. Thus my comment that you should read the opinion instead of making stuff up.

[WuzYoungOnceToo]

Stephen Lathrop - Please try to extricate your cranium from your rectum so that you can make an effort to comment on what is actually contained in the decision under discussion instead of what you imagine is in it.

[Rev. Arthur L. Kirkland]

Things that will continue to decline in America:

1. Religion, especially organized and bigoted religion.

2. Can't-keep-up rural communities, and the depleted human residue that remains in those deplorable areas after generations on the wrong side of bright flight. The death of infrastructure -- schools, churches, police departments, fire departments, libraries, etc. -- in those backwaters will predictably accelerate. The pool of ignorance, economic inadequacy, superstition, addiction, indolence, parasitism, disaffectedness, and bigotry will continue to concentrate.

3. Bigotry. Cranky old conservative bigots die off every day and are replaced in our electorate and populace by younger, less religious, less bigoted, less rural, better Americans.

4. Political causes associated with things in decline in America.

[SRG2]

We now have a simple one-question test as to whether you lean authoritarian or libertarian.

Do you agree with the decision in Trump's immunity case?
If yes, you lean authoritarian
If no, you lean libertarian

[Commenter_XY]

What is: It depends?

[Joe_dallas]

No immunity from acts which were unofficial and criminal

The case was sent back to the lower courts to determine which acts were official and which acts were unofficial

Shouldnt be anything controversial with the opinion.

Sotomayor and jackson grossly mischaracterized the opinion -

[SRG2]

President speaks to a large gathering: "go and burn down the Capitol". They do so. President: I was speaking to The People in my official capacity, so it's official.

Joe_Dallas: certainly seems like that to me.

[Joe_dallas]

SRG2 - The court did not and would not have that holding - Very similar response as Sotomayor and Jackson - you have to grossly distort, in fact lie about the holding, to argue it was wrong.

[SRG2]

The court did not and would not have that holding

How do you know? Roberts already said "The President possesses “extraordinary power to speak to his fellow citizens'"

Do you think the current SC would parse the speech and say, "this bit is official, this bit might be, this bit isn't"?

[SRG2]

I note that you don't actually deny my initial post.

[Joe_dallas]

You asked a political question - as in your preferred result - TDS –
I responded as to whether the opinion was constitutionally correct –

[SRG2]

It was a political question - but about people's political position not their perspective vis a vis Trump.

However, I will say that while being anti-Trump doesn't mean you're not authoritarian, being pro-Trump means you are authoritarian, to a very high likelihood. In your case the likelihood is close to 100%. Own it. There's nothing morally wrong about being an authoritarian per se.

[Joe_dallas]

The decision is constitutionally correct - my political leanings have no bearing on the correctness of the opinion.

Its obvious that politics overrides you objective analysis - same as it does for sotomayor and Jackson - Sotomayor has shown frequently to base her opinions and dissents on her preferred political result. That is someone that doesnt belong on the SC much less any court.

[Stephen Lathrop]

Joe_Dallas. The decision has no constitutional basis at all. If you think otherwise, point to the basis, and explain how it works.

Here is a hint, nothing about separation of powers has ever been held to create immunity from criminal prosecution for ex-presidents. Can you find anything to say otherwise? Of course you can’t. It’s all made up—custom tailored to foreclose prosecutions of Trump.

You like that, because you don’t want Trump prosecuted. You don’t want Trump prosecuted because, like nearly everybody, you understand Trump is guilty as charged. The difference is you and others of your ilk want Trump to escape consequences, and continue his treasonous attacks against America, its Constitution, and the jointly sovereign American People.

How did you get that way? I think it was probably by uncritical acceptance of the values of others who share your milieu. Do you have any capacity at all for introspection? Any ability to ask yourself the fundamental question which critical thinking relies upon: “How do I know that?” Start asking that after every ipse dixit you spout. It will change your life.

[Joe_dallas]

Lathrop - like most everyone that is going ballistic over the opinion are getting bad information from the dissents. Both sotomayor an jackson grossly mischaracterize the opinion.

If a president commits an act authorized under the constitution, then it is by definition legal and the president has immunity from committing a legal act. If the president commits an act which which is not an official act that is not legal, then he doesnt have immunity.
That is all the opinion holds.
There is nothing in the opinion that should be controversial. What is inane is the extent to which the 3 dissenters mischaracterize the opinion.

[Stephen Lathrop]

If a president commits an act authorized under the constitution, then it is by definition legal

Good one. Here's your chance to start using the question. Consider the entire context, then ask, "How do I know that?" One answer which will not serve you well, "It sounds plausible."

[Ed Grinberg]

So, since Elena Kagan dissented from the Court's decision, she "lean[s] libertarian"? The same Elena Kagan that publicly stated that, in her opinion, "a federal law requiring all Americans to eat broccoli would be constitutional" (source)? Hmmm...

[SRG2]

I can use the Thomas response – she may not like the law but that doesn’t make her rule against it.

Plus I never claimed it's totally accurate. I'll put you down as "leans authoritarian" - or perhaps you're not merely leaning.

[Moderation4ever]

There are now calls for a contested Democratic Convention, including from Bill Maher and Michael Smerconish. I think the Democrats need to move sooner. Ideally have Joe Biden withdraw and endorse a new nominee. Both the Republican and Democrats have done this in the past. Democrats did it in 2020 with Biden and Republicans in 2000 with George W. Bush. Any thoughts here?

[SRG2]

Yes. Biden should find some official grounds for removing Trump to Gitmo, and then step down.

[Frank Drackman]

Gitmo? I thought Barry Hussein Osama closed it during his first year in Orifice?

[Rev. Arthur L. Kirkland]

Recent events increase the likelihood Trump will die in prison.

As he should.

Maybe he can be cellblock president, or something similar, for a while, though.

[Frank Drackman]

Projection, thy name is Revolting Arthur L (for "Loser") Kirtland

Frank

[Commenter_XY]

Yes, why would you want to remove a candidate who is 'sharp as a tack', like POTUS Biden? And a 6 handicap? Damn! What a Keeper!

Maybe the question to ask is this: How does a cognitively challenged POTUS Biden credibly win the Electoral College? What would happen the day after?

[WuzYoungOnceToo]

And a 6 handicap?

I'm looking forward to watching him carry his bag of clubs for 18 holes.

[SRG2]

Might be amusing to see a race where both of them try to do that.

[WuzYoungOnceToo]

I doubt that Trump could go the full distance either, but he's still in better shape than Biden...and it was Biden who insisted on that condition.

[Frank Drackman]

well it's tough when you do 100 pushups every 5 minutes

[WuzYoungOnceToo]

including from Bill Maher and Michael Smerconish

So, 2 of the idiots who spent the past 4 years...right up until the debate...talking about how mentally sharp Biden really is, and telling everyone who pointed out Biden's obvious mental decline how full of shit they were.

[Moderation4ever]

Who is the one who is out of it here? Bill Maher and Michael Smerconish have both been critical of Joe Biden and saying he should not be running at this age. Don't worry about Biden's mental decline worry about you own.

[WuzYoungOnceToo]

You’re as full of shit as usual. Starting at the beginning of Biden’s term…the early decline being obvious even then…

https://malaysia.news.yahoo.com/bill-maher-holds-joe-biden-034106147.html

And even when he started, within the past year, saying that Biden shouldn’t run for a 2nd term it was because Biden approval numbers where not good and he was afraid that he would be beat by Trump in the upcoming election, not because he was admitting that those who pointed out Biden’s cognitive decline were right. And he continued to claim that pointing out that decline is just “ageism”…which of course was (and still is) simple-minded bullshit. His age is not, nor has it ever been the issue.

https://www.youtube.com/watch?v=k5Whdg-XLUQ&ab_channel=RealTimewithBillMaher

[jb]

Maybe you should watch that video? Specifically at the 1:54 mark where Maher says:

"I say things change. They always do. The parade moves on. 2024 is not 2020 in so many key ways including yes, Biden being four years older. You can be a national treasure and still be too old for the job."

I won't transcribe the whole section, but it goes on for two minutes and is entirely a discussion about Biden's age.

[WuzYoungOnceToo]

Maybe you should learn how to read.

but it goes on for two minutes and is entirely a discussion about Biden’s age

Which...as I already said...is not and has never been the issue. It's about his mental decline, which was visible during the 2020 campaign. And Maher also insisted that Biden "can still do the job", but due to his age just can't campaign for it.

[tylertusta]

Do we think that Smith will get a superseding indictment in the DC case? Will that be faster than duking it out over the original indictment, including appeals over immunity?

[Stephen Lathrop]

Superseding indictment with what charge? Or with what additional defendants. Maybe there is legal justification to add 5 of the 6 Supreme Court majority to those charged, but on what charges?

[tylertusta]

A superseding indictment would attempt to fix any deficiencies with the current indictment and the legal theory as Smith presented it to the grand jury.

For example, take yesterday's ruling on immunity. All of Trump's immune conduct cannot be presented to a jury, so all of the indictment's alleged facts of Trump's communications with the DOJ and the VP (when acting under the executive branch) cannot remain in the indictment.

Furthermore, Smith charged Trump under 1512, and he charged it in the same manner that the DOJ charged it for the other J6 cases: as part of the riot. But with Friday's opinion in Fischer, that can no longer be the theory under which Smith charges Trump. Friday's opinion was clear that this is an evidence-based crime, so the parts of the indictment about the events on Jan 6 might have to leave the indictment as well.

[not guilty]

"Furthermore, Smith charged Trump under 1512, and he charged it in the same manner that the DOJ charged it for the other J6 cases: as part of the riot. But with Friday’s opinion in Fischer, that can no longer be the theory under which Smith charges Trump."

No, the existing indictment charges Donald Trump with culpability under 18 U.S.C. §§ 1512(c)(2) and 2 and with conspiracy under § 1512(k) extending well beyond acting "as part of the riot." The scheme to create and transmit fake electoral slates involved creating false evidence for use in an official proceeding, which is prosecutable per pages 8-9 of the slip opinion in Fischer. https://www.supremecourt.gov/opinions/23pdf/23-5572_l6hn.pdf

The attempt by Trump, Eastman and others to pressure Mike Pence to unilaterally reject legitimate slates of electors in favor of the fake electoral slates also falls within the ambit of §§ 1512(c)(2) and 1512(k). Per yesterday's opinion, this conduct by Trump is presumptively immune from prosecution, with the District Court to determine on remand whether the prosecution has rebutted such presumption as to Trump’s attempts to pressure Pence in connection with his (legislative) role at the electoral count certification proceeding. (Slip op., pp. 21-24) https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf?ftag=MSF0951a18

[not guilty]

FWIW, Trump’s counsel conceded at oral argument that the allegation that Trump "turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results” involves private, unofficial conduct. https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-939_f2qg.pdf (p. 29.)

[tylertusta]

No, the existing indictment charges Donald Trump with culpability under 18 U.S.C. §§ 1512(c)(2) and 2 and with conspiracy under § 1512(k) extending well beyond acting “as part of the riot.”

This is a post-hoc rationalization of Smith's indictment. Smith was bound to follow DOJ policy on J6 charges and its interpretation of 1512(c)(2) when he indicted Trump in August of 2023.

The DOJ did not officially change its policy on the interpretation of 1512 until last Friday, and it only unofficially started changing how it handled 1512(c)(2) charges in J6 cases after SCOTUS took Fischer on December 13, 2023- four months after Smith indicted Trump.

For example, paragraph 10 (e) details the manner and means by which Trump obstructed: by using the crowd to halt the counting of the votes. Additionally, paragraph 104 details that Trump directed the crowd to go to the Capitol to obstruct Congress. Paragraphs 106 through 124, the events on Jan 6th, are all in line with the pre-Fischer theory that the government advanced for 1512(c)(2): Trump sought to use the crowd to delay and impair Congress from counting the electoral votes.

That Smith also charged Trump with section 371 for the electors documents is just Smith being lucky. But that doesn't change how Smith brought the indictment in the first place.

[Bored Lawyer]

Here is an angle the SCOTUS immunity decision did not touch on (other than rejecting Trump’s absurd position that impeachment is a prerequisite to criminal prosecution.)

The Constitution provides:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Another provision:

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

The second provision clearly contemplates that an impeached officer, including a president, would still be subject to criminal prosecution.

How does that square with today’s immunity decision?

Bribery is an easy one. Bribery is complete when one accepts the bribe with a quid pro quo. No “official act” has been performed yet, and one need never be performed.

Treason — I am guessing it depends how its carried out. If the president conspires with private persons to make war on the US, that’s not an official act. If he orders the military to do a treasonous act, it seems like an official act.

Other high crimes and misdemeanors — need some examples.

Thoughts?

[Brett Bellmore]

Impeached officers are clearly still subject to criminal prosecution, just as non-impeached officers are, but today's decision went to the topic of, "For what?", not "whether".

The overlap between impeachable and prosecutable is limited; Congress can impeach for "high crimes and misdemeanors", which for impeachment purposes is anything they damned well please, but such high crimes and misdemeanors aren't necessarily going to be violations of criminal law that could be prosecuted in a legal setting.

The clause simply makes clear that, if they are, impeachment doesn't invoke double jeopardy.

[Sam Bankman-Fried]

Correct, neither Clinton nor Trump in the first impeachment violated a law…but that didn’t stop Republicans from prosecuting Clinton.

[ThePublius]

I thought Clinton's crime was perjury.

[Sam Bankman-Fried]

In a civil lawsuit during a deposition?? Lindsey Graham didn’t even vote for that article of impeachment because it’s so absurd. Have you been involved in civil litigation?? I have. Our team always believes the other side is lying about everything and not once do we set a perjury trap so we can call the sheriff to arrest them. Paula Jones should have brought an action against her lawyers for not representing her interests and instead playing games with the judicial system. And the judge that let her lawyers get away with their stupid games is a clown.

[not guilty]

Bill Clinton was not impeached for perjury during the deposition; he was impeached for perjury before the grand jury. The House Judiciary Committee recommended a separate article of impeachment for the deposition testimony, but the full House rejected the recommendation.

[Sam Bankman-Fried]

Doesn’t change the fact the “intern outreach” is “official business” for a president.

[WuzYoungOnceToo]

If he orders the military to do a treasonous act, it seems like an official act.

Which Executive duty is treason in furtherance of?

[SRG2]

Thomas’s concurrence starts off with this evident lie (or perhaps he has the only copy of the Scalia Codex of the Constitution, which contains extra text unknown to the rest of us)

Few things would threaten our constitutional order more than criminally prosecuting a former President for his official acts. Fortunately, the Constitution does not permit us to chart such a dangerous course.

The Constitution says nothing about prosecuting a former president – itself a significant omission.

[Sam Bankman-Fried]

Unfortunately we can’t prosecute Bush for torturing detainees in order to elicit false confessions…but that doesn’t mean other countries can’t.

[Bored Lawyer]

Another odd thing about the immunity opinion. They specifically held that evidence of immune conduct (meaning of officials acts) cannot be used as evidence even in the prosecution of unofficial acts not subject to immunity.

The Government does not dispute that if Trump is entitled to immunity for certain official acts, he may not “beheld criminally liable” based on those acts. Brief for United States 46. But it nevertheless contends that a jury could “consider” evidence concerning the President’s official acts “for limited and specified purposes,” and that such evidence would “be admissible to prove, for example, [Trump’s]knowledge or notice of the falsity of his election-fraud claims.” Id., at 46, 48.That proposal threatens to eviscerate the immunity we have recognized. It would permit a prosecutor to do indirectly what he cannot do directly—invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge. But “[t]he Constitution deals with substance, not shadows.” Cummings v. Missouri, 4 Wall. 277, 325 (1867). And the Government’s position is untenable in light of the separation of powers principles we have outlined.

If official conduct for which the President is immune maybe scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the “intended effect” of immunity would be defeated. Fitzgerald, 457 U. S., at 756. The President’s immune conduct would be subject to examination by a jury on the basis of generally applicable criminal laws. Use of evidence about such conduct, even when an indictment alleges only unofficial conduct, would thereby heighten the prospect that the President’s official decisionmaking will be distorted. See Clinton, 520 U. S., at 694, n. 19.

That seems to me very extraordinary for criminal law, where evidence of uncharged conduct, or even conduct for which a person was acquitted, may be admissible for certain purposes. See Dowling v. United States, 493 U.S. 342 (1990) and United States v. Rocha, 553 F.2d 615 (9th Cir. 1977).

In the Trump case, he asked the then-AG, Bill Barr, to investigate fraud, and Barr’s answer was, there was no evidence of fraud. That sure seems like “official conduct.” Under today’s holding, that cannot be used as evidence even for prosecuting “unofficial conduct.” That strikes me as both novel and dangerous.

[Sam Bankman-Fried]

You do realize in year 3 in a presidential term you see advisors resign from WH and executive branch positions and take positions on campaign staff?? Bottom line—reelection campaign is not part of the job of president and we have an extensive historical record of the difference between the two jobs. The Hatch Act is very clear unless you believe the Hatch Act is unconstitutional??

[Bored Lawyer]

I fail to see your point?

Trump asked Barr to investigate election fraud. Barr did not resign, and I don't think that request violated the Hatch Waxman Act. Investigating election fraud is an official act, well within the AG's purview.

So Trump cannot be prosecuted for that request. But we know that Barr reported back, "no fraud." That should be admissible to show that Trump knew his charges of fraud were bogus.

[Sam Bankman-Fried]

No, campaigns lawyer up and raise funds for recounts and audits. The current Supreme Court has 3 justices that were part of the 2000 Bush campaign dealing with the Florida recount. Gore’s team were campaign staff as well. Barr was part of the executive branch and everyone knows cabinet officials are prohibited from campaigning by the Hatch Act.

[ducksalad]

Are you claiming that executive branch officials can't investigate alleged election misconduct?

If that was true, it would mean that the DoJ couldn't investigate, say, allegations that a state covered up violations of the Voting Rights Act.

Are you sure you thought this through?

[Sam Bankman-Fried]

Executive branch officials cannot investigate phony election fraud at the behest of a nutty president. You are such a dumbass that you apparently don’t know Nixon’s abuse of power involved the 1972 election. So you believe Nixon could have ordered the DOJ to wiretap the DNC HQ because Nixon believed they were involved in illegal activity and that would make it above board!?! WTF??

[ducksalad]

Sam, the courts need to come up with objective rules that don’t depend on politicized opinions of whether an allegation is “phony” or the president in “nutty”.

So, it depends on what you mean by order a wiretap.

If Nixon ordered an illegal wiretap, e.g. no warrant, then it’s not an official action. No law empowers the president to order illegal wiretaps.

If Nixon ordered the DoJ to seek a warrant, and told them to falsify a probable cause affidavit, then creating false affidavits is still not an official action.

If Nixon ordered the DoJ to seek a warrant, outlined what he believed or claimed to, they gathered evidence, and then applied for a warrant, and either got it or didn’t, then yes, that’s immune, because he is empowered to see that the law is enforced, and seeking warrants is how that is done.

That’s my IANAL understanding here.

[Sam Bankman-Fried]

Trump ordered Barr to appoint Durham and Durham conducted phony prosecutions and Trump got away with it and so in that instance you are correct because Durham followed the proper protocols for prosecutions. But if tapes exist that the prosecutions were trumped up to win an election then it would amount to criminal conspiracy. With respect to the law unethical actors can undermine justice even if they are ostensibly following proper protocols for prosecutions.

[Brett Bellmore]

Sounds about right.

Just to add, if, say, the President orders the DOJ to lay off prosecuting somebody, that is also an official action; To the extent there is prosecutorial discretion, the President is entitled to exercise it.

[Stephen Lathrop]

Bellmore, do you suppose that discretion is without limit? How about, “Stop prosecuting that guy, I don’t want him blowing the whistle on the crimes he and I cooked up together?”

Or, "Stop prosecuting that guy. I paid him good money to keep quiet."

[Brett Bellmore]

It's telling that you had to put a confession into your hypothetical. The tendency to treat corrupt motivation on the part of political foes as being so obvious that it's equivalent to a public confession is something people should resist; It's a perception driven by partisanship.

But, yes, under the ruling in question, directing the DOJ to exercise prosecutorial discretion is a core exercise of Presidential power, so motive doesn't matter.

[Stephen Lathrop]

Bellmore — So you like empowering that kind of conduct. Got it.

And anyway, who cares about a confession when he enjoys impunity. Trump has built a world of power on that practical principle—demonstrating time and again in public that he is so imposing that no one can constrain him, no matter how outrageous his conduct. His supporters lap it up.

[Voize]

Trump could have ordered Barr to prosecute even in the absence of evidence. That would be an exercise of the executive power, and within the core authority of the President, so is it now inadmissible in evidence in any subsequent proceeding challenging the prosecution?

[Bored Lawyer]

That's not a case against a former president. That's a prosecution of someone else.
And in any event, the motives of the prosecution are irrelevant. The issues are (1) is there probably cause to prosecute and (2) is there sufficient evidence to convict and (3) does the jury convict. All of those lie outside what a president told the AG.

[Voize]

I hope you are right that the principle is so limited, but Roberts writes

Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions.

which on its face doesn't require that it be a prosecution of the President.

[Stephen Lathrop]

It also seems to imply that prosecutions which need to subpoena evidence from presidential associates are intended to be frustrated.

[Brett Bellmore]

"That seems to me very extraordinary for criminal law, where evidence of uncharged conduct, or even conduct for which a person was acquitted, may be admissible for certain purposes."

I'd rather see the Court scaling back that use in ordinary law, rather than extending its use to lawfare against Presidents. In particular, acquitted conduct should flatly be treated in a judicial setting as not having happened.

[Commenter_XY]

BL, perhaps CJ Roberts had the Trump NYC case in mind when making that point = They specifically held that evidence of immune conduct (meaning of officials acts) cannot be used as evidence even in the prosecution of unofficial acts not subject to immunity

[LawTalkingGuy]

404(B) for thee but not for me.

Doing a drive-by fuck you to the rules of evidence is a fitting encapsulation of this era of the Court. Looking forward to a few terms when they say the doctrine of promissory estoppel violates Eric Trump’s free speech rights of something.

[not guilty]

As he had previously done at oral argument, Justice Thomas in his concurring opinion went out of his way to question whether Jack Smith was properly appointed as Special Counsel. The defense had not raised that issue before the lower courts, and it went beyond the question presented in the SCOTUS grant of certiorari. Fortunately, no other justice joined Thomas's concurrence.

[Josh R]

What? No post by Blackman (as of yet)!

[not guilty]

I suspect that Justice Thomas was giving Judge Cannon a road map to fashion an order dismissing the Florida indictment. She presently has Trump's motion to dismiss under advisement.

Even the Thomas opinion, however, does not address how (assuming arguendo the appointment of Jack Smith is somehow defective) dismissal of the indictment is an available remedy. Jack Smith didn't indict Donald Trump; two federal grand juries indicted Donald Trump.

"An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, 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, 353 (1956) [footnote omitted]. The prosecutions could continue under the auspices of the United States Attorneys for the Southern District of Florida and the District of Columbia, respectively. They could even employ Jack Smith and his staff as Assistant United States Attorneys.

[Commenter_XY]

NG, suppose Judge Cannon sings a version of, "Hit the road Jack, and don't you come back no more..." (love that song, btw); and holds Jack ain't legal and can't come back. Then what happens?

The charge doesn't just disappear. Does AG Garland then need to appoint an AG who was confirmed by the Senate to move the case forward?

[not guilty]

There is already a Senate confirmed U. S. Attorney for the Southern District of Florida, Markenzy Lapointe. He could assume control of the prosecution. I doubt that there is any authority prohibiting him from appointing Jack Smith as an AUSA. (I also doubt that that matters to Judge Cannon.)

If Judge Cannon dismissed the indictment, that order would be immediately appealable as of right, whether as a final decision under 28 U.S.C. § 1291 or as an interlocutory order under 18 U.S.C. § 3731, if any part of the indictment remained as to any defendant.

The Eleventh Circuit Court of Appeals has twice reversed Judge Cannon at the investigative stage of this case. In other cases where that court has reversed the same district court multiple times in the same case, the Court of Appeals has ordered that upon remand the matter be reassigned to a different judge. United States v. Plate, 839 F.3d 950, 958 (11th Cir. 2016); United States v. Gupta, 572 F.3d 878, 892 (11th Cir. 2009); United States v. Martin, 455 F.3d 1227, 1242 (11th Cir. 2006); United States v. Remillong, 55 F.3d 572, 577 (11th Cir. 1995); United States v. Torkington, 874 F.2d 1441, 1447 (11th Cir. 1989) (per curiam); United States v. White, 846 F.2d 678, 696 (11th Cir. 1988).

[hobie]

I mean, all these special prosecutors were only hired to give the rubes some indicia of impartiality. So if they can't accept the jesture, then put the most merciless, progressive AUSA in the department right back in there.

[Frank Drackman]

its "Gesture" you illiterate fuck

[hobie]

Harlan Thomas. What a corrupt joke. I wish Trump would win in Nov just so that Thomas can do his last non-partisan act and retire during the New Impirium

[tylertusta]

Yes. He's inviting Cannon to rule on it so it can make it to the Court.

[ThePublius]

Mistrial in the Karen Read murder trial. Prosecutor says, almost immediately, said he will re-try her.

[Frank Drackman]

somebody should be charged and tried, I'd start with the Prosecutor.

[hobie]

I heard the policeman broke his neck trying to suck his own dick...the crazy motherfucker

[ThePublius]

Having followed the trial I am flabbergasted that she wasn't acquitted. There are rumors that the DA's office had a "plant" on the jury. It will be interesting to hear from the jurors - I hope we do! There are indications that there were multiple jurors on both sides. I find it so puzzling.

[hobie]

People like you are what we have to deal with these days. You want to believe anything except objective reality. By all means, believe the system planted a juror. Buy some golden sneakers. Send money to Steve Bannon...he needs your help

[Frank Drackman]

Steve Bannon spends more money on one of his lumberjack shirts than dreamt of in your pathetic philosophy. Notice how I've stopped mentioning your Stolen Valor? and not even a "Thank You"

Frank

[ThePublius]

I said there were rumors, I didn't say I believe them! Geez - "people like you...."

[Noscitur a sociis]

Having followed the trial I am flabbergasted that she wasn’t acquitted.

But since your following the trial didn't even enable you to understand who the witnesses were, it's not exactly a shock your expectations weren't exactly aligned with reality.

There are rumors that the DA’s office had a “plant” on the jury.

But I repeat myself.

[Rev. Arthur L. Kirkland]

How stupid are cowboy hats (with the possible, rare exception of those worn by working cowboys outdoors)?

Even Mick Jagger looks ridiculous in a cowboy hat.

If I paid $600 for a ticket to a 20-tune Rolling Stones concert and one of those songs -- a great song! -- was wrecked by a twanging, drawling Hannah Montana impersonator I would object.

[Frank Drackman]

You know what's stupider? if you're ever a free man, telling a Cowboy his hat is Stupid.

Frank

[Rev. Arthur L. Kirkland]

Most of the hayseeds and dumbasses wearing cowboy hats are not cowboys.

And some cowboys -- although not known to be highly educated as a class -- even know how capitalization works in standard English.

Cowboy hats are ridiculous. Most people who wear them tend to be poorly educated and low-quality people.

[Frank Drackman]

Surprise Revolting,
not everyone grows up speaking the King’s Engrish, My first 4 years on this Planet (I count the 9 months in Utero) I was raised by my East German Mom and a sucession of Babysitters, mostly German. Dad was around part of the time but learing to fly T-38’s and later B-52’s, not like he had the time to converse with a drooling Mongoloid (he still doesn’t) Ironically, the first place I heard Engrish on a regular basis was Kindergarten, a German invention. In German they capitalize Nouns, OK, I throw in Adjectives, Adverbs, Particles, unlike People, Languages Evolve over time, so Leck Mich, you Revolting Sheisskerl

Frank

[Rev. Arthur L. Kirkland]

I was raised among wolves in a shitty, uneducated town, but I became a writing major, a newspaper reporter, an English instructor, a newspaper editor, and a lawyer who polishes briefs for other lawyers. Substandard childhood conditions are a shabby excuse for adult illiterates.

Get an education, clingers.

[Bored Lawyer]

How stupid is someone who plays out his inferiority complex by making inane comments on an obscure legal blog?

Cowboy hats are not my cup of tea. Others like them. De Gustibus non disputandem est.

[Frank Drackman]

I have to admit the "Backwards Baseball Cap" does make the BBC wearer look like an Idiot, especially the cheap non-fitted Caps with that stupid big cutout where the adjustable strap sits. And don't even get me started on untied sneakers, Hockey "Sweaters", Birkenstocks, Crocks, Flip Flops, in fact, in a Drackman Kingdom anyone wearing any of the above in the First Class section of an Airliner would be summarily thrown off the Jet (but not until 34,000 feet)

Frank

[Rev. Arthur L. Kirkland]

People are entitled to wear cowboy hats. Other people are entitled to question those silly choices.

[Stephen Lathrop]

Mrs. Lathrop is neither a fan of Country and Western, nor particularly outdoorsy, but she still go a thrill watching a mounted cowboy—complete with chaps and hat—working cattle across a sagebrush-covered mountainside in Idaho. Turned out she also liked the team roping event when we attended a small town rodeo.

[Rev. Arthur L. Kirkland]

The Supreme Court today provided another important step toward enlargement of the Court.

Right-wingers probably don't see it, but they're the kind of clueless losers who also did not see women lawfully voting, desegregated schools, consumer protections, gay marriage, environmental protections, diminution of religion in America, interracial marriage, a Black president, and plenty of other progress coming, either.

Carry on, clingers . . . but only so far as your betters permit.

[Frank Drackman]

Did you just come up with that line, Revolting? Your “Black President” (Funny how with Blacks, suddenly it’s 1619 and the “One Drop” rule applies, would anyone here think Common-Law Willie-Harris-Brown was “Black” if you didn’t know that’s what she’s supposed to be?) Barry Hussein Osama was against SSM (McCain was the candidate supporting it in 2008, you saw how well he did, which is why BHO was agin’ it) until his VP Comatose Joe Biden dragged him kicking and screaming into the 21st Century

Frank

[Sam Bankman-Fried]

Kamala Harris is a minority—she grew up an English speaker in Montreal!

[Noscitur a sociis]

How exactly do you see the enlargement playing out? What steps should we expect to see, and when?

[Stephen Lathrop]

Noscitur — You should expect to see sufficient extra appointments to bury the conservative majority, as soon as Ds assemble sufficient political power to accomplish it. The Ds remain rightly resentful that McConnell's appointment antics stole a majority from them; they will not consider that redressed until a similarly long interval of politically advantageous adjudicating goes their way.

Expect a long roster of egregious-error right-wing favoring decisions to get priority consideration, until that backlog is cleared. The review might stretch forward from Citizens United until whatever moment the Ds get Court control. Then the Court will get to work dismantling non-Constitutional force-multipliers used to develop extra leverage for the Constitution's minoritarian features—stuff like gerrymanders, voting-list purges, polling-place inequalities, and filibusters of appointments.

I don't think Ds much object to minoritarian features built into the Constitution, except maybe the electoral college. But if they get power to do it, Ds will dismantle stuff like giving a Senate majority leader personal power to block a Supreme Court appointment without so much as a vote on the floor of the Senate. You might get term limits for justices. You will get ethics laws to govern the Supreme Court, enforced by criminal penalties. Enjoy the holiday from Chevron deference while you can. That will go away. Guns will be well regulated. It's a big backlog. There will be much to do.

The era of right-wing minoritarian overreach on the Court will look historically conspicuous for a long time, partly because it is unlikely that a D-dominated Court majority will leave the Rs equipped with political means to repeat it. Dark money court corruption will not continue forever.

[Brett Bellmore]

I don't agree with Lathrop that the Court packing would be appropriate, Democrats' rage at not controlling the Court notwithstanding, but I concur that it should be expected just as soon as Democrats are in a position to pull it off. Meaning, holding the White house, and with substantial majorities in both chambers, so that they can afford a few defections.

It's possible you could see it with a bare majority, via a manipulated quorum, where a snap vote was held while opponents were out of town. But that's the sort of move that you'd only do if you weren't planning on permitting normal democracy afterwards, it would piss off so many people.

I once again urge Republicans, should they get control of both chambers, to declare that the conditions have been satisfied for holding a constitutional convention. Such a convention could originate a number of amendments to patch vulnerabilities in the Constitution on procedural fronts, such as locking the size of the Court to prevent packing.

It's time to be proactive for once, instead of waiting for the Democrats to make their move.

[Noscitur a sociis]

Meaning, holding the White house, and with substantial majorities in both chambers, so that they can afford a few defections.

And when in the foreseeable future do you see that happening?

I once again urge Republicans, should they get control of both chambers, to declare that the conditions have been satisfied for holding a constitutional convention.

One of the few things even less likely to happen in my lifetime than enlarging the court.

[Brett Bellmore]

Well, they ARE "the Stupid party", so, yes, it's unlikely.

[JasonT20]

I once again urge Republicans, should they get control of both chambers, to declare that the conditions have been satisfied for holding a constitutional convention.

Such as 2/3 of the states asking for one? Which states have done so already? Oh, and I realize that the 27th Amendment was actually first proposed in 1789 and went into effect just more than 200 years later. But I would suggest that a convention occurring now based on votes by legislatures made before anyone alive now was born would be ludicrous.

[Brett Bellmore]

Sure, but no more ludicrous than things that happen routinely in DC. Have you looked at the details of how "the nuclear option" worked, for getting rid of filibusters? Or the fairly routine practice of holding votes with only a handful of members present, and making them voice votes to avoid recording the absence of a quorum?

The only state that has never called for a convention is Hawaii, and you don't even have to reach that far back to get enough states calling for one recently to qualify. All you have to do is ignore unconstitutional attempts to restrict the subject matter of a convention, and add them all up.

It would barely even qualify as gaming the system, relative to routinely tolerated practices.

[Noscitur a sociis]

You should expect to see sufficient extra appointments to bury the conservative majority, as soon as Ds assemble sufficient political power to accomplish it.

I guess I was looking for something a little less tautological. What’s the timeframe you’d estimate for when Democrats interested in increasing the size of the Supreme Court will control the presidency and both house of Congress at the same time?

[Rev. Arthur L. Kirkland]

I do not know when Democrats will overcome the pillars of Republican electoral strategy -- voter suppression, gerrymandering, and our system's undeserved structural amplification of hayseed votes -- and assemble the political power needed to enlarge the Supreme Court.

I know that when enlargement occurs, it will be effected in scrupulous compliance with applicable law and in congruence with plenty of established precedent.

Get ready for admission of a few more (non-drawling) states, too. And enlargement of the House of Representatives, an overdue, historically apt improvement that will diminish that undesirable amplification of yahoo votes.

[JoeFromtheBronx]

An "often" libertarian blog does not have a separate post about the immunity ruling yet?

[M L]

Tell us, what do you think is the proper libertarian view of this "immunity ruling?"

[Martinned2]

That the President should obey the law, just like everyone else.

[Krayt]

Speaking of kings above the law:

1. Kings used the investigative power of government against opponents, to hurt them.

2. Kings filched through papers unil they found something, anything, to tag an opponent with.

3. Kings don’t need to do this, but disreputable political hacks do: Nigh infinite initiatives to get the opponent. One fails, move on to the next.

4. Kings did this directly, no constitution to work around (dang!): seize the estate of the opposition as a last resort.

5. Kings did this directly, nothing needed that’s similar to “parallel construction” to avoid the obvious, as made by myriad attempts to hurt him, every one facetiously maintained as disinterested concern for rule of law.

I don't defend the ruling. I am disgusted by the attacks by little kings. I am disgusted we may allow Putin's tanks to roll through Europe.

His role in this is understood. Your role in this is disgusting, against constitutional design principles.

The correct solution is to have no kings in America. This also means you.

[JasonT20]

1. Kings used the investigative power of government against opponents, to hurt them.

You say this, but then contradict the motivation a king would have to do that.

3. Kings don’t need to do this, but disreputable political hacks do: Nigh infinite initiatives to get the opponent. One fails, move on to the next.

If that country is an absolute monarchy, then the king is the state and the law. So, you'd be right that they don't need to do that. Unless, of course, their position is insecure and the loyalty of rest of the aristocracy is questionable.

You made a very similar post that I replied to around a day ago, but you didn't respond. You are very concerned about a tyrant or king using the power of government to prosecute opponents, but you didn't answer my larger concern: a tyrant or king doesn't accept that the power of government belongs to the people. I always go back to this as the most important check on any abuse of power in a democratic nation. If the people don't like how political power is used, they can vote out those in power. But that is true only if the people jealously guard their right to do that.

In that previous reply I had said,

"Perhaps a bigger tool of growing tyranny [than prosecuting opponents] is for the government in power to simply declare that their election loss was tainted and hold on to power despite losing. That is what is meant by a “autocoup” or “self coup” – the legitimately elected government goes beyond legal means to expand and retain control."

If the people can't be sure that voting out the current leaders will even stick, then it doesn't matter what abuses of power they had been engaging in, does it? They can't be held accountable for their abuses if they don't accept losing.

It is certainly debatable where to find the balance between making sure that no one is above the law and making sure that government prosecutorial power isn't used against political opponents. But there is no debate to be had over election loses. The loser leaves power. And, if the loser disputes the legality or legitimacy of the election, they have to do so through already established procedures and with sufficient evidence to prove his case to those that aren't his supporters. Just like we don't let victims of crimes and their families decide whether an accused is guilty of a crime, the loser and his voters aren't the ones that need to judge the evidence of an allegedly fraudulent election.

Decide for yourself what you fear more and why, but for my part, I view the direction of the Republican Party, even before Trump, as weakening its belief in the whole premise of accepting election results. With Trump, they have moved into the belief that any loss could only have been fraudulent. That is, by far, the greatest danger to the Republic at the present time.

[JesusHadBlondeHairBlueEyes]

Scary times. The dementia riddled President was publicly calling for an insurrection against the SCOTUS.

Is there any doubt the WH has been coordinating this lawfare against 47?

[not guilty]

"Scary times. The dementia riddled President was publicly calling for an insurrection against the SCOTUS."

An ipse dixit assertion, conspicuously bereft of supporting facts. What did President Biden say verbatim, and how does it "call[] for an insurrection against the SCOTUS"?

[not guilty]

Still waiting, JesusHadBlondeHairBlueEyes.

[JesusHadBlondeHairBlueEyes]

Are you still waiting?

[M L]

This article came up. I decided to check it out and see whether the mainstream media had become any less unhinged and void of credibility yet.

Here’s a look at some of the false claims made during Biden and Trump’s first debate https://apnews.com/article/fact-check-misinformation-election-debate-trump-biden-577507522762aa10f6ee5be3a0ced2bb

TRUMP: “They talk about a relatively small number of people that went to the Capitol and in many cases were ushered in by the police.”

THE FACTS: That’s false. The attack on the U.S. Capitol was the deadliest assault on the seat of American power in over 200 years.

Welp.

First couple sentences was enough of that. Maybe I'll check back again in a few more years.

[Brett Bellmore]

I suppose the war of 1812 IS technically more than 200 years ago.

But, yeah, that was pretty silly, and even if taken seriously didn't refute what Trump said, which was that it was relatively small, and some of the protesters were ushered in by police.

1. The only casualty that day that wasn't an unrelated medical event was one of the protesters being shot by the police.
2. It actually was a relatively small mob by recent DC standards.
3. We have video of Capitol police escorting some of the protesters. I recall at least one guy got acquitted on that basis. More would have been if the video hadn't been embargoed until after most of the trials were complete.

[JasonT20]

But, yeah, that was pretty silly, and even if taken seriously didn’t refute what Trump said, which was that it was relatively small, and some of the protesters were ushered in by police.

"Relatively" is doing a lot of work there. Relative to what? I would suggest that relative to any other time protesters have been inside the Capitol building that I've ever heard of, it was a very large crowd. Relative to any other time protesters were inside the Capitol that I've heard of, they were very violent.

And the claims of being "ushered in by police" have never been substantiated as far as I can tell. Some videos of police abandoning their posts and retreated due to being outnumbered, or videos with no context of whether people are going in or out of the building or when it was taking place isn't enough. And even if that did happen in a few instances, it doesn't diminish from all of the other direct evidence of the Trump supporters violently pushing past barricades, breaking windows and doors to get in, and more.

1. The only casualty that day that wasn’t an unrelated medical event was one of the protesters being shot by the police.

Two people that died of heart attacks at the event had medical histories of high blood pressure and heart disease. To say that this was unrelated to the stress and heightened emotions of the day is unlikely to be true.

In a written statement provided to the media after his death, Greeson’s wife, Kristi, stated that her husband “had a history of high blood pressure, and in the midst of the excitement, suffered a heart attack.”

2. It actually was a relatively small mob by recent DC standards.

Again, relative to what? Marches and other protests in DC? Is it accurate to describe such groups as a "mob" if they didn't fight police at barricades and cause over 100 to report injuries?

3. We have video of Capitol police escorting some of the protesters. I recall at least one guy got acquitted on that basis. More would have been if the video hadn’t been embargoed until after most of the trials were complete.

Again, what was the context of these videos? Where were the police "escorting" them and why?

You are all continuing to go through all kinds of mental contortions to minimize what happened. All of that is in the service of absolving the person responsible for it.

[Brett Bellmore]

1. People die of heart attacks at concerts all the time. If they had heart conditions, we don't refer to the concerts as "deadly", because we know you don't temporarily become immortal while at a concert. The same is true of political protests. The only death that was really due to the events of that day was Babbit's, and that death was at the Capitol police's hands, not the protesters'. Though I'll part from many and call that suicide by cop.

2. Relative to riots that involved arson, relative to mobs taking over parts of DC, and forcing the President into his bunker? They didn't even try to set the Capitol building on fire! By riot standards it was remarkably sedate.

3. Look to you like they're arresting him? Hell, they even open doors for him!

[JasonT20]

1. Perhaps. I'd like to know what your definition of "all the time" is. Also, concerts attended by people in their 40s or older with heart disease don't often go to concerts that could be described as stressful in any way.

Officer Brian Sicknick died the day after at 42 years old. The medical report stated the cause of death as "natural" as it was from two strokes in the Basal artery that affected the brain stem, and not from injury or allergic reaction to pepper spray. But the medical examiner did say that "all that transpired [on Jan.6, including him being pepper sprayed by rioters] played a role in his condition." But perhaps 42 year old police officers die from strokes "all the time" after dealing with violent perpetrators?

2. Oh, so they would need to have set the Capitol on fire for it to be serious, in your view? Maybe Trump supporters should remember that if he loses again.

3. Did I suggest that he was being arrested? I was asking what they were doing and why. Which you didn't answer yourself. I don't think I'll take Tucker Carlson's word for it that he was being escorted into the Senate chamber in that video, either, rather than trying to find him a way out as they tried to get him to leave.

About 45 minutes into the film ["Four Hours at the Capitol", a HBO film of the events], [officer] Robishaw said he entered the Senate chamber behind "the Shaman," referring to Chansley. "And that’s when I realized I was alone now," he said.

Robishaw’s comments were corroborated by accompanying footage, including video that showed him asking Chansley to leave: "Any chance I could get you guys to leave the Senate wing?"

Officers using de-escalation tactics instead of using force to arrest people that outnumber them = They were helping the rioters! Got it.

[M L]

Massachusetts Judge Susan E Sullivan releases migrant accused of raping 15 year old on $500 bail.

https://www.bostonglobe.com/2024/06/28/metro/rockland-child-rape-suspect-granted-bail/

I'm not a criminal law guy, is that typical?

[JesusHadBlondeHairBlueEyes]

For Democrat judges yes.

[Frank Drackman]

In that State, probably, only good thing is the "Accused" probably has a better chance of getting killed out of jail than in.

Frank

[John F. Carr]

In Massachusetts there is a strong presumption of release without fee or on affordable bail. The prosecution can ask for a defendant to be held without bail due to danger to the public, and in fact did that at the start of this case. The defendant was held for three months before being released on bail.

But we don't say "held on $10 million bail" as a euphemism for "held without bail." For this defendant or his family $500 is probably a significant amount of money.

Massachusetts also abolished the nonrefundable 10% fee for posting bail. If bail is $500 the usual practice is somebody gives $50 to the court clerk. If the defendant shows up the money is refunded. If the defendant does not show up he or the guarantor owes the $450 balance.

[JasonT20]

According to federal immigration officials, Alvarez is a Haitian citizen who lawfully arrived in the United States in New York on June 26, 2023. He had a Florida identification card when he was arrested, according to Rockland police.

He is required to wear a GPS monitor and remain under home confinement at a known local address and twice a month check with probation officers. With a presumption of innocence and no criminal history, that doesn't seem unreasonable to me. High dollar bail for people of low means is often the same as denying bail outright.

[Michael P]

Someone should tell Adrian Vermuele that some asshole is impersonating him on Substack and posting stupidly wrong things there.

https://substack.com/@thenewdigest/note/c-60628865?r=fott7

[Stephen Lathrop]

Benjamin Franklin: A republic, if you can keep it.

Chief Justice Roberts: Ha!, Ha!, Ha! We threw it out the window.

[Frank Drackman]

Funny, you used to like the Surpremes when they were for killing babies, letting Companies take peoples homes, and letting men marry men (but not letting sisters marry their sisters, strange)

Frank

[ThePublius]

What the heck does that mean? Did you actually read the decision? I think it's quite reasonable and that the majority got it right. How does it end the republic?

[WuzYoungOnceToo]

Did you actually read the decision?

Why would he waste precious time and effort on that when he can delegate it to the voices in his head?

[Michael P]

The Netherlands have provided a vivid demonstration of why wealth taxes are impractical: https://www.telegraph.co.uk//money/tax/how-netherlands-wealth-tax-went-wrong-and-cost-the-nation/

[Mr. Bumble]

Impractical and:
On 6 June, the court ruled that the country’s wealth tax went against the European Convention on Human Rights because it forced savers and investors to pay tax on income they had not earned.

[Martinned2]

Which is wildly stupid, because all taxes take away some of your possessions, by definition. For decades the Netherlands had a straight-up wealth tax, and no one ever suggested that that violated the right to property.

[Bwaaah]

Wow. They imposed a 30% annual tax on arbitrarily presumed annual gains of 4% on all investments alike (e.g. cash, securities, real estate). And tax, they did, without regard to the real effective destruction of taxpayer wealth.

As one genius, Minister of Finance Gerrit Zalm, said at the time the tax was implemented: “Any fool can get a return of more than 4 percent.”

Clearly, the Minister was incorrect. More aptly, maybe this history indicates that a fool can be a Minister of Finance in the Netherlands? Or more likely, he's not a fool, but a manipulative deceitful statist who, as a Minister of Finance, has little concern for the destruction of his people's wealth?

[Martinned2]

Before that we had a 0.7% wealth tax. Among the OECD countries, Colombia, France, Norway, Spain and Switzerland still have a wealth tax today. Explain to me why that's worse than other taxes.

[Bwaaah]

"Explain to me why that’s worse than other taxes."

Because it is likely to cause draw-down/liquidation of long-term assets (that which you call "wealth"), using it to fund current expenses (that which I call "government programs"), resulting in a long-term decline of aggregate wealth and decline of assets available to fund future prospects.

[JasonT20]

How much of their wealth are you thinking someone would need to liquidate to pay a wealth tax of a few percent of their net worth or less every year?

[Bwaaah]

1.2% (30% of 4%) per year. And for those of you who grasp the beauty of compounding interest, think of it as the inverse of that. Of course, to the extent that your gains exceed that, you don’t have to liquidate anything. It’s really just a drag on wealth creation, which some people consider advantageous and others, not.

The genuinely BIG STUPID aspect of that particular method of taxation is that it uses a fixed assumption of 4% (annually) instead of a variable formula that takes into account, say, prevailing interest rates, or a real estate valuation index, or an equity market valuation index (or maybe the most applicable of those depending on asset class?). Like maybe the government would want to make it so the taxpayer isn’t forced to liquidate assets during an economic downturn. But as legislated there, your partner, the government, acts like an insolent pig who bears none of downside risks of the market. BRILLIANT!!!

[JasonT20]

Of course, to the extent that your gains exceed that, you don’t have to liquidate anything. It’s really just a drag on wealth creation, which some people consider advantageous and others, not.

So, it is no different than other taxes then, that it is "a drag on wealth creation?"

You can make an argument against any form of taxation with this as a premise. The point is always to raise the needed revenue in an efficient way that has the fewest and least distorting perverse incentives. Some people's objection always comes down to that first part though - raising the needed revenue.

[Bwaaah]

"The point is always to raise the needed revenue in an efficient way that has the fewest and least distorting perverse incentives."

I agree with that.

You ignored my second paragraph, which describes the particularly perverse method employed in the Netherlands taxation scheme. But, yes, all taxes can be seen as a drag on wealth creation. There are also benefits to taxation, such as to reallocate individual capital for collective benefit, e.g. defense (and numerous other purposes, in my belief).

[JasonT20]

Sorry for ignoring your explanation. I think assuming some sort of average rate of return would be necessary to keep compliance costs reasonable. If it becomes specific to each individual and each year to show how much their assets appreciated, that would seem to be a very large accounting burden. U.S. taxpayers already spend an enormous amount of money on tax compliance when you add in businesses and corporations. Of course, the larger businesses and high income earners don't mind so much, because they can find the loopholes and legal methods to avoid paying taxes by paying tax accountants and lawyers. They were often the ones to lobby for the tax structure we have in order to enable that.

To impose a wealth tax or something else is something that should be debated based on facts, but instead we see "It's class warfare!" vs. "Income inequality!" The problem is that detailed policy analysis is boring. Most voters either don't want to take the time or don't have the time for it, and news media gets much more engagement from emotional appeals anyway. Of course, that's a problem with modern politics generally.

There are also benefits to taxation, such as to reallocate individual capital for collective benefit, e.g. defense (and numerous other purposes, in my belief).

Thanks for that. I also apologize if I assumed you had the kind of reflexive anti-tax attitude of so many libertarian/conservative commenters here.

[Martinned2]

Or you could just pay your taxes from your income from work, your interest income, your pension income, or any other income that comes in cash.

And no, for a given amount of tax, taxing wealth rather than capital gains does not result in "a long-term decline of aggregate wealth and decline of assets available to fund future prospects". That's not how math works.

[Martinned2]

From the UK Supreme Court judgment in Manchester Ship Canal v. United Utilities Water (No 2), which was handed down this morning:

15. Bodies exercising statutory powers enjoy no dispensation from the ordinary law of tort, except in so far as statute gives it to them. Unless acting within their statutory powers, or granted some statutory immunity from suit, they are liable like any other person for trespass, nuisance, negligence and so forth: see, for example, Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180; 143 ER 414.

16. What is duly done under statutory authority is lawful action of which no-one is entitled to complain. Even if it would otherwise have been a tort, the authority conferred by Parliament renders it lawful. It is therefore necessary to distinguish between interferences with private rights which Parliament can be taken to have authorised, which are lawful, and interferences which Parliament is not to be taken to have authorised, which are unlawful. In doing so, two important and related principles have to be borne in mind.

https://www.supremecourt.uk/cases/docs/uksc-2022-0121-judgment.pdf

[Mr. Bumble]

What was the claim?

[Martinned2]

Private nuisance and trespass, for dumping untreated sewage in the canal.

[Michael P]

That sounds a lot like "they have absolute immunity for official acts, and no immunity for non-official acts", meaning that the US yet again has stronger protections for private rights.

[Martinned2]

No it doesn't. In the US the question of whether the official has complied with the law has somehow become irrelevant, while in the UK it is the only thing that matters.

[Bored Lawyer]

So Trump's lawyers wasted no time in exploiting the new decision. They filed a letter with the trial judge in NY asking leave to file a motion to vacate his conviction based on the SCOTUS immunity decision.

At first glance, I thought this was crazy -- the acts he was convicted of occurred before he was even president. However, I saw reports that the argument is that certain of Trump's tweets about Michael Cohen, which were sent when he was already president, were admitted at trial. This is what I commented on yesterday -- the hidden landmine in the decision is a ruling on evidence: immune conduct may not be introduced into evidence at a trial about non-immune conduct, such as for collateral issues. Which is contrary to many, many cases about such evidence.

This does not mean Trump has a winning argument. Those tweets would have to be found official conduct, a proposition about which I am dubious. And, the court could also rule it's harmless error in light of all the other evidence. So it's not a slam dunk by any means.

Still, it will likely buy Trump some time.

[Bored Lawyer]

BTW, the whole "leave to file a motion" thing irks me as a lawyer. The notion that a judge can prevent someone from filing a motion is counter to good practice and indeed Due Process. Merchan is by no means unique on this, but IMO, it's a bad practice.

[Mr. Bumble]

Is that "leave" just in NY courts or common in other jurisdictions (federal and state)?

[Bored Lawyer]

Many federal judges have a procedure whereby you have to write a pre-motion letter, the other side responds, and then the judge discusses it at a conference. It's meant to weed out weak motions. But the courts of appeal have made clear that a judge cannot preclude a litigant from filing a motion.

[tylertusta]

Judge Merchan has just delayed sentencing by two weeks due to Trump’s motion. I don’t know if Trump will prevail in the end, but a couple of things stand out to me as issues:

– Contrary to what you said, the actual acts that Trump was convicted of (the alteration of business records) occurred while he was President.
– Merchan allowed the prosecution to introduce evidence that is arguably immune under US v Trump and thus cannot be presented to a jury.

Judge Merchan is going to have to work through those.

[Bored Lawyer]

EVen if they were done when he was president, the notion that these entries on Trump organization books were "official conduct" of the president is laughable.

But the evidence point seems to be the main basis of the coming motion. We will see.

[tylertusta]

Correction, sentencing is now delayed to September.

[Frank Drackman]

The D's talk tough but they realize putting "45" in jail would guarantee his re-erection, now he'll have 2 more months in public to make fun of peoples in wheelchairs, call Veteran's suckers, have a slip and fall...

Frank

[JasonT20]

Merchan allowed the prosecution to introduce evidence that is arguably immune under US v Trump and thus cannot be presented to a jury.

The evidence in question is some of Trump's public statements about the whole Stormy thing while he was President, correct?

a) That is a really big stretch to call that an official act.
b) The immunity would mean that he couldn't be prosecuted for those acts, but I am unclear on why that would preclude the fact that he made those statements from being evidence in something else.
c) Was Merchan supposed to use a crystal ball to see that the Supreme Court would rule as it did? Both a) and b) would extremely weak reasons to argue that the trial was unfair to Trump.

[Ridgeway]

The other question would be whether the evidentiary portion of the ruling would be retroactive. I have a hazy recollection that the presumption is against retroactive effect in procedural matters like this.

[Mr. Bumble]

Of no particular significance:
Malika the Malz is the former Queenie's new screen name.
SarcastrO mentioned he would be vacationing and probably not posting and strangely there have been no comments from Nige.

[tylertusta]

Huh. Fascinating.

[Bwaaah]

I don’t miss the absence of so much uncompelling, auto-opposing, unsubstantial argument. How much is my rate of learning diminished by the absence of Nige or Sarcastr0? I’m trying to recall an informative time in the past against which to compare the current absence of anything. I’m coming up with assessments of near zero. Conversely, the noise to signal ratio is high for both, and but for the fact that I vest little effort in considering their posts, they’d both be a significant drag on efforts to learn here.

[Brett Bellmore]

Well, Nate Silver has updated his model now, based on the latest polling. It’s pretty ugly.

27.6% chance of Biden winning in the EC, and odds are he won’t even win the popular vote. That’s in territory where Trump would probably have substantial coat tails.

Or, to be accurate, Biden would have serious negative coat tails. Because it’s not really that Trump got any more popular, it’s that Biden’s support dropped off a cliff. And is still in free fall.

Biden would, at this point, have to challenge Trump to a 2nd debate, AND crush it, to reverse this debacle. And I think nobody really believes he has that in him.

[tylertusta]

That would give Trump coat tails except that some of the same polling shows the Democratic Senate nominees ahead of their Republican opponents.

We might see some significant ticket splitting.

[Brett Bellmore]

Interesting. As a paywalled report, of course, I haven't seen it.

I wouldn't be shocked; Republicans in general have not given their voters a lot of reason to be enthusiastic. Particularly in the Senate. "The other side is worse!" has its limits as a campaign strategy.

[Bwaaah]

I'm figuring it'll be about 10 days from Thursday's sensational debate before I'll feel some confidence in where people have settled, and how much, if any, positions have changed. There's much ado, but lastingly, of what?

More interesting to me, at this point, is whether or not they're going to stick with their horse. It's hard to imagine there's much unspent spunk in Biden, and the best possible outlook would be him successfully holding his ground. But I don't know how they can know they're not watching an old guy trying to swim his way out of quicksand. ("I know I can...I know I can...I think I can...I...")

Down ballot prognostication is even further beyond my range of confidence. I got nothing.

Call me sluggish and unenlightening.

[WuzYoungOnceToo]

Biden would, at this point, have to challenge Trump to a 2nd debate, AND crush it, to reverse this debacle.

AND get Trump to accept such a challenge, which Trump could easily decline by saying that he doesn't want to put the current POTUS' cognitive decline on display to the world any more.

[Michael P]

I think Trump would accept a challenge to a second debate. If Biden shows some sudden improvement in cognitive capacity, having it would look fearful or weak. If Biden doesn't show such an increase, everyone expects that Biden will do at least as poorly in the next debate.

[Brett Bellmore]

I'm pretty sure he'd accept it, because he's got a low opinion of Biden to begin with, and no reason at all to think that debate performance was a one time thing. It would be the perfect opportunity to hammer the coffin nails home.

[JasonT20]

Absolutely. Trump can be guaranteed to do something that will benefit him, just as he avoids things that don't. Such as, debating any of his primary challengers. Why give them the extra attention and publicity? He was already getting more free air time than they could ever buy just by virtue of being the ratings-magnet he is.

[Brett Bellmore]

Well, that's not just a Trump thing. Nobody debates their opponent if the race is nowhere near close; There's no upside, only downside. You debate when there's enough potential movement that you're taking a risk if you don't.

[JasonT20]

In Aug. 23, when the first primary debate was held, Trump was polling ~50-60 of Republicans likely voters. (About the same in polls that looked at registered voters)

While no one opponent was close, that was 40-50% of Republican voters that wanted an alternative. Trump wasn't going to give any of his opponents a platform with Trump on it. The ratings of the debates were undoubtedly a lot lower without Trump, and thus a they got a lot less attention.

Was all of this a smart strategy? Sure. But it also fits with Trump's personality. He didn't want to share the spotlight that he believed he was owed; he didn't want to face criticism from multiple directions at once or questions he couldn't control. Republican candidates might actually contradict him on air, and some voters might think to look into it further and realize how little truth he speaks in such situations.

It all speaks to his deep insecurity and need to maintain his image.

[WuzYoungOnceToo]

Was all of this a smart strategy? Sure. But it also fits with Trump’s personality.

So, he did the smart thing...like any other smart individual would...but because it was also consistent with character defects you accuse him of.....what, exactly?

[JasonT20]

Keep in mind that it is only a "smart strategy" because the majority of Republican primary voters didn't seem to care that he dodged debating his challengers. Any other candidate ducks debates in the way Trump did and it would hurt them by making them look afraid to debate opponents. But, to Trump supporters, his character defects function like virtues.

[JasonT20]

But hey, this comment of Brett's that I replied to came hours after my last reply to his claims about Jan. 6 above. It seems Brett and Trump both have avoidance issues.

[Brett Bellmore]

Well, in lieu of another debate, Biden has decided to do a sit down interview with somebody guaranteed to throw softballs.

Not live, of course. Recorded. They'll have time to cut out any embarrassing senior moments before the public sees it.

Seriously, I doubt this will staunch the bleeding. Any bets on how many camera cuts per minute they'll need to make him look coherent? His video challenging Trump to the debate lasted 13 seconds and had five jump cuts to conceal retakes.

[David Nieporent]

In lieu of? The candidates agreed on a debate schedule months ago. Another debate is scheduled; Biden hasn't backed out of it.

[Brett Bellmore]

Probably more honest to say, "If Trump wins, we will cause chaos."

Democratic lawyers get ready: ‘If Trump wins, there will be chaos’

They're not planning on letting him actually BE President, just because he wins some stupid election.

[Brett Bellmore]

Incidentally, here's that 2025 project they're horrified by:

2025 mandate for leadership

I've only scanned it briefly, but I've yet to find anything objectionable.