Cato Institute: The Court Went Too Far on Presidential Immunity

In Trump v. US, a majority of the Supreme Court has laid down an astonishingly broad view of presidential immunity from criminal prosecution over official actions, even those taken for heinous motives and with no show of justification. We should heed the warnings of dissenting Justice Sonia Sotomayor, joined by Elena Kagan and Ketanji Brown Jackson, who charge the majority with concocting an “atextual, ahistorical, and unjustifiable” array of immunities that will too often place above the law a president bent on criminal misuse of his powers of office. 

Nowhere in the Constitution is there mention of executive immunity, which was a topic of peculiar interest to the Founders and Framers. Alexander Hamilton wrote in Federalist 69 that unlike the “king of Great Britain,” the chief executive of the United States would “be liable to prosecution and punishment in the ordinary course of law,” and in Federalist 77 named “subsequent prosecution in the common course of law,” in addition to impeachment, as checks on “abuse of the executive authority.”

Notwithstanding this history, it was probably foreordained that the court would find some degree of presidential immunity. The US Justice Department under administrations of both parties has long taken for granted an immunity of some dimension or other, and the current Department, former President Trump’s adversary here, did not retreat from that view in this case. Although the court had never had to rule on criminal immunity, a 5–4 majority in the 1982 case of Nixon v. Fitzgerald had recognized an immunity from civil claims, such as for wrongful dismissal, over official presidential actions.

However, the Fitzgerald Court explicitly recognized that immunity from criminal prosecution would raise entirely different issues because the public welfare is far more deeply implicated when a president commits a crime than when he may happen to commit, say, a tort.

Read the rest here.

UK General Election (seeing red)

There is an old saying in politics, that each election is different. Some years you are the windshield, and in others you're the bug. (Unless you're Donald Trump, in which case you never lose.)

Early reports from the UK where the polls have now closed, suggest that Labour is on track for a record majority while the Conservatives appear to have suffered their worst defeat in modern political history. Labour's massive win and the corresponding collapse of the Tories, appears to be at least in part due to the infighting on the right. Specifically, the rise of the new Reform Party and its rightwing populist leader Nigel Farage. Exit polls suggest that Reform, on track to win perhaps 13 seats, actually got a larger share of the popular vote than the Liberal Democrats, on track to win around 60 seats. That means that they are almost certainly responsible for a very large number of normally safe Conservative seats swinging to Labour. 

The other news, some might call it a silver lining in a very dark cloud, is that it looks like the SNP, Scotland's leftwing secessionist party, has been absolutely pasted.  The numbers are not firm as of this post, but exit polling suggests they are on track to lose around 80% of their seats in Westminster. In all cases the beneficiary being Labour. It should be noted that Scotland has a devolved parliament, and the SNP still controls the government there with the next Scottish election not scheduled for another two years. 

Supreme Court punts on a potentially huge sleeper case

The Supreme Court has declined to hear a case with potentially major repercussions. The case involves a man convicted decades ago of a fairly trivial non-violent crime that could have allowed for a prison sentence. However, he served no time and has not been in trouble with the law before or since. Current Federal law prohibits anyone convicted of a crime punishable by more than a year in prison, the customary definition of a felony, from ever being able to own or possess a firearm, irrespective of whether the crime was violent or not. He has sued to have his gun rights restored. The US Court of Appeals in a split decision sided with him and the state appealed to the Supreme Court. The high court returned the case in question to the lower courts for reconsideration in light of its recent decision upholding a ban on firearms ownership by someone under a domestic violence restraining order. In that case, the 8-1 decision specifically stated that the government had a legitimate right to disarm people who could be reasonably seen as a threat to others. If that is now the legal standard, then this could have far ranged consequences. 

It is long established in law that convicted felons can be deprived of some of their civil rights. Until fairly recent times most states routinely barred felons from voting, serving on juries or holding elective office. Today, 49 of the 50 states have laws that more or less automatically restore some of those rights. (Virginia is the outlier.)  The conditions vary from state to state, but typically the right to vote is restored after an offender satisfies the terms of their sentence. However, almost all states do not allow for guns to be owned by persons with a criminal record, and the Federal law has been on the books since the late 1960s. 

I don't see how the courts could go down this particular path without upending all of this. Are they going to elevate the right to own a gun above the right to vote etc.? Are they prepared to strike down centuries of legal precedent and affirm basic civil rights for anyone not actually in prison? 

For the most part, the press and media have given only passing attention to this case and seem to be missing entirely its broader ramifications. This could be the legal equivalent to a ticking bomb. 

Carl Bernstein: Biden's debate melt down was not a "one off"

Journalist Carl Bernstein is calling President Biden’s debate performance against former President Trump last week a “horror show” and said his sources close to the commander in chief say what happened is not a one-time problem.

Bernstein said he’s been talking to several sources who are near Biden, those who love him, support him and raised money for his reelection, but they are “adamant that what we saw the other night, the Joe Biden we saw, is not a one-off.”

“There have been 15 to 20 occasions in the last year and a half when the President has appeared somewhat as he did in that horror show that we witnessed,” Bernstein told CNN’s Anderson Cooper on Monday evening. “And what’s so significant is that the people that this is coming from, and also how many people around the president are aware of such incidents.”

Read the rest here.

This can't go on. For the sake of the country, the president needs to stand aside and end his ill-considered bid for reelection. The decline in the president's health is clearly serious and likely to accelerate. Setting aside the obvious fact that he is unlikely to be able to defeat Donald Trump, which would be catastrophic, Mr. Biden is simply unfit to be president for another four years. The frantic denials from the White House are reminding me of 1944 when those around FDR knew he was gravely ill and went to great lengths to cover it up. In the increasingly improbable event that Biden is reelected, we should all understand that the next president is almost certain to be Kamala Harris. 

The Supreme Court Ruling

I'm a constitutional conservative and this was a very bad decision with no foundation in originalism. The Founders would be appalled. I expected a finding for some immunity, but that it would be very narrowly defined. The old academic "what if..." someone plants a nuclear bomb in a city and only he knows where it is. He is taking the 5th. Can the POTUS authorize torture? Yes, of course. But that is a much more extreme version of the old debate about whether it's OK to run a red light if you are rushing someone to the hospital with life threatening injuries. Any claim of immunity for a crime should be examined on a case-by-case basis and tested with the question; would failing to break the law result in grave harm to the country or substantial loss of life, and this being so obvious and self-evident that the president might be rightly regarded as derelict in their duty if they failed to act? This decision goes way too far.

Alice Linsley: Changing the Church by Stealth

The shrinking Episcopal Church welcomes all. It prides itself on diversity and inclusion. In 1976 the General Convention of ECUSA affirmed homosexual behavior when it passed the “we are children of God” resolution.

In 1977, Bishop Paul Moore (NY) ordained the lesbian Ellen Marie Barrett to the priesthood. She served as Integrity's first co-president along with the late Louie Crew.

Most Episcopalians slept through these changes, many of which were launched with great stealth, as Crew admits in this statement from his paper "Changing the Church": "More 'irregular' ordinations of women took place… after our convention. In Washington at the time, on a missionary journey to our new chapters in the east, Jim Wickliff and I yielded to the counsel of friends who advised that our visibility at the ordination might put in jeopardy lesbians among all early ordinands."

However, the consecration of Gene Robinson in November 2003 stirred many to wakefulness, but by then it was too late to reverse the disastrous course of the Episcopal Church.

There is a popular saying Lex orandi, lex credendi. It means that that there is a direct relationship between the law of praying (lex orandi) and the law of believing (lex credendi). Change the prayers of a community and you can change their beliefs. Innovation can direct people's thoughts away from the received tradition. That happened when the Episcopal Church introduced its 1979 prayer book. It should have been called "A Book of Alternative Services" as was done in other Anglican Provinces that introduced experimental liturgies in the 1970s.

By comparing the ECUSA/TEC prayer book to the Book of Common Prayer 1928 one sees the degradation of orthodox theology and the exultation of TEC's social justice agenda. Even advocates of the 1979 prayer book recognized that it presents heterodox theology, what Urban T. Holmes termed a "differentiated" theology. An Episcopal priest and theologian, Holmes understood that the liturgical revisions of the 1970s drew more on Process Theology and modern philosophy than on Scripture, Tradition, and the Church Fathers. In reference to the Episcopal Church 1979 Prayer Book, he wrote, "It is evident that Episcopalians as a whole are not clear about what has happened. The renewal movement in the 1970s, apart from the liturgical renewal, often reflects a nostalgia for a classical theology which many theologians know has not been viable for almost 200 years. The 1979 Book of Common Prayer is a product of a corporate, differentiated theological mind, which is not totally congruent with many of the inherited formularies of the last few centuries. This reality must soon ‘come home to roost’ in one way or another."

Holmes added, "The church has awakened to the demise of classical theology."

Holmes admitted that the 1979 prayer book is not orthodox, and it does not align with what Anglicans have always believed and how they have always prayed.

Read the rest here.