Nikki Haley, now running for the Republican Presidential nomination, with Donald Trump in the White House, Washington DC,
October 2018 (Olivier Douliery/AFP/Getty)
I joined Times Radio on Sunday morning to analyze the latest in US politics, including the race for the Republican Presidential nomination, Donald Trump’s latest legal difficulties, and a US media which continues to be in thrall to Trump’s insults and falsehoods.
Listen to Discussion from 37:05
I discuss the possibility of a closer-than-expected contest for the GOP nomination, with Nikki Haley narrowing Trump’s polling lead in New Hampshire’s January 23 primary.
I look at Trump’s standard tactic of trying to subjugate the legal system, after the Colorado Supreme Court ruled that he cannot be on the GOP primary ballot because of his involvement in insurrection.
EA on BBC: Colorado Supreme Court Bars Trump From 2024 Ballot Over “Insurrection”
And I ask when the US media will finally focus on the day-to-day issues that matter, rather than being part of Trump’s circus.
[Editor’s Note: Trump is not being tried over “official actions”. The civil and criminal cases, as well as the disqualifications from GOP ballots, rest on actions that he took *outside* his official duties.]
“It is a falsehood that Trump has “absolute immunity, as all heads of state do”. There is no such provision in either international of US law.”
The President has absolute immunity for official actions in the sense that he cannot be prosecuted by the judiciary but must first be tried by the Senate for any alleged “high crimes and misdemeanours”. If convicted and removed from office, however, he can then be prosecuted in a court of law.
Maine’s secretary of state unilaterally removes Trump from primary ballot: https://static.foxnews.com/foxnews.com/content/uploads/2023/12/Decision-in-Challenge-to-Trump-Presidential-Primary-Petitions.pdf
COLORADO GOP send petition to SCOTUS: https://www.supremecourt.gov/DocketPDF/23/23-696/294416/20231227184621636_Colorado-Republican-State-Central-Committee-v.-Anderson-Cert-Petition%20PDFA.pdf
1. Whether the President falls within the list of officials subject to the disqualification provision of Section Three of the Fourteenth Amendment?
2. Whether Section Three of the Fourteenth Amendment is self-executing to the extent of allowing states to remove candidates from the ballot in the
absence of any Congressional action authorizing such process?
3. Whether the denial to a political party of its ability to choose the candidate of its choice in a presidential primary and general election violates
that party’s First Amendment Right of Association?
Text of Trump’s appeal to the D.C court: https://www.washingtonpost.com/documents/f25cf425-77ad-4524-8101-fdfabc62ecd7.pdf
“Under our system of separated powers, the Judicial Branch cannot sit in judgment over a President’s official acts. That doctrine is not controversial. It was treated as self-evident and foundational from the dawn of the Republic, and it flows directly from the exclusive vesting clause of Article II. In 1803, Chief Justice Marshall endorsed it, writing in Marbury v. Madison that a President’s official acts “can never be examinable by the courts.”
I have emailed Trump’s lawyers to remind them that removing absolute immunity for official acts would embolden international courts to seek the indictment of current and former U,S presidents.
[Editor’s Note: This is irrelevant to the multiple criminal and civil prosecutions of Trump, but it’s nice that commenter is getting some attention from the Trump camp.]
Trump’s lawyer, John Lauro, has responded to thank me for pointing this out. Presidents Clinton, Bush, Obama and Biden could face prosecution for war crimes committed by US forces in Iraq, Afghanistan, Palestine, Libya and Syria if it is ruled that the POTUS lacks absolute immunity and would undermine the case for refusing to allow Americans to be prosecuted by the International Criminal Court. Future presidents would have their freedom of action curbed by concerns about legal reprisals when they left office or even during it.
[Editor’s Note: It is a falsehood that Trump has “absolute immunity, as all heads of state do”. There is no such provision in either international of US law.
The rest of commenter’s post is a non sequitur and is thus irrelevant to the issue at hand of Trump’s potential criminal or civil liability.]
It is because, if Trump has absolute immunity, as all heads of state do, then any potentially criminal actions during his tenure of office would have to first be examined by Congress (Article 1, Section 3, Clause 7). If the court of appeal denies that he has such immunity, it opens up President Obama and President Bush to domestic and also international prosecution for putting troops and civilians in harm’s way. President Obama, as Trump’s lawyers have argued, did order drone strikes that killed American citizens: https://www.aclu.org/video/aclu-ccr-lawsuit-american-boy-killed-us-drone-strike
The danger here is that future presidents might be disinclined to authorise the (necessary) use of force if they think they could be prosecuted for doing so (bombs going astray and killing civilians) and not just impeached. This could potentially endanger national security. Clinton, Bush and Obama are all accused of war crimes in Kosovo, Iraq, Libya, Syria, Yemen, Afghanistan, Pakistan and Somalia. So this whole thing is much bigger than just Donald Trump.
The…verdict of the SCOCO against Trump: https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf
The judges claim that, “the events of January 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country.”
There are dissenting voices:
1. JUSTICE SAMOUR:
“Our government cannot deprive someone of the right to hold public office without due process of law. Even if we are convinced that a candidate committed horrible acts in the past—dare I say, engaged in insurrection—there must be procedural due process before we can declare that individual disqualified from holding public office. Procedural due process is one of the aspects of America’s democracy that sets this country apart. ¶274 The decision to bar former President Donald J. Trump (“President Trump”)—by all accounts the current leading Republican presidential candidate (and reportedly the current leading overall presidential candidate)—from Colorado’s presidential primary ballot flies in the face of the due process doctrine.”
2. JUSTICE BOATRIGHT:
“I agree with the majority that an action brought under section 1-1-113, C.R.S. (2023) of Colorado’s election code (“Election Code”) may examine whether a candidate is qualified for office under the U.S. Constitution. But section 1-1-113 has a limited scope. Kuhn v. Williams, 2018 CO 30M, ¶ 1 n.1, 418 P.3d 478, 480 n.1 (per curiam, unanimous) (emphasizing “the narrow nature of our review under section 1-1-113”). In my view, the claim at issue in this case exceeds that scope.”
3. JUSTICE BERKONKOTTER:
“I write separately to dissent because I disagree with the majority’s initial conclusion that the Election Code—as currently written—authorizes Colorado courts to decide whether a presidential primary candidate is disqualified under Section Three of the Fourteenth Amendment to the U.S. Constitution (“Section Three”) from being listed on Colorado’s presidential primary ballot. Maj. op. ¶¶ 62–63, 66. In my view, the majority construes the court’s authority too broadly.”
Donald Trump urges federal appeals court to grant him immunity from criminal prosecution in election subversion case: https://edition.cnn.com/2023/12/23/politics/trump-election-subversion-criminal-case/index.html
“The filing reiterates what the former president’s lawyers have repeatedly asserted – that Trump was working in his official capacity as president to “ensure election integrity” when he allegedly undermined the 2020 election results and therefore has immunity, and that his indictment is unconstitutional because presidents cannot be criminally prosecuted for “official acts” unless they are impeached and convicted by the Senate.”
“Before any single prosecutor can ask a court to sit in judgment of the President’s conduct, Congress must have approved of it by impeaching and convicting the President,” they wrote. “That did not happen here, and so President Trump has absolute immunity.”