Well, I did something I've rarely done in the history of writing essays for the blog: I dropped the first version of the essay. I had previously written about Trump v, US (i.e., Presidential immunity), I made a mistake of relying on secondary sources. Two basic things led me to read the opinion myself: first, special prosecutor Jack Smith edited some of the charges (for the election subversion case) to identify Trump as POTUS candidate v. President; second, FNC host Jesse Watters on "The Five" made comments to the effect that SCOTUS has basically thrown out Smith's charges. I was fairly sure Watters was dead wrong, but I was curious what Watters had misconstrued. So, I'll reference the decision text here.
I'm not a trained lawyer, and so they may likely disagree with my opinions. SCOTUS clearly tossed some of Trump's arguments. One of them was basically if you didn't impeach him over a charge, you couldn't charge him later. . No.
IV A Trump asserts a far broader immunity than the limited one we have recognized. He contends that the indictment must be dismissed because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution...Impeachment is a political process by which Congress can remove a President who has committed “Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, §4. Transforming that political process into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government....The text of the Clause provides little support for such an absolute immunity. It states that an impeachment judgment “shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Art. I, §3, cl. 7. It then specifies that “the Party convicted shall *nevertheless* be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” *Ibid*. (emphasis added). The Clause both limits the consequences of an impeachment judgment and clarifies that notwithstanding such judgment, subsequent prosecution may proceed. By its own terms, the Clause does not address whether and on what conduct a President may be prosecuted if he was never impeached and convicted....James Wilson, who served on the Committee that drafted the Clause and later as a Justice of this Court, similarly concluded that [even] acquittal of impeachment charges posed no bar to subsequent prosecution....The Federalist No. 77, at 520 (explaining that the President is “at all times liable to impeachment, trial, dismission from office . . . and to the forfeiture of life and estate by subsequent prosecution”).
SCOTUS [majority] anticipated a point I [as well the prosecution] made against absolute immunity for POTUS:
The principal dissent’s starting premise—that unlike Speech and Debate Clause immunity, no constitutional text supports Presidential immunity...True, there is no “Presidential immunity clause” in the Constitution. But there is no “ ‘separation of powers clause’ ” either.
At the core I see Trump's criminal activities as self-serving and corrupting, a refutation of the rule of law. For example, the SCOTUS majority seems to shrug off Trump's attempts to get VP Pence to reject official battleground state elector slates and/or accept phony Trump slates. They don't even seem to recognize that Trump and Pence had a vested interest in flipping election results, Keep in mind Trump had filed some 60-odd court cases challenging the elections, winning only one PA battle to enforce an early deadline for mailed ballot receipt There was nothing in the law or Constitution enabling Pence to reject a state-certified slate. Now, of course, the majority recognizes POTUS has no 12th amendment role in election ratification. But clearly, the evidence of phony state electors and Trump pressuring Pence to subvert election results confirm the conspiracy. It would frustrate the interests of justice to , say, exclude evidence on grounds like confidentiality of Trump's demands on Pence. Similarly, I don't need to hear SCOTUS tell me enforcement of federal election law comes under the Executive Branch and Trump had Constitutional cover to extort state election officials into flipping election results.
Note: SCOTUS didn't suggest my trailing comments, but they seem consistent with the discussion of official vs. unofficial conduct (the former being more protected from prosecution). The majority justices flesh out a taxonomy of Presidential duties/conduct. At the core (and most protected in terms of immunity) are carrying out the Presidential Constitutionally enumerated responsibilities like Commander-in-Chief, vetoes, pardons and foreign policy to more peripheral duties where criminal immunity may be presumptively shielded but not absolutely to "contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of “content, form, and context” will necessarily inform the inquiry."
What are Trump's 4 election subversion charges?
U.S. District Judge Tanya Chutkan in Washington, D.C. held proceedings this past Thursday, on special prosecutor Jack Smith's post-SCOTUS revised indictment. (basically stripped of specified privileged conversations with the Justice Department personnel, a specific reference in the majority opinion; along with replacing any references to Trump as POTUS with Trump as candidate for President engaging i unofficial, private conduct), also before a (new) grand jury, i.e., not tainted by official duties as targeted by SCOTUS. Smith submitted the same 4 charges and largely the same evidence.
Judge Chutkan has to rule whether the charges are consistent with the SCOTUS ruling; it may not happen before the election. I suspect the losing side, probably Trump, will try to appeal back to SCOTUS.
Going back to "The Five" episode triggering this rant, Watters was of the opinion that SCOTUS had all but thrown out the charges. No, what was reviewed whether POTUS enjoyed broad criminal immunity. Recall we had 2 recent precedents of sorts: Nixon's criminal behavior and Clinton's attempt to defer the federal Paula Jones case. In early 1974 a grand jury was prepared to indict Nixon on 4 counts related to Watergate: "from on or about March 21, 1973…Richard M. Nixon unlawfully, willfully and knowingly did combine, conspire, confederate and agree together and with co-conspirators…to commit bribery…obstruct justice…and obstruct a criminal investigation." [Ford's pardon preempted any trial.] Clinton's sexual harassment of Ms. Jones while governor did not involve POTUS behavior and clearly was unofficial/private from context. I don't know (suspect not) if Watters did due diligence on the details of SCOTUS' ruling. They really didn't address the details if the indictment, e.g., count 1 infringes on core Presidential conduct. Unofficial or private actions do not enjoy immunity and there may be blended official/unofficial acts which may be presumed immune but evidence and context may overcome the presumption. So in returning the case to Chutkan, she needed to review whether if conduct was personal/unofficial and/or whether the evidence/context outweighed any presumption of immunity. I think the charges would have stuck on the original indictment, but Smith revised the indictment more consistent with the SCOTUS opinion.
Unsurprisingly for FNC, most of "The Five" hosts (like "Judge" Pirro) except maybe token libertarian Kennedy was sympathetic to Trump arguments that the charges are completely political, banana republic victor's justice. I completely disagree. Trump's post election 2020 meltdown is unprecedented in American history. He stonewalled returning Presidential documents and classified documents he did not own.. Any other President doing the same things would have been prosecuted. In fact, other leaders of developed democratic republics have been prosecuted for behavior in office, including from France, Italy, Israel, and South Dakota.
