Back in April, lawyers for POTUS 45 and special prosecutor Jack Smith argued before SCOTUS about the scope of presidential immunity within the context of the January 6 insurection. Since vacating the White House, 45 -a "colorful" former POTUS whose wake is awash in litigation- has been charged in four separate criminal cases; a lot to keep track of even for us over here at the Law Blogger.

This case seems to hinge on whether 45's complained of acts [attempting to overthrow the election] were within the scope of his official conduct [and therefore immune] or were private acts [and therefore subject to prosecution].

45 was charged with conspiring to overthrow the 2020 presidential election. Attorney General Merrick Garland took a step back and assigned the case to a special prosecutor so that 45 was not being prosecuted by the DOJ during is political opponent's stint in the White House.

45 argued that the special counsel's January 6th case against him should be dismissed becuse he is absolutely immune from prosecution for any acts he performed while POTUS. The United States District Court Judge denied 45's argument, ruling that the special prosecutor's case involved 45's private conduct, not his official acts as POTUS. 

The United States Court of Appeals for the DC Circuit affirmed the trial court judge's ruling denying 45's motion for summary judgment [dismissal]. SCOTUS granted certiorari last fall and following the oral arguments on the case in April, a decision is expected by the end of this month.

From the array of criminal charges brought against 45, this one stands out. MAGA nation decries that it is just another example -perhaps the most egregious- of the political persecutions suffered by the former president. 

Summary of the Legal Arguments.

When taking law school courses, law students learn about the minutiae of the separation of powers doctrine. There are sepcific roles and duties for each branch. 

Over the years, the scope of power of the POTUS has been a matter of debate. Think of the intense scrutine the Chief Executive's powers underwent courtesey of the Congress following Nixon's Watergate scandal. 

In arguing that POTUS has absolutely immunity from all criminal prosecution, 45's lawyer asserted that the presidency as an instrument of government would be permanently and detrimentally changed if a president could be charged with crimes for actions taken while in office. The specter of a political prosecution was raised, using the example of 46 being charged with felonies based on his immigration policy of allowing illegal immigrants into the United States. The challenge for 45's lawyer at oral argument focused on the distinction between official and private acts.

The United States' lawyer asserted, on the other hand, that SCOTUS has never recognized absolute criminal immunity for any public official. Even if presidents did not have absolute immunity for their official acts, the government lawyer told the justices that POTUS is entitled to "special protection" for its core constitutional powers: things such as recognizing foreign governments, pardon and veto powers, and the power to make administrative appointments.

What the Justices Thought.

Two of 45's appointments to the bench, Justices Gorsuch and Kavanaugh, were taking a long-range point of view; they spoke of deciding this case for future presidential administrations. These justices worried about the weaponization of criminal charges against future presidents and the paralyzing effect they would have on administrations down the road. 

There is some speculation as to where Chief Justice Roberts will land on this case; and whom he will assign to write the opinion. As chief justice, it may be an opinion he will assign to himself. Remanding the case to the lower court to determine which of the charged acts are private and which are public was very much on the minds of the collective justices. 

The possibility of a remand to the trial court is distinct. The probability that Jack Smith's case will be tried to a jury prior to the presidential election in November is low. 

Stay tuned and we will break it down for you from our perspective over here at the Law Blogger. SCOTUS will issue its decision this term. They usually like to reserve a seminal constitutional case like this one for the final day of the term. This year, their final scheduled conference day is Wednesday, June 26, 2024.

Post #639

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"It's Bad You Know..."

Roe -v- Wade critic
Judge William Pryor

The checks and balances of our unique style of Democracy are on display in the federal judiciary where the judges are appointed by the Chief Executive with the advice and consent of the Senate. At the highest level, the POTUS, the SCOTUS, and the U.S. Senate interact in a tightly-choreographed political chess match.

For nearly a year, Justice Antonin Scalia's seat on the SCOTUS has remained vacant since his death. President Obama, having nominated federal appeals court judge Merrick Garland, was already a lame duck and could not get the Senate to provide the advice and consent required by the U. S. Constitution.

During his first week in office, President Trump has reportedly narrowed the field to three nominees -all federal appellate jurists appointed to the bench by President George Bush- and is expected to announce his nominee as early as this week:

• Thomas Hardiman - 3rd Circuit Court of Appeals Judge, University of Notre Dame and Georgetown University Law Center graduate, appointed to the federal bench by President Bush in 2007 at the age of 31; 
• William Pryor - 11th Circuit Court of Appeals Judge, Northeast Louisiana University and Tulane University Law School graduate, appointed to the federal bench in 2006; and 
• Neil Gorsuch - 10th Circuit Court of Appeals Judge, Harvard Law School graduate with experience clerking for two SCOTUS justices [Kennedy and White], also appointed to the bench in 2006.

All three nominees have solid conservative bona fides, yet with a few interesting outliers among their jurisprudence. For example, Judge Hardiman once wrote an opinion reversing summary judgment in favor of an employee's "gender stereotyping" case against his employer [the plaintiff is a transgender woman], ruling that the disgruntled employee's suit could proceed. Another key example is when Judge Pryor -Alabama's Attorney General at the time- removed Chief Justice Roy Moore for his refusal to remove a plaque of the 10 Commandments from his courtroom.

Over their respective careers on the federal appellate bench, all three jurists have come down mostly on the side of the state in death penalty cases and on immigration issues. Judge Pryor has left no doubt where he stands on abortion, calling Roe -v- Wade, "the worst abomination in the history of constitutional law."

For his part, Judge Gorsuch may be the most natural replacement for the irreplaceable Justice Scalia. In his legal writings and scholarship, Gorsuch has exhibited incisive conservative legal analysis combined with a flair for conveying that analysis in a legal opinion. SCOTUSBlog characterizes his opinions as, "exceptionally clear and routinely entertaining." Very rare for an appellate decision.

Although he has not addressed major abortion cases as a sitting judge, Gorsuch's jurisprudence includes several high-profile cases involving the freedom of religion clauses of the Constitution. One was the Hobby Lobby case which challenged the "contraception mandate" of the Affordable Care Act; Judge Gorsuch wrote a concurring opinion in the en banc rehearing that sided with the company and the decision was largely vindicated by the subsequent SCOTUS opinion.

Considering the importance of the SCOTUS functioning with a full compliment of justices, and considering how important it is for conservatives [President Trump arguably not among them] to replace a conservative jurist with a like-minded jurist, we here at the Law Blogger are looking for a SCOTUS nomination this week.

History tells us, however, that not every federal judicial nominee adheres to the script upon which he or she was appointed. Presidents Nixon, Reagan and Clinton have all been burned.

Post #575

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This week, President Obama [POTUS] grabbed big headlines by endorsing same-sex marriage as a personally held belief.  He admitted to changing his views on the subject [again] after discussing this issue with his wife and daughters, and perhaps, after Vice President Biden threw down the gauntlet, esssentially forcing the issue by asking, publicly, "what's wrong with it?"

Another Biden gaffe; or a script from the West Wing?  Hard to tell when the Chief keeps changing his position on the issue...

Meanwhile, as this post is being written, the GOP nominee for November's presidential election, Mitt Romney, is preparing to give 39th commencement address at Liberty University; the Lynchburg, VA, conservative Christian college founded by the Reverend Jerry Falwell in 1971.

You have to wonder if Romney will take the opportunity to either: criticize President Obama's newly-held endorsement of the freedom to marry between two consenting adults; or to espouse his own view that a marriage must be between a man and a woman; as stated in the Bible and codified in the DOMA [the federal Defense of Marriage Act, ironically signed into law by President Clinton back in 1996].

Neither man has a choice at this point; the political battle lines are drawn.  Obama cannot alienate a solid chunk of his core supporters by holding any other view than an unequivocal support of same-sex marriage.  Similarly, if Romney, in addressing the marriage issue today, does not roundly criticize same sex marriage, he is done among moderate and conservative Republicans.

Executive branch politics aside, however, there is a group of interesting cases percolating through the federal court system on their way to the SCOTUS.  These cases involve challenges to the DOMA or to state laws that define marriage to the exclusion of same-sex couples.

We here at the Law Blogger have been following this issue over the past few years; here are some of our earlier posts tracking the subject:

• Illinois Becomes 6th State to Recognize Same-Sex Unions    January 2011
• Same-Sex Marriage Cases Go Constitutional    April 2010

There are three cases in the same-sex marriage pack that seem to be headed toward SCOTUS for their ultimate resolutions; two of those cases present direct constitutional challenges to specific provisions of the federal DOMA; the other case [Perry] challenges the constitutionality of a state law ban on gay marriage.

Here are the Justia links for these leading cases:

Pedersen, et al -v- Office of Personnel Management  [pending in Connecticut, but involving couples from that state as well as Vermont and New Hampshire]; 

Gill, et al  -v-  Office of Personnel Management  [post-post-note: 1st Circuit declares DOMA, section 3, unconstitutional, case will surely go to SCOTUS]; and, of course,

Perry  -v-  Schwarzenegger  [9th Circuit Court of Appeals recently -Feb 2012- affirmed lower court's ruling  overturning California's ballot proposal ban on same-sex marriage].

Executive branch politics on this state-law issue will, of course, continue to play out in the media.  The same-sex marriage issue could be the 21st Century version of the "abortion" bell weather with regard to a presidential candidate's personally-held beliefs.   

Legalities of same sex marriage, however, will continue to be determined on a state-by-state basis, with the larger constitutional issues being determined by the SCOTUS, not by what a sitting President thinks.  

On the other hand, Perry or one of the DOMA cases will most likely reach the SCOTUS at some point during the next presidential term.  Therefore, the next President's opportunity to appoint a justice to the closely divided High Court will have a significant impact on the ultimate resolution of the issue.

Constitutional law experts compare this issue to the one decided by the High Court in the 1967 case of Loving -v- Virginia, striking Virginia's ban on inter-racial marriage as unconstitutional.

All we can do is to stay tuned on this...

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