Come for the politics, stay for the snark.

… riddled with inexplicable and elementary errors of law and fact

This really is a full service blog.

This fight is for everything.

A thin legal pretext to veneer over their personal religious and political desires.

“I never thought they’d lock HIM up,” sobbed a distraught member of the Lock Her Up Party.

“That’s what the insurrection act is for!”

Historically it was a little unusual for the president to be an incoherent babbling moron.

“Can i answer the question? No you can not!”

I’m pretty sure there’s only one Jack Smith.

Someone should tell Republicans that violence is the last refuge of the incompetent, or possibly the first.

Pelosi: “He either is stupid, or he thinks the rest of us are.” Why not both?

The frogs are rarely mistaken.

I was confident that someone would point it out and thought why not me.

The gop couldn’t organize an orgy in a whorehouse with a fist full of 50s.

Democrats have delivered the Square Deal, the New Deal, the Fair Deal, and now… the Big Joe Biden Deal.

Never give a known liar the benefit of the doubt.

You cannot shame the shameless.

Never forget that he train is barreling down on Trump, even as he dances on the tracks.

GOP baffled that ‘we don’t care if you die’ is not a winning slogan.

Yeah, with this crowd one never knows.

Even though I know this is a bad idea, I’m off to do it anyway!

Stop using mental illness to avoid talking about armed white supremacy.

So it was an October Surprise A Day, like an Advent calendar but for crime.

In my day, never was longer.

You are here: Home / Politics / Trump Indictments / DC Appeals Court News (Open Thread)

DC Appeals Court News (Open Thread)

by | 166 Comments

This post is in: ,

Paging all BJ attorneys

PDF of the ruling

For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.

.

We note at the outset that our analysis is specific to the case before us, in which a former President has been indicted on federal criminal charges arising from his alleged conspiracy to overturn federal election results and unlawfully overstay his Presidential term.8 We consider the policy concerns at issue in this case in two respects.

First, we assess possible intrusions on the authority and functions of the Executive Branch and the countervailing interests to be served as those concerns apply to former President Trump’s claim that former Presidents are categorically immune from federal prosecution. We conclude that the interest in criminal accountability, held by both the public and the Executive Branch, outweighs the potential risks of chilling Presidential action and permitting vexatious litigation.

Second, we examine the additional interests raised by the nature of the charges in the Indictment: The Executive Branch’s interest in upholding Presidential elections and vesting power in a new President under the Constitution and the voters’ interest in democratically selecting their President. We find these interests compel the conclusion that former President Trump is not immune from prosecution under the Indictment.

.

Moreover, past Presidents have understood themselves to be subject to impeachment and criminal liability, at least under certain circumstances, so the possibility of chilling executive action is already in effect. Even former President Trump concedes that criminal prosecution of a former President is expressly authorized by the Impeachment Judgment Clause after impeachment and conviction. E.g., Oral Arg. Tr. 13:25– 14:9. We presume that every President is aware of the Impeachment Judgment Clause and knows that he is “liable and subject to Indictment, Trial, Judgment and Punishment, according to Law,” at least after impeachment and conviction. U.S. CONST. art. I, § 3, cl. 7.

Additionally, recent historical evidence suggests that former Presidents, including President Trump, have not believed themselves to be wholly immune from criminal liability for official acts during their Presidency. President Gerald Ford issued a full pardon to former President Richard Nixon, which both former Presidents evidently believed was necessary to avoid Nixon’s post-resignation indictment.

.

We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results. Nor can we sanction his apparent contention that the Executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count.

***

At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches. Presidential immunity against federal indictment would mean that, as to the President, the Congress could not legislate, the Executive could not prosecute and the Judiciary could not review. We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter. Careful evaluation of these concerns leads us to conclude that there is no functional justification for immunizing former Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment. In so holding, we act, “not in derogation of the separation of powers, but to maintain their proper balance.” See Fitzgerald, 457 U.S. at 754.

.

To begin, former President Trump’s reliance on a negative implication is an immediate red flag: The Framers knew how to explicitly grant criminal immunity in the Constitution, as they did to legislators in the Speech or Debate Clause. See U.S. CONST. art. I, § 6, cl. 1. Yet they chose not to include a similar   provision granting immunity to the President. See Vance, 140 S. Ct. at 2434 (Thomas, J., dissenting) (“The text of the Constitution explicitly addresses the privileges of some federal officials, but it does not afford the President absolute immunity.”).

The Impeachment Judgment Clause merely states that “the Party convicted” shall nevertheless be subject to criminal prosecution. The text says nothing about non- convicted officials. Former President Trump’s reading rests on a logical fallacy: Stating that “if the President is convicted, he can be prosecuted,” does not necessarily mean that “if the President is not convicted, he cannot be prosecuted.” See, e.g., N.L.R.B. v. Noel Canning, 573 U.S. 513, 589 (2014) (Scalia, J., concurring) (explaining “the fallacy of the inverse (otherwise known as denying the antecedent): the incorrect assumption that if P implies Q, then not-P implies not-Q”).
Another important clue is the Clause’s use of the word “nevertheless,” as in “the Party convicted shall nevertheless be liable.” U.S. CONST. art. I, § 3, cl. 7 (emphasis added). The meaning of “neverthele’ss,” according to a contemporaneous 18th century dictionary, is “[n]otwithsta’nding that,” which in turn means “[w]ithout hindrance or obstruction from.” 2 Samuel Johnson, A Dictionary of the English Language 200, 216 (1773). The Impeachment Judgment Clause contains no words that limit criminal liability — and, to the contrary, it uses “nevertheless” to ensure that liability will not be limited (i.e., “hindered or obstructed”), even after an official is impeached, convicted and removed from office.

Jurisdiction

The Supreme Court itself has hinted, although not squarely held, that Midland Asphalt’s language should not be read literally. In Digital Equipment, the Court quoted the relevant sentence from Midland Asphalt and characterized it as a “suggest[ion].” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 874 (1994) (“Only such an ‘explicit statutory or constitutional guarantee that trial will not occur,’ we suggested, could be grounds for an immediate appeal of right under § 1291.” (internal citation to Midland Asphalt, 489 U.S. at 801, omitted)).

The Court then weighed the argument that Midland Asphalt’s comment is dictum because the Court allows interlocutory review of other implied immunities, including qualified immunity. Id. at 875 (citing Mitchell v. Forsyth, 472 U.S. 511 (1985)).

The Court did not concede the point, however, as it pointed out that Midland Asphalt is a criminal case and Mitchell is a civil case, but it allowed that “even if Mitchell could not be squared fully with the literal words of the Midland Asphalt sentence . . . that would be only because the qualified immunity right is inexplicit, not because it lacks a good pedigree in public law.” Id. It then noted “the insight that explicitness may not be needed for jurisdiction consistent with § 1291.”4 Id. The Court ultimately chose to reject the petitioner’s argument on a different basis, see id. at 877, so it did not squarely resolve how to interpret Midland Asphalt.

But a fair reading contemplates that there are exceptions to Midland Asphalt’s broad statement.

Double Jeopardy

Under precedent interpreting the Double Jeopardy Clause, former President Trump’s impeachment acquittal does not bar his subsequent criminal prosecution for two reasons: (1) An impeachment does not result in criminal punishments; and (2) the Indictment does not charge the same offense as the single count in the Impeachment Resolution.

.

We have balanced former President Trump’s asserted interests in executive immunity against the vital public interests that favor allowing this prosecution to proceed. We conclude that “[c]oncerns of public policy, especially as illuminated by our history and the structure of our government” compel the rejection of his claim of immunity in this case. See Fitzgerald, 457 U.S. at 747–48.

We also have considered his contention that he is entitled to categorical immunity from criminal liability for any assertedly “official” action that he took as President — a contention that is unsupported by precedent, history or the text and structure of the Constitution. Finally, we are unpersuaded by his argument that this prosecution is barred by “double jeopardy principles.” Accordingly, the order of the district court is AFFIRMED.

I’ll add more as I find more information.

Reader Interactions

166Comments

  5. 5.

    Nelle

    Yay!  Except I had sort of hopped down the rabbit trail of fantasizing how Biden could solve the Trump/Boebert/Greene/Mike Johnson/ oh heck, the whole Maga issue if Biden had immunity.  Back to real world…

  7. 7.

    rikyrah

    Trump has no immunity from Jan. 6 prosecution, appeals court rules

    By Rachel Weiner

     

    A federal appeals court has unanimously ruled that Donald Trump can be put on trial for trying to stay in power after losing the 2020 election, rejecting Trump’s sweeping claim of presidential immunity and moving the case one step closer to a jury

     

    “For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution,” the panel of three judges wrote. “The interest in criminal accountability, held by both the public and the Executive Branch, outweighs the potential risks of chilling Presidential action and permitting vexatious litigation.”

     

     

    https://www.washingtonpost.com/dc-md-va/2024/02/06/trump-jan-6-immunity-appeal-denied/

  11. 11.

    eclare

    I’m glad it was unanimous.  Someone said that was probably why the decision took as long as it did, they wanted unanimous reasoning.

  20. 20.

    eclare

    @WaterGirl:

    Is this the trial that is supposed to start March 4th?  I think it is.

    I just googled, yes.  Maybe it won’t be delayed too long, fingers crossed.

  22. 22.

    dmsilev

    I found this part amusing:

    Former President Trump’s reading rests on a logical fallacy: Stating that “if the President is convicted, he can be prosecuted,” does not necessarily mean that “if the President is not convicted, he cannot be prosecuted.” See, e.g., N.L.R.B. v. Noel Canning, 573 U.S. 513, 589 (2014) (Scalia, J., concurring) (explaining “the fallacy of the inverse (otherwise known as denying the antecedent): the incorrect assumption that if P implies Q, then not-P implies not-Q”).

    You need a citation to precedent when quoting basic Boolean logic.

  23. 23.

    jonas

    @eclare: The judge cleared the docket in March already, I think under the assumption that this decision was going to take a while. I don’t know if she expected it to drop today, or if she can go back and reschedule at this point. We’ll see.

  24. 24.

    hells littlest angel

    TLDR: Trump is an average nobody… he gets to live the rest of his life like a schnook.

  25. 25.

    OzarkHillbilly

    @eclare: ​

    To repeat myself from the previous post: My take on why it took so long was that they wanted to be absolutely certain that they dealt with all the possible legitimate arguments that trump’s “team” might conceivably come up with, in hopes of convincing the SC that there was no reason for them to take it up.

  26. 26.

    WaterGirl

    @eclare: What the legal eagles have been saying is that the DC judge had stated that she would give Trump 7 months to prepare for trial, and while this case was pending, the clock stopped on his requirements to prepare.

    So legal eagles are suggesting that for every day the DC trial process was paused, that will delay the start date for the trial.

    That may just be opinion, but I’m sure Judge Chutkan will make her position known as soon as we know whether the SC is going to take up the case.

  30. 30.

    smith

    We have some fun times just ahead: Not only the SCOTUS hearing on the 14th amendment disqualification (which, even if SCOTUS finds a way to keep him on the ballot, as I suspect they will, will keep the idea of TFG-as-insurrectionist front and center for a while longer), but also Judge Engoron’s final decision which spells financial ruin for TFG. Then, just a few weeks later, the start of his first criminal trial, which he will be required to attend. He’s already deteriorated so far, I have a hard time imagining him surviving that kind of stress.

  32. 32.

    WaterGirl

    @OzarkHillbilly: That was my thought originally, too.  Dot every I and cross every T.  Make it airtight.

    But about a week ago my sense of certainty on that vanished and I was fearing delay tactics from Judge Henderson.

    To say I feel relieved to finally have this ruling – and to have it go the way we hoped for in every way – including and especially the “6 days to file an appeal AND have the SC agree to grant cert”.

    Without that, the DC trial could have been delayed beyond the election.

    So THAT 6-day response requirement is the WHOLE BALLGAME.

  33. 33.

    TeezySkeezy

    It’s funny a post about a judicial decision determining whether Trump is above the law bigfooted another post about a separate court filing about whether he is above the law. Yet here we are.

  38. 38.

    OzarkHillbilly

    @WaterGirl: Having spent way too much time in courts I have learned to just “take it as it comes”. The Courts have never moved fast enough to suit me. I don’t expect they ever will.​

  39. 39.

    Suzanne

    @dmsilev:

    And our condolences to the designated cleaner-of-ketchup-stains at Mar-a-Lago. 

    I would bet significant amounts that this person is undocumented.

  40. 40.

    Timill

    @Nelle: I think it goes like this:

    Texas is in a state of rebellion.

    The entire TX delegation in Congress should be locked up

    Motion to vacate.

    Jeffries is Speaker.

    Onwards!

  41. 41.

    smith

    @Timill: There’s a move afoot in PA to disqualify Scott Perry under the 14th Amendment insurrection clause. Maybe could happen depending on the SCOTUS decision.  Too bad most of the Congressional insurrectionists are in red states…

  42. 42.

    Omnes Omnibus

    @OzarkHillbilly: I think a lot of people have projected their wishes onto this court’s timing.  An expedited appeal can take weeks instead of months.  Expecting it to take days was a bit of a fantasy.

  43. 43.

    hells littlest angel

    @Ksmiami: He can’t even get decent food — he ordered noodles with ketchup and they gave him spaghetti with marinara sauce.

  44. 44.

    Jackie

    @WaterGirl: I read that Alina Habba is sending “You owe the ‘president’ for your position” messages to certain SCOTUS members.

    My hope is that the SCOTUS denies to take the case. 🤞🏻🤞🏻

    Defense lawyer Alina Habba has already begun sending public messages on conservative media to Supreme Court justices.

    “You know, people like Kavanaugh, who the president fought for, who the president went through hell to get into place,” Habba said.

  45. 45.

    UncleEbeneezer

    @WaterGirl: But Trump has already had five months of preparation so basically just add two months of delay to original trial date which puts the trial likely to happen in May-June.  Still early enough to happen before getting too close to the election.

  46. 46.

    jonas

    @WaterGirl: Didn’t Alina Habba boast at one point that the case was so open-and-shut (from the defense point of view) that Trump didn’t even need any time to prepare?

  48. 48.

    twbrandt

    I got a kick out of them referring to “former President Trump”, as opposed to his and his lawyers’ habit of referring to “President Trump” as though he were still the rightful president.

  49. 49.

    Jeffro

    @jonas:

    Didn’t Alina Habba boast at one point that the case was so open-and-shut (from the defense point of view) that Trump didn’t even need any time to prepare?

    something like that, plus “he’s innocent” also too(!)

    these people, I swear

  51. 51.

    Matt McIrvin

    @dmsilev: I remember wondering out loud if that idiocy really was the argument Trump’s lawyers were using (that when the Constitution says a President convicted in an impeachment trial can still be prosecuted for crimes, it means that’s the ONLY case where he can be prosecuted for crimes). I guess it was.

  52. 52.

    Almost Retired

    I’m cautiously optimistic that the Supremes won’t touch this.  Roberts, Barrett and Boof all seem to be a wee bit concerned with the court’s reputation (as they should be).  Taking this up is a no win reputation wise.  And the blowback from any decision would be worse than the fleeting paroxysms of rage from the usual suspects if they let the appellate decision stand.  They’ll quickly move on to the next caravan or trans High School volleyball player.

  53. 53.

    MomSense

    @Chief Oshkosh:

    I put ice in a tall glass, fill with soda, add 4 generous splashes of angostura bitters (3-7 dashes) squeeze a big slice of lime throwing it in the glass. If I don’t have lime I use lemon or orange.
    My DIL uses a hoppy soda and switches up the bitters depending.  She has lavender, angostura, grapefruit and a few others.  Sometimes she does lilac ice – she’s an alchemist!

  55. 55.

    Ken

    @Jackie: She should have thrown in “who bowed and scraped to President Trump, fawning all over him with thanks for getting him appointed to the Supreme Court.” You know, just to get on Kavanaugh’s good side.

  56. 56.

    smith

    @Jackie: SCOTUS has already signalled pretty clearly that they don’t think they owe him anything. They were completely unwilling to go along with any of the crackpot lawsuits after the 2020 election, and have been unsympathetic to most of his executive privilege claims. After all, with the Dobbs decision, the Dirty Six fulfilled the quid pro quo that got them appointed, and they owed that to the Federalist Society, not to TFG.

  58. 58.

    jonas

    @Jeffro: We’ll see how much longer Trump continues to avail himself of Ms. Habba’s legal services. In the meantime, I think some other, actually qualified trial lawyers are heading up his defense team in the 1/6 case. I don’t think they’ll be quite so glib about the need to prep for this one.

  60. 60.

    Jackie

    @smith: Relatedly, four convicted for breaching the Capitol on J6 are running for congress – including the infamous Shaman. Seems they’d be disqualified?

    “Nearly 900 people have been convicted of crimes related to breaching the Capitol during the Jan. 6 insurrection. Now, at least four of them are trying to make their way inside the building again, but this time as elected officials,” NOTUS reports.

    “House Republicans say they’re fine with it.”

  61. 61.

    smith

    @Almost Retired: I’m cautiously optimistic that the Supremes won’t touch this.

    I’d like to agree, but I don’t think their egos will let it go without putting their fingerprints all over it.

  62. 62.

    Dangerman

    Donald, Pro Tip.

    When you hop the plane for Mother Russia, stay away from open windows.

    With warmest* regards.

    * go to hell, you fucking prick

  63. 63.

    NotMax

    Really, was this finding ever in doubt?

    The whole megillah was/is a delaying tactic, not a legal tactic.

  64. 64.

    Bill Arnold

    See, e.g.,N.L.R.B. v. Noel Canning, 573 U.S. 513, 589 (2014) (Scalia, J., concurring) (explaining “the fallacy of the inverse (otherwise known as denying the antecedent): the incorrect assumption that if P implies Q, then not-P implies not-Q”).

    LOL, citing Scalia..

  66. 66.

    Elizabelle

    OT, but I wanted to be sure you guys saw this.  Top-rated reader comment on today’s Tom Friedman column, GIFT LINK

    headline:  The G.O.P. Bumper Sticker: Trump First. Putin Second. America Third.

    866 likes as of 11:25 am. Reader is “Jack Sonville, of Florida.”

    After reading a separate article about Tucker Carlson, the well-known Putin admirer, going to Moscow to “interview” him, I continue to wonder if there are carefully placed members of the Republican Party and our Congress who are actually Russian operatives. Either they have been recruited, trained and planted (Like “The Americans”), blackmailed, or bribed by Russia and put in place to destroy our democracy from within.

    Think about it: The Republican Party has essentially been acting like sand in the gears of virtually everything of importance to our country for at least the past eight years. If you really want to dig deep, it can be suggested that it started with Newt Gingrich and his “Contract with America” in 1994.

    Far fetched conspiracy theory? Any more so than the Republican talking point that the Super Bowl is being fixed for the Chiefs so Taylor Swift can announce her Joe Biden endorsement after the game?

    It is time to go there.  Find the receipts.

  68. 68.

    cmorenc

    @Almost Retired:

    I’m cautiously optimistic that the Supremes won’t touch this.  Roberts, Barrett and Boof all seem to be a wee bit concerned with the court’s reputation (as they should be).

    The smart play for them, the court, and the long-term best interests of the GOP as anything other than Trump’s political mafia organization, is to stand aside and allow criminal cases to proceed (esp the one in DC) against Trump, with theresult  of a re-elected Biden Presidency handicapped by divided control of Congsess – the House flips narrowly D, the Senate flips narrowly R.  And in 2028, a more “reasonable” RW GOP candidate (eg Nikki Haley) wins the Presidency, and with Trump a convicted felon, control of the GOP slips from MAGA toward more normal RW conservative, still very reactionary to progressive sensibilities.

  69. 69.

    Alison Rose

    Has Trump or anyone in his orbit ever explained if they think this “absolute immunity” would apply to all presidents, or just him? Because if it’s the former, well then, get on it, Obama, time to commit some Democracy-saving, immunity-protecting crimes.

  71. 71.

    Scout211

    CNN live updates

    The DC Circuit Court of Appeals has made a forceful finding in its opinion that it is the federal courts’ responsibility to handle the criminal prosecution of a former president.
    One question that has come up repeatedly in this case is if the court system has the ability to try a former president who faced an impeachment proceeding in Congress, and if they can look at the presidential immunity question before a trial.
    On both fronts, the appellate judges said they could.

    The judicial branch of the federal government is permitted “to oversee the federal criminal prosecution of a former President for his official acts because the fact of the prosecution means that the former President has allegedly acted in defiance of the Congress’s laws … Here former President Trump’s actions allegedly violated generally applicable criminal laws, meaning those acts were not properly within the scope of his lawful discretion,” they said.

    While a president and even others in the government, like legislators and judges, could be protected from lawsuits, they can be criminally prosecuted, the court said.

    This part (criminal vs impeachment vs lawsuits) shoots down Trump’s attorneys claims.

  74. 74.

    Betty

    @Elizabelle: Jack made one slight error about the Swift conspiracy. She endorses at halftime to make sure everyone is still watching. Otherwise, excellent comment.

  77. 77.

    Alison Rose

    @rikyrah: I hate that the dude is calling RFKJr “Bobby”. I mean, maybe his friends and family do call him that, I don’t know, but fuck off. In this case, the apple fell about as far from the tree as it could without rolling off the planet.

  79. 79.

    MomSense

    @Jeffro:

    It helps with digestion, too.  Depending on the bitters there is a tiny bit of alcohol.

    I don’t miss having wine or beer at all.  I did have a glass of wine with my son on Saturday but was sort of meh about it and didn’t have a second glass.

  80. 80.

    Dangerman

    @Elizabelle: Taylor Swift, Joe Biden endorsement? Too early.

    My prediction: Chiefs win. Kelce whips a key out from I don’t wanna know where. Proposes to Swift at the 50. MAGAs go into full meltdown.

  81. 81.

    kindness

    When this case gets to the Supreme Court, are we going to be looking at another 5-4 case?  I mean, those 4 are doing everything they can to bring back the Confederacy and gut the Union.  When Joe Biden wins in November, and the House goes back to Democratic control it’ll all be up to the Senate to do something about the Supreme Court.  I figure the Senate will stay in Democratic hands.  Roe v Wade is what will do that.  But it won’t be a supermajority.

  84. 84.

    Quadrillipede

    @smith: He’s already deteriorated so far, I have a hard time imagining him surviving that kind of stress.

    I have an easier time imagining him being crushed by the realization that accountability is incoming and he has no idea how to get out from under it…

  85. 85.

    Jeffro

    @Alison Rose: Has Trump or anyone in his orbit ever explained if they think this “absolute immunity” would apply to all presidents, or just him? Because if it’s the former, well then, get on it, Obama, time to commit some Democracy-saving, immunity-protecting crimes.

    Has any reporter ever asked trumpov or one of his spokepeople why none of the prior 44 presidents felt they needed “absolute immunity”?

  86. 86.

    smith

    @Alison Rose: A few days back I commented about a series of focus groups of independents in swing states, the participants of which were surprised and appalled to learn about TFG’s claims to absolute presidential immunity. They immediately and incredulously saw the “president orders Seal Team Six to assassinate his political opponent” scenario, and found it thoroughly outrageous.

    The corporate media predictibly have dropped the ball in not confronting Republicans about this, and forcing them to go on the record as to whether they agree with TFG. There is no reason the Dems can’t do this,though. At every opportunity, every GQP candidate for whatever should made to answer publicly as to their opinion on TFG’s claim to absolute immunity.

  88. 88.

    Jackie

    @smith: Of course the Supremes owe TIFG nothing! And they did a great job of telling him that after the 2020 election – several times actually! lol

    Hopefully Habba seals the deal by affronting them with her impunity!

  89. 89.

    PatrickG

    Someone probably already mentioned this get but lolololol at bringing the elementary logic here:

    the incorrect assumption that if P implies Q, then not-P implies not-Q

    Now to read the rest!

  92. 92.

    Another Scott

    Good, good.

    In other good news, I see that Balloon-Juice for Ukraine on the sidebar has hit 6-figures. Well done, everyone.

    A good day all around.

    Cheers,
    Scott.

  94. 94.

    Matt McIrvin

    @Alison Rose:

    Has Trump or anyone in his orbit ever explained if they think this “absolute immunity” would apply to all presidents, or just him? Because if it’s the former, well then, get on it, Obama, time to commit some Democracy-saving, immunity-protecting crimes.

    It’s like political violence and the “right to revolution”: I think their assumption has always been that liberals are big wimps who don’t have the balls to carry out egregious abuses, so the ability to go hog wild benefits them.

  100. 100.

    smith

    @kindness: When this case gets to the Supreme Court, are we going to be looking at another 5-4 case?

    Even the Dirty Six can clearly see that absolute presidential immunity means the judiciary, including most particularly the Supremes, loses ALL its power. I can’t see them voting for that.

  101. 101.

    mrmoshpotato

    @hells littlest angel:

    TLDR: Trump is an average nobody… he gets to live the rest of his life like a schnook. 

    And once he’s dead, the worldwide celebration of his death brings.  Let’s rival the HITLER DEAD headline.

  102. 102.

    Matt McIrvin

    @rikyrah: They always say that. They never say what they’ll prosecute them for, unless it’s some nebulous shit that falls apart at first glance.

  104. 104.

    Alison Rose

    @kindness: Alito and Thomas are lost causes. Of the other conservatives…I feel like it’s a good chance Roberts would be with the liberals, possibly Barrett, maybe maybe Gorsuch? Not sure on him or Kavanaugh.

  106. 106.

    Old School

    @Jeffro:

    Has any reporter ever asked trumpov or one of his spokepeople why none of the prior 44 presidents felt they needed “absolute immunity”?

    Well, 43 anyway.

    “If the president does it, it’s not illegal.”

  108. 108.

    Uncle Cosmo

    @MomSense: My liver needs to be in fighting form for campaign season!!

    If you’re using your liver to fight, you’re doing it wrong. If you must use an internal organ as a weapon, slap ’em upside da haid with your spleen – you can lose that without mortal consequences.**

    ** NB I once witnessed what looked to be a horrific accident when a bicyclist without a helmet slammed at full speed into the fender of a car that couldn’t see her flying down the street and had nosed out into traffic. She flipped over the hood and landed 10 yards down the road. I mention this only to say that luckily her most serious injury was a lacerated spine, probably from taking a handlebar to the lower abdomen. I ran into her a couple of years later at a dance and she seemed none the whirrs for where. ;^D)

  109. 109.

    Alison Rose

    Completely off-topic, but if any of you have kids or grandkids or other youngsters in your circles who might be into this: There’s an “International Space Art and Poetry Contest” from the Perseid Foundation where kids aged 5 to 18 can submit drawings, paintings, poetry, etc, about what it would be like to live in space. Sounds pretty fun if you know any young space nerds :)

  110. 110.

    Another Scott

    @Jeffro: Yeahbut, the problem with asking people who lie about everything a question is that their answer will be a lie.

    There’s no need to ask TIFG and his minions about their “reasoning”, because it isn’t reasoning.  It’s lies.

    The press should be pointing out the lies, and the dangers of the lies.  Not asking them to spread even more lies.

    This stuff isn’t hard.

    The press needs to do better.

    Grr…,
    Scott.

  113. 113.

    jonas

    @Jeffro:Has any reporter ever asked trumpov or one of his spokepeople why none of the prior 44 presidents felt they needed “absolute immunity”?

    If he even understood the question, he’d probably say that previous presidents had never been treated so unfairly by witchhunting communist Democrats.

  115. 115.

    Jackie

    Has anyone been brave enough to check Faux news or other RWNJ sites to see if they’re still broadcasting? 😁

  116. 116.

    Soprano2

    @Almost Retired: I agree, the only reason for them to take it is if they disagree with the lower court. It’s hard to imagine even them disagreeing, because they won’t be able to carve out a TFG only exception. Can you imagine them giving Democratic presidents a pass like that? I can’t.

  119. 119.

    Geminid

    @WaterGirl: It is surprising in that RFK Jr. and James Zogby have opposing views on the Israeli/Palestinian conflict. Zogby has long advocated policies more supportive of the Palestinians, while RFK Jr. is a big Israel hawk. Ed. That seemed be a sticking point regarding Kennedy with some lefties even before this war broke out.

  120. 120.

    kindness

    As a NCal fan, I will suggest to all those promoting the Tay-tay will endorse Biden after a Chiefs win will be gobsmacked when the 49ers win the Superbowl.  Sure will be fun to watch (both the game and the exploding heads/conspiracy theories).

  122. 122.

    Captain C

    @WaterGirl: I could totally see a 7-2 ruling against TFG, with Thomas writting the dissent essentially saying “Dear Leader can do whatever he wants.” and Alito writing a concurrance that quotes, among other things, Soviet, Maoist, and 12th Century Papal State jurisprudence as justifications.

  123. 123.

    Eolirin

    @Soprano2: No, even if they ultimately end up saying literally the exact same thing as the lower court in the end, taking it simply so that the trial can’t finish until after the election would have a point to it.

    Which is not to say that I think they will take it up, they very well may not. But there’s a reason to, other than to change the outcome of the ruling.

  124. 124.

    Captain C

    @smith: If/when he loses the election in November, I wouldn’t be surprised if he croaks within a few months afterwards, especially as the convictions begin to rack up.  At which point every Republican, and also all of his kids, will be like “TFG who?  The guy occasionally went out for our coffee?”

  128. 128.

    jimmiraybob

    @kindness: ​
      “…gobsmacked when the 49ers win the Superbowl. Sure will be fun to watch (both the game and the exploding heads/conspiracy theories).”

    While I applaud your enthusiasm and optimism I look forward to the exploding heads when Travis & Taylor accept the coveted Lombardi trophy at midfield.

  129. 129.

    Alison Rose

    @Captain C: Yeah, once he loses (which I am forcing myself to believe will definitely happen), I wouldn’t be surprised if he’s persona non grata on Fox and elsewhere within weeks. I mean, sure, he could still try to make the GOP do what he wants, but if he has no chance of getting back into power, what would be the point? I suppose he could run again in 2028 if he’s still alive, but he’d be 82. I think even some of the “well I don’t like Trump but I can’t vote for a Dem” people would be done with him at that point.

  130. 130.

    PAM Dirac

    @Captain C:

    I could totally see a 7-2 ruling against TFG

    I’m no SC expert but wouldn’t a 7-2 decision mean that at least 2 voted for cert and then voted to uphold. Is there really any need for briefings or further exploration of the issues? If it is going to be 7-2 why wouldn’t the 7 just vote to deny cert?

  131. 131.

    Ken

    @Jackie: Has anyone been brave enough to check Faux news or other RWNJ sites to see if they’re still broadcasting?

    I assume it’s like in the old internet meme: their top story is “Refreshing Salad Recipes”.

    (Just kidding, I’m sure the top story is “Hunter Biden’s Laptop”, followed by “Border Crisis”, and then “Refreshing Salad Recipes.”)

  132. 132.

    Ruckus

    @dmsilev:

    Why?

    There have to be better jobs available – such as cleaning up parks after dogs, and a few ketchup stains aren’t going to make that a worse place to be.

  133. 133.

    Quadrillipede

    @Another Scott: There’s no need to ask TIFG and his minions about their “reasoning”, because it isn’t reasoning. It’s lies.

    I didn’t really understand why in 2015 there were headlines other than Trump flaps mouth, makes more lie noises come out. Why bother to uncritically repeat his manifestly transparent self-serving bullshit? It still makes no sense to me.

  136. 136.

    Elizabelle

    @MomSense:  Angostura.  Thank you.  I have their regular and orange bitters.  Sounds refreshing.

    Our ABC store sometimes sells a small 4-pack of assorted bitters flavors.  Might have to grab it next time it’s available.

    Not a fan of Peychaud’s, but might try it in this mocktail.  And an orange or grapefruit slice could be good.

  137. 137.

    jonas

    @rikyrah: I think they should touch it. And, make them go on the record with a decision.

    Letting it stand — i.e. not touching it — is a fairly major statement in and of itself. They would only agree to consider an appeal if a majority thought there was some issue the lower court got wrong. I’m not a legal scholar, but I have a hard time seeing where they might find some crack in the appeal court’s reasoning. Not that Alito and Thomas might not try, but I think they’ll be handily outvoted.

  140. 140.

    Geminid

    @Eolirin: Evidently, Zogby did not see a problem there either. And he may just want Biden to lose, and Kennedy’s position on Israel is beside the point.

  141. 141.

    Uncle Cosmo

    @twbrandt: ​I got a kick out of them referring to “former President Trump”, as opposed to his and his lawyers’ habit of referring to “President Trump” as though he were still the rightful president.

    IANAL but the judges might be drawing a distinction between a former POTUS, who has no immunity from indictment and conviction for crimes committed while in office, and a sitting POTUS. The ruling appears to apply only to the former. The sense of the court seems to be that the latter must first leave office (through term limit, election defeat, or impeachment and removal) – but in fact they have made no ruling on that, since it doesn’t apply in the current instance.

  142. 142.

    Jeffro

    @Jackie: Fox’s “reporting” right now (on the website) consists of a) a headline that trump does not have immunity and b) several paragraphs of trump quotes

  144. 144.

    Ruckus

    @Alison Rose:

    I think the apple ran rather than rolled but really the end result is the same – man with mush brain thinks that all of his personality is because of his name, but his name just gives him a public light, everything else is his mush brain. A name doesn’t protect one from being who they really are – and hasn’t in this case.

  146. 146.

    Captain C

    @PAM Dirac: Well, yes, but then I couldn’t get the jab in at Clarence “It’s totally okay to bribe me” Thomas and Sam “I wish I was a Spanish Inquisitor with my own torture room” Alito.

  147. 147.

    Ruckus

    @Jeffro:

    Has any reporter ever asked trumpov or one of his spokepeople why none of the prior 44 presidents felt they needed “absolute immunity”?

    As you state, none of them had any need whatsoever for absolute immunity. They were normal human beings, all within the range of normal human thought, expectations, greed and mental stability.

    This current example of anything but normalcy is not in so many ways and in every category above.

  149. 149.

    dirge

    @Alison Rose: Yeah, once he loses… I wouldn’t be surprised if he’s persona non grata on Fox and elsewhere within weeks. I mean, sure, he could still try to make the GOP do what he wants, but if he has no chance of getting back into power, what would be the point?

    We may underestimate the proportion of his coalition that’s kept in line by threats.  If he has no chance of getting back into power, the threats are empty, and he’ll be lucky to be considered persona non grata.  I think once someone, anyone, has drawn blood without effective retribution, many more will turn on him with feral rage.

  150. 150.

    Anonymous At Work

    @narya: Even better is that en banc appeal won’t stay proceedings unless the en banc DC Circuit overrules the 3 judges.  Indication that at least 3 of DC Circuit won’t grant en banc.

  152. 152.

    ...now I try to be amused

    @Almost Retired: @cmorenc: The institutional Republican Party wants Trump gone, but none of them want their fingerprints on the knife. The Federalist Society is part of the institutional GOP.

    SCOTUS declining to take the case is their best opportunity yet to drive a stake into Trump without individual responsibility.

  153. 153.

    jimmiraybob

    @Gary K: ​ Given his penchant for 16th-17th century judicial opinion I’m surprised that they don’t hand down SCOTUS’ rulings in stained glass panels.​

  156. 156.

    WaterGirl

    @rikyrah:

    I think they should touch it. And, make them go on the record with a decision.

    Unfortunately for the rest of the country, that would be a terrible thing because it could mean the the trial doesn’t happen before November.

    If the SC denies cert, then they are going on record as agreeing with today’s ruling.

  157. 157.

    Anonymous At Work

    @Gary K: They cited Scalia for the same reason as citing a 1773 dictionary: Persuading Justices on originalist terms, or at least forcing those Justices to deal with originalism in actual terms, not mis-quoting witch-burning tribunal leaders.

  160. 160.

    Brit in Chicago

    @rikyrah: It would be interesting to see what they say, but the need for speed outweighs that desideratum by a very wide margin.

  165. 165.

    Princess

    @rikyrah: dead thread but Zogby has been trying to dirty Biden re:Israel with really questionable claims based on poll numbers. Now I know why.

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