In the ongoing legal battle by former President Donald Trump to have decisions made by courts in various states to have him removed from the ballot for the 2024 Presidential Election (usually on the grounds of Section 3 of the 14th Amendment to the US Constitution), Mr Trump's legal team appear to be running a scatter gun approach by firing whatever they can in all directions and hoping something sticks.
One of those legal arguments is the idea that the Office of the Presidency, by virtue the decision in the Supreme Court case Nixon v. Fitzgerald (1982), enjoys absolute immunity from civil damage lawsuits while in office. The idea that the Office of the Presidency is also immune from criminal lawsuits is an open and untested question and although it is noteworthy that Harding, Nixon, Clinton and even Trump himself were all criminally investigated while in office, none of them were formally charged let alone prosecuted.
I think that Mr Trump's arguments look suspiciously like Parliament v Charles (1649) in which Charles tried to argue that King of England was not a person, but an office and therefore enjoyed sovereign immunity.
During lengthy arguments, the judges repeatedly pressed Trump’s lawyer to defend claims that Trump was shielded from criminal charges for acts that he says fell within his official duties as president. That argument was rejected last month by the lower-court judge overseeing the case against Trump, and the appeals judges suggested through their questions that they, too, were dubious that the Founding Fathers envisioned absolute immunity for presidents after they leave office.
- PBS News Hour, 9th Jan 2024.
Perhaps you might not be paying as much attention to this case but there have been some really bizarre twists in this case; including hearkening back to Mr Trump's quip that "I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn't lose any voters, OK?", in 2016. While history has proven that to be more or less true, the legal question of whether or not he could do it as President is unknown as no court has ever ruled on the matter of criminal immunity because no court has ever needed to.
- CNN, 9th Jan 2024.
For everyone who has missed this, Mr Trump's lawyer John Sauer, has literally argued that a President who orders Navy SEAL Team Six to assassinate theory political rival could only be subject to criminal prosecution if they were firstly impeached and then and only then, could a criminal prosecution proceed. Personally I think that this argument is so asinine and so dangerous, that no court would ever allow this to stand. Furthermore, having tested the absurd limits of the law, I think that Mr Trump will lose this case; which means that the Supreme Court will not even hear it; so by default the previous decisions will stand.
Can you imagine what would happen if such an argument? This would mean that the President of the United States would legally be handed brand new powers which would be even greater than that of a King.
Suppose that the President was given what amounts to sovereign immunity. If the President was handed that, then I would argue that President Biden would have the immediate ability (nay duty) to remove Trump from the ballots in all 50 states, and do so completely legally with his new superpowers. The really absurd result of this is that President Biden could legally order the killing of all GOP members of Congress thereby eliminating any impeachment inquiry and trial and get away completely scot-free with immunity and impunity.
No former president in American history until now has claimed immunity from prosecution that extends after they have left office, and in my not very well paid opinion the court should absolutely not recognize what amounts to novel immunity in a case of a president accused of committing crimes to try to stay in office after losing an election. Such a decision would be dangerously stupid with consequences immediately and forever.
No comments:
Post a Comment