7.2.24 – Jeff Childers C&C News

“Supreme’s Great Decision on Trump; Past Presidents Can Now Be Prosecuted for Crimes” 

By Jeff Childers, Practicing attorney and well-known author

Excerpts from this article: 

☕️ DEVASTATING Tuesday, July 2, 2024 C&C NEWS 🦠 (coffeeandcovid.com)

… I’ll tell you what it [the U. S. Supreme Court decision on immunity] actually said, and then I will explain why it changes everything. 

I’ll tell you how the Supreme Court sneakily helped Trump anyway, even though this decision largely ignored his actual cases


Regarding Presidential Immunity —
for the first time in American history— the Supreme Court, solidly relying on a whole bunch of previous cases about related presidential issues, announced a brand-new three-tier immunity test:

Total Immunity for Constitutional Acts. The President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority. 

This blessed tier is only for when a president exercises explicit authority under 
Article Two of the Constitution. Things like negotiating treaties, issuing pardons, and directing military operations. As you can imagine, this is a small, well-defined tier.

Presumptive Immunity for Official Acts. The Court declared that “the President must be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the Executive Branch.” 

In short, if the President acts officially, as President, that act is immune
but a prosecutor can still proceed if they can show criminalizing that type of conduct will not hinder the Presidential office.

Prosecuting Presidents who order the military to assassinate (i.e. murder) their opponents would not harm the Presidential office because presidents are not supposed to murder people, and it wouldn’t hinder the Presidential office to criminalize murder

No Immunity for Unofficial Acts. “The separation of powers does not bar a prosecution predicated on the President's unofficial acts. 

The first step in deciding whether a former President is entitled to immunity from a particular prosecution is to distinguish his official from unofficial actions.” 

For example, the Court said a President has zero immunity when he acts as the leader of his political party or when pursuing his personal interests.

Actually, assassinating political rivals would probably fall squarely under Tier 3 — enjoying no immunity at all.

As you can see,
this three-tier system neither turns Presidents into kings — …nor places presidents above the law. Certainly not Trump. 

The decision only resolved a couple of the worst counts in a single Trump case. 

As for the surviving counts involved in this particular appeal (Judge Chutkan’s case), the Supremes bounced most of the counts back down to her, to apply the new test and then get back to them

Over-reacting Democratsare really only mad because the decision helped Trump indirectly WITH TIMING. 

Judge Chutkan now must order more briefings and hold more hearings to satisfy the new 3-Tier Immunity Test.

That will probably result in more appeals
arguing she applied the test wrong, and so forth; and before you know itthe election will have come and gone, and Trump will be walking around free

Democrats are also peeved because it gives Trump a small second bite at his “check stub” conviction. 

(7.1.24)his lawyers filed a letter motion to delay sentencing —scheduled for next week— and asked Judge Merchan to reconsider the verdict under the new test.  

It’s a long shot, because they never argued presidential immunity as a defense in that case. But still, it annoyed Democrats.

But all of this political wrangling misses the point. 

Let’s jump into the C&C time machine and travel back in time to 2020

Clueless, low-information Democrats are wailing that the Judges anointed a Presidential King by creating a three-tier test under which —wait for it— Presidents can be prosecuted for crimes. 

Democrats are acting like this is a revolutionary 
improvement of the Presidential position. But thatis a lie.

What was the rule
BEFORE the Supreme Court issued its decision? 

before Trump, no president was ever prosecuted for a crime

Presidential prosecutions never ever happened.

before Trump, presidents obviously enjoyed de facto total immunity. 

The unspoken rule that everyone followed was that nobody can prosecute the President, or even a former President.

During the period the 
de facto total immunity rule reigned, the Supreme Court never had to address Presidential immunity. 

There were no cases; that’s how absolute the immunity was. 

But now that the Court has crafted a de jure (legal) rubric

They can now be prosecuted much more easily, in fact. Just not for nuisance claims, like the creative, trumped-up claims brought against President Trump, such as for notating his check stubs wrong.

Let’s do a little thought experiment. 

Evidence shows
PRESIDENT OBAMA was involved in the now-discredited Russia Dossier matter, which was used as a false predicate to spy on the Trump campaign for partisan political purposes.

Evidence suggests
OBAMA KNEW THE DOSSIER WAS FAKE, purchased by the Clinton campaign. 

Yesterday’s new 3-tier test provides a clear procedure for
PROSECUTING OBAMA for those very serious allegations.

In other words,
the High Court incinerated de facto Presidential immunity, and replaced it with a clear de jure prosecutorial process. 

Former and future Presidents susceptible to more serious crimes than Trump’s are now fair game.

The irony! 

By bringing all these silly, creative claims against President Trump for keeping a few boxes of “classified documents,” and because his bookkeeper wrote the wrong thing on a check stub, the Supreme Court got an unprecedented opportunity to end forever the silent, implicit protection previously enjoyed by every other previous President. 

That de facto absolute immunity is gone, never to return.

And now it’s open season on serious crimes committed by Presidents.

If President Trump wins the election, this decision provides exactly the right tool his DOJ needs to prosecute the last twenty years of Presidential malfeasance and abuses of authority. 

In hindsight, it couldn’t have gone any better for Trump in the big picture. 

When Trump’s DOJ brings its first charges against
BIDEN and OBAMA, the media cannot wail about it being “unprecedented.”  He’ll just be following the law.

Beyond those long-term benefits for President Trump, the decision also placed a massive granite capstone on out-of-control Presidential authority. 

All future Presidents, Trump included, must now consider potential criminal liability under the new Trump v. US standard. 

The new rule will make Presidents much more careful when acting outside their Constitutional authority, like when they mandate vaccine shots or something

So … it’s not even so much that 
Trump won. 


But the good news doesn’t stop there! 

Justice Thomas’s concurrence slid an assassin’s knife into Trump’s two most dangerous criminal cases.

Judge Aileen M. Cannon sits in the Southern District of Florida and presides over the Mar-a-Lago raid case. 

She is the only Trump judge the Democrats dislike, intensely, because she has been ruling fairly. 

Judge Cannon right now is considering the issue of Special Prosecutor Jack Smith’s authority. 

And Supreme Court Justice Thomas just penned an entire concurring opinion carefully analyzing Prosecutor Smith’s authority. 

Justice Thomas’s conclusion was that Smith lacks the Constitutional basis to prosecute his two Trump cases

Justice Thomas’s astonishing concurrence is not binding law. That’s not what the case was about. 

But it just handed a shrink-wrapped legal package to Judge Cannon, that will fuel her decision against the Special Prosecutor. 

After all, she now has a complete roadmap dished up by a sitting Supreme Court Justice

If Judge Cannon follows Justice Thomas’s Constitutional roadmap —and why wouldn’t she?— both of Prosecutor Smith’s cases will probably be dismissed. 

Democrats couldn’t fairly criticize Judge Cannon’s decision to dismiss, because she won’t just be some rebellious federal judge in South Florida. 

Her opinion would be consistent with a Supreme Court Justice’s analysis. 

And when the government inevitably appeals, in light of Thomas’s concurrence, the Eleventh Circuit would be under great pressure to affirm her decision. 

Then the majority of the Supreme Court could decline to hear a further appeal, since the Court has essentially already weighed in.

Yesterday’s opinion greatly helped Trump, both by complicating his other cases apart from Prosecutor Smith’s, and also by stabbing Agent Smith’s two cases in the heart.

But beyond any benefits to President Trump, 
WE THE PEOPLE benefited the most.

This term delivered a trifecta of swamp-draining decisions. 

Let’s recap. In Jarkezy, the Court deleted Executive Agencies’ ability to prosecute citizens for crimes; that must now happen in a real court with a real jury. 

In Loper Bright, the Supreme Court overturned Chevron, stripping Executive Agencies’ right to interpret laws by themselves and restoring that power to the courts.

Yesterday, the Supreme Court quietly published 
Corner Post v. Federal Reserve, and squared the deep-state-demolishing circle. 

Corner Post deleted the current 6-year statute of limitations for challenging Executive Agency rules under the Administrative Procedure Act. 

Now, citizen plaintiffs can challenge long-standing
[Executive] Agency regulations WITHIN 6 YEARS OF BEING AFFECTED BY THEM. 

The Loper Bright decision made it easier to overturn bad
[Executive] Agency decisions going forward. 

 Corner Post just opened the door to retroactive challenges to decades-old regulations. 

Collectively, the new three-part immunity test plus the three-decision trifecta of administrative agency cases DRASTICALLY PRUNED PRESIDENTIAL AUTHORITY, about which conservatives and liberals alike (depending on who the sitting president was), have long and bitterly complained.

It is difficult to overestimate how much this Supreme Court just historically and permanently altered the landscape of FEDERAL GOVERNMENT OUTRREACH

I believe this unimaginable improvement in our national prospects was the inevitable result of the Supreme Court observing the government’s wild and painful overreach during the pandemic [e.g., vaccine mandates].

We’ve longed for a lone decision saying HHS and OSHA can’t just arbitrarily order people to take experimental medical treatments they don’t want. 

We didn’t get that. 

But what we did get is arguably and breathtakingly much, much better. 

The Supreme Court took the long view. They’ve changed everything —including but not only medical freedom— for the better

We had no right to expect this revolutionary Supreme Court session.