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  • Trump Wants to Prosecute Biden. He Also Thinks Presidents Deserve Immunity.

    Trump Wants to Prosecute Biden. He Also Thinks Presidents Deserve Immunity.

    When a lawyer for former President Donald Trump argued before the Supreme Court last week that his client should be immune from charges of plotting to subvert the last election, he asked the justices to picture a world in which former presidents were ceaselessly pursued in the courts by their successors.

    “Could President Biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policies?” the lawyer, D. John Sauer, asked.

    What Sauer did not mention was that Trump has done as much as anyone to escalate the prospect of threatening political rivals with prosecution. In 2016, his supporters greeted mentions of Hillary Clinton with chants of, “Lock her up.” In his current campaign, Trump has explicitly warned of his intent to use the legal system as a weapon of political retribution, with frequent declarations that he could go after President Joe Biden and his family.

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    In effect, Trump has asked the Supreme Court to enforce a norm — that in the United States, public officials do not engage in tit-for-tat political prosecutions — that he has for years threatened to shatter. In promising to sic his Justice Department on Biden, Trump has laid the grounds for the very conditions that he was asking the justices to guard against by granting him immunity.

    Trump’s perspective is that it is Biden who has politicized justice by pursuing him on multiple fronts as they face each other on the campaign trail. In making that argument, however, Trump has sought to evade the reality that no former president has been faced with as many allegations, or as much evidence, of wrongdoing as he has.

    The two federal cases against Trump were brought by a special counsel operating largely independently of the Justice Department, while the two other criminal cases against him were brought by local district attorneys in New York and Georgia.

    Paradoxically, should the Supreme Court decide that presidents do enjoy some degree of immunity for their official actions while in office, the ruling would deprive Trump of one of the major themes that he and his allies have promoted throughout the current campaign: that Biden needs to be held to account by the criminal justice system, despite the lack of compelling evidence that he has violated any laws.

    And should Trump win in November, he would find it far more difficult, if not impossible, to bring a case against Biden for any actions Biden took in office.

    Last spring, Trump vowed that if he was elected again, he would appoint a special counsel to “go after” Biden and his family. And as recently as two weeks ago, he posted a not-so-veiled threat on social media, saying that if the Supreme Court rejected his claims of presidential immunity, it would also “take away” Biden’s immunity.

    Over the weekend, Eric Trump, one of Trump’s sons, weighed in about a future prosecution of Biden. Appearing on Fox News, he said that if the court denied immunity to his father, it would mean that “they” — he did not say exactly who he meant — would be able to pursue Biden for things like having depleted the national petroleum reserve.

    “The floodgates are going to open,” Eric Trump said. “And I guarantee you Joe Biden will not have one foot outside of the White House doors before they start going after him legally.”

    Such remarks have become a staple of Donald Trump’s presidential campaign, as he has focused his political message on the four criminal cases he is facing.

    History has already shown that the former president and his allies have been willing to use the judicial system against their perceived adversaries.

    Trump’s Justice Department, under the control of former Attorney General William Barr, appointed a special counsel, John Durham, to investigate the investigators who launched the inquiry into connections between Russia and Trump’s 2016 presidential campaign.

    Trump also repeatedly encouraged inquiries into his political critics, including Clinton; James Comey, whom he fired as the FBI director; and John Kerry, the former senator and secretary of state under President Barack Obama. (None of them were prosecuted.)

    As president, Trump wanted a number of his perceived political enemies, including Comey, to be investigated by the IRS, according to one of his White House chiefs of staff.

    For all of Trump’s promises to bring some sort of criminal investigation against Biden, however, the vows have come as actual evidence of offenses by the president has been hard to find.

    After more than a year of investigation, House Republicans have seemed to retreat from their attempts to bring impeachment charges against Biden. A separate impeachment proceeding against Alejandro Mayorkas, Biden’s homeland security secretary, was quickly cast aside when it reached the Senate.

    In February, special counsel Robert Hur said there was insufficient evidence to charge Biden with illegally holding on to classified documents after he served as vice president.

    Given the long acceptance of the American legal principle that no one is above the law, Trump’s immunity claim seemed like a long shot when his lawyers took it before the Supreme Court.

    Still, some of the court’s conservative justices appeared last week to accept Trump’s underlying argument that in a polarized political environment, all presidents could be charged with something when they got out of office if he did not receive the protections of immunity.

    “It’s going to cycle back and be used against the current president or the next president,” Justice Brett Kavanaugh said, “and the next president and the next president after that.”

    It is impossible to know just how much protection, if any, the justices will ultimately grant Trump in the election interference case. While none of them appeared to embrace his most extreme idea — that he could not be prosecuted at all unless first convicted at an impeachment trial — several seemed to agree that he might enjoy a limited form of immunity that would shield him from being charged for official actions central to his job.

    As for Biden, all of the grounds for bringing a case against him that have been floated by Trump, his allies or his lawyers have had little basis in the law. Those grounds would be even harder to support if the Supreme Court were inclined to limit prosecutions based on a former president’s core official acts.

    Eric Trump’s suggestion of going after Biden over his handling of the petroleum reserve, for instance, would seem to fall squarely within the realm of a president’s official duties. So would Sauer’s idea of prosecuting Biden for his border policy.

    Even though some form of executive immunity could one day protect Biden against an attack from prosecutors under Trump, Michael Dreeben, a lawyer who argued for the Justice Department, told the court that it was neither necessary or desirable.

    The criminal justice system, Dreeben said, already had “layered safeguards” in place to ensure against what he called “a runaway train” of rogue indictments.

    What was far more worrying, Drebeen argued, was creating a form of immunity that could allow a president to commit crimes with impunity.

    “The framers knew too well the dangers of a king who could do no wrong,” he said. “They therefore devised a system to check abuses of power, especially the use of official power for private gain.”

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  • The Supreme Court still has much more than Trump’s immunity claim to resolve

    The Supreme Court still has much more than Trump’s immunity claim to resolve

    Timing is a crucial factor in Donald Trump’s federal election interference case. So now that his Supreme Court immunity appeal has been argued, a big question is: When is the opinion, which is standing in the way of a trial, coming?

    The court doesn’t announce ahead of time when specific opinions will be issued. But we can read the tea leaves in the context of the justices’ usual practice. The bottom line is that, while the court could always surprise us, little about its treatment of the appeal so far points to a speedy ruling.

    For starters, let’s look at where we are in the court’s term. Trump v. United States was the final hearing, meaning the justices are now focused on writing the remaining opinions in cases argued since October. In thinking about the timing of the immunity decision, then, consider that there is much, much more to be decided besides that important case. Among others, the justices are crafting pivotal rulings on guns, abortion, gerrymandering and appeals striking at the core of how government functions.

    So it’s a monumental term even if you don’t consider Trump, notwithstanding the Supreme Court as a motivating factor for his 2016 election and his resultant three appointments — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Indeed, another of the court’s important cases this term that doesn’t directly involve Trump also will affect him — namely Fischer v. United States, the appeal from an alleged Jan. 6 rioter that challenges one of the statutes Trump is charged with in his Jan. 6-related case. The presumptive GOP presidential nominee has pleaded not guilty in all four of his criminal cases, one of which is on trial in New York.

    Typically, the Supreme Court wraps up its decisions by the end of June, which is why some of the most contentious and historic ones come then. That isn’t an official deadline, because the current term technically runs through the beginning of the next one in October. But late June is a fair deadline to keep in mind and is likely what the justices are aiming for with all their rulings.

    Given the other pivotal cases on deck, it may be more of a question of how the justices prioritize the Trump immunity ruling against their other work. Viewed that way, the prospect of a quick ruling is a mixed bag, at best. On the one hand, the justices could have punted consideration of the case into next term when they took it up in February. But their scheduling of the argument was only so expedited, because they put the case on for literally the last hearing day of the term. Plus, the hearing itself displayed differences of opinion among the justices over how to sort out the case, suggesting that it won’t be easy to do so quickly, even if that’s what the court as a whole wanted to do.

    All of this points toward a ruling in Trump’s immunity case coming around that crush of crucial decisions in late June. Depending on what that ruling says exactly, it may be too late for the Jan. 6-related case to get to trial before the election (if Trump wins that election, he could kill the case in which he is alleged to have unlawfully tried to overturn the last presidential election).

    The court could always surprise us with a sooner decision than that. But it hasn’t given us much reason to expect one. In any event, don’t be surprised to see those other rulings come first.

    Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.

    This article was originally published on MSNBC.com

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  • Maddow Blog | Kavanaugh draws the wrong lesson from Ford’s 1974 Nixon pardon

    Maddow Blog | Kavanaugh draws the wrong lesson from Ford’s 1974 Nixon pardon

    Donald Trump’s immunity claims reached the U.S. Supreme Court last week, and during oral arguments, Justice Brett Kavanaugh — a Trump nominee — thought it’d be a good idea to bring up Gerald Ford’s decision to pardon Richard Nixon in 1974.

    The then-president’s decision, the conservative jurist said, was “very controversial in the moment.” Former Deputy Solicitor General Michael Dreeben, a member of special counsel Jack Smith’s team agreed.

    It was “hugely unpopular” and “probably why” Ford lost in 1976, Kavanaugh said, and again, Dreeben agreed.

    The justice then added, however, that Ford’s decision is now “looked upon as one of the better decisions in presidential history, I think, by most people.” Kavanaugh, kicking around the idea that presidents might need to be shielded, imagined whether Ford might’ve been concerned about facing an obstruction investigation for having interfered with prosecutors’ case against Nixon.

    In context, the justice’s point seemed to be that Ford did something courageous, and the Republican has been vindicated by history, but the then-president might not have taken this commendable step if he were concerned about possibly being held criminally liable — all of which, Kavanaugh suggested, speaks to the need for some kind of presidential immunity.

    But there are a handful of important problems with this.

    First, Ford made no claims to presidential immunity and faced no prosecutorial scrutiny in the wake of his Nixon pardon.

    Second, Kavanaugh’s claim that “most people” see Ford’s pardon as “one of the better decisions in presidential history” is unsupported by evidence. A Washington Post analysis last week noted that scholars and Americans in general do not necessarily hold Ford’s decision in such a high regard.

    And third, I’m curious about whether Kavanaugh has ever actually read Ford’s pardon.

    Perhaps the justice should’ve watched Rachel Maddow talk to Chris Hayes about this in February, when she explained why Ford’s pardon discredits the idea that the immunity argument somehow constitutes an open question.

    From Ford’s pardon:

    So let’s take stock. The Supreme Court heard oral arguments last week in a case in which a corrupt and indicted former president, fearing legal consequences, is claiming absolute immunity. At least some of the justices treated the underlying question as a legitimate and unresolved.

    It was against this backdrop that one of the justices chosen for the high court by the corrupt and indicted former president pointed to Ford’s pardon of Nixon — which largely answered the question that the jurist and his colleagues are pondering, by proving once and for all that a former president was subject to prosecution for alleged crimes he committed while in office.

    This article was originally published on MSNBC.com



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  • Supreme Court rejects Peter Navarro’s long-shot prison release bid

    Supreme Court rejects Peter Navarro’s long-shot prison release bid

    Peter Navarro is staying locked up, after the Supreme Court rejected his bid to stay out while he appeals his contempt conviction. It’s the former Trump White House adviser’s second such rejection in as many months.

    How is that even possible, you might wonder?

    Recall that Navarro was sentenced in January to four months’ imprisonment for contempt of Congress after he refused to comply with a subpoena from the House Jan. 6 committee. Trying to stay free pending appeal, he filed an application to Chief Justice John Roberts, who handles emergency requests from Washington courts. In a March 18 opinion, Roberts wrote that he saw no basis to side with Navarro, who then reported to prison. Though he could have done so, the chief justice apparently didn’t feel the need to involve his colleagues, which prolonged the matter in retrospect.

    That’s because Navarro subsequently asked for a redo at the beginning of this month — from a different justice, Neil Gorsuch. He was allowed to try, but the odds of success were low, to put it generously.

    Those long odds were confirmed Monday morning, when his bid was rejected again. This time, unlike Roberts, Gorsuch referred the matter to the full court, setting up for a definitive resolution. And this time, there was no explanation accompanying Navarro’s loss. Roberts’ colleagues likely felt that the chief justice already said all that needed to be said, or perhaps that nothing needed to be said in the first place.

    To be sure, this doesn’t mean that the Supreme Court is done with Navarro. His underlying appeal attacking his conviction is still pending in the Washington federal appeals court. If he loses there, he may press on to the justices. By then, of course, he’ll have long been released. The Federal Bureau of Prisons lists his release date as July 17. Navarro said in his bid to Gorsuch that the briefing alone in his D.C. Circuit appeal won’t be done until July 19.

    Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.

    This article was originally published on MSNBC.com

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  • Louisiana sues Biden over Title IX rules that protect LGBTQ students from discrimination

    Louisiana sues Biden over Title IX rules that protect LGBTQ students from discrimination

    Louisiana is suing President Joe Biden to block new U.S. Department of Education rules issued that include protections for LGBTQ students by clarifying that Title IX forbids discrimination based on sexual orientation and gender identity.

    Republican Attorney General Liz Murrill was joined by GOP Gov. Jeff Landry, state Department of Education Superintendent Cade Brumley and others during a press conference in the state Captiol announcing the lawsuit filed Monday in Louisiana’s U.S. Western District Court in Monroe.

    Opponents of the new Title IX rules believe they could supplant state laws like bathroom bans and other policies increasingly being enacted in Republican-led states like Louisiana.

    Murrill said the new rules are attempting to “remake American societal norms” in bathrooms and lockerrooms.

    She said the new rules also transform traditional Title IX protections for “biological women” to compete in sports. “It estroys decades of advancements for women and girls,” Murrill said, calling the rules “an affront to the dignity of families, and it’s not legal.”

    Landry said the rules show the Biden administration “has lost its moral compass.”

    “We’re not going to pretend there is some other kind of sexual category other than the two the great almighty has set forth,” Landry said.

    Louisiana is joined in the lawsuit by attorneys general in Idaho, Mississippi and Montana.

    Marchers walk through the French Quarter in New Orleans for Transgender Day of Visibility on Friday, March 31, 2023.

    Marchers walk through the French Quarter in New Orleans for Transgender Day of Visibility on Friday, March 31, 2023.

    A separate rule that could prohibit schools from banning transgender athletes from competing on teams in accordance with their gender identity has not been finalized but is expected to be soon. Louisiana passed a law in 2022 that bans transgender athletes from competing on girls and women’s sports teams.

    Last week Brumley sent a letter to state school systems advising leaders to ignore the new Title IX rules.

    “These new rules have been in development for nearly two years, and I have previously submitted comments in staunch opposition as it alters the long-standing definition that has created fairness and equal access to opportunity for women and men,” Brumley wrote on April 22. “At this time, my opposition to these new Title IX rules remains unchanged. The Title IX rule changes recklessly endanger students and seek to dismantle equal opportunities for females.”

    Brumley reiterated his position, telling school systems: “Do not comply.”

    “This is a line-in-the-sand issue,” Brumley said. “This is a bridge too far.”

    U.S. District Judge Terry Doughty has been assigned the case.

    Doughty, who was nominated by former President Donald Trump in 2017 and confirmed in 2018, has a history of issuing high-profile rulings against the Biden administration, some of which have advanced to the U.S. Supreme Court.

    The Supreme Court is considering a case now in which Doughty ruled that the Biden administration unconstitutionally suppressed free speech by colluding with social media platforms during the COVID pandemic.

    He previously overturned two COVID vaccine mandates for federal healthcare and Head Start workers and a ban on oil and gas drilling.

    More: Louisiana case acusing Biden of illegal social media censorship takes Supreme Court stage

    Greg Hilburn covers state politics for the USA TODAY Network of Louisiana. Follow him on Twitter @GregHilburn1

    This article originally appeared on Shreveport Times: Louisiana sues Biden over Title IX rules that protect LGBTQ students

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  • Maddow Blog | Pressed on the ‘assassination’ question, Team Trump doubles down

    Maddow Blog | Pressed on the ‘assassination’ question, Team Trump doubles down

    As special counsel Jack Smith’s elections case against Donald Trump has progressed, the former president hasn’t just proclaimed his innocence. The Republican and his defense attorneys have also claimed that he enjoys near-complete immunity from crimes he might’ve committed during his White House tenure.

    A federal district court rejected the argument, concluding, “[The] defendant’s four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”

    Team Trump took the same claim to the D.C. Circuit Court of Appeals, where the judges were not only unpersuaded by the argument, they also presented the former president’s lawyers with a hypothetical: Could a president be prosecuted for ordering the assassination of a political opponent?

    D. John Sauer replied that such a prosecution could possibly take place — but only if the president is impeached and convicted by the Senate first. Or put another way, as far as Team Trump was concerned, a sitting president could order SEAL Team Six to literally murder his or her political rivals, and that president shouldn’t face criminal prosecution unless a majority of the U.S. House and two-thirds of the U.S. Senate act first.

    When this flopped at the circuit court, the presumptive GOP nominee and his defense counsel took the matter to the U.S. Supreme Court, where as NBC News noted, the same question returned to the fore.

    He was, by all appearances, quite sincere about this.

    The phrase “official act” dominated the oral arguments at the high court yesterday, with Trump’s lawyer repeatedly insisting that a president must be free to make “official acts” without fear of possible prosecution while in office. Could that include ordering the assassination of an opponent? Maybe so, Sauer answered.

    How about selling nuclear secrets to a foreign adversary? Again, Sauer said that, too, could be “structured” as an “official act,” which would mean that a president would have to be impeached and convicted by the Senate first.

    “How about if the president orders the military to stage a coup?” Justice Elena Kagan asked. “I think it would depend on the circumstances,” Sauer replied.

    All of which left us with an unsettling dynamic:

    • Trump’s defense counsel concocted an audacious immunity claim, rooted in the idea that a president can commit some of the most outrageous felonies imaginable.

    • Every federal judge who’s ruled on the argument has fundamentally rejected it as ridiculous.

    • Team Trump continues to double down on the claim as if it has merit — and it’s at least possible that an untold number of Supreme Court justices might be willing to rule in the Republican’s favor.

    Most high court observers tended to agree yesterday that the justices will not endorse Trump’s expansive claims to absolute immunity. It’s more likely that the Supreme Court will come up with some kind of new rule related to prosecutions and “official acts,” all of which will send the matter back to the district court and delay the process further.

    And since the entire point of this absurd series of appeals is to run out the clock before Election Day 2024, the justices will be playing their part in effectively immunizing Trump from pre-election accountability for the most serious of the former president’s alleged felonies.

    It was nevertheless against this backdrop that Team Trump once again confronted the “assassination” question, and answered it in a head-spinning way.

    This post updates our related earlier coverage.

    This article was originally published on MSNBC.com



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  • Key takeaways from Supreme Court hearing on whether Trump has presidential immunity that shields him from criminal trials

    Key takeaways from Supreme Court hearing on whether Trump has presidential immunity that shields him from criminal trials

    While former President Donald Trump sat in Manhattan criminal court on Thursday for the seventh day of his hush money trial, the U.S. Supreme Court heard oral arguments regarding another criminal case against him — and whether he is immune from criminal prosecution for actions he took as president.

    The Supreme Court’s decision will determine whether three of his other criminal trials can proceed in Washington, D.C., Florida and Georgia.

    Conservative Justice Neil Gorsuch highlighted the historical significance of the case and what a ruling on presidential immunity means for the future. “We’re writing a rule for the ages,” Gorsuch said during the hearing.

    While the justices seemed poised to rule that Trump doesn’t have blanket immunity, there are ways the high court could rule that could hand Trump a strategic win.

    Trump is asking the high court to decide whether he can claim presidential immunity in special counsel Jack Smith’s federal election subversion case for his alleged role in trying to overturn the 2020 election. Smith’s indictment of Trump in August 2023 includes both official and private acts of the former president.

    Trump has pleaded not guilty to the four felony counts against him and wants the charges thrown out. He argues that he is immune from criminal prosecution because the actions he took were within the scope of his official acts as president.

    Meanwhile, Smith wants the high court to dismiss Trump’s claims of sweeping presidential immunity. Smith argues that Trump’s actions are fair game for criminal prosecution because they were done for personal gain as a candidate to benefit his presidential campaign, rather than a president taking action for the country. “The effective functioning of the presidency does not require that a former president be immune from accountability for these alleged violations of federal criminal law,” Smith wrote in a brief to the high court.

    Smith is also urging the court to prevent the former president from delaying a trial until after the November election.

    Trump’s attorney D. John Sauer argued the former president’s case before the Supreme Court, while attorney Michael Dreeben argued Smith’s case.

    Here are some of the key takeaways from Thursday’s landmark hearing before the Supreme Court.

    Based on the Supreme Court’s questioning, including by the court’s conservatives, the justices suggested that they want to make clear distinctions between official acts, which could entitle Trump to immunity, versus private acts, which likely would not.

    Justice Clarence Thomas kicked off the line of questioning to Trump’s attorney about how the justices would determine what an “official act” is, while Chief Justice John Roberts posed a hypothetical about what happens if a president appoints an ambassador in exchange for a bribe.

    “How do you analyze that?” Roberts asked. Sauer answered that it would be up to “the court’s discretion.”

    Justice Sonia Sotomayor posed another hypothetical, asking: If the president ordered the military to assassinate a rival they view as corrupt, “is that within his official acts for which he can get immunity?”

    Sauer responded that “it would depend on the hypothetical, but we can see that could well be an official act.”

    Sotomayor stressed that in the hypothetical, the president would be doing it for “personal gain.” She pressed Sauer, saying, “Isn’t that the nature of the allegations here? … A president is entitled for total personal gain to use the trappings of his office — that’s what you’re trying to get us to hold — without facing criminal liability.” Trump’s attorney responded that the law does not “turn on the allegedly improper motivation or purpose” of the act.

    In a notable line of questioning from Justice Amy Coney Barrett, she asked Trump’s attorney to agree or disagree with a characterization of private acts. He admitted that several of the claims involved in Smith’s case were private acts.

    “So you concede the private acts don’t get immunity?” Barrett asked. “We do,” Sauer said.

    Sauer’s acknowledgment of this means that Trump’s trial in Smith’s case could go forward, in part.

    Smith proposed a backup for the case, writing in a legal brief, “Even if the court were inclined to recognize some immunity for a former president’s official acts, it should remand for trial because the indictment alleges substantial private conduct in service of petitioner’s private aim.”

    During the hearing, Roberts slammed a lower court’s ruling that rejected Trump’s immunity claim.

    “The court of appeals below, whose decision we’re reviewing, said, ‘A former president can be prosecuted for his official acts because the fact of the prosecution means that the former president has allegedly acted in defiance of the laws,’” Roberts said.

    “It is the clearest statement of the court’s holding, which is why it concerns me. As I read, it says simply: A former president can be prosecuted because he’s being prosecuted.”

    Roberts proposed sending the Trump case back to the court of appeals to define what exactly is an official versus private act. If the Supreme Court punted the case back to the lower court, it would likely delay Trump’s trial until after the November election, which would be a strategic win for Trump. If he is elected to a second term, a Trump-appointed attorney general could withdraw the federal charges.

    The Supreme Court could issue a ruling anytime between Thursday’s hearing and the end of the term in late June or early July.

    Trump’s trial in Smith’s case originally scheduled to start on March 4 is on hold. The presiding judge over the trial said pretrial issues could take up to three months, and the trial itself could take up to 12 weeks, leaving little room for an outcome before the November election.

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  • Why isn’t Trump charged in the new Arizona indictment?

    Why isn’t Trump charged in the new Arizona indictment?

    It’s been another big legal week for Donald Trump. His first criminal trial kicked off in New York, and his Supreme Court immunity hearing just took place in Washington. He also made a legal cameo in Arizona, as an unindicted alleged co-conspirator in a new indictment stemming from efforts to subvert the 2020 presidential election.

    Major figures in Trump world, such as Rudy Giuliani and Mark Meadows, are charged in the state indictment, along with so-called fake electors.

    But why isn’t Trump charged?

    As we know, the former president has been charged over the 2020 election in two of his four criminal cases, in Washington, D.C., and Georgia. He has pleaded not guilty in all of his criminal cases and denied wrongdoing.

    There are multiple possible reasons that Trump isn’t charged in Arizona. (Incredibly, as my MSNBC colleague Steve Benen pointed out, we also just learned that Trump, along with Giuliani and Meadows, is considered an unindicted co-conspirator in Michigan’s “fake elector” case.)

    One thing to keep in mind is that prosecutors aren’t all the same; the ones who brought the Arizona case may simply have a different strategy and view of the alleged plot and attendant proof required than, say, the prosecutors who charged Trump in Georgia. Relatedly, we don’t know exactly what happened in the grand jury and what grand jurors thought of any potential charges against the former president.

    Another thing to keep in mind is that Arizona prosecutors may very well want to charge Trump but chose not to at this time for tactical reasons. Among such possibilities is that they are trying to get existing defendants to “flip” on the former president. Or, given the nearing presidential election, state prosecutors may first want to see whether Trump takes office again, given the possibility that his victory could jam up his prosecution on the state level, even if he couldn’t pardon the case like he could his federal ones.

    Relatedly, the prosecutors may want to see what the Supreme Court says in its forthcoming immunity ruling in the appeal that also stems from 2020-related charges.

    Of course, this thought exercise assumes a good reason for Trump’s escaping charges in the Arizona indictment. If Trump’s political ascendancy has taught us nothing else, it’s that there may not be logic to find behind every corner. But we may learn more in the fullness of time.

    Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.

    This article was originally published on MSNBC.com

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  • After Supreme Court hearing, don’t bank on a Trump Jan. 6 trial before the election

    After Supreme Court hearing, don’t bank on a Trump Jan. 6 trial before the election

    Even before Thursday’s immunity hearing, the Supreme Court had already given Donald Trump a win of sorts. The court had decided to hear the appeal when it didn’t have to and then scheduled the hearing on the very last argument day of the term.

    So a question heading into the argument was whether there’d be any indication of the justices coalescing around a unanimous theory that might lend itself to a speedy ruling, such that a pre-election trial might be possible. But after the lengthy hearing, it’s difficult to see the justices coming together quickly — to say nothing of what, precisely, that resolution would look like.

    Part of the problem stemmed from the fact that some justices (mainly Democratic appointees) sounded more concerned about the possibility of presidents committing crimes with impunity, while other justices (mainly Republican appointees) sounded more concerned about presidents being held accountable for committing crimes.

    Justice Elena Kagan, for example, asked Trump lawyer John Sauer if a president would have immunity for staging a coup with the military. Amazingly, Sauer said it would depend on the circumstances. The former president’s lawyer said it could fall within the realm of “official acts,” which Trump argues are off-limits for prosecutors. The specific issue that the Supreme Court decided to review back in February is: whether a former president enjoys immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office, and if so, to what extent.

    It was Justice Sonia Sotomayor who raised the infamous hypothetical from the appeals court argument of a president ordering the murder of a political opponent. Sauer said that one could be off-limits, too. Justice Ketanji Brown Jackson asked why presidents are special, given that many people have hard jobs but are still bound by the law. She worried about presidents turning their tenures into crime sprees if they know ahead of time that they’ll be immune from prosecution.

    On the other side of the ledger, we had the likes of Justice Samuel Alito — not normally a champion of criminal defendants’ rights — who sounded deeply concerned that a president could face accountability for their actions after they leave office. He worried that making a “mistake” could subject them to criminal prosecution, just like everybody else. The Justice Department’s lawyer, Michael Dreeben, responded with the simple observation that “making a mistake is not what lands you in a criminal prosecution.”

    Justice Brett Kavanaugh also raised broad concerns about protecting presidential power, while Justice Neil Gorsuch said that he wasn’t as concerned with Trump’s case as he was with future cases. That concern is in line with the way that the justices theoretically view all their cases: Supposedly, they’re ruling on principles, not parties.

    But the fact that the court chose Trump’s case to announce whatever immunity principle is already functionally a win for the former president. Indeed, the federal election interference case in which he launched his pretrial immunity appeal was supposed to start trial in early March but has been on hold pending the immunity ruling. It could have even reached a verdict by now, but instead his New York state criminal trial was first to get underway.

    Even if the forthcoming ruling doesn’t help Trump avoid prosecution in theory (because at least some of the allegations against him don’t stem from such official acts), it could still help him in practice. There could be further litigation required in the trial court and/or the appeals court over how the Supreme Court’s forthcoming ruling applies to his case. But even if no further litigation is required, every day that goes by between now and the ruling coming down is another win for Trump. If he wins the November election, the indictment that alleges his illegal attempt to overthrow his 2020 election loss is as good as gone. He has pleaded not guilty.

    As to the timing of the ruling — it being the final argument of the term — the justices now have to decide a stack of already-argued cases (plus whatever emergency litigation may come up). There are many important appeals left to decide on abortion, guns and much more. Any separate opinions from justices could lengthen the drafting process, as could the time it would take to harmonize any disagreement into a unanimous opinion. The justices typically issue the last of the term’s rulings by late June. If they prioritize deciding Trump’s case in the same way that they prioritized the scheduling of his argument, then we may not have the immunity ruling for another couple of months. Whatever opinion comes down at that point might not matter for Trump’s case — if he wins the election.

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    This article was originally published on MSNBC.com

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  • U.S. Supreme Court floats return to trial court for Trump in presidential immunity case

    U.S. Supreme Court floats return to trial court for Trump in presidential immunity case

    Dozens of anti-Trump protesters gathered outside the U.S. Supreme Court on April 25, 2024, while the justices heard arguments about whether former President Donald Trump has immunity from prosecution on criminal charges related to his actions while in office. (Photo by Jane Norman/States Newsroom)

    WASHINGTON — The U.S. Supreme Court appeared skeptical Thursday of former President Donald Trump’s argument he is immune from criminal charges that he tried to overturn his loss in the 2020 election.

    But conservatives who dominate the court appeared open to returning key questions to a trial court, possibly delaying Trump’s prosecution beyond the November election — and essentially assisting the former president as he fights legal challenges on multiple fronts.

    Trump, the presumptive Republican nominee for president, has argued in a federal trial court and in the U.S. Court of Appeals for the District of Columbia that his actions following the 2020 election and leading up to the violent Jan. 6, 2021 attack on the U.S. Capitol, were “official acts” conducted while still in office and therefore are not subject to criminal prosecution.

    While court precedent establishes that U.S. presidents are immune to civil damages for their official acts, and to criminal prosecution while in office, the justices now must decide the unanswered question of whether former presidents are absolutely immune from criminal law.

    At oral arguments Thursday in Trump v. United States, much of the discussion centered on what should be considered an official presidential act.

    Trump’s lawyer, D. John Sauer, of St. Louis, argued that nearly everything a president does in office — including hypotheticals about ordering a military coup or assassinating a political rival — could be considered official acts.

    While much of the court appeared skeptical of that broad view of official acts, several justices on the conservative wing asked about having the trial court determine what acts should be considered official. They also suggested prosecutors could drop sections of the four-count indictment against Trump that dealt with official acts.

    The court’s three liberal justices voiced serious concerns about Trump’s immunity argument, with Justice Ketanji Brown Jackson wondering aloud if the court accepting a broad view of criminal immunity for the president would make the Oval Office “the seat of criminal activity.”

    The case is one of four in state and federal courts in which criminal charges have been made against Trump. On Thursday, he was in a New York state courtroom where he faces charges in an ongoing hush-money trial; the judge there did not allow him to attend the Supreme Court arguments.

    Trial court determination

    Conservative justices asked if they could avoid the constitutional question by having the trial court, presided over by U.S. District Judge Tanya Chutkan, determine which parts of the allegations could be considered official or unofficial acts.

    Special counsel Jack Smith and his team of prosecutors have indicated that prosecuting only Trump’s private conduct would be sufficient, Justice Amy Coney Barrett said.

    “The normal process, what Mr. Sauer asked, would be for us to remand if we decided that there were some official acts immunity, and to let that be sorted out below,” Barrett said, referring to a process in which a case is sent back to a lower court. “It is another option for the special counsel to just proceed based on the private conduct and drop the official conduct.”

    ‘Absolute immunity’

    Sauer argued, as he has for months, for “absolute immunity” from criminal prosecution for presidents acting in their official capacity.

    No president who has not been impeached and removed from office can be prosecuted for official actions, Sauer said, broadly interpreting the meaning of official acts.

    Liberal justices questioned Sauer about how far his definition of official acts would stretch. Trump’s attorney was reluctant to list any exceptions.

    Justice Sonia Sotomayor asked a hypothetical that arose in a lower court: Would it be an official act for the president to order the assassination of a political rival?

    “That could well be an official act,” Sauer answered.

    He also answered Justice Elena Kagan that it could be an official act for a president to order a military coup, though Sauer said “it would depend on the circumstances.”

    Michael R. Dreeben, representing the U.S. Department of Justice, argued that Trump’s broad view of presidential immunity would break a fundamental element of U.S. democracy, that no one is above the law.

    “His novel theory would immunize former presidents for criminal liability for bribery, treason, sedition, murder, and here, conspiring to use fraud to overturn the results of an election and perpetuate himself in power,” Dreeben said.

    Jackson, questioning Sauer, appeared to agree with that argument.

    She said Sauer appeared worried that the president would be “chilled” by potential criminal prosecution, but she said there would be “a really significant opposite problem if the president wasn’t chilled.”

    “Once we say, ‘No criminal liability, Mr. President, you can do whatever you want,’ I’m worried that we would have a worse problem than the problem of the president feeling constrained to follow the law while he’s in office,” Jackson said.

    ‘A special, peculiarly precarious position’

    But other members of the court appeared more amenable to Sauer’s argument that subjecting presidents to criminal prosecution would constrain them.

    Justice Samuel Alito, one of the court’s conservatives, asked Dreeben about Trump’s argument that a president’s duties require a broad view of immunity.

    The president has to make difficult decisions, sometimes in areas of law that are unsettled, Alito said.

    “I understand you to say, ‘If he makes a mistake, he makes a mistake, he’s subject to the criminal laws just like anybody else,’” Alito said. “You don’t think he’s in a special, peculiarly precarious position?”

    Dreeben answered that the president has access to highly qualified legal advice and that making a mistake is not what generally leads to criminal prosecution.

    He also noted that the allegations against Trump involve him going beyond his powers as president to interfere with the certification of an election, which is not a presidential power in the Constitution.

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  • Supreme Court tackles Trump’s broad claim of presidential immunity in election interference case

    Supreme Court tackles Trump’s broad claim of presidential immunity in election interference case

    WASHINGTON — Tackling an unprecedented and politically fraught issue, the Supreme Court on Thursday considers former President Donald Trump’s assertion of total immunity from criminal charges over his attempt to overturn the 2020 election results.

    The court will take on the novel legal question of whether a former president can be prosecuted for what Trump’s attorneys say were “official acts” taken in office, though much of the focus remains on whether the justices will rule quickly so a trial could take place before the November election.

    With most legal experts questioning Trump’s broad argument that the entire election interference indictment should be dismissed based on immunity, the court’s eventual ruling on the extent to which official acts are protected and how quickly it rules will be of equal importance.

    The case puts considerable scrutiny on the court, which has a 6-3 conservative majority that includes three justices Trump appointed. The court already handed Trump an election-year boost when it ruled last month that Colorado could not kick him off the ballot.

    The justices have also come under criticism for their delay in taking up Trump’s appeal, which some view in itself as a victory for him.

    The Supreme Court announced Feb. 28 that it would hear the case, saying it would examine “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 decision immediately put the prospect of a pre-election trial in jeopardy.

    A federal appeals court had ruled Feb. 6 that Trump was not immune from prosecution, writing that “former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” and that while executive privilege may have protected him during his presidency, it no longer protected him against prosecution.

    “It would be a striking paradox if the President, who alone is vested with the constitutional duty to ‘take Care that the Laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity,” the federal appeals court ruled.

    Under the original schedule laid out by U.S. District Judge Tanya Chutkan, Trump’s trial had been set to begin March 4, and the jury might have even reached a verdict by this point. Instead, the first of the four criminal cases against Trump to go to trial was the prosecution brought by Manhattan District Attorney Alvin Bragg in New York, where Trump was indicted on 34 counts of falsifying business records tied to a hush money payment in the lead-up to the 2016 election. He has pleaded not guilty to all charges.

    The federal indictment returned by a grand jury in Washington, D.C., in August consisted of four counts: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights. The Supreme Court has already heard arguments in another Jan. 6 case that could affect two of the charges against Trump involving obstruction of an official proceeding.

    Trump, according to the indictment, conspired to “overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the government function by which those results are collected, counted and certified.”

    The indictment focuses on Trump’s involvement in a scheme to submit fake election certificates to Congress in the hope that they would nullify President Joe Biden’s victory. The chain of events culminated in the riot at the U.S. Capitol on Jan. 6, 2021.

    Federal prosecutors led by special counsel Jack Smith say Trump’s actions constituted a series of crimes. Trump says he was merely expressing his concerns, which were not based on any evidence, that the election was plagued with fraud. He has pleaded not guilty to the federal charges.

    While numerous Jan. 6 defendants have acknowledged that they were duped and manipulated or that they lacked the critical thinking skills to recognize the lies about the 2020 election for what they were, Trump and his lawyers have insisted that he sincerely believed the election was stolen.

    Smith, meanwhile, has argued in court papers that Trump has no immunity and that the case should go to trial immediately — whether or not his conduct at the time involved official acts.

    Trump’s lawyers cite, among other things, a 1982 Supreme Court ruling that said presidents are immune from civil suits when the alleged conduct falls within the “outer perimeter” of their official duties. That case has never been applied in the criminal context.

    A key issue, as yet unresolved, is whether any of Trump’s actions mentioned in the indictment were official acts. Even if some conduct is off-limits, it would not necessarily mean that any charges are dismissed.

    Smith’s team previously estimated it would need “no longer than four to six weeks” to present its case to a jury; potential jurors were told the trial “may last approximately three months after jury selection is completed.” At the time the case was put on hold in December, when the federal appeals court agreed to take it up, 88 days were left in the trial preparation schedule.

    That timeline — nearly three more months of trial prep before jury selection begins — makes a verdict before Election Day unlikely, although Chutkan has indicated that the case would proceed like any other criminal prosecution and that Trump’s campaign schedule would not have an impact on the court.

    The Supreme Court has various options in deciding the case, with both sides accepting that the ruling might not completely resolve the immunity issue. One scenario is that the justices could reject Trump’s broadest arguments while remanding the case back to Chutkan to resolve whether any of the conduct in question involved official acts. Such an outcome could further delay a trial.

    This article was originally published on NBCNews.com

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  • US supreme court eyes returning Trump immunity claim to lower court after arguments

    US supreme court eyes returning Trump immunity claim to lower court after arguments

    The US supreme court on Thursday expressed interest in returning Donald Trump’s criminal case over his efforts to overturn the 2020 election back to a lower court to decide whether certain parts of the indictment were “official acts” that were protected by presidential immunity.

    During oral arguments, the justices appeared unlikely to grant Trump’s request for absolute immunity from criminal prosecution, with both Trump’s lawyer and the justice department’s lawyer agreeing there were certain private acts that presidents would have no protection for.

    Related: Liz Cheney urges US supreme court to rule quickly on Trump’s immunity claim

    But the chief justice, John Roberts, and the conservative justices suggested that presidents should have some level of immunity and would favor the presiding trial judge in the case deciding whether any acts in the indictment were official and should be expunged.

    The subsequent questions explored how to decide what actions were official and what actions were purely private, potentially to develop a test for a lower court to apply to the indictment, and whether a test should consider Trump’s motives or purely objective facts.

    If the supreme court remands the matter back to the presiding US district court judge Tanya Chutkan, it would almost certainly inject new delay into the case that could preclude it from going to trial before the November election .

    Such an outcome would itself be a win for Trump, whose overarching legal strategy against the cases brought by the special counsel Jack Smith has been to seek delay. If he prevails in the election, he could appoint as the attorney general a loyalist who would drop the charges against him.

    The outcome of a remand would also give Trump a material legal win, as it would pave the way for some parts of the indictment to be expunged. Excising some of the conduct as alleged in the indictment could reduce his criminal exposure and undercut the remaining charges.

    The supreme court’s conservative justices appeared to have concluded during the argument that there must be some immunity because some “core functions” of the presidency – issuing pardons, veto power – cannot be regulated by Congress and so criminal statutes cannot apply.

    Related: The Supermajority review: How the supreme court trumped America

    Michael Dreeben, arguing on behalf of the special counsel’s office, conceded that those “core functions” could not be prosecuted. Justice Neil Gorsuch declared that meant there was some immunity.

    That opened the door for the other conservative justices to abruptly question – beyond what the supreme court was expected to consider with Trump’s immunity claim – the scope and viability of the charges included in Trump’s indictment.

    Justices Samuel Alito and Brett Kavanaugh suggested they found the fraud conspiracy statute used against Trump overly vague and broad. They suggested that zealous prosecutors could use vague statutes to wantonly prosecute presidents after they left office if there were not some immunity.

    Dreeben disputed that hypothetical, responding that the checks built into the judicial system would prevent such vindictive prosecution. Alito was unimpressed by Dreeben’s argument, referencing the adage that a grand jury could indict a ham sandwich.

    When Dreeben said prosecutors don’t indict people who don’t deserve it, Alito was dismissive: “Every once in a while there’s an eclipse too.”

    Alito further suggested that not granting presidents some level of immunity for official acts might even present a risk to stable democracy, if presidents who lost an election faced the threat of prosecution.

    That suggestion was particularly startling and underscored Alito’s deference to Trump’s argument, as it was the direct opposite situation of the Trump indictment, in which Trump is accused of endangering democracy by using the powers of the presidency to remain in power after he lost.

    While conservative justices Roberts, Gorsuch, Kavanaugh, Alito and Amy Coney Barrett at various points leaned towards a remand, the Democrat-appointed justices were scathing of their colleagues’ position to offer presidential immunity at all.

    Justice Ketanji Brown Jackson told Trump’s lawyer John Sauer that she was deeply concerned that granting immunity would embolden future presidents to commit crimes and use their office as a shield.

    “I’m trying to understand what the disincentive is of turning the Oval Office into the seat of criminality,” Jackson said.

    “Once we say ‘no criminal liability, Mr President. You can do whatever you want,’ I’m worried we would have a worse problem than the problem of the president feeling constrained to follow the law while he’s in office,” Jackson said of the concern that presidents could be hounded once out of office.

    The argument from Alito that the prospect of a criminal trial would chill presidents from peacefully leaving office at the end of their term was also met with derision from Justice Sonya Sotomayor. “A stable democratic society,” she said, “needs the good faith of its public officials.”

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  • In Immunity Case, Trump Can Lose in Ways That Amount to a Win

    In Immunity Case, Trump Can Lose in Ways That Amount to a Win

    WASHINGTON — Most legal experts say that former President Donald Trump will face deep skepticism at the Supreme Court on Thursday, when the justices will hear arguments on his claim that he is absolutely immune from prosecution on charges of plotting to subvert the 2020 election.

    Trump would prefer to win, of course. But there are, from his perspective, at least two attractive ways to lose.

    One involves the timing of the court’s decision, which has received substantial attention given the relatively leisurely pace it has set for itself in the case. Even if Trump eventually and categorically loses, each passing week makes it more challenging for Jack Smith, the special counsel in the case, to complete the trial before the election.

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    The other, which has received less consideration but is no less important, is the possibility that the court’s ruling, even if issued promptly, will inject additional legal complications into the case that will take time to sort out.

    The indictment accuses Trump of an array of misconduct, including organizing fake slates of electors; pressuring state officials, the Justice Department and Vice President Mike Pence to help alter the results of the election; and directing supporters to the Capitol on Jan. 6, 2021.

    The Supreme Court is unlikely to embrace the broadest version of Trump’s argument: that all of this was official conduct that cannot be the subject of a criminal prosecution. But the case is complicated enough that the justices may not issue a definitive ruling.

    That is what happened in 2020, when another case involving Trump reached the justices just months before a presidential election. The question was similar to the one the court will consider on Thursday: whether Trump was entitled to a form of absolute presidential immunity allowing him to block prosecutors from obtaining his tax records.

    In July 2020, Trump lost the case. But the loss was a kind of victory. The court sent the case back to the lower courts for more analysis, running out the clock.

    In a concurring opinion, two of Trump’s appointees — Justice Brett Kavanaugh, joined by Justice Neil Gorsuch — summarized the court’s mixed message this way: “The court today unanimously concludes that a president does not possess absolute immunity from a state criminal subpoena, but also unanimously agrees that this case should be remanded to the district court, where the president may raise constitutional and legal objections to the subpoena as appropriate.”

    That turned out to be a good way to lose. The case kicked around for more than six months before returning to the Supreme Court in February 2021, when the justices issued a final ruling against Trump — months after the election.

    In the case it will hear Thursday, the Supreme Court could easily follow that approach, ruling against Trump but ordering lower courts to address other issues. Indeed, if the court is inclined to let judicial history repeat itself, the sentence from Kavanaugh’s 2020 concurrence would need only a very light edit.

    Norman Eisen, who served as special counsel to the House Judiciary Committee during Trump’s first impeachment, described what such a decision might say: “Of course there’s no absolute immunity. But here’s the test for the kind of immunity there is. And we are remanding for further proceedings consistent with this opinion.”

    That outcome, Eisen said, “is a good loss for Trump, because that then gives him a vehicle to attempt to achieve more delay.”

    The Supreme Court issued its decision in the 2020 immunity case on the last day of its term, July 9, about two months after it heard arguments. If the court follows a similar timeline in the new case, its decision would land in late June.

    When Judge Tanya S. Chutkan suspended pretrial proceedings as appeals on the immunity question moved forward, her schedule contemplated that the parties would need some three months to prepare once the case returned to her court. That would suggest a trial date around Oct. 1, with the trial itself extending past the election and perhaps into 2025.

    That timeline, though, assumes the Supreme Court will hand Trump a straightforward loss.

    But there are reasons to think the court may be poised to issue a ruling that makes matters more complicated. Consider the question the court agreed to decide: “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.”

    Packed into that sentence are at least two potential distinctions: “to what extent” immunity may be available and whether the conduct in question is official or not. It is entirely conceivable that the Supreme Court’s ruling will instruct lower courts to do more work in analyzing those questions.

    “If the court orders additional proceedings in the district court, holding trial before the election will become virtually impossible,” said a brief supporting Smith from Common Cause, a watchdog group.

    But such a decision is well within the realm of possibility. It could have one or both of two main elements.

    The court could reject absolute immunity but grant Trump a more limited form of protection like the qualified immunity that can apply to other government officials. If it does that, it could also well leave it to lower courts to sort out the contours of what that means.

    Smith acknowledged that possibility but said it should not get in the way of a prompt trial. “Even if this court holds that a former president is entitled to some immunity from criminal prosecution for official acts,” he wrote, “that principle does not preclude trial on this indictment.”

    The second distinction is that the justices could order lower courts to explore whether Trump’s conduct was part of his official duties.

    In Nixon v. Fitzgerald in 1982, the Supreme Court ruled that former President Richard Nixon could not be sued by an Air Force analyst who said he was fired in 1970 in retaliation for his criticism of cost overruns.

    “In view of the special nature of the president’s constitutional office and functions,” Justice Lewis F. Powell Jr. wrote for the majority in the 5-4 ruling, “we think it appropriate to recognize absolute presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.”

    Smith argues that the precedent, arising from a lawsuit seeking money, does not apply to criminal cases. But he does not dispute that significant parts of his prosecution are based on conduct that might well satisfy the Fitzgerald standard if it applied.

    Indeed, his main argument is that “a former president lacks absolute immunity from federal criminal prosecution for conduct involving his official acts.”

    The Supreme Court could reject that argument and adopt a backup proposed by Smith: “Even if the court were inclined to recognize some immunity for a former president’s official acts,” he wrote, “it should remand for trial because the indictment alleges substantial private conduct in service of petitioner’s private aim.”

    That would require Chutkan to make fine distinctions in evidentiary rulings and jury instructions between official and unofficial conduct. Smith said such rulings should not be subject to immediate appeal, as immunity rulings generally are. Trump “can seek appellate review, if necessary, after final judgment,” Smith wrote.

    But history suggests that Trump would try.

    After his Supreme Court loss in 2020, Trump argued in lower courts that the subpoena at issue was overly broad and amounted to political harassment. After those arguments were rejected by a trial judge and the federal appeals court in New York, Trump returned to the Supreme Court, which rejected his application for emergency relief without comment.

    New York prosecutors finally obtained the documents in February 2021, and information from them became part of the investigation that culminated in the hush-money case underway in Manhattan — almost four years after the Supreme Court ruled.

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  • ‘A president has to have immunity’

    ‘A president has to have immunity’

    Former President Donald Trump on Thursday criticized the judge in his ongoing hush-money trial while arguing for presidential immunity during an early morning visit to a New York construction site.

    “We have a big case today but the judge isn’t allowing me to go. We have a big case today in the Supreme Court on presidential immunity,” Trump told reporters. “A president has to have immunity, otherwise you just have a ceremonial president.”

    Trump made his comments at a drop-by visit at a midtown Manhattan construction site ahead of his court appearance on Thursday and the Supreme Court’s hearing in Washington on presidential immunity.

    The Supreme Court’s ruling, in that case, could determine whether or not a former president is immune from prosecution for his official actions while president, and the ruling could impact whether or not Trump goes to trial before voters head to the polls in November on charges he tried to subvert the 2020 election.

    At the construction site for the new J.P. Morgan headquarters in midtown, a crowd of Teamsters and union workers chanted “we want Trump!” as the former president shook hands and signed red MAGA caps.

    “We built a lot of great buildings in this city with these people,” Trump, a former real estate developer, said. “They’re very talented people, very few people can do what they do. We used to do three floors a week in concrete.”

    Trump said he had built “a lot of buildings with Teamsters.” The Teamsters have not yet endorsed either President Joe Biden or Trump, and plan to endorse after the conventions this summer. Meanwhile yesterday Biden landed a major endorsement from North America’s Building Trades Unions.

    Trump’s ongoing criminal trial has kept the former president in New York for much of the week while he attends the proceedings. But Trump has also continued to hold events throughout the city when court isn’t in session, including visiting a bodega in Harlem last week where he laced into the judge overseeing his trial and Manhattan District Attorney Alvin Bragg, who is prosecuting him.

    Trump is under a gag order that prohibits him from criticizing witnesses, jurors or others involved in his New York case — including Justice Juan Merchan, who is presiding over the case. Prosecutors argued that Trump violated the gag order 10 times and Merchan held a contempt hearing this week on the issue.

    “They’ve taken my constitutional right away with a gag order. That’s all it is. It’s election interference,” Trump told reporters Thursday morning.

    Trump also used the stop to campaign, telling the New York crowd — who broke out into chants of “Trump, Trump, Trump,” and “U.S.A., U.S.A.” — “We’re way ahead in the polls against Biden.” Trump claimed that he will be “making a play for New York — we have a good chance of winning.” Trump lost by over 20 points to Biden in New York in 2020.

    Trump next week is also scheduled to travel to Wisconsin and Michigan on Wednesday, a day when his criminal case isn’t regularly in session. Last week, he was set to hold a rally in North Carolina but canceled the event due to weather.

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  • Clarence Thomas set to weigh Trump’s immunity claim despite recusal calls over Jan. 6

    Clarence Thomas set to weigh Trump’s immunity claim despite recusal calls over Jan. 6

    Many things about Donald Trump’s Supreme Court immunity appeal are incredible (in a bad way).

    There’s the alleged scheme that prompted the election subversion charges at issue. There’s the former president’s equally subversive bid to avoid those charges. There’s the high court’s leisurely scheduling of the appeal, which could function as its own form of immunity by preventing a pre-election trial.

    The list goes on.

    But when the justices take the bench Thursday morning for their last scheduled hearing of the term, another incredible (in a bad way) feature of the case will be impossible to ignore: Clarence Thomas’ participation.

    The GOP appointee has ignored calls to recuse himself from Jan. 6-related cases, even though his wife, Ginni, backed efforts to overturn Trump’s 2020 election loss. Notably, Thomas did recuse himself from a rejected petition by MAGA lawyer John Eastman at the beginning of the term in October, though he didn’t explain his rationale for doing so. I have made the modest suggestion that he should at least explain his non-recusal in these matters, but the justice has not taken me up on that idea.

    Indeed, we saw quite recently that Thomas has no intention of sitting out these cases. At last week’s hearing in another Jan. 6 appeal, he pressed the federal government on its prosecutions of rioters, suggesting that they’re unfair. Given his personal connection to the insurrection and its aftermath, Thomas’ involvement in Trump’s immunity appeal is even further troubling, due partly to the presently unknown behind-the-scenes moves that led the court to take up the appeal at all back in February and then not hear it argued sooner. The case has been on hold pending the high court’s review.

    Trump has pleaded not guilty to the federal election interference charges at issue in Thursday’s hearing, just as he has done in his three other criminal cases. His New York criminal trial, the first ever against a former U.S. president, is set to continue Thursday as the immunity hearing unfolds in Washington.

    There are many unknowns heading into the hearing. Among them are how exactly the justices will rule and, with the looming election whose result could lead to a President Trump crushing this very case, the likewise crucial question of when they’ll rule.

    What’s clear is that Thomas’ participation casts an even shadier light over the dispute that’s already far from the court’s greatest moment, no matter how flowery an ode to the rule of law it crafts in Trump v. United States.

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    This article was originally published on MSNBC.com

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  • Explainer-How Trump’s immunity claim stalled 2020 election subversion case

    Explainer-How Trump’s immunity claim stalled 2020 election subversion case

    By Andrew Goudsward

    WASHINGTON (Reuters) – The U.S. Supreme Court hears arguments on Thursday on Donald Trump’s claim that he enjoys sweeping immunity from criminal prosecution for actions he took as president, a claim that has delayed by months a case accusing him of trying to overturn his 2020 defeat.

    Here is a look at why Trump’s claims have delayed a trial and what is likely to happen next:

    WHY HAS THE IMMUNITY APPEAL DELAYED THE ELECTION SUBVERSION CASE?

    The federal case brought by Special Counsel Jack Smith charging Trump with trying to overturn his election defeat — one of four criminal cases the Republican presidential candidate faces — has been paused since December while the immunity argument plays out.

    Criminal defendants are not usually able to appeal court rulings until after a trial if they are convicted, but Trump was able to file an immediate appeal because the immunity argument bears on whether he must even face a trial.

    U.S. District Judge Tanya Chutkan, who is overseeing the case, granted Trump’s request for a pause while his appeal plays out, and prosecutors acknowledged the issue would need to be resolved before Trump can face a jury.

    The March 4 trial initially scheduled in the case was postponed; no new date has been set.

    WHY IS TRUMP SEEKING DELAY?

    If Trump wins the Nov. 5 election, he could order the U.S. Justice Department to drop its election subversion case, and another case involving his mishandling of classified documents after leaving the White House. He could also try to use his powers as president to pardon himself of any federal crimes.

    Delaying the trial until after the election would also prevent voters from hearing potentially damaging testimony about Trump’s refusal to accept his defeat in 2020 and his attempts to hold on to power.

    HOW MIGHT THE SUPREME COURT RULE?

    If a majority of the Supreme Court, whose 6-3 conservative majority includes three Trump appointees, agrees with Trump’s claim, it could decide to dismiss the case in its entirety.

    The justices could also adopt the position of lower courts and find that Trump has no immunity from the charges, setting the stage for a trial.

    A third option would recognize that presidents may be protected from prosecution in some circumstances and direct the trial court to determine whether that immunity applies to the allegations against Trump.

    That outcome could prompt further delays as the trial judge decides whether parts of the prosecution’s case will need to be tossed out.

    WHAT HAPPENS AFTER THE COURT RULES?

    The court is expected to release its decision by June and if it does not order the case dismissed, the prosecution would resume.

    Chutkan, the judge, has signaled that Trump’s legal team will likely have about three months to prepare his defense after that, which could leave Chutkan to decide whether to schedule a trial beginning in September or even October — when early voting will be underway in some states.

    Trump’s lawyers are likely to argue that trying the case at the peak of the presidential campaign would amount to election interference.

    Prosecutors have argued the public has a right to a speedy trial.

    The Supreme Court could throw another wrinkle into the case with its ruling on a separate case on whether a federal obstruction law applies to participants in the Jan. 6, 2021, attack on the U.S. Capitol. Two of the counts against Trump relate to that law and Trump’s role in the riot.

    Prosecutors have argued that the charges against Trump could survive even a narrower interpretation of the law, but it will be up to the judge to decide what impact the Supreme Court’s opinion will have on Trump’s case.

    COULD THE IMMUNITY RULING AFFECT OTHER CRIMINAL CASES AGAINST TRUMP?

    Trump has made presidential immunity claims in two other criminal cases, a state prosecution accusing him of attempting to overturn the election results in Georgia and the federal case over mishandling classified documents.

    A ruling that Trump is entitled to some legal protection for official actions could complicate those cases. Prosecutors have called Trump’s immunity argument in the classified documents case frivolous, noting that the charges relate to Trump’s conduct after he left the White House in 2021.

    An opinion denying Trump’s immunity claim would remove a significant hurdle for prosecutors in both cases, blunting Trump’s attempts at further delaying the trials.

    The ruling would not affect the ongoing criminal trial in New York over hush money payments to a porn star, which does not involve official actions Trump took as president.

    (Reporting by Andrew Goudsward; Editing by Scott Malone and Jonathan Oatis)

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  • US Supreme Court weighs Trump’s bid for immunity from prosecution

    US Supreme Court weighs Trump’s bid for immunity from prosecution

    By John Kruzel and Andrew Chung

    WASHINGTON (Reuters) – The U.S. Supreme Court on Thursday confronts a major test of the power of the presidency in arguments over Donald Trump‘s bid for immunity from prosecution for his efforts to overturn his 2020 election defeat.

    The justices at 10 a.m. EDT (1400 GMT) will hear Trump’s appeal after lower courts rejected his request to be shielded from four election-related criminal charges on the grounds that he was serving as president when he took the actions that led to the indictment obtained by Special Counsel Jack Smith.

    Trump, the Republican candidate challenging Democratic President Joe Biden in the Nov. 5 election, is the first former U.S. president to be criminally prosecuted.

    Trump has pleaded not guilty in this case and in three other criminal cases he faces, including an ongoing trial on New York state charges related to hush money paid to a porn star shortly before the 2016 U.S. election that put him in the White House. Trump will not be attending the Supreme Court arguments because he will be in a Manhattan courtroom in that case.

    The Supreme Court’s 6-3 conservative majority includes three justices who Trump appointed: Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch.

    The court already this year has handed Trump one major victory as he runs to regain the presidency. On March 4, it overturned a judicial decision that had excluded him from Colorado’s ballot under a constitutional provision involving insurrection for inciting and supporting the Jan. 6, 2021, attack on the U.S. Capitol by his supporters.

    Not since its landmark Bush v. Gore decision, which handed the disputed 2000 U.S. election to Republican George W. Bush over Democrat Al Gore, has the court played such an integral role in a presidential race.

    Trump took numerous steps to try to reverse his 2020 loss to Biden. His false claims of widespread voting fraud helped inspire the attack on the Capitol on the day Congress met to certify Biden’s victory. Trump and his allies also devised a plan to use false electors from key states to thwart certification.

    The August 2023 indictment described Trump as “determined to remain in power” despite his election loss. Trump was charged with conspiring to defraud the United States, corruptly obstructing an official proceeding and conspiring to do so, and conspiring against the right of Americans to vote.

    ‘ABSOLUTE IMMUNITY’

    Trump’s lawyers told the justices in a filing that a former president has “absolute immunity from criminal prosecution for his official acts.” Without such immunity, they said, “the threat of future prosecution and imprisonment would become a political cudgel to influence the most sensitive and controversial presidential decisions.”

    Smith in a filing urged the justices to reject Trump’s bid for immunity from prosecution on the principle that “no person is above the law.”

    Trump in October 2023 sought to have the charges dismissed based on his claim of immunity. U.S. District Judge Tanya Chutkan rejected that claim in December. Smith then asked the justices to launch a fast-track review of the immunity claim, a request they rebuffed. The U.S. Court of Appeals for the District of Columbia Circuit in February ruled 3-0 against Trump’s appeal of Chutkan’s ruling.

    The Supreme Court’s decision to put off hearing arguments over immunity until this month postponed Trump’s trial, which had been scheduled to start in March. Legal experts have said the justices would need to rule by about June 1 for Trump’s trial to be held before the election.

    A ruling is expected no later than the end of June, which could force Chutkan to decide whether to begin a trial in September or October, when early voting already will be underway in some states.

    If Trump regains the presidency, he could seek to force an end to the prosecution or potentially pardon himself for any federal crimes.

    Trump also faces election subversion charges in state court in Georgia and federal charges in Florida brought by Smith relating to keeping classified documents after leaving office.

    (Reporting by John Kruzel and Andrew Chung; Editing by Will Dunham and Scott Malone)

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  • Biden blames Trump for Florida’s 6-week abortion ban, says women nationwide face health crisis

    Biden blames Trump for Florida’s 6-week abortion ban, says women nationwide face health crisis

    TAMPA, Fla. (AP) — President Joe Biden on Tuesday blamed Donald Trump for Florida’s upcoming abortion ban and other restrictions across the country that have imperiled access to care for pregnant women, arguing Trump has created a “healthcare crisis for women all over this country.”

    Biden’s campaign events at Hillsborough Community College in Tampa placed the president in the epicenter of the latest battle over abortion restrictions. The state’s six-week abortion ban is poised to go into effect May 1 at the same time that Florida voters are gearing up for a ballot measure that would enshrine abortion rights in the state’s constitution.

    Biden said that millions of women are facing “pain and cruelty.” “But it’s not inevitable. We can stop it. When you vote, we can stop it.”

    The president is seeking to capitalize on the unceasing momentum against abortion restrictions nationwide to not only buoy his reelection bid in battleground states he won in 2020, but also to go on the offensive against Trump in states that the presumptive Republican nominee won four years ago. One of those states is Florida, where Biden lost to Trump by 3.3 percentage points.

    On Tuesday, he chronicled increasing medical concerns for women in the two years since the Supreme Court ended federal abortion protections.

    “There was one person who was responsible for this nightmare,” Biden said. “And he’s acknowledged it and he brags about it — Donald Trump.”

    Biden said Trump, who has publicly waffled on his abortion views, and of late has said abortion is a matter for states to decide, is concerned voters will now hold him accountable.

    “Folks, the bad news for Trump is that we are going to hold him accountable,” Biden said.

    At the same time, advocates on the ground say support for abortion access cuts across parties. They’re intent on making the issue as nonpartisan as possible as they work to scrounge up at least 60% support from voters for the ballot initiative.

    That could mean in some cases, Florida voters would split their tickets, backing GOP candidates while supporting the abortion measure.

    “I think that normal people are aware that a candidate campaign is really different than a ballot initiative,” said Lauren Brenzel, campaign director for Floridians Protecting Freedom, which gathered signatures to put the abortion question before voters. “You can vote for your preferred candidate of any political party and still not agree with them on every single issue.”

    Brenzel continued, “This gives voters an opportunity to have their message heard on one policy platform.”

    On the same day the Florida Supreme Court ruled that the ballot measure could go before voters, it also upheld the state’s 15-week abortion ban. That subsequently cleared the way for the new ban on the procedure after six weeks of pregnancy, which is often before women know they are pregnant, to go into effect next week.

    Organizers of the abortion ballot measure say they collected nearly 1.5 million signatures to put the issue before voters, although the state stopped counting at just under a million. Roughly 891,500 signatures were required. Of the total number of signatures, about 35% were from either registered Republican voters or those not affiliated with a party, organizers said.

    State Rep. Anna Eskamani, a Democrat, said if the abortion ballot initiative becomes branded as a partisan effort, “it just makes it more challenging to reach 60%.” Eskamani, who worked at Planned Parenthood before running for political office, said she is encouraging the Biden administration to focus broadly on the impact of a six-week ban and let the ballot measure speak for itself.

    “At the end of the day, the ballot initiative is going to be a multimillion-dollar campaign that stands very strongly on its own,” Eskamani said.

    Trump’s campaign did not respond to a question on whether the former president, a Florida voter, would oppose or support the ballot measure. In an NBC interview last September, Trump called Florida’s six-week ban “terrible.” But he has repeatedly highlighted the three conservative-leaning justices he chose for the high court who cleared the way to overturn Roe.

    Republicans were dismissive of the Biden campaign and the broader Democratic Party’s efforts to use abortion as a political cudgel, arguing that other issues will matter more with voters in November.

    “Floridians’ top issues are immigration, the economy and inflation; in all three areas Joe Biden has failed,” said Evan Power, the chairman of the state Republican Party. “Instead of coming to talk to Floridians about manufactured issues, he should get to work solving the real issues that he has failed to lead on.”

    Still, Trump and other Republicans are aware that voter backlash against increasing restrictions could be a serious liability this fall.

    Abortion-rights supporters have won every time the issue has been put before voters, including in solidly conservative states such as Kansas, Kentucky and Ohio. Last month, a Democrat in a suburban state House district in Alabama flipped the seat from Republican control by campaigning on abortion rights, weeks after in vitro fertilization services had been paused in the state.

    Nikki Fried, the chairwoman of the state Democratic Party, said Florida will be a competitive state on the presidential level “because of the extremism that has come out of Florida.” No Democrat has won the state on the presidential level since 2012, but state party officials have found some glimmers of political change in vastly smaller races, such as the open Jacksonville mayor’s race last May that saw a Democrat win in what was once a solidly Republican city.

    Florida Gov. Ron DeSantis, a Republican, said at a news conference before the visit that the abortion amendment was written in a way to deliberately mislead voters, an argument that the state Supreme Court disagreed with when it approved the ballot language.

    “All I can tell you is Floridians are not buying what Joe Biden is selling and in November we’re going to play an instrumental role in sending him back to Delaware where he belongs,” he said.

    ___

    Associated Press writers Brendan Farrington in Tallahassee and Colleen Long in Washington contributed to this report.

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  • Supreme Court to decide if Biden administration can regulate ‘ghost guns’

    Supreme Court to decide if Biden administration can regulate ‘ghost guns’

    WASHINGTON — The Supreme Court on Monday agreed to consider whether the Biden administration can lawfully regulate so-called ghost guns — firearms that are made from kits available online that people can assemble at home.

    The justices took up a Biden administration appeal in defense of regulations that a lower court invalidated. The provisions in question are currently in effect while litigation continues.

    In August of last year, the Supreme Court allowed the regulation to be enforced on a 5-4 vote, with Chief Justice John Roberts and fellow conservative Justice Amy Coney Barrett joining the three liberal justices in the majority.

    The federal Bureau of Alcohol, Tobacco, Firearms and Explosives issued the regulations in 2022 to tackle what it claims has been an abrupt increase in the availability of ghost guns. The guns are difficult for law enforcement to trace, with the administration calling them a major threat to public safety.

    The rule clarified that the parts used to make ghost guns fit within the definition of “firearm” under the federal Gun Control Act, meaning the government has the power to regulate them the same way it regulates firearms made and sold through the traditional process.

    The regulations require manufacturers and sellers of the kits to obtain licenses, mark the products with serial numbers, conduct background checks and maintain records.

    Texas-based U.S. District Judge Reed O’Connor last year ruled in favor of Jennifer VanDerStok and Michael Andren, who own components they want to use to build guns. Plaintiffs also include gun rights groups and makers and sellers of ghost guns.

    After the Supreme Court allowed the regulation to remain in effect while litigation moved forward, the New Orleans-based 5th U.S. Circuit Court of Appeals mostly ruled for the challengers.

    “Because Congress has neither authorized the expansion of firearm regulation nor permitted the criminalization of previously lawful conduct, the proposed rule constitutes unlawful agency action, in direct contravention of the legislature’s will,” the ruling said.

    If that decision were allowed to go into effect, “anyone could buy a kit online and assemble a fully functional gun in minutes — no background check, records, or serial number required,” Solicitor General Elizabeth Prelogar wrote in court papers.

    “The result would be a flood of untraceable ghost guns into our nation’s communities, endangering the public and thwarting law-enforcement efforts to solve violent crimes,” she added.

    The challengers agreed with the Biden administration that the Supreme Court should take up the case, citing its nationwide importance.

    Their lawyers wrote that it is not the job of the ATF to expand the meaning of “firearm” under the Gun Control Act.

    “If that definition has become obsolete or unsatisfactory in any way, that is an issue for Congress to address,” they wrote.

    The Supreme Court’s conservative majority has backed gun rights in multiple cases, including the landmark 2022 ruling that for the first time recognized that the Constitution’s Second Amendment includes a right to bear arms outside the home.

    The court is currently weighing the scope of that decision in a case concerning whether people accused of domestic violence have a right to own firearms.

    The ghost guns case, however, is on a separate legal question related to ATF’s regulatory authority, not the right to bear arms.

    The justices are set to decide a similar case in the coming weeks, a challenge to another ATF regulation that banned “bump stocks,” an accessory that allows semiautomatic rifles to be fired rapidly.

    This article was originally published on NBCNews.com

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  • Biden preps event tying Florida’s six-week abortion ban to the 2024 campaign

    Biden preps event tying Florida’s six-week abortion ban to the 2024 campaign

    President Joe Biden will deliver a speech in Florida on Tuesday denouncing the state’s new six-week abortion ban and other efforts to restrict abortion access across the country, according to Biden campaign aides who shared details of the trip first with NBC News.

    At the event, which is scheduled to take place in Tampa about one week before the state law is set to go into effect, the president will talk about “the stakes of this election for reproductive freedom across the entire country.”

    Biden will also tie Florida’s restrictions on the procedure to other consequences of Roe v. Wade being overturned in 2022, including the Arizona state Supreme Court decision last week that upheld a near-total abortion ban dating from 1864, according to the aides.

    “From Arizona to Florida, more and more Americans are seeing up close the devastating impact of Trump overturning Roe v. Wade,” Morgan Mohr, senior adviser for reproductive rights for the Biden-Harris campaign, said in a statement. “While Donald Trump continues to brag about unleashing these extreme and dangerous bans, President Joe Biden is running to restore reproductive freedom. Since the overturning of Roe, whenever reproductive rights have been on the ballot, they have won, and this November will be no different.”

    The event is significant for Biden: While voicing full support for abortion access, he has often looked to Vice President Kamala Harris to be the administration’s most prominent voice on the issue. Since the Supreme Court’s Dobbs decision overturned the federal right to abortion in June 2022, Harris has held more than 80 events across 20 states focused on reproductive freedom, including delivering a speech last week in Arizona criticizing the ban in that state and tying in former President Donald Trump’s role in allowing abortion restrictions to take place.

    On Tuesday, though, Biden will take center stage on the issue. The president is expected to attack Trump for saying he is proud of appointing the Supreme Court justices who made overturning Roe v. Wade possible, as well as for other comments related to recently enacted state abortion bans. Biden is also expected to say that if re-elected, Trump and his allies will enact a federal abortion ban, though Trump has recently claimed that he would not do so, saying instead that he wanted the issue left to the states.

    Meanwhile, the Biden-Harris campaign has been hammering Republicans as more and more states restrict abortion. The campaign has rolled out emotional ads focused on the issue and has used women affected by the abortion restrictions as campaign surrogates across the country.

    Biden’s trip to Tampa is part of the campaign’s broader effort to nationalize the fallout and the conversation around state abortion bans. The campaign sees Florida’s abortion ban as especially salient because, once in effect, the six-week ban will affect the entire Southeast, given that many women in states with stricter abortion bans have traveled to Florida to get abortions.

    This article was originally published on NBCNews.com

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