An Opinion Worth The Wait and Worry

It took three women judges and nail-biting weeks to get it done, but it was worth the wait. U.S. v Trump, a unanimous appellate decision rendered by Judges Henderson, Childs, and Pan of the U.S. District Court for the District of Columbia arrived yesterday at long last.

I decided to peruse the 57-page decision for myself, and in honor of a high school friend who recently died and didn’t get to see justice being served. He would have liked that three women took Trump down to size. Hence, this blog post is dedicated to him, in his memory.

Herein, I’ll include tidbits of the decision I consider highlights, with occasional commentary. One bit most have probably heard cited on TV is worth repeating. “For the purposes of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”

A particular favorite observation by this court that evoked a ya think? from me was, “The question of whether a former President enjoys absolute immunity from federal criminal liability is one of first impression.” Exactly. Because such a claim renders a US president nothing more than a fascist dictator.

However, these three judges nonetheless had to address Constitutional law all the way back to our founders, as in Marbury v. Madison of 1803. You know, that federal supremacy case. The one everyone learns in US history class as well as in their first year of law school for those of us who attended and paid attention, unlike an entire horde of lawyers representing the former president on this case and others.

In this instance, it was the separation of powers doctrine within Marbury v. Madison and its progeny that was front and center. A couple of favorite cites from Marbury’s subsequent legal decisions were as follows:

From Kendall v. US ex rel Stokes in 1838: “To find a statutory violation unreviewable, the Court held, ‘would be clothing the President with a power entirely to control the legislation of congress, and paralyze the administration of justice.’”

In fact, that is precisely what Trump and his coterie of contemptible legal representation aim to do. Paralyze the administration of justice.

From US v. Lee in 1882: “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of authority which it gives.”

Quite eloquent, and the appellate judges drafting this opinion knew exactly what they were doing in repeating the term officer, given Trump’s lawyers have incredulously and incredibly sought to argue that the president of the US is not an officer of the government pursuant to the Constitution.

You know what else dawned on me? These three judges have locked this up tight for its possible review by SCOTUS. Because to overturn their decision in any capacity would be to essentially overrule Marbury v. Madison and all cases stemming from that landmark decision. Granted, this is a not-so-supreme Court that has already eschewed fifty years of precedent, chucking out the judicial window an established principle to which they are supposed to adhere, stare decisis, meaning let the decision stand. Would they, will they, have the unmitigated hubris to literally eviscerate and make meaningless the very foundation of US Constitutional law?

As to the Categorical Immunity Defense put forth by the citizen criminal defendant in this case, this appellate court concluded that, “Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.”

Here’s some additional quotes from yesterday’s opinion on the subject of his claimed immunity to commit crimes that elicited more ya thinks?:

“Instead of inhibiting the President’s lawful discretionary action, the prospect of federal criminal liability might serve as a structural benefit to deter possible abuses of power and criminal behavior.”

“As the district court observed, ‘Every president will face difficult decisions; whether to intentionally commit a federal crime should not be one of them.’”

With respect to criminal attempts by the citizen to overturn the presidential elections, this court said:

“The public has a strong interest in the foundational principle of our government that the will of the people, as expressed in the Electoral College vote, determines who will serve as President.”

Here’s looking at you, fraudulent six electors in Nevada.

“We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power—the recognition and implementation of election results. Nor can we sanction his apparent contention that the Executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count.”

With respect to claims of being subjected to unconstitutional double jeopardy with this current criminal prosecution because the former president was not convicted in the Senate of his impeachment by the House, the court noted his misplaced reliance on double jeopardy because “Impeachment is not a criminal process.” Additionally, I offer these two judicial gems:

“At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches. Presidential immunity against federal indictment would mean that, as to the President, the Congress could not legislate, the Executive could not prosecute, and the Judiciary could not review.”

“…impeachment acquittals are often unrelated to factual innocence…Former President Trump’s acquittal in his impeachment trial on the charge of inciting insurrection makes this point. The forty-three Senators who voted to acquit him relied on a variety concerns, many of which had nothing to do with whether he committed the charged offense.”

One of the concerns of more than a few Republican members of Congress should be their culpability in directly participating in the January 6 insurrection. It is they who must next be held accountable as not being above the law, any more than the former president now criminal defendant citizen isn’t. Because aiding and abetting is also a crime for officers of government, no matter how lowly their rank, or how low they sink to subvert our democratic norms.



Leave a Comment

Your email address will not be published. Required fields are marked *