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- A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit will hear arguments today over former President Donald Trump's claim that he is immune from prosecution connected to his effort to overturn the 2020 election.
- Trump, who has said he intends to attend today's arguments, faces charges in a Washington, D.C., federal court that were filed by special counsel Jack Smith. Trump has pleaded not guilty to the four charges: conspiracy to defraud the U.S.; conspiracy to obstruct an official proceeding; obstruction; and conspiracy against the right to vote and to have one’s vote counted.
- Trump contends that his efforts in 2020 were within his official presidential duties and therefore protected by presidential immunity.
- The judges are all women: Judge Karen Henderson, who was appointed in 1990 by then-President George H.W. Bush, and Judges Michelle Childs and Florence Pan, both appointed by President Joe Biden.
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Kagro in the Morning: http://netroots-main-1.stream.creek.fm:8000/stream
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The all-woman panel includes two Democratic appointees and one Republican appointee. The senior member is Judge Karen Henderson, a long-serving appeals court judge appointed by Republican President George H.W. Bush in 1990.
The two Democratic appointees are both recent additions to the court nominated by President Joe Biden. They are Judge Michelle Childs, who was considered for the Supreme Court opening that ultimately went to Justice Ketanji Brown Jackson, and Judge Florence Pan, who previously served as a federal district court judge and as a local judge in Washington.
implicit versus explicit language using Midland Asphalt supreme.justia.com/…
Trump is making the sweeping argument that former presidents enjoy absolute immunity from criminal prosecution for any “official acts” taken while in office. Furthermore, his lawyers argue in their briefs that prosecuting Trump over actions for which he was already impeached and acquitted in the Senate following an impeachment proceeding would be a form of double jeopardy.
“The indictment of President Trump threatens to launch cycles of recrimination and politically motivated prosecution that will plague our nation for many decades to come and stands likely to shatter the very bedrock of our Republic,” Trump’s lawyers wrote in court papers.
They argue that Trump’s role in questioning the result of the election was within the “outer perimeter” of his official responsibilities as president, citing a 1982 Supreme Court ruling about presidential immunity in a civil case.
The special counsel’s office argues that the well-established concept of presidential immunity from civil liability for official acts does not extend to immunity from criminal liability.
“No historical materials support the defendant’s broad immunity claim,” Smith wrote in court papers. The fact that President Richard Nixon sought and received a pardon after resigning from office as a result of the Watergate scandal “reflects the consensus view that a former president is subject to prosecution after leaving office,” he added.
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hypothetical about the pardons sales and government secrets in terms of “official acts”
ordering Seal Team Six to assassinate a political rival
criminal actions that could be considers official acts
“The Founders” blather and double jeopardy issues
Hours before today’s appeals court argument, Trump posted a five-minute video that featured the following line: “To authorize the prosecution of a president for his official acts would open a Pandora’s Box from which this nation may never recover.” His lawyer D. John Sauer just began his argument with the exact same words. A coordinated message?
Trump lawyers D. John Sauer, Will Scharf and Emil Bove have been spotted in the building.
They were accompanied by Stan Woodward, lawyer for Trump’s Florida co-defendant Walt Nauta. Woodward is not representing a party in this case.
Trump plans to be in court for 2 days the week before Iowa. His campaign is fine with that.
Ahead of the hearing, we gathered an all-star team to discuss the merits of Trump’s appeal and how the D.C. Circuit might rule. Lawfare Legal Fellow and Courts Correspondent Anna Bower sat down with Lawfare Editor-in-Chief Benjamin Wittes, Lawfare Senior Editor Quinta Jurecic, Stanton Jones, counsel for American Oversight, which has filed a fascinating amicus brief that questions whether the appeals court has jurisdiction to decide the case in the first place, and Matthew Seligman, counsel for a group of former Republican officials who have filed an amicus brief in opposition to Trump’s claim of immunity. Matthew is also the co-author of a forthcoming book on presidential elections called, “How to Steal a Presidential Election.”
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Two dozen conservative attorneys wrote to the court, saying that “nothing in our Constitution, or any case, supports former President Trump’s dangerous argument for criminal immunity.” But it’s a question that has never been debated before, because Trump is the first ex-president to be charged with a crime. Trump does not have to be in court for Tuesday’s hearing but arrived to the courthouse Tuesday.
Judge Karen L. Henderson kicked off oral arguments with questions about an assertion made not by Donald Trump or the special counsel but an outside group, American Oversight, which argued that the D.C. Circuit couldn’t review Trump’s immunity challenge until after trial.
Judge Florence Y. Pan and Trump attorney D. John Sauer got into a prolonged back and forth over whether presidential immunity extends to all of a president’s actions that would technically fall under executive duties.
“Could a president order SEAL Team 6 to assassinate a political rival?” Pan asked.
Sauer said that a president could only be prosecuted for such an action if the Senate first impeached and convicted him.
Pan also asked whether a president could sell pardons or nuclear secrets without being prosecuted. Sauer responded similarly.
It’s a reference to a 1989 Supreme Court decision in which Justice Antonin Scalia wrote that someone can prevent a trial through appeal only if their “right not to be tried … rests upon an explicit statutory or constitutional guarantee” — for example, the “double jeopardy” protection from being tried twice for the same crime or the “speech or debate” immunity enjoyed by lawmakers.
Trump is making a double jeopardy argument, but based on the impeachment clause of the constitution, not the Fifth Amendment.
Judge Michelle Childs pressed Trump attorney J. Dean Sauer on that question. Sauer said that reading the 1989 decision that narrowly was not in line with precedent, including in the D.C. Circuit, and that any claim based in constitutional immunity should be heard before trial even if there’s no “explicit” language backing it up.
Steve Vladeck, a national security and constitutional law expert at the University of Texas, agreed with that interpretation.
Ruling otherwise “is putting an awful lot of weight on a single word” — explicit — “in a 35-year-old Supreme Court decision,” he said.
Because Trump appealed the district court ruling, his lawyer goes first, with 20 minutes to answer questions. The special counsel then gets 20 minutes, and Trump gets 10 minutes to rebut their arguments. But in practice, judges will let lawyers keep talking as long as they are answering questions, so the hearing will probably go longer than an hour.
Sauer has suggested certain examples presidents could be indicted for if Trump loses this argument
In his argument about how Trump should be immune from prosecution, Sauer has proposed several things that former and current presidents could be indicted for.
He wondered, for instance, if President George W. Bush could be indicted for obstruction of an official proceeding by giving false information to Congress that caused the U.S. to go to war in Iraq under false pretenses.
Sauer asked whether President Barack Obama could potentially be charged "with murder for allegedly authorizing drone strikes" targeting U.S. citizens abroad. He also said that maybe President Joe Biden could be indicted over his handling of the influx of migrants at the U.S.-Mexico border.
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In a notable exchange, Judge Henderson pressed Trump attorney D. John Sauer over his position that the actions detailed in Trump's indictment are related to his official duties to ensure that the laws of the U.S. are being "faithfully executed."
"I think it's paradoxical to say that his constitutional duty to take care of the laws be faithfully executed, allows him to violate federal laws," Henderson said.
She noted further that at this stage in the criminal process, where Trump is urging the court to dismiss the case before the trial begins, the law demands they assume the allegations in Smith's indictment are true.
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more nonsense hypotheticals related to impeachment’s necessity and political claims about the DoJ’s prosecution of TFG
private versus public conduct examples of Nixon v. Fitzgerald
“the nature of the act itself” especially presidential action’s court review
Marbury v. Madison
ministerial versus discretionary
example of judicial review of actions like the Trump Muslim ban
Truman and steel mill
“republic shattering”
“new-fangled treasons”
US Circuit Court Judge Florence Pan expressed skepticism toward the argument from Donald Trump attorney John Sauer that presidents have “absolute immunity” from prosecution for official actions taken as president.
Pan pushed Sauer on the absolute immunity question after Trump’s attorney acknowledged that presidents who were impeached and convicted were then subject to criminal prosecution for that action.
Pan responded by saying that showed there was a method for presidents to be prosecuted for their official actions.
“Once you concede that presidents can be prosecuted under some circumstances, your separation of powers argument falls away, and the issues before us are narrowed to are you correct in your interpretation of the impeachment judgment clause?” Pan said.
Sauer said that he disagreed, arguing the Constitution’s separation of powers included Congress in the process because of concerns about politically motivated prosecutions.
“They set up the separation of powers and then created a very narrow exception that would allow prosecution in those cases,” Sauer said.
The appeals judges have picked up on how Donald Trump previously argued in ways that are contradictory to what they say today, including when he faced a criminal investigation in Manhattan and a pending impeachment proceeding.
One of the judges pointed out that his team had argued former office-holders wouldn't be immune.
At that time, Trump's attorneys were trying to hold off impeachment, so they were arguing Trump could faced charges after he left office, but shouldn't have faced an impeachment trial while he was in office.
In 2020, a lawyer for Trump told the Supreme Court “we’re asking for temporary presidential immunity."
Appeals court Judge Karen Henderson appeared skeptical that Donald Trump was acting within his official duties when he tried to overturn the 2020 presidential election results, saying that Trump attorney John Sauer’s arguments appear “paradoxical.”
“I think it is paradoxical to say that his constitutional duty to take care of the laws be faithfully executed allows him to violate criminal law,” Henderson said.
Henderson, the most senior judge on the appeals court panel hearing the Trump case, has previously heard several cases involving Trump and repeatedly expressed concerns about safeguarding the special protections around the presidency in her previous opinions.
Assistant special counsel James Pearce has begun his arguments before the appeals court, urging the panel of judges to deny former President Donald Trump presidential immunity from prosecution.
“Never in our nation's history until this case has a president claimed that immunity from criminal prosecution extends beyond his time in office,” Pearce told the court.
“The president has a unique constitutional role, but he is not above the law.”
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was Seal Team Six in Pandora’s Box, darn motive and intent
darn “more rhetoric than reality” and “frightening reality”
“cycles of recrimination”
“immunity for later crimes?”
“is that a yes?”
Sauer goes huminahuminahumina
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