Some Takeaways from the Appeals Court's Decision
Yesterday we ran a
about the "immunity" decision from the U.S. Court of Appeals in D.C. from a reader in Los Angeles, A.R., who is a
lawyer. That summarized the legal aspects very well. But there are also political aspects. The Washington Post's
four of them, as follows.
- The decision was full-throated: The decision, signed by both Democratic appointees and the
Republican appointee (who probably wrote most of it) was completely and totally unambiguous. Former presidents are not
immune to criminal prosecution for acts they did while in office. They didn't address the question of whether sitting presidents
can be prosecuted. There is currently a DoJ policy not to do that, but a future attorney general could scrap that policy
at any time. The decision left no wiggle room at all. That means Trump can't say: "Well, the Democratic judges were out
to get me but the Republican judges think I am innocent." The ruling said there was no justification whatsoever for the
claim that former presidents can't be prosecuted. None.
- The judges quoted his own lawyers: Trump's own impeachment lawyers said that he
could be criminally prosecuted even if he was impeached and acquitted by the Senate. One of them even said that the
criminal courts were actually the more appropriate venue. When Trump's own side is saying things like this, it really
strikes down the "witch hunt" argument.
- It will now be harder to delay: The founding parents wanted to build a judicial system in
which the issue in court cases was the guilt or innocence of the accused. They never considered the possibility that an
accused person didn't care about the verdict, but just wanted to keep delaying the trial until the other side was worn
out. And they certainly never considered the current situation of a presidential candidate trying to delay a trial so he could
be elected president and then throw the case out or pardon himself. The fact that the judges gave Trump until Feb. 12 to
appeal to the Supreme Court hits Trump hard. He can't throw in a couple of months delay now by asking for an en banc
ruling. SCOTUS will now likely either take up the case quickly or reject it. It seems unlikely, given the magnitude of
the case, that they will take the case, schedule oral arguments for October, then render a decision in June 2025. Chief
Justice John Roberts knows how much blowback he would get for that and it would destroy what is left of the reputation
of the Roberts Court. He doesn't want that. So Trump's political strategy of delaying all the cases until after the
election probably won't work. Also, the appeals court decision is so watertight that it seems very, very unlikely that
the Supremes will reverse it.
- Implications for a second Trump term: If Trump is put on notice that acts he undertakes
as president could lead to indictment and conviction after he leaves the Oval Office, it might constrain his behavior as
president considerably. If he knows that he will get a "Get-out-of-Jail-free" card when he leaves the White House, he
might intentionally break the law as president by ordering political opponents jailed or killed, etc., especially if the
Republicans have enough Senate seats to prevent an impeachment from leading to a conviction. But if he knows that there
is no such card and he can later be put in prison for things he does as president, it could definitely crimp his style.
Of course, these things hold only if the Supreme Court sustains the appeals court's ruling. If they reverse it, all
bets are off.
For what it is worth, Ty Cobb (Trump's former lawyer, not the dead baseball player)
"The immunity case should be a 9-0 case on the Supreme Court. It is very clear that the president doesn't have immunity
from criminal prosecution. You are weighing an argument that there is no precedent for, and is found nowhere in the
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