Actually, I think they held that there are (1) core official acts (“core Constitutional powers”) which have absolute immunity, and then (2) there are official acts within the outer perimeter of official responsibility which are presumptively immune, and then (3) there are unofficial acts. The remand is to the trial court on the last two categories. The presumptive immunity seems like irrebuttable immunity to me as the test is whether prosecution “would pose no danger on the authority or functions of the Executive Branch.” The test seems deliberately guaranteed to provide immunity for all official acts.
Anyway, I believe I said I understand why there is presidential immunity, but it was the special exclusionary evidentiary rules that the Court conjured up just for Trump to exclude massive amounts of evidence (which will kill the case) that showed improper bias. Where did that even come from? Totally fabricated judicial activism.
With respect to criminality, I was referring to Trump’s behavior in the Florida Bathroom case and in this Fake Electors case. I don’t need a conviction to have an opinion that someone is behaving like a criminal or is a criminal.
In the Florida Bathroom case, I don’t see how any reasonable person can conclude otherwise as to Trump – he took Classified Documents from the White House when he became a civilian (very likely knowingly did so), he knowingly kept the Classified Documents at an unsecured location without any authorization to do so, he blatantly lied to investigating federal agencies about possessing the Classified documents, he had his attorney submit a false affidavit regarding his possession of the Classified Documents, he tried to get his other attorneys to bless his criminal scheme for keeping Classified Documents and, when he was in the process of getting busted for those felonies, he intentionally tried to destroy evidence (and I’ll bet he engaged in witness tampering too). We all know all of that. Trump is a serious criminal.
I agree that Courts can find rights outside the express text of the Constitution. I
was more taking a jab at those who start every discussion of the Establishment Clause with what is now a cliched slogan: “the words ‘separation of church and state’ is not found in the First Amendment.” Judge Thomas is actually someone who does that. It’s an invalid criticism as you point out and it is quite hypocritical at the moment when “presidential immunity” was just discovered – and as you also pointed out, it was discovered buried in another concept that is ALSO not expressed in the Constitution. That’s some super-activist judge work there. Like I said, if you try hard enough, you can find anything you want in the Constitution.
Don’t kid yourself. There’s no guarantee Trump will win the election, even after Biden’s debate fiasco. Trump is not thinking that way. He needs the case dismissed, not just delayed. I agree Roberts is a good judge who has displayed an ability to be objective and faithful to the law no matter what the outcome, but in this instance he went out of his way to effectively kill the case against Trump here. The reason Roberts wrote the opinion, and not Alito, is because Roberts can more subtly pull it off (as you pointed out), whereas Alto has lost any ability to even pretend to appear objective.
Unless I’m misunderstanding something or misunderstanding you, majority opinions address the dissents all the time. I would guess 90% of the time they address the dissenting opinions in the majority opinion.
It doesn’t surprise me at all that the media is way off on the ruling. The media is terrible when it comes to legal reporting – they routinely don’t understand what was decided, routinely highlight things of little consequence, and routinely miss things that matter. They aren't the only ones. In other threads here, few seem to grasp that it is the new special evidentiary rules that the SCOTUS created -- the SCOTUS seemed to heap scorn ("prosaic tools") on the evidentiary rules everyone else has to follow -- that have the biggest impact here, and the Constitutional support for inventing those rules or even announcing those rules is minimal. You can't help but think the SCOTUS went out of its way to skewer the case in Trump's favor.
I’ve considered the viewpoint that these cases are politically motivated. I’ve never seen anyone attach any facts or decent argument to that viewpoint. But I have considered that viewpoint and I don’t see it happening to any extent that matters. With respect to the Florida Bathroom case, there is not a prosecutor in America who would not have filed charges. The facts compel them to. It would be a politically motivated act not to file charges. The guy stole Classified Documents, then lied and obstructed the investigation into their return.
On this Fake Electors case, again, how could someone not pursue prosecution? No prosecutor was going to know the contours of this presidential immunity when filing charges. Trump engaged in a complicated conspiracy to overturn the election with several others who have since pled guilty. The guilty pleas alone show the validity of the prosecution. If anyone else did exactly what Trump did, would you honestly be opposed to filing charges? What about if Biden hands Harris a bunch of fake elector certificates to count next January (unlike Pence, she will probably do what she’s told) – you think anyone charging him down the road is just being politically motivated?
Cheers.