The Court will reject Trump’s absolute immunity argument, but Trump wins on everything else. Expect a long delay and no chance of a trial before the election. 
Immunity Question
CNN has a pretty good summation of the Supreme Court Arguments on Trump’s Absolute Immunity Claims.
Much of the hearing focused on whether there should be a distinction between official acts by Trump pursuant to his presidential duties and his private conduct.
Chief Justice John Roberts at one point criticized the unanimous and scathing ruling against Trump from the US Court of Appeals for the DC Circuit that would have allowed his case to quickly move to a trial. Roberts suggested the appeals court didn’t lay out an adequate reason for why virtually all of Trump’s actions were subject to prosecution.
“As I read it, it says simply a former president can be prosecuted because he’s being prosecuted,” Roberts said skeptically. “Why shouldn’t we either send it back to the court of appeals or issue an opinion making clear that that’s not the law?”
In a notable series of concessions, Trump’s attorney John Sauer acknowledged that some of the alleged conduct supporting the criminal charges against the former president were private.
Justice Amy Coney Barrett was the first to pin Sauer down on the distinction between official and personal acts alleged in the charges. He tentatively agreed with how, in court filings, the special counsel had labeled particular acts as private – acts that alleged that Trump plotted with his private attorneys and campaign advisers to spread bogus election fraud claims, to file false court filings and to put forward fraudulent sets of electors. As part of the exchange, he conceded those private acts would not be covered by presidential immunity.
In a later back and forth with Justice Elena Kagan, Sauer muddied the waters.
He said that Trump’s phone call with Georgia Secretary of State Brad Raffensperger , in which he requested Raffensperger “find” enough votes to flip the results, was not an official act. But Sauer claimed Trump was acting in an official capacity in his conversation with the Republican National Committee about assembling slates of so-called “fake electors” and his call for the Arizona lawmakers to hold a hearing on election fraud.
Sauer’s willingness to commit to the idea that some allegations in the indictment weren’t protected by immunity was an extraordinary walk back of what had been the former president’s position up to that point.
But the Trump lawyer may be hoping that the move will encourage the justices to order more proceedings on deciding what’s private and what’s public in the indictment, a move that could seriously delay the case’s march to trial.
Liberal justices weren’t impressed with Trump’s absolute immunity claims
It was pretty clear where the court’s three liberals will be when the opinion lands.
Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson spent much of the argument quizzing the attorneys on the potential implications of Trump’s absolute immunity position.
In one of the many hypotheticals the liberals tossed at Trump’s attorney, Kagan asked what would happen if a president ordered the military to stage a coup. Could that be prosecuted under Trump’s theory?
Sauer responded that a president would first have to be impeached and convicted before he could be charged criminally. Kagan fired back by asking what would happen if the order came on the final days of a presidency and there was not time to impeach or convict.
“You’re saying that’s an official act? That’s immune?” Kagan asked.
Sauer had to acknowledge that, under Trump’s theory, “it could well be.”
“If there’s no threat of criminal prosecution, what prevents the president from just doing whatever he wants?” Jackson said. “I’m trying to understand what the disincentive is from turning the Oval Office into the seat of criminal activity in this country.”
Conservatives worry about subjecting ex-presidents to illegitimate criminal proceedings
There was some handwringing by conservatives about the possibility that an ex-president would be subjected to criminal proceedings for conduct that might ultimately be covered by immunity or some form of presidential protection.
Alito went as far as to suggest that denying ex-presidents immunity would discourage peaceful transfers of power, because outgoing presidents who lost hotly contested elections would not want to depart peacefully if they were concerned they’d be prosecuted by their political rival.
Trump ‘absolutely’ had a right to put forward fake electors, his lawyer says
Underscoring the sweep of Trump’s claims, Sauer said that his client “absolutely” had a right to put forward Republican electors in states that he lost in 2020, commonly called “fake electors.”
He made these comments under questioning from liberal Justice Sonia Sotomayor, who asked if “it’s plausible” that a president might have the right to help create a “fraudulent slate” of electors, which would mean that it would be an official government act that might be covered by immunity.
Analysis of the Arguments
An attorney friend of mine who has argued cases before the Supreme Court, offers this assessment of the questioning.
I listened to the entire argument. The Court will reject Trump’s absolute immunity argument. Roberts, Kavanaugh, and Barrett crapped all over that idea.
But the Justices don’t like the DC Circuit approach. There is a principle of limited immunity for official acts — obviously, never applied in the Presidential context — but applied to protect officials from criminal suits involving allegations of violations of citizens’ constitutional rights. Kavanaugh and Roberts supporting him, seem inclined to apply that principle here. (Barrett seemed like she was torn as to whether to do that or join the liberals.). That will require a preliminary fact-based hearing to determine which acts were “official” and deserve limited immunity and which acts are private and get no immunity. I feel pretty confident that’s what will happen here. Barrett would be the sixth vote. Gorsuch, Alito, and Thomas might go for absolute immunity, but that doesn’t matter, as the deciding votes determine the remedy.
So, that’s what’s going to happen. This means no trial before the election. But Judge Tanya Churkin, who controls her own calendar, will follow the SC’s mandate and conduct a fact-based preliminary hearing to determine which acts were official and which were private. And at that hearing, there will be evidence that Trump ordered the military to stage a coup — otherwise, there is no explanation for Sauer’s (Trump’s lawyer) position, in response to Justice Kagan’s question, that an order to the military to stage a coup would be an immune “official act.” It was a very extreme position, which a skilled attorney would only take if he thought he might need that way out.
Fact Finding Mission
Tanya Chutkin is the judge overseeing Trump’s federal election interference case. She is about to go on a fact finding mission to separate what is an official act from a private act.
I caution against reading too much into my friends statement “And at that hearing, there will be evidence that Trump ordered the military to stage a coup — otherwise, there is no explanation for Sauer’s (Trump’s lawyer) position …”
He is not making a claim on how strong that evidence might be or that he would agree with it. Rather, it’s simply a statement that some evidence will be introduced. We cannot comment on the case or the evidence before we see what the case and evidence even is.
I found some of the statements by Sauer to be more than a bit extreme, if not bizarre. But the court appeared to strike down those extreme positions, so the point is moot.
Big Victory for Trump
Trump did not get everything he wanted, but he did get the most that could be realistically expected.
The fact finding mission and subsequent delays men there will be no more trials before the election.
Media Circus in New York
The current trial in New York is an ill-advised media circus that I expect to backfire on Biden.
For discussion, please see The Trump Trial Opening Statements Confirm a Zoo Spectacle
As the trial has progressed, the case is getting more bizarre and much weaker. I will do an update shortly.
Black Voters Abandoning Biden In Huge Numbers
Please note Swing State Poll Shows Black Voters Abandoning Biden In Huge Numbers
Immigration won’t decide the election. Polls have not yet captured what will. This may come as a surprise, but the top issue housing. More explicitly, it’s shelter costs.
Economically Speaking
On April 20, I commented People Who Rent Will Decide the 2024 Presidential Election
Turnout of young voters and blacks, very upset of escalating rents and being locked out of buying a house will decide the elections. See the above link for detailed analysis.
“there is no explanation for Sauer’s (Trump’s lawyer) position, in response to Justice Kagan’s question, that an order to the military to stage a coup would be an immune “official act.”
LOL. BS
“…but applied to protect officials from criminal suits involving allegations of violations of citizens’ constitutional rights.”
Thus, officials continue to violate our constitutional rights with impunity, when it suits their purpose.
Will wait for an actual ruling. I predict they will say he can be prosecuted for anything he did as a private citizen including events on January 6th.
I hardly think asking for a “Peaceful Protest” would qualify, and not to mention, it was already tosses out by the DOJ…
January 6, Trump was president. He requested 10,000 National Guard troops and was denied. Who denied the troops? They bear responsibility for the rioting.
Who exactly do you think was President on Jan 6th?
Are you really that clueless?
You continuously get a huge number of down votes. A normal person would have been embarassed and stopped making dumb comments.
Have to assume you are another unemployable marxist “working” as a paid agitator for George Soros.
Turns out that almost all the palestinian “protestors” are illegal immigrants, palestinians in the US on education visas, or paid marxist agitators like the BLM crowd (which consisted of very few black people, lots of white political agitators).
I assume Casual Observer gets his monthly welfare check from one of Soros’ paid agitator non-profits, because the people who were historically democrat are much smarter than those who control the dem party right now.
We already know that several individual justices are corrupted. But this would prove the SC is corrupted as a whole.
“It’s the economy, stupid”, is certainly very compelling in the current circumstances.
The sense of urgency and panic over not having a decent place to sleep, and not being able to afford basic living costs, never mind have hope for the future through savings and loans, is pretty powerful stuff, and seeing foreigners get free stuff, is an accelerant. In that context, it’s only those young people and poor people living off somebody else who have the time to indulge various other issues for steering their vote.
Maldistribution of income and wealth or lack of access to decent housing, food, etc didn’t start with Biden or Powell. This has been gradually happening since ‘73.
Has Biden and Powell made it worst? Yes. Both of them through inflationary policies have immiserated the poor, working and middle classes while the top decile got richer.
SC is not going to throw away separation of powers just to please Jack Smith or whomever is running the shit show currently,
Future Presidents are not going to get hobbled because someone decides they should not act in a certain way.
Outside of that Trump has not been convicted of any crime nor will he before election time. Many have been the accusations but where is the evidence that crimes have been committed?
Expecting SC to go down the Rabbit hole to produce some landmark decision on this one is delusional at best. It will be a Can kick unless Jack smith has something he can certify actually happened. That they can not even get out some leak of potential witnesses to a crime demonstrates just how contrived the whole case is.
If anything SC is setting up for the real decision which is Chevron getting overturned.
That Government Bureaucrats think they are so high and mighty that cases can be brought just because they say so and that their judgement gets differed to because of Chevron is coming out loud and clear during questioning by the Justices.
Justice Thomas point blank asked if prior Presidents had not gotten charged for things that would normally be criminal as by not bringing charges implied Presidential Immunity was assumed to be in action as part of the Office.
I suspect US the public are not so much pissed off about how Trump is being treated, but more pissed off at how they are being treated, as if they are stupid enough to be distracted from a terrible economy and other bad policies by this sideshow – it’s contemptuous of the public by the regime & their MSM.
There are times that this whole never ending court sagas comes off as an intelligence operation being run by Patriots within the Federal system.
That all the prosecutions are being done by such low IQ flunkies as these chosen prosecutors suggests that the end desired result was to expose to general public just how screwed up Washington has become.
I for one am astounded as to how bad things actually are in DC. I doubt I am alone. Who could ever believe this was the case without being witness to it for past several years.
Both T-Rump and Biden are 80 – neither one will be around in 10 years. But Republicans and right wingers are tying themselves even more closely to career criminal T-rump. Not a great long term plan.
You may be thinking that you are sounding neutral with your comments but every single time you comment it is obvious to everyone except to you that you are more inline with the Dem cabal carrying the water for them.
Mick Jagger said don’t trust anyone over 30, and look at him now.
Are you serious? A “Career Criminal” do you even know what that is?
A career criminal is someone that “Makes a living illegally, by committing crimes”
I hardly think a U.S. President could/would be allowed to hold office under such a scenario. You’re saying they can, so you must think every “Drug Cartel” Leader in the Country that’s a U.S. Citizen, can and rightfully should, run for President…
Sorry Mish, looks like I sent a duplicate?’
Please approve whichever one and delete the other
The court obviously doesn’t want to open this can of worms.
Obama approved the FBI and CIA spying on Trump the candidate – and political opposition party. It stunk of Watergate, and in Obama’s case it was on record that Obama DID know about it – even if it was Biden / Comey / Brennan’s idea.
Obama would go to jail for the rather extensive fraud committed by a trove of FBI agents, with Obama’s knowledge and consent, even if Obama didn’t know how much was fabricated by his own direct reports. Comey and Brennan clearly fabricated evidence, withheld evidence, tampered with evidence … so how much of that was them, and how much did Obama know and when did he know it? Obama may not be “tricky Dick”, but what Obama’s administration did was straight out of Watergate.
Biden is clearly a crook, known as the Senator from MBNA long before Obama picked him for VP. In a city full of shady politicians, Biden stood out for taking bribes and not really trying to hide it. He and Hunter solicited bribes when he was VP. But as President, Biden is more than a bit senile. Is he still a crook? should he be charged for his treason that was committed when he was VP?
Biden took classified material, as a Senator, and stored it in his garage. Clearly this was not Presidential business, as he was a Senator at the time of the felony.
The Bill Clinton stuff would get reopened. Not to mention the rather fraudulent pay to play / Clinton foundation / buy yourself a secretary of state scam. Hilary’s email breach is an act of treason (there is no time limit on her being charged).
Did Doubya Bush know the intel on WMD in Iraq was “wrong”, and what does “wrong” mean?
Questioning the outcome of an election isn’t a new thing, and outside of a very biased court locale, the case against Trump looks really weak. Are we going to send Al Gore to jail?
The list goes on and on. Using the legal system against political opponents is some really third world bullsh!t. Using the espionage services (FBI, CIA, NSA, etc) against political opponents, as “Obama” did (technically it was his staffers and VP, but officially it was Obama himself) is straight out of Watergate.
I think many of the prosecutors and perhaps some of the judges will get disbarred and potentially charged with election interference.
“The court obviously doesn’t want to open this can of worms.”
Correct
I’m not sure who I’ll vote for. I might write Jefferson Davis in again. Had Trump gone to prison, I definitely would’ve voted for him. It would’ve been hilarious having a president running things from the can like Rusty Rastelli.
Another severe case of TDS.. Your fauci may have a vaccine for that…lol
The Secret Service must protect the President. They have the Power to decide who is and isn’t allowed to be near the President, including emptying the ENTIRE prison. Also, Trump could commute his sentence.
Unless there is much more to the NYC sham than I expect, the winner in November will almost certainly be forecast by the direction of the headlibe (U3) unemployment rate between March and June.
I explained it in detail when the February UE data were released in early March, and I will repeat the full explanation after every .monthly UE release through early July.
Every grain of truth regarding illicit Trump activity leaks to the public from secure and confidential sources, whether his taxes or his sex life or whatever. And it remains in the news cycle for extended durations.
If Trump ordered a military coup (something that would make even me feel compelled to vote for that POS Biden), not a day in the last 3 1/2 years would have passed without MSM leading with all known evidence, much of it leaked from govt prosecutors.
It’s a simple exercise to reverse deduce that such evidence doesn’t exist. This isn’t black swan material here, where it may exist and we just haven’t yet seen it.
I believe Trump requested National Guard protection for the Capitol building which Pelosi thwarted. The “coup” was the J6 narrative.
Demonstrably false and never happen. Stop believing social media.
Who denied Trump the troops?
May be you should stop believing the MSM lies, you have been brainwashed to think it is a coup. We all know it is not a coup, it is just a protest that went out of control – which is of course bad. J6 is an internal job orchestrated by FBI, CIA and other deep state orgs. to turn a peaceful protest into violent one, that is why FBI is not forthcoming about the number of undercover agents in J6 crowd and their role, they suppressed pipe bmb plan-b hoax.
The US had a revolution to separate the colonies from the English system of monarchy and aristocracy. If Mish’s lawyer friend is correct that this High Court restores a quasi divine right of kings then the rai·son d’ê·tre of changing government as laid out in The Declaration of Independence has been nullified by five or six high priests of judicial philosophy reminiscent of the Medieval age jurisprudence.
Nixon argued if the president does it, then it is legal. His Justice Department through the Office of Legal Council (OLC),backed up their boss or face termination as Nixon had earlier executed in the Midnight Massacre by the firing Archibald Cox.
Presidential immunity was resolved in US v Nixon when the Burger Court unanimously ruled that Nixon had to turn over the presidential tapes so Independent Prosecutor Jaworski could subpoena said tapes thus hamstringing the OLC interpretation and paving the way to bringcharges against a sitting president.
The Congress must restore the Independent Prosecutor Office and the president sign the bill thus end this counter-revolutionary Supreme Court should they rule that the president cannot be prosecuted for criminal acts while in office.
No person is above the law in a republic.
But then again the US is not a republic unless one inserts banana first.
The Supreme Court is not restoring any divine rights. what they are going to do is clarify what’s a state action vs a private action by a president.
State actions will confer immunity. Private ones will not.
In other words if Biden orders a military strike on Iranian military targets on behalf of the United States and it accidentally kills civilians (collateral damage) then he is immune from murder charges. But if Biden ordered a ‘hit’ on someone who was going to bring out damaging evidence against say his family or the Democratic party then he would be able to be charged for murder.
What about a political hit job via weaponization of the legal system against a political adversary.?
When the US is at war NO court has reviewed presidential actions engaged in theater. Therefore your military strike argument is moot.
If the president breaks the law when in office whether it is personal or public, they are not above the law, otherwise the US has turned into a state that is authoritarian, monarchical, or totalitarian. The US may’ve entered authoritarian territory already but if the SC opines that a president is immune from prosecution while in or out of office, the verdict is in that the US is authoritarian at the executive level.
The people’s liberties will be further jeopardized from the executive branch thanks to the SC that has already approved de facto spying on US citizens without warrants.
No war was ever officially declared (only congress that do that) before we invaded Iraq, Libya, Afghanistan etc. Nor were we at war in the late 90s when Clinton was firing cruise missiles etc. Remember, the war on terror is just words, it’s not actual war such as was declared on Japan or when Germany declared on the US.
So should those presidents should be charged then since they killed people without being at war? That’s the military action I am talking about.
You seem to be equating the office of the president with the person occupying that office. The office of the president (official acts) is immune. The person occupying it is not. If this isn’t true then virtually every president has committed a crime of some sorts since the office is the ultimate backstop of every lower office of government (for example Biden committed crimes by ordered mandatory vax for Covid since it was by any legal definition coercion as in get vax or lose job).
First, presidents can make war. The SC has upheld that prerogative and authority of the executive. Congress has also provided cover by authorizing the president to act without Congress’ approval for an allotted period of time to make war. When US armed forces are in harms way, NO court has intervened when they are in that combat killing theater.
Since the SC has opined that presidents can make war and Congress has approved presidential war making powers it is ok to kill people when the nation is at war. Obama killed an American Muslim in a foreign country without seeking an arrest warrant and was never prosecuted or impeached in the guise of thwarting terrorism.
As for presidential immunity, the executive has a wider field to play in when discussing insurrections, (e.g., suspension of habeas corpus) and foreign vis-a-vis domestic affairs. No president in or out-of-office acting privately or publicly when they were or are in office is above the law otherwise the US is not a nation that practices the rule of law. It has become instead a nation of rule by man as authoritarian, monarchies and totalitarian governments practice.
Under these circumstances if the SC decides that Trump can’t be prosecuted, they are moving the bar closer towards the rule of man and that is a basic tenet of authoritarianism and dictatorships.
The US has already moved from a republic to an empire. It has moved from a government with a separation of powers with checks and balances to an imperial presidency. The next devolutionary step will be a slippery sloop towards fascism. The US already practices militarization, oligarchy, corporatocracy, plutocracy and kleptocracy. When it permits rule of one man in contradistinction to the Constitution, then US is well on its way towards fascism.
But no “Independent Prosecutor Office” would be independent now, because almost every arm of the state has been infested by politicos from the extreme radical left and the chronic public sector (the “deep state”), just like how the German Democratic Republic wasn’t remotely democratic. This “officialising” of politicisation is the game the left have been playing to subvert democracy and get their policies enacted illegally.
Every living president should be prosecuted under a precedent that let’s Trump be prosecuted, otherwise there is no liberal democracy left.
Sadly, you might be correct.
Jimmy Carter signed a reform bill that has now expired that compelled the AG to appoint a three judge appellate panel selected by the Chief Justice to appoint the Independent Prosecutor should the charges be substantiated.
In today’s political DC would the AG discover wiggle room to unsubstantiate the charges though the bar to substantiate is low? It all depends on the AG. I think Garland would substitute credible charges against his DOJ or the Biden Admin.If Ed Meese from Reagan’s admin appointed Lawrence Walsh for Iran-Contra, hope springs eternal.
I think that Chief Justice Robert’s would follow the letter and spirit of the Carter Ethics Law. I also think that in the main that three appellate judges would select an independent prosecutor that meets the standards, criteria as laid out in the Ethics Law.
It could work if partisanship is removed.
I think Biden should test the immunity that is now being tossed Trump’s way. Biden will get a free pass on rubbing out Trump, conservative judges, and R house and senate members. He is POTUS doing “official” acts…leave it to congress to convict him which will never happen.
ACB, the gift that keeps on giving, like a case of VD.
aye
What about the flip side? Joe Biden indicted for bribery or what not. If Trump gets the benefit of immunity for current prosecutorial re-imagineering of the law, so would Uncle Joe. Ok, its silly because he will never be indicted by the deep state complex. But hypothetically.
They tried that… couldn’t come up with any evidence, and you still need that to get anywhere in our legal system.
Tall tales only work on the feebs.
If there was direct evidence linked to Biden it would have already been presented. But lets say they wait till he leaves office and that happens this fall before they go really digging. It might take a year or more to gather enough to make charges.
Do you really think Biden would be found fit for trial in 2 more years (he could very well be dead by then)?
The only realistic person getting charged would be Hunter and that could happen once Biden is out of office since no one will protect him then.
Trump for the win 2024! ❤️
Ok congressional “republicans” time to rally around Trump and kick senile Joe out of the white house.