I mean, the problem with the current supreme court is that their decision-making process -- as demonstrated in the Trump immunity case (where the ruling was in direct contradiction to established law) -- is not a question of what the law says, but what the conservatives on the court (or their deep-pocketed bribers) want.
The problem with that is - as demonstrated by the RvW over turning - is that it's not what the law says - since there was never law backing RvW. It's what THIS court says vs what PREVIOUS courts said.
The good lawyers giveth... the good lawyers taketh away. Judicial activism overturned by judicial activism.
The trump immunity case put forth what has always been - Presidents aren't charged without being impeached first. Something the left was trying to change. because lets be real... others - ie: Clinton lying under oath. Obama bombing countries. Bush. etc. All have done "criminal" things. The only difference is both sides of elites don't like Trump so the left decided to try and treat him differently. Which got rejected as it should be.
and besides that... "direct contradiction to established law" is a direct contradiction to what actually happened. The left was trying to wrangle laws into directions not intended to be overly broad - like they are doing to jail "J6" people.
I'd have thought that lots of countries have immunity for representatives / members of the executive which can only be revoked by a vote in the legislature. Isn't this quite common?
It sounds reasonable to NOT allow just any member of the judiciary to prosecute members of the other branches, which might wreak havoc on the political process?
> I'd have thought that lots of countries have immunity for representatives / members of the executive which can only be revoked by a vote in the legislature. Isn't this quite common?
As far as I know it's rather common for official acts, not for criminal endeavours outside of the attributions of the executive branch.
From what I gather the Supreme Court decision ruled that former presidents have broad immunity, that's not common at all. I'd guess it's common in places like Russia or similar but not in functioning developed democracies.
I can only speak for Germany here, and the law here is, that, as a member of the parliament, you have immunity for anything relating to criminal law, as long as you hold your seat. As quite some members of the Government are also members of the parliament, they have immunity though that, but not through their government office.
The living practice is, that the legislative will void immunity upon request. I don't think they have ever failed to do so. The previous parliament voided immunity a staggering 25 times.
> It sounds reasonable to NOT allow just any member of the judiciary to prosecute members of the other branches, which might wreak havoc on the political process?
The judiciary does not (and cannot) prosecute. Prosecutors are officials of the executive for this very reason. Regardless, offering blanket immunity as the solution to people hypothetically log-jamming the political process with frivolous lawsuits is laughable. I guess Bob Menendez shouldn't have been potentially interrupted from doing the peoples work.
Apparently, the history of parliamentary immunity is, that you don't want the executive to interfere with the parliament outside the constitutionally defined channels.
> Regardless, offering blanket immunity as the solution to people hypothetically log-jamming the political process with frivolous lawsuits is laughable.
What is the alternative? Think it through, an evil executive surely has the power to (lawfully, or not) arrest members of parliament, which could clearly throw a wrench into the gears of parliament, no?
> I guess Bob Menendez shouldn't have been potentially interrupted from doing the peoples work.
My comment did not imply that prosecution should be impossible. And clearly there are established ways to waive immunity in cases where the majority of a parliament agrees that prosecution is warranted.
To be fair, January 6 people could also be prosecuted on lesser charges (trespassing, assault), but DoJ wanted a bigger charge they could apply to everyone.
> The trump immunity case put forth what has always been - Presidents aren't charged without being impeached first.
Trump was impeached. He was not convicted. Funny enough in his second impeachment trail his own lawyer argued that he shouldn't be convicted in the Senate because he was not immune and could simply be tried in the courts.
McConnell made the same argument: "We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one,"
And in fact there are plenty of examples of Presidents being assumed not to be immune, the pardoning of Nixon for example.
Futher the Constitution explicitly grants legislative immunity to legislators but does not mention any such immunity to the President, a circle this decision doesn't even begin to square.
The argument that the president has always been presumed immune goes pretty aggressively against history.
"was impeached, not convicted" you're being pedantic and you know I meant convicted. Yes, he was impeached... but not convicted so that's the end of it. A democrat house impeached and a republican senate found him not guilty.
"his own lawyer" lawyers talk shit... we now know, per SCOTUS, the correc tpath.
"presumed immune" I don't think that the President should be immune, per-se... but the crux of the current problem is Democrats going after a Republican - and vice versa, if that was to happen.
Remember... Trump said "lock her up". Then didn't. (and yes, she's not the POTUS - thankfully - but my point stands).
Trump's response through the courts is in response to Democrats prosecution through the courts.
For example... he was charged with and became a "felon" for misdemeanor charges (no clue what those were) bumped up to felonies for "election interference".
Meanwhile: Hillary was charged with and actually convicted of those things - misdemeanor charges that she paid a $130k fine for (if I'm not mistaken). Doing stuff to influence an election. The exact thing that should have been turned into a "felony" per the law as being used by Democrats.
We are at this place, arguing about presidential immunity, which we haven't been to before because one side is actively persecuting a rival who they LITERALLY wouldn't be persecuting if he wasn't running for office again.
So the "the president isn't presumed immune" was never tested because the Justice System was never weaponized before.
> "was impeached, not convicted" you're being pedantic and you know I meant convicted. Yes, he was impeached... but not convicted so that's the end of it. A democrat house impeached and a republican senate found him not guilty.
Mostly true, but since we're discussing his second rather than first impeachment trial, it was not a Republican Senate that found him not guilty - it was a Democratic Senate, specifically one split 50-50 but with Democratic President of the Senate (VPOTUS) Kamala Harris as the tiebreaker. Also he was acquitted only due to the supermajority required - a majority of senators, including 7 Republicans, did vote to convict.
Plus, even though Senate Minority Leader Mitch McConnell said he voted to acquit based on his interpretation of the Constitution - I think this was about whether a former president could be impeached and convicted at all - he also said that Trump was "practically and morally responsible for provoking the events of" January 6.
> "his own lawyer" lawyers talk shit... we now know, per SCOTUS, the correc tpath.
We know the path that SCOTUS has made legally binding on lower courts, but it was not handled in a way that gives most Democrats faith that it was a fair ruling. In particular, I have zero confidence that they would have ruled the same way if the defendant had been a Democratic former president rather than Trump.
I'm going to use a word you used in your comment and say that most Democrats feel the judicial system is heavily weaponized by Republicans against Democrats, not by Democrats against Republicans.
> Remember... Trump said "lock her up". Then didn't. (and yes, she's not the POTUS - thankfully - but my point stands).
I have no idea what point this is supposed to represent.
> For example... he was charged with and became a "felon" for misdemeanor charges (no clue what those were) bumped up to felonies for "election interference".
You're referring to the NY case here, which is actually the least severe of his four cases. But sure, it's the only one where he's been convicted so far.
He was indicted by a NY state grand jury, at the request of a NY state district attorney, of falsifying 34 business records (about the hush money payments to Stormey Daniels) with intent to defraud, where the "intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof". Without that extra intent regarding another crime, this would just be a misdemeanor under NY law, but that extra intent makes it a felony.
The 12-member NY state trial jury could only convict Trump if they found unanimously that this was proven beyond a reasonable doubt.
What "other crime" were they asked to find in this case that Trump had the intent to commit or to aid or conceal the commission thereof?
Again, the 12-member NY state trial jury could only convict Trump if they found unanimously that the intent to commit this "other crime" was proven beyond a reasonable doubt.
The "other crime" in this case was NY state Election Law section 17-152, which is basically about two or more people conspiring to affecting the result of an election "through unlawful means".
What unlawful means? The prosecutor listed three possibilities: a tax crime, falsification of bank records, and a federal campaign finance violation. The jurors in this case all had to find unanimously and beyond a reasonable doubt that the intended conspiracy to affect the result of the election involved one of these unlawful means, but they did not all have to agree unanimously on which unlawful means was involved.
> Meanwhile: Hillary was charged with and actually convicted of those things - misdemeanor charges that she paid a $130k fine for (if I'm not mistaken). Doing stuff to influence an election. The exact thing that should have been turned into a "felony" per the law as being used by Democrats.
Not true. Hillary's campaign and the DNC paid civil penalties ($8k for the campaign and $113k for the DNC) to the Federal Election Commission to settle an investigation, with no criminal charges or convictions and no criminal fines, no involvement of the judiciary or the DOJ at all, no finding by any judge or jury that the FEC's allegations were true, and with Hillary's campaign and the DNC still denying the accuracy of the allegations.
Also, while the FEC is evenly divided between the parties and not especially partisan, these actions which you found serious enough to call charges and convictions happened under the current term of President Biden, after the underlying complaint had been received under the Trump administration. Seems pretty non-weaponized to me.
What's more, even if that had been a criminal investigation, there's no way a federal prosecutor can charge the same statutes as NY prosecutors can charge, and vice versa - two entirely separate criminal systems. So what works in NY state criminal law and what works in federal criminal law are not always the same. There are other examples of NY state law being stricter than federal law, such as in securities fraud.
> We are at this place, arguing about presidential immunity, which we haven't been to before because one side is actively persecuting a rival who they LITERALLY wouldn't be persecuting if he wasn't running for office again.
To be honest, the NY case would probably have gone forward even if Trump weren't running again, simply because it would still be good politics for the prosecutor involved. I am opposed to prosecutors being elected for exactly this reason, but that isn't specifically a Democratic problem: most US states elect their local prosecutors, including most Republican states.
And as much as I said it was the weakest and least important case of those being brought, keep in mind that the group of people who ended up convicting Trump was neither the elected prosecutor nor Judge Merchan: it was 12 ordinary New Yorkers, including at least some of whom (I forget how many) support Trump in the political or policy context, who unanimously decided after hearing the evidence that the criminal charges had been proven beyond a reasonable doubt. The case was still strong enough to convince them of that. Plus the entire 34-count indictment could only get brought in the first place after a NY state grand jury decided that the prosecutor had presented enough evidence to constitute probable cause for the indictment.
That isn't very weaponized. It wasn't a partisan or even elected judge convicting Trump, it was a jury of his peers. Note that Judge Merchan is not an elected official, unlike a few NY judges and unlike most judges in certain other states. He was first appointed to the bench by former NYC Mayor Bloomberg, who was registered and elected as a Republican at the time, and was appointed to his current position by an appointee of an appointee of a former Democratic NY governor.
Also, the just-as-elected NY statewide Attorney General Letitia James declined to bring certain criminal charges against Trump (I'm not sure exactly what they would have been), because she felt she couldn't prove them to the high criminal standard of proof of beyond a reasonable doubt. I think she did bring similar charges as a civil lawsuit with the usual "more likely than not" standard of proof, but that's a Democratic elected NY prosecutor responsibly avoiding an unjustified witch hunt even where it might be good partisan politics to go overboard.
Last thought - the classified documents case is one where Trump has gotten extreme leniency compared to what an ordinary defendant would get, not extreme weaponized prosecution. If a nonpolitical government employee with a security clearance had kept classified documents after leaving their employment and had refused to return them after the government had noticed the situation and requested their return, they would have been physically put in jail, and probably also convicted, long ago. There is no real way to call that one weaponized.
> So the "the president isn't presumed immune" was never tested because the Justice System was never weaponized before.
It wasn't tested before because Nixon was pardoned, period. A draft grand jury indictment against Nixon was unsealed in 2018, and Ford's pardon is very likely the only reason those charges didn't go forward - at the very least, a prosecutor thought the situation justified enough to present to a grand jury.
Besides Nixon and Trump, are you aware of any former presidents where a prosecutor concluded that criminal charges were warranted under the usual standards of evidence and proof underlying charging decisions? I'm not. All the other cases that get widely discussed either didn't involve former presidents, didn't involve violations of criminal law, or didn't involve the required evidence and proof for prosecutors to expect that they could successfully obtain a conviction.
>it was not handled in a way that gives most Democrats faith that it was a fair ruling.
You don't have faith it would have been handled the same but you have faith that a Democrat would have had these charges against them?
Just for comparison... Hillary committed misdemeanors that LITERALLY was money crimes to influence an election. The exact same "crimes" that Trump had turned into felonies (without actual evidence of the crimes).
The problem we are in today is that these cases (4 of them) are obviously, blatantly and undeniably political and everyone knows that if Trump wasn't running for reelection or if Trump wasn't a Republican? These charges wouldn't be brought.
> it wasn't tested because
exactly. It wasn't tested. A draft grand jury indictment isn't an indictment.
> you aware of any former presidents where a prosecutor concluded that criminal charges were warranted
Are you aware of any prosecutors that were illegally appointed and paid for? because if you want to talk details, stuff like that is important as well. Florida wasn't appointed properly.
And, lets be honest... a lot of the "proof" is suspect. IE: The J6 committee that hid and deleted evidence from Republicans or the Jean trial where character evidence wasn't allowed showing that she's crazy. (Oh... statute of limitations be damned as well for a he said-she said civil trial).
The end of the story the main problem is you can complain that SCOTUS would do differently if it was another party... but you can't do that and ignore the fact that these cases are getting to the SCOTUS because the lower courts are treating Trump differently because of party and politics.
Weaponization of the "Justice System".
> Last thought - the classified documents case is one where Trump has gotten extreme leniency compared to what an ordinary defendant would get
Really? I find it extremly lenient to not charge a Senator for keeping classified documents unsecured in his garage. I find it lenient for another Senator to not get charged for storing classified info on an illegal server then deleting the evidence that was under subpoena.
Yet somehow... it's lenient that a POTUS who's working with the "archive" gets raided without warning and a photo op happens? then the prosecutor admits to doctoring evidence?
Trump is being treated leniently?
We have a different definition of lenient, I think :)
> The trump immunity case put forth what has always been - Presidents aren't charged without being impeached first.
Can you point me to the part of the constitution describing the procedure for impeaching former presidents? If they do the crimes at the end of their term is that just water under the bridge?
> The trump immunity case put forth what has always been
I find this the most disturbing aspect of contemporary attempts at justifying the Supreme Court's behavior. When the court was full of liberals, they were doing judicial activism and that was bad and their decisions should be overturned. But now that those presidents who lost the popular vote got our guys in, the Supreme Court's interpretation of the law isn't the product of biases and preferences held by political appointees, it simply reveals eternal truths set out by our most benevolent god-kissed founders.
> When the court was full of liberals, they were doing judicial activism and that was bad and their decisions should be overturned
and now we are in a court full of conservatives who are doing judicial activist and that's bad and their decisions should be over turned, the courts should be expanded and those we disagree with should be charged with crimes, etc.
That argument goes both ways.
The reality is we are having the conversations as a result of the Justice System being abused SOLEY because one side is charging a political opponent with EVERYTHING they can think of by stretching laws in ways that were never intended.
Previous Presidents weren't presumed immune? That's never been tested because previous presidents weren't prosecuted - despite clear evidence that things have been done wrong but any president you can choose. Biden, Obama, Bush, Clinton, etc? Pick your president and we can probably find crimes worth prosecuting. Yet... it didn't happen previously.
What we have now is CLEARLY political persecution against a political rival. Crimes he's being charged with (IE: his "felony") are done by others (IE: hillary who was convicted of money crimes and paid fines to influence an election) and yet not thrown to the wolves via political persecution.
Why are we here? because of the weaponization of the court system.
Which part of the presidential majority opinion did you take issue with?
I found it grappled with some weighty issues and made a defensible position, that I expect will be refined when/if the case returns to the Supreme Court.
The framers understood the concept of immunity, and in at least one instance explicitly granted it in the constitution. They did not mention anything about immunity for the chief executive.
The line of argument about "bold and decisive action" is complete bullshit. The OLC has told previous presidents, in writing, that they are not immune from prosecution and that knowledge did not fatally impede their judgment. The president also has a fleet of lawyers at their disposal, and the DoJ conceded in oral argument that if the president obtained an opinion from the attorney general that a given act was indeed legal, the president would have immunity for that act via estoppel by entrapment.
The opinion does almost nothing to establish what is and is not an official act for the purposes of this new immunity. This has become a hallmark of the Roberts court; making a power grab by writing an opinion that rests on laughably malleable language ("major questions", "deeply rooted in tradition", "official acts"). You can just wait until your friends appeal the cases that didn't go your way, grant cert because of course you get to pick your own dock, and laugh all the way to the bank.
The cherry on top is the part prohibiting even the introduction of evidence relating to official acts. If the president openly takes a cartoon burlap sack of money in exchange for a pardon, the standard set out in the opinion is that you cannot introduce any evidence pertaining to the grant of the pardon, because the pardon power is a core constitutional authority of the executive.
The entire opinion is ahistorical, poorly reasoned, and profoundly unwise.
> The opinion does almost nothing to establish what is and is not an official act for the purposes of this new immunity. This has become a hallmark of the Roberts court...
That was the part I found most wise. Given the polarization of the issue, avoiding commiting anything to specific and tossing it back to lower courts seemed a decent middle ground.
If/when it comes back up and the specifics are declared, then I'll decide.
My opinion is that Roberts may be waiting for Thomas to retire, and is trying to tread water by throwing the more staunchly conservatives temporary bones, lest they etch bad precedent into stone.
