It's late but I just had to start reading (morbid curiosity)
Paragraph #1: He tells the court that if he can be indicted there will be no end to it. Presidents will be indicted for decades! It will be a parade of horribles!
(Assumption: This is a purely political.)
#2 is the doozy.
Basically, Dear Court: You have no power to sit in judgment of MEEEE.
@Teri_Kanefield I believe the Robert’s Court will rule to best advance Leonard Leo’s and Charlie Koch’s agendas.
I am not a lawyer. My cynical view is based on the belief that a small college of billionaires effectively erased the separation powers by financing the careers of like-minded legislators, jurists, and bureaucrats who did the actual erasing.
@Teri_Kanefield It seems to me the Supreme Court doesn't have to take any case it doesn't want to, and that might well go double for cases that don't advance the conservative agenda and are bound to make them look bad. That is, worse than they look already.
@Teri_Kanefield Bush Jr killed more Americans than Bin Ladin, illegally invaded Irak ;where he killed over 100k Irakis). Not charged because this was a decision made for and on behalf of USA. So there is sense in needing a court to decide whether organizing the insurrection was part of his job or not and thus whether he can be indicted or not. A court had already ruled Meadows interfering with Georgia election was not part of his job at White House.
@Teri_Kanefield Sydney Powell’s comedic argument that Hugo Chavez interfered in election had some logic: a President does play a role in otherwise state-run elections if there is foreign interference. So a court has to rule this was not the case for 2020 and Then President had no reason to meddle with election as president
At least the brief is clearly written. The two issues are (1) absolute criminal immunity for official acts (2) double jeopardy applies.
The problem are obvious.
Problem with #1:
Absolute criminal immunity isn't a thing. It doesn't exist. Moreover, what he did was no way part of his "official" duties (among other things presidents have nothing to do with elections, particularly when they are a candidate.)
What was going through my head was the line in Singing in the Rain when Lina Lamont says, "Do you think I'm dumb or something?" (and everyone is thinking, yeah, we do!)
" The President shall “take Care that the Laws be faithfully executed,” U.S. CONST.
art. II, § 3, which include the numerous prohibitions on federal election crime. "
Am I right to assume, in general, This is true, but the 60+ election fraud cases he lost, plus no evidence, is what makes it inapplicable?
I really like following you because you know so much about the law and also your heart is in the right place.
I love what you said about, you researched & Justice Marshall did not say what Trump said he said.
I love & really appreciate what you've been doing, Ms. Kanefield.
p.s. Also your daughter is so cute, that serious look as she reads or looks at one of your books. lol
@Teri_Kanefield Who wrote that brief? Aren't there rules that hold lawyers accountable for making stuff up and filing it with the court? I remember reading a news account recently about an attorney who got in trouble with the court for filing something written by AI that included fictitious cases
@azemon@Teri_Kanefield
Technically, the line is in the brief (if you cut out the context, and, more importantly, who it is speaking about). It's literally saying that if the President orders someone to do something within normal bounds, that officer should not be liable (and by implication, the president would be).
I am absolutely not a legal scholar, but then it kind of seems to go on to say explicitly that this doesn't hold in cases like this.
@Teri_Kanefield@azemon
I mean, if I wanted to point to an explicit refutation of the argument, drawing someone's eye to this particular part of the argument would be a simple and great way to do it?
It's really a solid refutation of the concepts that seem to be what is going on here.
It's like citing 'Under no circumstances can he be held liable' as 'he be held liable'. Just well done.
@Oggie@Teri_Kanefield@azemon can judges and other lawyers really be manipulated like that? In my opinion (I am a computer scientist and not a legal professional), research, studying sources and critical thinking should actually be basic tools for them?
@AlgoCompSynth
It's just spicy auto-complete. It's always bullshitting. Even when it's right, it's bullshitting. It wasn't created to tell truth from fiction. It was created to write plausible sentences. That's all it does is write plausible sentences. Other attorneys have gotten caught using Chat GPT (or other LLMs) because it cannot actually read and regurgitate documents. It can just write sentences and paragraphs that sound plausible while being utterly wrong.
Marshall: “Let me explain the rationale of how we get to the idea of judicial review by exploring the hypothetical with reasoning about what happens if we don’t.”
Trump: “See! Marshall says I have absolute immunity!”
@Teri_Kanefield Thar seems like the kind of thing you stick into a filing to have talking points for the base and don’t care (or intend) to lose in court.
It is a specific situation they try to apply to his every action. As Teri wrote they are likely to be a little more than offended at an attempt to trick them.
@dbc3@Teri_Kanefield It ties into Trump’s tweet today that pretends everything he did during his Presidency was an “official action” and un-reviewable. I wonder if he lawyer shopped until he got one who would give him talking points for his base.
I said this earlier: I don't really understand the assumption that people are making that the Supreme Court will hear this case.
Unless there is something I'm missing, here is how I understand the law: Until the appellate court decides, the trial is put on hold.
After the appellate court decides, SCOTUS can hear it, but doesn't have to, and if they do hear it. there is nothing that says the trial goes on hold while they decide. (It can but unlike the appellate rule, it isn't required.)
@Teri_Kanefield
By the Constitution...the President is invested with certain...powers...he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience..To aid him...he is authorized to appoint certain officers, who act by his authority...In such cases, their acts are his acts...This officer... is to conform precisely to the will of the President. ...The acts of such an officer, as an officer, can never be examinable by the Courts.
@Teri_Kanefield@Jeanpaul@Teri_Kanefield@Jeanpaul
I'm tempted to use humor here, in an effort to deflect from my exposed ignorance of the landmark decision. To show fidelity and good faith, I refrain. The joke wouldn't have been funny, anyway.
Adding the obvious: I don't believe the lawyers who filed this think they will win on the merits.
They are hoping for a delay in the trial.
The thing is that everyone knows what they are doing.
That's what makes me think it won't work.
This Supreme Court has passed up opportunities to help him. They could have helped him with the election fraud stuff, or the executive privilege stuff, but they didn't.
I see no reason they will now. They'd have to go along with a gimmick.
@Teri_Kanefield Do you think they will let the circuit rule on immunity and deny a review of it? They could have easily shut down this argument, but they didn't.
What do you think will happen to the Colorado ruling? That one has been a mixed ruling from the courts so far, with only the CO SC ruling against him.
I don't understand what you mean by "but they didn't."
They can't possibly go faster than the circuit court. If they want to shut it down, the easiest way is to let the circuit decide and then not take cert.
Also, if he actually thought he had absolute immunity from criminal liability, would't he want to know that now?
If he did have absolute immunity, all the criminal cases against him would evaporate.
To say, "I have absolute criminal liability but I want you to decide that next year while I have to keep defending myself in these other cases while I run for office" makes no sense.
@Teri_Kanefield Trump is also trying this absolute immunity gambit in the Carroll I trial set for mid-Jan. & he’s proposed a leuisurly schedule there too. It’s all about trying to delay until after the election, in the hopes he wins & can make his legal troubles disappear.
@Teri_Kanefield (I was pitching you to some friends the other night, and I said, not only is she a great 'splainer, but she is resolutely calm, and in these trying times, we need calm 'splainers.)
I rather doubt it as this Supreme Court is bought and paid for by corporate interests. Corporate interests who are well aware what a danger Trump represents to their bottom line and not only have no use for him, but see him as a massive detriment at this point.
@Teri_Kanefield I've been following you for a while now and find your explanations clear and easy to understand. I don't understand what granting or refusing "cert" means, though. Maybe I missed the post where you explained but I was hoping you'd tell me here please. Thanks for helping us follow what's going on with our government.
The shortest time frame is possibility #3, including SCOTUS's decision to refuse cert before judgment, because SCOTUS can't move faster than the Appeals Court, which has already scheduled oral arguments on the merits.
People told me about crazy headlines declaring that a unanimous SCOTUS gave Trump the delay he wants.
If they pick #1, those headlines can be reissued with accuracy.
For most of us, it all comes down to TWO outcomes. The court will hold an obviously-guilty man to account for his obvious guilt; or not. In which case, BOTH sides will actually regard the court as politically biased.
The Trumpists, because it's actually a better narrative for them if the Court is submissive to Trump; they WANT to believe that.
They would rather believe Trump is that powerful, than that he is right.
@Teri_Kanefield Thank you for your clear-headed approach to all this! Plenty of reasons to be concerned in one way or another but the alarmist approach some people take is not helpful.
@Teri_Kanefield am I wrong to be skeptical of outcome #2 (SCOTUS grants cert and the trial is NOT placed on hold)? I feel like whether the president is immune from prosecution is something they'd want to resolve before trial, right?
It's hard to figure on what basis they might want to do so... perhaps because they might view his behaviors as somehow being within the outer perimeter of his duties and want to extend the civil immunity defined in Nixon v. Fitzgerald to criminal immunity. I feel like there's not enough lipstick in the world for that pig, but it's hard to say for certain.
The whole thing is unprecedented, in both the legal and colloquial sense. Interlocutory appeals seem not entirely uncommon in circumstances like qualified immunity for civil trials. However, Google is failing me for interlocutory appeals relating to immunity for criminal trials, and there's essentially no precedent for presidential criminal immunity because no one except Nixon tried anything remotely like this, and his pardon prevents us from knowing how it would've played out.
@joeinwynnewood@Teri_Kanefield I hope so. I think the cynical view is that SCOTUS denied cert now for partisan reasons so they can drag it out later. The idealist view is that SCOTUS denied cert because it's obviously garbage. Perhaps a realist view might be that some justices denied cert for the first reason, and other justices denied cert for the second reason, and we won't find out which justices are holding what cards until the initial appeal runs its course.
I'm not entirely convinced there isn't a plausible argument to be made here, or at least one barely strong enough to give permission to Thomas and Alito to be weird little guys. I know that the standard counterargument is that the president plays no role in presidential elections. However, the executive branch does have some authorities regarding federal elections (e.g., DHS for securing elections, DOJ for investigating and prosecuting election fraud). If you twist the facts and the law enough you could get to some strained argument involving unitary executive theory and an assertion that the president was simply inquiring as to the integrity of the elections within the scope of those authorities.
I'm not hopeless, I'm just saying the whole thing defies simple arguments, and I'm as impatient as everyone else.
As a committed Strict Scrutiny podcast listener & long time follower/reader of Teri, I've seen no indication that at least 7 SCOTUS judges would act completely outside the bounds of judicial practice.
The regressive-right six will certainly manipulate the various doctrines and methodologies cooked up in the bowels of the Federalist Society, but they have a compelling interest in preserving the substantial power they've accrued.
Helping Trump is contrary to that.
@Teri_Kanefield Hmmm... "The acts of such an officer, as an officer, can never be examinable by the Courts." So... is Trump in this attempt then admitting that as president he is an officer? Because I seem to recall him saying exactly the opposite as regards the 14th amendment.
But he DID say at least part of that: . "This officer, as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the Courts." So what's the distinction? (Seems to be the reference is not to president as an officer but appointees of the president? I don't M v. M context sufficiently.)
@Teri_Kanefield Dear Court, checks and balances actually means not checks and no balances, so you have no power over me, yet here I am writing this, which we won't examine too closely.
@Teri_Kanefield I think SCOTUS already dealt with that 1st hypothetical in the Vance/Mazars appeal. And didn’t find it to be the problem that Trump claimed or claims.
@Teri_Kanefield I’m pretty sure the Marbury v Madison decision didn’t say that. It take guts to put that in quotes and everything. Do they think they can trick the judges into misunderstanding the first case you learn about in law school? Haha
"But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy."
@Teri_Kanefield It pains me to admit, but he has a point…the next time a President repeatedly acts to subvert the Constitution and laws the people put in place to chose our leaders, even sending an armed mob of goons to forcibly overthrow our government, that President should and will be similarly prosecuted. He took, and failed, time & again, the legally established route to challenge the election.
We the people cannot permit illegally & forcibly doing otherwise.
I hate that he is correct.
@Teri_Kanefield he was acquitted twice, to actually hold him liable for actions as president must be met with a successful impeachment, that means not just getting impeached but the outcome must be found guilty to face charges. like the police can arrest you, book you, drag you to court to face trial, but if they can't convict you than the court can't pass down a punishment. i am sorry but democrats have to try harder
@Teri_Kanefield so, basically the argument is that the president is immune from prosecution (even after leaving office), therefore above the law. Doesn’t sound very (small-r) republican to me.
I mean, this is the guy who uttered, “No puppet! No puppet! You’re the puppet!” in a Presidential debate and was still elected by a minority of Americans to office. 🤷♂️
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