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Posts Made By: James Brown

July 2, 2024 02:52 PM Forum: Politics

At the Supreme Court Today

Posted By James Brown
Originally Posted by Rod Kaufman

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.
This is incorrect in my opinion.  For starters, Nixon was never prosecuted for his acts.  That is an interesting fact in my opinion.  If Nixon had been prosecuted, the production of evidence issue had already decided by the Court, and is discussed in the opinion.  The Court rejected Nixon's absolute immunity claim.  John Dean knows this.  The present decision is consistent with and does not overturn the Nixon case.

From the Syllabus, page 3:

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 decision making,” 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.

July 2, 2024 03:06 PM Forum: Politics

At the Supreme Court Today

Posted By James Brown
Originally Posted by James Lacey


A king by any other name, since it will be tough to show that Trump was not acting officially. This is especially true when you consider the SC ruling, which also says official acts can include acts on the "outer perimeter" of his responsibilities as long as they are not manifestly or palpably beyond his authority. I don't blame Trump's defense team for providing him with a robust defense, but they have effectively created enough cover and doubt that this whole case will be tied up in the courts for years, if not decades, to come. Trump will not likely even be alive to face any real consequences. And, of course, this neutering of the ability to hold a president accountable for their illegal actions will undoubtedly be used in unsavory ways by both sides. Sotomayor's predictions were slightly extreme, but I can see where her concern comes from.
I'm not saying this was an easy or obvious case.   The NYT etc. think it was a bad decision, The Wall Street Journal etc. think it is a good one.  If this had come up during Clinton's term or if Biden were to be prosecuted for influence peddling etc. the opinions of the pundits would be flipped. 

Sotomayor's extreme predictions were immediately seized on by the hard left to post (several examples available) that Biden should call in a drone strike on Mar-a-Lago as an "official act."  That is hogwash.  Roberts says as much, and he is pretty testy for the Chief Justice.  I think this quote from the end of the majority opinion at page 41 says it all:

The dissents’ positions in the end boil down to ignoring the Constitution’s separation of powers and the Court’s precedent and instead fear mongering on the basis of extreme hypotheticals about a future where the President “feels empowered to violate federal criminal law.” See post, at 26, 29–30; post, at 8–9, 10, 12, 16, 20–21 (opinion of JACKSON, J.). The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next. For instance, Section 371—which has been charged in this case—is a broadly worded criminal statute that can cover “‘any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.’” United States v. Johnson, 383 U. S. 169, 172 (1966) (quoting Haas v. Henkel, 216 U. S. 462, 479 (1910)). Virtually every President is criticized for insufficiently enforcing some aspect of federal law (such as drug, gun, immigration, or environmental laws). An enterprising prosecutor in a new administration may assert that a previous President violated that broad statute. Without immunity, such types of prosecutions of ex-Presidents could quickly become routine. The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid. Ignoring those risks, the dissents are instead content to leave the preservation of our system of separated powers up to the good faith of prosecutors.

July 2, 2024 03:15 PM Forum: Politics

At the Supreme Court Today

Posted By James Brown
Originally Posted by James Lacey


A king by any other name, since it will be tough to show that Trump was not acting officially. 
Not at all.  A King, or in this day and age a dictator like Putin, can rape, murder, steal and kidnap with impunity because he in fact has absolute immunity for official and unofficial acts.  The president does not.  Routine crimes are certainly not "official acts."  Robert's opinion, as quoted in my previous post, is carefully limited, and in some cases the presumptive immunity for official acts can be overcome.  It should be hard to overcome this presumption, to ensure the effective working of the executive. 

To the extent you (as opposed to the "drone strike" pundits) are concerned that a president will abuse his immunity for actual official acts, I think you do have a concern.  But it is a necessary immunity in the big picture as explained by Roberts.  It is our job to elect honorable presidents.  If we fail at that, we can not simply jettison a critical immunity that is critical to the long-term constitutional functioning of the executive to clean up our own mess.

July 2, 2024 03:21 PM Forum: Politics

At the Supreme Court Today

Posted By James Brown
Originally Posted by James Lacey


A king by any other name, since it will be tough to show that Trump was not acting officially. This is especially true when you consider the SC ruling, which also says official acts can include acts on the "outer perimeter" of his responsibilities as long as they are not manifestly or palpably beyond his authority. I don't blame Trump's defense team for providing him with a robust defense, but they have effectively created enough cover and doubt that this whole case will be tied up in the courts for years, if not decades, to come. Trump will not likely even be alive to face any real consequences. And, of course, this neutering of the ability to hold a president accountable for their illegal actions will undoubtedly be used in unsavory ways by both sides. Sotomayor's predictions were slightly extreme, but I can see where her concern comes from.
Sadly, Trump is going to win the election, fire Smith and Garland, and have the new DOJ dismiss the case, all of which is his prerogative when he is elected President.   Who gets blamed for that?  The people who vote for Trump, or the people who so vilely miscalculated while claiming to assure that Trump is never elected again?

July 2, 2024 03:29 PM Forum: Politics

Oh, we thought the left was unhinged and going insane when their lies about Biden being "altogether" were exposed on Thursday night?

Posted By James Brown
Originally Posted by James Brown

Just curious, have you read any of my commentary on the Supreme Court this year, or ever?  Were you able to understand my points?
By the way, there is an extremely good conversation about a very important SC opinion going on in this forum right now.  Several people are participating.  Extremely diverse points of view are being respectfully advanced.  No one is hysterical, unhinged, or freaking out.  Your absence is noted and appreciated.

July 2, 2024 03:42 PM Forum: Politics

At the Supreme Court Today

Posted By James Brown
Originally Posted by Rod Kaufman

Here's Dean's explanation:

"Well, there’s actually two rulings in this decision. There’s a 6-3 for presumptive immunity, but there’s also a 5-4 on you can’t even have the evidence of official conduct come to play,” Dean said Monday. “This is very…this to me, appears to certainly influence the existing law on presidential conduct [and] what’s available…evidentiary speaking. Amy Coney Barrett said she didn’t think that it should be so restricted as the decision of the court itself was, so I think that Nixon would have survived. I think he would have walked under this ruling.”

https://thehill.com/regulation/court-battles/4750581-supreme-court-immunity-nixon/
Thanks, he might be right.  We are really into the weeds now!  Since Nixon was never prosecuted for a criminal act, it could be that this case requires a different outcome under a hypothetical prosecution. 

But still, what does Dean mean when he says, "I think he would have walked under this ruling"?  Nixon did walk.  

It is pretty clear that the Supreme Court did not expressly or implicitly overturn the subpoena case US v. Nixon with this opinion.  US v. Nixon is cited favorably by the majority and is still the law.

So at best, if Nixon had been prosecuted before giving up the tapes, maybe he could have held on to them under the new opinion.  But only if the hypothetical prosecutor was unable to make the necessary showings to rebut the presumptions Roberts describes.

July 2, 2024 03:52 PM Forum: Politics

At the Supreme Court Today

Posted By James Brown
Originally Posted by James Lacey


No one knows better than me that these cases are never black-and-white. And just like Sotomayor's predictions are not likely to come true, neither are Robert's predictions. I vastly prefer that we sort these legal details out and make it clear what a President can and cannot do legally so that if a truly smart strong-man gets into power, we have some hope of stopping them. It's just sad that we went almost 250 years without the need to worry about this stuff in such detail until this evil and vile man, Trump, came along and destroyed all of our norms and expectations for behavior while in the office of POTUS.
Yep.  I have a limited disagreement about the likelihood of Robert's predictions coming to pass.   Joe Biden is arguably the prime beneficiary of this opinion.  Who doubts an unfettered Trump II would/will spin up his AG to prosecute Biden, for among other things, prosecuting Trump himself?  

With normal candidates and normal Presidents I agree with you.

July 2, 2024 03:59 PM Forum: Politics

At the Supreme Court Today

Posted By James Brown
Originally Posted by James Lacey


I think the point is, Jim, and I don't think it's controversial, is that holding a President accountable for illegal acts has gotten much more challenging. And yes, we want it to be hard to overcome the presumption of innocence, but at the same time, this case will allow Trump to escape justice, which is why it's also controversial. I realize it's not an easy case, but it will still provide much cover for presidents to avoid accountability. Two things can be true at the same time. Haha.
Yes, sorta.  Since no one has ever tried to hold a former president accountable for his illegal acts, it is not really fair to use "no immunity" as the starting point.   Although (of course) I agree that it is now harder to hold the president accountable than it would be under a hypothetical lesser immunity standard.

If you will indulge some silly pedantic behavior on my part... I would say it is more correct, since this is a novel case, to say the immunities described in US v. Trump have always been the law. wink

July 2, 2024 04:05 PM Forum: Politics

At the Supreme Court Today

Posted By James Brown
Originally Posted by James Lacey


Two things can be true at the same time. Haha.
So true, and this case, plus this discussion prove that in spades.  There is a tension at play.  We all want a robust strong executive.  We all want accountability for illegal acts.  Where the immunity line is drawn and how it is implemented is not, in the abstract, a right v. wrong question.  This is one big reason I enjoy exploring these issues with you guys.

I do have limited patience for the pundits out there who view everything through the lens of "this is partisan hackery."  One way or the other.  I don't think anyone could honestly explore the issues like we have and conclude that one of the opinions (majority or dissents) was a "mere partisan hack job."

July 2, 2024 06:49 PM Forum: Politics

At the Supreme Court Today

Posted By James Brown
Originally Posted by Rod Kaufman
I see the ramifications of the vast umbrella of protections afforded by the conservative majority are now thwarting the sentencing of a convicted felon:

https://www.cnn.com/2024/07/02/politics/trump-sentencing-date-delay-proposal/index.html


The ruling is so broad and mind boggling in its breadth and scope but it still has the same bottom line: justice evaded...
Do you think Trump will get anything other than a wrist slap in the hush money case?   Anything else would be inappropriate in my opinion. 

For many reasons, discussed before, I think the NY prosecution is all messed up and should be overturned.  Immunity is not  one of those reasons!  Trump was not even president when he paid off Stormy.

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