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Posts Made By: James Brown

July 1, 2024 04:37 PM Forum: Politics

At the Supreme Court Today

Posted By James Brown
I have not read the opinion in the immunity case, but this lead quote from the Washington Post seems like the Court reached the correct result, and the result I think most people expected:

The Supreme Court says presidents have “absolute” immunity for clearly official acts, but no immunity for unofficial acts. The high court’s 6-3 ruling along ideological lines sends the case back to the lower court to determine what acts alleged in Donald Trump’s indictment on charges of trying to subvert the 2020 election are official or unofficial. The ruling likely adds significant time and further appeals to the pending trial of the former president’s federal case in D.C.

https://www.washingtonpost.com/politics/2024/07/01/trump-presidential-immunity-supreme-court/

It looks like Smith included several actions in the indictment that the Supreme Court found to be unambiguously official acts.  Communications between Trump and the DOJ for example.   So, in this instance the Court provided at least some fact-based guidance even though the case has to be sent back, which is normal.   Yes this will cause delay, and if Trump wins the election he will escape trial on any remaining charges.  That is unfortunate in my opinion, but I do not fault Trump and his team for mounting a vigorous defense of the criminal charges.  I do not fault the Supreme Court or the trial court in Florida for being painstaking in their analysis.  On the other hand, I do think that those who would have the Judiciary rush this case through because to the looming election are wrong, and I think those who are unwilling to acknowledge the apolitical legitimacy of this sort of opinion have partisan blinders on.  Jim

July 1, 2024 05:28 PM Forum: Politics

At the Supreme Court Today

Posted By James Brown
Originally Posted by James Brown
I have not read the opinion in the immunity case...
I've read parts of it now.   https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

FWIW, I think Roberts did a good job.   

The Syllabus is always a good place to start.   Sotomayor's dissent is going to get a lot of press (This is a wild understatement I predict) - the dissent starts on page 68 of the pdf.  If you read the dissent, it is also good to read Robert's rebuttal to the dissent starting at page 45 of the pdf.

July 1, 2024 11:44 PM Forum: Politics

At the Supreme Court Today

Posted By James Brown
Originally Posted by Russ Carroll


but don’t you think, as a practical matter, Trumps action was clearly personal and not presidential, making this an unnecessary and clock-killing exercise? Couldn’t they have just rejected this on its face a long time ago saying that immunity arguments only apply to official presidential acts and not personal acts?
So far, no court has parsed out what acts were official and what were personal.  It is not an easy question.  This is why the Supreme Court sent it back to the trial court, like they always do in similar circumstances.  The trial court must make findings of fact on the personal/official question in the first instance.  That is how the system works.  The Supreme Court is not set up to take evidence.  That is what the trial court does, and so far they have not taken any evidence on this issue.

Does that help explain?   I totally disagree by the way that Trump's actions were clearly personal.  One of the indictment counts involves his directing the DOJ to investigate fraud.  Nothing came of it, but according to the Supremes, a Presidential request to the DOJ to investigate something, even if the DOJ says "no"  is an example of an official act.

July 1, 2024 11:52 PM Forum: Politics

At the Supreme Court Today

Posted By James Brown
Originally Posted by Rod Kaufman

I couldn't disagree with you more on this case Jim, particularly when it comes to Trump who now has carte blanche to do whatever he wants whenever he wants by framing what he does as an "official act." Of course they'll be obvious examples of unofficial acts that Trump, or whoever acts like he does and winds up becoming president, that could be sorted out by the courts but the key obstruction parts of the case against him now disappear in wake of the quagmire that this ruling cleary is.

Now, in his Trump's case, unofficial vs  official acts will have to ferreted out in the courts and those rulings not to his liking will be appealed from one court to another in a carousel of legal parades until they end up back in SCOTUS for another protracted deliberation and decision. Whatever decision SCOTUS makes at that point will likely not be decided on the merits of the case but by however SCOTUS defines it as "official" or "unofficial." 
Around and around we go...
 
And it's not only Trump we're considering here. For example, if this decision was handed down during the Nixon presidency, his taped conversations with his advisers would be considered official acts and he never would have felt compelled to resign. That's not my opinion; it's that of legal scholars.
I see your point, but Roberts relied somewhat on the Nixon cases, and cites them in his opinion.  Burglary and the cover up of burglary is not an official act.  This is an extremely complicated issue and I think Sotomayor grossly oversimplified the issue with her outrageous counterexamples.

Also consider this.  Biden is now protected from retaliation by Trump II for the official act of directing the DOJ to investigate and prosecute Trump in the first place.  This sort of back and forth would cannibalize the executive according to Roberts, at about page 46 of the PDF.  It is important for the separation of powers in my opinion that the executive be protected from prosecution for official acts.  The counterargument that "anything can be characterized as an official act" is simply not true.

July 1, 2024 11:57 PM Forum: Politics

At the Supreme Court Today

Posted By James Brown
Originally Posted by Russ Carroll


but don’t you think, as a practical matter, Trumps action was clearly personal and not presidential, making this an unnecessary and clock-killing exercise? Couldn’t they have just rejected this on its face a long time ago saying that immunity arguments only apply to official presidential acts and not personal acts?
No, Trump argued in his brief that he had absolute immunity when president, period end of sentence.  Smith argued that Trump had no immunity because there is not a presidential immunity clause expressly included in the Constitution.   The majority disagreed with both of them, and had to go through the process of briefing and oral argument to get to the final opinion, which obviously is somewhere in the middle.   The Supreme Court did expedite proceedings in this case, but they still have to go through the Constitutionally mandated process.   There can be no extreme short cuts.

If Smith and Garland had wanted this tried before the election they should not have waited so long to bring the charges (a couple of years).

July 2, 2024 12:01 AM Forum: Politics

Biden was as bad as could be. Now of course they are making up excuses for him. Even the leftist media was saying that he was bad

Posted By James Brown
Originally Posted by Maurice Clark
Hi All,

Just returned from a visit to the Cape to watch the Falcon Heavy launch. Very impressive! especially the sonic booms by the returning boosters. They were LOUD! I was also surprised at just how easy it watch using binoculars, the side boosters detach, do their boost back and re-entry burns and follow them all the way down. Definitely worth the time and cost!

Back to the topic... One suggestion for Biden that I have seen. Persuade Sotomayor to retire (she is not in the best of health, Type 1 diabetes), appoint Harris to the bench, and pick Whitmer as his running mate. The thinking is that this would prevent the possibility of a republican president appointing a far-right justice, (remember RBG) boost Biden's stocks with women, especially black women, (appointed 2 black women to the court) and replace an unpopular Vice President with someone far more popular who would make it far easier to win the northern swing states. It would also give Whitmer a far greater chance in 2028.

Interesting concept. What do you think?

Maurice
I think this is a good plan.  Better than the status quo by far anyway.  I don't know if he could get Harris through the confirmation process before November - I could be wrong.  Whitmer would be my first choice for a Biden replacement if Biden could be persuaded to step down.

July 2, 2024 12:06 AM Forum: Politics

Biden was as bad as could be. Now of course they are making up excuses for him. Even the leftist media was saying that he was bad

Posted By James Brown
Originally Posted by Russ Carroll


I think Biden is toast. He can either go down with the ship and stay at the top of the ticket, or get out now and give the Dems a fighting chance. Even I, maybe the biggest Trump detractor on this forum, might write in someone else if Biden is the standard-bearer regardless of who his running-mate is.
If Biden were to win, somehow, there is no way he completes his term.  Maybe not even the first few months.  I imagine the Ds are counting on this, since presumably even the D power brokers would prefer someone coherent sit in the oval office.  So, I think his choice of VP is super critical and I would rather see Whitmer than Harris.   Even if Harris did not have horrible favorability ratings, she is from California and that does not help Biden at all.  She is the D version of Quail or Pence.  Political career over because of their highly unpopular VP stint.

July 2, 2024 01:13 AM Forum: Politics

At the Supreme Court Today

Posted By James Brown
Originally Posted by Rod Kaufman

"The counterargument that "anything can be characterized as an official act" is simply not true."

Well, just to be clear, that argument isn't coming from me. I would, however, anticipate it coming from Trump.

I think the Nixon example is quite relevant and John Dean noted today that his tapes would be considered an official act and therefore inadmissible. Other legal scholars have said essentially the same thing.

In Trump's case, the obstruction charge based upon his attempted coercion of Pence to overthrow a free and fair election can no longer go forward because his communication with his VP is now considered an "official act."

Bottom line with either Nixon or Trump: justice would not be served under this ruling...
I am pretty sure that the SC said that the action can not proceed under any facts regarding communication with the DOJ, but said the action might proceed regarding communication between Trump and Pence, if there is a supporting finding of fact.  I’ll look for the quote later, not at my computer now.

July 2, 2024 02:38 PM Forum: Politics

At the Supreme Court Today

Posted By James Brown
Originally Posted by Rod Kaufman

"Trump has presumptive immunity for pressuring Pence to overturn 2020 election"

“The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct,” Roberts wrote."

https://thehill.com/regulation/court-battles/4749826-donald-trump-mike-pence-immunity-supreme-court/
We are possibly saying the same thing.   The Court's syllabus explains this pretty well.  The Hill as quoted above, stopped too soon.  Trump can be prosecuted for certain attempts to pressure the VP, but there has to be a finding of fact that the prosecution does not intrude on the functioning of the executive branch.  There is a rebuttable presumption that any communication with the VP is within the official duties of the President.   But that is only the starting point.  It is a rebuttable presumption.  According to the Court Syllabus as only partially quoted by the Hill:

(ii) The indictment next alleges that Trump and his co-conspirators “attempted to enlist the Vice President to use his ceremonial role
at the January 6 certification proceeding to fraudulently alter the election results.” App. 187, Indictment ¶10(d). In particular, the indictment alleges several conversations in which Trump pressured the Vice President to reject States’ legitimate electoral votes or send them back to state legislatures for review.

Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.

The question then becomes whether that presumption of immunity is rebutted under the circumstances. It is the Government’s burden to rebut the presumption of immunity. The Court therefore remands to 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. Pp. 21–24.

In this instance the trial court might very well find that prosecution for Trump's attempt to leverage Pence would not pose any dangers of intrusion on the authority and functions of the Executive Branch.  This is what I meant when I said that they could prosecute for this upon a proper factual showing.  Jim

July 2, 2024 02:45 PM Forum: Politics

At the Supreme Court Today

Posted By James Brown
James's funny cartoon reminded me of something I think is important.  Most people, and most pundits who are upset with this opinion are clearly and openly upset because it applies to Trump.  The Supreme Court on the other hand is entirely and exclusively focused upon the effect of prosecution for official acts upon the presidency as an institution.  The opinion is laced full of discussion about the proper historical and practical workings of the executive branch.

The fact that the voters elected a scoundrel is not their problem.  The Court is heading off a cannibalistic shit show where each new president prosecutes his or her predecessor for official acts they disagree with.  Those pundits who are focused primarily on the effect this opinion has on the Trump prosecution are by and large missing this bigger picture.

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