Big-time conservative lawyers warn SCOTUS what Trump would do if granted delay & immunity
“John Marshall Has Made His Decision, Now Let Him Enforce It”– Andrew Jackson (attributed) 1832
Trump has begged the Supreme Court (SCOTUS) to give him immunity. And if not that, at least the time to win the election so he can channel his inner Andrew Jackson and dare the Court to try and enforce any decision it makes. Would that work? Who the hell knows? But it is a lock Trump would try. And if so, no one can say he will not succeed.
Liberals are well aware of a vindictive Trump’s fascist tendencies and his capacity for evil. MAGAs are so deluded they think they will not get burned by a narcissistic and indiscriminate sociopath with a blow torch. But there are still some prominent conservative legal minds who are well aware of the dangers of a mentally damaged, imperial President with no use for democracy.
Among them is the highly regarded, sober-minded, and rock-ribbed Republican — from when the GOP was a political party and not a pack of rabid hyenas — ex-Appeals Court Judge J. Michael Luttig. He is one authors of an amicus curiae brief filed with the Supreme Court explaining why they should not delay Trump’s DC trial while considering certiorari. (On Application for Stay of the Mandate To Be Issued by the United States Court of Appeals for the District of Columbia)
He is joined by fellow conservatives:
John Danforth: ex-Missouri AG, US Senator, UN Ambassador, and erstwhile sponsor of Clarence Thomas
Carter Phillips: ex-Asst. US Solicitor General, who has argued 90 cases before SCOTUS
Peter Keisler: ex-Acting US Attorney General who once clerked for Robert Bork and co-founder of the Federalist Society
Larry Thompson: ex-Deputy US Attorney General
Stuart Gerson: ex-Acting US Attorney General
In the brief, they leave no doubt about the existential danger a President Trump could pose. They start by introducing themselves. Then they point out they favor a strong President, but only when they follow the rules.
INTEREST OF AMICI CURIAE
“Amici include former officials who worked in six Republican administrations from Presidents Nixon to Trump, senior officials in the White House and Departments of Justice, Homeland Security, and Defense, former elected Republican officials, and others who support a strong Presidency. Reflecting their experience, amici have an interest in a strong Presidency where each elected President serves only the term or terms to which he or she has been elected.”
They follow with a statement of intent — to show why Trump should not get a delay.
INTRODUCTION AND SUMMARY OF ARGUMENT
“Rejection of absolute immunity in this case is essential to protecting Article II’s design of the Presidency itself. This amici brief focuses on one reason why Mr.Trump has failed to make two of the mandatory showings required for a stay.”
They then point out that Presidential immunity cannot be granted if it allows a President to refuse to leave the job after the voters fire them.
"Presidential immunity should never be so broad as to embolden an outgoing President’s violations of federal criminal statutes as part of efforts to prevent what Article II mandates—the vesting of the authority and functions of the Presidency in the next, lawfully-elected President."
Next the brief dismisses Trump’s self-serving immunity claims as irrelevant — saying the law protects the nation, not wannabe dictators. In a nice touch, they use the last President who thought he was above the law as a warning.
“Former President Trump’s alleged effort to usurp the Presidency presents an especially weak case for extending the court-created doctrine of presidential immunity to a criminal prosecution. Nixon v. Fitzgerald emphasized that the justification for even civil absolute immunity is not to protect any individual President, but rather “the Nation that the Presidency was designed to serve.”
In case SCOTUS has not already got the point, the brief reiterates that the US is a democracy. The voters decide leaders. And when they have had enough of one guy, the Constitution grants them the power to pick someone new. Regardless of how a whiny, megalomaniac incumbent might feel about it.
“The last thing that would serve the Nation or the Presidency would be to embolden Presidents who lose re-election to engage in federal criminal statutory violations, through official acts or otherwise, as part of efforts to prevent the vesting of executive power required by Article II in their lawfully-elected successors.”
Next, the brief asks SCOTUS not to give presidential usurpers legal cover to stab democracy in the back.
“The demonstrable need to deter attempted usurpation of the Presidency by itself provides a compelling ground that sustains the judgment below denying federal criminal immunity in this case.”
They then shred Trump’s argument that he deserves immunity because he was “acting officially” when he was nothing more than a lying weasel encouraging others to join in his desperate deception. And further, if SCOTUS were to grant Trump immunity, he would use the military and other armed federal agents to stay in office.
"Here, for example, the former President argues that he was acting officially when he allegedly conspired to commit federal criminal conduct by using Department of Justice personnel to make false statements to state officials to support his efforts to overturn declared state election results.
If that qualified for absolute immunity, the precedent would improperly encourage a future President to violate federal criminal statutes by deploying the military and armed federal agents in efforts to alter the results of a presidential election."
The brief adds that Trump and his legal team are perfectly misrepresenting what the Constitution says — and hoping no one will notice.
ARGUMENT
I. A PRESIDENT WHO VIOLATES FEDERAL CRIMINAL STATUTES TO TRY TO STAY BEYOND HIS TERM IS ATTEMPTING TO VIOLATE THE EXECUTIVE VESTING CLAUSE AND THE TWENTIETH AMENDMENT.
"Former President Trump argues that he should be granted immunity from federal prosecution based on “the Executive Vesting Clause.” This has it backwards. The second sentence of the Executive Vesting Clause mandated that Mr. Trump leave office at the end “of four years” because he lost. This mandate is reiterated by the Twentieth Amendment."
In the next section, the amici — in delightfully plain language — said people would have to be nuts to think the founders wrote the Constitution to enable a President to ignore the Constitution.
II. IMMUNITY DOES NOT PROTECT A PRESIDENT’S VIOLATIONS OF FEDERAL CRIMINAL STATUTES IN ATTEMPTING TO SUBVERT PRESIDENTIAL ELECTION RESULTS.
A. Protecting The Presidency Designed By Article II Requires Rejecting Absolute Immunity For Federal Criminal Violations In Efforts To Overturn Presidential Election Results.
"What kind of Constitution would immunize and thereby embolden losing first-term Presidents to violate federal criminal statutes—through either official or unofficial acts—in efforts to usurp a second term? Not our Constitution, where the mandates of the Executive Vesting Clause and the Twentieth Amendment are: four years, you lose re-election, you get out, and the Presidency is vested in your successor."
Again, just in case the Justices missed it above, the brief reminds them that Trump would do whatever he could to stay in office if SCOTUS granted him immunity.
B. Under Mr. Trump’s View Of Absolute Immunity, A Future President Could Disregard Federal Criminal Prohibitions Against Using The Military And Armed Federal Agents To Alter Election Results.
"Mr. Trump argues that he should not be denied federal criminal immunity based on a “lurid hypothetical” about a President’s use of the military to commit crimes to keep that President in power. But that kind of hypothetical follows both from what former President Trump allegedly did and repeatedly considered in pursuit of subverting the 2020 election results."
The brief then explains that others actively supported Trump in his coup attempt. Further, Trump would have no compunction in ignoring them (Andrew Jackson redux). And plenty of his fellow insurrectionists would egg him on (picture the school bully and his snot-nosed hangers-on.)
"Indeed, before the D.C. Circuit’s decision in this case, a Senate ally of Mr. Trump approvingly stated that a future President Trump could defy a Supreme Court ruling that related to the military.
These terrifying possibilities are real, not remote. Indeed, after this Court refused to overturn the 2020 election results in Texas v. Pennsylvania, there was a drumbeat of calls from allies of President Trump for him to deploy the military."
Lastly, the brief shreds Trump's argument that without immunity, a President could do nothing to challenge an election by pointing out all the legal things that Trump did do to challenge an election. To no avail - because he had no case.
C. Rejecting Absolute Immunity In This Case Would Not Prevent Presidents From Vigorously Challenging Election Results.
“A state’s laws designate the courts that hear and resolve any candidate’s challenges to presidential election results in that state.
Myriad state and federal courts thoroughly rejected both factual allegations and legal assertions in more than 60 court cases brought by Mr. Trump and his allies.”
And then, in a model of simplicity, the brief suggests what the Supreme Court should do.
CONCLUSION
“This Court should deny the application” [Trump begging for delay and immunity]
If the Supreme Court reads this and decides that delay or immunity is the way to go, then they will have proved that ideology is more important than the law, common sense, the Constitution, and the American way. Go ahead SCOTUS. Do the right thing — or you will be shooting yourself in the head.