This was always a delaying tactic. This case was always coming to come down to SCOTUS deciding whether Trumps actions were illegal or not.

The President of The United States is actively prosecuting his biggest political rival, and his political rival's supporters, in the present.

Those of you with TDS, this is your sign. Let it go.

aggiehawg said:

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TXAggie2011 said:

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aggiehawg said:

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This is why I think the double jeopardy argument is a weak one on the impeachment/judgment theory.

Impeachment is a political process not a criminal one.

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I believe Trump's lawyers will ultimately reflect that they pushed that theory too hard and too far, or perhaps will reflect they never should have tried it.

That theory bogged them down today and bites into their more plausible argument about absolute immunity for official acts. Judge Pan was all over the latter issue today.

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Meh, put your weaker arguments in the middle, start and end with the strongest. One never knows when what they think is a weaker argument but it might hook an appellate court. Present it to preserve the issue for the next appeal is necessary else it is waived.

I haven't ever found the double jeopardy clause as a very persuasive argument, Then again I am not on a federal appellate court.

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I'm not saying its a distinct, bad argument that just distracts from their better argument. It distracts, but I'm also saying it potentially undermines their better argument.

Pan's point was that the impeachment argument concedes a former President *can* be prosecuted for official acts.

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Pan's point was that the impeachment argument concedes a former President *can* be prosecuted for official acts.

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See now we get to he Nixonian statement that it's not illegal when a President does it. (Which I disagree with from the time he said it until today.) But ordering the CIA to spy on rival political campaign is not what I would call an "official act" since there was no probable cause to believe those campaigns were engaged in criminal acts.

In 2020, it would not have been unreasonable for Trump to believe the elections in GA, AZ, WI, MI and PA were very very questionable as to whether the certification was legal under both state and federal laws?

Such an inquiry would have an ancillary effect beneficial to Trump but the public interest can stand by itself as an offical act under the take care clause bestowing such a duty?

Like I said before, thorny issue.

But Trump was an agent of Putin remember? I saw it on CNN.

Barnyard96 said:

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But Trump was an agent of Putin remember? I saw it on CNN.

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Well when I saw it they said he was literally Hitler. Which is it?

TXAggie2011 said:

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aggiehawg said:

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TXAggie2011 said:

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aggiehawg said:

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This is why I think the double jeopardy argument is a weak one on the impeachment/judgment theory.

Impeachment is a political process not a criminal one.

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I believe Trump's lawyers will ultimately reflect that they pushed that theory too hard and too far, or perhaps will reflect they never should have tried it.

That theory bogged them down today and bites into their more plausible argument about absolute immunity for official acts. Judge Pan was all over the latter issue today.

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Meh, put your weaker arguments in the middle, start and end with the strongest. One never knows when what they think is a weaker argument but it might hook an appellate court. Present it to preserve the issue for the next appeal is necessary else it is waived.

I haven't ever found the double jeopardy clause as a very persuasive argument, Then again I am not on a federal appellate court.

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I'm not saying its a distinct, bad argument that just distracts from their better argument. It distracts, but I'm also saying it potentially undermines their better argument.

Pan's point was that the impeachment argument concedes a former President *can* be prosecuted for official acts.

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Well let's strip privilege and immunity from all previous presidents and go through their actions with a fine-toothed comb. Obama wouldn't go for that, for sure.

WHOOP!'91 said:

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TXAggie2011 said:

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aggiehawg said:

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TXAggie2011 said:

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aggiehawg said:

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This is why I think the double jeopardy argument is a weak one on the impeachment/judgment theory.

Impeachment is a political process not a criminal one.

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I believe Trump's lawyers will ultimately reflect that they pushed that theory too hard and too far, or perhaps will reflect they never should have tried it.

That theory bogged them down today and bites into their more plausible argument about absolute immunity for official acts. Judge Pan was all over the latter issue today.

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Meh, put your weaker arguments in the middle, start and end with the strongest. One never knows when what they think is a weaker argument but it might hook an appellate court. Present it to preserve the issue for the next appeal is necessary else it is waived.

I haven't ever found the double jeopardy clause as a very persuasive argument, Then again I am not on a federal appellate court.

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I'm not saying its a distinct, bad argument that just distracts from their better argument. It distracts, but I'm also saying it potentially undermines their better argument.

Pan's point was that the impeachment argument concedes a former President *can* be prosecuted for official acts.

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Well let's strip privilege and immunity from all previous presidents and go through their actions with a fine-toothed comb. Obama wouldn't go for that, for sure.

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And suspend all federal SOLs while we are at it./sarc

I tend to lean towards the Reagan Judge's, Karen Henderson, perspective:

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"I think it's paradoxical to say that his constitutional duty to 'take care that the laws be faithfully executed' allows him to violate criminal law," said Judge Karen Henderson.

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https://www.axios.com/2024/01/09/trump-immunity-2020-election-case-appeals-court

Hearing a criminal case against a former president for acts performed while in office is beyond the competence of the judiciary to review.

The trial judge might think about dismissing the case against Trump on jurisdictional grounds. Dismiss on standing. Specifically doctrine of political question.

The power to censure the president was left solely to another branch of government. Seems like the constitution is express in that regard.

Send the case to the court of appeals on jurisdictional issue and let them justify all this before we go any further.

Doesn't make sense that the judiciary would allow itself to be used by the executive branch to prosecute political opponents.

Dealing with issues related to the president was left to Congress.

Let's not forget that congress heard this case and the Senate declined to convict.

So before we go any further, it makes make sense to get a final decision on whether an Article III court even has jurisdiction to hear the case at all.

This plan requires no motion from any party. A court always has jurisdiction to determine its own jurisdiction. Jurisdictional issues may be raised at any time. The trial judge could probably send this case up right now if they wanted to.

Same argument above applies to the document case.

So you looking at two concurrent cases with the same central issue.

Does the federal judiciary have jurisdiction to hear these cases against Trump?

Seems like a threshold issue.

Trump criminal cases get dismissed on a procedural bogo.

Red white and blue light special.

You heard it here first.

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Same argument above applies to the document case.

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Those acts didn't happen when he was in office. So how does your theory apply?

Going with the " you have to be impeached first" is what backed them into a corner at the oral arguments. Its an incredibly weak argument and using it hurt their good arguments.

Stat Monitor Repairman said:

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Hearing a criminal case against a former president for acts performed while in office is beyond the competence of the judiciary to review.

The trial judge might think about dismissing the case against Trump on jurisdictional grounds. Dismiss on standing. Specifically doctrine of political question.

The power to censure the president was left solely to another branch of government. Seems like the constitution is express in that regard.

Send the case to the court of appeals on jurisdictional issue and let them justify all this before we go any further.

Doesn't make sense that the judiciary would allow itself to be used by the executive branch to prosecute political opponents.

Dealing with issues related to the president was left to Congress.

Let's not forget that congress heard this case and the Senate declined to convict.

So before we go any further, it makes make sense to get a final decision on whether an Article III court even has jurisdiction to hear the case at all.

This plan requires no motion from any party. A court always has jurisdiction to determine its own jurisdiction. Jurisdictional issues may be raised at any time. The trial judge could probably send this case up right now if they wanted to.

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In my view, it is not whether the court has jurisdiction, rather it is a question of whether Jack Smith has proper authority and thus standing to invoke the jurisdiction of the court on behalf of the United States government?

If Smith is the problem, that will reach the Mar A Lago case, too. Perplexing to me why Trump's counsel would not embrace that argument and run with it too.There are many issues of first impression that could be raised in these cases involving Trump. That doesn't translate into a court has to rule on all of them, nor even address them in depth.

As we saw in many of the election cases, standing alone stops analysis of anything further as that negates the court's obligation or even the propriety of their doing so as such a ruling would then be an advisory ruling with no actual controversy properly before them.

BMX Bandit said:

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Going with the " you have to be impeached first" is what backed them into a corner at the oral arguments. Its an incredibly weak argument and using it hurt their good arguments.

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Fully agree. That position, particularly on the Jan 6th impeachment, contained no House hearings with witnesses and evidence being adduced for the Senate to review, really does not fit within the rest of our Constitutional framework.

Having said that, a hypothetical of a President being impeached for a Constitutionally named offense warranting impeachment, such as bribery. Use the Watergate hearings over an extended time and in depth before Articles of Impeachment are issued, yet the Senate fails to convict by the required margin.

Nonetheless, a state authority thereafter brings charges based on the same bribery accusation. In that setting, the impeachment/judgment/double jeopardy argument would have a bit more weight. Not saying it would be a winning argument but those facts would be more applicable.

I would be very surprised if SCOTUS rules that the president can order assassinations of political rivals, and only be prosecuted after conviction in the senate, like Trump's lawyer argued.

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Some info on Judge Florence Pan, one of the judges on the 3-judge panel hearing oral arguments on Trump's appeal of Judge Chutkan's order denying presidential immunity in J6 case.

Pan, appointed by Joe Biden, is married to Max Stier--a Dem Party activist and one of Brett Kavanaugh's chief antagonists. Stier claimed he observed Kav engaged in lewd behavior at Yale--he reported it to FBI and Senate during Kavanaugh debacle. He was recently featured in a film about Kavanaugh that criticized the FBI's investigation into various claims.

A longtime DC fixture, Pan has friends in high places.

From WashPo in 2021: "In one of her first hearings Wednesday, Pan took over the politically sensitive lawsuit brought by 2016 Trump campaign adviser Carter Page against the FBI, Justice Department and several former officials alleging they unlawfully surveilled and investigated him during the FBI's Russia probe.

A D.C. veteran, Pan offered to recuse herself from the case, saying she has been friends with a lawyer for defendant Lisa Page, a former FBI attorney. Pan said she has known Page's attorney, former Justice Department lawyer Amy Jeffress, for 27 years, attended her wedding, and met Page at a party."

Jeffress is married to DC District Court Judge Chris Cooper, appointed by Obama.

Merrick Garland officiated the wedding.

Isn't DC cute?

Although 3-judge panels are supposed to be "randomly" selected, Pan oddly is seated on an unusually high percentage of consequential political cases. She was on BOTH panels to hear arguments on an appeal related to 1512c2, obstruction of an official proceeding.

Pan was the decisive 2-1 judge in both decisions upholding DOJ's use of the post-Enron statute. Her lead opinion--and I use that term pejoratively--in Fischer v USA is now under review at SCOTUS.

While Pan admitted the "novel" use of 1512c2 in J6 cases--more than 300 J6ers slapped with the evidence tampering felony for their conduct on Jan 6 as is Donald Trump--she nonetheless adopted the broadest reading of 1512c2 to uphold DOJs interpretation.

Pan--and Childs, also on today's panel--upheld Judge Beryl Howell's nondisclosure order preventing Twitter from notifying Trump about Jack Smith's subpoena of his data and Howell's $350,000 fine against the company. Pan: "The whole point of the nondisclosure order was to avoid tipping off the former President about the warrant's existence."

Pan--and Childs again along with Obama appointee Cornelia Pillard--also upheld Howell's extraordinary ruling that pierced atty-client privilege btw Evan Corcoran and Trump in classified docs case, forcing Corcoran to turn over all his records to Jack Smith.

A decision, by the way, that never should have been made in DC since the alleged "crime" happened in southern Florida. Pan expressed no jurisdictional concerns there.

Pan has been assigned to several panels for appeals filed by J6 defendants. Just last week. Pan denied the appeal of Russel Alford, convicted by a DC jury of 4 misdemeanors and sentenced by Judge Chutkan to 12 months in prison.

This is the thinking J6ers must deal with. (Henderson, on today's panel, wrote this but Pan concurred):

"The trial evidence indicated that, during Alford's brief time within the Capitol, he was neither violent nor destructive. Nevertheless, we affirm his convictions because a jury could rationally find that his unauthorized presence in the Capitol as part of an unruly mob contributed to the disruption of the Congress's electoral certification and jeopardized public safety."

He was inside for 11 minutes.

Her performance today was less than compelling--superior, smug, combative, and dull.

She clearly came in ready to defend DOJ/Jack Smith--and her preposterous hypothetical about a president using Seal Team Six to kill a political rival was a set up to result in all the deadlines we are already seeing.

As I have suggested to some officeholders and candidates--the DC federal courts must be shut down. These partisans are making some of the most important judicial decisions in the nation's history and are ill-equipped to do so.

Judge Florence Pan is exhibit A.

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Everything is connected. Everything is rigged. Everything is corrupt. This is how Sodom on the Potomac operates

— Steve Ferguson (@lsferguson) January 9, 2024

shiftyandquick said:

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I would be very surprised if SCOTUS rules that the president can order assassinations of political rivals, and only be prosecuted after conviction in the senate, like Trump's lawyer argued.

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Safe bet on such a dumb hypothetical question...by Judge Pan.

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Judge Florence Pan immediately peppered Trump's lawyer with hypothetical situations in which, under Trump's theory, presidents could not be prosecuted.

Could a president, she asked, be prosecuted for selling pardons or military secrets or for ordering the assassination of a political opponent?

"I understand your position to be that a president is immune from criminal prosecution for any official act that he takes as president even if that action is taken for an unlawful or unconstitutional purpose. Is that correct?" Pan asked.

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LINK

Sauers' response was horribad though. Lawyers won't tell an appeal judge they are FOS but can object to premise of the question and steer it back to the factual situation of the case. He backed himself into a corner when he didn't have to.

Our Constitutional framework rejected a king's absolute sovereign immunity when writing Article II for a reason. Lousy argument, IMO.

Julie Kelly is usually a reliable source.

So Pelosi’s chief of staff was in communication with Secret Service—who told her (before they told Trump apparently) they would not be taking him to the Capitol as he planned.

Secret Service texts belonging to 30 or so agents/officials were purged by Biden DHS in late Jan 2021 https://t.co/aYQuO1Vb32

— Julie Kelly 🇺🇸 (@julie_kelly2) January 6, 2024

So Trump was planning on being at the Capitol on Jan 6th but the SS hadn't planned for that? Or the crowd became too large and the SS decided it was too dangerous? After all of the massive rallies Trump had had?

And the SS comunications were deleted so we can't know what really happened and how that decision was made?

shiftyandquick said:

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I would be very surprised if SCOTUS rules that the president can order assassinations of political rivals, and only be prosecuted after conviction in the senate, like Trump's lawyer argued.

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How about for a legitimate official act, like ensuring a fair election was conducted?

In Blassingame (civil trial) Trump argued that he was acting pursuant to the Take Care Clause by ensuring the faithful execution on the Electoral Count Act. The DC Circuit Court of Appeals found that he did not demonstrate that he was acting in his official capacity.

aggiehawg said:

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shiftyandquick said:

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I would be very surprised if SCOTUS rules that the president can order assassinations of political rivals, and only be prosecuted after conviction in the senate, like Trump's lawyer argued.

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Safe bet on such a dumb hypothetical question...by Judge Pan.

Quote:

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Judge Florence Pan immediately peppered Trump's lawyer with hypothetical situations in which, under Trump's theory, presidents could not be prosecuted.

Could a president, she asked, be prosecuted for selling pardons or military secrets or for ordering the assassination of a political opponent?

"I understand your position to be that a president is immune from criminal prosecution for any official act that he takes as president even if that action is taken for an unlawful or unconstitutional purpose. Is that correct?" Pan asked.

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LINK

Sauers' response was horribad though. Lawyers won't tell an appeal judge they are FOS but can object to premise of the question and steer it back to the factual situation of the case. He backed himself into a corner when he didn't have to.

Our Constitutional framework rejected a king's absolute sovereign immunity when writing Article II for a reason. Lousy argument, IMO.

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Who would have thunk he would hire bad lawyers who make ridiculous arguments?

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Sauers' response was horribad though. Lawyers won't tell an appeal judge they are FOS but can object to premise of the question and steer it back to the factual situation of the case. He backed himself into a corner when he didn't have to.

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Sauer's response was fine. There was no "objecting to the premise" beyond what Sauer did. Pan was clearly correct about the logical conclusion of the legal principle Trump's team is pushing.

The best Sauer could do was say what he basically said..."well for the really bad crimes, Congress would certainly impeach and convict him...", which was essentially objecting to the premise of the question by saying Trump didn't behave that badly, Congress would take care of him if he did.

Pan would have eviscerated him in front of the panel if he "objected" more strongly, in your words.

That just doesn't work well, however, when you're asking a Court to announce an entirely new legal principle. And of course, the follow up is "what if the President does it on his last day of office?" or any number of questions which lead to uncomfortable conclusions.

But Sauer's job yesterday was to do his best with the hand he had to play. I thought he did fine.

BMX Bandit said:

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Quote:

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Same argument above applies to the document case.

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Those acts didn't happen when he was in office. So how does your theory apply?

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The documents case arises out of the office of the president so the issue has got to be dealt with, if at all, in an Article I court.

Using the Espionage act to criminally prosecute Trump in federal court is an end run around powers left to Congress.

Congress wrote the espionage act ... if they want to apply that to a president or former president for acts arising out of the office of the president they have to do it in Congress.

One of the above got to have wheels.

People's brains get vapor-locked on the idea that the president could have immunity for criminal acts that occurred while in office. Ordering seal team 6 and all these wild hypotheticals we've been hearing.

A workable rule would be that the federal judiciary may be used to prosecute crimes rooted in common law; all other allegations arising out of the office of the president must be heard in an Article I court.

Seems like workable solution that is consistent with Consitution, no?

Stat Monitor Repairman said:

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People's brains get vapor-locked on the idea that the president could have immunity for criminal acts that occurred while in office. Ordering seal team 6 and all these wild hypotheticals we've been hearing.

A workable rule would be that the federal judiciary may be used to prosecute crimes rooted in common law; all other allegations arising out of the office of the president must be heard in an Article I court.

Seems like workable solution that is consistent with Consitution, no?

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Article I covers the legislature.

Article III addresses the judiciary.

There's layers stacked on layers of constitutional problems with these Trump cases.

Hans Christian Anderson had it right.

We watching townsfolk uncomfortably go along with the pretense of the Emperor's new clothes, because they don't want to appear inept or stupid.

Same thing happened with covid.

We got smart people willfully ignoring what's in front of their face.

Per CNN talking heads, the real question is whether the court makes a decision that allows the lower court to proceed with the criminal trial. The win for Trump is if this is rejected, and he can continue to appeal this all the way to SCOTUS, thus delaying the criminal trial until after the election. When he will pardon everyone. All Jan 6 actors, everyone. All the grifters, all the criminals. And then the grift show starts in earnest, esp if he is immune for all acts.

shiftyandquick said:

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Per CNN talking heads, the real question is whether the court makes a decision that allows the lower court to proceed with the criminal trial. The win for Trump is if this is rejected, and he can continue to appeal this all the way to SCOTUS, thus delaying the criminal trial until after the election. When he will pardon everyone. All Jan 6 actors, everyone. All the grifters, all the criminals. And then the grift show starts in earnest, esp if he is immune for all acts.

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That's your first mistake. CNN is trash and their legal analysts are worse than that.

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whether Jack Smith has proper authority and thus standing to invoke the jurisdiction of the court on behalf of the United States government?

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I too am disturbed by this concept that he can bring a case on behalf of the People of the United States alleging that the acting president of the United States committed fraud against the People of the United States [as voters].

Is he also prosecuting this case in the name of, and on behalf of the 81-million people that didn't vote for Trump, or in the name of the 74-million that did vote for Trump.

Who was the fraud perpetrated against?

All of the people? Some of the people? The government itself? The party in power?

We seemed to have glossed over this issue.

Specifically who was the alleged fraud perpetrated against?

And does the answer to this fall within the doctrine of political question?

MiamiHopper said:

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In Blassingame (civil trial) Trump argued that he was acting pursuant to the Take Care Clause by ensuring the faithful execution on the Electoral Count Act. The DC Circuit Court of Appeals found that he did not demonstrate that he was acting in his official capacity.

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DC civil court, you say? Pretty Dem-heavy area, like Manhattan. They voted to elect a DA on a "get Trump" platform, then were seated for the jury to get Trump.

Hmm. This is very interesting. Remember the Jan 6th Committee star witness, Cassidy Hutchinson? She was deposed several times before her appearance for live testimony. Anyone who is deposed has the opportunity to correct any errors in the transcription. That is called the errata sheet. Some distinct changes in her actual testimony. Just the News background article is HERE

Gouveia breaks it down in a 26 minute stream.



To read the errata sheet it is HERE

Watch the whole thing less than 12 minutes) but if short of time at the moment, go to ten minute mark. Liz Cheney writes in her book that she texted McConnell to get his agreement to stop any further objections from beig allowed at 4:10 PM on Jan 6th. All part of the plan.

.


ETA:

BUMP.