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Writer's pictureBob O'Brien

POOF!!





Well, that didn’t take long.  In fact, ever since Trump’s election, extremely important legal decisions have been happening at break-neck speed.  President Elect Trump nominated Matt Gaetz as his incoming Attorney General, and POOF, he disappeared in a flash, quickly to be replaced Pam Bondi, a very competent and experienced attorney, who served as the Attorney General for the State of Florida for eight years.

 

President Biden seems very concerned.  His administration set the precedent when his Justice Department criminally charged political opponents in the Republican party, going as far as indicting former President Trump, who was also the Republican nominee in the 2024 Presidential election. Will President Trump return the favor and have the FBI investigate Democratic politicians, and will his justice Department also criminally indict Democratic politicians?

 

President Biden didn’t wait to find out. POOF!!  He has pardoned his son – not only for the crimes Hunter pled guilty to, but also for all other crimes, not yet charged, that Hunter may have committed over a ten-year period.  Is it legal to pardon someone who has not even been indicted, let alone convicted?  It has happened before.  President Ford pardoned resigning President Richard Nixon for crimes related to the Watergate break-in, but I don’t believe the Judicial branch of government has ever decided upon the legality of that pardon.  It seems to me that a pardon should be given only to people who have been convicted of a crime, and not be given to forestall a future prosecution of someone who may have committed a crime.

 

In any event, Hunter may not be the only one pardoned in this manner.  Credible journalists have reported that the Biden Administration is considering granting preventive pardons to the likes of incoming Senator Adam Schiff, former representative Liz Chaney and Anthony Fauci, who served as the chief medical advisor to President Biden.  What about the President’s brother, Jim Biden?  He could possibly and plausibly be charged for the crimes of perjury, money laundering and the failure to register as a foreign agent (as could Hunter). And what about President Biden himself? 


Special Counsel Robert Hur declined to criminally prosecute him in matters related to the mishandling of classified documents, primarily because he thought the President showed signs of mental deficiency, so much so that a jury would not convict him.  Could the justice Department under the incoming President Trump reverse that decision and charge him in a district that overwhelming voted for Trump in the Presidential election?

 

By now it should be obvious that both parties have reason to be concerned about the immense power the Presidency has with its authority over the Justice Department.  It is not independent as many believe, for it is part of the executive branch; and every President has the right to prioritize what type of crimes it wants the Justice department to pursue.  Therefore, if you are one who is truly worried about “the weaponization of the Justice Department” or “the end of democracy;” if you are worried that any President has too much power and can act to put his/her political opponents in jail, then I think you should be very happy with some of the recent decisions of the Supreme Court and lower levels of the federal judiciary, which limit the power of the Presidency, especially by emphasizing the checks and balances inherent in the separation of powers enshrined in the US Constitution.

 

For instance, earlier this year, Federal Judge Aileen Cannon dismissed Special Counsel Jack Smith’s prosecution of Donald Trump for allegedly mishandling classified documents in his home in Florida, finding the Special Counsel’s appointment unconstitutional.  Cannon wrote: "The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers."


Supreme Court Justice Thomas would agree: “By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the Presidenthe cannot create offices at his pleasure…“The constitutional flaw at the center of the Special Counsel’s appointment is that Congress has not established the office of a Special Counsel... Congress requires a U.S. Attorney to be nominated by the President and confirmed by the Senate.

 

In another important legal case, Fischer v. United States, the Supreme Court acted to narrow the broad use by the Biden Justice Department of the 2002 Sarbanes-Oxley Act, when it charged defendants who participated in the January 6 Capitol attack with felony obstruction. Before its utilization in the January 6 charges, prosecutors had never applied the statute in cases that did not involve evidence tampering. The Supreme court decided that the obstruction charge should only apply when the defendant "impaired the availability or integrity" (attempted or successfully) of a physical document or object used in an official proceeding.  As a result of that ruling, the Department of Justice has dropped the obstruction charge in nearly half of the pending cases and has declined to oppose motions to dismiss or vacate the charge in almost a third of the cases that were already decided.

 

Significantly, President Elect Trump was also charged with obstruction under Sarbanes-Oxley, and POOF, with this Supreme Court decision, this charge has suddenly disappeared.  Actually, all the federal charges will disappear once Trump becomes President, for he will immediately use his executive power to fire those prosecutors. It won’t even take that long, for the Appeals Court has granted Special Prosecutor Smith’s request to abandon all his federal cases against President-Elect Trump. Smith hasn’t completely abandoned his quest against Trump, for he made his request “without prejudice,” so theoretically charges could be filed when Trump leaves office in four years. Don’t bet on it!

 

We’ll end by commenting on the important Supreme Court decision on Presidential immunity. In Trump v the United States, the Court decided that presidents enjoy absolute immunity for actions that fall within their “exclusive sphere of constitutional authority; they enjoy presumptive immunity for other official acts; and that they do not enjoy immunity for unofficial or private actions.  President Biden reacted angrily, saying “for all practical purposes, today’s decision almost certainly means that there are virtually no limits on what a president can do.” We certainly do not agree. The Constitution outlines the three distinct branches of government, and the checks and balances in the powers given to each branch has been enough and will be enough in the future to preclude too much concentration of power in any branch of government, the Presidency included.

 

Actually, President Biden should be relieved. The decision in Trump v United States also protects him from future prosecution. Could an ex-President Biden be prosecuted for the deaths of American soldiers as a result of his hasty withdrawal from Afghanistan, or the murder of young American girls by illegal immigrants allowed into the United States by Biden’s failure to enforce immigration laws? 

 

Not now, according to Supreme Court.

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