A considerable amount of today’s commentary is about the case before the Supreme Court. From The Hill:
Former President Trump has a busy day in court Thursday as his New York hush money trial collides with presidential immunity arguments before the Supreme Court.
David Pecker, the former publisher of the National Enquirer, has retaken the stand in Manhattan where he continues providing a timeline of his agreement to bury bad news about Trump during the then-candidate’s 2016 campaign.
Meanwhile, in Washington, the high court is hearing oral arguments in a historic case that weighs the limits of presidential immunity, which Trump is arguing makes him safe from prosecution in his three other criminal cases.
In the final argument scheduled for its 2023-2024 term, the Supreme Court will hear argument on Thursday in former President Donald Trump’s historic bid for criminal immunity. The question before the justices is whether Trump can be tried on criminal charges that he conspired to overturn the results of the 2020 election. The court’s answer will determine not only whether Trump’s trial in Washington, D.C., before U.S. District Judge Tanya Chutkan, originally scheduled for March 4 but now on hold, can go forward, but also whether the former president’s trials in Florida and Georgia can proceed.
Jury selection is currently underway in a Manhattan courtroom, where Trump is being tried on charges that he broke state law when he made a “hush money” payment to adult film star Stormy Daniels so that she would remain silent about her alleged affair with Trump as the 2016 presidential election approached. But Trump, the first president to be criminally prosecuted, was not yet president when the alleged conduct at the center of that case occurred.
Trump was indicted last summer on four counts arising from Special Counsel Jack Smith’s investigation into the Jan. 6, 2021, attacks on the U.S. Capitol. Trump, the indictment contends, created “widespread mistrust … through pervasive and destabilizing lies about election fraud” and then perpetrated three criminal conspiracies to target “a bedrock function of the United States federal government: the nation’s process of collecting, counting, and certifying the results of the presidential election.”
Presidents are already immune from civil suit for acts taken as president. This case is about criminal suits. The challenge for the SCOTUS will be to define exactly when a president is immune from criminal suit without making presidents completely above the law. If they’re not extremely careful, expect every living and future president to be on trial for something.
I think they will have to differentiate between acts while president vs acts taken in the role of president. Some should be pretty easy, like stealing or killing someone. It will be harder to define what Trump did as his were efforts related to his attempt at re-election. Suspect they make a pretty narrow ruling.
Steve
I doubt that many of the justices actually like Trump. I suspect they will struggle between what should be done about Trump and the impact that will have on past and future presidents. Note that the presidency is an inherently political job.
“The question before the justices is whether Trump can be tried on criminal charges that he conspired to overturn the results of the 2020 election. ”
I’ve been listening to the Q&A live this morning. I think its more nuanced that Howe makes it. You point out one of the issues that is weighing on all the justices I heard, regardless of bent: what are the implications for the future? The Special Counsel law and its hindering effects on Reagan, Bush and Clinton were cited………….and then arcane arguments about how this is different ensued.
In addition, and thank god. Questions about state of mind. I’m always fascinated by how many people are mind readers; they just KNOW that Trump was fraudulently thinking deep, evil thoughts. Justices pointed out that politicians will always and everywhere say things that put themselves in the best light. Advance their re-election goals etc. If he offered payola, that’s one thing. If he simply believed his claims that’s another. To create criminality from a politicians natural instincts would cause the entire government to shut down in a frenzy of litigation.
BTW – When do we prosecute Adam Schiff for his knowingly fraudulent charges in the media of Russia, Russia, Russia, interfering with the functioning of a presidency? Hillary Clinton for her bought and paid for bogus fairy tale dictated to Steele? Again, hindering the functioning of a presidency.
Reviewing the commentary of those listening to the arguments, apparently both petitioners and respondents performed horribly at oral briefing.
Jack Goldsmiths article is a good overview on all the legal and policy issues present in the case.
It should be said Trump’s lawyers seemed very focused on a tactical goal; to delay the DC case beyond the November election; and they aren’t worried so much with actually winning the case….
Speaking of threading the needle…I don’t think they will be able to do it.
Its just one report, but in the context of serial (downward) revisions and the last 3-6 months……..the trend ain’t our friend. Note in particular the drop in the savings rate and the ongoing rising balances of credit card debt. Maybe credit card debt forgiveness will be the new student loan forgiveness. Biden didn’t listen to the court there either.
https://www.zerohedge.com/markets/stagflation-shock-gdp-stuns-lowest-print-2-years-below-lowest-estimates-pce-comes-red-hot
I think the SCOTUS case will uphold the Court of Appeals ruling, but clarify to the extent they can reach agreement a number of principles regarding the scope of privilege that will be useful for the trial judge to navigate the novel motions and evidentiary objections in the case.
In Illinois, we’re waiting for an appeals court ruling that might reverse or undercut recent political corruption convictions. Several years ago Governor Blagojevich was convicted of trying to sell Obama’s Senate seat. Years later these convictions were overturned on appeal as essentially unethical, but not criminal. (Other charges were untouched and his prison term was not reduced) Given that I think we knew pretty much knew what Blagojevich did and intended to do when the tapes of his phone conversations were released, it seems absurd that so much time passes before we found out that was not illegal. We have to convict ’em to find out if it was against the law.
Putting the words functioning and presidency in the same sentence when talking about Trump. You win the internet today.
CO- Agree its obviously just a delaying tactic.
Steve
Meanwhile in lawfare world, “Special Counsel Jack Smith’s rush to try Donald Trump violates Justice Department rules and presents tricky issues for the Supreme Court on the immunity issue.” (Jack Goldsmith)
https://www.lawfaremedia.org/article/the-consequences-of-jack-smith's-rush-to-trial
Yes; the reverse side of Trump plainly aiming for a delay past November is the Justice Department trying to complete a trial before November.
I wonder in the prosecutors haste whether they made a mistake; why didn’t they ask for hearings on whether any of Trumps alleged criminal actions were even official acts? If they had; maybe the ones that were not official acts could have gone to trial sooner.
Anyone can write an opinion but the opinions of those imbued with prosecutorial powers are potentially self enforcing and as-
“Justice Brett Kavanaugh suggested concerns about a vicious cycle of malicious prosecutions hampering presidents for years to come. He also raised the question of the “risk” of a “creative prosecutor” using “vague” statutes — including obstruction and conspiracy, which Trump faces — against a commander in chief.”
I know that if I held that role I would not willingly cede authority to anyone I would not trust with the reins of government.
That’s the opinion of the “deep state “, they do not trust and will not cede power to anyone they don’t trust.
They don’t believe in democracy at all and will use every tool available to maintain power. In this way they are like Trump himself.
Donald Trump is a unique individual, apparently immune to persuasion or introspection, the law is going to end up being interpreted in a way that will defeat HIM, and make the president subordinate to prosecutors with lifetime appointments.
@Curious, charges were brought against Trump almost 2 years and 7 months from January 6th. The question would be did they need that much time because it was highly unlikely that the case would go to trial in less than a year and a half, let alone the 15 months between indictment and election day.
It may be that the time was needed because the evidence reviewed was immense and the legal issues complicated. It could be that hope was held out for new witnesses or for additional evidence that would strengthen the case. It could be that the goal was to have the case in the headlines during the election which is what state prosecutors do, but federal prosecutors mostly don’t because they hold themselves to a different standard.
Defense counsel legitimately asks for more time to review all the evidence the prosecution gathered, investigate their own, and study the complex legal issues themselves, as well as obtain security clearances for their team. They legitimately ask for more time based on demands on their client in other courts. They legitimately appeal decisions that are appealable. The US Attorney legitimately sought to bypass the intermediate appellate court because it was likely the SCOTUS would ultimately be called on to decide the case anyway, but it was also legitimate for defense to want two bites of the apple.
To answer your question, judges don’t give advisory opinions, but the trial judge ruled on a motion that gave his opinion on many of the executive power issues, but it was understandably not a great opinion. One wouldn’t want to rely upon it without accepting the caveat that the SCOTUS ultimately decides high level Constitutional issues.
I’m glad I’m not deciding this case. This seems to be a very difficult line to draw, and I cannot think of an objective, generally applicable standard that includes the kinds of behavior I would want to include and excludes the kinds of behavior I would want to exclude.
PD’s point about “We have to convict ’em to find out if it was against the law” makes me think this may be a narrow ruling only on this one case, and that the SCOTUS will punt on everything else.
@Andy, my prediction at this point is that the trial judge is reversed and instructed to make findings of fact and conclusions of law based upon criteria in the majority opinion for each individual issue. Whether this in turn would be appealable or not, I don’t know.
But we would essentially have a trial judge initially deciding what are the duties of the President, based upon what . . . rhetoric? Meanwhile, there are at least three Supreme Court Justices (Roberts, Kagan and Kavanaugh) that worked as legal counsel in the White House who probably have clear ideas based upon personal experience. They may have biases. Kagan represented the Clinton Whitehouse regarding Whitewater, Travelgate, and Paula Jones. Kavanaugh worked for independent prosecutor Kenneth Starr at that time and later for Bush II when people were calling for everyone to be charged with war crimes. They also occupy the rough middle of the Court.
I just listened to the Advisory Opinions podcast and it seems what the SCOTUS is going to do is create a general rule, what Gorsuch called a “rule for the ages” during the arguments. Trumps case will then head back down to a lower court which will apply the rule to his situation.
So they are doing the hard thing, attempting to craft a rule that will have to take all future considerations into account. I don’t envy them.
Dave Schuler: If they’re not extremely careful, expect every living and future president to be on trial for something.
Pro tip: Don’t break the law.
Drew: When do we prosecute Adam Schiff for his knowingly fraudulent charges in the media of Russia, Russia, Russia, interfering with the functioning of a presidency?
That wouldn’t be illegal. However, there is substantial evidence that Russia did interfere in the election.
Drew: Hillary Clinton for her bought and paid for bogus fairy tale dictated to Steele?
That wouldn’t be illegal. However, the Steele Report was raw intelligence, never released by the Clinton campaign, and much of it, including that Russia was intent on meddling in the election, has been borne out.
Grey Shambler: the question of the “risk” of a “creative prosecutor” using “vague” statutes — including obstruction and conspiracy
Those statutes would apply to all defendants, not just Trump. Why would Trump be treated any differently in this regard?
PD Shaw: Kavanaugh worked for independent prosecutor Kenneth Starr at that time
Don’t let other prosecutors do what I did! — Justice Kavanaugh