>The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority's reasoning, he now will be insulated from criminal prosecution. Orders the Navy's Seal Team 6 to assassinate a political rival? Immune.
I would consider this an extreme knee jerk take, but it's Sotomayor saying it.
> The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive. The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.
It's worth considering the case of Anwar al-Awlaki, an American citizen, that was killed by Obama outside of a combat zone. (I'm avoiding the word "assassinated" because it seems overly charged.)
In theory, some prosector could have decided to charge Obama with a crime, and maybe even achieved a conviction in a jurisdiction where he's unpopular.
This decision says that shouldn't happen because it was an official act as president.
Of course, if congress doesn't like something a president is doing, they can change the laws and remove his or her legal authority to do something.
> if congress doesn't like something a president is doing, they can change the laws and remove his or her legal authority to do something.
Yep. The ruling says that if the President is acting within the legally and constitutionally defined scope of their duties then they shouldn't have to wonder if they'll later be prosecuted for it.
That seems fine on its face, but the problem people keep raising is that we live in a world where the President is legally empowered to do things that are seriously problematic. That's a very real concern, and it's been a concern at the very least since Bush and 9/11.
So the obvious answer to this ruling is to fix that. The President shouldn't have to wonder if they'll end up prosecuted for doing things that are within the scope of their official duties, so what we need to do is more clearly define and limit those official duties so that the President doesn't have to guess what will be seen as crossing an imaginary line when the administration changes.
> The ruling says that if the President is acting within the legally and constitutionally defined scope of their duties then they shouldn't have to wonder if they'll later be prosecuted for it.
The other big problem is how do you resolve a question of whether the president is acting within the legally and constitutionally defined scope of their duties? If there is a presumption of immunity and precluded from examining motive, it may be nearly impossible to establish the facts in cases where the president is acting improperly.
> If there is a presumption of immunity, it may be nearly impossible to establish the facts in cases where the president is acting improperly.
Well yeah that's true. But uh, you are talking lawyer talk with a set of opinions, insincerely held, because they are most concerned with "owning the libs" above everything else.
This is the obvious answer to any supreme court ruling you want to change: congress can simply change the law/constitution.
A giant part of the issue of commonlaw systems is that so much of the "law" is not laws but rulings and those are a lot easier to change/ignore/overrule.
"Change the law" versus "change the constitution" are two very different things.
The US couldn't pass the ERA, which just enshrines women's rights in the Constitution. Anything more controversial like "the President can't do extrajudicial murders" would be an endless partisan battle
No. The remedy Congress has is impeachment, not “change the Constitution”. Even if Congress could easily change the Constitution (they can’t), it would not apply to actions taken previous to the change.
Whether laws can be applied retroactively is decided by the constitution :)
But yes, what I meant is that the supreme court has the power to interpret the law and uphold the constitution, but it is on the legislation to draft precise laws.
> That seems fine on its face, but the problem people keep raising is that we live in a world where the President is legally empowered to do things that are seriously problematic. That's a very real concern, and it's been a concern at the very least since Bush and 9/11.
I agree with you - it's not like Bush has been held accountable in any way. Neither has Cheney, and we know Rumsfeld never will. Congress needs to get off its' duff and regulate. That requires people to organize to make them. I'm not seeing it happen.
The case of Anwar al-Awlaki is exactly the kind of case where I think the president should face criminal liability for murder. Although, as he was murdered in a foreign country, no court in the US has jurisdiction for the president to be prosecuted; but if he had been murdered on US soil, it would be absolutely appropriate for a jury to decide whether or not it is justifiable for the president to order the death of somebody merely for speaking the wrong words.
Another topic that hasn't come up quite as much is the fact that this is an immunity proposition, not a defense. What SCOTUS is saying is that we aren't permitted to even ask if the president is reasonable in his beliefs; any trial on the merits is completely and totally foreclosed--that's what immunity means. Just a few days ago, SCOTUS decided that it's absolutely important that administrative law procedures need to go through the step of being heard by a jury trial, and now here it's saying that it's absolutely important that the president never be burdened by the prospect of having to have a jury weigh their actions.
It's just... really galling that SCOTUS would decide that the constitution requires that the president be a king above the law, exactly the sort of thing that England fought a few civil wars over before the US even sought its independence.
> as he was murdered in a foreign country, no court in the US has jurisdiction for the president to be prosecuted
You're underestimating the creativity of prosecutors. :)
For example, they could have charged him with conspiracy to commit murder in any location where Obama met with others to discuss killing al-Awlaki.
Or a future president, like Trump, could have pressured a federal prosecutors to bring charges in Federal Court, since they can bring charges for crimes committed against Americans globally.
That's not true. He was a sitting president, elected in 1968, and a bunch of the scandal was about his re-election campaign in 1972. He was successfully re-elected to a second term but then those events caught up with him over the following two years, causing him to resign in 1974.
> This decision says that shouldn't happen because it was an official act as president.
And of course, if it's something that the Supreme Court wants a president to face consequences for for partisan reasons, they can simply use their majority to say that whatever they didn't like was not an official act.
I can't tell what your stance is on the al-Awlaki assassination? If the leader of a country orders an extra-judicial killing, especially of one of their own citizens, that seems like it deserves criminal penalties.
People get very judgemental when Putin assassinates defectors, but when Obama does it it's ok?
I know this is what you're saying but just to head any other knee-jerk responses, US citizens do not lose their rights to a trial in the US, for breaking a US law, because they happen to be outside of the US.
Relatedly, when the question is "is this person protected by the Constitution," imagine a Venn diagram where one circle is "US citizens" and the other circle is "human being physically present within the United States." Debate over the 100-mile "border zone" notwithstanding, the entire thing is filled in. If you are a US citizen anywhere, or a person inside the US, you have all the Constitutional rights.
I think it means that he is liable for anything he does that is illegal if those illegal things aren't powers granted by the legislature.
If the president air strikes people and uses drone strikes using whatever system congress has said that makes that "okay" then he cannot be prosecuted for murder while authorizing and ultimately conducting drone strikes (in most circumstances).
However, if the president is having is own feud with some guy he doesn't like and finds a way to get him drone struck, that would not be covered by immunity because he wasn't acting as president in that capacity in any legally recognized way.
> However, if the president is having is own feud with some guy he doesn't like and finds a way to get him drone struck, that would not be covered by immunity because he wasn't acting as president in that capacity in any legally recognized way.
Why not? US presidents have murdered US citizens abroad with drones. All he needs to do is claim he did it under national security. SCOTUS explicitly calls out that the presidents motives are immaterial for determining immunity or not.
And we have a way to deal with that. It's called impeachment and is the process by which one tries a sitting president for things that are part of his/her official powers. Impeachment is not a legal process but a political one. Congress can try a President for anything at any time, if they can muster enough votes for it. That's what the Supreme Court has said before -- Congress's motivations for impeachment are above any judicial oversight.
(1) before today, there was no solid answer to what immunity a president may have
(2) it's unclear whether 'January 6' is an 'official' act (or even Trump's act at all, as he was not involved, denounced the rioters immediately, and called for a peaceful assembly)
Said in an attempt to stop the election process, then followed by hours of suspicious silence in the ensuing assault, I think the intent is pretty clear.
Impeachment doesn't actually deal with it at all. It's basically impossible to impeach anyone with the way politics is polarized these days, plus the only result is that the president is removed. They don't actually face any consequences for their actions as the Supreme Court is saying they can't be prosecuted even after leaving office.
> It's basically impossible to impeach anyone with the way politics is polarized these days
That's because no president has committed any supposed crime of any importance.
Nixon probably did, but resigned anyway, and was then pardoned, so it doesn't really matter.
Clinton was a technicality, and never removed from office, and no one cares really. Lewinsky is a celebrity now.
Trump... well the first one was obviously political (many Presidents deny foreign aid, etc... it's part of foreign policy. Biden is famously on tape as admitting to doing the exact same thing) and the second one was on thin ice as Trump explicitly called for peace
He wasn't impeached for denying foreign aid, he was impeached for making the aid conditional on helping him personally in his campaign for re-election. A fairly obvious case of corruption.
"Using the powers of his high office, President Trump solicited the interference of a foreign government, Ukraine, in the 2020 United States Presidential election. He did so through a scheme or course of conduct that included soliciting the Government of Ukraine to publicly announce investigations that would benefit his reelection, harm the election prospects of a political opponent, and influence the 2020 United States Presidential election to his advantage. President Trump also sought to pressure the Government of Ukraine to take these steps by conditioning official United States Government acts of significant value to Ukraine on its public announcement of the investigations."
I think that swapping a legal process guaranteeing my rights for a political process guaranteeing* my rights is a poor trade.
I thought the USA was a country of laws, not kings.
* actually guaranteeing that if the president is trampling my rights and a supermajority of congress don't like it, he'll be ejected from office, not anything to do with my protection or restitution.
> I thought the USA was a country of laws, not kings.
It is. The 'official' duties of presidents and the federal government are clearly laid out in the Constitution and subsequent laws. And moreover, the Presidents term expires at the end of four years, whether he believes it does or not. The concern-trolling over Jan 6 is something else. Even supposing the rioters had murderous intent and were going to hang people (they weren't... this was just a protest gone wrong)... trump would still cease to be president on January 20. No action needs to be taken to elect another one. The Presidency would fall to whomever is next in line and duly elected.
There is no way for a President to become a 'king'. The most years a President may serve is eight and at midnight on January 20 (or noon, I forget), no one listens to him anymore
> * actually guaranteeing that if the president is trampling my rights and a supermajority of congress don't like it, he'll be ejected from office, not anything to do with my protection or restitution.
Currently, the recourse you have if you believe the president is violating your rights is to file a civil action in a federal court. No action of congress is needed for you to do this. If your complaint is that SCOTUS, as the court of final appeal, may get your case wrong... indeed that is worrisome and indeed it's happened before, but if that's your complaint, then it has nothing to do with this case.
Wrong. Fitzgerald specifically shields the President from civil suits. The Court will not help you at all.
Your only recourse would be waiting until the President is out of office, then getting DoJ onboard to press criminal charges, with all the due process that entails. Fitzgerald explicitly provides no protection in the case of criminal litigation over and beyond that of an ordinary citizen for a former President.
We can all think of something one president or the other has done that we each believe should have led to their removal from office, yet it hasn't once happened through impeachment.
that sounds not totally crazy until you realize that you've just said that the president can kill all Congress members who think that killing Congress members is an impeachable offense
EDIT: to clarify: Any president up until now, and from now going forward, has the power to command his generals to murder every senator, justice, and governor. Of course, American soldiers take an oath to the constitution, so hopefully this wouldn't happen, but he could. Moreover, anyone can 'just' murder all living politicians and declare themselves king. This is hardly a theoretical scenario to concern oneself over.
Trump also very publicly ordered the extra-judicial execution of US citizen Michael Reinoehl, after which he murdered by US Marshals in Lacey, Washington. He brags about this all the time, even in the first presidential debate in 2020.
There's one crucial flaw. What is and is not covered by immunity can only be decided by a court, after the fact.
Intimidating the court into ruling in your favor with guns to their heads is an official act until the court says it isn't official, but the court can't say it isn't offical, because they've got guns to their heads.
That crucial flaw is the fundamental structure of our legal system. It's why case law is a valued and necessary part of our legal doctrine. Humans are bad at predicting the future, and attempts to write prescient laws often end with significant loopholes that must be corrected after the fact.
That this system fails to work when it's axioms are ignored (i.e. in the stated case of a coup) cannot be construed as a failure of common law or an indictment on its 950+ years of success. Such act would be a failure of the Executive solely.
The founder's stated intent for resolving such a situation is why we have the 2nd amendment.
> I think it means that he is liable for anything he does that is illegal if those illegal things aren't powers granted by the legislature.
Many disputes about presidential actions are about what the constitution allows.
The majority said In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.[1]
Unfortunately, the majority decision has the sentence
> At a minimum, the President must be immune from prosecution for an official act 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.
Since imprisoning the president would obviously intrude on the functions of the Executive branch, it really looks like the majority opinion is that no president may be prosecuted for any "official act".
No the court was clear that motivation can not be used to divide official and unofficial behavior:
> In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such a “highly intrusive” inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose. Fitzgerald, 457 U. S., at 756. Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. Otherwise, Presidents would be subject to trial on “every allegation that an action was unlawful,” depriving immunity of its intended effect.
So it's not really immunity they are after, but super-immunity. It's not enough that he should be found not guilty in most or almost all cases, but that he should not even be accused, even have his actions inspected or judged. They have done away with the right to discovery, and covered the executive in an almost impenetrable veil. That is just royalty with extra steps.
I think that's a bit unclear. They have this standard where things that are part of a presidents "core constitutional powers" enjoy absolute immunity and anything else enjoys "at least presumptive immunity". I think this hints that some members of the court wanted to go further, but anyway I'm not quite sure what "presumptive immunity" means in the context of the law, but I think this quote gives the most clarity for me.
> 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.” Fitzgerald, 457 U. S., at 754. Pp. 12–15.
This seems to be the real boundary. To show something doesn't have immunity you either have to:
1. Show it was an unofficial act
2. Show it wasn't part of the core presidential powers and that prosecuting it wouldn't have any danger of intruding intruding on "the authority and functions of the Executive Branch."
I think that last standard is related to presidential immunity from subpoena which courts have also recently construed quite broadly
The part of the text you quoted that really sent shivers down my spine was:
> Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.
So now the president can clearly break the law, and he cannot be questioned about it if it even remotely looks like maybe it could have been an official act? Surely, the correct ruling wold be that anything illegal is intrinsically not an official act, otherwise we wind up where the institution of the government is not bound by its founding documents. The executive branch of the government is a rogue entity with nothing to restrain it, as long as the president remembers to use a pompous looking stamp. For *certainly you can never show it was an unofficial act if you are not allowed to investigate because it is presumed an official act subject to absolute immunity *.
Mark my words. The next republican president will shut down any and all attempts to even question him or view documents, by preempting the investigation using this as his argument. And shortly later they will, most likely, start disbarring and / or incarcerating anybody who attempts to investigate him for "frivolous" persecutions that impede the executive branch. This ruling is very calculated, since they know Biden will not abuse his powers because of it, but there is an almost unstoppable amount of latent power that will be immediately abused by the next president.
>However, if the president is having is own feud with some guy he doesn't like and finds a way to get him drone struck, that would not be covered by immunity because he wasn't acting as president in that capacity in any legally recognized way.
When it comes to it, this exact thing will be covered by immunity because of how things work.
I believe the best clarificstion there is that you have to consider the person and the office separately. When acting as the president and largely executing his duties as defined by Congress and the Constitution, he can't be charged. If the person does something outside of the office's powers then immunity doesn't hold.
Meaning, if the president shoots a random bystander on the street they can be charged with murder. If the president orders a military strike as part of an official operation and done through proper channels, they can't be charged if it later turns out the intel was bad or the strike went wrong in some way.
Simply envoking the title of the office doesn't mean the act falls within the lawful powers of the office.
Think of it like the police. An off duty cop is not acting under official powers. Even on duty, a cop is limited in what and how they are supposed to do their job and crossing outside those bounds technically makes them personally liable. I wouldn't begin to say we are any good at actually holding police accountable when they act outside their official duties, but that's a whole separate can of worms.
It's not impossible to prosecute a president though. If he commits murder... that's not an official act. It's not part of the duties of his office in any reasonable take.
Or, if the President uses his powers to assassinate a governor -- again, explicitly not an official act, as the president has no authority over state elections.
If anyone bothered to read the constitution, it clearly lays out the sorts of things that could be construed as official, and the sorts of things that are not. The President does not have unlimited authority. His scope of authority is rather small, even if several important things fall under it. Part of the problem is the pervasive idea in American electoral politics that the president has some sort of power to 'promise' various laws and such. It's so silly since no President can possibly do that.
> If he commits murder... that's not an official act.
Not true, it depends on how he does it. If he hacks someone to death with a sword, that's not an official act, and it doesn't matter why he does it. But if he orders Seal Team 6 to assassinate a political rival, that is an official act. This example is specifically stated in the dissenting opinion.
> But if he orders Seal Team 6 to assassinate a political rival, that is an official act. This example is specifically stated in the dissenting opinion.
One of the key things about a dissent, is that it's not the opinion of the court, but just that judge.
In general, one would hope Seal Team 6 would not follow such an act as they owe allegiance to our system of laws before any presidential order.
> One of the key things about a dissent, is that it's not the opinion of the court, but just that judge.
Can you find anything in the opinion of the court that would preclude it? I can't.
> In general, one would hope Seal Team 6 would not follow such an act as they owe allegiance to our system of laws before any presidential order.
It's a strange world we live in where a president can order something illegal but not face any consequences. I suppose you could argue we already lived in such a world, but now the difference is that he can brazenly do it.
> It's a strange world we live in where a president can order something illegal but not face any consequences. I suppose you could argue we already lived in such a world, but now the difference is that he can brazenly do it.
We always lived in such a world. I know you might think the court did this to protect Trump, but realistically, the one who's more protected (since murder is a much worse crime than anything Trump's been accused of) is Obama, who ordered the murder of an American citizen by the American military.
I'm not sure what your standard of brazen is, but since he basically got not even a threat of impeachment for that, I'm going to go with that being much more brazen.
Not that I particularly care. Obama made the right call IMO.
Ordering the assassination of an American citizen not caught in the act of doing something illegal is illegal and Obama should be prosecuted for that. But his justification was that it was for national security, and as you say, some people think that's a fine justification. If his justification were that he didn't like the cut of his jib, then you'd be against it I assume.
As things lie now, rationale and justification don't matter in determining whether something is prosecutable or not, and that's scary, to me at least.
EDIT: Also, did you see my question from an earlier post:
>> One of the key things about a dissent, is that it's not the opinion of the court, but just that judge.
> Can you find anything in the opinion of the court that would preclude it? I can't.
> If his justification were that he didn't like the cut of his jib, then you'd be against it I assume
So this may surprise you but the government of the United States is naturally immune from any case where it kills you or harms you in any way.
Congress has consented to being liable because it thinks that's nice, but it withdraws consent whenever it wants. The entirety of the idea of 'suing' or 'prosecuting' the government is something that only happens with the governments consent and they regularly withdraw it if it's upsetting the them
Your family could not sue the government* and obviously, being dead, you'd have no standing in court.
* You cannot sue because the federal government and all state governments are immune from all civil suits naturally. Congress has consented to be sued because it thinks that that's a nice approach, but it can always choose to not be sued if it wanted to
Yes. Hopefully the military wouldn't coup. But notably, the US President ordering them to perform a coup would be immune from prosecution, because it's an official act.
> If anyone bothered to read the constitution, it clearly lays out the sorts of things that could be construed as official, and the sorts of things that are not.
6 members of the Supreme Court said Distinguishing the President’s official actions from his unofficial ones can be difficult.[1]
Realistically, not being a lawyer myself, it is painfully obvious that the vast majority of people do not have even a modicum of the nuance necessary to fairly judge anything.
Ok, so what happens when the president says something along the lines of 'will no one rid me of this troublesome congressman' and then turns around and pardons the secret service agent that pulls the trigger?
Technically, the murder is illegal, but the pardon is legal because it's 'part of his official duties'.
Presidents can already pardon people who murder their political opponents. Famously, the Reconstruction-era presidents pardonned every single confederate so as not to divide the country further and increase tensions.
You are clutching pearls over something that is already allowed. Like I said, Congress can impeach a president who does this if they don't like it.
Moreover, a president can't pardon state level offenses anyway, and I would imagine the murder would have to take place in a state. The state could simply retry the case. States have much more discretion in the sorts of things they can criminalize.
Exactly and all the things which he has to just sign also fall under official, even if he was just briefed quickly on it and does not have a clue what’s going on.
It means, cynically, that the president may be prosecuted if the courts deem the action "unofficial" and not otherwise. Which is to say that the court has removed checks and balances for the case where the SCOTUS and Executive branch are held by the same party.
Cleary, clearly this was a partisan decision. They can't just say "We Have a King Now", so they dressed up just enough of a reasonable interpretation to be able to kill this particular prosecution, while allowing themselves wiggle room to prosecute the kings they don't like. They aren't really trying to uncork executive abuse, they really hope it doesn't happen. But they want Trump not to be prosecuted, and put their fingers on the scale with what they hope is just enough pressure. We'll see.
Exactly. They needed to come up with a decision which would give them the power to decide this case in the way they preferred, but also to decide future cases completely differently, for example in the case of a Democratic president.
On the one hand: if you are president and you authorize the nuclear bombings of Nagasaki and Hiroshima to get Japan to surrender without further loss of American life, you won't later be prosecuted for war crimes when your political rival comes into power.
On the other hand, if you are president and you murder a Japanese person you see on the street when going for a stroll outside the white house, you can be prosecuted for that.
There is a distinction to be drawn between The President (the office) and the President (the person). The latter is not above the law with respect to all criminal prosecutions. The former is.
No, the Court said that the President could not be prosecuted for actions that the President takes while being The President. If the President is not being The President then they can be prosecuted. If the President beats his/her wife/husband, then they can be prosecuted because that's not something The President is involved in.
So if the President calls another official over the secure line and tasks them to falsify election results and then prevents the transcript from going into the archive, how do you even get em? Practically speaking. That's the problem, that's how it works -- use the office immunity, plausible deniability and procedure rules to your advantage. Making it so is asking for trouble, just waiting to be abused the hell of.
They could just argue the PRA is impeding their ability to communicate with the people within the executive branch and are thus immune to the punishments of the PRA.
idk man, probably the same way that they get mafia bosses who write their plans on little pieces of paper that are given to henchmen who then burn them
I understand your point and I'm not saying it's a great spot to land at, but I don't understand how the country's President can function if it were any other way. It's not just about Donald Trump, it's about 1 through 44 and 46 through whatever number we get to before this whole place burns down.
The court only said that a specific thing (him directing the justice department to look into the election) was an official act. The person is presumptively immune from prosecution for official acts under the constitution.
I mean, it's still really bad, but a few slivers less bad than you say :P
> the court has left nearly no sphere in which the president can be said to be acting “unofficially.” And more importantly, the court has left virtually no vector of evidence that can be deployed against a president to prove that their acts were “unofficial.” If trying to overthrow the government is “official,” then what isn’t? And if we can’t use the evidence of what the president says or does, because communications with their advisers, other government officials, and the public is “official,” then how can we ever show that an act was taken “unofficially?”
> while the Supreme Court says “unofficial” acts are still prosecutable, the court has left nearly no sphere in which the president can be said to be acting “unofficially.”
Agreed, this is a key function of interpreting the law.
If the people don't like a landmark case (i.e. the disagree with the interpretation), Congress can pass a new law. If a new law contradicts the court's opinion, the law takes precedence.
> If the people don't like a landmark case (i.e. the disagree with the interpretation), Congress can pass a new law. If a new law contradicts the court's opinion, the law takes precedence.
Exactly, this isn't a gotcha. This is one of the basic checks on Congress.
Congress can also impeach justices, which is one of their checks on the Judicial branch. They also have the authority to confirm the Executive's judicial nominees (one of their checks on the Executive).
But, they didn't invent any new tests here. Baseline, what they want to achieve is to stop the prosecution of Donald Trump in its tracks, and they'd like to use no more and no less overreach to achieve that. If it comes back to them, and they need to hammer harder, they will do that. But, the key goal is to protect Trump.
So, they can invent tests later, after they see how this decision affects the prosecution.
> the court has left nearly no sphere in which the president can be said to be acting “unofficially.” And more importantly, the court has left virtually no vector of evidence that can be deployed against a president to prove that their acts were “unofficial.”
Judicial review didn't exist until the Supreme Court invented it out of thin air as well! Since the foundation of the country, we have allowed the SCOTUS a degree of legislation from the bench.
> while the Supreme Court says “unofficial” acts are still prosecutable, the court has left nearly no sphere in which the president can be said to be acting “unofficially.”
Trump murdering his business partner at a dinner because they had a fallout is pretty clearly unofficial, while Trump ordering assassination of the Tyrant of Ruritania is official, albeit probably immoral and/or dangerous to boot.
Of course the grey zone between those two poles is going to be pretty wide.
The question becomes what if the President then uses their power to jail/execute political rivals? How would you rule that as unofficial? Tons of dictators jail rivals on the “official” business of maintaining order or peace or some other nebulous term. The presidents role to enforce law is so broad that it can be used to justify almost any act.
This, so much this. Nobody ever jails political opponents, obstructs justice and bullies media in their unofficial capacity. If there is immunity, it will be used to do all kinds of shticks.
> there is also no way to prove it’s “unofficial,” because any conversation the president has with their military advisers (where, for instance, the president tells them why they want a particular person assassinated) is official and cannot be used against them.
> Trump murdering his business partner at a dinner because they had a fallout is pretty clearly unofficial
Why? The majority said In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.[1]
You listed two extremes to demonstrate the difference, which is fine, but what about the example of Trump encouraging insurrection? It seems just a teeny bit relevant here, given that it is what prompted the case in the first place. And insurrection is definitely related to governing, so you can't discard it from consideration just because it's nothing like murdering a business partner. He could claim that an illegal decision was about to be made and so he had to use his executive authority to counteract it. That sounds like an official duty to me.
> He could claim that an illegal decision was about to be made
He doesn't even have to provide such a justification because the court has said the President's motives cannot be used to decide if it was official or unofficial.
<< If trying to overthrow the government is “official,” then what isn’t?
It seems a lot is assumed in that one sentence. Did he give an order that said 'Overthrow!"? If not, what, exactly, did he do? And this may be a part of the issue. Everything is a hyperbole wrapped in performative anger.
In other words, can you name an action that you deem unofficial that would qualify as 'overthrow"?
Failing to execute his office by failing to defend the Capitol
Telling the Proud Boys to stand by rather than stand down
Encouraging a vitriolic crowd to take back their country and transferring blame to Pence, who was going to be in the Capitol performing his Senate duties.
---------------
There comes a time when we have look past the mob-boss-need-for-explicit wording schtick and recognize a space as a space.
<< Encouraging a vitriolic crowd to take back their country and transferring blame to Pence, who was going to be in the Capitol performing his Senate duties.
Yeah, I.. I think you will want to find a better example than what he actually said[1]
<< Failing to execute his office by failing to defend the Capitol
So a lack of an official act is an official act? This does not fall under what I asked for, but good try.
<< Elector conspiracy
You have something there, but you want something more concrete. What was his exact step that was NOT an official act in your view.
<< Telling the Proud Boys to stand by rather than stand down
You have something there, but again not much to go after unless you want to argue actions vs words.
<< There comes a time when we have look past the mob-boss-need-for-explicit wording schtick and recognize a space as a space.
Listen, rules exist for a reason. You break those rules and you deal with consequences of that break. If Trump did not break those rules and you think those rules do not meet the current needs, then you may want to change those rules, but arguing 'well, he is guilty of something' is a little silly and, frankly, against the very foundation of this country.
The funny thing is, you clearly recognize the 'exact wording' issue as an obstacle to put him away.
This is an extra fun opinion because it lets the court selectively interpret which acts are official and which are not. If it's a politician they agree with ideologically all their acts are official. If not, the offending acts are clearly unofficial.
The silence from the people who once decried the 'activist court' now that it's an ally of the slow fascist transformation is deafening.
I also think this is an interesting contrast with the decision to overrule Chevron from just a few days ago. There it was decided that executive agencies have no authority to interpret unclear statutes, under the constitution this was kind of a power grab from the executive to the courts. The conservative movement general sees government agencies deriving all their powers from the president, so it's a bit funny that they would decide this first case to give agencies no wiggle room in their interpretation of the law and this next one to give the president maximum wiggle room. It kind of makes you wonder
I don't think that's the dispositive part of the opinion for Sotomayor's hypo though. Roberts finds that the President enjoy absolute immunity for acts that can be construed as part of the "conclusive and preclusive authority" of the Presidency, and presumptive immunity for acts within the 'outer perimeter' of their authority. Furthermore:
> In dividing official from unofficial conduct, courts may not inquire into the President’s motives.
So the hypo cannot be trivially resolved by treating the kill order as an unofficial act. Instead, for the president to be _criminally_ liable, I think (as not-a-lawyer) it has to be resolved by piercing 'presumptive immunity' for actions beyond the core powers. While there's a needle to thread, it feels disturbingly narrow.
As noted by nostramo [0], Obama already set the precedent of ordering hits on US citizens. The answer to Sotomayor's concern here seems pretty obvious: if we're concerned that the President can order hits on US citizens for invalid reasons, then we need to be very clear in the laws that ordering hits on US citizens without due process is not within the President's official authority.
I don’t think this is a helpful comparison. A citizen in the service of an enemy engaged in war against his country does not enjoy the protections of an arbitrary citizen. We can rightly argue whether that theory wholly fits the facts of al-Awlaki, but it’s a very, very long bridge from that case to Sotomayor’s hypo
Not really—once you've crossed that bridge it's a short hop to the government arguing that the political rival was a terrorist who needed to be killed.
Due process is about validating the government's claims before allowing it to kill someone.
I think and hope that the results of this ruling will be less extreme than the dissent warns. It could potentially be very bad, though. The word “official” is doing a lot of lifting in this ruling. If it is not interpreted too liberally, then perhaps not that much is “official” and thus immune. If it is interpreted the other way, then this could be bad.
> The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution.
That seems like the majority opinion agrees.
It'd be hard to argue that commanding the military wasn't an official act of the president under the Constitution even if that command was to Navy's Seal Team 6 asking them to assassinate a political rival for reasons of "national security"
Yeah but isn’t “the president has presumptive immunity for any act done in the service of the executive” and “the president can order military executions with immunity” kinda the same assertion, assuming “presumptive” is allowed to do its work? What’s the difference? I don’t understand how you could possibly argue political violence by the executive is “personal”, when they claim it’s done in the service of their oath…
No because "presumptive" isn't as strong as you think it is. All defendants have the same presumptive innocence and yet are convicted much more often than not at trial.
But presumption of immunity is different from presumption of innocence. You can't face a trial if you are immune. That's the entire reason this is before the court now, before the trial has even started. They are very different things. The presumption of immunity here is way stronger than you realize.
I can't reply to your last comment since it's nested so deep: "Help me understand how you read "courts may not inquire into the President’s motives", then. That's a ruling, by the Supreme Court, that they can not do so in this specific case."
There's scopes to the application of the ruling. An extrajudicial killing of a political opponent certainly falls outside of scope.
Help me understand how you read "courts may not inquire into the President’s motives", then. That's a ruling, by the Supreme Court, that they can not do so in this specific case.
Then it sounds like Sotomayor is being extreme by conflating domestic political assassinations as an "official act." Does she not understand the difference?
Not the exact scenario you described, but a similar scenario occurred in the past:
"... al-Awlaki ... was an American-Yemeni lecturer, and jihadist who was killed in 2011 in Yemen by a U.S. government drone strike ordered by President Barack Obama. Al-Awlaki became the first U.S. citizen to be targeted and killed by a drone strike from the U.S. government."
couldn't be it reasonably construed as an official act if the president believed that person was a member of a terrorist group? the post 9/11 Authorization of Use for Military Force grants the president the use of all "necessary and appropriate force" in prosecuting terrorists.
Depriving someone of their constitutional rights cannot be an official act by definition. Arguing that it can be is just word games in a world where words stop mattering.
The court opinion literally says pressuring the vice president to try to not certify the election was an official act related to talking about the limits of his roles and responsibilities.
We are already well into stupid word games territory.
What is your counter argument, from the actual opinion?
> The court opinion literally says pressuring the vice president to try to not certify the election was an official act related to talking about the limits of his roles and responsibilities.
This isn't how Supreme Court cases usually work. Most of the time, as in this case, they clarify some things and send it back to the lower courts.
The Court here ruled that the President is entitled to immunity for official acts and sent the case back to the lower court to determine if Trump was acting in his official capacity as President or in his capacity as a political candidate.
>This isn't how Supreme Court cases usually work. Most of the time, as in this case, they clarify some things and send it back to the lower courts.
I'm actually a member of the Supreme Court bar, and have been involved in a number of supreme court cases, so i'm fairly aware of how Supreme Court cases work :)
They did what I said:
"Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice
President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct"
No it doesn't. The conclusion III(B)(2) of the opinion:
> It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.
Yes it does - the part you cite was written because they found it an official act with a presumption of immunity that the government has some chance to rebut. If it had been an unofficial act, there would be no immunity at all.
Here:
"Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice
President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct"
> 'Official act' does not currently have a legal definition. It isn't defined in this majority opinion and it hasn't been given a definition previously.
It sounds like it does, from the majority opinion:
> The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive. The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.
So it sounds like "official acts" means an act "exercising his core constitutional powers."
Should an official act done in furtherance of a crime be official?
I think the problem is that the section regarding evidence, c3 iirc, says that any evidence implicating a criminal unofficial act must itself be unofficial, and not related to presidential acts.
The definition of words. It is unconstitutional to infringe on constitutional rights. Official actions are made such by the granted authority. No unconstitutional action is supported by the granted authority of the constitution.
> So if you belive that the election was stolen, and organize a military uprising to fix that, then what?
Or if you don't believe the election was stolen. The court said In dividing official from unofficial conduct, courts may not inquire into the President’s motives.
The ruling is extremely wishy washy about what is official vs unofficial, and keeps saying that it is very hard to determine, and even prohibits prosecutors from using certain legal tactics to determine if something is official or unofficial.
The Supreme Court wasn't even asked to define exactly what is official versus unofficial in this case. It will now return to a lower court to address that point, which is the normal way for the process to work.
A president could put a bullet through a political rivals head and say he was "to the best of his ability, preserving, protecting, and defending the Consitution of the United States" if that political rival was calling for the "termination of all rules, regulations, and articles, even those found in the Constitution" and was preparing to do it.
I could see the argument being made that yes, that's an official act. You'd have to argue why it's okay for a President to abandon their oath of office.
That's explicitly arguing for the possibility then? Seems like splitting hairs and not a big leap to understand why the dissent might reference a take so wild as - yeah it's okay to murder your political rivals if it's official!
So, for the next election, if Biden decides to pressure several state officials for them to choose him as the state winner instead of the real election result prevailing, there would be no prosecution. So why wouldn't he do it? Oh yes, basic honesty and being faithful to his country (unless that being old and confused, he decides to do just that, so two reasons there for him not to be held responsible).
During the Supreme Court hearings, has anyone asked the hypothetical of a president deciding to send Team 6 to get rid of some members of the Supreme Court? No prosecution for that too?
Just call it necessary for national security with some BS reasoning and thin or made up evidence and suddenly it’s an official act. There are so many ways a president could twist pretty much anything into an official act.
This is a terrible take. The Supreme Court case severely limits even the use of evidence to prosecute a President. The majority ruling says that as long as something is done in "official" capacity the intentions don't matter.
EDIT: This ruling probably retroactively clears Nixon from Watergate. It would make it illegal to use the tapes as evidence against him.
Would it? I am skeptical about this take and I am skeptical of Sotomayer’s take. What official capacity would Nixon have been undertaking? What official capacity would a seal team six assassination of trump be designated as?
I’m also skeptical of her dissent strategy; dissents are key places to limit a ruling. Why not just say what seems crystal clear and say ‘nothing about this ruling should be taken to mean calling something an official act as a fig leaf for criminality is okay; it’s not okay to assassinate a political rival ever.’ Instead she says it might be okay by the ruling. I dislike this approach in the extreme; it feels like grandstanding and complaining about the Roberts court rather than engaging with her own substantial influence.
>Would it? I am skeptical about this take and I am skeptical of Sotomayer’s take. What official capacity would Nixon have been undertaking?
For the Nixon tapes, today's SCOTUS ruling would require the prosecution to convince a federal judge before trial that the value of the tapes in the criminal case greatly outweighs the general immunity from oversight presidents have when consulting advisors. Difficult, but not impossible. It probably would've given the same result in the Nixon case, because Nixon didn't use presidential powers to carry out the plan (just the cover up in the Saturday Night Massacre stage). If he had used an active FBI agent instead of a former one to place the bugs, then it might have been OK, according to today's ruling (see III.B.1 which grants immunity to Trump for his sham investigations using the DOJ).
>What official capacity would a seal team six assassination of trump be designated as?
The President is the head of the military and can direct them without consulting Congress. Congress is free to impeach him if he does so without authorization, but he'd have absolute immunity because this is a core power of the office.
Maybe you meant, "What reason could there be to justify that killing in the name of the nation or its people?" In which case, the President would never have to say. His motives are not even allowed to be investigated. See III.A from the majority opinion:
>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.
I believe that 18 U.S.C. § 1385 specifically bans the US military from acting on US soil, full stop. And, while we are currently in permanent war post 9-11, in general the President needs to wait on an act of Congress to engage in deploying the military. I'm by no means a lawyer, much less a legal or constitutional scholar, but I think my question stands, maybe better written as:
Given that such acts are banned by law, (deployment of troops on US soil, for instance), how would a President who wanted to assassinate his rival be able to claim this occurred within his official capacity?
I would generally agree with the court that putting justices in charge of weighing Presidential motives isn't really a world we've had or would want. But others of course might disagree.
To quote the majority opinion: "Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial." Sounds almost impossible & a pretty definitive statement.
Does it say anything about the person who carries out the order from the President?
If a member of Seal Team 6 did assassinate a political rival of the President, would they also be immune from prosecution? To me it sounds like the kind of order they would refuse.
I think that's rather her point. We are already doomed.
Think about how the Executive handled rival political movements in the past. The Black Panthers. CPUSA circa 1919. Now imagine Fred Hampton had been running for President when he was killed.
The line between "political opponent" and "enemy of the State" can become pretty blurry. This ruling gives the Executive broad power to act in its own interests when it can claim the line is blurry.
No, it's not. Because contradictions exist (is it official when it's unconstitutional? Is it official because it's mentioned in the constitution?) and are not yet resolved.
Anything laid out as a Presidential power in the Constitution is definitely an "official act". What is left for definition is everything else, from my understanding.
IANAL, but those seem like constitutional acts, and have absolute immunity, rather than simply presumptive immunity.
From the article:
> “Under our constitutional structure of separated powers, the nature of presidential power entitles a former president to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority,” Chief Justice John Roberts wrote for the court. “And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.”
There aren't just 2 types of acts. There are 3: constitutional, official, and unofficial.
> At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is entitled to at least presumptive immunity.
Article 2, which talks about the president's powers, is vague and has not been stress tested to the same extent it's likely to now be (it seems like there will be a lot of debate around minutiae for years, just based off the trump presidency and charges brought).
As such, the phrase "exercise of his core constitutional power" is significantly less straightforward than it might seem at first glance.
If you read through the ruling, a lot more questions arise than answers. And Sotomayor's dissent only highlights how they don't know themselves. And it's not as though it was clear before this ruling. It was unclear, and this ruling says very little in practice.
Under the same line of thought, soldiers in the military will always follow what their commander say, least order to comes to remove a soldier and their loved ones.
Get control of the senate. It wouldn't have mattered if they gave him his day, he wasn't going to get nominated. The republicans nominated Robert Bork back in the day, and the dems (then in control of the senate) voted it down. It's basically the same thing - the system working as intended.
Republicans refused to hold the vote on Garland, spouting off nonsense about “No new justices in an election year”. The same people rammed judges through in Trumps last year. Typical right wing hypocrisy.
It would have put a lot of prominent Republicans - including Senate Majority Leader Mitch McConnell - in an awkward position because a number of them had previously said he was a great candidate for the court.
So, they either make a liar out of themselves, or become a rank hypocrite.
Anyway, I'll grant it's symbolically different and it wasn't a good look. In practice though, the senate has to be on board with the nomination and in both cases they were not and it didn't go through in either.
The funny thing is.. we are in a similar spot now too -- what with gerontocracy unwilling to let go of power -- and, it will likely surprise no one, amazingly long lived consequences.
And if the last nine years have proven anything, most of the system will say "well, that wasn't technically a line, just something we've always done a certain way that was up for change at any moment's notice should one person decide to do so."
It is, frankly, moon logic. The President is commander-in-chief, ergo, they are immune from prosecution when issuing an order to the military, even if the order is illegal? Because the Constitution says the President can issue orders and doesn't say anything about whether those orders need to be legitimate or justifiable in any sort of national context? Repeat for the Justice Department, or Immigration, or any of the many offices that fall under the executive branch. Apparently if the President is insane, or corrupt, or treasonous... that's a problem for all of us, but not necessarily a problem for the President.
Really does a number on the ‘unlawful order’ doctrine for military accountability. Has SCOTUS made ‘just following orders’ a valid legal defense?
They’ve also made much of the fact that the presidential authority to pardon is constitutionally unreviewable, so even if the president orders someone to commit a crime, he can pardon them preemptively. His appointment power is similarly in the constitution, so he can also fire and replace them until he finds someone willing to do it.
Are we really left with ‘if the president were to issue illegal orders to his staff, Congress would definitely impeach him’?
The president telling any member of his cabinet to do anything is presumptively an official act, and the evidence of him doing so is categorically forbidden from being used as evidence. (Hell, that's more extreme than even Trump's lawyers asked for! This basically overturns US v Nixon in its quest to elevate
This is an opinion that might make sense if we were being asked if a president ordering drone assassinations makes him liable for murder. In the context of the president trying to instigate a coup for not being reelected, to the point that his own government is threatening mass resignation if he carries it out in protest at the sheer unconstitutionality of it... this is the kind of question that almost begs SCOTUS to say "make a narrow ruling as to whether or not this specific instance is permissible" and SCOTUS decides instead to make a grand, sweeping proclamation for all ages and circumstances and neglect to look at the specific facts in this case and leave it unanswered here.
Roberts, let this case be your Dred Scott decision, your Korematsu decision. You've certainly done more to torpedo the credibility of the court in one decision than any other case in the past few decades... and that's saying quite a bit.
We were doomed when Republicans decided that impeachment was a partisan tool and could not be used against Trump. They broke the system by abandoning their constitutional duties so we are now looking into the abyss.
A do-over of both impeachment trials in the Senate would seem to be necessary, given that many senators went on record as saying they believed presidents were subject to criminal prosecution and chose not to convict for that reason. This changes that calculus.
That... is a bold misstatement of basic facts. IIRC[1] Democracts introduced a bill to impeach Trump in very partisan fashion, and then cried foul when Republicans made an attempt to impeach Biden. Amusingly, this is partially how we got to see the other part of the Hunter Biden laptop saga.
But to your main point, do you remember why Democrats tried to impeach Trump? I am leaving it as a question, because I am curious how you are intending to defend that record.
They impeached Trump twice, members of both parties voted to impeach both times (more in the latter than the former).
The first time Trump used his power as president of a superpower to attempt to force a poor country to make up a fake investigation into his political rival. This is bad, basically unprecedented.
This is literally because the individual in question was notably corrupt and not for political gain.
>> It wasn't because Shokin was investigating a natural gas company tied to Biden's son; it
was because Shokin wasn't pursuing corruption among the country's politicians, according to
a Ukrainian official and four former American officials who specialized in Ukraine and
Europe.
> Ah, yes, the ever-present siren song of bipartisanship[2]. House had 10 defectors
Just a point of reference for me though. Would one count the impeachment as bipartisan or are we just playing with words? I mean, we can, but it gets silly fast.
<< because the individual in question was notably corrupt and not for political gain.
I did not you ask why. You used qualifier unprecedented, which was inaccurate ( I am giving you the benefit of the doubt ). And this is before we get to the part that finding a non-corrupt official there is kinda hard ( edit: which makes the distinction irrelevant ).
You are not one bit concerned that it is a little like saying "There is pee in the ocean"? It is certainly true, but it is irrelevant. I guess what I am saying is that you are technically correct[1] when it comes to definition, but wrong where it actually matters -- reality. I might as well start calling ocean pee now.
<< the problem is pressuring Ukraine for dirt on your opponent.
Is this the fragment[2] you are referring to?
"I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it. I would like you to find out what happened with this whole situation with Ukraine, they say Crowdstrike… I guess you have one of your wealthy people… The server, they say Ukraine has it. There are a lot of things that went on, the whole situation. I think you’re surrounding yourself with some of the same people. I would like to have the Attorney General call you or your people and I would like you to get to the bottom of it."
Seems like a reasonable request does it not? edit: if not, why not?
The reality is Democrats and Republicans both said Trump should be removed from office. Amash and Romney the first time, a dozen more the next.
> "I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it. I would like you to find out what happened with this whole situation with Ukraine, they say Crowdstrike… I guess you have one of your wealthy people… The server, they say Ukraine has it.
This is a QAnon-tier conspiracy theory not based in fact, so yeah it seems like an unreasonable request.
<< The reality is Democrats and Republicans both said Trump should be removed from office. Amash and Romney the first time, a dozen more the next.
Hmm. No. The reality is vast majority of Democrats and minimal amount of Republicans in House voted for Trump to be impeached ("House of Representatives "shall have the sole Power of Impeachment"[1] ) and Senate tries that impeachment ( same source ).
I will restate what I said in previous post. You are right on a technicality thanks to how politicians from both parties have used and perverted the word bipartisan. With that out of the way, I suppose we can argue over perception of this and I can tell you that I have yet to meet someone in person, who would argue with a straight face it was a not a partisan show.
<< This is a QAnon-tier conspiracy theory not based in fact, so yeah it seems like an unreasonable request.
Hmm. Well, I don't want to be too much of a pedant, but the facts are not known until a request for inquiry is made. Trump wasn't asking to determine whether Sailor Moon did 9/11. That would be crazy and/or unreasonable. Based on the standard placed by Biden ( see previous post ), this was not completely unreasonable ( though I can easily say questionable and maybe even dumb ).
Still, note that QAnon/conspiracy theory keywords mean nothing to me and do not present a valid argument; it is a lazy dismissal at best. Frankly, given the frenzy with which Democrats and affiliated media pursued this story made me think there was some fire behind the smoke. Now, I mostly dismiss it, but I don't know who knew what when.
You know the majority can read the dissent right? If they felt it so silly they could have addressed it. Rather than contesting the claim they dismiss it because they feel its not as likely as other (seemingly non-mutually exclusive) concerns:
> The dissents’ positions in the end boil down to ignoring the Constitution’s separation of powers and the Court’s precedent and instead fear mongering on the basis of extreme hypotheticals about a future where the President “feels empowered to violate federal criminal law.” [...] The dissents overlook the more likely prospect of an Executive
Branch that cannibalizes itself...
Also important to note is that the hypothetical didn't sprout from thin air, Trump's lawyers (whose arguments SCOTUS in large part accepted) acknowledged that extrajudicial assassinations would fall under official acts.
That's not what they say, you cut off their actual response:
> The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next. ... Virtually every President is criticized for insufficiently enforcing some aspect of federal law (such as drug, gun, immigration, or environmental laws). An enterprising prosecutor in a new administration may assert that a previous President violated that broad statute. Without immunity, such types of prosecutions of ex-Presidents could quickly become routine.
Their argument isn't that it's not likely, it's that there's another failure mode that is even more likely.
The US has a long history of relying purely on executive latitude and good faith to get things done. We now have a bad faith actor who wants back in the Oval Office with far fewer restrictions on his power. A lawsuit or criminal charge would absolutely be a good remedy in that situation.
Furthermore, it's the implementation of a system. What the justices of the majority said today is "there is no system". When there is no system to deal with problems, then humans make them up ad-hoc, which usually results in violence, if history is any indicator - and it is.
That's a lot of words to not contest that political assassinations are covered under this framework of immunity.
> Their argument isn't that it's not likely, it's that there's another failure mode that is even more likely.
I know its hard to imagine, but I strongly feel there is some amount of presidential immunity that mitigates what they are worried about without also enabling political assassination.
You're misreading the text. It's not saying "if presidents assassinated their rivals they'd cannibalize themselves", it's saying "if executive branches got in the habit of prosecuting past presidents for official acts we'd be in a load of trouble, and that's a more likely scenario than assassinations."
Reasoning that more-or-less overlooks the entire history of the United States' treatment of bad political actors, from the Nixon pardon through the Lincoln pardons of the Confederates all the way to the multiple times Aaron Burr escaped justice for his prior service to the country.
It does make one question why this SCOTUS seems to think the future will break with precedent. Almost as if they're laying the groundwork for some significant changes to past decorum...
> But this Court has essentially made it clear that Trump isn’t going to be prosecuted. He gets to try to co-opt the political process and attempt a coup with impunity. We are doomed.
Well, then it sounds like sending a Seal team after him might be an official act.
A lot of people, myself included, expected some carve out for "official acts". There was never going to be blanket immunity and the Court was going to take the case just to agree with the DC Circuit Court of Appeals [1]. SCOTUS slow walked this case. They could've taken it back when they were asked to in December. They waited until the end of hte term to deliver a verdict. The verdict ensures that any trial court findings of "official court" are going to simply make their way back to this exact same court.
The majority opinion even had the gall to call the prosecutions "hasty" when we're largely talking about things that happened in 2021.
But this decision is so much worse than many (myself included) expected. Not only is there blanket immunity for "official acts" but there is presumptive innocence for anything on the peripherey. Even worse, if something is a statutory or constitutional power of the office of President, the reason does not matter. The reason can't even be considered in deciding if something is an "official act" or not.
So the president has the right to issue pardons with ultimate discretion. If they want to sell pardons, now they can. Why? Because the reason this "official act" happened is irrelevant. That's what the Court decided.
Same for selling judgeships or presidential appointments.
We already have the donor-to-ambassador pipeline [2]. Now we don't even need the ruse of it being a donation. The President can simply sell ambassadorships for personal gain.
My naive assumption is that ordering Seal Team 6 to assassinate a political rival is not an official nor constitutionally authorized power, and thus would be prosecutable.
Guess again! Roberts explicitly calls out orders to the military as covered by absolute immunity. EDIT: and motive is explicitly barred from review too.
An important point here is that there are both legal and illegal orders. Military personnel are instructed obey every legal order, and disobey every illegal order (at least I was).
In the military, we have the UCMJ that allows us to prosecute those military personnel that issue illegal orders. The President is the Commander-in-Chief, but he is a civilian, so the UCMJ doesn't apply. I always thought he would be charged under criminal law in that case, but it seems that this ruling precludes that.
This is true but I don't think it meaningfully checks the president, because the pardon power is also absolute and unreviewable, and does cover courts martial (as we saw in the Eddie Gallagher case). Military personnel are not required to follow illegal orders from the president, but if they do they won't face legal sanction.
Page 14 notes that the President's official responsibilities "include, for instance, commanding
the Armed Forces of the United States; granting reprieves
and pardons for offenses against the United States; and ap-
pointing public ministers and consuls, the Justices of this
Court, and Officers of the United States."
Page 17 states "We thus
conclude that the President is absolutely immune from
criminal prosecution for conduct within his exclusive
sphere of constitutional authority."
Page 26 states "In dividing official from unofficial conduct, courts may
not inquire into the President’s motives."
> Page 14 notes that the President's official responsibilities "include, for instance, commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and ap- pointing public ministers and consuls, the Justices of this Court, and Officers of the United States."
Right below that it clarifies
> If the President claims authority to act but in fact exercises mere “individual will” and “authority without law,”
the courts may say so. Youngstown, 343 U. S., at 655 (Jackson, J., concurring). In Youngstown, for instance, we held
that President Truman exceeded his constitutional authority when he seized most of the Nation’s steel mills. See id.,
at 582–589 (majority opinion). But once it is determined
that the President acted within the scope of his exclusive
authority, his discretion in exercising such authority cannot
be subject to further judicial examination.
This demonstrates where the court is drawing the lines. Fascist dictatorships are fine, so long as they keep their mitts away from private industry. Of course, at this point, who is going to stop the President if he starts seizing companies?
This ruling is like telling a hungry leopard, "you can eat anyone except for us." The hubris of this ruling is absurd. American's President Jinping won't be a Federalist.
But Truman shouldn't have faced prosecution for that should he? It was after all done to ensure victory in Korea and he stopped after the court said no with apparent authority when he did it. This case goes too far and not far enough.
This court's citation of precedent in one decision is meaningless, since they've shown a lot of enthusiasm for overturning it as soon as it no longer suits their (or their patrons') interests. See also: Dobbs, Loper Bright.
In the military chain of command an order is only an order when it is a lawful order. The president does not have any power to issue an unlawful order. That would be outside of his constitutional powers and not an official act.
Who gets to decide the lawfulness of the order, and what physical power does the Executive have at his disposal to bring to bear to tip their judgment?
iirc every US service man/woman is empowered to disobey orders. I think they call it "answering to a higher authority" or something like that, granted there are severe consequences for disobeying an order that turns out to be lawful no matter how much you don't like it.
The courts. Military courts have been handling this for a long time. No reason civilian courts couldn't apply the same standards in the case of a president.
If the president is able to bring physical power to bear, then it matters little what the law says anyway.
The previous POTUS is accused of using his office to perform a series of actions that culminated in disruption of the function of Congress.
Several Congresspeople then concluded he could not be impeached because by the time they were able to consider the question, he had left office.
This ruling by SCOTUS suggests there is now no avenue to hold such a President accountable for such actions.
... and that's before we broach the question of whether "Removal from the Oval Office" is sufficient punishment for all manner of crime the President could commit from his position of power, because that is the upper limit of the effect of a Congressional impeachment. This seems to give a sitting President carte blanche to throw the Constitution in a wood-chipper if he can interpret it is within his official acts to do so.
>The previous POTUS is accused of using his office to perform a series of actions that culminated in disruption of the function of Congress.
Yes, and was impeached for that.
>Several Congresspeople then concluded he could not be impeached because by the time they were able to consider the question, he had left office.
That's how checks and balances work. They may have made that conclusion, but the impeachment carried on anyway and failed to gain the 2/3rds majority.
>This ruling by SCOTUS suggests there is now no avenue to hold such a President accountable for such actions.
It doesn't suggest that at all.
>whether "Removal from the Oval Office" is sufficient punishment for all manner of crime the President could commit from his position of power, because that is the upper limit of the effect of a Congressional impeachment.
It's removal from office AND "the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.[0]" They can still be found guilty for insurrection after impeachment.
>This seems to give a sitting President carte blanche to throw the Constitution in a wood-chipper if he can interpret it is within his official acts to do so.
That's not how it works because at the end of the day the President doesn't interpret the law, and isn't shielded from impeachment and justice through state/federal courts as I outlined above. This is literally the majority opinion. Similarly, just because a military officer interprets their actions are lawful doesn't make them so.
The military was happy to systematically seize guns from citizens in NOLA during Katrina. They will follow unlawful orders to keep their dental plans active.
The President is the Commander in Chief; issuing orders to the military is very much an official act.
"But not for this! This would be clearly corrupt!" you may say, but the decision addresses that as well; the President's motive for the "official act" cannot be introduced as evidence!
> In dividing official from unofficial conduct, courts may not inquire into the President’s motives.
Not intent, but the location and nature of the order. If it’s not in a war zone, not targeting an enemy combatant, etc. that’s not an order that falls within the scope of the core actions of a commander in chief.
Neither is pressuring the Vice President not to certify the election, but they explicitly state it to be an official act. Page 31 of the ruling:
> Whenever the President and Vice President discuss their
official responsibilities, they engage in official conduct. Pre-
siding over the January 6 certification proceeding at which
Members of Congress count the electoral votes is a consti-
tutional and statutory duty of the Vice President.
> The indictment’s allega-
tions that Trump attempted to pressure the Vice President
to take particular acts in connection with his role at the cer-
tification proceeding thus involve official conduct, and
Trump is at least presumptively immune from prosecution
for such conduct.
They're laying out an extremely permissive standard.
But the immunity is only presumptive for acts within the outer perimiter of the president's official responsibility. For core constitutional powers, like giving orders to the military, the immunity is absolute.
Article II of the constitution specifically gives the POTUS the authority to command the armed forces. The limit is declaring war, which is vested in Congress. So it seems reasonable that commanding Seal Team 6 is specifically a constitutionally authorized power and within an official duty.
Being killed by the government without due process of law (ie: death penalty for convicted criminals) is a clear violation of your constitutional rights though, and violating someone's constitutional rights (read: going against the constitution) can't be an official act by definition.
You’re creating an “any unconstitutional act cannot be official” rule that does not appear in the ruling and is contrary to tons of statute and case law. Qualified immunity codifies that rights violations can be official acts.
And as bad as today’s ruling is, I think your proposed rule would be worse because it would create tons of liability for good faith government employees.
We can’t have a world where it’s unclear if an act is official until there’s some kind of review of its outcome. The act itself has to be official (or not).
So now we’ve left the land of settled law are are into personal opinions. Which is fair enough, I detest qualified immunity, but it is the law of the land.
This is explicitly about the POTUS being immune from prosecution for official acts like commanding ST6 to assassinate someone. Fortunately in some cases, unfortunately in others, semantic wordplay akin to “could god microwave a burrito so hot even they couldn’t eat it” has little effect in the court system. That is to say, semantic gotchas like “but actually it couldn’t be an official act because the very act is against the constitution” have no sway.
Every sentence except for the first is about word games not mattering. The first sentence is what I am also addressing, so I don't see how it is making a new point. Help me out?
This is at least the second time in this thread you've said something like an official act can't violate someone's constitutional rights "by definition". I'm wondering what definition you refer to.
That said, it's obviously a false statement. By your argument, the president ordering flight 93 to be shot down on 9/11 would not be an official act. You might now retort something about extenuating circumstances, but really that would only show you to be entirely wrong about your original assertion.
I recommend you edit your posts to correct your mistake.
And you’re are free to sue the government in that case. The DOJ won’t prosecute the president for ordering something like that even after he leaves office..
"Official Act" has not been defined, so who knows if going against the the Constitution will count. The way the law is worded it may not matter anyway, it's pretty much left up to the courts to decide.
Haven't we had Presidents order airstrikes on American citizens in the Middle East before without a trial because of their association with jihadist groups?
At a certain point the "constitutionality" doesn't matter; it's hard to make a case have a meaningful outcome when the plaintiff is dead.
We've made it very clear for decades that the President can commit acts of war without declaring it. Syria, Lybia, Iraq, Afghanistan, and dozens of other hotspots around the world.
Congress hasn't declared war after WWII. I suppose that's why you used the euphemism "congressional authorization"; instead of what was intended by the folks that wrote the constitution -- a declaration of war.
But assasinating private citizens a ok? So Biden can order the assassination of Trump? Even if you claim as someone else that you can’t violate someone’s constitutional rights within an official act, we have already killed US citizens abroad via drone strikes. So if Trump is in some foreign country we can drop an a-bomb and claim it was to kill some terrorist & that’s a ok?
The minority points out that official acts was already a defense. The majority opinion here claims that it’s an absolute immunity and even motivation is impervious to this immunity claim. This is a serious undermining of the rule of law in a substantial way and paves the way for the US to have a dictatorship at some point in the future.
So first, the distinction between official acts and unofficial acts isn’t actually defined and even Robert’s admits this ambiguity is going to be a problem:
> Determining which acts are official and which are unofficial “can be difficult,” Roberts conceded. He emphasized that the immunity that the court recognizes in its ruling on Monday takes a broad view of what constitutes a president’s “official responsibilities,” “covering actions so long as they are not manifestly or palpably beyond his authority.” In conducting the official/unofficial inquiry, Roberts added, courts cannot consider the president’s motives, nor can they designate an act as unofficial simply because it allegedly violates the law.
Basically the President has a presumption that his behavior is an official act unless it’s egregiously outside his powers but there’s also no way to really investigate it. Oh and it’s also combined with the unitary executive theory popular on the right which holds that the president basically has absolute power over all executive agencies and a growing interpretation of the powers of the president (under both parties) which is a scary scenario.
And given that the dissenting opinion from SCOTUS justices literally raises the exact scenario you’re assuming is unofficial, so dismissing it out of hand seems overly bold:
> The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.
You can disagree with the dissents, but even Justice Barrett outlines some very serious problems with the reasoning in the majority opinion while Justice Thomas says they should go further and completely rule Jack Smith’s investigation unconstitutional outright.
My naive assumption would be that giving that order must fall into the realm of official act. How can POTUS command the military, unless acting in the capacity of their Commander in Chief?
I see a lot of people here in the comments claiming that this is still knee-jerk, or silly, or obviously that would not be an "official act".
To the contrary -- this is an explicit example that came up during oral arguments, where a Trump lawyer specifically claimed that indeed, Trump could not be convicted criminally of this (unless he had first been impeached and convicted).
Nowhere in the majority opinion does it try to draw some kind of line against this. And indeed, the President is constitutionally "commander in chief of the Army and Navy of the United States", and the opinion states this authority is "conclusive and preclusive".
Quite simply, according to this decision, anything the president commands the Navy to do, including a Navy Seal, is an official act because it a power explicitly granted by the constitution, and thus immune from prosecution.
To repeat: this specific scenario was brought up during oral arguments, indeed as one of the main arguments that was also widely reported. This is not a far-flung wacko example Sotomayor came up with herself -- it's the very heart of the case. The fact that the opinion does not even attempt to explain why this would still be considered criminal, and the fact the Sotomayor is confirming why it would be allowed, is not a misreading or a mistake. It is clearly intentional and genuinely scary.
Nice bit of jujitsu by Trump's defense. Make an outrageous claim so out of bounds that any one who quotes you sounds like a lunatic.
Surely the critic is exagerating, lying, offbase, or... ? No one would seriously claim they could murder some rando on Fifth Ave in broad daylight and get away with it. Right?!
> The immunity the Court has recognized therefore extends to the “outer perimeter” of the President’s official responsibilities, covering actions so long as they are “not manifestly or palpably beyond [his] authority.”
I’m hoping that the assassination of a political rival would be “palpably beyond” the authority of the President.
Well assassination of a political rival might be but what about the killing of the perceived head of a terrorist organization who attempted a coup to overturn a federal US election? Sounds like a national defense concern that the president could decide to handle. I think this is logically in line with the ruling but is completely absurd morally.
SCOTUS explicitly says you cannot question the motive of a presidents actions when making a determination for what is protected and not.
And how, pray tell, is that compatible with them also saying that neither Congress nor Courts can call into question the motivation of the President for doing so? All the president need do is say "they were a national security concern" and they are now absolutely immune from anyone so much as presenting evidence in a trial that says otherwise!
The ultimate Congressional remedy is impeachment, which this ruling doesn't contemplate (except to reject silly arguments presented by the defense). However, the limits on congress and the judiciary are not absolute:
> 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.
It's only the executives exclusive powers (which are more limited) that cannot be restrained.
To extend the absurdity further. If the President truly believes that if their rival winning the presidency would endanger democracy, it would be the _duty_ of the President to take that action.
This seems like a path towards civil war.
[edit]
Thinking about a way out of this mess. Here's a proposal.
Biden asserts that he has this right, writes up a new amendment taking the right away, gives a date by which he will take action if the amendment has not been passed.
(Then he should probably resign for effectively blackmailing the legislative branch)
The deterrent for such action is that government officials are under the obligation to disobey orders that are unconstitutional. But that loyalty to the constitution doesn't seem to be strong anymore. High positions in the US government are now occupied by the kind of people who would follow those orders without hesitation.
It seems unreasonable to require everyone who follows orders to be an expert on constitutional law. Especially when the highest court in the land can't seem to agree.
Is it permissible to disobey an order that you merely believe is unconstitutional? What happens when your superior asserts that it is constitutional?
>> When he uses his official powers in any way, under the majority's reasoning, he now will be insulated from criminal prosecution. Orders the Navy's Seal Team 6 to assassinate a political rival? Immune.
> I would consider this an extreme knee jerk take, but it's Sotomayor saying it.
Wouldn't something like that be essentially an illegal order and therefore invalid? And/or something that would be trivial to fix (e.g pass a law saying it's not within the president's official powers to order a domestic assassination)?
> How can it be an illegal order when this decision makes all of the Presidents "official actions" legal?
Because "official actions" doesn't mean "every action" or "every action attempting to use presidential authority," I think it has to be an action exercising the constitutional powers of the president.
For instance: for the purposes of simplicity, lets assume all legislation authorizing the president to take military action without prior congressional approval has been repealed, and the congress has not declared war on anyone or authorized the use of military force in any circumstances. The president then orders Seal Team 6 to assassinate a waitress who spilled coffee on him, ruining his lucky suit. That would be illegal order since the president does not have constitutional authority to take such action on his own without authorization by congress and that authorization does not exist.
So I guess a hypothetical path forward would be a prosecutor choosing to pursue the charge, and the defense pleading not guilty on the basis of it being an official act. It would then be up to the prosecutor to prove that this was not an unofficial act, without using motive as a piece of evidence. Seems backwards, like proving a negative.
How can you prove beyond a reasonable doubt that there was no official basis for an act? Especially when the response is almost certainly going to be, "the reason for the official action is classified".
I consider this to be very similar to the Business Judgment Rule that protects CEOs and executives against lawsuits from shareholders for actions they did in their job, even if their actions turned out to be a mistake and lost the shareholders a bunch of money. To proceed with a lawsuit, the plaintiff has to demonstrate that the executive took unreasonable actions which directly resulted in harm to the plaintiff. Basically, their actions were out of the scope of their mandate, and they can be sued.
For example, the CEO hires their clueless spouse to a high paying job and the spouse loses the company a ton of money. That does not sound like the CEO was doing their job, but rather it sounds like they were putting their spouse ahead of the company. Here a lawsuit would certainly be allowed to go forward.
The argument is that the Constitution is the law which applies here. Specifically, the powers given to the executive to execute their role and enforce the acts of Congress.
> How can you prove beyond a reasonable doubt that there was no official basis for an act? Especially when the response is almost certainly going to be, "the reason for the official action is classified".
In my hypothetical? Because there's no congressional declaration of war or authorization of the use military force against the waitress, which can be determined by reading the journals of the house and senate.
Even if he had—he might have been acquitted! Even under a relatively fair trial!
The dissent notes that official acts as a defense is already A Thing. What’s changed is upgrading that to immunity, which means they can’t be tried in the first place, no defense needed. The law is simply held not to apply.
What’s exactly said and what are the practical impacts are two completely different things.
It will take many, many cases to elaborate on what defines an official act and what exactly decides immunity, and in the process we could see a lot of potential what-I’d-say is overreach.
It is far too early to declare that there will be zero side effects from this — as with literally any Supreme Court ruling.
We’ve already seen what qualified immunity gets us, and I’d bet many people didn’t expect it to go that way.
A President, if they act in an "official" capacity, cannot later be charged with a crime for something they did in that official capacity. Not "can offer being an official as a defense", "cannot be charged".
What is an official capacity? Well there's the traditional stuff like vetoes, appointments, and the like, but there's a lot of stuff that is far more nebulous. Does the President act in an official capacity when telling the Vice President what to do with regards to certifying an electoral college result? Well, if that's official, Trump has to be more-or-less let go for what happened on January 6th.
We are now basically saying that it's up to a judge - who may or may not have been appointed by the President in question - to decide whether something was an official act. If it is? Welp, sorry the President's wanton order violated your Constitutional rights, but no trial.
Official act isn't defined, so it doesn't say that.
Your last paragraph is closer to accurate, except a president doesn't just "appoint" a judge. They have to be voted in by the senate. So, if the president is a crook and nominates a crook and the senate is full of crooks and vote yes to have said crook become a judge, then yes really bad stuff can happen. But if the president is a crook and the majority of the senate are crooks, it's already all over.
So, if the president is a crook and nominates a crook and the senate is full of crooks and vote yes to have said crook become a judge, then yes really bad stuff can happen.
That’s essentially what happened with Kavanaugh, Amy, and Neil minus the judge being a crook part. Well, Kavanaugh is a rapist so for him the crook part applies. The really bad stuff is happening. You just are not aware of it.
Sure, but this is just a single decision, and who are the judges supposed to be complicit with? The current president? The last one? The next one? A specific party?
Complicit in the sense of helping to set the stage for future abuses. Not complicit in the sense of conspiring. SCOTUS has made quite a few bad decisions which set the foundation that I speak of.
The ruling certainly sets the stage for something. It's almost like they didn't want to actually rule, but rather set up a framework for making future rulings. I can't say I disagree with the approach.
> Official act isn't defined, so it doesn't say that.
It is and isn't, which is the problem.
> Your last paragraph is closer to accurate, except a president doesn't just "appoint" a judge. They have to be voted in by the senate. So, if the president is a crook and nominates a crook and the senate is full of crooks and vote yes to have said crook become a judge, then yes really bad stuff can happen. But if the president is a crook and the majority of the senate are crooks, it's already all over.
They more or less do appoint. There's never going to be a judge voted on that doesn't push a President's viewpoint, particularly not in the last thirty years. If a system doesn't take into consideration this particular contingency, it wasn't a very good system, was it?
Acts that are unconstitutional probably aren't official, by definition they are outside the scope of official duties, throw every living president into prison?
Charge every act of violence ordered in places war is undeclared as war crimes?
If not, the things they have on Trump seem like really small potatoes to zero in on.
> Acts that are unconstitutional probably aren't official, by definition they are outside the scope of official duties, throw every living president into prison?
You could make a very good case that drone strikes on American citizens in foreign lands that are a part of jihadist groups without due process are unconstitutional. And yet, it happens. According to the standard Roberts puts in place, things that are on the extreme periphery of the duties of the Presidency are exempt from criminal prosecution. Does this mean drone strikes? Almost certainly. The President has an enumerated power to command the armed forces.
I fail to see why throwing all of the living Presidents in prison is a problem, particularly if they receive a day in court before getting thrown in prison. What this ruling does is create a class of American that can do some genuinely awful things and not be subject to legal process at all. There is no process, due or otherwise. The person gets to live their life as before.
Trump's being tried because the things he did weren't small potatoes. Trying to overthrow the electoral process unilaterally is a state fair record-setting potato. It's a far more immediate and widespread risk to American life and liberty than the drone strikes on foreign land that I mentioned earlier. One impacts a few dozen Americans globally at most; the other impacts literally all of them.
> things that are on the extreme periphery of the duties of the Presidency are exempt from criminal prosecution
This is wrong, and your ability to make an argument suggests you know it is. And the most extreme acts being mentioned as risks are the exact ones where "presumptive" matters.
> This is wrong, and your ability to make an argument suggests you know it is.
citationneeded.jpg
> And the most extreme acts being mentioned as risks are the exact ones where "presumptive" matters.
Are they? Can you count on humans to not abuse power? I don't trust the SCOTUS to provide a real counterweight. These are the same people who knew that 12-year-olds would be giving birth with the overturn of Roe v. Wade, and did it anyways. The same institution that ignored votes in 2000 and appointed a President. The same institution who had no power to stop Andrew Jackson from committing genocidal acts against the Cherokee. Either ineffective or complicit in severe violations of constitutional rights.
Roe v Wade was an easy overturn from a legal perspective. Pro choice folks with half a brain knew it stood on nonsense. Obama said in 2007 he wanted to codify it because he knew it was standing on shaky logic.
While a president has total immunity for exercising “core constitutional powers,” a sitting or former president also has “presumptive immunity” for all official acts. That immunity, wrote Chief Justice John Roberts in the majority opinion, “extends to the outer perimeter of the President’s official responsibilities, covering actions so long as they are not manifestly or palpably beyond his authority.”
He very likely should have at least been tried (and probably acquitted). I don't understand this modern take so many people have that "Freedom to act" somehow means "act without consequences".
AFAICT nothing changes as far as the remedy of impeachment as a check. The court is saying that the president has broad immunity from criminal charges in the judicial system, not that he can't be removed from power.
Comparing the idea of ordering the killing your political opponent with approving an operation with killed of someone related to an Al-Qaeda and even saying it was a mistake is weird, to say the least.
> As for the dissents, they strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today—conclude that immunity extends to official discussions between the President and his Attorney General, and then remand to the lower courts to determine “in the first instance” whether and to what extent Trump’s remaining alleged conduct is entitled to immunity.
FYI, the court is not saying Trump is granting Trump blanket immunity. For three of the counts the court is saying Trump is probably not immune but prosecutors need to clarify that his acts were outside of the duties of his office.
> Unlike Trump’s alleged interactions with the Justice Department, this alleged conduct cannot be neatly categorized as falling within a particular Presidential function. The necessary analysis is instead fact specific, requiring assessment of numerous alleged interactions with a wide variety of state officials and private persons. And the parties’ brief comments at oral argument indicate that they starkly disagree on the characterization of these allegations. The concerns we noted at the outset—the expedition of this case, the lack of factual analysis by the lower courts, and the absence of pertinent briefing by the parties—thus become more prominent. We accordingly remand to the District Court to determine in the first instance—with the benefit of briefing we lack—whether Trump’s conduct in this area qualifies as official or unofficial.
I would consider this an extreme knee jerk take, but it's Sotomayor saying it.
https://x.com/mikedebonis/status/1807787300375445993