Wednesday, July 03, 2024

How They Did It

How the Constitution was sold, back in the day. I guess it’s not originalist enough, though.

Funny, that.
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Silver Linings

To be clear, Trump has to exhaust his state appeals before the Supremes can get at this case. And that’s not necessarily a straight line process. 

The Appellate Division could order the case back to trial, and that could be appealed. The Court of Appeals could send it back to the Appellate Division, which ruling could be appealed again. It could end up in a new trial, eventually, which would start the appeals process over again. By the time it could get to the Supremes, Alito and Thomas could be off the court; the court could be larger; there could even be a constitutional amendment overturning Trump v U.S.

Or Trump could be dead; or bankrupt. 

Trump may start his appeal in September (although , come to think of it, he might have to wait until mid-October). It’s just going to be more legal fees, and a reminder he is a convicted felon.
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Two Weeks To Go

(Because Democrats do this to themselves, and Republicans never do. Let’s be honest. The NYT freaks out, and Democrats as far south as Texas freak out. So it goes.) (But Biden! On TeeVee!)

Fact check: by July 18th, this will all be over. (And no , I don’t mean Biden will step down.)
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Did Anyone Tell The NYT…

...that the Supreme Court ruling on “the nature of politics” would itself be the story, not just the starting point of an analysis? 🧐 
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“I Feel Like I’m Taking Crazy Pills!”

Donors are furious," Vande Hei said. "Voters are telling them what [Rep.] Lloyd Doggett's voters are telling him, which is we want him to step aside. That's why yesterday we talked to several people who were on multiple calls with a lot of members, and when there was a show of hands or, hey, should he stay in – almost nobody said that he should stay in.

Biden raised $264 million in Q2. Of that, $127 million was raised in June; of that, more than $30 million was raised the weekend following the debate.

Which donors are furious? And why are State Sen. Lloyd Dogget’s voters suddenly the voice of the Democratic Party?

Oh, wait… it’s Jim Vandehei reporting. Never mind.

Irony alert: Lloyd Doggett was elected to the Texas Senate when I lived in Austin. I haven’t lived in Austin in over 30 years. Behold the power of incumbency.
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All The News That Titillates

Yeah, how Biden appeared on TV is the most important thing. And why he won’t talk about stepping down is the second most important thing. Wait! That would mean news is…gossip! Journalists aren’t that petty, are they?
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“If Biden Won’t Answer Our Questions…”

"...the way we want him to…” "...then he’s not fit to be president. Again.” When do they ever apply these ridiculous standards to Trump? Or to any Republican, for that matter?
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Tuesday, July 02, 2024

Begun, The Outreach Has

But Biden’s debate performance!
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The BosWash Is Talking To Itself

Remember when Clinton couldn’t win because…Arkansas. And then because Lewinsky?
“Run in circles, scream and shout!” 😱
The change, on the average, is within the MOE.

Biden’s mistake was setting a debate before the convention. Everybody makes at least one.
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“I Don’t Belong To An Organized Political Party”

Rep. Lloyd Doggett (D-Texas), who became the first sitting member of Congress to call for Biden to throw in the towel and let someone else run in his stead, confirmed that there "were a lot of people not very happy." 
While Doggett was first, he isn't expected to be the lone voice pleading for a change of the ticket, especially if the campaign and the White House can't "start to show that they get it." 
Already, Rep. Jared Golden (D-ME) published an editorial accepting that "Donald Trump is going to win. And I’m OK with that." 
The outlet has learned that one Democratic lawmaker suggested Biden "step aside outright" and that while there is still support for Biden, there needs to be "at a minimum" a "decisive change in course by replacing his top campaign advisers." 
Meanwhile, Minority Leader Hakeem Jeffries (D-NY) pledged his support for Biden and confirmed that the party wouldn't be "holding people back" from expressing their public views — even if they are unflattering to Biden in public.
"I’m a Democrat.”—Will Rogers See? (never gonna happen. Dems go through this quadrennially, given the whisper of a chance. “Sources” are the worst about it.)
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Is It Confusing Enough Yet?

This actually straightens a few things out 

1)  Trump’s motion is on errors made by the trial court that are in a new light due to the Supremes. We knew that, but Trump is raising specific rulings by the court, and that makes all the difference. (The “too late” part is resurrecting Trump’s objection to this. Notably Trump is still assuming this new immunity can be waived. I’m still not sure that’s true, but it’s the safer assumption for now.)

(Yes, I should have considered the specifics of the pleadings, but in my defense I didn’t have access to any such information. Okay…)

2) The “official acts” argument. They need a ruling on that so they can raise it in appeal. Merchan could (and probably will) easily toss that hot potato up the ladder, where it will be hot for a long time. I don’t think it buys them a new trial at this point.

3) Hangs entirely on 2). And it still only presents grounds for a new trial, as prosecutors couldn’t have wrongly depended on that evidence before the ruling in Trump v U.S.

My guess now is that sentencing occurs in September, and Trump can argue the evidence issues on appeal. I think the state courts will find that one gristly and tough, and will want to chew on it a long time.



This reminds me that the Supremes were perfectly OK with allowing someone to be put to death because their lawyers motions were made after the court rules said they had to be submitted. How much would anyone be willing to bet that they'll find some lawerly-liarly way to let Trump off of the NY conviction?
I think they will, too; but it’ll be a few years from now. Case has to be finally ruled on by NY Court of Appeals first. And Trump owes several major judgments. My guess us he’s in bankruptcy court sometime next year as the donations stop and the legal fees don’t. I’m not sure he can afford to get this case back to the Supreme Court.
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Translating Judgespeak

Just a quick note to say this is a perfectly reasonable response to the situation.

Trump has filed a motion to dismiss (which is sound legal practice. Swing for the fences, because you don’t usually get what you don’t ask for. Unless it’s before the Gang of Five in D.C.). Under the circumstances, Merchan needs to consider that.

“If such is still necessary” is a neutral statement meaning the judge hasn’t decided already on the merits of the motion. The response could still be “No,” and at worst is likely to be “no, you get a new trial.”

I also think, looking at the opinion language JMM has quoted, this new found immunity is not waivable, which is even screwier than deciding it covers evidence for trials (like a super 5th Amendment, the original of which CAN be waived). At least I think that’s what Roberts & Co. meant.

But who can be sure? I still think Trump gets no better than another trial. He certainly doesn’t get an acquittal.
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Not The Victory Trump Is Looking For

The majority’s decision, and Barrett’s concurrence, reads like a transcript of evidentiary hearings that happened throughout Trump’s New York trial. And, in short, the trial court adopted Barrett’s approach to considering evidence from Trump’s time in office—an approach which, as of yesterday, is unconstitutional (agains, see p. 31 of the majority’s opinion). Did any of that evidence actually matter to the outcome in New York? Who knows… and that’s the point. The trial court is going to be hard-pressed to say that any possible error here was harmless; SCOTUS went out of its way to say that admitting basically any such evidence is prejudicial. 
Bottom line: Roberts has a knack for writing opinions that are bad on their face, and worse below the surface. Add Trump v. United states to the list of “worse than it looks.”
There is further analysis of the decision, with important quotes from it, but I’ll cut to the chase:
There’s no way that the NY trial court correctly analyzed evidence drawn from Trump’s time in office—how could it, when the rule didn’t exist then? But still, it seems impossible to say ex ante that all of the evidence let in was merely private. And, if anything let in was plausibly a public act, then SCOTUS’s opinion seems to say that a mistrial would be required.
I know Trump is aiming for outright dismissal of the charges (never gonna happen; paying off a porn star to keep her from going to the media, and hiding the payments in false business records, is not remotely “official duties”. And talking to employees of the President’s business while in office can’t remotely be considered “official,” either. In fact, my guess is this goes up in appeal on the same grounds the case went back to D.C.: because the Court didn’t really settle that issue.).  If Merchan (unlikely) declares a mistrial based on Trump v U.S., at worst the case goes back to the trial court for a new trial (no error by the prosecution, who followed the law at the time of trial). So Trump pays for a second trial, which could come…? Well, depends on the Manhattan docket.

If that doesn’t happen, the likelier course is the appeals courts (which can’t be in love with this ruling), follow the letter of it and decide for themselves how much, or little, the case is affected by this case which tells the lower courts to set standards. And it sets those standards based on the facts of this case. Which may eventually make its way back to the Supremes; but not for a while. And even if it does get reversed in the state courts, it will just go back for a new trial. After all, it’s a fairly easy matter to cure, since all that needs to come out, if anything, is likely some evidence from White House employees.

I drop that in to underline that the issue are complex, and there’s going to be a lot of arguments about “official” and “non-core official” and “unofficial” acts, arguments the Roberts decision specifically punted to the lower courts. That’s going to include state courts. Merchan may decide on n a new trial. Merchan may let the Appellate Division wrestle with it. But it’s not an issue that’s going to be settled soon.

And Trump gets to pay for that all over again, having paid for all those appeals.

I’m still seeing prison and/or the poorhouse in Trump’s future.
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A Reminder

Art. III is the shortest article in the Constitution. It establishes a “Supreme Court” and a Chief Justice, much the same way Art. I establishes a “Speaker of the House.” The duties and even selection of the Speaker are then left to the House .

The Supreme Court is “supreme” over the legal system which article III leaves to be set up by Congress, along with the authority, jurisdiction, number of members, of the Supreme Court. Even the Chief Justice has no Constitutional authority, just a title. And the selection of the justices is left to the Senate and the Executive. 

But the Supreme Court is not supreme over the Congress or the nation. Article I goes into great detail about the composition and powers and duties of the Congress. It provides less detail about the duties of the President, and even less about the Supreme Court. Except that both are accountable to Congress, with the President also (like Congress) accountable to the voters.  The Congress establishes everything about the Supreme Court except its name. The Congress can also establish the President’s “function and authority” so long as it is not directly contrary to the Constitution. Although in some cases, like the War Powers Act, it has, by yielding Congressional authority to the executive.

With the opinion in Trump v U.S., the Court usurps Congressional authority to decide itself what the President’s “function and authority” are, and places that decision beyond the reach of any other branch of government. In other words, it sets itself supreme, not only over the judicial system, but over the Constitutional system itself. The decision process may be a deliberative one as it works its way through the judicial system, but as the decision in Trump shows, it doesn’t really matter what the lower courts say. All that matters is the opinion of at least 5 justices. 5 unelected justices who have declared they hold their offices for life and cannot be forced to retire, or even follow a code of ethics; a position peculiar only to the 9 on that bench.

And an authority that is anathema to the democratic republic established by the Constitution that establishes that Court, and subjects it to the authority of the Congress.
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We Really Need To Talk About Biden

(But raving about sharks and windmills is fine?)
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Chronicle Of A Death Foretold

This is where I mention that magical realism came about because fantasy is too easily dismissed as mere allegory, and realism couldn’t begin to tell the truth about the culture from which magical realism sprang. Because it had to.

Why do I mention that, in connection with the Supreme Court? No reason; no reason at all.
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But, But, But!

 

But anonymous sources say that behind closed doors Biden is not such a nice guy!
"People are scared s---less of him," one senior administration told Politico. "He is not a pleasant person to be around when he’s being briefed."
The horror! The horror! Fair and balanced.
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The 9 Ringwraiths Are Servants Of The Ring

As every nerd knows.
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“The Life Of The Mother”

"How is this supposed to work?"Johnson added. "I don't understand how the implementation of this ruling is going to work. Just the process of separating out what's an official act, what's a quasi-official act, what is a non-official act. In the court will be a trial in and of itself, then an appeal following that. This is a real setback." 
Johnson explained that the chain of command in the executive branch is currently set up so each official can be individually held accountable, but he said the court's ruling upends that arrangement. 
"When the executive branch is functioning like it should, you have a legally controversial action, such as [a] counterterrorism action," Johnson said. "The action works its way up through the chain of command. Every person in the chain of command has a lawyer, it's signed off by the general counsel of the Department of Defense, the general counsel of the CIA, the office of the department of the legal counsel. By the time it gets to the lawyer, everyone has signed off on it. Therefore, the president is acting consistent with law. There are built-in safeguards for that." 
"It is only because, now, 235 years in, we have a past and possibly future president who engages in criminal conduct that we have to have this debate," Johnson added. "At least five justices on the Supreme Court feel the need to try to protect him. This is, to me, an unbelievable decision. In my view, it is a setback to our constitutional order."
The majority thinks they’ve been excessively clever. Like the favorite abortion carveout for “the life of the mother” really meant to make abortion impossible, think they’ve provided “absolute immunity” without ever calling it that. But that’s clearly the point of the drill: I cite that for the quote of footnote 3:
What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President's motivations for his official actions and to second-guess their propriety.

Which inspection is improper because droit de seigneur and sovereign immunity. But when kings made the law, an order of assassination was per se legal. Now it still just an illegal order, for everybody but the king:

"First of all, from the perspective of a cabinet officer, how is this supposed to work?" Johnson said. "Suppose the president says to the secretary of homeland security, 'I am ordering you to order the border patrol to go shoot at migrants swimming across the Rio Grande.' The cabinet official would rightly say, 'Well, you have immunity, but I don't — you go do it yourself. I'm not telling the border patrol to do that.'"
So the POTUS is going to reach down to the border patrol agent on the ground and, what, offer him a pardon for committing murder? It’s a child’s version of government, not unlike children who imagine their body is a solid mass rather than a network of blood vessels and nerves and lymph and a collection of organs and muscles and bones. The body literally doesn’t work like that. The government literally doesn’t work like that. The presidency literally doesn’t work like this opinion imagines it does. 

Or worse, the majority doesn’t care how it works. They just want to protect Trump at all costs; just like “life of the mother” exceptions aren’t meant to allow abortions, but just appear to. This ruling is not meant “for the ages,” it’s just meant to appear to. It’s not meant to give any guidance to lower courts. It’s just meant to get Trump as far past the election as possible, without further legal interference. As a legal ruling it’s absolutely unworkable. The people in the chain of command can be paralyzed between an illegal order and a legal system that doesn’t give them immunity.

“When the president does it, it is not illegal,” is a Nixonian locution worthy of Trump. A lot of people went to jail for Watergate, for doing what the President wanted done. A lot of people would have gone to jail for Iran-Contra if Poppy hadn’t pardoned them (and himself). When the president does it, it may not be illegal as to the president. But that doesn’t let the rest of government off the hook.

This ruling doesn’t let the government ignore the law anymore than abortion exceptions “for the life of the mother” create humane exceptions to a draconian law. Both just sow chaos; one to control women as fully as possible, the other to protect a particular individual as fully as possible.

Neither, in the legal system as currently constituted, does anything but create needless problems and sow dragon’s teeth. As the adage goes, what comes after is reaping the whirlwind.

"So the chief [Justice] tried to make the best case possible that this was the only way out ... he stressed that the separation of powers protects the office of the presidency in a way that would certainly prohibit any kind of prosecution for official acts, and he said there has to be that presumption for official acts and you know, he stressed that that fear and that that idea that presidents should not have to hedge in any way."
But that’s precisely the point of the chain of command and 235 years of establishing a legal process within government. What the majority presents is a child’s view of government as a unitary lump of clay rather than a set of complex systems working together to accomplish a goal. Presidents have to “hedge” because governments are creations of law, not emanations if divine will expressed through kings.

Of course even this analysis of Roberts opinion gives it more credit than it deserves. Roberts is not reaching for a legal argument. He’s just trying to protect Trump at all costs. He’s not calling balls and strikes. He’s trying desperately to call the next election. 🗳️ 
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Three Guesses

Is Trump talking to Clarke about the fake electors scheme (assuming arguendo the Court accepts Kreis’ argument), official because the POTUS is talking to a DOJ employee?  Or does the content of the conversation render it unofficial? Yeah. Three guesses, first two don’t count. “Presumptive immunity” not meant to be presumptive. Now let’s see if it can even be waived.

This can always get worse.
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Absolute Immunity Is Absolute

This will get interesting. I said earlier that immunity is jurisdictional. It is, but in one of those interesting distinctions in the law, it’s not jurisdiction. 

Let me explain.

Jurisdiction is fundamental. You cannot waive jurisdiction. If you raise the issue for the first time on appeal, that’s not too late. Jurisdiction cannot be waived. It can even be raised by any court in the chain of appeals, sua sponte, as the lawyers say. Jurisdiction means the court has authority; or it doesn’t. You can’t get more fundamental than that.

Trust me.

Immunity is a matter of jurisdiction. Consider the criminal prosecution of Bill Cosby, based in part on his own statements. The Supreme Court (of the state) threw out the conviction because Cosby waived his 5th Amendment rights on the assurance his words would not be used against them. He did not, in other words, knowingly waive his immunity. The point being, he could have. But having been conned, the court lost jurisdiction over his prosecution. It could not be party to the misrepresentation.

Immunity is personal, not institutional. Immunity denies jurisdiction; but jurisdiction can’t be waived. Immunity can. You can waive your 5th Amendment immunity. You can waive any claim of absolute immunity. Jurisdiction is always there. Immunity is there only if it is raised by the person immunized. And once waived, you don’t get it back. Not in that case, anyway.

If, as the tweets say, Trump did, then…he’s toast. And the issue never comes up for review, not even by the Roberts Court. The majority can do a lot of damage; but they can’t change the gravitational constant of the universe. Or suspend due process and equal protection and equity and procedure, all for Trump and “just this once.”

That would be an opinion no one would regard as valid.  Well, everyone except Thomas and Alito. There’s always somebody.
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Closing Time Somewhere

Let me give you Fitzgerald at 754:
But our cases also have established that a court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch. See Nixon v. Administrator of General Services, 433 U. S. 425, 433 U. S. 443 (1977); United States v. Nixon, supra, at 418 U. S. 703-713. When judicial action is needed to serve broad public interests -- as when the Court acts not in derogation of the separation of powers, but to maintain their proper balance, cf. Youngstown Sheet & Tube Co. v. Sawyer, supra, or to vindicate the public interest in an ongoing criminal prosecution, see United States v. Nixon, supra -- the exercise of jurisdiction has been held warranted. In the case of this merely private suit for damages based on a President's official acts, we hold it is not.
The page ends with a footnote to that last sentence which is also worth noting:
The Court has recognized before that there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions. See United States v. Gillock, 445 U. S. 360, 445 U. S. 371-373 (1980); cf. United State v. Nixon, 418 U.S. at 418 U. S. 711-712, and n.19 (basing holding on special importance of evidence in a criminal trial and distinguishing civil actions as raising different questions not presented for decision). It never has been denied that absolute immunity may impose a regrettable cost on individuals whose rights have been violated. But, contrary to the suggestion of JUSTICE WHITE's dissent, it is not true that our jurisprudence ordinarily supplies a remedy in civil damages for every legal wrong. The dissent's objections on this ground would weigh equally against absolute immunity for any official. Yet the dissent makes no attack on the absolute immunity recognized for judges and prosecutors. 
Our implied rights of action cases identify another area of the law in which there is not a damages remedy for every legal wrong. These cases establish that victims of statutory crimes ordinarily may not sue in federal court in the absence of expressed congressional intent to provide a damages remedy. See, e.g., Merrill Lynch, Pierce, Fenner Smith, Inc. v. Curran, 456 U. S. 353 (1982); Middlesex County Sewerage Auth. v. National Sea Clammers Assn., 453 U. S. 1 (1981); California v. Sierra Club, 451 U. S. 287 (1981). JUSTICE WHITE does not refer to the jurisprudence of implied rights of action. Moreover, the dissent undertakes no discussion of cases in the Bivens line in which this Court has suggested that there would be no damages relief in circumstances "counseling hesitation" by the judiciary. See Bivens v. Six Unknown Fed. Narcotics Agents, supra, at 403 U. S. 396; Carlson v. Green, 446 U. S. 14, 446 U. S. 19 (1980) (in direct constitutional actions against officials with "independent status in our constitutional scheme . . . judicially created remedies . . . might be inappropriate"). 
Even the case on which JUSTICE WHITE places principal reliance, Marbury v. Madison, 1 Cranch 137 (1803), provides dubious support, at best. The dissent cites Marbury for the proposition that 
"[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." 
Id. at 5 U. S. 163. Yet Marbury does not establish that the individual's protection must come in the form of a particular remedy. Marbury, it should be remembered, lost his case in the Supreme Court. The Court turned him away with the suggestion that he should have gone elsewhere with his claim. In this case, it was clear at least that Fitzgerald was entitled to seek a remedy before the Civil Service Commission -- a remedy of which he availed himself. See supra at 457 U. S. 736-739, and n. 17.

Although the highlighted portion of that footnote is the only part relevant to our concerns, I don’t want to be accused of doing what Roberts did: proof texting, as we called it in seminary. Or distorting the case law, as the lawyers say.

Fitzgerald was a case regarding presidential immunity from civil cases. On page 754 the Court distinguished that from criminal cases. Which makes it all the more egregious Roberts cites that very page for support of his conclusion.

Immunity is jurisdiction. It lifts jurisdiction from the courts for matters covered. Sovereign immunity means the court cannot decide hear civil claims against the state. The Speech and Debate clause means the court cannot hear civil suits raised by things said by members of Congress. Presidential immunity means the court cannot hear claims against the President; for, per Fitzgerald, official acts. The Fitzgerald court did not apply that to criminal prosecutions; only civil claims.

Here’s a more legible sample of the relevant quote from the majority opinion:

What Roberts says is actually the dead opposite of what  Fitzgerald says. He completely excises the reference to US v  Nixon, and really only cites the case because it gave us the “official/unofficial” dichotomy that Roberts uses to fig leaf his way into absolute immunity but-not-really. And yes, Roberts does it by ignoring any public interest in a criminal prosecution of the president there might be. Which sounds like a dandy sound-bite argument for a 28th Amendment: the legitimate public interest in seeing that no one is above the law.
That “tricky part" is a feature, not a bug:
Luckily for Trump, per the Court’s ruling, he seems to have led the Jan. 6 insurrection in a way that secures him near-blanket immunity. Even some actions Trump took that look a lot like unofficial acts — tweets that egged on the crowds, his speech at the Stop the Steal rally on the Ellipse — might just merit some immunity after all, Chief Justice John Roberts mused in his majority opinion.
This opinion is tailored to Trump. By design it will keep at least the D.C. case in appeals for years. Trump may eventually stay out of prison, but he won’t stay out of the poorhouse. Which will become clear as the Court faces the fact questions of what is, and is not, an  “official” act of the presidency. That’s gonna eat up more than a few years, and not necessarily in interlocutory appeals. But governments don’t run on a balance sheet, and don’t get tired. Trump will run out of money long before they run out of interest. There’s a lot Roberts can do; but he can’t change the gravitational constant of the universe. If he’s going to do this with plausible deniability, he has to try to hide his goal.

So Trump may still be in appeals when the 28th Amendment is passed. Which amendment may well go from conversation to campaign foundation:
And there’s also the Trump v. reality crowd: Although one could say the GOP understands the court’s decision perfectly.  But the GOP’s devotion to Trump is not matched by the rest of the population. And Biden can play those two against the middle. Because if the rest of the country understands the court’s opinion, Trump is toast. It is, after all, a pretty simple proposition:
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Monday, July 01, 2024

Presidential/Campaign Mode (NOW WITH VIDEO LINK)

What he said.

SO SAY WE ALL!
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The 28th Amendment

"The more you look at it, the worse it looks," said Jones. "When you put it all together, basically, the Supreme Court said in the past week, no rules for the powerful, no rights for the powerless. So if you're homeless, you can be thrown in jail for the crime of not having enough money to get a hotel room, but if you're the President of the United States, you can commit an undetermined number of crimes under color of law and get away with it. This is not good."
As I was saying:
However, Jones added, "I'm telling you, this is going to backfire politically. Because what I'm seeing from the left now, if you thought people were discouraged by what happened last week with Biden's performance, they are now outraged and terrified that Donald Trump is going to get in office and be a complete madman dictator." 
"So this is — politically, this is a gift to the left, though it is a blow to the country," Jones concluded.
If the debate stimulated the tongue-cluckers, this knocks them completely off their perch. It also, IMHO, galvanizes a country steeped in the idea that we don’t have a king. I knew people who thought Nixon was railroaded; but they’d never have seriously argued he was immune from all criminal prosecution.

I’m not sure the Supremes didn’t just hand Biden his re-election. I’m quite sure they didn’t mean to.

Be careful what you ask for….

OTOH: Never take advice from fools. If Biden acts on his “new powers,” it’s quite a bit harder to argue no President, and especially Trump, should have them.

There really is an epic amount of stupid out there.
Epic amounts. 

Adding to the issue of the campaign theme:
I really think the more this sinks in… ... the more the margins shrink… ...and shrink... ...and shrink. Now explain to her it’s not in the Constitution, it’s just in the Court’s opinion. Yes, there’s a lot of MAGA magical thinking out there that this opinion doesn’t say what it clearly says. But Trump can’t afford to lose any margin. At. All. (I should note even local TV news was accurately reporting this case in just a few sentences, emphasizing how hard a prosecution would be due to the bar on evidence.) Let’s be real: the reality of this opinion is never going to reach MAGA Central. But some disgust at the margins could well be enough (not to gain Biden votes, but to lose Trump ones). Dumb like a sledge hammer...swung hard against the foundations of constitutional order. This is the "right hand giveth, left hand taketh away" portion of the opinion. Sure, they didn't grant absolute immunity. But you can't have any evidence to prove the crimes, so...

I can imagine a few more voters saying “Fuck it” after this. Trump voters, not Biden ones. I think this fires up Biden voters.
  The only solution now is a 28th Amendment.
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And Don’t Sleep On The Pardon Power

POTUS could pardon the person who carried out the order and argue he wasn’t making an illegal order, because now the President can’t make an illegal order..

If you can’t present evidence of intent, or even of the conversations leading to the act, you can’t prosecute the crime. And under “innocent until proven guilty,” no successful prosecution, no crime. Even if the pardon was illegal, I think you’d have to prove that to overturn it. And you can’t.
Actually, POTUS could under this ruling. And the examples of Michael Flynn and Oliver North don’t say much for absolute military fidelity to the rule of law. Not to mention the leakers of military secrets by soldiers more loyal to their ideology than the law.  POTUS could find somebody to do it, easily. Several DIJ lawyers threatened to quit over the electoral challenges fraud; but Jeffrey Clarke stepped up. Lawyers have A LOT of education on this topic.

The Supreme Court just threw out a lot of it.

You can’t be simple-minded about this.
These are precisely the hypotheticals an appellate court is expected to consider. The dissent points that out, and Roberts just waves them away. Roberts’ opinion is neither wearisome nor unproductive, however. It is merely destructive.
Campaign theme. Just sayin’…again and again and again. Damned hypotheticals! Another campaign slogan/theme. Under German law at the time Hitler had absolute authority. It’s worth noting the Crown of England has sovereign immunity (I’m not sure what would happen if the sovereign committed a serious crime), but at the same time virtually no authority. Works for me; if only to give Trump more reasons to spend more money on lawyers. The nutshell case for why the documents case survives even as the D.C. case appears doomed (or at least attenuated). Besides, the crime was not the taking (per se). It’s actually the refusal to return (i.e., why Biden wasn’t charged for the contents of his garage). Which happened long after Trump was POTUS, and so no longer capable of official acts.

It’s possible some of the 34 felony counts fall, on the question of evidence related to official acts. But I don’t think, on reflection, all 34 of them will. Conceivably there could be a new trial, to keep such evidence out; but remember, citizen Trump will have to pay for that trial himself. Maybe with a Go Fund Me campaign. 🤔

The Georgia case will have to review its evidence. Trump may seek a dismissal, but, again, the State has more money than he does.
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Gravity

This decision adds a lot more gravity to Trump’s statements. 

That is not a small thing.
And that evidence can’t be used against him because those discussions were “official acts,” even if the acts were not. So it is, effectively, absolute immunity.

I still think the documents case survives. The D.C. case? I’m not so sure.
That's the gravity of the situation now. I’m not sanguine Trump’s criminal prosecutions survive, even as the civil judgments will likely bankrupt him. He will have to spend a great deal to get the criminal cases dismissed, and access to that cash is going to diminish rapidly.

But still… this is as bad as it gets. The only way to make a silk purse out of this sow’s ear is to use it to defeat Trump at the ballot box.🗳️ (If he challenges that, it’s probably money he won’t get for his legal defense.)

Got to look for the silver lining where you can. If we can keep Trump out of office, we can probably get s 28th amendment, too. Biden’s capstone on his legacy. 

And maybe we can even get Congress to take the Court by the throat. I really think this could be the apex of the rising authority of the Court. I think they finally went too far.
"The second thing, and Katy, this is a big deal, it's on page 18," she added. "There's a big paragraph in terms of the guidelines for Judge Chutkan in determining what's official and what's unofficial. And they say, the majority, 'In divining official from unofficial conduct, courts may not inquire into the president's motives.' This was a huge issue at oral argument: Chief Justice Roberts asking John Sauer 'what about bribery?'" 
"Let's say former president Trump or a president appointing somebody to an ambassadorship gets a whole bunch of money for that, are you saying we can't consider the bribery but we can consider the acceptance of the money?" she elaborated. "That's nonsensical. Despite that, they're carving a rule that says the motive can't be considered. If you appoint somebody, it doesn't matter whether you're doing that for your own private gain." 
"How can that be? How can they write an opinion that says that?" host Tur pressed. 
"I want to be clear with what we're seeing here," Rubin replied. "I want to go back to [former solicitor general] Neil Katyal's comments — this is not so much an opinion as it is a broad edict meant to serve a particular moment, even while they say they are writing a rule for the ages."
It’s a rule for the age of Trump; nothing less and nothing more.

I still say that’s a campaign theme. Gotta start there.
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Sounds Like A Campaign Theme To Me

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Let The 16th Amendment Be Your Guide

The POTUS can be impeached, because impeachment is not a legal procedure. But he can’t be prosecuted for the bribery he/she was impeached for.

The 16th Amendment made income taxes constitutional, after the Court said they weren’t. Time for a 28th Amendment in the same spirit.

Biden could even campaign in support for it.

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Sure, Why Not?

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We’re Not Talking About Biden’s Debate Anymore

Well, except:
Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency," Sotomayor wrote. 
"Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune." 
The justices condemn their six colleagues — whose argument was penned by Chief Justice John Roberts — for a decision they say condones treason. 
"The indictment paints a stark portrait of a President desperate to stay in power," wrote Sotomayor. "Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent."
Expect that language to get more attention than anything the majority wrote. Or the state courts have to decide what was “private.” Which is how whack this opinion is. Yeah; the opinion is that whack.  The President is excused from all legal consequences.

I’m not sure people want to reward Trump for bringing us to this.
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I Think This Is Right

But the case persists if Biden wins. And things get worse when Trump can’t fundraise for re-election (he already owes New York almost everything he owns).

The real question is, whether the Court ultimately lets this case proceed at all.
Well, duh, a Democrat can’t do it, but a Republican can! Let the courts sort it out. Three or four years from now. Kill ‘em all, let the courts sort ‘em out. That’s the power the Court wanted, isn’t it? This is the problem with the Court establishing itself as a super-legislature. Well, one of the problems. And if you’re Trump, presumably from political repercussions.

Thought experiment: if a POTUS suspends the Constitution and declares martial law, will it take the courts 4 years to decide whether POTUS has immunity from such actions? (I know in this scenario the courts are suspended, too. But does this ruling make that scenario more conceivable?)
On the political side, I really don’t think this is good for Trump. Good suggestions. Gotta play the politics of this. When that reality catches up to perception, expect a lot of support for a Constitutional amendment. Let that sink in.
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Well, That’s Not Good

Kind of the outcome that was expected, but not in the way that was expected. Yeah, this is not good. Nor is this. Aye, there's the rub. And that’s why.

My two cents is that this makes the D.C. prosecution even more difficult (Trump was no longer POTUS for the documents case, so this shouldn’t apply. Emphasis on “shouldn’t”). Whether the vaunted and anticipated “mini-trial” will change anything is only one question. I expect this case won’t get to trial because of appeals under this ruling. Not this year, anyway.

Politically it may spark even more interest in defeating Trump. The reaction to the debate critique, especially the $33 million plus Biden raised in three days gives me hope voters see more than optics here (I also doubt that many people watched all 90 minutes; even more didn’t watch at all). Trump will crow he now has immunity. You think that won’t worry more than a few people who may pay no attention to this ruling or its details? The debate was supposed to be a plus for Trump (else why ask Biden to withdraw?). But a “success” for Trump seems to have rallied support to Biden.

An emboldened Trump is good for Biden; however bad this ruling is.
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Nothing Fails Like Success

My admiration for LBJ’s legislative accomplishments is almost boundless, and I know he stepped down because of Vietnam. But I agree that, in doing so, he handed Nixon the White House.

I think this is right, too.
Well, we know where the majority of the free press comes down on that one, including their invention, the pundit class and it's in favor of their tax breaks continuing. Such people wouldn't notice moral turpitude because it's their code of conduct. They hate Biden because he's had a virtuoso presidency, even under the Sinema-Manchin Senate even when he had a nominally Democratic Congress and the Republican-fascists holding the house in the second half of it. No other Democrat of my lifetime, maybe including LBJ could have done better with the hand that Biden was handed, Obama didn't do as well with the one he was handed before 2011.
LBJ fell as much by perception (Vietnam hid his accomplishments for decades) as from perception (he convinced himself to quit because of the war). LBJ thought the public had turned against him (and, canny politician that he was, he may have been right). Only the pundits have turned against Biden, and three days after the “disaster,” they are already marking public opinion and steering to match those winds.

Biden should be measured by his accomplishments, not by his ability, it failure, to be impressive on one night. Most of the negative reactions are simply the conviction that the people are sheeple and some elite must guide them.

And despite the opinions of the “Founding Fathers” (who were uniformly afraid of rule by the demos. They based their government on Rome, not Athens.), how un-American is that?
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Which Is More Disqualifying?

 1) Biden’s performance at the first debate?

2) Trump’s conviction on a crime of moral turpitude?


Discuss.

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One Step Forward, Two Steps Back

Or his debate performance. Old news. Meanwhile, pundits circle the wagons: “It’s up to Biden to prove us wrong!” 😑 (please note many who support Biden already do so because Trump threatens democracy. How does the punditocracy decide that’s why Biden won? Answer: they don’t! Nice work, if you can get it.) He's giving them a bad name. No we’re getting somewhere.
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