Now we know that US presidents are above the law. I always assumed that was the case so this is just confirmation for everyone else who had any doubts.
The entire defense you've repeated here is one his people would love for everyone to believe - thankfully most don't. Orange man is bad for many real and legitimate reasons, the fact that he's had the legal resources to fail upwards this long not withstanding.
> In 1906, the Supreme Court of the United States ruled in United States v. Detroit Timber & Lumber Co. that headnotes have no legal standing and therefore do not set precedent.
As far as I can tell, a corporation is already not treated as a literal person, only it has some of the same rights. Simplest example, a corporation can't run for a public office. What do you suggest should be changed, no 1A for a corporation?
Yes, corporations are not people, and do not get rights, period. They're legal fictions that get privileges that we the people grant them.
If you want to represent yourself commercially as a person, your rights as a person can be extended to that legal fiction.
If you want legal fiction that you can dump when it's convenient and isn't tied to you as a person, then that legal fiction gets no rights and only certain privileges.
Immunity for things they do as part of their official duties. I suppose it’s reasonable but the question will now turn to what is actually an official duty.
The opposite holding, where they are liable for everything, would be untenable. Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans? It seems like that world would hamstring the president far too much.
I don’t know if they struck the right balance here (and we not know until the next time it comes up), but at least we have slightly more clarity.
> I'm fairly sure there's a full and complete list of these is explicitly in the Constitution.
Roberts disagrees in the decision (p. 17):
> Distinguishing the President’s official actions from his unofficial ones can be difficult. When the President acts pursuant to “constitutional and statutory authority,” he takes official action to perform the functions of his office. Fitzgerald, 457 U. S., at 757. Determining whether an ac- tion is covered by immunity thus begins with assessing the President’s authority to take that action.
> But the breadth of the President’s “discretionary respon- sibilities” under the Constitution and laws of the United States “in a broad variety of areas, many of them highly sensitive,” frequently makes it “difficult to determine which of [his] innumerable ‘functions’ encompassed a particular action.” Id., at 756. And some Presidential conduct—for example, speaking to and on behalf of the American people, see Trump v. Hawaii, 585 U. S. 667, 701 (2018)—certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision. For those reasons, the immunity we have recognized extends to the “outer perimeter” of the President’s official responsibilities, covering actions so long as they are “not manifestly or pal- pably beyond [his] authority.” Blassingame v. Trump, 87F. 4th 1, 13 (CADC 2023) (internal quotation marks omit- ted); see Fitzgerald, 457 U. S., at 755–756 (noting that we have “refused to draw functional lines finer than history and reason would support”).
> In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of of- ficial conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II in- terests that immunity seeks to protect. Indeed, “[i]t would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government” if “[i]n exercising the functions of his office,” the President was “under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry.” […]
> Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. For in- stance, when Fitzgerald contended that his dismissal vio- lated various congressional statutes and thus rendered his discharge “outside the outer perimeter of [Nixon’s] duties,” we rejected that contention. 457 U. S., at 756. Otherwise, Presidents would be subject to trial on “every allegation that an action was unlawful,” depriving immunity of its intended effect. Ibid.
That last point is bothersome, because if you're looking at "color of law" as a defense, when does that end?
A good example is that killer cop in Minneapolis, I don't remember his name or care to fill my brain with it. He was acting officially when George Floyd died under his care; he was responding to a 911 call that Floyd was the subject of.
The cop was convicted of murder, but let's say that POTUS does something abhorrent (and this is likely to occur now that this is case law) under color of law and someone wanted to charge him or her because of it. Does that get somehow pulled back as it did for the cop?
Trump's legal team argued, I think in this case, that a president should be immune from prosecution up to and including calling a hit on a political opponent. Which, given all the consternation about Biden persecuting his political opponent, sounded like a bit of an invitation...
Well, SCOTUS didn't give POTUS license to do that, but they did give license to do something awful and then have their defense team argue that the act was a part of official duties, with a chance that a judge, possibly appointed by the President, agrees.
The thing about Biden, since you brought him up, is he's unlikely to test this in any meaningful way with regards to Trump. Could he theoretically now have the USSS detail in charge of babysitting Trump indefinitely detain him, without consequence? Maybe. But he still has at least some belief in the process and won't do that.
This gives me flashbacks to lessons about von Hindenburg. An old guard who had belief in the process going by it even when dealing with someone who has obvious and sneering contempt for that process.
> An old guard who had belief in the process going by it even when dealing with
To be fair the situation in Germany was multipolar. Hindenburg wasn’t a huge fan of democracy or especially of one run by Catholics, liberals and socialists and just saw the nazis as a lesser evil..
> Could he theoretically now have the USSS detail in charge of babysitting Trump indefinitely detain him, without consequence?
I mean under what idea is that part of his official duties? If it's not it's literally exactly the same as before. Biden can do this at literally any moment. This court case doesn't change his ability to make unlawful moves.
How is that different then any executive action before the ruling? Presidents attempt to do all sorts of shit and then a judge say no. Literally nothing changed the surprise was it wasn't a 9-0 ruling not anything in the ruling.
Very much in the air and down to courts to decide, ordering the military around is certainly within the official acts but doing it on US soil not directly pursuant to external boundaries like the border generally wouldn't be.
Ultimately I think the issue with this is we're trying to address a deep systematic issue through the system it's infected. Often those issues can't be solved that way and have to go around the system itself somehow. You're unlikely to be able to sue your way out of a fascist coup when it's successful for example, and similarly disadvantaged when the avenue is carrying water for a failed coup.
On the other hand, if Trump marches on Washington at the head of an army surely Biden can take him out with an airstrike. Extreme scenarios often lead to bad law.
That's what happens when the unitary Executive and the Commerce Clause expand to devour the entire constitution. If we wanted to reduce the expansiveness of executive power (the Bush Doctrine), Obama was given the mandate to do it, but instead went out of his way to codify the practices which a lot of people thought had been illegal.
To borrow from a similar claim: with the combination of the "Due Process" interpretation that backed the al-Awlaki killing (where Holder explained that due process was simply a term designating whatever process that they do, and could entirely occur in one's own head), and this judgement, Trump could have stood in the middle of 5th Avenue and shot somebody and could not be charged for it. So can Biden.
-----
edit:
Ten Years after the al-Awlaki Killing: A Reckoning for the United States’ Drones Wars Awaits
> From the Magna Carta to the US Constitution, citizens have sought ways to protect themselves from the arbitrary exercise of sovereign power. The drone strike on al-Awlaki reversed this historical process with an executive process. From the so-called “Terror Tuesday” or “targeting Tuesday” meetings where President Obama personally approved targets for drone strikes to the drafting of the legal logic justifying the extrajudicial killing of an American citizen, the strike on al-Awlaki was the result of decision making within the executive branch. Completely absent from the proceedings was the judiciary, which acts as a crucial buffer and neutral arbiter between the citizen and the executive.
> In its own defense, the Obama administration argued that due process was not the same thing as judicial process and presented the test that it used to justify the targeted killing. While some observers have emphasized the narrowness of the legal standard, it was crafted specifically to target al-Awlaki, therefore reinforcing just how discretionary this exercise of executive power was. Furthermore, it was conceived of and adjudged constitutionally sufficient by attorneys who had previously opposed executive overreach during the Bush administration.
[It's interesting that the al-Awlaki killing was over speech, too. So while the executive branch is not allowed to exercise prior restraint over speech, Presidents are now constitutionally immunized for murdering people to keep them from speaking.]
That's not how HN works. People don't get to break the site guidelines regardless of the topic, and people are welcome to make their substantive points thoughtfully regardless of their views. Killing the entire thread would be to punish the latter for the former.
It's been this way for a while. Someone once made a post saying "Christianity is a perfectly peaceful religion and has met benefitted historical society" and then someone replying with "They genocided countless people and nations" would then get a "this is against site rules'.
Well obviously… otherwise a politician paid by putin could remove the ability for the president to fire the nuclear weapons. You can’t have randos deciding what the leader can do.
The question is, will everyone surrounding a president allow the president to commit mass cullings or nuke California. And the answer is clearly not, outside of delusional fantasy scenarios.
Trump wasn’t even allowed to build a wall, and you think his VP would have let him commit genocide?
> You can’t have randos deciding what the leader can do.
These aren't randos; they're federal prosecutors that are hired by the sitting President of the United States.
Let's say that even if there is a decision that Trump's acts aren't related to his official duties and he somehow gets punished for those charges (I wouldn't hold my breath). How does this not give Biden and future Presidents a way to seriously abuse their power with a hope that they're not held accountable for it? Before it was just a hypothetical. Now we've crossed the Rubicon and established that there are scenarios in which a President can have unlimited power.
It’s also likely that the project 2025 people will have almost every federal employee declared a political appointee which would give any sitting president the power to fire any prosecutor prosecuting him. This was one of the OMB changes Trump made at the end of his last presidency.
There are some already drawing up list of those employees for targeting during a potential second Trump term, using a grant from the Heritage Foundation, IIRC.
That’s the goal though. Eliminate everyone competent and then leave the gutted institutions for the next series of Presidents to deal with. Or in the case of the National Weather Service gut it, replace everyone with climate change deniers, then outsource all the weather and meteorology to someone like The Weather Channel.
And that's a problem. Are we a nation of laws, or are we not? Justice delayed until someone's out of office is justice denied until someone's out of office.
I mean, this isn't outside the norm. Most government employees and officials either elected, appointed, or hired generally don't have personal liability for discretionary acts of their office under the principle of qualified immunity.
It's really weird to watch all that from the other side of the pond.
In my country for example, all politicians have immunity but our parliament can revoke it for anyone using a majority ruling... ( having more than two political parties helps )
That's a tortuous use of the word unlimited. The president has very limited power that is spelled out by the constitution and proscribed by Congress. Using that limited power in the way it is permitted is not "unlimitedly using limited power."
This absolutely opens the door to that. It gives a scenario where a sympathetic judge can immediately toss a case against a President for abusing power.
Your looking at it from today's perspective, but these kinds of rules need to be looked at from the perspective of worst case scenario - don't limit it to the current candidates, think about what a future president in... Say 30yrs is gonna do.
The weihmaher republik was a pretty good democracy back in the day. It just gave the leader certain rights, and suddenly Hitler became the dictator, creating Nazi Germany.
Everyone needs a limit to their power, otherwise they'll be able to essentially flip the board and declare themselves emperor.
Please don't project what I said here onto trump, Biden or Obama. None of them are on that level. It's just possible that a future president is that morally bankrupt, especially if social issues continue to accrue/inequality keeps growing unchecked.
> The weihmaher republik was a pretty good democracy back in the day.
No it wasn't. It had armed gangs, both right and left-wing, fighting in the streets, completely failed monetary policy and sky-high level of corruption. The republic just started to kind of getting back to normal for a few years at the end of 1920s, and then was wrecked with Great Depression.
> It had armed gangs, both right and left-wing, fighting in the streets
See: 2020 in the US.
> completely failed monetary policy
See printing off a lot of money to deal with an emergency because the US hasn't had a meaningful conversation about revenue since 1993 when George HW Bush went back on "read my lips"
> sky-high level of corruption
You have people on this court accepting vacations and gifts from people who are wishing to push a certain political viewpoint on the court. They just ruled this was okay, too, by neutering a federal anti-bribery statute. Money is considered protected political speech.
There are a lot of parallels between Weimar Germany and the current state of the USA. More than anyone should feel comfortable with.
> Please don't project what I said here onto trump, Biden or Obama
Technically the US is in this predicament because one of them wanted his vice president to not name a successor, after mentioning several times during his presidency that he wanted a third term.
Just because he's a bad wannabe dictator, it doesn't mean he's not a wannabe dictator. He even said so himself, "just for one day".
> It just gave the leader certain rights, and suddenly Hitler became the dictator, creating Nazi Germany
Not it didn’t give him those rights. The parliament (including moderate parties) explicitly granted him the power to so whatever he wanted after the nazis were already in power.
> otherwise a politician paid by putin could remove the ability for the president to fire the nuclear weapons. You can’t have randos deciding what the leader can do.
No, apparently it’s much easier and safer to just pay off the president directly.
This is really just the formal ruling that qualified immunity is applied to the presidency. Just like with other qualified immunity, it'll be messy to figure out what should be covered an what is not.
Yeah, this pearl-clutching about presidents being tried for criminal acts is loathsome. I think quite a lot of people believe that quite a few past presidents are guilty of war crimes, and that there should be real consequences for those crimes. My knowledge of history in this regard more or less begins with the Vietnam War: since 1955, I am not aware of a single president who hasn't ordered acts that are crimes against humanity. And throughout that time period, our crimes against humanity have brought ruin to much of the world. Perhaps presidents should fear the law.
Edit: Since people are assuming my views on this topic, I'll say that they're seriously conflicted and I'm not trying to imply any particular viewpoint, only the facts.
No. It seems unlikely that the drone pilot would have all of that information beyond where the target was, that would be necessary to make an informed decision about participating in an extrajudicial execution of an American citizen.
From my experience in manned operations, you're basically only given a target, not the details.
Based on that, I would assume the targeter did not know whom they were targeting. Or they did, knew the orders came from the National Command Authority[1] (Eg. POTUS) and did it anyway. I would have.
I keep seeing this argument pop up about “should Obama be prosecuted” like it’s some sort of “gotcha liberal!”
And as a liberal I think “hell YES he should be prosecuted!” The government shouldn’t just go around killing citizens without due process. I don’t care what letter is by their name.
> Imagine the civil war if the union couldn't kill confederates.
A full scale civil war really is an extraordinary case and is a lot more akin to a regular war than what we are talking about here.
I'm more afraid of someone declaring war on an abstract concept (like the "war on terror") and then using broad powers meant to be used in normal wars between states that have declared combatants than I am of a civil war.
I wonder how that would play out in today's Congress. There is technically no country to declare war on, unless you can declare war on yourself, so they would have to first redefine the United States as two parts. After that is passed, they could declare war on the opposing half. I guess I'm kind of seeing how the Chinese governments got themselves tied up in knots with their continuity of state and all.
I'd imagine that you can declare war on a specific group (that does not have to be defined as a state) like the "confederate states of america" without it having to be a nebulous concept like "terror". But I don't know enough to say for certain.
If we have a declared war between the US and the people (US citizens or otherwise) who are taking up arms against the US, then sure, attack away.
But otherwise, the only remedy should be judicial process against these people: arrests, trial, etc. Otherwise we have a term for it: extrajudicial killing.
Of course, Congress has given the executive branch weird war powers over the past few decades, so legally I'm sure they're in the clear, unfortunately.
I hear the same shit a lot. IRL, and in right wing media. “They don’t seem to get that if they can prosecute Trump, we can prosecute Biden and Hillary for [any of several shaky charges]”
No, no: we do get that. We just think that’s a good thing. If you have the evidence (you don’t, or we’d have seen, like, any of it at all) then by all means, prosecute the absolute shit out of them!
That's the appropriate patriotic response that you'd hope all Americans would give, especially those who have sworn to defend the constitution. But what I've come to realize is that a lot of Americans somehow see it as their patriotic duty to destroy the Federal government, and will support anything that will undermine it, including breaking the rule of law and a scorched earth attack on "liberals" that wish to uphold our form of government. This is the legacy of the Confederate grievance that is still very much alive today.
I don't like the killing by a drone (to easy for it to be misused), I am less ok with the killing of his 16-year-old son, and even less so for his daughters killing.
But... It seems he was a member of al-Qaeda, and the "Public Law 107–40 107th Congress Joint Resolution" passed by congress did authorize:
> That the President is authorized to use all necessary and appropriate force
> against those nations, organizations, or persons he determines planned,
> authorized, committed, or aided the terrorist attacks that occurred on
> September 11, 2001, or harbored such organizations or persons, in order to
> prevent any future acts of international terrorism against the United States
> by such nations, organizations or persons.
That does seem to authorize extra-judical killing in this case. I am not really happy about any of this, but since we are talking legalities, this seems to apply.
Its more like "immunity for any action within the realm of presidential power, regardless of motive or criminality". Accepting a bribe in exchange for a pardon would be A-ok on the basis that pardoning is a “conclusive and preclusive”
authority of the president.
> The opposite holding, where they are liable for everything, would be untenable.
Literally no one was arguing for this and there are much more reasonable interpretations of presidential immunity you could compare this one to.
> The President’s authority to pardon, in other words, is “conclusive and preclusive,” “disabling the Congress from acting upon the subject.”
> Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority. It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.
Further evidence is that Sotomayors makes the claim in no uncertain terms and that the majority makes zero effort to dispute it.
Yes, I agree - the President is immune for the official act they undertake, the existence of which allows for a the charge of bribery.
They are not immune for the non-official act of soliciting or accepting bribes in exchange for an official act, which is the charge of bribery.
So if the President took a bribe in order to make someone ambassador to Sweden, they could not be prosecuted for making that person the ambassador, but they could be prosecuted for taking the bribe.
Note that the majority opinion forbids prosecutors from referencing the official act in court, no matter the charge. So they'd have to prove the President accepted a bribe, but never mention anything about the ambassadorship. How could a jury ever reach a guilty verdict? At most, the evidence would point to a President receiving a lavish monetary gift.
This isn't a misreading of the ruling. Justice Barret dissented from that particular part of the majority opinion, bringing up the hypothetical of bribery.
If you read footnote 3 it says the prosecutor may reference official records of the act. They simply may not reference the president’s personal records. So you are not really correct.
They just decided last week in Snyder v. United States that its only a bribe if you have clear evidence, and a suspicious gift is just fine and perfectly legal.
SCOTUS has repeatedly hemmed in the scope of bribery charges and expanded executive privilege. The only way to nail the president for a corrupt appointment at this rate would be:
Enter LOBBYIST and POTUS on CONGRESS floor
LOBBYIST: projecting voice I am now rendering payment in exchange my appointment as ambassador to Sweden. What say you?
POTUS: projecting voice Yes, I knowingly accept these improper funds and -
CONGRESS immediately gathers a quorum, impeaches, and removes POTUS mid-sentence
Discussing the expectations of appointments with potential candidates is an official act as president and would enjoy immunity the same way that conferring to commit crimes with the DOJ does. It is theoretically possible that the dumbest person alive could get convicted but generally the latitude seems to be insanely wide.
How can you determine that the bribe was for an official act if “… courts cannot examine the President’s actions on subjects within his “conclusive and preclusive” constitutional authority”? In other words, if courts cannot even examine the official action, then what is the bribe even for? A bribe needs to be connected to an action to be considered a bribe at all.
They can reference the action. They just can’t examine the presidents motivation. But they could present evidence like “President X received $500,000 in cash from Mr Y as recorded on this video. Two days later President X pardoned Mr Y’s brother.”
We just established last week that obviously the bribe would come after the official act, making it a gratuity and thus free and clear of any whiff of wrongdoing.
He would have been sued with no immunity. Either by Pakistan, or by members of the family, or whomever. The fact that they had no legal basis for it is inevitable, it still would have resulted in years and years of legal pain
I'm trying to point out that it is not at all easy to draw a line between what a President could be prosecuted for and what he should be prosecuted for.
I'm pretty sure one could find abuse of power committed by about every President.
Even Jefferson - he wasn't empowered to make the Louisiana Purchase, but did it anyway.
I think this particular ruling gets it really wrong, though.
For a president to be able to conduct "official acts" in self interest, with no obvious limits, is quite concerning.
I think the president should enjoy a weak presumption that official acts are legitimate. But this goes way too far-- prohibiting consideration of motives, prohibiting using them as context or evidence in any other proceeding, and appearing to classify what would be horrible abuses as official acts.
I think it was an impeachable offense, given that Democrats knew from the start that the president didn't have that power, yet he tried it anyway and let the courts strike it down. Pelosi even said once: "People think that the President of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress."
I don't know if that would be prosecutable. Is there a federal law against acting as though you have powers you do not while in office?
I suppose the difference is that having SEAL Team Six kill a political opponent on the President's orders seems like it should be classified as first-degree murder.
I wouldn't. Edu debt is insidious, but it's not worth allowing the president break whatever laws desired as long as the actions can be twisted to be considered "official".
Look-- prosecution and liability of people holding office is tricky.
We neither want a world where every politician faces investigation for misdeeds after leaving office, nor one where apparently the president can act with impunity with no clear limits at all.
We need a middle path, where prosecution is rare and exceptional but true misdeeds can be punished (and deterred).
I feel like we left behind where we were slightly over-investigating and made a massive overcorrection to the other side for blatantly political reasons.
> Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans? It seems like that world would hamstring the president far too much.
I feel like you'd have a different opinion if it were you getting unintentionally killed!
President's can still be impeached as a result of their official acts. It seems that is intended to be the outlet for prosecuting the Executive Branch.
Nope - and this is a key point. The framers intended there to be a mechanism to hold a president accountable - impeachment. But it is badly formed, and has never been used, even though arguably it should have been in every case it was used in.
Also impeachment only removes them from office which is far from a complete punishment. They're still completely free people after impeachment, the only right that's taken away is the ability to be President which is a pretty paltry punishment especially for second term Presidents.
There have been impeachment proceedings started against four presidents, all of which would qualify as it being used, even if the presidents weren't successfully impeached. Impeachment proceedings have been completed against 3 presidents and in all cases the senate vote failed to meet the 2/3 supermajority. An impeachment inquiry was also started against Nixon, but he resigned before the house could vote. One could argue that the impeachment inquiry in that case was successful.
The procedure for impeaching federal judges is similar, in that the vote needs first to pass the house, then a supermajority of the senate. In 2009, federal judge Thomas Porteous Jr, was successfully impeached by congress. Congress then also voted to prohibit him from holding future federal office.
The problem is that impeachment is a political process, not a legal or judicial process. I feel like using the term "prosecuting" to describe an impeachment trial in the Senate is a bit of a misnomer.
Regardless, impeachment is there to remove the president from power. It can't jail or otherwise punish the president. The regular old legal system should be doing that, for everyone, regardless of whether or not they're an elected official.
Agreed. It’s not as if becoming president is forced on anyone.
Judging from history, it is a pretty dangerous role as well and that doesn’t seem to have dissuaded many people. If there are willing to risk their safety, I’d think the risk of prosecution wouldn’t rank too highly either.
> Immunity for things they do as part of their official duties.
How would attempting to overturn the results of a free and fair election be considered an "official duty"? If it is, then the Presidency became a dictatorship, leaving impeachment by Congress -- an extremely difficult bar -- the only recourse.
It's only called an attempt if it fails. If it goes through till some point, it's His Royal Highness General Alladin bring order and justice and acting to grant their people all the freedoms they asked for.
Source: I'm from places that had the Supreme Court (of places, not US) overturn an election result due to fraud
This was my thought too. The ruling doesn't seem crazy; being legally liable for every single official act would actually make it untenable for the president to do many things a president needs to do without the real fear of prosecution if anything goes wrong. (And things go wrong! All the time!)
But what's an "official act"? I would hope that courts consider that definition very narrowly. Also disallowing juries to see discussion of official acts as evidence for related wrongdoing is disastrous.
Ultimately, though, it won't matter. Trump has effectively managed to delay this particular trial, and much of the remainder of its pre-trial process, until after the election and after the inauguration. I assume if he wins and takes office, he can instruct the DoJ to dismiss the case against him.
The Georgia case can still proceed, regardless of the outcome of the election, but Willis completely screwed that one up with her idiotic romantic decisions.
Equating Trump's accusations and drone strikes only makes sense if you're not allowed to look at intent, which historically is very relevant for criminal law. More aptly Nixon would be immune from prosecution for obstructing the Watergate investigation under this ruling. In fact presidents are immune from using the justice department to go after political rivals here since determining prosecutorial priorities is clearly an official act (mentioned in the opinion) and you aren't allowed to inspect intent. If either party used the justice department specifically for personal gain they should be in jail but they are literally immune now.
The disallowing of considering even corrupt intent seems to be the real worry here. There's no distinction between using your power to promote general welfare and using it to line your own pockets or subvert democracy.
it doesn't matter. the trump heuristic is the only way some people perceive the world. then they'll suggest some insane nonsense which is actually bad but they'll justify it with the trump heuristic
> In a ruling on the last day before the Supreme Court’s summer recess, and just over two months after the oral argument, a majority of the court rejected the D.C. Circuit’s reasoning. As an initial matter, Roberts explained in his 43-page ruling, presidents have absolute immunity for their official acts when those acts relate to the core powers granted to them by the Constitution – for example, the power to issue pardons, veto legislation, recognize ambassadors, and make appointments.
> That absolute immunity does not extend to the president’s other official acts, however. In those cases, Roberts reasoned, a president cannot be charged unless, at the very least, prosecutors can show that bringing such charges would not threaten the power and functioning of the executive branch. And there is no immunity for a president’s unofficial acts.
[…]
> In her dissent, which (like Jackson’s) notably did not use the traditional “respectfully,” Sotomayor contended that Monday’s ruling “reshapes the institution of the Presidency.” “Whether described as presumptive or absolute,” she wrote, “under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless.” “With fear for our democracy,” she concluded, “I dissent.”
This summary sounds much more tolerable than my initial reading, and I think what constitutes the discrepancy is the absence of the statement
> In a ruling on the last day before the Supreme Court’s summer recess, and just over two months after the oral argument, a majority of the court rejected the D.C. Circuit’s reasoning. As an initial matter, Roberts explained in his 43-page ruling, presidents have absolute immunity for their official acts when those acts relate to the core powers granted to them by the Constitution – for example, the power to issue pardons, veto legislation, recognize ambassadors, and make appointments
which I can't find in the linked article, but which is of course in what you've linked to.
In those enumerated things I think the ruling is quite tolerable, but the decision is much broader than that, and this presumptive immunity, etc. becomes quite burdensome.
It's going to be like the state secrets privilege, and that has already allowed people to get away with torture, even people whose identities are well known, and where there is clear, unambiguous evidence that they were involved.
What Roberts says almost makes it sound alright, but it definitely isn't.
> Roberts explained in his 43-page ruling, presidents have absolute immunity for their official acts when those acts relate to the core powers granted to them by the Constitution – for example, the power to issue pardons, veto legislation, recognize ambassadors, and make appointments.
Most likely not. Watergate was a result of an election campaign, not official acts as President.
> Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.
And the 'smoking gun' implicating Nixon:
> Nixon then released the tapes six days later. On one tape was the so-called "smoking gun," showing that six days after the break-in Nixon had tried to use the CIA to block the FBI investigation of the burglary.
IANAL, but my understanding is under this ruling those tapes would have never been made permissible evidence in court. Giving orders to the CIA is certainly an official act, as much as granting pardons is, and this court has established the examination of said motives is out-of-scope:
> 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.
It would make it illegal to use the tapes as evidence against him. So it doesn't matter if it makes it legal or not, because it makes the illegality impossible to prove in a court of law by denying evidence to the prosecution.
> (3) Presidents cannot be indicted based on conduct for which they
are immune from prosecution. On remand, the District Court must
carefully analyze the indictment’s remaining allegations to determine
whether they too involve conduct for which a President must be im-
mune from prosecution. And the parties and the District Court must
ensure that sufficient allegations support the indictment’s charges
without such conduct. Testimony or private records of the President
or his advisers probing such conduct may not be admitted as evidence
at trial.
E.v.e.r.y.o.n.e should just go read the decision and dissents. It’s not that long or hard to follow. Then probably go read all of the Federalist Papers, if they haven’t already, or one of the Constitutional Debate readers that are readily available and may include much of Federalist.
The primary source here is plenty accessible, and free. And alarming.
> And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. See 18 U. S. C. §201(b)(2). What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself.
The argument is not that all recordings are off limits, but if the President asks his lawyer "what is a bribe?" that can't be used as evidence he took a bribe.
"If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the “intended effect” of immunity would be defeated."
> And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. See 18 U. S. C. §201(b)(2). What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself.
The argument is not that all recordings are off limits, but if the President asks his lawyer "what is a bribe?" that can't be used as evidence he took a bribe.
Hard to read this and conclude that there can be any actual way to produce admissible evidence. Can you give me an example of what conversations you can use as evidence if anything involving him or his advisers is off limits?
The court uses the language "in the first instance". So it sounds like you can use anything generated by the crime itself, but you can't dredge up other conversations about the crime.
Nixon ordering an illegal action is a crime, and Nixon destroying evidence was definitely a crime, so evidence of either would be game.
Pressuring an aide, via threats of violence, or whatever, is now blanket immune under this.
You cannot use official communications between a president and his VP for example, as evidence, even in prosecution of an unofficial act that is criminal.
A horrendously stupid, devoid of any logic ruling, so much so that Barrett even disagreed with this part.
> "... 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.
> The question then becomes whether that presumption of immunity is rebutted under the circumstances. It is the Government’s burden to rebut the presumption of immunity. The Court therefore remands to the District Court to assess in the first instance whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch."
As per the ruling, Trump does not get blanket immunity with his interactions with Pence. But it is the prosecution's responsibility to now make a case that it was outside of his discretion.
I'm not arguing that this is a clear or useful legal distinction, but Trump only got true "blanket" immunity for the first indictment regarding the abuse of the Justice Department.
SCOTUS didn't need to make a special POTUS-only right to keep that "evidence" out. That would be covered by attorney/client privilege, a right that is available to everyone in the American courts.
The President has immunity when acting with powers granted from the Constitution. Commanding the military is one of those powers. The majority opinion also specifically says motives can't be considered. So they are legally immune if they order the military to stop impeachment.
I'm dismayed by this ruling but I'm curious: can someone defend it? I'm able to understand the counter-perspectives to my own on many hot-button issues (2nd amendment, abortion bans) but this one seems very nakedly bad. But maybe I'm just not seeing the counterpoint?
If presidents could be prosecuted for their official acts then the next time the other party takes over they will just immediately find various crimes their predecessor “committed” (there are probably 10s of 1000s of them).
But isn't that the status quo? Why didn't that happen when Obama left office? It's not like the Republicans were lacking a desire for retribution against him.
"there are probably 10s of 1000s of them" also feels a little lacking to me. Do we have concrete examples?
i think it was just a "gentleman's agreement" to not prosecute former presidents or rivals. I remember in the 2016 debates when Trump said he would appoint a special prosecutor to look into Hillary her eyes got real big about how ignorant Trump was to the way things are and have been. That's one of the downsides to a political outsider a lot of formally unasked questions start needing answers.
There's a specific reason why Trump is being investigated. We're not talking about jay-walking here.
And there's also intent with action, using yet another case: Biden had classified documents in his home residence, but he handed them back to the government with minimal fuss. Trump had classified documents and moved them around even after being subpoenaed to return them:
> when Trump said he would appoint a special prosecutor to look into Hillary
As best I can tell, most who voted for him didn't actually believe he would do that - and he didn't. The whole "because you'd be in jail" was Trump being Trump, not a campaign promise.
When Trump says something like that, knowing whether he's in earnest or being bombastic is like knowing what parts of the Bible are literal and what parts are figurative - it's very much open to individual interpretation.
The lawyer, Donald F. McGahn II, rebuffed the president, saying that he had no authority to order a prosecution. Mr. McGahn said that while he could request an investigation, that too could prompt accusations of abuse of power. To underscore his point, Mr. McGahn had White House lawyers write a memo for Mr. Trump warning that if he asked law enforcement to investigate his rivals, he could face a range of consequences, including possible impeachment.
We now live in a world where in a future Trump administration:
- Trump knows even if he's impeached he will not be removed because his party will protect him, since he was impeached and not removed for far more serious matters.
- SCOTUS just told Trump that any conversations he has with his DOJ are under the umbrella of core authority and cannot be reviewed.
- The current purity tests being employed at the RNC by his kin show a future Trump administration will not hire someone like Don McGahn who will tell him "no" about anything.
Why are you so sure a future President Trump would not try again and be successful?
I would imagine that Obama is quite happy with his presidential immunity for ordering the extrajudicial killing of an American citizen via drone strike[1].
So's drone striking a US citizen without a trial. We do it anyways. Now it's even explicitly protected by absolute immunity as an "official act" instead of just apathy.
(Or you have the Coast Guard lead the mission with the SEALs as "advisors".)
3. 3 american citizens. He ordered operations that killed both that guys kids also, the latter of which was carried out in the first month of Trump's presidency. They were 12 and 8. Both were supposedly accidents.
Impeachment is not required in order to allow prosecuting a president, and even Chief Justice’s majority opinion which granted presidents significant immunity explicitly rejected the idea that impeachment is such a prerequisite.
Impeachment is only a prerequisite to the Senate possibly convicting in the political rather than criminal trial and removing the person from office, and then possibly disqualifying them from future federal office. It has no bearing on whatever criminal procedures are not blocked by immunity.
It is super-duper clear that’s not intended by the authors of the constitution, judging from their writings and the records of the debate over the constitution, and from the very limited relevant text in the constitution itself.
This is laid out clearly in the dissent, complete with references for further reading. Meanwhile the majority’s argument is “lack of immunity (which has, so far, not existed!!!) would make the president too timid, so we’re adding immunity”.
Yup, all the originalists and textualists on the court running and hiding when the outcome benefits their person. Instead it's just "Well, we like trump so let's benefit him".
What a horrible corrupt court.
I'm 1000% sure that if trump wins and starts prosecuting his political rivals the court will give it the nod as being AOK.
The supreme court ruled against Trump many times during his first term. Census rules, immigration, 2020 election lawsuits. Reality doesn't match your perception.
Ruling against trump on minor issues isn't the same as ruling for him because he's the best chance to be a conservative president.
And for every one of these rulings, which frankly were all him blatantly ignoring/violating the law in ways that even this court couldn't ignore, there were 10 cases where the courts moved forward conservative agendas.
Further, many of those rulings happened while Ginsberg was still alive with Roberts as the swing vote. That's no longer the makeup of the court.
You are playing the "yeah but what about" game. The reality is the supreme court just vested kingship on the next conservative president.
> Meanwhile the majority’s argument is “lack of immunity (which has, so far, not existed!!!) would make the president too timid, so we’re adding immunity”.
It has existed, it just hasn't been tested. The supreme court didn't "grant" immunity, they interpreted the Constitution to come to the conclusion that immunity already exists.
And the reason that it's happening now is because no political party has been willing to escalate political differences with presidential candidates to the point of criminal charges before.
That's changed recently, hence the need for the ruling.
Prosecuting attempts to overturn an election isn’t prosecution over “political differences”.
> they interpreted the Constitution to come to the conclusion that immunity already exists.
The constitution saying nothing about immunity except that it is not conferred to someone who has been impeached, no, they did not interpret the constitution.
[edit] specifically, it’s this bit:
> Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
That is: impeachment can’t impose punishments aside from removal & disqualification, but that ought not be taken to mean that further prosecution for the same acts may not be undertaken. That’s all it says on the matter. They relied on the Federalists stating in the Federalist Papers and elsewhere that they wanted a fairly active President to conclude the President needs immunity. Meanwhile the Federalists also wrote that the President ought not be above the law, as that’s what separates our system from monarchy, but that’s inconvenient so you have to keep reading to the dissent to see that presented.
Indeed. The US constitution envisages impeachment by Congress as the first step to a criminal conviction.
Trump was acquitted by the Senate for his conduct on Jan 6. It’s OK to disagree with the acquittal but it did in fact happen.
Ultimately it’s really hard to design a constitution that is effective in opposing half of the population. You can’t solve mass social issues with laws.
I think the fundamental problem is that a democratic nation just doesn't work very well when the voting public is divided into two roughly-equal groups that hate each other. Democracies work well when most of the populace thinks mostly alike and has similar values and beliefs, and has a good education too.
The impeachment process only applies to a sitting president. Once they're out of office, the threat provided by an impeachment is gone.
More specifically, the role of the house impeachment and senate hearing is removal someone from office. That's it. There's no potential for punitive action (fines, jail, etc).
> The impeachment process only applies to a sitting president. Once they're out of office, the threat provided by an impeachment is gone.
> More specifically, the role of the house impeachment and senate hearing is removal someone from office. That's it. There's no potential for punitive action (fines, jail, etc).
Judgement in impeachment can extend to "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States" [1]
But, judgement in impeachment is political, and if you could get enough votes to impeach a former President in order to disqualify them from running again, it seems pretty unlikely that they'd be able to get nominated and elected in a future election; so it's not a big threat IMHO; at least assuming a two-thirds majority is required to remove, then a majority to disqualify.
The constitution is not clear that removal from office and disqualification are linked, although in practice, disqualification has happened only after a removal, and the Senate has determined simple majority for removal is sufficient. [2] So, it might be possible to do a disqualification as a simple majority, without a removal.
> the first step in that is the impeachment process
Only, the requirement of a supermajority means that a minority can prevent a president from being convicted of blatantly criminal acts. This system is demonstrably weak against corruption, to which the USSC has given its full-throated approval.
I think this was tried somewhat recently. The counter-argument was "actually let's not impeach. Let's just wait for the next election and see what the voters think. Voting is the real impeachment."
Impeachment is a means for the elected officials of Congress to remove a sitting president from office. It doesn't begin a prosecution, and it doesn't have to be for anything illegal. Suggesting impeachment is there to sidestep the president's immunity is not reassuring. It's like if CEOs were under presumptive immunity, and the first step to prosecution were to vote to remove the sitting CEO.
The issue is that presidents can be prosecuted even if they likely didn't break the law. It would be possible to just keep throwing bullshit charges at a former president either until one sticks or until their resources to fight off an unending string of legal battles is exhausted. It does make sense that the bar to prosecute someone should be higher when they are particularly likely to be the subject of malicious prosecution and the fear of such would interfere with them carrying out their duties.
The issue is that blanket immunity for official acts is not just raising the bar, it's launching it into orbit. Not only can a president not be prosecuted for questionable decisions or on scant evidence, they can not be prosecuted when their crimes are heinous and obvious so long as it is plausibly within their domain.
You can still prosecute someone for whatever the prosecutor wants. This doesn't change that. If someone is acting in bad faith, they can do so regardless of the law.
The prosecutor can still begin a prosecution, but now it will be dismissed pretty much immediately unless there is good reason to believe that the action was not an official act.
> It would be possible to just keep throwing bullshit charges at a former president either until one sticks or until their resources to fight off an unending string of legal battles is exhausted.
I can't make up my mind if this is "movie plot threat" or not. Has it happened to other important figures before?
And can the prosecution be punished for this kind of behaviour?
Then again, I guess if you can shop around for (politically-appointed) judges, it wouldn't be too hard to find a judge to indulge some bullshit prosecution.
>The issue is that presidents can be prosecuted even if they likely didn't break the law. It would be possible to just keep throwing bullshit charges at a former president either until one sticks or until their resources to fight off an unending string of legal battles is exhausted.
I have no problem choosing between the chance there will be a President who abuses immense power over everyone in the nation with no real accountability, and the chance a slew of people (prosecutors, investigators, judges) will act maliciously and repeatedly to persecute a single person. Does SCOTUS really fear that federal Judges like them can't recognize malicious and baseless indictments?
There's plenty of historical examples of how bad of an idea prosecuting former leaders is. When a country's leaders fear prosecution if they lose power, they have every incentive to cling to power as long as possible by any means necessary. Certainly there's a middle-ground that needs to be struck between the President they are above the law entirely and the President fearing prosecution by the next party in power regardless of how lawful they behaved. I worry that, in the U.S.'s current political climate without immunity, Presidents would be prosecuted by the other party as a matter of course.
We never had an issue with needing to prosecute a former President for 200 years either, and then we did. Institutions should be prepared for foreseeable issues.
Corrupt admins will already do that, so giving blanket immunity doesn't actually help anyone. All they need to then corruptly prosecute anyone is a court to agree that some act was "unofficial".
It has never happened before now. It isn't because past presidents have never been criminals, it was convention. It's a way for your country not to turn into Haiti or Zimbabwe.
Nixon was very probably criminal, but Ford’s pardon prevented a prosecution without having to settle the question of whether Nixon would have been immune in the absence of a pardon.
People forget that Obama actually did some questionable things too. He greenlit drone strikes that killed at least 2 Americans, not to mention civilian casualties. And he was the president that the 'holding camps' at the border (not sure what to call them) were started.
No one (that I know of) seriously thought he should go to prison for those acts, but honestly the argument seems pretty easy to be made without some sort of immunity.
They could be prosecuted, but prosecutors generally don’t like to bring losing cases. And the actions being official acts was already a defense. The distinction was that you could still get prosecuted, but you just had to show a non corrupt intent in doing the action and get the case easily dismissed. Now you don’t even need to show that you had non corrupt intent - just claim official acts and no lawsuit is possible in the first place.
Not if there was a grace period before prosecution could be brought, or literally any other mechanism that exists between the binary "impossible to prosecute" and "guaranteed to prosecute"
"If presidents could be prosecuted for their official acts"
This has always been presumed to be the case yet it has never resulted in what you say. It's a nonsense theoretical as cover for what is otherwise utterly indefensible as making the president king.
This wasn't even a problem before the last 4 years, and the only times it were - was when the suspecting president agreed they broke the law and stepped down, or got impeached.
We have monarchy after monarchy to show that sovereign immunity builds toxic ontological relationships between participants of a political system, and often invites tyranny. Your suspicions, for 238 years straight, have been amiss.
Sure. You want a President to be able to carry out the roles of the office without concern that his or her political opponents will use the courts to try to punish those actions. There are reasonable disagreements on where Presidential authority begins or ends on many topics, and you want the limits to be either through separation of powers (e.g., the Judicial Branch can bring an end to actions, the Legislative can impeach and remove the President) or through the ballot box.
This does not mean, including from the majority opinion, that anything the President does is immune from challenges. If the President directs a cover-up for his campaign (Nixon) or directs a Governor to find enough ballots for him to win or directs "alternate electors" via fraud (Trump), this is not an official action. Trump's lawyers admitted as much in the oral arguments.
> Sure. You want a President to be able to carry out the roles of the office without concern that his or her political opponents will use the courts to try to punish those actions.
Hrm. Surely the implication you're outlining here is that the President will be breaking the law while carrying out "the roles of the office"? Is that not a concern?
Why is a court the wrong place to settle those disagreements? That is to say, why is it preferable for a President to face the possibility of impeachment by Congress over a jury of everyday citizens? Seems considerably easier to rig the former than the latter.
Let's take Biden's student loan forgiveness as an example. Some say that he overstepped his authority.
The courts should decide if that act is legally permitted, but it would be a tough pull to think that he should be personally responsible for that, including potential jail time.
Now egregious cases that fall outside of the reasonable expectations of the role of the President. Sure, those should go to the courts. But I don't think this case prevents that. Most of what Trump did after the election, IMO, was clearly as a candidate, not a President.
Yeah but your argument ignores the fact that this all has to be hashed out after the fact. Before this ruling, presidents could ask counsel if something was legal or not (ex: there are tapes of Trump doing this during his attempt to steal the election) and they could answer based on statutes and case law. Now the answer always has to be "depends on what judge we get, there are no precedents". Jackson makes this argument in her dissent, and I think she's right that this is a sea change in the relationship between the US and its president.
The court never defined what are or aren’t official acts and it should be straight forward for the president to say that spying on his enemies, that are also the enemies of the state/government, is an official act, as they are protecting the constitution from those that would do it harm.
Presidents are effectively kings now, won’t be long until one declares himself one for good.
> it should be straight forward for the president to say that spying on his enemies, that are also the enemies of the state/government, is an official act
This would be challenged in court by the victims of the President's spying, and the court would ultimately decide whether or not the spying constituted an "official act".
So now the process is to wait years to see if something a president does is technically an 'official act' or not. Seems like there should have been a better way to solve this.
Yup, presidents will enjoy the "presumption of immunity" for practically any action, and the only chance at consequence is years and years down the line after jumping through massive courtroom hurdles, in which it will almost certainly need to be in front of the supreme Court again, where the court majority will forgive 'their' president or convinct the 'other' president.
Years of zero consequence. Imagine what an egomaniacal, unethical, vengeful, unempathetic, asshole could do with all of that power.
If the court gets to decide what is or is not an official act, then they effectively get to control what the president can or can not do. They've already shown that they don't care about precedent, so they'll make those decisions based on their own (or their patrons') momentary convenience. That makes the executive the puppet of the judiciary. Instead of one king we have nine. Happy 4th of July.
The president should be able to vacate the court as an official act as well, saying they're betraying the constitution and stuff like that. Happened at every banana republic out there before.
W.r.t. SCOTUS's ruling, you'd claim the main problem is that "Both the District Court and the D. C. Circuit declined to decide whether the indicted conduct involved official acts.". If the lower courts had claimed the conduct wasn't official when they denied the motion to dismiss then SCOTUS wouldn't have vacated the lower rulings?
> You want a President to be able to carry out the roles of the office without concern that his or her political opponents will use the courts to try to punish those actions.
Why?
In the UK we of course have no president; all government actions can be subjected to judicial review, whichever minister was in charge. Judicial review is a civil procedure, not a criminal one. All the court can do is order the government to reverse the unlawful decision, and make good its consequences.
The UK parliament is not subject to judicial review. Judicial review in the UK only applies to crown corporations or specific public institutions. Such a position would be considered repulsive to the vast majority of Americans.
> You want a President to be able to carry out the roles of the office without concern that his or her political opponents will use the courts to try to punish those actions.
No, we do not. That's the whole point of the checks and balances. If his political opponents are able to prove their case before the courts, showing that the president broke the law, then they should be able to.
Are you willing to see Biden go to jail because an activist DA in TX used an obscure law that no one had ever been prosecuted under, in a 90+% "red" venue, with a complicit judge and jury?
This ruling is meant to protect the office from precisely these types of politically motivated attacks.
> Are you willing to see Biden go to jail because an activist DA in TX used an obscure law that no one had ever been prosecuted under, in a 90+% "red" venue, with a complicit judge and jury?
This has always been possible (Nixon v. Fitzgerald) but has never happened. Choose whatever reason you want: any amount of decency, any sense of shame, low odds of winning, likelihood of terrible retribution from generally good people.
Bribing a porn star to keep quiet about your extramarital sex and breaking accounting/campaign financing laws by trying to disguise the payments before you are president should be considered an official act by the president? Weird argument to make.
Trying to blackmail Ukraine into providing dirt on his political rival by withholding congressional funding, getting rid of Comey, and requesting that some additional votes for him should be found are the top 3 that come to my mind.
I couldn't give two shits about extramarital sex, and I honestly would have expected him to write about said sex on twitter sooner than cover it up. I don't think the campaign donors would have been too steamed about where that money went either. It's not like him dipping into his other charities (which I find more despicable than hush money.)
The only ones that should care are the evangelical christians, but it seems they would even vote for satan if he was a republican.
The hush payment would not even have been an issue if they didn't use campaign money or Cohen as middle man, that's the illegal part. If Trump just wrote a check directly it would not have been an issue and we would likely never know about it unless NDAs were broken.
It was first. It was also relatively simple in both law and fact, so there were fewer opportunities for delay. Even so, it was more than a year from indictment to conviction.
Except doesn't the "can't enter things into evidence" clause of the ruling mean that bringing the prosecution against Nixon would never have had a snowball's hell in chance of being argued and won?
I'm curious how that one gets interpreted in subsequent lower court (and Supreme Court) opinions.
It feels like once an act is to be classified as unofficial, then evidence of same cannot be covered, regardless of whether it's personal or not.
So maybe whittled down to "You can't go on an investigation of the President's personal/private documents because you have a suspicion of an unofficial act." Which feels more like the Supreme Court's intent.
> Trump's lawyers admitted as much in the oral arguments.
Trump's counsel did admit this, but the opinion contains no such carve out. It says "he is entitled to at least presumptive immunity from prosecution for all his official acts" and declines to define what separates an official from an unofficial act, leaving it up to courts on a case-by-case basis. The dissent--rightly--points out that this is way more than Trump asked for:
> Inherent in Trump’s Impeachment Judgment Clause argument is the idea that a former President who was impeached in the House and convicted in the Senate for crimes involving his official acts could then be prosecuted in court for those acts. See Brief for Petitioner 22 (“The Founders thus adopted a carefully balanced approach that permits the criminal prosecution of a former President for his official acts, but only if that President is first impeached by the House and convicted by the Senate”). By extinguishing that path to overcoming immunity, however nonsensical it might be, the majority arrives at an official-
acts immunity even more expansive than the one Trump argued for. On the majority’s view (but not Trump’s), a former President whose abuse of power was so egregious and so offensive even to members of his own party that he was impeached in the House and convicted in the Senate still would be entitled to “at least presumptive” criminal immunity for those acts.
I believe the argument conservatives have been trying to make that aligns with the court's ruling is mostly about some very specific fear that an incoming or current president could prosecute former presidents and therefore crush dissent.
So basically you have the right scared of former presidents being unjustly targeted in a way that threatens the democratic process, and then you have the left scared that the immunity will itself threaten the democratic process/enable dictators and corruption. Unjust use of prosecution as a political weapon vs just plain corruption being shielded.
It sure seems to me like it would be better if these matters could be handled on a case by case basis rather than in some black and white "former presidents can" vs "former presidents can't" be prosecuted way, but perhaps that is what will end up happening, not a legal expert.
> if these matters could be handled on a case by case basis rather than in some black and white "former presidents can" vs "former presidents can't" be prosecuted way
That's largely what's happening here. The President _can_ be prosecuted for things that fall outside of the official role as President. This is not a blanket immunity.
Defining what is considered “official” and more importantly, what is absolutely not official is now at issue and where things get sticky.
Certainly a president carrying out actions that call for prosecution would make the claim that those actions were either official or required to carry out the official duties of the office.
Any hope of justice now depends entirely on being able to draw that line and agree about where it’s drawn.
This is the same loophole applied to qualified immunity in general. On the surface, it appears like there's criteria to consider, but such criteria cannot possibly exist.
It's like saying, "Bribery is only illegal if it is called bribery during the commission of the crime. But also, The State cannot investigate what was discussed during such events without evidence that a crime was committed." They are basically establishing legal paradoxes.
The office of the President has always been above many laws.
The redress has been assumed to be federal elections.
If the President were to abuse the law (to the extent he could with the power of the executive branch), then he would be voted out of office in (max) 4 years.
qualified immunity makes perfect sense. It would be impossible to have a police force without it. What is wrong with qualified immunity is the "clearly established law" standard, which requires prior case law precedent to pierce qualified immunity.
It is also worth nothing that qualified immunity provides no protection for criminal actions, the enforcement of which are an entirely separate challenge.
I think that’s the argument, yes. I think it’s facially a bad one when you consider all the examples of functional police that lack QI. Makes me skeptical that it’s a good faith argument.
AFAIK, QI no longer exists in England (not sure about Scotland or N.I.). And Germany never had it (civil cases for damages would be against the state, not the state representative).
And, given the state of policing and justice in the US, civil litigation is often the only way to get any relief for over-zealous policing. And QI makes that bar even higher than it should be.
Find me a DA that will routinely prosecute crooked cops. They don’t exist because the gangs close ranks and protest by refusing to their job. When other state employees protest they get beaten and forced back to work.
A common thing in empires is that the behavior that was perpetrated in the colonies eventually comes back to the mainland to be applied to the, previously, sheltered population.
Out of the US, US presidents have always had effective immunity from any consequences, committing war crimes, disrespecting local laws and eschewing even the UN. Kinda like an expected consequence of everything else.
The Founders envisioned an extremely weak criminal justice system, especially for "their class of people." Defendants were given extremely strong protections, and convictions were the exception, not the rule.
The Founders were more concerned about facing a duel than a criminal conviction.
So they added other mechanisms for presidential accountability: impeachment, elections, and the weakness of the office.
These other mechanisms have become weaker and weaker, while the criminal justice system has become stronger and stronger.
Impeachment's happen, but not Senate convictions. The political parties have created a duopoloy on power which allow them to run weak candidates. Congress is less and less willing to hold presidents of their own party accountable. Dueling is prohibited not just criminally, but constitionally in most states.
At the same time the criminal justice system is becoming more and more powerful. Convictions are in the high 90%. Juries are very weak and at the mercy of powerful prosecutors.
The Constitution simply didn't envision a situation where the criminal justice system is more likley to hold someone accountable than an election or Congress.
Impeachment, elections, and duels no longer deter bad conduct. Convictions do.
So we have an edge case: a system that can only hold an ex-President accountable via a criminal charge.
Edge cases are weird. They create "sometimes it works and sometimes it doesn't" situations. And that's where we are now.
And even when the case is a sure loser they'll often leverage that into a plea deal too, especially if the defendant is being held in pretrial detention.
> The Founders were more concerned about facing a duel than a criminal conviction.
This is because "their class of people" were an honor-based society, in which reputation was the currency of power, and people with honor were expected to prioritize the national interests above their own. That is no longer the case.
In other words, there hasn't been a duel. So there should be another enforcement mechanism for making Presidents prioritize the nation above themselves that actually works.
A combination of meaningful threat to life, assets, family or freedom is what the duel accomplished. With the courts packed by unqualified partisan hacks it seems we’re facing an unprecedented danger to democracy and the American experiment.
I'm sorry, I can't read "unqualified partisan hacks" uttered as a phrase by someone I assume believes that "emanations from penumbras" qualifies as good constitutional law.
How exactly do you think a qualified, non-partisan judge should decide cases?
“Conflicts of interest” are often in the eye of the beholder. And my impression is a lot of people’s concern about this is very slanted by their pre-existing ideological commitments.
You will hear the same people arguing that Justice Alito should l recuse himself due to his wife’s taste in flags, but Judge Merchan shouldn’t recuse himself from Trump’s trial and sentencing after having been revealed to have made (trivial) donations to anti-Trump political campaigns. It sure looks to me like people prioritising maximising the odds of their desired outcome over consistent principle.
Publicly displaying symbols identifying one’s affiliation with very specific and unprotected groups is not comparable to political speech. This is a fallacious argument at best and smells of bad faith engagement.
> Publicly displaying symbols identifying one’s affiliation with very specific and unprotected groups is not comparable to political speech.
The “very specific and unprotected groups” you are talking about are political movements (even if non-mainstream) and hence expressing support for them is just as much political speech as any political donation is. All political speech, even extremist political speech, is protected in the US by the First Amendment, unless it incites “imminent lawless action” (see Brandenburg v Ohio), or one of the other narrow exceptions provided for by SCOTUS’ jurisprudence.
Actually, it is allowed to limit free speech to meet “compelling state interests”, and I’m pretty sure SCOTUS would uphold limitations on judge’s off-the-job speech when necessary to maintain the appearance of judicial impartiality as such a compelling state interest. By contrast, I doubt they’d view limiting the speech of a judicial spouse as necessary to an equally compelling state interest.
Furthermore, unless you are a believer in coverture, Alito’s actions are separate from those of his wife, so once he made clear the flag was his wife’s decision not his, I don’t see how it is relevant. The law does not demand judges recuse themselves on the basis of views of their spouses which they may not share-especially when his wife’s expressive act was not directly commenting on any specific case, at most it was a vague expression of political affiliation-and it isn’t even clear what she personally understands that flag to mean.
> This is a fallacious argument at best and smells of bad faith engagement.
It isn’t a fallacious argument. Rather, suggesting that anyone who disagrees with you is guilty of “bad faith engagement”-that’s a fallacious argument.
The flags a blatant dog whistle for stop the steal white Christian nationalists. If you’re not discussing this fact you’re not having the same conversation and I’m not engaging with people who pick what’s convenient to their agenda.
If you legitimately believe that, you are spending too much time being radicalized on the internet. The flag has been used by hundreds of groups across its 200+ year history, right and left.
It doesn’t matter how it has historically been used, it matters how it is being used now. What they are describing is accurate.
I heard comments like yours all the time when people were saying we needed to take QAnon more seriously. People thought it was fringe, that people concerned were “terminally online.” Even as we saw their talking points work their way into mainstream conservative outlets.
Then January 6th happened. Everyone knows what QAnon is now.
> It doesn’t matter how it has historically been used, it matters how it is being used now. What they are describing is accurate.
Did you notice that the link in the comment you were replying to, has a photo of that “Appeal to Heaven” flag from a Black Lives Matter protest in 2020? And it seems clear it was being flown by BLM supporters, not anti-BLM counterprotestors.
You want to claim that other meanings are purely historical and in contemporary usage it exclusively means “white Christian nationalist”. If the only other examples of its usage people could point to were from decades ago, your argument might have some force. But, given we have photographic evidence of people with a diametrically opposite ideology using it less than 5 years ago, your argument is not very convincing.
You can’t divorce his politics from the discussion. The people who he politically/ideologically agrees with on the right fly this flag specifically. Other groups also fly it. It can mean different things to different people. My argument is not nearly as myopic as you’re making it out to be.
You keep on assuming his politics is the same as his wife’s. Even if they are both on the right, the right is a very big place, where people have different positions on various issues. Even assuming that flag tells us where exactly on the right Martha resides - and I’m not sure it does, maybe she flew it because she liked how it looked as opposed to as an exercise in political expression - we still can’t assume that Samuel resides in the same political location.
There are two different flags at issue here–the upside-down American flag, and the "Appeal to Heaven"–the former was flown at their main residence, the second at their vacation home. Both have long histories of being used all over the political spectrum (both right and left), to mean lots of different things.
The article you are citing is relying on the claims of an angry former neighbour. Why assume that the Alito's are lying or mistaken, when it seems just as possible that their ex-neighbour could be.
In any event, even if we assume the ex-neighbour's claims are 100% true, they still don't prove (1) that Martha Alito flew the flag with intention to express a highly specific political message, (2) even supposing that was her intention, it still doesn't prove Samuel Alito was supporting her expressive act, as opposed to simply allowing his wife to do what she wants to do.
And would you say Alito's wife is flying it for her support for BLM or... something else?
Getting abstract and dissembling about it doesn't change the fact that the meaning is clear and obvious to anyone who isn't sea lioning. It's clear to their supporters because it needs to be to be effective.
Is it not possible to simply fly a flag for the love of the flag? I own a number of flags from various countries and periods. I have no particular attachment to the Whiskey Rebellion, but I like the flag and fly it regularly.
We can dispute the specifics of his motivations but clearly these have not been simple cases of “I just like the flag.” It’s also pretty bizarre to fly the flag upside down for fun.
Typical doublespeak. Hitler stole the swastika and christofascists stole another flag. I’ve been following white nationalists for long enough to have seen this dynamic countless times. Old dog whistle gets them too easily identified so a new one gets picked up and then the cycle repeats.
I looked through the comments of the person you're replying to and they didn't say anything about Roe. There are all sorts of uncharitable assumptions I could make about what you might or might not believe based on your political party that'd be similarly out of line. Please stop it.
Is it “uncharitable” to assume that someone thinks Roe is how judges should decide cases? Because if so, fair enough.
My point was not to attack this person individually so you’re right I shouldn’t have worded it in those terms. My point was that virtually everyone who thinks the current Supreme Court is “unqualified” also likely thinks “emanations from penumbras” are constitutional law. It’s like listening to anti-vaxxers talk about the qualifications of doctors.
When I studied politics as an undergraduate, my insanely liberal professors said: “Roe was a terribly decided decision. It was sloppy legal reasoning, and overall pretty embarrassing. That was rectified by Planned Parenthood v Casey in 1992.”
Almost everyone agrees with you on the emanations of penumbras. Nobody wants that. It was rectified by Casey in 1992.
Roe also claimed abortion was a right because doctors should not worry about the law. Women didn’t have a right to abortion at all. Doctors did. That was fixed by Casey in 1992, and probably a bit early.
Roe hasn’t been the defining law on abortion since 1992 because so many people, pro-choicers especially, regarded it as very flawed.
Casey was eloquently written, but relied on Roe for the existence of the underlying abortion right, without offering a more rigorous foundation. It still ultimately rests on Griswold’s “emanations from penumbras.”
Casey was the start of the self-licking ice cream cone the abortion right eventually became—asserted to exist because it was said to exist by a precedent nobody could defend.
You’re talking about the ninth amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
That says that the list of rights enumerated in the constitution is non-exhaustive. That just means that rights can exist in other places besides the Constitution. But if you want to say there is such a right, you have to identify that right in some other source.
But the “emanations from penumbras” language isn’t referring to a non-enumerated right found somewhere else. It’s saying that the privacy right originates in the “emanations from penumbras” of the constitution. So it’s saying the constitution itself creates that right.
So say we had an abortion decision decided as RBG wanted it based on the privileges or immunities clause (as per Reva Siegel) You would still oppose that because it’s at the federal level?
I don’t know how justices should decide cases (not a constitutional law scholar, what are your credentials?) but I know that the majority in this one is wrong and should be impeached. The federalists are a cancer on the legal profession. Failure to self police has allowed them to fester when healthy communities would properly ostracize and treat such demented people but here we are.
Perhaps we can all band together to gift these clowns rvs and luxury vacations to get a public healthcare option for everyone?
Do you have any idea what sort of chaos impeaching six Supreme Court justices would cause? Do you really think it would pass Congress, and do you think the Republican Party wouldn't retaliate?
Frankly. I don’t give a single fucking iota of concern to what republicans care about. Their party is putting their political aims above the good of the country and people of such poor character are a danger to humanity if given power.
Impeach them and ring the Russian Republicans up their hard earned espionage charges
Some of you act as if you really want a civil war. And I'm not at all excluding Republican voters from also acting that way. Go see the recent Civil War movie for how that might play out in today's world. It's a lose-lose across the board for everyone.
> don’t know how justices should decide cases (not a constitutional law scholar, what are your credentials?) but I know that the majority in this one is wrong and should be impeached
If you don’t know how judges should decide cases, how do you know they are wrong?
> With the courts packed by unqualified partisan hacks
Are any of the SCOTUS justices “unqualified”? I think all of them have the kinds of backgrounds you’d expect from a Supreme Court justice-law professorships, appellate courts, etc
Are they the best legal minds available? Arguably not, on both sides - in recent decades, both major parties prioritise political/ideological reliability over legal brilliance. Consider someone like Richard Posner, formerly of the 7th Circuit - many consider him one of the brightest legal minds of his generation, and surely the Supreme Court would have benefited from his membership in it - but he never had much hope, because he was too conservative for Democrats, not conservative enough for Republicans.
Earl Warren was a political hack. William Douglas was a political hack.
Every SCOTUS Justice, except for for Thomas, was an absolute top-tier jurist at the time they were appointed.
Every SCOTUS Justice, except Thomas, could have received a tenured professorship at any law school in the country, a partnership at any law firm in the country, editorship of almost any law journal in the country, etc.
Any one, including Thomas, would have been welcome as a professor at the Unversities of Oxford, Cambridge, Edinburgh, Sydney, etc; a magic circle UK law firm; or as arbiter in international trade.
Any one, including Thomas, would have been a shoe in for attorney general or solicited general of US. Any one, including Thomas, could have gotten a position as US Attorney in either a Democratic or Republican administration.
We have an insanely well qualified SCOTUS, mostly because of how arduous the confirmation process is.
He's lazy, and that's even worse than just being a sex predator (Anita Hill) in the context of jurisprudence. He writes the shortest, shittiest, least well thought out opinions. He's phoning it in and has been for decades now.
Seems that our best justices are "political hacks" and our worst are those who are excellent lawyers. Maybe that's because lawyers are only slightly above "used car salesman" in terms of honesty?
Shit dude, If law credentials mattered, than Comey wouldn't have ever been an attorney (Cooley law, worst law school in america). Was he also a "political hack"?
The justices can function just fine without asking questions. The courts work is almost written. The only important questions are dry, procedural ones. This is how courts work.
Not in constitutional law hearings, this is the exact moment when oral arguments are extremely important. They write them down after they're made, not before.
Make better arguments please, you showed you were capable of it earlier when you wrote the top level justification. Why not do it here?
> this is the exact moment when oral arguments are extremely important. They write them down after they're made, not before.
The two parties and their friends have submitted mountains of briefings before oral argument. The arguments made in front of the court are already fully baked. Oral argument is only a signal on where the justices' thinking is taking them at the time. All of this is public, by the way. You can go read everything on your own (something more people in this thread should do).
Thurgood Marshall was a widely respected trial attorney. He never held elected
office. No he was not a political hack.
Warren had been elected governor of California on both a Republican and Democratic ticket. That’s the very definition of a politician. I don’t have a good definition of hack.
If our best lawyers are no better than used car salesmen, why are they so well regarded internationally?
This is an excellent point. Under the current ‘history and tradition’ doctrine of the Supreme Court the moment in the debate last week where Biden challenged Trump to a round of golf on condition he carry his own bag should be treated as a challenge to a duel. That is after all how the founders would have settled this sort of matter.
That and juries are not informed they have a right to judge not just the defendant but also the fairness of the laws involved. Indeed anyone that mentions or admits this is removed from juries.
>If that were true then defendants would waive their right to a jury trial. They don't.
They do, overwhelmingly. Plea bargaining accounts for almost 98 percent of federal convictions and 95 percent of state convictions in the United States.
My point still stands. For cases that go to trial, if they jury is just a pawn for prosecution, the defendants would choose a bench trial. They do not, so this argument does not hold water.
I knew a guy who was charged with a crime he didn’t commit, and had strong proof of his innocence.
He was advised to do a bench trial.
The idea was the evidence was so strongly in his favor that only an idiot would find him guilty, and a judge was less likely to be an idiot than a jury.
It worked out splendidly. The trial didn’t even finish. The judge halted the trial half way through and “advised” the prosecution to drop charges, which they did.
This is of course not representative. But if I were ever in the same spot, I’d seriously consider a bench trial.
It's not representative. Bench trials can be equally dangerous. Judges are overwhelmingly ex-prosecutors (I think the stats are >80%).
I know someone who recently took a bench trial. No evidence of a crime was presented. The closing argument was the defense was "There was zero, zip, zilch evidence of any crime committed, and no mention of the defendant by anyone." The judge found the defendant guilty and then retired the next day. It's on appeal. C'est la vie.
(OTOH I saw a judge take a bench trial on a crime they'd committed, and their buddy was the trier of fact. The first witness had barely stepped onto the stand when the defendant was pronounced not guilty. LOL)
Plea bargains account for over 90% of convictions in the US. Part of the cause is prosecutors can and do offer deals that rational actors would have a hard time refusing.
As a trivial example: imagine you are charged with a misdemeanor you absolutely didn’t do. Assuming you have no previous criminal record the state offers you a civil penalty (ie an expensive speeding ticket).
Are you going to go to trial knowing you could be sentenced to a year in prison? Keep in mind just paying an attorney to represent you through the trial will cost several times the civil penalty.
As I explained in the other comment - plea bargains are a different issue - and do not impact my argument in the least.
The OP claims that juries can be bullied by a prosecutor into delivering a guilty plea. But if this were so, defendants would choose a bench trial as it would a safer bet. They do not, because juries are not bullied by prosecutors.
>The Constitution simply didn't envision a situation where the criminal justice system is more likley to hold someone accountable than an election or Congress
The constitution didn’t envision a sprawling legal services market to secure the freedom of criminals despite overwhelming evidence while poor people are enslaved like cattle in a nakedly classist and racist exercise of state power to maintain class divisions that afford the empowered unearned wealth power and privilege by virtue of birth.
Speaking of trends here-exceptions occur and get held up as some gotcha that only further betrays ignorance of the system and actually represents the calculated tokenization of the oppressed to act as a shield to scrutiny.
For what it's worth, conviction rates are not in the high 90%s.
The DOJ has a high conviction rate, at 93%, but Federal cases are the minority of cases in the USA. Most cases are state-level, and the conviction rates vary pretty significantly (E.g., California has a conviction rate of ~65% for property crime: Table 6 of https://www.courts.ca.gov/documents/lr-2019-JC-disposition-o... )
The solution is simple. When one of the two old men besmirches the other, they shall challenge each other to a gentlemanly duel. The survivor, if any shall become the next president. Owing to the advanced age of both candidates and the advancements in firearms technology, the dueling weapons will be full auto drum magazine AR-15 assault rifles as per the American tradition.
I very rarely see prosecutors drop cases before trial. There's not much incentive for them to drop a case as only a tiny percent of cases go to trial (most are plea deals). It's often worth rolling the dice for the prosecution.
You have a whole congress and senate to hold them accountable. If they haven’t, then why should a random prosecutor in a city court be able to issue an arrest warrant and prosecute the leader of the country?
Without immunity you’ll get the kind of shit they’ve done with trump, but against sitting presidents. Imagine if Obama had been arrested every time he entered Texas because the locals just feel like prosecuting him to send a message.
We don't have to imagine, because it didn't happen, because it's not and was not and won't be a real problem.
Okay, but now that hypothetical problem is solved, we have the opposite hypothetical problem. Let's see if it turns out to be more of an actual problem compared to your imaginary one, which never materialized in 250 years of the presidency.
My guess is it's going to be an actual problem almost immediately, as soon as someone with low moral character is elected. Wonder how long that will take.
> 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.
> Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.
Do you really want this kind of thing to be speculated to be possible? The court should be putting the squash on this kind of thing full stop, not giving any wriggle room at all. The fact that you have to argue that a supreme court justice is speculating on the downstream effects of a monstrous decision should tell you something is very wrong. Step back and think for one second.
It's been speculated on for ages. Humans tend to deal with things as they come up. The entire system is built that way. We don't write legislation that deals with every single possibility, we deal with it in the courts as it happens. It seems to basically work.
Well, to be fair, the first two examples she uses are very likely official acts and the third requires an official act to be bribery in the first place.
I don't think it is, to be honest. All three of those examples are clearly official acts. The President is commander-in-chief of the military, and is also responsible for granting pardons. The key piece of the ruling which lends credibility to her examples is that any motive or details behind the official acts are immune from scrutiny.
The only real difference is whether the acts are official or not. So the President is allowed to order the military to assassinate a political rival, but not to pay a private hitman to do so.
It's a pretty ridiculous and indefensible stance from the majority opinion.
They are not clearly official acts. It's going to be years of decisions and debate to define official acts.
As an example, the fact he's in charge of the military doesn't make everything he asks them to do official because he is obliged to follow the constitution. There are arguments to make against what I just said. It's as clear as mud once you start going through concrete scenarios.
This is as the Imperial Supreme Court wants it, so that it will come back to them every time an important decision needs to be made. This enhances their power and ability to shape events. Murkier is better.
It also makes it easier for partisan rulings on a case-by-case basis. If defendant is on your team: allow it, if not, issue a self-contained ruling (or don't pick up the case at all if lower courts ruled against them).
We have front-row seats to how empires decline and fade away. I guess those who missed the 20th century decline of the British Empire (culminating in Brexit) can study this one.
The constitution says very little. Most legislation says very little. I don't think they are grabbing for power, they are just stating the obvious - this isn't covered, so I guess we'll cover it.
> like, those assume the court will find anything to be an official act, which is nonsensical.
But the Supremes haven't said what they think an official act is; that's a matter for the court of first instance, according to the Supremes.
To me, in the UK, it looks like vandalism. There's no clear law on what constitutes an official presidential act, and until there is, the Pres is beyond the reach of the law.
I don't think these very senior lawyers are fools, I don't think they made a mistake. They've deliberately fucked-up the US legal system (even more than it's already a mess).
That's not how it works. If he does X and the court decides X is not an official act, he isn't immune. He doesn't get to say "well it was undefined at the time".
Read the actual ruling. They haven't fucked up anything. They haven't actually said much. Any time you read media coverage of a supreme court decision you've already made a mistake. You have to read the source material.
A president who is willing to do those things, and has a military willing to carry those orders out, isn't likely to be stopped by the court telling them it's illegal.
Is someone more or less likely to perform such an act if there's a possibility of legal consequences? If not, then we don't really need courts at all, do we?
The fact that the courts have explicitly legalized these blatantly criminal acts is what gives the military the cover and the imperative to dutifully carry them out.
Serious question: how is assassination an official act? Asked another way, under what constitutional authority is the president charged with assassinating political leaders inside the United States?
I'm not saying a president couldn't try. I can imagine that. I cannot understand how it would be an official act. If the president runs out of Kleenex and opts for toilet paper instead, that is not an official act merely because he is president.
If Lincoln had a Seal Team Six, and ordered said team to take out Jefferson Davis, would Lincoln have been open to prosecution, or immune as he had been undertaking an official act as commander in chief?
Anything which reaches the supreme court is complicated, by definition. On top of that the world changes and the people sitting on the bench change. So yeah, the court changes it's "mind" from time to time.
The idea that they are "clerics" because they make a decision you disagree with is nonsensical.
Complicated by definition means absolutely nothing. Most cases are not complex but were decided on political ideology. This is why they tend to flip decisions. Anyway the current crop are indeed clerics.
In the majority's opinion they stated that any act carved out by the constitution for the president is an official one.
The constitution establishes the president as the commander in chief of the armed forces. If the president orders a member of the military to assassinate an individual, he's exercising his role as the commander in chief, an official act, and is thus criminally immune.
The slightly longer form also includes that the majority held that for official acts, a president's motives can't be probed by the courts, so whether the president ordered Seal Team 6 to murder a political rival for self-interested reasons, that it was an official act is the only thing that need be considered.
> Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune.
There is no way that Sotomayor genuinely believes this. If Trump becomes president and is prosecuted again, I guarantee she'll argue that his crimes don't fall under the President's official duties.
I don't understand how you could not believe this under the majority opinion. The constitution is very clear that supreme command of the armed forces falls to the Commander-in-Chief. The President. It must follow that when the president directs the armed forces he is performing an official action that is exclusively given to him via the constitution. If that is not an official action, then what is? There is nothing in the constitution directing how the president should direct the armed forces. And it follows from that if its an official action then he is immune.
If Donald Trump ordered the military to manicure the lawn at Mar-a-Lago, would that be considered an official act? Obviously not. The Emoluments Clause dictates that all federal officeholders cannot benefit from their positions besides their direct compensation.
I don't think that the Domestic Emoluments Clause's concept of "Emolument" goes so far as to apply to the death of a political opponent. Suppose that I'm a manager at a corporate job and the second-most likely candidate for a promotion. If I order a subordinate to kill the most likely candidate and I get promoted, I don't think that the prosecutor would think to add a "prohibited employment compensation" charge on top of the inevitable "conspiracy" and "first degree murder" charges.
(In a previous version of my comment, I thought that the previous commenter was referring to the Foreign Emoluments Clause and cluelessly asked whether there was a domestic version.)
> If I order a subordinate to kill the most likely candidate and I get promoted, I don't think that the prosecutor would think to add a "prohibited employment compensation" charge
They would if you had used your company credit card to pay a hitman though. Perhaps this isn't the strongest argument for why the military for a political assassination isn't an official act. My point still stands though that all limitations of the powers of the President are still there, so not everything they do will be considered an official act.
Yes. Ever since Bill Clinton (and probably before that, I was too young) the President and a non-trivial number of presidential candidates were either under an investigation of some sort, or a threat of such an investigation. Obviously Bill, Hillary, constant threats of investigation of George W Bush and Obama, special counsel investigating Biden, and all the Trump cases. Notably nothing ever comes out of these.
This is ridiculous! It's blatantly political and both parties are guilty of this. The justice system is meant to hold people accountable for breaking the law, not as an additional political mechanism for checks and balances. I haven't looked into the case and don't know the legal precedent SCOTUS used for this decision, but from a consequentialist standpoint this seems to me an obviously good outcome.
Clinton was charged with lying under oath, obstruction of justice, and abuse of power. The first and second charges were approved while the third was rejected. He was only found guilty of the obstruction charge.
The behavior of Ken Starr in this case was abhorrent. In my eyes, there was a degree of witness intimidation going on in this case.
Ironically, this SCOTUS ruling would have blocked Clinton's impeachment because Ken Starr was an Independent Counsel, which SCOTUS ruled cannot be used in such matters.
Are you seriously suggesting that Democrats don't commit war crimes?
You should probably look up Obama's track record on this. Killing Americans without due process, torture, killing civilians, etc. Not to mention other crimes like the massive amount of spying on Americans. Don't forget Snowden revealed all his stuff during Obama's reign and those crimes were still ongoing.
The ruling says that 3 of the 4 indictments against Trump can proceed so long as prosecutors make a case that the President was acting outside of his duties.
A president being incompetent or immoral in his line of duty is an issue for voters or congress to decide on. But a White House bogged down in lawsuits or petty criminal charges would cease to function.
Which they can't because official duties haven't been defined.
Trump can now continually appeal his actions were official, delaying charges until after November when, if he wins the election, he can instruct the DoJ to drop the case.
> 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.
The majority opinion is pretty clear that of the indictments, 3 have pretty good grounds to proceed.
If a president assassinates his political rivals I don't think you can say it's, "an issue for voters or congress to decide on." That would be impossible, since anyone the voters wanted to replace the sitting executive or his allies would just be arrested or murdered outright (as an official act, no less!).
I don't think anyone in the ruling outside of Sotomayor implies that murdering political rivals would fall under an official duty of the president as outlined in the constitution.
I disagree, since a good many people seem ready to accept that Trump trying to overturn the results of a free and fair election (which in my book is pretty much on par with murdering political rivals since the point of murdering a rival is so that they don't get elected), is an "official duty".
Prosecutors have wide ranging discretion, our laws are complex and subject to a tremendous amount of interpretation.
Without protection the executive would be at the mercy of the judicial branch. This is clearly an inversion of power.
Perhaps the solution is clean out our legal system wholesale so that it is obvious to all involved whether an action or set of actions could not result in prosecution in the future. Such an action was not within the power of the supreme court.
Generally the way to hold a president accountable is to impeach him and remove him from office.
Under this ruling, the court system is generally not a way to keep him accountable.
So it’s not that there is no accountability or way to “punish”, a rogue president, it’s just a different method of accountability than what applies to you and me.
Congress can choose to impeach, but they are not doing so based on the laws of the land, but based on their own determination (whether it is in their best interest for that President to be gone or not), which (unsurprisingly) is split along political lines (which is why it's so hard to actually impeach the president).
Therefore impeachment is not a means to hold a President accountable for illegal or anti-democratic actions, but rather it is a means for a united Congress to have some power over the President in the event he managed to piss off enough people from both parties.
> Generally the way to hold a president accountable is to impeach him and remove him from office.
Impeachment is a political solution to political disagreements. This opinion makes most disagreements with 'official acts' a political question, to be settled by election or impeachment.
Critically (and thankfully) it rejects outright the idea that impeachment is the _only_ mechanism restraining a president. Criminal liability is still a viable mechanism for holding a president responsible for all unofficial acts, and potentially for some official acts.
Everyone seems to be calling this "blanket immunity" but that's not right. It's immunity for official acts which are the prerogative of the president. Basically the president is allowed to do all presidential things without having to worry about whether it will be deemed illegal.
This doesn't mean that the president cannot be tried for some illegal act that was not their official duty. Murdering someone, for example.
Ordering the murder of someone is their official duty as commander in chief of the military. The only thing they have to do is say they feel that a person was a threat to national security.
Given your example, under this decision, the President could be charged, and the courts would have to decide whether it was an official act. Was it the murder of their mistress? Then obviously not official. Was it the murder of a terrorist planning an attack? Probably official. Is there some grey area in the middle that will really hard to decide? Probably. This was a moderate decision that defers making broad rules and lets courts decide on a case by case basis.
> Was it the murder of their mistress? Then obviously not official.
Why obviously? If mistress is causing "harm" to other official actions would it not be official duty to prevent this harm? You and I may not buy such a defence but a sympathetic audience of allies?
> Was it the murder of their mistress? Then obviously not official.
They could argue that if she came forward it would reduce American's faith in their government leading to instability or that it would provide an opportunity for our enemies to use the scandal to undermine national interests, or they could argue that the "vindictive ex" might expose secrets that she learned while in proximity to government officials, or even just lie and say she stole the secrets.
The president doesn't even have to murder her. The president can now disappear people in the middle of the night and ship them off to gitmo under the banner of "national security" and not tell anyone about it, and even if someone leaked that the cells in Guantanamo Bay were filling up even the supreme court wouldn't be allowed to see the evidence. Any trial at all would take place in secret military courts closed to the public.
This was the farthest thing from a moderate decision. It puts the president literally above the law. There is zero need for this kind of immunity when the actions a president takes while in office are legal, which is how we've gone nearly 250 years without ever once needing it.
They could argue that if she came forward it would reduce American's faith in their government leading to instability
I think you've been so riled up that you are worried over impossibilities. Judge Chutkan gets a pass at interpreting this, wait and see what she says about it. The kind of arguments you are suggest are wildly implausible and will never pass muster in any court, regardless of appointee. It explicitly isn't the intent of the decision.
It's certainly true that all we can do today is speculate about how this new immunity will be abused, but I suspect we'll find out a lot sooner than we'd like.
Its fair to approach arguments like this with skepticism because they sound so ridiculous, but I think they're lent more credence when referenced as a concern in the dissent from the Supreme Court itself. Sotomayor said: "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."
If you want to say she is worried over impossibilities too that's fine but based on the facts of the case and how it was ruled, I don't see why its not a realistic concern.
Anwar al-Awlaki. An American who was executed on the orders of the president who claimed he was a threat to national security, and faced no judicial consequences for.
The problem isn't them. We just not too long ago have a court case that questioned whether the President is considered an "officer of the United States." The unfortunate part of law is, half of law is arguing about what 'is' is.
So its not necessarily that words don't have meaning. Its more of, the words can change meaning.
Not only that, but this same court removed the constitutional right to an abortion because it wasn't enumerated in the Constitution. Now, they completely invent criminal immunity out of thin air (which btw was never necessary in the last 250 years until we had a criminal president), when the intent of the drafters to never elevate any person above the law was crystal clear.
The Roberts court is just arbitrarily choosing whatever justification they happen to like for any given case to push an extremist agenda.
No, because rights are not granted by the constitution, rights are self-evident and natural, and people retain them without them being explicitly enumerated.
The constitution merely enumerates certain rights where the founders wanted to be extra clear that those things were rights, but it is not a limiting document.
The 9th amendment states this explicitly: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
A majority on the supreme court seem willing to bend reasonable definitions backward to get whatever they want. Second amendment 'right' to (non-militia) personal firearms for example.
Thats about the worst example one can give, given that it has broadly been considered to allow [personal firearms] since the start of the country. The grammar isn't even confusing.
[edit] removed the word militia to avoid confusion between historic and modern definition.
At the time the rationale for a right was frequently included in the text, just as a modern reading of the right implies it is being used as an explanatory clause. The entire concept was that there would be no governmental army and in times of need, citizens would be able to use their arms and organize for mutual defense. In this context, "Militia" is synonymous with an decentralized armed citizenry without government oversight. The clause provides this rationale and coveys a sentiment against a standing army. here are what some state constitutions had to say about gun ownership, prior to the bill of rights.
Article XIII of the Pennsylvania Declaration of Rights of 1776 read:
>That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.
Similarly, as another example, Massachusetts’s Declaration of Rights from 1780 provided:
>The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.
James Madison produced an initial draft of the Second Amendment as follows:
>The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
I pulled the quotes from this link, which has more text and discussion.
It is hard to see why a state would feel the need to include the government's ability to own weapons at all, let alone in a document listing rights and protections for individual citizens. Furthermore, the statements already draw a distinction between the people and an army controlled by the government.
What about overthrowing the government? Because that's the "offical" act of the president with today's ruling.
Further, it should be noted that the lower court already did exactly what the supreme court remanded back to them. They said "we don't know what sorts of immunity are granted to a president, but if there is any they are not granted, it's overturning an election as is accused in this specific case".
The supreme court took up this case specifically to help donald trump and because they couldn't challenge the ruling given they made up their own facts to give the ruling they wanted to give.
But if one overthrows the government via official acts, then one enjoys absolute immunity.
For example, the president can deem opposition party leaders to be terrorists and then in an official capacity order them to be assassinated by the SEALs. He can grant blanket pardons to everyone involved while he himself enjoys absolute immunity for his official acts.
The Senate will never be able to impeach or convict you when you’ve killed off those who would do it.
This ruling makes the president a temporary dictator, and it’s reeeeeally easy to go from a temporary dictator to a lifetime one.
Here is a legal brain twister to chew on. Trump probably could not have been charged with insurrection…because he could not overthrow himself. On January 6, he was still the president and represented the government.
Disruption of a government proceeding is more appropriate. Had Trump did what he did on January 21st, 2021…you might have a case for insurrection.
A self-coup, also called an autocoup (from Spanish autogolpe) or coup from the top, is a form of coup d'état in which a nation's head, having come to power through legal means, tries to stay in power through illegal means.[1]
It's strange that they haven't delegated to Congress to write a law specifying which acts are and aren't official, and that without said law, no acts the president does that aren't specifically listed in the constitution are official
That would be much more in line with the courts other decisions than asking a court to write the law
If by "Everyone" you mean at least one of the sitting supreme court justices. What is considered "official duty" is not clearly defined, and will certainly be twisted to include things that seem like they obviously shouldnt be considered "official".
But if a president claims that a surgical strike to eliminate an "enemy of the country" was within their prerogative, then yes, a president can murder somebody without fear of consequences.
This is the biggest impact of this opinion IMO. The president can do basically any supervisory action within the executive branch for any reason without risk of criminal liability. His ability to direct federal agencies is only limited by the supply of palatable lackeys.
With regards to (b)(ii)(3), i.e. Trump's attempt to influence non-federal officials to select fake electors...
>> On Trump’s view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election. As the Government sees it, however, Trump can point to no plausible source of authority enabling the President to take such actions. Determining whose characterization may be correct, and with respect to which conduct, requires a fact-specific analysis of the indictment’s extensive and interrelated allegations. The Court accordingly remands to the District Court to determine in the first instance whether Trump’s conduct in this area qualifies as official or unofficial. Pp. 24–28.
Which seems a key window for the lower court to send the case back up.
Trump attempted to influence non-federal election officials.
Trump had no Presidential authority to do so. (Elections being run by the states)
Ergo, that was not an official act.
Granted, the special counsel would have to prove that without using the Presidential personal notes... but it's still a pretty clear path given the non-Presidential documentation all the conspirators kept.
And it does make sense by the Supreme Court's reasoning: you can't restrict the President from running the executive branch, but you can hold him accountable for the things he does outside of the executive branch, which critically includes elections themselves.
> but it's still a pretty clear path given the non-Presidential documentation all the conspirators kept.
it's my understanding that they can't use testimony or notes from advisors et. al. which is troubling since they are or can be the co-conspirators.
> Presidents cannot be indicted based on conduct for which they are immune from prosecution. On remand, the District Court must carefully analyze the indictment’s remaining allegations to determine whether they too involve conduct for which a President must be immune from prosecution. And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct. *Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.*
My reading was they can't use testimony or notes from advisors in the executive branch who are helping the President perform an official act.
I.e. anything that would have a chilling effect on the President's ability to direct the executive
Outside of that, e.g. campaign staff, is a different matter. And I believe there's already a distinction between government employees and campaign employees (probably for campaign finance reasons).
Which seems reasonable on its face, but it faces another issue. Now, what defines an 'official' act as president. And how loose do we want to play with those terms. If we want to play slippery slope, which is what the court seems to like to do, then something that should be illegal but can be deemed an official act is a President ordering the military to keep voters out of voting locations because they have a 'tip off' from someone in national security that a potential terrorist attack may or may not happen at voting locations. Right, we can end up in a situation where the president can find any loose way to justify anything they do.
That is where probably the blanket immunity comes into play. Its not definitionally blanket immunity, but it might as well functionally be blanket immunity.
I mean that’s the only way anything gets to the Supreme Court. “Court of review, not if first view” and all that. They’re not structurally or practically equipped to preside over the early phases of questions like that
This just sounds like a convenient shield/excuse (not by you specifically) for them to drop grenades into our society without any consideration for the damage when it’s convenient for their politics. They have absolutely had no issue expanding the discussions/interpretation when the 6-3 partisan majority gets to side with general GOP values and policy aims. How else could we explain Thomas bringing up Obergfell during Dobbs?
It is not de jure blanket immunity, but when terminologies like "official acts" aren't clearly defined, and have an innate bias for slippery-sloping - given the nature of the President's office - it becomes de-facto blanket immunity.
It doesn't invoke sovereign immunity through a loud roar, but from an understood nod.
That's not quite it. There's absolute ('blanket') immunity for acts that exclusively reserved for the president (vetos, pardons, etc.). There's presumptive immunity for other 'official acts', but that doesn't preclude the possibility that some official acts could be deemed or made illegal. There's no immunity for unofficial acts, but there's a pretty fine needle to thread in to determine an action is unofficial (if it's not 'palpably' so).
Say a president builds up an "official" retirement fund for himself (and friends) by holding a "pardon auction" with top bidding few dozen criminals being released each year during a presidential term. Is this an "official" action covered by this immunity ruling? Their justification could be it keeps taxes lower, etc.
No, the bribery would not be an official act, see footnote 3 of the opinion:
> in a bribery prosecution, for instance, excluding “any mention” of the official act associated with the bribe “would hamstring the prosecution.” Post, at 6 (opinion concurring in part); cf. post, at 25–27 (opinion of SOTOMAYOR, J.). But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. See 18 U. S. C. §201(b)(2). What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety
Admittedly it’s a bit contradictory, but still helpful I think. The pardon is the official act, and the president is immune from criminal prosecution (and legislation) of the form “it was a crime to give that pardon” without further qualification. The prosecutor cannot compel presidential records or testimony. All the other tools are still available to the prosecutor and the unofficial act of accepting a bribe is still a crime.
"The president is allowed to do all presidential things without having to worry about whether it will be deemed illegal."
"Such a problem this thing called 'law' that people made, doesn't let me govern. If only i could do everything i want without having to concern myself with such petty things."
I can't believe this is the type of argument people are using to defend this abysmal situation. The US should have invested more in teaching kids about fascism and identifying its signs. Unbelievable that people are so blind to what's going on.
The counterpoint is both obvious and obviously correct. Assume we accept that the President has immunity for whatever constitutes official conduct (which this decision does not get into). Presidents have fixed terms, so unless ex-presidents have immunity, they can be prosecuted for anything they do in office, including their official duties. That would make it difficult for the president to take action while in office.
Can we prosecute Obama for ordering drone strikes on U.S. citizens? Can we prosecute Bush for the Iraq war? Can we prosecute Biden in a few months for deaths caused by his border policies?
Also, this is just how immunity works! Judges have immunity for their judicial conduct in office, and don’t lose it when they retire. When the GOP wins a trifecta next year, can they prosecute retired liberal justices for homicide for abortion rulings?
I think it’s consistent with the philosophy that States should curtail the powers of the President through constitutional amendments.
It’s a strict constructionist interpretation, where the judiciary shouldn’t fix problems that the people, congress and States have the power to fix.
In the example of the President (Commander in Chief) directing the military to thwart political enemies, I think a strict constructionist might say, the people freely elected that President, 2/3 of States failed to pass an amendment curtailing the President’s unilateral command of the military and the Congress failed to impeach and convict the President, so the judiciary is hardly to blame when the people, congress and States all could have intervened if there was a concern.
There are obviously counter arguments to this strict constructionist view, which the minority documented. The counter-argument is basically, yes there are those other options, but we have to use a liberal interpretation in this moment instead of a strict interpretation in order to prevent some potential disastrous consequences. And if the people, states and congress don’t like our liberal interpretation, then they can overrule us using the same methods of voting, laws, constitutional amendments, etc. that the strict constructionists advocate.
I thought the strict constructionist arguments fell apart when the dissent quoted the Constitution which says even if a president is impeached, they “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Art. I, §3, cl. 7
I don't see how any interpretation of this text could imply that the president is immune from criminal prosecution. It clearly says a president is not immune from criminal penalties, how could they write this while also considering the president immune for offical acts?
> Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
So I think the intended process is that congress must impeach and convict first, and then after that they are subject to criminal prosecution.
So I’m guessing that the Federal government or US State can’t unilaterally prosecute the President for an official act if they haven’t been impeached.
* Bush fabricated evidence to start a war and never got prosecuted.
* Obama's administration literally sold guns to a Mexican drug cartel for no apparent reason.
* Reagan had iran/contra
* various different "collateral damage" fuckups under every administration during my lifetime where dozens of civilians are killed but nobody cared because they're poor, brown, and not American
* Kennedy authorized the CIA to raise a private army and launch an invasion of a country we weren't at war with.
And many more, this is but a small sample of the crimes presidents have committed.
But nobody ever gets held personally accountable for anything until Doritos Hitler comes along and commits a series of crimes which, while unconscionable, are comparatively minor next to the above listed. This ruling hasn't actually changed anything. It just codified something that has obviously been true for at least 80 years, and it prevented one party from selectively applying the law to a political opponent in a way which it almost never gets applied.
So my defense isn't that the president should be above the law (he shouldn't), but that he obviously already has been above the law for a very long time and pretending otherwise is just lying to yourself and the american people.
As an Independent who is not voting for Trump or Biden and has largely stopped following the election drama:
Starting the wars in Iraq and Afghanistan post-September 11 (Bush -- Republican), and the Gulf of Tonkin incident which led to the Vietnam conflict (LBJ -- Democrat) these were much more costly and problematic than the issues that happened while Trump was president.
The United States should concentrate on its citizens and not on being the world police, and should never get into any external war. Israel can get tank ammunition pushed through with no problem, but we can't get healthcare, childcare, housing, or education at affordable rates. This means that the priorities of the government are not aligned with the priorities of the citizenry and we need to re-align the governemnt with the citizenry.
We also have a childhood obesity crisis, with about 20% of children obese, which will cause much larger problems 20 years down the road when Gen Alpha is all grown up, and Trump and Biden are both dead. This country is not able to think long-term about how expensive GLP-1 agonists will be for 20% of the population.
Also, real inflation is still high; groceries, at least at Trader Joe's, are still much more expensive than pre-pandemic prices. I don't care what is going on in the world until we fix our own internal problems, which neither major party has shown a willingness to do.
As I see it the major political parties both use certain emotional issues including gun control, abortion, immigration to drive voter outrage, while ignoring the issues that are actually important.
Here's the link to the actual Opinion, which is worth reading because the arguments are complicated and nuanced - and this makes sense, because no former president has faced criminal charges before. The reporting on this topic is atrocious.
> Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.
The majority specifies some ways this may apply that very much make all kinds of things directly shielded by this ruling, and indirectly shields more by restricting the use of evidence that has to do with official acts.
The way they’ve set this up, the people involved have a lot to do with it. It sure looks like the President can now openly discuss corruption like selling secrets or pardons with e.g. relevant cabinet members, and none of that can be prosecuted, nor can it be evidence presented in a prosecution of crimes.
The wording is definitely not clear enough in that section, however I don't think this is the intended reading (and I'm hoping we get clarification on this) -- the pardon would be an official act, but according to footnote 3 the sale of the pardon and discussions about that would not be included in the bar on evidence of the official act, because they're not considered part of that official act. It seems (with the footnotes considered) to be a very narrow interpretation of "official act," which does seem to contradict the plain reading. Very annoying.
Let's imagine that a president decides to, say, stop aiding Ukraine, and in exchange, Putin promises said president a couple billion dollars.
Stopping aid to Ukraine is definitely an official act, which, on its own, is within their powers. Trading said official action for the billion dollars is what is fraudulent, but if I am understanding the Roberts opinion correctly, it cannot be prosecuted, because the motives of the president should not be used as part of the ruling of immunity. So... free bribery, as long as said president pays their taxes.
It clears the way for Presidents from either party to carry out abuses they wouldn't have dared consider otherwise. All they'll need to do is find or make an angle that qualifies it as an official act.
> All they'll need to do is find or make an angle...
that's not anything new though, Obama's drone strikes weren't ordered until his lawyers felt they had a very good defense for him in case he was charged with assassinating US citizens without due process.
"Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity, If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.
With fear for our democracy, I dissent."
and
“Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today. Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”
“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.”
"The opposing party's candidate was involved in activities that posed a grave and immediate threat to national security, and we took action to mitigate that threat. This is an official act, and no you can't see the evidence because it's top secret."
If we refuse to recognize that harm under the current Rule of Law, then who is going to identify and prosecute "harm" besides politically motivated ideologues? It sounds like a surefire way to cement the separation of the Executive office from it's respective checks and balances.
It seems like perhaps that power has been considerably weakened if the President is literally allowed to assassinate political rivals (as is mentioned in the dissent). You might vote not to impeach in fear, similar to jury intimidation. Hell, why even wait, what’s to prevent a President from going for it before the vote even happens? I find it hard to believe that this was meant to be a component of the impeachment process by the founders. To make it more exciting, I guess?
Once they are impeached they would presumably be subject to criminal prosecution under the Impeachment Judgements Clause [1] which states:
"but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."
I don't think this ruling is, on the surface, exactly what people are making it out to be. It certainly maintains a high bar for criminally prosecuting the president for something they do in office, but it is not allowing them to commit crimes with impunity.
> but it is not allowing them to commit crimes with impunity
Well it kind of does, because the president has the power to stop impeachment from ever happening in the first place, if they're willing to command the military to.
With the speed at which the impeachment and removal can take, with this new interpretation, it seems significant and lasting damage take take place before anything could be done.
I’m not an expert in this area by any means but it feels like there should be a “motive” angle to this rather just than blanket immunity.
The same actions committed by two different presidents could vary hugely in their motive - one might be legitimately concerned about voter fraud and the other trying to interfere maliciously with election results.
Admittedly the bar would be high to prove malicious intent (eg. acting out of self interest rather than in the interests of the office/country) but that still seems better than just saying that a given action, regardless of motive, is covered by immunity.
That's basically what happened when President Clinton pardoned major donor Marc Rich as one of his last official acts. Ultimately the only protection against this is for voters to reject candidates who lack personal integrity.
At least with this one they've rescued us from doing national politics like a banana republic. You can't arrest Presidents for doing things they had the total latitude to do as Presidents. We can't have the courts deciding whether Presidents had good or illegitimate reasons for any arbitrary decision that they made during their presidency. It's madness.
If a president took a bribe for a position, prosecute him for taking a bribe (if it's not a gratuity, because Congress has declared tipping politicians legal.) But if he could have made the same decision because he liked someone's tie - it's nothing but second guessing, by a likely hostile later administration.
These people appoint all their campaign staff and big donors to government jobs. If that's legal, then any reason for anything they do which is left up to their discretion is legal. If it's not legal, have Congress make it not legal.
-----
edit: gaganyaan, you are wrong. If you think that the entire point is that a president cannot be prosecuted for taking a bribe, you should reevaluate your understanding of the entire point.
> Under Monday’s decision, a former president could be prosecuted for accepting a bribe, but prosecutors could not mention the official act, the appointment, in their case.
> Justice Amy Coney Barrett, who joined the rest of Roberts’ opinion, parted company on this point. “The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable,” Barrett wrote.
You're missing the entire point. Now the president can't be prosecuted for taking a bribe, even if he publicly declares that's the reason for doing so.
Y'know, the president has very convenient authority for just this kind of thing. Something about drones and strikes? Would be a shame if when people tried to impeach the president he exercised his qualified immunity to convince them that it's a Bad Idea.
> We can't have the courts deciding whether Presidents had good or illegitimate reasons for any arbitrary decision that they made during their presidency.
Why not. The vice president exists for a reason? Here in Europe, in the entirety of Europe, if a president or prime minister commits a crime, they will be prosecuted. If we can do it, why can't the USA?
After all, no one is above the law.
If anything, the more power you have, the more scrutiny you should be under.
Curious how an ostensibly "conservative" court can ignore the concept of enumerated powers, the constitution clearly does not grant immunity to the President, so the conservative court invents immunity when none is explicitly granted.
Indeed, the concept of immunity is recognized in the American constitution for legislators in a limited way, so this isn't an oversight by the framers corrected by Robert's conservative majority, rather the lack of immunity for the executive is a feature and not a bug of our constitution, and all republican forms of government.
Ironically the American president now has more power than the King of England, George the III, at the time of the American independence. King George had to follow the laws of Parliament, as did all Kings of England since the passage of Magna Carta some 500+ years prior.
As of today our President no longer has to obey the Constitution or the law so long as the act is deemed "official" by the conservative majority.
They also cite the Federalist Papers in comically-vague support of their ruling, while the dissent cites the Federalist Papers right back to note that the founders had executive immunity very much on their minds and left it out of the constitution extremely on-purpose because they regarded subjecting the President to the same law as everyone else to be key difference between the system they were setting up, and monarchy.
> Curious how an ostensibly "conservative" court can ignore the concept of enumerated powers, the constitution clearly does not grant immunity to the President, so the conservative court invents immunity when none is explicitly granted.
Roberts' opinion covers this, as do many discussions of textualist interpretations -- not being set out in the text specifically doesn't mean that it doesn't exist, for textualist interpretations. Roberts' example is separation of powers. There's no "separation of powers clause," but the concept is pretty clearly set out in the text anyway. They say the same is true for immunity for public acts, and they provide reasoning. I disagree with some of the reasoning, but there are much more tenuous things read into the Constitution by the Supreme Court than this one.
And if the Constitution includes immunity for public acts, so much the worse for the Constitution!
That's not really a coherent stance though, given how many "protect the constitution" laws they keep overturning in the name of "it's not actually written in the constitution".
Because they're not conservative. They are radical reactionaries, to use the word that Moldbug himself coined. Essentially Republicans got tired of things changing despite their conservatism, got angry, and now it's not enough to slow change - they want to rewind us to the values of the 1980's or even the 1950's. This perspective is why they refer to any post-y2k mainstream social values as "activism".
The Democrats have now become the conservative party. Both in the abstract of wanting slow cautious change, and in the concrete principles that have long been held as conservativism - belief in American institutions, strong foreign policy to spread those institutions, the rule of law, and now even fiscal responsibility with having led the pull up from ZIRP!
This was downvoted at the time of this comment. Shame on the Republicans in this thread that I have my fellow programmers to blame for the fall of american democracy
It's like nobody can take criticism these days, probably because they're overwhelmed by the amount they see.
I went back and forth whether to include a paragraph about how this swapping also explains the dynamics around things like DEI training, but decided against it so I wouldn't be getting it from both sides. Things were more pleasant when most people got this energy out watching football.
As it should be. If someone is going to make a broad claim about an entire political party - be that Republicans or Democrats - they need to show the evidence. You don't get to make sweeping negative statements about large chunks of the country without backing it up.
I don't know what kind of evidence you're thinking. My argument is based on the straightforward policy positions of the parties, and especially how the times have changed yet many positions have not, with some policies even changing in the opposite direction of social changes. Other core policies have been outright rebuked - can you imagine Reagan appeasing Russia by shunning countries desperately wanting to be our allies?!?
If you want to point me at other conservative principles I skipped over but seem overridingly relevant to you, please do. But even for the social issue of religion, which seems to be the defining aspect for many people, the figureheads are churchgoing Biden versus philandering Trump.
To a large extent this immunity is inherent in the enumerated powers. Consider this general case: The Constitution enumerates specific powers to the executive branch, and hence President. Congress passes a law that makes those same actions illegal if performed by a normal citizen. If this law applied to the President, then that would mean that Congress could nullify the enumerated powers granted to the Executive, making those enumerated powers meaningless. So it makes perfect constitutional sense that actions performed by the President as part of his job that that are within his enumerated powers cannot be made illegal by Congress.
That core concept of immunity is pretty solid and essential, it is the details that are problematic, in particular the fact that the courts have interpreted "official" acts so broadly in the past in cases of qualified immunity makes one worried they will do the same here.
> Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans? It seems like that world would hamstring the president far too much.
The President shouldn't have the legal authority to conduct any drone strikes without a declaration of war from Congress. We've been ignoring the Constitution for a very long time.
There is the 2001 Authorization for Use of Military Force that a lot of the expanded War on Terror activity are nominally authorized under according to the Executive. Challenging that is up to Congress as afaik there's no standing for a random person to sue.
And Congress notably passed the dang thing and has pointedly refused to come back and limit it or curtail the admittedly expansive interpretations subsequent presidents have made of it, so I very much doubt they're going to ding a given president now.
Correct there's been several attempts to revoke or limit the 2001 AUMF and Congress has decided not to each time. It's pretty clear what is being done under the auspices of it too so failing to address the interpretation becomes a tacit endorsement at least at the institutional level. Personally I think it's been stretched to breaking but the fix is pretty simple and up to Congress.
> The President shouldn't have the legal authority to conduct any drone strikes without a declaration of war from Congress. We've been ignoring the Constitution for a very long time.
What part of the Constitution are we ignoring?
According to the Constitution, the President is the Commander in Chief of the armed forces. The Constitution does not say that war must be declared for the armed forces to operate. Thus, ordering a drone strike without Congress' input would seem well within the scope of the President's powers.
Killed or targeted? There's a huge difference between ordering a drone strike on said citizens and ordering strike on legitimate military target that said citizens just happen to be in a vicinity of.
Can you give an example of a time when a "legitimate military target" needed to be killed so immediately that a unilateral presidential decision that also killed nearby citizens was warranted? My presumption is that there are very few circumstances where the threat of a military target is so immediate that killing nearby innocent civilians is justified over waiting to try to find a better time to attack the target. If anything, immediate threats that require action are generally threats to the nearby innocent civilians themselves, which would make such decisive action not particularly useful; I don't think anyone would suggest something like blowing up a bank where people are being held hostage, which seems like the closest hypothetical I can think of.
I would argue that the US law would not allow the president to order strikes like those that have occurred in Gaza on US citizens, but of course IANAL. I don't have any knowledge of what Israeli law allows or doesn't allow though.
It's also worth noting that what someone thinks is legal is not necessarily what someone thinks _should_ be legal; I imagine that almost everyone here has at least some laws that they disagree with, but that's separate from the question of whether the law exists or not.
Enemies are not static they can react to our policies. If our policies are never to kill anyone who is near a civilian, enemies would just always be near civilians.
Citizens, sure. That's a much weaker claim than what the parent said, which is "The President should not be able to conduct drone strikes without an act of Congress".
Drone striking (or otherwise killing) citizens without due process seems unconstitutional. Drone striking foreign targets does not have those constitutional protections.
Federal (and state, and local) law enforcement are not empowered to kill. Their job is to bring defendants to trial, where the judicial system determines innocence or guilt and then determines the sentence.
If they were, the whole cop-killers, BLM, excessive use of force issue would not be an issue. The law would just say "Okay, a cop killed someone, that's their job, get over it." You can argue that the criminal justice system is too light on cops, but the fact that the criminal justice system is even involved means that killing people is not part of a cop's official job duties.
Qualified immunity is used as a defense in a lot of these cases.
Practically speaking, law enforcement does have broad authority to kill people. So long as that death falls under the training guidelines written by the department, then it's unlikely the officer in question will face any punishment.
Now, killing a person might be seen as a violation of their civil rights, entitling their estate to compensation for the death. But that's a punishment for the state, not the individuals involved.
>If not, it's policing then it's under the judiciary authority, not the president.
Wait, what? Executive branch pretty explicitly encompasses enforcement. The Justice Department is part of the Executive branch.
Unless by "Judiciary authority" you meant the Justice Department, and not the Judiciary branch of the federal government, and by "not the president" you were very specifically discussing the semi-independence the Justice department has from the president.
Congress has the power to declare war. But Congress has also passed the War Powers Act which states the President can use the military for short periods of time. Are you claiming the War Powers Act is unconstitutional?
The War Powers Act is exactly the type of law that the Supreme Court has been going after. Bills that give power that was meant for one branch of government to a different branch, or abrogating that power.
The problem with SCOTUS going after these laws is that they are a matter of practicality. If an attack is launched on the USA, the military and the President aren't going to sit back and let it happen, they will act.
When the constitution was drafted, time delays necessitated that the military and the President act autonomously for the most part. Congress couldn't convene rapidly enough to expect them to have much say in all but the largest and most drawn out conflicts.
The War Powers Act is codifying this implicit power. The framers never considered a situation where the President and Congress is watching a conflict play out across the world in real-time and making decisions. So it's literally impossible to say how they wanted this to be handled. That's why they gave Congress the powers to write laws.
And yet, now here we are in the 21st century, where it feels like we're on the opposite side of the time delay problem. Instead of the War Powers Act, what if we allowed congresspeople to use PEKs to vote by proxy in the case of an emergency (definition needed)? Surely that would be better than creating a all-but-in-title king out of the executive branch as concerns conflict?
The security issues around that are similar to the issues with electronic voting and have been covered exhaustively. You're creating the absolutely juiciest target for hacks and espionage. I would say they could meet by remote teleconference but that has issues now too with deep fakes getting better and better.
On a similar note the communication time has vastly narrowed but so has the ability to perform attacks.
Banning bills that transfer powers around government would also hamstring regulatory agencies, wouldn't it? While there are some other rules in place, agencies making law is fundamentally a transfer of power from the Legislative branch to the Executive.
The War Powers Act is questionable. The US never declared war in Vietnam. The president simply sent troops to Vietnam knowing that they would end up fighting. But the president said he had that authority as commander-in-chief. The War Powers Act was supposed to address that.
If the president actually has the authority to send troops into combat without a declaration of war, then Congress can’t take it away from him, just like Congress can’t make it illegal to veto bills.
The War Powers Act doesn’t really set any punishment for the president if he ignores it. It effectively says that if the president does certain things (consult with Congress, follow certain timelines, issue reports) then Congress won’t complain. Presidents have generally followed those procedures without admitting that’s what they’re doing (they issue reports “consistent with” the Act, but never admit the report was required by the Act). But if a president completely ignores those requirements, Congress has to figure out what to do about it; which is exactly what would happen if the Act didn’t exist.
There is a certain amount of deliberate ambiguity to Article I Section 8 -- take a look at e.g. https://avalon.law.yale.edu/18th_century/debates_817.asp and you can see that the wording "The Congress shall have power to [...] declare war" was revised from "make war" in the earlier drafts. Madison clearly felt that Congressional authorization was on some level required to conduct a war, but that the Executive should be free to act quickly in self-defense, e.g. to repel an invasion.
Like a lot of things, this seems to fall under the idea of "convention" and not law. This has been an ongoing problem in recent times. Practically speaking, Congress is a rubber stamp for matters of war.
Theoretically, they can withhold funding from the military. But seeing as the Treasury Department falls under the President, it's unlikely they can actually do that.
Legally though the power of the purse also lies with Congress. If we're throwing in extra constitutional actions all bets are off though because we're no longer bound by the rules of what is allowed and it's down to the old power of might making right.
"Withhold funding from the military" it's actually better (or worse) than that. The US doesn't have a standing army technically speaking, it cannot constitutionally. The post war military has been continuously reauthorized twice yearly since the end of world war 2. Congress can refuse to reauthorize continuation of it and the treasury can't do anything about it.
There hasn't been a single year of my life where US armed forces weren't killing someone somewhere in the world. The US military has been involved in armed conflicts around the globe in nearly every year since WWII but it hasn't declared many wars.
The current standing precedent/law is the President only has to notify Congress within 48 hours of an action and must remove troops within 60 days if Congress has not approved an extension. Formal declarations of war are separate from short military actions legally. It's an extremely messy part of constitutional law precisely because of the split between the power to do and the power to authorize.
Drone strikes on foreign targets are most analogous to the historical practice of issuing “letters of marque and reprisal,” which allowed private actors (privateers) to act on behalf of the state to take out pirates.
Issuing such letters is an enumerated power of Congress, not the Presidency. So if the President does so unilaterally, they are acting outside their Constitutional authority.
The risks of abuse to military power are real and significant, which is why the power was placed in the body closest to the people - so that such actions would be consistent with the public will.
> The Constitution does not say that war must be declared for the armed forces to operate.
Yes it does, by reserving for Congress the right to declare war. Obama's drone strikes were carried out under the 2001 AUMF against al-Qaeda and the Taliban.
The president now has legal authority to do whatever he wants.
At the same time, the president's agencies no longer have the authority to do whatever they want.
So I guess the president can order the military to drone strike the FCC if he wants at this rate. I don't see what influence the Constitution is still going to have at this point.
I take your point, but quick action is occasionally necessary. Presidents knowing that their actions could be second guessed are more likely to use the minimum force needed to achieve an objective.
Not less than the average sacrifice a soldier made. The average soldier would not sign up if they had a significant chance of going to prison afterwards.
Yes it's too much to ask every president to significantly risk jail time for being president.
yes, because throughout history this has been abused. This was the reason that Caesar crossed the Rubicon - his opponents were all queued up to sue him into oblivious on his term as counsel ended.
Because we need governments and can't afford to make it so that anyone who ever wins elections spends the rest of their life fighting off lawsuits. Wars happen, and governments exist, people forget that laws are used as much to impede good governance as they are to enforce good governance.
What would be the consequences if we did allow Presidents to be prosecuted and some of them did spend the rest of the life fighting prosecutions?
It seems to me the consequence would be that we would have Presidents who act carefully to not break the law. Are there any other consequences?
I've heard it said that "democracies are where the people in power lose". We've all seen "democracies" where the party in power never loses; those aren't real democracies. Likewise, I would say nations that are truly governed by law are where those in power face legal prosecution.
(Also, what's so bad about prosecution? If a person is innocent, the legal system will find them to be innocent, right?... Right?)
And what's the consequence of that? Presidents who are extra careful to obey the law because they know they will be highly scrutinized?
All this seems so rooted in "what do we owe the President?" while my questions here are more assuming the President is a servant of the people and is thus making a sacrifice to serve the nation and is willing to accept the risks that comes from making hard choices while being subject to the law.
There are good and competent people who say "I'm willing to be President and be subject to the law, I'm willing to do both". Why can't be pick a President from that group?
Because doing so gives the President tons of incentives for bad behavior. It's a fun case where "risk of prosecution" would result in tons more questionable behavior then less.
Great rhetorical question, but do consider these points:
1. we ask everyone to do their individual jobs. In a soldier's case, loss of life is a job hazard. In the President's case, making tough decisions that could kill soldiers and civilians is a job hazard
2. The assassination rate for US Presidents is 8.7% (4/46 Presidents were assassinated).
3. There were 1,922 US combat deaths in Afghanistan (ref 1) and at the peak of the war, there were 100,000 troops there (ref 2). If you ignore all the other years of deployment, a US soldier's death risk in Afghanistan was 1.9%
Numbers are hard when they go against our intuition, but every US President is taking a comparable risk to being a soldier according to these numbers.
Obama took the risk of being a President while Black
Trump took the risk of being a President while Orange
Then, what are american solidiers doing in Jordan dying out there. The reality is that we are sending troops using loopholes, and that's costing such unnecessary complexity.
So the US has to declare war on Russia and China in order to support Ukraine and Taiwan? Declaring war on those superpowers would be a serious act of aggression and start WW3.
While I don't agree with the strikes, such action was generally authorized by Congress (thanks to the "war on terror") which was never since rescinded by Congress. So was not unconstitutional.
The constitution clearly says that a declaration of war is needed, and only short periods of action that are necessary in the interim can be taken by the president absent that. Congress does not have the authority to simply pass a law invalidating that. They did it, but it is most certainly not constitutional.
> Congress does not have the authority to simply pass a law invalidating that. They did it, but it is most certainly not constitutional.
The ones that should judge if it's not constitutional just passed judgment stating that a ex-president is above the law. I think they can invalidate if a president explicitly needs declaration of war, given recent history I'd bet a lot they would find it totally constitutional.
Then the question is whether the law passed by Congress was unconstitutional, which would have nothing to do with Obama. First someone with standing would have to challenge the law and then it would make its way up through the courts. But I'm pretty sure the Supreme Court would uphold it (as much as I would want it struck down along with the Patriot Act and other "war on terror" measures).
> As the Supreme Court concluded, the United States is in an armed conflict with al-Qaeda, and Congress’s 2001 Authorization for the Use of Military Force—along with the president’s commander-in-chief authority under Article II of the Constitution—provides ample domestic legal authority to conduct military operations against al-Qaeda.
tl;dr: We haven't been ignoring the Constitution for a very long time.
For a man who talks so much about wanting to protect the legitimacy of the court, Roberts has done more than anyone in recent history to destroy it. In the best case, Roberts will have brought about the end of SCOTUS in its current form as a reaction to the blatant illegitimacy and corruption he allowed under his watch. If the US survives the next couple decades, the Roberts court will be talked about in the same light as the 3/5ths decision.
You cant seriously be suggesting we should keep gluing new things onto the legacy code base until the end of time without ever considering a full rewrite?
But to somewhat address the sentiment: We can replace the machines and keep the line operators.
edit: Not sure now, should the government be considered the people running the country or the formula?
>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.
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.
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.
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.”
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.
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.
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> 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.
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.
> 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?
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.
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".
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.
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.
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.
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.
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’?
> 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.
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.
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.
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."
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.
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...
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.
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.
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.
> 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.
Then it sounds like Sotomayor is being extreme by conflating domestic political assassinations as an "official act." Does she not understand the difference?
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.
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.
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.
> '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."
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?
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"
> 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"
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.
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?
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.
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."
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.
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.
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.
> 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?”
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.
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.
> 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]
> 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.”
<< 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.
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.
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.
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.
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
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.
> 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]
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.
>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.
> 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.
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.
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.
(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.
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.
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.
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".
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.
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.
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.
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.
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.
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.
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.
> 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.
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.
> 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.
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.
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.
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?
> 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.
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 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.
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 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"
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.
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.
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 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.
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?
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.
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 military was happy to systematically seize guns from citizens in NOLA during Katrina. They will follow unlawful orders to keep their dental plans active.
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.
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.
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.
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.
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..
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?
"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.
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.
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.
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.
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.
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.
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?!
> 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.
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?
> 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.
>> 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".
> 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.
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.
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.
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.
Seems like the alternative is equally dystopian though. If ex-presidents don't have immunity for their actions in office, then every ex-president will have to fend off a flurry of lawsuits and prosecution attempts by the opposite party. It would be an absolute circus and turn the office of president into a joke.
That's a false dichotomy, just allow the motivation for official acts to be taken into consideration for prosecution, and a lot of the problems go away.
Also, to reduce the hysteria of this, even if a president has immunity, committing an illegal act and using that immunity would still end up with a legal challenge and that would need to work its way through the courts. Would be a huge headache, and the Supreme Court could very obvious rule differently in a particular case, hinging on what is official and what is on official. I doubt the Supreme Court would look kindly on an assassination of arrival as a “official” act
Fitzgerald gives them immunity from civil prosecutions. That was mentioned by Sotomayor. Fitzgerald explicitly does not provide the same immunity from criminal prosecutions; specifically because the protections for a defendant and burden of proof are so much greater than a mere civil case.
No, Trump was a candidate, not President at the time of most (all?) of those crimes. They also yeah probably can't be considered official acts even by _this_ Court.
That can't be concluded yet. It will most likely be decided again by SCOTUS - but by then, Trump may well have assumed office and pardoned himself and anyone else involved.
This is relating to 4 counts of election interference.
The court is granting him blanket immunity on one count, and the rest the prosecutors need to clarify that the crimes were outside of the duty of his office.
> Donald Trump’s legal team will likely use Monday’s SCOTUS opinion as they challenge the New York hush money criminal verdict itself on appeal, a source familiar with their thinking tells CNN.
> Trump’s team thinks the SCOTUS option could be used to challenge portions of Hope Hicks testimony as well as some of the tweets entered in as evidence, according to the source familiar.
> CNN earlier reported the Trump team sees the opinion as “a major victory” because in addition to using it to try to get charges tossed, they can also use this opinion to get evidence related to official acts tossed in all cases — not just federal — which can hurt prosecutors’ ability to prove what charges are left.
The scenario you describe has never been the case and is already settled law. The president has largely been already held to be immune from litigation for their official acts while president. In fact, it was a huge debate because Clinton got sued civilly by Republican activists for various reasons and SCOTUS held that the trial could proceed while he was president. So in fact, the only time a president has been sued and had to participate while President was when the Republicans tried to jam up a Democratic one, in the middle of a war (Kosovo although some will claim that Clinton “started” that war precisely because of the lawsuit).
What’s specifically new here is the claim by SCOTUS that the President also has post-presidency immunity. It used to be you could use it as a defense whereby you provide evidence that you weren’t acting corruptly within your official acts. Now it’s a blanket immunity - a trial can’t even be brought and your motivations are largely irrelevant and immune from examination.
US v Nixon very clearly put limits of what the president could do in office. Under this ruling, Nixon could have kept the tapes of him ordering the Watergate break in a secret and would have remained in office.
> While the Court acknowledged that the principle of executive privilege did exist, the Court would also directly reject President Nixon's claim to an "absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances."
This ruling directly contradicts and overturns US v Nixon which is a blaring signal considering just how criminally we now know Nixon, his administration, and his reelection committee was behaving.
We had an attempted coup already. That this case was directly related to. I don’t even mean the very public storming of Congress during the certification of electors, but multiple attempts by the then-President to subvert the election process.
The guy who did it’s probably about to be President again and just got a lot more legal cover.
Folks need to read up on how democracies fail. Shit’s getting real iffy here.
> And yet he left office on the appointed day and lost an election.
Trump would argue he didn't lose the election, and would still be in power if he had his way. I think we should be making it harder, not easier, for the democratic process to be subverted.
Don’t remember the “find votes” request or attempts to find a legal-enough-to-muck-things-up way to replace real electors with fake ones, or similar to throw the election to the House to decide, then?
Those have been charged. He’s in court for a bunch of other stuff, too, some of which was brewing before 2017 but his DOJ ruled they had to pause (including investigations, because you need to e.g. issue subpoenas for those to do their work) until he was out of office, and nobody tried to fight that, so it’s just now finally happening.
I'm not sure what you're arguing here? If someone is accused of committing three crimes, but only one is "serious", then the person should only be prosecuted on the one, but not the other two?
Which word do you take objection to? Considering he begins each rally with the January 6 "patriot" anthem, I stand by the "his" word. He clearly aligns with the folks who he considers "political prisoners" (his words not mine).
As far as "coup" - I'd say summoning thousands of folks to the Capitol, then not calling for dispersal once they have physically breached the perimeter of the building where the Congress and Vice President are assembled to certify the election results (where he lost), plus (arguably, more importantly) engaging in a campaign to establish networks of alternative electors in key swing states that do not match the popular votes in those states, then I'd say "coup" (granted, with a "attempted" modifier would be more accurate) would be a reasonable word to use for the events that transpired.
I have a difficult time reasoning about Trump in the age of constant hysteria. Trying to keep a clear head and an even keel has me discounting a lot of the "sky is falling" alarmism. It has me afraid that there are actual pieces of the sky falling that I'm filtering out.
All the "will you peacefully cede power" talk before the election sounded like alarmist clickbait, but he was weirdly resistive to admitting he lost, and there are a lot of batshit crazy people who seem to follow whatever he says (see also, Jan 6).
[edit] the score on this post proves its own point. Its vacillated between +4 and 0 since I posted it an hour ago, and there are plenty of hyperbolic people in the replies. Being "OMG THE WORLD IS ENDING" about everything just adds noise that makes it hard to identify truly bad things.
On a site that ostensibly has an ethos of "be curious, not ideological," it's sad to see so many people peering only through the lenses of ideology and panic.
He still says he didn’t lose and always qualifies his intent to accept the results of the next election with language that, given his not accepting the last one, amounts to “I’ll accept it if I win”.
Whatever else he did was fairly normal bad-president stuff. Like, pretty bad, but not the end of the Republic or anything. The attempts to overturn the election, and the utter failure of the state to swiftly punish same, are some real “this may not be the end, but you can see it from here” stuff.
Democratic states tend to vote in the person who ends them. It’s clear now that that’s a thing we’re very much at risk of doing. I don’t even necessarily mean a second Trump term, just anyone who follows his blueprint. The voters evidently don’t see that as disqualifying, and the system’s displayed an inability to respond to such attempts.
The sharks may or may not be circling yet, but there’s blood in the water.
If you want to know what Trump and his ilk are planning, just read it from their own website: https://www.project2025.org/
Highlights:
- The DoJ reports directly to the President
- No term limits for FBI head
- Arrest and prosecute DAs he doesn't agree with
- Use the military to enforce domestic laws on citizens
Worth noting that we’re 3-for-3 on recent-ish major Republican plans to do bad things being implemented at least in large part—the PNAC plan for Iraq and other issues from the ‘90s (W’s big contribution was carrying this out); the plan to execute a strategic focus of resources and follow-up with laws to attain practically unassailable dominance in states where Republicans should be losing pretty often, through gerrymandering and targeted vote suppression (enormous success, there, largely achieved during the ‘00s); and the Federalist Society plan to groom jurists and then get them placed to reshape the courts (Trump’s crowning achievement for the right in his first term—and not just the Supreme Court).
There's trying to keep a clear head, and then there's being completely willingly ignorant of major, major events in the news cycle the last few years, including direct statements from the Trump administration and Trump himself which you seem to have very successfully achieved.
Not sure where you’re reading into that, but good for you for figuring out something nonsensical.
as to what I actually feel, I am stating that the parent comment (as sibling comments have pointed out as well) seems completely oblivious to Jan 6 and the subsequent criminal events/statements since then.
Hope that helps your reading/rage issue, have a good day.
> but he was weirdly resistive to admitting he lost
That is an understatement. His entire platform is that he won every state including Minnesota and New York. This is a personal revenge campaign made up around a lie.
It has been 3 years and 6 months since Trumps election interference with essentially no progress being made in the courts.
If and when Trump gets elected how long do you think it will take the Supreme Court to differentiate between an 'official' act and a 'non-official' act when Trump acts illegally in 2025?
Throw in the recent ruling increasing the difficulty of proving bribery and things are looking grim ( IMHO ).
Part of this is abdication and dysfunction of the government overall. As I remember it, the argument was that Roe was based on faulty caselaw. If so, I have no problem with it being overruled, but I then expect Congress to pass the correct law to take its place.
The problem isn't that Roe was overturned - it's that our legislative system is so dysfunctional that law is being settled in the other branches of government.
I believe in freedom and democracy. I don't believe in mobs attacking the Capitol or "find me some votes" or minority rule or massive roundups and detention camps or any of that.
can you find any comments anywhere here which seem to support " mobs attacking the Capitol or "find me some votes" or minority rule or massive roundups and detention camps or any of that"?
That is what you are defending when you defend this decision, which along with everything else was drawn out to the last possible moment so as to kick the can until after the election.
Folks, the blueprint for prosecuting Trump has been created.
If you read the complete ruling, the justices work to clarify how "official" and "unofficial" acts apply to the case at hand. For example, many of the conversations had with Pence and the AG are considered off limits for prosecution as they are "official." Other charges, however, can stick if the lower court decides:
> Trump can point to no plausible source of authority enabling the President to not only organize alternate slates of electors but also cause those electors—unapproved by any state official—to transmit votes to the President of the Senate for counting at the certification proceeding, thus interfering with the votes of States’ properly appointed electors
The damning part starts on page 27 of the ruling[0].
i'm a little busy cutting through the actual opinion at the moment. maaaybe i'll get to this Vox journalist's own interpretation of it when i'm done. no breath should be held though.
Nobody who actually read the ruling would link to a media take on it, or make a silly comment like this. The dissent is part of the package, published together. THere is the majoriy opinion, often a dissenting opinion, and sometimes (like here) even more.
Some people actually have a clue what's going on. It takes work, you can't just lazily consume nonsense from journalists.
If there's one thing the constitution seemed to try to prevent it's kings, and here the court is saying the president can do anything, to as maximally permissible as possible an "outer limit" of what might be at all considered official. (No matter what their motive; we are explicitly forbidden from even beginning an inquiry into motive.) It's hard to see even the remotest claims of their so called originalism (which is a stupid shit dumb practice anyhow) written into this very longwinded extensive permission-to-tyrant, permission to sedition.
What a sad shameless age. It's embarrassing as hell having these useless Federalist Society shills tearing down the respectability of this nation. Utterly brazen. How 40%-50% of the population can be so on board with this, be so excited & happy to see such endless Calvinball for their team is beyond imagining. It feels like liberals always are hungry for more or different from our own, will criticize our representatives endlessly, but there's an unmatched purity of boosterism for any win any win at all no matter what that's totally taken half the country, that there's no system of moderation or self assessment left.
This court is a farce. People appointed by Trump grant him immunity for his crimes. That's some circular Kafkian absurdity that shouldn't be happening.
2,054 comments
[ 5.4 ms ] story [ 643 ms ] threadhttps://supreme.justia.com/cases/federal/us/118/394/
If you want to represent yourself commercially as a person, your rights as a person can be extended to that legal fiction.
If you want legal fiction that you can dump when it's convenient and isn't tied to you as a person, then that legal fiction gets no rights and only certain privileges.
The opposite holding, where they are liable for everything, would be untenable. Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans? It seems like that world would hamstring the president far too much.
I don’t know if they struck the right balance here (and we not know until the next time it comes up), but at least we have slightly more clarity.
I'm fairly sure there's a full and complete list of these is explicitly in the Constitution.
Roberts disagrees in the decision (p. 17):
> Distinguishing the President’s official actions from his unofficial ones can be difficult. When the President acts pursuant to “constitutional and statutory authority,” he takes official action to perform the functions of his office. Fitzgerald, 457 U. S., at 757. Determining whether an ac- tion is covered by immunity thus begins with assessing the President’s authority to take that action.
> But the breadth of the President’s “discretionary respon- sibilities” under the Constitution and laws of the United States “in a broad variety of areas, many of them highly sensitive,” frequently makes it “difficult to determine which of [his] innumerable ‘functions’ encompassed a particular action.” Id., at 756. And some Presidential conduct—for example, speaking to and on behalf of the American people, see Trump v. Hawaii, 585 U. S. 667, 701 (2018)—certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision. For those reasons, the immunity we have recognized extends to the “outer perimeter” of the President’s official responsibilities, covering actions so long as they are “not manifestly or pal- pably beyond [his] authority.” Blassingame v. Trump, 87F. 4th 1, 13 (CADC 2023) (internal quotation marks omit- ted); see Fitzgerald, 457 U. S., at 755–756 (noting that we have “refused to draw functional lines finer than history and reason would support”).
> In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of of- ficial conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II in- terests that immunity seeks to protect. Indeed, “[i]t would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government” if “[i]n exercising the functions of his office,” the President was “under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry.” […]
> Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. For in- stance, when Fitzgerald contended that his dismissal vio- lated various congressional statutes and thus rendered his discharge “outside the outer perimeter of [Nixon’s] duties,” we rejected that contention. 457 U. S., at 756. Otherwise, Presidents would be subject to trial on “every allegation that an action was unlawful,” depriving immunity of its intended effect. Ibid.
* https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
A good example is that killer cop in Minneapolis, I don't remember his name or care to fill my brain with it. He was acting officially when George Floyd died under his care; he was responding to a 911 call that Floyd was the subject of.
The cop was convicted of murder, but let's say that POTUS does something abhorrent (and this is likely to occur now that this is case law) under color of law and someone wanted to charge him or her because of it. Does that get somehow pulled back as it did for the cop?
The thing about Biden, since you brought him up, is he's unlikely to test this in any meaningful way with regards to Trump. Could he theoretically now have the USSS detail in charge of babysitting Trump indefinitely detain him, without consequence? Maybe. But he still has at least some belief in the process and won't do that.
This gives me flashbacks to lessons about von Hindenburg. An old guard who had belief in the process going by it even when dealing with someone who has obvious and sneering contempt for that process.
To be fair the situation in Germany was multipolar. Hindenburg wasn’t a huge fan of democracy or especially of one run by Catholics, liberals and socialists and just saw the nazis as a lesser evil..
I mean under what idea is that part of his official duties? If it's not it's literally exactly the same as before. Biden can do this at literally any moment. This court case doesn't change his ability to make unlawful moves.
After today, if a federal judge arbitrarily decides "it's not", well... it's not.
I suppose if they really wanted to give a reason they could say he's a flight risk or something, it doesn't need to be valid with today's ruling.
Ultimately I think the issue with this is we're trying to address a deep systematic issue through the system it's infected. Often those issues can't be solved that way and have to go around the system itself somehow. You're unlikely to be able to sue your way out of a fascist coup when it's successful for example, and similarly disadvantaged when the avenue is carrying water for a failed coup.
To borrow from a similar claim: with the combination of the "Due Process" interpretation that backed the al-Awlaki killing (where Holder explained that due process was simply a term designating whatever process that they do, and could entirely occur in one's own head), and this judgement, Trump could have stood in the middle of 5th Avenue and shot somebody and could not be charged for it. So can Biden.
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edit:
Ten Years after the al-Awlaki Killing: A Reckoning for the United States’ Drones Wars Awaits
https://mwi.westpoint.edu/ten-years-after-the-al-awlaki-kill...
> From the Magna Carta to the US Constitution, citizens have sought ways to protect themselves from the arbitrary exercise of sovereign power. The drone strike on al-Awlaki reversed this historical process with an executive process. From the so-called “Terror Tuesday” or “targeting Tuesday” meetings where President Obama personally approved targets for drone strikes to the drafting of the legal logic justifying the extrajudicial killing of an American citizen, the strike on al-Awlaki was the result of decision making within the executive branch. Completely absent from the proceedings was the judiciary, which acts as a crucial buffer and neutral arbiter between the citizen and the executive.
> In its own defense, the Obama administration argued that due process was not the same thing as judicial process and presented the test that it used to justify the targeted killing. While some observers have emphasized the narrowness of the legal standard, it was crafted specifically to target al-Awlaki, therefore reinforcing just how discretionary this exercise of executive power was. Furthermore, it was conceived of and adjudged constitutionally sufficient by attorneys who had previously opposed executive overreach during the Bush administration.
[It's interesting that the al-Awlaki killing was over speech, too. So while the executive branch is not allowed to exercise prior restraint over speech, Presidents are now constitutionally immunized for murdering people to keep them from speaking.]
Fortunately, the past rulings of this court have made the jurisprudence abundantly clear:
If Biden orders Trump to be assassinated, that's unofficial, and he can be prosecuted.
If Trump orders Biden to be assassinated, that's official, and he has complete immunity.
Easy, right?
https://news.ycombinator.com/newsguidelines.html
Either let people vent or nuke the whole thread
https://news.ycombinator.com/newsguidelines.html
This is a disaster for rule of law.
The question is, will everyone surrounding a president allow the president to commit mass cullings or nuke California. And the answer is clearly not, outside of delusional fantasy scenarios.
Trump wasn’t even allowed to build a wall, and you think his VP would have let him commit genocide?
These aren't randos; they're federal prosecutors that are hired by the sitting President of the United States.
Let's say that even if there is a decision that Trump's acts aren't related to his official duties and he somehow gets punished for those charges (I wouldn't hold my breath). How does this not give Biden and future Presidents a way to seriously abuse their power with a hope that they're not held accountable for it? Before it was just a hypothetical. Now we've crossed the Rubicon and established that there are scenarios in which a President can have unlimited power.
Yes, the places where he is explicitly given unlimited power.....
The weihmaher republik was a pretty good democracy back in the day. It just gave the leader certain rights, and suddenly Hitler became the dictator, creating Nazi Germany.
Everyone needs a limit to their power, otherwise they'll be able to essentially flip the board and declare themselves emperor.
Please don't project what I said here onto trump, Biden or Obama. None of them are on that level. It's just possible that a future president is that morally bankrupt, especially if social issues continue to accrue/inequality keeps growing unchecked.
No it wasn't. It had armed gangs, both right and left-wing, fighting in the streets, completely failed monetary policy and sky-high level of corruption. The republic just started to kind of getting back to normal for a few years at the end of 1920s, and then was wrecked with Great Depression.
See: 2020 in the US.
> completely failed monetary policy
See printing off a lot of money to deal with an emergency because the US hasn't had a meaningful conversation about revenue since 1993 when George HW Bush went back on "read my lips"
> sky-high level of corruption
You have people on this court accepting vacations and gifts from people who are wishing to push a certain political viewpoint on the court. They just ruled this was okay, too, by neutering a federal anti-bribery statute. Money is considered protected political speech.
There are a lot of parallels between Weimar Germany and the current state of the USA. More than anyone should feel comfortable with.
> There are a lot of parallels between Weimar Germany and the current state of the USA
It might be dysfunctional but largely in very different ways (unless you view it extremely superficially).
And even moderate ones.
> completely failed monetary policy
IIRC during the period between 1923 and the Great Depression (i.e. majority of its existence) it was relatively stable.
Technically the US is in this predicament because one of them wanted his vice president to not name a successor, after mentioning several times during his presidency that he wanted a third term.
Just because he's a bad wannabe dictator, it doesn't mean he's not a wannabe dictator. He even said so himself, "just for one day".
Not it didn’t give him those rights. The parliament (including moderate parties) explicitly granted him the power to so whatever he wanted after the nazis were already in power.
https://en.m.wikipedia.org/wiki/Enabling_Act_of_1933
No, apparently it’s much easier and safer to just pay off the president directly.
Only where their actions were already criminal under the law. This is the problem. No-one should be above the law.
https://en.wikipedia.org/wiki/Anwar_al-Awlaki
https://en.wikipedia.org/wiki/Killing_of_Abdulrahman_al-Awla...
To my mind, that is exactly the sort of thing I'd like to be hamstrung by a fear of prosecution.
(Trump ordered drone a drone strike that also killed Abdulrahman's eight-year-old American sister.)
Unintentionally? American citizens were the intended targets of some of his drone strikes. They weren't in warzones either, it was effectively murder.
If you're not referring to this, Obama's already done this without getting charged.
Being POTUS is an unenviable job.
https://en.wikipedia.org/wiki/Anwar_al-Awlaki
Edit: Since people are assuming my views on this topic, I'll say that they're seriously conflicted and I'm not trying to imply any particular viewpoint, only the facts.
Based on that, I would assume the targeter did not know whom they were targeting. Or they did, knew the orders came from the National Command Authority[1] (Eg. POTUS) and did it anyway. I would have.
1. https://en.wikipedia.org/wiki/National_Command_Authority_(Un...
And as a liberal I think “hell YES he should be prosecuted!” The government shouldn’t just go around killing citizens without due process. I don’t care what letter is by their name.
Imagine the civil war if the union couldn't kill confederates.
A full scale civil war really is an extraordinary case and is a lot more akin to a regular war than what we are talking about here.
I'm more afraid of someone declaring war on an abstract concept (like the "war on terror") and then using broad powers meant to be used in normal wars between states that have declared combatants than I am of a civil war.
But otherwise, the only remedy should be judicial process against these people: arrests, trial, etc. Otherwise we have a term for it: extrajudicial killing.
Of course, Congress has given the executive branch weird war powers over the past few decades, so legally I'm sure they're in the clear, unfortunately.
No, no: we do get that. We just think that’s a good thing. If you have the evidence (you don’t, or we’d have seen, like, any of it at all) then by all means, prosecute the absolute shit out of them!
But... It seems he was a member of al-Qaeda, and the "Public Law 107–40 107th Congress Joint Resolution" passed by congress did authorize:
> That the President is authorized to use all necessary and appropriate force > against those nations, organizations, or persons he determines planned, > authorized, committed, or aided the terrorist attacks that occurred on > September 11, 2001, or harbored such organizations or persons, in order to > prevent any future acts of international terrorism against the United States > by such nations, organizations or persons.
That does seem to authorize extra-judical killing in this case. I am not really happy about any of this, but since we are talking legalities, this seems to apply.
https://www.congress.gov/107/plaws/publ40/PLAW-107publ40.pdf
> The opposite holding, where they are liable for everything, would be untenable.
Literally no one was arguing for this and there are much more reasonable interpretations of presidential immunity you could compare this one to.
> Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority. It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.
Further evidence is that Sotomayors makes the claim in no uncertain terms and that the majority makes zero effort to dispute it.
They are not immune for the non-official act of soliciting or accepting bribes in exchange for an official act, which is the charge of bribery.
So if the President took a bribe in order to make someone ambassador to Sweden, they could not be prosecuted for making that person the ambassador, but they could be prosecuted for taking the bribe.
This isn't a misreading of the ruling. Justice Barret dissented from that particular part of the majority opinion, bringing up the hypothetical of bribery.
Enter LOBBYIST and POTUS on CONGRESS floor
LOBBYIST: projecting voice I am now rendering payment in exchange my appointment as ambassador to Sweden. What say you?
POTUS: projecting voice Yes, I knowingly accept these improper funds and -
CONGRESS immediately gathers a quorum, impeaches, and removes POTUS mid-sentence
POTUS: - name you ambassador to Sweden.
Remember that the President can still be impeached for "high crimes and misdemeanors".
I'm trying to point out that it is not at all easy to draw a line between what a President could be prosecuted for and what he should be prosecuted for.
I'm pretty sure one could find abuse of power committed by about every President.
Even Jefferson - he wasn't empowered to make the Louisiana Purchase, but did it anyway.
For a president to be able to conduct "official acts" in self interest, with no obvious limits, is quite concerning.
I think the president should enjoy a weak presumption that official acts are legitimate. But this goes way too far-- prohibiting consideration of motives, prohibiting using them as context or evidence in any other proceeding, and appearing to classify what would be horrible abuses as official acts.
Should Biden be prosecuted for that?
I don't know if that would be prosecutable. Is there a federal law against acting as though you have powers you do not while in office?
I suppose the difference is that having SEAL Team Six kill a political opponent on the President's orders seems like it should be classified as first-degree murder.
We neither want a world where every politician faces investigation for misdeeds after leaving office, nor one where apparently the president can act with impunity with no clear limits at all.
We need a middle path, where prosecution is rare and exceptional but true misdeeds can be punished (and deterred).
I feel like we left behind where we were slightly over-investigating and made a massive overcorrection to the other side for blatantly political reasons.
I feel like you'd have a different opinion if it were you getting unintentionally killed!
Am I wrong there?
The procedure for impeaching federal judges is similar, in that the vote needs first to pass the house, then a supermajority of the senate. In 2009, federal judge Thomas Porteous Jr, was successfully impeached by congress. Congress then also voted to prohibit him from holding future federal office.
https://guides.loc.gov/federal-impeachment/thomas-porteous
Regardless, impeachment is there to remove the president from power. It can't jail or otherwise punish the president. The regular old legal system should be doing that, for everyone, regardless of whether or not they're an elected official.
How about the one which intentionally killed an American child (16)?
Part of me wouldn't mind seeing that, but, I would have to agree that was an official act, regardless of how despicable it was.
except Obama ordered plenty of drone strikes including on American citizens, so actual data suggests he was not "hamstrung" at all.
Judging from history, it is a pretty dangerous role as well and that doesn’t seem to have dissuaded many people. If there are willing to risk their safety, I’d think the risk of prosecution wouldn’t rank too highly either.
How would attempting to overturn the results of a free and fair election be considered an "official duty"? If it is, then the Presidency became a dictatorship, leaving impeachment by Congress -- an extremely difficult bar -- the only recourse.
Source: I'm from places that had the Supreme Court (of places, not US) overturn an election result due to fraud
But what's an "official act"? I would hope that courts consider that definition very narrowly. Also disallowing juries to see discussion of official acts as evidence for related wrongdoing is disastrous.
Ultimately, though, it won't matter. Trump has effectively managed to delay this particular trial, and much of the remainder of its pre-trial process, until after the election and after the inauguration. I assume if he wins and takes office, he can instruct the DoJ to dismiss the case against him.
The Georgia case can still proceed, regardless of the outcome of the election, but Willis completely screwed that one up with her idiotic romantic decisions.
The disallowing of considering even corrupt intent seems to be the real worry here. There's no distinction between using your power to promote general welfare and using it to line your own pockets or subvert democracy.
Also the new ruling mean you can't question the president as it his reasoning for his actions.
> In a ruling on the last day before the Supreme Court’s summer recess, and just over two months after the oral argument, a majority of the court rejected the D.C. Circuit’s reasoning. As an initial matter, Roberts explained in his 43-page ruling, presidents have absolute immunity for their official acts when those acts relate to the core powers granted to them by the Constitution – for example, the power to issue pardons, veto legislation, recognize ambassadors, and make appointments.
> That absolute immunity does not extend to the president’s other official acts, however. In those cases, Roberts reasoned, a president cannot be charged unless, at the very least, prosecutors can show that bringing such charges would not threaten the power and functioning of the executive branch. And there is no immunity for a president’s unofficial acts.
[…]
> In her dissent, which (like Jackson’s) notably did not use the traditional “respectfully,” Sotomayor contended that Monday’s ruling “reshapes the institution of the Presidency.” “Whether described as presumptive or absolute,” she wrote, “under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless.” “With fear for our democracy,” she concluded, “I dissent.”
* https://www.scotusblog.com/2024/07/justices-rule-trump-has-s...
> In a ruling on the last day before the Supreme Court’s summer recess, and just over two months after the oral argument, a majority of the court rejected the D.C. Circuit’s reasoning. As an initial matter, Roberts explained in his 43-page ruling, presidents have absolute immunity for their official acts when those acts relate to the core powers granted to them by the Constitution – for example, the power to issue pardons, veto legislation, recognize ambassadors, and make appointments
which I can't find in the linked article, but which is of course in what you've linked to.
In those enumerated things I think the ruling is quite tolerable, but the decision is much broader than that, and this presumptive immunity, etc. becomes quite burdensome.
It's going to be like the state secrets privilege, and that has already allowed people to get away with torture, even people whose identities are well known, and where there is clear, unambiguous evidence that they were involved.
What Roberts says almost makes it sound alright, but it definitely isn't.
Most likely not. Watergate was a result of an election campaign, not official acts as President.
> Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.
And the 'smoking gun' implicating Nixon:
> Nixon then released the tapes six days later. On one tape was the so-called "smoking gun," showing that six days after the break-in Nixon had tried to use the CIA to block the FBI investigation of the burglary.
IANAL, but my understanding is under this ruling those tapes would have never been made permissible evidence in court. Giving orders to the CIA is certainly an official act, as much as granting pardons is, and this court has established the examination of said motives is out-of-scope:
> 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.
> (3) Presidents cannot be indicted based on conduct for which they are immune from prosecution. On remand, the District Court must carefully analyze the indictment’s remaining allegations to determine whether they too involve conduct for which a President must be im- mune from prosecution. And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct. Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.
The primary source here is plenty accessible, and free. And alarming.
The argument is not that all recordings are off limits, but if the President asks his lawyer "what is a bribe?" that can't be used as evidence he took a bribe.
People are jumping on language in the decision that says discussions or probings about the criminal nature of the crime would not be admissible.
So Nixon ordering Watergate would still be admissible - Nixon discussing with his legal team or cabinet after Watergate broke would not be.
The argument is not that all recordings are off limits, but if the President asks his lawyer "what is a bribe?" that can't be used as evidence he took a bribe.
Nixon ordering an illegal action is a crime, and Nixon destroying evidence was definitely a crime, so evidence of either would be game.
You cannot use official communications between a president and his VP for example, as evidence, even in prosecution of an unofficial act that is criminal.
A horrendously stupid, devoid of any logic ruling, so much so that Barrett even disagreed with this part.
> The question then becomes whether that presumption of immunity is rebutted under the circumstances. It is the Government’s burden to rebut the presumption of immunity. The Court therefore remands to the District Court to assess in the first instance whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch."
As per the ruling, Trump does not get blanket immunity with his interactions with Pence. But it is the prosecution's responsibility to now make a case that it was outside of his discretion.
I'm not arguing that this is a clear or useful legal distinction, but Trump only got true "blanket" immunity for the first indictment regarding the abuse of the Justice Department.
The President has immunity when acting with powers granted from the Constitution. Commanding the military is one of those powers. The majority opinion also specifically says motives can't be considered. So they are legally immune if they order the military to stop impeachment.
"there are probably 10s of 1000s of them" also feels a little lacking to me. Do we have concrete examples?
How many former presidents or rivals tried to prevent the transfer of power?
* https://en.wikipedia.org/wiki/Self-coup
There's a specific reason why Trump is being investigated. We're not talking about jay-walking here.
And there's also intent with action, using yet another case: Biden had classified documents in his home residence, but he handed them back to the government with minimal fuss. Trump had classified documents and moved them around even after being subpoenaed to return them:
* https://www.theguardian.com/us-news/2022/oct/12/donald-trump...
* https://apnews.com/article/trump-justice-department-indictme...
As best I can tell, most who voted for him didn't actually believe he would do that - and he didn't. The whole "because you'd be in jail" was Trump being Trump, not a campaign promise.
When Trump says something like that, knowing whether he's in earnest or being bombastic is like knowing what parts of the Bible are literal and what parts are figurative - it's very much open to individual interpretation.
Not for lack of trying.
https://www.nytimes.com/2018/11/20/us/politics/president-tru...We now live in a world where in a future Trump administration:
- Trump knows even if he's impeached he will not be removed because his party will protect him, since he was impeached and not removed for far more serious matters.
- SCOTUS just told Trump that any conversations he has with his DOJ are under the umbrella of core authority and cannot be reviewed.
- The current purity tests being employed at the RNC by his kin show a future Trump administration will not hire someone like Don McGahn who will tell him "no" about anything.
Why are you so sure a future President Trump would not try again and be successful?
[1] https://mwi.westpoint.edu/ten-years-after-the-al-awlaki-kill...
(Or you have the Coast Guard lead the mission with the SEALs as "advisors".)
What illegal acts did Obama do, while POTUS, yet outside of his 'official duties', what would warrant prosecution?
Remember the context for this decision: Trump's participation in the events of January 6:
* https://en.wikipedia.org/wiki/January_6_United_States_Capito...
You know, the insurrection in which people have been found guilty of seditious action:
* https://en.wikipedia.org/wiki/Criminal_proceedings_in_the_Ja...
Were his January 6 actions part of his official duties?
Impeachment is only a prerequisite to the Senate possibly convicting in the political rather than criminal trial and removing the person from office, and then possibly disqualifying them from future federal office. It has no bearing on whatever criminal procedures are not blocked by immunity.
This is laid out clearly in the dissent, complete with references for further reading. Meanwhile the majority’s argument is “lack of immunity (which has, so far, not existed!!!) would make the president too timid, so we’re adding immunity”.
What a horrible corrupt court.
I'm 1000% sure that if trump wins and starts prosecuting his political rivals the court will give it the nod as being AOK.
And for every one of these rulings, which frankly were all him blatantly ignoring/violating the law in ways that even this court couldn't ignore, there were 10 cases where the courts moved forward conservative agendas.
Further, many of those rulings happened while Ginsberg was still alive with Roberts as the swing vote. That's no longer the makeup of the court.
You are playing the "yeah but what about" game. The reality is the supreme court just vested kingship on the next conservative president.
It has existed, it just hasn't been tested. The supreme court didn't "grant" immunity, they interpreted the Constitution to come to the conclusion that immunity already exists.
And the reason that it's happening now is because no political party has been willing to escalate political differences with presidential candidates to the point of criminal charges before.
That's changed recently, hence the need for the ruling.
> they interpreted the Constitution to come to the conclusion that immunity already exists.
The constitution saying nothing about immunity except that it is not conferred to someone who has been impeached, no, they did not interpret the constitution.
[edit] specifically, it’s this bit:
> Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
That is: impeachment can’t impose punishments aside from removal & disqualification, but that ought not be taken to mean that further prosecution for the same acts may not be undertaken. That’s all it says on the matter. They relied on the Federalists stating in the Federalist Papers and elsewhere that they wanted a fairly active President to conclude the President needs immunity. Meanwhile the Federalists also wrote that the President ought not be above the law, as that’s what separates our system from monarchy, but that’s inconvenient so you have to keep reading to the dissent to see that presented.
Trump was acquitted by the Senate for his conduct on Jan 6. It’s OK to disagree with the acquittal but it did in fact happen.
Ultimately it’s really hard to design a constitution that is effective in opposing half of the population. You can’t solve mass social issues with laws.
More specifically, the role of the house impeachment and senate hearing is removal someone from office. That's it. There's no potential for punitive action (fines, jail, etc).
> More specifically, the role of the house impeachment and senate hearing is removal someone from office. That's it. There's no potential for punitive action (fines, jail, etc).
Judgement in impeachment can extend to "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States" [1]
But, judgement in impeachment is political, and if you could get enough votes to impeach a former President in order to disqualify them from running again, it seems pretty unlikely that they'd be able to get nominated and elected in a future election; so it's not a big threat IMHO; at least assuming a two-thirds majority is required to remove, then a majority to disqualify.
The constitution is not clear that removal from office and disqualification are linked, although in practice, disqualification has happened only after a removal, and the Senate has determined simple majority for removal is sufficient. [2] So, it might be possible to do a disqualification as a simple majority, without a removal.
[1] https://constitution.congress.gov/constitution/article-1/#ar...
[2] https://law.justia.com/constitution/us/article-2/49-judgment...
Only, the requirement of a supermajority means that a minority can prevent a president from being convicted of blatantly criminal acts. This system is demonstrably weak against corruption, to which the USSC has given its full-throated approval.
The issue is that blanket immunity for official acts is not just raising the bar, it's launching it into orbit. Not only can a president not be prosecuted for questionable decisions or on scant evidence, they can not be prosecuted when their crimes are heinous and obvious so long as it is plausibly within their domain.
I can't make up my mind if this is "movie plot threat" or not. Has it happened to other important figures before?
And can the prosecution be punished for this kind of behaviour?
Then again, I guess if you can shop around for (politically-appointed) judges, it wouldn't be too hard to find a judge to indulge some bullshit prosecution.
SLAPP-suits do exist, but they're generally against poor folks who can't a long legal process rather than richer individuals.
I have no problem choosing between the chance there will be a President who abuses immense power over everyone in the nation with no real accountability, and the chance a slew of people (prosecutors, investigators, judges) will act maliciously and repeatedly to persecute a single person. Does SCOTUS really fear that federal Judges like them can't recognize malicious and baseless indictments?
What issue? That's never been an issue in 200 years.
No one (that I know of) seriously thought he should go to prison for those acts, but honestly the argument seems pretty easy to be made without some sort of immunity.
This has always been presumed to be the case yet it has never resulted in what you say. It's a nonsense theoretical as cover for what is otherwise utterly indefensible as making the president king.
We have monarchy after monarchy to show that sovereign immunity builds toxic ontological relationships between participants of a political system, and often invites tyranny. Your suspicions, for 238 years straight, have been amiss.
This ruling serves one specific purpose: to protect one single person from the consequences of their crimes.
This does not mean, including from the majority opinion, that anything the President does is immune from challenges. If the President directs a cover-up for his campaign (Nixon) or directs a Governor to find enough ballots for him to win or directs "alternate electors" via fraud (Trump), this is not an official action. Trump's lawyers admitted as much in the oral arguments.
Hrm. Surely the implication you're outlining here is that the President will be breaking the law while carrying out "the roles of the office"? Is that not a concern?
The courts should decide if that act is legally permitted, but it would be a tough pull to think that he should be personally responsible for that, including potential jail time.
Now egregious cases that fall outside of the reasonable expectations of the role of the President. Sure, those should go to the courts. But I don't think this case prevents that. Most of what Trump did after the election, IMO, was clearly as a candidate, not a President.
Presidents are effectively kings now, won’t be long until one declares himself one for good.
This would be challenged in court by the victims of the President's spying, and the court would ultimately decide whether or not the spying constituted an "official act".
Years of zero consequence. Imagine what an egomaniacal, unethical, vengeful, unempathetic, asshole could do with all of that power.
Why?
In the UK we of course have no president; all government actions can be subjected to judicial review, whichever minister was in charge. Judicial review is a civil procedure, not a criminal one. All the court can do is order the government to reverse the unlawful decision, and make good its consequences.
No, we do not. That's the whole point of the checks and balances. If his political opponents are able to prove their case before the courts, showing that the president broke the law, then they should be able to.
This ruling is meant to protect the office from precisely these types of politically motivated attacks.
This has always been possible (Nixon v. Fitzgerald) but has never happened. Choose whatever reason you want: any amount of decency, any sense of shame, low odds of winning, likelihood of terrible retribution from generally good people.
Trying to blackmail Ukraine into providing dirt on his political rival by withholding congressional funding, getting rid of Comey, and requesting that some additional votes for him should be found are the top 3 that come to my mind.
I couldn't give two shits about extramarital sex, and I honestly would have expected him to write about said sex on twitter sooner than cover it up. I don't think the campaign donors would have been too steamed about where that money went either. It's not like him dipping into his other charities (which I find more despicable than hush money.)
I wonder why this was the charge that stuck.
The hush payment would not even have been an issue if they didn't use campaign money or Cohen as middle man, that's the illegal part. If Trump just wrote a check directly it would not have been an issue and we would likely never know about it unless NDAs were broken.
It was first. It was also relatively simple in both law and fact, so there were fewer opportunities for delay. Even so, it was more than a year from indictment to conviction.
It feels like once an act is to be classified as unofficial, then evidence of same cannot be covered, regardless of whether it's personal or not.
So maybe whittled down to "You can't go on an investigation of the President's personal/private documents because you have a suspicion of an unofficial act." Which feels more like the Supreme Court's intent.
Trump's counsel did admit this, but the opinion contains no such carve out. It says "he is entitled to at least presumptive immunity from prosecution for all his official acts" and declines to define what separates an official from an unofficial act, leaving it up to courts on a case-by-case basis. The dissent--rightly--points out that this is way more than Trump asked for:
> Inherent in Trump’s Impeachment Judgment Clause argument is the idea that a former President who was impeached in the House and convicted in the Senate for crimes involving his official acts could then be prosecuted in court for those acts. See Brief for Petitioner 22 (“The Founders thus adopted a carefully balanced approach that permits the criminal prosecution of a former President for his official acts, but only if that President is first impeached by the House and convicted by the Senate”). By extinguishing that path to overcoming immunity, however nonsensical it might be, the majority arrives at an official- acts immunity even more expansive than the one Trump argued for. On the majority’s view (but not Trump’s), a former President whose abuse of power was so egregious and so offensive even to members of his own party that he was impeached in the House and convicted in the Senate still would be entitled to “at least presumptive” criminal immunity for those acts.
So basically you have the right scared of former presidents being unjustly targeted in a way that threatens the democratic process, and then you have the left scared that the immunity will itself threaten the democratic process/enable dictators and corruption. Unjust use of prosecution as a political weapon vs just plain corruption being shielded.
It sure seems to me like it would be better if these matters could be handled on a case by case basis rather than in some black and white "former presidents can" vs "former presidents can't" be prosecuted way, but perhaps that is what will end up happening, not a legal expert.
That's largely what's happening here. The President _can_ be prosecuted for things that fall outside of the official role as President. This is not a blanket immunity.
Certainly a president carrying out actions that call for prosecution would make the claim that those actions were either official or required to carry out the official duties of the office.
Any hope of justice now depends entirely on being able to draw that line and agree about where it’s drawn.
It's like saying, "Bribery is only illegal if it is called bribery during the commission of the crime. But also, The State cannot investigate what was discussed during such events without evidence that a crime was committed." They are basically establishing legal paradoxes.
However one could argue that this is the logical extension of qualified immunity for police officers which is precedent the court has already set.
To be clear though, I think qualified immunity of any sort shouldn’t be allowed. It’s a subversion of any kind of fair justice.
The redress has been assumed to be federal elections.
If the President were to abuse the law (to the extent he could with the power of the executive branch), then he would be voted out of office in (max) 4 years.
Assuming the abuse of power does not prevent this.
It is also worth nothing that qualified immunity provides no protection for criminal actions, the enforcement of which are an entirely separate challenge.
You want public servants to be able to do their jobs without fear of time-wasting litigation.
But, if you grant blanket immunity, the poilice (or POTUS) are free to do whatever they want.
We're quite clearly tilted way over into "do what they want" territory.
AFAIK, QI no longer exists in England (not sure about Scotland or N.I.). And Germany never had it (civil cases for damages would be against the state, not the state representative).
Isn’t that the same as QI?
And, given the state of policing and justice in the US, civil litigation is often the only way to get any relief for over-zealous policing. And QI makes that bar even higher than it should be.
Interesting.
Out of the US, US presidents have always had effective immunity from any consequences, committing war crimes, disrespecting local laws and eschewing even the UN. Kinda like an expected consequence of everything else.
The Founders envisioned an extremely weak criminal justice system, especially for "their class of people." Defendants were given extremely strong protections, and convictions were the exception, not the rule.
The Founders were more concerned about facing a duel than a criminal conviction.
So they added other mechanisms for presidential accountability: impeachment, elections, and the weakness of the office.
These other mechanisms have become weaker and weaker, while the criminal justice system has become stronger and stronger.
Impeachment's happen, but not Senate convictions. The political parties have created a duopoloy on power which allow them to run weak candidates. Congress is less and less willing to hold presidents of their own party accountable. Dueling is prohibited not just criminally, but constitionally in most states.
At the same time the criminal justice system is becoming more and more powerful. Convictions are in the high 90%. Juries are very weak and at the mercy of powerful prosecutors.
The Constitution simply didn't envision a situation where the criminal justice system is more likley to hold someone accountable than an election or Congress.
Impeachment, elections, and duels no longer deter bad conduct. Convictions do.
So we have an edge case: a system that can only hold an ex-President accountable via a criminal charge.
Edge cases are weird. They create "sometimes it works and sometimes it doesn't" situations. And that's where we are now.
This is a bit misleading. DAs have latitude about what to prosecute and if they don't think they can win, they dont have to bring it to court.
This is because "their class of people" were an honor-based society, in which reputation was the currency of power, and people with honor were expected to prioritize the national interests above their own. That is no longer the case.
In other words, there hasn't been a duel. So there should be another enforcement mechanism for making Presidents prioritize the nation above themselves that actually works.
How exactly do you think a qualified, non-partisan judge should decide cases?
You will hear the same people arguing that Justice Alito should l recuse himself due to his wife’s taste in flags, but Judge Merchan shouldn’t recuse himself from Trump’s trial and sentencing after having been revealed to have made (trivial) donations to anti-Trump political campaigns. It sure looks to me like people prioritising maximising the odds of their desired outcome over consistent principle.
The “very specific and unprotected groups” you are talking about are political movements (even if non-mainstream) and hence expressing support for them is just as much political speech as any political donation is. All political speech, even extremist political speech, is protected in the US by the First Amendment, unless it incites “imminent lawless action” (see Brandenburg v Ohio), or one of the other narrow exceptions provided for by SCOTUS’ jurisprudence.
Actually, it is allowed to limit free speech to meet “compelling state interests”, and I’m pretty sure SCOTUS would uphold limitations on judge’s off-the-job speech when necessary to maintain the appearance of judicial impartiality as such a compelling state interest. By contrast, I doubt they’d view limiting the speech of a judicial spouse as necessary to an equally compelling state interest.
Furthermore, unless you are a believer in coverture, Alito’s actions are separate from those of his wife, so once he made clear the flag was his wife’s decision not his, I don’t see how it is relevant. The law does not demand judges recuse themselves on the basis of views of their spouses which they may not share-especially when his wife’s expressive act was not directly commenting on any specific case, at most it was a vague expression of political affiliation-and it isn’t even clear what she personally understands that flag to mean.
> This is a fallacious argument at best and smells of bad faith engagement.
It isn’t a fallacious argument. Rather, suggesting that anyone who disagrees with you is guilty of “bad faith engagement”-that’s a fallacious argument.
https://ravenewworld.substack.com/p/midnight-joyride
I heard comments like yours all the time when people were saying we needed to take QAnon more seriously. People thought it was fringe, that people concerned were “terminally online.” Even as we saw their talking points work their way into mainstream conservative outlets.
Then January 6th happened. Everyone knows what QAnon is now.
Did you notice that the link in the comment you were replying to, has a photo of that “Appeal to Heaven” flag from a Black Lives Matter protest in 2020? And it seems clear it was being flown by BLM supporters, not anti-BLM counterprotestors.
You want to claim that other meanings are purely historical and in contemporary usage it exclusively means “white Christian nationalist”. If the only other examples of its usage people could point to were from decades ago, your argument might have some force. But, given we have photographic evidence of people with a diametrically opposite ideology using it less than 5 years ago, your argument is not very convincing.
https://www.pbs.org/newshour/amp/show/former-neighbor-disput...
Their bogus excuse is very damning. Or at least real event they used as an excuse, but the timeline doesn’t make sense, so they’re lying.
The article you are citing is relying on the claims of an angry former neighbour. Why assume that the Alito's are lying or mistaken, when it seems just as possible that their ex-neighbour could be.
In any event, even if we assume the ex-neighbour's claims are 100% true, they still don't prove (1) that Martha Alito flew the flag with intention to express a highly specific political message, (2) even supposing that was her intention, it still doesn't prove Samuel Alito was supporting her expressive act, as opposed to simply allowing his wife to do what she wants to do.
Getting abstract and dissembling about it doesn't change the fact that the meaning is clear and obvious to anyone who isn't sea lioning. It's clear to their supporters because it needs to be to be effective.
https://www.pbs.org/newshour/amp/show/former-neighbor-disput...
We can dispute the specifics of his motivations but clearly these have not been simple cases of “I just like the flag.” It’s also pretty bizarre to fly the flag upside down for fun.
My point was not to attack this person individually so you’re right I shouldn’t have worded it in those terms. My point was that virtually everyone who thinks the current Supreme Court is “unqualified” also likely thinks “emanations from penumbras” are constitutional law. It’s like listening to anti-vaxxers talk about the qualifications of doctors.
Almost everyone agrees with you on the emanations of penumbras. Nobody wants that. It was rectified by Casey in 1992.
Roe also claimed abortion was a right because doctors should not worry about the law. Women didn’t have a right to abortion at all. Doctors did. That was fixed by Casey in 1992, and probably a bit early.
Roe hasn’t been the defining law on abortion since 1992 because so many people, pro-choicers especially, regarded it as very flawed.
You are attacking straw men. Please stop.
Casey was the start of the self-licking ice cream cone the abortion right eventually became—asserted to exist because it was said to exist by a precedent nobody could defend.
That says that the list of rights enumerated in the constitution is non-exhaustive. That just means that rights can exist in other places besides the Constitution. But if you want to say there is such a right, you have to identify that right in some other source.
But the “emanations from penumbras” language isn’t referring to a non-enumerated right found somewhere else. It’s saying that the privacy right originates in the “emanations from penumbras” of the constitution. So it’s saying the constitution itself creates that right.
I don’t know how justices should decide cases (not a constitutional law scholar, what are your credentials?) but I know that the majority in this one is wrong and should be impeached. The federalists are a cancer on the legal profession. Failure to self police has allowed them to fester when healthy communities would properly ostracize and treat such demented people but here we are.
Perhaps we can all band together to gift these clowns rvs and luxury vacations to get a public healthcare option for everyone?
Impeach them and ring the Russian Republicans up their hard earned espionage charges
If you don’t know how judges should decide cases, how do you know they are wrong?
Are any of the SCOTUS justices “unqualified”? I think all of them have the kinds of backgrounds you’d expect from a Supreme Court justice-law professorships, appellate courts, etc
Are they the best legal minds available? Arguably not, on both sides - in recent decades, both major parties prioritise political/ideological reliability over legal brilliance. Consider someone like Richard Posner, formerly of the 7th Circuit - many consider him one of the brightest legal minds of his generation, and surely the Supreme Court would have benefited from his membership in it - but he never had much hope, because he was too conservative for Democrats, not conservative enough for Republicans.
Every SCOTUS Justice, except for for Thomas, was an absolute top-tier jurist at the time they were appointed.
Every SCOTUS Justice, except Thomas, could have received a tenured professorship at any law school in the country, a partnership at any law firm in the country, editorship of almost any law journal in the country, etc.
Any one, including Thomas, would have been welcome as a professor at the Unversities of Oxford, Cambridge, Edinburgh, Sydney, etc; a magic circle UK law firm; or as arbiter in international trade.
Any one, including Thomas, would have been a shoe in for attorney general or solicited general of US. Any one, including Thomas, could have gotten a position as US Attorney in either a Democratic or Republican administration.
We have an insanely well qualified SCOTUS, mostly because of how arduous the confirmation process is.
How do you go 10 years without even asking a question (https://www.cnn.com/2016/02/29/politics/supreme-court-claren...) if you're so good you could be an attorney general.
He's lazy, and that's even worse than just being a sex predator (Anita Hill) in the context of jurisprudence. He writes the shortest, shittiest, least well thought out opinions. He's phoning it in and has been for decades now.
Seems that our best justices are "political hacks" and our worst are those who are excellent lawyers. Maybe that's because lawyers are only slightly above "used car salesman" in terms of honesty?
Shit dude, If law credentials mattered, than Comey wouldn't have ever been an attorney (Cooley law, worst law school in america). Was he also a "political hack"?
Make better arguments please, you showed you were capable of it earlier when you wrote the top level justification. Why not do it here?
The two parties and their friends have submitted mountains of briefings before oral argument. The arguments made in front of the court are already fully baked. Oral argument is only a signal on where the justices' thinking is taking them at the time. All of this is public, by the way. You can go read everything on your own (something more people in this thread should do).
Warren had been elected governor of California on both a Republican and Democratic ticket. That’s the very definition of a politician. I don’t have a good definition of hack.
If our best lawyers are no better than used car salesmen, why are they so well regarded internationally?
Because your fellow jurists ask the questions for you.
He explained this position cogently: he does not want to influence the process or the case being presented to him.
When seniority-based speaking order changed during COVID virtual hearings, he started asking questions again.
If that were true then defendants would waive their right to a jury trial. They don't.
The conviction rate is high because prosecutors don't bring weak cases.
They do, overwhelmingly. Plea bargaining accounts for almost 98 percent of federal convictions and 95 percent of state convictions in the United States.
My point still stands. For cases that go to trial, if they jury is just a pawn for prosecution, the defendants would choose a bench trial. They do not, so this argument does not hold water.
He was advised to do a bench trial.
The idea was the evidence was so strongly in his favor that only an idiot would find him guilty, and a judge was less likely to be an idiot than a jury.
It worked out splendidly. The trial didn’t even finish. The judge halted the trial half way through and “advised” the prosecution to drop charges, which they did.
This is of course not representative. But if I were ever in the same spot, I’d seriously consider a bench trial.
I know someone who recently took a bench trial. No evidence of a crime was presented. The closing argument was the defense was "There was zero, zip, zilch evidence of any crime committed, and no mention of the defendant by anyone." The judge found the defendant guilty and then retired the next day. It's on appeal. C'est la vie.
(OTOH I saw a judge take a bench trial on a crime they'd committed, and their buddy was the trier of fact. The first witness had barely stepped onto the stand when the defendant was pronounced not guilty. LOL)
As a trivial example: imagine you are charged with a misdemeanor you absolutely didn’t do. Assuming you have no previous criminal record the state offers you a civil penalty (ie an expensive speeding ticket).
Are you going to go to trial knowing you could be sentenced to a year in prison? Keep in mind just paying an attorney to represent you through the trial will cost several times the civil penalty.
The OP claims that juries can be bullied by a prosecutor into delivering a guilty plea. But if this were so, defendants would choose a bench trial as it would a safer bet. They do not, because juries are not bullied by prosecutors.
The constitution didn’t envision a sprawling legal services market to secure the freedom of criminals despite overwhelming evidence while poor people are enslaved like cattle in a nakedly classist and racist exercise of state power to maintain class divisions that afford the empowered unearned wealth power and privilege by virtue of birth.
Speaking of trends here-exceptions occur and get held up as some gotcha that only further betrays ignorance of the system and actually represents the calculated tokenization of the oppressed to act as a shield to scrutiny.
The DOJ has a high conviction rate, at 93%, but Federal cases are the minority of cases in the USA. Most cases are state-level, and the conviction rates vary pretty significantly (E.g., California has a conviction rate of ~65% for property crime: Table 6 of https://www.courts.ca.gov/documents/lr-2019-JC-disposition-o... )
Prosecutors don't go to trial unless they have a solid case especially against a former pres.
Without immunity you’ll get the kind of shit they’ve done with trump, but against sitting presidents. Imagine if Obama had been arrested every time he entered Texas because the locals just feel like prosecuting him to send a message.
Okay, but now that hypothetical problem is solved, we have the opposite hypothetical problem. Let's see if it turns out to be more of an actual problem compared to your imaginary one, which never materialized in 250 years of the presidency.
My guess is it's going to be an actual problem almost immediately, as soon as someone with low moral character is elected. Wonder how long that will take.
> 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.
> Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.
The only real difference is whether the acts are official or not. So the President is allowed to order the military to assassinate a political rival, but not to pay a private hitman to do so.
It's a pretty ridiculous and indefensible stance from the majority opinion.
As an example, the fact he's in charge of the military doesn't make everything he asks them to do official because he is obliged to follow the constitution. There are arguments to make against what I just said. It's as clear as mud once you start going through concrete scenarios.
We have front-row seats to how empires decline and fade away. I guess those who missed the 20th century decline of the British Empire (culminating in Brexit) can study this one.
But the Supremes haven't said what they think an official act is; that's a matter for the court of first instance, according to the Supremes.
To me, in the UK, it looks like vandalism. There's no clear law on what constitutes an official presidential act, and until there is, the Pres is beyond the reach of the law.
I don't think these very senior lawyers are fools, I don't think they made a mistake. They've deliberately fucked-up the US legal system (even more than it's already a mess).
Read the actual ruling. They haven't fucked up anything. They haven't actually said much. Any time you read media coverage of a supreme court decision you've already made a mistake. You have to read the source material.
Is someone more or less likely to perform such an act if there's a possibility of legal consequences? If not, then we don't really need courts at all, do we?
I'm not saying a president couldn't try. I can imagine that. I cannot understand how it would be an official act. If the president runs out of Kleenex and opts for toilet paper instead, that is not an official act merely because he is president.
There is nothing mandating that a court has to put careful consideration between what is and isn’t official business.
The idea that they are "clerics" because they make a decision you disagree with is nonsensical.
https://verdict.justia.com/2023/05/03/how-did-six-conservati...
In the majority's opinion they stated that any act carved out by the constitution for the president is an official one.
The constitution establishes the president as the commander in chief of the armed forces. If the president orders a member of the military to assassinate an individual, he's exercising his role as the commander in chief, an official act, and is thus criminally immune.
The slightly longer form also includes that the majority held that for official acts, a president's motives can't be probed by the courts, so whether the president ordered Seal Team 6 to murder a political rival for self-interested reasons, that it was an official act is the only thing that need be considered.
There is no way that Sotomayor genuinely believes this. If Trump becomes president and is prosecuted again, I guarantee she'll argue that his crimes don't fall under the President's official duties.
(In a previous version of my comment, I thought that the previous commenter was referring to the Foreign Emoluments Clause and cluelessly asked whether there was a domestic version.)
They would if you had used your company credit card to pay a hitman though. Perhaps this isn't the strongest argument for why the military for a political assassination isn't an official act. My point still stands though that all limitations of the powers of the President are still there, so not everything they do will be considered an official act.
This is ridiculous! It's blatantly political and both parties are guilty of this. The justice system is meant to hold people accountable for breaking the law, not as an additional political mechanism for checks and balances. I haven't looked into the case and don't know the legal precedent SCOTUS used for this decision, but from a consequentialist standpoint this seems to me an obviously good outcome.
The behavior of Ken Starr in this case was abhorrent. In my eyes, there was a degree of witness intimidation going on in this case.
Ironically, this SCOTUS ruling would have blocked Clinton's impeachment because Ken Starr was an Independent Counsel, which SCOTUS ruled cannot be used in such matters.
Which were none of the things he was initially accused of or investigated for. Ain't that funny
You should probably look up Obama's track record on this. Killing Americans without due process, torture, killing civilians, etc. Not to mention other crimes like the massive amount of spying on Americans. Don't forget Snowden revealed all his stuff during Obama's reign and those crimes were still ongoing.
Today's ruling is a solution to a problem that no one has actually had for the last 250 years, and which no one currently has.
A president being incompetent or immoral in his line of duty is an issue for voters or congress to decide on. But a White House bogged down in lawsuits or petty criminal charges would cease to function.
Trump can now continually appeal his actions were official, delaying charges until after November when, if he wins the election, he can instruct the DoJ to drop the case.
The majority opinion is pretty clear that of the indictments, 3 have pretty good grounds to proceed.
At least that was the tentative conclusion last time this was brought up: https://www.theguardian.com/commentisfree/2013/feb/22/obama-...
Impeachment only applies to a sitting president. Not one who is no longer in office.
Without protection the executive would be at the mercy of the judicial branch. This is clearly an inversion of power.
Perhaps the solution is clean out our legal system wholesale so that it is obvious to all involved whether an action or set of actions could not result in prosecution in the future. Such an action was not within the power of the supreme court.
Under this ruling, the court system is generally not a way to keep him accountable.
So it’s not that there is no accountability or way to “punish”, a rogue president, it’s just a different method of accountability than what applies to you and me.
Congress can choose to impeach, but they are not doing so based on the laws of the land, but based on their own determination (whether it is in their best interest for that President to be gone or not), which (unsurprisingly) is split along political lines (which is why it's so hard to actually impeach the president).
Therefore impeachment is not a means to hold a President accountable for illegal or anti-democratic actions, but rather it is a means for a united Congress to have some power over the President in the event he managed to piss off enough people from both parties.
Impeachment is a political solution to political disagreements. This opinion makes most disagreements with 'official acts' a political question, to be settled by election or impeachment.
Critically (and thankfully) it rejects outright the idea that impeachment is the _only_ mechanism restraining a president. Criminal liability is still a viable mechanism for holding a president responsible for all unofficial acts, and potentially for some official acts.
This doesn't mean that the president cannot be tried for some illegal act that was not their official duty. Murdering someone, for example.
Why obviously? If mistress is causing "harm" to other official actions would it not be official duty to prevent this harm? You and I may not buy such a defence but a sympathetic audience of allies?
They could argue that if she came forward it would reduce American's faith in their government leading to instability or that it would provide an opportunity for our enemies to use the scandal to undermine national interests, or they could argue that the "vindictive ex" might expose secrets that she learned while in proximity to government officials, or even just lie and say she stole the secrets.
The president doesn't even have to murder her. The president can now disappear people in the middle of the night and ship them off to gitmo under the banner of "national security" and not tell anyone about it, and even if someone leaked that the cells in Guantanamo Bay were filling up even the supreme court wouldn't be allowed to see the evidence. Any trial at all would take place in secret military courts closed to the public.
This was the farthest thing from a moderate decision. It puts the president literally above the law. There is zero need for this kind of immunity when the actions a president takes while in office are legal, which is how we've gone nearly 250 years without ever once needing it.
I think you've been so riled up that you are worried over impossibilities. Judge Chutkan gets a pass at interpreting this, wait and see what she says about it. The kind of arguments you are suggest are wildly implausible and will never pass muster in any court, regardless of appointee. It explicitly isn't the intent of the decision.
If you want to say she is worried over impossibilities too that's fine but based on the facts of the case and how it was ruled, I don't see why its not a realistic concern.
Nothing new.
So its not necessarily that words don't have meaning. Its more of, the words can change meaning.
The Roberts court is just arbitrarily choosing whatever justification they happen to like for any given case to push an extremist agenda.
I'm as against this court as the next guy, but don't constitutional rights need to be, you know, in the constitution?
The constitution merely enumerates certain rights where the founders wanted to be extra clear that those things were rights, but it is not a limiting document.
The 9th amendment states this explicitly: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
[edit] removed the word militia to avoid confusion between historic and modern definition.
Article XIII of the Pennsylvania Declaration of Rights of 1776 read:
>That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.
Similarly, as another example, Massachusetts’s Declaration of Rights from 1780 provided:
>The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.
James Madison produced an initial draft of the Second Amendment as follows:
>The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
I pulled the quotes from this link, which has more text and discussion.
https://constitution.congress.gov/browse/essay/amdt2-2/ALDE_...
You’re utilizing one definition of a term that never had concrete meaning, so your reasoning is both imprecise and potentially erroneous.
It is hard to see why a state would feel the need to include the government's ability to own weapons at all, let alone in a document listing rights and protections for individual citizens. Furthermore, the statements already draw a distinction between the people and an army controlled by the government.
Further, it should be noted that the lower court already did exactly what the supreme court remanded back to them. They said "we don't know what sorts of immunity are granted to a president, but if there is any they are not granted, it's overturning an election as is accused in this specific case".
The supreme court took up this case specifically to help donald trump and because they couldn't challenge the ruling given they made up their own facts to give the ruling they wanted to give.
For example, the president can deem opposition party leaders to be terrorists and then in an official capacity order them to be assassinated by the SEALs. He can grant blanket pardons to everyone involved while he himself enjoys absolute immunity for his official acts.
The Senate will never be able to impeach or convict you when you’ve killed off those who would do it.
This ruling makes the president a temporary dictator, and it’s reeeeeally easy to go from a temporary dictator to a lifetime one.
why is it so easy to just deem some group of people terrorists, without any evidence presented?
And if this is true, why can't biden do it today, and preempt trump from doing it?
And Democratic party are known to not want to rock the boat, so to speak.
The ruling basically says the only way for the case to move forward is to determine what parts of Trump's conduct can be deemed "unofficial".
Disruption of a government proceeding is more appropriate. Had Trump did what he did on January 21st, 2021…you might have a case for insurrection.
Overthrowing....the government he was in charge of?
[1] https://en.wikipedia.org/wiki/Self-coup
That would be much more in line with the courts other decisions than asking a court to write the law
But if a president claims that a surgical strike to eliminate an "enemy of the country" was within their prerogative, then yes, a president can murder somebody without fear of consequences.
>> On Trump’s view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election. As the Government sees it, however, Trump can point to no plausible source of authority enabling the President to take such actions. Determining whose characterization may be correct, and with respect to which conduct, requires a fact-specific analysis of the indictment’s extensive and interrelated allegations. The Court accordingly remands to the District Court to determine in the first instance whether Trump’s conduct in this area qualifies as official or unofficial. Pp. 24–28.
Which seems a key window for the lower court to send the case back up.
Granted, the special counsel would have to prove that without using the Presidential personal notes... but it's still a pretty clear path given the non-Presidential documentation all the conspirators kept.And it does make sense by the Supreme Court's reasoning: you can't restrict the President from running the executive branch, but you can hold him accountable for the things he does outside of the executive branch, which critically includes elections themselves.
it's my understanding that they can't use testimony or notes from advisors et. al. which is troubling since they are or can be the co-conspirators.
> Presidents cannot be indicted based on conduct for which they are immune from prosecution. On remand, the District Court must carefully analyze the indictment’s remaining allegations to determine whether they too involve conduct for which a President must be immune from prosecution. And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct. *Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.*
I.e. anything that would have a chilling effect on the President's ability to direct the executive
Outside of that, e.g. campaign staff, is a different matter. And I believe there's already a distinction between government employees and campaign employees (probably for campaign finance reasons).
That is where probably the blanket immunity comes into play. Its not definitionally blanket immunity, but it might as well functionally be blanket immunity.
It doesn't invoke sovereign immunity through a loud roar, but from an understood nod.
> in a bribery prosecution, for instance, excluding “any mention” of the official act associated with the bribe “would hamstring the prosecution.” Post, at 6 (opinion concurring in part); cf. post, at 25–27 (opinion of SOTOMAYOR, J.). But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. See 18 U. S. C. §201(b)(2). What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety
Admittedly it’s a bit contradictory, but still helpful I think. The pardon is the official act, and the president is immune from criminal prosecution (and legislation) of the form “it was a crime to give that pardon” without further qualification. The prosecutor cannot compel presidential records or testimony. All the other tools are still available to the prosecutor and the unofficial act of accepting a bribe is still a crime.
So if the pres has anyone who can kill someone for legal reasons this decision allows the pres to use that person to kill for illegal reasons.
"Such a problem this thing called 'law' that people made, doesn't let me govern. If only i could do everything i want without having to concern myself with such petty things."
I can't believe this is the type of argument people are using to defend this abysmal situation. The US should have invested more in teaching kids about fascism and identifying its signs. Unbelievable that people are so blind to what's going on.
Can we prosecute Obama for ordering drone strikes on U.S. citizens? Can we prosecute Bush for the Iraq war? Can we prosecute Biden in a few months for deaths caused by his border policies?
Also, this is just how immunity works! Judges have immunity for their judicial conduct in office, and don’t lose it when they retire. When the GOP wins a trifecta next year, can they prosecute retired liberal justices for homicide for abortion rulings?
It’s a strict constructionist interpretation, where the judiciary shouldn’t fix problems that the people, congress and States have the power to fix.
In the example of the President (Commander in Chief) directing the military to thwart political enemies, I think a strict constructionist might say, the people freely elected that President, 2/3 of States failed to pass an amendment curtailing the President’s unilateral command of the military and the Congress failed to impeach and convict the President, so the judiciary is hardly to blame when the people, congress and States all could have intervened if there was a concern.
There are obviously counter arguments to this strict constructionist view, which the minority documented. The counter-argument is basically, yes there are those other options, but we have to use a liberal interpretation in this moment instead of a strict interpretation in order to prevent some potential disastrous consequences. And if the people, states and congress don’t like our liberal interpretation, then they can overrule us using the same methods of voting, laws, constitutional amendments, etc. that the strict constructionists advocate.
Who's going to hold him to that?
https://www.brennancenter.org/our-work/analysis-opinion/supr...
I don't see how any interpretation of this text could imply that the president is immune from criminal prosecution. It clearly says a president is not immune from criminal penalties, how could they write this while also considering the president immune for offical acts?
> Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
So I think the intended process is that congress must impeach and convict first, and then after that they are subject to criminal prosecution.
So I’m guessing that the Federal government or US State can’t unilaterally prosecute the President for an official act if they haven’t been impeached.
* Bush fabricated evidence to start a war and never got prosecuted.
* Obama's administration literally sold guns to a Mexican drug cartel for no apparent reason.
* Reagan had iran/contra
* various different "collateral damage" fuckups under every administration during my lifetime where dozens of civilians are killed but nobody cared because they're poor, brown, and not American
* Kennedy authorized the CIA to raise a private army and launch an invasion of a country we weren't at war with.
And many more, this is but a small sample of the crimes presidents have committed.
But nobody ever gets held personally accountable for anything until Doritos Hitler comes along and commits a series of crimes which, while unconscionable, are comparatively minor next to the above listed. This ruling hasn't actually changed anything. It just codified something that has obviously been true for at least 80 years, and it prevented one party from selectively applying the law to a political opponent in a way which it almost never gets applied.
So my defense isn't that the president should be above the law (he shouldn't), but that he obviously already has been above the law for a very long time and pretending otherwise is just lying to yourself and the american people.
Starting the wars in Iraq and Afghanistan post-September 11 (Bush -- Republican), and the Gulf of Tonkin incident which led to the Vietnam conflict (LBJ -- Democrat) these were much more costly and problematic than the issues that happened while Trump was president.
The United States should concentrate on its citizens and not on being the world police, and should never get into any external war. Israel can get tank ammunition pushed through with no problem, but we can't get healthcare, childcare, housing, or education at affordable rates. This means that the priorities of the government are not aligned with the priorities of the citizenry and we need to re-align the governemnt with the citizenry.
We also have a childhood obesity crisis, with about 20% of children obese, which will cause much larger problems 20 years down the road when Gen Alpha is all grown up, and Trump and Biden are both dead. This country is not able to think long-term about how expensive GLP-1 agonists will be for 20% of the population.
Also, real inflation is still high; groceries, at least at Trader Joe's, are still much more expensive than pre-pandemic prices. I don't care what is going on in the world until we fix our own internal problems, which neither major party has shown a willingness to do.
As I see it the major political parties both use certain emotional issues including gun control, abortion, immigration to drive voter outrage, while ignoring the issues that are actually important.
https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
You're in luck! The Supreme Court itself writes down why the decision was made. You can just…read it.
> Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.
> With fear for our democracy, I dissent.
Chilling words.
The way they’ve set this up, the people involved have a lot to do with it. It sure looks like the President can now openly discuss corruption like selling secrets or pardons with e.g. relevant cabinet members, and none of that can be prosecuted, nor can it be evidence presented in a prosecution of crimes.
The immunity granted is insanely broad.
Stopping aid to Ukraine is definitely an official act, which, on its own, is within their powers. Trading said official action for the billion dollars is what is fraudulent, but if I am understanding the Roberts opinion correctly, it cannot be prosecuted, because the motives of the president should not be used as part of the ruling of immunity. So... free bribery, as long as said president pays their taxes.
that's not anything new though, Obama's drone strikes weren't ordered until his lawyers felt they had a very good defense for him in case he was charged with assassinating US citizens without due process.
Why is sottomayor the only justice drawing this conclusion?
With fear for our democracy, I dissent."
and
“Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today. Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.” “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.”
- Justice Sotomayor
If we refuse to recognize that harm under the current Rule of Law, then who is going to identify and prosecute "harm" besides politically motivated ideologues? It sounds like a surefire way to cement the separation of the Executive office from it's respective checks and balances.
"but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."
I don't think this ruling is, on the surface, exactly what people are making it out to be. It certainly maintains a high bar for criminally prosecuting the president for something they do in office, but it is not allowing them to commit crimes with impunity.
1: https://constitution.congress.gov/browse/article-1/section-3....
Well it kind of does, because the president has the power to stop impeachment from ever happening in the first place, if they're willing to command the military to.
The same actions committed by two different presidents could vary hugely in their motive - one might be legitimately concerned about voter fraud and the other trying to interfere maliciously with election results.
Admittedly the bar would be high to prove malicious intent (eg. acting out of self interest rather than in the interests of the office/country) but that still seems better than just saying that a given action, regardless of motive, is covered by immunity.
> In dividing official from unofficial conduct, courts may not inquire into the President’s motives
https://www.washingtonpost.com/politics/2023/05/17/giuliani-...
If a president took a bribe for a position, prosecute him for taking a bribe (if it's not a gratuity, because Congress has declared tipping politicians legal.) But if he could have made the same decision because he liked someone's tie - it's nothing but second guessing, by a likely hostile later administration.
These people appoint all their campaign staff and big donors to government jobs. If that's legal, then any reason for anything they do which is left up to their discretion is legal. If it's not legal, have Congress make it not legal.
-----
edit: gaganyaan, you are wrong. If you think that the entire point is that a president cannot be prosecuted for taking a bribe, you should reevaluate your understanding of the entire point.
> Under Monday’s decision, a former president could be prosecuted for accepting a bribe, but prosecutors could not mention the official act, the appointment, in their case.
> Justice Amy Coney Barrett, who joined the rest of Roberts’ opinion, parted company on this point. “The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable,” Barrett wrote.
they can still be impeached and removed from office for basically any reason whatsoever. Maybe the won't goto jail but their presidency would be over.
It's telling that even such a minor "to be sure" as hers couldn't carry enough support to actually be in the opinion.
Why not. The vice president exists for a reason? Here in Europe, in the entirety of Europe, if a president or prime minister commits a crime, they will be prosecuted. If we can do it, why can't the USA?
After all, no one is above the law.
If anything, the more power you have, the more scrutiny you should be under.
Indeed, the concept of immunity is recognized in the American constitution for legislators in a limited way, so this isn't an oversight by the framers corrected by Robert's conservative majority, rather the lack of immunity for the executive is a feature and not a bug of our constitution, and all republican forms of government.
Ironically the American president now has more power than the King of England, George the III, at the time of the American independence. King George had to follow the laws of Parliament, as did all Kings of England since the passage of Magna Carta some 500+ years prior.
As of today our President no longer has to obey the Constitution or the law so long as the act is deemed "official" by the conservative majority.
Combined with Chevron doctrine precedent, agencies could enact what the executive branch wanted if the standard quo process failed
Roberts' opinion covers this, as do many discussions of textualist interpretations -- not being set out in the text specifically doesn't mean that it doesn't exist, for textualist interpretations. Roberts' example is separation of powers. There's no "separation of powers clause," but the concept is pretty clearly set out in the text anyway. They say the same is true for immunity for public acts, and they provide reasoning. I disagree with some of the reasoning, but there are much more tenuous things read into the Constitution by the Supreme Court than this one.
And if the Constitution includes immunity for public acts, so much the worse for the Constitution!
The Democrats have now become the conservative party. Both in the abstract of wanting slow cautious change, and in the concrete principles that have long been held as conservativism - belief in American institutions, strong foreign policy to spread those institutions, the rule of law, and now even fiscal responsibility with having led the pull up from ZIRP!
I went back and forth whether to include a paragraph about how this swapping also explains the dynamics around things like DEI training, but decided against it so I wouldn't be getting it from both sides. Things were more pleasant when most people got this energy out watching football.
If you want to point me at other conservative principles I skipped over but seem overridingly relevant to you, please do. But even for the social issue of religion, which seems to be the defining aspect for many people, the figureheads are churchgoing Biden versus philandering Trump.
That core concept of immunity is pretty solid and essential, it is the details that are problematic, in particular the fact that the courts have interpreted "official" acts so broadly in the past in cases of qualified immunity makes one worried they will do the same here.
The President shouldn't have the legal authority to conduct any drone strikes without a declaration of war from Congress. We've been ignoring the Constitution for a very long time.
What part of the Constitution are we ignoring?
According to the Constitution, the President is the Commander in Chief of the armed forces. The Constitution does not say that war must be declared for the armed forces to operate. Thus, ordering a drone strike without Congress' input would seem well within the scope of the President's powers.
There are a number of amendments that could be pretty reasonable argued to give citizens the right not to get killed by drone strikes.
It's also worth noting that what someone thinks is legal is not necessarily what someone thinks _should_ be legal; I imagine that almost everyone here has at least some laws that they disagree with, but that's separate from the question of whether the law exists or not.
Drone striking (or otherwise killing) citizens without due process seems unconstitutional. Drone striking foreign targets does not have those constitutional protections.
It does. Armed forces killing people is a state of war. If not, it's policing then it's under the judiciary authority, not the president.
If they were, the whole cop-killers, BLM, excessive use of force issue would not be an issue. The law would just say "Okay, a cop killed someone, that's their job, get over it." You can argue that the criminal justice system is too light on cops, but the fact that the criminal justice system is even involved means that killing people is not part of a cop's official job duties.
Practically speaking, law enforcement does have broad authority to kill people. So long as that death falls under the training guidelines written by the department, then it's unlikely the officer in question will face any punishment.
Now, killing a person might be seen as a violation of their civil rights, entitling their estate to compensation for the death. But that's a punishment for the state, not the individuals involved.
Law enforcement individuals have extremely limited authority to kill people, exclusively(?) based on self-defense.
The law enforcement system has the right to authorize the killing of people but is subject to judicial review.
Ergo, if a law enforcement individual breaks guidelines and kills someone, they're charged.
If a law enforcement individual follows guidelines and kills someone, then the system is charged. (E.g. state/federal lawsuits, consent decrees, etc)
Real life is rarely this black and white.
Did you commit a crime, yes/no? Let's bring it to trial.
The circumstances are messy in all real world instances, but the outcome is binary.
Refusing to even put a president on trial is more black and white, because it's a clear "no, not illegal" without even discussion.
Wait, what? Executive branch pretty explicitly encompasses enforcement. The Justice Department is part of the Executive branch.
Unless by "Judiciary authority" you meant the Justice Department, and not the Judiciary branch of the federal government, and by "not the president" you were very specifically discussing the semi-independence the Justice department has from the president.
When the constitution was drafted, time delays necessitated that the military and the President act autonomously for the most part. Congress couldn't convene rapidly enough to expect them to have much say in all but the largest and most drawn out conflicts.
The War Powers Act is codifying this implicit power. The framers never considered a situation where the President and Congress is watching a conflict play out across the world in real-time and making decisions. So it's literally impossible to say how they wanted this to be handled. That's why they gave Congress the powers to write laws.
On a similar note the communication time has vastly narrowed but so has the ability to perform attacks.
If the president actually has the authority to send troops into combat without a declaration of war, then Congress can’t take it away from him, just like Congress can’t make it illegal to veto bills.
The War Powers Act doesn’t really set any punishment for the president if he ignores it. It effectively says that if the president does certain things (consult with Congress, follow certain timelines, issue reports) then Congress won’t complain. Presidents have generally followed those procedures without admitting that’s what they’re doing (they issue reports “consistent with” the Act, but never admit the report was required by the Act). But if a president completely ignores those requirements, Congress has to figure out what to do about it; which is exactly what would happen if the Act didn’t exist.
> It does.
Since the Constitution is a publicly available document, would you please point me to the spot where it says that? Thanks.
Theoretically, they can withhold funding from the military. But seeing as the Treasury Department falls under the President, it's unlikely they can actually do that.
There hasn't been a single year of my life where US armed forces weren't killing someone somewhere in the world. The US military has been involved in armed conflicts around the globe in nearly every year since WWII but it hasn't declared many wars.
https://en.wikipedia.org/wiki/List_of_wars_involving_the_Uni...
https://en.wikipedia.org/wiki/Timeline_of_United_States_mili...
Drone strikes on foreign targets are most analogous to the historical practice of issuing “letters of marque and reprisal,” which allowed private actors (privateers) to act on behalf of the state to take out pirates.
Issuing such letters is an enumerated power of Congress, not the Presidency. So if the President does so unilaterally, they are acting outside their Constitutional authority.
The risks of abuse to military power are real and significant, which is why the power was placed in the body closest to the people - so that such actions would be consistent with the public will.
https://constitution.congress.gov/browse/article-1/section-8...
Yes it does, by reserving for Congress the right to declare war. Obama's drone strikes were carried out under the 2001 AUMF against al-Qaeda and the Taliban.
At the same time, the president's agencies no longer have the authority to do whatever they want.
So I guess the president can order the military to drone strike the FCC if he wants at this rate. I don't see what influence the Constitution is still going to have at this point.
Since Thomas Jefferson sent Navy & Marines after the Barbary Pirates without consulting Congress.
I mean, if Obama went to prison for the drone strikes he ordered, his sacrifice would be less than many common soldiers have made.
I want Presidents willing to put their lives on the line and their actions under the law. Is that too much to ask?
Yes it's too much to ask every president to significantly risk jail time for being president.
It seems to me the consequence would be that we would have Presidents who act carefully to not break the law. Are there any other consequences?
I've heard it said that "democracies are where the people in power lose". We've all seen "democracies" where the party in power never loses; those aren't real democracies. Likewise, I would say nations that are truly governed by law are where those in power face legal prosecution.
(Also, what's so bad about prosecution? If a person is innocent, the legal system will find them to be innocent, right?... Right?)
All this seems so rooted in "what do we owe the President?" while my questions here are more assuming the President is a servant of the people and is thus making a sacrifice to serve the nation and is willing to accept the risks that comes from making hard choices while being subject to the law.
There are good and competent people who say "I'm willing to be President and be subject to the law, I'm willing to do both". Why can't be pick a President from that group?
Numbers are hard when they go against our intuition, but every US President is taking a comparable risk to being a soldier according to these numbers.
Obama took the risk of being a President while Black Trump took the risk of being a President while Orange
Ref 1. https://en.wikipedia.org/wiki/Coalition_casualties_in_Afghan... 2. https://www.militarytimes.com/news/your-military/2016/07/06/...
https://apnews.com/article/yemen-houthis-red-sea-shipping-ce...
The ones that should judge if it's not constitutional just passed judgment stating that a ex-president is above the law. I think they can invalidate if a president explicitly needs declaration of war, given recent history I'd bet a lot they would find it totally constitutional.
> As the Supreme Court concluded, the United States is in an armed conflict with al-Qaeda, and Congress’s 2001 Authorization for the Use of Military Force—along with the president’s commander-in-chief authority under Article II of the Constitution—provides ample domestic legal authority to conduct military operations against al-Qaeda.
tl;dr: We haven't been ignoring the Constitution for a very long time.
What does that mean? I'm not familiar with detached subthreads.
I wonder what the reason was, though.
But to somewhat address the sentiment: We can replace the machines and keep the line operators.
edit: Not sure now, should the government be considered the people running the country or the formula?
I would consider this an extreme knee jerk take, but it's Sotomayor saying it.
https://x.com/mikedebonis/status/1807787300375445993
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.
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.
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.
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.
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.
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.
Read the ruling itself.
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.
Hell IIRC at one point all living governors of Illinois were in prison
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.
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?
You are confusing necessary and sufficient.
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.
If you think all those things are in place, this really is the least of your worries.
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.
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.
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.
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’?
Well, then it sounds like sending a Seal team after him might be an official act.
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.
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.
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.
Everyone thinks lines don't get crossed, until they do.
> 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.
https://thehill.com/regulation/court-battles/4398223-trump-t...
> 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.
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...
> 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.
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.
[1]https://en.wikipedia.org/wiki/Efforts_to_impeach_Donald_Trum... [2]https://en.wikipedia.org/wiki/Impeachment_inquiry_into_Joe_B...
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
That is indeed bipartisanship
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 ).
Yes, obviously
> You used qualifier unprecedented
The problem isn't pressuring Ukraine the problem is pressuring Ukraine for dirt on your opponent. That kind of thing is absolutely unprecedented.
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?
[1]https://www.merriam-webster.com/dictionary/bipartisan [2]https://www.cnn.com/2019/09/25/politics/donald-trump-ukraine...
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.
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.
[1]https://www.senate.gov/about/powers-procedures/impeachment.h...
This is basically an equivalent request, yeah.
EDIT: This ruling probably retroactively clears Nixon from Watergate. It would make it illegal to use the tapes as evidence against him.
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.
yeah it seems like a traditional FUD strategy, i would expect Supreme Court justices to be more analytical and sober than that.
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.
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.
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.
> 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.
https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
EDIT: OP left a reply to this comment that I think was unfairly flagged, visible here with showdead:
https://news.ycombinator.com/item?id=40848860
The president now has immunity to corrupt elections as he wishes. I honestly don't understand how any American can be happy about this.
Explain the difference.
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.
Who said?
The most recent affirmation: https://www.scotusblog.com/2024/06/supreme-court-upholds-bar...
There are countless other cases.
So if you belive that the election was stolen, and organize a military uprising to fix that, then what?
You're acting in your official capacity to uphold the constitutional rights. It's all fine and dandy, and you should get full immunity.
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.
Ouroboros
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."
Core constitutional powers: may not be prosecuted. Period. Impossible.
Official acts: presumptive immunity, may possibly be prosecuted.
Clearly "core constitutional powers" != "official acts" because they have two very different standards applied.
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?
> 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"
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.
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"
SCOTUS disagrees with you. People can be stripped of their constitutional rights and they are official acts.
For the most recent case: https://www.scotusblog.com/2024/06/supreme-court-upholds-bar...
2nd Amendment versus the executive branch's right to enforce that law.
Evidence: Obama supporters treating the assassination of that American citizen as an official action.
https://www.msnbc.com/rachel-maddow-show/maddowblog/pressed-...
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?
this act is still in effect.
"... 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."
https://en.m.wikipedia.org/wiki/Anwar_al-Awlaki
See https://en.wikipedia.org/wiki/Iran%E2%80%93Contra_affair#Par...
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.
The decision literally states "In dividing official from unofficial conduct, courts may not inquire into the President’s motives."
He can claim the assassination was an official act in defense of national security, and no amount of "but he owed the guy money!" matters.
There's scopes to the application of the ruling. An extrajudicial killing of a political opponent certainly falls outside of scope.
There wasn't all that much fuss when we did it to https://en.wikipedia.org/wiki/Anwar_al-Awlaki.
> 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?”
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.
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.
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]
[1] https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
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.
Maybe.[1]
[1] https://en.wikipedia.org/wiki/Unitary_executive_theory#Judic...
But even then, with enough agreement from the states, Congress can amend the Constitution.
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).
So, they can invent tests later, after they see how this decision affects the prosecution.
how is that not a test?
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.
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.
[1]https://www.wsj.com/video/trump-full-speech-at-dc-rally-on-j...
What does that even mean if it's impossible to prosecute the President? What does that even mean?
It's the same things cops do, jeez.
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.
https://en.wikipedia.org/wiki/Presidential_Records_Act
I mean, it's still really bad, but a few slivers less bad than you say :P
Like if you want to do a coup, as long as you task the army with removing congress it's an official act?
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.
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]
[1] https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
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 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.
When it comes to it, this exact thing will be covered by immunity because of how things work.
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.
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.
https://www.cbsnews.com/news/mitch-mcconnell-immunity-former...
(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)
'Immediately' as in many hours after violence started, and his own children begged him to do something?
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
"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."
Like it or not, the allegations against Biden and his son have only become more substantiated over time.
Trump should not be punished for investigating.
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.
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.
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.
Until today at least. God save us all.
https://en.wikipedia.org/wiki/Killings_of_Aaron_Danielson_an...
> 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.
> 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
> 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.
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".
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.
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.
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.
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.
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.
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.
EDIT: Here's an article in which the ACLU raises the same hypothetical concern you do (the president will now be able to kill whomever): https://www.latimes.com/nation/nationnow/la-na-nn-drone-memo...
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.
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
* 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
6 members of the Supreme Court said Distinguishing the President’s official actions from his unofficial ones can be difficult.[1]
[1] https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
If there weren't lawyers, law would be oh, so much simpler..
Technically, the murder is illegal, but the pardon is legal because it's 'part of his official duties'.
There are any number of ways this can be abused.
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.
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.
What if the President signs an Executive Order directing himself to shoot someone in the street?
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.
I read it and what is above is my understanding of how they attempted to parse the law, but I'm happy to be wrong if I missed something.
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.
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.
https://en.wikipedia.org/wiki/Anwar_al-Awlaki
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.
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.
Congress granted the Bush administration broad powers. The problem is not inaction.
You mean because he has been dead for 3 years?
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.
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
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.
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.
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.
Maybe.[1]
[1] https://en.wikipedia.org/wiki/Unitary_executive_theory#Judic...
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.
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.
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.
Nevermind that the order was given by a US official, presumably on US soil.
No, the supreme court just gave the president immunity for exactly this. This exact scenario is quoted upthread:
> Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution.
It's curious because this would also seem to legalize the Watergate scandal and Nixon's famous line "if the president does it, its not illegal".
People get very judgemental when Putin assassinates defectors, but when Obama does it it's ok?
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.
> 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.
[0] https://news.ycombinator.com/item?id=40849378
I wouldn't have bought that; but alas, no one asked me.
Due process is about validating the government's claims before allowing it to kill someone.
The silence from the people who once decried the 'activist court' now that it's an ally of the slow fascist transformation is deafening.
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"
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."
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.
I suggest that courts might be _reluctant_ to make such a finding with Seal Team 6 visiting their homes at 3 AM.
I pray when Trump is reelected he makes no such moves.
project 2025
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.
Absurd, to the point of being hilarious. Could a president use this (immunity and nukes) to become an absolute ruler?
Edit: a failsafe is there, see sibling comment: https://news.ycombinator.com/item?id=40849357
Congress, through impeachment.
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.
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.
[0] https://en.m.wikipedia.org/wiki/Impeachment_in_the_United_St...
If the president is able to bring physical power to bear, then it matters little what the law says anyway.
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.
Obama drone wars would be the one to look at.
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.
It's an immunity only for official acts, not unofficial ones.
> 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.
https://www.scotusblog.com/2024/07/justices-rule-trump-has-s...
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.
https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
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.
He also passed an EO afterward which set up a legal framework retroactively justifying it.
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.
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 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).
Qualified immunity is unconstitutional
What does the judge who reviews the case think?
That's literally the only thing preventing that scenario from playing out.
"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.
Motive can be used to defeat the presumptive immunity for an official act.
> 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.
[0] https://abcnews.go.com/Politics/seal-team-6-assassination-hy...
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?!
Results in opponents discrediting themselves.
Brilliant.
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.
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)
Is it permissible to disobey an order that you merely believe is unconstitutional? What happens when your superior asserts that it is constitutional?
> 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.
SCOTUS explicitly says you cannot question the motive of a presidents actions when making a determination for what is protected and not.
> 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.
> 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)?
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.
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.
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.
https://www.investopedia.com/terms/b/businessjudgmentrule.as...
(I can't tell whether the OP was confused by this, but the linked Tweet has enough people being confused by it to make it worth mentioning.)
https://www.amnestyusa.org/updates/is-it-legal-for-the-u-s-t...
Yes.
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.
That's what this decision did.
[1]: https://www.cadc.uscourts.gov/internet/opinions.nsf/1AC5A0E7...
[2]: https://campaignlegal.org/press-releases/new-campaign-legal-...
I honestly, need to unplug from news, and just focus on nature.
(I'd like to think that there's no way it's an "official act" of a president, but again, IANAL.)
But practically they've made the President a dictator, so yeah who's going to stop him if he wins.
The court is granting him blanket immunity on one count, and the rest the prosecutors need to clarify that the crimes were outside of the duty of his office.
> Donald Trump’s legal team will likely use Monday’s SCOTUS opinion as they challenge the New York hush money criminal verdict itself on appeal, a source familiar with their thinking tells CNN.
> Trump’s team thinks the SCOTUS option could be used to challenge portions of Hope Hicks testimony as well as some of the tweets entered in as evidence, according to the source familiar.
> CNN earlier reported the Trump team sees the opinion as “a major victory” because in addition to using it to try to get charges tossed, they can also use this opinion to get evidence related to official acts tossed in all cases — not just federal — which can hurt prosecutors’ ability to prove what charges are left.
The actual ruling: https://prod-i.a.dj.com/public/resources/documents/SCOTUSTRU...
We are in an age where the media cannot be trusted. Gotta read the source documents.
What’s specifically new here is the claim by SCOTUS that the President also has post-presidency immunity. It used to be you could use it as a defense whereby you provide evidence that you weren’t acting corruptly within your official acts. Now it’s a blanket immunity - a trial can’t even be brought and your motivations are largely irrelevant and immune from examination.
> While the Court acknowledged that the principle of executive privilege did exist, the Court would also directly reject President Nixon's claim to an "absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances."
https://en.wikipedia.org/wiki/United_States_v._Nixon
This ruling directly contradicts and overturns US v Nixon which is a blaring signal considering just how criminally we now know Nixon, his administration, and his reelection committee was behaving.
Has that been an issue so far?
i sincerely doubt that.
The guy who did it’s probably about to be President again and just got a lot more legal cover.
Folks need to read up on how democracies fail. Shit’s getting real iffy here.
> democracies fail
Is this the democracy where we need to stop voters from voting or give them incomplete information to avoid making bad choices?
Very narrowly, and not but for the uncharacteristic acts of a small number of others like Mike Pence. It could have gone very differently very easily.
Trump would argue he didn't lose the election, and would still be in power if he had his way. I think we should be making it harder, not easier, for the democratic process to be subverted.
Only because his coup failed. That's a very important fact.
What is your view of the events that transpired?
As far as "coup" - I'd say summoning thousands of folks to the Capitol, then not calling for dispersal once they have physically breached the perimeter of the building where the Congress and Vice President are assembled to certify the election results (where he lost), plus (arguably, more importantly) engaging in a campaign to establish networks of alternative electors in key swing states that do not match the popular votes in those states, then I'd say "coup" (granted, with a "attempted" modifier would be more accurate) would be a reasonable word to use for the events that transpired.
All the "will you peacefully cede power" talk before the election sounded like alarmist clickbait, but he was weirdly resistive to admitting he lost, and there are a lot of batshit crazy people who seem to follow whatever he says (see also, Jan 6).
[edit] the score on this post proves its own point. Its vacillated between +4 and 0 since I posted it an hour ago, and there are plenty of hyperbolic people in the replies. Being "OMG THE WORLD IS ENDING" about everything just adds noise that makes it hard to identify truly bad things.
On a site that ostensibly has an ethos of "be curious, not ideological," it's sad to see so many people peering only through the lenses of ideology and panic.
Whatever else he did was fairly normal bad-president stuff. Like, pretty bad, but not the end of the Republic or anything. The attempts to overturn the election, and the utter failure of the state to swiftly punish same, are some real “this may not be the end, but you can see it from here” stuff.
Democratic states tend to vote in the person who ends them. It’s clear now that that’s a thing we’re very much at risk of doing. I don’t even necessarily mean a second Trump term, just anyone who follows his blueprint. The voters evidently don’t see that as disqualifying, and the system’s displayed an inability to respond to such attempts.
The sharks may or may not be circling yet, but there’s blood in the water.
Highlights: - The DoJ reports directly to the President - No term limits for FBI head - Arrest and prosecute DAs he doesn't agree with - Use the military to enforce domestic laws on citizens
So I would take this one seriously.
okay, buddy. we get it. you're excited and it's making you sound Trumpian.
as to what I actually feel, I am stating that the parent comment (as sibling comments have pointed out as well) seems completely oblivious to Jan 6 and the subsequent criminal events/statements since then.
Hope that helps your reading/rage issue, have a good day.
That is an understatement. His entire platform is that he won every state including Minnesota and New York. This is a personal revenge campaign made up around a lie.
If and when Trump gets elected how long do you think it will take the Supreme Court to differentiate between an 'official' act and a 'non-official' act when Trump acts illegally in 2025?
Throw in the recent ruling increasing the difficulty of proving bribery and things are looking grim ( IMHO ).
The problem isn't that Roe was overturned - it's that our legislative system is so dysfunctional that law is being settled in the other branches of government.
Comrade, in the United States, we have 9 supreme court justices.
If you read the complete ruling, the justices work to clarify how "official" and "unofficial" acts apply to the case at hand. For example, many of the conversations had with Pence and the AG are considered off limits for prosecution as they are "official." Other charges, however, can stick if the lower court decides:
> Trump can point to no plausible source of authority enabling the President to not only organize alternate slates of electors but also cause those electors—unapproved by any state official—to transmit votes to the President of the Senate for counting at the certification proceeding, thus interfering with the votes of States’ properly appointed electors
The damning part starts on page 27 of the ruling[0].
[0]: https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
for posterity, this is "the blueprint for a [sic] American dictatorship" to which you refer:
https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
exceedingly doubtful.
I hope you read Justice Sonia Sotomayor’s very important dissent while you're at it.
Some people actually have a clue what's going on. It takes work, you can't just lazily consume nonsense from journalists.
What a sad shameless age. It's embarrassing as hell having these useless Federalist Society shills tearing down the respectability of this nation. Utterly brazen. How 40%-50% of the population can be so on board with this, be so excited & happy to see such endless Calvinball for their team is beyond imagining. It feels like liberals always are hungry for more or different from our own, will criticize our representatives endlessly, but there's an unmatched purity of boosterism for any win any win at all no matter what that's totally taken half the country, that there's no system of moderation or self assessment left.