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PaperclipPerfector  6mo ago (text post)   28099 thread views

Culture War Roundup for the week of May 27, 2024

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On the bright side, I believe this conviction will make it quite a bit more likely SCOTUS hands down a more expansive presidential immunity case which will bar this prosecution. Prior to this case, I was confident they would hand down narrow caselaw which would protect Trump. With this conviction, I believe they're more likely to adopt a more expansive view in order to make sure the holding squelches these sorts of state-law prosecutions. We may even get a case which requires impeachment and removal in order to open a former president to prosecution, especially for state crimes.

The case, Trump v United States, should be published next month.

What, you mean this case?

It doesn't appear to involve normal crimes so much as misuse of the office. Or perhaps I'm misreading. I don't see why eternal immunity from states would be on the table.

Also, wow, that sounds absolutely horrendous. Would a murder charge require Congress to convene and impeach?

It is Trump's position, as his lawyer argued both in the court of appeals and to SCOTUS, that if a President ordered SEAL Team Six to assassinate a political rival such President could not be charged with a crime unless impeached and removed.

I mean this non sarcastically— thank for adding in “unless impeached and removed.” Most all critics leave tgat bit out. But basically, it is an argument over forum.

I would also further limit the description to acts undertaken qua president and not all acts whilst president but in a personal capacity.

That seems plainly true, but I doubt his lawyer would have picked such an example.

His lawyer was presented with that hypothetical in oral argument, and responded by reiterating that prosecution would require impeachment and conviction in the Senate first.

It's kind of wild to be running on a platform of "my opponent can legally assassinate me", but here we are.

Of course he isn’t. The argument isn’t about legality but forum for hearing the claim.

The practical import of Trump's argument is that as long as Democrats refuse to convict Biden in the Senate, Biden can legally assassinate him.

You could of course argue that Democrats are too noble and high-minded to abuse the system in this way. But that seems like an odd argument to run alongside the claim that they have corrupted and perverted the justice system specifically to target him.

If a third of sitting senators are willing to openly endorse the assassination of domestic political rivals, we're long past the point of these sorts of debates mattering. And if the crime is either not substantial enough or not evidenced enough to convince two thirds of the Senate, maybe convicting the president wouldn't be such a good idea afterall. That seems like exactly the sort of decision we would want widespread, general consensus on, doesn't it?

I don't necessarily think such an expansive view of presidential immunity is allowed or required by the Constitution (I haven't researched the issue anywhere near thoroughly enough to have a strong opinion either way, but tend to be skeptical of governmental immunity arguments generally), but there's at least a reasonable argument that impeachment by the House and conviction by the Senate is the only mechanism for punishing the conduct of a sitting president.

You would think many thinks would so shock the conscience of even Dems that a literal assassination order would result in impeachment and removal. If not, then inter arma enim silent leges

a President ordered SEAL Team Six to assassinate a political rival

You know, we never did get case law as to whether or not Obama could lawfully order the assassination of Anwar al-Awlaki (or his underage son), both of whom were American citizens outside the US. I have long thought it would be an interesting legal case if some state tried to claim jurisdiction for a murder trial, although I concede that he wasn't exactly a good guy. Sure, the DOJ wrote a memo suggesting it was a lawful act, but I don't see a good clear line between drone striking a citizen advocating the violent overthrow of the US Government and "assassinating a political rival."

I've seen lots of domestic advocacy for violently overthrowing the US Government in the last few years: can the President unleash the Predator drones on the next CHAZ protest? Is it that he was outside the country? That's not hugely comforting to anyone who travels overseas. Given that he was over the age of 35 and born a citizen, if al-Awlaki had said the magic words "I intend to run for President of the United States," thus cementing his status as "a political rival," would that magically require calling off the drones?

On the gripping hand, war (although in this case not a war declared by Congress) is messy business, and ordering attacks to cause deaths is part of the name of the game. I don't really have a great answer there. But yes, there are probably some situations in which the letter of your claim might be arguably true and no criminal trial would occur, although domestic military actions would probably swiftly lose the court of public opinion, which sometimes seems like the only one that really matters at the end of the day.

Why would you need case law? He was a trator and an enemy combatant. Some americans joined nazi Germany's army and we didn't need trials to kill them in combat.

Sure, the DOJ wrote a memo suggesting it was a lawful act, but I don't see a good clear line between drone striking a citizen advocating the violent overthrow of the US Government and "assassinating a political rival."

In court the DOJ was arguing that presidential immunity applies whenever the DOJ says the action is legal. That seems a bit hard to square legally and constitutionally, but it does sound like exactly the standard the DOJ wants.

I don't see a good clear line between drone striking a citizen advocating the violent overthrow of the US Government and "assassinating a political rival.

The individual in question was unambiguously working for a terrorist organization.

Foreign vs. domestic soil and organizational affiliation matters quite a lot.

On the bright side, I believe this conviction will make it quite a bit more likely SCOTUS hands down a more expansive presidential immunity case which will bar this prosecution.

Can I ask your reasoning why?

With this conviction, I believe they're more likely to adopt a more expansive view in order to make sure the holding squelches these sorts of state-law prosecutions.

But why would SCOTUS want to "squelch" this?

But why would SCOTUS want to "squelch" this?

Because wide latitude for states to prosecute presidential candidates is going to be extremely chaotic and destabilizing. Ideally, yes, candidates who have committed crimes should be prosecuted without favor -- but you have to acknowlege that state party operatives are going to abuse this newly validated tool in cynical and destructive ways.

EDIT: One of my most important rules-of-thumb for politics is, "Do I want a candidate/party/official I don't like or trust to have this power?" If the answer is "No," then I don't want it for my team, either.

Because wide latitude for states to prosecute presidential candidates is going to be extremely chaotic and destabilizing.

Only if both sides are allowed to use it. If it's restricted solely to the Left prosecuting right-wing candidates, then it would be stabilizing, because we'd get nice, stable single-party rule.

to acknowlege that state party operatives are going to abuse this newly validated tool in cynical and destructive ways.

I acknowledge that one side's operatives are going to abuse this newly validated tool in cynical and destructive ways, even as they successfully shut down any attempt by the other side to do the same. When the refs are all siding with one team, the outcome of the game is a foregone conclusion. Bambi Meets Godzilla can only have one outcome.

"Do I want a candidate/party/official I don't like or trust to have this power?" If the answer is "No," then I don't want it for my team, either.

Whereas other people, when they answer the question "no," see the way to deal with that is to make sure only their own side's candidate/party/official can use that power, while forbidding it to those they "don't like or trust". "Rules for thee, not for me," quod licet Jovi non licet bovi, nobles can do what is forbidden to peasants — this has, historically, been a common system. Look up the origins of the term "privilege."

So as a bit of preamble, at the moment the left has partisan control of courts in NYC and DC at all levels until the SCOTUS. The appeals courts won't curb any abuses against Trump or Trump supporters. At the same time the left has been running campaigns to attack the SCOTUS as illegitimate and partisan to keep them in line and push for court stacking.

The theory behind broad presidential immunity is that without it any random prosecutor in the US could threaten the POTUS with prosecution after they leave office unless they do what the prosecutor wants. Official immunity isn't a new concept. Courts have given judges and prosecutors broad immunity already. Sr government employees generally only face internal disciplinary actions, and if they are charged they'll face a DC court with a jury made up of government employees.

Can prosecutors always find things to charge them with? Usually yes. There are a lot of broadly written laws that the government uses to go after people who are troublesome. They aren't applied broadly. You need to piss someone off and be enough of an outsider that they think it's safe to go after you.

The argument against broad immunity is usually that the appeals courts will quickly correct any misbehavior. Politically motivated charges are a civil rights act violation so surely the appeals courts will dismiss them quickly.

The appeals courts not doing anything neuters that argument.

So SCOTUS is upset. Correcting every error would get them salami sliced as Trump toadies. One broad ruling would prevent them from having to make dozens of smaller rulings.

The theory behind broad presidential immunity is that without it any random prosecutor in the US could threaten the POTUS with prosecution after they leave office unless they do what the prosecutor wants.

Yes, and…? What's wrong with that? Particularly if you make sure only prosecutors on one side of the political divide are actually able to follow up on those threats (while the other team's guys get squashed for trying), then the establishment's hold on power gets even stronger, which is of course something the establishment would want.

Courts have given judges and prosecutors broad immunity already.

Courts give court officers broad immunity, huh? That doesn't necessarily mean they'd extend it to the other branches, does it?

There are a lot of broadly written laws that the government uses to go after people who are troublesome. They aren't applied broadly. You need to piss someone off and be enough of an outsider that they think it's safe to go after you.

Exactly. Not a bug, but a useful feature, so why get rid of it?

Politically motivated charges are a civil rights act violation so surely the appeals courts will dismiss them quickly.

As we've seen in other contexts, the Civil Rights Act often means only what the left establishment wants it to mean, and punishing "violations" mostly goes in one direction.

Correcting every error would get them salami sliced as Trump toadies. One broad ruling would prevent them from having to make dozens of smaller rulings.

Or they can cave — to save their own necks/reputation — make no immunity ruling at all.

Edit: Do you still think the court would rule in favor of broad immunity after Alito and Thomas recuse themselves?

Democrats are desperate that Justices Alito and Clarence Thomas recuse themselves from any cases involving January 6, seeing as they're both insurrectionist sympathizers. Rep. Jamie Raskin, who you think would have embarrassed himself enough on the January 6 select committee, has an op-ed in the New York Times Wednesday explaining that recusal is not a "friendly suggestion." He argues that the Department of Justice can force Alito and Thomas to recuse themselves.

“This recusal statute, if triggered, is not a friendly suggestion. It is Congress’s command, binding on the justices, just as the due process clause is. The Supreme Court cannot disregard this law just because it directly affects one or two of its justices. Ignoring it would trespass on the constitutional separation of powers because the justices would essentially be saying that they have the power to override a congressional command.”

(More at link.)

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