The "Get Trump" Circus should be shut down | Eastern North Carolina Now

Johnathan Turley, writing at the New York Post reviews the complexity of presidential immunity:

Writer Ray Bradbury once said, “Living at risk is jumping off the cliff and building your wings on the way down.”

In Thursday’s case before the Supreme Court on the immunity of former President Donald Trump, nine justices appear to be feverishly working with feathers and glue on a plunge into a constitutional abyss.

It has been almost 50 years since the high court ruled presidents have absolute immunity from civil lawsuits in Nixon v. Fitzgerald.

The court held ex-President Richard Nixon had such immunity for acts taken “within the ‘outer perimeter’ of his official responsibility.”

Yet in 1974’s United States v. Nixon, the court ruled a president is not immune from a criminal subpoena. Nixon was forced to comply with a subpoena from special counsel Leon Jaworski for his White House tapes in the Watergate scandal.

Since then, the court has avoided any significant ruling on the extension of immunity to a criminal case — until now. 

There are cliffs on both sides of this case. If the court were to embrace special counsel Jack Smith’s arguments, a president would have no immunity from criminal charges, even for official acts taken in his presidency.

It would leave a president without protection from endless charges from politically motivated prosecutors.

If the court were to embrace Trump counsel’s arguments, a president would have complete immunity. It would leave a president largely unaccountable under the criminal code for any criminal acts.

The first cliff is made obvious by the lower-court opinion. While the media have largely focused on extreme examples of president-ordered assassinations and coups, the justices are clearly as concerned with the sweeping implications of the DC Circuit opinion.

Chief Justice John Roberts noted the DC Circuit failed to make any “focused” analysis of the underlying acts, instead offering little more than a judicial shrug.

Roberts read its statement that “a former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has acted in defiance of the laws” and noted it sounds like “a former president can be prosecuted because he is being prosecuted.”

The other cliff is more than obvious from the other proceedings occurring as these arguments were made. Trump’s best attorney proved to be Manhattan District Attorney Alvin Bragg.

If the justices want insight into the implications of denying any immunity, they just need to look north to New York City.

The ongoing prosecution of Trump is legally absurd but has resulted in the leading presidential candidate not only being gagged but prevented from campaigning.

Alvin Bragg is the very personification of the danger immunity is meant to avoid.

With cliffs to the left and the right, the justices are looking at a free-fall dive into the scope of constitutional and criminal law as they apply to presidential conduct.

They may be looking not for a foothold as much as a shorter drop.

Some of the justices are likely to be seeking a third option where a president has some immunity under a more limited and less tautological standard than the one the DC Circuit offered.

The problem for the court is presidential privilege and immunity decisions are meant to give presidents breathing room by laying out bright lines within which they can operate.

Ambiguity defeats the purpose of such immunity. So does a test that turns on the motivation of an official act.

The special counsel insists, for example, that Trump was acting in his personal interest in challenging certification and raising electoral fraud, since he was the other candidate. 

But what if he wasn’t on the ballot — would it have been an official function to raise such concerns for other candidates?

When pressed on the line between official and nonofficial conduct, the special counsel just dismissed such concerns and said Trump was clearly acting as an office-seeker, not an officeholder.

Likewise, the special counsel that argued the protection for presidents must rest with the good motivations and judgment of prosecutors.

It was effectively a “Trust us, we’re the government” assurance. Justice Samuel Alito and others questioned whether such reliance is well placed after decades of prosecutors’ proven abuses.

Finally, if there is no immunity, could President Barack Obama be prosecuted for ordering the killing of a citizen by drone attack and then killing his son in a second drone attack?

The government insisted there is an exception for such acts from the murder statute.

In the end, neither party offers a particularly inviting path. No immunity or complete immunity each holds obvious dangers.

I have long opposed sweeping arguments of immunity from criminal charges for presidents. The devil is in the details, and many justices are struggling with how to define official versus nonofficial conduct.

The line-drawing proved maddening for the justices in the oral argument. The most they could say is similar to the story of the man who jumped off a building. As he passes an office window halfway down, another man calls out to ask how he’s doing. The jumper responds, “So far so good.”

As the justices work on a new set of legal wings, anything is possible as the nation waits for the court to hit ground zero in the middle of the 2024 presidential election.

Observer Commentary

Our opinion is that these people are making this a much more complex issue than necessary or practical.  We think the wiser position rests not in the Judicial branch but with the Legislative branch.  That is why the Founders included impeachment as a check and balance on presidential abuse of power.  Judicial review of specific presidential actions is obviously a minefield that should be avoided.  Alvin Bragg amply illustrates that danger.  

Trump is wrong in contending essentially that presidents have absolute immunity for criminal acts committed by a President.  But the check and balance of impeachment eliminates most of the arguments that no president should be omnipotent.  Impeachment prevents this, and thus prevents a president from becoming an omnipotent king.  George Washington understood this in 1789 and it is still as true today as then.

Once you accept that a president is not omnipotent, then impeachment becomes the proper venue to adjudicate the issue(s), and not the judicial process, which can obviously take much longer to settle.  And it would not be appropriate to have double jeopardy of both impeachment and judicial sanctions.

The multitude of criminal cases that have been thrown at Trump is reason enough to restrict oversight and review to the impeachment process and the courts should get out of the swamp and ultimately allow the People to decide through their elected representatives.

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Bubba said:
( May 1st, 2024 @ 7:23 am )
Have you noticed that Jack Smith wears his facial hair in the same style as a Hamas or ISIS terrorist commander? He is equally evil and equally a threat to America.
( April 29th, 2024 @ 1:49 pm )
I was listening to Andrew McCarthy, a former federal prosecutor in New York City today. He has been following all the proceedings of the Trump prosecution by Alvin Bragg and Juan Merchan. He cited several really off the wall evidentiary rulings by Judge Merchan that were against "black letter law" (very well settled principles of law) both in restricting evidence and witnesses on behalf of Trump and allowing Bragg's witnesses to testify to things they should not. This judge's extreme political bias just keeps getting worse. This trial is a mockery of justice in so many ways.
( April 29th, 2024 @ 11:14 am )
Johnny Henry's attempt to deflect by regurgitating Jack-boot Smith's version of the Presidential Records Act conflicts with the interpretations of a number of major legal experts and also conflicts with how these matters have been handled with other former presidents. But most importantly it fails to address the main issue I brought up, and that was the classified documents retained by Hillary Clinton and Joe Biden, neither of whom had ANY protection under the Presidential Records Act, and who retained lots of documents they had no legal right to keep and kept them in very insecure locations, a bathroom in Clinton's case and boxes stacked by his Corvette in his garage with Biden. The Biden DOJ and the corrupt FBI have put both of them above the law in our two tier system of "justice">
( April 29th, 2024 @ 10:01 am )
People also ask
What is the purpose of NARA?
NARA preserves documents, materials and records involving the Federal Government. (NARA. About the National Archives.) NARA collects and maintains declassified information and makes it available for research purposes.

What does PRA mean?
LAW, GOVERNMENT. abbreviation for Paperwork Reduction Act: a US law that requires government departments to try to produce fewer documents: The agency approved the PRA request and assigned control numbers 3235-0049 to the form.
Big Bob said:
( April 29th, 2024 @ 9:27 am )
if you believe in the system only when you win, something is very wrong.
( April 28th, 2024 @ 11:08 pm )
The PRA requires all records created by Presidents be turned over to NARA."
NARA has made clear that there is "no history, practice, or provision in law for presidents to take official records with them when they leave office."
Trump should have known at least the basics of the PRA. Nevertheless, he held onto boxes of classified documents rather than turn them over to NARA.That alone would have would have been a violation of the PRA and other laws — but what he did was even worse.
Trump kept highly classified documents about military and nuclear capabilities of foreign countries and US military contingency plans in truly absurd places at Mar-a-Lago. Then he showed them to civilians without security clearances, while indicating that he knew he wasn’t allowed to. When the DOJ subpoenaed him Trump indicated to his lawyers that he wanted to cover up his possession of the documents. Mr Steed feel free to support traitor Trump but you may be one of the few who is unaware of the facts.
( April 28th, 2024 @ 9:48 pm )
Joe Biden and Hillary Clinton were certainly above the law in our two tier "justice" system. They had no rights whatsoever under the Presidential Records Act to take classified documents, but they did, and lots of them. The crooked, bent, partisan FBI and DOJ let them go scot free. Trump, who DID have rights to retain documents under the Presidential Records Act, was treated wholly differently and the FBI / DOJ goons went after him, hammer and tongs. "Justice" in America these days clearly depends on your politics.
Big Bob said:
( April 28th, 2024 @ 1:11 am )
No one is above the law.
Big Bob said:
( April 28th, 2024 @ 9:04 am )
It must be tough for Mellon Head. Hope the money was worth it.
( April 28th, 2024 @ 9:17 am )
What is really needed in the next administration is a special prosecutor on election interference to punish those who have engaged in politically motivated Stalin Show Trials. Letitia James, Judge Engoron, Alvin Bragg, Judge Merchan, Fani Willis, and Jack Smith should all be prosecuted for election interference. So should those involved in subverting the 2020 election like Marc Elias and Mark Zuckerburg.

The Biden DOJ has prosecuted and jailed a comic for a satire on Democrat efforts to change voting methods as "election interference" so they have opened the door. What these scoundrels in our justice system have done with their Stalin Show Trials is so much worse and so much more damaging to our democracy. They should be punished and punished severely.

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