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Column: After the Supreme Court's immunity ruling, can Donald Trump still be tried for Jan. 6?

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Column: After the Supreme Court's immunity ruling, can Donald Trump still be tried for Jan. 6?

The Supreme Court ended a tumultuous term with one final sledgehammer blow on Monday. Its decision on Donald Trump’s claim of immunity from criminal charges forecloses any possibility that he will be tried for Jan. 6 before the election, substantially guts the prosecution and reshapes the Constitution to place the president singularly beyond the reach of criminal law.

The opinion was even more expansive in its grant of presidential immunity than commentators anticipated after the oral argument suggested the conservative majority was headed that way. And while it theoretically permits prosecution of some of the long list of Trump’s pernicious and treacherous acts in the weeks after the 2020 election, it erects a series of legal roadblocks and presumptions that make it anyone’s guess whether Trump will ever face accountability under the indictment.

The court’s essential holding is that constitutional principles of separation of powers forbid the criminal prosecution of a former president for “official acts” that took place during his term, while allowing it for “unofficial” acts. The 6-3 decision broke down along familiar lines, with the conservative majority continuing its project of remaking the law and the structure of the federal government.

How to draw the line between official and unofficial conduct? The court provides several criteria that, albeit somewhat opaque, clearly protect swaths of conduct that would strike nearly everyone as corrupt and lawless — not least much of what Trump undertook after the 2020 election.

For starters, the court prescribes absolute immunity for any exercise of “core constitutional powers.” These include at a minimum the enumerated presidential powers of Article 2 of the Constitution, such as acting as commander in chief of the armed forces, issuing pardons and appointing judges. A president acting within these areas is untouchable.

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Importantly, the court holds that this immunity precludes any consideration of motive. So a president who, for example, issues a pardon in return for a bribe or fires an executive branch official out of racial animus is just as protected from the law as one who takes such actions for appropriate and conventional reasons.

This could authorize some of the most vicious and problematic presidential conduct. There is no apparent reason, for example, that it doesn’t encompass what had been taken as a devastating hypothetical offered by Judge Florence Y. Pan of the U.S. Court of Appeals for the D.C. circuit: a president’s use of Navy SEALs to assassinate a political rival. If the reason for a president’s use of commander-in-chief powers is outside the bounds of inquiry, such conduct is indistinguishable from a conventional military mission.

Motive is the soul of the criminal law. It’s what divides conduct society accepts from conduct for which we put people in prison. The declaration that it has no role to play in determining a president’s criminal liability is nearly tantamount to making him a king.

Yet the court’s decision goes considerably further. It immunizes not just core constitutional functions but also any conduct within the outer perimeter of executive authority — the same capacious standard that already applies to civil lawsuits over presidential conduct.

And though there is some debate on this point, the court appears to go even further by imposing a presumption of immunity for conduct outside that perimeter unless the government shows that a prosecution would “pose no dangers of intrusion on the authority and functions of the Executive Branch.”

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How this will play out in the Jan. 6 prosecution is to some extent for U.S. District Judge Tanya Chutkan to try to figure out, with Trump challenging every move she makes along the way. The court emphasizes that distinguishing “the President’s official actions from his unofficial ones can be difficult” and may necessitate a “fact-specific” inquiry into their context (not including the president’s motive).

But the court drops some very strong hints about which aspects of the prosecution are precluded. It essentially says that Trump’s alleged efforts to level false accusations of election fraud in Georgia with the aid of a Justice Department functionary are off-limits. That’s because the charge implicates the president’s official power to investigate and prosecute crimes.

The opinion also strongly suggests that the alleged plot to strong-arm Vice President Mike Pence into violating the Constitution may be protected because it pertains to the interactions of the executive branch’s top two officials.

And the court seems to want to give a pass to Trump’s incendiary rhetoric near the Capitol on Jan. 6 on the basis that communication with the public is part of what the president does.

The only aspect of the indictment that the court seems disposed to preserve is the alleged extensive effort to set up fraudulent slates of electors. Even there, however, the court prescribes a detailed inquiry that puts the burden on special counsel Jack Smith’s team to counter Trump’s argument that his conduct was official “because it was undertaken to ensure the integrity and proper administration of the federal election.”

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Even if Trump loses the election and the case is allowed to proceed beyond this year, it will require more time-consuming legal combat. Every aspect of the application of the court’s opinion to the case could be appealed to the D.C. circuit and the Supreme Court.

And where does it all come from, this fundamental reordering of our tripartite system of government and the principle — to which the court continues to give lip service — that the president is not above the law?

The answer is no more than the court’s view that the president must be able to take bold and energetic action without worrying about subsequent criminal prosecution. The justices are not, strictly speaking, interpreting any provision of the Constitution but rather applying their notion of what makes for an effective president. The conservative majority is essentially grafting its political science principles onto constitutional structure and using them to drive a truck through the principle of equality before the law.

The majority dismisses the liberal dissenters’ insistence that the decision puts the president above the law as amounting to “ignoring the Constitution’s separation of powers and the Court’s precedent and instead fear mongering on the basis of extreme hypotheticals about a future where the president ‘feels empowered to violate a federal criminal law.’ ”

But there is nothing fearmongering, unrealistic or extreme about those worries. They concern a reality that is right before the justices’ eyes. They have chosen to ignore it, ensuring that justice for the most serious assault on the Constitution in our history will be much delayed and largely denied.

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Harry Litman is the host of the “Talking Feds” podcast and the “Talking San Diego” speaker series. @harrylitman

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Video: How a Fractured Supreme Court Ruled this Term

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Video: How a Fractured Supreme Court Ruled this Term

The Supreme Court has had a volatile term, taking on a stunning array of major disputes and assuming a commanding role in shaping American society and democracy. Adam Liptak and Abbie VanSickle, supreme court reporters at The New York Times, explain how a season of blockbuster cases defined the court.

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White House says Biden 'cares deeply' about troops after false debate claim that none have died on his watch

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White House says Biden 'cares deeply' about troops after false debate claim that none have died on his watch

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White House press secretary Karine Jean-Pierre told reporters that President Biden’s debate-night blunder in which he claimed no U.S. troops had died under his watch was made because of how “deeply” he cares about service members.

“The president was making a comparison between how many service members have died under his leadership versus in previous years. That’s what the comparison that he was making,” Jean-Pierre said during Wednesday’s press briefing. “He was doing that because he cares so deeply, cares so deeply about them and their families and wants to keep troops safe.”

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The comments came in response to a question about Biden’s debate claim that he is the “only president this century” not to have troops die on his watch.

DEMOCRAT LAWMAKER DECLARES TRUMP ‘IS GOING TO WIN THE ELECTION’ AND US DEMOCRACY WILL SURVIVE 

President Biden looks down as he participates in the debate against former President Trump at CNN’s studios in Atlanta on June 27, 2024. (Andrew Caballero-Reynolds/AFP via Getty Images)

“Truth is, I’m the only president this century that doesn’t have – this decade – any troops dying anywhere in the world like he did,” Biden said.

Critics were quick to point out that U.S. troops have died under Biden’s watch, including the 13 service members who were killed in a suicide bombing at Hamid Karzia International Airport during the U.S. mission to evacuate Afghanistan.

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More recently, three U.S. service members were killed in a January drone attack on a U.S. base in Jordan. 

Karine Jean-Pierre in yellow coat

White House press secretary Karine Jean-Pierre in the Brady Press Briefing Room on Jan. 3, 2024. (Chip Somodevilla/Getty Images)

TEXAS CONGRESSMAN BECOMES FIRST ELECTED DEMOCRAT TO CALL ON BIDEN TO WITHDRAW FROM ELECTION 

Jean-Pierre acknowledged both attacks during Wednesday’s press briefing, noting that Biden attended the dignified transfer of the service members’ remains in both cases.

Portraits of Daegan Page, Rylee McCollum, Nicole Gee and Kareem Nikoui

Four of the “Heroes of Kabul” who were killed in the August 2021 suicide bomber attack on the Kabul airport during the Afghanistan evacuation. (Courtesy of each family)

But Biden generated controversy during his attendance of the dignified transfer of the 13 service members killed in Afghanistan after appearing to check his watch as the ceremony unfolded.

Nevertheless, Jean-Pierre argued Wednesday that Biden “cares so deeply” about service members “and their families.”

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Biden checks watch at Dover AFB

President Biden looks at his watch as he and first lady Jill Biden attend the dignified transfer of the remains of fallen service members at Dover Air Force Base in Delaware, Aug., 29, 2021. (Saul Loeb/AFP via Getty Images)

“Let’s not forget that for some time, he carried a card in his pocket about how many service members were wounded and killed in Iraq and in Afghanistan,” Jean-Pierre said. “That’s how much it was a reminder to him, you know, the times that we live in.”

 

The White House did not immediately respond to a Fox News Digital request for comment.

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Kamala Harris faces political pressure — and opportunity — as Biden struggles

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Kamala Harris faces political pressure — and opportunity — as Biden struggles

Vice President Kamala Harris wouldn’t bite.

“Joe Biden is our nominee,” she told a CBS News reporter outside a San Francisco fundraiser Tuesday night amid signs the president’s Democratic dam was breaking.

The reporter tried another tactic, asking if she was ready to lead the country if needed. Nothing.

“I am proud to be Joe Biden’s running mate,” she replied.

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In the week since Biden’s disastrous debate performance, Harris has received more attention than at any time since her early, rocky days as his No. 2. Polls and party infrastructure give her an advantage over other possible Biden replacements, should he choose to step out of the race against former President Trump.

But Harris is in a delicate position — a magnified version of the political pressure she has faced throughout her tenure in office. She can’t afford to show even a hint that she is looking to replace Biden, the oldest president in history at 81. Yet she has to watch her back, to make sure others do not usurp her in the event Biden’s job becomes available.

“She absolutely, positively has to dance with the one who brought her, and any daylight that she shows between herself and the only person on Earth who could be called her boss would be seen as disloyal,” said one former advisor, who requested anonymity to avoid angering fellow Democrats with succession talk. “If ground keeps shifting … inevitably she’s going to be put in a position of potentially having to make a decision or maybe a decision’s being made for her.”

So far, she’s been earning relatively good marks from Democrats appreciative of her attempts to defend Biden, while Republicans continue to mock her public speeches as word salads.

“It’s been interesting to watch people who have been critical of her over the last three and a half years say, ‘Oh I’d support her,’” said an ally who is in regular contact with Harris’ and Biden’s inner circles, who asked for anonymity to avoid upsetting friends in Biden’s orbit. “People believe, and have always believed, she can prosecute the case.”

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Harris went on CNN within minutes of last week’s debate, when most Democrats were still shell-shocked, offering the first version of Biden’s defense. She acknowledged what she called a “slow start” while insisting, “I’m not going to spend all night with you talking about the last 90 minutes when I’ve been watching the last three and a half years.”

Harris has made a similar case since then, traveling to speeches and fundraisers, including a Tuesday night event in San Francisco, in which she categorized the “elephant in the room” as both the debate and the prospect of another Trump presidency.

“She’s doing her job, and to suggest there is somebody waiting in the wings, somebody looking to get a jump-start on 2028 — no, that’s not Kamala Harris,” said Donna Brazile, an ally who wants Biden to stay at the top of the ticket.

Her sometime rival Gov. Gavin Newsom has taken a similar tack, positioning himself as a public defender for Biden, distancing himself from elements of the party who want the president to step aside. He was scheduled to visit the White House on Wednesday night to “stand with the president,” he said in a fundraising email.

Harris had her regular lunch with Biden on Wednesday. She also joined Biden on a campaign call in which he reassured staff that he was “in this race to the end,” according to a person familiar with the call who spoke on condition of anonymity. “We will not back down. We will follow our president’s lead. We will fight, and we will win,” Harris told the staffers, this person said.

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Though Biden promised her weekly lunches when she took the job, the meetings have been inconsistent, an indication that Biden has often leaned more on longtime aides than on his deputy.

But if she were to run for president, she could campaign on the administration’s legislative successes, including its environmental and infrastructure spending bills.

Republicans would seize on her role as a key player in Biden’s immigration policy: Early in his tenure, Biden assigned Harris to oversee a strategy intended to bolster economic, security and political conditions in Central America to stem the “root causes” of migration.

But Harris has never been comfortable with the assignment, and Republicans have gleefully cast her as the “border czar” as they have attacked the Biden administration for record numbers of border arrests.

Harris gained political strength after the Supreme Court overturned the right to abortion in 2022, leading the White House’s response. She has been unable to change the law or to stop red states from passing extensive restrictions on the procedure, but she helped the Democratic Party use the issue to overperform in the 2022 midterm elections. Democrats are hoping to use the issue again if they can move beyond the concerns over Biden’s fitness for office.

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A CNN poll released Tuesday found three-quarters of American voters believed Democrats would have a better shot at the White House without Biden. Among possible replacements, only Harris polled within 2 percentage points of Trump. Allies have long said her name recognition and control of the party apparatus would put her in a better position to lead than potential rivals, who include Newsom, Michigan Gov. Gretchen Whitmer, Pennsylvania Gov. Josh Shapiro and Minnesota Gov. Tim Walz.

Rep. James E. Clyburn (D-S.C.), who has been a pivotal Biden supporter, said Tuesday on MSNBC that he would support Harris as a replacement, but that his first preference is Biden remaining the candidate.

“But I want to support her going forward, sometime in the future,” he said.

But there remains deep concern about Harris in the party. Even the CNN poll showed her with ground to make up against Trump in a theoretical matchup, and that’s without the media scrutiny and Republican assault that would come with leading the ticket. And her early struggles in the job — which produced high staff turnover and low poll numbers — set a bad impression for many voters, though her average approval in polls has improved slightly in the last few months.

A March USA Today/Suffolk poll found that 54% of voters said she is not qualified to serve as president, compared with 38% who said she is. Focus groups shared with The Times by a pro-Biden Republican group earlier this year showed swing voters and even Black voters had negative impressions, some of which her allies believe were tied to her race and gender.

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But even if Harris would have work to do, no other possible replacement has faced as much national scrutiny, possibly making them a higher risk for the party.

“She has been under that spotlight and has taken her lumps as a result,” said the former advisor. “No one can say she’s unknown at this point.”

Bierman reported from Washington and Wiley from San Francisco.

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