Can anyone pencil out the real danger of this position? Sotomayors opinion seems to posit that a president can receive a bribe and pardon someone for that and this is an official, immune act. However, I don't think soliciting a bribe would be considered an official act of the POTUS, and by what I have been able to understand from this opinion would still be subject to prosecution. I also think that this opinion seems to be exactly in line with existing legal precedent. Truman was never prosecuted for the massacres he presided on. Nixon was never prosecuted. Reagen was never prosecuted. We just don't seem to ever prosecute ex presidents at all whether we had this opinion to spell it out for us or not.
> One example not relevant to this case but which came up in arguments was the hypothetical payment of a bribe in return for an ambassadorial appointment.
Under Monday’s decision, a former president could be prosecuted for accepting a bribe, but prosecutors could not mention the official act, the appointment, in their case.
So, imagine:
Prosecution: You took a bribe!
Defense: Bribe? No! It was just a gift.
Prosecution: It preceded the intended action, so it WAS a bribe.
Roberts attempts to address this in the majority opinion:
> JUSTICE BARRETT disagrees, arguing that in a bribery prosecution, for instance, excluding “any mention” of the official act associated with the bribe “would hamstring the prosecution.” 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.
It seems a little contradictory ("second-guess their propriety"? isn't that the point of a bribery indictment?), but the outline is clear, I think. Prosecutors are restricted from 'probing' the act (asking for records, testimony, etc. from the executive branch) but can use all evidence they otherwise would. The official act can be mentioned. Accepting the bribe is the prohibited, unofficial act for which the president enjoys no immunity from prosecution.
I would hope the law isn't so loose in interpretation where people could get away this easily with this looney tunes legal defense. For example I used to work in a public capacity and we couldn't even take gifts, so I would think the president couldn't just say they were gifted a huge yacht or something for a wink wink nudge nudge, or else it would have been done by now.
You should read their recent decision in a corruption case. There is a federal law for agents of government bodies or organizations that receive above a certain threshold of federal money, saying they can't accept or solicit bribes or rewards for official acts. The reasoning is federal money shouldn't be squandered on crooked deals.
A mayor gave a large contract to a local business owner who then gave the mayor $13,000 in gifts and "advisory" fees. SCOTUS said that was okay, because the mayor didn't explicitly agree to a "quid pro quo" bribery deal before giving out the contract. They jumped through hoops to avoid the "rewards" part of the law.
So if you get your old public position back, you might be able to reap some SCOTUS-blessed rewards.
It’s actually for state actors, not federal. I think it would have been problematic if giving your public school teacher a gift lands them in jail for 15 years.
The issue is that this could prevent even opening up the discussion of whether a transaction was a bribe if the former president can claim it was an official act.
Nixon was never prosecuted because he was pardoned so the official acts stuff is moot. Crimes committed in war/putting down rebellion/etc are bad but more clearly within the scope of official acts than anything Trump is accused of.
Reagan, to the extent that he did/didn't coordinate with Iran to delay the hostage release, would be the closest parallel since it would have been a crime (Hatch act violation) in the direct pursuit of winning an election. But that was before he was president so this also wouldn't be relevant for today's ruling.
We don't prosecute ex presidents often because most of them either don't commit crimes or the ones they do are arguably part of the job. Trying to prevent the legitimate transfer of power is not close to a part of the job. The opposite in fact. Nixon only gets pardoned because he agrees to fuck off and spare the country the shitshow we currently have.
One danger, to quote Barrett's in-part concurrence (p.66 of the ruling) is:
> The Constitution, of course, does not authorize a President to seek or accept bribes, so the Government may prosecute him if he does so. [... citations ...] Yet excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability.
(I wanted to quote Barrett since she's a Trump-appointed justice.)
With the Court killing the Chevron Deference, they have given themselves all the power to decide what is an official act and what isn't. Anything not spelled out in plain terms will be interpreted by them and nothing is spelled in plain terms.
This comment is a classic example of the ridiculous state of discourse around the Supreme Court right now on HN. So many people are trying to process legal theories through the amygdala and the result is a legal word soup that doesn't actually have any meaning.
Chevron deference has absolutely zero to do with this and never would have. I'd go deeper, but Brandolini's Law is real and I simply don't have the energy any more.
I'm certainly not law trained and open to being wrong so if you could find the energy I'm happy to listen. My reading of the situation is that the main confusion here is what constitutes an official act and a non-official act. With the removal of the Chevron Deference, all of the interpretation of ambiguous law now rest with the courts.
It's nothing about you personally, it's that this thread is filled with hundreds of bad takes and I actually can't keep up. The bullshit asymmetry principle is working hard today because actually doing the work of understanding the law takes time.
The short version is that Chevron was not a doctrine used in any and all cases where the law was ambiguous, it was always about whether an administrative agency's interpretation of the law was permissible. The subjects under consideration here do not fall under administrative law [0] and so Chevron would never have been relevant.
Ok. My misunderstanding was that this only applied to an administrative agency's interpretation of the law. That is my mistake. However, I still believe that gives a pretty large latitude for abuse considering the GOP is openly antagonistic to many of these agencies like the IRS and FDA.
I though the chevron deference related to how federal orgs like e.g. the epa pen their own policy and trying to put that policy writing power back into the legislative branch vs through the executive who appoints these orgs? I am not educated in law and would like to clear up some of my misunderstanding.
> I also think that this opinion seems to be exactly in line with existing legal precedent. Truman was never prosecuted for the massacres he presided on. Nixon was never prosecuted. Reagen was never prosecuted. We just don't seem to ever prosecute ex presidents at all whether we had this opinion to spell it out for us or not.
I think you are looking at this backwards. There was an unwritten agreement between the people and the Executive, namely, that we understand there are things that you might have done or had to do while President that to the ordinary person would be a crime and we will let you ride off into the sunset unbothered after you leave office, but in exchange for this, we expect there to be a peaceful transfer of power. We have entrusted this experiment in democracy to you, and when its time to go, you make sure it is passed on. Even Nixon did this.
There have always been contentious elections - some have ended up in the courts - but at the end of the day, a process was observed and followed. Donald Trump was the first President to not respect this unwritten agreement between the Office and the people. And now conservatives are doing what they always do: They are saying that we the people are not protected when the Executive doesn't hold up their end of the bargain, but that we are bound to uphold ours.
But what he did on jan 6, asking people to break the law for him, is not an official act of the presidency, so that would still be prosecutable I would think.
Is it? I mean he was discussing it with his vice president and members of his cabinet.
If a president discusses with his cabinet how to fight a war in a way that is possibly illegal (and then orders it), that is an official act, executing illegal actions, and is immune.
What is the difference between that and preventing the transfer of power to your political opponent?
Especially since now parts of your activity's are "official" and cannot be mentioned in court, and part of your activities are not official which are potentially prosecutable, see Barrett's arguments.
Got to love it when supreme court creates all these exiting new laws.
I would assume an official act is something outlined in their description of their powers like the president appointing someone, and not just every word and action they do while holding the job as president. I wouldn't think him cussing after a shank during golf would be an official act as the POTUS for example, although I'm sure it happened thousands of times during his presidency.
And the court very specifically leaves open the possibility that he's guilty for his actions on January 6th if he was acting in his capacity as a candidate for office.
If it wasn't illegal, then what else is new? Republicans always try and twist the knife and get whatever profit seeking muck they can passed while they hold the reins.
I didn't think supreme court justices could take bribes. Yet they do, just from "friends" in the form of lavish vacations together and gifts to family.
They are ripping this apart not just on it's merits, but how oddly it's constructed. They established a framework for assigning immunity and then leave completely open what the test is to assign actions to the framework, then list a bunch of Trump's activities that are definitely immune and none that are not, and then Clarence Thomas says the DOJ can't empower special counsels apropos of nothing (except the documents case that is not before the court).
You're right, this is a high-emotion one and probably doesn't belong on HN at all, since it is just devolving into a poorly informed flame war. (although Lawfare itself is not an objective observer either.)
Lawfare is a very well-informed source and I think at this point we should really quit pretending that "liberal" sources are biased in any meaningful way and that their staunch opposition to the political right is thoroughly justified on objective grounds. This decision is a bad one. Previous decisions by the conservative justices that were derided by the left have been bad for the country in tangible ways. They were appointed by a guy who lead an insurrection. Who committed a load of crimes they are fine with him getting away with. Strict construction isn't even a fig leaf on much of what they're writing
Rhetoric like this is how we got Trump in the first place. You don't even try to understand the other side, you rest easy in knowing that you are objectively right and they're objectively wrong.
It doesn't even particularly matter if you're right or wrong on the merits, as long as the Left talks like this the Right will be ascendant. You don't tame populism by being condescending, that only fans the flames.
What got us here is a huge percentage of the population feeling disenfranchised and cut off by a condescending elite. A sociopathic demagogue recognized those people and made them feel seen, and you and the Democratic party still just don't get it. That's why we're here, and we'll stay here as long as the Left continues to condescend to them.
Ok… so looking from the outside in Australia… a country with mandatory voting that always happens on weekends to make it incredibly easy for people to do their civic duty, thus allowing us to levy a fine against anyone who doesn’t vote… with electoral divisions and regional boundaries managed by a specific government department that has been structured so as to prevent politicians doing any gerrymandering…
In the USA it’s clear that voter suppression and gerrymandering have allowed for partisan groups of elites with both progressive and conservative views to hold onto power for decades as the voting public they represent feels more and more like their vote does not matter, or that they are unable to vote due to their financial situation (no time off, no money for transit, no money for required identification, required identification needs a fixed address and their homeless, etc)… it’s pretty dire… and I have always been kind of shocked how it’s managed to limp along with such statically low voter turnout for decades… money is speech (citizens united) and media are allowed to treat made up news as entertainment with no need to distinguish really from fiction (FCC vs Fox News)…
I don’t see any way the situation doesn’t eventually lead to demagoguery… because at some point your public is just so disenfranchised that a demagogue doesn’t have much work to do beyond “I’m not them, get the fuck out and vote for me so I can change things”…
But the problem with a demagogue is that even if they don’t turn dictator, they are by nature of their rise to power, going to be very dictator like, it’s their choice, their charisma, their force of will that motivated the voting public… the only problem is that the checks and balances to prevent the demagogue from becoming a dictator, have only been barely tested, first with FDR, then with Nixon, one who died before the change to the system was relevant, the other begrudgingly bowed out before the system had to fully engage with the issue...
Many political scientists believe that the parliamentary system used in most of Europe, and in Australia, Canada, New Zealand, is superior to the presidential system in producing political stability and good policy
Many have also said that Latin America has experienced the brunt of the negatives of the presidential system, while the US largely escaped them due to wealth, cultural norms, and maybe even good luck. But over the last few years, things in the US have been degenerating to the point that maybe they aren’t escaping those negatives any more
Maybe one of these days it will get so bad that Americans will listen to these political scientists and switch to the Westminster system. Maybe what America really needs is a Prime Minister. The Westminister system doesn’t require a monarchy, see Ireland and Malta for examples of parliamentary republics with predominantly British political traditions. In a parliamentary republic, you have a figurehead President while the Prime Minister holds the real power. Other examples of parliamentary republics (albeit non-Westminster) include Austria, Germany and Israel
So them being vindictive over losing elections made them pliable enough to reject democracy and it's our fault so we should apologize? No. There's no excuse. At some point you have just admit that some people have bad intentions.
You're mixing up the voters with the politicians. Trump voters aren't vindictive about losing elections, they're frustrated that their lives are falling apart and they have no control over it.
The world is changing and it's leaving people behind. Not the people in the coastal cities, the people in the middle of America. They see a government that not only doesn't care about them but that actively works to shut down the industries that they rely on. They saw a Republican Party that just assumed it would get their vote and a Democratic Party that wished they didn't exist, and they felt powerless.
Then Trump came along and he spoke to them. For the first time in decades they felt seen and heard, for the first time in decades they felt like there was a politician who understood them.
They can't see that it's a fraud, they can't see Trump for who he is, because Trump gives them the attention that they so desperately need.
The "condescending elite" that I referred to wasn't the Democrats, it was both Democrats and Republicans who didn't think that these people mattered. Trump proved that they did, and the only way we're getting out of this situation is for more honest politicians to recognize that and solve these people's very real problems.
I understand all that but you're the one being condescending assuming they're so utterly gullible. I'm sure they have plenty of grievance. Everyone does. They chose a conman because he promised revenge. That is their fault and also very worthy of scorn. I can blame them for their poor character the same way you could blame slave states for starting the civil war. They were just wrong.
Do you know any Trump voters? Have you ever spoken with one?
You probably have and didn't even know it, precisely because of angry rhetoric like this. Even the Bay Area broke 20% for Trump in the last election.
That's one out of every five voters, but I bet very few people walked around wearing a MAGA hat in the Bay area, and you can't really blame them if they valued their physical safety. And now, according to Nate Silver's latest model, it looks like now you're angry at more than half the country.
I don't want to offend you, but it seems like you very much misunderstand both the Trump voters and actually what Trump stands for.
I remember/r/the_donald. I saw a Trump parade in 2015 where they flew those green Nazi flags. I see what they cheer for at rallies. What he says to get approval. It's absolutely disgusting. Is this their version of punishing the establishment for manufacturing jobs or something? No. These are the people who insisted Obama was from Kenya. The people who punished Democrats for the Civil Rights Act. The same people who seceded to protect slavery. Are they nice, polite, well-meaning salt of the earth people? Maybe some of them. But nice isn't the same as good. I'm sure that telling them how stupid they are isn't a great way to win their vote but it doesn't mean it's not true.
> Sonia Sotomayor is writing this is a threat to democracy. That carries a lot of weight.
Frankly, it doesn't carry much weight with me. The dissents this cycle have increasingly felt like they're more political tools to try to rile up the Democratic base for the next election than they are legal opinions sincerely held. They're written to have maximum quotability and memetic transmission, and that means they're constantly emotionally charged.
(Note that I'm saying this as a Biden voter who really wishes that Trump weren't poised to take office.)
> (Note that I'm saying this as a Biden voter who really wishes that Trump weren't poised to take office.)
I don't understand people going on an obviously one sided political rant and then going "don't hit me I vote for the good guys trust me !", it's not subtle.
I don't understand people who can't believe that someone could actually hold a complicated set of political perspectives that don't align well with any one party's platform.
There's obviously no way for me to prove it, but I cast a protest vote in 2016 and voted Biden in 2020. I'm exhausted by both parties but currently hate Trump enough to vote Democrat. Hating Trump doesn't mean I have to approve of manipulative hyperbole in Supreme Court dissents.
