Without immunity, such types of prosecutions of ex-Presidents could quickly become routine. The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid.
…
The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law.”…In this case, however, no court has thus far considered how to draw that distinction, in general or with respect to the conduct alleged in particular.

** SEE ALSO THE CHART OF THIS AT THE BOTTOM OF THE POST

That title has quite the ring to it, especially given the belief of Trump and his supporters that they are saving the United States. But the prosecution of President Donald John Trump for his supposedly inciting the January 6, 2021 riots is a Federal case led by President Biden’s Department of Justice, so it is an accurate title for the case.

And it’s just been given an effective death blow by the Supreme Court, who ruled that Trump is immune from prosecution for acts he has conducted as part of his official Presidential duties – of which inquiring about shenanigans in the 2020 election at the level of States like Georgia, Arizona and others may be one.

But what of unofficial duties? Moreover, can we distinguish between the duties of a President whose DOJ should be concerned about election fraud and a candidate who is also very concerned about that?

Needless to say the Left is having meltdowns about it, from stupid sarcasm about Trump getting away with assassinating Americans, to equally stupid sarcastic calls, complete with fake “funny” headlines and frankly dangerously careless calls that Biden can now kill Trump:

It even includes a former Federal prosecutor saying that this means Biden can now prevent Trump being elected. Worse is that this crap isn’t just based on the original hypothetical put forward to Trump’s defence lawyer by a 2nd Circuit Court judge in the original case, but by one of the Supreme Justices, Sonya Sotomayor, in the dissenting opinion. FFS! “Wise Latina”? More like “Insane Latina”. Were it not for the times we live in and Trump driving his enemies insane, I would not have believed that a Supreme Court Justice could say something so stupid and guranteed to further enrage the mob, as well as being a flat-out dishonest take on Chief Justice Robert’s moderate decision. Also read this article about the Special Forces requirement under US military law to disobey unlawful orders. Perhaps somebody will send it to the “Wise Latina”.

Before plunging into the decision itself you should have a read of two articles I did at the start of the year, both of which covered this case in part and which I’ll point to the key parts:

SCOTUS 2024, A Big Year – Part I: Preliminaries:
Prosecutor Jack “Crazy Killer Eyes” Smith already had a reputation for stretching laws until they screamed to lay charges, getting convictions – and then losing on appeal, including a unanimous rejection by SCOTUS in one case, with the Chief Justice even rebuking him for the stunts he’d pulled, including witness tampering and trying to breach attorney-client privilege.

SCOTUS 2024, A Big Year – Part II: Trump and Jan 6
Way back in 2012 a law professor wrote a very academic article about presidential immunity and mused that….

Short of a constitutional amendment, the only way to answer the immunity question would be to prosecute a president, have the president assert immunity, and have the courts rule definitively on what the Constitution requires. [footnote omitted] But if it came to that, the country would be badly distracted and divided by the political fallout from the case. With the legal issues wrapped up in a political package, it would be harder for justice to be done and be publicly accepted.

To which I added the point that there would be immediate fights in lower courts to determine what is and is not an “official act” of a President, all likely to bubble back up to SCOTUS, which is exactly what seems will now happen. Pandora’s box has been opened and will not be closed long after Trump and Biden have faded from the scene.

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The answer of the Supreme Court to all this has been as follows:

  1. Official Presidential actions remain immune from criminal prosecution, as they always have been – and have to be if the system is to work.

    “Without immunity, such types of prosecutions of ex-Presidents could quickly become routine. The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid.“

    That includes even civil action lawsuits, as was decided for President Nixon over a a decade after he’d left office. Much as Lefties would love to see Bush get done over for the Iraqi intelligence stuff and the Right would laughingly nail Obama’s ass to the wall for the drone-kill of an American citizen, the bitter fact for lovers of justice is that the USA is not going to commit suicide by allowing such court actions. You get a shot at impeachment, a semi-political/semi-judicial action, and that’s all.
  2. With regard to the arguments over what are official and unofficial acts, and which are the acts of a President and that of a candidate (awfully hard to disentangle when it’s the same person), those have been tossed back to the lower courts to decide, after which they may crawl back up the appeal ladder to SCOTUS.

    “The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law.
    …
    In this case, however, no court has thus far considered how to draw that distinction, in general or with respect to the conduct alleged in particular.“

    Basically the court said that it couldn’t decide such things because it hadn’t been presented with the facts specific to each charge or argument, and they nailed the reason for that:

    “Despite the unprecedented nature of this case, and the very significant constitutional questions that it raises, the lower courts rendered their decisions on a highly expedited basis. Because those courts categorically rejected any form of Presidential immunity, they did not analyze the conduct alleged in the indictment to decide which of it should be categorized as official and which unofficial.”

    They did give guidance to the lower courts as to how they might do that and you can read a brief portion of that here.

I say “may” because the whole case might just be dumped in the face of such questions of factual context, and for all the Lefty meltdowns that have occurred over this decision it’s their own bloody fault, for three reasons.

First, because in their desperation to GET TRUMP they didn’t think this through. SCOTUS gently reminded them that the complexities meant each argument (official vs unofficial) would have to be weighed on the facts and SCOTUS couldn’t do that because the prosecution and lower courts hadn’t done that. They’d simply thrown crap against the wall in the hope that it would stick.

Second, the paradox in rushing this has actually caused it to be slowed down. So much so that it likely won’t see court before the election, and even if Trump got convicted it would not amount to anything until he left office, although if the Democrats control the House and Senate they may well use it to launch yet another Impeachment. If Trump wins he might also just order the DOJ to shut it down.

Third is that Jack Smith is a key problem here, as I detailed in the SCOTUS Preliminary article. He’s pulled the same “clever” stunts he has done before, not paid attention to detail or thought out the path and the endpoints, and has been caught up in his own underwear (and he’s made similar mistakes in the Classified Documents case against Trump, resulting in similar problems). Thankfully this time it’s happened before he could get a conviction. SCOTUS screwed him on this also:

The court also wisely rejected special counsel Jack Smith’s argument that determining whether acts are official and therefore immune can wait until after the trial. Presidential immunity “must be addressed at the outset of a proceeding,” the court held, because the mere “possibility of an extended proceeding” may reduce the presidency’s vigor. The justices observed that “we do not ordinarily decline to decide significant constitutional questions based on the Government’s promises of good faith.

Which is exactly what he did in his conviction of Virginia Gov. Robert F. McDonnell (R). Sure it got booted by SCOTUS but by then McDonnell’s political career was toast – which had been Democrat partisan Smith’s plan all along, just as it is here with Trump. Clearly they weren’t going to let him get away with that again.

But Smith and company may have received a little help from one of the Justices, none other than Trump-appointed Justice Amy Coney Barrett, who gave Smith and company a slight glimmer of hope in her commentary on the decision, where she hinted (but only hinted) at a strategy they could undertake:

Justice Barrett’s suggestion does not merely reflect a hypothetical scenario. It outlines a tangible legal strategy. By urging the Special Counsel to fine-tune their indictments to emphasize unequivocally private conduct, Barrett indirectly points to a way to bypass the delays and complications associated with broader, less distinct charges.

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And there was one interesting sidenote concerning Smith. As I noted in the SCOTUS preliminaries article an amicus brief (“friend of the court”) was filed arguing that Smith should be booted from being the special counsel because he was hired as a private citizen, not as DOJ employee as such people are supposed to be. It could mean that everything he’s done so far may not have had lawful authority. 

None other than Justice Clarence Thomas gleefully grabbed the opportunity to take this up, “advising” the DOJ that this was correct and that questions surrounding the validity of Smith’s office and his appointment must be addressed before the prosecution can proceed.

“I write separately to highlight another way in which this prosecution may violate our constitutional structure… By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President – he cannot create offices at his pleasure. If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President.
…
The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.”

😅😅😅😅😅😅

Thomas goes on to extensively detail those questions. An Attorney General of good faith would treat them seriously but I’ve no doubt that Merrick Garland, another Democrat Party hack, will simply ignore them for the same reason Smith has pulled all his stunts; if it all falls over later in an appeal, who cares, job done.

And I say gleeful because I’m sure Thomas has never forgotten the shit pulled on him by one Senator Biden during Thomas’s nomination to SCOTUS in 1991. He must have taken some pleasure in cutting Biden and Garland’s (AG) partisan hack down to size.

One last issue from my other article on SCOTUS, Trump and Jan 6, has also been dealt with when they released a decison a few days before this one, arising from a different Jan 6 case. In that decision they ruled out the DOJ’s use of an arcane financial law to imprison J6 rioters on charges of conspiracy and obstruction. As I noted at the time that would also affect Smith’s J6 case against Trump because he’d used the same law, and now it has as those charges will have to be dropped, but I’ll deal with that issue in a separate article on the J6 prosecutions.