Ruling spells out the insanity of presidential immunity

[BeyondGeography]

Link to tweet

?s=61&t=EcvWMxA1syxTf8zqNwq-IA

This is the core of the reasoning, on pages 40-41:

“At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches. Presidential immunity against federal indictment would mean that, as to the President, the Congress could not legislate, the Executive could not prosecute and the Judiciary could not review. We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter. Careful evaluation of these concerns leads us to conclude that there is no functional justification for immunizing former Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment. In so holding, we act, “not in derogation of the separation of powers, but to maintain their proper balance.” See Fitzgerald, 457 U.S. at 754.

[LetMyPeopleVote]

1. This makes me smile

Link to tweet

Here is a link to the opinion which I am now reading
https://storage.courtlistener.com/recap/gov.uscourts.cadc.40415/gov.uscourts.cadc.40415.1208593677.0.pdf

[pandr32]

21. Exciting news for my wake up in Hawaii!

[LAS14]

2. YES!!!!! nt

[CrispyQ]

3. I'm still confused.

So a president could order the killing of his political opponents while in office & not be prosecuted, but once out of office then he can?

[Fiendish Thingy]

5. No, it takes no position on the DOJ memo barring prosecution of a sitting president

It focuses on the question of the specific appeal: can a former president be prosecuted for crimes committed while in office, whether those crimes were considered official or unofficial acts?

[hlthe2b]

6. It does not say that (and that is a DOJ "rule" not law nor established opinion). Rather this states

that Presidents are not immune from the law and specifically in Trump's case the fact that he was a "former" President does not shield him.

[StarryNite]

11. I was wondering that same thing.

[forgotmylogin]

34. The way it was explained to us in high school social studies class...

Governmental figures have limited immunity for the purposes of doing their job while they are doing their job.

This prevents a crooked Sheriff from pulling over a lawmaker who is speeding to a vote to reduce the Sheriff's salary and then jailing them indefinitely on a bogus charge to prevent them from voting and doing their official duty. The lawmaker may still be personally responsible for a speeding ticket, but has the right to declare immunity from being held in jail for the purposes of preventing them from voting and carrying out official duties.

Similarly, a President has the power to direct the armed forces to attack targets, which invariably will end up producing casualties. The President is immediately immune from any random person bringing a lawsuit against them directly for homicide because it was done in service of their country with (ideally) the higher goal of protecting others. Truman "did not seek to destroy Japanese culture or people; the goal was to destroy Japan's ability to make war" so as awful as Hiroshima and Nagasaki turned out, it did result in bringing about the end of the war. That supposedly would also not preclude a president or others involved from being prosecuted for war crimes after the fact if it is believed their motivations were unjust. That's where 45 is pulling his "the president has to have immunity to do his job" concept - the President while in office acting on behalf of the US isn't themselves directly personally responsible for actions that would otherwise be illegal, such as Obama ordering the military to assassinate Osama Bin Laden. Obama could not be personally tried for Bin Laden's "murder" after the fact because his actions were performed as a government official and thus he is immune from that specific type of prosecution.

Trump literally interfered with a governmental process by arranging the J6 riot, and via direct attempted and successful manipulation of other lawmakers and trying to thread loopholes in the law with his own personal benefit in mind (not that of the US/greater good) which is something the President swears an oath not to do. He's the Sheriff trying to pull over a speeding lawmaker, not the lawmaker driving the car who has immunity.

[hlthe2b]

4. Thank you. I adore Tribe and have nothing but the utmost respect for him. Was waiting for his

initial comments and more in-depth analysis.

[RussBLib]

7. Good ruling. Just wish it had been quicker.

....much quicker. Now we have more delays re SCOTUS.

Sometimes it seems we have too many appeals systems in place, especially in the case of this manipulative canker wanker.

https://russblib.blogspot.com/?m=1

[ShazzieB]

40. FWIW...

On Lawrence O'Donnell's show tonight, Neal Katyal said he doesn't think SCOTUS will want to touch this thing with a 10 foot pole. Just his opinion, of course, but he's extremely knowledgeable. I really hope he's right!

[MerryBlooms]

8. Excellent! r&k

[LetMyPeopleVote]

9. The court addressed an issue that was in the briefs but not addressed in oral arguments

Under TFG's interpretation of the impeachment judgement clause, all officers or officials subject to impeachment would also be protected from criminal prosecution unless they were first impeached and convicted. This clause applies to the VP and federal judges. Over the years a good number of federal judges have been tried and convicted for various crimes without being impeached and convicted. The court points this out in this opinion on pages 48-50
https://storage.courtlistener.com/recap/gov.uscourts.cadc.40415/gov.uscourts.cadc.40415.1208593677.0.pdf

Finally, the practical consequences of former President
Trump’s interpretation demonstrate its implausibility. The
Impeachment Judgment Clause applies not just to Presidents
but also to the “Vice President and all civil Officers of the
United States.” U.S. CONST. art. II, § 4. Thus, his reading
would prohibit the Executive Branch from prosecuting current
and former civil officers for crimes committed while in office,
unless the Congress first impeached and convicted them. No
court has previously imposed such an irrational “impeachment
first” constraint on the criminal prosecution of federal officials.
See, e.g., Isaacs, 493 F.2d at 1144 (“[W]e are convinced that a
federal judge is subject to indictment and trial before
impeachment . . . .”).12 Even if there is an atextual basis for
treating Presidents differently from subordinate government
officials, as former President Trump suggests, his proposed
interpretation still would leave a President free to commit all
manner of crimes with impunity, so long as he is not impeached
and convicted. Former President Trump’s interpretation also
would permit the commission of crimes not readily categorized
as impeachable (i.e., as “Treason, Bribery, or other high Crimes
and Misdemeanors”) and, if thirty Senators are correct, crimes
not discovered until after a President leaves office. See U.S.
CONST. art. II, § 4; see also, e.g., 167 CONG. REC. S736 (daily
ed. Feb. 13, 2021) (statement of Senate Minority Leader
McConnell) (“We have no power to convict and disqualify a
former office holder who is now a private citizen.”).13 All of
this leads us to conclude that, under the best reading of the
Impeachment Judgment Clause, a former President may be
criminally prosecuted in federal court, without any requirement
that he first be impeached and convicted for the same
conduct.14

I always thought that the impeachment judgement argument was stupid because VP Agnew and a number of federal judges were charged and convicted (or plead guilty) for crimes where such persons were NOT first impeached and then tried and convicted. This was always a weak argument an I was surprised that this was the main argument pushed by TFG's counsel in oral arguments.

[WestMichRad]

33. Thank you for highlighting this important point!

TFG’s counsel didn’t have much of a leg to stand on in their appeal, so they were desperately trying to find something. Nice to hear that the appeals court soundly rejected their BS.

[CaptainTruth]

10. It seems like a well-reasoned decision to me.

Can he appeal to SCOTUS? I'm sure he will if he can.

[StarryNite]

12. Yup, he'll do anything to stall.

[BeyondGeography]

13. He has until next Monday the 12th to appeal to the SC

They can elect to hear it or not hear it. The appeal can be executed quickly or slow-walked until after the election.

Never a dull moment.

[ShazzieB]

41. Neal Katyal said something about this tonight.

On Lawrence O'Donnell's show tonight, Katyal said he doesn't think SCOTUS will want to touch this thing with a 10 foot pole. We'll see if he's right or not. I really hope he is!

[AllaN01Bear]

14. which says that t,,, is not above the law , no one is .

[moniss]

15. I am a bit

nervous that the Weasel 6 may see the question of "balancing" the "separation of powers" as a fig leaf to give them cover if they want to hear the case. I want to be very wrong about that but I don't put anything past this bunch despite their previous rejections of the claims by the Orange Ruski.

On a related note the stock of Kraft-Heinz is up today. I'm sure he's not using store brand.

[RobinA]

29. I Have A Hard Time

believing that any SC, including this group, would be insane enough to rule that a President was immunity from criminal acts while in office. By that, a President could appoint himself dictator, call off elections, put a crown on his head, and no one could stop him. It would be the instant end of democracy.

[moniss]

36. Actually for his purposes

of delay they could cover themselves on a ruling about the checks and balances reasoning and remand back to the appeals court. Purposes being delay. Yes it would be ludicrous and lack any real good legal reasoning. Just like the Dobbs decision and the voting rights decision etc. This bunch has shown they don't care whether any of what they do makes sense or has good basis or judgement. They've demonstrated they're going to do whatever they want. They can carve out the immunity question into various area of permissible/impermissible immunity and roll with some murkiness about the checks and balances being applicable to permissible immunity and remand back.

Remember that our arguments about what what they'll do are based on our outlook as to what is correct under the law. They don't care about that when they have a desired outcome. Like I said I hope I'm very wrong but there is a crooked path forward for them if they choose to help delay this. The appellate court could try to dull any effect and give Jack some room to make as little modification to the charges/case as possible but we still might be looking at a SC remand or stay on more appeals of even that outcome.

Hopefully they refuse cert but it is not a given.

[moniss]

16. Also will the

Weasel 6 try to do a "one off" ruling like they did in Bush v Gore and claim it is not to ever be used again? Even though that was used again in cases anyway?

[orangecrush]

38. Nothing to be concerned about

[Pluvious]

17. So would SCOTUS overturn this, and green light Biden to do ANYTHING ?

I predict they'll decline to take this on appeal

[MyOwnPeace]

18. With you on this.....

I think they - the Supremes - will see this ruling as an easy was out and not have to put themselves in a position of having to make an ‘ethical, legal, sane’ ruling that would upset their own corrupt leanings……

[Dark n Stormy Knight]

27. The idea that this would give Biden kingly powers is, unfortunately, no deterrent to anyone hoping to grant

such power to Trump by way of a favorable ruling on this. We and they know Biden would not take advantage of such a ruling. Am I wrong?

[Pluvious]

31. We know that...

But the rabid Magats spew all sorts of garbage Biden has already done

[calimary]

37. I doubt he would. Seems like he's got too strong a moral compass.

[WestMichRad]

19. Yes!

Reporting elsewhere (NPR) said their ruling will only apply to this case. The excerpt you provided includes this: “Careful evaluation of these concerns leads us to conclude that there is no functional justification for immunizing former Presidents from federal prosecution in general …” That appears to show the NPR statement is incorrect.

[SouthernDem4ever]

23. Except in the case of Bush v Gore

With the help of Sandra Day O'connor, the corrupt SCOTUS Repugs of the day made that ruling only apply to that case. Convenient wasn't it?

[liberalla]

20. Oh, that's a beautiful thing!

I am SO relieved. It should have been an quick and easy decision, but trump makes everything so complicated and drawn out... The delay was making me nervous.

Relieved and happy. Their reasoning is sound and spot on -- how could the Supremes disagree??

[SouthernDem4ever]

22. Damn! Does this mean Biden can't just do what he wants with impunity?

I was hoping the courts would rule that he could.

[elleng]

24. *Steven Cheung, a spokesman for Mr. Trump's campaign, said the former president "respectfully disagrees"

the court’s decision and would appeal it.

“If immunity is not granted to a president, every future president who leaves office will be immediately indicted by the opposing party,” Mr. Cheung said. “Without complete immunity, a president of the United States would not be able to properly function.”'

The absurdity of this position is CLEAR.

and suggesting this is beyond belief: 'every future president who leaves office will be immediately indicted by the opposing party,”' Heckuva world he/they live in.

[elleng]

25. An important procedural aspect of the decision:

'In a significant part of their decision about presidential immunity, the three appellate judges circumscribed Mr. Trump’s ability to use further appeals to waste more time and delay the election case from going to trial — a strategy the former president has pursued since the indictment against him was filed in August in Federal District Court in Washington.

The panel said, for instance, that if Mr. Trump appeals its decision to the Supreme Court, the underlying case, which was put on hold by the trial judge in December, would remain suspended until the justices decided to hear the case themselves and issued their own order freezing the proceedings.

But the panel imposed a rule designed to discourage Mr. Trump from making an intermediate challenge to the full court of appeals. It said that if Mr. Trump took that route, the underlying case would not remain on hold as the full court mulled whether to to hear the case and issued its own order pausing it.'

https://www.nytimes.com/2024/02/06/us/politics/trump-immunity-appeals-court.html

[Pluvious]

26. Anyone else notice they describe him as an "Officer .

Re: the ruling
( That's a direct reference to ... Alito's ? findings ruled many years ago )

[ohtransplant]

35. Great catch!

"the office of the Presidency"

The Supremes should take note that the DC Circuit Court of Appeals has slyly but clearly, weighed in this issue re the Colorado case.

[czarjak]

28. Finally!

"It's not illegal when The President does it." Dumber N Nixon.

[Lunabell]

30. THE RULE OF LAW PREVAILS!!!

It's a long time coming.

[Cha]

32. And by trying o weasel out of it.. TSF

Admits he Guilty.

[orangecrush]

39. The courts are holding

So far.