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?
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.
> 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.
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"?
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?
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).
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?
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?
> 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?
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.
“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.
> 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.
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 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.
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... )
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.
>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)
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.
>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.
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.
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.
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.
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.
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.
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
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.
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.
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]
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?
"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.
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.
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.
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.
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.
> 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?
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.
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.
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.
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.
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.
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".
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.
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.
> 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.
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.)
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.
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.
> 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.
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.
> 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.
> 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.
> 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.
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?
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.
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.
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).
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.
>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.
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.
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.
> 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.
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”.
> 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.
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.
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.
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.
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 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.
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.
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 would imagine that Obama is quite happy with his presidential immunity for ordering the extrajudicial killing of an American citizen via drone strike[1].
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.
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".)
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?
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.
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.
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.
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.
* 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.
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.
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.
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.
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.
> 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.
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.
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.
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.
> 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.
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.
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.
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 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?
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.
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".
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.
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.
