Trump Fails On Presidential Immunity Claim
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2024-02-08 07:00 by Karl Denninger
in Editorial , 304 references Ignore this thread
Trump Fails On Presidential Immunity Claim
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The 57-page opinion can be accessed here if you want the "whole story."

I'll summarize and comment instead of going through it line-item by line-item.

The first of two primary prongs of his argument were that Trump was immune as President for any act under the broad penumbra of his official duties.  That is, so long as he was acting as President and not in a purely-private capacity his actions were immune from legal challenge.  This found no purchase with the court, and frankly I'm sort of surprised he attempted it, given the historical record even in the context of Presidents.

For example, Nixon was famously pardoned by Ford who stated at the time he did so in order to prevent an indictment which he expected would otherwise follow Nixon's resignation.  Nixon's actions, of course, took place in the Oval Office and thus certainly were at least as "in the broad penumbra" of the Presidency as were Trump's.  I would have been quite surprised, given that record, if the court agreed with Trump.  In addition you had Clinton and Lewinsky -- there the issue was not indictment but Clinton did agree to forfeit his law license and accept other sanction in exchange for not being charged post-office -- and again, the actions in question, some of which allegedly took place under his desk in the Oval Office, certainly were "within the broad penumbra" of the Presidency.

Oops.

The second prong was that having been acquitted by the Senate in the impeachment trial on the same basic charge Trump was immune under double jeopardy.  But, as I pointed out in my many "peachy podcasts" at the time, impeachment is a political act, not a criminal one.  You can be sued and then prosecuted (or the other way around) without implicating double-jeopardy because civil suit is not a criminal prosecution either, and further once again the record in Nixon's case shows that even though there was no conviction since he resigned in front of impeachment proceedings that were nearly-certain to come that a predicate impeachment and removal was necessary as a lesser-included has very little support and, in fact, if you go beyond the Presidency it has none at all.  There have been judges and other officials who have been impeached, not convicted in said impeachment and then charged criminally for their conduct and further, the argument during Trump's second impeachment was raised (and appears rather sound as it applies to both Nixon and Trump) that one can't impeach and convict successfully once the person leaves office.  To argue that an official can avoid a criminal charge by mere resignation in front of impeachment votes stretches credibility and, indeed, some of the Senators who voted "no" have publicly stated they did so because with Trump having left office they lost jurisdiction to impeach at all.  Maybe or maybe not, but that was the basis of their decision and the court took note of it.

The implication of this decision however extends materially beyond Trump and, in my opinion, that's a good thing.  Right now we have a President who is claiming to have no jurisdiction to shut down the flow of migrants at the border and demanding passage of a new bill.  This is false; 8 USC 1182(f) makes clear that by mere proclamation the President can bar entry of any non-citizen person or group of people if he or she finds that such entry is contrary to the interests of the United States.  Such a decision by Biden would certainly generate lawsuits but they're losers -- the law is clear on this point and said authority is both essentially plenary in nature and explicitly, as codified in said law, granted by Congress.  As such it is at least as valid if not more-so than any "new bill" that could be passed.

Why is this important?  Because as noted in the opinion The President, like all other officials, takes an oath to faithfully execute the laws of the United States and the Executive, which he heads, is the branch with actual authority and in fact the only branch with authority to make arrests, detain, prosecute, jail and (in the case of non-citizens) expel people.  As such a willing and intentional violation is subject to future prosecution including potentially derivative prosecution as an accessory should, for example, a migrant come into the country as a result of said willful refusal to act and then commit a serious crime (like murder, for example.)  This almost-certainly does not implicate, incidentally, "qualified immunity" as it has long been held that an action taken by an official that does not conform with the clear language of the law is not entitled to that protection.

While it is certainly true that we've had a paucity of Executives willing to actually enforce the law over the last few decades (witness 15 USC Chapter 1 for more examples than you can count) it remains a fact that this decision is a two-edged sword and might well cut equally well against both Biden and the members of his Administration when it comes to their actions related to the border once his administration leaves office.

People have said "well that means you could prosecute President {X} because he droned people!"

Yes, indeed it does mean exactly that, if such an act is a crime under US law.  Being President does not make you immune from law in the United States; that is one of the defining differences between the US and those nations that have other forms of government.

If we are a nation that does not recognize "The Divine Right of Kings", and in fact America was in no small part founded on the very premise that such is ethically and legally bankrupt, then its hard to find fault with the court's analysis in this case.

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Invisiblesun 884 posts, incept 2020-04-08
2024-02-08 08:30:26

The one sympathy for granting presidential immunity is "Lawfare" by which persons exploit the judicial system to destroy another person. If people faced punishment for perjury and giving false witness then Lawfare would collapse and the threat of prosecutorial injustice greatly reduced.

But expanding presidential immunity specifically and political immunity generally, is not a solution and such privileges should be eliminated. The ideal of American liberty is no man or woman is above the law and the law is no respecter of persons. Obviously, this ideal does not exist in practice and this failure is evidence of our nation's decline.
Tickerguy 202k posts, incept 2007-06-26
2024-02-08 08:33:19

The solution to "Lawfare" @Invisiblesun is for the people to decide that they've had enough of that shit and start running the scoreboard, fully-aware that if you do it you will be punished for doing so, up to and including being executed.

That's ok -- there are far more of "us" than "them", and if you can manage more than one before they get you then the numbers are even better. Its not possible to figure out who in advance if you say nothing to anyone IN advance and in particular if you eschew things that can be reasonably used to "mark" you in the act (e.g. firearms.)

They all know this, by the way. The people engaged in "Lawfare" are arrogant assholes but they are not stupid, and if a few them wind up cut into little pieces and strewn all over the sidewalk it'll stop immediately.

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"Perhaps you can keep things together and advance playing DIE games.
Or perhaps the truth is that white men w/IQs >= 115 or so built all of it and without us it will collapse."
Ocdawg 575 posts, incept 2019-03-14
2024-02-08 09:00:31

Ok KD, 100% with ya (these postings here and on X as well)... so take the literal out of this question:

WHY IS NO ONE SUING BIDEN FOR NOT PROTECTING THE BORDERS???

There HAS to be SOMEONE with a sack and in a position to do so... and not worried about being "Clintonized."

So... WHY????
smileysmileysmiley

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"Think of how stupid the average person is, and realize half of them are stupider than that."- George Carlin
GO DAWGS!!! Quietly reloading.....
smileysmiley

Reason: Spelling
Tickerguy 202k posts, incept 2007-06-26
2024-02-08 09:01:09

smiley

Oh, you think someone like DeSantis REALLY doesn't want all the illegals here? Of course he does. They spend, which is GDP. They demand housing, which drives up the price. And so on.

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"Perhaps you can keep things together and advance playing DIE games.
Or perhaps the truth is that white men w/IQs >= 115 or so built all of it and without us it will collapse."
Hapie 374 posts, incept 2020-07-25
2024-02-08 09:48:21

A crime gets prosecuted only if a prosecutor decides to prosecute. Even before that, no arrest is made even if there is ample evidence and suspicion of a crime. This gives tremendous subjective powers to the executors of the law.

Why should such a subjective power exist? Given the potential for abuse and proven rampant abuse by politicians and their minions, we end up with "Lawfare".

The subjective power needs to be replaced by objective criteria for selective prosecution, given the lack of resources to prosecute all crimes especially victimless crimes. One simple criteria could be the severity of the crime and the number of victims affected. Obviously, genocidal actions, treason, and facilitating invasion by open borders should be on top of the list.

We are no longer a nation of laws, only a self-destructive nation of political theater and exploitation.
Mjeff87 4k posts, incept 2021-11-22
2024-02-08 09:48:42

I still say Abbot is slinging ILLEGAL ALIENS all around the country as part of the uniparty (small u). It makes for great theater, but they are deliberately moving them everywhere on purpose. Right under everyone's (well, almost everyone) noses.

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Si Vis Pacem, para Bellum

You'll get less than you desire, but more than you deserve
Jen 155 posts, incept 2011-01-02
2024-02-08 09:48:45

Ocdawg - I bet anyone who tries to sue will be declared as not having standing to sue (which is, in my opinion, usually bullshit).
Although I recall reading recently about a woman who's suing because her daughter was attacked by an illegal, don't recall specifics who she's suing.

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Yes, there are stupid questions.
Jdough 304 posts, incept 2012-05-04
2024-02-08 10:17:03

@Mjeff87 - as someone who lives in Texas I agree. I'm not sure what hot wheels' motivation truly is, but it could be as simple as red meat for his base. The Texas GOP is obsessed with growth and knows damn well that the state is chock full of foreigners, both legal and illegal, and don't care as long as they can keep putting up subdivisions of plywood mcmansions and strip malls. There are entire Colonias of illegals out in the countryside here that are de facto protected from immigration because the developers of said Colonias are politically connected.

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Explain it to me like I took an experimental genetic therapy for a donut - Anonymous
Twainfan2 1k posts, incept 2018-12-04
2024-02-08 10:19:25

Can he just thud already? Actually can all of them do that?
Andrew 314 posts, incept 2014-09-24
2024-02-08 10:19:40

@Tickerguy driving up housing prices in most states increases property taxes.

Not sure about Tejas, I'll have to look, but there's very few states who have no property tax.
More demand=more state revenues
Tickerguy 202k posts, incept 2007-06-26
2024-02-08 10:23:09

Well, correct.

You will not solve this problem so long as the perversion goes unanswered.

The thing is this -- if the people decide they've had enough of that shit it stops immediately. Yes, a few will die and be imprisoned in the process, but it WILL STOP. There are roughly 300 of "us" to every one of "them" even including EVERY SINGLE COP at all levels -- federal, state and local.

They cannot win and further, they cannot prosecute and jail out of it either because then production collapses and they die just as easily in that regard as everyone else.

We all get the government policies we tolerate. They end when our tolerance ends.

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"Perhaps you can keep things together and advance playing DIE games.
Or perhaps the truth is that white men w/IQs >= 115 or so built all of it and without us it will collapse."
Greenacr 996 posts, incept 2016-03-15
2024-02-08 10:25:19

I think Trump's team knows that the absolute immunity argument is going to fail. While they would like the legal win, I think this is more about running out the clock on Smith's prosecution so that it is postponed until after the election.

Curious if the Supreme Court will take this issue up or let the 5th Circuits decision stand.

Personally, my thoughts are that Trump can not get a fair trial in DC and I am fine letting the American Public judge his guilt through the election process.
Lowrents 19 posts, incept 2023-02-23
2024-02-08 10:29:25

As a native Texan who still owns real estate there, the dirty little secret is Texas property taxes have been out of control most of my adult life. You can say all you want about Texas being a "no income tax state", rest assured they will bankrupt you with property taxes.
Tickerguy 202k posts, incept 2007-06-26
2024-02-08 10:29:16

Odds are Smith is already boned on trying him before the election. Any criminal defendant has many ways to slow the process if they want to, and another year of delay is trivially easy at this stage of the game. Smith CAN'T push the schedule because if he tries he will lose (justifiably so) on appeal as his ONLY defense against deliberative process is that its vexatious, and he CAN'T admit (ever!) that his purpose is prevent Trump's election because then the entire thing falls apart on him as you can't charge someone with "I don't want him to win."

The other interesting case is before the USSC today on the Colorado ballot ban. My suspicion is that the Supremes toss that as there's no judicial record at the federal level that Trump did what is alleged (no trial as of yet) and the Colorado system has no jurisdiction over things that didn't take place there. They can't find him "guilty" via a summary process and without said finding you'd have to twist things pretty badly to meet the threshold.

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"Perhaps you can keep things together and advance playing DIE games.
Or perhaps the truth is that white men w/IQs >= 115 or so built all of it and without us it will collapse."
Tickerguy 202k posts, incept 2007-06-26
2024-02-08 10:29:56

Yep @Lowrents which is why I didn't consider Texas for relocation when I left Illinois generally, and then looked again when leaving Florida and found the same thing. Nope.

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"Perhaps you can keep things together and advance playing DIE games.
Or perhaps the truth is that white men w/IQs >= 115 or so built all of it and without us it will collapse."
Greenacr 996 posts, incept 2016-03-15
2024-02-08 11:22:37

I agree with you that the Supreme Court is likely to rule in Trumps favor on the Colorado Ballot issue. The question is whether it will be a split decision or unanimous. Would surprise me to see a 6 - 3 or even a 5 - 4 split.
Metalqueen 502 posts, incept 2021-09-10
2024-02-08 11:22:42

@Mjeff87

Kudos for pointing out again the reality of what Abbott's little "let's bus them to sanctuary cities" stunt is really about. I seriously want to smiley every time I hear some idiot "conservative" praise that putrid WEF sponsored asshole. There is NO ONE currently in power on the side of most Americans.

That is also the reason I get pissed smiley whenever the same "conservatives" pontificate how all the people in said cities "deserve" these illegals being dumped on them. There are many people in these cities (in fact those who make them function) who have realized that there is no way of voting this shit out at this point. They are either looking to get out if they are able, or if unable to leave try and lay low and get by the best they can.

A huge number of New Yorkers are PISSED OFF about the current situation - but you won't hear that from the media, including the so-called "conservative" portion of such. They WANT you to think these cities are full of nothing but shitlibs and gimme-dats. Don't buy their bullshit.

As for Trump, fuck him. He could have dealt with these problems when he actually had some power to do but didn't. He can cry me a river with his legal problems.

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Make smiley building great again!
Jdough 304 posts, incept 2012-05-04
2024-02-08 11:24:57

@Lowrents and @Tickerguy -
This past year some property tax relief was passed, it ups the homestead exemption from school taxes, generally the largest component of the bill, to $100k and also uses "compression" to buy down the rates temporarily. One faction wanted to give all the relief to owner occupiers via the homestead exemption but hot wheels showed his true colors and pushed for compression to please his corporate masters. I think compression is low value because it is predicated on the current budget surplus which means there is no guarantee either legally or logically that it continues in the face of an economic contraction. Really depends on your personal situation as to how much relief you will see from it, I think they said the average is about $1000 or $1500 off of what is probably now a 6-7k average bill.

In general you both are very correct about the property taxes here being excessive, and in reality they are worse than income taxes because if you lose your income, the property tax is still due.

I am trying to find my retirement locale and I still haven't completely decided whether the positives of Texas outweigh the property tax issues, with the one major caveat that I absolutely have to get out of the high cost urban areas to even consider staying, even with my appraisal increase capped at 10% a year (LMFAO) and having bought a decade ago when prices were low. Out in the countryside real estate prices are much lower and there are strategies that can be used with Ag valuations that make it even better, I think it would be possible with these new exemptions passed to find a place that has property tax burden as low as many other states, for the time being at least. Long term though, the gov funding issues will persist as long as the state pursues this growth at any cost strategy.

The other thing I don't see mentioned much about Texas are the insane utility costs due to the excessively hot climate and stressed water supplies due to growth. A lot of people are easily paying over $500 a month in electric and water charges here.

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Explain it to me like I took an experimental genetic therapy for a donut - Anonymous
Raven 17k posts, incept 2017-06-27
2024-02-08 11:25:31

Not only is TX horrible on property taxes, but also utility costs and business fees and regulation. Only very large corporations can easily navigate its systems.
Baltgayveteran 334 posts, incept 2021-09-16
2024-02-08 11:25:39

Obama ordered a drone strike on a cafe in Yemen which killed a 16 year old American (and I don't think the kid was accused of being a terrorist, but his father was). Obama could be prosecuted for murder, manslaughter, etc.

@Greenacr: "...Personally, my thoughts are that Trump can not get a fair trial in DC and I am fine letting the American Public judge his guilt through the election process."

No Republican or conservative (or probably any White person) can get a fair trial in any Communist Dumbocrap jurisdiction.

@Tickerguy: "Odds are Smith is already boned on trying him before the election...."

According to a filing by Ed Meese, Smith was improperly appointed and all his acts are null and void. Not holding my breath that the court will agree with that.
Ingar 765 posts, incept 2017-02-14
2024-02-08 11:51:20

CIA plant black jesus seems to be immune from prosecution for the drone murder of an American citizen. Maybe immunity from prosecution is proportional to the melanin content of the skin and or deep state connections.
Cmoledor 3k posts, incept 2021-04-13
2024-02-08 11:51:27

I'm with Jeff and metalqueen. Abbot is simply helping to entrench the invaders deeper into the interior. I'm also with Twainfan2. Can't they all just fucking die already ??

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The whole world is one big fucking scam
Its a big club and we aint in it. But we damn sure pay the dues. Rangeishot
God will NOT help anyone. Prayer is only worthwhile as a boost to
Themortgagedude 12k posts, incept 2007-12-17
2024-02-08 11:51:35

I think his immunity argument falls flat. But to convict him in this case is beyond stupid. We all know the election was tampered with. Did it change the outcome I can't tell you. But putting ballots thru multiple times in Georgia??? And some of the other states it's almost statistically impossible to have the outcomes they had without massive fraud. I forget the states but I did a little back of the envelope math and there had never been such a difference in d/R from one state to another from one election to another. The results damn well deserved to be questioned.

And as for the insurrection - hell he asked for increased security. What kind of idiot asks for more security to be placed prior to his insurrection he planned.

I don't like Trump but I'm voting for him because he pisses off all the people I can't stand. I'd prefer Rand Paul but no one seems to be asking my opinion.

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I think its time we ask ourselves if we still know the freedoms that our founding fathers intended for us. Ronald Reagan 1964
Themortgagedude 12k posts, incept 2007-12-17
2024-02-08 11:51:50

The improper appointment argument would be a convenient way to make this go away and still give the Uniparty the talking points they want prior to the election.

I just wonder when Rudy is going to release the entire contents of Hunter's laptop. I'm guessing about October 10th.

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I think its time we ask ourselves if we still know the freedoms that our founding fathers intended for us. Ronald Reagan 1964
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