This is an occasional annual mock award for judges behaving badly. I sometimes included it in the past under an umbrella post title like "Minor Blog Awards 20xx". I think the last such post I wrote was maybe 7 years back. It could be for something like corruption or other egregious behavior or in this case, a bad opinion or ruling as in these cases. Keep in mind I'm not a trained lawyer, and they may disagree.
Chief Justice John Roberts
The familiar reader knows that I have been a Never Trumper from the get-go. Yes, I find him personally contemptible (things like his misconduct towards women, such as cheating on his current wife with a porn actress and trying to use eminent domain to get an old woman's home so he could expand limo parking for his nearby casino). I also loathe his lies about unauthorized aliens. but I don't really have Trump Derangement Syndrome.. I want him to stand accountable for his misconduct; I don't necessarily want to see an elderly man die in prison.
Trump never acknowledged the Constitutional limits on his authority as POTUS. To me it's not surprising that Trump was impeached twice; it's obvious he could have been charged on other grounds as well. Take, for instance, his decision to transfer DoD funds to build his wall after Congress explicitly rejected to authorize his requests. Trump asserted "emergency powers" to rationalize power grabs on the border, tariffs and cOVID-19. Not only did Trump abuse his foreign policy to attempt extorting Zelensky into opening an investigation of Joe Biden which he thought might disable Biden's Presidential run, but he put an illegal freeze on Ukraine aid (Ukraine had strings attached to US military aid on progress to deal with corruption, but Trump never expressed any concerns with corruption in his infamous phone call to Zelensky and there was a May Congressional committee hearing on relevant compliance). And Trump issued innumerable dubiously Constitutional executive orders. (He's not the only recent POTUS to do so, but just because others also abused the Constitution does not excuse his own actions.)
Trump asserted that his post-election federal court cases (on J6 and classified documents) violated his presidential immunity.. There were other self-serving phony claims like one couldn't prosecute a crime without impeachment of a President. While SCOTUS has generally supported civil (qualified) immunity for government personnel, criminal immunity is a different matter. Federal legislators do have it mostly as a balance of separation of powers (Article 1 Section 6) (although the courts rejected former Sen. Menendez' reference to it in his corruption case). The issue of criminal immunity has been different. Article 1, Section 3, Clauses 6 and 7 is quite clear: "Judgement in Cases of Impreachment 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: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law." To paraphrase, conviction on impeachment trial has limited sanctions (removal/ineligibility from office) so you can still try the convicted POTUS in court. Obviously, the POTUS is not immune from prosecution as a general principle.
We already knew this from the case of Nixon. Nixon had been indicted in May 1973, early in his second term. The JD has a policy against prosecuting an incumbent POTUS. that was why President Ford pardoned Nixon, probably costing Ford the 1976 election. Yet Trump seems to think he had think he had blanket/absolute immunity with zero foundation in the Constitution or prior SCOTUS decisions. Trump decided to appeal the J6 case on immunity grounds he lost in district court and the court of appeals but SCOTUS picked it up, probably thinking the unprecedented case deserved special, definitive resolution.
The 6-3 decision had a majority opinion written by Chief Justice Roberts basically argued there's hierarchy of duties from specific constitutionally enumerated powers which are immune from prosecution, such as acting as Commander in Chief, granting pardons, conducting foreign policy, vetoing , etc. Then there are other shared responsibilities, like treaties and appointments, where the presumption is of of immunity. Also, there are related restrictions on evidence, presumably to preclude successors from fishing for grounds to prosecute. Then there are unofficial acts such as personal conduct or as a candidate, which are not immune.
Roberts denied that this implied a double standard or violated the rule of law. Also, the court refused to comment on the relevance of its framework on either federal case.
Why do I object? First, it was an intervention into the election. Voters had the right to know if a jury would find Trump guilty of alleged crimes. The immunity case and SCOTUS' new standard had the net effect of deferring the trials and a possible constitutionally dubious attempts by Trump to have the cases dropped and/or pardon himself, in effect putting himself above the law, which Roberts denies.
But in fact I have issues with the idea President can commit crimes in his official duties without accountability. I can understand that a war widow may want to sue over a death resulting from a botched military operation. But what if a President deliberately acts against the law, for example, spends money against the specific appropriations of Congress, like diverted funds from DoD to build, or when he illegally stopped Ukrainian military aid in his attempt to use Zelensky to investigate Biden in the hopes of sabotaging his 2020 Presidential campaign.
Let me give an immediate example that comes to mind, basically because Trump is a very corrupt individual; think, for example, how he tried to host a summit at one of his hotel properties until the news media found out. I could easily see Trump doing a Blagojevich (essentially Obama's old Senate seat was his "golden ticket" to deal to his advantage) quid pro quo. Given that pardons are one of a President's fundamental powers, would prosecution treat it like Blagojevich's offense? Or would Trump think he's immune because of the court decision?
I'm not a trained lawyer but I think he could still prosecuted for reasons that former Sen. Menendez (D-NJ) found that constitutional legislator immunity wasn't applicable to his corruption cases (and it didn't shield Matt Gaetz from a criminal investigation). Obviously he could be impeached, which is more of a political trial. The real problem I see is Trump sees the immunity ruling as lowering the risk of prosecution, which may embolden him, thinking the same rules don't apply to him.
I don't believe the immunity ruling really helps Trump's defense against the 2 federal indictments because Trump's misconduct basically as unofficial/personal. He was acting as a candidate, not officially. Smith maybe had to rephrase the indictments to emphasize that nuance.
The other award "winner' also has to do with the Trump criminal cases.
Judge Aileen Cannon
Federal Classified Documents Case Against Trump
Judge Cannon was a 2020 Trump nomination to the federal judiciary, and her handling of the classified documents case has earned her a reputation as "Trump's judge"; in fact, national media have reported she was under consideration as Trump's AG nomination.
Judge Cannon has made some unexpected moves in the handling of Trump's case including agreeing to the defense's request for a special master. Via Wikipedia;
On September 5, 2022, Cannon granted Trump's request for a special master to review the seized materials for attorney-client privilege and executive privilege and ordered the Justice Department to stop using the seized material in its investigation until the special master's review was complete or until a further court order. In her ruling, Cannon cited exceptional "stigma associated with the subject seizure", since Trump was a former president, as well as the potential for great "reputational harm" from any future indictment based on "property that ought to be returned"
Basically, the relevant Court of Appeals reversed major parts of her rulings, allowing the prosecution to resume their activities. She continued slow-walking the case and eventually dismissed the case, dubiously arguing Special Counsel Jack Smith as constitutionally ineligible to handle the case. in large part, Cannon's argument is largely based on an unjoined Justice Thomas opinion challenging special counsels' authority which essentially has been implicitly accepted since the relevant Watergate precedent against Nixon and more recently the Russiagate Mueller investigation:
Is Judge Cannon right that Jack Smith’s appointment was unconstitutional when so many other courts have turned a blind eye to the argument? Calabresi, Lawson and Cannon have a colorable argument that Smith’s appointment violated the appointments clause of the Constitution. The appointments clause requires the President to appoint, and the Senate to confirm, all “Officers of the United States,” except for “inferior Officers” who can be appointed by others without Senate approval if they are authorized by law to make the appointment. U.S. Const, Art 2, Sec 2. Cls 2. [Smith claimed to be an inferior officer/]
The Courts have recognized, however, that mere “officials” and “employees” can be hired without authorizing legislation, presidential appointment or Senate approval. The distinctions between “Officers,” “Inferior Officers,” “Officials” and “Employees” is not defined in the Constitution, and depends on factors like power, authority, control, and permanency.
But even if Judge Cannon’s reasoning is upheld, her disposition of the case was wrong. Dismissal is an extreme remedy that should not be used when well-settled law, that has been reasonably relied on for decades, is overturned, and where the defendants’ rights would not be materially harmed by the technical deficiency that previously occurred. Rather than dismissing the case, the Court should allow the Justice Department to fix the technical problem.
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