I've only read the syllabus, so take this with a grain of salt, but I have yet to see anyone explain why, under this framework, POTUS wouldn't be immune if he/she convened the National Security Council, cooked up a plan to assassinate a political opponent, and implemented it. The dissent says that's now on the table. Is it? If not, why not? And if so, it's hard to escape the conclusion that we're sleepwalking into potentially very dangerous territory.
Under the Roberts opinion, the hypothetical assassination would be considered "official conduct" and the President would be "at least presumptively immune from prosecution for such conduct," but the "question [would then become] whether that presumption of immunity is rebutted under the circumstances."
Roberts doesn't give much guidance on that latter question, but I'd expect the President's motive would be relevant. (Note that there -is- a prohibition against inquiry into motive, but it only applies to the determination of official conduct versus unofficial conduct — not to this rebuttal question.)
“What the prosecutor may not do, however, is admit testimony or private records of the President or his advisors probing the official act itself.” Page 32 footnote 4.
Thanks for the citation. That footnote only applies in the context of "charges that purport to be based only on [the President's] unofficial conduct," as I said.
Your interpretation really doesn't make any sense, by the way. How could courts decide whether the presumption of immunity attaching to an official act "is rebutted under the circumstances" — as the Supreme Court clearly directs them to do — if they couldn't probe the act itself?
Bullshit. Sotomayor is spot on. After all, every determination about what's official or unofficial is going to get appealed and appealed until it reaches the very same group of sociopaths that decided this case to begin with. How do you think that's gonna turn out?
If we treat the Take Care clause seriously this isn't an especially difficult question doctrinally, even if proving scienter might present some case-by-case complications.
But isn't part of the upshot that we can't delve into the scienter aspect? That's what I'm concerned about - that this opinion puts a pretty broad cloak around internal deliberations that go into making these sorts of decisions. As I understand it (again, secondhand at this point), ACB's concurrence/partial dissent focuses on this problem. And again, because I'm coming at this without having read the entire thing, I'm wide open to a persuasive argument as to why I and the dissent are both wrong about this.
In support of your point, here's the relevant language from the Roberts 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 official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests 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.'"
I was about to ask a similar question - couldn't he just tell the Attorney general to kill the opponent? Or arrest the opponent and put them in Guantanamo? Talking to the AG is an official act, after all. And no one is getting impeached for anything they do; Senate is too close for that.
Without having read the finer details (which I'm sure I can find much to quibble with), this outcome strikes me as obviously required under the traditional separation of powers, lest Congress be authorized to indirectly constrain the Executive via criminal law in ways it cannot do directly, and it seemed incredibly shortsighted for the lower courts to categorically reject any doctrine of Presidential immunity rather than delving deeper into why it would not inoculate Trump here (as it shouldn't).
And in the inverse of Morrison v. Olson, I'm sure democrats will be sounding a different tune on the wisdom of this decision within a decade after the shoe is on the other foot.
I think I generally agree with you, but I will say this: I wish there were more of a textual anchor for rulings of this nature, as opposed to just "constitutional structure." Critics of today's decision will say that it's all "made up."
I think the textual anchors should serve as a basis for the core constitutional duties that form the basis for immunity in a particular case. The paradigmatic example I keep thinking of is that the President's exercise of his power as commander in chief almost certainly requires taking actions that, on their face, could be construed as satisfying the elements of a murder statute, but given that textual commitment such statutes cannot be read that broadly without abrogating the CoC clause.
Without having read all of the briefing throughout this case, it's not at all clear to me what specific Article II authority Trump is claiming as the basis for his immunity, which makes it all the more perplexing that the lower courts didn't clearly articulate a "you lose under your own theory" basis for holding against him.
As CIC, presidents approve such conduct-long before Trump authorized the taking out of an Iranian terror master, it is well known that FDR authorized the mission that resulted in the shooting down of Admiral Yamamoto in WW2.
You could write a pretty thick book predicated on the actions of Presidents that were extremely important and conducted without either congressional or judicial oversight going back as far as the Louisana Purchase, the critical military strategies in the Civil War, and Lend Lease, and the dropping of 2 atomic bombs as well as supporting whatever military commanders deemed the best strategy both in the Civil War and WW2. . It was only after Vietnam and Watergate that Congress reigned in the powers of the President with constitutionally dubious legislation such as the War Powers Act and Special Prosecutors
“It is a mistake for Americans to lose sight of the larger issue,” Ken Frazier, the former C.E.O. of Merck, told The Financial Times. “Returning President Trump to the White House will threaten our democracy and severely weaken our economy.”
Trump winning a democratic election threatens “our democracy.”
I’m not totally clear on the point you’re making, but it seems rooted in an assumption that Trump is NOT a threat to democracy (despite asking elected officials (and Pence) to ask them to change election results and comments like “dictator for a day”). Could you make that argument? That’s plainly the biggest gulf between us; if you can plausibly argue that Trump is pro democracy in intent and effect, I’ll gladly concede to your point.
Pretty well considering Fischer and Trump + Trump being the GOP nominee. Would you say we’ve fully closed the door on democratic backsliding with J6 prosecutions?
I've read, but not parsed, the entire opinion. I would start with Justice Jackson's dissent, then the syllabus, Justice Barrett's dissent in part, the majority opinion and then Justice Sotomayor's dissent. Justice Thomas is off-point, but an effort to grease the skids for finding the use of special counsel unconstitutional, inviting Judge Cannon to go for it.
Justice Jackson cuts to the chase—the majority creates absolute immunity for "core" powers, presumptive immunity for "official acts" and no immunity for unofficial acts is they can be disentangled. Justice Barrett rejects the majority's holding that official acts may not even be introduced as evidence to provide elements of the crime charged as unofficial acts. Justice Sotomayor takes notice of the actual underlying factual allegations to show that the case is not an exercise of hypothetical chilling effects on a bold and vigorous chief executive (even assuming that's necessarily a good thing).
Sadly, the majority opinion unleashes a president to engage in criminal activity - including ordering the assassination of a political rival or ordering the military to seize voting machines - without risk of criminal accountability as these acts would fall within the definition of official acts giving rise to a presumption of immunity and severe restrictions on evidence that could be used to rebut such a presumption. This court, under Roberts’ “leadership,” has elevated the president to sovereign
Presidents must be immune in their official capacity. There are tools available to remove them from power if they aren't fit for the role. You just can't stomach this decision because it is Trump. Justice should be blind.
I don't understand why everyone is so worried about the president suddenly being "above the law". The check on the president has never been the threat of prosecution but what the people in the chain of command and congress will go along with -- after all if they'll go along with shooting who you want they'll shoot the judiciary too.
Prosecution is only what happens after the fact if you lose power and it's relationship to deterrence in this situation is complicated.
I think people are seeing this somehow as saying it's ok or not bad rather than as just an attempt to balance two practical dangers regarding incentives. I have my issues with the way the court balanced those -- I'd have preferred more ambiguity -- but i don't understand why everyone is acting like it's some horror (especially re: Trump bc he'll either wave the charges away or won't matter in a few months).
But it isn't. Anyone planning on making themselves dictator is betting they win and when they win they don't go to jail whatever the judges said before.
Will it make him more likely to try on the margin? Very unclear in general and for Trump in particular I expect it does the opposite.
Trump's 70 something so 5 years in prison or 50 is irrelevant so if he thinks he's likely to be prosecuted and convicted for 5 years if he leaves office he might as well go big and go for a full coup (OTOH if he doesn't think he's going to jail why take the risk he'll he shot, that SCOTUS will decide this is actually bucket 2 or change their mind and take the reputation hit and trouble).
Basically in a second term I think trump is more likely to coup because he fears prosecution if he doesn't. Gets more unclear for other future leaders but impact isn't clear one way or the other.
It's boiling frogs. Slow boil. Trump pushes the limits and pushes and pushes. So he will use anything that gives him an inch. He will use the SCOTUS decision to declare he was right all along, he's immune b/c he was president. He'll distort it and repeat it to his followers, who will then go to the polls and to the streets (and worse -- as I've already been told "we" are "coming for you").
That argument doesn't work for a number of reasons.
First, because you could just as easily have said "a holding that presidents (and by implication their staff implementing those bucket 1 things) aren't immune will be used by Trump to prosecute his potential political opponents to erode democracy etc"
Both immunity and the lack of it can be abused so you need to explain why this version is more of a risk than the opposite that Trump can abuse by prosecuting Biden admin officials for doing their jobs as the GOP already wants to do. I fear the later more.
Second because your very argument shows it doesn't matter. If his supporters believe he won the election he could tell them this decision said pretty much whatever he wants no matter what.
If it went thr other way he can explain it shows the whole system is corrupt so he needs to take control or that SCOTUS is saying it's cool to prosecute Biden officials for border choices or whatever other theory. Or just fucking lie and say it's being misreported by the liberal media.
Besides, it's generally easier and more effective to give a direct claim of right -- I get to do this because I won the election or to vindicate Z than to twist an immunity argument into a positive reason for doing something.
Your "just as easily" remark doesn't make any sense to me. If a president is NOT immune, how could Trump use that to prosecute his political opponents?
In any case, it doesn't matter whether my or your argument works or doesn't work according to your or my or any legal standard. Trump will use whatever he can use. He will use this to say what benefits him, of course.
The immunity decision is not necessarily to his advantage, though, because it will likely result in evidentiary hearings during which the public will get to learn some of the critical facts of his illegal activities. And perhaps that doesn't matter either b/c his followers don't care about those facts.
Because a presidents political opponents tend to be people who have worked in previous presidential administrations sometimes even previous presidents/VPs (who will also get immunity). Indeed those are the people one that people often like to prosecute for daring to have opposed you and won or just to rule up the base. Indeed I fear Trump will try to prosecute Biden in revenge.
But even for current opponents who have been mere cabinet secretaries and chiefs of staffs etc SCOTUS has made it clear they don't intend to allow much congressional criminalization of executive branch activities in this decision and they aren't going to say "ok fine you can't prosecute the president for ordering X but you can prosecute his chief of staff and everyone else for going along with X.". The immunity may be slightly narrower but they clearly intend to say here that the congress can't interfere with executive powers and that will protect those who are wielding those powers for him to a significant degree (unitary executive and all that).
And this is literally the kind of prosecution the fringe MAGA folks are frothing for -- we'll prosecute them for abandoning the border or for appointing special prosecutors 'illegally' (the prosecutor themselves is already covered by prosecutorial immunity) and a host of other grievences.
A litigator for 35 years and a curse observer of record myself encryptor news, I have to say that the decision does not surprise me, because I always bookcase would be remanded her further proceedings. But I am at a total loss to describe the analytical framework of the lower court should use to determine what I ask our core constitutional powers what are presumptively privilege, what ask our official versus unofficial and so forth.
There is good reason to believe that this is a formally required position, but a bad outcome. A President could face serious criminal repercussions for virtually any decision they take as President, constrained only by the restraint of their successor, with any other result. If Trump won in 2024 and decided to prosecute Biden for any number of random claims, that would be allowed in theory. If he decided to prosecute Obama for the assassination of Al-Awlaki, he could. He might lose the prosecution in the end, but even having the case would be a nightmare, including for Obama himself.
At the same time, this case leaves open many poor avenues for the future. This isn’t limited to the potential assassination, either. Trump using the DOJ to influence election results is now seemingly above the law. Even if impeachment were possible, the time taken to gather evidence of the plot and bring an impeachment to the fore is short and may lend itself to impossibility. And even then, there is virtually no punishment for trying. The inability to even inquire as to the motives of the President makes the inquiry into whether an act was done officially or not harder.
The formalist result here seems correct. But the real world implications seem concerning. While the Court is right to note that it must formulate a rule for the ages and not for this one case, I’m not sure they drew the correct line. But I’m equally not sure where the line should be.
I think your point is important—and, in my opinion, correct. There's a tendency to think that if the outcome is bad, it CAN'T be the law. For better or worse, many bad outcomes are permitted—and maybe even required by—the laws of the United States, including of course the Constitution.
(And yes, I realize there are canons of construction like "avoid absurd results." But an "absurd result" can't just be "any result we don't like.")
Seriously. I have assumed that readers of this publication would resort to logic when arguing their point, would lead with facts and would stay away from exaggeration. Very disappointing.
The readers of this publication likely wish to interact with well-meaning folks with valid arguments, not cult members throwing out fake rightwing talking point after rightwing talking point. Just skimming the comments I’ve seen J6 police deaths question (you know exactly who they are), Biden and Obama insulted…. Keep it up with all those buzzwords and you’ll earn that new toaster in no time.
"Presumptive Immunity for Official Acts. The Court declared that “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.” In short, if the President acts officially, as President, that act is immune—but a prosecutor can still proceed if they can show criminalizing that type of conduct will not hinder the Presidential office."
Murdering political opponents is not allowed and can be prosecuted.
“The President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.” ...Only for when a president exercises explicit authority under Article Two of the Constitution."
David, now that I have had an opportunity to read the entire opinion, it is clear to me that this is a major win for the Biden CAMPAIGN. Everyone is looking at this the wrong way. Putting aside the legal merits of the majority's ruling, do matter how the court ruled, it was unlikely that the case could have begun before the election. And certainly it would not have concluded before the election. So there was no chance that the case could have had any impact upon the voters.
But now the district court will conduct an evidentiary hearing. And much like a suppression hearing where the government has the burden of demonstrating that a warrantless search was constitutional, the government will have the opportunity to present its case to the American public way before the election. How does this not help Biden? How is this not devastating for Trump's campaign, dealing day after day with testimony of his wrongdoing.
It seems to me there must be a distinction between an official and a political act. A talk with the Acting AG about voting rights or bank robbery is part of a president’s official work. Talking with the Acting AG about how to stop an election from being certified is a *political* act. Speaking to the VP about not certifying an election is a political act, not related to the presidency but only to the president as a political candidate. Seems a bit akin to members of Congress not using their office phones or government resources to request political donations, instead having to go offsite. The president should not be using government resources (AG, VP) for his political purposes.
If it is true that if a president acts to alter electoral results will be viewed as “official acts” and therefore immune from criminal prosecution, would this president’s opponent in the election have similar immunity for similar actions? And if so, doesn’t this put the president above the law that applies to his opponent?
Will presidents find ways to enrich themselves criminally via actions which could be disguised as “official acts” and enjoy immunity?
I am not a lawyer and appreciate the analysis, but it certainly appears this opinion opens up a giant No. 10 can of worms…
No one knows what the immunity decision means and we may never know if Trump is elected. If he is not elected, it may take a few years to know the extent of his criminal exposure because whatever rulings the district court makes, will end up again before the Supremes. So it is all speculation. BUT
We will know the impact of the court's civil rulings very soon. I will write a lengthy analysis on that topic, not addressing the legal merits--for which there are far better qualified on this blog to opine on such questions--but the practical implications for the courts. What federal regulation or statute cannot be attacked as ambiguous? How many plaintiffs have been injured long after a rule was enacted? How many legal challenges would it take to grind the federal courts to a halt? Will the enforcement of rules be suspended pending decisions in hundreds, thousands of cases? Even assuming Biden is reelected, can Congress overturn these rulings and preserve the Administrative State? Are we in for more ideological gridlock?
This is the critical guideline for a prosecutor and trial court:
"In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquirywould risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegationof improper purpose, thereby intruding on the Article II interests that immunity seeks to protect.,,,, Nor may courts deem an action unofficial merely because
it allegedly violates a generally applicable law.....Applying a criminal prohibition to
the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions. It is ultimately the Government’s burden to rebut the
presumption of immunity"
This clearly reduces the scope of the inquiry by the Special Prosecutor
I've only read the syllabus, so take this with a grain of salt, but I have yet to see anyone explain why, under this framework, POTUS wouldn't be immune if he/she convened the National Security Council, cooked up a plan to assassinate a political opponent, and implemented it. The dissent says that's now on the table. Is it? If not, why not? And if so, it's hard to escape the conclusion that we're sleepwalking into potentially very dangerous territory.
The Sotomayor dissent is incorrect.
Under the Roberts opinion, the hypothetical assassination would be considered "official conduct" and the President would be "at least presumptively immune from prosecution for such conduct," but the "question [would then become] whether that presumption of immunity is rebutted under the circumstances."
Roberts doesn't give much guidance on that latter question, but I'd expect the President's motive would be relevant. (Note that there -is- a prohibition against inquiry into motive, but it only applies to the determination of official conduct versus unofficial conduct — not to this rebuttal question.)
Roberts expressly states that internal communications re official conduct may not be admitted into evidence at trial.
It can be admitted into evidence in a trial regarding official conduct — which is what we're discussing here.
It can't be admitted in a trial regarding unofficial conduct, but that's irrelevant to this particular scenario.
“What the prosecutor may not do, however, is admit testimony or private records of the President or his advisors probing the official act itself.” Page 32 footnote 4.
Thanks for the citation. That footnote only applies in the context of "charges that purport to be based only on [the President's] unofficial conduct," as I said.
Your interpretation really doesn't make any sense, by the way. How could courts decide whether the presumption of immunity attaching to an official act "is rebutted under the circumstances" — as the Supreme Court clearly directs them to do — if they couldn't probe the act itself?
Bullshit. Sotomayor is spot on. After all, every determination about what's official or unofficial is going to get appealed and appealed until it reaches the very same group of sociopaths that decided this case to begin with. How do you think that's gonna turn out?
If we treat the Take Care clause seriously this isn't an especially difficult question doctrinally, even if proving scienter might present some case-by-case complications.
But isn't part of the upshot that we can't delve into the scienter aspect? That's what I'm concerned about - that this opinion puts a pretty broad cloak around internal deliberations that go into making these sorts of decisions. As I understand it (again, secondhand at this point), ACB's concurrence/partial dissent focuses on this problem. And again, because I'm coming at this without having read the entire thing, I'm wide open to a persuasive argument as to why I and the dissent are both wrong about this.
In support of your point, here's the relevant language from the Roberts 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 official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests 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.'"
I was about to ask a similar question - couldn't he just tell the Attorney general to kill the opponent? Or arrest the opponent and put them in Guantanamo? Talking to the AG is an official act, after all. And no one is getting impeached for anything they do; Senate is too close for that.
Without having read the finer details (which I'm sure I can find much to quibble with), this outcome strikes me as obviously required under the traditional separation of powers, lest Congress be authorized to indirectly constrain the Executive via criminal law in ways it cannot do directly, and it seemed incredibly shortsighted for the lower courts to categorically reject any doctrine of Presidential immunity rather than delving deeper into why it would not inoculate Trump here (as it shouldn't).
And in the inverse of Morrison v. Olson, I'm sure democrats will be sounding a different tune on the wisdom of this decision within a decade after the shoe is on the other foot.
I think I generally agree with you, but I will say this: I wish there were more of a textual anchor for rulings of this nature, as opposed to just "constitutional structure." Critics of today's decision will say that it's all "made up."
I think the textual anchors should serve as a basis for the core constitutional duties that form the basis for immunity in a particular case. The paradigmatic example I keep thinking of is that the President's exercise of his power as commander in chief almost certainly requires taking actions that, on their face, could be construed as satisfying the elements of a murder statute, but given that textual commitment such statutes cannot be read that broadly without abrogating the CoC clause.
Without having read all of the briefing throughout this case, it's not at all clear to me what specific Article II authority Trump is claiming as the basis for his immunity, which makes it all the more perplexing that the lower courts didn't clearly articulate a "you lose under your own theory" basis for holding against him.
As CIC, presidents approve such conduct-long before Trump authorized the taking out of an Iranian terror master, it is well known that FDR authorized the mission that resulted in the shooting down of Admiral Yamamoto in WW2.
You could write a pretty thick book predicated on the actions of Presidents that were extremely important and conducted without either congressional or judicial oversight going back as far as the Louisana Purchase, the critical military strategies in the Civil War, and Lend Lease, and the dropping of 2 atomic bombs as well as supporting whatever military commanders deemed the best strategy both in the Civil War and WW2. . It was only after Vietnam and Watergate that Congress reigned in the powers of the President with constitutionally dubious legislation such as the War Powers Act and Special Prosecutors
Isn't the entirety of Article II the textual anchor here?
You don't need additional text saying that Article II supersedes federal statutory law — that was decided in Marbury v. Madison.
As appropriately stated by Justice Sotomayor, "With fear for our democracy, I dissent."
What does it even mean?
DK - Justice Sotomayor explained this closing statement within her dissent rather well.
“Our democracy” is left-wing code for “election results I want”
Literally in the Financial Times this morning:
“It is a mistake for Americans to lose sight of the larger issue,” Ken Frazier, the former C.E.O. of Merck, told The Financial Times. “Returning President Trump to the White House will threaten our democracy and severely weaken our economy.”
Trump winning a democratic election threatens “our democracy.”
I’m not totally clear on the point you’re making, but it seems rooted in an assumption that Trump is NOT a threat to democracy (despite asking elected officials (and Pence) to ask them to change election results and comments like “dictator for a day”). Could you make that argument? That’s plainly the biggest gulf between us; if you can plausibly argue that Trump is pro democracy in intent and effect, I’ll gladly concede to your point.
Someone’s forgetting who stormed the Capitol to overturn a democratic election 🤔
How’d that go for them?
Pretty well considering Fischer and Trump + Trump being the GOP nominee. Would you say we’ve fully closed the door on democratic backsliding with J6 prosecutions?
We are governed by and live in a constitutional republic, not "our democracy"
Our founders referred to it as a republic—and a representative democracy. So your argument is with the founders.
I'd like to make some pithy comment that sums up this nightmare, but I can't. Did I expect this? Well, yes. Am I shocked? Yes. Yes, I am.
I've read, but not parsed, the entire opinion. I would start with Justice Jackson's dissent, then the syllabus, Justice Barrett's dissent in part, the majority opinion and then Justice Sotomayor's dissent. Justice Thomas is off-point, but an effort to grease the skids for finding the use of special counsel unconstitutional, inviting Judge Cannon to go for it.
Justice Jackson cuts to the chase—the majority creates absolute immunity for "core" powers, presumptive immunity for "official acts" and no immunity for unofficial acts is they can be disentangled. Justice Barrett rejects the majority's holding that official acts may not even be introduced as evidence to provide elements of the crime charged as unofficial acts. Justice Sotomayor takes notice of the actual underlying factual allegations to show that the case is not an exercise of hypothetical chilling effects on a bold and vigorous chief executive (even assuming that's necessarily a good thing).
Sadly, the majority opinion unleashes a president to engage in criminal activity - including ordering the assassination of a political rival or ordering the military to seize voting machines - without risk of criminal accountability as these acts would fall within the definition of official acts giving rise to a presumption of immunity and severe restrictions on evidence that could be used to rebut such a presumption. This court, under Roberts’ “leadership,” has elevated the president to sovereign
Please stop with the hyperbole.
Not hyperbole - that’s Roberts’ paradigm.
Presidents must be immune in their official capacity. There are tools available to remove them from power if they aren't fit for the role. You just can't stomach this decision because it is Trump. Justice should be blind.
Except those tools (also known as House Republicans) refuse to do so.
says the child referring to "TDS"
TDS is real and ad hominem attacks don't make your argument valid.
Which president authorized the use of the IRS to take down the publisher of a major newspaper? It was none other than FDR
Trump’s chief of staff said he wanted the IRS to investigate Comey and McCabe (and both got audited) - https://www.nytimes.com/2022/11/13/us/politics/trump-irs-investigations.html?smid=nytcore-ios-share&referringSource=articleShare&sgrp=c-cb
Unfortunately presidents of both parties have not hesitated to use the IRS as a weapon against their adversaries
I don't understand why everyone is so worried about the president suddenly being "above the law". The check on the president has never been the threat of prosecution but what the people in the chain of command and congress will go along with -- after all if they'll go along with shooting who you want they'll shoot the judiciary too.
Prosecution is only what happens after the fact if you lose power and it's relationship to deterrence in this situation is complicated.
I think people are seeing this somehow as saying it's ok or not bad rather than as just an attempt to balance two practical dangers regarding incentives. I have my issues with the way the court balanced those -- I'd have preferred more ambiguity -- but i don't understand why everyone is acting like it's some horror (especially re: Trump bc he'll either wave the charges away or won't matter in a few months).
Because Trump will use it to gain more power for himself, to make himself into a dictator. That is the real danger.
But it isn't. Anyone planning on making themselves dictator is betting they win and when they win they don't go to jail whatever the judges said before.
Will it make him more likely to try on the margin? Very unclear in general and for Trump in particular I expect it does the opposite.
Trump's 70 something so 5 years in prison or 50 is irrelevant so if he thinks he's likely to be prosecuted and convicted for 5 years if he leaves office he might as well go big and go for a full coup (OTOH if he doesn't think he's going to jail why take the risk he'll he shot, that SCOTUS will decide this is actually bucket 2 or change their mind and take the reputation hit and trouble).
Basically in a second term I think trump is more likely to coup because he fears prosecution if he doesn't. Gets more unclear for other future leaders but impact isn't clear one way or the other.
It's boiling frogs. Slow boil. Trump pushes the limits and pushes and pushes. So he will use anything that gives him an inch. He will use the SCOTUS decision to declare he was right all along, he's immune b/c he was president. He'll distort it and repeat it to his followers, who will then go to the polls and to the streets (and worse -- as I've already been told "we" are "coming for you").
That argument doesn't work for a number of reasons.
First, because you could just as easily have said "a holding that presidents (and by implication their staff implementing those bucket 1 things) aren't immune will be used by Trump to prosecute his potential political opponents to erode democracy etc"
Both immunity and the lack of it can be abused so you need to explain why this version is more of a risk than the opposite that Trump can abuse by prosecuting Biden admin officials for doing their jobs as the GOP already wants to do. I fear the later more.
Second because your very argument shows it doesn't matter. If his supporters believe he won the election he could tell them this decision said pretty much whatever he wants no matter what.
If it went thr other way he can explain it shows the whole system is corrupt so he needs to take control or that SCOTUS is saying it's cool to prosecute Biden officials for border choices or whatever other theory. Or just fucking lie and say it's being misreported by the liberal media.
Besides, it's generally easier and more effective to give a direct claim of right -- I get to do this because I won the election or to vindicate Z than to twist an immunity argument into a positive reason for doing something.
Your "just as easily" remark doesn't make any sense to me. If a president is NOT immune, how could Trump use that to prosecute his political opponents?
In any case, it doesn't matter whether my or your argument works or doesn't work according to your or my or any legal standard. Trump will use whatever he can use. He will use this to say what benefits him, of course.
The immunity decision is not necessarily to his advantage, though, because it will likely result in evidentiary hearings during which the public will get to learn some of the critical facts of his illegal activities. And perhaps that doesn't matter either b/c his followers don't care about those facts.
Because a presidents political opponents tend to be people who have worked in previous presidential administrations sometimes even previous presidents/VPs (who will also get immunity). Indeed those are the people one that people often like to prosecute for daring to have opposed you and won or just to rule up the base. Indeed I fear Trump will try to prosecute Biden in revenge.
But even for current opponents who have been mere cabinet secretaries and chiefs of staffs etc SCOTUS has made it clear they don't intend to allow much congressional criminalization of executive branch activities in this decision and they aren't going to say "ok fine you can't prosecute the president for ordering X but you can prosecute his chief of staff and everyone else for going along with X.". The immunity may be slightly narrower but they clearly intend to say here that the congress can't interfere with executive powers and that will protect those who are wielding those powers for him to a significant degree (unitary executive and all that).
And this is literally the kind of prosecution the fringe MAGA folks are frothing for -- we'll prosecute them for abandoning the border or for appointing special prosecutors 'illegally' (the prosecutor themselves is already covered by prosecutorial immunity) and a host of other grievences.
A litigator for 35 years and a curse observer of record myself encryptor news, I have to say that the decision does not surprise me, because I always bookcase would be remanded her further proceedings. But I am at a total loss to describe the analytical framework of the lower court should use to determine what I ask our core constitutional powers what are presumptively privilege, what ask our official versus unofficial and so forth.
There is good reason to believe that this is a formally required position, but a bad outcome. A President could face serious criminal repercussions for virtually any decision they take as President, constrained only by the restraint of their successor, with any other result. If Trump won in 2024 and decided to prosecute Biden for any number of random claims, that would be allowed in theory. If he decided to prosecute Obama for the assassination of Al-Awlaki, he could. He might lose the prosecution in the end, but even having the case would be a nightmare, including for Obama himself.
At the same time, this case leaves open many poor avenues for the future. This isn’t limited to the potential assassination, either. Trump using the DOJ to influence election results is now seemingly above the law. Even if impeachment were possible, the time taken to gather evidence of the plot and bring an impeachment to the fore is short and may lend itself to impossibility. And even then, there is virtually no punishment for trying. The inability to even inquire as to the motives of the President makes the inquiry into whether an act was done officially or not harder.
The formalist result here seems correct. But the real world implications seem concerning. While the Court is right to note that it must formulate a rule for the ages and not for this one case, I’m not sure they drew the correct line. But I’m equally not sure where the line should be.
I think your point is important—and, in my opinion, correct. There's a tendency to think that if the outcome is bad, it CAN'T be the law. For better or worse, many bad outcomes are permitted—and maybe even required by—the laws of the United States, including of course the Constitution.
(And yes, I realize there are canons of construction like "avoid absurd results." But an "absurd result" can't just be "any result we don't like.")
The SCOTUS just ruled that Biden has the right to assassinate Trump and cancel the election!
Biden wouldn't be the first president to order murder of American Citizens. Obama, for example...
This is true, Trump ordered the J6 insurrection that killed and injured multiple police
Can you name even one police officer who was killed on January 6th?
There were none. Amazing how the lawfare folks from DC retreat to NeverNever Land.
Seriously. I have assumed that readers of this publication would resort to logic when arguing their point, would lead with facts and would stay away from exaggeration. Very disappointing.
The readers of this publication likely wish to interact with well-meaning folks with valid arguments, not cult members throwing out fake rightwing talking point after rightwing talking point. Just skimming the comments I’ve seen J6 police deaths question (you know exactly who they are), Biden and Obama insulted…. Keep it up with all those buzzwords and you’ll earn that new toaster in no time.
Explanation to show how deranged this comment is:
"Presumptive Immunity for Official Acts. The Court declared that “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.” In short, if the President acts officially, as President, that act is immune—but a prosecutor can still proceed if they can show criminalizing that type of conduct will not hinder the Presidential office."
Murdering political opponents is not allowed and can be prosecuted.
“The President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.” ...Only for when a president exercises explicit authority under Article Two of the Constitution."
Copied from Jeff Childers's Substack post.
David, now that I have had an opportunity to read the entire opinion, it is clear to me that this is a major win for the Biden CAMPAIGN. Everyone is looking at this the wrong way. Putting aside the legal merits of the majority's ruling, do matter how the court ruled, it was unlikely that the case could have begun before the election. And certainly it would not have concluded before the election. So there was no chance that the case could have had any impact upon the voters.
But now the district court will conduct an evidentiary hearing. And much like a suppression hearing where the government has the burden of demonstrating that a warrantless search was constitutional, the government will have the opportunity to present its case to the American public way before the election. How does this not help Biden? How is this not devastating for Trump's campaign, dealing day after day with testimony of his wrongdoing.
I agree; I had this thought as well. And I see from Twitter that others did too. Great minds think alike?
The evidentiary hearing, which could involve a parade of witnesses recreating January 6, could be a boon for the Biden (or maybe not Biden?) campaign.
May I quote you (by adding your comment to my piece)? (https://medium.com/@jennifer.vanbergen/the-trump-case-immunity-decision-96907433880c)
It seems to me there must be a distinction between an official and a political act. A talk with the Acting AG about voting rights or bank robbery is part of a president’s official work. Talking with the Acting AG about how to stop an election from being certified is a *political* act. Speaking to the VP about not certifying an election is a political act, not related to the presidency but only to the president as a political candidate. Seems a bit akin to members of Congress not using their office phones or government resources to request political donations, instead having to go offsite. The president should not be using government resources (AG, VP) for his political purposes.
If it is true that if a president acts to alter electoral results will be viewed as “official acts” and therefore immune from criminal prosecution, would this president’s opponent in the election have similar immunity for similar actions? And if so, doesn’t this put the president above the law that applies to his opponent?
Will presidents find ways to enrich themselves criminally via actions which could be disguised as “official acts” and enjoy immunity?
I am not a lawyer and appreciate the analysis, but it certainly appears this opinion opens up a giant No. 10 can of worms…
Trump did a lot of despicable things and should have been successfully impeached
But whether he actually committed a crime has always been a very big question
We give presidents a lot of latitude, and there's a lot of latitude given to freedom of speech
Not everything is a question for criminal courts. A lot of things need to be handled in the political realm
And if democrats really believe that trump was a threat that they say he is
Then, a year ago, they would have switched outbiden for a real moderate
Somebody the Progressive left didn't like, but that had a lot of crossover appeal
Somebody like Joe Manchin
No one knows what the immunity decision means and we may never know if Trump is elected. If he is not elected, it may take a few years to know the extent of his criminal exposure because whatever rulings the district court makes, will end up again before the Supremes. So it is all speculation. BUT
We will know the impact of the court's civil rulings very soon. I will write a lengthy analysis on that topic, not addressing the legal merits--for which there are far better qualified on this blog to opine on such questions--but the practical implications for the courts. What federal regulation or statute cannot be attacked as ambiguous? How many plaintiffs have been injured long after a rule was enacted? How many legal challenges would it take to grind the federal courts to a halt? Will the enforcement of rules be suspended pending decisions in hundreds, thousands of cases? Even assuming Biden is reelected, can Congress overturn these rulings and preserve the Administrative State? Are we in for more ideological gridlock?
So far, Trump has not been convicted of anything re;ating to 2020.
This is the critical guideline for a prosecutor and trial court:
"In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquirywould risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegationof improper purpose, thereby intruding on the Article II interests that immunity seeks to protect.,,,, Nor may courts deem an action unofficial merely because
it allegedly violates a generally applicable law.....Applying a criminal prohibition to
the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions. It is ultimately the Government’s burden to rebut the
presumption of immunity"
This clearly reduces the scope of the inquiry by the Special Prosecutor