(WASHINGTON) — The Biden administration has determined that three military battalions with the Israel Defense Forces committed “gross human rights violations” against Palestinian civilians in the West Bank but will remain eligible for U.S. military aid regardless because of steps Israel says it’s taking to address the problem, ABC News has learned.
The administration assessment, which has not yet been made public and could change if Israel doesn’t take specific steps, was outlined in an undated letter by Secretary of State Antony Blinken to House Speaker Mike Johnson obtained by ABC News.
The U.S. determination “will not delay the delivery of any U.S. assistance and Israel will be able to receive the full amount appropriated by Congress,” Blinken wrote.
The allegations involving each of the units occurred before the Oct. 7 war began when Hamas attacked Israel. None of the cases involves operations against Hamas in Gaza or against Iran or its proxies.
Still, the decision is likely to roil critics of the Biden administration who say not enough is being done to hold Israel accountable for military operations in Gaza that have pushed the civilian population toward famine.
Issa Amro, a prominent Palestinian human rights activist who lives in the West Bank city of Hebron, said he was “disappointed” but not surprised by the U.S. decision.
The U.S. “is not doing concrete actions to reduce violence, to a minimum and to make peace between the Palestinians and the Israelis,” he told ABC News.
Administration officials counter that its process in reviewing human rights violations has been fair and that Israel was not given preferential treatment. They also note that it’s not uncommon for the U.S. to work with countries through a process known as “remediation” that can encourage foreign countries to weed out bad actors within their militaries.
“Each of these situations is different, and we have to do our best to collect the facts and follow the facts and that’s what we’re doing,” Blinken told reporters Monday at a press briefing when pressed for details on the U.S. review.
Under a federal measure known as the Leahy Law, the U.S. military is required to withhold weapons, training and other military assistance to any foreign military unit that commits gross human rights abuses.
The law, however, allows an exception for countries that have taken steps “to bring to justice the responsible members of the unit,” according to Blinken’s letter.
According to a person familiar with the process, who spoke on condition of anonymity to discuss a decision that hasn’t been made public, the U.S. and Israel also have a special agreement that requires the U.S. to consult with the Israelis before making any decisions related to the Foreign Assistance Act.
The person said those consultations with Israel remain ongoing and that if a military unit is found not to take “satisfactory remediation or accountability measures,” U.S. aid would then be restricted.
Overall, five units — three military and two civilian — were under review for human rights violations. According to Blinken’s letter, four have undergone proper remediation steps.
Israel also has “acknowledged” that another IDF battalion had engaged in “conduct inconsistent” with Israel’s rules. As a result, the unit was transferred from the West Bank to the Golan Heights in 2022, Blinken noted.
That description matches the Netzah Yehuda battalion, established for ultra-orthodox Jewish men.
“The Israeli government has presented new information regarding the status of the unit and we will engage on identifying a path to effective remediation for this unit,” Blinken wrote.
“But this will have no impact on our support for Israel’s ability to defend itself against Hamas, Iran, Hezbollah, or other threats,” he assured Johnson, a staunch supporter of Israel who helped push a foreign aid bill through Congress this week.
Blinken noted that no other units were found in violation of the Leahy Law.
The secretary spoke with top Israeli officials this week following reports by Axios and ProPublica that the U.S. planned to “sanction” IDF units.
Israeli Prime Minister Benjamin Netanyahu said he would fight the Biden administration on such a move, calling it a “moral low.”
(WASHINGOTN) — The Biden administration has determined that three military battalions with the Israel Defense Forces committed “gross human rights violations” against Palestinian civilians in the West Bank but will remain eligible for U.S. military aid regardless because of steps Israel says it’s taking to address the problem, ABC News has learned.
The administration assessment, which has not yet been made public, was outlined in an undated letter by Secretary of State Antony Blinken to House Speaker Mike Johnson obtained by ABC News.
The U.S. determination “will not delay the delivery of any U.S. assistance and Israel will be able to receive the full amount appropriated by Congress,” Blinken wrote.
The allegations involving each of the units occurred before the Oct. 7 war began when Hamas attacked Israel. None of the cases involves operations against Hamas in Gaza or against Iran or its proxies.
Still, the decision is likely to roil critics of the Biden administration who say not enough is being done to hold Israel accountable for military operations in Gaza that have pushed the civilian population toward famine.
Administration officials counter that its process in reviewing human rights violations has been fair and that Israel was not given preferential treatment. They also note that it’s not uncommon for the U.S. to work with countries through a process known as “remediation” that can encourage foreign countries to weed out bad actors within their militaries.
“Each of these situations is different, and we have to do our best to collect the facts and follow the facts and that’s what we’re doing,” Blinken told reporters Monday at a press briefing when pressed for details on the U.S. review.
Under a federal measure known as the Leahy Law, the U.S. military is required to withhold weapons, training and other military assistance to any foreign military unit that commits gross human rights abuses.
The law, however, allows an exception for countries that have taken steps “to bring to justice the responsible members of the unit,” according to Blinken’s letter.
According to a person familiar with the process, who spoke on condition of anonymity to discuss a decision that hasn’t been made public, the U.S. and Israel also have a special agreement that requires the U.S. to consult with the Israelis before making any decisions related to the Foreign Assistance Act. The person said those consultations remain ongoing.
Overall, five units — three military and two civilian — were under review for human rights violations. According to Blinken’s letter, four have undergone proper remediation steps.
Israel also has “acknowledged” that another IDF battalion had engaged in “conduct inconsistent” with Israel’s rules. As a result, the unit was transferred from the West Bank to the Golan Heights in 2022, Blinken noted.
That description matches the Netzah Yehuda battalion, established for ultra-orthodox Jewish men.
“The Israeli government has presented new information regarding the status of the unit and we will engage on identifying a path to effective remediation for this unit,” Blinken wrote.
“But this will have no impact on our support for Israel’s ability to defend itself against Hamas, Iran, Hezbollah, or other threats,” he assured Johnson, a staunch supporter of Israel who helped push a foreign aid bill through Congress this week.
Blinken noted that no other units were found in violation of the Leahy Law.
The secretary spoke with top Israeli officials this week following reports by Axios and ProPublica that the U.S. planned to “sanction” IDF units.
Israeli Prime Minister Benjamin Netanyahu said he would fight the Biden administration on such a move, calling it a “moral low.”
In this Nov. 15, 2022, file photo, former President Donald Trump leaves the stage after speaking during an event at his Mar-a-Lago home, in Palm Beach, Fla. (Joe Raedle/Getty Images)
(WASHINGTON) — Prosecutors in former President Donald Trump’s classified documents case said in court filings that a former Trump administration official told investigators that Trump, as president, had “no standing declassification order” regarding documents in his possession.
The filings, which are part of special counsel Jack Smith’s response to a Trump legal team motion to compel discovery in the case, include notes from prosecutors’ interview with a former administration official who the special counsel says “refused recording of the interview.” The interview subject stated that having the interview recorded was a “far bigger risk for him in the Trump world,” according to FBI notes on the interview, which were included in the filing.
The FBI notes, known as a 302, are heavily redacted, obscuring the name of the former official, who is only identified as Per[son] 16, with several pages blacked out in their entirety.
The former official, who had “free access to [Trump] and the Oval Office, and was in the Oval Office daily,” told prosecutors there was “no standing declassification order,” and that they had “never heard of that while in the White House.”
After the FBI raided Trump’s Mar-a-Lago estate in 2022 and retrieved more than 100 additional documents with classified markings, Trump’s team issued a statement to one media outlet claiming that, while still in office, Trump had issued “a standing order that documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them.”
Trump was subsequently indicted last June on 37 criminal counts related to his handling of classified materials after leaving the White House, after prosecutors said he repeatedly refused to return hundreds of documents containing classified information ranging from U.S. nuclear secrets to the nation’s defense capabilities, and took steps to thwart the government’s efforts to get the documents back. He pleaded not guilty to all charges.
While the new court filings do not change the narrative established in the special counsel’s indictments, they offer a glimpse into the kinds of evidence Smith is prepared to bring to trial, including detailed testimony from Trump White House insiders.
In late October or early November of 2021, nearly a year before a search warrant for Mar-a-Lago was issued, the former official appealed to Trump to return government records, according to the filings.
“Whatever you have, give it all back,” the filings quote the former official saying they told Trump.
The former official described an effort get multiple people close to Trump, including his children, to tell him, “There are issues with the boxes. They belong to the government, talk to your dad about giving them back. It’s not worth the aggravation.”
By late November of 2021, the warnings grew more stark, the former official told investigators. The former official describes telling Trump, who was dressed in golf attire, “Whatever you have, give everything back. Don’t give them a reason to indict you, because they will.”
Trump responded with a “weird ‘you’re the man’ type of response,” the former official told investigators.
A separate exhibit filed with the government’s response details an FBI interview about the National Archives and Records Administration’s efforts to locate missing government records, including letters from President Barack Obama and North Korean dictator Kim Jong Un.
That interview, with another former Trump administration official whose name is redacted but is identified as “Per[son] 40,” describes how Trump was “fond of certain documents,” including the North Korean letters.
That official took detailed notes about records management during the Trump administration, and those notes describe another Trump White House official, only identified as Per[son] 14, stating that the former president did not “trust the system.”
During a conversation in which Person 40 brought up that boxes of documents Trump kept in his residence need to go NARA, Person 14 responded, “NARA and what army?”
Person 40’s notes, according to the new filings, describe Trump’s “habits” of handling documents in the White House, “which included destroying, tearing them up and/or throwing them away,” and indicated that those habits did not change when they became known publicly after being published in a Politico story.
(WASHINGTON) — The Supreme Court on Thursday heard historic arguments on whether former President Donald Trump can be criminally prosecuted related to his efforts to overturn his 2020 election loss.
He denies all wrongdoing and insists he should have “absolute immunity” for any “official acts” while in office.
His name and the specifics of the case were rarely mentioned — just a handful of times — as the justices, over the course of nearly three hours, grappled with questions about what their ruling will mean for the future of the presidency and how that should be reconciled with the principle of the rule of law.
The former president, who lamented not attending arguments in Washington as he is on trial in New York in a separate criminal trial, in which he has pleaded not guilty, was represented by attorney John Sauer.
Michael Dreeben argued on behalf of the government and special counsel Jack Smith. Smith last year brought four felony counts against Trump, including conspiracy to defraud the U.S. and obstruction of an official proceeding, for his attempts to remain in power after losing to now-President Joe Biden.
Here are five key takeaways from the arguments:
Hypotheticals like coup, assassinations dominate
The question of presidential immunity sparked an array of “what if” scenarios from the justices as well as multiple citations to past presidential choices ranging from what was done by Franklin D. Roosevelt, Richard Nixon, George W. Bush, Barack Obama and others.
Justice Sonia Sotomayor, minutes into the arguments, raised the question of whether criminal immunity would extend to a president ordering the military, or someone else, to assassinate a political rival if they believed this person was “corrupt”
Sauer affirmed that such a decision could “well be an official act” excluded from prosecution, telling Sotomayor, “It would depend on the hypothetical.”
At another point, Justice Elena Kagan asked the Trump attorney: “How about if a president orders the military to stage a coup?”
Sauer said that, likewise, under her hypothetical, that could “well be” official behavior of the president though “it would depend on the circumstances.”
“It certainly sounds very bad,” he conceded, “and that’s why the framers [of the Constitution] have — and that’s why the framers have a whole series of structural checks that have successfully, for the last 234 years, prevented that very kind of extreme hypothetical, and that is the wisdom of the framers.”
He maintained that the only time a president could be criminally prosecuted was if they were impeached by the House and convicted by the Senate for the same crime.
Even then, Sauer later suggested, there would have to be a criminal statute against coups expressly referencing the president.
Some justices also raised questions about whether presidents could pardon themselves, and both attorneys said it’s an issue that’s never been addressed before and has no precedent.
Private vs. official acts and concessions from Trump’s attorney
Central to Thursday’s arguments was what would qualify as an “official” act of the presidency that may be protected by a finding of immunity versus what constitutes private conduct.
In one instance, Justice Amy Coney Barrett asked a series of probing questions of Sauer about conduct alleged in Smith’s indictment and whether Trump’s attorneys considered them private or official acts.
Sauer conceded some acts in the indictment were unprotected, including his allegations that Trump turned to a private attorney who knowingly spread false claims of election fraud to spearhead his challenges to 2020 election results and that he conspired with others to implement a plan to obstruct the certification of President Joe Biden’s win.
Justice Kagan pressed Dreeben about what the government would consider official and unofficial, or private, conduct. Dreeben said core executive functions, like pardon power, vetoing legislation, foreign recognition and more have absolute protection.
But organizing a false slate of electors, a key allegation in Smith’s indictment, is “campaign conduct” and not official.
“That’s not any part of a president’s job,” Dreeben said.
Conservatives worried about bad faith prosecutions
Several conservative-leaning justices expressed concerns about the potential for bad faith prosecutions against a president.
Chief Justice John Roberts raised concern about the lower court ruling, specifically that its position could put too much faith in the justice system to act non-politically and out of good faith.
DOJ’s Dreeben responded that there are “layered safeguards” that protect against malicious prosecution.
“We are not endorsing a regime that we think would expose former presidents to criminal prosecution in bad faith, for political animus, without adequate evidence, or politically driven prosecution that would violate the Constitution,” Dreeben said.
Justice Brett Kavanaugh suggested concerns about a vicious cycle of malicious prosecutions hampering presidents for years to come. He also raised the question of the “risk” of a “creative prosecutor” using “vague” statutes — including obstruction and conspiracy, which Trump faces — against a commander in chief.
Justice Samuel Alito also appeared skeptical of Smith’s use of at least some of the conspiracy and fraud-related charges, asking if the conspiracy statute wasn’t “peculiarly open-ended.”
In response, Dreeben said: “It is designed to protect the functions of the United States government, and it is difficult to think of a more critical function than the certification of who won the election.”
Will the court send the case back?
Several conservative justices also raised the question of whether to remand the case back down to the U.S. Court of Appeals for the District Court of Columbia (which rejected the immunity claim in sweeping terms) to conduct further proceedings.
Remanding the case would — perhaps significantly — delay Trump’s Jan. 6 trial even past the November election. The trial was set for March 4 but is on pause until the immunity question is resolved in the judicial system.
Justice Neil Gorsuch was the first to suggest further proceedings could be required to determine what is an official act and what is private and thus more open to prosecution.
“What concerns me is, as you know, the court of appeals did not get into a focused consideration of what acts we’re talking about or what documents we’re talking about,” Chief Justice John Roberts said.
Sotomayor pressed back on the notion of remanding the case, arguing that even in the instances of acts that could be considered official, they came in the context of Trump pushing forward in his “private” intent of remaining in office despite losing the election.
‘A rule for the ages’
Justices emphasized throughout arguments that they were not only considering the immediate case involving Trump, but what these questions mean for the future of the country.
“We’re writing a rule for the ages,” Gorsuch said.
Justice Samuel Alito noted whatever that the high court decides “is going to apply to all future presidents.”
The criminal immunity question is a novel one, as Trump is the first president (current or former) to be criminally charged.
The closest a former commander-in-chief came was President Richard Nixon, who resigned in 1974 rather than be impeached and was later pardoned by his successor — which was mentioned by the justices during Thursday’s hearing.
The justices grappled with that unprecedented nature and what it would mean for a president to have too much or too little protection for any actions taken while in office, including perpetually controversial decisions like those amid war or when addressing national security.
“If the potential for criminal liability is taken off the table, wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they’re in office?” Justice Ketanji Brown Jackson said.
But Sauer indicated that such problems hadn’t occurred so far.
“I respectfully disagree with that because the regime you described is the regime we operated under for 234 years,” he said.
(WASHINGTON) — As the NFL draft kicks off this week, President Joe Biden’s campaign is launching a new digital ad on Thursday taking aim at former President Donald Trump’s past comments disparaging football and the league, the Biden campaign told ABC News.
The short, 20-second ad, on YouTube, features a montage of Trump previously attacking football, calling it “boring as hell” and saying “nobody cares about football,” juxtaposed with Biden greeting and touting his relationship with football players.
The ad — the latest skirmish in the early part of Biden’s general election fight against Trump, which is expected to be close — ends with the message: “Make the right pick in November.”
The ad plays into the longstanding feud between the NFL and Trump, who had once owned rival United States Football League team the New Jersey Generals in the 1980s and reportedly tried to buy the Buffalo Bills in 2014 but was unsuccessful after investors doubted the NFL would allow it.
Trump has repeated attacks on football and more specifically the NFL over the years, including during his presidency when he railed against NFL players who kneeled during the national anthem as part of a protest against systematic bias against people of color.
However, Trump has had close ties to some notable figures in football, including quarterback Tom Brady and New England Patriots owner Robert Kraft.
He has also frequented tailgates and college football games on the campaign trail, including attending the famed University of Iowa Hawkeyes versus Iowa State University Cyclones game and the Palmetto Bowl between the South Carolina Gamecocks and the Clemson University Tigers last year as the Republican Party’s Iowa caucuses and the South Carolina primary were heating up.
According to the Biden campaign, the new ad will target football fans across battleground states including in Green Bay, Wisconsin; in Detroit; in Phoenix; and in Pittsburgh. The ad will also air in Atlanta, Charlotte, North Carolina, and Las Vegas.
Second gentleman Douglas Emhoff, who is attending the NFL draft in Michigan on Thursday night, claimed in a statement that while the rest of the country will be celebrating football, Trump will be “sitting on the sidelines trying to make tonight about himself, rage-posting on his failing social media platform and spewing his extreme, divisive, and historically unpopular agenda.”
The first clip used in the ad shows Trump at a rally in Henderson, Nevada, on the first Sunday of the 2020 NFL season, where the then-president urged the audience to sit down and get comfortable before stating they had plenty of time as “football is boring as hell.”
He added: “Used to be people would say, ‘Hey, could you keep it away from, from a football game?’ Now they say, ‘Could you possibly do it during a football game?'”
In the second clip, from a 2020 rally in Nevada’s capital, Carson City, Trump said, “Nobody cares about football. They ought to get smart because they can’t win this war. We want people that love our country.”
Trump has repeatedly disparaged NFL players kneeling over the years, claiming they’ve gotten too “soft” and calling for them to be suspended.
“The NFL players are at it again – taking a knee when they should be standing proudly for the National Anthem,” Trump wrote on X, then called Twitter, in 2018. “Numerous players, from different teams, wanted to show their “outrage” at something that most of them are unable to define. They make a fortune doing what they love.”
(NEW YORK) — Speaker Mike Johnson, claiming that Hamas supports the pro-Palestinian, anti-Israel protests at Columbia University and other of the U.S. colleges, on Thursday threatened congressional intervention, including pulling federal funding from the institutions.
“The things that have happened at the hands of Hamas are horrific, and yet these protestors are out there waving flags for the very people who committed those crimes. This is not who we are in America,” Johnson, the top House Republican, said in a post on X on Thursday morning. ABC News has not documented any cases of protesters waving Hamas flags, as Johnson suggested.
Student protests at Columbia and other schools have primarily denounced Israeli military action in Gaza and expressed support for Palestinian civilians, rather than expressing support for Hamas. School administrators and officials have said the protests on their campuses have been largely peaceful.
Citing a statement Hamas issued Wednesday, Johnson said Hamas “backed” the protests at Columbia specifically, which began April 17. Johnson added in a separate post on X that “taxpayer dollars should not be going to institutions that allow this chaos.”
In the Hamas statement, its spokesperson Izzat Al-Risheq blamed President Joe Biden for “violating the individual rights and the right to expression through arresting university students and faculty members for their rejection of the genocide to which our Palestinian people are being subjected in the Gaza Strip at the hands of the neo-Nazi Zionists.”
“Today’s students are the leaders of the future, and their suppression today means an expensive electoral bill that the Biden administration will pay sooner or later,” Al-Risheq wrote in the statement.
In response to Hamas’ statement, White House Deputy Press Secretary Andrew Bates told ABC News that “Hamas perpetrated the deadliest massacre of the Jewish people since the Holocaust, which makes them the least credible voice that exists on this subject.”
“Hamas’ disapproval, after their acts of ‘unadulterated evil’ — which they’ve pledged to repeat ‘again and again’ — is a testament to President Biden’s moral clarity. President Biden has stood against Antisemitism his entire life. And he will never stop,” Bates said.
Johnson’s comments on Thursday came a day after he visited Columbia University, where he met with Jewish students and joined his New York House Republican colleagues in calling for the school’s president, Minouche Shafik, to resign if she can’t bring order to the protests. In a speech, during which boos and shouts from protesters often overpowered the speaker’s words, Johnson considered the need to send the National Guard to intervene.
In an interview with ABC News’ Linsey Davis on Wednesday, Johnson cited the statement and said Hamas sees Columbia’s protesters as the future leaders of America.
“We should hope not,” Johnson said. “Hamas is a terrorist organization.”
Johnson said federal funding should be revoked if universities cannot maintain control of the protests and prevent violence.
“If [school administrators] can’t get control of this, we will take the funding away from these universities. The Congress has a responsibility to do that, the power of the purse, and we will use it, and we will hold these administrators accountable,” Johnson told Davis.
While Johnson mentioned violence on campus, the New York Police Department said earlier this week that there are no credible threats to any particular group or individual as a result of the protests at Columbia University. The department said it had not received any reports of physical harm toward any students.
Last week, more than 100 pro-Palestinian protesters were arrested at Columbia as they called for the divestment of college and university funds from Israeli military operations. Other participants in Columbia’s ongoing, encampment-style protests were suspended and removed from campus.
The demonstrations followed Shafik’s testimony to the House Committee on Education and the Workforce about antisemitism on college campuses, during which she said she has taken actions to combat antisemitism on campus since a terror attack on Oct. 7 sparked Israel’s war with Hamas.
New York GOP Rep. Elise Stefanik called for Shafik’s resignation days later, writing in a post on X that Columbia “failed to enforce their own campus rules and protect Jewish students on campus.”
While there have been some instances of violence and offensive or antisemitic rhetoric during the protests, school administrators, New York police and protesters themselves have largely blamed that activity on individuals not affiliated with the schools.
“… Tensions have been exploited and amplified by individuals who are not affiliated with Columbia who have come to campus to pursue their own agendas,” Shafik said earlier this week.
Columbia spokesman Ben Chang said the student encampment on campus has raised serious safety concerns. He added that Columbia will not tolerate harassment and discriminatory behavior, and the university will investigate to see if any student protestors violated community rules.
8 years after the National Enquirer’s deal with Donald Trump, the iconic tabloid is limping badly In response to some student concerns about safety amid on-campus tension, some universities have responded by opting for remote or hybrid learning options.
ABC News’ Michelle Stoddart and Kiara Alfonseca contributed to this report.
(WASHINGTON) — As various Supreme Court justices themselves acknowledged during a high-stakes hearing on Thursday, they could potentially reshape the contours of presidential power when they rule on whether Donald Trump is entitled to some amount of immunity from prosecution for alleged acts in the White House as he pushed to overturn his 2020 election loss.
Over nearly three hours on Thursday, with demonstrators gathered outside, the justices grappled with arguments from both Trump’s attorney and an attorney for special counsel Jack Smith, who has charged Trump in connection with his effort to stay in office after losing to now-President Joe Biden.
Trump denies all wrongdoing and disputes some of what he is accused of doing while he maintains that other actions were part of his presidential authority.
The oral arguments included several notable and important exchanges. Here are 10 of the key moments.
A decision is expected from the court by the end of June.
Could a president assassinate his rival?
Justices Sonia Sotomayor and then Samuel Alito touched on one of the most provocative hypotheticals raised in Trump’s battle for “absolute immunity” from charges over what he claims were official acts: Could a commander in chief order SEAL Team 6 to assassinate a political rival and not face prosecution?
Sotomayor raised it first while questioning Trump attorney John Sauer. She pointed back to an earlier exchange Sauer had in a lower court proceeding.
“I’m going to give you a chance to say …if you stay by it: The president decides that his rival is a corrupt person and he orders the military, or orders someone, to assassinate him — is that within his official acts for which he can get immunity?” she asked.
“It would depend on the hypothetical,” Sauer answered. “We could see that could well be an official act.”
Sotomayor pressed on that point: “Immunity says even if you did it for personal gain, we won’t hold you responsible — what do you — how could that be?”
Sauer pointed back to a U.S. Supreme Court ruling from the ’80s that held a president is immune from civil liability related to this official acts, which Sauer said is a basis for their own argument now about criminal liability.
“That’s an extremely strong doctrine in this court’s case law in cases like Fitzgerald,” he said.
Later, Alito referred back to a president’s hypothetical use of the military as elite assassins as he and Sotomayor split on whether “plausibleness” was a useful standard for scrutiny versus “reasonable.”
“One might argue that it isn’t plausible to order SEAL Team 6 — and I don’t want to slander SEAL Team 6 because they’re — no, seriously — they’re honorable, they’re honorable officers and they are bound by the uniform code of military justice not to obey unlawful orders — [but] I think one could say it’s not plausible … that that action would be legal,” Alito said.
To Sauer, he said, “I’m sure you’ve thought of lots of hypotheticals where a president could say, ‘I’m using an official power,’ and yet the power uses it in an absolutely outrageous manner.”
‘What was up with the pardon of President Nixon?’
Justice Ketanji Brown Jackson pressed Sauer on his contention that without immunity all future presidents would feel paralyzed to take official acts that could put them in criminal jeopardy.
“I mean, I understood that every president from the beginning of time essentially has understood that there was a threat of prosecution [upon leaving office],” Jackson said.
Sauer responded by quoting Ben Franklin from the constitutional convention, to which Jackson seemed skeptical.
“But since Benjamin Franklin everybody has presidents who have held the office [who knew] that they were taking this office subject to potential criminal prosecution, no?” she said.
She cited one well-known example of a former president who came under legal scrutiny.
8 years after the National Enquirer’s deal with Donald Trump, the iconic tabloid is limping badly “What was up with the pardon for President [Richard] Nixon? … If everybody thought that presidents couldn’t be prosecuted, then what — what was that about?” she said.
“He was under investigation for both private and public conduct at the time — official acts and private conduct,” Sauer said, going on to indicate that there had long been established an understanding that presidents could be prosecuted for private acts.
“Counsel on that score, there does seem to be some common ground between you, your colleague on the other side, that no man’s above the law and that the president can be prosecuted after he leaves office for his private conduct, is that right?” Justice Neil Gorsuch asked.
“We agree with that,” Sauer answered.
“And then the question becomes, as we’ve been exploring here today, a little bit about how to segregate private from official conduct that may or may not enjoy some immunity,” Gorsuch said.
That underscored what could emerge as a key part of the court’s ultimate decision: how to separate out Trump’s conduct that is protected by the presidency, under a ruling of some executive immunity, and what he is accused of doing outside the bounds of his presidential authority that can be prosecuted.
But Trump’s attorney concedes some conduct was private
Not long after, Justice Amy Coney Barrett questioned Sauer precisely where some of the described conduct falls, between official and private — protected or unprotected.
“You concede that private acts don’t get immunity,” she said.
“We do,” Sauer said.
Barrett then specifically cited various alleged acts from Trump’s push to overturn the 2020 election, as described by prosecutors.
Barrett, quoting from court filings, said, “I want to know if you agree or disagree about the characterization of these acts as private. Petitioner turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results. Private?”
“We dispute the allegation, but that sounds private to me,” Sauer said.
Barrett continued: “Petitioner conspired with another private attorney who caused the filing in court of a verification, signed by petitioner, that contained false allegations to support a challenge. Private?”
“Also sounds private,” Sauer said.
“Three private actors, two attorneys, including those mentioned above, and a political consultant, helped to implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding and petitioner and a co-conspirator attorney directed that had effort.” Barrett said.
“I believe that’s private,” Sauer replied.
“Those acts you would not dispute,” Barrett said. “Those were private and you wouldn’t raise a claim that they were official.”
Sauer said back: “As characterized.”
‘That’s like a one-legged stool, right?’
A notable response came shortly after from Chief Justice Roberts when Sauer pushed the justices to remand the case back down to the lower courts to piece through which allegations in the indictment amount to a protected “official act” under the presidency.
“The official stuff has to be expunged completely from the indictment before the case can go forward,” Sauer argued.
“That’s like a one-legged stool, right?” Roberts said. “I mean, giving somebody money isn’t bribery unless you get something in exchange. If what you get in exchange is to become the ambassador to a particular country, that is official, the appointment, it’s within the president’s prerogatives. The unofficial part is — ‘I’m going to get a million dollars for it.'”
After this exchange, Justice Clarence Thomas raised unprompted whether Trump’s legal team was challenging the legality of the appointment of special counsel Jack Smith, a questionable theory previously pushed by right-wing lawyers like former Attorney General Ed Meese.
Sauer said Trump’s legal team was making that argument in his separate Florida federal case, in which he is accused of mishandling classified information while out of office, but they weren’t doing so directly in this case, to which Thomas did not follow up.
Justice Alito then asked Sauer if all official acts alleged in the Jan. 6 indictment should be excluded from trial, to which Sauer answered they should.
But Justice Sotomayor pressed back on the notion of remanding the case, arguing that even in the instances of acts that could be considered official, they came in the context of Trump pushing forward in his “private” intent of remaining in office.
“I don’t think the indictment is charging that the obstruction occurred solely because of conversations with the Justice Department,” she said. “They’re saying — you look at all of the private acts and you look in the context of some of the public acts and you can infer the intent, the private intent from them.”
Fear of turning Oval Office into ‘seat of criminal activity’
In questioning Sauer about why presidents shouldn’t face criminal liability for unlawful actions they take in office, Justice Jackson seemed to warn that, as she sees it, giving presidents absolute immunity could turn the White House into “the seat of criminal activity in this country.”
In response, Sauer insisted that while a president shouldn’t face criminal prosecution, they could face impeachment or other remedies for any unlawful conduct.
The exchange began when Jackson pressed, “If there’s no threat of criminal prosecution, what prevents the president from just doing whatever he wants?”
Sauer pointed to “impeachment, oversight by Congress, public oversight, there’s a long series.”
“You seem to be worried about the president being chilled. I think that we would have a really significant opposite problem if the president wasn’t chilled,” Jackson said.
“If someone with those kinds of powers, the most powerful person in the world, with the greatest amount of authority, could go into office knowing that there would be no potential penalty for committing crimes — I’m trying to understand what the disincentive is from turning the Oval Office into the seat of criminal activity in this country,” Jackson continued.
She asked Sauer, “If the potential for criminal liability is taken off the table, wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they’re in office?”
But Sauer indicated that such problems hadn’t occurred so far.
“I respectfully disagree with that because the regime you described is the regime we operated under for 234 years,” he said.
Can a president pardon themselves?
During Sauer’s questioning, Gorsuch asked him to explain the Trump team’s position on whether a president hypothetically has the power to pardon themselves, which he said could happen if presidents feared that their successors could prosecute them for actions they took while in office.
“I didn’t think of that until your honor asked it. That is certainly incentive that might be created,” Sauer answered.
“We’ve never answered whether a president can do that. Happily it’s never been presented to us,” Gorsuch said in response.
Later in the hearing, Michael Dreeben, arguing for the government, was asked for his view on whether the president has such authority.
“I don’t believe the department of justice has taken a position,” Dreeben said. The only authority that I’m aware of is a member of the Office of Legal Counsel wrote on a memorandum that there is no self-pardon authority. As far as I know, the department has not addressed it further and the court had not addressed it either.”
Will the case be remanded — delaying it until next year?
Roberts began his line of questioning of Dreeben, in the second half of the haring, by raising concerns about the opinion issued by the D.C. Circuit Court of Appeals in their sweeping rejection of Trump’s claims of immunity.
Roberts said the statement that “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” concerned him because “as I read it, it says a former president can be prosecuted because he’s being prosecuted.”
Roberts said such a position could put too much faith in the justice system to act non-politically and out of good faith — and he asked whether the Supreme Court should send the opinion back down to make clear to the circuit court that that is not the law.
Dreeben responded there are “layered safeguards” that protect against malicious prosecution.
“We are not endorsing a regime that we think would expose former presidents to criminal prosecution in bad faith, for political animus, without adequate evidence, or politically driven prosecution that would violate the Constitution,” Dreeben said.
Near the end of the hearing, Barrett also noted that the justices could send the case back to the lower court to decide which of the actions in the indictment against Trump was official — and therefore not prosecutable — versus which were done in his private capacity.
Such an outcome could rule out a trial before the end of the year and before the November election.
Dreeben emphasized that the Department of Justice would prefer to tell a jury all of it: “There’s an integrated conspiracy here that had different components, as alleged in the indictment. Working with private lawyers to achieve the goals of the fraud and … the petitioner reaching for his official powers to try to make the conspiracies more likely to succeed.
“We would like to present that as an integrated picture to the jury so that it sees … [the] gravity of the conduct.”
However, Dreeben indicated that even if some of the alleged actions in indictment were deemed official in nature and not subject to prosecution, prosecutors would still want to present some of those actions to the jury to show Trump’s state of mind when he engaged in actions deemed private.
Presidents can make mistakes without charges
Dreeben faced questions from Alito on whether or not presidents can make a “mistake” given the many competing pressures they are under in their day to day duties.
“Presidents have to make a lot of tough decisions about enforcing the law and they have to make decisions about questions that are unsettled,” Alito said, then asking if a “mistake” makes a commander in chief criminally liable.
“Making a mistake is not what lands you in a criminal prosecution,” Dreeben said.
Later he raised some of the specific accusations in the charges against Trump: “It is difficult for me to understand how there could be a serious constitutional question about saying, ‘You can’t use fraud to defeat the [certification of the winner of the presidential election], you can’t obstruct it through deception, you can’t deprive millions of voters of their right to have their vote counted for the candidate who they chose.'”
Charging FDR for internment camps?
Much of the justices’ questioning of the attorneys on Thursday turned on hypotheticals to probe at the limits of each of their arguments about whether presidents should or should not be immune from prosecution.
Beyond Sotomayor asking about a potential assassination using the military, Justice Elana Kagan asked how immunity would apply if a president ordered soldiers “to stage a coup.”
Sauer said in that potential case, it “may well be an official act” that would require impeachment and conviction before he is prosecuted.
He said something similar when Sotomayor asked if Trump’s backing of “fraudulent” alternate electors in 2020, to try and overturn the results, as described in the indictment, was also part of his official duties. “Absolutely, your honor,” Sauer said.
Alito added his own what-if as he questioned Dreeben, with the government.
“Mr. Sauer and others have identified events in the past where presidents have engaged in conduct that might have been charged as a federal crime, and you say, ‘Well, no, that’s not really true.’ … So, what about president Franklin D. Roosevelt’s decision to inter Japanese Americans during World War II. Couldn’t that have been charged under conspiracy against civil rights?” Alito asked.
Dreeben raised a number of concerns with hypothetically trying to bring charges but demurred on a straightforward answer beyond noting the controversy and complexity.
Worry of a vicious cycle of prosecutions — and what happens next
In line with many of his questions during today’s arguments, Justice Brett Kavanaugh focused at one point on what the impact of prosecution could be on the office of the presidency and his worries of what he called a vicious cycle of malicious prosecutions hampering presidents for years and years to come — in the absence of immunity.
He likened the current moment to a controversial post-Watergate Supreme Court decision involving the powers of independent counsels, in which the late Justice Antonin Scalia penned one of his most famous dissents in defense of the presidency.
“That’s the concern going forward is that the system will — when former presidents are subject to prosecution in the history of Morrison v. Olsen tells us, it’s going to cycle back and be used against the current president or the next president or and the next president and after that,” Kavanaugh said.
He further claimed in the exchange that while President Gerald Ford’s pardon of Richard Nixon was “very controversial in the moment” it is “now looked upon as one of the better decisions in presidential history I think by most people.”
Notably, however, both Kavanaugh and Gorsuch said their concerns about overreaching prosecutions didn’t extend to the facts of the Jan. 6 case against Trump.
Throughout arguments, justices made clear they were looking past the immediate example of Trump to what their decision will mean for the future of the presidency.
“We’re writing a rule for the ages,” Gorsuch said.
Kavanuagh echoed that: “This case has huge implications for the presidency, for the future of the presidency and for the future of the country, in my view.”
And Alito said, “Whatever we decide is going to apply to all future presidents.”
(WASHINGTON) — Former President Donald Trump has blown up his fair share of deals on Capitol Hill, but Senate Minority Leader Mitch McConnell says Trump’s decision to hold his tongue on a massive $95 billion foreign aid package — including critical aid for Ukraine — may have made all the difference in getting the legislation across the finish line.
McConnell had staked his legacy on passage of a national security aid package Tuesday night, securing billions in aid to Israel, Ukraine and Taiwan, and to get it done, he pushed back hard against the isolationist wing of his own party, convincing 30 other Republicans to join him.
And the win, he told ABC News in an interview Wednesday, will help persuade Trump to change his views as well.
McConnell was eager to talk about how he plans to make fighting isolationism his mission during his remaining time in the Senate, including after he steps aside as Republican leader in November.
“I am not leaving the Senate. And this is going to be my primary focus going forward, and I think it’s important for us and for the rest of the world,” he said.
McConnell as Reagan Republican Trump, who has waded in to a number of legislative debates in recent weeks, did not directly weigh in on how members ought to vote on the Ukraine aid package. On Tuesday, the former president seemed to embrace House Speaker Mike Johnson, who stuck his neck out to ensure the package could get passed.
McConnell, who has had a tumultuous relationship with the former president, acknowledged that Trump’s decision to get behind Johnson and to keep his opinions on Ukraine aid to himself may have swung his party more in the direction McConnell has been pleading them to go for over a year: away from isolationism, toward American global leadership.
“I think the issues typically reflect either your president of your party and office or the nominee for president, and I think a lot of the views Republicans at large are going to have will be based not on what we did in Congress but on where the nominee or president is,” McConnell said. “I was encouraged by the fact that he allegedly embraced the speaker and decided to quit talking about this issue.”
The Republican leader sees himself in the mold of Ronald Reagan, whose “peace through strength” worldview has become less and less visible in Trump’s “America First” GOP.
At times, in the earliest stages of the debate over foreign aid, McConnell said he felt like the lone Reagan Republican in the room.
“In the beginning I sort of did,” McConnell said, when asked if he felt isolated. “But I think it got better.”
Demonstrating to Trump For McConnell, the passage of this multi-pronged supplemental aid package was essential to demonstrating to Trump that globalist views can be popular with Republicans.
“I know how much he likes to win,” McConnell said. “And this looks like a winning issue, not a losing issue.”
That’s why McConnell, who is stepping down this from his role as GOP leader in November after 18 years on the job, said he’s not done pushing back on isolationism.
For now, McConnell feels he beat back the pull of isolationism in his party.
“At least on this issue, I think the isolationist movement didn’t come that close,” he said.
Says Trump opposing border deal helped clear the way Though McConnell was ultimately successful in his efforts to get the bill passed, It took Congress over six months to move on President Joe Biden’s supplemental aid request for Ukraine.
Part of the reason for that delay was an effort by Republicans to condition foreign aid on robust provisions to secure the U.S. southern border. That effort fizzled out after Republicans rejected a bipartisan deal containing many of the provisions that they themselves had insisted on.
McConnell said the border remains a looming issue that requires attention.
But he also concedes that choosing to focus on the border as part of the discussion about a foreign aid package may have been a costly distraction from dealing with the original national security supplemental request.
And former President Trump is the one who ultimately cleared the deck.
“I would love to solve the border problem, we actually tried,” McConnell said. “But most of my colleagues decided it wasn’t good enough and the former president said he’d rather it not be done at all, and so that kind of moved the border away.”
With the border issue formally quashed, members were able to get behind the bill more easily. It’s part of the reason that McConnell believes the package picked up nine additional Republican supporters between its consideration in February and Tuesday night’s passage.
“I think once the border issue was settled, not in a way that all of us preferred, but clearly nothing was going to happen, you had the original supplemental there,” McConnell said.
“I think once members focus on the facts, just the facts, it’s very hard to argue against the proposal,” he said.
Trump’s opposition to the border provision may have, in the end, been a critical component of getting foreign aid passed.
Foreign aid passage makes Reagan-type approach ‘look like a winner’ Johnson sat on the Senate supplemental bill for more than two months. He eventually let the House of Representatives vote on the bill in pieces after Trump bowed out of expressing a direct opinion on how members ought to proceed.
“He gave everybody a chance to vote, which is a good way to figure out how will pass and what won’t,” McConnell said of Johnson’s manuevering. “And I think that was really, in his situation, a pretty courageous decision.”
Johnson faced threats to lose his gavel over advancing the foreign aid package in part due to an increasingly isolationist House GOP Conference. In the Senate, about 70% of Republicans backed the foreign aid package. But more than half of House Republicans rejected Ukraine aid.
McConnell blames the anti-Ukraine sentiments among Republicans in both chambers on ousted Fox News commentator Tucker Carlson.
“Tucker Carlson had a massive audience that was a lot of rank and file Republicans, starting carving on Ukraine,” McConnell said. “And the former president was skeptical about it. And that had a huge impact on public opinion.”
But Tuesday night’s vote, McConnell believes, is a critical step in changing public opinion, especially as he seeks to lead his members towards reclaiming the Senate in November’s elections.
“Tuesday makes the Reagan-type approach look like a winner, not a loser,” McConnell said. “And I think that’s the beginning of changing public sentiment.”
(WASHINGTON) — Against the backdrop of a divisive 2024 presidential campaign, the U.S. Supreme Court on Thursday will take up the monumental question of whether a former president turned presumptive GOP nominee can be criminally prosecuted for his efforts to stay in power after the last election.
The case, Donald J. Trump v. United States, presents an unprecedented constitutional quandary for the court brought about by equally unprecedented actions by former President Donald Trump in the aftermath of the 2020 presidential election, which he lost to Joe Biden by a margin of 7 million popular votes.
The outcome could determine whether Trump faces a federal trial this year on four felony counts pressed by special counsel Jack Smith, including conspiracy to defraud the U.S. and obstruction of an official proceeding, for his attempts to overturn the electoral vote count certifying Biden’s victory.
Trump, who has pleaded not guilty, is seeking to quash the case on the claim that as a former president he enjoys “absolute immunity” from criminal prosecution for any “official acts” during his tenure. He is the first American president — current or former — to ever face criminal charges.
“The President cannot function, and the Presidency itself cannot retain its vital independence, if the President faces criminal prosecution for official acts once he leaves office,” Trump’s attorneys wrote in their opening brief to the high court.
“Denial of criminal immunity would incapacitate every future President with de facto blackmail and extortion while in office, and condemn him to years of post-office trauma at the hands of political opponents,” they argued.
Two courts have resoundingly rejected the former president’s immunity arguments, including a unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia.
“Former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the panel wrote. “Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.”
The appeals court warned that if Trump’s constitutional theory were accepted, it would “collapse our system of separated powers” by putting a president above the law.
Smith, the special counsel, argues in his brief to the high court that Trump’s assertion lacks any historical precedent and undermines the founders’ vision of a presidency restrained in power.
“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,” the he wrote the justices. “To the contrary, a bedrock principle of our constitutional order is that no person is above the law — including the President.”
A trial date in Smith’s federal election case against Trump was initially set for March 4 in U.S. District Court but was delayed awaiting a final decision by the Supreme Court. A ruling on the immunity claim is expected before July, as soon as mid-May.
The justices could uphold the appeals court decision in its entirety, clearing the way for a trial this summer, or they could take a middle-road approach, spelling out what actions qualify for immunity and which do not, sending the case back to lower courts for further proceedings. Such an outcome could rule out a trial before the November election.
Most legal analysts say it’s highly unlikely the Supreme Court — with its conservative majority and three Trump appointees — will endorse Trump’s sweeping assertion of “absolute immunity.” In a 2020 decision, the same court rejected a similar immunity claim by Trump in his attempt to reject a grand jury subpoena for his tax returns.
A majority of Americans (51%) think the federal indictment of Trump related to Jan. 6 and his efforts to overturn the 2020 election is very serious, according to an ABC News/Ipsos poll from late last year.
Just over half of respondents — 52% — think Trump should have been charged with a crime in this case, while 32% said he should not have been. At the same time, 46% think the charges against Trump are politically motivated, while 40% do not, per the poll conducted using Ipsos’ KnowledgePanel.
Trump’s legal team has argued that the impeachment process is the only check on a president’s conduct allowed by the Constitution, even as they concede that a president who is impeached, convicted and removed from office could subsequently face criminal prosecution for the same acts.
Trump was impeached by the House in 2021 over his efforts to overturn results of the 2020 election but later acquitted by the Senate after he had left office. The former president argues that his actions were part of a legally legitimate effort to ensure election integrity.
Smith insists former presidents have never been immune from prosecution and have always been aware of the potential for prosecution. He cites in court briefs the case of former President Richard Nixon accepting a pardon from President Gerald Ford as evidence that Nixon believed prosecution was possible after he had resigned.
While Supreme Court precedent has limited civil litigation against presidents, the special counsel contends criminal matters are different — and that there are layers of legal safeguards in the system to prevent partisan harassment and protect due process.
Tough new EPA rules would force coal-fired power plants to capture emissions or shut down “Even if liability could not be premised on official acts,” Smith wrote the justices in his brief, “the case should be remanded for trial, with the district court to make evidentiary and instructional rulings in accordance with this Court’s decision. Petitioner [Trump] could seek appellate review of those rulings, if necessary, following final judgment.”
After oral arguments on Thursday, the justices will vote during their weekly private conference and begin drafting opinions. They are expected to be released before the court’s term ends in June.
(WASHINGTON) — The U.S. Supreme Court on Thursday is hearing arguments on whether former President Donald Trump can be criminally prosecuted over his efforts to overturn his 2020 loss.
The justices will take up the monumental question of if, and if so to what extent, former presidents enjoy immunity for conduct alleged to involve official acts during their time in office.
The high court’s decision will determine if Trump stands trial before the November election on four charges brought by special counsel Jack Smith, including conspiracy to defraud the United States.
Here’s how the news is developing:
Apr 25, 9:10 AM How we got here
Trump, seeking to quash the federal election subversion case brought against him by Smith last year, is claiming he has “absolute” immunity from the criminal prosecution for anything related to his presidency.
Two lower courts have rejected that argument.
First, District Judge Tanya Chutkan (who is overseeing the trial) determined that someone once serving as president “does not confer a lifelong ‘get-out-of-jail-free’ pass.”
Then, a three-judge panel on the U.S. Court of Appeals for the District Court of Columbia unanimously struck down Trump’s claims. They warned his view, if accepted, would “collapse” the country’s political system.
Trump then appealed to the U.S. Supreme Court. His trial is on hold while this matter plays out in the courts.
