#criminal SCOTUS

[dreaminginthedeepsouth]

Clay Bennett, Chattanooga Times Free Press

* * * *

LETTERS FROM AN AMERICAN

July 1, 2024

HEATHER COX RICHARDSON

JUL 02, 2024

Today the United States Supreme Court overthrew the central premise of American democracy: that no one is above the law. 

It decided that the president of the United States, possibly the most powerful person on earth, has “absolute immunity” from criminal prosecution for crimes committed as part of the official acts at the core of presidential powers. The court also said it should be presumed that the president also has immunity for other official acts as well, unless that prosecution would not intrude on the authority of the executive branch.

This is a profound change to our fundamental law—an amendment to the Constitution, as historian David Blight noted. Writing for the majority, Chief Justice John Roberts said that a president needs such immunity to make sure the president is willing to take “bold and unhesitating action” and make unpopular decisions, although no previous president has ever asserted that he is above the law or that he needed such immunity to fulfill his role. Roberts’s decision didn’t focus at all on the interest of the American people in guaranteeing that presidents carry out their duties within the guardrails of the law. 

But this extraordinary power grab does not mean President Joe Biden can do as he wishes. As legal commentator Asha Rangappa pointed out, the court gave itself the power to determine which actions can be prosecuted and which cannot by making itself the final arbiter of what is “official” and what is not. Thus any action a president takes is subject to review by the Supreme Court, and it is reasonable to assume that this particular court would not give a Democrat the same leeway it would give Trump. 

There is no historical or legal precedent for this decision. The Declaration of Independence was a litany of complaints against King George III designed to explain why the colonists were declaring themselves free of kings; the Constitution did not provide immunity for the president, although it did for members of Congress in certain conditions, and it provided for the removal of the president for “high crimes and misdemeanors”—what would those be if a president is immune from prosecution for his official acts? The framers worried about politicians’ overreach and carefully provided for oversight of leaders; the Supreme Court today smashed through that key guardrail. 

Presidential immunity is a brand new doctrine. In February 2021, explaining away his vote to acquit Trump for inciting an insurrection, Senate minority leader Mitch McConnell (R-KY), who had also protected Trump in his first impeachment trial in 2019, said: “Trump is still liable for everything he did while he was in office…. We have a criminal justice system in this country. We have civil litigation, and former presidents are not immune from being held accountable by either one.”

But it was not just McConnell who thought that way. At his confirmation hearing in 2005, now–Chief Justice John Roberts said: “I believe that no one is above the law under our system and that includes the president. The president is fully bound by the law, the Constitution, and statutes.” 

In his 2006 confirmation hearings, Samuel Alito said: “There is nothing that is more important for our republic than the rule of law. No person in this country, no matter how high or powerful, is above the law.” 

And in 2018, Brett Kavanaugh told the Senate: “No one’s above the law in the United States, that’s a foundational principle…. We’re all equal before the law…. The foundation of our Constitution was that…the presidency would not be a monarchy…. [T]he president is not above the law, no one is above the law.”

Now they have changed that foundational principle for a man who, according to White House officials during his term, called for the execution of people who upset him and who has vowed to exact vengeance on those he now thinks have wronged him. Over the past weekend, Trump shared an image on social media saying that former Representative Liz Cheney (R-WY), who sat on the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, was guilty of treason and calling for “televised military tribunals” to try her. 

Today, observers illustrated what Trump’s newly declared immunity could mean. Political scientist Norm Ornstein pointed out that Trump could “order his handpicked FBI Director to arrest and jail his political opponents. He can order the IRS to put liens on the property of media companies who criticize him and jail reporters and editors.” Legal analyst Joyce White Vance noted that a president with such broad immunity could order the assassination of Supreme Court justices, and retired military leader Mark Hertling wrote that he was “trying to figure out how a commander can refuse an illegal order from someone who is issuing it as an official act.” 

Asha Rangappa wrote: “According to the Court, a President could literally provide the leader of a hostile adversary with intelligence needed to win a conflict in which we are involved, or even attack or invade the U.S., and not be prosecuted for treason, because negotiating with heads of state is an exclusive Art. II function. In case you were wondering.” Trump is currently under indictment for retaining classified documents. “The Court has handed Trump, if he wins this November, carte blanche to be a ‘dictator on day one,’ and the ability to use every lever of official power at his disposal for his personal ends without any recourse,” Rangappa wrote. “This election is now a clear-cut decision between democracy and autocracy. Vote accordingly.”

Trump’s lawyers are already challenging Trump’s conviction in the election interference case in which a jury found him guilty on 34 counts. Over Trump’s name on social media, a post said the decision was “BRILLIANTLY WRITTEN AND WISE, AND CLEARS THE STENCH FROM THE BIDEN TRIALS AND HOAXES, ALL OF THEM, THAT HAVE BEEN USED AS AN UNFAIR ATTACK ON CROOKED JOE BIDEN’S POLITICAL OPPONENT, ME. MANY OF THESE FAKE CASES WILL NOW DISAPPEAR, OR WITHER INTO OBSCURITY. GOD BLESS AMERICA!”

In a concurring opinion, Justice Clarence Thomas, whose wife was deeply involved in the effort to overturn the 2020 presidential election, also took a shot at the appointment of special counsels to investigate such events. Thomas was not the only Justice whose participation in this decision was likely covered by a requirement that he recuse himself: Alito has publicly expressed support for the attempt to keep Trump in office against the will of voters. Trump appointed three of the other justices granting him immunity—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—to the court.

In a dissent in which Justices Elena Kagan and Ketanji Brown Jackson concurred, Justice Sonia Sotomayor wrote that because of the majority’s decision, "[t]he relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law."

“Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy,” she wrote, “I dissent.” 

Today’s decision destroyed the principle on which this nation was founded, that all people in the United States of America should be equal before the law.

The name of the case is “Donald J. Trump v. United States.” 

LETTERS FROM AN AMERICAN

HEATHER COX RICHARDSON

[meandmybigmouth]

[dreaminginthedeepsouth]

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JUSTICE ALITO'S "HYPOTHETICAL"

TCINLA

APR 27, 2024

From Jamelle Bouie’s Saturday morning newsletter:

“I mentioned it in passing in my Friday column, but I was struck — disturbed, really — by one specific point made by Justice Samuel Alito during Thursday’s oral arguments in Trump v. United States.

“Alito began innocuously enough: “I’m sure you would agree with me that a stable democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully if that candidate is the incumbent.”

“Of course,” answered Michael Dreeben, the lawyer arguing the case for the Department of Justice.

“Now,” Alito continued, “if an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”

“The implication of Alito’s question is that presidential immunity for all official acts may be a necessary concession to the possibility of a politically motivated investigation and prosecution: Presidents need to be above the law to raise the odds that they follow the law and leave office without incident.

“If this sounds backward, that’s because it is.

“There have been, in the nearly 236 years since Americans ratified the Constitution, 45 presidents. Of those, 10 sought but did not win re-election. In every case but one, the defeated incumbents left office without incident. There was no fear that they would try to overturn the results or subvert the process, nor was there any fear that their successors would turn the power of the state against them. Thomas Jefferson did not try to jail John Adams after the close-fought 1800 election; he assured the American people that “we are all republicans, we are all federalists.” Jimmy Carter did not sic the F.B.I. on Gerald Ford in the wake of his narrow victory; he thanked him for “all he has done to heal our land.”

“By Alito’s lights, this should not have been possible. Why would a president leave if he could be prosecuted as a private citizen? The answer is that the other nine people who lost had a commitment to American democracy that transcended their narrow, personal or partisan interests.

“Alito’s hypothetical rests on the idea that this is unusual — that we should expect a defeated president to want to hold on in spite of the Constitution. But that’s a complete inversion of the reality of American history.

“The truth is that exactly one person in 236 years has tried to subvert the process of presidential succession. He did not do so because he feared prosecution; he did so because he did not believe the people of the United States had the right to tell him to leave. He was indicted not because President Biden disagreed with his policies; he was indicted because he led an effort to overturn the results of the election he lost, an effort that culminated in an attack on the United States Capitol.

“Alito would have you believe that Trump’s actions were a normal response to political defeat that the government has essentially criminalized in its zeal to punish an opponent. I have no doubt that this is the reality of Fox News and the fever swamps of conservative media. It might even be the consensus view of Republican lawmakers and activists. But here on Earth, it’s hogwash. Bunkum. Claptrap. Malarkey, even.

“The way we shield our liberties from the threat of a tyrant is to make men obey the law, not place them above it. We chain the power of those who hold office; we don’t unleash it for them to use at their discretion. We don’t extend every privilege and immunity we can imagine; we deny them and demand responsibility.

“I have a feeling that Alito and his fellow travelers on the court would understand this simple point if the president in question were an opponent and not an ally. As it stands, at least a few justices on the Supreme Court would rather shatter a bedrock principle of American democracy than let Trump face the consequences of his own actions.”

Good news: POLITICO did a quick national poll yesterday, to find that 70% of Americans disagree with the idea of a President being immune to prosecution.

[TCinLa]

[politijohn]

Source

Another inhumane ruling from our famously corrupt Supreme Court

[republikkkanorcs]

[liberalsarecool]

Lifelong appointments based on perjury should be disqualifying. What other occupation would allow such corruption/lack of ethics?

[dreaminginthedeepsouth]

Supreme Court has already granted Trump practical immunity

June 20, 2024

ROBERT B. HUBBELL

There is a 50% chance that the Supreme Court will issue its decision on Trump's presidential immunity defense in the next forty-eight hours. It doesn’t matter what the Court decides. It has already granted Trump the remedy he sought—practical immunity from the two federal cases filed by special counsel Jack Smith.

The Court’s delay in granting review, scheduling argument, and issuing its opinion effectively granted Trump six months of immunity from prosecution when it mattered most—during the 2024 presidential election. It is now too late for Jack Smith to obtain a jury verdict before November 5, 2024—exactly the result Trump desired.

It could have been otherwise. The Supreme Court had multiple opportunities to expedite its review of Trump's defense. But at each pivotal moment, the Court opted for delay. It opted for delay at the following decision points:

When Jack Smith asked the Court to grant immediate and direct review of Judge Chutkan’s decision on 12/1/23, skipping over the DC Court of Appeals by granting “certiorari before judgment.” The Court denied Jack Smith request to expedite the appeal (12/22/23).

When the Supreme Court granted review of the DC Court of Appeals affirmance of Judge Chutkan’s decision rather than issuing a summary affirmance by adopting the DC Circuit’s opinion in whole. (2/28/2024)

When it granted review of the DC Court of Appeals affirmance of Judge Chutkan’s decision but placed it on the last day of argument during the 2023-2024 term, i.e., April 24, 2024.

When it delayed from the hearing on April 24, 2024, until today (at least) to issue an opinion on a matter of urgent, national importance—a delay of at least 57 days.

By contrast, the Supreme Court issued an opinion in 26 days (2/8/24 to 3/4/24) to allow Trump on the Colorado primary ballot despite the disqualification clause of the 14th Amendment. In an earlier era, the Burger Court took less than three weeks to reject President Nixon’s claim of presidential immunity against a criminal subpoena for his tapes of Oval Office conversations.

All told, the Supreme Court granted Trump six months of delay. In doing so, the Court has broken faith with the American people and the Constitution. I fervently hope that the Court unanimously upholds the opinions of Judge Chutkan and the DC Circuit by making clear that his presidential immunity defense on the facts alleged is baseless. But even if it does so, it will hand Trump a corrupt victory in which the Court’s reactionary majority is a co-conspirator.

Of course, any limited recognition of presidential immunity or requirement of further fact-finding will be evidence additional evidence of bad faith by a court that has debased itself in service of the most anti-democratic former president in our nation’s history.

We find ourselves bracing once again for a body blow by the Court. It doesn’t have to be like this. It shouldn’t be like this. We need our party leaders—starting with President Biden—to make Supreme Court reform a top priority. Until they do, the rights of women, Black voters, LGBTQ people, and every American who depends on the government to provide safe schools, workplaces, and public spaces are at risk. What more evidence do we need that the Court’s reactionary majority is acting in a corrupt fashion to advance the partisan interests of Donald Trump?

Signs of creeping fascism

Democrats are frequently dismissed for exaggerating the threat of a second Trump term. But several reports over the last few days make clear what Trump and his MAGA extremists want for all Americans—a white Christian nationalist society in which dissent is prohibited.

In noting these developments, my point is not to alarm people. Rather, it is to identify the stakes of this election. We can prevent every threat identified below; indeed, many of them are performative threats that nonetheless provide insights into the America that MAGA extremists want to create:

Louisiana enacted a bill that requires every classroom include a copy of the Ten Commandments. Imposing a state-sanctioned religion on all citizens violates the First Amendment. See CNN, Louisiana classrooms now required by law to display the Ten Commandments.

Trump has promised to deny funds to any school that requires mandatory vaccines. Childhood vaccines against 16 diseases have saved hundreds of thousands of lives over the last century. Defunding schools that require vaccines will cause outbreaks of diseases that have been effectively eliminated. See HuffPo, Trump Makes Bizarre Threat About Schools And Vaccine Mandates.

Trump says that business leaders who do not support him should be fired. NBC News, Trump says business executives should be 'fired for incompetence' if they don't support him.

Trump trashed Fox News for having the temerity to interview a guest—former Speaker Paul Ryan—who was critical of the former president. Trump said, “Nobody can ever trust Fox News, and I am one of them.” MSN, Trump Loses It At Fox News, Says No One Can Trust It.

Trump said that President Biden’s student loan forgiveness plans are “stunts” that will be “rebuked” if Trump is elected. See The Independent, Trump calls Biden’s student loan forgiveness a ‘vile’ publicity stunt.

Trump recently told the Danbury Institute that, if elected, “These are going to be your years because you’re going to make a comeback like just about no other group . . . And I’ll be with you side by side.” The Danbury Institute promotes fetal personhood, opposing abortion from “the moment of conception” (a position that would effectively ban IVF). See Missouri Independent, Trump says he’ll work ‘side by side’ with group that wants abortion ‘eradicated.

Thirty falsehoods by Trump in a single campaign speech

Trump gave a campaign speech in Racine, Wisconsin on Tuesday. CNN fact-checked Trump's speech and found thirty lies. See video embedded at Harry Sisson on Twitter. Almost everything Trump says is a lie. Will the moderators at the upcoming debate challenge Trump's lies? Or will they simply give him a platform to spew lies??

[Robert B. Hubbell Newsletter]

[roguekhajiit]

With the SCOTUS ruling that the president is above the law, the MAGATs are showing their true colors.

And it's not the red, white, and blue that they fly next to their cult flags.

No, it's peach and orange.

That's because all this time, while they were screaming the loudest about how they were the "True patriots," they were really just reading a script their great orange leader gave to them.

They absolutely praise the deeds of these corrupt justices that blatantly disregard the vision the founding fathers had for our country.

When you call them out on their treasonous ideas, and that's what this boils down to, they can't do much more than regurgitate the tweets of their supreme leader.

They are not Patriots! Project 2025 seeks to tear down our democracy and rebuild our government into a dictatorship, crowning their cult leader as king.

All of these recent SCOTUS rulings are designed to lay the groundwork for Project 2025, and the MAGATs fully support it. Don't you forget that. Every single truck flying a MAGA flag, every single house with a Trump 2024 sign out front, and every red hat in the crowd at this year's 4th of July parade; they all support a dictatorship.

Don't let these kool-aid drinkers win this year. If they do, you can kiss your freedoms goodbye. They will undo all the progress we made over the years and set us back 300+ years. Under their regime, only rich, white men will have any semblance of freedom in the new country.

The only way we can hope to stop it is to get out and vote, turn as many states blue as we can. And let's hope that the electoral college isn't as corrupt as the Supreme Court is.

[justinspoliticalcorner]

Jill Filipovic at Slate:

Should the very state of being pregnant place women in a subclass of citizen, vulnerable to criminal prosecution or civil penalties for behavior that would be perfectly legal from a nonpregnant person? Judging by their proposed legislation and various legal antics, the anti-abortion movement says: Yes. Pregnant women simply should not have the same rights as any other U.S. citizen. Take, for example, efforts to criminalize the crossing of state lines for abortion. There is a very, very long tradition in the U.S. of allowing people to travel out of state to access medical care, and it’s so deeply ingrained we barely think about it. Consider, for example, the businesswoman who lives in New Jersey but works in New York City and so goes to the dentist in midtown Manhattan, or the dad who lives on the Kansas side of Kansas City but takes his sick kid to a specialist at a hospital on the Missouri side. A great many Americans don’t think twice about crossing state lines for health care. Abortion opponents are trying to change that for one group of people: pregnant women.

Conservative legal groups are already drafting model legislation to prevent pregnant women from traveling for abortions by legally penalizing anyone who helps them, a strategy used by the state of Texas in one of its abortion bans, which allows anyone in the U.S. to sue those who assist women with abortions—and be rewarded with a bounty paid by the state. The architect of that Texas abortion bounty law was Jonathan Mitchell, an anti-abortion activist (and Donald Trump lawyer) who is currently representing a Texas man in his quest to probe into his ex-girlfriend’s abortion, which she allegedly sought outside of their home state. Mitchell filed a petition to learn the details of this woman’s abortion for, he says, a potential future lawsuit. But to be clear, the woman in question did absolutely nothing illegal: Traveling out of state for health care, including abortion, is not against the law in Texas or anywhere else. It’s just that Mitchell and other abortion opponents would like to change that—and are apparently happy to represent controlling (and, in another case Mitchell took on, allegedly abusive) men to do it.

They’re also happy to reclassify pregnant women as a kind of sub-citizen who, by simple virtue of their pregnancy status, are not entitled to the same legal freedoms and protections as anyone else. A Texas woman who goes to a Colorado abortion clinic is being treated differently from any nonpregnant person who travels for a medical procedure—and you can bet that this categorization of pregnant people as suspect, should they travel out of state, will lead to all sorts of investigations and abuses.

Take this hypothetical: Say the anti-abortion movement succeeds and makes it a crime to travel out of state for an abortion. Say a woman in Idaho (where abortion laws are so extreme, they have no exceptions for saving a woman’s health) travels to Washington state, where abortion is legal, and gets her hands on abortion-inducing drugs. Say she’s not pregnant. Say she takes the drugs anyway. Has she committed a crime? Or, to use a more likely legal model, say Texas makes it a crime to help a woman travel for an abortion, and a Texas woman goes to Colorado, gets abortion-inducing drugs, and takes them, despite not being pregnant. Is the friend who helped buy her plane ticket still liable? Presumably not: No pregnancy means no abortion, which means no violation of an abortion ban. But if the two women in these scenarios had been pregnant, the legal calculus would be entirely different.

Or to use a perhaps more realistic scenario: Mifepristone, an abortion-inducing drug, is also commonly used to treat Cushing’s syndrome, and researchers say it has tremendous potential to treat other illnesses, too, from various cancers to PTSD. Under an anti-abortion legal scheme, if a Texas woman with Cushing’s syndrome travels out of state, gets mifepristone, and takes it, she (or those who help her) would face potential legal consequences only if she’s pregnant. It’s her status as a pregnant woman—not the act of traveling or even taking an abortion-inducing drug—that is the problem. And generally, the law frowns on making a person’s status—rather than their actions—the basis of a crime or a lawsuit. That’s part of treating all people equally under the law, and offering all people the equal protection of it.

Preventing pregnant women from crossing into a state for a legal medical procedure isn’t the only way in which the anti-abortion movement is attempting to curtail basic rights and protections for anyone carrying a pregnancy. Earlier this year, abortion opponents argued before the Supreme Court that pregnant patients should be treated differently than nonpregnant ones in cases of serious medical emergencies—that doctors and other health workers should be permitted to give pregnant women a substandard level of care, and to essentially refuse to appropriately stabilize them. If a woman comes in and is very ill, she’s entitled to one standard of care; if she comes in and is very ill and pregnant, that standard of care is lower in states that criminalize abortion.

At issue in the Supreme Court case, a ruling in which is expected early this summer, is the Emergency Medical Treatment and Labor Act (EMTALA), a law initially written to prevent hospitals from dumping seriously ill patients who couldn’t pay. Pregnant women in particular were often coming into hospitals in labor, only to be refused care; there were stories of women birthing in hallways and cars. EMTALA says that any hospital receiving federal Medicaid dollars (which is most hospitals, both public and private) must provide lifesaving care to anyone who walks through their doors, regardless of their ability to pay. That means that hospitals have an obligation to stabilize ill patients. (If they don’t have the ability to appropriately stabilize a patient, they must move the patient to a facility that does.)

Jill Filipovic wrote in Slate the insidious trend of anti-abortion hardliners making pregnant people 2nd class citizens by enacting laws criminalizing access to out-of-state abortion services (this is also applicable to gender-affirming care).

[lenbryant]

(Long Post/The Atlantic) How Jack Smith Outsmarted the Supreme Court

And why the special counsel’s last-ditch January 6 filing may not matter

By Sean Wilentz

Special Counsel Jack Smith’s recent filing to the D.C. District Court in the Trump v. United States presidential-immunity case both fleshes out and sharpens the evidence of Donald Trump’s sprawling criminal conspiracy to overturn the 2020 election. To understand the filing’s larger significance as well as its limitations, we must first review a bit of recent history.

In its shocking decision on July 1 to grant the presidency at least presumed immunity from criminal prosecution for all official acts, the Supreme Court’s conservative majority showed once again that it was intent on immunizing one president in particular: Donald Trump. The Court majority’s decision, delivered by Chief Justice John Roberts, was explicit. It held, for example, that Trump’s alleged efforts to pressure then–Vice President Mike Pence into voiding the 2020 election results on January 6 constituted “official conduct” from which Trump “is at least presumptively immune from prosecution.” That presumed immunity, the Court contended, would disappear only if the prosecution could convince the courts that bringing the case to trial would pose no “dangers of intrusion on the authority and functions of the Executive Branch.”

The Court thus remanded the case back to the D.C. District Court to decide the matter, along with the question of whether Trump is actually immune to the rest of the charges against him. How, though, could the prosecution of a president or former president over an “official act” fail to intrude on presidential authority? Seemingly, anything pertaining to Trump’s contacts with the vice president as he presided in his constitutional role as president of the Senate—as well as Trump’s contacts with the Department of Justice, which the Court also singled out and which the prosecution, significantly, felt compelled to omit from its revised indictment—deserves, as the Court sees it, virtually ironclad protection, a powerful blow against the entire January 6 indictment.

Although the sweeping outcome of Trump v. United States took most legal commentators by surprise, its protection of Trump was completely predictable given the Court’s previous conduct regarding the January 6 insurrection. The refusal of Justices Clarence Thomas and Samuel Alito to recuse themselves from any matter related to the insurrection, despite their own conflicted positions—Thomas due to the direct involvement of his wife, Ginni Thomas, in the subversion; Alito because of his flag-waving support of Trump’s election denials—has received the most public attention concerning the Court majority’s partisan partiality. But another set of telltale signs becomes apparent after a closer tracking of the Court’s decision making.

Almost as soon as the case against Trump came before D.C. District Court Judge Tanya Chutkan, the Supreme Court played along with the Trump lawyers’ efforts to delay the trial until after the November 2024 election. First, after Chutkan ruled against Trump’s absolute-immunity claims in December 2023, Special Counsel Smith asked the Supreme Court to expedite matters by hearing the case immediately, not waiting for the U.S. Court of Appeals to rule on Trump’s appeal of Chutkan’s decision. The Supreme Court refused. Two months later, though, when the appeals court ruled against Trump and set a new trial date, the Supreme Court dragged its feet for as long as possible before announcing that it would take up the case after all. It then set the date for oral arguments as late as possible, at the end of April. This meant that even before hearing the case, the Court made it highly unlikely that Trump’s trial would proceed in a timely manner, effectively immunizing Trump until after the election.

Although radical in its long-term reconstruction of the American presidency, the ruling more immediately affirmed and extended the Court’s protection of Trump from prosecution. By remanding the case to the D.C. Circuit Court to decide what in the indictment constitutes official (and, therefore, presumably immune) conduct, the justices guaranteed that no trial would occur until after Election Day. After that, meanwhile, should Trump win the election, no trial would occur at all, because he would certainly fire Smith and shut down the proceedings.

Smith’s filing tries to slice through the Court’s security shield regarding the insurrection. Skillfully quoting from or alluding to language in the Court majority’s own opinion, the filing demolishes the notion that Trump’s activities, culminating on January 6, deserve immunity. Outwardly, Smith’s filing respects the Court’s dubious ruling about the immunity of official presidential acts. Legally, Smith had no choice but to operate within that ruling, a fact that sharply limited how far his filing could go. But even though it never challenges the conservative majority directly, the filing makes a case, incontrovertible in its logic and factual detail, that the core of Trump’s subversion involved no official actions whatsoever. It persuasively argues, with fact after fact, that Trump was the head of an entirely private criminal plot as a candidate to overthrow the election, hatched months before the election itself.

In remounting his case, Smith has taken the opportunity to release previously unknown details, some of which he says he doesn’t even plan to present at trial, that underscore the depravity as well as the extent of Trump’s criminal actions. Consider, for example, Smith’s telling of Trump’s reaction to the news from one of his staff, at the height of the violence on January 6, that his tweets attacking Pence had placed Pence’s life in extreme danger. “So what?” Trump reportedly replied. He had clearly intended for his tweets to reach the mob at the Capitol. His nonchalance about the vice president’s life epitomizes the lengths to which he would go to complete his coup d’état.

But the real force of Smith’s filing is in its tight presentation of the evidence of a criminal conspiracy in minute detail, dating back to the summer before the 2020 election, when Trump began publicly casting doubts on its legitimacy should he not be declared the winner. “The only way they can take this election away from us is if this is a rigged election,” he told the Republican National Convention in his nomination-acceptance speech in August 2020.

From that point forward, Trump was at the center of every effort to keep him in power, even once he was fully aware that he had no grounds to contest Joe Biden’s victory. There were his private operatives sowing chaos at polling places and vote-counting centers, the scheming to declare victory on Election Night before the results were in, the bogus legal challenges, the fake-elector fraud, the plot to deny official certification by Congress on January 6, and finally the insurrection itself. “It doesn’t matter if you won or lost the election,” one witness reports Trump saying. “You still have to fight like hell.”

The crucial point to which the filing unfailingly returns is that none of Trump’s actions listed in the revised indictment, even those that the Court cited as “official,” deserves immunity. As Smith makes clear, the Framers of the Constitution deliberately precluded the executive branch from having official involvement in the conduct of presidential elections. The reason was obvious: Any involvement by a president would be an open invitation to corruption. To make the case that any such involvement falls within a president’s official duties would seem, at best, extremely difficult.

It is here that Smith turns the Court’s Trump v. United States ruling to his own advantage. Concerning specific charges that Trump’s speechmaking contributed to the insurrection, the Court allowed that “there may be contexts in which the President speaks in an unofficial capacity—perhaps as a candidate for office or party leader.” Quoting from an earlier Court decision, the ruling then states that determining these matters would require that the district court undertake “objective analysis of [the] ‘content, form, and context’” of the speeches in question, a “necessarily fact-bound analysis.” Likewise, regarding the allegations apart from Trump’s supposedly official communications and public speeches, the justices enjoined the district court, on remand, to “carefully analyze” those charges “to determine whether they too involve conduct for which the President may be immune from prosecution.”

Citing those exact phrases as the Court’s standard of inquiry and proof, Smith then offers evidence that every count in the revised indictment concerns either technically official conduct undeserving of immunity or unofficial conduct involving Trump’s private actions as a candidate and not his official duties as president. These actions include his efforts to pressure state officials, preposterously presented by Trump’s defense attorneys as official inquiries into election integrity. They include his conversations about elector slates, about which the president has no official duties. They also encompass all of his speechmaking about the allegedly crooked election, up to and including his incitement at the January 6 rally at the Ellipse, which was not an official function.

Above all, Smith nails down a matter that the Court’s opinion went out of its way to declare “official” and presumably immune: Trump’s efforts to pressure Pence into declining to certify Biden’s win. Although the filing acknowledges that the Court had held that these conversations between Trump and Pence about “their official responsibilities” qualified as “official,” it rebuts the presumption that those discussions therefore qualify as immune. The filing observes that the discussions did not concern Pence’s duties as president of the Senate “writ large,” but only his distinct duties overseeing the certification of a presidential election—a process in which a president, whether or not he is a candidate for reelection, has, by the Framers’ considered design, no official role.

Here the logic of Smith’s argument cuts to the quick. By the Court majority’s own standard, as stated in its Trump v. United States decision, the presumption of immunity for official actions would disappear only if a prosecutor could demonstrate that bringing criminal charges against a president or former president would not present “dangers of intrusion on the authority and functions of the Executive Branch.” Because certification of a presidential election, the subject of Trump’s “official” pressuring, involves neither the authority nor the functions of the executive branch, the immunity claims concerning that pressuring are therefore groundless—according to the Court majority’s own logic.

The rest of Trump and Pence’s interactions do not even qualify as official, Smith shows. In all of their other postelection, in-person conversations and private phone calls, Trump and Pence were acting not in their capacities as president and vice president but as running mates pondering their electoral prospects, even after Biden had been declared the winner. If, as the Court itself has stated, context is important with regard to speechmaking, so it is important with regard to communications between the top officials of the executive branch. To be sure, Smith allows, Trump and Pence “naturally may have touched upon arguably official responsibilities,” but “the overall context and content of the conversations demonstrate that they were primarily frank exchanges between two candidates on a shared ticket”—strictly unofficial conduct.

In all, by recasting the case against Trump in view of the Court’s immunity decision, Smith has drawn upon that very ruling to establish that none of Trump’s actions in connection with January 6 cited in the revised indictment is immune from prosecution. And in doing that, he has further discredited an already discredited Supreme Court.

Unfortunately, important as it is with respect to Smith’s specific case, the filing cannot come close to undoing the damage that Trump v. United States has wrought, with its authorization of an authoritarian American regime. The very fact that Smith had to omit from both his revised indictment and his filing Trump’s nefarious but official dealings with the Justice Department, including his brazen hiring and firing of top law-enforcement officials on the basis of who would do his personal bidding, shows how fearsomely the Court’s immunity decision has constrained the special counsel. There was a great deal more criminal behavior by Trump and his co-conspirators, as laid out in detail in the House January 6 committee report, that Smith could not touch because the Court has effectively immunized it as “official” activity under the executive branch’s authority.

These limitations show all over again how the Court has given the president absolute license to rule like a tyrant, against which even the ablest special counsel is virtually powerless. Nothing in Smith’s filing alleviates Justice Sonia Sotomayor’s judgment in her forthright dissent in Trump v. United States that the decision empowers the president, acting in his official capacity, to order the assassination of political rivals, to take a bribe in exchange for a pardon, to organize a military coup with impunity: “Immune, immune, immune.” That Smith managed to outsmart the Court as much as he did is a remarkable feat that could have important results—but only if Kamala Harris succeeds in winning the presidency.

On the basis of their past decisions, it is reasonable to expect that both the D.C. district court under Judge Chutkan and the U.S. Court of Appeals will rule in favor of Smith. Trump v. United States would then go once again before the Supreme Court. This will happen if Harris wins the election, because a Justice Department under her administration would almost certainly allow Smith to remain to continue prosecution of Trump. What, then, would the Court do? Would it uphold those decisions and throw Trump upon the mercy of a D.C. federal jury? Or would it strike those decisions down, thereby redoubling the disgrace it earned the first time around?

The only way the Court can avoid that dilemma is if Trump wins the election, an outcome that its conservative majority would now have all the more reason to desire. But what happens if, as seems highly possible, the election leads to litigation, much as the 2020 election did, only this time the Court is left to make the final decision? Will the Court then intervene as Trump’s enabler once again, installing him as a constitutionally tainted president, allowing him to kill the indictment against him, and to pardon those convicted of violent crimes in the attack on the Capitol whom he calls “hostages”? The Court, in Trump v. United States, claimed that it was protecting the sanctity of the presidency, but if it aids Trump in his attempt to escape justice for his January 6 insurrection, it will further seal its illegitimacy while also sealing MAGA’s triumph—and, with that, the majority of Americans, not to mention the rest of the world, will pay a crushing price.

[dreaminginthedeepsouth]

don't piss off cat people

* * * *

Biden-Harris promote Supreme Court reform!

July 30, 2024

Robert B. Hubbell

At long last! President Biden announced proposals for significant reforms to the Supreme Court, and presumptive nominee Kamala Harris immediately endorsed those reforms! President Biden has also proposed a constitutional amendment to reverse the Supreme Court’s decision in Trump v. US that granted extra-constitutional immunity to presidents after they leave office.

Although passing these reforms depends on the outcome of the 2024 election and the successful defense of the proposed laws in the courts, President Biden and V.P. Harris have changed the framework for discussing the Supreme Court. The question is now, “When?,” not “If?”

It has been a long and uncertain road to this point, but the Supreme Court’s stream of lawless decisions issued by a conflicted and hyper-partisan bench has proved too much for the American people. In proposing the reforms and constitutional amendment now, President Biden has ensured that the Supreme Court is on the ballot in 2024.

President Biden authored an op-ed in the Washington Post that explains his proposals. See Opinion  Joe Biden: My plan to reform the Supreme Court and ensure no president is above the law. (This article is accessible to all.) I hope you will take the time to read the entire op-ed.

President Biden places the ethics scandals at the Court front-and-center in his proposal:

[T] he court is mired in a crisis of ethics. Scandals involving several justices have caused the public to question the court’s fairness and independence, which are essential to faithfully carrying out its mission of equal justice under the law. [¶] What is happening now is not normal, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms. We now stand in a breach.

President Biden has proposed three reforms:

1.    A constitutional amendment that would provide that there is no immunity for crimes a former president committed while in office 2.    A binding code of ethics 3.    Eighteen-year term limits (A president would appoint a new justice every two years, who would serve for 18 years).

Some commentators welcomed the proposals as a “practical way forward” that could garner support for passage after the 2024 election. See Politico, Democrats May Have a Real Chance to Reform the Supreme Court. President Biden’s proposal omitted enlarging the Court, a proposal that the Politico article described as an unpopular outlier not likely to gain legislative support.

Each proposal faces difficulties in gaining passage.

As to the constitutional amendment abolishing presidential immunity, Ian Millhiser in Vox reviewed the historical challenges faced by earlier proposed amendments, including the ERA and a proposal to ban child labor. (To date, neither has passed.) An amendment requires approval by a 2/3 supermajority in both chambers of Congress and ratification by 3/4 of the states (38 states). That is a tall order, indeed. But it won’t happen if we don’t try. And Republican states may be more supportive of such an amendment if they perceive that a Democratic president—like Kamala Harris—is too powerful.

The binding ethics code is plainly constitutional because the Constitution grants Congress the authority to create “exceptions” and impose “regulations” on the Court’s exercise of appellate jurisdiction. But the plain words of the Constitution haven’t prevented Justice Alito from taking the position that Congress is constitutionally prohibited from imposing regulations on the Court. Alito should lose, but it will be a fight.

As to the term limits, there will be a fight over whether the Constitution’s grant of life tenure to judges—subject to good behavior—permits term limits. Some constitutional scholars (including Professor Laurence Tribe) believe that term limits are permissible in the absence of a constitutional amendment, while others disagree. The Supreme Court would likely decide this issue.

One reform not suggested by President Biden is enlarging the Court. That path would not be subject to constitutional challenge and would require only a majority vote in both chambers of Congress (and a carve-out to the filibuster, which requires only 51 votes in the Senate). But for reasons that escape me, many politicians and observers view the least legally objectionable pathway as the most radical. Nonetheless, Senator Edward Markey of Massachusetts has proposed legislation to enlarge the Supreme Court to thirteen justices. See  Democracy Docket, ‘We Must Expand the Court:’ Sen. Markey, Advocates Call for Adding 4 SCOTUS Seats.

Oddly, in an interview with Laura Ingraham on Monday, Trump criticized President Biden’s proposal, claiming that Biden “wants to pack the Court.” Laura Ingraham responded, “That’s not in Biden’s proposal.”

Regardless of the way forward, reforming the Supreme Court is now on the table with the support of President Biden, Vice President Harris, and leading Democrats in Congress. It will happen—if only because the current reactionary majority will continue to curtail the rights and liberties of all Americans. It is only a matter of time—and it is up to us. We must all vote as if Supreme Court reform is on the ballot in 2024—because it is!

Kamala Harris continues to challenge Trump / Vance directly and vigorously

On Monday, an Iowa six-week abortion ban went into effect. At a campaign rally, V.P. Kamala Harris repeatedly referred to legislation restricting reproductive liberty in the states as “Trump abortion bans.” See WSJ, Harris Puts Abortion, a Weakness for Trump, at Center of Campaign. As noted in the WSJ article, President Biden was reluctant to say the word “abortion,” while Kamala Harris is a “fighter” on the issue who is willing to urge voters to “stop Donald Trump’s extreme abortion bans.”

V.P. Harris also posted a video on YouTube condemning the Iowa abortion ban and promising to sign legislation to protect the right to abortion nationally. See YouTube, Vice President Harris on Trump's Abortion Ban in Iowa | Harris 2024.

Some (most?) women sensed President Biden’s discomfort on the issue and are responding positively to Kamala Harris’s strong support for access to abortions and reproductive healthcare for all women in the US. Harris’s approach resonates with many women in America who felt that President Biden was a reluctant advocate for abortion rights, even though President Biden and Kamala Harris support the same policies.

The Harris Campaign continues to go after Trump and Vance with lightning speed and full force. Within hours of JD Vance removing his absolutist abortion stance from his website, the Harris HQ Twitter feed posted Vance’s now-deleted position with the comment, “Weird that Vance just deleted this from his website.”

The Harris campaign also posted a quick reply to Trump's claim on Monday that the Biden-Harris record on crime was “terrible.” The Harris campaign posted the following:

Our opponent Donald Trump is a criminal.

• Migrants were more likely to be released after a border arrest under President Trump than under the Biden-Harris administration. • As president, Donald Trump oversaw the largest single-year spike in the murder rate in more than a century. • As president, Trump proposed a $400 million cut to local law enforcement funding. • Trump has demanded the defunding of federal law enforcement, while proposing using the FBI and Justice Department to go after his political enemies. • JD Vance said, "I hate the police."

The Harris Campaign is also amplifying a clip from Trump's interview with Laura Ingraham that included this exchange:

Ingraham: Why not debate Kamala Harris? Trump: Because everyone already knows everything Ingraham: They’re saying you’re afraid of debating her Trump: I’m leading in the polls

Can you smell the fear? It is not true that Trump is leading in the polls. The race has tightened considerably, with Kamala Harris making up persistent deficits posted by President Biden. The race remains close, within the margin of error in many polls, but the trends all favor Kamala Harris. She has the momentum, and Trump and Vance are on the defensive.

So, if you are feeling good about Kamala Harris’s candidacy, you should be. After a whole week as the presumptive nominee, she continues to have the Trump campaign on its back foot. And the first three days of this week will feature massive online fundraisers and strategy meetings with hundreds of thousands of volunteers!

I invite readers who attend(ed) any of the online meetings to post your observations in the Comment section.

While we have reason to be hopeful, we have no reason to be complacent. We must beat Trump by a wide margin to remove all doubt and opportunity for election interference by Trump or the Supreme Court. (See Concluding Thoughts.)

Robert B. Hubbell Newsletter

[jodielandons]

2016: I was 17 and when I woke up and saw the results I couldn’t even talk I was just crying.

2024: This time will probably be much worse, but I can’t even cry I just feel numb and hopeless.

[13thpythagoras]

PROOF THAT ANARCHIST-STYLE RIOTING IS THE ONLY LANGUAGE OUR STATE UNDERSTANDS

[ivovynckier]

Now that we're done with Willis' fanny, can we turn our attention to corrupt Clarence?

[politijohn]

Source

Source

Source

Source

Impeachment looks better and better each day

[dr-archeville]

Trump is Immune [source] {25 min 27 sec}

Happy Independence Day!