Pretty Much What Justice Jackson Said

The Court and the parties discussed everything but the specific question presented.

— @judgeluttig (@judgeluttig) April 25, 2024

The legal doctrine of appeals is that the court, especially the High Court, limit itself to the facts and parties before it rather than act as a “super-legislature.” “Change the facts, change the outcome” is not similarly a legal doctrine, but it is how case law and legal reasoning work. The general principle of the tort of assault, say, rests on the recognized elements of the tort, and the facts presented by the case. There is no one rule for all cases of alleged civil assault. One if the things you learn in Torts is that the concept of “offensive contact” is a fact-specific one. The Court does not have to establish, in Justice Jackson’s phrase, a “bucket of official acts” v. private ones, based solely on this case. Rule on the facts before the Court, and leave the future, to the future.

That, I fear, this Court will not do; and working out the parameters of presidential immunity in this one case could therefore take…years.

thereby also depriving his lawfully elected successor of the powers of the presidency to which that successor became entitled upon his rightful election by the American People -- and preventing the peaceful transfer of power for the first time in American history.

— @judgeluttig (@judgeluttig) April 25, 2024

Which is how the lower courts understood it: on these facts, is former President Trump entitled to immunity?

Let alone is it a core power or function of the President of the United States to ensure the proper certification of the next president by the Congress of the United States. Neither of these is a power or function of the president at all.

— @judgeluttig (@judgeluttig) April 25, 2024

The majority of the Supremes went haring after the defense of the Imperial Presidency. Which was not the issue presented, by the facts or the parties. Oh, Trump argued it that way. But the Court could have fairly and reasonably swatted that aside.

Consequently, they purposely and pointedly withheld from the President any role in these fundamental constitutional functions.

— @judgeluttig (@judgeluttig) April 25, 2024

Really the factual and legal issue, isn’t it? Does the President have immunity to any extralegal attempt (or illegal one) to retain office? To be fair, that issue was actually recognized in arguments. And the justices didn’t seem overly impressed with Trump’s argument. But three hours? Really? It’s not (it shouldn’t be) that nuanced an issue. Especially on these facts as presented by these parties.

through the Department of Justice, to inquire into allegations of fraud in presidential elections and ensure that the election was free, fair, and accurate.

— @judgeluttig (@judgeluttig) April 25, 2024

A point the DOJ made very well; again, on the facts of the 2020 election, the 60+ failed lawsuits, etc.

The former president of course has refused to this day to accept that finding by not only his own Department of Justice, but also countless others of his closest advisors.

— @judgeluttig (@judgeluttig) April 25, 2024

for having attempted to remain in power notwithstanding the election of that President’s successor by the American People.

— @judgeluttig (@judgeluttig) April 25, 2024

The legal issue presented by the facts. And how in the world can those facts POSSIBLY raise the issue of whether such actions are within the powers of the POTUS? Because if they do, then every election going forward will prompt a constitutional crisis as the losing incumbent goes to court to establish his authority to use whatever extra-legal authority is available to remain in office. And as C in C, that arguably includes using the military. And we’ll only know if it’s a coup four years later, when the Supreme Court finally gets around to it. Of course, by then…

Neither is a clear statement from Congress that a president is subject to prosecution under the statutes with which the former president has been charged necessary in this particular case.

— @judgeluttig (@judgeluttig) April 25, 2024

In my hypothetical, we’d need several years in Court to work that out.

For the same reason, it would be ludicrous to contend that the former president was not on sufficient notice that if he committed the criminal acts charged, he would be subject to criminal prosecution by the United States of America.

— @judgeluttig (@judgeluttig) April 25, 2024

To hold otherwise would make a mockery out of the “plain statement” rule.

— @judgeluttig (@judgeluttig) April 25, 2024

Which always falls to the”Rich White Man Privilege” rule. Is it a coincidence that most of the strongest critics of this case on the High Court are women of color?

I think not. 🧐