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SCOTUS (Supreme Court of the United States)

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    mrussel1mrussel1 Posts: 28,626
    OnWis97 said:
    It was probably the right decision. Plus it at least shows that some justices aren't making their decisions based on their feelings about one polarizing figure. 
    Stop freaking out,  lefty!  Get a fucking grip on yourself. 
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    mickeyratmickeyrat up my ass, like Chadwick was up his Posts: 35,688
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    Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
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    gimmesometruth27gimmesometruth27 St. Fuckin Louis Posts: 22,152
    i like how they left him on the ballot in colorado so he can get his ass handed to him there on election day lol.
    There is nothing noble in being superior to your fellow man; true nobility is being superior to your former self.- Hemingway

    "Well, you tell him that I don't talk to suckas."
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    tbergstbergs Posts: 9,216
    i like how they left him on the ballot in colorado so he can get his ass handed to him there on election day lol.
    Yeah, he's not winning Colorado no matter what. Sadly, he'll still win many backwater states. Lots of lost souls out there.  
    It's a hopeless situation...
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    mickeyratmickeyrat up my ass, like Chadwick was up his Posts: 35,688
    _____________________________________SIGNATURE________________________________________________

    Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
    you're finally here and I'm a mess................................................... nationwide arena columbus '10
    memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
    another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
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    mickeyratmickeyrat up my ass, like Chadwick was up his Posts: 35,688
    edited March 5
    Post edited by mickeyrat on
    _____________________________________SIGNATURE________________________________________________

    Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
    you're finally here and I'm a mess................................................... nationwide arena columbus '10
    memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
    another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
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    edited March 5
    Watching lib heads explode so entertaining.  

    They are so adamant about Jan 6th. So much so that it seems like they crafted it for a purpose.
    Post edited by Out of My Mind and Time on
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    josevolutionjosevolution Posts: 28,283
    Watching lib heads explode so entertaining.  

    They are so adamant about Jan 6th. So much so
    that it seems like they crafted it for a purpose.
    So it didn’t happen? 
    jesus greets me looks just like me ....
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    Lol. Sooo...this went way over your head
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    josevolutionjosevolution Posts: 28,283
    Lol. Sooo...this went way over your head
    I’m just asking you a ? Can you bring yourself to answer yes or no 
    https://video.snapstream.net/Play/7EbeOwjfsAUmPgG78Kd9Bf?accessToken=dtue6kkdadhf3
    jesus greets me looks just like me ....
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    Merkin BallerMerkin Baller Posts: 10,475
    “Ginni Thomas has finished checking her messages. chuckling softly, she tucks herself back into the Spanx waistband, smoothes her cashmere sweater, and reaches for Condé Nast Traveler, envisioning luxury cabanas and mass executions”
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    josevolutionjosevolution Posts: 28,283
    Lol. Sooo...this went way over your head
    I’m ok with the decision nothing to be surprised about considering the bought & payed for justices! The decision I’m most looking forward to is the immunity one which way do you think they will decide? 
    jesus greets me looks just like me ....
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    Gern BlanstenGern Blansten Your Mom's Posts: 17,949
    Watching lib heads explode so entertaining.  

    They are so adamant about Jan 6th. So much so that it seems like they crafted it for a purpose.
    None of this relates to Jan 6...case not decided yet
    Remember the Thomas Nine !! (10/02/2018)

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    mickeyratmickeyrat up my ass, like Chadwick was up his Posts: 35,688
    Watching lib heads explode so entertaining.  

    They are so adamant about Jan 6th. So much so that it seems like they crafted it for a purpose.
    None of this relates to Jan 6...case not decided yet

    SCOTUS also stayed away from the Colorado courts ruling that he engaged in Insurrection. which is kind of a big deal........
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    Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
    you're finally here and I'm a mess................................................... nationwide arena columbus '10
    memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
    another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
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    HughFreakingDillonHughFreakingDillon Winnipeg Posts: 35,808
    LMAO at the left. Everyday they prove how dumb they are. 
    Three liberal judges just ruled in favor of Trump.  Grouping everyone "left" together never has and never will make any sense.  
    Why the meltdown on socials then?  Lefts are trying to say they should all be kicked off the court....and they are traitors blah blah blah..

    There was never any potential outcome then the one the court agreed upon unanimously. Anyone with half an education beyond a High School Diploma or GED should understand this. It wouldn't matter if it was Trump or anyone else.  

    "Three liberal judges just ruled in concurrence with the laws of the land." Fixed it for you.

    If it was split on party lines then there would be a reasonable discussion to be had.
    I haven't heard any mainstream dem/liberal say that. Likely you haven't either. Just because some numnut on facebook says it doesn't mean they speak for all liberals.
    Let's take a look at the spokespeople for the left...the champions of the cause....









    You can peruse the comments sections and likes they receive of your own free will.  Lefts are in full meltdown. 

    Why not just beat him on the ballot instead of crying that they can't circumvent laws to keep him off the ballot?
    come on.  you are linking people that are paid operatives on social media. surely you can do better than leftist outrage farmers. 
    Darwinspeed, all. 

    Cheers,

    HFD




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    HughFreakingDillonHughFreakingDillon Winnipeg Posts: 35,808
    LMAO at the left. Everyday they prove how dumb they are. 
    Three liberal judges just ruled in favor of Trump.  Grouping everyone "left" together never has and never will make any sense.  
    Why the meltdown on socials then?  Lefts are trying to say they should all be kicked off the court....and they are traitors blah blah blah..

    There was never any potential outcome then the one the court agreed upon unanimously. Anyone with half an education beyond a High School Diploma or GED should understand this. It wouldn't matter if it was Trump or anyone else.  

    "Three liberal judges just ruled in concurrence with the laws of the land." Fixed it for you.

    If it was split on party lines then there would be a reasonable discussion to be had.
    I haven't heard any mainstream dem/liberal say that. Likely you haven't either. Just because some numnut on facebook says it doesn't mean they speak for all liberals.
    Let's take a look at the spokespeople for the left...the champions of the cause....









    You can peruse the comments sections and likes they receive of your own free will.  Lefts are in full meltdown. 

    Why not just beat him on the ballot instead of crying that they can't circumvent laws to keep him off the ballot?
    Funny you say that we did beat him on the ballot see 2020! Did he take the loosing honorably I ask you? No he fucking ordered an insurrection! So what’s it going to take beating how many times before he crawls away and never to be heard again? So please tell us again who was crying like a petulant child? 
    I agree. He is a petulant child. 

    Was the election fair? Yes.

    I disagree, he did not order an insurrection. The courts and laws agree with me. You need to accept this as fact and move past it. 
    he didn't explicitly order it. but he did the political equivalent of yelling fire in a crowded theatre. actually, he did worse. he yelled fire and then lied about who lit it and pointed the "victims" in their direction. 

    I don't know how anyone could come to the conclusion that there should be no consequences for that. 
    Darwinspeed, all. 

    Cheers,

    HFD




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    gimmesometruth27gimmesometruth27 St. Fuckin Louis Posts: 22,152
    trump can still be kept off of the ballot.....

    if mike pence has the courage...
    There is nothing noble in being superior to your fellow man; true nobility is being superior to your former self.- Hemingway

    "Well, you tell him that I don't talk to suckas."
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    You bet thumb. Keep trying. 




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    sheckyshecky San Francisco Posts: 1,440

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    Halifax2TheMaxHalifax2TheMax Posts: 36,576
    shecky said:

    Ouch. That one really hurt me deep. Guess I’ll just stay home and not vote, maybe jump on the bandwagon?
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    mickeyratmickeyrat up my ass, like Chadwick was up his Posts: 35,688
    You bet thumb. Keep trying. 




    Funny, though. That case was brought by five republicans and five independent voters in colorado, but you go on with that

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    Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
    you're finally here and I'm a mess................................................... nationwide arena columbus '10
    memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
    another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
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    brianluxbrianlux Moving through All Kinds of Terrain. Posts: 40,680
    zzzzzzzzzz
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    Variously credited to Mark Twain or Edward Abbey.













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    benjsbenjs Toronto, ON Posts: 8,937
    mickeyrat said:
    You bet thumb. Keep trying. 




    Funny, though. That case was brought by five republicans and five independent voters in colorado, but you go on with that

    Quick, next argument.
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    gimmesometruth27gimmesometruth27 St. Fuckin Louis Posts: 22,152
    benjs said:
    mickeyrat said:
    You bet thumb. Keep trying. 




    Funny, though. That case was brought by five republicans and five independent voters in colorado, but you go on with that

    Quick, next argument.
    no, quick, next right wing political cartoon.

    or meme.

    to own the libz
    There is nothing noble in being superior to your fellow man; true nobility is being superior to your former self.- Hemingway

    "Well, you tell him that I don't talk to suckas."
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    mickeyratmickeyrat up my ass, like Chadwick was up his Posts: 35,688
    op-ed gift article


      Opinion | With Colorado ruling, the court displays an ‘originalism of convenience’
    Opinion by Ruth Marcus
    Associate editor
    March 07, 2024 at 6:30 ET
    So much for originalism.
    We’ve seen this phenomenon from this conservative, supposedly originalist court before. But Monday’s ruling in Trump v. Anderson underscores the undeniable reality: the court practices an originalism of convenience. When push comes to shove, when a strict originalist approach would yield an undesirable outcome, professed fealty to originalism gives way to practical considerations.
    Some might call this results-oriented reasoning hypocritical. In this instance — I agree with the bottom line — I’ll go with a welcome display of intellectual flexibility and common sense. In my view, the court was correct to consider the practical fallout of letting Colorado remove former president Donald Trump from its primary ballot, as all nine justices agreed should not be allowed. Maybe we’re all living constitutionalists now.
    Listen to the conservative justices discussing the dangerous consequences of letting individual states decide for themselves whether candidates for president should be allowed on the ballot.

    continues....

    _____________________________________SIGNATURE________________________________________________

    Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
    you're finally here and I'm a mess................................................... nationwide arena columbus '10
    memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
    another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
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    mickeyratmickeyrat up my ass, like Chadwick was up his Posts: 35,688
    edited March 9
    Post edited by mickeyrat on
    _____________________________________SIGNATURE________________________________________________

    Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
    you're finally here and I'm a mess................................................... nationwide arena columbus '10
    memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
    another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
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    mickeyratmickeyrat up my ass, like Chadwick was up his Posts: 35,688
    _____________________________________SIGNATURE________________________________________________

    Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
    you're finally here and I'm a mess................................................... nationwide arena columbus '10
    memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
    another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
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    mickeyratmickeyrat up my ass, like Chadwick was up his Posts: 35,688

     
    The Biggest Election Deniers Want SCOTUS to Ban Voting Machines By Matt Cohen March 15, 2024
    A pin board with Kari Lake rendered in red in the center Red dotted lines connect her with pictures of Mark Finchem Mike Lindell Alan Dershowitz Jeffrey Epstein OJ Simpson Donald Trump and an electronic voting machine

    “This is big everybody! This is what we’ve been waiting for,” Mike Lindell, the pillow mogul, conspiracy theorist and advisor to former President Donald Trump, teased on Steve Bannon’s podcast on Sunday. “This isn’t just some tinfoil hat case, this is huge… This new evidence is the most explosive evidence ever! This coming Friday on the steps of the Supreme Court, 3:00 PM. We’re gonna hand-deliver this to the world. It’s going to be the biggest thing ever, and we are going to save this country!”

    Lindell will not end up on the steps of the U.S. Supreme Court, as he later told Lou Dobbs that it was not “safe” for him without explaining why. But lawyers that Lindell hired are reviving a lawsuit challenging the use of electronic voting machines in Arizona by asking the nation’s highest court to take the case. The lawsuit — filed originally in 2022 on behalf of Republican gubernatorial candidate Kari Lake and state Rep. Mark Finchem, who ran for secretary of state — alleges that the electronic voting systems used to tabulate votes are not trustworthy, thus violating state law and the U.S. Constitution. 

    The allegations, based on false claims and conspiracy theories about Dominion Voting Systems stemming from the “Big Lie” of the 2020 election, were rejected by an Arizona district court judge — who sanctioned Lake, Finchem, and their lawyers for their baseless claims — and the 9th U.S. Circuit Court of Appeals. But that hasn’t stopped Lake and company.

    In a cert petition filed in the Supreme Court — by one of Lindell’s lawyers, Lawrence J. Joseph, and first uploaded by Arizona Law — Lake and Finchem again stir up conspiracy theories about Dominion Voting Services, a voting machine manufacturer whose products are used widely in elections across the country. Specifically, they allege that Maricopa County election officials used “uncertified” software to tabulate votes, and that they found a security breach in Dominion’s voting machines that made them vulnerable to hacking. 

    With this latest effort, it’s time to review the wide-ranging cast of characters involved in this “frivolous” lawsuit that’s dragged on for two years.

    Mike Lindell

    For many years, Mike Lindell was best known as the MyPillow Guy — the founder and CEO of a pillow manufacturing company who dominated infomercials in the mid-to-late 2000s. Lindell was an early supporter of, and major donor to, Trump in the 2016 presidential race and soon his relationship with the former president eclipsed his reputation as a pillow magnate. 

    Lindell attended Trump’s inauguration and was a frequent guest at the White House during his presidency. His seemingly close relationship with the former president turned him into a popular figure in Trump’s GOP, giving him a major platform as a frequent Fox News guest (also thanks to his MyPillow advertising on the network) and featured speaker at the annual Conservative Political Action Conference (CPAC). 

    In 2020, Lindell campaigned for Trump and became a central figure in the efforts to overturn the results of the election. After president Joe Biden was declared the presumptive winner, Lindell sponsored and financed a two-week bus tour across the country where prominent Trump supporters held rallies promoting conspiracy theories about a stolen election. Lindell was one of the most vocal proponents of a debunked conspiracy theory alleging that Dominion Voting Systems — a voting machine manufacturer whose products are used widely in elections across the country — conspired with Biden and Democrats to steal the election from Trump. “You have positioned yourself as a prominent leader of the ongoing misinformation campaign,” Dominion wrote in a warning letter to Lindell. The company subsequently filed a defamation lawsuit against Lindell for $1.3 billion.

    He continued his crusade against electronic voting machines in the 2022 midterms, bankrolling a legal effort to get them outlawed in Arizona. He contributed at least $500,000 toward the lawsuit filed by Lake and Finchem to ban the use of voting machines in the Arizona midterms, according to The Guardian, and said he wants to underwrite similar lawsuits across the country. “I’d like to file the lawsuits in all 50 states,” he said.

    Kari Lake

    Lake, a former local TV news anchor, positioned herself as Arizona’s leading MAGA sycophant — and avowed election denier — when she launched her gubernatorial campaign in 2021. Throughout her pivot from media to politics, Lake promoted right-wing conspiracy theories and misinformation relating to COVID-19, former President Barack Obama and immigration

    But she’s been the loudest in her promotion of the “Big Lie.” Her lawsuit with Finchem to ban electronic voting machines was filed before she even officially launched her gubernatorial campaign. She spent a majority of her midterm campaign traveling around the state bragging about her loyalty to Trump and the “Big Lie” movement. “As bad as they want to make the stolen election, known as ‘The Big Lie’ go away — they will never be successful,” she wrote on Twitter. “The World knows that 2020 was a terrible disaster that forced the worst President in History.”

    After Lake’s resounding loss to Gov. Katie Hobbs (D) she refused to concede and describes herself as the “lawful governor of Arizona.” In December of 2022, she sued Hobbs, who at the time was secretary of state, along with the Maricopa County recorder, board of supervisors and director of elections challenging the results of the election, which was dismissed by a district court, the Arizona Court of Appeals and the Arizona Supreme Court. (She appealed the Supreme Court decision and the litigation is ongoing before the Arizona Court of Appeals).

    In October of 2023, Lake officially launched her campaign for U.S. Senate, for the seat currently held by outgoing Sen. Kyrsten Sinema (I). In her Senate campaign, Lake is attempting (and failing) to somewhat rehabilitate her image as a hardline MAGA conspiracy theorist, saying in her announcement speech that she wants to “restore honest elections,” which she said was “not a Republican issue. It’s not a Democrat issue. It’s an American issue,” according to the Wall Street Journal. 

    Kari Lake is still an election denier and her attachment to the writ of certiorari filed today cements her connection to one of the biggest lingering election litigation fueled by conspiracy theories.

    Mark Finchem

    Years before Finchem launched his campaign to be Arizona’s secretary of state he cultivated a reputation as one of the state’s most extremist Republican politicians. He’s a longtime member of the far-right paramilitary group the Oath Keepers and, throughout his tenure in the Arizona House of Representatives, promoted a long list of racist, antisemitic and QAnon conspiracy theories, including that 9/11 was an attack by the federal government and that the deadly 2017 Unite the Right white supremacist rally was a Democratic deep state psyop.

    Finchem attended the rally near the White House on Jan. 6, 2021 that preceded the deadly attack on the U.S. Capitol. He later tweeted photos of protesters trespassing on the Capitol grounds and was subsequently interviewed by the U.S. Department of Justice and the House committee tasked with investigating the attack. 

    Like Lake, Finchem lost his 2022 election and sued to get the results overturned. A trial court dismissed the lawsuit and Finchem’s appeal to the Arizona Supreme Court was denied. Finchem appealed the Supreme Court’s denial but eventually withdrew it after a Maricopa County Superior Court Judge sanctioned him and his lawyer over the suit, writing that the lawsuit “was groundless and not brought in good faith.” His lawyer was forced to retire after the sanction. In July of 2023, Finchem filed a “statement of interest” to run for a seat in the Arizona state Senate. 

    Alan Dershowitz

    Dershowitz — one of the most well-known Constitutional lawyers who’s represented everyone from O.J. Simpson, to Julian Assange, to Jeffrey Epstein and Trump in his first impeachment trialsaid that he joined Lindell’s legal team in 2022 out of “respect for civil liberties and the Constitution.”

    Specifically, Dershowitz said that he joined Lindell’s legal team to represent him in a lawsuit against the Justice Department and the Federal Bureau of Investigation over their search and seizure of his phone as part of an investigation into a Colorado county clerk allegedly tampering with voting equipment in 2022. 

    Yet Lindell kept Dershowitz on retainer and said that he “hired” him to help with Lake and Finchem’s lawsuit to ban electronic voting machines in Arizona. Dershowitz, along with Lake, Finchem and the other members of Lindell’s legal team, were sanctioned by a district court judge. Dershowitz asked the court to reconsider, but his request was denied. In the order granting sanctions, the judge wrote that the claims of the lawsuit were “frivolous in that they are ‘both baseless and made without a reasonable and competent inquiry,’” and specifically called out Lindell’s legal team for defending claims about electronic voting machines that “baselessly kicked up a cloud of dust.”

    In a statement to Arizona Central in response to the sanctions, Dershowitz wrote that he “never challenged the results of any Arizona elections,” but that he “provided legal advice about the future use of vote counting machines by companies that refuse to disclose the inner workings of their machines.”

    Lawrence J. Joseph

    Lawrence Joseph, an attorney who is representing the applicants in their petition filed in the Supreme Court today, is a familiar name to those who paid close attention to Trump’s efforts to overturn the 2020 election. That is because Joseph was instrumental in the legal efforts that attempted to overturn the 2020 election results. Joseph notoriously filed a petition on behalf of Texas Attorney General Ken Paxton to sue the state of Pennsylvania over their certification of 2020 election results. 

    The U.S. Supreme Court rejected a request to hear the case, and an amicus brief filed by a group of former Republican officials opposing the effort said that Paxton’s lawsuit “make a mockery of federalism and separation of powers.” 

    Lawrence also filed a lawsuit on behalf of Texas Rep. Louie Gohmert (R) against former Vice President Mike Pence that sought to force Pence to reject the electoral votes in certain states and instead have him choose electors to cast their ballot for Trump.

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    Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
    you're finally here and I'm a mess................................................... nationwide arena columbus '10
    memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
    another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
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    Halifax2TheMaxHalifax2TheMax Posts: 36,576
    And Dershowitz wonders why he’s persona non grata on the Vineyard? Please.
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    mickeyratmickeyrat up my ass, like Chadwick was up his Posts: 35,688


    Lawfare

    Courts & Litigation Criminal Justice & the Rule of Law Democracy & Elections Executive Branch Moving Beyond Absolutes on Presidential Immunity Trevor W. Morrison Monday, March 18, 2024, 8:00 AM Share On: Share on Facebook Share on Twitter Share on LinkedIn Presidents are sometimes immune from criminal prosecution, but only in limited circumstances. Trump’s case doesn’t come close.
    Published by The Lawfare Institute
    in Cooperation With
    BrookingsSubscribe to Lawfare Since the Supreme Court granted certiorari to review the presidential immunity issue in Trump v. United States, much has been said about the Court’s choice to wait until late April for oral argument. If the Court ultimately rejects Trump’s claim of immunity, it is not clear whether there will be time for the trial to happen before the November 2024 election. That is a concern. Equally concerning, at least, is the possibility that the Court might hold Trump immune. We cannot discount the possibility that the timing the Court selected for oral argument could reflect that at least five justices are presently inclined to hold Trump immune and thus are not worried about leaving time for a trial. To hold Trump immune would be a grave constitutional error and a travesty of justice. Yet describing precisely why is not as straightforward as some commentators have suggested. In my view, former presidents are immune from federal prosecution for exercising those powers that the Constitution grants to them exclusively, in ways that Congress may not regulate. But the immunity should extend no further, and Trump’s case involves no such exercise of power.The Court granted certiorari to review 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.” (In context, we can assume the Court means to confine the question to federal prosecution, as I do here.) As summarized in the government’s initial filing before the Supreme Court, the charges against Trump allege, among other things, that he used deceit toward certain state officials to subvert the legitimate results of the presidential election in those states; that he deceitfully organized fraudulent slates of presidential electors in several states and caused them to send false certificates to Congress; that he leveraged the Justice Department to deceitfully cause state officials to replace their legitimate slate of presidential electors with electors who would vote for Trump; and that he tried to enlist then-Vice President Pence to fraudulently change the election results during the certification process in Congress on Jan. 6, 2021.As a preliminary matter, it is not entirely clear which of these alleged actions constituted “official acts”—that is, acts taken by the president in his capacity as president. But let’s assume that at least some of them were official acts, insofar as Trump presented himself as president when taking the alleged actions and purported to invoke the authority of his office when trying to direct or persuade others to act as he wanted them to act. The question now before the Court is whether and to what extent Trump is immune from prosecution for those official acts. (As Marty Lederman has pointed out, if any of the actions the government alleges do not constitute official acts, the Supreme Court’s ruling may not actually impact Trump’s prosecution with respect to that conduct. The question of which acts were not official acts would presumably fall to the district court on remand.)Ordinarily, the fact that someone acted in an official government capacity when committing a crime would provide no immunity from prosecution. But as the Supreme Court has long recognized, the president “occupies a unique position in the constitutional scheme.” His far-reaching responsibilities are not all reducible to textually explicit grants of power, but extend to include implicit “obligations growing out of the Constitution itself” that reflect “the nature of the government under the Constitution.” In order to ensure that he is not distracted from fulfilling those sweeping responsibilities, the Court in Nixon v. Fitzgerald held that the president is absolutely immune—both while in office and after leaving it—from civil damages liability on the basis of his “official acts.” And official presidential acts, the Court explained, include conduct falling within the “outer perimeter” of the president’s official responsibility.But Nixon was limited to civil lawsuits (and only certain kinds of such suits, as I’ll explain below). The Court has never addressed whether and to what extent a comparable immunity applies in the very different context of federal criminal prosecutions. Thus, another way of framing the question in the current case is this: Whether and to what extent does Nixon v. Fitzgerald immunity apply to criminal prosecutions?Trump and the government seem to have embraced opposite but equally absolutist answers to that question. Trump has suggested that as long as the charged conduct involved official presidential acts, a former president is always immune (unless he was first removed from office for those acts through the impeachment process). The government, in contrast, has seemed at times to suggest that a former president is never immune from prosecution for any acts, official or otherwise. The U.S. Court of Appeals for the D.C. Circuit seemed to embrace a similar position in its opinion below, on the theory that any presidential action that violates generally applicable federal criminal law necessarily exceeds the president’s lawful authority. In my view, neither of these absolutist positions is tenable.The “Never Immune” PositionAlthough the precise question of a president’s immunity from criminal prosecution is one of first impression, it is part of a more general question: Whether and when may Congress regulate the president’s official conduct? The Supreme Court’s separation of powers jurisprudence is instructive here, especially the framework laid out by Justice Robert Jackson in his famous concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer. As Jackson put it, “Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” The president’s authority is at its maximum when he acts “pursuant to the express or implied authorization of Congress”; it is in a somewhat ambiguous “zone of twilight” when he acts in the absence of congressional authorization or prohibition; and it is at its “lowest ebb” when he acts in ways that are “incompatible with the express or implied will of Congress.” The last category is the key one for present purposes—Trump is charged with violating federal criminal statutes, meaning that he is alleged to have acted contrary to Congress’s will as expressed in those statutes.If the president has the power to take a particular action even in the face of congressional prohibition, it is because the Constitution grants him exclusive authority in that area. It is no small thing to conclude that the president possesses such exclusive authority. Indeed, as Jackson emphasized in Youngstown, “[p]residential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” Yet we know that there are some limited areas where the president does wield such power.One example is the recognition power, which is the president’s power to recognize or decline to recognize a foreign state. In Zivotofsky v. Kerry, the Court held that the recognition power belongs to the president alone and, therefore, that Congress cannot “command” the president “to issue a formal statement that contradicts” his own exercise of that power. The issue in Zivotofsky was whether Congress could require the executive branch to issue U.S. passports indicating that a person born in Jerusalem was born in Israel, despite the president’s determination not to take a position on whether Jerusalem was formally part of Israel. The Court held that Congress could not compel the executive branch to take that position. It follows that Congress also could not criminalize the president’s refusal to recognize Jerusalem as part of Israel. A former president would surely be immune from any attempt to prosecute him for violating such a statute.Another example is the president’s power to grant pardons for federal criminal offenses. As the Supreme Court has explained, the president’s “plenary authority” over pardons comes solely from the Constitution, not from statute, and Congress cannot modify, abridge, or diminish it. (That is not to say that the scope of the pardon power is unlimited; even if Congress cannot restrict the president’s exercise of it, courts could conceivably determine that the power itself does not reach certain things—such as, perhaps, a self-pardon.) In other words, Congress may not direct the president in his exercise of the pardon power. It could not, for example, prohibit the president from pardoning people for committing certain crimes, nor could it compel him to do so. And by the same token, a former president could not be prosecuted for failing to adhere to any purported legislative restrictions on his pardon power.There are two further points worth noting here. First, one might object that the immunity I am describing is not really an immunity at all. These hypothetical statutes are substantively and facially unconstitutional because they impermissibly intrude on powers that the Constitution grants exclusively to the president. One might distinguish between such substantive unconstitutionality on the one hand and official immunity on the other, where the latter concerns whether an otherwise valid legal rule can be enforced against a particular defendant in a particular context. For example, when a court concludes that a state officer enjoys qualified immunity in a money damages suit, it is not saying the underlying legal rule is invalid, or that the officer’s conduct was lawful. It is merely holding the officer immune from damages liability because their conduct was not clearly unlawful when they acted. Indeed, the real force of qualified immunity is that it can protect officers from liability for unlawful conduct. One might argue that the term “immunity” should be reserved only for that kind of situation. If so, the president would still be protected against criminal prosecution in the circumstances noted above. It just wouldn’t be called “immunity.”However, I don’t think presidential immunity should be conceptualized the same way as qualified officer immunity. Instead, the better analogy is to Supremacy Clause immunity, which shields federal officers from state criminal liability in certain circumstances. The leading case is Cunningham v. Neagle, which involved an attempted state prosecution of a U.S. deputy marshal for shooting a man he believed was about to attack a justice of the Supreme Court, whom the deputy had been assigned to protect. The Court held the deputy immune from state prosecution for any act that was authorized by U.S. law and within his duties as a U.S. marshal, provided “he did no more than what was necessary and proper for him to do.” The deputy’s entitlement to immunity, in other words, turned on whether federal law (which, under the Supremacy Clause, trumps contrary state law) authorized him to act as he did. That is analytically comparable to the conception of presidential immunity I am describing here, which turns on whether the Constitution (which trumps contrary federal legislation) grants the president the exclusive power to take the action in question. The president’s immunity is a function of those powers that the Constitution grants exclusively and preclusively to him.That leads to the second point. My hypothetical laws regulating the president’s recognition and pardon powers would apply directly and only to the president. What happens when Congress passes a law of more general application that, if applied against the president, would impinge impermissibly on his exercise of an exclusive, unregulable power? The answer is straightforward: Although the law might be constitutional as applied to others, the president would remain immune from prosecution for the reasons stated above. (Notably, the D.C. Circuit failed to account for this possibility.)
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