Tornado Alley (PROG)

[fuagf]

A good one on the immunity arguments, i think - The bad-faith argument against good-faith accountability for Trump

[...]

By Steve Vladeck, professor at the University of Texas School of Law and
Lee Kovarsky, Bryant Smith Chair in Law at the University of Texas

[...]

Slippery-slope arguments of the type that the D.C. Circuit rejected have three major problems. First, they necessarily conflate the legal response to Trump’s unique malfeasance with more conventional partisan disputes over, for instance, immigration or national security policy. Even if Trump avoids criminal punishment and/or appears on the ballot in all 50 states, no one with a handle on reality can plausibly claim that the cases against him are frivolous. Indeed, the D.C. Circuit panel, which includes stalwart conservative Karen Henderson, went out of its way to detail the extraordinary criminality alleged in the indictment. The legal consequences of Trump’s electoral interference — a profound and singular threat to American democracy — sit in stark contrast to the content-lite narratives offered in support of disqualifying or prosecuting Biden.

VIDEO - DOJ Vet Katyal on Trump losing bid to stop ‘perilous’ criminal trial
Feb. 7, 202402:03
https://www.msnbc.com/the-beat-with-ari/watch/doj-vet-katyal-on-trump-losing-bid-to-stop-perilous-criminal-trial-203745861551

Second, the Trump-aligned argument ignores many mechanisms that constrain bad-faith prosecution and disqualification. For instance, former presidents don’t need “presidential immunity” to protect against bad-faith state prosecutions because “Supremacy Clause immunity [ https://en.wikipedia.org/wiki/Supremacy_Clause ] ” already prevents states from prosecuting federal officials — including ex-presidents — for official conduct. (The Georgia case is about Trump the candidate, not Trump the president.) Even if a state prosecutor and a state court ignored a former president’s immunity, they would still be able to enforce the immunity in the federal court to which any such case could be removed. Ditto efforts by federal prosecutors to bring frivolous charges against a former president, which would presumably fail a motion to dismiss.(Tuesday’s D.C. Circuit opinion lists several.) Without getting into the weeds of the procedural mechanisms that would slow any spiral of reciprocity, the upshot is that there can be a cascade of abusive prosecutions only if the U.S. Supreme Court signs off on them. And Congress can preclude retaliatory disqualification by simply passing legislation. If those institutions fail, then American democracy has far graver problems than vindictive federal prosecutors and abusive state election officials.

And that brings us to the third, most important point. If prosecutors and state election officials are inclined to indict or disqualify in bad faith, then courts’ having pumped the brakes on the Trump cases won’t stop them. The reason is simple enough: Immunizing Trump from criminal prosecution and preventing his ballot disqualification would hardly arrest our political polarization. And so long as demagogic political leaders describe opponents as “enemies” and demand extravagant legal responses to vague, unspecified charges of wrongdoing, it won’t matter how courts approach the Trump cases. There’s little room for nuance when the watchword is grievance.

It strikes us as particularly naive to suggest that the breadth of presidential immunity meaningfully influences the rate at which ex-presidents are subject to politicized indictments. If there are to be bad-faith prosecutions of former presidents, it won’t be because courts failed to declare sweeping presidential immunities. It will be because our politics have passed the point of no return. When faced with the specter of bad-faith prosecutions, the objective can’t be to disable presidential prosecution at all costs. It must instead be to ensure that courts have the power to spare ex-presidents from frivolous proceedings.

https://investorshub.advfn.com/boards/read_msg.aspx?message_id=173840995