The Shortcomings of the Work Done in the Trial Court -- and not Corrected In The Appellate Court --Were On Full Display In The Frustrations Expressed by the Justices.
Another thing I haven’t seen anyone talk about is if the court accepts the reasoning of the DOJ then the DOJ will defacto have a veto on any presidential decision from this point on.
I'd like your thoughts on Justice Thomas question to Suter about weather he was challenging the legitimacy of the SCO appointment in this issue. Do you think he was suggesting that Smith was unlawfully appointed? What then?
I would love to hear your (SWC) thoughts on the Meese/Mukasey amicus brief. It seems to me that ruling on this point would be a way for CJ Roberts to make the right decision on the case without having to "taint" the Court's reputation.
If a president can be impeached and convicted for treason and bribery which are private acts, what is the rationale for the distinction between official and private acts for purposes of a criminal prosecution? Shouldn't the predicate be whether or not the president was impeached and convicted? If he has, then he is not immune to criminal prosecution after he leaves office. If he has not been impeached and convicted, then he is immune. Impeachment should be viewed as an extra grand jury-like procedure placed to safeguard presidents from spurious criminal prosecutions by revenge minded political opponents. I note that the votes needed for conviction and the votes needed for a grand jury indictment are similar percentages. And, now, since Congress has claimed the power to impeach a former president, there is no structural barrier for requiring impeachment and conviction of a former president by Congress before the executive branch can attempt to indict and the judicial branch have the power to convict and punish the former president. In other words, why does Fitzgerald apply to criminal cases?
"If a president can be impeached and convicted for treason and bribery which are private acts, what is the rationale for the distinction between official and private acts for purposes of a criminal prosecution? Shouldn't the predicate be whether or not the president was impeached and convicted?"
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You'd think the 'must be impeached AND convicted first' would make the distinction easier, wouldn't you?
There is no distinction between official and private acts in the impeachment clause. Also, the two enumerated crimes for impeachment are private acts. Accordingly, the distinction of official vs private acts should not apply to this appeal.
But CJ Roberts framed the issue on appeal as if that distinction in Nixon applies to this appeal. My contention is that CJ Roberts framed the issue inaccurately. The judicial branch should have no power to indict or punish a former president's acts while in office unless he is impeached and convicted. It does not matter if those acts were official or private.
In my humble opinion, there is nobody like ShipWreckedCrew when it comes to clear-headed legal analyses. I've followed him since his days at that 'other' site while I kept reading other lawyers' pieces on different sites about various issues but I haven't found anyone else quite like him and his writing.
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One question though, SWC said "The Supreme Court held 40 years ago in Fitzgerald v. Nixon, that the scope of “official conduct” for a civil case was extremely broad — a ruling meant to insulate former Presidents from being sued for anything remotely connected to their conduct in office."
Other than here, why has there been so little about the Fitzgerald v. Nixon case mentioned elsewhere when that finding seems so relevant to Trump's cases?
Trump's opponents all avoid the implications of the reasoning in Nixon on the basis that it is a civil case, and there is a civil discovery process that sorts thru the "Official" v. "Private" distinction whereas in the criminal context there is not similar process so the progress of a criminal case has to be halted to do the same thing.
I'm assuming that they ignore that distinction in criminal cases in the hope that the issue isn't raised with sufficient vigor to force it to the fore.
Why isn't an individual or a class action lawsuit file for election interference with intention of going to SCOTUS. Seems to me, this is election interference that affects every single US voter, although only about 1/2 care. The point is this doesn't affect DJT, it affects a large portion of the U.S. population???
As always, more brilliant analysis. Ship, a question: If the Special Counsel's concessions about state prosecutions, coupled with Justice Barrett's reasoning, form any part of a majority opinion don't you think the ongoing Manhattan prosecution may be implicated? Trump's team filed a Motion to Dismiss on Presidential Immunity in the Manhattan case. Of course, it was denied. Reimbursing an attorney during a Presidential term for work done and payments made before the term started looks like "private" conduct to me. But, the crimes charged pertain to the notations to business records, not the payments.
Nevertheless, I doubt SCOTUS renders its opinion before the Manhattan trial concludes, but perhaps a favorable SCOTUS opinion (particularly one predicated, in part at least, on the Supremacy Clause issue) might allow for some post-judgment (conviction) relief? I know nothing of NY criminal procedure, but surely there are some procedural mechanisms for post-conviction relief. Any thoughts?
Another thing I haven’t seen anyone talk about is if the court accepts the reasoning of the DOJ then the DOJ will defacto have a veto on any presidential decision from this point on.
I think you hit the nail on the head. How simple life would be for the Thugocracy if they just got to pick who they wanted as POTUS.
I'd like your thoughts on Justice Thomas question to Suter about weather he was challenging the legitimacy of the SCO appointment in this issue. Do you think he was suggesting that Smith was unlawfully appointed? What then?
I would love to hear your (SWC) thoughts on the Meese/Mukasey amicus brief. It seems to me that ruling on this point would be a way for CJ Roberts to make the right decision on the case without having to "taint" the Court's reputation.
I have been wondering this myself. It seemed out of place, but I suspected a strategy.
If a president can be impeached and convicted for treason and bribery which are private acts, what is the rationale for the distinction between official and private acts for purposes of a criminal prosecution? Shouldn't the predicate be whether or not the president was impeached and convicted? If he has, then he is not immune to criminal prosecution after he leaves office. If he has not been impeached and convicted, then he is immune. Impeachment should be viewed as an extra grand jury-like procedure placed to safeguard presidents from spurious criminal prosecutions by revenge minded political opponents. I note that the votes needed for conviction and the votes needed for a grand jury indictment are similar percentages. And, now, since Congress has claimed the power to impeach a former president, there is no structural barrier for requiring impeachment and conviction of a former president by Congress before the executive branch can attempt to indict and the judicial branch have the power to convict and punish the former president. In other words, why does Fitzgerald apply to criminal cases?
"If a president can be impeached and convicted for treason and bribery which are private acts, what is the rationale for the distinction between official and private acts for purposes of a criminal prosecution? Shouldn't the predicate be whether or not the president was impeached and convicted?"
______
You'd think the 'must be impeached AND convicted first' would make the distinction easier, wouldn't you?
There is no distinction between official and private acts in the impeachment clause. Also, the two enumerated crimes for impeachment are private acts. Accordingly, the distinction of official vs private acts should not apply to this appeal.
But CJ Roberts framed the issue on appeal as if that distinction in Nixon applies to this appeal. My contention is that CJ Roberts framed the issue inaccurately. The judicial branch should have no power to indict or punish a former president's acts while in office unless he is impeached and convicted. It does not matter if those acts were official or private.
Great analysis and commentary, as always.
In my humble opinion, there is nobody like ShipWreckedCrew when it comes to clear-headed legal analyses. I've followed him since his days at that 'other' site while I kept reading other lawyers' pieces on different sites about various issues but I haven't found anyone else quite like him and his writing.
____
One question though, SWC said "The Supreme Court held 40 years ago in Fitzgerald v. Nixon, that the scope of “official conduct” for a civil case was extremely broad — a ruling meant to insulate former Presidents from being sued for anything remotely connected to their conduct in office."
Other than here, why has there been so little about the Fitzgerald v. Nixon case mentioned elsewhere when that finding seems so relevant to Trump's cases?
Trump's opponents all avoid the implications of the reasoning in Nixon on the basis that it is a civil case, and there is a civil discovery process that sorts thru the "Official" v. "Private" distinction whereas in the criminal context there is not similar process so the progress of a criminal case has to be halted to do the same thing.
I'm assuming that they ignore that distinction in criminal cases in the hope that the issue isn't raised with sufficient vigor to force it to the fore.
Why isn't an individual or a class action lawsuit file for election interference with intention of going to SCOTUS. Seems to me, this is election interference that affects every single US voter, although only about 1/2 care. The point is this doesn't affect DJT, it affects a large portion of the U.S. population???
As always, more brilliant analysis. Ship, a question: If the Special Counsel's concessions about state prosecutions, coupled with Justice Barrett's reasoning, form any part of a majority opinion don't you think the ongoing Manhattan prosecution may be implicated? Trump's team filed a Motion to Dismiss on Presidential Immunity in the Manhattan case. Of course, it was denied. Reimbursing an attorney during a Presidential term for work done and payments made before the term started looks like "private" conduct to me. But, the crimes charged pertain to the notations to business records, not the payments.
Nevertheless, I doubt SCOTUS renders its opinion before the Manhattan trial concludes, but perhaps a favorable SCOTUS opinion (particularly one predicated, in part at least, on the Supremacy Clause issue) might allow for some post-judgment (conviction) relief? I know nothing of NY criminal procedure, but surely there are some procedural mechanisms for post-conviction relief. Any thoughts?