Advisory Opinions Indictment Watch: No Immunity
Feb 7, 2024
Discussion on the immunity decision involving Donald Trump, implications and contradictions; Timing and potential next steps in Trump team's legal challenge, including Supreme Court filing; Special Counsel's strategic bind and motivations of justices; Holding government accountable for unconstitutional actions; Understanding complex writings related to presidential criminal liability; Gratitude for profile capturing podcast's essence; Concerns about erosion of judicial independence due to political influences.
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Smith's Request Creates A Strategic Bind
- Special Counsel Jack Smith already urged the Supreme Court to act unusually quickly, creating a strategic bind after the D.C. Circuit decision.
- The prosecution may now decline emergency review because the D.C. Circuit resolved the question below.
Civil Immunity Doesn't Resolve Criminal Risk
- The Supreme Court has barred presidents from avoiding subpoenas but has not decided absolute criminal immunity for official acts.
- The D.C. Circuit emphasized civil immunity differs from potential criminal liability for official acts.
Problem With Discretionary vs. Ministerial Framing
- The panel's use of the discretionary vs. ministerial distinction to define immunity drew criticism as conflating concepts and jeopardizing qualified immunity doctrine.
- Treating every statutory prohibition as 'ministerial' risks undermining established immunity frameworks.