Stephen L. Carter: Trump might not wind up liking the Supreme Court’s immunity decision

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Anyone who expected the Supreme Court to give clear guidance on the extent to which former President Donald Trump can be tried (and tried and tried) for the crimes of which he has been accused must surely be disappointed with the complexity of what the justices decided in Trump v. United States. The case was sent back to the lower courts for further proceedings.

But clarity shouldn’t have been expected, not least because there are, essentially, no precedents.

There’s much in Chief Justice John Roberts’s majority opinion to hearten the former president — part of the indictment brought by Special Counsel Jack Smith will be dismissed. But the prosecution, too, gets an important a piece of what it wanted.

And although the decision is being reported as a big win for Trump, I’m not sure that’s so.

To begin with, the court rightly rejected Trump’s absurd position that a former president can’t be prosecuted for his conduct in office unless he has been impeached and removed. The court also rightly rejected the absurd position of the special counsel that the president enjoys no immunity at all.

It’s obvious to everyone that a president cannot do the job if subject to the whims of any prosecutor who might decide to indict him after his term ends for a crime he supposedly committed in office; it’s equally obvious to everyone (well, almost everyone) that the same president, job to do or not, can’t be permitted to pull out a gun and shoot somebody for annoying him.

Between those two consensuses lies a gulf too vast to be crossed in a single court decision. Although Monday’s ruling doesn’t resolve the criminal case, the justices get points for trying.

A quick precis:

The president is absolutely immune from criminal punishment for “actions within his ‘conclusive and preclusive’ constitutional authority.” The majority gives as examples exercising the pardon power and (apparently) commanding the armed forces. Congress can’t criminalize “conduct within his exclusive sphere of constitutional authority,” writes the court. “Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions.”

But most of what a president does will not fall within so clear and sharp a definition. The chief executive also undertakes what the majority labels “acts within the outer perimeter of his official responsibility” — a category, alas, for which the majority provides no clear examples. The court does tell us, however, why the criminalization of such conduct remains a cause of constitutional concern:

A president inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. And if a former president’s official acts are routinely subjected to scrutiny in criminal prosecutions, “the independence of the Executive Branch” may be significantly undermined.

For those acts, the president is entitled to a presumptive immunity — that is, he cannot be prosecuted under the Constitution unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.”

Finally, there is no immunity for “unofficial” acts, although, as the chief justice ruefully concedes, “Distinguishing the President’s official actions from his unofficial ones can be difficult.”

And here’s the part that Trump will probably be happiest to read: Sometimes, “speaking to and on behalf of the American people” will qualify as an official action; and “in dividing official from unofficial conduct, courts may not inquire into the President’s motives.”

How does the special counsel’s indictment fare under this test?

First, supervising the Justice Department is part of the official duties of the president, so he may not be prosecuted for those conversations. Second, Trump’s pressure on Vice President Mike Pence to find a way to derail the counting of the electoral votes might fall within the outer perimeter of official conduct, so that the prosecution must show that investigating the conduct will not intrude upon the function of the executive branch.

The remaining charges — the events of Jan. 6 and the jawboning of other public and private officials to overturn election results — the court sent back to the lower courts to decide whether they were outside the president’s official duties.

This is where the majority bestows a major gift on the prosecutors: “There may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity — perhaps as a candidate for office or party leader.”

With that single line, Roberts neatly disposes of what might otherwise have been Trump’s strongest defense: that running for reelection is among the official duties of the president.

I doubt that the line was included without any thought to its implications. As Justice Sonia Sotomayor writes in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, “(t)he indictment paints a stark portrait of a President desperate to stay in power.”

And although most presidential speeches will qualify for immunity, the prosecutor might plausibly argue that there is no threat to the workings of the presidency when the government investigates a fiery speech to an angry crowd two weeks before the loser in an election is set to leave office.

That’s why I’m not all sure that Trump is the big winner here. If staying in power isn’t an official duty — a point on which I take the entire court to agree — then the former president may yet be in trouble.

Stephen L. Carter is a Bloomberg Opinion columnist, a professor of law at Yale University and author of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”

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Timberwolves rookies know they can win big now if they buy into roles

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Players of the caliber Rob Dillingham’s caliber — top 10 selections in NBA Drafts — often go to rebuilding franchises who are at least a year and often more away from contention.

So imagine the 19-year-old guard’s surprise when he was selected — via trade — by a team playing in the Western Conference Finals just a month ago.

“It was just a crazy experience, for real, to even think about. The Timberwolves are one of the best teams in the NBA, so I wouldn’t think I would go to a contender right off (the) rip,” Dillingham said at the Timberwolves’ rookie introductory press conference Wednesday. “Me seeing I was going to the Timberwolves was just a blessing, and I was just happy that I got to learn from so many vets on the team and so many players that (have) done it. Talking to coach (Chris Finch), he just made me feel comfortable and he told me I’m going to have a role as long as I have responsibility and do what I’m supposed to do. I feel like it’s a two-way street. As long as I keep it the right way, then it’s going to go good.”

Wolves veterans have already reached out to Dillingham and fellow first-round pick Terrence Shannon Jr. Specifically, Dillingham noted his interaction with Mike Conley. That, he noted, was “a big thing” because that’s Minnesota’s floor general, a title Dillingham could own in the future.

“He’s a legendary point guard. He was just telling me it’s a great fit and a great spot for me to learn… Learning from him is a big thing for me,” Dillingham said. “Mike, Rudy, Jaden McDaniels, KAT, all of them just hit us just saying it’s going to be a good situation. As long as we’re willing to work, it’s going to happen.”

Dillingham, who averaged 15.2 points and 3.9 assists in his one season at Kentucky, will certainly have an opportunity to play a large role off the bench in the upcoming campaign — both Finch and Wolves president of basketball operations Tim Connelly have said as much. Shannon, who was one of the top scorers in the country at 23.0 points per game in his fifth season at Illinois, may have opportunities to contribute, as well.

Those roles won’t be as large as some other first-round picks. It’s unlikely either will be in the rookie of the year race, as that honor often goes to a player with high usage who racks up volume stats in bulk. Even if Dillingham is an efficient scorer off the bench, as he was at Kentucky, his minute load figures to cap in the mid-20s.

That may be for the best, at least as far as Finch is concerned. He’s often been skeptical of the idea of rolling out the ball to let young guys make mistakes and learn in structure-less basketball.

“I think the best opportunity to develop young talent is to develop them into specific roles. Those roles are usually defined by teams that are ready to win and are winning. You know what you need and you can go in there and, first and foremost, try to excel in that role,” Finch said. “It’s great to have young players playing a lot of minutes, giving them a lot of opportunities. But, sometimes, they can maybe bite off a little more than they can chew. So I think in our situation, with the opportunities that we have, it’s certainly there for them. There’s roles to be had, roles to be earned. But we also know what they look like and how specific those are. That’s where we’re going to start. If you can nail that, we try to grow everyone’s game from there.”

The rookies, at least for the time being, seem to have bought into the philosophy. Dillingham reiterated how good Minnesota was a season ago and noted he and Shannon will do “whatever we can do to make them better.”

“It’s going to be the little things. That’s what we’re going to do,” he said. “We’re not focused on everything that’s around us. We’re just going to make the best of what we got and whatever coach wants us to do, we’re going to make sure it happens. If it don’t, we’re not going to be on the floor.”

But if they do, they could be part of a special season in their rookie campaign.

“I expect on winning a championship. That’s what we came here to do,” Shannon said. “They fell a little short this year, but there’s always next year, and that’s what we plan on doing.”

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Woman, 81, sentenced to life in prison in cold case love triangle murder in western Wisconsin

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A judge sentenced an 81-year-old woman Tuesday to life in prison for a western Wisconsin cold case murder.

Mary Josephine Bailey is eligible for parole after 20 years, which was the law in 1985 when the offense was committed, but it doesn’t mean she’ll be released, said Polk County Attorney Jeffrey Kemp.

A jury recently found Bailey guilty of first-degree intentional murder in Polk County Circuit Court for the killing of 45-year-old Yvonne Carol Menke, who was shot outside her St. Croix Falls apartment before work on Dec. 12, 1985.

Yvonne Menke (Courtesy of the Polk County Sheriff’s Office)

Bailey was considered a suspect in the early days of the investigation, as several people told law enforcement that Jack Owen, Menke and Bailey, whose last name then was Lunsmann, had been “involved in somewhat of a ‘love triangle,’” the criminal complaint said.

That aspect of the case became stronger during the eight-day trial, said Holly Wood Webster, Polk County assistant district attorney.

“We learned information from one of Ms. Bailey’s friends back then about her having been outside of Yvonne’s apartment when Jack was there, had been kind of pointing up at the window where Jack and Yvonne were” and she was jealous, Wood Webster said.

Another witness saw Bailey parked outside of Menke’s apartment one night after midnight. The evidence showed Bailey “had been essentially stalking Jack and Yvonne,” Wood Webster said.

Victim’s children talked about their loss

Bailey did not speak during the sentencing hearing, according to Kemp. Bailey’s attorneys did not return calls seeking comment.

Menke’s children talked in court Tuesday about “how this wasn’t just killing their mom, but it had an impact on their whole family of not having their mom there,” Wood Webster said. Menke’s youngest child was 16 when his mom lost her life.

Another child discussed the guilt she’s carried “from feeling like she had given the murderer information to complete this crime,” Wood Webster said. In a phone call the day before Menke was killed, a person asked about Menke’s morning routine. One of Menke’s daughters thought the caller was a friend of her mother’s, “just wondering when she’d be available to talk,” never knowing it was “someone intending to kill her mom the next morning,” the prosecutor said.

The crime also ruined Christmas for the family, Kemp said. “Every December that rolls around they’re just reminded of their loss,” he added.

Cold case solved

Prosecuting a cold case was difficult because there were witnesses who had died and some people’s memories had faded, Kemp said.

Mary Josephine Bailey (Courtesy of the Maricopa County Jail)

Menke was shot three times in her head and neck in a stairwell of her apartment complex just before 6:30 a.m. Investigators found a boot print in snow near Menke’s body, with the word “Arctic” visible in the area where the front of the heel would be, and the same boot prints about a block away.

That was “the strongest piece of physical evidence” in the case, Wood Webster said. It was an Arctic Cat brand boot, women’s size 5. There were about 1,000 of that style and size of boots sold worldwide between 1973 and 1985.

“That’s a small number of boots,” Kemp said.

Bailey’s boots, a pair of size 5 Arctic Cat snowmobile boots, were submitted to the Wisconsin State Crime Laboratory for comparison to the boot prints found at the murder scene. The lab concluded her boots were consistent with the sulfur casts taken by officers at the scene in terms of tread pattern, size and wear pattern, according to the criminal complaint.

“The rest of it is all part of a puzzle — you put together all the pieces,” Wood Webster said. “Some of them were known back then and some of them weren’t learned until more recently. … But when you put all those pieces of that puzzle back together, it really only pointed at (Bailey).”

Polk County investigators worked the case again in late 2021 and into the winter of 2022, re-interviewing witnesses and others who had knowledge of Owen, Bailey and Menke. Owen died in October 2021, while living in Montana with his wife.

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By Next Century, Hundreds of Critical NYC Buildings Risk Frequent Flooding: Study

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A report that projects the impact of sea level rise on the U.S coastline ranked New York as the ninth state with the most critical infrastructure at risk of flooding in 2050, and the sixth in 2100.

Adi Talwar

A person paddle boarding on the Hudson River.

Sea level rise driven by global warming is on track to put critical New York buildings —like public housing complexes, hospitals, schools and power plants—at risk of frequent inundation, a recent study by the Union of Concerned Scientists found.

Rising sea levels bring on high tides and amp up the intensity and frequency of coastal storms, both of which lead to flooding.

The report, which looked at nearly 1,100 assets along the U.S. coastline, ranked New York as the ninth state with the most critical infrastructure at risk of flooding in 2050, and the sixth in 2100. For the mid-century mark, Louisiana came in first place and New Jersey in second. 

In New York, 55 crucial sites could be at risk of flooding, on average, twice annually by 2050. Of those, 39 would be at risk of flooding once a month and 34 could flood once every other week, the report says.

By the end of the century, the number of critical locations at risk of flooding twice a year could jump to 374. Of those, 281 would be at risk of flooding once a month and 253 once every other week.

These projections aren’t even based on a worst case scenario. They assume a medium rate of climate-driven sea level rise, based on the estimate that the oceans will rise at a global average of 3.2 feet by 2100.

Juan Declet-Barreto, a senior scientist at the Union of Concerned Scientists who helped author the report, says the looming deadline should be a call to action.

“Policymakers and governments need to be using the latest and best science on sea level rise impacts to plan for coastal resilience and create policy that will lead to good adaptation and that won’t ignore the problem,” he said.

 Local officials have been racing to protect New York City’s 520-mile shoreline from the rising sea. “Since 1900, sea level in our city has risen 12 inches and is projected to continue to increase by as much as 6.25 feet by 2100,” a Department of Environmental Protection (DEP) spokesperson said in an email.

To tackle the issue, the city has added over 13,000 green infrastructure assets, like rain gardens and storage tanks, that collect water when flooding occurs to keep sewers from overflowing. Starting in 2026, all city-owned infrastructure and public facilities will be required to meet a stringent set of design criteria to better withstand extreme weather.

There are also attempts to raise entire plots of land that are vulnerable to flooding. The East Side Coastal Resiliency project, for instance, seeks to elevate lower Manhattan’s East River Park by approximately eight feet and install “flood protection in the new space beneath it,” according to the DEP. 

This resiliency effort is one of at least 10 city-led projects that aim to use floodwalls, land elevation and floodgates to keep water out. But of these 10, the DEP says only three have started construction.

Mayor’s Office of Climate and Environmental Justice

A map of planned coastal resiliency projects.

Meanwhile, federal plans led by the Army Corps of Engineers to barricade the city from coastal storms with over 82 miles of floodwalls, levees and deployable gates are yet to leave the drawing board. And environmentalists claim the plan has major pitfalls.

“The Army Corps project to date has not incorporated sea level rise as one of the problems that they are trying to solve,” said Kate Boicourt, director for the Climate Resilient Coasts and Watersheds team at the Environmental Defense Fund (EDF). 

These barriers, Boicourt says, are designed to close the city off when a storm hits and won’t prevent impacts from sea level rise that are progressive and long term. Failing to address that could put the lives of New Yorkers at risk, environmentalists warn.

“It can mean losing access to power and losing things that electricity provides to people like food, heating and cooling. It means people might be pushed out of their homes without having anywhere to go,” said Victoria Sanders, the climate and health programs manager at the NYC Environmental Justice Alliance (NYC-EJA).

“It can mean all sorts of really devastating consequences for a lot of New Yorkers, but especially for those who are most vulnerable,” she added.

To reach the reporter behind this story, contact Mariana@citylimits.org. To reach the editor, contact Jeanmarie@citylimits.org

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