BMX Bandit said:

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jackson:

theoretically, why is president not required to follow the law when performing an official act?

sauer:

I disagree with the characterizing, the president is required to follow the law, the question is "what are the consequences of not doing so." for president, consequence can't be going to jail.

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Dumb answer. Sauer is not handling these questions well.

aggiehawg said:

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BMX Bandit said:

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jackson:

theoretically, why is president not required to follow the law when performing an official act?

sauer:

I disagree with the characterizing, the president is required to follow the law, the question is "what are the consequences of not doing so." for president, consequence can't be going to jail.

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Dumb answer. Sauer is not handling these questions well.

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This answer makes no sense. "You must follow the law, but if you don't nothing will happen," is no different from, "You do not have to follow the law."

sauer is done. have a quick phone call.

Sauer was having to argue a tough position, and it lead to bad arguments from him. I feel like he's clinging to remand at this point.

HTownAg98 said:

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Sauer was having to argue a tough position, and it lead to bad arguments from him. I feel like he's clinging to remand at this point.

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Agree. Have never found the absolute immunity argument persuasive. And it was that argument that has led to these wild hypotheticals for which Sauer cannot answer.

alito:

you dispute that a former president has some immunity, but you agree former president has some protection because general statutes have to be applied differently to a president in some situations?

dreeben:

yes, that is long standing principle.

alito:

if its not immunity situation, but the special protections, then isn't former president subject to all the pains of having to go through trial, cant' do "other activities" (read: campaign) etc etc. why is that better?

dreeben:

thats just how it would go if there is no immunity.


kavanaugh:

you agree some actions of president are absolute executive power and can't be criminal?

dreeben:

absolutely

kavanaugh:

seems to me congress has to make specific law saying president doing something is illegal.

dreeben:

cases aren't that broad.


(dreeben has very high pitched womanly voice)

gorsuch:

seems like we are narrowing the area of dispute here. for example, president leads a "mostly peaceful protest" at congress (his words) which delays a proceeding. that may be corruptly delaying a proceeding and criminal for people there.. is that prosecutable against the president if the statute does not mention the president?

dreeben:

you have to run through the youngstown analysis to make that determination. but in your hypo, probably not prosecutable after a president leaves office. go through the factors and see.

gorsuch:

assume every factor goes against the president, he knows its corrupt, its on purpose etc. etc.

dreeben:

in that situation, if AG tells him he can do it because the protest is carrying out his article II powers, then not prosecutable. if AG says you can't do it, then there is a possibility he could be.

BMX Bandit said:

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(dreeben has very high pitched womanly voice)

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lol

yeah, sounds like a weenie


Doubt that has much weight with the Justices

he is well known by them and highly regarded, despite the voice.

for sure

I meant i doubt his voice is a detractor for them

alito:

presidents have to make lots of decisions based on unsettled law. are you saying if he makes a mistake he is subject to criminal prosecution even though hes in a special position?

dreeben:

he's in a special position for a variety of reasons. "making a mistake" does not result in criminal charges. specifically in this case, its not allegations of mistakes, it intentional actions.

alito:

lets not talk about this case, lets just talk generally.

dreeben:

government needs to show defrauding with intent to deceive. I don't think anyone would say a president needs to do that in order to fulfill his article II duties.

I would think qualified immunity would step into this issue to debate.

Dreeben has trapped himself with this line of argument that every prosecutor operates in good faith. When he is working for a second time for an animus motivated Special Counsel.

dreeben:

we disagree with the position that a former president cannot be charged with a crime unless he was first impeached.

(I think justices all agree, as no one has asked about it)

alito:

what about FDR interring Japanese Americans? could that be charged as violation of civil rights if it happened today?

dreeben:

yes if that happened now.

alito:

is advice of counsel an absolute defense for president?

dreeben:

yes. it would violate due process to prosecute a president if AG said what he was doing was lawfuil.

alito:

doesn't that lend to president appointing someone that will approve anything?

dreeben:

thats why senate has to advise and consent

alito:

can president pardon himself?

dreeben:

DOJ has no position that I know of and court has not addressed.

alito:

don't we need to know the answer to that? president could pardon himself on the way out.


dreeben:

I don't agree, political consequences would be too great as its unsettled question and risk is too high for person to do that given history suggests president can't pardon himself

Alito:

incumbent loses tight race and now thinks he may be prosecuted by rival, will that not lead us into cycle of destabilization of the country?

Dreeben:

its the opposite. there are lawful mechanisms to contest an election. Trump filed lots of legal challenges to the election. he is not being charged with a crime for those.

sotomayor:

gives a speech. no man above the law, yada yada yada. agree?

dreeben:

yes!

I don't see what the point is of Alito's question about a president pardoning himself. It's not an issue that was briefed,

kagan:

somethings are completely unreviewable, correct?

dreeben:

yes, like moving troops in the field. fully commander in chief and not reviewable or subject to criminal charges.

kagan:

how about statutes that don't mention president specifically?

dreeben:

those could be if it falls out of area of something the president must to in order to carry out his article II duties.

BMX Bandit said:

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Alito:

incumbent loses tight race and now thinks he may be prosecuted by rival, will that not lead us into cycle of destabilization of the country?

Dreeben:

its the opposite. there are lawful mechanisms to contest an election. Trump filed lots of legal challenges to the election. he is not being charged with a crime for those.

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Yes, he has been charged with a crime for those and the lawyers who filed them have been charged along side him.

BMX Bandit said:

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Alito:

incumbent loses tight race and now thinks he may be prosecuted by rival, will that not lead us into cycle of destabilization of the country?

Dreeben:

its the opposite. there are lawful mechanisms to contest an election. Trump filed lots of legal challenges to the election. he is not being charged with a crime for those.

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Tell that to Georgia Dreeban

Which case was he charged with filing a lawsuit? Not in this one.

Im Gipper said:

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Which case was he charged with filing a lawsuit? Not in this one.

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Conspiracy charges include what is often termed "frivolus" lawsuits. Dreeben himself brought that up and faslely stated to the Court that Trump lost all of them. That's a lie.

In Georgia, Fani Willis has a charge about a reponse to the federal district court in Northern Georgia. Sadow filed a motion to dismis those two charges as outside of her jurisdiction.

Nixon getting Pardon really sticks out.

Kagan:

you heard Sauer go over the private vs. official list that Barrett and I read to him. What is your take on that?

Dreeben:

I agree with most of what he said, most of this is private, not official. Like lying about who won the election and saying you are the correct elector is private. sauer agreed. thats president acting as a candidate, not as president

kagan:

what about removing a justice department official?

Dreeben:

that is part of official conduct, but to a personal end. it makes the crime worse to use DOJ to further it. Trump pushed DOJ to send false letters to states saying they should look into changing who electors were. They refused. we aren't seeking to hold Trump criminally liable for threatening to remove them, its the context of using this as overall conspiracy.

BMX Bandit said:

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the point was that Trump has filed lots and lots and lots of election challenges. those are not illegal to do.

the issues in this case are not that he filed an election challenge. its that he tried to put fake electors in place to have the real ones tossed out so he could remain in office

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Alternate electors.

Quote:

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Alternate electors.

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which don't exist in this case

Gorsuch:

Blaisngame standard work here?

Dreeben:

no, because that was civil case, not criminal case about acting as candidate or acting as president.

here is an example, Trump said "all I need you to do is find me 11,000 votes and change" that is clearly acting as office seeker, not president.

(not exactly what Trump said I don't think)


Gorusch:

do we look at motives of president?

Dreeben:

you look at objective of the activities, not the subjective motivation.


Gorsuch:

everything is done through personal desire to be reelected.

Dreeben:

of course.

Gorsuch:

in non-core matters, what rules apply there? removing a principal officer?

Dreeben:

thats a core power. can't say no criminal possibility if done corruptly, such if bribery.

Quote:

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Dreeben:

no, because that was civil case, not criminal case about acting as candidate or acting as president.

here is an example, Trump said "all I need you to do is find me 11,000 votes and change" that is clearly acting as office seeker, not president.

(not exactly what Trump said I don't think)

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It isn't. Parlatore made that clear that the beginning of that conversation was about the numbers that were being reported to him as questionable votes/ballots being around a hundred thousand. Daunting task for Raffensperger to conduct that large of an investigation (assuming he was so inclined, since he was not) within the small amount of time left to do so.

Sensing his reluctance, that is when Trump said scaling it back to the margin of victory being in the 11,000 vote area not a hundred thousand. Trump also repeatedly asked for Raffensperger's numbers so they could compare them but he refused.

aggiehawg said:

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Dreeben has trapped himself with this line of argument that every prosecutor operates in good faith. When he is working for a second time for an animus motivated Special Counsel.

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This seems to be the gaping hole to me. If things have to go to court to determine official capacity, then the president can be drug to court for every action they take. The lawfare gate flys off its hinges if a president isn't insulated by impeachment.

Kavanaugh:

Could Ford have been prosecuted for pardoning Nixon?

Dreeben:

no, because fully an article II core function

Kavanaugh:

Obama drone strikes?

Dreeben:

have to do the analysis of whether its "unlawful" under murder code, it would probably not be. (phone rang, so want to look on transcript later for the exact answer as I think its pretty important)

Quote:

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f things have to go to court to determine official capacity, then the president can be drug to court for every action they take.

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dreeben not arguing that. specifically says many things are not reviewable by congress or anyone.

barrett:

is it so bad to have the "public authority" defense be something that can be reviewed on interlocutory appeal like an immunity defense?

dreeben:

not really anything bad about it, court has power to create rules to allow that. not sure I agree with that route, but thats the court's power to permit procedurally.

Do you have a post-argument prediction?