Prediction: Trump will argue that his NY conviction must be overturned because the court admitted evidence of conversations he had with his staff while President in order to prove knowledge and intent. He will argue those conversations were “official acts.” Judge Merchan and higher NY courts …./1
/2 ….will reject the argument based on finding that those conversations were not official acts and that including it was harmless error.
Trump will appeal from NY’s highest court to SCOTUS.
I’m really quite confused on the exclusionary rule re: conversations as evidence establishing official acts/presumptively immune/unofficial acts vs conversations as official acts.
My question is: If the state court rules that the charged conduct was an unofficial act based only on the public record (e.g. evidence before he took office), does the exclusionary rule still apply re: the conversations etc after he took office? What immunity remains?
Not only can’t official acts be the basis for a charge, they can’t be offered as EVIDENCE about another act. Say Trump asks DoJ to shoot an actor he hates. They say no. He leaves office and hires a private hit man to kill the actor. The official act of asking DoJ can’t be introduced as evidence.
Speaking to DoJ to give instructions on criminal investigations or threatening to fire: definitely a core official act. Talking to a staffer: with this court, I suspect they will find a way to make it an official act.
Speaking as a semanticist, it's wild to me that they are phrasing it in terms of whether an *act* is characterized as "official", when what they seem to actually be talking about is whether there exists a *description* of the act that can be characterized as "official".
The ambiguity is the point. There’s guaranteed to be an issue for appeal, both pre- AND post-trial, thus ensuring that the real rule is “a president is immune from suit so long as they’re a president we like”
It’s inimical to the rule of law and makes a mockery of the entire profession
Exactly! Since they rob us of looking at motive, the intention of the act is fair game for the *defendant*, which is absolutely bonkers to contemplate.
During his NY trial, he would badmouth the judge’s daughter, get criticized for it, and then his defenders would say “What? Can’t he talk to his supporters??” This is just the Supreme Court version of that
Reminds me of Scalia. Part of his originalism was insisting that an act be described as specifically as possible. When you do that, it’s usually obvious that there’s no history of believing there’s a protected right to engage in that act. I think we’ll see the opposite approach with “official act.”
Eg: Man claims constitution protects parent-child relationships. Scalia: in the 19th C, did the law protect the ability of the biological father of a child born to an adulterous woman who was married to another man to be declared the child’s legal parent?
Hanson’s Razor (“never attribute to malice what can be adequately explained by incompetence”) but I’d personally prefer a secret, third choice of malicious incompetence
Look, these Justices all know the founding fathers specifically invented limited government divided into three branches as checks on one another because men are not angels al la Madison. The Senate gave up their check by choosing not to convict. Now SCOTUS is officially undoing the legal check.
They have created the longest delay possible with an extremely high likelihood of additional appeal - after shooting down the CO disqualification. The only incompetence I see is the naive belief that they will be able to control Trump when he yells "off with their heads," and turns on them.
I don’t think anyone is questioning that there is a coordinated agenda here, but I’m personally not convinced that the right wing information bubble and all of the blinkered thinking that goes w/ it doesn’t extend to the Federalist Society and to certain members of the Supreme Court.
“…Never believe that anti-Semites are completely unaware of the absurdity of their replies. They know that their remarks are frivolous, open to challenge. But they are amusing themselves, for it is their adversary who is obliged to use words responsibly, since he believes in words.”
Jean-Paul Sartre
And the acceptance of that description shall be the under the sole jurisdiction of the Supreme Court only, on a case by case basis, making prosecutions take as long or as short as these 6 six individuals desire.
Iran’s Guardian Council must be their model.
I’d bet you’re right on that, but the issue is: there are acts that, under this rule, are official because one of their descriptions can count as official, and this is so even if other, perhaps even more salient descriptions count as crimes
Sure but that's the normal way of things, right? You can't duck the charge of obstruction of justice when you destroyed evidence by saying that you prefer to think of it as helping out a friend in a jam
But literally you can now if you’re the president because the president’s motive in performing an act cannot be considered and official acts for which he is immune cannot be entered as evidence. That’s saying explicitly that the president by definition cannot use official acts to obstruct justice.
Oh for sure. It’s just that previously you could use evidence that non-criminal official acts were performed as part of a scheme to obstruct justice, and now it seems like it literally might not be possible under the law for the president acting as president to obstruct justice.
