Even if trump wins they probably will rule that ex-presidents ("private citizens") do not have immunity. By the time they rule on the question it will be too late to stop trump, and they will have given him the chance to end investigations and create new laws to protect himself.
The 9th jurist abstained due to ... get this ... a conflict of interest. Our current court is lost at sea.
Actually yes, and my spelling sucks, and I got it right in a previous post, dick, lol. My grammar sucks too.
My info mostly comes from Isgur, Lat, Shaw, Murray, and other legal commentators. Let's read the order: The application for a stay presented to The Chief Justice is referred by him to the Court. The Special Counsel’s request to treat the stay application as a petition for a writ of certiorari is granted, and that petition is granted limited to the following question: Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. Without expressing a view on the merits, this Court directs the Court of Appeals to continue withholding issuance of the mandate until the sending down of the judgment of this Court. The application for a stay is dismissed as moot. Issue 1 - Timing It was never going to get done before the election, never. The political pundits kept arguing about this point, but the legal nerds all knew this from the start. In fact, the appeals court did a weird timing speed up decision that had like never been done in history, kind of skipping En Banc petitions, but even with that, couldn't really speed it up. There is a legal argument to speed it because in reality, Trump can win and essentially dismiss his own case or delay for 4 years. The legal argument to let it be slow is that it's always slow unless the defendant speeds it up, not the government. Ultimately, starting fast doesn't matter because it's not like the Supreme Court is going to decide the Trump case; they're going to decide questions. The question is, "whether and if so to what extent does a former Presdient enjoy presidential immunity from criminal prosecution for conduct alleged to involve offical acts during his tenure in office." That's the question, and the answer isn't going to be cleanly what the Trump team argued, which was like "presidents can do anything, kill anyone officially, and be immune from prosecution." That's not going to be the answer from SCOTUS. It's going to be a complicated one with a some things yes, and some things no. Then, the case will go all the way back down to the district court of original jurisdiction and determine if the stuff that Trump did is prosecutable. Then when Trump loses, Trump will appeal and argue that whatever he did is not absolutely immune, but qualified immune, which will then be automatically appealed to the DC circuit, whose decision may be appealed to SCOTUS. Like I said, this idea that a many-months trial plus many-months appeal starting and wrapping up pre-election was a political pundit's pipe dream. Issue 2 - Is this is a stay? Not really. It takes 5 for a stay and 4 for a cert. It looks like the justice department prosecutor asked for SCOTUS to treat this petititon as a cert instead of a stay. So SCOTUS did that, with the final line being the stay is mooted, because cert it granted. This confuses me, as did the timing parameters given by the DC circuit to try to speed up the trial, which still would have failed (see issue 1, plus issue 3 below). But a stay means SCOTUS (at least 5) is leaning towards Trump winning. A grant of writ of cert just means at least 4 are thinking it's an important question to answer. And the reason why Trump gets to make this appeal (or anyone with governmental immunity claims), is because that if the answer is a qualified yes, and Trump's actions qualify, then the whole process of him being on trial would be deprivation of his rights. Issue 3 - Why SCOTUS took the case -The DC circuit opinion was confusing and legally incorrect in its reasoning, but not in its conclusion. https://www.cadc.uscourts.gov/inter...50785258ABB0052D942/$file/23-3228-2039001.pdf The claim that the judiciary can determine executive branch liability based on a history of the judiary enjoining actions that broke the law is not legally sound. The claim that congressional statute renders executive action ministerial, and thus not immune, does not solve the issue because many congressional acts give discretion, plus qualified immunity wouldn't exist. -The federal prosectuor actually asked SCOTUS to take the case (pre DC circuit decision). -Justices for AND against Trump would want SCOTUS to have the last word on the legal logic and draw the legal lines as to what is immune and what is not. DC Circuit should have just shortened their opinion, based it upon rebutting the the Trump team claim that impeachment is a pre-condition to getting prosecuted, which is wrong and dumb, and would mean no one in the executive branch can ever prosecuted unless impeached AND kicked out. Then they should have clearly stated their legal conclusions of which executive actions can be and which cannot be prosecuted, with examples. Because they didn't do that well, SCOTUS predictably granted cert, which is probably for the best in the long-run (like can Texas make a law that puts Biden in jail for not being hardcore enough at the border). It's for the best, assuming Trump doesn't win and if Trump does win, doesn't tear up the Constitution.
Opinion | Why Is Trump Getting Special Treatment From the Supreme Court? The justices are handling Trump’s case far differently than most criminal defendants. It is hard to see any legally sound reason why the Supreme Court should have decided to step in to hear Donald Trump’s implausible and constitutionally destructive claim for absolute criminal immunity. | Jacquelyn Martin/AP Opinion by AZIZ HUQ 02/29/2024 01:51 PM EST Aziz Huq teaches law at the University of Chicago and is the author of The Collapse of Constitutional Remedies. To understand how truly remarkable it is that the Supreme Court has agreed to consider former President Donald Trump’s demand for absolute immunity from criminal prosecution, it is necessary to have some sense of how the court treats other criminal defendants. In that light, the court’s extraordinary and improper solicitude for Trump, the person who selected three sitting justices, is all too readily apparent. And the upshot is Trump may now succeed in delaying his federal trial for trying to overturn the 2020 election until after voters go to the polls in November. In recent years, the Roberts Court has shown greater and greater impatience with criminal defendants’ efforts to forestall punishment — even if the outcome would be cruel, needlessly painful or simply unjustified. The effect of this new hostility to delay is most sharply felt in the death penalty context. But a general hostility to foot-dragging in criminal cases is a through line in the court’s docket. Justice Neil Gorsuch set the tone for this approach in 2019, when he complained that legal challenges to the death penalty were often used to stall or even derail execution. Courts, said Gorsuch, should “police carefully against attempts” to use constitutional challenges as tools to interpose unjustified delay.” In particular, he warned, “last-minute stays should be the extreme exception, not the norm.” The court has since followed Gorsuch’s lead with an unsavory relish. Before 2020 and the death of Justice Ruth Bader Ginsburg, it was common for the Supreme Court to grant stays to hear legal questions that arose at the last stage of a capital case. Since then, it has only granted two such stays. In the same period, it has also vacated nine stays on death sentences imposed by lower courts. The result has been predictable: Many of the convictions the court has let stand are plausibly described as “riddled with errors.” And in January, the court declined to hear a challenge to Alabama’s novel use of nitrogen gas to execute Kenneth Smith. Witnesses described Smith’s resulting death as horrific — extended and torturous — and not at all painless as the state promised. The same is true of federal prosecutions. In the last half of 2020, the court stepped aside as the federal government sprinted to execute 13 people — as many as had been killed in the previous six decades. Justice Sonia Sotomayor noted that the court “repeatedly sidestepped its usual deliberative processes” to enable an “expedited spree of executions.” In its haste to see punishment done, the court waved away its usual rules. Outside the capital punishment cases, the Supreme Court has added more and more constraints upon prisoners’ ability to challenge constitutional errors. Gorsuch and Justice Clarence Thomas in particular have urged that the longstanding right to challenge state court convictions in federal court be effectively gutted. The effect of their proposal would be to streamline even further the criminal justice process — shutting down almost all efforts to raise objections before they had even started. All this makes the Supreme Court’s decision to hear Trump’s appeal for absolute immunity from all criminal charges even more unusual, and troubling. Start with the weakness of Trump’s argument. There is absolutely no constitutional text, no precedent and no authority in the original debates over the Constitution’s ratification to support the idea for a former president’s absolute immunity. The argument advanced by Trump’s counsel is patently absurd. The idea that senators could impeach a president who threatened them with deadly violence and so no criminal justice process is needed, is facetious. The District of Columbia Court of Appeals rightly ridiculed it — and issued a comprehensive, tightly reasoned and unanimous opinion that presented no good cause for further review. Trump is within his right to appeal the decision, but there’s no good reason for the Supreme Court to take it up and review it as a matter of law — especially given how thorough the D.C. Circuit was. In fact, the court’s erstwhile concern with “unjustified delay” in criminal cases would seem to cut hard against hearing the case. It is, after all, a matter of common knowledge that the former president’s legal strategy is to run out the clock and thus prevent a trial prior to the election. Here then is a case where justice delayed may well be justice derailed. Indeed, the grounds for the court rejecting Trump’s request to take up the immunity question appear much stronger than in Kenneth Smith’s challenge to the use of nitrogen gas. If Smith had been successful, Alabama could have found another, permissible way to kill him. If Trump’s trial is delayed enough, it may never happen. If Trump is back in the White House, he can easily quash the Justice Department’s case. The Supreme Court’s attention, moreover, is a precision good. In the court’s 2022-23 term, the court issued just 58 decisions. Given that this scarce commodity is so infrequently used to prevent the miscarriage of criminal justice, the question must be asked: Why now? And why for this defendant? There is no good answer. It is hard to see any legally sound reason why the Supreme Court should have decided to step in to hear Trump’s implausible and constitutionally destructive claim for absolute criminal immunity — especially when it has refused to hear so many other criminal defendants’ far more meritorious claims. There are, no doubt, some who will seek to make excuses for the court. They will say the court is worried about an election year prosecution. Or they will say that the issue here is plainly a significant one deserving of full arguments. But the fact of the matter is that Trump is getting the kind of treatment that other criminal defendants do not get. His delaying tactics are being embraced, rather than swatted away. If the Supreme Court’s reputation takes a further hit from this move, it will not be simply because there is an air of impropriety about the decision. Rather, it is because the court is treating the presidential candidate of the party that appointed six of the nine justices with special favor so as to materially aid his presidential campaign. The problem here is not a matter of appearances. It suggests an improper and partisan act in its bones and marrow.
Yep. There is no other answer to give Trump immunity from being held accountable for commiting felonies. It stinks of corruption through and through. Imagine if Trump was black. They would have rejected his claims within a week.
Aziz Huq is many times smarter and more accomplished than me and probably most of us here. I disagree with his conclusion of the DC Appeals court decision. My conclusion, based on other scholars and reading the decision itself, lead me to determine that cert would be granted - this determination was made over a month ago. I wish professor Huq would have expanded on this part, because there is a good answer, unlike what he states. Let's recap again why his, and most pundits conclusion is incorrect. I'm partially reposting and adding some. Read the decision for yourselves: https://www.cadc.uscourts.gov/inter...50785258ABB0052D942/$file/23-3228-2039001.pdf The claim that the judiciary can determine executive branch liability based on a history of the judiciary enjoining actions that broke the law is not legally sound. The claim that congressional statute renders executive action ministerial, and thus not immune, does not solve the issue because many congressional acts give discretion, plus qualified immunity wouldn't exist. -The federal prosectuor actually asked SCOTUS to take the case (pre DC circuit decision). -Justices for AND against Trump would want SCOTUS to have the last word on the legal logic and draw the legal lines as to what is immune and what is not. If DC Appeals stands, that would mean enjoining actions would be conflated with immunity denials. Those are two separate things. Stopping an unconstitutional action from continuing to happen is a well-established power of the court. There needs not be a long list of examples showing that. That does not mean that doing so equals presidents can be held legally liable for everything they do. DC Appeals also conflates ministerial and discretionary action, the latter which has a history of holding immunity. This conflation would eliminate all qualified immunity cases because it would treat law violations as ministerial, and therefor punishable, but then no qualified immunity would exist ever. That's okay practically if you are against QI, but not okay if you're trying to reason the current state of the law, because that conflation is incorrect. The best logical and legal reasoning DC Appeals did was with the judiciary branch examples of holding judgles liable for breaking the law while doing judge things. That's still not executive branch, but it's the crux of the debate that needs to be solved. What actions are punishble and what actions are not. It's definitely something and not nothing as team Trump tried to claim, but it needed better clarity. Again, what if a Texas jury indicts Biden for not being hardcore enough on the border? Mayorkas just got impeached. Crazy stuff happens. What if a Michigan jury indicts Biden for deaths of Palestinians? Lastly, if this question is not clarified and needs to be clarified, then that is why Trump gets this pass, because anyone in government would get this pass who can claim some sort of immunity, because the process itself would be considered a deprivation of rights. Extra lastly, the DC Appeals rules violated all sorts of Due Process. Sure, there is a very good legal argument / practical argument. Trump might win, dismiss his own case, and never face a trial. That's also a politics consideration though. Trump and anyone in Trump's shoes (QI government claims, not just former presidents) would normally have the right to be treated normally, which is having a slow process with all appeals options available, unlike what DC Appeals tried to do to them. This question that SCOTUS will answer is important. Hopefully, Trump doesn't win, dismiss his own case, and tear up the Constitution.
This thread by Barb McQuade addresses the question whether the public *also* has a right to a speedy trial. Cites ussc case Barker v. Wingo.
Barb McQuade argues that the people also have a societal interest in a speedy trial. Especially since "Delay is not an uncommon defense tactic.” Barker v. Wingo https://en.wikipedia.org/wiki/Barker_v._Wingo
Sure, but that is a court created reason and not textual or originalist. Here is the 6th Amendment to the US Constitution. The Bill of Rights is a set of Rights protected for Americans against the federal government. It's hard to reason around that. One can try. If it's the accused's right, then the right belongs to the defendant, not the public. Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. And I repeat, the DC Appeals Court had a bad opinion. Read it. They tried to use, I think the Kendall case as precedent, which only dealt with enjoining. In fact, it was later ruled in that same case that there is immunity, so pretty bad of their law clerks. I'll try to find it again later. Here's my one caveat. If SCOTUS affirms EVERYTHING DC Appeals reasoned, then I'll be 100% wrong, admit it, and say there are too many MAGAs who want King Trump back in office. I don't think that will happen as SCOTUS will make delineations that DC Appeals failed to do.
I am not a lawyer... not sure if you are or not, but a conservative judge (Luttig) opinion that the DC Appeals decision was well made and as such doesn't see what the ussc can disagree with. Of course, we all know that this roberts court is corrupt and can easily continue its string of hyperpartisan rulings to benefit trump, Which only puts the rule of law and American democracy further in danger.
I'm not going to reprint what I wrote a third time. I love Luttig's writing and his public interviews. He's very good and SCOTUS quotes him all the time. SCOTUS also disagrees wth him all the time. Just read the DC Appeals decision. I've posted the link and posted what I found were the reasons I thought (and the legal scholars who I follow thought) that SCOTUS would grant cert - these thoughts were months ago. By the way, this was a cert grant, not a stay. Also to your last point about originalist view. Again, do whatever, but the text its the text. Don't post a tweet about someone else thinking something else. Read the 6th Amendment and you tell me whose right a speedy trial belongs to: the public, the government, or the defendant? This ain't rocket science.
I will defer to your knowledge of the law since I am not a lawyer and apparently you are. I also know that its a moot point since the supreme court has already given trump the opportunity to run out the clock. The ussc has already put this possibility in play. Hopefully our democracy and the rule of law survives this.
Given what I know of our SCOTUS, I think if any court were to call Trump not eligible for state ballot's, this is the one to do it. But I think they’ll give it pass and say you can’t take him off.
trump's official request (demand) for presidential immunity... a normal USSC would be repelled by trump's legal arguments, but considering this USSC is maga republican and an activist court... who knows...
