"I think it's paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal laws," one judge said.
Somewhere I read that Trump has stated that if he is elected he is going to direct the Justice Department to go after Biden. If Biden is absolutely immune from prosecution (according to Trump's argument in this case), then what is that all about?
So what’s sauce for the goose is sauce for the gander, right?
So following what either Trump attorney Kise or Sauer told Appellate Judge Pan the other day a President that has first been impeached and convicted can feel free to have Seal Team 6 take out a political rival.
So let the House impeach Biden and Senate convict, let Biden go after Trump, and then Biden just declares that he’s a dictator and he stays in office, right? How could the Orange One complain about the concepts?
I'm so old I remember when the availability of indictment after his term ended was touted by Team Trump as a reason not to do anything about the Mueller report, and the clear obstruction laid out there.
If nothing else, Trump should be estopped from asserting immunity since he took the opposite position in the Senate trial and prevailed. (Sauer claimed there is no res judicata, but the applicable principle here is estoppel, not res judicata.)
You raise an interesting point...does the US Senate, sitting in *judgment* of an impeached public official, take on the coloration of a court or judge, where their decision constitutes a *claim preclusion* in subsequent legal proceedings?
Thank you...the "double jeopardy" argument was a non-starter, but I was a bit unsure of estoppel or preclusion in reference to the Senate's second impeachment trial action.
"Claim preclusion" = res judicata, not estoppel. But to address your point, Trump himself claims the two proceeding are related, and if he's right about that, then estoppel would apply. He can't have it both ways, and claim the two are sufficiently related that conviction in the Senate is required to institute a criminal proceeding, and then claim he can take inconsistent positions in the subsequent criminal proceeding.
One, of course he "can" make contradictory arguments (and does and I say that in here) but, two, I think quite clearly that the answer as to all of the above is that they are not related proceedings because impeachment is not a judicial proceeding.
The prior proceeding does not have to be a judicial proceeding, it can for example be an administrative proceeding, see DeRosa v. Nat’l Envelope Corp., 595 F.3d 99, 103 (2d Cir. 2010). I believe judicial estoppel should certain apply here. Trump specifically claimed in his impeachment trial (a quasi judicial proceeding) that the Senate had no jurisdiction since he was no longer in office, and that could only be held accountable in a criminal proceeding. A sufficient number of Senators accepted that argument and acquitted him on the basis. See https://www.justsecurity.org/74725/in-their-own-words-the-43-republicans-explanations-of-their-votes-not-to-convict-trump-in-impeachment-trial/ . Having taken that position to obtain an acquittal in the impeachment trial, he should now be judicially estopped from taking the opposite position in the criminal proceeding.
Those cases are all, to my knowledge, cases in which the administrative proceeding can be appealed to a court. In that sense, those administrative proceedings require estoppel to be treated as it would in a court.
Now I’m really revving up my fantasy legal thinking here:
I believe that some Senators acquitted Trump after the House impeached Trump because they relied on the Trump lawyers’ (and McConnell’s) arguments that if acquitted in the Senate that Trump could still face criminal investigation and trials, if not conviction and punishment once he left office.
So the “fantasy” comes in that at the Appellate level that once he starts trying to “have it both ways” and say he NOW is absolutely immune from investigation, prosecution, punishment that “Equity” would step in and provide the rulings against immunity by stating:
1) “You Trump waived that position at the Senate level if not also the House level that you could not even be impeached in the first place because you were absolutely immune”;
2). That you had unclean hands for enticing Senators into acquitting and come here at the appellate level with unclean hands;
3) That if we the appellate court were to buy your argument that you are absolutely immune then we would be unjustly enriching you after you misled the Senators and House and pulled a fast one on them that you were never not absolutely immune and thus could neither be impeached nor investigated, prosecuted or punished when you stopped being President.
I could go on in my zeal seeking “by hook or by crook” to find a way to hold Trump accountable for his actions, inactions, evil attempts to escape accountability, and for the failures to uphold his Oath and to support, protect and defend the Constitution, laws, Rule of Law, etc.
That could be. The fundamental harm here tho is that Trump claimed in the Senate trial that only a criminal court would have jurisdiction. A sufficient number of Senators in fact accepted this argument and acquitted him on this basis. Having secured a Senate acquittal based on this position, he is now attempting to adopt the opposite position--that only the Senate has jurisdiction and it would first have to convict before a court could have jurisdiction--and use that to obtain a dismissal of the criminal proceeding. This is about like saying in state court that only a federal court would have jurisdiction, using that to obtain a dismissal in state court, and then attempting to get a dismissal in federal court by claiming that only a state court would have jurisdiction. This is exactly the type of harm to the integrity of judicial proceedings that should lead the court to conclude that he is judicially estopped from attempting to use a contrary position to frustrate the court's jurisdiction. (There is probably a case somewhere that addresses the question of attempting to use a contrary position to frustrate jurisdiction.)
I don't think so. "Impeachment" and "Senate trial" are not bound by Court rules of procedure, the burdens of proof are different, there's no preserving if errors and rulings for appellate review, and so forth. But there is the clear proof of Trump's cravenness and hypocrisy in having his lawyers take different positions in different "fora".
That's why I advocate being able in a "real court" --as opposed to the political process of a Senate Impeachment trial--to raise "equitable issues" against Trump once he's in a "court system". So such equitable concepts would be, his coming to a court with "unclean hands", "waiver & estoppel"with his "changed positions about whether he as a President can be criminally tried after the Presidency when his own Impeachment lawyer told the Senate that if impeachment conviction was denied that the country could still go after him.
Further, he goes to the appellate courts with "unclean hands" after convincing Senators to deny conviction without concern that he could "get away" with committing "high crimes & misdemeanors" because the court system would still await him.
Finally: He should be charged in Courts with "unjust enrichment" if he now says he has "absolute immunity"; he should not be able to be rewarded in a court system because he'd be reaping the fruits of his having misled the Senators before they'd be voting in an impeachment trial.
I believe this is the point you meant to make but to expand on this, but in Greek mythology the last thing left when Pandora’s Box was opened was Hope. I can certainly see where the ROTUS (Rump of the US) wouldn’t want that for anyone but the MAGA faithful, and not even them once they need anything.
(This was only the second most interesting story in DC today. The first was the Chief Justice forgetting about an advocate's rebuttal time during this morning's oral arguments because, "I was up late last night." Which begs the question: was he rooting for Michigan or Washington? 😂)
I'm reminded that if we could just swap the D.C. Circuit Court of Appeals for the Supreme Court, it would solve so many problems. (Of course then the senate would never have agreed to seat Obama's judges there.)
Somewhere I read that Trump has stated that if he is elected he is going to direct the Justice Department to go after Biden. If Biden is absolutely immune from prosecution (according to Trump's argument in this case), then what is that all about?
So what’s sauce for the goose is sauce for the gander, right?
So following what either Trump attorney Kise or Sauer told Appellate Judge Pan the other day a President that has first been impeached and convicted can feel free to have Seal Team 6 take out a political rival.
So let the House impeach Biden and Senate convict, let Biden go after Trump, and then Biden just declares that he’s a dictator and he stays in office, right? How could the Orange One complain about the concepts?
I'm so old I remember when the availability of indictment after his term ended was touted by Team Trump as a reason not to do anything about the Mueller report, and the clear obstruction laid out there.
DJT’s claims of immunity are so childishly illogical it brings shame to the nation for high courts to be burdened with hearing them.
Trump's lawyers: We'll keep bullshitting this point until the end, because he's certainly not innocent.
If nothing else, Trump should be estopped from asserting immunity since he took the opposite position in the Senate trial and prevailed. (Sauer claimed there is no res judicata, but the applicable principle here is estoppel, not res judicata.)
👍🏼My view, too after being a lawyer since 1981.
Ditto. 1980.
(I think this is wrong on the law and bad on the policy. See downthread for more discussion. And, 2005.)
You raise an interesting point...does the US Senate, sitting in *judgment* of an impeached public official, take on the coloration of a court or judge, where their decision constitutes a *claim preclusion* in subsequent legal proceedings?
[No. For the same reason Trump's double jeopardy claim was ridiculous.]
Thank you...the "double jeopardy" argument was a non-starter, but I was a bit unsure of estoppel or preclusion in reference to the Senate's second impeachment trial action.
The principle I'm referring to is judicial estoppel, not a collateral estoppel aka issue preclusion.
https://content.next.westlaw.com/Glossary/PracticalLaw/I0f9fbff5ef0811e28578f7ccc38dcbee
Judicial estoppel basically means “jaw dropping chutzpah.”
"Claim preclusion" = res judicata, not estoppel. But to address your point, Trump himself claims the two proceeding are related, and if he's right about that, then estoppel would apply. He can't have it both ways, and claim the two are sufficiently related that conviction in the Senate is required to institute a criminal proceeding, and then claim he can take inconsistent positions in the subsequent criminal proceeding.
One, of course he "can" make contradictory arguments (and does and I say that in here) but, two, I think quite clearly that the answer as to all of the above is that they are not related proceedings because impeachment is not a judicial proceeding.
The prior proceeding does not have to be a judicial proceeding, it can for example be an administrative proceeding, see DeRosa v. Nat’l Envelope Corp., 595 F.3d 99, 103 (2d Cir. 2010). I believe judicial estoppel should certain apply here. Trump specifically claimed in his impeachment trial (a quasi judicial proceeding) that the Senate had no jurisdiction since he was no longer in office, and that could only be held accountable in a criminal proceeding. A sufficient number of Senators accepted that argument and acquitted him on the basis. See https://www.justsecurity.org/74725/in-their-own-words-the-43-republicans-explanations-of-their-votes-not-to-convict-trump-in-impeachment-trial/ . Having taken that position to obtain an acquittal in the impeachment trial, he should now be judicially estopped from taking the opposite position in the criminal proceeding.
Those cases are all, to my knowledge, cases in which the administrative proceeding can be appealed to a court. In that sense, those administrative proceedings require estoppel to be treated as it would in a court.
Now I’m really revving up my fantasy legal thinking here:
I believe that some Senators acquitted Trump after the House impeached Trump because they relied on the Trump lawyers’ (and McConnell’s) arguments that if acquitted in the Senate that Trump could still face criminal investigation and trials, if not conviction and punishment once he left office.
So the “fantasy” comes in that at the Appellate level that once he starts trying to “have it both ways” and say he NOW is absolutely immune from investigation, prosecution, punishment that “Equity” would step in and provide the rulings against immunity by stating:
1) “You Trump waived that position at the Senate level if not also the House level that you could not even be impeached in the first place because you were absolutely immune”;
2). That you had unclean hands for enticing Senators into acquitting and come here at the appellate level with unclean hands;
3) That if we the appellate court were to buy your argument that you are absolutely immune then we would be unjustly enriching you after you misled the Senators and House and pulled a fast one on them that you were never not absolutely immune and thus could neither be impeached nor investigated, prosecuted or punished when you stopped being President.
I could go on in my zeal seeking “by hook or by crook” to find a way to hold Trump accountable for his actions, inactions, evil attempts to escape accountability, and for the failures to uphold his Oath and to support, protect and defend the Constitution, laws, Rule of Law, etc.
You’re probably correct that it is not, technically, a binding rule or canon or doctrine. But it amply meets the stick-in your-craw standard.
That could be. The fundamental harm here tho is that Trump claimed in the Senate trial that only a criminal court would have jurisdiction. A sufficient number of Senators in fact accepted this argument and acquitted him on this basis. Having secured a Senate acquittal based on this position, he is now attempting to adopt the opposite position--that only the Senate has jurisdiction and it would first have to convict before a court could have jurisdiction--and use that to obtain a dismissal of the criminal proceeding. This is about like saying in state court that only a federal court would have jurisdiction, using that to obtain a dismissal in state court, and then attempting to get a dismissal in federal court by claiming that only a state court would have jurisdiction. This is exactly the type of harm to the integrity of judicial proceedings that should lead the court to conclude that he is judicially estopped from attempting to use a contrary position to frustrate the court's jurisdiction. (There is probably a case somewhere that addresses the question of attempting to use a contrary position to frustrate jurisdiction.)
It's legislative?
I don't think so. "Impeachment" and "Senate trial" are not bound by Court rules of procedure, the burdens of proof are different, there's no preserving if errors and rulings for appellate review, and so forth. But there is the clear proof of Trump's cravenness and hypocrisy in having his lawyers take different positions in different "fora".
That's why I advocate being able in a "real court" --as opposed to the political process of a Senate Impeachment trial--to raise "equitable issues" against Trump once he's in a "court system". So such equitable concepts would be, his coming to a court with "unclean hands", "waiver & estoppel"with his "changed positions about whether he as a President can be criminally tried after the Presidency when his own Impeachment lawyer told the Senate that if impeachment conviction was denied that the country could still go after him.
Further, he goes to the appellate courts with "unclean hands" after convincing Senators to deny conviction without concern that he could "get away" with committing "high crimes & misdemeanors" because the court system would still await him.
Finally: He should be charged in Courts with "unjust enrichment" if he now says he has "absolute immunity"; he should not be able to be rewarded in a court system because he'd be reaping the fruits of his having misled the Senators before they'd be voting in an impeachment trial.
'would open “a Pandora’s Box from which this nation may never recover.”'
They never ever see the irony. Unless that's explicitly the strategy, some kind of tactic for a post-truth world.
I believe this is the point you meant to make but to expand on this, but in Greek mythology the last thing left when Pandora’s Box was opened was Hope. I can certainly see where the ROTUS (Rump of the US) wouldn’t want that for anyone but the MAGA faithful, and not even them once they need anything.
(This was only the second most interesting story in DC today. The first was the Chief Justice forgetting about an advocate's rebuttal time during this morning's oral arguments because, "I was up late last night." Which begs the question: was he rooting for Michigan or Washington? 😂)
Your sum was perfect.
I'm reminded that if we could just swap the D.C. Circuit Court of Appeals for the Supreme Court, it would solve so many problems. (Of course then the senate would never have agreed to seat Obama's judges there.)
I think it was a good day. Hoping for a swift ruling in
Smith's favor and moving forward toward March 9.
PQoftheDesert is a fabulous movie. Both for subject matter and the glorious visuals
I did not understand the assassination question, how could that ever be an official act?
Osama bin Laden's assassination by SEALS was an official act signed off by
President Obama.
al-Awlaki by Obama. Soleimani by Trump.
Bid Laden was not a political opponent.
No, but he was assassinated by SEALS, officially sanctioned by Obama. That was my point in reference to what the Justice was saying to Mr. Sauer.
So by that logic, Obama should be able to be charged with a crime for that?
And you have to remember
what the basis of this whole
case is about with Judge Chukan and the 4 articles the Dept. of Justice/Jack Smith-Special Counsel
has charged Trump with.
If you go back to Trump's
2nd Impeachment, he really
can't claim immunity even
legislatively through the Senate, as he was no longer
in office. And too, read the
Constitutional Article on
Impeachment. It's not a get
out of jail free card for crimes
you've committed while in
office, once you walk out the
door.
If you follow the hypothetical.
But, Trump also sanctioned the assassination of an ISIS
leader (I believe he was), when he was in office. Am sure most presidents have
for foreign terrorists, not for
citizens of our country, or
a "political" rival in our
democracy.