I’ve heard this citation before, from Rachel Maddow, among others. It seems to me that Ford’s pardon only meant that in Ford’s humble opinion, presidents did not enjoy immunity. But I don’t think Ford’s opinion carries any constitutional weight.
Reading the SC’s question again, it’s super broad:
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
It’s pretty sweeping and not at all limited to this Trump case/facts alleged in the indictment. They really want to define all the edges of any kind of immunity - I don’t think the 11th cir opinion did that - they just said these specific facts in this case don’t get immunity.
Not sure what to make of it, yet. Maybe they want to know how DOJ will apply this immunity, if any, in not just this case (it won’t apply) but also in future cases, or how they would/could have applied it to past cases - not Seal Team 6 hypos, but real examples of Presidential acts and whether they would be immune or not. This would ultimately lead to some type of broad framework type of opinion.
I don’t see this type of broad question being answered quickly. I wouldn’t expect a quick opinion after oral arguments.
You sure didn’t see Nixon challenge it.
But that ignores the premise of the question as I was trying to understand some of the ins and outs of the process better before looking at what Trump is doing in this specific case, which is why I started with:
Ford wanted to spare the country what we’re going through right now. And anyway, Nixon stepped down when the Republican leadership asked him to. The situations are not the same.
I don’t know who voted to grant cert, so I don’t know why it was done. And neither does anybody else and so to conclude that there’s only one possible reason is presumptuous.
They might need to twiddle their thumbs a while about this outer perimeter of a president’s duties. Would exchanging arms for cash in Iran and taking that money to Nicaragua perhaps be in the outer perimiter of a president’s duties?
…by laying the groundwork that led to what we’re going through right now. I think he probably had the right intentions, but pardoning Nixon was absolutely wrong, in retrospect.
Just to be clear, if things get delayed until after the election and Trump wins, is his authority/ability to order DOJ to drop the whole thing absolute?
This claim rests on the hypothesis that the timing is utterly irrelevant.
Whereas it clearly is abundantly relevant. Cert could have been granted back in December when Jack Smith made his request. The lengthy delay provides actual, not theoretical, information.
In that, they failed.
.
(My bolding.)
This is a crucial question. (If you were saying “doesn’t that stop” instead of “doesn’t that NOT stop” in the bit I bolded. ??)
If the answer to “doesn’t that stop…” is ‘yes’ then a huge chunk of the rationale for SCOTUS taking up the case vanishes.
AFAIK yes. Jack Smith works for the attorney general. Who, if Trump wins, will be specifically appointed in January 2025 to ensure that Jack Smith doesn’t have a job and the federal trials against Trump are finished as quickly as possibly.
IANAL though and the exact logistics I don’t know. Once a trial is in the final stages, and the prosecutor is fired what happens? If the trial is reaching its conclusion the prosecution have made their final arguments (hell its not impossible the jury will actually have retired to consider their verdict on the morning the new administration takes control), and the government decides to remove the prosecutor what happens? When the new prosecutor (say a fine legal mind named Eric Trump) takes over, is it entirely their decision to abandon the trial? The judge I imagine would be pretty fucking pissed off at that point, can they just say “no, screw you guys, sit your arse down, we are finishing this trial!”.
Its also somewhat less likely (though not ridiculous) that the end of the trial will be delayed all the way to January. All the timelines I’ve seen make a delay past election night a real possibility but a verdict in November or December more likely if that happens.
To avoid possibly confusing double negatives:
If the SC had simply let the lower court ruling stand, would that stop Trump from claiming immunity in his other cases, resulting in appeals to other appellate courts and further delays, or would it not?
it also a given that Trumps first action as POTUS in Jan 2025, whether from prison or the white house would be to issue himself a blanket pardon from anything related to the federal crimes he’s accused of (probably the second action will be to issue a blanket pardon of all crimes he may or may not commit ever)
The SCOTUS reaction to that will be pretty telling, and a watershed moment in the last days of the American democratic republic.
Though actually if the federal trial is still going on does it even reach the SCOTUS.?
The Trump appointed prosecutor says “the defendant has been pardoned, we are dropping the case”. Who has standing to appeal that?
That would be the best possible outcome for Jack Smith in the event Trump wins. I’d say the more likely outcome is Jack Smith is prosecuted and jailed.
Possibilty 1 (low probability):
Despite appearances during the February 8 Trump v. Anderson SCOTUS oral arguments, a majority of the Supreme Court now believe Donald Trump is disqualified to again serve as President. Figuring out how to enforce this is the court’s current focus. Under those circumstances, there is no rush to see Trump tried, and every reason to err on the side of taking his interlocutory appeals as seriously as possible.
Possibility 2 (high probability):
SCOTUS wants to take no responsibility for the election and sees rushing as inconsistent with that priority. As a result, Trump will not have been convicted of a federal (or Georgia) felony before November 5 (election day), illustrating what Learned Hand said:
As it is well known that accepting a pardon is an admission of guilt, wouldn’t such actions open him up to impeachment, since he is openly admitting he committed the high crimes he is pardoning himself for?
Firstly that would require a good chunk of the GOP lawmakers to grow a spine. So as risks go, I don’t think that will keep him up at night.
Also while that’s true is it generally applicable practically? I heard this a lot with Trump’s pardons (e.g. Joe Arpio) that it would lead to a flood of civil and state liability but I never heard of any of that actually happening.
While by no means an impossibility the one thing that makes this less than “high probability” to me is the April date for the hearing. If the majority of the court felt this way, the less politicized (or looking that way) route to achieving this would be to ensure the case didn’t end up on the docket for this year. That would have been a perfectly normal schedule for a usual case.
Given that it did end up on the docket for this year I’d still say a relatively swift loss for Trump is the most likely outcome (although not by much)