While saying that this is an issue of first impression, the decision is constantly citing Supreme Court precedence and rulings. (The hope of course is that SCOTUS declines to hear the case or, if it does, declines to delay the trial.)
Screenshot #1: The court cites SCOTUS to debunk the "but he was the PRESIDENT" argument.
Screenshot #2: The idea here is: SCOTUS said a president is not immune from responding to a criminal subpoena why would he be immune from criminal indictment?
As you might expect, courts really didn't like being told they had no authority to preside over the criminal trial of a fromer president. (Screenshot #1)
Criminal acts are not shielded by immunity and an indictment means a grand jury alleges that there were criminal acts, therefore, court have authority.
So simple, really.
Legislators have criminal or civil immunity for "what they say or do in legislative proceedings" but that criminal immunity is limited and doesn't apply here.
The decision next spends some time on who has immunity for what.
Footnote #7 contains some mild judicial snark. Good lawyers don't quote dicta. (Being told by an appellate justice that you quoted dicta is almost as bad as being told you "misrepresented" the facts.) (Screenshot #1)
Next they analyze whether finding a president criminally liable under "functional policy considerations" and conclude that it is good policy. (Screenshot #2)
And no, this won't "inhibit" presidents, except perhaps to inhibit them from breaking laws (my paraphrase of Screenshot #1)
In response to Trump's "this will open the floodgates to political persecutions" the Court points out the safeguards in place, grand juries, rules of evidence, etc.
Oh goodness. Screenshots 2 and 3 are 🔥
5/
(Am I up to 5? I can think, type, and read at the same time, but counting and spelling correctly are while thinking, reading, and typing is just too much 😂)
Now we get an emphasis on how serious the allegations are. (#1)
Oh, Yikes. See #2. Paraphrase: Nope you don't get to commit crimes, particularly the kind that let you neutralize the fundamental check on a president's power: The ability to be voted out of office.
Next they debunk Trump's silly argument about how the impeachment clause means that if he wasn't convicted, he can't be indicted later.
Finally they debunk Trump's Double Jeopardy argument: impeachment isn't a criminal proces.
@Teri_Kanefield This opinion reads like the judicial equivalent of "... as IF!" (albiet, very thorough). It also seems like its set up so that any supreme court decision striking it down would have to rely on and apply absurdities. Am I on the right track as a lay person?
@Teri_Kanefield is the quote that four Justices can grant an appeal, but it takes at least 5 to grant a stay, accurate? And if so, what happens if only four Justices want to grant his appeal?
Apparently the Showhorses have kept their audiences in a state of constant panic because it took about a month for an appellate court to address an issue of first impression that SCOTUS will no doubt scrutinize.
Yes, democracy is backsliding. The cause is not how long it takes to write an appellate opinion. The meltdowns were pure theater.
@Teri_Kanefield just a note for the people who aren't lawyers, there is no official way to separate dicta from the "holding" of the case. In most cases it's pretty obvious what is the official rule and what is just stuff the judge said along the way, but there certainly can be arguments over what's law and what's dicta.
@Teri_Kanefield I hope you didn't take that as me suggesting I thought your answer was incorrect or incomplete! I didn't see what I wrote as relevant to your main point, so why would you say it, but it's still interesting. Sorry if you took it any other way!
Fair enough, but there were two things I never wanted to see in appellate decsions when I was practicing: "misrpresented the facts" or "relied on dicta."
@Teri_Kanefield That’s a big part of why I don’t watch the “news” like that. I read several sites to keep on top of local and world news, but I don’t want ratings to control what I feel about those events.
@Teri_Kanefield it’s mostly speculation. Sometimes I appreciate explanations about what’s going on.
Most of it is the same talking heads, same “news” item, hardly anything else.
@Teri_Kanefield Way back in like 1988 TV News anchor Aaron Brown gave a talk for my college journalism class. He was on a local CBS affiliate at the time — before he went to CNN.
A student complained about the poor quality of news on his local news show and Aaron Brown said “TV news is not the news, it’s a TV show ABOUT the news. If you want the news, read a newspaper.”
@Teri_Kanefield When "news" talks about primary election results and states whether a candidate met expectations, it drives me crazy. Tell me the results, analyze the results, but please don't give me opinions based on nothing. I miss the old Walter Crankcase days where they just gave us the news.
@Teri_Kanefield I listened to one of the latest episodes of Legal AF last night & Karen Friedman Agnifilo interviews George Conway. He pointed out that having a decision within a month (he predicted it would come out soon) is still fast for an appellate decision, even on an expedited timeline. Marcy Wheeler also explains why it's complicated on EmptyWheel Fridays on Nicole Sandler's @nicolesandler show.
@Teri_Kanefield Maybe people are exhausted and just so tired of everything that has unfolded since the escalator moment of 2015. It's a freakin' long decade, and people just want it to end. So emotions run hot and people express their frustration.
Certainly people are frustrated, but an entire industry has arisen out of capitalizing on those fears. When something is pending rather than substantively address the issues and complexities involved based on their expertise, these "Showhorses" succumb to fear mongering and speculation on conspiracies. This fans their popularity, but does a disservice to the truth.
@Teri_Kanefield I've come to observe that reactions like theirs sells; what sells gets pushed by the network. MSNBC isn't immune from this behavior. They know that most people will forget the reactions from a few days ago, letting the networks push all of it under the carpet. Sometimes, it feels good to hear them validate feelings but not good for overall health. I stopped watching cable coverage shortly after Biden's took the offfice.
@Teri_Kanefield Im not sure I understand, why should they apologize? They were legitimately concerned at how long DC Circuit Court was taking. And they were right, it was concerning.
@msmp The reason I know about this clip is that a few of my readers showed it to me.
They were in a panic because they thought serious legal analysts were in a panic.
They didn't realize that they were the victims of rage peddlers.
Now, if you watch the show to have your biases confirmed and to feel rage (or whatever strong emotion is being peddles) no harm. As long as you understand it is entertainment. (Suspense and panic entertains people. Why do you think people read spy thrillers?)
@Teri_Kanefield@msmp it would be much more likely that people are ignorant of the timeframes of typical appellate processes.
Thank for filling the details. I really appreciate the work you do in this. I had read the ruling and got a lot of it and was pretty sure that a lot of the decision was written to future-proof the ruling from SCOTUS.
@plinth@Teri_Kanefield@msmp We are and we are frustrated by how someone seems to be skirting accountability, filing one appeal after another, which is why Teri's account is so important and we need to be careful about being whipped up into a frenzy. Sure, there is a lot to be angry about, but we also need to be careful about making sure law is being followed or democracy really will lose.
Hi Carolyn, You are confusing two issues. (1) Trump has the same right to file an appeal as anyone and these are appeals any reasonable lawyer would bring. (2) the talking point that he "skirts" accountability, which makes no sense after a finding of fraud in New York, a finding of sexual assault, indictments for 91 charges.
I claim that those two statements are the result of you being the victim of rage merchants.
I cannot be the account people turn to after being stirred up by rage merchants.
I did it for 5 years on Twitter and I hereby quit.
People need to learn to stop listening to rage merchants. If you turn on the TV expect it to be 60% BS. If you are not a lawyer, you will not know which is the 60%.
Don't expect the panic-mongering showhorses to read this opinion and say, "Wow. The appellate court even had to deal with a jursidictional issue thrown at them. It was unanimous, which meant judges with different ideologies had to agree. It's 57 page and may be enough for SCOTUS to say, "We don't need to touch this."
They never look back. It's on to the next invented crises.
Fox also invents crises. Just saying.
Also you can see I've reached my disgust point with it all.
@Teri_Kanefield , yes, and there is an understandable urge to respond to the outrageous acts of Trump with impulsive reactions. Legal experts, however, should know how long skillful responses take. It is disgusting on so many levels what people will do for power in the form of money, attention, etc. Thank you for taking the time to explain the ruling to us and to put it into much needed context.
@Teri_Kanefield yeah I've seen some clips circulating as of late of some TV lawyers saying its too late, the red lights are flashing we need decisions yesterday!
I'm sure I'll see some more clips today with the goal posts moved in some way to keep the audience on the edge of their seats 🙄
Watch for hair raising comments on "the mandate" the appellate court must issue to return control of the matter to the trial court (and according to Lawfare staff typically takes 30-45 days following issuing a decision...).
@Teri_Kanefield Do you think the court's order that delays the trial only if Trump appeals to the Supreme Court within 6 days is an attempt to reduce Trump's ability to stall? It seems to give him only one bite at the apple to get a stay, instead of two.
@Teri_Kanefield I’ve been flipping channels while doing other things, and have yet to see any mention of this on Fox. King Charles, Biden’s border crisis, Super Bowl snacks, yes. No immunity for Trump - all crickets.
@martinvermeer@Teri_Kanefield Well, it was basically a PhD thesis written in response to a middle-school-level civics essay question ("does the law apply to the president?")
@Teri_Kanefield You describe it so well. “Don’t even look back, on to the next crisis” is exactly why, FTMP, I don’t watch these shows and the ones I do watch, I only watch 5-10 minutes of them. A friend once described “Stupidity” as “Waking up in a brand new world every day.” I began to feel like I was hearing from people who are just that disconnected.
@Teri_Kanefield Just FYI, all the legal commentators on MSNBC this morning have been saying that the court took time to write a thorough and complete unanimous decision rejecting all of Trump's arguments. I haven't heard any of them talking about how it took too long.
@Teri_Kanefield@MarkAB It’s either “Delays” or “Swift Justice”. One being pondered, considered & tied to a process; the other being a machete wielding giant that marches in, ‘takes care of business’, and it’s done. I prefer option 1.
Been thinking about this since reading your work. The MSNBC 'Showhorse' fear mongering about the legal system may be less overt than the blatant disinformation on Fox, but it is very damaging none the less.
By sowing the seeds of distrust in the legal system, these pundits play into the same "corrupt government" themes. The effect is, rather than strengthen appreciation for the rule of law, they collaborate in tearing down our belief in our institutions.
Disagree. Really appreciate Teri's work and feel like it is an important counterbalance to 'reply guy' know-it-all legal hot takes and doomerism. The truth is that the issues are complex and the legal process is arcane. Unpacking it requires time and attention to nuance. Declaring everything corrupt and unfair is just unhelpful and a distraction to those who are trying to understand what's really going on.
@Teri_Kanefield
My understanding of the usage in English and Welsh law is that a dictum is a statement of law (in a decision) and an obiter dictum is a statement of law that has no bearing on the decision.
It seems to be different in the US, then?
@Teri_Kanefield
FYI, Alt text for screenshot 2 in post 4 is just a repeat of screenshot 1. ETA: the alt text for first two screenshots in post 5 are also messed up, but your counting is impeccable.
(I'm finding the whole thread fascinating! Thank you.)
@Teri_Kanefield Has anyone pointed out that Trump, by arguing that whoever holds the office of President is above the law, is arguing that Joe Biden is above the law? Does this Supreme Court want to rule that Joe Biden is above the law?
@Teri_Kanefield I'm just a casual legal observer, but this decision seems like it minces no words - there's no grey area here, they have stated in no uncertain terms the president is not above the law.
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