Trump just filed his opening brief in the immunity appeal in DC circuit court of appeal.
It's late but I just had to start reading (morbid curiosity)
Paragraph #1: He tells the court that if he can be indicted there will be no end to it. Presidents will be indicted for decades! It will be a parade of horribles!
(Assumption: This is a purely political.)
#2 is the doozy.
Basically, Dear Court: You have no power to sit in judgment of MEEEE.
It's laughably absurd.
1/
Can you imagine addressing a court of law with: "you have no power over me."
("Oh yeah?" the justices will think. "Watch.")
His idea of "separation of powers" is wacky.
The branches serve as checks against each other so no one branch becomes too powerful.
Aside: It's hard to imagine the Supreme Court bothering to take this at all. I don't know why so many people think it is a given that they will.
The Colorado case is different. There are good reasons for them to hear that one.
2/
At least the brief is clearly written. The two issues are (1) absolute criminal immunity for official acts (2) double jeopardy applies.
The problem are obvious.
Problem with #1:
Absolute criminal immunity isn't a thing. It doesn't exist. Moreover, what he did was no way part of his "official" duties (among other things presidents have nothing to do with elections, particularly when they are a candidate.)
3/
Problem with #2:
Double jeopardy (from the 5th Amendment, I attached the text) says you cannot twice be put in jeopardy of criminal punishment.
The only jeopardy he faced in the Senate trial was whether he would be removed from office.
Moreover, the impeachment clause actually says that after being tried in the Senate you can be criminally charged. (I attached that as well.)
It's all right there in the Constitution.
4/
Perfect line, from @mmaniac90
What was going through my head was the line in Singing in the Rain when Lina Lamont says, "Do you think I'm dumb or something?" (and everyone is thinking, yeah, we do!)
Here you go: https://www.youtube.com/watch?v=gE3C8gGPMNI
Next, Trump spends a few pages mischarcterizing the evidence.
("Mischaracterizing the evidence" generally annoys justices. It's not a good idea to annoy the judge.)
5/
Apparently Trump found a quotation from Chief Marshall. He gives the quotation like this:
As Chief Justice Marshall wrote in Marbury v. Madison, the President’s official acts “can never be examinable by the courts.”
Me: "Really? Marshall said that?"
So I pulled up a copy of Marbury v. Madison and started doing word searches.
Of course Marshall didn't say that.
Here's the case. You can see for yourself:
https://supreme.justia.com/cases/federal/us/5/137/
6/
I said this earlier: I don't really understand the assumption that people are making that the Supreme Court will hear this case.
Unless there is something I'm missing, here is how I understand the law: Until the appellate court decides, the trial is put on hold.
After the appellate court decides, SCOTUS can hear it, but doesn't have to, and if they do hear it. there is nothing that says the trial goes on hold while they decide. (It can but unlike the appellate rule, it isn't required.)
7/
Adding the obvious: I don't believe the lawyers who filed this think they will win on the merits.
They are hoping for a delay in the trial.
The thing is that everyone knows what they are doing.
That's what makes me think it won't work.
This Supreme Court has passed up opportunities to help him. They could have helped him with the election fraud stuff, or the executive privilege stuff, but they didn't.
I see no reason they will now. They'd have to go along with a gimmick.
8/
Also, if he actually thought he had absolute immunity from criminal liability, would't he want to know that now?
If he did have absolute immunity, all the criminal cases against him would evaporate.
To say, "I have absolute criminal liability but I want you to decide that next year while I have to keep defending myself in these other cases while I run for office" makes no sense.
9/
(Adding one more just to make clear the possibilities moving forward.)
We can assume that the DC Circuit Court of Appeal will make short work of these arguments by mid January (oral arguments are scheduled for January 9.)
Possibilities:
SCOTUS grants cert and the trial is again placed on hold.
SCOTUS grants cert and the trial is NOT placed on hold.
SCOTUS refuses to grant cert.
(In the DOJ motion for cert before judgment, the DOJ told SCOTUS why delays are problematic.)
10/
The shortest time frame is possibility #3, including SCOTUS's decision to refuse cert before judgment, because SCOTUS can't move faster than the Appeals Court, which has already scheduled oral arguments on the merits.
People told me about crazy headlines declaring that a unanimous SCOTUS gave Trump the delay he wants.
If they pick #1, those headlines can be reissued with accuracy.
Now they are inaccurate.
11/
For most of us, it all comes down to TWO outcomes. The court will hold an obviously-guilty man to account for his obvious guilt; or not. In which case, BOTH sides will actually regard the court as politically biased.
The Trumpists, because it's actually a better narrative for them if the Court is submissive to Trump; they WANT to believe that.
They would rather believe Trump is that powerful, than that he is right.
@Teri_Kanefield
Complex issues can be understood IF keeping ALL the facts straight.
Your analysis reminds me of mathematical proofs. Basic assumptions are agreed upon and logical equivalencies produce followable outcomes.
@Teri_Kanefield am I wrong to be skeptical of outcome #2 (SCOTUS grants cert and the trial is NOT placed on hold)? I feel like whether the president is immune from prosecution is something they'd want to resolve before trial, right?
It's hard to figure on what basis they might want to do so... perhaps because they might view his behaviors as somehow being within the outer perimeter of his duties and want to extend the civil immunity defined in Nixon v. Fitzgerald to criminal immunity. I feel like there's not enough lipstick in the world for that pig, but it's hard to say for certain.
The whole thing is unprecedented, in both the legal and colloquial sense. Interlocutory appeals seem not entirely uncommon in circumstances like qualified immunity for civil trials. However, Google is failing me for interlocutory appeals relating to immunity for criminal trials, and there's essentially no precedent for presidential criminal immunity because no one except Nixon tried anything remotely like this, and his pardon prevents us from knowing how it would've played out.
Ockham's razor still applies; the simplest explanation is likely the correct oneL
The appeal is a joke, DOA at the DC Circuit, and there's no reason in the world for SCOTUS to touch it with a 10 foot pole.
@joeinwynnewood @Teri_Kanefield I hope so. I think the cynical view is that SCOTUS denied cert now for partisan reasons so they can drag it out later. The idealist view is that SCOTUS denied cert because it's obviously garbage. Perhaps a realist view might be that some justices denied cert for the first reason, and other justices denied cert for the second reason, and we won't find out which justices are holding what cards until the initial appeal runs its course.
I'm not entirely convinced there isn't a plausible argument to be made here, or at least one barely strong enough to give permission to Thomas and Alito to be weird little guys. I know that the standard counterargument is that the president plays no role in presidential elections. However, the executive branch does have some authorities regarding federal elections (e.g., DHS for securing elections, DOJ for investigating and prosecuting election fraud). If you twist the facts and the law enough you could get to some strained argument involving unitary executive theory and an assertion that the president was simply inquiring as to the integrity of the elections within the scope of those authorities.
I'm not hopeless, I'm just saying the whole thing defies simple arguments, and I'm as impatient as everyone else.
As a committed Strict Scrutiny podcast listener & long time follower/reader of Teri, I've seen no indication that at least 7 SCOTUS judges would act completely outside the bounds of judicial practice.
The regressive-right six will certainly manipulate the various doctrines and methodologies cooked up in the bowels of the Federalist Society, but they have a compelling interest in preserving the substantial power they've accrued.
Helping Trump is contrary to that.
@DaveMWilburn @joeinwynnewood @Teri_Kanefield
This almost makes one pine for the days when citizens took the law in their hands and strung the scoundrel up on the highest tree.
There, problem solved.
Except we are more civilized than that.
@DaveMWilburn @Teri_Kanefield Disclaimer: IANAL
The appeal is quite far out from the scheduled trial date at this point. SCOTUS can rule that things like jury selection & discovery may continue but the trial may not start until an opinion is decided. Or, more likely, the DC Cir can rule that way & SCOTUS can respect local rules.
If that's the case, the impact to the case would be slight, & we would expect a rapid turn around from SCOTUS.
@Teri_Kanefield what you've stated is correct, but the SCOTUS has shown itself more than willing to election meddle.
We can't/shouldn't rely on a "well surely they can't be willing to go that far to diminish the rule of law" that's how we got here. I think that's what a lotta folks who don't know about law feel even if they can't say it that clearly, but as some who knows about the law (a bit) I also can't let myself fall for that mentality.
Worse arguments have been successful. :/
so sorry. I don't think I ever explained. "Cert" is short for "certiorari" which is the fancy word for "The Supreme Court will hear your case."
They pick which cases they want to hear and refuse to hear most of what is brought to them.
See:
Let's just say that it is a possibility that a lot of people are overlooking.
All we can really do is list possibilities:
SCOTUS takes the case on cert and places a hold on the trial.
SCOTUS takes the case on cert and there is no hold on the trial/
SCOTUS refuses to take the case on cert.
I do find it hard to believe that 4 justices will want to hear this case, but I suppose it could happen.
I rather doubt it as this Supreme Court is bought and paid for by corporate interests. Corporate interests who are well aware what a danger Trump represents to their bottom line and not only have no use for him, but see him as a massive detriment at this point.
I imagine possibly all these filings are solely there to influence right-leaning people.
Maybe his lawyers realize that he's toast, and his only hope is to win the election.
He's trying to keep people from jumping ship (or outrage more people into voting for him). That's the only sense I can make of this.
(Though maybe trump is so delusional he believes he owns 5 justices.)
@Artemis13Athena @Teri_Kanefield
Yes. What I worry about the religious zealots on SCOTUS, who might think they're doing god's work. I know Teri doesn't like us to say these things. But even if they're not true, it's not totally unreasonable to have these fears, given what we know about how they got where they are.
@Teri_Kanefield I believe that the strategy of Trump's lawyers is not entirely dumb. They search for language that creates plausibility for judges that are already politically inclined to rule for him. It's a ploy that works on the media.
Are there enough judges in circuit court or the Supremes who want to rule for Trump for political reasons? Possibly, if not for Trump then for the consolidation of political power he represents. The chance exists because of the political appointment of judges.
@Teri_Kanefield Do you think they will let the circuit rule on immunity and deny a review of it? They could have easily shut down this argument, but they didn't.
What do you think will happen to the Colorado ruling? That one has been a mixed ruling from the courts so far, with only the CO SC ruling against him.
I don't understand what you mean by "but they didn't."
They can't possibly go faster than the circuit court. If they want to shut it down, the easiest way is to let the circuit decide and then not take cert.
@Teri_Kanefield They denied Jack's request. I thought they could have taken up the request, but it'll have to go through the circuit now.
But, your answer makes sense. They can let the circuit rule and not take up review of it after.
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