Immunity for things they do as part of their official duties. I suppose it’s reasonable but the question will now turn to what is actually an official duty.
The opposite holding, where they are liable for everything, would be untenable. Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans? It seems like that world would hamstring the president far too much.
I don’t know if they struck the right balance here (and we not know until the next time it comes up), but at least we have slightly more clarity.
Its more like "immunity for any action within the realm of presidential power, regardless of motive or criminality". Accepting a bribe in exchange for a pardon would be A-ok on the basis that pardoning is a “conclusive and preclusive”
authority of the president.
> The opposite holding, where they are liable for everything, would be untenable.
Literally no one was arguing for this and there are much more reasonable interpretations of presidential immunity you could compare this one to.
> The President’s authority to pardon, in other words, is “conclusive and preclusive,” “disabling the Congress from acting upon the subject.”
> Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority. It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.
Further evidence is that Sotomayors makes the claim in no uncertain terms and that the majority makes zero effort to dispute it.
Yes, I agree - the President is immune for the official act they undertake, the existence of which allows for a the charge of bribery.
They are not immune for the non-official act of soliciting or accepting bribes in exchange for an official act, which is the charge of bribery.
So if the President took a bribe in order to make someone ambassador to Sweden, they could not be prosecuted for making that person the ambassador, but they could be prosecuted for taking the bribe.
Note that the majority opinion forbids prosecutors from referencing the official act in court, no matter the charge. So they'd have to prove the President accepted a bribe, but never mention anything about the ambassadorship. How could a jury ever reach a guilty verdict? At most, the evidence would point to a President receiving a lavish monetary gift.
This isn't a misreading of the ruling. Justice Barret dissented from that particular part of the majority opinion, bringing up the hypothetical of bribery.
If you read footnote 3 it says the prosecutor may reference official records of the act. They simply may not reference the president’s personal records. So you are not really correct.
SCOTUS has repeatedly hemmed in the scope of bribery charges and expanded executive privilege. The only way to nail the president for a corrupt appointment at this rate would be:
Enter LOBBYIST and POTUS on CONGRESS floor
LOBBYIST: projecting voice I am now rendering payment in exchange my appointment as ambassador to Sweden. What say you?
POTUS: projecting voice Yes, I knowingly accept these improper funds and -
CONGRESS immediately gathers a quorum, impeaches, and removes POTUS mid-sentence
How can you determine that the bribe was for an official act if “… courts cannot examine the President’s actions on subjects within his “conclusive and preclusive” constitutional authority”? In other words, if courts cannot even examine the official action, then what is the bribe even for? A bribe needs to be connected to an action to be considered a bribe at all.
They can reference the action. They just can’t examine the presidents motivation. But they could present evidence like “President X received $500,000 in cash from Mr Y as recorded on this video. Two days later President X pardoned Mr Y’s brother.”
They just decided last week in Snyder v. United States that its only a bribe if you have clear evidence, and a suspicious gift is just fine and perfectly legal.
Discussing the expectations of appointments with potential candidates is an official act as president and would enjoy immunity the same way that conferring to commit crimes with the DOJ does. It is theoretically possible that the dumbest person alive could get convicted but generally the latitude seems to be insanely wide.
We just established last week that obviously the bribe would come after the official act, making it a gratuity and thus free and clear of any whiff of wrongdoing.
Well obviously… otherwise a politician paid by putin could remove the ability for the president to fire the nuclear weapons. You can’t have randos deciding what the leader can do.
The question is, will everyone surrounding a president allow the president to commit mass cullings or nuke California. And the answer is clearly not, outside of delusional fantasy scenarios.
Trump wasn’t even allowed to build a wall, and you think his VP would have let him commit genocide?
> otherwise a politician paid by putin could remove the ability for the president to fire the nuclear weapons. You can’t have randos deciding what the leader can do.
No, apparently it’s much easier and safer to just pay off the president directly.
> You can’t have randos deciding what the leader can do.
These aren't randos; they're federal prosecutors that are hired by the sitting President of the United States.
Let's say that even if there is a decision that Trump's acts aren't related to his official duties and he somehow gets punished for those charges (I wouldn't hold my breath). How does this not give Biden and future Presidents a way to seriously abuse their power with a hope that they're not held accountable for it? Before it was just a hypothetical. Now we've crossed the Rubicon and established that there are scenarios in which a President can have unlimited power.
It’s also likely that the project 2025 people will have almost every federal employee declared a political appointee which would give any sitting president the power to fire any prosecutor prosecuting him. This was one of the OMB changes Trump made at the end of his last presidency.
There are some already drawing up list of those employees for targeting during a potential second Trump term, using a grant from the Heritage Foundation, IIRC.
And that's a problem. Are we a nation of laws, or are we not? Justice delayed until someone's out of office is justice denied until someone's out of office.
That’s the goal though. Eliminate everyone competent and then leave the gutted institutions for the next series of Presidents to deal with. Or in the case of the National Weather Service gut it, replace everyone with climate change deniers, then outsource all the weather and meteorology to someone like The Weather Channel.
This absolutely opens the door to that. It gives a scenario where a sympathetic judge can immediately toss a case against a President for abusing power.
That's a tortuous use of the word unlimited. The president has very limited power that is spelled out by the constitution and proscribed by Congress. Using that limited power in the way it is permitted is not "unlimitedly using limited power."
I mean, this isn't outside the norm. Most government employees and officials either elected, appointed, or hired generally don't have personal liability for discretionary acts of their office under the principle of qualified immunity.
It's really weird to watch all that from the other side of the pond.
In my country for example, all politicians have immunity but our parliament can revoke it for anyone using a majority ruling... ( having more than two political parties helps )
Your looking at it from today's perspective, but these kinds of rules need to be looked at from the perspective of worst case scenario - don't limit it to the current candidates, think about what a future president in... Say 30yrs is gonna do.
The weihmaher republik was a pretty good democracy back in the day. It just gave the leader certain rights, and suddenly Hitler became the dictator, creating Nazi Germany.
Everyone needs a limit to their power, otherwise they'll be able to essentially flip the board and declare themselves emperor.
Please don't project what I said here onto trump, Biden or Obama. None of them are on that level. It's just possible that a future president is that morally bankrupt, especially if social issues continue to accrue/inequality keeps growing unchecked.
> Please don't project what I said here onto trump, Biden or Obama
Technically the US is in this predicament because one of them wanted his vice president to not name a successor, after mentioning several times during his presidency that he wanted a third term.
Just because he's a bad wannabe dictator, it doesn't mean he's not a wannabe dictator. He even said so himself, "just for one day".
> The weihmaher republik was a pretty good democracy back in the day.
No it wasn't. It had armed gangs, both right and left-wing, fighting in the streets, completely failed monetary policy and sky-high level of corruption. The republic just started to kind of getting back to normal for a few years at the end of 1920s, and then was wrecked with Great Depression.
> It had armed gangs, both right and left-wing, fighting in the streets
See: 2020 in the US.
> completely failed monetary policy
See printing off a lot of money to deal with an emergency because the US hasn't had a meaningful conversation about revenue since 1993 when George HW Bush went back on "read my lips"
> sky-high level of corruption
You have people on this court accepting vacations and gifts from people who are wishing to push a certain political viewpoint on the court. They just ruled this was okay, too, by neutering a federal anti-bribery statute. Money is considered protected political speech.
There are a lot of parallels between Weimar Germany and the current state of the USA. More than anyone should feel comfortable with.
> It just gave the leader certain rights, and suddenly Hitler became the dictator, creating Nazi Germany
Not it didn’t give him those rights. The parliament (including moderate parties) explicitly granted him the power to so whatever he wanted after the nazis were already in power.
> Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans? It seems like that world would hamstring the president far too much.
I feel like you'd have a different opinion if it were you getting unintentionally killed!
> Immunity for things they do as part of their official duties.
How would attempting to overturn the results of a free and fair election be considered an "official duty"? If it is, then the Presidency became a dictatorship, leaving impeachment by Congress -- an extremely difficult bar -- the only recourse.
It's only called an attempt if it fails. If it goes through till some point, it's His Royal Highness General Alladin bring order and justice and acting to grant their people all the freedoms they asked for.
Source: I'm from places that had the Supreme Court (of places, not US) overturn an election result due to fraud
> I'm fairly sure there's a full and complete list of these is explicitly in the Constitution.
Roberts disagrees in the decision (p. 17):
> Distinguishing the President’s official actions from his unofficial ones can be difficult. When the President acts pursuant to “constitutional and statutory authority,” he takes official action to perform the functions of his office. Fitzgerald, 457 U. S., at 757. Determining whether an ac- tion is covered by immunity thus begins with assessing the President’s authority to take that action.
> But the breadth of the President’s “discretionary respon- sibilities” under the Constitution and laws of the United States “in a broad variety of areas, many of them highly sensitive,” frequently makes it “difficult to determine which of [his] innumerable ‘functions’ encompassed a particular action.” Id., at 756. And some Presidential conduct—for example, speaking to and on behalf of the American people, see Trump v. Hawaii, 585 U. S. 667, 701 (2018)—certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision. For those reasons, the immunity we have recognized extends to the “outer perimeter” of the President’s official responsibilities, covering actions so long as they are “not manifestly or pal- pably beyond [his] authority.” Blassingame v. Trump, 87F. 4th 1, 13 (CADC 2023) (internal quotation marks omit- ted); see Fitzgerald, 457 U. S., at 755–756 (noting that we have “refused to draw functional lines finer than history and reason would support”).
> In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of of- ficial conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II in- terests that immunity seeks to protect. Indeed, “[i]t would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government” if “[i]n exercising the functions of his office,” the President was “under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry.” […]
> Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. For in- stance, when Fitzgerald contended that his dismissal vio- lated various congressional statutes and thus rendered his discharge “outside the outer perimeter of [Nixon’s] duties,” we rejected that contention. 457 U. S., at 756. Otherwise, Presidents would be subject to trial on “every allegation that an action was unlawful,” depriving immunity of its intended effect. Ibid.
That last point is bothersome, because if you're looking at "color of law" as a defense, when does that end?
A good example is that killer cop in Minneapolis, I don't remember his name or care to fill my brain with it. He was acting officially when George Floyd died under his care; he was responding to a 911 call that Floyd was the subject of.
The cop was convicted of murder, but let's say that POTUS does something abhorrent (and this is likely to occur now that this is case law) under color of law and someone wanted to charge him or her because of it. Does that get somehow pulled back as it did for the cop?
Trump's legal team argued, I think in this case, that a president should be immune from prosecution up to and including calling a hit on a political opponent. Which, given all the consternation about Biden persecuting his political opponent, sounded like a bit of an invitation...
Very much in the air and down to courts to decide, ordering the military around is certainly within the official acts but doing it on US soil not directly pursuant to external boundaries like the border generally wouldn't be.
Ultimately I think the issue with this is we're trying to address a deep systematic issue through the system it's infected. Often those issues can't be solved that way and have to go around the system itself somehow. You're unlikely to be able to sue your way out of a fascist coup when it's successful for example, and similarly disadvantaged when the avenue is carrying water for a failed coup.
Well, SCOTUS didn't give POTUS license to do that, but they did give license to do something awful and then have their defense team argue that the act was a part of official duties, with a chance that a judge, possibly appointed by the President, agrees.
The thing about Biden, since you brought him up, is he's unlikely to test this in any meaningful way with regards to Trump. Could he theoretically now have the USSS detail in charge of babysitting Trump indefinitely detain him, without consequence? Maybe. But he still has at least some belief in the process and won't do that.
This gives me flashbacks to lessons about von Hindenburg. An old guard who had belief in the process going by it even when dealing with someone who has obvious and sneering contempt for that process.
> An old guard who had belief in the process going by it even when dealing with
To be fair the situation in Germany was multipolar. Hindenburg wasn’t a huge fan of democracy or especially of one run by Catholics, liberals and socialists and just saw the nazis as a lesser evil..
> Could he theoretically now have the USSS detail in charge of babysitting Trump indefinitely detain him, without consequence?
I mean under what idea is that part of his official duties? If it's not it's literally exactly the same as before. Biden can do this at literally any moment. This court case doesn't change his ability to make unlawful moves.
How is that different then any executive action before the ruling? Presidents attempt to do all sorts of shit and then a judge say no. Literally nothing changed the surprise was it wasn't a 9-0 ruling not anything in the ruling.
On the other hand, if Trump marches on Washington at the head of an army surely Biden can take him out with an airstrike. Extreme scenarios often lead to bad law.
That's what happens when the unitary Executive and the Commerce Clause expand to devour the entire constitution. If we wanted to reduce the expansiveness of executive power (the Bush Doctrine), Obama was given the mandate to do it, but instead went out of his way to codify the practices which a lot of people thought had been illegal.
To borrow from a similar claim: with the combination of the "Due Process" interpretation that backed the al-Awlaki killing (where Holder explained that due process was simply a term designating whatever process that they do, and could entirely occur in one's own head), and this judgement, Trump could have stood in the middle of 5th Avenue and shot somebody and could not be charged for it. So can Biden.
-----
edit:
Ten Years after the al-Awlaki Killing: A Reckoning for the United States’ Drones Wars Awaits
> From the Magna Carta to the US Constitution, citizens have sought ways to protect themselves from the arbitrary exercise of sovereign power. The drone strike on al-Awlaki reversed this historical process with an executive process. From the so-called “Terror Tuesday” or “targeting Tuesday” meetings where President Obama personally approved targets for drone strikes to the drafting of the legal logic justifying the extrajudicial killing of an American citizen, the strike on al-Awlaki was the result of decision making within the executive branch. Completely absent from the proceedings was the judiciary, which acts as a crucial buffer and neutral arbiter between the citizen and the executive.
> In its own defense, the Obama administration argued that due process was not the same thing as judicial process and presented the test that it used to justify the targeted killing. While some observers have emphasized the narrowness of the legal standard, it was crafted specifically to target al-Awlaki, therefore reinforcing just how discretionary this exercise of executive power was. Furthermore, it was conceived of and adjudged constitutionally sufficient by attorneys who had previously opposed executive overreach during the Bush administration.
[It's interesting that the al-Awlaki killing was over speech, too. So while the executive branch is not allowed to exercise prior restraint over speech, Presidents are now constitutionally immunized for murdering people to keep them from speaking.]
Equating Trump's accusations and drone strikes only makes sense if you're not allowed to look at intent, which historically is very relevant for criminal law. More aptly Nixon would be immune from prosecution for obstructing the Watergate investigation under this ruling. In fact presidents are immune from using the justice department to go after political rivals here since determining prosecutorial priorities is clearly an official act (mentioned in the opinion) and you aren't allowed to inspect intent. If either party used the justice department specifically for personal gain they should be in jail but they are literally immune now.
The disallowing of considering even corrupt intent seems to be the real worry here. There's no distinction between using your power to promote general welfare and using it to line your own pockets or subvert democracy.
Yeah, this pearl-clutching about presidents being tried for criminal acts is loathsome. I think quite a lot of people believe that quite a few past presidents are guilty of war crimes, and that there should be real consequences for those crimes. My knowledge of history in this regard more or less begins with the Vietnam War: since 1955, I am not aware of a single president who hasn't ordered acts that are crimes against humanity. And throughout that time period, our crimes against humanity have brought ruin to much of the world. Perhaps presidents should fear the law.
Agreed. It’s not as if becoming president is forced on anyone.
Judging from history, it is a pretty dangerous role as well and that doesn’t seem to have dissuaded many people. If there are willing to risk their safety, I’d think the risk of prosecution wouldn’t rank too highly either.
This was my thought too. The ruling doesn't seem crazy; being legally liable for every single official act would actually make it untenable for the president to do many things a president needs to do without the real fear of prosecution if anything goes wrong. (And things go wrong! All the time!)
But what's an "official act"? I would hope that courts consider that definition very narrowly. Also disallowing juries to see discussion of official acts as evidence for related wrongdoing is disastrous.
Ultimately, though, it won't matter. Trump has effectively managed to delay this particular trial, and much of the remainder of its pre-trial process, until after the election and after the inauguration. I assume if he wins and takes office, he can instruct the DoJ to dismiss the case against him.
The Georgia case can still proceed, regardless of the outcome of the election, but Willis completely screwed that one up with her idiotic romantic decisions.
Edit: Since people are assuming my views on this topic, I'll say that they're seriously conflicted and I'm not trying to imply any particular viewpoint, only the facts.
I keep seeing this argument pop up about “should Obama be prosecuted” like it’s some sort of “gotcha liberal!”
And as a liberal I think “hell YES he should be prosecuted!” The government shouldn’t just go around killing citizens without due process. I don’t care what letter is by their name.
> Imagine the civil war if the union couldn't kill confederates.
A full scale civil war really is an extraordinary case and is a lot more akin to a regular war than what we are talking about here.
I'm more afraid of someone declaring war on an abstract concept (like the "war on terror") and then using broad powers meant to be used in normal wars between states that have declared combatants than I am of a civil war.
I wonder how that would play out in today's Congress. There is technically no country to declare war on, unless you can declare war on yourself, so they would have to first redefine the United States as two parts. After that is passed, they could declare war on the opposing half. I guess I'm kind of seeing how the Chinese governments got themselves tied up in knots with their continuity of state and all.
I'd imagine that you can declare war on a specific group (that does not have to be defined as a state) like the "confederate states of america" without it having to be a nebulous concept like "terror". But I don't know enough to say for certain.
If we have a declared war between the US and the people (US citizens or otherwise) who are taking up arms against the US, then sure, attack away.
But otherwise, the only remedy should be judicial process against these people: arrests, trial, etc. Otherwise we have a term for it: extrajudicial killing.
Of course, Congress has given the executive branch weird war powers over the past few decades, so legally I'm sure they're in the clear, unfortunately.
That's the appropriate patriotic response that you'd hope all Americans would give, especially those who have sworn to defend the constitution. But what I've come to realize is that a lot of Americans somehow see it as their patriotic duty to destroy the Federal government, and will support anything that will undermine it, including breaking the rule of law and a scorched earth attack on "liberals" that wish to uphold our form of government. This is the legacy of the Confederate grievance that is still very much alive today.
I hear the same shit a lot. IRL, and in right wing media. “They don’t seem to get that if they can prosecute Trump, we can prosecute Biden and Hillary for [any of several shaky charges]”
No, no: we do get that. We just think that’s a good thing. If you have the evidence (you don’t, or we’d have seen, like, any of it at all) then by all means, prosecute the absolute shit out of them!
I don't like the killing by a drone (to easy for it to be misused), I am less ok with the killing of his 16-year-old son, and even less so for his daughters killing.
But... It seems he was a member of al-Qaeda, and the "Public Law 107–40 107th Congress Joint Resolution" passed by congress did authorize:
> That the President is authorized to use all necessary and appropriate force
> against those nations, organizations, or persons he determines planned,
> authorized, committed, or aided the terrorist attacks that occurred on
> September 11, 2001, or harbored such organizations or persons, in order to
> prevent any future acts of international terrorism against the United States
> by such nations, organizations or persons.
That does seem to authorize extra-judical killing in this case. I am not really happy about any of this, but since we are talking legalities, this seems to apply.
No. It seems unlikely that the drone pilot would have all of that information beyond where the target was, that would be necessary to make an informed decision about participating in an extrajudicial execution of an American citizen.
From my experience in manned operations, you're basically only given a target, not the details.
Based on that, I would assume the targeter did not know whom they were targeting. Or they did, knew the orders came from the National Command Authority[1] (Eg. POTUS) and did it anyway. I would have.
I'm trying to point out that it is not at all easy to draw a line between what a President could be prosecuted for and what he should be prosecuted for.
I'm pretty sure one could find abuse of power committed by about every President.
Even Jefferson - he wasn't empowered to make the Louisiana Purchase, but did it anyway.
I think this particular ruling gets it really wrong, though.
For a president to be able to conduct "official acts" in self interest, with no obvious limits, is quite concerning.
I think the president should enjoy a weak presumption that official acts are legitimate. But this goes way too far-- prohibiting consideration of motives, prohibiting using them as context or evidence in any other proceeding, and appearing to classify what would be horrible abuses as official acts.
I think it was an impeachable offense, given that Democrats knew from the start that the president didn't have that power, yet he tried it anyway and let the courts strike it down. Pelosi even said once: "People think that the President of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress."
I don't know if that would be prosecutable. Is there a federal law against acting as though you have powers you do not while in office?
I suppose the difference is that having SEAL Team Six kill a political opponent on the President's orders seems like it should be classified as first-degree murder.
Look-- prosecution and liability of people holding office is tricky.
We neither want a world where every politician faces investigation for misdeeds after leaving office, nor one where apparently the president can act with impunity with no clear limits at all.
We need a middle path, where prosecution is rare and exceptional but true misdeeds can be punished (and deterred).
I feel like we left behind where we were slightly over-investigating and made a massive overcorrection to the other side for blatantly political reasons.
I wouldn't. Edu debt is insidious, but it's not worth allowing the president break whatever laws desired as long as the actions can be twisted to be considered "official".
He would have been sued with no immunity. Either by Pakistan, or by members of the family, or whomever. The fact that they had no legal basis for it is inevitable, it still would have resulted in years and years of legal pain
This is really just the formal ruling that qualified immunity is applied to the presidency. Just like with other qualified immunity, it'll be messy to figure out what should be covered an what is not.
President's can still be impeached as a result of their official acts. It seems that is intended to be the outlet for prosecuting the Executive Branch.
The problem is that impeachment is a political process, not a legal or judicial process. I feel like using the term "prosecuting" to describe an impeachment trial in the Senate is a bit of a misnomer.
Regardless, impeachment is there to remove the president from power. It can't jail or otherwise punish the president. The regular old legal system should be doing that, for everyone, regardless of whether or not they're an elected official.
Nope - and this is a key point. The framers intended there to be a mechanism to hold a president accountable - impeachment. But it is badly formed, and has never been used, even though arguably it should have been in every case it was used in.
There have been impeachment proceedings started against four presidents, all of which would qualify as it being used, even if the presidents weren't successfully impeached. Impeachment proceedings have been completed against 3 presidents and in all cases the senate vote failed to meet the 2/3 supermajority. An impeachment inquiry was also started against Nixon, but he resigned before the house could vote. One could argue that the impeachment inquiry in that case was successful.
The procedure for impeaching federal judges is similar, in that the vote needs first to pass the house, then a supermajority of the senate. In 2009, federal judge Thomas Porteous Jr, was successfully impeached by congress. Congress then also voted to prohibit him from holding future federal office.
Also impeachment only removes them from office which is far from a complete punishment. They're still completely free people after impeachment, the only right that's taken away is the ability to be President which is a pretty paltry punishment especially for second term Presidents.
That's not how HN works. People don't get to break the site guidelines regardless of the topic, and people are welcome to make their substantive points thoughtfully regardless of their views. Killing the entire thread would be to punish the latter for the former.
It's been this way for a while. Someone once made a post saying "Christianity is a perfectly peaceful religion and has met benefitted historical society" and then someone replying with "They genocided countless people and nations" would then get a "this is against site rules'.
The opposite holding, where they are liable for everything, would be untenable. Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans? It seems like that world would hamstring the president far too much.
I don’t know if they struck the right balance here (and we not know until the next time it comes up), but at least we have slightly more clarity.