Special Prosecutor Jack Smith files with SCOTUS
To get to SCOTUS first and decide whether trump has immunity from any and all criminal prosecution. This has been the heart of trump’s attorney filings and to delay. In the Southern Florida Federal District, we can see this emerging with a judge who appears to be promoting delays. The manner of which is similar in getting him to the 2024 election where once elected (if such can be) he can claim immunity to crimes committed.
Then there is SCOTUS Justices who appear to have no limits as to what they can do while holding such office.
Professor Heather Cox in an earlier Letters from an American.
“Smart Move by Special Prosecutor Jack Smith.
To head off a plan by trump’s attorneys to slow the potential trial down for months, Special Prosecutor Jack Smith files with SCOTUS asking them to decide whether trump is immune from any and all criminal prosecution for anything he did while in office. In which case a decision would head off delay tactics. A gamble by the Special Prosecutor.
Prof. Heather Cox Richardson, Letters from an American, December 12 2023.
“Last night, Special Counsel Jack Smith asked the Supreme Court to decide Trump’s claim that he is immune from any and all criminal prosecution for anything he did while in office. That claim is central to Trump’s defense; he has requested the charges against him be dismissed because of that immunity.
When Judge Tanya S. Chutkan, who is overseeing the case in which Trump is charged with trying to overturn the 2020 presidential election, dismissed this claim, Trump’s lawyers appealed and asked for the case to be frozen while the appeal worked its way up through the courts. By going straight to the Supreme Court, Smith appears to be trying to stop Trump from delaying the trial until after the 2024 election.
The Supreme Court has agreed to consider whether it will hear the case. So far, Justice Clarence Thomas refuses to recuse himself, even though his wife Ginni was deeply involved in the attempt to overturn the 2020 presidential election. His refusal suggests that the Supreme Court’s new ethics rules are as toothless as their opponents charged.”
The DC circuit also granted an expedited appeal.
Seems to me exactly the opposite of a gamble by Smith. Prevailing at the appellate level does not win this for him and losing gives him a real headache. So even if he likes his chances at the appellate level, might as well skip it if he can.
He’s doing both. He’s bypassed the DC circuit in asking for review by SCOTUS, but also asking for expedited review by the DC circuit in case the SCOTUS insists on waiting for the circuit ruling.
Whatever works, I guess. No point in having it delayed a lot, but the downside of a slip isn’t too serious. He’s not much of a flight risk and keeping track of him should be easy.
Well, at least we should get a sense of how the Supremes feel about the Unitary Executive protections of the the presidency.
Federalist Paper No. 70 argues in favor of the unitary executive created by Article II of the United States Constitution. According to Alexander Hamilton, a unitary executive is necessary to ensure accountability in government.
The unitary executive theory is a normative theory of United States constitutional law which holds that the President of the United States possesses the power to control the entire federal executive branch.
– Wikipedia
@Fred,
Where does it say in the Federalist Papers or the Constitution that the President is forever immune from any and all crimes committed during his/her presidency?
Dunno. Haven’t read them.
Federalist Paper No. 70, maybe.
To advocate a Unitary Executive theory, you would have to assert that the only way to ‘punish’ a President is by impeaching him, presumably.
Under the Constituion, the only stated way to deal with a misbehaving President is to impeach him.
That doesn’t mean they’re immune. Is asserting that ‘It depends on what the meaning of ‘is’ is.’ a high crime?
(Yeah, I know. That isn’t what they impeached Clinton for.)
@Fred,
You posted this:
“Federalist Paper No. 70 argues in favor of the unitary executive created by Article II of the United States Constitution. According to Alexander Hamilton, a unitary executive is necessary to ensure accountability in government.”
But then you said you haven’t actually read the Federalist Papers. So how do you know what they do and don’t argue if you haven’t read them?
My understanding is that the Federlalist Papers were intended to persuade the people of that time (or their legislators) that the Constitution was worthy of adoption, and with the addition of the Bill of Rights, it was – evidently. They’ve served their purpose.
Now Conservatives (‘Originalists’) hang on every word therein, in some cases inappropriately. Like accepting the notion that execution is constitutionally permitted as a punishment because ‘while it is cruel, it is not unusual’ (Scalia), ignoring the consideration that ‘back then’, when a punishment was cruel, it was also ‘unusual’, ipso facto.
It all depends on what the meaning of the word ‘and’ is. And back then, it could mean ‘or’.
So it is with ‘Unitary Executive’. The founders apparently gave insufficient thought to what troubles this would bring.
(BTW, ‘unitary executive’ is due to the thinking of Christopher Yoo, not John Yoo. Also Steven Calabresi.)
These words are not in the Constituion. The ‘vesting clause’ and the ‘take care clause’ is.
There’s a lot of very quaint language in the Constitution, that ought not to be taken literally.
Interestingly, ‘All men are created equal’ was not taken literally back then (but those words are not in the Constitution after all.)
BTW,
Federalist Paper No. 70 argues in favor of the unitary executive created by Article II of the United States Constitution. According to Alexander Hamilton, a unitary executive is necessary to ensure accountability in government.
is quoted directly from Wikipedia.
In any case, the conservative Justices are all Federalist Society stalwarts, so it’s likely that they support Unitary Executive theory.
Originalism as King
Federalist Society Review – Vol 22 – John C. Yoo – April 20, 2021
(John Yoo was the George Bush Sr lawyer who most espoused the theory.)
(And what was the question?)
Y’know, no less a legal light on the Constitution was revealed in Part 3 of ‘The Nixon Interviews’ when David Frost asked RMN…
If that was good enuf for Nixon, it was certainly good enuf for Trump, as far as Unitary Executive theory goes.