I have a question for the originalists on the U.S. Supreme Court (Thomas and Alito) and textualists (Gorsuch): where in the Constitution does it say that the president is immune from prosecution (partial or full immunity)?–RWH
A Question for Some Supreme Court Justices
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103 responses to “A Question for Some Supreme Court Justices”
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Dick: What do you think their answer will be?
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The “constitution” provides other remedies for Presidential
misconduct – impeachment and removal via elections. The nature of the job requires some leeway to provide for difficult decisions, in the nation’s interest, which may have unresolved legal issues.Nelson Fegley
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Can the President violate office sexual harassment rules in place for all government employees?
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Yes. See Clinton, William Jefferson
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It were a Republican appointee and female judge who said, “even if everything the plaintiff stipulates is true, it does not constitute sexual harassment as stated in the law,” or words to that effect.
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It does not specifically allow for felony convictions and incarceration for criminal acts – it also does not provide immunity to the officeholder from facing charges for criminal actions.
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That’s HR, not criminal.
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Is this blog now covering national politics?
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Tom Cotton is a Harvard Law School graduate. Clear?
It’s not so much that the courts were stacked with conservative judges, but rather that the ABA accredited law schools have a minimum GPA of 2.2 that created so many conservative judges in the first place.
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Stacked? From what I read Trump got 245 judges in and to date Biden has almost 200. Do you have information to share about law school grade distribution by political affiliations?
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Okay, now do Bush and Obama. But 6 out of 9 that count is stacked.
Nah, just making the assumption that GPA correlates with IQ, ergo…
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Okay, now do Bush and Obama. But 6 out of 9 that count is stacked.
Nah, just making the assumption that GPA correlates with IQ, ergo…
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You increase the Supreme Court from 9 to 11 or more, as many Dems suggested, that’s stacking. Not filling open positions.
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Garland.
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That of course was a Senate action, not Trump. Want to go down that road, lets add Bork.
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That was Nixon.
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Bork was nominated by Reagan, and was “Borked”. First of several Republican nominees who went through hell thanks to activist Dem’s.
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Why was Bork borked? What was his role in the Saturday Night Massacre?
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Too long ago on Saturday night massacre…I was in high school.
But Bork was on the Appeals court, nominated long after Nixon resigned, so any role in that should not have been a factor.
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Really? Is that the rule?
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When it comes to any Supreme Court nominee there are apparently no rules. But if you sail through the Appeals court, it should be a factor.
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Until it isn’t.
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well, for the GOP and Conservatives, sure….
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Wreath
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Garnish.
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Ketchup
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That’s changing the subject.
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garnish “To decorate (prepared food or drink) with small colorful or savory items”
It seemed to fit, would parsley work better?
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Hell, a bowling ball could fit that definition!
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Some of the more colorful ones certainly could, plain old 16 lb black beauties, not so much. Is that a bowling ball or an olive on your salad?
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She asked.
Virginia politics and public policy is still (I hope) the primary function of the blog. National politics tends to seep in. My violation of my self-imposed rule to stay away from national politics was instigated, I think, by comparing the Virginia Supreme Court’s insistence on sticking to the letter of the law, which I pointed out in a recent article, with the eagerness of the “conservatives” on the U.S Supreme Court, who profess to stick by the original meaning of the consitutions and the strict words of that document, to ignore Trump’s actions and proceed to read things into the constitution that are not there. “We are writing a rule for the ages.” Gorsuch declared. That sounds like something an activist Justice would say, rather than one who insists on adhering to the language in the constitution.
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yes.. ” we are writing rules” – sounds way different than what the Constitution says (or not).
I always thought Sotomayor blew an opportunity to ask Sauer, “If the President sent ST-6 here with orders to kill the Catholic justices, would that be an official act?”
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There would not be enough justices left to form a quorum to provide a ruling.
Here is the current “constitution”. 2970 pages. Enjoy!
We amend the constitution regularly…
https://www.govinfo.gov/content/pkg/GPO-CONAN-2022/pdf/GPO-CONAN-2022-1.pdf
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No way that’s official. The 2nd page doesn’t have the official “This Page Intentionally Blank”.
It must be in one of those penumbras.
When Brad (his I Wava Flag frat name) Kavenaugh blew off the facts of the case to pontificate, textualism left the court.
Biden should show off his ability at snark and order ST-6 to the Supreme Court with a message for the justices, to wit: “The President sent us here with official orders and to await the opinion on criminal immunity before executing them.”
As long as we’re pontificating…
If a President, any President, asks the leader of a foreign country to investigate an American citizen, is that an official act?
Now, before you answer consider that legal cooperation agreements between the US and other countries specifically reserves that authority for the AG. Go ahead pull one up and check. They’re all the same, and they all stipulate that ONLY the AG can seek foreign investigations.
Now, why is that?
Article II Section 3.5.1, affirmed in Mississippi v. Johnson.
The crux will be what’s considered official acts and also set precedent for future POTUS’s. However, you’re only stuck on Trump and can’t separate the argument, because you’re a partisan.
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Rather than deal with substance, you are content to call a person with whom you disagree a partisan and think that is a sufficient argument.
The case you cited dealt with the separation of powers, holding that the court could not prevent the President from carrying out official acts set out in legislation. That is a far cry from saying a President is immune from prosecution for criminal acts.
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Rather than deal with substance, you are content to call a person with whom you disagree a partisan and think that is a sufficient argument.
The case you cited dealt with the separation of powers, holding that the court could not prevent the President from carrying out official acts set out in legislation. That is a far cry from saying a President is immune from prosecution for criminal acts.
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Not just a far cry. A real question is can an official act be conducted in a criminal manner?
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That is a conclusion Mueller refused to draw. He left it to Barr and Mr. Peepers. They said not for Trump’s acts, with firing Comey being one specific example.
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“Rather than deal with substance, you are content to call a person with whom you disagree a partisan and think that is a sufficient argument.”
I think you need to look at your comment history before you make statements like that.
I also did “address” your “substance”, it just wasn’t what you wanted to hear.
You also might want to reread Missippi v Johnson because you haven’t even touched on what it stated.
A Presidents immunity is hinged upon official acts as that office holder as I stated in my comment which you didn’t completly read, shocked.
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I read it. I just don’t understand the basis of it. The Supreme Court case dealt with the Reconstruction Acts, an act of Congress. The court explicitly said that it would restrict its consideration to the question of whether a president can be restrained from carrying out an act of Congress “without expressing any opinion on the broader issues discussed in argument whether, in any case, the President of the United States may be required, by the process of this court, to perform a purely ministerial act under a positive law, or may be held amenable, in any case otherwise than by impeachment for crime.” It punted on the question of immunity.
The current case before the court deals with whether the constitution provides the president immunity from criminal prosecution. Where does that document say the president is immunity from criminal prosceution, for official acts or otherwise? Do you agree with Trump’s claim that the President, in an official order, could cause an American citizen to be assassinated and not be held criminally accountable?
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“I read it. I just don’t understand the basis of it. ”
Question:
“Could the Supreme Court constitutionally issue an injunction directed against the President?”Conclusion:
“In a unanimous decision, the Court held that it had “no jurisdiction of a bill to enjoin the President in the performance of his official duties….” The Court held that the duties of the President as required by the Reconstruction Acts were “in no sense ministerial,” and that a judicial attempt to interfere with the performance of such duties would be “an absurd and excessive extravagance.” The Court noted that if the President chose to ignore the injunction, the judiciary would be unable to enforce the order.”President’s official duties are not subject to judicial review (immunity). Otherwise Bush 43 would’ve been tried for rendition. To answer your question:
“Do you agree with Trump’s claim that the President, in an official order, could cause an American citizen to be assassinated and not be held criminally accountable?”
It’s already occurred, otherwise Obama would’ve been tried for extrajudicial killing of an American citizen.
The question, which the lower court didn’t expound, was the definition of an official act. Given a POTUS is on duty 24/7, 365 up until the next is inaugurated. That is a question that much he answered.
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Yawn…
Where does it say anything about killing babies?
The remedy is impeachment. If we had a moral people in the Congress who cared about the country and not just political power, the members would remove the President and all the corrupt Judges and corrupt Cabinet officials when appropriate. But what the Dems are doing in their blind hatred is so very dangerous. Let’s prosecute Obama for droning Americans. Let’s prosecute SlowJoe for the illegal alien invasion. Pandora’s box. Save our democracy!!!! (By destroying all norms)
It’ll be 7-2, or 8-1, a majority opinion filled with lots of flowery language establishing that no man, not even the President, is above the law. The important thing will be the minority opinion, written with all deliberate slowness, effectively delaying any federal action and saying, “but this one man is.”
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indeed… let the lower courts “decide” then in due time, we’ll agree with them or not. In the meantime, if this guy gets elected.. we’ll agree
that he will be a “Supreme” leader.
Not since Dubya called for a ban on human-animal hybrids has there been such a compelling need to solve a problem that doesn’t exist.
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So, did congress follow through on the ban?
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Has the SCOTUS followed through on this non problem? Yet? There was a Senate bill in 2009, then again in 2021 and 2023. Hey, keeps couple of ‘em busy coming up with solutions to non-problems rather than coming non-solutions to real problems.
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So they have not banned animal-human hybrids yet. That’s a relief.
Otherwise I’d need to find a whole bunch of Pentobarbital sodium, a large refrigerated truck, an abandoned piece of property, and a back hoe – in very short order…
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What are you doing in that barn out back?
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Wouldn’t you like to know…
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What was Duhbya’s daddy?
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Oh… I never thought about it that way. I just figured his dad for extreme courage and poor eyesight.
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and as Nancy Reagan tagged him as “Old Whiny”. Courage, living with Barbara?
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Aye. Could you do it?
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No!
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Ya must’ve been a beautiful baby,
But look at what’s happened since then. -
Everybody gets old.
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If we’re lucky.
What’s that pic, about 1940?
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If we’re lucky.
What’s that pic, about 1940?
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Not me. I just fade away… (GRIN)
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Discussion of presidential immunity starts on page 829 (page 839 of the pdf file) in the June 30, 2022, Constitution of the United States Analysis and Interpretation (referenced by SudleySpr, above). Using the link he/she posted, I could only get to the cover page.
Here is a link to a pdf file of the entire document (assuming it works, that is):
https://www.govinfo.gov/content/pkg/GPO-CONAN-2022/pdf/GPO-CONAN-2022.pdf
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There are some problems with such documents. They’re OBE as they are being written, and they are a collection of laws/constitution “rules” and then both legal opinions and lawyer opinions.
These later two are comprised of appeals, bench rulings, which carry weight, and things like OLC advice, which carries only the weight of avoiding court. For example, the OLC ruling on torture (Jack Who?) and “can’t indict a sitting President (yeah? Says who?).
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That section deals primarily with civil suits and impeachment. It does not discuss directly criminal prosecution of a president or the president’s possible immunity for criminal prosecution.
I think it would be reasonable to hold that a president is immune to criminal prosecution for actions in some circumstances. (Ordering the assassination of a political rival would not be one of those instances.) However, that issue is not addressed in the Constitution and would require that the Supreme Court delineate the boundaries, based on reasoning flowing from the construct of the Constitution itself and on common-sense considerations. My point in raising this question is to make clear that originalism or textualism is not an adequate way to approach constitutional interpretation. Furthermore, the justices who so adamantly champion these approaches (Thomas, Alito, and Gorsuch), instead of saying that, since the Constitution is silent, the President must not have criminal immunity, are engaging in the same sort of reasoning, “we are creating a rule for the ages”, in order to reach a result they favor tht they often disparage their colleagues of using.
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Their argument could be that the Constitution specifies the remedy for Presidential wrong doing, impeachment, therefore he’s immune from everything else.
That’s not an argument I would make, but it would fit the textualist’s context.
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I would think step one, easy these days, is to find the briefs on the case which are bound to cover the history and precedents. The entire string above includes nothing of value, no disrespect intended. Those on both sides are skating on very thin ice with the precedents they are seeking to set. Having destroyed American confidence in elections, the rabid left is now destroying the last semblance of confidence in the judicial system. The mockery, star chamber persecution the State of New York is conducting is just an election tactic, and a truly despicable one. Only the Jan 6 case has any real merit, and even that is just a game since the verdict on January 6 will be delivered this November. It determined my vote. But in overreaching and proving they have no respect for law, the Democrats have put Trump in a commanding position.
Given how cynical many of the founders were, with Hamilton and Madison leading the pack, it is hard to imagine they intended a president to be above the law and free to commit crimes. And history is filled with examples of people around the president, staff etc, who are fully subject to criminal law. Nixon didn’t order any break-ins or conduct any break-ins, for example, but those on his staff who did were jailed. Jailed. Then Nixon was impeached and pardoned before trial, which was likely to follow. Trump was impeached once for Jan. 6 and should have been, but they didn’t have the goods on him and he was acquitted. Double jeopardy is clearly prevented in the Constitution. No charges should have been brought until they had all the evidence, had tried his co-conspirators. They screwed up charging him then.
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Having read the appellate decision now I think, in answer to Dick’s question, nowhere in the Constitution is such immunity granted and there is no court precedent for it, either. There is a SOTUS decision on civil immunity, not criminal. This is a case of first impression. Trump isn’t going to like the ruling.
Even the most rabid of you are going to regret the weaponization of the criminal code for purely partisan gamesmanship. It truly is very, very easy to indict anybody for anything. Not convict, indict, but as the trial now underway proves, a bull%$#t case heading for an acquittal can still destroy the defendant. If paying off bimbos is an illegal campaign expense, so is running a kangaroo court.
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So much for the affable lobbyist. Because falsifying records in the furtherance of a felony is for little people.
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You are not that stupid. You just think the rest of America is. It isn’t.
You are going to enjoy the second term just as much as I will. My thanks to you and yours for giving it to him. It is all on you for creating a martyr out of a monster. The only solace is a second Biden term would also be a horror show.
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Blaming Trump on the Dems… wow!
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Half of America is just that stupid. That’s the definition of average intelligence.
Trump has said what he intends to do. Biden may cost me money, but Trump will destroy everything. It’s what he do.
And you’re not so naive as to believe he’ll surround himself with “better angels” this time.
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Demented Old Joe and Giggles won’t surround themselves with ‘better angels’ next time any more than they have this time. 3rd rate retreads out of the Obama and Clinton crowds like Blinken, Sullivan, Yellen, Biden, et al are a disaster.
The problem is both Trump and Biden are horror shows. More than half of America knows that and wants them both to go away and give us real candidates.
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It’s bad news for sure when the good news is “a horror show”.
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“rabid” is an interesting term when speaking of politics, the GOP and their fealty to Trump!
But even if I thought the New York trial was a complete weaponized farce, it would not move the needle on whether I thought Trump fit to lead the country … and you neither I suspect so exactly who, not already in love with Trump would be motivated to change and vote for him because of the NY “weaponization”?
truthful answer please.
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So you don’t trust Juries either?
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What does sovereign immunity have to do with any of this (or not)?
If Nixon had not resigned. What would he have been charged with?
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Sovereign immunity relates to the ability of a citizen to sue the government for civil damages.
A grand jury was considering the following charges against Nixon: bribery, conspiracy, obstruction of justice, and obstruction of a criminal investigation.
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“If paying off bimbos is an illegal campaign expense…”
Its is not the paying off of Stormy, it is the falsifying of business records to cover it up. You really think that is acceptable and no one should be held accountable for such a crime?
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Bragg has charged each step in the accounting process that is itself mandated by GAAP as a felony. If you read the indictment there are at least 7 felonies charged for each invoice processed. It is bizarre beyond belief.
Booking the invoice is a felony? Debiting an expense account is another felony? Crediting Accounts Payable is another felony? Selecting it for payment is another felony? Debiting Accounts Payable is another felony? Crediting Cash is another felony? Writing the check and check register is another felony? https://www.politico.com/f/?id=00000187-4d9a-dc00-a3d7-4d9f97b40000
One charge for each invoice processed/check written would be understandable (but previously rejected for prosecution by the DOJ). 7 felonies for each one that was under NY law a misdemeanor and already beyond the statute of limitations is sheer partisan lunacy.
It is a misbegotten course, like removing the filibuster for judicial nominees, that the Dems will live to regret. What goes around comes around, and this one will be a stinker.
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“One charge for each invoice processed/check written would be understandable (but previously rejected for prosecution by the DOJ). 7 felonies for each one that was under NY law a misdemeanor…”
The very fact that he committed the misdemeanor offense multiple times over the course of… what was it… a year (the original falsification and each subsequent payment to Cohen) is what makes it a felony under NY law (which is pretty explicit in this regard). Again, why have a law if we don’t prosecute people for the act they are guilty of? I don’t care who it is… Biden, Obama, Bush, Harris, Trump… makes absolutely no difference to me. These charges require intent and it is pretty clear that he intended to cover up an offense with fraud. These are not simple paperwork errors. If one does not want to be prosecuted for criminal actions, the way to avoid it is to not commit the crime. That should be the only way, imo.
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What makes falsification a felony under New York law is not that it was repeated, but that it was in furtherance of another crime. The theory in this case is that the other crime was influencing an election.
It was a federal election, not state and the Feds had already looked at it and decided there were no grounds to prosecute.
It is also just a theory that it was falsification. Trump’s payments (and acts) were stinky, but arguably personal and not criminal. They were protection of his TV brand and marriage, not purely political. If that is the case then the general ledger postings were not false.
So no it is not “pretty clear that he intended to cover up an offense with fraud.”
Even if it was purely political and a campaign contribution, there is no excuse for the other 6 felony charges for each transaction. Posting the expense line item to Legal Expenses rather than Campaign Contributions may have been wrong, but how is posting to accounts payable a felony, or crediting cash, or writing a check register. Those are all accounting steps required by GAAP (Generally Accepted Accounting Practices).
I don’t like Trump at all, but this is a garbage prosecution.
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It is not unusual for prosecutors to pile up charges like this–several charges for a single act. In fact, that is their usual route. It gives them more leverage in plea bargaining. It is not a tactic I like.
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The practice of individual charging is unique to only NY.
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Nice analysis.
Seems likely the court will find immunity for official acts, as it did with civil liability, and send it back to the District Court to establish which acts were Presidential and which were personal. That process will likely push the trial back past November.
The classified documents charges have some merit, and Trump stupidly handed those to the Dems on a silver platter. But, letting Demented Old Joe off the hook for the same crimes, repeatedly committed over 40 years, due to his dementia makes it awkward to prosecute Trump for them. Then there is the underlying question of whether the Espionage Act itself is Constitutional, there is some doubt about that.
Even the most rabid of you are going to regret the weaponization of the criminal code for purely partisan gamesmanship. Absolutely!
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Nothing instills confidence than fake and contingent electors. Damn those Democrats for winning the vote count thus making the Republicans come up with REAL voter fraud.
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There’s good arguments to be made about Trump’s pursuit of votes, but the contingent electors is not one of them.
The date and place of elector selection is fixed in law. If electors are not selected there and then they ain’t electors. Trump’s vote contests were still being adjudicated on elector selection day. It the contingent electors had not been selected on that day they would not have existed or been available had his appeals been upheld.
Trump lost and the contingent electors were not either presented or seated. Hard to see how that is criminal.
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It’s called fraud.
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Or not, we’ll see what the jury decides. It’s another of those things that was legal until it was charged as RICO.
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In what other instance has a panel of alternative electors, who were not part of the official ballot, sent in sworn statements that they are the “real” elctors? RICO is being used by the Georgia prosecutor, but not in places like Michigan.
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1960 in Hawaii for one. “the Hawaii Democrats used virtually the same language that the false Trump electors in five states used in their effort to upend the 2020 race.” https://www.politico.com/news/2022/02/07/1960-electoral-college-certificates-false-trump-electors-00006186
The requirements for selecting electors are absolute on time and place. If they are not selected there and then, they do not exist. Trump’s contest of the election was still in play when electors were selected. Had alternatives not been selected and Trump prevailed there would have been no electors from Georgia.
They would have been wise to add a contingency disclaimer, as was done in a couple of states, that the electors are dependent on the success of election challenges. That difference hardly seems worthy of felony charges, especially in light of the history.
Trump ultimately failed, and his electors did nothing. Trying to criminalize the mechanics of preserving electoral viability if challenges to the election were successful is wrong. Wrong whether by criminalizing lawful behavior under RICO in Georgia or otherwise in other states.
The system worked as it should. The election was certified and electors for the winner went to the Electoral College, just as they should. Dems trying to criminalize that process may get unpleasant blow back when Repubs return the favor in coming years. What goes around comes around.
I do not wish Trump had won Georgia. I equally despise Dems trying to criminalize the mechanics of the electoral process. No good can come of it.
It’s a sad commentary on the depths our political process has plumbed. In the end we all suffer the consequences.
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I don’t understand this argument. When one votes for president, technically it is not a vote for the individual but for the slate of electors chosen by the party for that candidate. You say that, if Trump had prevailed in his contest of the Georgia election, there would have been no electors. Why wouldn’t the electors that had been on the Georgia ballot for the Republican then been the electors for Trump, rather than some alternate slate?
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Yeah, you’re right, we don’t actually vote for President, we vote for a slate of electors, but the electors have their own certification process that is fixed by law.
In Georgia and elsewhere they’d have been smart to do as they did in Pennsylvania and New Mexico and add a disclaimer that the alternate slate was only live if the election challenges were upheld. But they didn’t, nor did they in 1960 and nobody was charged then.
It’s a big mistake to criminalize what are essentially the mechanics of our electoral process. It makes me fear for our ability to work together for the common good.
Administrations and parties came and went, but you guys at DPB always worked for the benefit of the Commonwealth.
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“ Trump was impeached once for Jan. 6 and should have been, but they didn’t have the goods on him and he was acquitted. Double jeopardy is clearly prevented in the Constitution. ”
Is this some sort of a run on thought? Impeachment is not criminal, and double jeopardy applies to “life and limb”, not a job. In fact, impeachments are either sustained or overruled, not acquitted or convicted.
McConnell’s, hence the Senate majority, held that he couldn’t be impeached once he left office — absolutely false since impeachment is not just about removal but banning also** — and that the DoJ should have him.
Here’s food for thought. Since the new Congress takes office January 3, 2025 and the inauguration isn’t until January 20, there is plenty of time for dual Democrat majority to impeach him again. Find a ruling that prevents that. It’s a political process, not a criminal one.
Yep, the SCOTUS would eventually get involved because one of its duties is resolving disputes between the branches, but what fun would there be.
Is this a Virginia-focused column?
That’s found in the part of the Constitution that says Justices can lie in their confirmation hearings and still be confirmed. That section immediately precedes the section that says Justices can accept sweetheart loans to buy luxury RVs, can accept all-expense paid vacations from people who have cases before the Court and the section that says Justices do not have to recuse themselves from cases that their wife was involved in.
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