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​ The Sidebar: Briefs and Commentary - No. 5
​ The FDA v. Alliance for Hippocratic Medicine 
Pilar Whitaker, Special Economic Justice Counsel - NAACP Legal Defense and Educational Fund, Inc.  

​www.thesupremecourt.gov
New Black Nationalist Legal
Bobbie Seale
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and Commentary Page
Atty. Charles R. Garry 
On May 21st, 1969, police found the body of 19-year-old Alex Rackley on a riverbank in Middlefield, CT. Rackley was a member of the Black Panther Party. Alex Rackley was murdered by fellow Panthers who suspected him of being an informant. 

The state charged Bobby Seale, founder and national chairman of the Black Panther Party, and Ericka Huggins, head of the Party’s New Haven chapter, with conspiracy to kidnap and murder Rackley; the prosecutors sought the death penalty. 

On May Day, 1970, some 15,000 Panther Party members and their supporters came to New Haven to protest the trial. After five days of deliberation, the jury deadlocked and the case was declared a mistrial.

​lllll
​The Colorado Court’s Ruling Banning Trump From
the Ballot Is Sharp as Hell

by Elie Mystal, thenation.com   11.24.2023
Writ of Certiorari to the Supreme Court of Colorado
Brief of Amicus Curiae, In Support of Respondents and Affirmance. 
Sherrilyn A. Ifill, Counsel of Record Vernon E. Jordan, Jr. Distinguished Professor of Law
Harvard University 
Double click here to add text.
​4.25.2024
​Donald J. Trump 
Petitioner, 
v. United States of America  

Brief of Retired Four-Star Admirals and General & Former Secretaries of the U.S. Army, Navy, and Air Force
as Amici Curiae I
DONALD J. TRUMP,  
Petitioner, 

v.  No. 23-939 

UNITED STATES,  

Respondent.
IN THE SUPREME COURT OF THE UNITED STATES 
APPEARANCES:

 
D. JOHN SAUER, ESQUIRE, St. Louis, Missouri; on behalf 
of the Petitioner.

 
MICHAEL R. DREEBEN, Counselor to the Special Counsel, 
Department of Justice, Washington, D.C.; on behalf 
of the Respondent. 

CHIEF JUSTICE ROBERTS: We will hear argument this morning in Case 23-939, Trump
 versus United States.

 Mr. Sauer.

 ORAL ARGUMENT OF D. JOHN SAUER
 ON BEHALF OF THE PETITIONER


 MR. SAUER: Mr. Chief Justice, and may it please the Court: Without presidential immunity from 
criminal prosecution, there can be no presidency as we know it. For 234 years of American 
history, no president was ever prosecuted for his official acts. The Framers of our Constitution viewed an energetic executive as essential to securing liberty. If a president can be charged, put on trial, and imprisoned for his most controversial decisions as soon as he leaves office, that looming threat will distort the president's decision-making precisely when bold and fearless action is most needed. Every current president will face de facto blackmail and extortion by his political rivals while he is still in 
Heritage Reporting Corporation 


The implications of the Court's decision here extend far beyond the facts of this case. Could President George W. Bush have been sent to prison for obstructing an official proceeding or allegedly lying to Congress to induce war in Iraq? Could President Obama be charged with murder for killing U.S.citizens
 abroad by drone strike? Could President Biden someday be charged with unlawfully inducing 
immigrants to enter the country illegally for his border policies? 

The answer to all these questions is no. Prosecuting the president for his official acts is an innovation with no foothold in history or tradition and incompatible with our constitutional structure. The original meaning of the Executive Vesting Clause, the Framers' understanding and intent, an unbroken historical 
tradition spanning 200 years, and policy considerations rooted in the separation of powers all counsel against it. 

I welcome the Court's questions. 


Mr. Dreeben.

 
ORAL ARGUMENT OF MICHAEL R. DREEBEN
 ON BEHALF OF THE RESPONDENT

 
MR. DREEBEN: Mr. Chief Justice, and may it please the Court: 
absolute criminal immunity for any public official. Petitioner, however, claims that a Heritage Reporting Corporation former president has permanent criminal immunity for his official acts, unless he was first
 impeached and convicted. His novel theory would immunize former presidents from criminal liability for bribery, treason, sedition, murder, and, here, conspiring to use fraud to overturn the results of an election and perpetuate himself in power. Such presidential immunity has no foundation in the Constitution. The Framers knew too well the dangers of a king who could do no wrong. They therefore devised a system to check abuses of power, especially the use of official power for private gain. 
Here, the executive branch is enforcing congressional statutes and seeking accountability for Petitioner's alleged misuse of official power to subvert democracy. That is a compelling public interest.


In response, Petitioner raises concerns about potential abuses. But established legal safeguards provide layers of protections, with the Article III courts providing the ultimate check. The existing system is a carefully balanced framework. It Heritage Reporting Corporation protects the president but not at the high constitutional cost of blanket criminal immunity.  That has been the understanding of every president from the framing through Watergate and up to today. This Court should
 preserve it.

 I welcome the Court's questions.


To read the entire proceeding:

























 MR. SAUER: The source of the immunity
 is principally rooted in the Executive Vesting
 Clause of Article II, Section 1. 
JUSTICE THOMAS: And how does that
 happen?
 MR. SAUER: That -- the source of it, 
Justice Thomas, I think is, as you described in
 your separate opinion in Zivotofsky, for 
example, that the Executive Vesting Clause does 
not include only executive powers laid out 
explicitly therein but encompasses all the 
powers that were originally understood to be 
included therein. 
And Marbury against Madison itself 
provides strong evidence of this kind of 
immunity, a broad principle of immunity that 
protects the president's official acts from 
scrutiny, direct -- sitting in judgment, so to 
speak, of the Article III courts, that that 
matches the original understanding of the 
Executive --
JUSTICE THOMAS: So how --
MR. SAUER: -- Vesting Clause. 
JUSTICE THOMAS: -- how exactly would 
Heritage Reporting Corporation 



































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we determine what the -- what an official act
 is?
 MR. SAUER: I'd say -- I'd point the
 Court to two cases for that. Obviously, 
Fitzgerald against Nixon is the best guidance 
that the Court gives where it -- of course, the 
Court adopted the outer perimeter test, and this
 Court engaged in analysis there that's very 
instructive here, where it looked at the level 
of specificity at which the acts are described 
in -- in -- in that case, a civil case. Here, 
it would be the indictment. And --
CHIEF JUSTICE ROBERTS: Well, what if 
you have -- let's say the official act is 
appointing ambassadors, and the president 
appoints a particular individual to a country, 
but it's in exchange for a bribe. Somebody 
says, I'll give you a million dollars if I'm 
made the ambassador to whatever. 
How do you analyze that? 
MR. SAUER: That, I think, would fall 
under this Court's discussion in Brewster, where 
the Court held with respect to legislative acts 
that bribery is not an official act, which also 
matches the common law background. 
Heritage Reporting Corporation 



































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Official - Subject to Final Review 
So the way that this Court in Brewster 
kind of sliced at the joint was to say accepting 
the bribe and the agreement to accept the bribe
 are not official acts. That's private conduct
 CHIEF JUSTICE ROBERTS: Okay. It's
 not --
MR. SAUER: -- where a substantive
 appointment would not be -- would be essentially 
an unrestrictable power of this Court that 
Congress couldn't directly regulate. 
CHIEF JUSTICE ROBERTS: It's not --
accepting a bribe isn't an official act, but 
appointing an ambassador is certainly within the 
official responsibilities of the president. So 
how could you -- how -- how does your official 
acts or the official acts border, boundary come 
into play when it's going to be official, 
assuming that the president is innocent? But 
the whole question is whether he's going to be 
found innocent or guilty? 
MR. SAUER: Again, I think Brewster 
and Johnson do address that or very persuasively 
at least in a slightly different context. 
Brewster and Johnson say the indictment has to 
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be expunged of all the immune official acts, so
 there has to be a determination what's official, 
what's not official, and --
CHIEF JUSTICE ROBERTS: Well, you 
expunge the official. You say, okay, we're
 prosecuting you because you accepted a million
 dollars. They're supposed to say -- not say
 what it's for because the what's for part is 
within the president's official duties? 
MR. SAUER: There has to be, we would 
say, an independent source of evidence for that. 
And keep in mind that this indictment charges 
what this Court has described as unrestrictable 
powers of the president. So the premise, the 
logical premise, of this indictment is that 
Congress, by passing vague and general criminal 
statutes, has purported to directly regulate the 
president's exercise of things like the exercise 
of the employment and removal power, things like 
his ability to speak directly to the American 
public, core exercises of his authority under 
the Recommendations Clause to recommend to 
Congress, members of Congress, the measures he 
thinks necessary and expedient. 
So you have a indictment in this case 
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that goes right to the heartland of the 
president's powers, that alleges a whole series 
of official acts and tries to tie them together 
by saying, well, there's a private aim or a
 private purpose in that case. And that's a 
situation which, of course, could be alleged in
 virtually any indictment.
 JUSTICE SOTOMAYOR: Counsel, it can be
 alleged, but it has to be proven. Malum in se 
is a concept long viewed as appropriate in law, 
that there are some things that are so 
fundamentally evil that they have to be 
protected against. 
Now I think -- and -- and your answer 
below, I'm going to give you a chance to say if 
you stay by it. If 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? 
MR. SAUER: It would depend on the 
hypothetical. We can see that could well be an 
official act.
Michael R. Dreeben