Supreme Court Justices Need Impeachment Warning on Decision In Trump vs. U.S.
Conservative-Reactionary Justices Think They Are Invincible and Untouchable, But They Are Subject to Impeachment If they Issue Opinion Supporting Trump Absolute Immunity from Criminal Prosecution
Legal Scholars, Historians, Journalists and other Americans were shocked to hear most of the conservative-reactionary Justices giving support to some of the previously incredible arguments of Trump’s attorney that Trump enjoys absolute immunity from acts he took as president organizing, supporting, and fomenting an insurrection on January 6 by his band of extremists who physically assaulted officers and managed to stop the Congress, temporarily, from considering the certification of Joe Biden as the next president. Actually, the Conservative-Reactionary Justices did not want to discuss the facts of the Trump case, and they preferred to wander in ever more incredible hypotheticals to divert attention from the ludicrous arguments being made by Trump’s counsel and the actual facts underlying Trump’s prosecution.
The Conservative-Reactionary Justices signaled they want the district court to examine questions about whether Trump’s conduct on the January 6 insurrection was an official act entitled to immunity or whether it was a campaign act not entitled to immunity. This ignores the highly important question whether a president has absolute or partial immunity for official acts, a view inconsistent with the Constitution, the criminal laws of the United States, the history of criminal responsibility for official acts of anyone in the executive, the military, or Congress.
As some others have suggested there is a better hypothetical to examine the limits, if any, of some new immunity crafted by partisan Justices despite the history of the United States. If president Biden declared that the Conservative-Reactionary Justices were a danger to the national security of the United States and our form of democratic government, could President Biden order the military, especially Seal Team 6, to murder each of the Conservative-Reactionary Justices? Would that protection of our national security and our Republican form of government as guaranteed by Article IV, Section 4 of the Constitution provide justification for President Biden’s official action, and would his assassination order by entitled to absolute immunity from criminal prosecution for murder of those Conservative-Reactionary Justices?
For reference, Article IV, Section 4 of the Constitution provides:
“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”
But what is a Republican form of government? Commentary published by the National Constitution Center states:
The Guarantee Clause requires the United States to guarantee to the states a republican form of government, and provide protection from foreign invasion and domestic violence. Although rarely formally invoked by Congress, the President, or the courts, there is some consensus on what it means.
At its core, the Guarantee Clause provides for majority rule. A republican government is one in which the people govern through elections. This is the constant refrain of the Federalist Papers. Alexander Hamilton, for example, put it this way in The Federalist No. 57: “The elective mode of obtaining rulers is the characteristic policy of republican government.”
Thus, the Guarantee Clause imposes limitations on the type of government a state may have. The Clause requires the United States to prevent any state from imposing rule by monarchy, dictatorship, aristocracy, or permanent military rule, even through majority vote. Instead, governing by electoral processes is constitutionally required.
However, the Guarantee Clause does not speak to the details of the republican government that the United States is to guarantee. For example, it is difficult to imagine that those who enacted the Constitution believed the Guarantee Clause would be concerned with state denial of the right to vote on the basis of race, sex, age, wealth, or property ownership. Article I, Section 2 of the Constitution left voting qualifications in the hands of the states, although state authority in this area has been altered by subsequent amendments.
The Guarantee Clause also does not require any particular form of republican governmental structure.
So, if president Biden declares that the actions of the Supreme Court are a danger to our national security and that decisions of the Court on voting rights and political campaign contributions are inconsistent with our constitutional guarantee of a republican form of government, under Mr. Trump and his attorney’s reasoning, President Biden would be immune from criminal prosecution. After his hit squad carried out their mission successfully, Biden would then have five or six nominations for replacement Justices.
Of course, the initial reason at least four Justices granted certiorari in this case was to review a magnificent and comprehensive decision by the D.C. Circuit Court of Appeals denying the entirety of Trump‘s claim of absolute immunity, and perhaps the only reason, was to delay Trump’s insurrection trial before Judge Chutkan until after the election. This was partisanship at its worst. And I could not leave the topic without noting that Justice Thomas did not recuse himself from this case even though his wife, Ginni, was one of the organizers and promoters of the January 6th Insurrection and attack on the Congress by Trump’s gruesome, armed supporters. But ethics has little effect on decisions of the Conservative-Reactionary Justices.
Now if you think this is overblown, let’s examine the actual oral argument in Trump vs. United States by examining the official transcript prepared by the Supreme Court’s designated court reporters.
Let’s start with the opening words of Mr. Sauer, the attorney for Trump:
Without presidential immunity from criminal prosecution, there can be no presidency as we know it. For 234 years of American history, no president was ever prosecuted for his official acts. The Framers of our Constitution viewed an energetic executive as essential to securing liberty. (emphasis added).
What Mr. Sauer omits is that for 234 years no president has acted in a manner invoking criminal law. But he goes on to suggest that a president would be subject to blackmail unless he was granted immunity for officials acts:
If a president can be charged, put on trial, and imprisoned for his most controversial decisions as soon as he leaves office, that looming threat will distort the president's decision-making precisely when bold and fearless action is most needed. Every current president will face de facto blackmail and extortion by his political rivals while he is still in office.
Sauer suggests that the president’s political opponents will be venal and ready to subject the former president to prosecution for his official acts even if there are no facts to support it- sort of like the Republicans impeachment of Secretary Mayorkas.
Sauer then makes his implicit argument for delay in deciding Trump’s case which Justice Gorsuch picks up later:
The implications of the Court's decision here extend far beyond the facts of
this case.
So, don’t look at the facts of what Trump did or did not do; instead, imagine all the possible circumstances where the president’s “energetic” actions could be challenged and think long and hard to deal with many issues not before the Court, but which will easily delay the decision until the end of June or later, safely beyond a trial and jury verdict before the election.
He then concludes with a totally misreading of history:
Prosecuting the president for his official acts is an innovation with no foothold in history or tradition and incompatible with our constitutional structure.
Now we get the questions from the Justices with Justice Thomas leading off with a question on the source of the immunity, and Sauer responds:
MR. SAUER: And Marbury against Madison itself provides strong evidence of this kind of immunity, a broad principle of immunity that protects the president's official acts from scrutiny, direct -- sitting in judgment, so to speak, of the Article III courts, that matches the original understanding of the Executive --
JUSTICE THOMAS: So how --
MR. SAUER: -- Vesting Clause.
JUSTICE THOMAS: -- how exactly would we determine what the -- what an official act is?
MR. SAUER: I'd say -- I'd point the Court to two cases for that. Obviously, Fitzgerald against Nixon is the best guidance that the Court gives where it -- of course, the Court adopted the outer perimeter test, and this Court engaged in analysis there that's very instructive here, where it looked at the level of specificity at which the acts are described, in -- in -- in that case, a civil case. Here, it would be the indictment.
The problem there is Fitzgerald is a civil case saying the president cannot be sued directly, so lawsuits are brought against the implementing executive instead. This does not prove anything for Sauer’s argument.
Now the Chief Justice Roberts steps in to help Trump’s lawyer but only succeeds in further muddying the waters:
CHIEF JUSTICE ROBERTS: Well, what if you have -- let's say the official act is appointing ambassadors, and the president appoints a particular individual to a country, but it's in exchange for a bribe. Somebody says, I'll give you a million dollars if I'm made the ambassador to whatever.
How do you analyze that?
MR. SAUER: That, I think, would fall under this Court's discussion in Brewster, where the Court held with respect to legislative acts that bribery is not an official act, which also matches the common law background. So the way that this Court in Brewster kind of sliced at the joint was to say accepting the bribe and the agreement to accept the bribe are not official acts. That's private conduct.
Now Justice Sotomayor takes over to add some clarity
JUSTICE SOTOMAYOR: Counsel, it can be alleged, but it has to be proven. Malum in se is a concept long viewed as appropriate in law, that there are some things that are so fundamentally evil that they have to be protected against.
Now … I'm going to give you a chance to say if you stay by it. If the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him, is that within his official acts for which he can get immunity?
MR. SAUER: It would depend on the hypothetical. We can see that could well be an official act.
JUSTICE SOTOMAYOR: It could, and why?
Because he's doing it for personal reasons? … And isn't that the nature of the Allegations here, that he's not doing them -- doing these acts in furtherance of an official responsibility; he's doing it for personal gain?
MR. SAUER: I -- I agree with that characterization of the indictment. And that confirms immunity because the characterization is that there's a series of official acts that were done for an unlawful or improper --
JUSTICE SOTOMAYOR: No, because -- even if you did it for personal gain, we won't hold you responsible. What do you -- how could that be? …
JUSTICE SOTOMAYOR: Well, we go back to Justice Thomas's question, which was, where does that come from? There are amici here who tell us that the Founders actually talked about whether to grant immunity to the president. And, in fact, they had state constitutions that granted some criminal immunity to governors. And yet they didn't take it up. Instead, they find -- they pass an impeachment clause that basically says you can't remove the president from office except by a trial in the Senate, but you can impeach him after. So -- you can impose criminal liability. We would be creating a situation in which we would be saying is -- this is what you're asking us to say -- which is that a president is entitled not to make a mistake but more than that. A president is entitled for total personal gain to use the trappings of his office -- that's what you're trying to get us to hold -- without facing criminal liability.
MR. SAUER: Your Honor, I would say three things in response to that. First, the doctrine that immunity does not turn on the allegedly improper motivation or purpose is something that this Court has reaffirmed in at least nine or ten cases.
JUSTICE SOTOMAYOR: That's absolute immunity. But qualified immunity does say that whatever act you take has to be within what a reasonable person would do. I'm having a hard time thinking that creating false documents, that submitting false documents, that ordering the assassination of a rival, that accepting a bribe, and countless other laws that could be broken for personal gain, that anyone would say that it would be reasonable for a president or any public official to do that.
Justice Jackson then picks up the questioning:
JUSTICE JACKSON: I mean, that's the determination in the absolute immunity world because, if you determine that it's an official act, then the principle is that you get immunity for it, correct?
MR. SAUER: That is correct.
JUSTICE JACKSON: … But, since Benjamin Franklin, everybody has thought, including the presidents who have held the office, that they were taking this office subject to potential criminal prosecution, no?
MR. SAUER: I don't -- I see the opposite.
Then Justice Jackson asks Sauer about Gerald Ford’s pardon of Richard Nixon:
JUSTICE JACKSON: So what -- what was up with the pardon -- what was up with the pardon for President Nixon?
MR. SAUER: I think that --
JUSTICE JACKSON: I mean, if everybody thought that presidents couldn't be prosecuted, then what -- what was that about?
MR. SAUER: Well, he was under investigation for both private and public conduct at the time, official acts and private conduct.
Justice Gorsuch then states the stage for a multi-part review of the indictment to add to the time necessary on remand, if they make the official unofficial distinction.
JUSTICE GORSUCH: And that left open in that case the possibility of further proceedings and trial.
MR. SAUER: Exactly right. And -- and that would be a very natural course for this Court to take. In this place, the Court can and should reverse the categorical holding of the D.C. Circuit that there's no such thing as official acts, especially when it comes to --
JUSTICE GORSUCH: But you'd agree further proceedings would be required?
MR. SAUER: That is correct. There would have to be -- and I would point the Court to Anderson against Creighton, where the Court said there would be kind of two stages of these further proceedings. There's looking at the indictment itself or, in that case, it was a -- you -- you know, a complaint, but look at the charging document itself and see whether on the face of it this is alleging official acts. And if not or it can't be determined, then there would be a factual proceeding. And all of that under Mitchell against Forsyth and so forth would have to occur before any other proceedings in the District.
Justice Alito then proposes a difficult test where there is no possible justification for the president’s action.
JUSTICE ALITO: Mr. Sauer, you began by explaining why you believe that immunity from criminal prosecution is essential for the proper functioning of the presidency. But my question is whether the very robust form of immunity that you're advocating is really necessary in order to achieve that result. So just to take one possible alternative, suppose the rule were that a former president cannot be prosecuted for official acts unless no plausible justification could be imagined for what the president did, taking into account history and legal precedent and the information that was provided to the president at the time when the act was taken. Would that be sufficient? Or, if it is insufficient, why would it be insufficient?(emphasis added).
MR. SAUER: That might be a much better rule than what emerged in the lower courts here. We think it would be insufficient because, again, that long line of cases talking about using the president's motives and the intrusive sort of consideration of the president's motives as transforming acts to official and unofficial would be -- would come into play.
Now with Justice Alito’s difficult test for a prosecutor but a welcome one for Trump, Justice Sotomayor tries to bring the discussion back to the Trump case which the Conservative-Reactionaries are trying to avoid.
JUSTICE SOTOMAYOR: So apply it to the allegations here. What is plausible about the president insisting and creating a -- a fraudulent slate of electoral candidates? Assuming you accept the facts of the complaint on their face, is that plausible that that would be within his right to do?
MR. SAUER: Absolutely, Your Honor.
Justice Barrett then does a successful job of bringing the arguments back to the Trump case and secures a major concession from Sauer.
JUSTICE BARRETT: Three private actors, two attorneys, including those mentioned above, and a political consultant helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding, and Petitioner and a co-conspirator attorney directed that effort.
MR. SAUER: You read it quickly. I believe --
JUSTICE BARRETT: Yeah.
MR. SAUER: -- that's private. I don't want to --
JUSTICE BARRETT: So those acts, you would not dispute those were private, and you wouldn't raise a claim that they were official?
MR. SAUER: As characterized.
Then Justices raise a variety of hypotheticals to test the official vs. unofficial characterization, assuming they agree that official acts are immune, a question in great dispute, and some reject the distinction where one has a Get Out Of Jail Free Card attached. Then Justice Kavanaugh joins the fray raising the question whether each criminal statute has to explicitly apply to the president, a rule which would prevent most presidential prosecutions as most statutes do not name the president:
JUSTICE KAVANAUGH: Just to follow up on the OLC (Office of Legal Counsel) opinions question, as you read them and I think I read them, they articulate a clear statement rule, as do this Court's cases for covering official acts. And your point, I think, but I just want to underscore this, is that none of the statutes alleged here or cited here have a clear statement covering the president, therefore, meaning that the president can't be charged for any official acts under this -- under these statutes.
MR. SAUER: That's absolutely correct. They're extended way beyond.
Justice Barrett then turns to Trump’s argument that a president can only be criminally prosecuted if he is impeached and convicted in the Senate, something that has not happened in the last 235 years. She notes the Nine Justices can be impeached.
JUSTICE BARRETT: Okay. So there are many other people who are subject to impeachment, including the nine sitting on this bench, and I don't think anyone has ever suggested that impeachment would have to be the gateway to criminal prosecution for any of the many other officers subject to impeachment. So why is the president different when the Impeachment Clause doesn't say so?
MR. SAUER: Someone very important has made the opposite suggestion as to the president himself, which is Solicitor General Bork, which is reaffirmed in the OLC opinions on this, where the -- where Solicitor General Bork, in 1973, as to the issue of the vice president, reviewed the historical materials, and he said the sequence is mandatory only as to the president. That is DOJ's view of the original understanding of the Impeachment Judgment Clause, which is exactly our position. The sequence is mandatory only as to the president.
Justice Barrett then quizzes Sauer on his claim that the president must be specifically named in a criminal statute to be prosecuted recognizing that hardly any criminal statutes specifically name the president: another Get Out Of Jail Free Card:
JUSTICE BARRETT: Okay. So just to pick up Justice Kagan's example of a president who orders a coup, let's imagine that he is impeached and convicted for ordering that coup. And let's just accept for the sake of argument your position that that was official conduct. You're saying that he couldn't be prosecuted for that, even after a conviction and impeachment proceeding, if there was not a statute that expressly referenced the president and made it criminal for the president?
MR. SAUER: There would have to be a -- a statute that made a clear statement that Congress purported to regulate the president's conduct.
This is the most outlandish of Trump’s arguments that even after impeachment and conviction a president cannot be prosecuted for ordering a coup unless there is an criminal anti-coup statute that names a president. If he is not named, he cannot be prosecuted for using the military or a group of ragtag supporters to stage a coup.
Justice Jackson then shows the fallacy in Trump’s arguments that would result in a criminally immune president.
JUSTICE JACKSON: -- I'm not sure that's -- that that's much of a backstop. And what I'm, I guess, more worried about, you seem to be worried about the president being chilled. I think that we would have a really significant opposite problem 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.
Mr. Dreeben, on behalf of the Special Counsel and DOJ, summarizes his argument:
MR. DREEBEN: This Court has never recognized absolute criminal immunity for any public official. Petitioner, however, claims that a former president has permanent criminal immunity for his official acts, unless he was first impeached and convicted. His novel theory would immunize former presidents from criminal liability for bribery, treason, sedition, murder, and, here, conspiring to use fraud to overturn the results of an election and perpetuate himself in power. Such presidential immunity has no foundation in the Constitution. The Framers knew too well the dangers of a king who could do no wrong. They therefore devised a system to check abuses of power, especially the use of official power for private gain. Here, the executive branch is enforcing congressional statutes and seeking accountability for Petitioner's alleged misuse of official power to subvert democracy. That is a compelling public interest. In response, Petitioner raises concerns about potential abuses. But established legal safeguards provide layers of protections, with the Article III courts providing the ultimate check. The existing system is a carefully balanced framework. It protects the president but not at the high constitutional cost of blanket criminal immunity. That has been the understanding of every president from the framing through Watergate and up to today. This Court should preserve it.
In response to Chief Justice Roberts, Mr. Dreeben states the following position:
MR. DREEBEN: Well, I -- I think I would take issue, Mr. Chief Justice, with the idea of taking away immunity. There is no immunity that is in the Constitution, unless this Court creates it today. There certainly is no textual immunity. We do not submit that that's the end of the story. United States versus Nixon wasn't a textually-based case. Neither was Nixon versus Fitzgerald. We endorse both of those holdings. But what is important is that no public official has ever had the kind of absolute criminal immunity that my friend speaks of, even with respect to the Speech or Debate Clause. It's very narrow. It's focused on legislative acts. It's not focused on everything that a Congressman does. And it responds to a very specific historical circumstance that basically involved the two other branches potentially harassing legislators and preventing them from doing their jobs. That's why it ended up in the Constitution. Nothing like that ended up in the Constitution for the presidents, and that's because one of the chief concerns of the Framers was the risk of presidential misconduct. They labored over this. They adopted an impeachment structure that separated removal from office as a political remedy from criminal prosecution. This departed from the British model. The British model was you get impeached and criminally prosecuted and convicted in the same proceeding. The Framers did not want that. They wanted a political remedy in case a president was engaging in conduct that endangered the nation. He could be removed.
Justice Kavanaugh then refers to threats of improper presidential prosecution and his fear that political opponents will go after former presidents.
MR. DREEBEN: I don't think -- across the board that a serious constitutional question exists on applying any criminal statute to the president.
JUSTICE KAVANAUGH: The problem is the vague statute, you know, obstruction and 371, conspiracy to defraud the United States, can be used against a lot of presidential activities historically with a -- a creative prosecutor who wants to go after a president.
MR. DREEBEN: I think that the question about the risk is very serious, and, obviously, it is a question that this Court has to evaluate. For the executive branch, our view is that there is a balanced protection that better serves the interests of the Constitution that incorporates both accountability and protection for the president. And I want to go through the protections that do exist, but perhaps it's worth returning at the outset to the statutory construction question that you raised. The Office of Legal Counsel has said the offense of bribery, of course, applies to the president. It does not name the president, Justice Gorsuch. Section 201 does not specifically name the president.
Justice Gorsuch returns to his if the statute does not name the president it does not apply, but he goes farther:
JUSTICE GORSUCH: So, for example, let's say a president leads a mostly peaceful protest sit-in in front of Congress because he objects to a -- a piece of legislation that's going through.
MR. DREEBEN: Mm-hmm.
JUSTICE GORSUCH: And it, in fact, delays the proceedings in Congress. Now, under 1512(c)(2), that might be corruptly impeding a proceeding, an official proceeding. Could -- is that core and therefore immunized or whatever word, euphemism you want to use for that? …
JUSTICE GORSUCH: Or is that not core and therefore prosecutable --
MR. DREEBEN: Well, it's --
JUSTICE GORSUCH: -- without a clear statement that applies to the president?
MR. DREEBEN: It's not -- it's not core. The core kinds of activities that the Court has acknowledged are the things that I would run through the Youngstown analysis. And it's a pretty small set, but things like the pardon power, the power to recognize foreign nations, the power to veto legislation, the power to make appointments, these are things that the Constitution specifically allocates to the president.
Justice Gorsuch’s hypothetical of a political demonstration on Capitol Hill in opposition o a piece of legislation is hardly something that corruptly interferes with the working of Congress, but it is a scary prelude for what Gorsuch considers “corrupt interference” when a president joins citizens exercising their First Amendment rights to oppose legislation.
Mr. Dreeben tries to focus attention on the essence of the obstruction by Trump and his allies:
MR. DREEBEN: So the potential for self-interest would explain why the states conduct the elections. They send electors to certify who won those elections and to provide votes. And then Congress in a joint -- extraordinary joint session certifies the vote. And the president doesn't have an official role in that proceeding. So it's difficult for me to understand how there could be a serious constitutional question about saying you can't use fraud to defeat that function. You can't obstruct it through deception. You can't deprive millions of voters of their right to have their vote counted for the candidate who they chose.
Justice Alito then questions whether grand juries provide protection from overzealous prosecutors of presidents and others, and in doing so he undermines the grand jury system:
JUSTICE ALITO: I understand that, Mr. Dreeben, but as I said, this case will have effects that go far beyond this particular prosecution. So moving on to the second level of protection that the D.C. Circuit cited, federal grand injuries will shield former presidents from unwarranted indictments. How much protection is that?
MR. DREEBEN: Well, it -- it affords two levels of protection. One is the probable cause finding requires evidence. I think some of the fears about groundless prosecutions aren't supported by evidence, and they're not going to get out of the starting gate.
JUSTICE ALITO: I mean, there -- there's the old saw about indicting a ham sandwich.
Now Justice Alito questions about the president’s ability to self-pardon and what the effect might be.
JUSTICE ALITO: All right. Now, if a - an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy? And we can look around the world and find countries where we have seen this process, where the loser gets thrown in jail.
MR. DREEBEN: So I think it's exactly the opposite, Justice Alito. There are lawful mechanisms to contest the results in an election. And outside the record but I think of public knowledge, Petitioner and his allies filed dozens of electoral challenges and, in my understanding, has lost all but one that was not outcome determinative in any respect. There were judges that -- that said, in order to sustain substantial claims of fraud that would overturn an election result that's certified by a state, you need evidence, you need proof. And none of those things were manifested. So there is an appropriate way to challenge things through the courts with evidence. If you lose, you accept the results. That has been the nation's experience. I think the Court is well familiar with that.
Justice Gorsuch, after going through many hypotheticals but paying little attention to the indictment against Trump, states that rather than deciding specific cases they are going to announce rules under varying circumstances for the ages. And the process of doing so will delay decision until the end of June or later, thereby accomplishing the extended delay of the Trump interference case.
JUSTICE GORSUCH: I appreciate that, but you also appreciate that we're -- …writing a rule for the ages.
Justice Kavanaugh joins Gorsuch in saying they are really concerned about the future, not this particular case. But they are now over their skis as their job as judges is to decide the cases before them not some set of hypotheticals that would convert them into a legislature with black robes.
JUSTICE KAVANAUGH: Okay. Second, like Justice Gorsuch, I'm not focused on the here and now of this case. I'm very concerned about the future. And I think one of the Court's biggest mistakes was Morrison versus Olson. … I think that was a terrible decision for the presidency and for the country and not because there were bad people who were independent counsels, but President Reagan's administration, President Bush's administration, President Clinton's administration were really hampered --
Justice Jackson then discusses what is necessary to decide Trump vs. US and not all the hypotheticals.
JUSTICE JACKSON: And so my question is, why isn't it enough for the purposes of this case, given what the Petitioner has argued, to just answer the question of whether all official acts get immunity?
MR. DREEBEN: That -- that is enough. And if the Court answers that question the way that the government has submitted, that resolves the case.
It is always difficult to predict the outcome of a case by oral arguments, but there are certain themes that suggest a typical liberal-conservative split. Justices Kagan, Sotomayor and Jackson will probably reject Trump’s theory of absolute immunity. Justice Barrett may side with them, but she may have a nuanced view not fully agreeing with either side. The true Conservatives-Reactionaries, including Chief Justice Roberts and Justices Thomas, Alito, Gorsuch and Kavanaugh tend toward giving some credence to either absolute immunity for official acts or some qualified immunity. But voting and reading drafts might cause them to doubt the wisdom of agreeing to an absolute immunity position as there would likely be tremendous citizen outrage and challenges to the Court’s legitimacy.
It is hoped they do not embark on the immunity solution, but even Trump’s counsel admitted that some of his acts were private and would not be entitled to any immunity allowing his trial to proceed in the district court.
But if the Justices go off the deep end and apply broad immunity to Trump, the Conservative-Reactionary Justices will have to consider possible impeachment proceedings against them. Justice Barrett noted that all Nine of the Justices are subject to potential impeachment. If one House Republican retired or died, the one vote majority Republicans have in the House could disappear, and in that event a possible Democratic majority could arise capable of voting for impeachment of Justices adopting a broad immunity position for Trump. Though they would probably not have sufficient votes in the Senate to convict, nevertheless, they would be the first Supreme Court Justices to be impeached, and it will impose a lifetime stain on their records.
A threat of impeachment might also diminish some of their holier than thou attitudes of invincibility. The Court’s legitimacy would suffer a massive blow by impeachment proceedings. Since many Americans already question the Court’s legitimacy, impeachment might result in major changes to the structure and organization of the Court and to impose mandatory ethics rules that would, for example, provide citizens with a remedy when Justice Thomas sits on this case and does not recuse when his wife, Ginni, was involved at a high level in organizing, promoting and encouraging the January 6 insurrection.
The Justices may have voted on this case last Friday or perhaps next Friday. But I expect there will be multiple internal drafts and a process of trying to organize a majority. Expect concurring and dissenting opinions. And maybe as the Justices discuss the case they will realize they are really being partisan and potentially subjecting the Court to ridicule, and they may retreat from some of their more outrageous positions. Will the Women be able to bring the Men to their senses? Will the Court with knowledge of the consequences give Trump a basis to dismiss part of the prosecution as official acts entitled to immunity even though his counsel admitted that some of the charged conduct was private and not subject to immunity, so there will be a Trump trial on at least the Trump counsel admitted private not official acts, if the Court imposes that presidential immunity on the nation.
…what a fucking pathetic piece of shit our country is… we went from front runners for civil rights movement of 60-70s to politically passive and finally politically impaired people, NAZIS taking our country state by state and school district by school district WITHOUT ANY RESISTANCE and only NAZIS on the march while democrats applauding Biden and waiting for a “blue wave”, we can’t just live in a democracy from election to election we have to sustain its progress, there’s no such thing as “status quo” in political climate, shit either goes “up” or “down” and we are in a such a deep hole that only delusional people can think elections alone can fix the country
https://www.idea.int/news/voting-no-longer-enough
Thank you , again Harold.