New York Times: Supreme Court Conservatives Seem to Favor Acknowledging Some Form of Presidential Immunity, At Least for "Official Acts" Undertaken as Part of the President's "Core Powers"

This is by no means a guarantee for Trump. Amy Coney Barrett seems very sympathetic to Biden's handpicked Election Interference Agents.

And the Court will not be endorsing Trump's expansive, anything-the-president-does-is-immune-from-criminal-process theory.

But they do seem inclined to rule against the lower courts' almost-as-expansive theory that any president can be indicted for any reason post-presidency, and enjoys no immunity whatsoever.

The thing is, even if they just vote that way -- and say the lower courts erred in not determining which of Trump's acts may have been taken as part of his official duties -- then it's a win for Trump, because the case would be thrown back to the originating court with instructions for the judge to write a new opinion, which itself would be appealable. That would most likely punt the case into next year.

Here are some snippets of live updates from New York Times court "reporters." The "reporters" are Alan Feuer, Abbie VanSickle, and Charlie Savage. I won't be noting which updates were written by which "reporter."

Supreme Court Live Updates: Conservative Majority Seems Ready to Limit Election Case Against Trump

A ruling in the case, on whether the former president is immune from prosecution, would probably send it back to a lower court and could delay any trial until after the November election.

The Supreme Court's conservative majority seemed poised on Thursday to narrow the scope of the criminal case against former President Donald J. Trump on charges that he plotted to subvert the 2020 election.

Such a ruling, endorsing at least part of Mr. Trump's argument that he is immune from prosecution, would most likely send the case back to the trial court to draw distinctions between official and private conduct. Those proceedings could make it hard to conduct the trial before the 2024 election.

...

D. John Sauer, Mr. Trump's lawyer, pressed an extreme version of the former president's argument. In answer to hypothetical questions, he said that presidential orders to murder political rivals or stage a coup could well be subject to immunity.
But several of the conservative justices seemed disinclined to consider those questions or the details of the accusations against Mr. Trump. Instead, they said the court should issue a ruling that applies to presidential power generally.

"We're writing a rule for the ages," Justice Neil M. Gorsuch said.

Justice Brett M. Kavanaugh also said the court should think about the larger implications of its decision. "This case has huge implications for the presidency, for the future of the presidency, for the future of the country."

Justice Samuel A. Alito Jr. said that a ruling for Mr. Trump could enhance democratic values.

"A stable, democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully," he said, adding that the prospect of criminal prosecution would make that less likely.

"Will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?" he asked.

Justice Sonia Sotomayor said she had a different understanding. "A stable democratic society," she said, "needs the good faith of its public officials."

...

Multiple justices focused on whether motive matters. This is a recurring pressure point in the question of whether an official act can be treated as a crime: Does it matter whether a president had a corrupt purpose? Proponents of a strong presidency point out that if the answer is yes, that could allow courts to second-guess whether a president's exercise of his constitutional responsibilities was reasonable, a significant blurring of separation of powers.

A lot of the discussion has swirled around the question of whether, without immunity, presidents will be hounded by their rivals with malicious charges after leaving office.

...

The oral argument lasted nearly three hours, as the justices tangled with a lawyer for the former president and a Justice Department lawyer. A majority of the justices appeared skeptical of the idea of sweeping presidential immunity. However, several of them suggested an interest in drawing out what actions may be immune and what may not -- a move that could delay the former president's trial if the Supreme Court asks a lower court to revisit the issues.

Many of the justices seemed to be considering the idea that presidents should enjoy some form of protection against criminal prosecution. The devil however will be in the details: How should that protection extend?

...

Looking back, one of the main points of discussion turned on the question of which situation would be worse: a world in which presidents, shorn of any legal protections against prosecution, were ceaselessly pursued in the courts by their rivals in a never-ending cycle of political retribution, or allowing presidents to be unbounded by criminal law and permitted to do whatever they wanted with impunity.

...

Justice Barrett picks up the question of timing again. She suggests that if prosecutors want to take Trump quickly to trial, they could simply drop those parts of the indictment that seem to be his official acts as president and proceed with only those parts of the indictment that reflect Trump's private actions taken as a candidate for office. Dreeben is not wild about that idea.

No, because this is all political. It's not about justice, it's about saving Biden from an election he is doomed to lose.

...

Justice Barrett seems to signal that she is less likely to find that presidents have blanket immunity for their official acts. When Dreeben says the system needs to balance the effective functioning of the presidency and accountability for a former president under the rule of law, and the existing system does that pretty well or maybe needs a few ancillary rules but that is different from the "radical proposal" put forward by Trump's legal team, she says: "I agree."

What about Obama? Can he be prosecuted for the murder of Anwar al-Awaki?

You know, there's no statute of limitations for murder.

Should we try Obama next?

Kavanaugh asks Dreeben about Obama's drone strike that killed an American citizen suspected of terrorism, Anwar al-Awlaki, which Trump's lawyer invoked in his opening. Dreeben notes that the Office of Legal Counsel analyzed the question and found that the murder statute did not apply to presidents when they were acting under public authority, so authorizing the strike was lawful. This is the way the system can function, he said -- the Justice Department analyzes laws carefully and with established principles.

Oh sure, we should trust the corrupt, weaponized DOJ.

Say Trump wins. He installs Rudy Giuliani as AG.

Are Biden's hand-picked Election Interference Agents still on board with the claim that anything the DOJ does must be right and proper?

Note the contradiction here -- they're saying that we cannot have a blanket rule that anything a president does is presumptively legal. They just want a blanket rule that anything a DOJ does is presumptively legal.

So long as that DOJ is headed by a Democrat, of course.

posted by Disinformation Expert Ace at 06:35 PM

| Access Comments