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Post by Webster on Apr 25, 2024 10:52:40 GMT -5
(The Guardian) Supreme court to hear arguments in Trump's immunity claim as ex-president hopes to disrupt election subversion caseIt’s another big day at the supreme court – perhaps the biggest of its term so far. Beginning at 10am ET, the nine justices will hear arguments over whether Donald Trump is immune from prosecution for acts done while he was in office. The former president has made the claim as part of a bid to blunt special counsel Jack Smith’s case against him for allegedly trying to overturn the 2020 election, and while there’s no telling how the court will rule, it has already had one concrete effect: delaying his trial in Washington DC, potentially until after the November election, and therefore preventing a potential guilty verdict that could have damaged his campaign. The supreme court is composed of a six-justice conservative supermajority – three of whom Trump appointed – and a three-justice liberal minority, and the fact that they took this case up at all has raised eyebrows among some legal scholars. A ruling in his favor could lead to at least some of the charges Smith has brought to be dropped. If the court rejects arguments from Trump’s attorneys, his trial may be cleared to proceed – but there is still no telling when it will actually kick off. The former president will not be in Washington DC for today’s oral arguments. He’s in New York City, where his trial is underway on charges of falsifying business documents related to hush money payments made before his 2016 election victory, the first of his four criminal cases to go before jurors.
Supreme court 'engineered one of history’s most egregious political interventions' by hearing Trump immunity case - legal scholarThe supreme court has not yet even heard arguments in Donald Trump’s claim that he is immune from charges related to attempting to overturn the 2020 election because his alleged actions were taken while serving as president. But legal scholar Michael Waldman, president of the Brennan Center for Justice at the New York University School of Law, said the conservative-dominated body has already done the ex-president’s bidding by agreeing to hear the case – and therefore delaying the start of a trial that could prove pivotal to his chances of returning to the White House. “The justices have already done great damage,” Waldman wrote recently. “They engineered one of history’s most egregious political interventions – not with an ugly ruling, at least not yet, but by getting ‘the slows’. At the very least they should issue this ruling in three weeks. That would give trial judge Tanya Chutkan enough time to start the trial [before the election], if barely.”
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Post by Webster on Apr 25, 2024 10:57:39 GMT -5
(The Guardian) Supreme court begins hearing arguments in Trump's immunity claimThe nine supreme court justices are seated and have begun hearing arguments over whether or not Donald Trump is immune from prosecution for allegedly trying to overturn the 2020 election because he was acting in his official capacity as president.
Up first before the court is attorney John Sauer, who is representing Donald Trump. He’s currently in a back-and-forth with chief justice John Roberts, a conservative who has occasionally acted as a swing vote on the rightward-leaning court, as to whether a president accepting a bribe would be legal.
Liberal justice Sonia Sotomayor sounded sharply skeptical of John Sauer’s arguments as she harkened back to the country’s early days in exploring the situations where a president could be prosecuted. Referring to amicus, or “friend of the court”, briefs filed in the case by outside groups, Sotomayor said: There are amica here who tell us that the founders actually talked about whether to grant immunity to the president. And in fact, they had state constitutions that granted some criminal immunity to governors. And yet, they didn’t take it up. Instead, they fought to pass an impeachment clause that basically says you can’t remove the president from office, except by a trial in the Senate, but you can impeach him after so … you can impose criminal liability. We would be creating a situation in which … a president is entitled not to make a mistake, but more than that, a president is entitled for total personal gain, to use the trappings of his office. That’s what you’re trying to get us to hold? Without facing criminal liability?
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Post by Webster on Apr 25, 2024 10:58:33 GMT -5
(The Guardian) Liberal justice Sotomayor, Trump lawyer debate legality of fake electorsIn an exchange with liberal justice Sonia Sotomayor, Donald Trump’s attorney John Sauer defended the legality of sending slates of fake electors – as Trump is alleged to have done to stop Joe Biden from winning the White House. The allegation is at the heart of the charges against Trump, both in special counsel Jack Smith’s federal case, and in the case brought in Georgia by Fulton county district attorney Fani Willis. “What is plausible about the president insisting and creating a fraudulent slate of electoral candidates, assuming you accept the facts of the complaint on their face? Is that plausible that that would be within his right to do?” Sotomayor asked. “Absolutely, your honor,” Sauer replied. “We have the historical precedent we cite in the lower courts of president Grant sending federal troops to Louisiana and Mississippi in 1876 to make sure that the Republican electors got certified.”
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Post by Webster on Apr 25, 2024 10:59:41 GMT -5
(The Guardian) Another liberal justice, Elena Kagan, debated the specifics with Donald Trump’s attorney John Sauer of his alleged misconduct, and whether he would be immune from prosecution. Kagan asked for Sauer’s views on Trump’s attempt to get Republican lawmakers in Arizona to help him disrupt Joe Biden’s election victory there: “The defendant asked the Arizona House Speaker to call the legislature into session to hold a hearing based on their claims of election fraud.” “Absolutely an official act for the president to communicate with state officials on a matter of enormous federal interest and concern, attempting to defend the integrity of a federal election to communicate with state officials,” Sauer replied.
In an exchange with attorney John Sauer, conservative justice Amy Coney Barrett signaled she thought Donald Trump could still face trial on some election interference charges brought by special counsel Jack Smith, even if the supreme court agrees with his claims of immunity. “So, you concede that private acts don’t get immunity?” Barrett asked. “We do,” Sauer replied. Barrett then referred to Smith’s brief in the immunity case: He urges us even if we … assume that there was some sort of immunity for official acts, that there were sufficient private acts in the indictment … for the case to go back and the trial to begin immediately. And I want to know if you agree or disagree about the characterization of these acts.She then posed a series of scenarios to Sauer, and asked him whether the acts were official or private. Sauer said most would be considered private, not official, acts. “So those acts, you would not dispute those were private, and you wouldn’t raise a claim that they were official as characterized?” Barrett asked. It’s a telling statement from the Trump-appointed justice, because the court could find that Trump is immune for official acts – but must face trial for acts done in his capacity as a private citizen.
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Post by Webster on Apr 25, 2024 11:03:59 GMT -5
(The Guardian) Conservative justice Amy Coney Barrett continues to sound somewhat flummoxed by John Sauer arguments in favor of Donald Trump’s immunity. “So how can you say that he would be subject to prosecution after impeachment, while at the same time saying that he’s exempt from these criminal statutes?” Barrett asked. Apparently unsatisfied with his answer, Barrett posed another hypothetical to Sauer: In the “example of a president who orders a coup, let’s imagine that he is impeached and convicted for ordering that coup and let’s just accept for the sake of argument, your position that that was official conduct. You’re saying that he couldn’t be prosecuted for that even after conviction and an impeachment proceeding?” Sauer responded by arguing the law must specify that a president who has been impeached and convicted by Congress can still face criminal prosecution for a coup: If there was not a statute that expressly referenced the president and made it criminal for the president. There would have to be a statute that made a clear statement that Congress purported to regulate the president’s conduct.
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Post by Webster on Apr 25, 2024 11:05:37 GMT -5
(The Guardian) Special counsel's office warns Trump's 'novel theory' has 'no foundation in the constitution'Arguing before the court now is Michael Dreeben, an attorney representing special counsel Jack Smith, who indicted Donald Trump on federal charges relating to conspiring to overturn the 2020 election. He told the court that agreeing with Trump’s immunity claim means president could not be found liable for all sorts of criminal acts: His novel theory would immunize former presidents for criminal liability for bribery, treason, sedition, murder, and here for conspiring to use fraud to overturn the results of an election and perpetuate himself in power. Such presidential immunity has no foundation in the constitution. The framers knew too well the dangers of a king who could do no wrong. They therefore devised a system to check abuses of power, especially the use of official power for private gain. Here the executive branch is enforcing congressional statutes and seeking accountability for petitioners’ alleged misuse of official power to subvert democracy.
Conservative justice Gorsuch ponders whether a finding against Trump would incentivize presidents to 'pardon themselves'Before the special counsel’s office began presenting its case, Neil Gorsuch, a conservative justice, pondered whether rejecting Donald Trump’s claim of immunity would cause presidents to preemptively pardon themselves, in fear that a successor could decide to prosecute them. “What would happen if presidents were under fear, fear that their successors would criminally prosecute them for their acts in office,” asked Gorsuch, who Trump appointed, in an exchange with his attorney John Sauer. “It seems to me like one of the incentives that might be created as for presidents to try to pardon themselves,” Gorsuch continued, adding, “We’ve never answered whether a president can do that. Happily, it’s never been presented to us.” “And if the doctrine of immunity remains in place that’s likely to remain the case,” Sauer replied. Trump’s lawyer went on to argue that a finding against his immunity claim would weaken all future presidents: The real concern here is, is there going to be bold and fearless action? Is the president going to have to make a controversial decision where his political opponents are going to come after him the minute he leaves office? Is that going to unduly deter, or is that going to dampen the ardor of that president to do what our constitutional structure demands of him or her, which is bold and fearless action in the face of controversy?“And perhaps, if he feels he has to, he’ll pardon himself every four years from now on,” Gorsuch pondered. “But that, as the court pointed out, wouldn’t provide the security because the legality of that is something that’s never been addressed,” Sauer replied.
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Post by Webster on Apr 25, 2024 11:07:40 GMT -5
(The Guardian) Special counsel attorney Michael Dreeben is now tangling with Samuel Alito, one of the court’s conservative stalwarts, who sounds sympathetic to Donald Trump’s immunity claims. “Presidents have to make a lot of tough decisions about enforcing the law and they have to make decisions about questions that are unsettled. And they have to make decisions based on the information that’s available … Did I understand you to say well, you know, if he makes a mistake, he makes a mistake, he’s subject to the criminal laws just like anybody else?” Alito asked. Dreeben replied by noting that what Trump is accused of is no simple mistake: He’s in a special position for a number of reasons. One is that he has access to legal advice about everything that he does. He’s under a constitutional obligation to do he’s supposed to, be faithful to the laws of the United States and the constitution of the United States and making a mistake is not what lands you in a criminal prosecution.
Conservative justice Samuel Alito also appears to be concerned that a finding against Donald Trump would incentivize presidents to pardon themselves – something of unclear legality. If “the president has the authority to pardon himself before leaving office and the DC circuit is right that there is no immunity from prosecution, won’t the predictable result be that presidents, on the last couple of days in office, are going to pardon themselves from anything that they might have been conceivably charged with committing?” Alito asked Michael Dreeben, who is representing special counsel Jack Smith. He replied: I really doubt that, Justice Alito, and it’s sort of presupposes a regime that we have never had except for President Nixon and as alleged in the indictment.
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Post by Webster on Apr 25, 2024 11:09:06 GMT -5
(The Guardian) Conservative justice Alito ponders whether threat of prosecuting presidents would undermine 'stable, democratic society'Conservative justice Samuel Alito continued his questioning of special counsel attorney Michael Dreeben by wondering if prosecutions of presidents would not undermine the country’s governance – a sign he was partial to Donald Trump’s immunity claim. “I’m sure you would agree with me that a stable, democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully, if that candidate is the incumbent,” Alito said. “Of course,” Dreeben replied. “All right. Now, if a 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? Alito asked. “And we can look around the world and find countries where we have seen this process, where the loser gets thrown in jail.” Here’s what Dreeben had to say about that: So, I think it’s exactly the opposite, Justice Alito. There are lawful mechanisms to contest the results in an election and outside the record, but … [the] petitioner and his allies filed dozens of electoral challenges and my understanding is they lost all but one. That was not outcome determinative in any respect. There were judges that that said, in order to sustain substantial claims of fraud that would overturn … election results … certified by a state, you need evidence, you need proof, and none of those things were manifested. So, there was an appropriate way to challenge things through the courts with evidence, if you lose, if you accept the results. That has been the nation’s experience. I think the court is well familiar with that.
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Post by Webster on Apr 25, 2024 11:10:31 GMT -5
(The Guardian) Following up on Samuel Alito, liberal justice Sonia Sotomayor repurposed the conservative’s questions implying that a finding against Donald Trump’s presidential immunity claim would undermine America’s “stable, democratic society”. “The stable democratic society needs the good faith of its public officials, correct?” Sotomayor asked. “Absolutely,” special counsel’s office attorney Michael Dreeben replied. “And that good faith assumes that they will follow the law?” the justice continued. “Correct,” Dreeben said. Then Sotomayor made her point: Now, putting that aside, there is no failsafe system of government, meaning we have a judicial system that has layers and layers and layers of protection for accused defendants in the hopes that the innocent will go free. We fail routinely. But we succeed, more often than not, in the vast majority of cases, the innocent do go free. Sometimes they don’t and we have some post-conviction remedies for that. But we still fail, and we’ve executed innocent people. Having said that, Justice Alito went through, step by step, all of the mechanisms that could potentially fail. In the end, if it fails completely, it’s because we’ve destroyed our democracy on our own, isn’t it?In his answer, Dreeben noted that “there are additional checks in the system,” and “the constitutional framers designed a separated power system in order to limit abuses.” “I think one of the ways in which abuses are limited is accountability under the criminal law for criminal violations, but the ultimate check is the goodwill and faith in democracy. And crimes that are alleged in this case … are the antithesis of democracy,” he added.
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Post by Webster on Apr 25, 2024 15:31:29 GMT -5
(The Guardian) Supreme court could send Trump immunity claim to lower courts — potentially further delaying trialNow that the dust has settled on the supreme court’s nearly three hours of oral arguments over whether Donald Trump is immune from criminal charges related to attempting to overturn the 2020 election, a few things appear likely to happen. The first is that the justices, despite the fact that conservatives outnumber liberals six to three, do not seem likely to accept Trump’s sweeping claim that he can’t be charged for his alleged post-election plot, because he was simply acting in his capacity as president. But that doesn’t necessarily means special counsel Jack Smith carried the day. As the Guardian’s Hugo Lowell and Martin Pengelly report, the justices seemed open to sending the case back to the lower courts to determine which charges concern Trump’s actions as president, and which were done in his private capacity – the latter being what he’d have to stand trial on. If something like that does indeed wind up being the court’s decision, it could mean more delays in the case, potentially until after the November election, which would further delay the possibility that a jury would find him guilty in the case and strike a blow to his presidential ambitions. Here’s more: The US supreme court on Thursday expressed interest in returning Donald Trump’s criminal case over his efforts to overturn the 2020 election back to a lower court to decide whether certain parts of the indictment were “official acts” that were protected by presidential immunity.
During oral arguments, the justices appeared unlikely to grant Trump’s request for absolute immunity from criminal prosecution, with both Trump’s lawyer and the justice department’s lawyer agreeing there were certain private acts that presidents would have no protection for.
But the chief justice, John Roberts, and the conservative justices suggested that presidents should have some level of immunity and would favor the presiding trial judge in the case deciding whether any acts in the indictment were official and should be expunged.
The subsequent questions explored how to decide what actions were official and what actions were purely private, potentially to develop a test for a lower court to apply to the indictment, and whether a test should consider Trump’s motives or purely objective facts.
If the supreme court remands the matter back to the presiding US district court judge Tanya Chutkan, it would almost certainly inject new delay into the case that could preclude it from going to trial before the November election .
Such an outcome would itself be a win for Trump, whose overarching legal strategy against the cases brought by the special counsel Jack Smith has been to seek delay. If he prevails in the election, he could appoint as the attorney general a loyalist who would drop the charges against him.
The outcome of a remand would also give Trump a material legal win, as it would pave the way for some parts of the indictment to be expunged. Excising some of the conduct as alleged in the indictment could reduce his criminal exposure and undercut the remaining charges.
The supreme court’s conservative justices appeared to have concluded during the argument that there must be some immunity because some “core functions” of the presidency – issuing pardons, veto power – cannot be regulated by Congress and so criminal statutes cannot apply.
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