by Jacob Fischler, Iowa Capital Dispatch
Accepting former President Donald Trump’s claim of presidential immunity would embolden future presidents to use military force to stay in office indefinitely, a group of anti-Trump Republican former officials warned in a Tuesday brief to the U.S. Supreme Court.
Rejecting Trump’s immunity claim, which he has said should protect him from prosecution on charges of lying to and encouraging supporters who turned violent on Jan. 6, 2021 and attacked the U.S. Capitol, is essential to preserve American democracy, the officials wrote in a friend-of-the-court brief.
The 26 former U.S. Department of Justice attorneys, lawmakers and others who authored the brief were elected Republicans or served in Republican administrations. They include former New Jersey Gov. Christine Todd Whitman, former U.S. Sen. John Danforth of Missouri and former U.S. Rep. Mickey Edwards of Oklahoma.
Trump, who is the front-runner for the Republican presidential nomination, asked the court Monday to further delay his trial in District of Columbia federal court as the justices consider his presidential immunity claim. Trump’s attorneys asked the justices to adopt a broad view of presidential immunity, which they said was critical for protecting the power of the office.
In Tuesday’s brief, the Republican officials said the implications of the former president’s argument present “terrifying possibilities.”
“Under former President Trump’s view of absolute immunity, future first-term Presidents would be encouraged to violate federal criminal statutes by employing the military and armed federal agents to remain in power,” they wrote.
“No Court should create a presidential immunity from federal criminal prosecution, even for official acts, that is so vast that it endangers the peaceful transfer of executive power that our Constitution mandates.”
While Trump argues that such a “lurid hypothetical” of a president using the military or armed federal agents should not prevent him from being granted immunity, the former Republican officials say the particular allegations against the former president weigh heavily against accepting his argument.
For one, they write, the federal indictment against Trump alleges he used the Department of Justice as a tool in his fake elector scheme.
Specifically, the amici point out, the indictment alleges that a letter signed by Trump’s acting attorney general pressured states to replace legitimate Biden electors with false ones supporting Trump.
“Under Mr. Trump’s vast rationale for federal criminal immunity, a future President would be emboldened to direct the Secretaries of Defense and Homeland Security, as well as the Attorney General, to deploy the military and armed federal agents to support efforts to overturn that President’s re-election loss,” they wrote.
The framers of the Constitution meant to limit executive power and highly valued a peaceful transfer of power, the officials wrote.
Alexander Hamilton wrote in a Federalist Papers entry that the Constitution meant to prevent a “victorious demagogue” from staying in power, they wrote. Accepting Trump’s broad interpretation of presidential immunity would threaten that protection and encourage future presidents to go to extreme lengths to stay in power, they said.
“What kind of Constitution would immunize and thereby embolden losing first-term Presidents to violate federal criminal statutes — through either official or unofficial acts — in efforts to usurp a second term?” they wrote. “Not our Constitution.”
In addition to the former Republican officials, several constitutional law experts filed an amicus brief Tuesday arguing that Trump is not immune from federal prosecution.
The six law professors argued that Trump’s dual claims that he is immune because his actions were taken while he was still president, and that he is protected from any criminal prosecution following his Senate impeachment trial acquittal, are a “misreading of constitutional text and history as well as this Court’s precedent.”
The absolute immunity argument “finds no support” in the Constitution, the experts wrote.
“Seeking to distinguish the president from a British King, the Constitution’s framers and ratifiers repeatedly indicated that a president ‘may be indicted and punished’ after ‘commit[ting] crimes against the state,’” the experts wrote, citing debates at several state conventions about the federal Constitution.
Like the former Republican officials, the professors of law and politics asked the Supreme Court to deny Trump’s request to further delay the trial court’s proceedings.
On Trump’s impeachment clause argument, the constitutional law experts wrote: “The framers viewed the impeachment process as entirely distinct from criminal prosecution and thus thought that a verdict against an officer in one proceeding should have no impact on the other.”
The brief’s authors include Frank O. Bowman III, of the University of Missouri School of Law, Michael J. Gerhardt, of the University of North Carolina School of Law, Brian C. Kalt of Michigan State University College of Law, Peter M. Shane, of the Ohio State University Moritz College of Law and New York University School of Law, Laurence H. Tribe, professor emeritus of Harvard University and Keith E. Whittington, professor of politics at Princeton University and forthcoming chaired professor of law at Yale Law School.
Also on Tuesday, Chief Justice John G. Roberts Jr. set a Feb. 20 deadline for Special Counsel Jack Smith, who is prosecuting the case for the Justice Department, to respond to Trump’s request for a stay in the trial.
The one-week deadline suggests the justices are seeking a speedy resolution to the issue.
Attorneys for Trump filed the request with the Supreme Court late Monday following a ruling last week from a three-judge panel on the D.C. Circuit Court of Appeals, comprising judges appointed by members of both parties, upholding a lower court’s decision to reject Trump’s immunity claim.
Trump’s stay request noted the former president would appeal the decision to the Supreme Court, as well as petition for a rehearing by the full D.C. Circuit. Trump asked that pretrial activity in the federal district court not proceed while those appeals are ongoing.
The immunity issue, which does not address the merits of the case Smith’s team has compiled against Trump, has gone on for months and delayed the scheduled March 4 trial date.
Trump made a pretrial motion to U.S. District Judge Tanya S. Chutkan in October seeking to throw out the four-count indictment based on his presidential immunity theory.
Chutkan denied the request, and Trump appealed her decision to the D.C. Circuit.
The Supreme Court also heard arguments last week in a case over whether Colorado could bar him from the presidential primary ballot because a provision in the Constitution’s 14th Amendment disallows insurrectionists from seeking office. The justices met Colorado’s argument with skepticism. A decision is expected soon.
Iowa Capital Dispatch is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Iowa Capital Dispatch maintains editorial independence. Contact Editor Kathie Obradovich for questions: info@iowacapitaldispatch.com. Follow Iowa Capital Dispatch on Facebook and Twitter.
Campaign ActionJudge Sets Trial Date in Trump’s Manhattan Criminal Case
Ruling that the case against Donald J. Trump can proceed, Justice Juan M. Merchan said he planned to begin the trial on March 25.
The Atlanta Journal-Constitution:
In fiery testimony, Willis defends herself against accusations of misconduct
Ex-employee claims relationship began earlier than acknowledged
Add to this the expectation that Judge Arthur Engoron will make public his judgment in the real estate fraud case, and the possibility of a SCOTUS decision on an immunity challenge.
Philip Bump/Washington Post:
Remember the ‘Biden bribe’ allegation? DOJ now says it was made up.
It is hard to overstate how much energy Republicans and their allies in the right-wing media invested in the idea that this was credible. When he announced the launch of an impeachment probe of Biden in September, then-House Speaker Kevin McCarthy (R-Calif.) invoked the Smirnov allegation…
Fox News has mentioned Biden in the context of “bribe” or “bribery” more than 2,600 times over the past 12 months. A Media Matters review of host Sean Hannity’s efforts to bolster the Republican impeachment effort tallied at least 85 segments focused on the allegation and the FBI form that documented it — despite the complete dearth of evidence supporting the idea.
On Sept. 7, Comer was asked by a Fox Business host about the lack of movement on the bribery allegation. Comer suggested there had been a “coverup” by the government.
It appears that Comer was wrong.
Jake Sherman/X:
THE DISASTER THAT IS HOUSE REPUBLICAN LEADERSHIP
Just this week, @SpeakerJohnson has:
- → Seen Democrats win a special election in New York, narrowing the already minuscule GOP majority to two votes.
- → Lost a sixth rule vote on the House floor — a measure that would’ve allowed an increase in the state-and-local tax (SALT) deduction — when 18 Republicans bucked their own leadership and voted no. This Republican majority has lost more rule votes than any other majority in five decades, a stunning sign of weakness.
- → Abruptly pulled a bill to overhaul FISA due to Republican infighting. The GOP leadership said the House would vote on the bill before locking down the votes, despite some senior Republicans raising internal objections. This is the second time Johnson had to pull a FISA bill this Congress.
- → Seen another committee chair announce his resignation. @RepMarkGreen, chair of the Homeland Security Committee, is leaving Congress after only six years. The 59-year-old Green — the fourth committee chair to retire — just led the impeachment of DHS Secretary Alejandro Mayorkas.
- → Decided against putting a bill on the floor to provide billions of dollars in new aid to Israel without offsets. Just a week ago, Johnson allowed a vote on Israel aid that he knew was going to fail.
- → Provided absolutely no insight to rank-and-file lawmakers on how he’ll handle the Senate’s bipartisan $95 billion foreign aid package. Johnson said the bill isn’t a priority because the federal government is scheduled to shut down in a few weeks.
- → Witnessed the House Intelligence Committee chair issue a dire public warning about a “serious national security threat” to the country, only to have Senate Intelligence Committee leaders and the White House downplay the issue.
Paul Waldman/”The Cross Section” on Substack:
Why everyone refuses to believe what voters are telling them about immigration
Republicans keep losing on the issue, yet Democrats are supposed to be the ones who don't get it.
Republicans just lost yet another election in which they figured fear-mongering on immigration was all they needed to succeed. Now they’re embarking on a farcical impeachment of Secretary of Homeland Security Alejandro Mayorkas for imaginary crimes and misdemeanors, because just as they believe that khaki-clad trips to the southern border are public relations gold, they think impeaching Mayorkas will help Donald Trump win November’s election and secure their razor-thin House majority, simply by keeping the issue of immigration in the news.
Despite the GOP’s record of repeated failure to turn immigration into electoral results, the vast majority of the political class in Washington — including Republicans, Democrats, and journalists — remains convinced that the losing Republican strategy is actually brilliant, and it’s the Democrats who need to change their ways. The issue of immigration, they assume, is a kind of electoral magic weapon whose unstoppable power will slay all Democrats who stand before it.
But they’re just wrong. The voters keep telling them so, and they refuse to accept it.
This is a terrific podcast interview of Tom Suozzi’s pollster by Greg Sargent, fresh off Suozzi’s Tuesday special election win.
Among the things discussed: how the campaign approached the immigration issue (order and fairness), how persuasion mattered (getting Republicans and independents to vote for Suozzi), and the salience of abortion (very).
It may not be predictive of a November win, but it’s something of a roadmap for how to get there. It’s well worth your time.
Jill Lawrence/The Bulwark:
Whatever Donald Wants, Donald Gets
Trump’s march through the GOP is leaving it in ruins.
Right now, Trump has far too much control over Republicans who should know better, using a disconcerting but effective combination of brute force and sinister charm.
He’s rampaging through U.S. politics like a modern-day William T. Sherman on his Atlanta-to-Savannah March to the Sea. Gen. Sherman’s goal was to foster fear, inflict pain, and get Georgians to ditch the Confederate cause. Trump has adopted his own fear-and-pain approach on his march toward ever-greater domination of the GOP House, the Republican National Committee (he wants it run by an election denier and his daughter-in-law, nothing to see here), and, of course, the Republican presidential primary season and 2024 nomination.
He’ll get there before Nikki Haley, methinks.
Joe Perticone/The Bulwark:
The Biden Impeachment Has Been Great for Joe Biden
But this week, the House Oversight Committee deposed [Hunter Biden associate Tony] Bobulinski as part of its ongoing haphazard impeachment inquiry into the president. What happened the moment the deposition concluded felt quite familiar to those who have followed the inquiry:
Oversight Chairman James Comer issued a declarative statement, unencumbered by evidence or specific details, that President Biden is corrupt.
Fox News reporter Brooke Singman published EXCLUSIVE bombshell reports recounting Bobulinski’s story that Biden “enabled” the sale of access to “dangerous adversaries” and that Biden is “the big guy,” along with other words in liability-limiting “scare quotes.”
What Bobulinski actually offered Oversight members inside the room turned out to be more of what he’s been trying to sell lawmakers and journalists for years: more conjecture and underwhelming, questionable testimony. The result is as familiar as the process: The impeachment inquiry, though shaking and whirring loudly, remains stuck in the hyperpartisan muck.
From Cliff Schecter:
The Utah Legislature voted Thursday to censure a conservative member of the state Board of Education whose social media post questioning the gender of a high school basketball player triggered threats against the girl and led state officials to call for the board member's resignation.
Lawmakers passed a resolution condemning the actions of Natalie Cline a day after the Utah State Board of Education voted unanimously to strip Cline of her committee assignments and nearly all administrative responsibilities. The board will no longer allow Cline to attend meetings or place items on the agenda, and her colleagues have asked her to resign by Feb. 19.
The legislative reprimand, which now heads to the governor's desk, carries no real punishment but is a formal way for lawmakers to express their disapproval. The measure received unanimous support in the Senate after passing the House with only two votes against, one from a Democrat and the other from a Republican.
GOP SENATE HOPEFUL KEPT TIES TO GEORGE SOROS-BACKED GROUP WHERE HUNTER BIDEN SERVED ON BOARD
Both the Legislature and Board of Education have left it up to Cline whether to resign or remain in her role with limited authority. She is up for reelection in November. Democrats had urged the Republican legislative leaders to punish Cline more harshly, either by impeaching her or by allowing the board to impeach her — a power it does not currently have.
Cline, who had previously come under investigation for inflammatory comments about LGBTQ+ students, singled out the Salt Lake City athlete in a Facebook post that falsely insinuated the girl was transgender. After she learned that the girl was not trans, Cline apologized for provoking a firestorm of vulgar comments.
House Speaker Mike Schultz, a Hooper Republican, said ahead of the vote that members of his chamber were "scattered" on whether to impeach Cline or allow voters to decide her future in the fall.
"If this body moves ahead with impeachment, this blows up like a mushroom cloud on the national stage," Schultz said. "The hate that you’re seeing directed toward that family right now then becomes national. That’s a hard decision to make."
House Minority Leader Angela Romero said she was frustrated that Republican leaders cut off debate before she could propose an amendment that would instead initiate impeachment proceedings. She and her fellow Democrats nonetheless overwhelmingly voted in favor of the resolution to censure Cline.
Republican Gov. Spencer Cox told reporters Thursday that he supports the board's forceful censure and thinks it effectively has the same impact as impeachment. He had urged the board to take action against Cline, saying she "embarrassed the state."
Even when she apologized, Cline defended her initial suspicions, saying that a national push to normalize transgender identities makes it "normal to pause and wonder if people are what they say they are."
Cox pushed back Thursday against criticisms from LGBTQ+ rights advocates who argue he and Republican lawmakers enabled Cline's behavior by passing a transgender bathroom ban that they say gives people license to question someone's gender.
"Even if this young person was transgender, it would still have been inappropriate," Cox said. "That is not who we are or what we should be doing."
In a Facebook post Wednesday, Cline argued the board was taking away her right to represent her constituents without due process. She wrote that she did not have enough time to read all the materials and create a response before Wednesday’s meeting.
The board determined that Cline violated policies requiring members to respect student privacy and to uphold state educator standards, which include not participating in sexual or emotional harassment of students and treating students with dignity and respect.
The board's resolution said Cline allowed negative comments about the girl to remain on her social media page while comments in support of the student were deleted, which together "appeared to constitute cyberbullying as defined" in Utah law.
In a letter published Thursday in The Salt Lake Tribune, the girl’s parents, Al and Rachel van der Beek, also urged Cline to resign and called for her impeachment.
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"Ms. Cline did the very thing we teach our children not to do — she blasted social media without fact checking, which ultimately led to a barrage of hateful and despicable comments that were directed at our daughter that lasted for more than 16 hours," the letter said. "It was one of the most painful things we’ve had to endure."
Members of the House and Senate usually like to gab.
But word of a cryptic, major national security threat against the U.S. cast a pall on Congress this week.
Loggorrheic lawmakers suddenly turned mute when they were sworn to secrecy considering the gravity of Russia potentially deploying a weapon in outer space.
"I can’t discuss this. I’m sorry," lamented Rep. Carlos Gimenez, R-Fla.
"Absolutely no comment," said Rep. Richie Torres, D-N.Y.
WARNING ABOUT 'THREAT' TO US HAS 'SOMETHING TO DO WITH OUTER SPACE': CHAD PERGRAM
"We should be concerned. It’s serious," offered. Rep. Raja Krishnamoorthi, D-Ill., "That’s all I can say right now."
House Speaker Mike Johnson, R-La., was practically verbose when he chatted up reporters about the threat.
"I’m going to be very precise and I’m not going to take questions," said Johnson.
But Johnson lent little detail into the disconcerting reports.
"Steady hands are at the wheel," said Johnson. "There’s no need for alarm."
House Intelligence Committee Chairman Mike Turner, R-Ohio, said the White House "confirmed that, in their view, the matter was ‘serious.’"
This consternation is cast against the backdrop of the Senate approving a $95 billion international security bill for Ukraine, Israel and Taiwan. In other words, if there’s a pressing threat from Russia, this could impact Ukraine.
An eye-popping 70 senators voted in favor of the bill just before daybreak Tuesday morning. Twenty-two Senate Republicans voted yes. Three senators who caucus with the Democrats voted nay.
HOUSE VOTE ON FOREIGN AID FUNDING IN LIMBO
Twenty-two GOP yeas is not quite half of the 49 member Senate Republican Conference. But that’s still a substantial showing. And 70 votes is a robust figure from the Senate. Seventy yeas would make the bill hard to ignore in the House - under other circumstances.
"I think the House will face a moment of truth. This is a historical moment," said Sen. Chris Van Hollen, D-Md. "You can also be sure our allies are watching, whether in NATO or East Asia, to see whether the United States surrenders, or betrays a partner."
Democrats demanded that Johnson take up the foreign aid bill. But he immediately resisted.
"We are not going to be forced into action by the Senate who in the latest product they sent us over does not have one word in the bill about America's border. Not one word about security," said Johnson.
Even though Johnson – and Senate Republicans – mauled a bipartisan Senate compromise for the border.
"What is he afraid of to put national security first to help our country, to push back and push back against (Russian leader Vladimir) Putin, and to make sure that our country is protected?" asked House Democratic Caucus Chairman Pete Aguilar, D-Calif.
It’s not often that House members can bypass the leadership and deposit a bill on the floor. But there is a way to do it. The gambit is called a discharge petition.
Here’s how it works:
A discharge petition requires a solid number of 218 House members to sign up to go over the head of the Speaker. The number is locked in at 218, regardless of the side of the House. The House has 435 members at full population. It’s currently at 431 members. Thus, the discharge petition provision wants at least half of the body to favor sidestepping the leadership.
Rep. Jerry Nadler, D-N.Y., the top Democrat on the Judiciary Committee said he was "absolutely" for a discharge petition.
When asked if most Democrats would sign on, Nadler replied, "yeah, I do."
But not so fast.
Many Democrats might push to advance the foreign aid package. But there are plenty of progressives who aren’t in favor of the bill at all because of concerns for Palestinians.
"I can’t support that bill with aid to Israel," said Rep. Pramila Jayapal, D-Wash. "There’s also a lot of concerns about the restrictions on the aid to Gaza that the Senate put into the bill, including suspending aid to UNRWA, which is the only agency that can deliver aid in Gaza."
Moreover, Rep. Robert Garcia, D-Calif., thought it was "premature" to execute a discharge petition. He wanted the House to try to work through the issue and get it on the floor another way.
So certainly more Democrats favor of a discharge petition. But no one knows what might constitute that particular universe of votes. Therefore, a discharge petition certainly needs substantial GOP support.
A successful discharge petition will require the support of advocates for Ukraine and moderate Republicans. Someone in that wheelhouse is Rep. Don Bacon, R-Neb. When asked if he was open to signing a discharge petition, Bacon replied "not now." He added he wouldn’t "lean too far forward" just yet.
The Nebraska Republican said "one or two" Democrats talked to him about signing the discharge petition. But he added a caveat.
"I'm interested in finding something we could all agree on," said Bacon.
But that’s just the start.
"I’d never sign a discharge petition when we are in the majority," said Rep. Mario Diaz-Balart, R-Fla.
Rep. Matt Gaetz, R-Fla., suggested that that signatories weren’t team players for the GOP.
"A discharge petition would be a betrayal on the part of anyone signing it," said Gaetz.
This is why there have only been two successful discharge petitions in the House in the past 22 years.
One was on the House’s version of the famous "McCain-Feingold" campaign finance law, named originally after late Sen. John McCain, R-Ariz., and former Sen. Russ Feingold, D-Wisc., in 2002. The other was on a measure to renew the Export-Import Bank.
So, this enterprise is challenging. And while it’s an intriguing parliamentary maneuver, the odds – and history – work against discharge petitions.
The House is now out of session until February 28. The Senate is done until the week after next. Another (yes, another) deadline to avert a government shutdown looms on March 1. A bigger one is barreling down the tracks for March 7. And the Senate must wrestle with an impeachment trial for Homeland Security Secretary Alejandro Mayorkas at the end of the month.
In short, a resolution to the international aid bill isn’t coming soon – if ever.
The threats loom – be a weapon from space for Russia. Threats at the border. Threats from China. The war in Ukraine. Instability in the Middle East.
The Senate finally acted – after a months-long circumnavigation into the border talks.
But there is no viable plan right now to pass the foreign aid package in the House.
It was long said that the Senate is where the House’s hot coffee cools.
In this case, the Senate served the House hot coffee.
And in today’s environment, it’s cooling instead in the House.
Welcome to Fox News’ Politics newsletter with the latest political news from Washington D.C. and updates from the 2024 campaign trail.
What's Happening?
- Fulton County DA Fani Willis shocks in raucous courtroom testimony
- Date set for first Trump criminal trial
- Nearly half of Americans think Biden should be replaced as Dem nominee
Embattled Fulton County district attorney Fani Willis took the stand to testify against allegations she had an "improper" affair with special prosecutor Nathan Wade, which could derail her case against former President Donald Trump.
Willis was notably agitated and at points raised her voice during a raucous several hours of testimony. At one point, Willis held up a printed copy the allegations against her in both hands and turned to the judge yelling, "it is a lie!"
Willis also called defense attorney Ashleigh Merchan's interests "contrary to democracy."
Judge Scott McAfee presiding over the proceeding, called for a five-minute recess at one point. When court was back in session he told lawyers to stop "talking over each other" and cautioned Willis, saying: "We have to listen to the questions as asked. And if this happens again and again, I'm going to have no choice but to strike your testimony."
Willis is expected back on the stand Friday for further testimony.
Trump had his own courtroom drama Thursday. He appeared in a Manhattan court for a pretrial hearing in the criminal "hush-money" case against him, where the judge set a date for the beginning of the first trial on criminal charges.
The trial is set to start March 25, a few weeks after Super Tuesday but before the end of the GOP primary.
Trump said he would be campaigning in the evening after attending the trial. "I'll be here during the day and I'll be campaigning during the night. Biden should be doing the same thing but he’ll be sleeping," Trump said outside the courtroom.
‘BADLY TAINTED’: Trump reacts to dramatic Fani Willis testimony ...Read more
ROMNEY FOR VP?: Sen. Joe Manchin floats potential running mates in hypothetical third party presidential bid …Read more
EXTRA AMMUNITION: Haley takes aim at Trump as trial of former president to start next month …Read more
ONE YEAR LATER: Haley's final stand against Trump? …Read more
GUN CONTROL: Biden, Harris call for gun control in separate comments after deadly shooting at Kansas City Chiefs' parade …Read more
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HUR TO TESTIFY: Special counsel to appear before House committee after report revealing Biden memory issues …Read more
DOUBLING DOWN: Sen. JD Vance's office spars with Pence group over 'impeachment time bomb' in foreign aid bill …Read more
'ILL ADVISED': Cotton demands information from DOD on contract with Chinese-owned company …Read more
TAKING TIME: Republican Speaker Johnson on $95B Ukraine, Israel bill: House will not be 'rushed' …Read more
SHUTTING IT DOWN: Capitol Police arrest pro-Palestinian demonstrators inside Cannon House Office Building …Read more
'SLUSH FUND': GOP lawmaker reveals how he will target progressives to pay for foreign aid package …Read more
2024 SUCCESSION?: Nearly half of Americans think Biden could be replaced as Dem nominee: poll …Read more
'POISED TO ATTACK': FBI Director Wray warns allies of hacking by Chinese proxy groups …Read more
EYES IN SPACE: US launches missile detection satellites into orbit amid concerns about Russian weapons …Read more
ALABAMA VOTES: After LGBTQ lecture, Alabama Senate votes for more oversight of Department of Archives and History …Read more
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TRUMP IN COURT: Trump to appear in New York City court for hearing in Manhattan District Attorney Alvin Bragg case …Read more
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