On August 1, 2023 former President Donald Trump was charged by federal Special Counsel Jack Smith with the following 4 crimes:
- Conspiracy to Defraud the U.S.
- Conspiracy to Obstruct an Official Proceeding
- Obstruction of and Attempt to Obstruct an Official Proceeding
- Conspiracy Against Rights
All 4 federal charges relate to Trumps efforts to obstruct or stop the January 6, 2021 congressional certification of President Joe Biden’s election victory. The indictment describes how Trump repeatedly told supporters and others that he had won the election, despite knowing that it was false, and how he tried to persuade state officials, then-Vice President Mike Pence and finally Congress to overturn the legitimate results.
After a weekslong campaign of lies about the election results, prosecutors allege that Trump sought to exploit the violent rampage at the Capitol by pointing to it as a reason to further delay the counting of votes that sealed his defeat. In their charging documents, prosecutors referenced a half-dozen unindicted co-conspirators, including lawyers inside and outside of government who they said had worked with Trump to undo the election results and advanced legally dubious schemes to enlist slates of fake electors in battleground states won by Biden.
Trump has pleaded not guilty to the 4 charges and has defended against them by saying he has Presidential Immunity for his action of January 6, 2021 and his efforts to stop the certification of election results were within his powers and authority as president. The Trump campaign has called the charges “fake” and asked why it took 2 1/2 years to bring them.
CHRONOLOGY OF APPEAL
On December 12, 2023 Special Counsel Jack Smith asked the US Supreme Court to immediately step in to decide whether former President Donald Trump has immunity from prosecution for his actions seeking to overturn the 2020 election. Smith wrote in his petition to the US Supreme Court:
“This case presents a fundamental question at the heart of our democracy: whether a former President is absolutely immune from federal prosecution for crimes committed while in office. … [it is] of imperative public importance … that the high court decide the question … [so that the trial, currently scheduled for March, can move forward as quickly as possible.]”
Earlier, U.S. District Court Judge Tanya Chutkan, who is presiding over the election interference case, denied Trump’s motion to dismiss his indictment on presidential immunity and constitutional grounds, prompting Trump to appeal and ask for the case to be put on hold. In order to prevent a delay, Smith sought to circumvent the appeals process by asking the Supreme Court to take up the case and decide the issue on an expedited basis.
On December 22, the Supreme Court denied special counsel Jack Smith’s bid to fast-track a dispute about whether former President Donald Trump should enjoy absolute immunity from prosecution for misconduct during his time in the White House. The court did not offer a reason for its decision. The action reverted to the federal appeals court in Washington on the question of immunity.
On February 6, 2023, the federal appeals court ruled that Donald Trump is not immune from prosecution for alleged crimes he committed during his presidency, flatly rejecting Trump’s arguments that he shouldn’t have to go on trial on federal election subversion charges. The judges made it clear that Trump’s actions could be prosecuted in a court of law.
The judges cited the public interest in accountability for potential crimes committed by a former president, and how that overcame Trump’s argument that immunity was necessary to protect the institution of the presidency. They flatly rejected Trump’s claim that his criminal indictment would have a “chilling effect” on future administrations.
https://www.npr.org/2023/12/22/1221334637/supreme-court-trump-immunity
https://www.cnn.com/2023/12/11/politics/special-counsel-trump-jack-smith/index.html
US SUPREME COURT AGREES TO HEAR IMMUNITY CLAIM
Trump appealed the to the United States Supreme Court the Court of Appeals decision that he is not immune from prosecution and seeking a “stay of the criminal case” by the Supreme Court until they render a decision. A key part of Trump’s legal strategy has been to delay his criminal cases until after the 2024 election. In response to the Trump appeal and the request to place a hold on the proceedings, Special Council Jack Smith filed a request to treat the Trump stay application as a petition for a writ of certiorari and to treat the case in an expedited manner.
On Wednesday, February 28, the US Supreme Court granted CERTIORARI and agreed to hear the case and issued an expedited scheduling order for briefing. Following is the order:
“The application for a stay presented to The Chief Justice is referred by him to the Court. The Special Counsel’s request to treat the stay application as a petition for a writ of certiorari is granted, and that petition is granted limited to the following question:
Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.
Without expressing a view on the merits, this Court directs the Court of Appeals to continue withholding issuance of the mandate until the sending down of the judgment of this Court. The application for a stay is dismissed as moot.
The case will be set for oral argument during the week of April 22, 2024. Petitioner’s brief on the merits, and any amicus curiae briefs in support or in support of neither party, are to be filed on or before
Tuesday, March 19, 2024. Respondent’s brief on the merits, and any amicus curiae briefs in support, are to be filed on or before Monday, April 8, 2024.
The reply brief, if any, is to be filed on or before 5 p.m., Monday, April 15, 2024.”
https://www.supremecourt.gov/orders/courtorders/022824zr3_febh.pdf
ANALYSIS AND COMMENTARY
Much discussion has occurred by legal analysts on the timing of the Supreme Court’s intervention and whether its involvement means that a trial might not be able to take place before the election. It took the Supreme Court almost two weeks to decide how to act on Trump’s request that it hear his appeal.
A GIFT OF DELAY
It’s a time frame that prompted criticism that the court was playing into Trump’s desire to drag out the process until after the election. Trump’s legal tactics in all his criminal cases has been to try and delay, delay and delay all the trials until after the November election. That would mean in the Federal cases if he were to go to trial and convicted after being elected president, he could simply pardon himself.
Simply put, the Supreme Court has given Trump the “gift of delay” when they agreed to hear Trump’s claim of immunity. The net effect is that the court suspended the proceedings in Judge Tanya Chutkan’s U.S. District Court for at least two to five months, leaving serious doubt as to whether the case can be tried before the election.
If the polls are to be believed, a criminal conviction will persuade a significant number of voters to abandon Trump. The Supreme Court could have let stand the D.C. Circuit’s thorough, bipartisan opinion stand. Instead, the Supreme Court agreed to hear the case delaying the proceedings almost a full 2 months and who knows how long it will take the court to issue an opinion.
There’s plenty of room for debate as to why the court acted as it did by first refusing to expedite the case when Smith originally pushed to have it heard before the Court of Appeals ruled and now after the appellate court ruled. But there’s no doubt about the impact. Should the country awaken on November 6 to a second Trump presidency, history will reflect that the Supreme Court played a critical role with its rulings.
ONE PRECISE LEGAL QUESTION
It is extremely critical to note that the United States Supreme Court in its one-page order agreeing to hear the case said it will hear oral arguments the week of April 22 and consider and decide only one precise legal question:
“Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
What is also critical to note is the Supreme Court narrowed the case even further by refusing to consider Trump’s secondary argument that presidents cannot be prosecuted if they were previously subject to impeachment but then acquitted by the Senate as what happened the second time Trump was impeached.
The language of the Supreme Court order does not reflect how either Special Counsel Jack Smith or Trump’s defense attorneys have framed the case.
Trump’s Defense lawyers ask the justices in court appellate briefs to decide “whether the doctrine of absolute presidential immunity includes immunity from criminal prosecution for a president’s official acts,” notably making no distinction between whether that person is a current or a former president. Former President Donald Trump argues his efforts in 2020 to overturn the election results were a core part of his presidential duties and protected free speech meaning he should have absolute immunity from any criminal prosecution.
The lower courts in the case have rejected Trump’s immunity claim. U.S. District Court Judge Tanya Chutkan, who will preside over the eventual trial, ruled categorically that former presidents can be prosecuted for “any criminal acts undertaken while in office.” The U.S. Court of Appeals for the District of Columbia Circuit ruled along similar lines, although it assumed for the basis of the decision that Trump’s conduct constituted official acts.
Special Counsel Smith meanwhile argues that the court should decide “whether a former president is absolutely immune from federal prosecution for crimes committed while in office.” It makes no reference to whether the alleged conduct involves official acts. Special Counsel Jack Smith argued that there is no precedent for such a broad claim of immunity for actions taken while in office.
Randall Eliason, a former federal prosecutor who teaches at George Washington University Law School, had this to say about the court’s order and narrowing it down to one issue:
“My best guess is that they don’t want to leave the impression that there’s never any presidential immunity under any circumstances and they want to write something more nuanced.”
Norm Eisen, who worked for House Democrats during the first unsuccessful effort to impeach Trump, described the court’s language as “extremely carefully crafted” in part to narrow the issue. Eisen said it signals the court will reject Trump’s “crazy absolute immunity idea.”
The Supreme Court’s framing makes it clear that it is considering only immunity for a former president and conduct that may be an official act. Jack Goldsmith, a professor at Harvard Law School who served in the administration of President George W. Bush said the Supreme Court’s framing of the issue suggest the court might conclude that presidents cannot be prosecuted for acts central to their role, such as ordering military actions, issuing pardons or firing officials. Goldsmith said such a ruling would be a rejection of Trump’s broad immunity claims while protecting some core presidential functions that would “not unduly chill a president in office from exercising key powers”.
In weighing the official acts issue, the Supreme Court may also take into account a separate case involving civil claims against Trump for his role on January 6, 2021. In that case, a different panel of judges on the same appeals court in Washington rejected his immunity claim, ruling that he was not engaged in official acts because he was acting in his capacity as a candidate for office. Trump opted against appealing that case to the Supreme Court.
UNCHARTERED TERRITORY
The Supreme Court has now entered into uncharted territory. It was never required to weigh in when former President Richard Nixon potentially faced prosecution after the Watergate scandal because President Gerald Ford issued a pardon.
Trump puts much weight on a 1982 ruling in a case called Nixon v. Fitzgerald, also involving Nixon, which addressed presidential immunity in a civil case. Then, the court ruled that presidents have immunity when the conduct in question was within the “outer perimeter” of their official duties.
Special Counsel Smith counters saying that was not a criminal case, meaning its application may be limited.
The link to relied upon and quoted news source material is here:
LEGITMACY OF UNITED STATES SUPREME COURT QUESTIONED
No President is above the law, and when they break it, they should be prosecuted. There should be no Trump exception. It’s downright disgusting that the United State Supreme Court has even agreed to hear Trump’s Immunity claim in his federal criminal prosecution. It was a no brainer for the Judge Tanya Chutkan as well as the Court of Appeals. Not so much for a court packed with 4 Trump disciples.
Conservative Republican Associate Supreme Court Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett were all appointed to the United States Supreme Court by former President Donald Trump and for that reason they have a conflict of interest, they cannot be fair and impartial and should disqualify themselves from hearing and ruling on the case. Republican Conservative Justice Clarence Thomas as well should disqualify himself from deciding the case given that his wife Ginni Thomas supported Trump’s effort to overturn the 2020 election results and attended a rally that preceded the storming of the Capitol by Trump supporters.
Conservative Republican Associate Supreme Court Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett are clearly indebted to Trump for their lifetime appointments. They will likely do whatever they can to find that Trump did nothing wrong on January 6 nor with any of his efforts to overturn the election results in other states as they agree with Trump’s assertion of immunity. All 3 will likely bend over backwards to find that former President Trump had presidential immunity from criminal prosecution for conduct on January 6 proclaiming it was protected free speech. Watch as the 3 justices do whatever they can to delay any ruling until after the election.
Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett have joined Conservative Republican Chief Justice John G. Roberts, Jr. and Associate Justices Clarence Thomas and Samuel A. Alito, Jr. to marginalize Progressive Democratic Progressive Associate Justices Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson.
The 6 appointed Republican Justices have already made a profound difference with their judicial activism over the last 2 years. At the end of June, 2023, the United State Supreme Court issued 4 major decisions that were highly anticipated and with great concern confirming it has become a far right wing activist court. The first was the court’s rejecting an attempt to empower legislatures with exclusive authority to redraw congressional districts without court intervention. The second struct down decades of affirmative action in college admissions. The third ruled that a Christian business owners can discriminate and withhold services to the LGBTQ+ community based on religious grounds. The fourth invalidated President Joe Biden’s student loan debt relief plan. Then there is the matter of the Supreme Court reversing Roe v. Wade and 50 years of precedent and denying a woman’s right to choose an abortion and leaving it up to the state’s.
As the saying goes, elections have consequences. The 2024 presidential election is again shaping up to be one of the most consequential elections in our history where Supreme Court decisions will be on the ballot as well as the control of congress, not to mention our basic right to vote in an election.
A story has been told and retold about founding father Benjamin Franklin. Franklin was walking out of Independence Hall after the Constitutional Convention in 1787, when someone shouted out, “Doctor, what have we got? A republic or a monarchy?” To which Franklin supposedly responded, “A republic, if you can keep it.”
What we have now is a Republican “politcal judicial monarchy” consisting of 6 conservative Republican Justices all dressed up in their black ropes with gavels replacing scepters and a courtroom replacing a royal thrown room as they render their decrees of justice to carry out the will of Der Führer Trump and his Trump Republican Party.
The link to a related blog article is here: