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Presidential immunity and leftist anguish

The U.S. Supreme Court will at last decide presidential immunity from ordinary prosecution (absent conviction on impeachment).

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Last Wednesday (February 28) the United States Supreme Court agreed to decide formally an issue most people took for granted. They will decide whether or not a President of the United States enjoys immunity from ordinary prosecution for his acts while in office. Presidential immunity should never have been in doubt, and the doubts some are raising amount to ex post facto law. And if people studied ancient history, they’d know how hazardous not granting immunity can be. Indeed, at least one leftist news commentator played with fire in her comments on the subject.

Presidential immunity and the January 6 case

The Supreme Court handed down a Miscellaneous Order near day’s end in Special Counsel Jack Smith’s “January 6 case.”

What is now Trump v. United States, Case No. 23-939, will present this question:

Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.

The most salient effect of this order is that the Court of Appeals for the District of Columbia must withhold any further “mandate” in the case until the Supreme Court rules on that question. The Court set petitioner’s, respondent’s, and friend-of-the-court briefing deadlines, and scheduled oral argument for the week of April 22, 2024.

Special Counsel Smith accuses Trump of inciting the alleged attacks on the Capitol on January 6, 2021. Trump’s lawyers filed motions to dismiss, asserting presidential immunity. Judge Tanya Chutkan of the District Court for the District of Columbia denied the motion. Trump appealed – and drew the short straw, in the form of three judges, two Biden appointees and one Bush Jr. appointee. They ruled, 3-0, that a former President does not enjoy presidential immunity for his acts in office. In their ruling, they actually said:


We have balanced former President Trump’s asserted interests in executive immunity against the vital public interests that favor allowing this prosecution to proceed. We conclude that “concerns of public policy, especially as illuminated by our history and the structure of our government” compel the rejection of his claim of immunity in this case.

This is another in a disturbing line of appellate cases that courts have decided, or declined, on public-policy grounds. First was Texas v. Pennsylvania, in which Texas sought Supreme Court intervention in the Election of 2020. Chief Justice John Roberts allegedly harangued his colleagues into declining that case, in fear of riots outside the Supreme Courthouse. The opinion by these three judges smacks of a similar extra-legal “concern.”

Immediate consequences

Christina Laila at The Gateway Pundit continued her coverage of the Supreme Court’s action yesterday. This included an interview with Andrew Weissmann, a prosecutor with a reputation for hating Donald Trump. He took note that the case of USA v. Trump is already postponed indefinitely. Naturally the postponement must last even longer, given the Supreme Court action and the announced briefing and argument schedule. In an interview with MSNBC, Weissmann said this:

Ms. Laila also criticized Weissmann for saying Smith had charged Trump with “illegally staying in office.” Neither Smith nor any other prosecutor has actually alleged that. Apparently Weissmann further accuses the Supreme Court of delaying the case. In fact, the Biden administration timed the case to have a trial during election season. Perhaps they even thought to see Trump in a federal (or State) prison. Neither thing is likely to happen now.

Smith has another case pending against Trump, though in the Southern District of Florida. This is the Documents Case, arising out of the FBI raid on Mar-A-Lago in August of 2022. Now Smith wants a trial of that case by July 8, according to CNN.

Even that is a postponement for a trial set to begin May 20. Smith’s exact motive for such a delay is unclear.


Leftist and media apoplexy

While this has been happening, two media personalities have vented their apoplexy at the idea that the Supreme Court will consider presidential immunity as a valid concept. According to Jim Hoft, MSNBC brought in Elie Mystal from the radical-left magazine The Nation to vent his spleen. He called on Democrats to “deal with” the Supreme Court – but made himself clear as mud on what that meant.

His hostess referred to a “bulletproof ruling” from the Court of Appeals, that the Supreme Court nevertheless agreed to review. In reply, Mystal called the Court’s members (outside the Liberal Bloc) “corrupted political actors who act in bad faith.” Then he said:

And at some point, people in the media, people at home, and people sitting in the White House have to stop pretending that the Supreme Court is some kind of benign ‘trying to do its best’ institution and start to realize that there are six Republicans, not conservatives, Republicans on the Supreme Court, who view it as their job to help the Republican Party.

And until we do something about that, until we take away that power, until we draw the line on them there, they will continue to do this. They will help Trump. They will take away abortion rights. They will end affirmative action. They will liberalize gun rights. They will do all of it until we stop them.

And somebody needs to start listening in the higher echelons of the Democratic party, because we will keep losing every day we allow these six Republicans in robes to rule over all of us.

Again, he did not say how he proposed that someone “take away that power.” Of course he referred to decisions that have struck at the heart of leftist ideology and orthodoxy:

Curiously he forgot to mention:

Jim Hoft actually accused Mystal of incitement to Justicial assassination. (Like Antonin Scalia? Or Brett Kavanaugh?) But as Cullen Linebarger reported, that wasn’t the worst!

Rachel Maddow plays with fire

Rachel Maddow, who has her own show on MSNBC, lamented that (perhaps) Trump might never face trial. (If the Supreme Court upholds his presidential immunity claim, or if further proceedings delay a trial until after the Inauguration, then, no, he will not.) But then she suggested that, if Trump ever becomes President again, “he will never leave.”

She then accused the Court of “dilatory” proceedings “to help [their] political friend.”


The rest of what she said amounts to classic throwing-off (the fancy Latinate word is “projection”). Saul Alinsky specifically recommends projection in his Rules for Radicals. For it is the left, not Trump or the Originalist Bloc of the Court, that is turning the United States into a country, not of laws, but of well-connected people.

Mike LaChance reported on similarly unhinged posts from other celebrities. Some of the posts he gathered, are not embeddable on a site for polite company. This post is at least embeddable and repeatable, though incomprehensible:

As are these:

But none of them, least of all Rachel Maddow, seem to understand the heat of the fire they’re playing with. Without presidential immunity, no head of state worth his salt dare even hold the office. Prime Minister Benjamin Netanyahu of the State of Israel surely understand that. But so did another head-of-state when his legislature pushed him to the decision point.

An ancient case for presidential immunity

Go back in time to the Consulship of Gaius Claudius Marcellus and Lucius Cornelius Lentulus Crus – 49 B.C. About four days before the Ides of January, Junior Consul Lentulus Crus stood up in the Senate of Rome – then meeting in a temporary venue – and introduced a declaration of national emergency against the power of intercession – the veto power – of the Tribunes of the Plebs. Everyone knew this was actually part of a broader strategy to attack Rome’s most successful general – or field marshal.


At once the Tribune with the loudest voice – no other than Mark Antony – stood and cried out, “I forbid that!” (In Latin the word translating “I forbid” is: Veto.) Lentulus Crus ordered the sergeants-at-arms – the Lictors – to eject him, and a fellow Tribune who rose to his defense. Antony and his friend rushed to the Well of the Comitia, displayed their dishevelment, and told the people what was happening. Then when a troop of Lictors marched toward the Well to arrest them, they left Rome.

But they sent a fast horseman to carry a message to their patron, who waited in Ravenna in Northern Italy. When that message arrived, its recipient ordered his staff to mount up, and to prepare an entire division to march. Then, with a jaunty cry of “Let the dice fly high!”, Gaius Julius Caesar led Legio XIII across the Rubicon.

That is what a republic risks when it threatens its heads-of-state with specious charges on pretended offenses if they leave office.

From ancient to modern

And that is what Rachel Maddow inadvertently revealed as the plans the Democrats have for Trump. Nor is that the only threat any liberal has made. Whoopi Goldberg actually encouraged Resident Biden to order the arrest of all Republicans, should the Supreme Court uphold presidential immunity.

Brandon Tatum accused Goldberg of “going full Hitler.” But she did not emulate Adolf Hitler; she emulated Lucius Cornelius Lentulus Crus. Given this man’s ancient example, Goldberg and Maddow are behaving with gross irresponsibility when they make such statements.


In fact, the Sackett precedent, plus the recent oral argument in Trump v. Anderson, suggest that Maddow and Goldberg have totally blown the gaffe. None of the Court members were even willing to allow that an insurrection had occurred. (Only Congress can declare an insurrection, because “insurrection” is treason, therefore war, which only Congress may declare.) And the only way that Presidents, Vice-Presidents, and civil officers are subject to “indictment, trial, judgment and punishment,” is upon conviction following impeachment. Article I Section 3 Clause 7 of the Constitution spells that out. The Democrats tried impeachment after Trump left office – and failed. Now they want a do-over? That’s ex post facto – another thing the Constitution forbids. Article I, Section 9, Clause 3. (Nixon resigned with three Articles of Impeachment pending against him – and Gerald R. Ford merely wanted to stop all arguments.)

If the Originalists follow the Constitution, and the Moderates remember recent and already pending cases, they will vote for presidential immunity.

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Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.

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