If we want Washington to work for us, the American people, we must start by restoring power back into the hands of those we elect and away from unelected bureaucrats. A critical aspect of this transformation hinges on addressing a doctrine known as Chevron Deference. Far more than a mere technicality, this legal principle has significantly shifted the dynamics of our nation's lawmaking, blurring lines of accountability and diminishing the legislative role of Congress.

For over 40 years, Congress has been derelict in its duties, hiding behind Chevron Deference, established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), to delegate its power to federal agencies. This abdication of responsibility has led to vaguely worded legislation, paralyzing gridlock, and sprawling omnibus bills. One stark example of this issue is the Waters of the United States (WOTUS) rule. Under the influence of Chevron Deference, its interpretation has been subject to dramatic shifts with each changing administration, illustrating the instability and confusion bred by this doctrine. //

The doctrine of Chevron Deference is a fundamental deviation from the constitutional design of our government. The legislative branch, intended by the framers of the Constitution to be the sole creator of laws, has enabled unelected bureaucrats to interpret and effectively create laws, eroding this principle. This isn't about the intelligence or capability of bureaucrats, but about the principle of democratic representation and accountability.

To ensure that laws reflect the will of the people and maintain the balance of power essential to our constitutional republic, we must end Chevron Deference. This change is vital for restoring legislative power to elected representatives. Additionally, adopting single-issue legislation would compel Congress to draft laws that are precise, transparent, and accountable, reflecting the true intent of our Founding Fathers. Single-issue bills, as advocated by James Madison in The Federalist No. 62, would ensure that each law is thoroughly debated and understood before being passed. This approach would eliminate the complexities often buried in omnibus packages, allowing for greater transparency, less government waste, and a greater public understanding of legislation. //

SLOTown Hoosier
3 days ago
This common-sense analysis is hindered by the fact that most Americans have little common-sense, but much sense of self and self-interest. All they care to know about Chevron is that they can fill up their cars.

“Many people consider the things government does for them to be social progress, but they regard the things government does for others as socialism."― Earl Warren //

Random US Citizen
3 days ago
This will help, but the real issue is the SC decision in NLRB v. Jones & Laughlin Steel Corp in 1937 in which the court decided that anything that had the slighted effect on "interstate commerce" could be regulated by congress. A vast swath of unconstitutional laws and regulations hinge on the idea that congress can regulate almost anything as long as there's even the most tenuous connection to commerce. Pick a federal law that's a bad idea and the chances are better than even that the reason it exists is because the black-robed tyrants decided that what they "felt" about an issue was more important than the rule of law or the plain text of the constitution.

Caedite eos. Novit enim Dominus qui sunt eius.

ColderWeather Random US Citizen
3 days ago
NLRB was expansionary for sure, but the one that really had the effect you state here is Wickard. As bad a decision as Dred Scott, Plessy, and Korematsu. //

ConservativeInMinnesota
3 days ago edited
Departments can't make their own rules, that authority belongs to Congress. Congress doesn't have the constitutional power to delegate rulemaking authority to the administrative state. The Constitution requires Congress to make all laws, carry them into execution, and explicitly calls out any department of the US.

Art 1 Sec 8
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Any judicial nominee named by Joe Biden knows he/she is going to have to answer questions in a hearing for the job, and they know that they're going to have to face Sen. John Kennedy (R-LA) and his test of basic legal questions. Yet, Biden nominees invariably seem to have issues when it comes to those questions. //

Sen. Kennedy asked how many motions she had argued before the Court. Meriweather had to admit that she hadn't argued any. He then asked how many cases she had tried in the Court of Federal Claims. Again, she had to admit that the answer was zero. Generally, if you're naming someone to a court, you would hope they would have at least some experience in that court.

"Tell me the grounds for granting a new trial in the Court of Federal Claims," he next inquired. //

Meriweather finally had to admit that she didn't know, "Senator, that is not an issue I have had occasion to consider before, despite my extensive civil experience and my familiarity not only with the Federal Rules of Civil Procedure, but I've also reviewed the rules of the Court of Federal Claims." She said she would review the rules if presented with the question. //

Then he asked her what a "contract of adhesion" was, another basic question. He said you would see a lot of that because it's some of what the Court of Federal Claims deals with.

She was completely stumped. //

Kennedy has nailed multiple nominees before with his test. A prior Biden nominee recently withdrew her nomination in the face of failing the Kennedy test when she couldn't answer what Article 5 and Article 2 of the Constitution are,

Is there going to be a major confrontation on the border following Joe Biden's ultimatum that Texas National Guard forces be removed from Shelby Park and other "disputed" areas? Not if the rank-and-file of the U.S. Customs and Border Patrol have anything to say about it. //

Border Patrol Union - NBPC @BPUnion
Rank-and file BP agents are not going to start arresting TX NG members for following their LAWFUL orders. That's fake news.

TX NG and rank-and-file BP agents work together and respect each other's jobs. Period. If TX NG members have LAWFUL orders, then they have to carry out those orders.

TX NG members realize that rank-and-file BP agents have their orders as well. Lawful orders, no matter how unpopular or distasteful amongst rank-and-file agents, must be followed. Unlawful orders (as determined by competent legal counsel and not what some outhouse lawyer behind a keyboard says) will not be followed.

Rank-and-file BP agents appreciate and respect what TX has been doing to defend their state in the midst of this catastrophe that the Biden Admin has unleashed on America.

We want to be perfectly clear, there is no fight between rank-and-file BP agents and the TX NG, Gov. Abott, or TX DPS. It may make flashy headlines, but it simply isn't true.
1:03 PM · Jan 26, 2024 //

Griff Jenkins @GriffJenkins
·
BREAKING: A Senior CBP Official tells FOX:

"the relationship between Border Patrol, Texas DPS, & TMD remains strong... Bottom line: Border Patrol has no plans to remove infrastructure (c-wire) placed by Texas along the border. Our posture remains the same." @FoxNews
1:54 PM · Jan 26, 2024 //

The governor writes:

The federal government has broken the compact between the United States and the States. The Executive Branch of the United States has a constitutional duty to enforce federal laws protecting States, including immigration laws on the books right now. President Biden has refused to enforce those laws and has even violated them. The result is that he has smashed records for illegal immigration.

Despite having been put on notice in a series of letters - one of which I delivered to him by hand - President Biden has ignored Texas's demand that he perform his constitutional duties. //

The failure of the Biden Administration to fulfill the duties imposed by Article IV, § 4 has triggered Article I, § 10, Clause 3, which reserves to this State the right of self-defense. For these reasons, I have already declared an invasion under Article I, § 10, Clause 3 to invoke Texas's constitutional authority to defend and protect itself. That authority is the supreme law of the land and supersedes any federal statutes to the contrary. The Texas National Guard, the Texas Department of Public Safety, and other Texas personnel are acting on that authority, as well as state law, to secure the Texas border. //

In the Constitution, Article I, § 10, Clause 3 states:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

The federal attorney being quoted is reading more into the Supreme Court's ruling than exists. The ruling simply lifted an injunction that stopped the federal officials from cutting the razor wire. The ruling did not say that Texas must allow federal officials access to the areas where the razor wire is. That is now going to be the point of this conflict going forward, and it will likely take another court ruling to settle the matter.

Abbott should stand tall on this. He's got absolutely nothing to lose. What is the Biden administration going to do? Open fire on the Texas National Guard if they don't clear out? The federal government has no leverage here and no ability to exact its will. Texas is holding Shelby Park and the other "disputed" areas, and they have no obligation to leave.

It is insane that this is even an argument. The border crisis has reached horrific proportions, and the Biden administration is wasting its time and resources trying to cut razor wire laid out to stop illegal entries. Texas has a right to self-defense. It has a right to protect its territory. If the federal government refuses to do the job, that's on its leaders, not state officials who are just trying to do the common sense thing.

In short, Abbott should tell Biden to pound sand. //

It wasnt me > Secession!
4 hours ago
No. I hope Governor Abbot, alone in his wheelchair, sits before whoever the President sends.
Let's all watch men armed with automatic weapons in full tactical gear toss an Handicapped Elected Governor in a wheel chair on live TV.

At first I thought Trump should stand beside him.
And then ALL the Governors should fly down and stand with him too.
But one man alone in a wheelchair...

Think Tiananmen Square.

What happened to the 1995 ruling my client won in Adarand Constructors, Inc. v. Peña? //

A new president in 2025 must end DEI and all race-based hiring and decision-making by federal departments and agencies. Meanwhile, Congress must codify the Supreme Court’s ruling in Adarand and compel the federal government to comply with the Constitution’s equal protection guarantee. To paraphrase Dr. Martin Luther King Jr., it is the only way to pay the “promissory note” set forth in the Declaration of Independence and the Constitution.

John Kennedy @SenJohnKennedy
·
Pres. Biden sent us a nominee who didn’t know the basics of the U.S. Constitution.

Judge Bjelkengren is right to bow out, but Pres. Biden just keeps trying to put unqualified people on the bench—for life.

People who don't know the law have no business running our courtrooms.

3:23 PM · Jan 10, 2024

He had asked her basic questions about what Article 5 and Article 2 of the Constitution are, and she had no idea, saying they weren't "coming to mind." She couldn't even hazard a guess. How, as a federal judge, going before the Senate and Kennedy, do you not know the answer to that one?

Direct democracy not only represents a threat to freedom, but it is a political order that rejects hierarchies both natural and spiritual. //

“American democracy is cracking,” warns Washington Post Chief Correspondent Dan Balz in a recent column that presents some ideas to repair it. His suggestions include, among other things, proportional representation, diminishing the power of the Senate, and eliminating the Electoral College. What these three suggestions have in common is a desire to remove any intermediary institutions between the will of the people and government action — otherwise known as “direct” democracy. //

The framers of our Constitution felt quite strongly that direct democracy was something to avoid. In Federalist 10, for example, the Father of the Constitution James Madison warned of “the superior force of an interested and overbearing majority” on a government, or what has come to be called the “tyranny of the majority,” in which a majority of the population exerts great coercive power over minority factions. //

A generation after that founding generation, visiting French aristocrat Alexis de Tocqueville authored an extended survey of American politics and culture, Democracy in America. Tocqueville perceived that the American political system was created to resist the tyranny of the majority, “which bases its claim to rule upon numbers, not upon rightness or excellence.” //

Yet such a deliberative process of testing is slow and uneven. And we Americans are often eager for speedy solutions. Political theorists, journalists, and ordinary citizens throughout American history have been frustrated by the Constitution’s manifold methods of distributing power to deter the tyranny of the majority. If a majority of the nation’s populace wants something, they posit, why shouldn’t they be able to get it? After all, as the journalist H.L. Mencken wryly commented, “Democracy is the theory that the common people know what they want, and deserve to get it good and hard.”

Such demands especially increase at times of heightened political gridlock in which the country obviously has a particular problem or set of problems but constitutionally mandated laws and procedures thwart attempts to resolve them. When we are all vexed with our politicians for failing to act in what we believe to be the interests of the nation (and its voters), it’s easy to be sympathetic to that line of thinking.

Yet we must beware of this temptation, which reflects what conservative political theorist Russell Kirk calls a manifestation of vox populi, vox dei — the voice of the people is the voice of God. In other words, as long as they constitute a majority, whatever the people want becomes the law of the land. //

As that great French observer of American politics Alexis de Tocqueville observed: “If ever freedom is lost in America, that will be due to the … majority driving minorities to desperation…”

Let’s do everything we can to avoid that scenario.

So why did I put "removed" in quotes at the beginning of this piece? I did so because it's obvious what's actually going on here. Just as with the Colorado Supreme Court ruling removing Trump from the ballot, Bellows stayed her own decision (meaning it doesn't go into effect), giving the final say to the U.S. Supreme Court. 

What does that tell you? It tells you that none of these cheap stunts are meant to succeed technically. It's essentially a foregone conclusion that the U.S. Supreme Court will not only keep the stays in place, but they will ultimately rule against the states trying to use the 14th Amendment without any due process to bar Trump from the ballot. 

In the end, Bellows doesn't believe she'll win. She just wants her name in lights while setting up the U.S. Supreme Court to play the bad guy for half the country. It's a tactic the Biden administration has used over and over, enacting illegal measures with an eye on passing the buck to the judiciary so they can cry foul when they lose. 

The same thing will happen here. The nation's high court will eventually make a common sense ruling to reinstate Trump on these ballots, and then the far left will call them tyrants who want to destroy democracy. What does that accomplish? It helps juice Democrat turnout. It's all so predictable, and it's a blatant abuse of the system to influence an election.

the Meese brief addresses the question of the universe of individuals who can be lawfully appointed to the position of “Special Counsel” in order for this regulation to fit under federal statutes and the Constitution’s Appointment Clause.

Meese states that the appointments of Patrick Fitzgerald, John Huber, and John Durham as past “Special Counsels” were all valid because, at the time of their appointment, each was serving as a Senate-confirmed United States Attorney within the Department of Justice. Their appointment as “Special Counsel” did not alter their authority; it just granted them the same authority over a particular investigation pursuant to the regulation that they otherwise would not have under their individual geographic limitations.

Meese and his co-authors first published the objection set forth in the current brief in law journals and other publications following Robert Mueller’s appointment as Special Counsel, given that he was an attorney in private practice at the time he was named Special Counsel to investigate former President Trump, but never to a court.

Now Meese and his co-authors are making the claim against Jack Smith to a court because of his effort to have the Supreme Court take up the immunity issue. This created an opportunity for them to raise the question by arguing that Smith lacks jurisdiction to seek the Court’s relief because he is not truly an “Officer” of the United States.

Congress alone has the authority to create federal offices not established by the Constitution. And the Attorney General cannot ex nihilo fashion offices as he sees fit. Nor has Congress given the Attorney General power to appoint a Special Counsel of this nature. Thus, without legal office, Smith cannot wield the authority of the United States, including his present attempt to seek relief in this Court. //

Because Jack Smith was a private citizen when appointed, never having been nominated by a President or confirmed by a vote of the Senate, he was not within the scope of individuals who could be authorized by Garland to exercise prosecutorial authority equivalent to United States Attorneys. Any action purporting to create such a position – or “office” -- and vest it with the same authority as United States Attorneys is unconstitutional because it was not “created by law." //

Among the most compelling arguments made by the Meese brief comes at the end when it notes the incarnation of a Special Counsel vested with a Javert-like mission, as compared to the statutorily-created officers of the Justice Department – the Attorney General, Deputy Attorney General, Associate Attorney General, Solicitor General, eleven Assistant AGs, and 94 U.S. Attorneys – all subject to Presidential appointment and Senate confirmation. According to the Biden DOJ, the Attorney General can simply create a Special Counsel Office, appoint a non-government actor to that post, grant him the power to wield the authority of a grand jury, draw resources from various federal law enforcement agencies, and direct their conduct, and seek search and arrest warrants when loosed upon a member of the public.

If the Meese brief’s argument is correct, then all the actions taken by Smith have been without lawful authority under federal law – beginning with the use of the grand jury in Washington D.C. to build the cases he has brought against former President Trump. The outcome would almost certainly mean that the cases would be dismissed.

A panel of judges made an extraordinary decision. They decided on their own that a person was guilty of treason and/or inciting an insurrection without that person having been charged with either, much less tried and found guilty by a jury of their peers. They did so to make him ineligible to be on the ballot in their state. //

Donald Trump has not been found guilty of either treason or inciting an insurrection, and the U.S. Code for insurrection seems pretty clear that you are ineligible for “any office in the United States” if you’re found guilty. //

Trump has a number of federal-law defenses: that Section 3 isn’t self-executing without implementing legislation or a criminal conviction, that it doesn’t cover the president, that the First Amendment protects Trump’s speech and wasn’t implicitly repealed in that regard by the 14th Amendment, that the Republican Party has a First Amendment right of association to put an ineligible candidate on its primary ballot, and even that Trump may have a legal defense because the Senate didn’t convict him on effectively the same charge. //

I do believe, however, that there is something deeply wrong with the Democrats going along with this and the courts that are making it happen. If you are accused of engaging in treason or insurrection, you should be tried for your crimes and punished appropriately. That is the criminal justice system that we have and it requires a jury of your peers unless you as the accused decide to forgo a jury trial.

But the courts cannot, seemingly on a whim, decide to make a person de facto guilty of a crime in order to justify a ruling they want to make. That is an incredibly dangerous precedent to set and could have far-reaching complications if that sort of mentality takes deeper root in our judicial system.

If he is tried and found guilty of treason or insurrection, I’d be fine with the Colorado Supreme Court’s decision because the system worked as it was supposed to. You may not like those results, but it is incumbent on the accused and his lawyers to prove his innocence either in trial or on appeal. But there was no trial. A panel of judges decided he was guilty without a trial.

That should alarm us all. //

anon-ubjh
a day ago
" … but it is incumbent on the accused and his lawyers to prove his innocence either in trial or on appeal." WHAT? So now we are a country where the defendant is guilty until proven innocent? You have it backwards: it is incumbent on the prosecution to establish the guilt of the accused. //

FrankD92
a day ago
Umm, actually, Mr. Cunningham, under our system it is NOT “incumbent on the accused to PROVE his innocence.” It is incumbent upon the accuser to prove guilt. And that is a HUGE distinction between a Republic vs totalitarianism. Quit adopting the language of the Marxist Left. //

Liberius
a day ago
It is NOT the responsibility of the accused to prove their innocence. It is the responsibility of the accuser to prove the guilt of the defendant.

How the heck have so many people in this country forgotten that simple concept?

etba_ss
a day ago edited
He shouldn't need to name check Trump. The problem is the decision by the court, not who it is against. The reaction to the ruling should be the same whether it was against Trump, DeSantis or Haley. By making it about Trump, it often clouds the more relevant legal question, because retreat to their camps and either dig in or celebrate it because they love or loathe Trump. ... //

IdeClair
a day ago
If Trump can be removed for a crime he wasn't charged with, much less convicted for, then Biden can be removed for non-convictions too..After all, Biden did commit treason when he took kickbacks from foreign governments..

anon-kvbw IdeClair
a day ago
More that that, Trump was acquitted for the insurrection charge by the Senate would they considered one of the House's serial impeachments. In addition, the Supremes have made it clear in a number of cases that the President is not an 'officer' of the United States. The statute applies to appointed officials, not the President.

Lee Zeldin
@LeeMZeldin
·
Follow
It is the Colorado Supreme Court’s unconstitutional, unambiguous and un-American belief that the time has come in our country to destroy democracy in the name of democracy.
Kaitlan Collins
@kaitlancollins
Breaking: The Colorado Supreme Court rules Trump is disqualified from holding office, citing section three of the 14th Amendment, removing him from the state’s 2024 ballot.
https://courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf
6:39 PM · Dec 19, 2023 //

polyjunkie
an hour ago edited
This should take the Supremes about a half hour to adjudicate. If it stands, then every Red State should disqualify FJB. Let’s see how that works out….

PS - the Constitution lists the criteria for being President. Being approved by left-wing judges is not one of them. And the 14th Amendment does not apply since the Congress impeached Trump and the Senate found him not guilty. Therefore no “insurrection” occurred. Done. //

Cynical Optimist polyjunkie
2 hours ago
That is precisely the point Jonathan Turley made this afternoon, saying that the ruling opens the door for groups in every state in the nation to disqualify any politician they dislike or want off the ballot. //

anon-d2hb
2 hours ago
Not even charged with, let alone convicted of insurrection, and CO Supreme Court rules that he is an insurrectionist. Our courts have become centers of politicized injustice. Charged and tried have been thrown completely out the window. //

Ed in North Texas
2 hours ago edited
As I noted elsewhere, this looks like a judicial setup. Lower court judge rules Trump engaged in "insurrection" but the Amendment didn't apply to the President. The appeal to the CO supremes then allowed four of the seven SCP appointees to take a ruling that he had engaged in insurrection and rule that the Amendment did apply and boot him off the ballot.

Gee, it almost seems like tinfoil hat time, except legally it works.

Edit: Temporarily it works. Doubt the SCOTUS will buy it, but we do live in "interesting times".

SquidbillyCPO
16 hours ago
First of all that BS about the Supreme Court is just that BS and it would be unconstitutional to boot. Congress has zero constitutional authority to regulate the coequal judicial branch and the constitution is very clear Supreme Court justices have lifetime appointments the only power they have is impeachment. Like gun control these tyrants in waiting just can’t seem to bring themselves to submit a constitutional amendment which is the right way to do it. And the same with legislative term limits, they are unconstitutional the Supreme Court ruled on that decades ago. //

etba_ss
19 hours ago
If you don't include Congressional staffers in term limits, stock trades and lobbying bans, you will make the problem worse, not better. Instead of having career Congressman and Senators, we will have career staffers who will have all the power and corruption of Congress now, only without the accountability of facing the voters and answering for their votes. //

anon-d4h1
20 hours ago
There's a huge trap here that I have never seen anybody mention in regards to term limits: staff.

Both committee staff and personal staff members.

I used to work on the Hill, and the power senior staff wields can be almost limitless.

They're in place before most members are elected, and they'll be there after those members are gone. Their expertise is almost always deferred to by the members. And as a result appropriations bills, procurement priorities, authorization language already reflect staff priorities and biases more than anything.

Imagine what the impact would be of reducing the time in office of elected members? The power of unelected staff members will grow even stronger.

Any move for term limits (which may in itself be a laudable goal), must include airtight limitations on staff tenure. //

Chris Paige
11 hours ago
None of these reforms will work. Term limits will become term minimums (as no decent candidate will challenge somebody who is leaving soon anyway & no one will fund such candidates as it's not worth it). Besides, it's done nothing in NYC (as you just get a rotating crew of losers).

The key is we need to make Congressional elections more competitive.

First, we need to abolish campaign donation limits. If someone's willing to give you $1MM to run for Congress, then God bless.

Second, we need to limit donations to NATURAL persons who are eligible to vote for the candidate at issue. This would increase intra-party disputes as. national donors couldn't enforce uniformity.

Third, we need to outlaw donations by government workers, government contractors, and employees of highly-regulated firms (ie. if you're company is FDIC insured or part of the Fed, you can't donate.).

Fourth, we need to redraw Congressional map lines to MAXIMIZE inter-party competition.

Fifth, we need to strip the media/social media of their outsized role - neither should be allowed to censor anything that isn't actually illegal.

Sixth, we need to limit secrecy - everything should become public after 20 years w/ exceedingly few exceptions.

The current federal income tax system is clearly broken — unfair, overly complex, and almost impossible for most Americans to understand. But there is a reasonable, nonpartisan alternative before Congress that is both fair and easy to understand. A system that allows you to keep your whole paycheck and only pay taxes on what you spend.

The FairTax is a national sales tax that treats every person equally and allows American businesses to thrive, while generating the same tax revenue as the current four-million-word-plus tax code. Under the FairTax, every person living in the United States pays a sales tax on purchases of new goods and services, excluding necessities due to the prebate. The FairTax rate after necessities is 23% compared to combining the 15% income tax bracket with the 7.65% of employee payroll taxes under the current system -- both of which will be eliminated!

Important to note: the FairTax is the only tax plan currently being proposed that includes the removal of the payroll tax.

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Get a Tax Refund in Advance on Purchases of Basic Necessities

The FairTax provides a progressive program called a prebate. This gives every legal resident household an “advance refund” at the beginning of each month so that purchases made up to the poverty level are tax-free. The prebate prevents an unfair burden on low-income families.

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Conservative lawyers face the brunt of the weaponization of the bar, whether it be Jeff Clark, Ken Paxton, John Eastman, or now Todd Rokita.

Chris Paige
3 hours ago
Here's the problem: if you believe in qualified immunity for cops, you can scarcely argue against immunity for presidents. That is, the logic of qualified immunity is that lower level officials couldn't do their jobs if they could be sued by everyone/anyone for their errors - same w/ president. Basically, any local prosecutor can influence public policy by forcing every president to go through risks/costs of criminal trial whenever that prosecutor deems appropriate - that would force presidents to consider the risk of trial before making a decision. Are they doing what they think is right or are they avoiding trial?

You see the critical point here is that acquittal doesn't solve the problem. Lots of people wouldn't be willing to be branded a criminal & go to criminal trial even if they knew they're going to be acquitted - it's just too much power. Imagine if NY could put SCOTUS on trial for various crimes - who cares about the outcome? It would give NY too much influence over SCOTUS. Same thing here.

So, regardless of what either side claims in their pleadings, the question of immunity of a former President from criminal prosecution for actions taken while in office is novel and presents an “issue of first impression” for the Courts to resolve. Any claim to the contrary is legally ignorant or expresses a bias as to what the outcome should be. The question has never been answered, because it has never before been an issue that needed an answer. //

Smith has said that “no man is above the law” – and that’s just about it. That might seem a bit flip on my part, but in an Opposition that has 42 pages of “argument,” I count that phrase being used six times in the first nine pages alone.

What the former President has is the case of Nixon v. Fitzgerald, a Supreme Court çase decided in 1982. //

the Supreme Court took the matter up prior to trial and overruled both lower courts, finding that a President does enjoy absolute immunity from civil damage lawsuits for acts taken while in office pursuant to his authority as President. The boundary for conduct falling within that absolute immunity was acts within the “outer perimeter” of the President’s official responsibility. Former President Trump contends that all the operative facts relied upon by Smith in the indictment fall within the “outer perimeter” of his official responsibility while in office. //

What the Supreme Court did not say in Fitzgerald was that the immunity recognized therein would extend to immunity from criminal prosecution for acts “within the outer perimeter” of Trump’s official responsibility. Smith’s response to Fitzgerald relies primarily on that point. But the Court did not say that such immunity would not apply either – that question was not before the Court. //

The Court did say that the public has a greater interest in criminal prosecutions than in civil damages lawsuits, and that fact played a role in not allowing Fitzgerald to pursue his case against Nixon personally. But the same interests in granting immunity – laid out in the text above – applies in both situations, and the Supreme Court did not suggest that the case for immunity would be less compelling if the issue before it involved a criminal prosecution. //

Yes, it would create a substantial barrier to even the justified pursuit of a criminal prosecution of any future President for alleged criminal behavior while in office. But it would not be an insurmountable barrier. The “Impeachment” process in the Constitution includes what is referred to as the “Judgment” clause – Article I, Section 3, Clause 7:

“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to indictment, Trial, and Judgment and Punishment, according to Law.”

The House of Representatives impeached former President Trump for actions relating to the 2020 election, but he was not convicted by the Senate. His motion argues that criminal prosecution is allowed for conduct in office following an impeachment, conviction, and removal from office as stated in the “Judgment Clause.”

There is a logic and purpose for finding such a prerequisite. Impeachment and conviction, by the House and Senate respectively, provide the imprimatur of legitimacy from a co-equal branch of government closest to the people. It would provide independent justification for a subsequent elected Executive to prosecute the individual who was the prior elected Executive. Had the Senate convicted President Trump, that would have been a bipartisan “Judgment” that he had, in fact, committed “high crimes and misdemeanors” requiring his removal and disqualification from holding any office in the future. Such a finding would insulate a later criminal prosecution from claims of being politically motivated.

In a very real way, what partisan prosecutors are doing validates the exact point Trump is making as it confirms the risk identified by the Court in Fitzgerald.