Conservative Justices Take Argument Over Trump’s Immunity in Unexpected Direction

[maestrob]

Thursday’s Supreme Court hearing was memorable for its discussion of coups, assassinations and internments — but very little about the former president’s conduct.

By Adam Liptak
Reporting from Washington

April 26, 2024
Updated 12:01 p.m. ET
Before the Supreme Court heard arguments on Thursday on former President Donald J. Trump’s claim that he is immune from prosecution, his stance was widely seen as a brazen and cynical bid to delay his trial. The practical question in the case, it was thought, was not whether the court would rule against him but whether it would act quickly enough to allow the trial to go forward before the 2024 election.

Instead, members of the court’s conservative majority treated Mr. Trump’s assertion that he could not face charges that he tried to subvert the 2020 election as a weighty and difficult question. They did so, said Pamela Karlan, a law professor at Stanford, by averting their eyes from Mr. Trump’s conduct.

“What struck me most about the case was the relentless efforts by several of the justices on the conservative side not to focus on, consider or even acknowledge the facts of the actual case in front of them,” she said.

They said as much. “I’m not discussing the particular facts of this case,” Justice Samuel A. Alito Jr. said, instead positing an alternate reality in which a grant of immunity “is required for the functioning of a stable democratic society, which is something that we all want.”

Immunity is needed, he said, to make sure the incumbent president has reason to “leave office peacefully” after losing an election.

Justice Alito explained: “If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”

Justice Ketanji Brown Jackson took a more straightforward approach. “If the potential for criminal liability is taken off the table, wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they’re in office?” she asked.

Supreme Court arguments are usually dignified and staid, weighed down by impenetrable jargon and focused on subtle shifts in legal doctrine. Thursday’s argument was different.

It featured “some jaw-dropping moments,” said Melissa Murray, a law professor at New York University.

Michael Dorf, a law professor at Cornell, said that “the apparent lack of self-awareness on the part of some of the conservative justices was startling.” He noted that “Justice Alito worried about a hypothetical future president attempting to hold onto power in response to the risk of prosecution, while paying no attention to the actual former president who held onto power and now seeks to escape prosecution.”

In the real world, Professor Karlan said, “it’s really hard to imagine a ‘stable democratic society,’ to use Justice Alito’s word, where someone who did what Donald Trump is alleged to have done leading up to Jan. 6 faces no criminal consequences for his acts.”

Indeed, she said, “if Donald Trump is a harbinger of presidents to come, and from now on presidents refuse to leave office and engage in efforts to undermine the democratic process, we’ve lost our democracy regardless what the Supreme Court decides.”

The conservative justices did not seem concerned that Mr. Trump’s lawyer, D. John Sauer, said his client was free during his presidency to commit lawless acts, subject to prosecution only after impeachment by the House and conviction in the Senate. (There have been four presidential impeachments, two of Mr. Trump, and no convictions.)

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Liberal justices asked whether he was serious, posing hypothetical questions.

“If the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him,” Justice Jackson asked, “is that within his official acts for which he can get immunity?”

Mr. Sauer said “that could well be an official act” not subject to prosecution.

Justice Elena Kagan also gave it a go. “How about,” she said, “if a president orders the military to stage a coup?”

Mr. Sauer, after not a little back and forth, said that “it could well be” an official act. He allowed that “it certainly sounds very bad.”

Justice Clarence Thomas, who participated in the case despite his wife Virginia Thomas’s own vigorous efforts to overturn the election, was not so sure.

“In the not-so-distant past, the president or certain presidents have engaged in various activity, coups or operations like Operation Mongoose when I was a teenager, and yet there were no prosecutions,” he said, referring to the Kennedy administration’s efforts to remove Fidel Castro from power in Cuba.

Professor Murray said she was struck by that remark, apparently offered “as evidence that there was a longstanding history of executive involvement in attempted coups.”

Justice Alito also turned to history. “What about President Franklin D. Roosevelt’s decision to intern Japanese Americans during World War II?” he asked. Could that have been charged, he asked, as a conspiracy against civil rights?

Prompted by Justice Brett M. Kavanaugh, Mr. Sauer added another requirement to holding a former president accountable. Not only must there first be impeachment and conviction in Congress, but the criminal statute in question must also clearly specify in so many words, as very few do, that it applies to the president.

That seemed a little much for Justice Amy Coney Barrett, the member of the court’s conservative wing who appeared most troubled by the sweep of Mr. Trump’s arguments.

Returning to “Justice Kagan’s example of a president who orders a coup,” Justice Barrett sketched out what she understood to be Mr. Sauer’s position.

“You’re saying that he couldn’t be prosecuted for that, even after a conviction and impeachment proceeding, if there was not a statute that expressly referenced the president and made it criminal for the president?”

Correct, Mr. Sauer said.

The court will issue its ruling sometime between now and early July. It seems likely to say that at least some of Mr. Trump’s conduct was part of his official duties and so subject to some form of immunity.

The court is unlikely to draw those lines itself, instead returning the case to Judge Tanya S. Chutkan, of the Federal District Court in Washington, for further proceedings.

“If that’s the case,” Professor Murray said, “that could further delay the prospect of a trial, which means that whatever is ultimately decided about the scope and substance of presidential immunity, the court will have effectively immunized Donald Trump from criminal liability in this case.”

There is a live prospect, Professor Karlan said, that “there won’t be a trial until sometime well into 2025, if then.”

Sending the case back to the trial judge, she said, “to distill out the official from the private acts in some kind of granular detail essentially gives Trump everything he wants, whether the court calls it immunity or not.”

https://www.nytimes.com/2024/04/26/us/p ... ction.html

[Rach3]

Thanks for that,maestrob.

From LA Times today:

" I have badly underestimated Donald Trump. Thursday was the day that his justices — it turns out that they are indeed his justices on the Supreme Court, just as he claimed — got it through my thick head: Trump is not just competent but masterful. He is not just capable, he is supreme.

Because Trump is clumsy at his alleged crimes, surrounding himself with flagrant thugs, telling obvious lies, leaving prolific trails of damning evidence, offering ridiculous defenses for indefensible conduct, I had long concluded that he is incompetent at crookery along with his other manifest failings. That’s true as far as it goes. But for all his mad greed and compulsive lawlessness, for all his sleaze and stupidity, crime is ultimately not Trump’s game. Trump is nothing like a master criminal. But he is a master of something far more sinister and complex: corruption.

I have badly underestimated Donald Trump. Thursday was the day that his justices — it turns out that they are indeed his justices on the Supreme Court, just as he claimed — got it through my thick head: Trump is not just competent but masterful. He is not just capable, he is supreme.

Because Trump is clumsy at his alleged crimes, surrounding himself with flagrant thugs, telling obvious lies, leaving prolific trails of damning evidence, offering ridiculous defenses for indefensible conduct, I had long concluded that he is incompetent at crookery along with his other manifest failings. That’s true as far as it goes. But for all his mad greed and compulsive lawlessness, for all his sleaze and stupidity, crime is ultimately not Trump’s game. Trump is nothing like a master criminal. But he is a master of something far more sinister and complex: corruption.


Crime is a largely private endeavor. Corruption is public. It seeps into the muscle and sinew of democratic society and institutions; it devours from within. The Supreme Court, drunk on arrogated power, cut loose from rudimentary ethics, has been eaten alive by it. But the court is just one plot of a vast terrain that Trump has conquered — not with crime, but corruption.

Crime is when you launch a violent attempt to overthrow the republic. Corruption is when you convince an entire political party to pretend they didn’t watch it live on television, or cower from it inside the Capitol while dozens of police officers were being bludgeoned by the mob.


Crime is when you make off with top-secret documents. Corruption is when a MAGA judge can’t find time to schedule your trial, or process the mountainous evidence of your guilt.

Crime is when a U.S. resident is murdered and dismembered by Saudi hit men. Corruption is when the all but acknowledged killer invests $2 billion in your talentless son-in-law’s fund, which other investors shun.

Crime is when you fake business expenses to cover up a payoff to an adult film actress who wants to cash in on your campaign for president. Corruption is when the head of the nation’s greasiest tabloid, a perpetual fount of lies and nonsense, expresses concern that your deeds are too sleazy for him.

Crime is when your lawyers tell the Senate not to convict you in an impeachment trial because you can be charged in court. Corruption is when your lawyers inform the Supreme Court that you are immune from criminal courts and only the Senate can judge you — but, alas, the senators have missed their window.

Trump has already succeeded at corrupting much of what’s corruptible. Government. Elections. Foreign policy. Democracy. Religion. Above all, people, and mostly men. Truckloads, boatloads, tiki-torch-parade-loads, courtloads of weak men all standing in the shadow that Trump casts.

The Republican Party has been corrupted absolutely. House Republicans have combined McCarthyism with Larry, Moe and Curlyism to twist Congress to comically corrupt ends — all to serve the greater degeneracy of Trump. In the Senate, the young hyenas, Tom Cotton (R-Ark.) and Josh Hawley (R-Mo.), study Trump’s demagogy and lick their chops, hoping for a turn at democracy’s carcass.

The establishment has utterly caved. Former Atty. Gen. William Barr’s endorsement of Trump this week, after having called Trump unfit, a psychologically damaged incompetent who cares only about himself, was barely newsworthy. What is Barr but another in the long line of weak men, one more debased Republican offering fealty to the grease king? Trump thanked Barr by humiliating him again.

But it was the Republican Supreme Court — mostly men again — that put the shiv a little deeper in democracy’s back this week. Originalists or textualists, all sounded more or less Trumpist as they seriously entertained Trump’s argument that his assaults on the constitutional order are protected by the Constitution itself. There is no way to make honest sense of such a liar’s mash. But Larry, Moe and Curly aren’t just chairing committees in Congress. They wear robes and furrowed brows now, too. And they seem eager to pretend that crimes are just constitutional exercises of power, and that one ex-president is a king.

Richard Nixon, a self-made, and self-corrupted, man who studied geopolitics and government assiduously, never achieved such a broad subjugation of American values and institutions. Trump, the ignorant, n’er-do-well heir to his father’s crooked fortune, has achieved so much more. Trump hasn’t just captured the trenches of conservative America, he has taken the commanding heights. He owns all of it, from the most racist backwater saloon to the Federalist Society clubhouse. They are his corrupted subjects. He is their corrupt and demented king. If he can somehow get through the next few perilous months, he may yet render corruption sacred, and the republic irredeemable."

Francis Wilkinson is a columnist for Bloomberg Opinion. @fdwilkinson

If it’s in the news right now, the L.A. Times’ Opinion section covers it. Sign up for our weekly opinion newsletter.

This story originally appeared in Los Angeles Times.

https://www.yahoo.com/news/opinion-supr ... 14188.html

[Rach3]

NYT Newsletter today.Thanks AG Garland.

Delay, delay, delay

"It now seems likely that Donald Trump will be able to run for president this year without having faced any legal penalties for his effort to overturn the last presidential election. To many of his supporters, of course, this outcome is just. But it is also striking.

Most Americans believe that Trump committed serious crimes, polls show. He chose not to order the authorities to stop a violent attack on the Capitol, even when his vice president was in danger. And he directed state election officials to “find” him votes. Even so, Congress did not sanction him, and neither of the criminal trials related to his actions may even start before the 2024 election.

In today’s newsletter, I’ll explain how this happened, by focusing on the three crucial groups of people: Republican senators, Democratic (or Democrat-appointed) prosecutors and Republican appointees on the Supreme Court.

1. Republican senators
The simplest path for addressing Trump’s attempts to overthrow an election was always in Congress. Congress has the power to impeach officials and bar them from holding office again, and it has used this power before. Most criminal convictions, by contrast, do not prevent somebody from holding office.

In early 2021, Congress seemed to be on the verge of barring Trump. The House impeached him, with 10 Republicans joining every Democrat in voting to do so. In the Senate, convicting him would have required at least 17 Republicans.

That seemed plausible. Mitch McConnell, the Republican leader, signaled that he supported impeachment. As people close to him told The Times, McConnell believed that the process would make it easier to purge Mr. Trump from the party. Other Republican senators sent similar signals.

Ultimately, though, they backed down. Trump remained popular with Republican voters, and many senators feared confronting him. McConnell played the central role. He delayed the trial until after Trump left office — and some senators then justified their acquittal votes by saying Trump was no longer president.

Seven Republicans, a mix of moderates and conservatives, did vote to convict: Richard Burr of North Carolina, Bill Cassidy of Louisiana, Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska and Pat Toomey of Pennsylvania. Others who were witheringly critical of Trump in private — like Roy Blunt of Missouri and Rob Portman of Ohio — voted to acquit, making it possible for Trump to become the Republican nominee this year.

2. Democratic prosecutors
After the Senate acquitted Trump, the next focus became the criminal investigations of his postelection actions. But these investigations moved slowly.

At the Justice Department, Attorney General Merrick Garland and his deputy, Lisa Monaco, worried that an indictment of Trump would appear partisan and told aides to proceed with extreme caution. Their caution was reminiscent of Robert Mueller’s decision as special counsel in 2019 not to announce a conclusion about whether Trump had broken the law during his 2016 campaign — even after Mueller presented such evidence. In both cases, top prosecutors were hoping to remain above the political fray.

To some Justice Department officials working for Garland and Monaco, this was an impossible goal in today’s political atmosphere. As The Washington Post put it: “Some prosecutors below them chafed, feeling top officials were shying away from looking at evidence of potential crimes by Trump and those close to him.” The F.B.I. did not open a probe into election interference for more than a year, and the Justice Department did not charge Trump until August 2023.

The investigation, as The Times described, was methodical, slow and at times dysfunctional.

The one state prosecution for election interference, in Georgia, has also been chaotic. Last year, Fani Willis, the district attorney in Fulton County, filed a sprawling indictment involving 18 defendants, which made a speedy trial impossible. Willis also assigned the case to a lawyer she was secretly dating, causing further delays.

3. Republican justices
Even with the Justice Department’s go-slow approach, Trump’s federal trial for election interference had a chance to finish before Election Day, but the Supreme Court intervened. It did so in a way that caused several delays.

First, the justices declined to hear Trump’s appeal — in which he claimed that presidents are immune from prosecution — on the expedited schedule that Jack Smith, the Justice Department’s special counsel, requested. Then the justices did agree to hear the case. And during oral arguments last week, the Republican-appointed majority suggested it would issue a broad ruling setting a new precedent, which could take months.

On their own, each of these decisions can be defended. The overall approach, however, is very different from the one the court took in 2000 during Bush v. Gore. Then, the justices acted urgently, recognizing the political calendar, and said that their decision was a narrow one, applying only to a single election. This time, as Justice Neil Gorsuch put it, they seek a ruling “for the ages.”

Critics have pointed out that in both 2000 and 2024, Republican-appointed justices chose an approach that benefited the Republican presidential nominee. A fast, narrow ruling in 2000 stopped the vote count in Florida and let George W. Bush take office. A slow, broad ruling in 2024 may push the start of Trump’s federal trial past Election Day.

All these decisions — by senators, prosecutors and justices — have played into Trump’s central legal strategy: delay. It’s a strategy he used to fight investigations during his business career, and it seems to have worked again in this campaign."