I can’t answer the question directly, but this page (est 10 minutes read) puts into context how well that line of argument has been received in the courts so far: https://terikanefield.com/absoluteimmunity/
While not impossible, it would certainly up-end a fair amount of constitutional jurisprudence to accept the idea that there might be someone above the law.
It’s more that this claim of immunity causes a pause in the proceedings. My understanding is that there are many ways to pause different sorts of proceedings, such as insanity in a criminal trial and bankruptcy in a civil trial. In these two cases, though, once the issue has passed, the trial starts again where it was.
However, for pauses caused by claims of immunity or anti-SLAPP hearings, the result of those hearings could cause the trial to become moot, meaning the proceeding would immediately end. And that’s why there’s a pause in the first place.
In that sense, there is no circumnavigation because if immunity does apply, the trial wouldn’t matter. And if it doesn’t apply, the trial would proceed. Judicially, there is no drawback, but politically, burning down the clock may be a goal of the defense, as the primary and general elections draw closer.
It is very tempting to dismiss seemingly frivolous issues out of hand, and the judge could have done that. But presidential immunity has been a gray legal area – see Nixon presidency – such that judicial confidence isn’t fully established. In a way, the judge is saying “ok, show me what you’ve got” knowing that proof of immunity is an uphill battle, waiting for the defense to fall flat.
I can’t answer the question directly, but this page (est 10 minutes read) puts into context how well that line of argument has been received in the courts so far: https://terikanefield.com/absoluteimmunity/
While not impossible, it would certainly up-end a fair amount of constitutional jurisprudence to accept the idea that there might be someone above the law.
Interesting read. So essentially he’s using it knowing it is a frivolous claim to allow him to circumnavigate normal courtroom proceedings?
It’s more that this claim of immunity causes a pause in the proceedings. My understanding is that there are many ways to pause different sorts of proceedings, such as insanity in a criminal trial and bankruptcy in a civil trial. In these two cases, though, once the issue has passed, the trial starts again where it was.
However, for pauses caused by claims of immunity or anti-SLAPP hearings, the result of those hearings could cause the trial to become moot, meaning the proceeding would immediately end. And that’s why there’s a pause in the first place.
In that sense, there is no circumnavigation because if immunity does apply, the trial wouldn’t matter. And if it doesn’t apply, the trial would proceed. Judicially, there is no drawback, but politically, burning down the clock may be a goal of the defense, as the primary and general elections draw closer.
It is very tempting to dismiss seemingly frivolous issues out of hand, and the judge could have done that. But presidential immunity has been a gray legal area – see Nixon presidency – such that judicial confidence isn’t fully established. In a way, the judge is saying “ok, show me what you’ve got” knowing that proof of immunity is an uphill battle, waiting for the defense to fall flat.