In what may be one of the most important and historic cases the U.S. Supreme Court
has ever handled, the court heard almost three hours of oral arguments Thursday in Trump v. United States, the presidential immunity case.
In a spirited discussion in the final case to be heard by the court before its summer recess, former Deputy Solicitor General Michael Dreeben, arguing on behalf of special counsel Jack Smith
, and John Sauer, arguing on behalf of former President Donald Trump
, answered an intense series of questions from all of the justices on whether a former president enjoys immunity from criminal prosecution for official actions he took while he was president.
Trump was not in the audience at the Supreme Court because the judge in his New York criminal prosecution, Juan Merchan, refused to recess the trial Thursday and required Trump to be present in his courtroom.
In his opening statement, Sauer pointed out that the court’s decision in this case would have “implications” that “extend far beyond the facts of this case.” Without such immunity, said Sauer, “there can be no presidency as we know it,” because presidents would be hesitant to carry out their duties in many different situations out of fear of potential prosecution once they leave office.
That immunity, argued Sauer, is based on the Executive Vesting Clause and the corresponding principle of separation of powers, citing both Benjamin Franklin and George Washington in support of that proposition.
Much of the questioning was about how to differentiate between official and personal acts of the president. The government has insisted in its briefing that a president is not entitled to immunity from prosecution even for his official actions, and when asked that question directly by Justice Clarence Thomas, Dreeben answered: “No immunity.”
But Dreeben then qualified his answer by saying that presidents have some “special protection,” meaning that if a former president was criminally prosecuted, he could raise as a defense that such a prosecution would interfere with the president’s core functions as outlined in Article II of the Constitution
.
While Sauer insisted that presidents enjoy immunity from criminal prosecution for their official acts, he admitted they do not have immunity for their personal actions. The sole exception to official-act immunity, said Sauer, is if a president is impeached for particular conduct, since the Impeachment Judgment Clause specifically says that a president who has been “convicted” by the Senate in an impeachment trial is “subject to Indictment, Trial, Judgment, and Punishment, according to Law.”
However, even then, insisted Sauer, the government must establish that Congress
clearly intended the criminal law in question to apply to the president.
Thomas got to the heart of the official act vs. personal act issue when he asked Sauer how the court should determine what is or is not an “official act” of the president, a question that was repeated in various forms by other justices.
Sauer repeatedly referenced the court’s 1982 decision in Nixon v. Fitzgerald, in which the court held that a former president
enjoys absolute immunity from civil actions for all acts he undertook within “the outer perimeter of his authority.” Sauer pointed to prior case law in arguing that an objective standard should be used to make such an assessment.
The justices asked a series of hypothetical questions geared toward trying to distinguish between personal and public actions when both are mixed together, such as a president taking an illegal bribe for the appointment of an ambassador, an issue raised by Chief Justice John Roberts
, or a president creating false documents or ordering the assassination of a rival by the military.
Justice Sonia Sotomayor
asked Sauer whether the president can order an official action for personal gain, to which Sauer said that the immunity for official acts does not “turn on the allegedly improper motivation” of the president’s action.
Moreover, he argued, any personal motive that the president may have had for undertaking that action should be out of bounds for a court to examine.
That last hypothetical about using the military for assassinations or to stage a coup was brought up more than once, with SEAL Team 6 specifically mentioned. That is one of the absurd, extreme hypotheticals that has never occurred in our entire history and is not something that should be realistically feared, no matter how the court rules in this case.
Indeed, Justice Samuel Alito made it clear that such questions were not designed to “slander” SEAL Team 6, citing the honorable history of our military and the fact that it would violate the Uniform Code of Military Justice to obey such a blatantly unlawful order.
Sauer said that if the court sets out a test for distinguishing between official and personal acts of the president, then the case should be remanded to the lower court to make such a determination.
In response to a series of questions by Justice Amy Coney Barrett
, Sauer acknowledged that at least some of the alleged criminal acts by Trump would be personal acts, such as his use of private lawyers to file false statements in his election contests.
Some of the questions pertained to the specifics of the federal indictment in this case. Sotomayor, for example, asked whether Trump had a right to create what she called “fake” electors. Sauer answered that there was nothing illegal about creating an alternative slate of electors, citing prior historical precedents such as the 1876 election, when several states had two different sets of electors due to claims about fraud and other irregularities.
Dreeben kept repeating that there are many protections against abusive criminal prosecutions, including layers of approval needed at the Justice Department
, the fact that indictments must be returned by a grand jury, the various procedural protections afforded to criminal defendants, and the layers of review by the trial court and appellate courts.
Alito asked questions suggesting that he was skeptical how much protection those safeguards would actually provide. And Justice Brett Kavanaugh
asked Dreeben about “creative prosecutors”—a polite way of saying “abusive”—using a “vague statute” to go after a former president.
Citing the charges against Trump for obstruction and defrauding the United States, Kavanaugh suggested that such charges could be “used against a lot of presidential activities.” Essentially, Dreeben’s answer was for all of us to trust in the good faith of the Justice Department.
There was a lot more to the lengthy questioning and arguments that were made. The liberal justices seemed much more inclined to side with Smith’s position of no immunity for official actions, while the generally more conservative justices seemed more interested in basing some form of immunity on distinguishing between official and personal actions, providing some layer of protection for the former, but not the latter. But the key to such a ruling would be how to make that determination.
Giving a lone federal judge and a handful of jurors in a federal prosecution the ability to decide whether a president acted within his official capacity would give extraordinary power to a small group of unelected individuals, without even considering potential indictments by local prosecutors in the more than 3,000 counties across the country.
Any test the Supreme Court comes up with should be, as Sauer argued, an objective test, not a subjective one that allows individual courts to question the motives of the former chief executive of the United States.
There is only one thing we know for sure about how these issues will be resolved: We will get a decision in the case by the end of June.
A migrant services center in Mexico near the Texas border where pro-Joe Biden flyers
recently were posted also was home to a display opposing Donald Trump in 2020.
The executive director of Resource Center Matamoros has denied any political involvement by the nongovernmental organization. However, new images obtained by The Heritage Foundation’s Oversight Project
, in collaboration with the Muckraker news site, suggest otherwise. (The Heritage Foundation founded The Daily Signal in 2014.)
“The [pro-Biden] flyers were not only on the walls of port-a-potties but also on a table inside the shelter,” Heritage’s Oversight Project posted on X. “This is backed up with a sworn statement, under penalty of perjury.”
Legacy media failed to discredit what we discovered on video
They relied on a denial from the founder of RCM, Gaby Zavala, and claimed translation issues with the flyer were unusual for a native Spanish speaker
The Oversight Project obtained the sworn statement from the person who initially discovered the vote-for-Biden flyers.
As The Daily Signal previously reported, the flyers posted at the migrant services center in Mexico across the border from Brownsville, Texas, told illegal aliens: “Reminder to vote for President Biden
when you are in the United States.”
The Oversight Project’s new thread on X uses images that it says are from the migrant center, including a large, campaign-style poster for Biden and Vice President Kamala Harris that uses photos of them.
The images also include a balloon display from 2020, after Biden’s victory over Trump in the November presidential election, with the words “Bye Trump.”
During the 2020 campaign, Biden’s wife Jill Biden, now the nation’s first lady, visited an organization allied with Resource Center Matamoros and known as Team Brownsville.
RCM’s website also says its founder and executive director, Gaby Zavala, partnered last November with Mike Benavides of Team Brownsville to brief members of Congress about the humanitarian crisis at the Mexico-U.S. border in Texas.
Translated from Spanish, the flyers posted at
Resource Center Matamoros in the Mexican state of Tamaulipas said: “Reminder to vote for President Biden when you are in the United States. We need another four years of his term to stay open.”
Heritage’s Oversight Project notes that left-leaning media outlets attacked initial reports on the vote-for-Biden posters.
“Despite their best efforts, the entirety of legacy media has failed to discredit what we discovered on video,” the Oversight Project posted on X.
“They have relied on a denial from the founder of Matamoras Resource Center, Gaby Zavala (pictured below) and claimed translation issues with the flyer that would be unusual for a native Spanish speaker,” the Oversight Project said in the post. “What they missed is that Zavala is not a native Spanish speaker.”
The post goes on to explain why Zavala isn’t.
RCM Founder Gaby Zavala has stated that her work is “an effort to fight policy, US policy” pic.twitter.com/Ol9EaM5XyD
It’s not clear whether Resource Center Matamoros authorized the flyers or did anything to remove them from the shelter for migrants. Zavala didn’t respond to inquiries from The Daily Signal for this report or previous ones.
But, she told The Associated Press
that her organization doesn’t know who made the vote-for-Biden flyers and “does not encourage immigrants to register to vote or cast ballots in the U.S.”
The flyers, first discovered by Muckraker and shared with the Oversight Project, were found throughout Resource Center Matamoros, including on the walls of portable toilets, a video shows.
RCM provides
information about legal and social services available for those on the Mexican side of the border who seek asylum in the United States. The nongovernmental organization also lobbies U.S. and Mexican lawmakers.
RCM and Zavala’s Asylum Seekers network “conducted lobbying efforts, but do not appear in lobbying disclosure act databases with the House and Senate,” the Oversight Project posted on X. “Additionally, their filed 990s say they did not lobby.”
This remain an active investigation, stay tuned for further updates.
The city of Matamoros borders Brownsville, where Biden spoke
in February about the crisis of illegal immigration at the southern border that has grown since he became president in January 2021.
FIRST ON THE DAILY SIGNAL—Emails obtained by Parents Defending Education
, a watchdog organization, show a Seattle school board member called Israel a “right-wing apartheid force” and praised the Black Lives Matter movement six days after terrorist attacks left over 1,200 dead in the Jewish state.
Eliza Rankin, the school board member for Seattle Public Schools, identifies herself as Jewish in the email sent Oct. 13 under the subject line “hate speech.”
The terrorist organization Hamas, which is the elected government of the Gaza Strip adjoining Israel, massacred over 1,200 civilians in the Oct. 7 incursion into southern Israel. Hamas also kidnapped over 200 Israeli, American, Argentinian, Thai, Filipino, French, German, and Irish citizens.
In the aftermath of the terrorist attacks, Black Lives Matter chapters throughout the United States praised what they described as a righteous pushback against Israel’s “colonialism.”
In a “Superintendent Talking Points” document dated Oct. 11 and obtained by Parents Defending Education, Seattle Public Schools describes Filipinos as “Filipinx,” a term described by many Filipino nationals and immigrants
as extremely offensive.
Black Lives Matter’s Chicago chapter posted imagery on X praising Hamas paragliders who jumped into the Nova music festival on the Israeli side of the Israel-Gaza border and mowed down attendees with automatic weapons.
Other BLM chapters posted similar celebrations
of Hamas’ terrorist attacks and attempted to draw parallels between what they see as oppressed Palestinians in Gaza and blacks in the United States.
Black Lives Matter Grassroots stands in solidarity with our Palestinian family who are currently resisting 75 years of settler colonialism and apartheid.
On Oct. 12, five days after Hamas’ terrorist attacks in Israel, Seattle Public Schools Superintendent Brent Jones posted a message about “International Conflict” for parents and students in Washington’s largest school district.
Jones described the “situation” in Israel and Gaza as “complex” and “emotionally and politically charged.” The school superintendent didn’t condemn any terrorist act, instead suggesting that “it is acceptable that we as individuals hold different opinions about the conflict and complex history of Israel and Palestine.”
Jones then wrote: “Antisemitic
or Islamophobic speech or acts will never be tolerated in our district.”
According to emails obtained by Parents Defending Education under the Freedom of Information Act, one parent reached out to Seattle’s school superintendent to ask about the school district’s connections to Black Lives Matter following the BLM chapters’ pro-Hamas posts.
Rankin, the school board member, responded in the Oct. 13 email that she is “a Jewish person who fights for racial equity” and that Seattle Public Schools “has no affiliation to the [Black Lives Matter] organization.”
She proceeded to pledge her support for the Black Lives Matter movement and described “the Israeli government” as a “right-wing apartheid force that does not represent the Jewish people.”
This assertion is objectively false, according to news reports.
On Oct. 11, liberal and centrist Israeli party leaders and officials joined Prime Minister Benjamin Netanyahu, a conservative, to form a “unity government”
during the Israel-Hamas war that erupted after the attacks.
Hamas was elected in 2006 by popular vote in Gaza and continues to receive majority support of the civilian population, according to every available poll
.
The response by Seattle Public Schools officials to the terrorist attacks and Israel’s military retaliation appears to be part of a growing trend
of an anti-Israel revision of history in America’s public schools. Similar incidents include Berkeley High School’s anti-Israel social studies lessons
in California.
But this isn’t the only time that Seattle Public Schools has been at the center of an antisemitism controversy.
Ian Golash
, social studies chairman at Seattle’s Chief Sealth International High School
, was suspended April 19 after a report by Adam Guilette of Accuracy in Media, a conservative investigative group.
Guillete recorded Golash as he said Hamas’ Oct. 7 attacks in Israel were justified and that there was no evidence of rape at the Nova music festival, where Hamas terrorists killed at least 370 attendees.
Erika Sanzi, director of outreach for Parents Defending Education, described the anti-Israel sentiment as a result of school districts deciding that it’s “OK to vilify and demean certain groups.”
In a written statement Thursday to The Daily Signal, Sanzi said:
K-12 education has an anti-Israel problem that often slides into antisemitism. It’s not that every school board or school administrator holds anti-Jewish views—the problem is that enough do for it to be a real problem.
I am not shocked by what this [Seattle school] board member said because there have been countless similar examples since Oct. 7, and even long before that. When governing bodies view Jews as oppressors, it becomes a crisis for that school district. We are seeing what happens when school districts decide that it’s OK to vilify and demean certain groups. Seattle has allowed this to fester far too long.
Seattle Public Schools has not responded to The Daily Signal’s request to verify the emails and documents provided by Parents Defending Education by publication time.
I can’t tell you how many people I know who do not like former President Donald Trump
yet nonetheless smell prosecutorial overreach in Manhattan.
Manhattan District Attorney Alvin Bragg
has charged the former president with 34 felony counts of falsifying business records. Trump has pleaded not guilty.
The case began with Michael Cohen, Trump’s onetime fixer, making a “hush money” payment to the former adult film actress known as Stormy Daniels to keep her from revealing information about an alleged sexual relationship with Trump in 2006. Bragg used the fact that Cohen paid $130,000 to Daniels in 2016, when Trump was running for president, as a pretext to turn a moldy misdemeanor offense into a felony.
But is it even illegal? This trial showcases something rich men and big corporations have been doing for years—paying off mistresses or wronged staffers with cash settlements with little public scrutiny, thanks to nondisclosure agreements.
I don’t like it, but it’s not a crime.
On Tuesday, former National Enquirer publisher David Pecker testified that during a 2015 meeting in Trump Tower, he told Trump, Cohen, and campaign stalwart Hope Hicks that he wanted to help the Trump campaign, if behind the scenes.
What followed was “catch and kill,” the term for the scheme of paying to get dirt on a public figure, then killing the story, as happened with another alleged Trump gal pal, Karen McDougal. The National Enquirer paid her $150,000 for a story that never ran.
Trump has denied that anything extramarital occurred with McDougal and Daniels. But as Sen. Mitt Romney, R-Utah, told CNN
, “You don’t pay someone $130,000 not to have sex with you.”
Back to Cohen. He’s a flawed witness to be sure, who in 2018 pleaded guilty to charges that included tax evasion and lying to Congress
when he testified about Trump, his former master. Cohen was sentenced to three years in prison.
Then, last year, Cohen claimed that he lied when he admitted to tax evasion. A more careful prosecutor would not hang a case on an accomplished liar.
Given his capacity for self-pity and self-sabotage, it’s no surprise that Trump told reporters after the second day of trial, “I’m not allowed to defend myself.”
Trump also continued to throw shade at Judge Juan Merchan, whose gag order, Trump maintained, robbed him of his “right to free speech.” Trump also offered that Merchan “should recuse himself.”
Pecker testified that he was glad to help by running “positive stories about Mr. Trump,” as well as negative stories about his campaign rivals. I’m guessing many Big Media
hotshots feel the same way—about President Joe Biden
.
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After nearly two years of legal and political challenges, Britain’s parliament has finally passed a law
confirming that Rwanda is a safe place to send people who arrive in the U.K. illegally by sea. This is a major policy win for the Conservative government of Prime Minister Rishi Sunak and a victory for common sense. Britain, like
the U.S. and Europe, is experiencing mass illegal migration in the guise of asylum claims. The British devised the Rwanda plan in response, but the U.S. already has successful equivalents that can be resurrected when there is a will to once again control America’s borders.
Like those coming to the U.S. by land, most people illegally arriving in Britain by boat are economic migrants. Britain’s asylum system has been swamped by growing demand, and backlogs for processing cases stretch into years.
In 2018, only 300 people arrived illegally in the U.K.
by small boat from France across the English Channel. In 2022, it was more than 45,000. And in August 2023, the U.K. received its 100,000th
illegal boat-borne immigrant, one of 700 who arrived each day. Nearly all of the 100,000 are still in Britain, joined by ever-increasing numbers.
From Jan. 1 to April 21 this year, 6,265 small boats arrived
in the U.K. carrying illegal immigrants, with the largest numbers being from Afghanistan and Vietnam.
Having left the European Union, the British are unable to return asylum-seekers to the first safe country in the EU under what are called the Dublin Regulations. By mid-2023, 96% of asylum-seekers who arrived in 2021 had not received final decisions in their cases, and around 50,000 were being housed in hotels, costing the United Kingdom the equivalent of more than $8.8 million U.S. a day. The limitless liability of illegal immigration to the U.K. is an important electoral issue for Conservative Party voters.
Sound familiar?
In August 2023, Sunak’s government passed an Illegal Migration Act
that barred people who entered illegally by sea from applying for asylum. The act requires British officials to return inadmissible aliens—without appeal—back to their birth country, if possible, or if not, to a safe third country.
To implement the act, Britain needed a safe third country to house putative asylum-seekers pending case processing. Britain does
not have any developing-country neighbors, so they struck a deal with Rwanda in 2022 in which that Central African country would be compensated to take up to 1,000 putative asylum applicants over five years.
Anyone sent to Rwanda could opt at any time to return to their home country or to be resettled in Rwanda as refugees, but they could not return to Britain. The British government fought a series of legal challenges to its policy, but passage of the new law should clear the way for removal flights to Rwanda within weeks from now.
Sunak says he means business. “The only way to stop the boats is to eliminate the incentive to come, by making it clear that if you are here illegally, you will not be able to stay,” he said
at a press conference. “We are ready. The plans are in place.”
The government has also set aside judges and courts on standby to handle the inevitable legal challenges.
The Rwanda plan is Britain’s attempt to regain control over its borders and national sovereignty. The goal is to cut off the possibility of asylum from boat arrivals, thus both destroying the business model of maritime smugglers and saving lives. This past week, five people died
when over 100 illegal migrants attempted to cross the English Channel in an overcrowded boat.
The Rwanda plan has many opponents. The United Nations High Commission for Refugees argues
that if the U.K. is successful, it will set a “worrying precedent for dismantling asylum-related obligations that other countries, including in Europe, may be tempted to follow …” Perhaps so, but the alternative is to cede control over immigration to foreign actors in perpetuity.
The British hope to emulate the success of Australia, which in 2001, started turning back boats carrying illegal migrants. The idea was to give “no advantage” to asylum applicants arriving illegally by boat over those arriving by air.
Australia set up
detention and asylum processing centers on the island nation of Nauru, and on Manus Island in Papua New Guinea. Eventually, Australia adopted a strict rule that no asylum-seeker arriving by boat and processed offshore would ever be resettled in Australia. The policy faced considerable political opposition but was highly effective in reducing demand.
The message was quickly understood by would-be boat migrants and migrant traffickers across Southeast Asia. “Arrival numbers went off a cliff
once the Australians started to deport … because ‘news spreads like wildfire among refugees,’” wrote Matthew Paris in the Spectator.
When a later Australian government closed the Manus and Nauru centers, illegal migration soared again. In 2012, more than 600 people drowned when boats carrying illegal migrants capsized. In response, Australia reopened the offshore centers and resumed sending back all illegal aliens who arrived or attempted to arrive in Australia by sea.
As before, the putative asylum applicants remained in the offshore centers for the entire time, pending the adjudication of their cases. The offshoring policy and an unbending Australian government destroyed the market for maritime migrant smugglers. For example, in 2014, only a single boat carrying migrants made it to Australia.
At its peak in 2014, Nauru’s camp had 1,233 asylum applicants living there. By June 2023, only three remained. Though the boat-borne illegal migration virtually stopped, a credible ability to restart offshore processing is vital to Australia maintaining its current control over seaborne illegal immigration. Therefore, Australia is paying the equivalent of $288,000 U.S. a year to Nauru to keep the detention/processing option open in reserve.
The U.S. does not have the advantage of being an island. But as recently as the Trump administration, we had Safe Third Country agreements in place with Central American countries and the Migrant Protection Protocols with Mexico. Under these agreements, any asylum applicant coming to the U.S. and first passing through a third safe country to get here would be sent back to that country if he or she had not applied for asylum in that country. For example, all those who crossed illegally into the U.S. from Mexico were returned there pending their case adjudication.
The U.S. needs to use all the economic and diplomatic leverage at our disposal to revive those agreements. Meanwhile, similar to the U.K. and Australia, we should prohibit asylum applications from those illegally crossing between ports of entry to discourage frivolous and fraudulent asylum claims.
The BorderLine is a weekly Daily Signal feature examining everything from the unprecedented illegal immigration
crisis at the border to immigration’s impact on cities and states throughout the land. We will also shed light on other critical border-related issues like human trafficking, drug smuggling, terrorism, and more.
