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      US prosecutors retool January 6 plea deals after supreme court ruling – report

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      US prosecutors are “beginning to offer retooled plea deals” and drop charges in cases related to the January 6 attack on Congress, CNN said, citing legal filings in the weeks since the rightwing-dominated US supreme court narrowed how prosecutors can charge rioters with obstructing an official proceeding.The report noted a Monday filing concerning five members of the far-right Proud Boys group, which said each defendant had been offered a plea deal not including the obstruction charge.Should the deal be declined, CNN said, the obstruction charge would be dropped and the men taken to trial on other charges.A rioter famously seen carrying a Confederate battle flag through Congress is also among prisoners or defendants whose cases are being reassessed.On 6 January 2021, Kevin Seefried, from Laurel, Delaware, was part of the mob that stormed the Capitol at the urging of Donald Trump, seeking to stop certification of Joe Biden’s 2020 election win.A famous picture showed Seefried underneath portraits of the senator and vice-president John Calhoun, a champion of secession in the early 19th century, and Senator Charles Sumner, a leading voice for union and the abolition of slavery in the civil war years.In February this year, Seefried wept as he was sentenced to nearly three years in prison for obstruction of an official proceeding, as well as misdemeanour charges.But he was soon released to await a decision in Fischer v United States, a supreme court case concerning the obstruction charge.In late June, the court’s decision narrowed the grounds on which the charge could be used in January 6 cases.According to the chief justice, John Roberts, the obstruction charge should be applied to whether a “defendant impaired the availability or integrity for use in an official proceeding of [actual] records, documents, objects, or … other things used in the proceeding, or attempted to do so”.The opinion was sent to an appeals court for further consideration. Prosecutors were left to work out how to link the obstruction charge to threats to actual records, in particular the electoral college certificates used to formalise results, rather than to the general attempt to overturn an election.The supreme court decision prompted outrage among court observers.Noah Bookbinder, executive director of Citizens for Responsibility and Ethics in Washington, or Crew, said Roberts and the other five justices who ruled in the majority had helped “insurrectionists dodge accountability”, adding: “If attempting to block the certification of the 2020 election isn’t obstructing an official proceeding in the court’s eyes, then what is?”The US attorney general, Merrick Garland, was also disappointed, saying the court had “limit[ed] an important federal statute that the [justice] department has sought to use to ensure that those most responsible for that attack face appropriate consequences”.Nonetheless, Garland said, “the vast majority of the more than 1,400 defendants charged for their illegal actions on January 6 will not be affected by this decision. There are no cases in which the department charged a January 6 defendant only with the offense at issue in Fischer.”Though the department would “comply with the court’s ruling”, Garland said, it would “continue to use all available tools to hold accountable those criminally responsible for the January 6 attack on our democracy”.Earlier this month, the US justice department released statistics showing how January 6 cases would be affected by the supreme court ruling.More than 1,472 people had been charged in relation to the attack on Congress by the time the court said it would consider Fischer, it said. Of those people, “roughly 259 … were charged with corruptly obstructing, influencing, or impeding an official proceeding, or attempting to do so”.Of those 259 defendants, Seefried and 132 others had been sentenced. Of those 133, the department said, 76 were convicted of obstruction and other felonies while “approximately 17” were convicted on the obstruction charge but no other felonies and were then still serving prison time.“Nearly all” the other 126 defendants were on pre-trial release, the justice department said.The department said it would review “individual cases against the standards articulated in Fischer, as well as the anticipated ongoing proceedings related to Fischer in the DC circuit, to determine whether the government will proceed with the charge”.The department also noted the wide range of other charges against January 6 rioters, many concerning violent conduct.“Approximately 531 defendants have been charged with assaulting, resisting, or impeding officers or employees,” it said, “including approximately 157 individuals who have been charged with using a deadly or dangerous weapon or causing serious bodily injury to an officer.”Fourteen convictions have been secured for seditious conspiracy, the most serious charge arising from the Capitol attack.Running for president again, Trump leads Biden in most polling.He has promised pardons to those imprisoned over January 6. 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      American rule of law is vanishing at the tips of Trump-appointed judges’ pens | Moira Donegan

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      Donald Trump stole thousands of classified documents when he left the White House in 2021, according to prosecutors, and shoved them in unsecured areas around the tacky Florida golf club where he lives. He kept them in basements, bathrooms and ballrooms; they were often unlocked, accessible to anyone who happened to wander by, as dozens or hundreds of people do, every day, at Mar-a-Lago. Trump refused to return the documents when asked; he also lied about what he had.On at least one occasion in 2021, he was recorded showing off one of the classified documents to a visitor, apparently for the sake of his own aggrandizement. “It is like highly confidential. Secret,” Trump said to the man, who was not authorized to see the information. “See, as president, I could have declassified it. Now, I can’t, but this is still a secret.”Aileen Cannon, a US district court judge in Florida whom Donald Trump appointed during his last year in office, has done everything in her power to make sure Trump is never held accountable for the theft of the documents. Since the special counsel Jack Smith’s case – widely considered to be the most legally airtight of the several criminal prosecutions against the former president – was formally assigned to Cannon in June 2023, she has often acted as if she was a member of the defense team; denying routine motions from the prosecutors, antagonizing Smith and his team personally, and dragging on the proceedings in endless rounds of briefings and delays, all surely meant to postpone the case until after Trump retakes the White House.On Monday, she dismissed the case entirely, throwing out all the document-related charges against Trump. Her purported reasoning? That special counsels such as Jack Smith are unconstitutional. Smith signaled that he plans to appeal the decision.Cannon’s ruling flies in the face of decades of precedent, going back to the Watergate era, wherein courts, including the US supreme court, have repeatedly reaffirmed the constitutionality of special counsels and their appointments. But although Cannon wears a robe, she is not interested in the law, which is a mere pretext for her bald effort to advance and protect Trump’s interests. She is not a judge any more than the man who works at the mall every December is Santa Claus. She has the trappings and the power, but none of the expertise, none of the obligations and none of the shame.Cannon’s dismissal of the Trump documents case was predictable: the prosecution, widely considered to be doomed, came at the end of months of strategic moves on her part meant to provide Trump maximum leeway to message publicly about the case, and minimum threat to his electoral process. When Trump lied about the FBI raid on his home, saying that it was a plot on his life orchestrated by the Biden administration, Smith, fearing violence and public misperception, asked for a gag order. Both the sensitivity of the case and the egregious danger posed by Trump’s conduct should have made it an easy call; but Cannon denied it, allowing Trump to continue lying about the raid.At one point during preliminary proceedings, Cannon outright refused to let prosecutors see the documents that had been seized from Mar-a-Lago, a move that prompted a reversal and rare rebuke from the appeals court above her, Atlanta’s 11th circuit. That 11th circuit warning seems to have prompted the first instance in which another federal judge urged Cannon to recuse herself from the case. It would not be the last.Cannon’s single-handed nullification of the classified documents case demonstrates the core problem with what has been, until now, the dominant theory of how to hold Trump accountable for his crimes: with the law. Increasingly, it seems prosecutions in the federal courts are a futile exercise when it comes to the former president. And that’s because the courts are packed with Republican partisans, Trump appointees and personal Trump loyalists, and large numbers of other right-leaning judges who aim to use their seats to roll back the social progress of the past century, further Trump’s authoritarian agenda, and shield him permanently from consequence. To the extent that they are controlled by these actors, the federal courts will never provide a check to Trump’s power. They will only augment it.This reality was underscored on 1 July. The supreme court’s last decision of the term, Trump v United States, created, out of thin air, a vast and near-absolute immunity from criminal prosecution that the court’s conservative justices say applies to presidents – or, at least, applies to their favorite former president.That decision stemmed from another of Smith’s prosecutions, in the January 6 case; in his concurrence, Justice Clarence Thomas, writing alone, signaled that he thought that perhaps special counsels such as Smith might not be legal after all. It was less like a real, considered legal position than like a set of instructions for Cannon: throw the documents case out on these grounds. Her argument mirrors Thomas’s; she took her marching orders straight from the top.The 11th circuit is likely to reverse Cannon’s dismissal, and it’s possible that Smith will get a chance to re-file his charges – possibly in Washington, closer to the site of the original illegal conduct, which will have the benefit of permanently removing his case from Cannon’s court. But the case will not be heard before the election, and so it may never be heard at all.Even prosecuting Trump might turn out to offer little more than a delay of the inevitable: the complicity of the courts in Trump’s criminality reveals an institutional rot that even locking him up would not solve. If the courts cannot hold the president accountable – or rather, if they choose to exempt one man from their authority, and instead bend themselves to his will – what, exactly, is the check on the presidency? How can a powerful criminal be held to account? Where does the rule of law apply, and where does it vanish?We have at least one answer: the rule of law vanishes at the tip of a Trump judge’s pen.

      Moira Donegan is a Guardian US columnist More

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      US supreme court grabbing ‘ultimate power’, Biden reform adviser says

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      Laurence Tribe, a constitutional law scholar who has advised Joe Biden as the president prepares to back dramatic reforms to the US supreme court, has criticized the court’s ultraconservative justices for acting as a “center of self-aggrandizement” threatening the checks and balances on which the US has historically depended.In comments to the Guardian a day after news broke of Biden’s plans to endorse major changes to the country’s most powerful court, the Harvard Law School professor said the justices were out of step with basic constitutional premises. The court had “reached the point of assuming ultimate power over our entire legal and political system”.He accused the supermajority of “essentially destroying the framework of checks and balances” that had maintained an uneasy equilibrium “over the course of our history”.On Monday the Washington Post revealed Biden’s intention to support major plans to restrain the supreme court. The ideas reportedly being considered include term limits for justices, an ethics code armed with real teeth, as well as a possible constitutional amendment to overturn the justices’ highly controversial decision to grant Donald Trump broad presidential immunity from criminal prosecution.The Post reported that in preparation for an announcement, expected within weeks, Biden had turned to Tribe as an authority on constitutional law. They discussed Tribe’s blueprint for supreme court reform set out in a Guardian opinion article earlier this month, the newspaper said.Tribe declined on Tuesday to talk about their conversations. But he shared with the Guardian his personal thoughts about what must be done to correct some of the court’s most flagrant abuses.He gave a withering assessment of the hard-right supermajority that controls the court following Trump’s three appointments. The six conservative justices had discarded the judicial self-constraint that the framers of the constitution had intended for the “least dangerous” branch of government.The court had overturned “decades of precedent for no better reason than that it now has the votes to do so”.Tribe blamed the supreme court for systematically rolling back the past half-century of progress on voting and human rights. He listed advances that had been laid waste in recent years, including: “Reproductive liberty, gender equality, sexual autonomy, racial justice, police abuse and government accountability.”He warned there could be no quick fix for the court’s “outlandish excesses”. But he sketched reforms that, over time, could put the court back on the rails.One of Tribe’s most favored changes appears to fall outside Biden’s plans: enlarging the nine-person court with four extra seats to offset Trump’s “stacking of the court”. Tribe embraced enlarging the court in his role as a member of the commission formed by Biden in 2021 looking into supreme court reform.But he told the Guardian that, speaking only for himself, he would be “loth to urge the president at this point to reverse his deep-rooted opposition to court expansion”.The Harvard professor said that there was growing consensus behind term limits for justices. Presidents should make two appointments to the supreme court in each four-year White House term.New appointments would then serve for 18 years as active justices, followed by lifetime service as a retired judge who could fill in for a recused colleague when required. Such a two-tier system has thrived in lower courts for more than a century.Tribe said the shift to a term-limited system – which would be prospective only, not affecting the current nine justices – could be legislated by Congress.“No other apex court in the world entrusts remotely so much power to so few individuals for so long – essentially for life,” he said.Biden also appears minded to endorse an enforceable ethics code, to replace the voluntary guidelines which the court adopted last November amid mounting criticism of Clarence Thomas and Samuel Alito. Tribe said he believed such a reform was now urgently needed, as a way to save the court “from its own worst tendencies”.The law professor called the present system untenable. With no outside mechanism for enforcing ethical rules, such as disclosure of gifts from rich patrons, the court was in effect “expected to police itself”.That remained the case even when justices appeared “prone to get away with as much exploitation of their prestigious positions as they can”.Like term limits, an enforceable ethics code would require congressional legislation. Both would be a tough proposition given the present partisan divide and the need for 60 Senate votes under the filibuster.Such reforms would look easy compared with the other major reform being considered by Biden relating to presidential immunity. This would require a constitutional amendment that would have to negotiate the convoluted rules for changing the US constitution (two-thirds support in both chambers of Congress, or two-thirds of the states in a convention, followed by ratification by three-quarters of state legislatures).What was now needed, Tribe said, was a “No Person Is Above the Law” amendment which would insert language into the constitution making clear that nobody – including the president – could claim immunity from criminal prosecution by virtue of their office.Tribe said that he also wanted to see an amendment constraining a president’s pardon power so that a lawless incumbent of the Oval Office could not pardon themselves or anyone else whom they encouraged to commit crimes on their behalf.Taken together, these changes would return to the supreme court the public respect it had lost, Tribe said. They would correct the court’s partisan majority which now acts as though it were “all-knowing and essentially infallible, paying virtually no heed to the opinions of its predecessors or of the American people”. More

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      Trump lawyers press judge to overturn hush-money conviction after supreme court immunity ruling

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      Donald Trump’s lawyers are imploring a New York judge to overturn his hush-money conviction and dismiss the case, arguing his historic trial was “tainted” by evidence that shouldn’t have been allowed because of the US supreme court’s recent presidential immunity ruling.In a court filing dated 10 July but made public on Thursday, defense lawyers said the guilty verdict in the first-ever criminal trial of a US president should be set aside.“The use of official-acts evidence was a structural error under the federal Constitution,” wrote defense lawyers Todd Blanche and Emil Bove. “The jury’s verdicts must be vacated.”The supreme court released its immunity decision on 1 July, giving broad protections to presidents and insulating them from prosecution for official acts. It also said evidence of a president’s official acts cannot be used in a prosecution on private matters. The supreme court did not define what constitutes an official act, leaving that to lower courts.Trump’s defense lawyers said that meant the Manhattan jury’s verdict could not stand. Hours after the supreme court ruling, Trump’s team wrote a letter to the trial judge, Juan Merchan, asking him to set aside the verdict and to delay Trump’s sentencing, due to take place in July. Merchan agreed to delay Trump’s sentencing by two months.A spokesperson for Manhattan district attorney Alvin Bragg’s office declined to comment on Thursday. Prosecutors have until 24 July to respond. They have previously called Trump’s arguments meritless but agreed to push back the sentencing.Legal experts said Trump faces steep odds of getting the hush-money conviction overturned, since much of the case involves conduct before his presidency and the evidence from his time in the White House has more to do with private conduct.The supreme court’s ruling stemmed from a separate case Trump faces on federal charges involving his efforts to undo his 2020 election loss to Joe Biden. It all but ensured Trump would not face trial in that case before the November election.Trump’s lawyers are also seeking a pause in a third criminal case on charges of mishandling classified documents due to the ruling. Trump has pleaded not guilty to all charges.In the hush-money case, Trump was found guilty of falsifying business records to cover up his former lawyer Michael Cohen’s $130,000 payment to adult film star Stormy Daniels to remain quiet about a sexual encounter she says she had with Trump. Prosecutors say the payment was designed to boost his presidential campaign in 2016. Trump denies having had sex with Daniels and has vowed to appeal after his sentencing.Trump lawyers argue that jurors shouldn’t have been allowed to hear about some matters including his conversations with then White House communications director Hope Hicks, testimony from another aide about how Trump got personal mail in the Oval Office, and tweets that he sent while president. Some of the checks and invoices at issue in the case were also from his time as president.Merchan has said he will decide on Trump’s arguments by 6 September. If the conviction is upheld, Trump will be sentenced on 18 September –less than seven weeks before the election. More

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      AOC launches effort to impeach Clarence Thomas and Samuel Alito

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      Congresswoman Alexandria Ocasio-Cortez introduced articles of impeachment against the conservative US supreme court justices Clarence Thomas and Samuel Alito on Wednesday over the justices’ “pattern of refusal to recuse from consequential matters before the court”.The articles of impeachment are unlikely to gain traction in the US House, which is controlled by Republicans. The effort follows calls from two US senators, Sheldon Whitehouse and Ron Wyden, for the US attorney general to appoint a special counsel to investigate potential criminal violations of federal ethics and tax laws by Thomas.“Justice Thomas and Alito’s repeated failure over decades to disclose that they received millions of dollars in gifts from individuals with business before the court is explicitly against the law. And their refusal to recuse from the specific matters and cases before the court in which their benefactors and spouses are implicated represents nothing less than a constitutional crisis,” Ocasio-Cortez, a Democrat from New York, said in a statement.The articles were supported by seven other Democrats in the House.Ocasio-Cortez continued: “The unchecked corruption crisis on the supreme court has now spiraled into a constitutional crisis threatening American democracy writ large.”Reporting by the news outlet ProPublica revealed that Thomas failed to disclose several luxury vacation trips that were paid for by Harlan Crow, a conservative megadonor. Thomas has also been pressed to recuse himself from cases involving the January 6 US Capitol attack and Donald Trump because his wife, Ginni, is involved with groups that were connected to the insurrection.The resolution filed against Thomas contains three articles of impeachment. The first focuses on his failure to disclose gifts from Crow. The second two involve his refusal to recuse himself from cases connected to his wife.Alito also took a vacation with and flew on a private jet chartered by Peter Singer, a Republican billionaire. Additionally, Alito refused to recuse himself from cases involving the attack on the US Capitol after it was reported that his wife, Martha-Ann, flew an upside-down American flag associated with the insurrection at their Virginia home. Further, the Alitos flew a flag associated with Christian nationalism at a beach home in New Jersey.Ocasio-Cortez filed two articles of impeachment against Alito. One focuses on his failure to disclose luxury travel and the other on his refusal to recuse himself from January 6 cases.Alito and Thomas were both part of a majority opinion earlier this month saying that former presidents have immunity from prosecution for official acts, a major win for Trump. They both also were in the majority in a case narrowing the grounds under which January 6 participants can be criminally prosecuted.Supreme court justices have wide discretion over whether to recuse themselves from a given case – something that sets them apart from other justices. Facing pressure after ProPublica’s reporting, the court’s nine justices formalized a code of conduct last November, a move that was seen as a step in the right direction, but still weak. More

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      Trump plans to block hearings in January 6 case before 2024 election

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      Donald Trump is expected to launch a new legal battle to suppress any damaging evidence from his 2020 election-subversion case from becoming public before the 2024 election, preparing to shut down the potency of any “mini-trials” where high-profile officials could testify against him.The plans come after the US supreme court last week in its ruling that broadly conferred immunity on former presidents opened the door for the US district judge Tanya Chutkan to hold evidentiary hearings – potentially with witnesses – to determine what acts in the indictment can survive.In the coming months, Trump’s lawyers are expected to argue that the judge can decide whether the conduct is immune based on legal arguments alone, negating the need for witnesses or multiple evidentiary hearings, the people said.If prosecutors with the special counsel Jack Smith press for witnesses such as former vice-president Mike Pence or White House officials to testify, Trump’s lawyers are expected to launch a flurry of executive privilege and other measures to block their appearances, the people said.The plans, which have not been previously reported, are aimed at having the triple effect of burying damaging testimony, making it harder for prosecutors to overcome the presumptive immunity for official acts, and injecting new delay into the case through protracted legal fights.Trump has already been enormously successful in delaying his criminal cases, including by succeeding in having the supreme court from taking the immunity appeal in the 2020 election subversion case in Washington, which was frozen while the court considered the matter.The delay strategy thus far has been aimed at pushing the cases until after the November election, in the hope that Trump would be re-elected and then appoint as attorney general a loyalist who would drop the charges.But now, even if Trump loses, his lawyers have coalesced on a legal strategy that could take months to resolve depending on how prosecutors choose to approach evidentiary hearings, adding to additional months of anticipated appeals over what Chutkan determines are official acts.A Trump spokesperson declined to comment on the legal strategy but claimed in a statement: “The entire January 6th case has always been just a desperate, un-constitutional attempt by the Biden Crime Family and their weaponized Department of Justice to interfere with the 2024 Presidential Election. The only thing imploding faster than the Biden campaign is Deranged Jack Smith’s partisan hoaxes.”View image in fullscreenTrump’s lawyers are not expected to make any moves until the start of August, the people said, when the case is finally returned to the jurisdiction of Chutkan after the conclusion of the supreme court’s 25-day waiting period and a further week for the judgement to formally be sent down.Once Chutkan regains control of the case, lawyers for Trump and for the special counsel have suggested privately that they think she will quickly rule on a number of motions that were briefed before the case was frozen when Trump filed his immunity appeal with the supreme court.That could include Trump’s pending motion to compel more discovery materials from prosecutors. If Chutkan grants the motion, Trump’s lawyers would insist on time to review the new materials before they started sorting through what acts in the indictment were immune, the people said.In the supreme court’s ruling on immunity, the justices laid out three categories for protection: core presidential functions that carry absolute immunity, official acts of the presidency that carry presumptive immunity, and unofficial acts that carry no immunity.Trump’s lawyers are expected to argue the maximalist position that they considered all of the charged conduct was Trump acting in his official capacity as president and therefore presumptively immune – and incumbent on prosecutors to prove otherwise, the people said.And Trump’s lawyers are expected to suggest that even though the supreme court contemplated evidentiary hearings to sort through the conduct, they are not necessary, and any disputes can be resolved purely on legal arguments, the people said.In doing so, Trump will try to foreclose witness testimony that could be politically damaging because it would cause evidence about his efforts to subvert the 2020 election that has polled poorly to be suppressed, and legally damaging because it could cause Chutkan to rule against Trump.Trump’s lawyers have privately suggested they expect at least some evidentiary hearings to take place, but they are also intent on challenging testimony from people like former vice president Mike Pence and other high-profile White House officials.For instance, if prosecutors try to call Pence or his chief of staff Marc Short to testify about meetings where Trump discussed stopping the January 6 certification, Trump would try to block that testimony by asserting executive privilege, and having Pence assert the speech or debate clause protection.Trump’s lawyers would argue to Chutkan that any privilege rulings during the investigation that forced them to testify to the grand jury were not binding and the factual record needed to be decided afresh.Meanwhile, witnesses such as former Trump lawyer John Eastman or former Trump campaign official Mike Roman would almost certainly be precluded from testifying because they have valid fifth amendment concerns of self-incrimination, as they have been separately charged with conspiring to overturn the 2020 election results in Fulton county, Georgia. 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      How might a rogue president use the US supreme court immunity ruling?

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      “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK … It’s, like, incredible.”The ruling of the US supreme court in Trump v United States last week establishes that the president has immunity from prosecution for “official acts” taken while in office. The term “official acts” was not defined in the case, leaving it for lower courts and establishing a precedent that the president broadly cannot be held accountable for breaking the law except under narrow conditions, or by impeachment, which itself only removes him from office without further consequence.“The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the Founding,” Justice Sonia Sotomayor wrote in a scathing dissent. This new official-acts immunity now “lies about like a loaded weapon for any president that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the nation”.The decision seems to grant nearly limitless power to the office. Any act a president takes in the “core” functions of the job, such as appointing judges or issuing pardons, have absolute immunity. Any act taken in the “periphery” of his powers, like directions made to his staff or announcements made through official channels to the public, are presumed to be immune from prosecution, barring the finding of a judge otherwise. Acts taken outside of his official duties are not immune, though again: a judge makes that determination using ill-defined terms.It is roughly equivalent to the “enabling acts” of Nazi Germany. Coupled with the power of pardon – which allows the president to immunize anyone he or she chooses from federal prosecution without review or challenge from the other branches of government – the president can instruct subordinates of his or her choosing to act without regard for legal consequences.The idea that the president might declare a political opponent an enemy of the state and have a military sniper kill that person was raised as a hypothetical during oral arguments, and the resulting decision, incredibly, does not categorically rule that act a prosecutable abuse of power.Instead, we’re left in a fuzzy legal space, with judges left to decide what is “presumptively” immune and what evidence can be allowed to prosecutors after the fact to challenge that presumption.What might have once been an academic or intellectual exercise, the stuff of Tom Clancy novels or Aaron Sorkin scripts, is rapidly resolving into focus as a meaningful real-world problem. As I hear people discussing the ruling – and random people are discussing it everywhere I go – that’s the first thing they reach for. But the implications of the ruling and its effect on executive power are farther reaching than this.In some ways we have always been in a fuzzy legal space with regard to executive power. The assassination of a US citizen ordered by the president is not without precedent. Consider that Barack Obama ordered drone strikes on Anwar al-Awlaki, Samir Khan, and 16-year-old Abdulrahman al-Awlaki in Yemen in 2010. The then president did not face prosecution for this action.The question Trump v United States raises is whether he could have before now.How might a rogue president without political or moral constraint use the office for private gain, the punishment of political enemies, or to subvert the interest of justice and the public good?Start by looking at how executive power is exercised.The president has a set of delineated powers. Some require him to act in concert with others – the president signs treaties, but they must be ratified by the Senate. The president cannot draft a law unilaterally. Judicial appointments, ambassadorial appointments and appointments of cabinet members must be approved by the Senate.But much of executive authority is unilateral. The president can represent the US to foreign countries without constraint. The president commands the military, directs the activities of the CIA and FBI, directs the actions of executive branch employees, classifies or declassifies intelligence, and critically grants pardons without review.Consider each branch of executive authority, by department, and how a malevolent president might subvert the law.Department of StateThe constitution’s emoluments clause requires the president to refrain from accepting any gift, payment, or anything of value from a foreign state or its rulers. The state department maintains a protocol gift unit that makes sure the president or other federal employees don’t pocket anything from a foreign government worth more than a nominal amount, currently set at $480.Trump v United States establishes that the president cannot be prosecuted for this crime, even though it is black letter constitutional law. Receiving a gift from a head of state as president is almost certainly an “official act”, and if the president decides to steal that gift and deposit it in a bank account, or accepts the deed to a golf course in Dubai or a yacht that never makes port in the United States, there’s nothing that can be done about it, except to see if a federal prosecutor can introduce sufficient evidence to overcome the presumption of immunity after the fact.The ruling opens up potential for a foreign government to bribe their way out of state sanctions, an embargo or diplomatic trouble from, say, murdering a journalist working for a US newspaper.Department of the TreasuryThere are many levers here that a corrupt president can pull, but I’d like to focus on impoundment; the act of withholding money allocated by Congress for a specific function. It was an act of impoundment that led to Trump’s first impeachment and an issue that Steve Bannon repeatedly returns to when discussing executive power. Congress made impoundment a crime in 1974 after the abuses of Richard Nixon. The supreme court’s ruling affirms that the only remedy to this “high crime” is impeachment.Consider what would happen if the treasury department impounded funds directed toward any other government agency that wasn’t being cooperative. Medicare and Medicaid. HUD. The EPA. A compliant Treasury official could simply stop sending the Department of Education funding, which would prevent the issuance of new federally-backed student loans for college.There are other broader avenues for misconduct, however. Consider what would happen if the president instructed the secretary of the treasury to unilaterally withhold payment on bonds issued by the US government to specific creditors, all questions about the full faith and credit clause be damned. Consider how the IRS might target political opponents, a touchstone for conservative critics of the federal government and the investigation of church abuse of exempt tax status.Even the implied threat of regulation of financial instruments like cryptocurrencies can create changes in the market. A self-interested president who had not placed his or her personal investments in a blind trust could engage in wide market manipulation to his or herown benefit through regulatory action taken by treasury officials.And then there’s treasury’s role as the overseer of financial sanctions on entities like Russian oligarchs, Israeli settlers, Chinese government agents and international terror groups. A pliant or compromised president could redirect resources away from enforcement.Again, the legal question becomes one of presumptive immunity, as these areas are in the “periphery” of the president’s authority. Note that justices ruled that official acts cannot be used in evidence to support the prosecution of a crime committed in the president’s personal capacity, a complication which renders the practical prosecution of crimes of fraud, the use of public office for private gain or market manipulation difficult.Department of DefenseMilitary officers in the United States have maintained the armed services as an objectively apolitical institution stretching back to America’s founding. Its general officers have resisted attempts to change that. The approach of Project 2025 is to reduce the number of general officers because it is easier to find people who will place their loyalty – and their career prospects – inTrump’s hands.The military has about 1,000 men and women serving in the ranks of generals and admirals. Approximately 40,000 people serve at the rank of 0-5 or higher – that is a lieutenant colonel in the US army, air force, marines or space force, or a commander in the navy. Promotion of an officer to this rank requires approval by the Senate.But the president can fire an officer more or less at will. This is certainly true for removing general officers from command “in a time of war”. The statute does not define what a time of war means; it does not contain language requiring congress to declare war.A president intent on launching military action that is illegal or immoral – calling a Seal Team 6 operator to kill an American overseas, or perhaps someone within the United States – today can be expected to face a refusal to obey an unlawful order and a report to Congress. But a malevolent president can simply fire any officer who refuses the order, working through the ranks until he finds one willing to obey an illegal order, offering a presidential pardon that would immunize whoever obeys the order from the consequences of a court martial.This logic extends to orders for the military to violate posse comitatus – the mobilization of military force domestically, a violation of federal law. It could also extend to the use of nuclear arms, with a president serially firing officers who refuse to arm and launch a nuclear weapon.The president’s management of the military is a “core” function of the president; it is described in article II of the US constitution. Thus, the president likely enjoys absolute immunity from prosecution here.The functions of military intelligence, the CIA and the Department of Justice are separated by a wall of laws meant to protect US citizens from the government’s vast capacity for foreign military surveillance. After discovering abuses within the intelligence community in the Nixon era, Congress established a foreign intelligence surveillance court to review the work of the CIA and ensure that spies were not illegally surveilling US citizens.A president unconcerned with the law could simply walk intelligence gathered from one agency to another, with orders to act on it.Department of JusticeMuch of the constraint on abuses by the attorney general’s office are a matter of custom, not law. A set of internal policy guidelines governs the conduct of US attorneys. Surprisingly, the supreme court decision last month overturning the Chevron doctrine or the principle of legal deference to agency rule-making, may have done as much harm as Trump v United States in this regard. Justice department rules constraining federal investigators from targeting people for their politics – or targeting politicians who aren’t voting the right way – can be challenged on this basis by a politically-motivated appointee. More

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      How the US supreme court shredded the Constitution and what can be done to repair it | Laurence H Tribe

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      On 1 July 2024, the US supreme court, after an unconscionable half-year delay that it laughably described as “expedited” treatment, handed down Trump v United States, the immunity ruling placing American presidents above the law by deeming the president a “branch of government … unlike anyone else.” The court’s delay guaranteed that Donald Trump would face the electorate in 2024 without first confronting a jury of his peers instructed to decide, and thus inform voters, whether he was guilty of trying to overthrow the 2020 election.Famously, the English immigrant Thomas Paine advocated that we revolt against the Crown to form an independent country and frame a constitution to prevent the rise of a dictator “who, laying hold of popular disquietudes, may collect together the desperate and the discontented … [and] sweep away the liberties of the continent like a deluge”. To that end, Paine asked: “Where … is the King of America?” And he replied: “In America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”In the court’s majority opinion, Chief Justice John G Roberts, Jr betrayed that promise and the Constitution that embodied it. He pretended that granting lifelong immunity from accountability to the nation’s criminal laws didn’t place the president “above the law”. In majestic circularity, he announced that the “President is not above the law” because it is the law itself that implicitly contains that immunity, to preserve “the basic structure of the Constitution from which that law derives”.But the idea that we need an unbounded chief executive to make the separation of powers work is grounded neither in theory nor in experience and contradicts the axioms of checks and balances. Worse still, the court’s decision delivers not a genuinely unbounded executive but one bound by whatever limits the court itself invents as it fills in the gray areas in its anything but black-and-white ruling. So it’s an imperial judiciary this court delivers in the guise of an imperial executive, not surprising for a court that just last week dismantled the administrative state by substituting itself for the panoply of expert executive agencies in Loper Bright Enterprises v Raimondo.The three dissenting justices objected, without rebuttal by the majority, that no prior president has needed this novel immunity from generally applicable criminal laws to operate as “an energetic, independent executive”, an objective the court placed above all else. The majority professed worry about “an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next”. But it said nothing to justify that worry – or to explain how the newly concocted less-than-absolute shield of presidential immunity could hope to solve the problem it conjured. After all, if we elect presidents unprincipled enough to direct their attorneys general to persecute their predecessors on trumped-up charges of abusing their official powers, there’s nothing to stop them from fabricating purely private – and, under the court’s new rule, non-immune – crimes by those predecessors.Beyond those glaring flaws in the majority’s reasoning, Roberts snidely accused the three dissenting justices of “fear mongering on the basis of extreme hypotheticals” that neither the majority opinion nor either of the two concurring opinions troubled to refute.What to make of the majority’s confusing instructions to the court trying Trump for the federal crimes through which he is alleged to have sought to overturn the 2020 election and the lawful transfer of power for the first time in our history? Only Justice Amy Coney Barrett, partly concurring and partly dissenting, wrote in no uncertain terms what the majority should have made clear but didn’t: “The President’s alleged attempt to organize alternative slates of electors … is private and therefore not entitled to protection … While Congress has a limited role in that process, see Art II, §1, cls 3-4, the President has none. In short, a President has no legal authority – and thus no official capacity – to influence how the States appoint their electors.” The majority should’ve endorsed Barrett’s brisk conclusion: “I see no plausible argument for barring prosecution of that alleged conduct.”The majority also offered no cogent reason to disagree with Barrett that, “beyond the limits afforded by executive privilege”, the US constitution doesn’t “limit the introduction of protected conduct as evidence in a criminal prosecution of a President”. As she and the three dissenters persuasively argued, the constitution “does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable” even if it does immunize them from prosecution on the basis of those circumstances. Bribery, a federal crime, makes the point perfectly. It’s nonsensical to hold, as the majority does, that a president who performs an official act like issuing a pardon in return for a bribe may be prosecuted for the bribe but may prevent the jury from learning about the backroom presidential conversations surrounding the pardon. The majority’s rejoinder that the pardon itself may be introduced in evidence as an official record is no answer at all.Indeed, the whole journey on which the majority embarks is misdirected. As dissenting Justice Ketanji Brown Jackson argued, it’s “cold comfort” to learn that “the President is subject to prosecution in his unofficial capacity … like anyone else”, because the “official-versus-unofficial act distinction” is both “arbitrary and irrational, for it … is when the President commits crimes using his unparalleled official powers that the risks of abuse and autocracy will be most dire”. She is right that vesting the president with uniquely sweeping powers and duties “actually underscores, rather than undermines, the grim stakes of setting the criminal law to the side when the President flexes these very powers”.I’ll let others sort through the tangled puzzles the court has left in its wake absent meaningful guidelines for distinguishing between the various categories of presidential conduct it enumerates. My main takeaways from this shameful decision are three: first, there is a compelling need for supreme court reform, including a plan to impose an enforceable ethics code and term limits and possibly create several added seats to offset the way Trump as president stacked the court to favor his Maga agenda; second, we should start planning for a constitutional amendment of the sort I have advocated in the New York Times to create a federal prosecutorial arm structurally independent of the presidency; and third, we need a constitutional amendment adding to Article I, Section 9’s ban on titles of nobility and foreign emoluments a provision expressly stating that nothing in the constitution may be construed to confer any immunity from criminal prosecution by reason of a defendant’s having held any office under the United States – and a provision forbidding use of the pardon power to encourage the person pardoned to commit a crime that the president is unable to commit personally.Amending the constitution to address problems the supreme court creates needn’t take long. When the court prevented Congress from lowering the voting age to 18 in state along with federal elections in Oregon v Mitchell, it took under seven months for us to adopt the 26th amendment to repair that blunder. And the court can overturn its own egregiously wrong decisions quickly, as it did in 1943 when it overturned a 1940 ruling letting states force children to salute the flag against their religious convictions in West Virginia State Board of Education v Barnette. As Justice Felix Frankfurter once wrote: “Wisdom too often never comes, so one ought not to reject it merely because it comes late.” Trump v United States isn’t just unwise. It’s a betrayal of the constitution. Overturning it should be an issue in this November’s election.
      Laurence H Tribe is the Carl M Loeb University professor and professor of constitutional law at Harvard Law School More