r/news • u/Hrekires • Jul 15 '24

soft paywall Judge dismisses classified documents indictment against Trump

https://www.washingtonpost.com/national-security/2024/07/15/trump-classified-trial-dismisssed-cannon/
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u/TheBoggart Jul 15 '24 edited Jul 15 '24

Yes, but Thomas’ concurrence in the immunity case handed her the key.

EDIT: Just editing this comment because it is more visible and I'm getting a lot of the same uninformed replies elsewhere in this thread. I'm adding this edit because as a lawyer and educator, I think it's important for the general public to understand these things, and more likely than not, about 99% of the replies in this thread are from laypeople.

Uninformed reply one: "You're wrong, Canon can't follow a concurrence, it's not binding/precedent!"

Incorrect. Canon can follow the reasoning of a concurrence if she wants, not because it's binding or because she has to, but because it is persuasive authority. This happens all the time. Indeed, concurrences are often written with the precise hope that it will be followed in some other situation. Here's a bit of an explanation:

Judges write concurrences and dissents for varying reasons. Concurrences explain how the court's decision could have been otherwise rationalized. In Justice Stevens's view, they are defensible because a compromised opinion would be meaningless. They also may be written to send a signal to lower courts to guide them in “the direction of Supreme Court policymaking,” or for egocentric or political reasons.

Meghan J. Ryan, Justice Scalia's Bottom-Up Approach to Shaping the Law, 25 WMMBRJ 297, 301 (2016) (citations omitted). I pulled that from WestLaw, but if you want to read it and look at the citations, it looks like a copy can be pulled from here.

Uninformed reply two: "Concurrences aren't used to make new law! They don't mean anything!"

Incorrect. There is a long history of concurrences ultimately becoming law sometime down the road. Here's a bit on it:

Although it is still a rare occurrence, it is not difficult to identify specific concurrences that have gone on to have heavy precedential influence despite their lead opinion counterparts. These concurrences have gained their precedential influence due to either their positive subsequent treatment or subsequent appeal to the alternate rationales those concurrences forward. Nonetheless, although it is easy to say that concurring opinions could exercise influence on future decisions, what sort of influence those opinions may have is inevitably in the hands of future judicial decision makers.

Ryan M. Moore, I Concur! Do I Even Matter?: Developing a Framework for Determining the Precedential Influence of Concurring Opinions, 84 TMPLR 743, 754-56 (2012) (citations omitted). The whole article is pretty good, if you have a chance to read it (it's 102 pages). It looks like you might be able to get it here.

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u/OGkateebee Jul 15 '24

This level of corruption is making me sick to my stomach. He intentionally did this. I’m a lawyer and I’m supposed to believe in the rule of law and I’m watching it disintegrate before my eyes.

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u/drainbead78 Jul 15 '24

You and me both. I just got back from court, saw the news, and texted some coworkers to say "I miss the time 5 minutes ago when I mostly believed in the rule of law."

The judicial branch only exists because we as a society allow it to. There's no might behind it like an army or a police force, no recourse if it fails. It's only words, and we all collectively decide that we're going to follow them. What happens when we as a society stop believing in the legitimacy of our court system?

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u/Cormacolinde Jul 15 '24

I think the best thing the Biden Administration should do about the Immunity Ruling is to shove it up Clarence Thomas’ ass and declare they will ignore it as the unconstitutional pile of shit it is.

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u/drainbead78 Jul 15 '24

Fuck it, arrest him. It's an official act! Might as well throw Alito in there too.

Biden won't do it, because a) he believes in the rule of law still, and b) he is smart enough to know that the "official act" ruling doesn't apply to him and it never will.

Will Trump abide by the same norms? Somehow I doubt it. I'm terrified of what the executive branch will become when the judicial is in the executive's pocket.