> (3) Presidents cannot be indicted based on conduct for which they are immune from prosecution. On remand, the District Court must carefully analyze the indictment’s remaining allegations to determine whether they too involve conduct for which a President must be 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. Pp. 30–32
For example, from my understanding this means that Nixon's tapes could never have been used in any form in a criminal trial regarding Nixon's actions.
In today's political environment I don't see an impeachment ever succeeding unless the opposing party has a super-majority in the US Senate.
Impeachment is not considered a criminal proceeding, but a political one. It just serves to authorize a criminal proceeding by the senate. If Nixon’s tapes could not be used during a criminal proceeding they could still be used in a push for an impeachment.
But, yes, an impeachment or senate trial is likely unthinkable without a super majority. Driving conformity/uniformity is the goal of party politics.
We are still paying the price for Watergate. The Saturday Night Massacre was Nixon's attempt to use his executive authority to prevent his investigation. The loyalist who ended up being his third AG of the day was Robert Bork. First Ford declined to prosecute, then Reagan nominates Bork to the SC and suddenly SC appointments become combative partisan affairs
Conservatives since Nixon have been working to ensure none of them could be taken down like he was. This is just the final chapter in them successfully implementing their plan that began with Fox News.
> You sound like a basket case. Maybe turn off the tv and touch some grass.
You can't post like this here, regardless of how wrong someone is or you feel they are. Since you've been breaking the site guidelines like this repeatedly*, I've banned the account.
It's pretty well documented. Not my fault you're ignorant to it and think it must be a conspiracy. Maybe try learning something about Roger Ailes and his history with the administration and creation of Fox News.
How do you conclude that? It is my understanding that the Nixon tapes were recordings of conversations Nixon had with campaign staff as a candidate, and as the Supreme Court held, actions taken as a candidate are not official actions and are therefore not subject to immunity.
If this ruling would have been in force back then, Nixon could have argued that the conversations were done in his official role as president. For example, a conversation with his chief of staff about ordering the CIA perform a coverup could be considered “official business” since he was talking to a top executive branch official and directing an executive branch agency to take an action.
The distinction between “official” and “unofficial” becomes meaningless when a president can use their official powers to do illegal things that benefit themselves in an unofficial capacity. Hence the absurd conclusion that, apparently, a president cannot be prosecuted for assassinating their opponent using Seal Team 6.
A argument could be made for that, the counter argument would be that ordering the White House Chief of Staff to lie to investigators is a very different act to ordering the AG to investigate a purported crime. The majority opinion was pretty careful to examine the exact nature of the conversation with the AG, leaving it open that not any conversation could have been claimed as official.
> The distinction between “official” and “unofficial” becomes meaningless when a president can use their official powers to do illegal things that benefit themselves in an unofficial capacity.
Maybe, but does it follow that there's no protection for "official acts?" Go read some criminal statutes, and see what it would take for a creative red state prosecutor to pin something on Obama for ordering drone strikes killing American citizens. Or do you think Biden couldn't be charged with something in connection with his border policies?
Nixon still had the presidency as he ran for reelection, allowing for the argument that tapes of anyone under the Whitehouse's employ were inadmissible official acts.
Immunity is not admissibility. They are orthogonal.
Law enforcement has qualified immunity for the vast majority of what they do in an official capacity. That doesn't mean their testimony about what they do in an official capacity is inadmissible, including if they testify about what other law enforcement officers did.
The problem is that official conduct is inadmissible as evidence for even an unofficial crime, from what I understand. On that point, Barrett and the other women justices dissented from the majority, with "official acts" being a nebulous term.
No. I think you're referring perhaps to executive privilege, which is something else altogether. While it is an issue to account for, saying official acts are inadmissible is far too broad.
- More precisely, not conduct but official records, even public ones like tweets, are inadmissible right? Forgive me for not looking more, I am cooking at the moment. The layman's understanding seems to be that executive privilege has been expanded.
EDIT: Having read the scoutsblog article and some of the opinions themselves, the justices seem to severely disagree over this.
The court remanded that part back to the lower courts, to determine if Trumps Tweets were in his official capacity or not. There is a good chance that whatever the lower courts decide will be appealed back to the Supreme Court again.
First, that comment references something from "the ruling" which is not part of the Court's opinion, but from the syllabus, citing pages 30-32.
> But [the Government] nevertheless contends that a jury could “consider” evidence concerning the President’s official acts “for limited and specified purposes,” and that such evidence would “be admissible to prove, for example, [Trump’s] knowledge or notice of the falsity of his election-fraud claims.” Id., at 46, 48. That proposal threatens to eviscerate the immunity we have recognized. It would permit a prosecutor to do indirectly what he cannot do directly—invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge. But “[t]he Constitution deals with substance, not shadows.” Cummings v. Missouri, 4 Wall. 277, 325 (1867). And the Government’s position is untenable in light of the separation of powers principles we have outlined.
> If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the “intended effect” of immunity would be defeated. Fitzgerald, 457 U. S., at 756. The President’s immune conduct would be subject to examination by a jury on the basis of generally applicable criminal laws. Use of evidence about such conduct, even when an indictment alleges only unofficial conduct, would thereby heighten the prospect that the President’s official decisionmaking will be distorted. See Clinton, 520 U. S., at 694, n. 19.
> The Government asserts that these weighty concerns can be managed by the District Court through the use of “evidentiary rulings” and “jury instructions.” Brief for United States 46. But such tools are unlikely to protect adequately the President’s constitutional prerogatives. Presidential acts frequently deal with “matters likely to ‘arouse the most intense feelings.’ ” Fitzgerald, 457 U. S., at 752 (quoting Pierson, 386 U. S., at 554). Allowing prosecutors to ask or suggest that the jury probe official acts for which the President is immune would thus raise a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance while in office.
You're right that this goes beyond executive privilege. I was mistaken. However, it still does not say official acts are inadmissible. It says official acts may be inadmissible against him if they constitute "official conduct for which the President is immune." This is an important distinction because "of course not all of the President’s official acts fall within his 'conclusive and preclusive' authority [and] [t]he reasons that justify the President’s absolute immunity from criminal prosecution for acts within the scope of his exclusive authority therefore do not extend to conduct in areas where his authority is shared with Congress."
That is to say, there are official acts the President may take that are not in his exclusive authority. Immunity in such cases is not absolute; official acts in domains where power is shared may or may not be "official conduct for which the President is immune," and, if not, they would still be admissible against him.
If it gets interpreted more clearly this way in subsequent Supreme Court decisions (because there will definitely be 1+), then I like the ruling.
To me, it's clear that there's {President-the-President} and {President-the-candidate}. Furthermore, campaign staff are explicitly not federal employees nor members of the executive branch.
What really needs to happen, and I believe what the Court was promoting the legislative branch to do, is for Congress to pass laws circumscribing Presidential authority specifically around elections.
> In today's political environment I don't see an impeachment ever succeeding unless the opposing party has a super-majority in the US Senate.
It's supposed to be hard to do. Impeachment is intended to be reserved for egregious violations or actions that most of congress (and by proxy, the citizenry) agree on.
it’s supposed to be hard. not impossible. and it’s pretty clear at least to me that the authors of the constitution very clearly intended presidents like trump to be thrown out of office.
the constitution loves presidents like Trump, because he actually acted as a constitutional president while in office instead of being a figurehead for manufacturing consent on behalf of the global hegemony
But it’s the Senate that is the limiting factor and there is no gerrymandering involved there. Gerrymandering has a lot more effect on state legislatures in general.
The phrase “probing such conduct” refers back to the “conduct for which a president must be immune from prosecution.” So what it’s saying is that you can’t use tapes relating to protected official acts.
So Nixon tapes discussing his campaign probably would be admissible.
I don't understand what weight impeachment still holds in today's world. Trump was impeached twice - and? If Trump, in his second term, is supposed to be held liable through fear of impeachment for his actions, I'm afraid it won't be the counter-weight the Founding Fathers envisioned.
Let's add a 3-strikes and your out! law. Thrice impeached Presidents get thrown out of office and need to sit in jail for 3 turns unless they roll a double.
(Obviously a joke, but is joke is exactly what our Supreme Court is making out of our Constitutional Republic)
Might as well have been. It's easier to indict a conviction of a high ranking figure 4 times over than it is playing the political game of a successful impeachment.
An impeachment (by the House of Representatives) is analagous to an indictment.
The trial is held in the Senate, and the Senators serve as a judge-less jury.
Partisan impeachment is rightfully difficult, by design. Juries either have to be unanimous or a super-majority, depending on venue. If you can't get a small fraction of the opposition party to agree with the charges, the charges are defective.
If the charges are "here's some crap we scraped together, let's throw it at the wall and see if it sticks", then it deserves to fail. It failed under Clinton and under Trump, partly for partisan reasons but mostly because senators didn't think the charges rose to the level of "high crimes and misdemeanors". Dershowitz has some really good analysis on this.
The founders weren't all convinced that impeachment was even necessary; the president's term is only 4 years. Many were rightfully concerned that impeachment would become a spectacle used by a opposition House to damage the sitting president. And that's what it has become, since the 90's.
No one can preside over a country when any ambitious DA anywhere can drag you into court afterwards. I think the decision today was a good one.
But also think about it this way: no matter how you feel about Trump, imagine how you'd feel if $YOUR_PREFERRED_CANDIDATE was president and lawfare was being conducted against that person by $OPPOSITION_PARTY.
The majority in the court was wise today and closed the door firmly on lawfare as an alternative to campaigning, for all presidents moving forward.
>"An impeachment (by the House of Representatives) is analogous to an indictment. The trial is held in the Senate, and the Senators serve as a judge-less jury."
Impeachment may be analogous to an indictment, but it has become a political tool, not a true check on presidential power.
>"Partisan impeachment is rightfully difficult, by design. Juries either have to be unanimous or a super-majority, depending on venue. If you can't get a small fraction of the opposition party to agree with the charges, the charges are defective."
The difficulty of impeachment due to partisan bias undermines its purpose. Historical impeachments show the Senate often votes along party lines, ignoring the evidence. There's reason for that.
>"The founders weren't all convinced that impeachment was even necessary; the president's term is only 4 years. Many were rightfully concerned that impeachment would become a spectacle used by an opposition House to damage the sitting president."
Impeachment was included exactly because the president can cause immense harm, even in four years - and you are undermining the importance the Founders saw in it, especially enough to include it.
>"No one can preside over a country when any ambitious DA anywhere can drag you into court afterwards. I think the decision today was a good one."
No one should be above the law, lest we flirt with Kingship, which is especially unappealing given our history.
>"The majority in the court was wise today and closed the door firmly on lawfare as an alternative to campaigning, for all presidents moving forward."
This ruling is a very, VERY dangerous precedent, suggesting presidents are untouchable. Clinton v. Jones showed legal accountability can coexist with presidential duties
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Like I said here [1], "[Lawfare in the executive] 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 within leaders builds toxic ontological relationships between participants of a political system, and often invites tyranny. Your suspicions, for 238 years straight, have been amiss."
> Impeachment was included exactly because the president can cause immense harm, even in four years - and you are undermining the importance the Founders saw in it, especially enough to include it.
The GP is accurately paraphrasing the notes from the Constitutional Convention. Many of those present did not think the President should be impeachable at all. They all compromised on the current process because they didn't think the Senate could become politicized enough to convict for partisan reasons.
For example:
> Mr. PINKNEY did not see the necessity of impeachments. He was sure they ought not to issue from the Legislature who would in that case hold them as a rod over the Executive and by that means effectually destroy his independence. His revisionary power in particular would be rendered altogether insignificant.
> Mr. KING expressed his apprehensions that an extreme caution in favor of liberty might enervate the Government we were forming. He wished the House to recur to the primitive axiom that the three great departments of Govts. should be separate & independent: that the Executive & Judiciary should be so as well as the Legislative: that the Executive should be so equally with the Judiciary. Would this be the case, if the Executive should be impeachable? It had been said that the Judiciary would be impeachable. But it should have been remembered at the same time that the Judiciary hold their places not for a limited time, but during good behaviour. It is necessary therefore that a forum should be established for trying misbehaviour. Was the Executive to hold his place during good behaviour? The Executive was to hold his place for a limited term like the members of the Legislature: Like them particularly the Senate whose members would continue in appointmt the same term of 6 years he would periodically be tried for his behaviour by his electors, who would continue or discontinue him in trust according to the manner in which he had discharged it. Like them therefore, he ought to be subject to no intermediate trial, by impeachment. He ought not to be impeachable unless he held his office during good behaviour, a tenure which would be most agreeable to him; provided an independent and effectual forum could be devised. But under no circumstances ought he to be impeachable by the Legislature. This would be destructive of his independence and of the principles of the Constitution. He relied on the vigor of the Executive as a great security for the public liberties.
> Mr. Govr. MORRIS. He can do no criminal act without Coadjutors who may be punished. In case he should be re-elected, that will be [FN9] sufficient proof of his innocence. Besides who is to impeach? Is the impeachment to suspend his functions. If it is not the mischief will go on. If it is the impeachment will be nearly equivalent to a displacement, and will render the Executive dependent on those who are to impeach.
Even some of the pro-impeachment members supported it for, uh, unusual reasons:
> Docr. FRANKLIN was for retaining the clause as favorable to the Executive. History furnishes one example only of a first Magistrate being formally brought to public Justice. Every body cried out agst. this as unconstitutional. What was the practice before this in cases where the chief Magistrate rendered himself obnoxious? Why recourse was had to assassination in wch. he was not only deprived of his life but of the opportunity of vindicating his character. It wd.. be the best way therefore to provide in the Constitution for the regular punishment of the Executive where his misconduct should deserve it, and for his honorable acquittal when [FN10] he should be unjustly accused.
Nixon, that former president the person you’re responding to brought up, was going to be impeached by his fellow Republican party members.
> On August 5, 1974, Nixon released a transcript of one of the additional conversations to the public, known as the "smoking gun" tape, which made clear his complicity in the Watergate cover-up. This disclosure destroyed Nixon politically. His most loyal defenders in Congress announced they would vote to impeach and convict Nixon for obstructing justice. Republican congressional leaders met with Nixon and told him that his impeachment and removal were all but certain.
That's a rather misleading take. Reagan was threatened with impeachment twice--first by a group of eight representatives over his invasion of Grenada, and later by a lone Representative, Rep. González, over Iran-contra--but it never went anywhere in either instance. González later introduced two resolutions against George H.W. Bush over the Gulf War that were ignored. Those were promptly ignored and died in committee. There was a much larger push to impeach George W. Bush over Iraq and other behaviors, but even there, party leadership ultimately chose to squash the impeachment effort.
When you're talking about such a small number of representatives, it's tough to suggest that "Democrats" did anything as a political party. A few lone voices do not denote a party's position, especially when party leadership was against it.
For that matter, most all of those impeachment efforts at least had a degree of legitimate purpose. One might disagree as to whether actions such as circumventing arms embargoes via illegal arms deals to fund rebel groups prohibited by Congress or (potentially) lying about a foreign nation in order to justify a war are in fact impeachable, but it's difficult to argue that weighing the possibility of impeachment wasn't at least rationally justifiable.
For example, from my understanding this means that Nixon's tapes could never have been used in any form in a criminal trial regarding Nixon's actions.
In today's political environment I don't see an impeachment ever succeeding unless the opposing party has a super-majority in the US Senate.