These are my notes on Robert Barnes commentary tonight on his “Bourbon with Barnes” discussing the SCOTUS decision on presidential immunity. This is not a transcript. Any errors are due to me, not to Robert.

The Decision

The 6-3 SCOTUS decision on presidential immunity was really a 5-3 decision. The concurring decision by Amy Coney Barrett (ACB) was weak and filled with loopholes, as predicted. The concurring decision by Thomas dealt with the constitutionality of the Jack Smith appointment as Special Prosecutor and is very significant.

SCOTUS decision borrowed heavily from the existing court cases and jurisprudence on immunity to civil suits. This will now get extended to criminal suits against the president. Key points on the decision are:

• President has had immunity from civil suits
• Article II powers all go to the president, activities based on this have immunity
• Powers granted to president by Congress have presumed immunity
• Unofficial acts do not have immunity (“unofficial” is anything act not granted by Constitution or Congress)
• No speculation on presidential motives are allowed
• Evidence from presidential documents are not admissible in evidentiary hearings on official/unofficial acts determinations

The Constitutional Solution

Barnes said the best solution was to use the clear language in the Constitution: Only after impeachment by the House and conviction by the Senate could a president be tried for criminal violations. Both current and former presidents would be bound by this version of immunity. He said that this interpretation was raised late in the Trump pleadings, and it came too late to influence SCOTUS thinking.

SCOTUS Approach

SCOTUS decision means that even after impeachment, a convicted and removed president cannot be prosecuted. This approach has issues. SCOTUS noted that the founders did not consider this issue, and did not mention presidential immunity in the Constitution. (Judicial immunity is also not in the Constitution.)

The SCOTUS approach means that the courts/judges will make decisions on presidential immunity. Barnes said this should be the decision of publicly elected legislators. Always look at who decides on major issues.

Barnes had predicted that Roberts would write the decision. He saw Roberts and Kavanaugh joining with the three conservative judges to recognize presidential immunity. Roberts and Kavanaugh recognize the severe damage that the Democrat lawfare is having the judicial system. It is undermining the image of the courts.

Impact on Trump Cases

SCOTUS decision remands the DC case to the DC trial judge. Judge must now do what should have been a pre-trial review, with an independent evidentiary hearing with revised rules of evidence. Unlikely anything would survive the SCOTUS recommended review, if DC judge was fair/honest.

For the NY state trial, SCOTUS requires a similar, major review. The alleged crime is the book keeping entries made while Trump was president. If Trump took these acts to preserve his presidency, then presidential immunity applies.

The FL case deals with document decisions taken while Trump was president. This decision expands the evidentiary hearings that the FL judge has already started.

The GA case involve Trump lobbying state officials while president, regarding a federal election. Most the case will involve presidential immunity and should get tossed.

Correct application would remove all four cases.

What Will Happen?

NY and DC judges will ignore SCOTUS decision and quickly approve existing charges/convictions. It will be up to the NY appeals courts, the federal appeals courts, and SCOTUS to overrule their decisions.

Barnes thinks the GA judge will dismiss the case.

FL judge will do the review, and may use Thomas decision to dismiss the case.

Barnes does not think any new trials will begin before the election.

Thomas Concurrence

Thomas argued that Jack Smith has no legal basis to serve as a federal prosecutor, and all his actions are unconstitutional.

This gives the FL judge a way to dismiss the case. FL judge is already considering this argument. Thomas is giving cover for the judge to dismiss the case.

Presidential Power

Barnes said that under the SCOTUS decision, Biden has immunity from criminal prosecution for anything related to his son, to his handling of the border, and for his DOJ lawfare against Trump. This would continue even if Biden was impeached and convicted.

This is probably good for the 2024 election, but not as good as it could have been.

The Democratic lawfare has rattled everyone. They went way too far. This has led to a strong reaction by SCOTUS.

Biden Response

Biden’s four minute teleprompter rant claimed that the SCOTUS decision makes Election Day as the verdict on the many crimes of Trump. It is clear that Biden cannot run on the accomplishments of his term as president. His only hope for victory is to make Trump, not Biden, the issue on Election Day.

Democrats thought the 1/6 narrative would stop Trump. This has not worked and will not work. Most Americans do not care about 1/6. They care about the price of food, the price of gas, the price of housing, the availability of good jobs, etc. This is what counts. Young voters are up for grabs in this election, and jobs/cost of living are the key issues for them.

Economy and War are the two big issues. These were very good under Trump. They are terrible under Biden.

Biden asked for the early debate with Trump. The reason was clear. Biden has to make Trump the issue. Plan was to bring it up early and often. Biden debate performance was a disaster. But Democrats have no better candidate to run and will continue to push Biden and attempt to make Trump the issue. Barnes does not see this working.

Other Questions

Are we wrong to question Trump, and to openly criticize his decisions? NO!

The only way to reach Trump is to criticize him, and do it loudly and forcefully. He responds to criticism if he hears it.

Example is that he got the message on vaccine mandates and now says that he was never for them. He blames Biden for the mandates, a shrewd political move. Trump has considerable ground for improvement on medical freedom and food freedom.

Barnes has loyalty to ideas/principles, not to people. He is in favor of a populist uprising. In 2016, Trump was fed by Roger Stone and others on populist ideas. He got daily updates on what Alex Jones and other populist thinkers were pushing. He dropped this daily input in 2017, and his first term suffered as a result.

You have to scream to get Trump’s attention.

VP pick for Trump is critical. Vance, Carson, Gabbard, and Vivek are all good populist choices. Vance is the best in Barnes’s opinion. Their selection means we would have a solid populist at the table in the White House. If Scott or Rubio are selected, we are cooked.

Chevron SCOTUS decision impact on state/local cases is a work in progress. It will depend on the court and the judge. Long term this decision is very good, but will take time to reach state/local cases.

Amos Miller judge ruled he could continue to sell his food. PA state will take it to next level of state courts. Amos is good for business for next 30-60 days. This is a good result for Amos.

How to reform standing? Every citizen should have the right to sue in the courts if government officials violate their rights. Standing was invented by the courts in the early 20th Century. The solution is to remove it.

https://vivabarneslaw.locals.com/post/5815113/live-bourbon-w-barnes-monday-july-1-2024

11:25 pm on July 1, 2024