In an unsurprising turn of events, the DC Circuit Court has ruled that Donald Trump doesn't have legal immunity for anything he happens to have done while president. Trump's lawyers continue to assert that this means "every future president who leaves office will be immediately indicted by the opposing party," but the court put quick work to that:
The interest in criminal accountability, held by both the public and the Executive Branch, outweighs the potential risks of chilling Presidential action and permitting vexatious litigation.... We cannot presume that a President will be unduly cowed by the prospect of post-Presidency criminal liability any more than a juror would be influenced by the prospect of post-deliberation criminal liability, or an executive aide would be quieted by the prospect of the disclosure of communications in a criminal prosecution.
In other words, lots of people are responsible for their actions and things seem to work out fine anyway. They'll work out for ex-presidents too.
The next step is the Supreme Court, of course, where I expect an 8-1 decision against Trump, with only Sam Alito dissenting. We'll see.
what are the chances the SC decides to NOT hear the appeal?
Probably pretty good. It’s an absurd case and one has to believe at least some of the supremes are tired of getting beaten up in the press. Smarter just to duck this one.
I think they deny cert and let the decision stand. They are going to defy the Constitution and allow Trump on the ballot nationwide. They need to look a little less awful, and letting the appeals court decision stand helps with that.
Sounds right to me. When you know you're a hack you learn to cover your tracks in advance.
That seems likely to me as well, although I'm not sure how they are going to sugar-coat a rejection of the 14th Amendment case. Every argument I've heard stinks to high heaven with partisanship. Not that it matters anymore.
Interestingly, someone I know who is a GOP beltway insider thinks it's 50:50 that SCOTUS will affirm Colorado and bar trump from the ballot. The reason? Because Biden might beat trump, but Haley would beat Biden easily. His opinion, not mine.
I know who is a GOP beltway insider thinks it's 50:50 that SCOTUS will affirm Colorado and bar trump from the ballot. The reason? Because Biden might beat trump, but Haley would beat Biden easily.
I don't think your friend has thought this through. If Trump is thrown off the ballot by SCOTUS, Trump will absolutely do everthing in his power to disrupt Haley's campaign—and maybe even put up a MAGA candidate to run in his stead in the hopes the election gets thrown into the House.He's desperate. And maximally vindictive by nature. He won't allow another Republican prevail. I think for this reason the Supreme Court—if it ultimately decides this case based on the likely political effect on the GOP—will strike down the attempt to keep Trump off the ballot.
Neal Katyal on MSNBC says there's a very good chance -- given the thoroughness and the unanimity of the decision -- that SCOTUS will refuse to hear an appeal.
I'd expect them deny cert.
The three "liberals" will obviously affirm. Five out of the other six are cautious enough to know better than to touch this; three of those probably even agree with the underlying decision.
I think there's a pretty good chance the Supreme Court denies cert. There's an easy out here--this is an interlocutory appeal before trial, which is rarely appropriate. It's fairly easy for them to say, "Come back after the trial takes place."
Remember, the Trump Three owe their position to Leonard Leo, not Trump himself. They didn't rule in his favor on his numerous election challenges. I don't think they want the headache of overturning an obviously correct legal decision from the D.C. Circuit when they could easily punt it.
...But they delayed it enough to make the lower court judge delay the actual hearing.
Yup. And it will drag out more, including SCOTUS dragging their feet.
They pumped this immaculate decision out in 4 weeks which is extremely rare for highly consequential cases. In four weeks, they crafted a decision that is impenetrable for the most biased SCOTUS jurists -- IOW Thomas and Alito -- to pierce. SCOTUS won't take it up.
your scotus optimism is impressive. i'd lean scotus upholds the circuit court, but 7-2 at best and i wouldn't be at all shocked if it went the other way.
Yup to both. No way Thomas votes against TFG.
No. They won't grant certiorari.
"every future president who leaves office will be immediately indicted by the opposing party"
Which sounds like a threat to me, from the guy who previously weaponized the power of government against his opponents and threatens to do it again. And one important way to address that possibility is to prosecute him for his crimes so that he doesn't get the opportunity to immediately indict the opposing party.
Out of 46 presidents, only one has had a problem. Sounds like it’s more an issue related to the individual involved than a systemic issue.
Yeah. It's impossible to look at American history and imagine that previous presidents felt particularly constrained by the absence of Trump's made-up "absolute immunity" for their actions.
"every future president who leaves office will be immediately indicted by the opposing party"
If they have committed dozens and dozens of felonies, including theft of classified material, insurrection, and attempting to prevent Congress from carrying out its constitutional duties, yes, I guess so.
Trump thinks everyone thinks like him, which is yet another sign of his raging narcissism and profound idiocy.
"every future president who leaves office will be immediately indicted by the opposing party" is just one word away from true:
"every future Democratic president who leaves office will be immediately indicted by the opposing party"
I'm with kahner, a Supreme ruling will be at best 7-2, with Thomas' dissent declaring that everything a Republican President does is legal, everything a Democratic President does is illegal.
For him to make that declaration would be refreshingly honest on his part, wouldn't it? But I think even Mr. Justice Thomas is a little more circumspect than that.
Mrs. Justice Thomas is a full-on "stolen election" lunatic. Do you really think that Clarence just rolls his eyes whenever, round the dinner table in a luxury RV, Ginny starts in on how Trump is the *real* president, and says "Well, honey, we'll just have to agree to disagree?"
Or do you think it's likely that Justice Thomas is _also_ a maga weirdo convinced that Trump was robbed by a Biden-led conspiracy? And that Thomas maybe inwardly muses that perhaps it's up to a heroic 6-3 conservative SCOTUS majority to set things right?
I don't doubt for a minute this is how Thomas thinks. He needs to get three other justices on board with him, though, to hear the case and as I noted below, I really don't see that happening.
Agreed. Just a note of caution that it's far from a safe assumption that the Justices are part of the reality-based community, or would act as if they were.
After all, Kavanaugh does seem to think that the president is a king (and his screeching and weeping about the reaping of whirlwinds during his confirmation hearing ought to make folks nervous, too), and who knows what the rest of them really think.
Would the president be immune if he had all nine justices executed?
It won’t happen, given that the only President the US has for the next year is a Democrat.
My bet is the court won't take the case and let the ruling stand. At least four justices have to agree to hear it and, as others have said, Alito and Thomas are probably the only two who would look forward to declaring that the US President (only when a Republican, of course) is completely above the law. From what I've been reading this morning, however, the unanimous decision (including one quite conservative Reagan-appointed judge who had previously made some Trump-friendly rulings) looks pretty damn airtight. I'm having a tough time imagining what legal question in there still seems ambiguous or unclear. But, again, Alito and Thomas are shameless hacks, not jurists, so I'm sure they'll come up with something.
The early comment seems to agree that the way this opinion was written gives SCOTUS plenty of room to take a pass. It's unsigned per curiam, too, meaning they all agree on all aspects and take equal responsibility (apparently per curiam is unusual in a high-stakes case). So that path is there if the other 7 want to let it lie (agreed about the Craptastic Duo).
OTOH, some of them might think such an important issue can't be let slide without their imprint, some might want to delay Chutkan again, and a couple of the liberals could think that as long as they're probably not going to throw trump off the ballot as he deserves, it would be a good idea to let all the monarchists on the court expose themselves as much as possible.
Still, I don't see any of those possibilities adding up to 4 votes to take the case, especially given that there's no controversy among the three circuit judges, and I think you're right about where this goes.
(I think Henderson was a GHW Bush appointment, and apparently she's had her chambers in SC all this time.)
I think it is a good possibility that, while they might ultimately vote against immunity, four of the Republican judges will agree to hear the case, in order to delay prosecution.
I mean, it is the least they can do for TFG and the GOP that appointed them. Of course, I hope that I am wrong.
it will take five votes to delay the trial, not four. four will grant cert, but the trial will proceed as it normally would because the case has been "mandated" back to the trial court. the fifth vote is needed to stay the mandate.
I found the Trump team's assertion that the only way a President should be open to prosecution is first through an impeachment and conviction to be kind of weird if explored to its furthest ends. That would theoretically allow Joe Biden to shoot Trump in the face on 5th Avenue and get completely away with it if enough Dem Senators were down with it.
And lots of Dem senators WOULD be down with it!
It would also allow Joe Biden to shoot Trump in the face and then announce plans to shoot anybody in the Senate who might think about voting to convict.
And that's even before you get into the concept of the president pardoning the president, which Trump thinks the president can do.
Yes. Or just have the entire Senate detained indefinitely without charges.
As with so many things, because Trump is dumber than a sack of particularly idiotic rocks, he takes someting he heard or was told at some point and ignorantly extrapolates upon it in all sorts of ridiculous ways. So he must of picked up on someone talking about how the President cannot be prosecuted for a crime unless first removed from office via impeachment. Of course that applies to *sitting* presidents, and moreover only on the basis of a DOJ policy memo, not decided law. As the 9th circuit decision states, once he's out of office, he's "citizen Trump" now and must face the music. Presidents are not kings.
I'll just add that, as he was removed from the tumbrel and led to the guillotine, Louis XVI was addressed by the executioner as "Citoyen Louis Capet".
Trump's team asserts the only way a president should be open to prosecution is first through an impeachment and conviction, but the Republicans were adamant during Trump's last impeachment he could not be convicted because he was no longer president. Sounds like royal immunity for expresidents.
It's not hard to imagine a Trump DOJ trying to indict Biden for everything under the sun.
It's also pretty easy to imagine jurors rolling their eyes.
Trump has already promised to appoint a special prosecutor to go after Biden, making a mockery of his "presidential immunity" crap.
I'm imagining Mike Flynn dressed up in a (Trump Hotels-branded) gold and bejeweled purple cassock and a mitre with the title of Supreme Grand Inquisitor or something.
Doing so requires grand jury review. Going against the grand jury, repeatedly, has consequences. Lawyers who consistently do stupid things despite being told to stop, will have their license to practice law reviewed.
Trump's lawyers have a point when they assert that:
"every future president who leaves office will be immediately indicted by the opposing party"
except they omitted a few words. The correct argument is:
"every future president who behaves like Trump did, and subsequently leaves office will be immediately indicted by the opposing party"
"indicted by the opposing party"
Even that is too friendly to Trump's framing, and implicity adopts his stupid and bad faith argument. The justice system is, by intention and construction, non-partisan. There isn't an "opposing party" US Attorney--just the Department of Justice.
You are right. "Opposing party" frames it as political retribution. I was focused on Trump's argument that future presidents will behave like he did: commit multiple crimes while in office and afterwards.
TrumpCo is arguing that "Everyone will be prosecuted" without the necessary qualifier "Everyone *who commit crimes* will be prosecuted".
In keeping with the "Every Accusation is Always a Confession" theory of Trump's mindset and behavior, he simply assumes that any Democrat will politicize the DOJ the way he did/wanted to, and so any prosecution of a Republican will be, by definition, an unjustified partisan witchhunt.
The idea the presidency presumptively involves criminal activity does pretty well accord with the conservative view of public office.
When they say "Deep State," they've always meant "Rule of Law."
There are times when cynicism is warranted -- like climate change action (or rather, a lack thereof) -- but this is not one of those times. You would be hard-pressed to find a good constitutional lawyer who will find reasons for SCOTUS to grant certiorari.
This opinion is rock solid, and includes a tiny swipe at the notion that the President is not an officer, by citing Kavanaugh no less.
Trump broke laws. No man is above the law. End of issue.
There's a nod to an opinion by Scalia in there, too, pointing to a logical fallacy that "because P implies Q, not-P also implies not-Q." Trump's lawyers argued that the president can only be criminally prosecuted if also successfully convicted via impeachment. The court rejected this, pointing out that while the Impeachment Clause stipulates that an impeached official is also subject to additional criminal prosecution, it does not necessarily follow that *only* impeached officials may be prosecuted.
Trump's lawyers were too clever by half on this one, getting slapped down with a reference to Scalia, no less. Lol.
That was the oddest, irreconcilable argument Trump offered.
As the opinion noted, Trump conceded that a President can be tried, even while Trump claimed a President had absolute immunity from prosecution.
Not only that, at the same time, they were also trying to argue that you *couldn't* prosecute an impeached president because it would be double jeopardy. That was completely insane, as the court pointed out, because impeachment can't result in a criminal penalty.
You can't make this shit up.
Trump's DC circuit appeal was heard by a three-judge panel. Wouldn't Team Trump -- whose preferred legal tactic is delay -- now ask for a hearing of the same appeal by the full court? This will stall things for a few more weeks, and they'll still have the option of appealing to the Supremes.
Trump could petition for a rehearing en banc, yes. The DC Circuit could very quickly deny the petition, though--the mere filing of the petition does not obligate the Circuit Court to undergo any particular process.
@aldoushickman
Thanks. I assumed the wheels of the federal judicial bureaucracy would turn very slowly when they are facing a "consequential" request from such an "important" personage.
Adding to what @aldoushickman said, this ruling continues keeping everything in Chutkan's court on hold until next Monday, but after that the hold will continue only if trump's lawyers submit a notice that they're going to appeal to SCOTUS.
So the way I understand it, they *can* petition for an en banc circuit court review, but it wouldn't necessarily gain them any time-- the full circuit would have to accept the case and then issue its own stay. And that's a crapshoot because it leaves open the chance that Chutkan can get the ball rolling again next Tuesday while the circuit makes up its mind about taking the appeal.