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.
