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SCOTUS Live thread: Will the court rule that Trump is King? Arguments start at 10 AM Eastern


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Kagan: How about if the president orders the military to stage a coup? 

Sauer: If one adopted the test we advanced, that might well be an official act

 

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Kagan: If a president sells nuclear secrets to a foreign adversary, is that immune?

Sauer: If it's structured as an official act, he would have to be impeached and convicted first.

 

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Jackson asks why 'the president would not be required to follow the law'

 

Amid her questioning, Jackson asks, "Why .... [would] the president ... not be required to follow the law when he is performing his official acts? Everyone else — there are lots of folks who have very high-powered jobs and they do so against the backdrop of potential criminal prosecution."

 

She further posited that perhaps presidents don't commit presidential acts because they're afraid of prosecution. That may not be case, she said, "once we say 'no criminal liability. Mr. President, you can do what you want.'"

 

In response, Sauer argued that presidents haven't been under credible threat of criminal prosecution since the founding of the U.S.

"The regime you've described is the one we've operated under for over 240 years," Sauer said.

 

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Jackson tells Sauer that if a president wasn't 'chilled,' then there would be no potential penalty for committing crimes

 

Jackson told Sauer that he seems to be "worried about the president being chilled."

 

She then argued that in reality a "really significant opposite problem" would emerge.

 

"If the president wasn’t chilled, if someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority, could go into office knowing that there would be no potential penalty for committing crimes, I’m trying to understand what the disincentive is from turning the Oval Office into, you know, the seat of criminal activity in this country,” she said.

 

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I am pretty sure if we accepted Trump's conception of absolute immunity that he would actually be more powerful than King George was.....

 

As if their argument wasn't ridiculous enough, with their whole escape hatch being that he could be impeached, has anyone pointed out that no Senate would vote to impeach a man if he could simply send troops onto the floor of the Senate to execute them all?

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Justice Thomas begins questions to special counsel by asking about "official acts"

In the first question to special counsel Jack Smith’s attorney Michael Dreeben, Justice Clarence Thomas remained focused on the question of whether presidents are protected for conducting “official acts.”

 

“Are you saying there is no presidential immunity even for official acts?” Thomas asked.

 

Dreeben responded yes, but said that a president could assert immunity to “objections to criminal laws that interfere with an exclusive power possessed by the president, or that prevent the president from accomplishing his constitutionally assigned functions.”

 

“That is the constitutional doctrine that currently governs” immunity, he said.

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Thomas asks why past presidents have not been prosecuted for overseas operations

 

Thomas said that in the not so distant past, presidents who have engaged in various activities such as coups have not faced prosecution, specifically mentioning or Operation Mongoose, which aimed to remove the Castro regime from power in Cuba.

 

“If what you’re saying is right, it would seem that that would have been ripe for criminal prosecution,” Thomas asked Dreeben.

 

Dreeben replied, “The reason why there have not been prior criminal prosecutions is that there were not crimes.

 

“And I want to explain why there are layers of safeguards that assure that former presidents do not have to lightly assume criminal liability for any of their official acts,” Dreeben said.

 

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Just now, Chairslinger said:

Why do that if he was already immune?

 

Because they hadn't yet stacked SCOTUS with Federalist Society goons, and Fox News didn't exist yet. The former of which was largely about and the latter of which was entirely about making sure what happened to Nixon could never happen to another Republican president.

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18 minutes ago, Commissar SFLUFAN said:

Thomas said that in the not so distant past, presidents who have engaged in various activities such as coups have not faced prosecution,

 

If I had been the one to respond: "well, sir, maybe they fucking should have."

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This is the most likely outcome, unfortunately:

 

From CNN:

 

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Oral arguments suggest that the Supreme Court may not totally resolve the Trump immunity case

 

The Supreme Court hearing so far is a mixed bag for both sides.

 

On the one hand, its seems clear that the court is unwilling to dismiss the case against Donald Trump outright, as he ostensibly is asking the justices to do, based on his sweeping theory of presidential immunity.

 

On the other hand, several justices appear skeptical of how the special counsel is framing the case.

 

It's possible they will render a ruling that could require several more months of lower court proceedings before the case against Trump can go to trial. That could put the possibility of a pre-election trial fully out of reach, raising the possibility that Trump will be reelected and make the case against him go away.

 

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Alito suggests denying presidents immunity will discourage peaceful exits

 

As he considers immunity in a case centered on a president's refusal to accept his electoral defeat, Justice Samuel Alito suggested that not giving presidents immunity will actually discourage peaceful transfers of power.

 

Alito pressed Michael Dreeben, the attorney for the special counsel, on the idea that an outgoing president who looses a hotly-contested election will be disincentivized from leaving office peacefully because he will fear prosecution by the administration of his successor, a "bitter political opponent."

 

Would that not "lead us into a cycle that destabilizes the functioning of our country as a democracy?" Alito asked.

 

 

I give up.

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Gorsuch seems worried about writing a decision too broadly

 

In his questioning, Gorsuch said, “I’m not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives, whether it’s re-election or who knows.”

 

 

Your "concern" is duly noted, Neil.

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Yours too, Brett:

 

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Kavanaugh also expresses concerns over potential breadth of ruling

 

Justice Brett Kavanaugh said that, like Gorsuch, he’s “very concerned about the future,” as opposed to this particular case.

 

“That’s the concern going forward, is that the system will, when former presidents are subject to prosecution ... the history of Morrison v. Olson tells us it’s not going to stop,” Kavanaugh said. “It’s going to cycle back and be used against the current president or the next president and the next president after that.”

 

“I want you to try to allay that concern — why is this not Morrison v. Olson redux if we agree with you?” Kavanaugh asked Dreeben.

 

Referring to the case Kavanaugh cited, Dreeben responded that "the independent counsel regime did have many structural features that emphasized the independence at the expense of accountability. We don’t have that regime now."

 

 

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39 minutes ago, Commissar SFLUFAN said:

 

Your "concern" is duly noted, Neil.

 

"The constitution says only people named Donald J. Trump get to be king" would technically be a narrow ruling!

 

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31 minutes ago, chakoo said:

Time to just pack the **** out of the courts send in Seal Team 6 to the courts if biden wins because we're well past the point of just saying fuck it.

 

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5 hours ago, Commissar SFLUFAN said:

As he considers immunity in a case centered on a president's refusal to accept his electoral defeat, Justice Samuel Alito suggested that not giving presidents immunity will actually discourage peaceful transfers of power.

 

Alito pressed Michael Dreeben, the attorney for the special counsel, on the idea that an outgoing president who looses a hotly-contested election will be disincentivized from leaving office peacefully because he will fear prosecution by the administration of his successor, a "bitter political opponent."

 

Would that not "lead us into a cycle that destabilizes the functioning of our country as a democracy?" Alito asked.

 

If a President is granted Supreme Leader powers:

 

A. A loser is encouraged to attempt a coup before he goes, because there is no downside to it (no worse than conceding normally), so might as well try.

B. He may attempt to retire peacefully, but the new President can now do a lot worse than prosecute him. Will he get the dogs or the anti-aircraft gun?

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This remains a hilarious farce due to the fact that they're raising these "concerns" while a President who opposes them is currently in power. "Hmm, should Biden be able to have the entire Supreme Court and Congress executed and replaced with puppets? Hmmmm... It's a real head scratcher!"

 

Of course, this only applies to a universe where Biden is fuckin' rad as hell, not ours.

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17 minutes ago, Xbob42 said:

This remains a hilarious farce due to the fact that they're raising these "concerns" while a President who opposes them is currently in power. "Hmm, should Biden be able to have the entire Supreme Court and Congress executed and replaced with puppets? Hmmmm... It's a real head scratcher!"

 

Of course, this only applies to a universe where Biden is fuckin' rad as hell, not ours.

 

 

 

It really is frustrating and an inherent example of how Trump, just walking in the door, has already beat the system(both judicial and media) that we all are apparently expected to stroke our chins and say, "Mmmhmmm, yes yes. This is a very fascinating legal conundrum that requires weighty thought and adjudication from the highest court in the land. Who knows, could go either way. Perhaps the Justices in their austere wisdom will pave an understated path through a middle ground that can really unify the country."

 

He wants to attempt coups and get a fucking Get Out of Jail free card because he can't even do Dictatoring without declaring figurative bankruptcy!!!!!!

 

 

 

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46 minutes ago, Xbob42 said:

This remains a hilarious farce due to the fact that they're raising these "concerns" while a President who opposes them is currently in power. "Hmm, should Biden be able to have the entire Supreme Court and Congress executed and replaced with puppets? Hmmmm... It's a real head scratcher!"

 

Of course, this only applies to a universe where Biden is fuckin' rad as hell, not ours.

 

It really is galling. Their questions hinge on the idea that because Biden is a normal person, they won't have any repercussions even though if Biden followed through on supreme leader powers, they'd be theoretically fucked. Hell, if they granted them to Trump, he's loyal to no one, so they could still be fucked. Not sure in what way this helps anyone. 

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