Question: Is there some way to get Supreme Court to rule on whether it is constitutional...?

[kentuck]

...to prosecute a former president?

If so, how would one go about it?

Could a former president appeal to the Supreme Court any conviction by a jury?

Why would the DOJ want to know where the Supreme Court stands on the conviction of a former president?

What purpose would it serve, if the Supreme Court were to rule that no one is above the law, and that former presidents can be tried, just as a common citizen would be tried?

I would admit that it would be nice to have that question off the table, but so far, no one has put it on the table.

Is there no need?

[brooklynite]

1. Answer: there is no constitutional prohibition against prosecuting a former President.

There MAY be an appeal of a conviction on the grounds that an action that occurred WHILE President was Constitutionally protected.

[marble falls]

2. Get some authority to arrest the Orange Shitgibbon ...

1. He gets a TRO on the arrest, and they appeal each other into the Supreme Court.

or

2. They arrest and convict him and he appeals all the way to the Supreme Court.

or

3. They arrest the Orange Blunder, convict him, and the either party convinces SCOTUS to fast track the issue.



This is all new ground that's never been walked or tested. That doesn't mean that justice is being denied, it means new law is being made to prevent this in the future.

[kentuck]

4. It would all be precedent, as it has never happened in our history...

...but #2 sounds like the logical course it will take.

[marble falls]

7. Ain't it nuts? But I have faith that however long it takes, the Trump family is jammed up ...

Option 1 - I agree, I think the arresting authority will be ruled to have the authority to arrest him and SCOTUS would rule that he needs to seek his remedy in court and not even look at his grief.

It's going to be 2 and/or 3.

[brooklynite]

9. Before people leap to "of course he'll appeal to the Supreme Court", some reality.....

First, an appeal of a CRIMINAL CONVICTION assumes the facts presented in evidence in the trial. An appeal can only be based on 1) misconduct by a trial participant (prosecutor or Judge) or 2) that the law in question is unconstitutional. Neither are likely to happen. '

Second, the Supreme Court, as conservative as it is, IS NOT PRO-TRUMP. They are not going to accept a case that hasn't first gone through the Court of Appeals, and they aren't going to accept cert on a case the COA has ruled on unless it raises a significant Constitutional question. Keep in mind that any decision they make on the rights of a President will apply as well to a future Democratic President.

nb: there's no such thing as a "TRO" for a criminal indictment, and what would you be restraining him from?

[Ocelot II]

3. They do not issue hypothetical or advisory opinions.

There has to be an actual case or controversy before them. The issue would come up in the context of the actual prosecution of a former president, but there is no precedent establishing that a former president is immune from prosecution on constitutional or other grounds. He’s just another private citizen.

[kentuck]

5. Right.

Is there no other way to get the Supreme Court to rule on such a precedent?

[Ocelot II]

6. No, there is not.

[kentuck]

8. So there is no way to know what the Supreme Court might say or do unless there is a conviction?

It seems like the Chief Justice could make a speech about the subject, since there is no conviction at this time, and it could send a signal to all those that might be involved in a future conviction. Why would that be inappropriate?

[brooklynite]

10. Would you want ANY Court to announce their opinion before a trial was held?

[kentuck]

12. But no one has been indicted.

There has been no trial.

It would only be a hypothetical. Do not Justices ever give hypotheticals? It would only be a guideline for justice.

[brooklynite]

16. Answer, again. NO Judge or Justice gives a hypothetical.

Since there hasn't been an indictment, what element would they be giving a hypothetical answer to?

[kentuck]

19. A question about what the Constitution might say about such an indictment?

It would not be a hypothetical if it was about the Constitution, right?

What does the Constitution say?

[Effete Snob]

20. ARTICLE III SECTION 2 PARAGRAPH 1

It says what it says in Article III Section 2. That is the reason why they don’t answer hypotheticals absent it actually mattering in an actual case.

[Effete Snob]

11. What is the point here?

What on earth would a speech by the Chief Justice have to do with what the court would rule in any particular case?

There is absolutely no one of any consequence who has ever suggested anything along the lines of “a former president can’t be prosecuted” and there is nothing in the Constitution which at all suggests otherwise.

Government officials have limited immunity for acts undertaken in the course of their duties - for example you don’t see anyone charging Barack Obama for conspiring to kill Osama Bin Laden - but I simply don’t understand what the point of your question is.

What is it you believe is somehow being impeded by not having a Supreme Court ruling on this utterly silly question?

[kentuck]

13. Sorry. It's just a discussion.

On a discussion board. Obviously it is not of interest to you.

[Effete Snob]

14. But what is the point?

What is the problem getting some hypothetical opinion would solve?

If it’s a discussion, then you might discuss the answer to that question.

Do you know that we don’t know if the Supreme Court likes rhubarb pie? It doesn’t keep me up at night wondering.

So, what is it that the world lacks without this mystery solved?

[kentuck]

15. Not everyone on DU is a lawyer.

Some folks might be interested in such a question.

A couple of folks have given a couple of very good legal responses. It helps me to understand the possible trial of a former president somewhat better.

[Effete Snob]

18. Why not answer the question?

Is the lack of this decision standing in the way of the solution to some problem?

I’m trying to understand the point of the question. That might actually open up a pathway to understanding why the Supreme Court is limited to by Article III of the Constitution to deciding “cases and controversies”. This is what it says:

“ The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”

The judicial power does NOT extend to settling bar bets, and this definition of the power of the courts is universally understood to mean that the court does not issue “advisory opinions”. In fact, it is understood to forbid them, and there is no mechanism for obtaining one.

But merely repeating “so there is no way to get one?” in response to being told that they don’t do it, and now having the specific Constitutional reason why, would you mind explaining what you believe the practical reason for getting such an opinion would be? That’s the thing I’m curious about. Do you believe the lack of such a decision is somehow preventing a prosecution?

Understanding that question might actually lead you to a principle that can answer other questions that might bother you.

[kentuck]

21. Some people believe we have a very "political" Supreme Court.

They do not know for certain how they might rule if such an appeal came before them? Is it not possible for them to see such an appeal?

Some people may think the Supreme Court could somehow change a conviction if a former president was convicted in a jury trial?

Your response is very logical and to the point.

However, we are living in very unpredictable time and many have lost faith in our judicial system, including the Supreme Court.

I am only trying to pose questions that others may also be thinking about.

Thank you for your knowledgeable response.

[Effete Snob]

24. People believe all sorts of things

But the Supreme Court is not there to sort out what people believe.

But I still don’t understand the difference between these two worlds that diverge on our timeline from this moment in time…

1. In Earth One the Supreme Court says “you can prosecute a former president”.

2. In Earth Two, that doesn’t happen.

Okay, now what is the difference in what happens next in those two worlds.

There is nobody capable of prosecuting Trump who does not believe they have the capacity to do so.

There ARE things for which a former president cannot be prosecuted. In particular, the former president cannot be prosecuted for acts undertaken while president which were within the lawful exercise of the powers of that office. No one charged Roosevelt for kidnapping for locking up Japanese Americans, for example.

So, even as a general question, the first question would be “what sort of crime and circumstances are you talking about?” Because, as a general principle, whether you can prosecute ANYONE for anything depends on what specifically you have in mind. There are things for which a former president can be prosecuted and there are things for which a former president can’t be prosecuted.

Let me ask you this - do you think AG Ken Paxton of Texas can order the arrest of Barack Obama for signing the Affordable Care Act? Yes or no?

Because I guarantee you he would if he thought he could. He filed a god damned lawsuit to overturn OTHER states’ elections!

[Ocelot II]

25. Have you ever wondered why Ford pardoned Nixon?

Everybody knew even back then that once Nixon was out of office he almost certainly would have been indicted for obstruction of justice re: Watergate, so Ford had to save his ass from prosecution by pardoning him. Then, following the Clinton impeachment and acquittal, the question was raised whether a president who had been acquitted by the Senate following an impeachment trial could still be prosecuted for the same offenses that were addressed in that proceeding. So, in 2000 the Office of Legal Counsel issued a memorandum concluding "that the Constitution permits a former President to be criminally prosecuted for the same offenses for which he was impeached by the House and acquitted by the Senate while in office." The OLC did note that an argument could be made for a kind of double jeopardy, but that the stronger argument was that criminal prosecution following the end of a presidency was possible anyhow. https://biotech.law.lsu.edu/blaw/olc/expresident.htm If it hadn't already been well-settled that an ex-president could be prosecuted for crimes committed in office, it wouldn't even have been necessary to consider the impeachment issue. I don't think there's a serious question regarding whether TFG can be prosecuted for crimes relating to J6 (while he was still president), and obviously he can be prosecuted for post-presidency crimes, e.g., the retention of government documents at Mierda-Loco.

[DetroitLegalBeagle]

17. No

The only way it reaches them is through the already established routes that cases make their way to their docket. If there is no Constitutional controversy or prosecutorial/judicial misconduct that occured during his trial, then there would be no grounds for appeal to a higher court. And any appeal would first have to make its way through the normal process. They aren't going to make any ruling or public statement otherwise. Nor will they privately tell DoJ yes or no on whether they think a former President can be convicted. That's up to the lower courts to figure out themselves and only after would SCOTUS even consider anything. They aren't going to make a decision on hypotheticals. They need an actual case, facts, and specific controversy.

[kentuck]

22. Thanks!

[kentuck]

23. The responses above convince me even more that Donald Trump will be indicted...

...and convicted.

Thanks to all the lawyers for the legal information.

[LeftInTX]

26. He can appeal every motion all the way to the SC.

He already has appealed the search warrant etc.