Sam Alito Says that Donald Trump Is a Maligned Ham Sandwich
I’m not, now, as full of despair as I was at one point in the SCOTUS hearing on Presidential immunity. (Here’s my live thread.) I believe that a majority of the court will rule that for private conduct — adopting the Blassingame rule that a President acting as candidate acts in a private role — a former President can be prosecuted.
But whooboy, Sam Alito really really believes everything Trump has said about this being a witch hunt. He repeatedly said that the protections that we assume ensure rule of law in the US — DOJ guidelines on prosecutions, the role of a grand jury, the role of a judge — are not enough in the case of Donald Trump. Sam Alito believes that Donald Trump should not have to be inconvenienced by a trial while he could be doing something else. Sam Alito also believes that January 6 was a mostly peaceful protest.
Alito even suggested that a President would be more likely to engage in violence after a closely contested election if he knew he might be prosecuted for it than not.
It was fairly insane.
Meanwhile, while I think there’s a majority (though Steve Vladeck is not as convinced) — with at least all the women in a majority — to let this case proceed at least on the private acts alleged in the indictment (with the huge caveat that Trump’s demands of Pence would not be considered a private act!), it’s clear that Neil Gorsuch doesn’t see how 18 USC 1512(c)(2) could be applied to Trump because we don’t know what corrupt purpose is, even though, of all the January 6 defendants, his corrupt purpose — his effort to obtain a improper private benefit — is most clearcut.
But there’s a whole lot of garbage that will come out of this decision, including immunity for core actions, like pardons and appointments, that could clearly be part of a bribe.
Notably, both Clarence Thomas and Brett Kavanaugh appear to be gunning for Special Counsels (though possibly only with respect to Presidents, not the sons of Presidents).
Michael Dreeben backtracked and backtracked far enough to preserve a case. But it’s not sure what else there will be.
That exchange between Kagan and Sauer, where the president uses the military to conduct a coup (or autogolpe) because he doesn’t want to leave office, and Sauer says it’s an official act, so the president would have to be impeached & convicted first before he can be charged with a crime. The fact that as many as 4, and maybe 5 SCOTUS judges buy this crap is sickening.
Disturbing is more like it. Especially with how partisan politics is and there would never be a conviction in the Senate.
The whole thing was quite terrifying, bc each of the men had some reason they might rule to protect Trump.
Kav and Gorsuch want to say POTUSes can only be charged with crimes that Congress said they could be charged with.
Roberts is, as always, uninterested in protecting the right to vote of Democrats (he cut Dreeben off when he mentioned that little bit).
Thomas, who actually might surprise, otherwise thinks Jack Smith is an out of control prosecutor and Garland should never have appointed an SCO, a view joined by Kavanaugh.
And, again, Alito is just making shit up. Totally insane.
If Jack Smith is an out of control prosecutor then what about Durham and Weiss? I would love their thoughts on them and their conduct.
Don’t forget: IOKIYAR.
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“Doing the Lord’s work” most likely.
Seems like the only hope is that Thomas, while he’ll do what can to help Trump in the context of the cases that come before him, might be less likely to go along with the Kavanaugh-led bloc that wants to issue sweeping dicta about the sacredness of the presidency and how unfair it is for any president to ever be held accountable for anything. Is that about it?
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Is it possible they don’t know these oral arguments are recorded? SCOTUS judges, as a rule, tend to be pretty out-of-touch.
No.
Nor are they out-of-touch with regard to the consequences of what they contemplate.
Every one of the military personnel who complied with the president’s orders to support his coup would be subject to prosecution for following illegal orders.
Their only escape would be the whimsical use of the president’s pardon power. Hardly a system in which the rule of law prevailed. And, yet, we’re left to wonder whether a majority of this Supreme Court would reject – or endorse – that outcome.
Dictatorship hangs in the balance. But the first dictator would be Joe Biden. Should this Court be more concerned about whether he’s too much of a gentleman to use his newly-invented, extra-constitutional powers?
The other thing they ought to be concerned about is what Trump might do to them (although I think cognitive dissonance blocks them from thinking about it).
If Trump wins, how long would it be before he comes up with something even they hesitate to approve? And what, exactly, do they think he will do if they want time to think it over and come up with a ruling?
He sent a violent mob at Pence even with the backing of the Secret Service and Capitol Police. In what fantasy land are they living in where he wouldn’t do the same to one of their homes?
What exactly would if have to be before a majority of them refused to go along with it? Right now we’ve got several of these judges seriously entertaining the idea that US President’s might need to be above/outside the law itself… a transient proposition that the vast majority of the Framers and those who worked very hard to get the Bill of Rights passed were most decidedly against.
Would the orders actually be illegal, given that the President is immune to prosecution for giving them on the grounds that they are job-related? I could see Alito saying no, maybe others…
Illegality and immunity are separate things, especially where only the president is immune, not the subordinates ordered to carry out his illegal orders.
In legal terms, they would because the military takes their oath to support the Constitution, not the President. Most of us take it seriously, but there are those willing to bend over if it profits themselves (like Bannon and the Flynns).
Absolutely.
Joe Biden won’t be the first dictator because I would guess the 5-6 members on the SC will wait until the results of the election to make a decision on this case. Then make a ruling based on who wins, although they won’t say that’s what they are doing.
The ROBERTS COURTesans themselves
might get a chance to DECIDE who “wins”.
And that is a very real possibility. Everybody knows who they will choose in that case. This “trump” and corrupt SCOTUS phenomenon just keeps getting worse.
Would this be an official act -rounding up all Supreme Court Justices and putting them in front of a firing squad? Then rounding up any members of Congress who’d try to impeach, and putting them in front of a firing squad? That would prevent him from being impeached and so he could never be prosecuted. It all makes perfect fucking sense!!
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Whooboy, indeed.
I came here to check my own reaction to Alito’s ‘line of questioning’.
Thanks, as always.
AAAAACCCKKKK!!!
Thanks for the THREAD on the ThreadReader, Marcy!
https://threadreaderapp.com/thread/1783497429750321272.html
Thanks! For some reason it took FOREVER to roll up.
I really miss getting your live-threads in real time,
but I’m very grateful to get them at all!
Yesterday, I was able to read Klasfeld ON the ThreadreaderApp
while he was tweeting!
PS: It’s great news that your foot has healed…Yay!
Well spoken by Bill the cat…
Sam Alito basically mimics today what Judge Cannon has been saying in the Trump docs case.
Alito and Cannon sing from the same hymn book.
Alito and Cannon are radical activist jurists.
It’s despair time. I cannot believe what I heard, aside from the women on the bench. We just saw a unanimous decision from the 5th Circuit get ripped up.
Thank the goddess for the women.
I think we have a lot to talk about tomorrow. I’ll have some clips handy too. JFC. What a shit show
So the SC throws it back and Trump gets what he wants – no trial before the election. Justice delayed is justice denied. Trump skates again. I have lost all faith in our justice system.
Andrew Weissman, speaking on MSNBC, had an interesting thought about this.
If the case is remanded to the District Court to determine which acts are private and which are official, Judge Chutkan could schedule an evidentiary hearing, including witness testimony, to assist her in making that determination. She would not have to wait the 80 some odd days before scheduling that hearing.
Effectively, such a hearing could result in exposing to the public, well prior to the election, all the facts that Trump wants kept away from the public. The main difference between this and a trial, of course, is that there would be no determination of Trump’s guilt.
That is an excellent idea.
I heard that, tool. Neal Katyal was also part of that discussion. Thanks for your good summary.
How do you do that without tainting the jury pool?
What “pool”? That is the problem and question. and a harder one than you may think to answer.
Let’s hope Chutkan does exactly that!
and pray she finds enough wiggle room in the federal judicial rules to video telecast the hearing so the nation, or at least members of the federal bar (?), can witness the airing of the evidence.
Current rule is 4th bullet from the bottom: https://www.uscourts.gov/about-federal-courts/judicial-administration/cameras-courts/history-cameras-broadcasting-and-remote
and
Codified in (read comments about video teleconferencing exception): https://www.law.cornell.edu/rules/frcrmp/rule_53
I’m wondering if each of us in this commentariot should undertake a letter writing campaign to the chief judge in our circuit to urge s/he support the Judicial Conference make this type of exception explicit (for cameras to be allowed in evidentiary hearings in federal criminal cases where the “victim” is “the free exercise or enjoyment” of 81 million American’s right to have their vote counted –vested by the Constitution and laws of the United States). Would this be useful? Worthwhile? Impactful?
The current membership list is the 2nd bullet:
https://www.uscourts.gov/ about-federal-courts/governance-judicial-conference/ about-judicial-conference [broken by spaces before both “about”s]
Regardless, please channel your bewilderment, disappointment, and fear toward an end that will help uphold the “equal justice under law” tenet that our Nation was founded on, and the “one person, one vote” values that our Nation has more recently been striving for.
Thanks, this is the first ray of hope on an otherwise dismal day. Alito has resorted to jabberwocky. It’s an affront to decency that Thomas is on this case. Does Roberts have a shred of self-respect left?
Senator Sheldon Whitehouse and President Joe Biden must get re-elected to improve the possibility of Supreme Court reform, starting with the addition of four seats.
Expand the court to thirteen Districts with each judge assigned one, as it should be.
President Biden will assure the efforts to balance the court will be bipartisan, to the dismay of both poles.
Big tents hold more people.
In regard to Andrew Weissman’s suggestion that Judge Chutkan on remand could schedule an evidentiary hearing, including witness testimony, I am not sure that testimony is necessary. For purposes of a defense motion to dismiss, the allegations of the indictment must be taken as true. Boyce Motor Lines v. United States, 342 U.S. 337, 343 n.16 (1952). The charges here are detailed and specific; the District Court could determine from the four corners of the indictment what allegations relate to official acts and what allegations are private conduct.
If that didn’t scare you, no evil thing will.
Brown Jackson had the good sense to observe that this case is not a good vehicle to decide the ambits of Presidential immunity, because the actionable conduct here is private – election seeking.
But she didn’t get the memo from Kavanaugh, Alito and Gorsuch that this case is about deciding the rules of the road for future Presidents. Kavanaugh’s clear statement position is perhaps even more extreme than Alito’s views, but that remains to be seen.
Barrett got Trump’s attorney Sauer to admit that most of the conduct at issue is private. But she also seems deeply concerned about writing the rules of the road in this case and is trying to find some way of sending the case back for trial while also deciding the big picture questions. The Court could do that – deny Trump’s claim of absolute immunity, send it back and say that an opinion will follow. But I see no way to tell from the argument whether there are five votes to do that or not.
Much seems to depend on Gorsuch and Roberts. Not only with respect to the ultimate decision but also with respect to timing.
And I don’t think Dreeben backtracked all that much. He quite clearly said he was “defending the judgment of the court of appeals” – the judgment – not the decision. DOJ has pushed expansive views of Executive authority for decades. Today they were confronted with the frightening reality of where that line of reasoning could ultimately go. I thought he was quite good and even got away with some speeches that Executive authority cannot immunize what is alleged in this case.
It’s a two hour listen. I would encourage all to do so.
I actually think Thomas could be a surprise 5th vote. Which is consistent with some of what he has said in the past.
Yes, it’s possible. I think we could see a very fractured opinion with concurrences and dissents and Justices joining in certain parts of the decision and not others. All of that will take time.
Lol.
I agree with you most of the time, but these comments are petty. I wish you would have at least alluded to why you find this opinion, of the sites namesake, simply ”lol”.
I know you don’t care what my opinion is but these posts just lower my opinion of a person I otherwise agree with and sympathize.
Don’t worry, this is the one and only time I’ll ever bring this up.
He may as well have used an emoji. Same difference.
Ack. Sorry Rayne. I didn’t see my name autocorrected.
[FYI – username fixed. Check your browser’s cache and autofill. /~Rayne]
You’ve just described most of his comments, in fact.
And rather more politely than they deserve, so kudos.
To conflate the messenger with the message someone chuckles innocuously at, and browbeat them with that ‘confusion,’ strikes me as flaming.
LOL here as well, though color me more than ready to be shocked out of my sneakers.
His wife is a co-conspirator in this case, for christ sake. I know that he and cognitive dissonance are close buddies, but he’s actually cohabiting with Ginni fucking Thomas.
Care to share your thinking?
The Court is obligated to decide this specific case, but only because it chose to take it, rather than deny cert. or affirm the DC Circuit’s decision. It is not obligated to expand this case to create rules of the road for future presidents, based on hypothetical circumstances not present here.
Expanding their consideration to what is beyond the scope of this case would, however, be a convenient dough in which to hide the hard shells and rotten fruit of their priorities and reasoning.
I guess we’ll have to see how much the Supreme Court meddles with the rules of the road. But if the Supreme Court allows a road for the presidency that takes the Capitol by eminent domain, I’m wondering whether a future mentally balanced Supreme Court could calmly withdraw this on their own (assuming an extant court)?
Or to undo the SC ruling, does the issue have to come to them again in the form of a court case after in another unsuccessful autogolpe?
The amount of times I heard some version of “I’m not really interested in discussing the case that’s actually before us” (from male side) was just nauseating.
Yes, those comments had (and still have) me seething. If you don’t want to talk about *the case before you* and instead are just here to build sandcastles of law for future presidents, then why the hell have you kept this case in limbo for months? (I mean, we all know why)
Ric Hasen:
Methinks there won’t be anything to pardon. It’ll get dropped like ripe fish.
I have been committed to carrying out my duties… in accordance with both the letter and spirit of all applicable rules of ethics and canons of conduct.
Samuel Alito
One of the most solemn responsibilities of the president and it’s set out expressly in the Constitution is that the president is to take care that the laws are faithfully executed, and that means the Constitution. It means statutes. It means treaties. It means all of the laws of the United States.
Samuel Alito
I’m not any kind of a bigot, I’m not…
Samuel Alito
Brown Jackson asks how a president who can commit crimes while in office honor their oath to preserve and protect the Constitution and see that the law of the land is executed faithfully…a very good question not answered by Sauer, or Alito for that matter.
My basic question:
1] SCOTUS did NOT have to take this case…
…so WHY did they?
[and 1a]: WHY did [Insurrectionist Spouse] THOMAS not recuse?
You know more about this stuff than I do, but for what it’s worth, my answers are (1) because it’s a really important constitutional issue, and (1a) because he is either fundamentally incapable of perceiving himself as involved in a conflict of interest or so deeply corrupt that it doesn’t matter to him.
I vote for “…so deeply corrupt that it doesn’t matter to him.”
Based on today’s questioning, a majority of the Court wants to rule in Trump’s favor. The problem is framing how to do it, although creating substantial delay in his federal criminal trials alone is of significant help.
Clarence Thomas’s superpower is his shamelessness. He will never recuse himself in a case that matters to him.
How to do it — keeping US v Nixon in mind (issued 7/24/74), delay issuing a decision until well into the summer. August 15th, Feast of the Assumption, would be appropriate.
This really was a wretched morning’s work by Roberts & Co.
Barfworthy.
Notorious frat boy Kavanaugh seemed to put extra effort into making Sauer’s case for him on more than one occasion.
Alito sounded like the pompous voice he likes to hear.
The women were on top. They need Roberts to care about his reputation. Maybe they can come to a consensus.
Gorsuch, too, chose to swoop in and save Sauer from conceding inconvenient facts and from making more frivolous arguments than usual.
Sauer strikes me as someone who always has quick response at the ready. He sounds like fast-speaking RFK Jr. who is not easily interrupted mid-excuse.
A question: Let’s say that official acts (such as pardons, job offers, or pressure on other officials to rule in certain ways) are off the table for prosecution. Does that mean that these acts cannot even be cited in evidence of corrupt intent in connection with more obviously private acts (candidate stuff like calling for supporters to riot, asking state officials to throw out legitimate votes, etc.)? Or can they still be brought into the case as converging evidence?
Damn good question.
I think this bit from NYT Charlie Savage may answer that:
https:[]//www.nytimes.[]com/live/2024/04/25/us/trump-immunity-supreme-court/d96df52f-b634-5493-afa6-bcb2ba26481e
Given this Court’s solicitousness of the chief executive’s feelings, who would investigate the facts and circumstances that would establish whether an act were official or unofficial, how and when?
Like the defense’s attempt to make impeachment and conviction prerequisites for criminal prosecution – with the expectation that they are impossible hurdles to overcome – this exercise over public v. official acts seems designed to keep a case from ever forming or being tried.
I was annoyed when Dreeben acceded to Barrett’s (?) badgering prompt to agree that ‘it’ needed “interpreting.” It seemed like a question that called for a NO. I don’t know what ‘it’ was specifically or if that was only within a certain context, but is there any way he can take that back?
I keep thinking about how official acts got dealt with in Sullivan v NYT. I mean it’s not like Trump invented the wheel.
Keep working on it. January 6th is being twisted around the idea of public v. official acts of the chief executive, surrounded as he is by all manner of privilege that did not apply to the defendants in your hobbyhorse case. Developing evidence sufficient to distinguish the two, in the context of potential criminal liability, would be rather more difficult.
The discussion that ACB initiated concerned the Public Authority Defence (though Dreeben at one point refers to it being an Exception to Liability rather than a defense) and ACB was attempting to analogise the boundaries of immunity to ‘it’
Listen: https://m.youtube.com/watch?v=kLYT-dXL1Q8 02:18:30 et seq
ACB wanted to learn and Dreeben taught her
That was a very high point in the session, a welcome moment of clarity after Kavanaugh. And it was followed by Brown Jackson’s brilliant interchange with Dreeben, which ended in a tightly summarized bow, followed by Roberts asking Sauer if he wanted to rebut, to which Trump’s raspy mouthpiece gave a quick “No,” indicating that he’d rather the entire session end with a very clean wrap-up by his opponent rather than subject his confabulations to her formidable, rapier intellect.
I have said it before, I will say it again. This Supreme Court is corrupt to its core. The only solution is to elect enough people to either impeach Justices (a target rich environment) or dilute their power by putting more justices on the bench. No one will save us but ourselves.
yep
Although I 100% agree “This Supreme Court is corrupt …”, IMHO, this underestimates the problem as much as the statement “DJT is corrupt”. Removing Trump, or select Supreme Court justices, or even both – will not solve the issue. Is the Supreme Court more corrupt than the 5th? Or the 11th? Or the whole organization feeding the cases upward.
Is Trump more corrupt than Ray Blanton was decades ago? or James Traficant? or Huey Long? I think the top level of government is actually very representative of the violent, militaristic, materialistic, short sighted population that has chosen them for leaders. I’m not sure “ourselves” are up to the task, or, in the case of the evangelicals, have any desire to do so.
Absolutely. I can’t argue with any of that. Fixing SCOTUS though, I believe, is the first necessary step. After today’s hearing, I feel like we have three branches of government, an Executive, a Legislative, and a corrupt Radical Conservative branch. Reclaiming the integrity of the Supreme Court requires an electoral win and political will. IMO, this is the easiest steps on a long and difficult path.
They’re going to do everything to keep Trump free and clear.
Did they happen to say when a decision may come?
OT, 1 Kirschner on his podcast said that if Merchan finds Trump in “criminal” contempt, he could be jailed in every other open case because he agreed to keep from criming.
2. The THREE mistakes that ruined the [Air Canada] $20-million airport gold heist, from video https://www.youtube.com/watch?v=GcpRZFwvuuI
Although thief was completely masked and gloved, he presented waybill with an ungloved hand so finger prints established.
Of course thief was caught in PA.
One of the Air Canada employees started living the high-life and posted himself doing so.
Alito seems to have misspelled “malignant” and omitted “narcissist” altogether. /s
Then again, for an apt Trump-as-a-food metaphor, something bitter and orange would work best—he’s uniquely unappetizing.
Fruit of the makrut (AKA kieffer or kaffir lime)
Silver medal + bonus point for its resemblance to a scrotum.
Ladies and Gentlemen, I give you . . . durian:
A spiky exterior, a husk that splits on impact, with the odor of sulphur and socks, and it’s forbidden to bring it into public buildings or on public transport? Sounds a like a good candidate for what you are looking for.
I can attest that many hotels in SE Asia ban guests from bringing durian into the hotel.
We have a winner!
Having smelled durian from at least 50 paces away, I can assure you that “the smell can be unpleasant and too much for many people” is an understatement. I don’t know how to describe it, but it is a foul smell.
Durian actually tastes good, which is very interesting since our taste sense is intimately linked with olfaction.
Timing is everything. Durian can quickly change from pleasant to foul smelling. Pretty sure it’s nothing like jackfruit, another SE Asian tree fruit.
A memorable description was: like eating a creme caramel over an open sewer.
I ate durian when I lived in Hawaii. Even durian ice cream. But I preferred mango.
My local supermarkets have started carrying jackfruit, which is large and spiky.
I learn so much here. A small island of sanity in a world that becomes harder to recognize daily.
Poncirus. Small, inedibly tart, seedy fruit on an invasive tree with dagger thorns.
2 thoughts spring to mind:
1) that Alito, who overturned Roe leaned heavily into the notion that stare decisis would apply to this decision broke my irony meter
2) given Sauer’s reliance on the fact specifity of personal v official acts, that this is an interlocutary appeal seems very relevant
Nicolas Sarkozy and Jacques Chirac would like to have a word with Alito, Gorsuch, and Kavanaugh. They didn’t hire them and the former French presidents were convicted after they left office.
https://www.france24.com/en/france/20230401-amid-trump-indictment-a-look-back-at-france-s-history-of-prosecuting-ex-leaders
France, Israel, Italy, South Korea. It’s almost as though legal accountability for the chief executive is a widely-recognized feature of liberal democracies.
Even not-so-liberal: S. Africa, Peru, Brazil, Pakistan.
This was a dreary and depressing exercise in that it made clear what the majority of male justices showed up to prioritize. ‘Ben Franklin and the threat of factionalism.’ wtf
Especially disturbing was the implicit distrust of both the grand jury system and the ability of regular American citizens to sit in judgment of the criminality of their ‘better,’ the POTUS.
I expect a remand or sophistry aimed to sink the government’s J6 case against TFG.
ianal
This Court’s majority seems so concerned about the powers of the president, and one former Republican president in particular, that it seems intent on throwing out the Constitution and the rights of American citizens to protect him.
The word “seems” is weak tea, your Lordship. The word you are looking for here is “is”.
I wasn’t there and, sometimes, understatement is more persuasive.
Rather ironic Richard Nixon said this:
“With all the power that a President has, the most important thing to bear in mind is this: You must not give power to a man unless, above everything else, he has character. Character is the most important qualification the President of the United States can have.”
(From TV ad for Barry Goldwater’s presidential campaign in 1964.)
https://www.pbs.org/newshour/spc/character/quotes/
He didn’t say it had to be *good* character. And he’s not exactly a shining example of the presidency.
Agree. He committed crimes. He said in 1973, “I am not a crook.”
(https://www.youtube.com/watch?v=sh163n1lJ4M)
This may be inconsequential in the big picture, but on the notion equating a trial not starting before the November election with (a god forbid victorious ) Trump ordering the investigation to be shut down: does that take into account the 2.5 months between the election and inauguration? Too short for a full trial, but one were well underway could Trump order the charges dropped?
Whomever is the next President will not be sworn in until noon on January 20, 2025.
Might be why punaise said “2.5 months,” exactly the time between Nov. 5th and January 20th.
I can read, thanks. A president-elect has no power to order the Department of Justice to do anything until sworn into office on Inauguration Day. Which, if you were trying to be helpful, you could have just stated first.
Ease up, folks. No circular firing squads here.
Your timing was fortuitous.
Unfortunately the former guy has in the past assumed that just winning the states gave him power.
Exactly. Just think of what Michael Flynn told the Russians in Dec 2016…basically to ignore what the Obama admin decided and acted on.
What Mike Flynn did (surreptitiously) isn’t a remotely apt comparison as the Biden administration will still have an Attorney General in place until January 20th 2025. If a trial is underway during the transition, there will be no power for any named incoming Attorney General nominee to undermine it just yet. And even then, it does take some time for Congress to confirm a nomination. Jeff Sessions, for example, wasn’t sworn in as TFG’s first AG until February 9th, 2017. If a trial is ongoing and TFG wins (both pretty big ifs), that topic would undoubtedly make the AG confirmation process even longer and more contentious (presuming worse things don’t happen).
In the four years from Trump’s firing of Sally Yates until Joe Biden appointed an interim AG, Trump went through six AGs, four of them were acting, including the Big Dick Toilet Salesman.
The DoJ would be the first department a re-elected Donald Trump would gut like a fish. He would fire Merrick Garland and his direct reports before he takes his hand off the swearing-in bible. He would install an acting AG and as many other acting officials as were necessary to complete the gutting.
“No duh,” as the kids say. But the original question was about what he could do with Presidential powers if there was a trial in progress during the transition between Election Day and Inauguration Day, and the answer yet again is nothing.
The answer yet again is that virtually nothing would happen in those exactly 2.5 months that could not be undone, if Trump is re-elected.
aye, there’s the rub.
Won’t deter him for ordering it dropped on appeal.
There seems to be a great deal of discussion about what a former president can be prosecuted for regarding public and private acts. I found this statement in Federalist #69:
“The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.”
Seems like the founders were saying that former presidents have criminal liability under the law, albeit they do not make the private/public distinction.
This was used by Trump’s side to say “You have to impeach the president in the House for his bad acts, then convict him in the Senate, and only then could you move to a criminal trial. Without impeachment, the president is immune.”
Which is an absurd reading on its face, but very much in keeping with the “throw shit at the wall and see what sticks” style of lawyering that Trump’s teams have adopted across the board.
Gerald Ford’s September 8, 1974, pardon of Richard Nixon contained the mundane, uncontroversial view that prior impeachment and conviction, political acts of the legislature, were not required for Nixon to be subject to post-presidency legal consequences of investigation, indictment, prosecution, conviction, and imprisonment.
This Court’s majority is making shit up.
https://www.presidency.ucsb.edu/documents/proclamation-4311-granting-pardon-richard-nixon
yes they are…one has to try to imagine how they would see this case before them today if the former president in questions was a Democrat or even specifically Joeseph R, Biden.
That springs to my mind every time I hear of the RW justices trying to protect “their” president. Substitute Joseph Biden for trump and I think their arguments would be upside down.
This report and conversations brings to mind the mindset of the radical Christian on the bench and everywhere that Trump is like Jesus being prosecuted in the Bible. Alito seems like he’s 100% in on that thought. The other 3 seem like they are partially into it. And Roberts, idk, he seems more of an opportunist and sways with a conservative wind.
Trump brought the 4 the end of Roe. Trump’s likely promising the end of gay marriage. I think Alito and most likely the other 3 would make love to the devil in order to kill gay marriage.
For all the attorneys here, I would suggest that every one of you re-read the writings of Masha Gesen.
To wit: the ‘law’ may not be what you have always thought that it is.
LOL. I would suggest you look up the definition of “sophomore.” Masha Gessen probably already knows what it is.
The word “afterwards” is actually somewhat ambiguous. After impeachment and conviction, or after the presidency?
Listening to Alito and other conservative men offering their questions, supporting some kind of immunity to protect former presidents from frivolous trials, you’d almost get the impression that they have little trust that the courts would be able to protect former presidents from frivolous trials.
Why do Alito et al. think courts and judges are so inferior and impotent?
/s
Because they’ve each seen a full-length mirror before?
Some of the MAGA SCOTUS are convinced America needs their input in the form of a decision laying out a rule for all future cases. That is the sickness of the role SCOTUS plays in our society.
SCOTUS is a “court”. It decides the case in front of it. It doesn’t decide the parts that aren’t before it. In this case there is an indictment. All they have to do is let the case go forward on the indictment. Then if there is a conviction, the loser can appeal.
There are no SCOTUS cases on the immunity of presidents for crimes. If they can agree that some part of this indictment is somehow immune, they can order it be stricken. If there’s an appeal they can hear the case on the facts proved at trial. That’s exactly what happens to other criminals.
What they are doing is legislating. That’s Art. 1.They aren’t the legislature. This is far outside their constitutional power.
Also I agree with Muller, She Wrote: “WOW Alito is an ASSHOLE.” https://twitter.com/MuellerSheWrote/status/1783523584553730175 And Elie Mystal. I agree with every characterization of SCOTUS in his tweetstream, https://twitter.com/ElieNYC/status/1783491059563036709
It decides the case in front of it, even if it hasn’t happened or maybe the plaintiff has no standing, but who knows, it could happen some day.
US courts have no authority to render advisory opinions. They have only the power to decided the case or controversy actually before them.
If “US courts have no authority to render advisory opinions” then why did the Supremes rule for a cake maker who had never dealt with a gay couple, that she had the right to refuse baking a cake for a gay couple?
And I can’t remember, but they ruled for another plaintiff that had no standing.
The pray-happy football coach.
Because the Court violates its own rules, something no one can question it on, or calls a decision “declaratory” rather than advisory. Here, the Court will go further and call whatever Rube Goldberg machine it comes up with a decision in Trump’s case.
For the same lawless reasons, Joe Biden or another Democratic president’s conduct that’s remotely similar to Donald Trump’s behavior won’t be held to the same forgiving standard it imposes on Trump.
https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/advisory-opinions-and-declaratory-judgments
Or, as I wrote above, because the law may not be what you have always thought it was. YOU do not get to decide. ‘Someone’ else gets to make those determinations, and you are helpless to effect the outcome. That’s how, and why, authoritarianism succeeds.
It’s a trend, called Justices Make Shit Up.
There was a similar ruling in the student loan case, where Missouri had no standing as it was MOHELA, not the state, which was the loan servicer. Kagan’s dissent was fire:
“In every respect, the Court today exceeds its proper, limited role in our Nation’s governance…”
“The result here is that the Court substitutes itself for Congress and the Executive Branch in making national policy about student-loan forgiveness,” she wrote. “Congress authorized the forgiveness plan (among many other actions); the Secretary put it in place; and the President would have been accountable for its success or failure. But this Court today decides that some 40 million Americans will not receive the benefits the plan provides, because (so says the Court) that assistance is too ‘significan[t].’”
Res ipsa loquitor
xyxyxyxy, are you conflating the Masterpiece Cakeshop baker with the website designer? Jack Phillips in the bakery case clearly had standing to seek judicial review in the Colorado courts, in that the Civil Rights Commission had ruled against him. Lori Smith’s standing regarding her hypothetical future website designs was much iffier as to standing.
In their questioning today, the conservatives were quite willing to entertain lengthy discussion about imaginary future former presidents and their hypothetical conduct, rather than to discuss the all-too-real former president whose conduct is at issue.
If SCOTUS is looking to make absolutely certain that this case is delayed beyond the election, they will remand it back to the district court and order them to hold hearings and entertain motions to find a line between official and personal conduct, then let the district court rule, and then let Trump’s appeal of that pre-trial ruling rise to SCOTUS once more, all the while putting the trial in the case on hold until the appeals have been heard.
Let us note for the record that SCOTUS adjourns for three months (July-Sept), and only rarely hears cases during the summer. (See US v Nixon in 1974, for the counter-example.) Given how long SCOTUS took to even decide to hear today’s appeal, I see no reason to believe that they would trouble themselves to even hear the next round of pre-trial appeals in this case before November.
Cleary the men on the court failed to understand why the colonist rebelled and threw off the shackles of the king for their independence. I assume the court will effectively allow the insurrectionist president to skate the ‘The Rule of Law”. Failure of the judicial system to adjudicate the only president to try and stay in office and prevent the peaceful transfer of power within a 4 year period is a complete failure of the judicial system and a failure to the American people. The politics of our judicial system has failed America.
The ballot box has and always will be the only judgement rendered on the malignant narcissus but even the ballot box is under attack by republicans with voter suppression and gerrymandering.
I look forward to the day when a President announces on TV that he will pardon anyone in exchange for $, the $ amount to be determined by the crime(s) the person wishes to be pardoned for. /s
Even in Russia they kind of pretend this doesn’t happen, although everyone knows it does.
I listened to only bits and pieces. Took a bit of solace when the smartest person on the court had the last word before Roberts adjourned.
The few times I heard Alito speak, I couldn’t take it all and had to turn it off.
Speaking as a lowly unpolished plebe, I wished Dreeben had remained silent after at least one Alito question/assertion. (Pick one, any one.)
After long Dreeben silence:
The court: Say something!
Dreeben: I can’t argue with an idiot…It’s like talking to a squirrel.
I was astounded when Kavanaugh said the law enabling the “Independent Special Prosecutor” was terrible. Didn’t he work under one? Wasn’t he even more willing than Starr to go after Clinton with anything they could toss at him and get to stick? When he and Dreeben got to the Lawrence Walsh investigation, talk about the elephant in the room!
I Knew Brett Kavanaugh During His Years as a Republican Operative. Don’t Let Him Sit On the Supreme Court
https://www.nbcnews.com/think/opinion/i-knew-brett-kavanaugh-during-his-years-republican-operative-don-ncna907391
Article by David Brock author of: Blinded by the Right: The Conscience of an Ex-Conservative
All straight out of Putin’s Playbook: stack the courts, especially the high court, with partisan activists who by increments hand the chief executive enough power to engineer election results and serve as long as they wish. Minority rule “forever.” So, today wasn’t so much a surprise for me as a disappointment.
But will these men hand that power to Biden? I doubt it. Even if he is Catholic.
What’s to prevent Roberts from issuing a ruling after the election? If Trump wins, hand down the ruling right after Robert’s swears Trump in. If Trump loses, then issue an alternate ruling in mid-November and wait for another GOP PotUS to establish absolute immunity. Not likely? Maybe.
Are there any affordable houses left in Ireland, Marcy? Asking for a concerned reader.
Its terrifying enough to think your proposition might have some basis. Until today I didn’t think a grand conspiracy was afoot, now I’m not so sure anymore
The grand conspiracy is called The Federalist Society, and they’ve been working right out in the open for about 50 years now, with the full and unlimited support of the Republican Party, at every level. The current caliber and quality of our system of “justice” is the direct result. The question is still “WTF are we gonna do about it?”
No. It’s not. It’s called Leonard Leo.
The Federalist Society explanation for everything is facile and easily disproven. I get that it’s simple and allows you to avoid complexity. But that doesn’t make it correct.
While I agree that solely blaming the Federalist Society is a simple, facile explanation, citing Leonard Leo as counter-example is odd since, after all, he is the co-chair of the Federalist Society’s board of directors.
For starters, Leo is the money man and motivating force, but he works through dozens of entities, some more public and visible than others. FedSoc is only one of them. He can shift resources at will.
Some version of this is what is going to happen. Some sort of delay on Trump, then a draconian ruling for the presidency, but only if Trump wins. Dreeben was not at his best, and neither were the justices. Sure, the hypotheticals they discussed could be endless, like murdering a political rival. The hypothetical everyone kept avoiding and needed to be said out loud was “what if the president killed, jailed or exiled a supreme court justice?”
Philip Bump:
https://bsky.app/profile/pbump.com/post/3kqxwc7crc62t
Apr 25, 2024 at 1:24 PM
Well, that went a lot worse than expected.
No Incognito
Super duper, they’re so neato,
They’ve got their egos and their credo,
Each fancies wearing a red speedo
to cover for each lost libido.
Roberts’ MAGA filch a pocket veto,
Mae West might say it’s their torpedo,
We see them all, no incognito,
All fractals of the same Alito.
As for democracy? Finito.
Or the verdict, yet, is incomplete-o?
Presently mid-lather, rinse, repeat-o.
Each of you owe Opera Man an apology lol
If this Supreme Court majority gives Trump what he demands, or a good part of it, and Trump wins the election, all of those “improbable” or “absurd” hypotheticals about what could happen will no longer be hypothetical. The Heritage Foundation’s Project 2025 will assure Trump, for example, that he could call on over 100,000 new govt employees who would absolutely do whatever he asks.
I shudder to think what a second-term President Trump would do with SCOTUS-sanctioned carte blanche. He’s lived his whole life under the assumption that he can skirt the rules. If that assumption were made law, gods help us all–especially given his penchant for retribution.
Sam Alito has Helsinki Syndrome. /s
Alito’s argument today was that imposing the threat of criminal liability on a departing president might make him mad. It might incentivize him into committing crimes to stay in office: “[W]ould that not lead the country into a destructive cycle of destabilizing democracy?” His inelegant phrasing gives away the game. Democracy is what Alito finds destabilizing. Holding a criminal politician to account is merely an expression of it.
Alito’s public argument, though, is that the possible consequences of making a president mad are more dangerous than holding a president accountable through the normal processes of the criminal justice system. He must confuse a president with God, the god of Star Trek V’s, The Final Frontier.
https://lawandcrime.com/supreme-court/justice-sotomayor-somberly-places-death-of-democracy-at-feet-of-supreme-court-if-justices-rule-in-trumps-favor/
Alito ignores that in over two hundred years, the American experience with presidents yielded none of the hypothetical problems Alito seems obsessed with. Until Donald Trump.
And ignores the 21st Century regarding woman’s reproductive rights, going back to the 17-Century for antiabortion inspiration. Clinging to the past with old energy and old beliefs.
Samuel Alito’s Antiabortion Inspiration: A 17th-Century Jurist Who Supported Marital Rape and Had Women Executed
https://www.vanityfair.com/news/2022/05/samuel-alito-roe-v-wade-abortion-draft
This.
Or is Sam Alito simply more well-informed about the criminal intent of future Republican presidents than the rest of us?
Or he’s engaging in magical thinking. Either way, he’s proof of the Peter Principle.
I’m afraid he is. The radical Christian Right know the only way they will get everything they want is to force it on the majority and keep their minority in perpetual power.
How does the possibility of being held accountable for a crime make someone more likely to commit a crime? Only for the mentally ill.
Alito had to take logic courses at some point, right? He might have “How to Lie with Logical Fallacies” at his bedside.
Well I, for one, am relieved that the Court is just calling balls and strikes and not lowering themselves to legislating from the bench. /s
Not only must Biden win in November, but there needs to be a huge takeover of the House and Senate so that Thomas can be impeached and removed from the SC, and Biden can expand the court.
I find myself looking around the room making a mental list of what I will take to England with me in the event that Trump wins and we have to venture to more hospitable shores. Looking back over the arc of our history, the US Civil War seems like it was less dangerous than what could be over our horizon.
Listening to the Court this morning, I had the same sinking feeling and welling up of fury and disgust as I had watching Jan 6. This is exhausting.
England is no better off under the current bunch, largely feasting off anti-immigrant posturing from several second-generation immigrants, but the numbers (and possibility of electoral shenanigans) for Labour are looking a lot better than those for Biden.
KBJ laid out the bottom line in a few clear words.
The Court could just answer the relatively simple questions before it. Has Donald Trump immunity from the specific alleged criminal conduct with which he’s been charged? No, there’s no history, law or precedent that would support Trump’s argument for immunity on the facts of this case.
If the Court did that, then its majority’s hypotheticals, its invented problem of separating official v. unofficial acts into one bucket or another, fall by the wayside. Trump’s case would then proceed to trial in criminal court. Avoiding that outcome was the majority’s project for the day. It completed it.
Did they?
The legal interface between private vs official acts seem to me to have been dealt with just fine and dandy in Sullivan vs NYT, and this is just one example:
“a public official seeking damages must prove that the defendant’s defamatory statement was about the official individually, not about government policy generally” AND “that the defendant’s statement was false”; note the burden of proof is flipped.
And –I might have this part garbled, but one of the defamation ‘per se’ requirements or qualifications for “actual malice” is an assertion that the public official/figure committed a crime. Trump -like anyone else with either status, would have to prove that he DIDN’T commit that ‘private act’ of crime as an individual to win that defamation suit; regardless of whether he didn’t do so through ‘official acts.’
WTF is talking about civil tort law in the January 6th case?
My point is that anyone can see how they did that there, so I don’t beleive Dreeben can’t back out of the absurd premise that ‘private vs official’ acts need to be parsed like a zillion Go pieces, as if they had magnetic poles that needed to be lined up in black & white for the children to play with magnets instead of playing Go, before Barrett & Gorsuch can contenance the facts of the case before THEM.
My point is that you’re misreading Sullivan. One, it’s a civil case, not a criminal one. Different rules apply. Two, in the context of alleged defamation of a public figure, it shifted the burden of proof to the plaintiff public figure, which saved the civil rights movement and the news media from being bankrupted by Southern segregationist litigants.
It did that by requiring a public official, now public figure, plaintiff to show that the defendant’s alleged defamatory statements were both defamatory and made with knowledge of their falsehood or a reckless disregard for whether they were true.
It did not parse public v. private acts. It did not wrestle with investigating a president’s alleged criminal conduct, which could largely be done only by a succeeding president of another party, which opens a separate can of political worms. It did not wrestle with a plethora of privileges that preclude disclosure. It did not wrestle with Fifth Amendment defenses.
Separately, based on their questions, Gorsuch sides with Alito, Barrett does not. And Dreeben can’t back out of anything. It’s up to the Court to define the contours of what’s required.
Predictably, they will do so here in a way that is so vague, it will take successive trips to the Court to determine what a shifting majority actually meant when they articulated them. Those are not novel burdens. They are commonly laid down when a high court wants to protect an individual or class of litigant without appearing to do so and in the absence of legislation it finds suitable.
Standards in civil and criminal law are different. Your comment conflates them. Shifting the burden of proof in a civil matter, for example, is not the same as trying to shift it in a criminal context.
“Actual malice” has nothing to do with criminal conduct. It has a specific meaning, which is that a civil defendant have actual knowledge that a statement is false; or recklessly, not merely negligently, failed to determine whether a statement was true or false.
In American criminal law, the assumption is that a criminal defendant is innocent until proven guilty. A defendant does not have to prove their innocence (although good defense would develop as many facts as possible that argue innocence). The state has to prove guilt beyond a reasonable doubt.
The Bushes gave us Thomas, Alito, and for good measure a Chief Justice who would do away with all civil right legislation. I hate that fucking family.
Oh, I’d rather lay this mayhem at my home state’s Senator who has been grinding away at remaking the courts for what, 30 years.
Thanks Mitch McConnell. Your name will live in infamy.
I’m willing to blame every single Republican Party politician, official, and voter from about 1974-present. That seems more comprehensive!
An alternate route? At best, SC will delay making a ruling such that it will be too late to bring trump to trial before the November election. Alternatively, Jack Smith could indict one or more the Co-conspirators in DC and hold a trial (or trials) before the election, exposing trump’s culpability in a DC Courtroom. His Co-conspirators may try to drag out or dismiss the indictments but they cannot claim Immunity. The Watergate Co-conspirators were indicted, tried and convicted before Nixon was forced to resign in 1974.
I want to commend the [Federalist] Society for bringing together the best minds from right, left, and center to debate the most pressing legal issues of the day.
Samuel Alito
Justice Ketanji Brown Jackson said it best about presidents obtaining immunity.
“I guess what I am more worried about, you seem to be worried about the president being chilled. I think we would have a really significant opposite problem if the president wasn’t chilled. If someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority could go into office knowing that there would be no potential penalty for committing crimes, I’m trying to understand what the disincentive is from turning the Oval Office into the seat of criminal activity in this country.”
The Oval Office was the seat of criminal activity on January 6th. Touring terrorists for Trump bonded in the drug of hate followed their leader who encouraged them to fight. “We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.” Hateful behavior and one has to be taught to hate.
Rewarding criminal behavior allowing immunity to a president who commits a crime is a crime. And in doing so, what are we teaching our children? Our children are watching.
It’s an awkward feeling to stick up for Sam Alito but this is the rare case where EW is following the pack by taking a cheap shot. Alito was talking about the real-life difference that flows from the distinction between immunity as an upfront block on prosecution versus various trial defenses. He is a shitty judge doing a shitty job of advancing a shitty agenda but his comments were not the most hypocritical of the day. Gorsuch took that prize.
Gorsuch professed to regard the possibility of self-pardon as an “unhappy” one. He is part of the Federalist junta using its power to delay the prosecution to leave open the possibility that Trump gets reelected by voters who don’t know how damning the evidence at trial would be. The Supreme Court has intentionally increased the probability that the only presidential candidate in history to seriously consider self-pardon might get a chance to fulfill that narcissistic, lawless fantasy.
“Gorsuch professed to regard the possibility of self-pardon as an “unhappy” one.”
Gorsuch was accurate in his assessment as the executive’s pardon power is plenary. Explain how to get around that in this case before SCOTUS, because only a constitutional amendment will place limits on that power.
Alito seemed to regard it more happily. He virtually invited a future president Trump to pardon himself, were Alito to find himself in the minority in this case and unhappy with its outcome.
I thought Dreeben pp 108 – 111 dealt with the self pardon issue relatively well, concluding with the maxim ‘no man can be a judge of his own cause’ . He was perhaps optimistic that the considerations he outlined would be a deterrent to Trump. A Trump self pardon would create another litigation obstacle course before prosecution could proceed, but the DOJ seemingly would take the position that such a pardon was not valid and void.
What mattes is whether the S.Ct. would approve of it, and how it would ever get to them.
On the assumption that the self pardon is administered towards the end of his next term to protect him from prosecution and punishment for novel outrages and crimes, then it would come before SCOTUS in a similar way to this immunity claim I imagine.
I don’t think there is any reason to suppose he would need to pardon himself to get rid of his present federal prosecutions, as gutting DOJ to do his bidding would be as effective and mote useful all round.
Always best to be sure about such things.
You in the certainty selling business now? Nice.
When it comes to avoiding serious criminal liability, why rely on a SOL or a corrupted DoJ, when you can use a pardon on yourself to make sure?
As I seem to say often around these parts, why not both?
I think Justice Brown Jackson distilled this nicely.
The President swears to execute the laws faithfully and therefore, if the President breaks the law that cannot possibly be an “official act”. The rest of this case is legal sophistry.
In regards to Alitos’ concern that a never ending cycle of POTUS prosecutions, this has been happening since Nixon. The Republicans have been trying to get revenge for a long time. The nerve of these people to cite The Walsh investigation was galling. As I recall a significant number of the conspirators received pardons orchestrated by Bill Barr.
And my response to Alito re: indicting a ham sandwich would have been ” can you be indicted, or any member of this court?’ (Side glance at Clarence Thomas).
These bastards have been so cynical that the first person they nominated for the Thomas seat was Robert fricking Bork, the man who was totally willing to execute the Saturday Night massacre. The Jeffrey Clark of the 70’s you might say.
I would also like to hear some of these Justices answer the JFK question I…is your allegiance to the Catholic church or to the constitution? I think if you got a straight answer from Alito or Leonard Leo that they find Vatican 2 is at least as disturbing as Obergfell.
Religion and politics have been intertwined forever or close to it. The church state separation is anathema to these Republicans and they might be 1 election away from living their dream. I don’t think they will let a trifle like this case get in the way.
Oh, and 1 more thing…one for the ages Justice Gorsuch? You mean like Roe v. Wade?
From Amy Coney Barrett’s commencement address to Notre Dame Law School grads in 2006:
“So what then, does it mean to be a different kind of lawyer? The implications of our Catholic mission for your legal education are many, and don’t worry—I’m not going to explore them all in this short speech. I’m just going to identify one way in which I hope that you, as graduates of Notre Dame, will fulfill the promise of being a different kind of lawyer. And that is this: that you will always keep in mind that your legal career is but a means to an end, and as Father Jenkins told you this morning, that end is building the kingdom of God. You know the same law, are charged with maintaining the same ethical standards, and will be entering the same kinds of legal jobs as your peers across the country. But if you can keep in mind that your fundamental purpose in life is not to be a lawyer, but to know, love, and serve God, you truly will be a different kind of lawyer….”
That right there is the blastocyst that gestated and eventually emerged as the fully formed Dobbs.
Like it or not, we are living in a nascent theocracy.