Originally posted by Jon Miller
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As far as the unlawful willful retention of classified documents, unfortunately this is a race between Biden and Trump. Biden was certainly not found "not guilty" of willfully, unlawfully retaining such documents. Instead special council Robert Hur opined that Biden would present himself as "as a sympathetic, well-meaning, elderly man with a poor memory" such that a jury would be unwilling to convict him. If our choice is between a man charged with willful unlawful retention of classified documents or a man deemed to be guilty of willful unlawful retention of classified documents but too senile to convict then I struggle to understand why the senile man becomes the clear preferred choice in that context. Is it simply because his opponent in the election was deemed sufficiently mentally fit and sufficiently uncharismatic to stand trial for the same crime?
https://<a href="https://www.npr.org...highlights</a>
Originally posted by Jon Miller
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Trump moved to dismiss the indictment based on Presidential immunity. In his view, the conduct alleged in the indictment, properly characterized, was that while he was President he (1) “made public statements about the administration of the federal election”; (2) communicated with senior Justice Department officials “about investigating election fraud and about choosing the leadership” of the Department; (3) “communicated with state officials about the administration of the federal election and their exercise of official duties with respect to it”; (4) “communicated with the Vice President” and with “Members of Congress about the exercise of their official duties regarding the election certification”; and (5) “authorized or directed others to organize contingent slates of electors in furtherance of his attempts to convince the Vice President to exercise his official authority in a manner advocated for by President Trump.” Motion To Dismiss Indictment Based on Presidential Immunity in No. 1:23–cr–00257 (DC), ECF Doc. 74, p. 9.Trump argued that all of the indictment’s allegations fell within the core of his official duties. Id., at 27. And he contended that a President has absolute immunity from criminal prosecution for actions performed within the outer perimeter of his official responsibilities, to ensure that he can undertake the especially sensitive duties of his office with bold and unhesitating action. Id., at 14, 24.
(i) The Framers designed the Presidency to provide for a “vigorous” and “energetic” Executive. The Federalist No. 70, pp. 471–472 (J.
Cooke ed. 1961) (A. Hamilton). They vested the President with “supervisory and policy responsibilities of utmost discretion and sensitivity.” Nixon v. Fitzgerald, 457 U. S. 731, 750. Appreciating the “unique
risks” that arise when the President’s energies are diverted by proceedings that might render him “unduly cautious in the discharge of
his official duties,” the Court has recognized Presidential immunities
and privileges “rooted in the constitutional tradition of the separation
of powers and supported by our history.” Id., at 749, 751, 752, n. 32.
In Fitzgerald, for instance, the Court concluded that a former President is entitled to absolute immunity from “damages liability for acts
within the ‘outer perimeter’ of his official responsibility.” Id., at 756.
The Court’s “dominant concern” was to avoid “diversion of the President’s attention during the decisionmaking process caused by needless worry as to the possibility of damages actions stemming from any particular official decision.” Clinton v. Jones, 520 U. S. 681, 694, n. 19.
By contrast, when prosecutors have sought evidence from the President, the Court has consistently rejected Presidential claims of absolute immunity. During the treason trial of former Vice President Aaron Burr, for instance, Chief Justice Marshall rejected President
Thomas Jefferson’s claim that the President could not be subjected to
a subpoena. Marshall simultaneously recognized, however, the existence of a “privilege” to withhold certain “official paper[s].” United
States v. Burr, 25 F. Cas. 187, 192 (No. 14,694) (CC Va.). And when a
subpoena issued to President Richard Nixon, the Court rejected his
claim of “absolute privilege.” United States v. Nixon, 418 U. S. 683,
703. But recognizing “the public interest in candid, objective, and even
blunt or harsh opinions in Presidential decisionmaking,” it held that a
“presumptive privilege” protects Presidential communications. Id., at
708. Because that privilege “relates to the effective discharge of a
President’s powers,” id., at 711, the Court deemed it “fundamental to
the operation of Government and inextricably rooted in the separation
of powers under the Constitution.” Id., at 708. Pp. 9–12.
(ii) Criminally prosecuting a President for official conduct undoubtedly poses a far greater threat of intrusion on the authority and
functions of the Executive Branch than simply seeking evidence in his
possession. The danger is greater than what led the Court to recognize
absolute Presidential immunity from civil damages liability—that the
President would be chilled from taking the “bold and unhesitating action” required of an independent Executive. Fitzgerald, 457 U. S., at
745. Although the President might be exposed to fewer criminal prosecutions than civil damages suits, the threat of trial, judgment, and
imprisonment is a far greater deterrent and plainly more likely to distort Presidential decisionmaking than the potential payment of civil
damages. The hesitation to execute the duties of his office fearlessly
and fairly that might result when a President is making decisions under “a pall of potential prosecution,” McDonnell v. United States, 579
U. S. 550, 575, raises “unique risks to the effective functioning of government,” Fitzgerald, 457 U. S., at 751. But there is also a compelling
“public interest in fair and effective law enforcement.” Vance, 591
U. S., at 808.
Taking into account these competing considerations, the Court concludes that the separation of powers principles explicated in the
Court’s precedent necessitate at least a presumptive immunity from
criminal prosecution for a President’s acts within the outer perimeter
of his official responsibility. Such an immunity is required to safeguard the independence and effective functioning of the Executive
Branch, and to enable the President to carry out his constitutional duties without undue caution. At a minimum, the President must be
immune from prosecution for an official act unless the Government can
show that applying a criminal prohibition to that act would pose no
“dangers of intrusion on the authority and functions of the Executive
Branch.” Fitzgerald, 457 U. S., at 754. Pp. 12–15.
Cooke ed. 1961) (A. Hamilton). They vested the President with “supervisory and policy responsibilities of utmost discretion and sensitivity.” Nixon v. Fitzgerald, 457 U. S. 731, 750. Appreciating the “unique
risks” that arise when the President’s energies are diverted by proceedings that might render him “unduly cautious in the discharge of
his official duties,” the Court has recognized Presidential immunities
and privileges “rooted in the constitutional tradition of the separation
of powers and supported by our history.” Id., at 749, 751, 752, n. 32.
In Fitzgerald, for instance, the Court concluded that a former President is entitled to absolute immunity from “damages liability for acts
within the ‘outer perimeter’ of his official responsibility.” Id., at 756.
The Court’s “dominant concern” was to avoid “diversion of the President’s attention during the decisionmaking process caused by needless worry as to the possibility of damages actions stemming from any particular official decision.” Clinton v. Jones, 520 U. S. 681, 694, n. 19.
By contrast, when prosecutors have sought evidence from the President, the Court has consistently rejected Presidential claims of absolute immunity. During the treason trial of former Vice President Aaron Burr, for instance, Chief Justice Marshall rejected President
Thomas Jefferson’s claim that the President could not be subjected to
a subpoena. Marshall simultaneously recognized, however, the existence of a “privilege” to withhold certain “official paper[s].” United
States v. Burr, 25 F. Cas. 187, 192 (No. 14,694) (CC Va.). And when a
subpoena issued to President Richard Nixon, the Court rejected his
claim of “absolute privilege.” United States v. Nixon, 418 U. S. 683,
703. But recognizing “the public interest in candid, objective, and even
blunt or harsh opinions in Presidential decisionmaking,” it held that a
“presumptive privilege” protects Presidential communications. Id., at
708. Because that privilege “relates to the effective discharge of a
President’s powers,” id., at 711, the Court deemed it “fundamental to
the operation of Government and inextricably rooted in the separation
of powers under the Constitution.” Id., at 708. Pp. 9–12.
(ii) Criminally prosecuting a President for official conduct undoubtedly poses a far greater threat of intrusion on the authority and
functions of the Executive Branch than simply seeking evidence in his
possession. The danger is greater than what led the Court to recognize
absolute Presidential immunity from civil damages liability—that the
President would be chilled from taking the “bold and unhesitating action” required of an independent Executive. Fitzgerald, 457 U. S., at
745. Although the President might be exposed to fewer criminal prosecutions than civil damages suits, the threat of trial, judgment, and
imprisonment is a far greater deterrent and plainly more likely to distort Presidential decisionmaking than the potential payment of civil
damages. The hesitation to execute the duties of his office fearlessly
and fairly that might result when a President is making decisions under “a pall of potential prosecution,” McDonnell v. United States, 579
U. S. 550, 575, raises “unique risks to the effective functioning of government,” Fitzgerald, 457 U. S., at 751. But there is also a compelling
“public interest in fair and effective law enforcement.” Vance, 591
U. S., at 808.
Taking into account these competing considerations, the Court concludes that the separation of powers principles explicated in the
Court’s precedent necessitate at least a presumptive immunity from
criminal prosecution for a President’s acts within the outer perimeter
of his official responsibility. Such an immunity is required to safeguard the independence and effective functioning of the Executive
Branch, and to enable the President to carry out his constitutional duties without undue caution. At a minimum, the President must be
immune from prosecution for an official act unless the Government can
show that applying a criminal prohibition to that act would pose no
“dangers of intrusion on the authority and functions of the Executive
Branch.” Fitzgerald, 457 U. S., at 754. Pp. 12–15.
We granted certiorari to consider the following question:
“Whether and if so to what extent does a former President
enjoy presidential immunity from criminal prosecution for
conduct alleged to involve official acts during his tenure in
office.” 601 U. S. ___ (2024). zz0.800bat0sfr8zz
“Whether and if so to what extent does a former President
enjoy presidential immunity from criminal prosecution for
conduct alleged to involve official acts during his tenure in
office.” 601 U. S. ___ (2024). zz0.800bat0sfr8zz
In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such a “highly intrusive” inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose. Fitzgerald, 457 U. S., at 756. Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. Otherwise, Presidents would be subject to trial on “every allegation that an action was unlawful,” depriving immunity of its intended effect.
and
2) With the above principles in mind, the Court turns to the conduct alleged in the indictment. Certain allegations—such as those involving Trump’s discussions with the Acting Attorney General—are readily categorized in light of the nature of the President’s official relationship to the office held by that individual.
the District Court to assess in the first instance whether a prosecution
involving Trump’s alleged attempts to influence the Vice President’s
oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch.
involving Trump’s alleged attempts to influence the Vice President’s
oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch.
I'd love to include it all here but I'm sure that would immediately move the posts to pending moderator approval.
(iv) The indictment also contains various allegations regarding Trump’s conduct in connection with the events of January 6 itself. The alleged conduct largely consists of Trump’s communications in the form of Tweets and a public address. The President possesses “extraordinary power to speak to his fellow citizens and on their behalf.” Trump v. Hawaii, 585 U. S. 667, 701. So most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities
here's the conclusion:
(c) Trump asserts a far broader immunity than the limited one the
Court recognizes, contending that the indictment must be dismissed
because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution. But the text of the Clause does not address whether and on what
conduct a President may be prosecuted if he was never impeached and
convicted. See Art. I, §3, cl. 7. Historical evidence likewise lends little
support to Trump’s position. The Federalist Papers on which Trump
relies concerned the checks available against a sitting President; they
did not endorse or even consider whether the Impeachment Judgment
Clause immunizes a former President from prosecution. Transforming
the political process of impeachment into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of the Nation’s Government. Pp. 32–34.
(d) The Government takes a similarly broad view, contending that
the President enjoys no immunity from criminal prosecution for any
action. On its view, as-applied challenges in the course of the trial
suffice to protect Article II interests, and review of a district court’s
decisions on such challenges should be deferred until after trial. But
questions about whether the President may be held liable for particular actions, consistent with the separation of powers, must be addressed at the outset of a proceeding. Even if the President were ultimately not found liable for certain official actions, the possibility of an
extended proceeding alone may render him “unduly cautious in the discharge of his official duties.” Fitzgerald, 457 U. S., at 752, n. 32.
The Constitution does not tolerate such impediments to “the effective
functioning of government.” Id., at 751. Pp. 34–37.
(e) This case poses a question of lasting significance: When may a
former President be prosecuted for official acts taken during his Presidency? In answering that question, unlike the political branches and
the public at large, the Court cannot afford to fixate exclusively, or
even primarily, on present exigencies. Enduring separation of powers
principles guide our decision in this case. The President enjoys no immunity for his unofficial acts, and not everything the President does is
official. The President is not above the law. But under our system of
separated powers, the President may not be prosecuted for exercising
his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts. That immunity
applies equally to all occupants of the Oval Office.
Court recognizes, contending that the indictment must be dismissed
because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution. But the text of the Clause does not address whether and on what
conduct a President may be prosecuted if he was never impeached and
convicted. See Art. I, §3, cl. 7. Historical evidence likewise lends little
support to Trump’s position. The Federalist Papers on which Trump
relies concerned the checks available against a sitting President; they
did not endorse or even consider whether the Impeachment Judgment
Clause immunizes a former President from prosecution. Transforming
the political process of impeachment into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of the Nation’s Government. Pp. 32–34.
(d) The Government takes a similarly broad view, contending that
the President enjoys no immunity from criminal prosecution for any
action. On its view, as-applied challenges in the course of the trial
suffice to protect Article II interests, and review of a district court’s
decisions on such challenges should be deferred until after trial. But
questions about whether the President may be held liable for particular actions, consistent with the separation of powers, must be addressed at the outset of a proceeding. Even if the President were ultimately not found liable for certain official actions, the possibility of an
extended proceeding alone may render him “unduly cautious in the discharge of his official duties.” Fitzgerald, 457 U. S., at 752, n. 32.
The Constitution does not tolerate such impediments to “the effective
functioning of government.” Id., at 751. Pp. 34–37.
(e) This case poses a question of lasting significance: When may a
former President be prosecuted for official acts taken during his Presidency? In answering that question, unlike the political branches and
the public at large, the Court cannot afford to fixate exclusively, or
even primarily, on present exigencies. Enduring separation of powers
principles guide our decision in this case. The President enjoys no immunity for his unofficial acts, and not everything the President does is
official. The President is not above the law. But under our system of
separated powers, the President may not be prosecuted for exercising
his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts. That immunity
applies equally to all occupants of the Oval Office.
In my earlier post I said
I cynically assume that all presidents will exploit all privileges and powers to accomplish their goals and protect their agendas.
Originally posted by Jon Miller
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It is also clear that many of the articles you listed attempt to report a clear agenda on the part of Trump to reign in the FBI and DoJ. Trump was subject to enormous investigation before he had even taken office. It is entirely possible (especially given the total lack of incriminating evidence) that he was completely innocent of any of the alleged Russian collusion. If so, isn't it reasonable that he as the target of such an apparently totally unfounded and invasive investigation might conclude that:
A. The FBI was not very good at recognizing when such an investigation was baseless.
B. That maybe people in the FBI or DoJ in general were out to get him personally.
How can we know that Trump wasn't entirely innocent of the Russian collusion and that the investigation wasn't just a fishing expedition to reign him in? We don't. Even the vast majority of those within the DoJ arguably can't know that. Only Trump does and possibly any agents or bureaucrats directly involved in pushing the investigations.
Trump later stupidly and infamously fired James Comey this lead to even more push for investigation of possible "obstruction of justice." Of course the problem is that while firing Comey was politically stupid, nonetheless if in fact Trump knew he was innocent, then any ongoing and unresolved investigation must have seemed incompetent and intrusive to Trump the longer it went unresolved. The problem of course, is that if the investigation targeted Trump for political reasons (as an untrusted political outsider in the Whitehouse perhaps?) then no doubt heads should in fact roll and the involved institutions will have a crying need for reform. Trump's relatively sudden and dramatic raft of serious felony indictments and preceding investigations all cropped up late in his life. Trump had a long sordid history of bullying with lawsuits and of being sued by clients and business partners aplenty but criminal indictments weren't occurring. We can either suppose that Trump has finally succumbed to his criminal temptations only relatively recently as a septuagenarian or we can assume that investigations against Trump have been pursued more often for some reason. I do not know who I trust but it actually makes more sense to me as an explanation that Trump was targeted than that his behavior has changed. Who watches the watchers? generally speaking, it is the powers that be. I really doubt Trump was ever in their club. Do I have any faith in Trumps innocence? no. it could just as easily be that his wealth previously sheltered him from legal consequences of his behavior but if so, the mechanism by which that occurred previously and no longer occurs now is not publicly obvious and I want things shaken up wherever the corruption might have shielded him from justice. In that case any worries that Trump will attack the DoJ frankly won't worry me so much because it will already have been compromised.
Originally posted by Jon Miller
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third term because he would suppose he would look bad and ruin his self styled image.
I do think every single conceivable avenue to any kind of voter fraud in every state must be decisively closed especially avenues which would not be expected to produce evidence to find them later. We already closed several such loopholes just ahead of the 2020 election in some of those states that did so to setup their new voting laws to accommodate their covid lockdowns. unfortunately I think such efforts are now undermined by Trump's obvious self-serving agenda to only consider potential voting fraud when he loses.
Originally posted by Jon Miller
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