While not obvious on the face of the SCOTUS opinion on Presidential Immunity, the clear answer to this question dooms the efforts of the Biden DOJ and Special Counsel Jack Smith.
The entire line of reasoning is absurd. One of the presidents primary constitutional responsibilities is to make sure that the law of the land is faithfully executed. The constitution's provision for the VP to count the votes clearly falls into that category. Trump giving pence his opinion as (as chief executive) of how that section of the Constitution should be interpreted is clearly an official act. Even if you assume that Trump was wrong in his interpretation (he wasn't) being wrong is not illegal. How many times has Biden, or any other president, taken action and then had that action declared unconstitutional (another way of saying "unlawful") by the supreme court? They are pretending that Trump wasn't the chief law enforcement officer of the United States at the time. He absolutely can state his opinions of how that constitutional function should be performed to the VP.
Re: DoJ personnel departures. Heard an allegation this morning that the administration is attempting to "Trump proof" the DoJ by hiring numbers of new people in some new section of the Department. I could not tell if these were, in fact, new hires or simply moving existing legal personnel from one place to another. If the former, they have a one year probationary period and can be dismissed for no reason, not exactly "Trump proof". If the latter, where are they finding some number of legal personnel with permanent status who are not already DoJ employees? I suppose they could reassign AUSAs from around the country, though many would not be happy about being moved to DC. Guess we'll eventually find out what Garland, et al, are up to.
Thanks for your clarifying notes in this vexing case. To me, as a layman, this case is entirely an attempt at criminalizing political speech, worse yet, by piercing attorney client privilege. Trump pressured, Trump ranted, Trump considered fanciful theories, Trump put on his scary face and made mean phone calls. Unless they have Trump offered a bribe or Trump blackmailed I don’t understand how an educated jury and learned judge allow the matter to proceed.
An interesting read Ship, but it's pretty redundant of your last article which pretty well concluded that this case is over (regardless of the Nov 5 outcome) but for the histrionics Smith & Chutkan will put on in her court prior to the election. There will be no trial, just pre-election performances. Smith & Chutkan both know the game is over, they just want their time in the Klieg lights.
Are Trump’s attorneys challenging the validity of SC Smith’s appointment based on Justice Thomas’ opinion, or would that have to have been addressed early on?
I’m no Julie Kelly [sarc], but it seems like that would be an easier route to having the remaining cases dismissed.
The DC Circuit has already address the issue of the validity of an SC when Robert Mueller was challenged a few years ago. Trump's defense has not filed a motion yet in DC, but they will shortly -- that was discussed at the hearing last week. The district judge will deny the motion because the Appeals Court has already said the appointment is valid. The Thomas concurring opinion came after that, but Thomas is only speaking for himself, not the court. The Florida judge's decision is now on appeal to the 11th Circuit -- a different appeals court than in the District of Columbia. If the uphold the dismissal, then the two appeals courts will have taken opposing positions on the same issue, and the Supreme Court MIGHT step in and resolve it. But if Trump wins and Smith is fired, then they will be unlikely to address the question -- they'll simply let it blow away in the wind.
As Calabresi and Lawson state in their Notre Dame Law Review article (95 Notre Dame L. Rev. 87 [2019]) the DC Circuit decision was a cursory, unreasoned opinion which the authors opine: "But the D.C. Circuit relied on a remarkably superficial skimming of the applicable precedents, which, as we later demonstrate in detail, do not in fact resolve that (sic) issues that we are raising here. It is almost as though the D.C. Circuit did not want to look behind the curtain."
Based on my own admittedly superficial skimming of the extensive article, pending further time to read it all and digest it, I think they make a decent argument that the DC Circuit "got it wrong". Admittedly the Court was ruling on a GJ Subpoena issue and may have decided the issue didn't deserve much greater consideration. In any event there could be no further stay of judge Beryl Howell's decision and thus no opportunity to further appeal to the SCOTUS. Perhaps this time... But, in the end, what do I know. I'm not a member of any bar, just an old fart retired many years (decades even).
The entire line of reasoning is absurd. One of the presidents primary constitutional responsibilities is to make sure that the law of the land is faithfully executed. The constitution's provision for the VP to count the votes clearly falls into that category. Trump giving pence his opinion as (as chief executive) of how that section of the Constitution should be interpreted is clearly an official act. Even if you assume that Trump was wrong in his interpretation (he wasn't) being wrong is not illegal. How many times has Biden, or any other president, taken action and then had that action declared unconstitutional (another way of saying "unlawful") by the supreme court? They are pretending that Trump wasn't the chief law enforcement officer of the United States at the time. He absolutely can state his opinions of how that constitutional function should be performed to the VP.
Re: DoJ personnel departures. Heard an allegation this morning that the administration is attempting to "Trump proof" the DoJ by hiring numbers of new people in some new section of the Department. I could not tell if these were, in fact, new hires or simply moving existing legal personnel from one place to another. If the former, they have a one year probationary period and can be dismissed for no reason, not exactly "Trump proof". If the latter, where are they finding some number of legal personnel with permanent status who are not already DoJ employees? I suppose they could reassign AUSAs from around the country, though many would not be happy about being moved to DC. Guess we'll eventually find out what Garland, et al, are up to.
Thanks for your clarifying notes in this vexing case. To me, as a layman, this case is entirely an attempt at criminalizing political speech, worse yet, by piercing attorney client privilege. Trump pressured, Trump ranted, Trump considered fanciful theories, Trump put on his scary face and made mean phone calls. Unless they have Trump offered a bribe or Trump blackmailed I don’t understand how an educated jury and learned judge allow the matter to proceed.
The flaw in your argument is assuming an educated jury or learned judge.
An interesting read Ship, but it's pretty redundant of your last article which pretty well concluded that this case is over (regardless of the Nov 5 outcome) but for the histrionics Smith & Chutkan will put on in her court prior to the election. There will be no trial, just pre-election performances. Smith & Chutkan both know the game is over, they just want their time in the Klieg lights.
Ship, thanks for this.
All I can say is, What. A. Mess!
Are Trump’s attorneys challenging the validity of SC Smith’s appointment based on Justice Thomas’ opinion, or would that have to have been addressed early on?
I’m no Julie Kelly [sarc], but it seems like that would be an easier route to having the remaining cases dismissed.
The DC Circuit has already address the issue of the validity of an SC when Robert Mueller was challenged a few years ago. Trump's defense has not filed a motion yet in DC, but they will shortly -- that was discussed at the hearing last week. The district judge will deny the motion because the Appeals Court has already said the appointment is valid. The Thomas concurring opinion came after that, but Thomas is only speaking for himself, not the court. The Florida judge's decision is now on appeal to the 11th Circuit -- a different appeals court than in the District of Columbia. If the uphold the dismissal, then the two appeals courts will have taken opposing positions on the same issue, and the Supreme Court MIGHT step in and resolve it. But if Trump wins and Smith is fired, then they will be unlikely to address the question -- they'll simply let it blow away in the wind.
I would like to see it resolved by the SCOTUS. More public evidence of the disregard for the law by the Uniparty hacks.
But I'm guessing there will be bigger issues to resolve after the coming election debacle.
If SCOTUS can sidestep that train wreck they will be more than happy to do it.
As Calabresi and Lawson state in their Notre Dame Law Review article (95 Notre Dame L. Rev. 87 [2019]) the DC Circuit decision was a cursory, unreasoned opinion which the authors opine: "But the D.C. Circuit relied on a remarkably superficial skimming of the applicable precedents, which, as we later demonstrate in detail, do not in fact resolve that (sic) issues that we are raising here. It is almost as though the D.C. Circuit did not want to look behind the curtain."
Based on my own admittedly superficial skimming of the extensive article, pending further time to read it all and digest it, I think they make a decent argument that the DC Circuit "got it wrong". Admittedly the Court was ruling on a GJ Subpoena issue and may have decided the issue didn't deserve much greater consideration. In any event there could be no further stay of judge Beryl Howell's decision and thus no opportunity to further appeal to the SCOTUS. Perhaps this time... But, in the end, what do I know. I'm not a member of any bar, just an old fart retired many years (decades even).