Don’t agre.
Every excessive force claim against a cop will allege the cop violated clearly established law. If the cop raises qualified immunity, the question of clearly established law and officer conduct must be litigated.
Now we know what took the DC COA so long to rule...
- Thread starter cosmickid
- Start date
Every excessive force claim against a cop will allege the cop violated clearly established law. If the cop raises qualified immunity, the question of clearly established law and officer conduct must be litigated.
Agree. This is why immunity cannot be determined without an evidentiary hearing. The CA noted whether Trump incited an insurrection (which was never charged) are unproven allegations.
He injected himself "into a process, the counting and certifying of the Electoral College votes, in which the President has no role." In which the president has no role. Once again, in which the president has no role.
Take the loss and move on. At this point it appears that you're simply throwing shit at the wall and hoping something sticks.
Last edited:
Sounds like a fair outcome to me … given the complaints the DC four of appeals took a short cut with the short deadline … what “standards” would the full panel use?
The full circuit already voted 11-0 to reject Trump's appeal for a full hearing on the gag order. How many members do you think will switch their vote and choose to grant an enbanc hearing for Trump's attempt to reverse an even more solid ruling by Chutkan that has unanimously and forcefull already been confirmed by the panel?
Trump doesn't have a prayer for reversal at that level. He just wants to try and keep the stay in force while 11 seperate judges compose and compile their decisions. That's why the panel ruled that the only stay could come from SCOTUS, to keep Trump from abusing the process...
I don't think SCOTUS will even accept the appeal/motion for stay.
Very possible, since a stay requires more votes (5) than granting cert (4). Imho if Trump doesn't have the votes for a stay, the chances of a favorable SCOTUS ruling are pretty low. And the rejection of a rehearing on the gag order by the full DC CA may be instructive with regards to SCOTUS
The DC circuit has a 7-5 Dem appointed majority. But of those 5 Pubs Henderson (who was on the panel) is a Bush appointee and the other 4 are Trump appointees. Yet not a single Trump appointee was willing to vote yes on Trump's attempt to get the entire Circuit to rehear the gag order issue. Clearly within that court Chutkan is viewd as a stellar judge with solid opinions, which is why Trump is likely dead in the water at that level
SCOTUS likely sent Smith's original attempt to gain cert back to DC to see how it fared there. I gotta believe that the full circuit's unanimous refusal to rehear Trump's frivilous gag order appeal, combined with the panel's forceful unanimous rejection of immunity will weigh heavy when it comes to SCOTUS, even among the Trump appointees. So I think you're right and if Smith responds within the next 24-48 hours we could get a decision beofre the Robert's imposed 1 week deadline...
I don’t think the Supremes want that 3-judge ruling to be the final word on Presidential Immunity. Their opinion is way too Trump- centric. There are huge issues regarding the nature of the office to be cleared up.
Smith didn't waste any time, filing his reply to Trump's request for a stay about 2 hrs ago. I'm not sure how Trump's request for a stay meets all 3 of the necessary conditions, and in fact Smith pretty much argues succinctly that Trump's appeal fails all 3 of the conditions required to warrant a stay.
The highlights, of the 39 page response...
The highlights, of the 39 page response...
That's garbage.
No other President has ever pushed the rules this far followed by serious threats to push/ignore the rest of the rules as well. Trump is the only one that has claimed absolute immunity up to and including shooting someone on Fifth Avenue and getting away with it.
Trump doesn't want a decision.
He doesn't want to lose.
He doesn't want to win.
Here's Trump's legal strategy in a nutshell:
After they take the bench, federal judges are very good at acting more liberal or more conservative than everybody thought they were before they got appointed to be judges for life.
It's almost like the Senate should not believe what nominees say during their confirmation hearings.
Yes. US presidents typically aren't serial felons and don't need to worry about immunity.
Smith, in a way, has SCOTUS boxed into a corner. He petitioned the Court for fast-track resolution of the immunity issue in December and they denied his request. If they drag their feet now and let this thing play out for months, it'll look like they're playing along with Trump's delay game. I predict a disposition of this case well prior to November '24.
I don’t either. I’ve listened to a ton of conservative, not wingnut, legal scholars on SiriusXM lately and none think Trump has a chance in the immunity claim. Only disagreements seem to be if they let current decision stand or bother with hearing arguments before letting it stand.
Can they resist taking it on simply to say that they did? That they've got the last word and by God they're going to give it?
The CA rejected absolute immunity for official actions. That isn’t the law for judges, prosecutors and other officials. They all have absolute immunity for official actions. So should POTUS.
SCOTUS must define “official action” for an official who is always on duty. The CA question at oral argument about POTUS ordering an assassination shows they don’t understand immunity.
From the CA opinion:
For all immunity doctrines, “the burden is on the officialclaiming immunity to demonstrate his entitlement.” Dennis v.Sparks, 449 U.S. 24, 29 (1980). Former President Trump claims absolute immunity from criminal prosecution for all “official acts” undertaken as President, a category, he contends, that includes all of the conduct alleged in the Indictment.
So even Trump admits, the court analyzes the allegations, not whether the allegations are true.
This is why I said judicial opinions are no better than lawyers who argue a point and Trump’s lawyers made a strategic error.
All should agree that the no immunity rule for official acts cannot stand. SCOTUS. Needs to clean up the mess.
Actually, judges and other officials do not. The opinion covers that extensively at 25-30.
I think you're right that the SCt. might need to take this up since this is an issue of first impression and very important.
But I don't understand this case and the defenses well enough and wonder why the prosecution's case isn't just that the things he's being indicted for weren't related to his "official" actions as President? The indictment lists five specific efforts to advance his conspiracy, but only two are arguably "official" actions, and they could still be discussed at trial, I think, and taken into account to prove intent, without relying on them as the basis of criminal liability.
Pg. 4-6:
The Indictment alleges that former President Trumpunderstood that he had lost the election and that the election results were legitimate but that he nevertheless was“determined to remain in power.” Indictment ¶ 2. He then conspired with others to cast doubt on the election’s outcome and contrived to have himself declared the winner.
The Indictment charges that he and his co-conspirators allegedly advanced their goal through five primary means:
First, they “used knowingly false claims of election fraud”to attempt to persuade state legislators and election officials to change each state’s electoral votes in former President Trump’sfavor. Indictment ¶ 10(a). For example, he and his allies falsely declared “that more than ten thousand dead voters had voted in Georgia”; “that there had been 205,000 more votes than voters in Pennsylvania”; “that more than 30,000 noncitizens had voted in Arizona”; and “that voting machines . . .had switched votes from [Trump] to Biden.” Id. at ¶ 12.
Second, then-President Trump and his co-conspirators“organized fraudulent slates of electors in seven targeted states . . . attempting to mimic the procedures that the legitimate electors were supposed to follow.” Indictment¶ 10(b). They “then caused these fraudulent electors to transmit their false certificates to the Vice President and other government officials to be counted at the certification proceeding on January 6.” Id.
Third, then-President Trump and his co-conspirators pressed officials at the Department of Justice “to conduct sham election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted thee lection outcome.” Indictment ¶ 10(c).
Fourth, then-President Trump and his co-conspirators attempted to convince then-Vice President Mike Pence to “use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.” Indictment¶ 10(d). When the Vice President rebuffed them, he stirred his base of supporters to increase pressure on the Vice President.See id. at ¶¶ 10(d), 96, 100. Ultimately, on the morning of 6January 6, 2021, he held a rally in Washington D.C. where he“repeated knowingly false claims of election fraud to gathered supporters” and “directed them to the Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused.” Id. at ¶¶ 10(d), 90(c).
Fifth, and finally, from the January 6 rally, thousands ofhis supporters — “including individuals who had traveled to Washington and to the Capitol at [his] direction” — swarmed the United States Capitol, causing “violence and chaos” that required the Congress to temporarily halt the election certification proceeding. Indictment ¶¶ 107, 119, 121. At that point, he and his co-conspirators “exploited the disruption by redoubling efforts to levy false claims of election fraud and convince Members of Congress to further delay the certification.” Id. at ¶ 10(e).
This whole debate is absurd. There is no presidential immunity from criminal prosecution - for official acts or otherwise. Period. End of story. The fact that we are talking about the President changes absolutely nothing. There was no need to delve into the facts, or hold an evidentiary hearing. Civil immunity for official acts? Sure. But not criminal liability. Hell, even the Constitution recognizes that the President is not immune from criminal prosecution (see Impeachment Judgment Clause).
The court of appeals got it right. They followed over 200 years of jurisprudence. The only arguably unique aspect of this case is that it is a former President on trial. But there is zero reason a former President should be treated any differently than a judge, a member of Congress, or a patent examiner when it comes to criminal prosecution. None can hide behind the claim that they were performing official acts.
The court of appeals got it right. They followed over 200 years of jurisprudence. The only arguably unique aspect of this case is that it is a former President on trial. But there is zero reason a former President should be treated any differently than a judge, a member of Congress, or a patent examiner when it comes to criminal prosecution. None can hide behind the claim that they were performing official acts.
Sooo . . . in the world according to Noodle . . . does the availability of impeachment preclude prosecution, since the remedy is specifically provided for in the constitution?
Of course not. The Constitution states (Art. III, Sec. 3, Cl. 7):
Judgment in Cases of Impeachment 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, Judgment and Punishment, according to Law.
Likewise, the fact of an impeachment acquittal does not preclude criminal prosecution.
In fact, many impeachments follow a criminal conviction. The two are completely separate things (as evidenced, for example, by presidential pardons not being available for impeachments.
Actually they do. I’ve argued a fair amount of immunity cases involving elected officials and prosecutors, in some cases judges were also parties. I’m totally familiar with absolute immunity, how and when it doesn’t or does not apply, and the process used to determine whether it should apply when issues of fact are involved. All my cases were civil. However, I think every court that has considered the point have said civil and criminal immunity go hand in hand.
The best chance I ever had to appear at SCOTUS involved whether a Brady violation affected prosecutorial immunity. SCOTUS had that exact case, it settled and there never was an opinion. My case was in the 10th circuit, at the time. It settled too. The trial court held no immunity. (Ha, I even made CNN and all the local news).
What is your answer to whether Obama had immunity for targeting a U.S. citizen to be killed? This case suggests there is no immunity. Somebody posted a good argument why Obama is not guilty, but that isn’t an immunity argument.
I'm not so sure it's as clear cut as you say. Does Joe Biden have immunity from a Texas state court criminal charge that he is responsible for the death of someone killed by an illegal immigrant due to his policy of catch and release? Forget whether the prosecutor can make the causal link or prove intent--can he be so charged for an official act and if not, why not? Could his own DOJ charge him?
Can Obama be criminally charged with murder for the drone attack on an American citizen? If not, what's your standard?
These are interesting questions with important results for the Presidency, no matter which way you come out. SCOTUS might not take it up for other reasons, but this is an issue of first impression as stated by the DC CA, so it wouldn't surprise me if they want to weigh in.
The DC Circuit disagrees with you, as do the cases they cite (pg. 25-30 in the link I provided above).
I don't have one. I don't know. I agree it's an interesting question and not cut-and-dry like Noodle does.
You sure about the acquittal argument?
I think Trump has raised a defense that his impeachment and acquittal and prosecution has subjected him to double jeopardy in violation of the fifth amendment.
At least for criminal charges in federal court, judges have no immunity from criminal prosecution. Zero. Zilch. Nada.
Absolutely certain. An impeachment trial is not a criminal trial.
Thanks to you guys for this discussion. It's instructive to a non-lawyer. That said, the above contention seems silly on its face. I'd say it's analogous to a cop being acquitted by state courts for say manslaughter, yet subsequently being charged for a federal civil rights violation.
I think the better distinction is that one involves jeopardy of going to jail, the other does not and cannot.
I, for one, don't think that analogy holds. The nature of the impeachment trial is political, whereas the prosecution is judicial in nature. In your example, the nature of the prosecution is judicial, but the crimes are considered different.
One is political - and the remedy is political (removal from office) - and the other is judicial - and the remedy is judicial, a sentence?
Sure, I get that, but it's the same conduct that's being addressed. That was the analogous part. Just like a state criminal acquittal doesn't preclude a federal civil rights prosecution, neither does an acquittal at impeachment preclude a criminal prosecution for the same conduct.
Is a better discussion about how and when absolute immunity applies.
