Not a big surprise. As requested by the January 6 Committee, and even by Joe Biden (yes, the New York Times reported that highly inappropriate comment by the sitting president, saying the former president should be indicted, and the DOJ got the message), former President Trump has been indicted yet again. This time, the indictment obtained by federal prosecutor Jack Smith, alleges obstruction of an official proceeding, and 3 conspiracy counts - conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, and conspiracy against rights (in this case, voting rights). All the counts involve the activities that occurred on January 6.
No, he is not charged with "insurrection." No, he is not charged with conspiracy involving the Proud Boys or the Oath Keepers. The conspiracy counts involve taking legal advice from his attorneys. (You attorneys out there better be careful in what you advise your clients.) This indictment is yet another "unprecedented" action taken against the former president. With the 34 counts involving payment of "hush money," another 40 involving the documents at Mar-a-Lago, these 4 bring the total to 78.
With more indictments likely to follow, it is quite clear that the Democrats want to see Trump rot away in prison for the remainder of his life. Has anyone else been the subject of so much persecution (that's right I said it - persecution) in our country's history? Keep in mind that it all started when Trump took that escalator ride down inside Trump Tower in 2015, announcing his candidacy for president.
Does Trump have any defenses to these latest charges? Yes, he does. He has the defense of the First Amendment, with even the prosecutor conceding that Trump was allowed to assert, rightly or wrongly, that he won the election. But it goes beyond that. As explained by attorneys David Rivkin, Jr. and Lee Casey, in an August 3, 2023, Op-Ed in the Wall Street Journal, presidents have absolute immunity from both civil and criminal liability for "actions taken in the execution of the office."
Rivkin and Casey explain that the prosecutor's focus on whether Trump honestly believed the election was stolen from him, is misplaced. "The proper question is whether the actions he allegedly took after the 2020 election fall objectively within 'the outer perimeter of his official responsibility.'" Referring to the Supreme Court decision in Nixon vs. Fitzgerald (1982), Rivkin and Casey tell us that "the determination of whether a president was acting in his official capacity couldn't be based on either motivation or the legality of his actions, as that would 'subject the President to trial on virtually every allegation that an action was unlawful, or was taken for a forbidden purpose.'"
In case anyone has any doubt about this, Kimberly Strassel in her August 4, 2023 Op-Ed in the Wall Street Journal, explains it this way. Did Joe Biden have an honest belief that he could single-handedly wipe out nearly a half a trillion dollars in student loan debt? Biden told us he didn't: "I don't think I have the authority to do it by signing with with a pen." Then Speaker Nancy Pelosi told Biden he didn't have that power: "People think that the president of the United States has the power for debt forgiveness. He does not." But he did it anyway.
And when Congress asserted their Constitutional authority over the power of the purse (denying student loan forgiveness), Biden vetoed the measure. Ultimately, the Supreme Court told Biden he did not have that kind of authority. Anybody seriously expect Biden to be prosecuted for his illegal action, either now or when he is out of office? How about when Obama decided that he had the power to decide when the Senate was in recess, so that he could make appointments without the "advice and consent" of the Senate. The Supreme Court was unanimous in ruling he had no such power. Was he prosecuted? Of course not.
The difference is that Biden and Obama are Democrats. But, some say, Trump's actions were a threat to democracy. (We'll leave aside Biden's and Obama's blatant disregard for the "separation of powers," one of the cornerstones of our democracy.) As Rivkin and Casey point out, the Constitution requires that the president "take care that the laws be faithfully executed." Why is it not a defense for Trump to say that he was doing just that, as it appeared to him, and others, that the voting laws were not being followed.
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