Supreme Court rules ex-presidents have immunity for official acts | Hacker News Reader

Supreme Court rules ex-presidents have immunity for official acts

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My limited understanding of the ruling:

The ruling states that the President is immune from prosecution while exercising official duties of the office of President but can be investigated by a special counsel that is appointed by an act of Congress, and if successfully impeached and convicted can then be charged with said crimes. “Unofficial” acts are not protected by this immunity but a special counsel is still required to be appointed by an act of Congress to investigate and then bring forward charges.

Out of context this is quite reasonable and level headed. In context of the hyper partisan landscape US politics are today, doesn’t seem likely without a supermajority opposition to be able to bring charges against a president, for official or unofficial acts that are crimes.

On paper it makes sense. The people elect a congress charged with checking the powers of the President. States can also pass constitutional amendments to further limit or define the powers of the President.

In reality, power can be consolidated to the point where these checks and balances no longer work properly.

And that's point where the SC is irrelevant. You can't paperwork your way out of civil war when the people want one.

No it doesn't. There's nothing in the constitution that grants immunity to a president and no reason why Donald Trump had to commit the crimes he's charged with.

If every past, present, and future legal scenario was explicitly and unambiguously addressed by the constitution, we wouldnt need the Supreme Court.

In reality it is an imperfect document that can never possibly be complete.

You're suggesting presidential immunity is a new idea, and criminal charges against ex-presidents are a new threat to the executive branch, both of which were wrong. 230 years ago people had already through through this. Immunity isn't in the constitution because they didn't want it in there.

The president already has all the constitutional protection he needs from prosecution: a prosecutor can't remove him from office.

You're mixing together a few different things.

- Trump's lawyers argued in this case that an ex-president can only be charged with a crime if he was impeached and convicted for that same act. But all of the justices rejected this view today. The newly granted immunity is orthogonal to whether or not the president is impeached.

- Though, the president does have to leave office somehow before he can be prosecuted. He can't be prosecuted while still sitting. This wasn't technically decided in this case, but the parties mostly agreed as much beforehand, and the majority opinion has a footnote approvingly citing an Office of Legal Counsel memo to that effect.

- Separately, Trump's lawyers argued that the special counsel that prosecuted him was not properly appointed by an act of Congress. But the Supreme Court did not grant certiorari on that issue and the majority opinion today did not address it. Justice Thomas's solo concurring opinion, however, did address it and agreed with Trump (but a concurring opinion has no legal effect). In any case, this is a different question from whether prosecutions of ex-presidents must go through a special counsel. As far as I know, there is no formal rule that would require it, but it's highly desirable as a way to avoid political bias. That question didn't come up in this case, though.

Trump's attorneys did not say "the special counsel that prosecuted him was not properly appointed by an act of Congress", Justice Thomas brought this up in oral arguments. Trump's attorneys admitted in oral arguments that they had not brought this up during the appeal, so as an argument it was not saved.

Further more, historically there is no basis for the argument. Special prosecutors, which are different from the "independent counsel" that came about after Nixon; the laws around "independent counsel" expired a while ago.

"Special counsel", and all of the other similarly named, have been around since Marbury. By happenstance, some have been X-members of Congress, Cabinet members, etc... but far from all.

There is a reason why none of the other Justices brought this up, it is absurdist.

This ruling seems to open the door to a president being immune from, say, commanding SEAL Team 6 to assassinate a political rival.

“In its ruling, the Supreme Court decided there was no question that Mr. Trump enjoyed immunity from being prosecuted for one of those methods: his efforts to strong-arm the Justice Department into validating his false claims that the election had been marred by widespread fraud. That was because the justices determined that Mr. Trump’s interactions with top officials in the department were clearly part of his official duties as president.” [1]

One of the president’s official duties is to direct the military to take actions that protect the country. Biden can reasonably claim Trump is a threat to democracy, and can officially request him to be killed. Right? If not why not?

1: https://www.nytimes.com/2024/07/01/us/politics/supreme-court...

SCOTUS said there was an extra procedural step, namely impeachment and conviction by the Senate. Ultimately the Senate would decide factually, whether that hypothetical action was an appropriate basis for further criminal prosecution.

Prosecuting a president fundamentally is a political act, and why would we think a random DC bureaucrat better qualified to make a consequential political act than the Senate itself?

Why does the president deserve some fundamental immunity with a very high political bar to clear, compared to average citizen or politician?

Carving out some special protection strikes at the heart of the idea that everyone is equal in the eyes of the law.

Because the government kills people all the time and destroys their lives and businesses. And because nobody is combing through the criminal law books trying to convict the average person for something.

I mean, the former governor of New York just said the New York prosecution against Trump wouldn’t have been brought against anyone else.

> I mean, the former governor of New York just said the New York prosecution against Trump wouldn’t have been brought against anyone else.

Trump is flagrantly corrupt and coordinates crime through lackeys, many of which have been convicted of felonies. No, you don't catch old kingpins on the stuff you get everybody else with. There's definitely a two-tier justice system going on, but it bends in Trump's favor at every turn.

“Trump actually did all these bad things! But we can’t prove any of them, so we’ll prosecute him for influencing an election by covering up an affair after he already won the election. Don’t sweat the details, you gotta get creative with these kingpins.”

This is persuasive to nobody that doesn’t start from the assumption Trump is a criminal. The irony is that I used to share that assumption, because I’m a pretty trusting person. But after almost eight years of the smartest lawyers in the country going after him, I’m not so sure. My former boss at a white shoe law firm in New York helped engineer the New York case, and it’s the same kind of contrived legal theory the firm would use to help a corporate client make it seem like all their income was earned in Bermuda. Utterly unpersuasive.

Isn’t trump convicted ?

And you mean to say his entire defense team was so bad that they couldn’t protect him from a contrived and tormented case ?

Against a jury of peers?

And the defendant is Trump, someone who is famously associated with the quote “Lordy, I hope they are tapes.”

No one has to persecute trump. He just has to stop doing things which make everyone republican President before him cry in sorrow.

What was it you said ? You can only think this if you start from the position that everyone else is corrupt except Trump

As a Canadian who keeps up on the news but has no skin in the game, from up here it does look petty when after seemingly hundreds of unsuccessful attempts to prosecute Trump, their “we got him now” case amounts to “he expensed an invoice from his lawyer to a business instead of paying it personally”.

Tell Judge Cannon to stop slow walking the election overthrow conspiracy case.

Tell the corrupt SCOTUS to stop granting a former president unconstitutional powers.

Your comment defies the forceful attempts to stymie any Trump prosecution that GQP party members are performing full-time as of 2024

Cannon has the stolen documents case.

That's because the things they can't get him on (yet) include inciting violence intending to prevent the lawful transition of power (aka a coup attempt) -- because the judge is deferring the case past the election -- and influencing states to cast votes in the electoral college against what their people voted for -- because the case is on hold pending investigation of the prosecutor. Both of those have already resulted in convictions of multiple Trump staffers; Trump himself has managed to delay justice in both of those more serious cases.

There is a reason they got Al Capone on tax evasion, and it wasn't because that was the worst thing he did. Crime bosses are notoriously slippery.

If you think that's petty, look at what Trump is calling for.

https://lite.cnn.com/2024/07/02/politics/trump-liz-cheney-mi...

Well, he hasn’t argued that he’s innocent; that the evidence is fabricated. The evidence is stuff he tweets. He argues that the system allows these mean people too much time to talk and scheme.

What do you think Roy Cohn would ever have been convicted on?

Then the former governor of New York is wrong.

https://www.justsecurity.org/85605/survey-of-past-new-york-f...

175.10 has been used before. There are many things which are firsts, and a lot of shaky legal theory. My I'd put 10 to 1 odds this gets overturned, and 5 to 1 odds it happens before it gets to the supreme court.

1. Usually they charge the predicate crime.

2. FECA has never been used as a predicate crime.

3. I don't believe a campaign finance reporting violation has been tried as election interference.

4. There are a lot of unsettled questions about these laws like can 175.10 point to a federal crime? Is hasn't been prosecuted that way before. Can it point to FECA despite FECA's broad preemption?

Law professors discussing these issues below.

https://shugerblogcom.wordpress.com/2023/04/04/a-potential-p...

https://law.syracuse.edu/news/professor-gregory-germain-writ...

And the CNN legal analyst that was covering the case? https://nymag.com/intelligencer/article/trump-was-convicted-...

The examples in the article tie the business records crime to another crime that’s at least charged, things like insurance fraud, failing to pay taxes, fraudulently obtaining government benefits, etc. Remarkably, prosecutors couldn’t find evidence of “Kinpin” Trump doing any of those things.

The problem with the Trump prosecution is that it is predicated on an uncharged and rarely used election law crime, and that in turn is predicated on an uncharged federal campaign finance crime. It’s a double bank shot. It’s fair to say that prosecutors didn’t have occasion to charge someone else with a documents crime in connection with an election law crime. But there’s not a single example in your list where prosecutors upgraded the documents crime to a felony based on a chain of two other, uncharged, crimes that relate to far-flung areas of the law.

On top of that, the uncharged predicate crimes have been interpreted in a sweeping way. According to New York prosecutors, agreeing with others to suppress bad news during a campaign is criminal election interference, so long as it can be connected to any other “unlawful” act.

Then the third piece, the unlawful act underpinning the election interference charge, is a federal campaign finance violation that SDNY declined to prosecute, and which New York couldn’t have brought against Trump.

There’s the statute of limitations and jurisdictional issues: none of the claims could have been brought by themselves. There’s the due process issue: because they were not charged, Trump’s counsel had no way to challenge the novel interpretations of the election interference and election law charges.

Cuomo (the former NY AG) and Honig (a former federal prosecutor) are correct. A case based on such an elaborate legal theory with as much hair on it as this one had would not have been brought unless the defendant was Donald Trump.

This case was architected by Carey Dunne, my former boss at Davis Polk. If this case had instead been brought against a gang member, him and folks at Davis Polk would be lining up to do the appeal. But instead they have abandoned the principles of the legal profession and are looking the other way out of class loyalty. It’s shameful and a stain on the profession.

Ultimately the prosecution proved Trump’s indictment of the professional managerial class. They cannot be trusted to uphold the principles of their professions, and will abuse the authority those professions confer to advance their own ideological agendas.

There goes the draft Cuomo movement.

Because average citizens and politicians don't generally attract (unceasing) partisan lawfare that is tantamount to systemic corruption.

When prosecutors campaign on pursuing an individual, when such efforts are multipolar and unending, and when the sum effort looks corrupt to a large portion of the country, then it seems obvious to suggest that outrage at a resultant SC ruling, which would not have otherwise come under consideration, is crying over one's self-inflicted medicine.

I don't think that it is healthy that this was put to the SC.

But it was absolutely inevitable given the various prosecutorial efforts and the norm breaking they represent. Even ignoring the open political corruption, and lies, involving them. Though, these aspects aren't necessary to ignore.

In short, breaking norms to pursue Trump was worth the squeeze for them. They were squeezed. That's it.

Assuming that these aren't crocodile tears over a ruling that will protect others from actual accused crimes of the past, or what might come in the future. That these prosecutions weren't specifically brought to force this result. Which is entirely possible. Certainly, such a benefit will be had.

If I understand this correctly, the core effect of this is to essentially transfer the gateway through which it is possible to prosecute a president from any AG's office to Congress.

I suspect which will serve to further entrench establishment power, of which Biden's camp is a part. Presidents within Congressional graces will be effectively immune, crime or no crime. Presidents outside of them may not be so much.

Whomever lived through 2016-2020 and thinks that Trump will have some kind of Congressional carte blanche either hasn't thought this through or is being deceptive.

Compare the improbability of Trump being able to swerve out of his lane, as far as Congress is concerned, and what Obama was able to legally get away with without stirring Congress.

Now predicated on the precedent of Obama's extrajudicial action, Trump may have been able to carry out extrajudicial acts during his term. But no one who was watching thinks that anything without a precedent would have resulted in anything except another Trump impeachment.

Did you really refer to charging Trump for several felonies for which there is abundant evidence, "lawfare?" That is a weird way to say "consequences for breaking the law."

The average American commits three felonies a day.

Then I guess Trump has only been successfully prosecuted (so far) for 11.33 days' actions of his presidency. That's a lot of days to go. I can see why he needs immunity.

Actually based on that logic, we all need immunity! Quick, let's get rid of laws entirely.

How many of them involve stealing classified docs?

Normal criminal prosecution is not a good check on a president's authority because the president indirectly supervises the prosecutors. So as a system to ensure "equality in the eyes of the law" the criminal justice system already is not very functional in anything like real time.

The DOJ threat of criminal prosecution only becomes functional when the president becomes a private person, at which point the president no longer has the ability to act in an official capacity anyway.

As for SEAL Team 6, they have a "duty to disobey" unlawful orders[1]-- which every member of the team probably knows off the top of their heads-- and which is a much more effective real-time check on a president's authority.

[1] https://www.findlaw.com/legalblogs/law-and-life/what-is-a-mi...

I’m not a NSW operator but I was an operator for HVT ground and helicopter assault missions in Iraq with the teams.

There are a non trivial subset of Tier1 operators who would absolutely take whatever mission they were given by the president and do not view their role as being political

Yes it’s in the training, but it’s not something that is expected because operations like this touch hundreds of people who ARENT operators (generals, joint staff, analysis, strategic planners etc…) that teams rely on to wave that flag through the targeting and JPOE process

The President also has the power to pardon, including himself.

For Federal crimes, not state. He still needs to cover up crimes in blue states.

> As for SEAL Team 6, they have a "duty to disobey" unlawful orders[1]-- which every member of the team probably knows off the top of their heads-- and which is a much more effective real-time check on a president's authority.

This is an incredibly flimsy check on power:

- What if the president uses a drone strike instead?

- What if the president staffs the military (and seal team 6) with loyalists?

- What if the president uses this power to threaten and extort officials into doing his bidding?

>As for SEAL Team 6, they have a "duty to disobey" unlawful orders[1]-- which every member of the team probably knows off the top of their heads-- and which is a much more effective real-time check on a president's authority.

Now, let's play that out in real time:

Donald Trump: please kill person XYZ. Seal Team 6: Uh, no sir, that's illegal. We cannot do that. Donald Trump: the courts say I have immunity, this is an official act. Person XYZ is a threat to our country, and under the constitution I'm allowed to defend this country against all enemies, foreign and domestic. This person is a domestic enemy. Kill them. Seal Team 6: Uh, no sir, we can't do that. Donald Trump: You're fired. I'm replacing you with someone that can do what I tell them. Seal team 6: Ok, we'll kill person XYZ.

And the courts will have no problem with that, as per their ruling.

This is quite common. British parliamentary systems offer immunity to members in their official acts.

Why?

Because, and this is purely hypothetical (lol), an opponent could try and convict politicians with spurious charges to get them out of power.

Singapore’s ruling party loves this tactic. Political opponent is charged with defamation, and if fined more than $5,000, they are no longer eligible to run for office.

It’s a commonly used political weapon which is why most democracies offer immunity.

Absolute immunity does not make for a credible juridical system. While most democracies have some sort of restrictions, a full out absolutely immunity is not very common.

Wikipedia has a (non-inclusive) list: https://en.wikipedia.org/wiki/Parliamentary_immunity

The Supreme Court decision wasn't absolute immunity?

So...kinda the same?

The office of the presidency is certainly not equal under the law to everyone else's professional position. The president is in charge of the military, for one thing, and can act in the interest of national security.

Why should the President be allowed pardon his friends and allies?

It's not about what the president deserves, but what the people deserve. The founders (after overthrowing one government, forming another, deciding it failed) were tasked with forming a government that can "long endure"... with structuring an office that can both facilitate liberty, but also contend with major enemies foreign (and domestic). The scale of the question is beyond one life or death, but operates on centuries-long timelines. It deals with the equities that face millions of people, not merely the single person holding office.

> why not

Yeah, it seems this would hinge on whether it was done to protect democracy (official duty?) vs win an election (not but who knows by now). If Biden gives up on running anyway, that removes that question. Then it may not matter much because it's not clear which testimony, recording or other evidence might be admissible where. Then it may not matter because the issue is not even whether that would be illegal or not - just whether the president would have immunity in case it is illegal - and there is evidence - and someone attempts to charge something

Interesting rough overview of that question is here:

https://abcnews.go.com/Politics/seal-team-6-assassination-hy...

Some positions seem more absurd than the usual. For example someone argues "SEAL team 6 would obviously not accept that illegal order" Which seems irrelevant every which way: presumes it's illegal and focuses too much on this one specific example. And accepts SEAL Team 6 for more than a meme - there are obviously lots of outfits other than that one.

Okay, but invert that hypothetical. The American President orders a lot of people killed, including sometimes U.S. citizens. More commonly, they order things that result in significant loss of life, which could be prosecuted as negligent or reckless homicide.

Should former presidents be subject to prosecution for those decisions? Remember that criminal laws are often extremely broad, and you can use conspiracy and other legal theories to make someone liable who didn’t perform the actual killing. Heck, part of the J6 prosecution against Trump somehow involves an Enron-era document shredding law.

What I feel like the dissent misses completely, which is quite ironic given Justice Sotomayor’s history in private practice, is that not having any sort of immunity means trusting every prosecutor in the country with pretty much unrestricted discretion to stitch together vague criminal laws into criminal charges against former presidents. Why should we place such trust in prosecutors?

> Why should we place such trust in prosecutors?

Why should we instead trust a single person with an absolute immunity for vague “official acts”? Said person is way more powerful than any of the prosecutors.

Because we live in a democracy and at some point we have to respect the pesky will of the pesky people to elect their pesky leaders. If you assume that the people don't want the rule of law, then you must conclude that the people don't want a government.

I don't agree that this is what living in a democracy means. It has been known since ancient times that democracy is vulnerable to hostile takeover by a populist demagogue. Sometimes, paradoxical as it seems, it is necessary to overrule the people to preserve the democratic system.

Maybe, but who is doing the overruling, how do prevent it from being abused for political purposes, and how do you keep the overruled people from becoming very cynical and dissatisfied with democracy as a result?

Keep asking those questions while trump implements project 2025. I’m sure once you figure it out, the stooges behind it will give up all that juicy executive power.

The executive is already 90% filled with people who not only are one party, but share a particular, distinctive ideology, who have demonstrated their willingness to subvert the institutions they work for in service of that ideology: https://www.washingtonpost.com/politics/resistance-from-with.... (Remember this happened before Trump did anything. It was based purely on federal workers’ moral objections to Trump’s stance on immigration.)

If Project 2025 succeeds behind its wildest dreams, it won’t even come close to even balancing things out.

> If Project 2025 succeeds behind its wildest dreams, it won’t even come close to even balancing things out.

You're pretty optimistic about that. Trump has amply demonstrated that he can be ruthless. And he'll bring on people as cabinet secretaries and undersecretaries who will be of the same mind.

No, its pessimism. Trump doesn’t have what it takes to restore the system to even a semblance of balance. I’m not sure it’s even possible given the decay in government-adjacent institutions like the law schools and bar associations.

> The executive is already 90% filled with people who not only are one party, but share a particular, distinctive ideology

Polls suggest not.[1]

> (Remember this happened before Trump did anything. It was based purely on federal workers’ moral objections to Trump’s stance on immigration.)

The article said not.

[1] https://www.govexec.com/management/2016/07/poll-clinton-open...

Government for thee and not for me seems to be the going (and historically traditional) approach - hence why fascists are attractive to people who want to be “lords”

Being able to do what you want, so long as you “kiss the ring” has unfortunately been a reliable path to temporary and virtueless power

Unless the non-activist citizen votes to give their power to the most virtuous, they generally default to giving away power to someone they believe will ultimately give them priority with the least amount of impact to their core personality trait

You’re analyzing this wrong. Trump has the edge among “non-activist” citizens: https://www.cnn.com/2024/05/29/politics/turnout-2024-electio...

Trump’s authoritarianism appeals to people who feel that he can control the various unelected people they feel have too much power over their lives and society: career bureaucrats, corporate HE, NGOs, universities, etc.

Remember the 2017 “Resistance” against Trump? https://www.washingtonpost.com/politics/resistance-from-with....

This revealed that no matter which party wins the election, the fourth branch of government is staffed and run by Democrats. All the three letter agencies are staffed by 95% Democrats. And people think that Trump can bring them to heel.

> All the three letter agencies are staffed by 95% Democrats.

[Citation Needed]

Assuming that campaign donations are evenly distributed between democrats and republicans: https://www.govexec.com/pay-benefits/2016/10/federal-employe...

I’ll add many federal employees are members of professional organizations. And in the last decade, professional organizations have become overtly political. And all of these are staffed mainly by democrats. Paul Clement, one of the leading Supreme Court advocates of our generation, left Kirkland, known as a conservative firm, over the firms opposition to second amendment cases: https://www.law.com/americanlawyer/2022/06/23/kirkland-ellis.... This is a firm that will not hesitate to represent the worst Russian oligarchs, mass polluters like BP, etc.

Another example is SFFA. A super-majority of the public opposes racial preferences in college admissions and hiring. But not a single prominent law firm authored an amicus brief in support of overturning affirmative action.

Half the country doesn’t trust credentialed professionals anymore, and with good reason

"The former State Department secretary led the businessman by 5 percentage points among federal employees in a July poll by the Government Business Council, the research arm of Government Executive Media Group, with 42 percent of respondents saying they would vote for Clinton, compared to 37 percent who said the same for Trump."

From your article, that sounds more like close to even instead of your exaggerated 95%.

And I suppose non-credentialed people are more trustworthy then?

Not for imposing will on the people, that is for elected officials.

I trust credentialed people for providing facts and research in their domain, not writing policies.

The point is that credentials plus $3.50 will buy you a coffee in our democratic system. The system shouldn’t be designed to give more weight to your views on broad value issues-say through the actions of unelected bureaucracies or professional organizations—just because you have credentials.

You won’t find it because it’s impossible. Majority democrats? Probably they’d be more likely to be attracted to a government service office. 95%?they pulled it out of their posterior.

We’re actually saying the same thing: the plurality of voters just want to be in the “winning gang” so they can feel protected from the scary world

That's not democracy, that's majoritarianism

Explain the difference.

What does “democracy” mean to you? A country where people vote, but unelected bureaucrats and lawyers actually run things and will do what they think is best?

Hypothetical: Trump is campaigning on immigration. Say he wins the election and issues an executive order to deport every single illegal immigrant. What should happen, in a democracy?

> What does “democracy” mean to you? A country where people vote, but unelected bureaucrats and lawyers actually run things and will do what they think is best?

"People" generally don't have the expertise to run things in a complex modern world. Bureaucrats and lawyers aren't always better, but pace Damon Runyon (quoting sportswriter Hugh Keough), that's the way to bet. [0]

"Democracy" in a complex modern world means that "people" periodically get an opportunity to toss out the bureaucrats and lawyers — because ballots are better than bullets.

[0] "The race is not always to the swift, nor the battle to the strong; but that is the way to bet." https://quoteinvestigator.com/2015/06/04/race-swift/#google_...

The problem isn’t that bureaucrats and lawyers are exercising their expertise. It’s that they’re elevating their personal values above their jobs and institutions. They need to shut up and dribble.

In the united states, the people get to influence things through their representatives in congress, not through unlimited executive power.

I don't believe that congress is doing a good job representing the people but I don't think that the solution to that is to elect a king.

When the president uses the power of the executive branch to enforce an ideology you agree with = democracy.

When you disagree with the ideology = king.

How does that make sense?

I don't think the president should be above the law. I think most presidents have committed crimes and I'd like to see them face more scrutiny not less.

Because that person is elected by a nationwide polity, while prosecutors often aren’t elected, or are elected by politically skewed polities.

Half the country doesn’t share your faith that career prosecutors will do “what’s good for the country” instead of indulging their personal biases.

I would point out that prosecuting Trump under Sarbanes Oxley (a financial fraud law) for supposed insurrection doesn’t exactly engender trust and confidence in career prosecutors.

Any discussion on elections in America that occurs post Fox and post internet has been in an era of extreme partisanship and polarization.

This case came up because a sitting President supported an insurrection.

The law is about the application of principles.

Sure. The President is elected.

Sure. Prosecutors are not. We don’t trust unelected prosecutors.

Sure. The Judges are not elected…

Therefore We don’t trust judges.

——

Frankly with the powers provided, the dems should really just exercise them.

I’m pretty certain that will immediately shift the narrative.

Even the president is elected indirectly in the “land of the free”, it’s a joke of a “democracy”.

> What I feel like the dissent misses completely, which is quite ironic given Justice Sotomayor’s history in private practice

Why do you presume that the dissent did not consider this? What are your qualifications to think you’ve considered this more completely than the SCOTUS (whether or not you agree)?

Well, because the dissent doesn’t mention it.

The inverse of immunity is not that any prosecutor can prosecute. That's the happy medium. Even the most reckless prosecutor would still have to convince a jury, and would still have to go up against a defense in court.

The inverse of total immunity (freedom, no jury, no trial) would be total oppression (prison, no jury, no trial).

> More commonly, they order things that result in significant loss of life, which could be prosecuted as negligent or reckless homicide.

> Should former presidents be subject to prosecution for those decisions?

Yes! That war crimes have become normal behavior for US Presidents doesn't mean that we now need more legal frameworks for protecting from prosecution of them.

It seems to me that, if we are to actually become a nation of laws and not of men, we need to acknowledge and account for the crimes in office of virtually every president. And if that's too difficult to do, politically speaking, then we simply aren't what we say we are.

> Remember that criminal laws are often extremely broad, and you can use conspiracy and other legal theories to make someone liable who didn’t perform the actual killing.

This is also a huge problem. It seems that many of us walk around unknowingly subject to capricious prosecution for felonies (according to one author, three felonies a day[0]). How can we have equal protection under the law when any of us can be prosecuted at any time, and the matter of which of us are is one of political discretion?

---- > What I feel like the dissent misses completely, which is quite ironic given Justice Sotomayor’s history in private practice, is that not having any sort of immunity means trusting every prosecutor in the country

While the dissent is unsatisfying in some ways (including following the trend of exhaustive and distracting analysis of the particular facts of the case instead of sharp focus on the ostensibly simpler constitutional issues), you are mistaken, as the phenomenon you are describing is contemplated at length - 9 pages (13-21) are committed to this analysis [1].

0: https://www.goodreads.com/book/show/6611240-three-felonies-a...

1: https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

They said in effect that using Seal Team 6 would be presumptively immune, and at that point the court would have to consider whether prosecuting a president for assassinating his rival would impose a chilling effect that would impair future presidents ability to command the armed forces. Since killing your domestic rival is not an important part of tactical wartime decisions, the government would easily overcome the presumption.

The President is the commander-in-chief of the armed forces. Why would he have to stop at only his domestic rival when he could instead simply eliminate anyone who appears to be in the way, and whether or not that is the right decision is deferred to congress and the courts who now consist of people who are still alive and have fallen in line?

And presumably people who want to continue staying alive...

A future court might rule that.

This court would rule that people upset about the president assassinating all their rivals should just get elected president and change the policy.

After all, they already did say that women that want health care and the right to prevent (according to the court) overwhelmingly male politicians from messing with their lady bits should just run for Supreme Court and overturn their recent rulings.

The presumptive immunity standard only applies to official acts that aren't "core" exercises of the President's constitutional authority. Any enumerated power is core and enjoys absolute immunity, regardless of motive; anything unenumerated but "official" has merely presumptive immunity.

The President's power as Commander in Chief is enumerated, so having Seal Team 6 whack DeSantis would be absolutely immune to prosecution.

What is the scope of these "core" powers? During times of war, the Commander in Chief directs military maneuvers etc. in active theatres of combat. At all times he directs readiness and training.

I wouldn't say that the history and tradition of the office is to have Delta Force manufacture artistic pottery cups for children to drink milk from while at school. That action in that time and place would not seem to fall within the role of Commander in Chief (regardless of his intent / subjective belief that the use of fine porcelain may provide some tactical advantage).

The scope of the powers is however the Commander in Chief sees fit and has a DOJ, Court, and Congress to rubber-stamp his/her actions.

That was the whole point of the decision - the official in question gets to determine what is/isn't an official action.

> The President's power as Commander in Chief is enumerated, so having Seal Team 6 whack DeSantis would be absolutely immune to prosecution.

This does not seem to fit either the examples set in the majority opinion or a reasonable understanding of what the President's enumerated power as commander in chief means. In the absence of a Congressional declaration of war against Ron DeSantis (which I am all for) the President's core duty would seem to cover killing DeSantis only in the event of a clear and present danger to the nation from DeSantis. Otherwise this is rebuttable, and will be pretty easily rebutted, immunity.

Yes, we are relying on the courts to carve that kind of fine distinction, and yes, this decision makes that a bit harder. But hardly impossible, and we were already relying on the courts for that. Subjecting this decision to the most ridiculous interpretation is politically useful right now but that's about all it's good for.

The Seal Team 6 example was actually originated by another judge 5 months ago and even then Trump's lawyer did not dismiss the example as purely ridiculous. You can look it up.

Trump's lawyers didn't have the opportunity to read the majority opinion before it was written. We do have the opportunity to read it now. Also, I don't know if you have, but I've noticed that Trump doesn't hire the highest quality lawyers.

> This ruling seems to open the door to a president being immune from, say, commanding SEAL Team 6 to assassinate a political rival.

Immune from judicial prosecution.

Not immune from Congressional prosecution.

---

This isn't a unique concept.

For example, if SEAL Team 6 improperly kills someone on a mission, they aren't prosecuted in criminal court; they are court-martialed.

There is accountability, but due to the unique nature of the profession, it has a specialized venue.

> Not immune from Congressional prosecution.

SEAL Team 6 can take care of that too

how can SEAL Team 6 even refuse a presidential order ?

Because they swear loyalty to the US Constitution, not POTUS, and can refuse to obey unlawful orders.

It's no longer unawful for the commander in chief to consider an opponent a threat to the country and have them killed.

That's the problem.

That's not what the judgement says.

It in Sotomayer's dissenting opinion of the judgement.

It's pretty much a truism that one should never rely on a dissent's characterization of what the majority opinion says. Especially if the dissent writer is Sotomayor or Alito, frankly.

Murdering political rivals isn't a core constitutional duty of the President with automatic immunity. If he orders Seal Team 6 to do it, it's an official act, for which he has a rebuttable presumption of immunity. That means the prosecution has to prove he hasn't got immunity.

Roberts at least strongly hints in the majority opinion that Trump's immunity for trying to coerce Pence to commit crimes on Jan. 6 should be rebuttable. If that's the bar then ordering Seal Team Six to kill people will definitely get a president sent to prison the day he leaves office, whether the regular way or by impeachment.

Immunity before impeachment has pretty much been the position of the Justice Department (I think wrongly btw) with regard to current presidents for decades, including the Biden justice department. This isn't as big of a change as it makes sense for the Democrats to make it out to be.

> Especially if the dissent writer is Sotomayor or Alito, frankly.

Weird. Sotomayor is one of the few credible justices we have.

I've listened to her during the vaccine mandates oral arguments. She was emotional during all the hearing and made blatantly false emotion based statements such as "think of all the millions of dead children".

The example you gave doesn't seem emotional or blatantly false, but factual and appropriate.

Personal preference admittedly, but I much prefer Kagan and so far, Jackson. Sotomayor, like Alito and sometimes Thomas but generally not the rest, strikes me as purely results-oriented. The Chief justice is results-oriented in a different way. I think the reasoning matters more than the outcome, but I understand that not everyone does.

Kagan's also a much better writer.

Actually, that's exactly what the judgement allows for.

Citation needed. Now on, we understand that powers granted the President by the Constitution are official. Actions even marginally associated with those powers cannot produce evidence in a court of law.

The judgement says that the President has immunity (in certain narrow cases). It does not say that members of the military have immunity for following an unlawful order.

It would also be very easy for a court to decide that executing a political rival is not an official act and deny the President immunity.

> (in certain narrow cases)

Again, citation needed. The whole problem today is that the category of immunity is so vague so as to be overly broad.

> It does not say that members of the military have immunity for following an unlawful order.

No, but it does say the President has an unreviewable pardon power to absolve them from any crime they are ordered by the President to commit.

> It would also be very easy for a court to decide that executing a political rival is not an official act and deny the President immunity.

It's now also very easy for a court to decide that it is. That is the problem.

The citation is the Supreme Court ruling itself, which I had assumed people participating in this discussion were familiar with. It grants "absolute immunity from criminal prosecution [only] for actions within his conclusive and preclusive constitutional authority".

That is a narrow standard. The only acts in this case which met that standard were discussions with Justice Department officials.

Everything else in this case was in fact remanded, and it remains within the power of the lower courts to deny Trump immunity on all other aspects of the case.

Thank you for the citation (citations are not limited to documents, but often and especially in a large document of hundreds of pages, direct one to specific passages, as you did did here).

Your citation is exactly the bit that makes the President immune for directing Seal Team 6 to execute a political rival -- directing the military is within the President's "conclusive and preclusive constitutional authority". According to the Supreme Court, such a direction is now "absolute immunity from criminal prosecution".

Again, removing elected officials by any other process other than the what the Constitution provides for is not within the Presidents' power.

This is clearly an unlawful act that all military members are obligated not to obey.

But the President can declare a person an enemy combstant, or have them arrested in the name of national security, and their private records are now inadmissible.

> Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial. Pp. 30-32.

> But the President can declare a person an enemy combstant,

"Citation needed"

Read the judgement and stop making assumptions.

I did, cite the relevant part that I missed then.

https://en.m.wikipedia.org/wiki/Anwar_al-Awlaki

Trump's influencers work around that in a different way: by singling out individuals for military tribunals[1], he is not using the pardon power to deprive them of due process, or excuse someone else from doing so. The military tribunal deprives them of due process. But trying a civilian in a military tribunal is only constitutional if a civilian court is unavailable, which happens out of convenience in places like Guantanemo Bay.

[1] nytimes, https://archive.ph/fz52u

Influencers are not official agents of Trump as a President... You're making a non-sequiture

> Again, citation needed.

Read the judgement. It's literally in the first pages.

> No, but it does say the President has an unreviewable pardon power to absolve them from any crime they are ordered by the President to commit.

A President can't pardon non-federal crimes or overturn the a conviction through impeachment as it would remove power from Congress and the Senate, which a President can't remove.

> It's now also very easy for a court to decide that it is. That is the problem.

Believing that ordering the assassination of elected officials would be considered lawful by judges is just so insane that it makes Alex Jones look like a legal scholar.

> Read the judgement. It's literally in the first pages.

I read it. I read that it's absolute immunity in core function, which seems pretty damn broad to me. Can you explain how nonreviewable power over control of the military and DOJ fits the description of "limited"?

> A President can't pardon non-federal crimes

He won't need to -- the whole point of giving the President this broad unreviewable power was so that non federal officials couldn't harass the president by charging him with crimes for carrying out his official duties. Where again what constitutes an "official duty" is left up to SCOTUS.

> Believing that ordering the assassination of elected officials would be considered lawful by judges is just so insane that it makes Alex Jones look like a legal scholar.

The prospect of this very ruling was considered so insane by legal scholars so as to be implausible, and yet here we are!

Judges don't have to find the assassination of elected officials to be legal, they just have to find the Supreme Court doesn't allow them to use most of the evidence of that crime at trial, and that they must presume motive for the assassination was good. How do you prosecute that case? Can't subpoena any evidence because it wouldn't survive an "absolute immunity" challenge by the President's lawyers.

That is the implication of the plain text of this law, it's with Justice Sotomayor is worried about, and I think it's pretty beneath you to try to compare her vast level of expertise to Alex Jones.

> read that it's absolute immunity in core function, which seems pretty damn broad to me

It's limited in scope, and still subject to impeachment, which immunity comes from because otherwise going through impeachment would be pointless.

> Can you explain how nonreviewable power over control of the military and DOJ fits the description of "limited"?

The President can't just kill anyone he wants, it's just a power he doesn't have. The President is not judge, jury and executioner. Having control doesn't mean you can do what you want with it.

> e won't need to -- the whole point of giving the President this broad unreviewable power was so that non federal officials couldn't harass the president by charging him with crimes for carrying out his official duties.

You're beginning to understand

> Where again what constitutes an "official duty" is left up to SCOTUS.

And?

> The prospect of this very ruling was considered so insane by legal scholars so as to be implausible, and yet here we are!

These same legal scholars were fine with not charging the last 4 presidents with war crimes and other atrocities. Because it was always the case, nothing has changed except limiting the scope of presidential immunity.

> Judges don't have to find the assassination of elected officials to be legal, they just have to find the Supreme Court doesn't allow them to use most of the evidence of that crime at trial, and that they must presume motive for the assassination was good. How do you prosecute that case? Can't subpoena any evidence because it wouldn't survive an "absolute immunity" challenge by the President's lawyers.

If the armed forces are killing politicians then at this point the Constitution is a mere piece of paper and no amount of super-majority or SCOTUS rulings is going to make a difference.

> That is the implication of the plain text of this law, it's with Justice Sotomayor is worried about, and I think it's pretty beneath you to try to compare her vast level of expertise to Alex Jones.

Sotomayor is an emotional militant judge and not taken seriously outside left leaning political militant circles. The oral hearings over the vaccine mandates is a good example: "but there are millions of dead children" she said crying. Yes, she did that. This is JFK assasination level conspiracy theory whether you like it or not.

> It's limited in scope

Okay but the entire DOJ and military is a huge freaking scope, so what's the real limit here? We're talking about absolute nonreviewable control of the most powerful army and the biggest law firm on the planet.

> still subject to impeachment

This might be reassuring if we didn't go through two egregious examples of impeachment that didn't result in removal. In the first one, Trump attempted to us federal dollars to extort a bribe from a from the Ukrainian President. At the impeachment trial, Trump via Alan Dershowitz argued this conduct was okay because it was taken to increase his electoral chances, and Trump viewed his own election as benefitting America, therefore his actions were to benefit America and not grounds for removal. Because after all how can you be removed for doing what you think is best? From the trial:

  “If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in an impeachment”

The Senate AGREED with that argument and acquitted him on the charges. So even in the case of extorting a bribe, impeachment is not operable as long as the executive claims the extortion and bribe were for the good of the country. The supreme court in their latest ruling seems to agree with this perspective.

In the second impeachment, Trump attempted to stay in power by orchestrating a coup. Mitch McConnell all but voted to impeach, but fell short because in his view, the impeachment happened after POTUS left office and there was a criminal justice system to hold him accountable.

On the first part, well that just means the period between an election and inauguration is a now a crime-spree zone for any lame duck POTUS. They can commit any crimes they want using the DOJ and military during that period, and we know the Senate won't impeach because there's too little time for the impeachment to happen, and now we know the DOJ will probably not be able to prosecute due to this ruling hamstringing the types of evidence and charges that can be brought.

On the second part, we have yet to see whether the system of justice can hold him accountable for the coup. To date, it has not worked and it's been 3.5 years. So it's not clear the federal system of justice can hold any former executive accountable for any criminal conduct whatsoever. States have proven to be more effective at charging and trying criminal conduct, but we have yet to see if it results in any accountability.

So no, impeachment doesn't fix this system. This is a huge exploit. Since it was added intentionally we might call it a back door.

> The President can't just kill anyone he wants, it's just a power he doesn't have. The President is not judge, jury and executioner. Having control doesn't mean you can do what you want with it.

Who is going to stop him though? That's the thing people don't understand about executive power. Before the thing stopping that conduct was the thought it was illegal and he would be prosecuted for it after he left office. But now? Now as long as the act was "official", good luck proving it without evidence. Good luck even charging it.

How did people end up in Guantanamo Bay without trial? Tortured? Imprisoned for years without charges or a trial. Who stopped that from happening? What makes you think you're safe from the same treatment now?

> And?

Well that's a pretty big hole in your argument since you're trying to convince me the powers are limited. If the limits of the powers are currently unbounded and the bounds are left up to the people who just gave POTUS sweeping immunity over the DOJ and military, then what are the actual limitations? Neither you nor I nor the SCOTUS judges actually know, so your insisting that the powers are limited is not really true.

> These same legal scholars were fine with not charging the last 4 presidents with war crimes and other atrocities. nothing has changed except limiting the scope of presidential immunity.

The ones I had listened to had predicted some limited immunity around things like the military and DOJ, especially the DOJ.

> If the armed forces are killing politicians then at this point the Constitution is a mere piece

I mean... yes? The point is to raise the alarm before it gets that dire by pointing out the ways we can go from here to there. Are you suggesting that it's impossible the armed forces would kill politicians in America? Doesn't that happen elsewhere in the world? Hasn't there already been a civil war here?

> Sotomayor is an emotional militant judge and not taken seriously outside left leaning political militant circles.

Lol I wouldn't even say the same things about the right leaning justices, glad to see where your extreme biases are.

It would also be very easy for a court to decide that executing a political rival is not an official act and deny the President immunity.

What do you think the odds are for this Supreme Court to declare e.g. that shredding official documents (or moving them to the president's private property) is an official act?

Only the President can decide what happens to his records and documents. This has been made clear under Navy v. Egan. Congress can pass no laws regarding classification or record keeping. The Presidential Records Act has a caveat where the "personal records" of the President belong exclusively to him, and it's the President who decides what is personal or not.

That's a fascinating interpretation of PRA, which establishes public ownership of all Presidential records. Specifying if a record is private is the responsibility of his/her staff and done at the time of filing. Of course, Trump has tried to quote from the PRA, but he's not charged with any PRA violations, but under the Espionage Act.

> That's a fascinating interpretation of PRA

But is it wrong? That's what the legal scholars I've read said, otherwise the PRA wouldn't be constitutional.

I’ll take your word for it, but PRA is off-topic.

Sotomayor disagrees with you, as does the current President of the USA, so I dissent your interpretation

And? She's not really seen as a the smartest justice out there, to put it gently.

She is one of the best lawyers and jurists in the country, certainly much better than 99.999999% of the people on HN

This only works if the head of the executive branch doesn't select for loyalty.

The head of the executive branch doesn't select the members of seal team 6

What’s stopping them from doing so?

The Pendleton civil service reform act of 1883. It effectively ended the spoils system that previously allowed what you’re suggesting.

Donald Trump doesn't give a fuck about any civil service act. He never has, and never will.

He will do as he pleases, and a GOP led congress will simply let him, laws and precedent be damned (and the Supreme Court will comply). A DEM led congress will throw up their hands in uproar, and then refuse to actually do anything.

The first part sounds right, but the house introduced and voted yes on two impeachments, which isn't nothing.

How is that not nothing? He continued to remain in Office until the end of his term and even attempted to prolong his stay. If those impeachments were worth more than the paper the Constitution is written on, that would never have happened.

Parent comment specifically called out a "DEM led congress" refusing to do anything. An impeachment vote is the full extent of their power in getting rid of a president. And they did it twice in one term.

> that would never have happened.

What never would have happened? Some bizarre unknown chain-of-events which led to Trump staying in office? The occurrence which DEMs are somehow taking the heat for is the GOP outnumbering them and outvoting them in the senate to keep Trump in.

Only the Senate can remove the president. The House can only introduce articles of impeachment and vote on whether or not they go through.

This, I believe, was originally set forth because the Senate was modeled as an “upper house” not subject to the whims of popular agitation (6 year terms vs 2 year terms. Appointment/selection by States vs direct election by district constituencies). The House, having more direct connections to the people is given the power to investigate and impeach a president, hopefully as a reflection of the public. The Senate, being composed of elder statesmen and slightly removed from the direct consequences of local constituents, is to be a check on potential rash impeachments.

So I’d dare say the impeachments were worth the paper the constitution was written on. The House impeached. The Senate tried, and acquitted him.

And what happened to those two impeachments?

It is nothing, because nothing came of it.

Thanks for the citation. There's no language in that law that restricts the President's ability to directly appoint members to the military who are loyal to him. All it does is establishes a commission, chosen by the President, that can appoint members to the military. But it does not restrict the President from doing so. In fact the President is free to fire them all and let it languish.

Can you cite any other law or precedent that would restrict him from doing so?

The President is not capable of appointing members to the military unilaterally. Congress has sole power "To raise and support Armies" and "To provide and maintain a Navy." The President's role in accessions under title 10 exists only because Congress put it there.

There are 2 million people in the military. All the president would need to do is find a handful of existing personnel and organize them. He doesn't need to "raise" or "provide" anyone.

This is exactly how Trump organized the legislative coup within the White House. He went through the ranks of the DOJ to find someone who would draft a letter to send to all the states implying that fraud had been found (a lie) and DOJ was investigating (also a lie). No one at the DOJ would do this except for Jeffry Clark, a low ranking official who was promised the role of AG if he were to carry out Trump's scheme.

Maybe not the current ones but as Commander in Chief he absolutely can form Seal Team 7, secretly have them swear complete loyalty to him, and then assassinate whomever he wants. I think you’re sincerely thinking logically about this within the confines of a working democracy, if Trump wins and with this SCOTUS decision, that all goes out the window.

but they will comply when the law will back the POTUS and not them.

They must refuse to follow unlawful orders. They never get a choice. They always must follow the law. Refusing a lawful order is a crime, and following an unlawful order is a crime. But they never get a choice.

When someone can pardon you of the crime immediately after you do it, it doesn’t really matter much, especially is you are 100% dedicated to the cause.

I agree, which is why presidential immunity doesn’t seem like a big change.

Officer's oath swears to protect and defend the Constitution, no mention of the president.

Enlisted oath adds they will obey the orders of the president.

So a president or his intermediary just needs to find the right Master Sergeant. In theory.

But not to worry, there are plenty of authoritarian-friendly colonels available. Their oath doesn't prohibit them from following a president's orders.

Wrinkle: all officers and enlisted are required to refuse illegal orders. But if you do so, you better be right.

Of course, in this new United States that the Supreme Court created this week, summary executions could become a motivational tool.

https://en.m.wikipedia.org/w/index.php?title=United_States_A...

https://en.m.wikipedia.org/wiki/United_States_Uniformed_Serv...

https://www.acslaw.org/expertforum/what-the-law-of-military-...

https://en.m.wikipedia.org/wiki/Summary_execution

You must not have seen "A Few Good Men"

Who ordered that code red? Not LT Weinberg, that's for sure.

> SEAL Team 6 can take care of that too

No different than the judiciary, right?

---

I am constantly amazed by the number of new discoveries made on HN, like military coups.

SEAL Team 6 can just keep killing any one who would charge them with a crime, until they reach the final boss level i.e. SCOTUS who have X-Men like powers and attack all at once. It’s a toss-up at that point, it comes down to which side can successfully recruit Chuck Norris (both a member of Delta Force and an accomplished legal scholar.)

And they can be pardoned by the president after the fact.

...and they can legally BRIBE the president for the pardon too!

No, but they can give him a really big tip if he asks for one.

If Biden sends SEALs to kill Trump, do you think Democrats in Senate would impeach him? (Reminder, you need a 2/3 majority in that chamber).

I'm not an American, but I would assume so? Or wouldn't they?

If not so, is there a reason why not? "Murdering an oppositional politician in your own country" seems quite clean-cut bad and unjustified. I know your political system is very much "they vs us", but it can't be that bad?

You would think so right?

The problem is, the way things have been for the last couple of decades, many of us are not absolutely certain that the Senate would ever convict a sitting president unless it was 2/3rds of the opposite party -- which is pretty rare.

Probably, if a sitting president (regardless of party) assassinated a political rival, the Senate would convict. Probably.

They are almost certainly hyper-partisan Senators (of both parties) who would not convict a president from their own party no matter what.

The reasons for that would be multiple... greed, fear, a weird sense of loyality to the person, or even just a warped view of reality.

For example, if you thought Trump was Hitler 2.0 coming to take over the government and hunt down minorities and LGBTQ people, then you might feel justified in doing anything possible to prevent that -- including assassination.

Interesting, thanks for the insight! Hard to judge what's going on in the US sometimes from the other side of the pond :)

Part of the ruling was that the conversations between the Department of Justice, the main law enforcement arm of the US federal government, and the President -- which are among his "official duties" -- cannot be entered into a criminal proceeding as evidence against him. Part of the criminal case brought against Trump regarding his attempted coup on January 6 relied on evidence and testimony from conversations where he requested unlawful things or showed an unlawful motive, but he did so within the framework of his official duty as President. The case now returns to a lower court and the prosecutor must prove it without that evidence.

So henceforth from this Supreme Court ruling, the President can call up the Attorney General ("official duties," remember) and say, "find a reason to investigate and arrest my political opponent."

That act, that conversation is now protected. And that action will be carried out, and there is no legal recourse, at least not long after much damage has been done.

At many junctures, not only the January 6 capitol riot, but many others, Trump was only prevented from disastrous anti-democratic actions by principled staff and officials around him. This time around, Trump (or any other dictatorial pretender) will not make the mistake of filling their administration with anyone but sycophants. Trump installed many federal judges. Even leaving it up to the courts to decide if something is an "official" or "unofficial" act, after the fact, is now left to fiat.

> That act, that conversation is now protected.

It's even worse than that. The Supreme Court says prosecutors can't even question the motive for that corrupt action, meaning that essentially all conversations between a President and his AG are de jure assumed to be above board.

We must assume the President opened an investigation into his opponent because he had a good reason to do so. Otherwise we might restrict his ability to take bold and decisive action, according to the court.

What’s happening in the U.S. isn’t politics. It’s a quasi-religious schism that goes to fundamental beliefs about the nature of human society, how government should work, etc.

It doesn’t map on in obvious ways to what you see in Europe. In Denmark, for example, immigration was a political issue. When it turned out the people wanted to restrict immigration, the left of center government supported “far right” immigration restrictions.

In America, a large part of the left sees immigration as a moral issue, not a political one. When Trump was first inaugurated, the left refused to even accept Trump as legitimate because of his opposition to immigration. Hilary Clinton called his supporters “deplorables” and said he was “illegitimate.” This was long before any of the bad things he did.

>This was long before any of the bad things he did.

You haven't been paying attention for long, have you?

Donald Trump was known as a fraudster and a genuine piece of shit since the 1980s at a minimum.

I grew up in a very wealthy suburb of NYC in the 90s and early 00s and was well aware of Donald Trump being a sideshow joke and a wannabe rich dude about 20 years before he was elected. Nobody in my hometown that had real money thought Donald Trump was anything besides a lawsuit-happy wannabe with midget hands.

None of that changes what parent's points you're trying to respond to. The a partisan divide in the US is so bad now that neither side accept the results of elections being legitimate. Or court rulings for that matter. There's no nuance, and everything is a partisan conspiracy to take over the country, or wreck it.

None of that changes the parent's points you're trying to respond to. The a partisan divide in the US is so bad now that neither side accept the results of elections being legitimate. Or court rulings for that matter. There's no nuance, and everything is a partisan conspiracy to take over the country, or wreck it. Trump is lousy and shouldn't be president, true. But he's a symptom or result of the ongoing partisanship and failed politics.

> This was long before any of the bad things he did.

The reason Trump is now a convicted felon is due to conduct that happened while he ran for office.

Are we not allowed to call into question the legitimacy of someone who commits crimes to get elected, and then uses his position to cover up for those crimes?

What crimes did he commit to get elected? Trump is a crook but his crimes are almost all sleazy real estate and tax fraud. He didn't commit any crimes to get elected before his first term.

Did you follow the trial? He committed election fraud by paying a porn star hush money in order to buy her silence, an expense which he didn't report, lied about, and then covered up with business fraud. For this he was charged and convicted with 34 felonies.

What makes it election fraud?

He used campaign funds to do it.

Moreover, the payments should have been reported as a campaign expenses, but they were not because doing so would have defeated their purpose. So the payments were fraudulently misrepresented to be lawyer fees, and when it was discovered, Trump lied about the scheme.

> the payments should have been reported as a campaign expenses

You have it exactly backward. The law is clear that "campaign expenses" cannot have any personal component. That makes sense, because the focus of the law is to prevent candidates from calling things "campaign expenses" that are actually for personal benefit. John Edwards was prosecuted for using campaign funds to keep his mistress silent because hiding an affair has a personal component in addition to a political component.

If Trump had been charged with a campaign-finance violation, his straightforward defense under well-established precedent would be that paying off Stormy Daniels had a personal component (avoiding personal embarrassment and his wife finding out), in addition to whatever effect it had on the campaign. The prosecution would have been required to prove beyond a reasonable doubt that Trump's marriage was so dysfunctional that the only reason he would have paid off Stormy Daniels was the election.

That's why prosecutors didn't charge him with a campaign finance violation.

Whatever you're trying to say here is lost in the weeds.

You also can't have your personal lawyer take out a loan and spend it on expenses for your campaign and not report that as a campaign expense.

If you're running for public office, you can't commit fraud to hide things from the electorate because you don't want them to find out. That can't be allowed in free and fair elections. If you get elected doing that, people have every reason to question your legitimacy. If you get caught and lie about it, expect people not to trust you. If you get charged with a crime related to that conduct, don't be surprised when a jury finds you guilty, because it's shady af. This is all very straightforward stuff.

> Whatever you're trying to say here is lost in the weeds.

No, I’m talking about the law. You’re wrong about what you think campaign finance law says.

> You also can't have your personal lawyer take out a loan and spend it on expenses for your campaign and not report that as a campaign expense.

The law is the exact opposite. You cannot call something a “campaign expense” if it is an expense you would incur “irrespective of the campaign.” (That’s the magic phrase in FEC regulations.) If you pay off your mistress and call it a campaign expense, you’ll be prosecuted for campaign finance violations, because the prosecutor would say that you could have non-campaign reasons to do that. John Edwards was prosecuted for doing exactly that.

The New York federal prosecutor (SDNY) investigated the exact theory you are talking about: charging Trump with a campaign finance violation. They didn’t bring the case because all Trump would have to do is prove that he would have paid off Stormy Daniels “irrespective of the campaign.”

And? Like I said you’re lost in the weeds. I think you’re focused too much on being coy, rather than what I’m saying.

> The law is the exact opposite.

As far as I know if you spend money on a campaign you have to report it. If you get someone to spend money for you, you have to report it.

Seems like what you're trying to say is he didn't have to report it because arguably it had a personal component. Okay but that apparently wasn't the case; after the trial it is clear the payments were mostly for the campaign and not to save his relationship or himself of personal embarrassment. If you're trying to say "well he wasn't charged that way so it can't be election fraud" then again, I think you're missing my point.

Either way, I'm left at trying to guess your point because you haven't been clear in making it.

> They didn’t bring the case because

And?? Leaving aside you don’t know why any prosecutor didn’t bring a case, what are you implying? Make your point instead of dancing around it for 2 days.

Whether a prosecutor thinks they can prove that at trial is a different matter. That he was charged under a different law doesn’t make the underlying conduct okay from an elections perspective whether or not some federal prosecutor decided to charge that.

Either way what he did was he committed fraud and lied about it as POTUS, committing some of those crimes in the Oval Office, all to increase the chances of being elected. That is not okay. That makes one arguably (and definitely in my mind) illegitimate as a public servant. Apparently it’s also a felony.

If you think that conduct is okay because of whatever technicalities you can come up with, you’re missing my entire point.

How could it be about "campaign funds" when the charge was about the Trump organization's business records? What you're describing is a straightforward campaign finance violation, which he could have been charged with if it were true.

34 felonies for paying someone not to talk about something? That sounds like the mundane, everyday activity I can possibly imagine at the highest level of politics.

Meanwhile we’re sending billions of dollars to obliterate a people in the Middle East which is a crime that will someday result in violence on our doorstep. Bill Clinton is on record flying to Epsteins island, and I could go on about the insane things our government has got away with.

I dont know anything about politics but that’s my reaction when people bring up “34 felonies”.

"I dont know anything about politics" ... "activity I can possibly imagine at the highest level of politics."

So you don't know what you're talking about and you're just making up scenarios in your head?

What were the crimes? At the debate, Biden said Trump was convicted for “sleeping with a porn star while his wife was pregnant.”

34 counts of falsification of business records.

Which is a misdemeanor outside the statute of limitations, right?

I don't know what this is supposed to mean, but here is a detailed list of all 34 felony convictions.

https://www.npr.org/2024/05/30/g-s1-1848/trump-hush-money-tr...

If you have a point just make it.

You’re throwing around “34 felonies,” I’m trying to understand what you think was the legal theory he was convicted on.

Then you should have just asked that. My knowledge about the convictions comes from the court proceedings, not the debate. If you need info about the the charges you should read the transcripts.

Well, if they don't, it shows how evil they are. Same if it went the other way.

However, I don't believe they would. Not after the crap the Uniparty have done for my lifetime. Any president part of the uniparty will be protected and any president against it will be persecuted. We already have seen that.

Many Republicans have shown themselves to be unabashedly evil. What has happened to them? Apart from being reelected and getting more veto power? And what has happened to the principled ones who put country before party? Apart from losing or being pushed to retire?

One single indiscutable example: Trump is a draft-dodger. How many troop-supporting, valor-praising Republicans support him?

Oh, another one: Trump is a liar and a filanderer. How many Republican "values-first" voters and officials have refused to vote for him?

Just to pile on, but Republicans used to be called the "Law and Order" party too. Where has that gone?

What do you mean? Political persecution of opposition isn't law and order.

I think it's arguable that it's political persecution of the opposition when they are literally breaking into the White House and stabbing its guards with flags, but you do you.

No what I mean is, why is it that Democrats, those of the '68 Chicago riots, sit-ins, Occupy Wallstreet, etc., are the ones saying "Nobody is above the law"? That was always Republicans when I was a kid.

You can't blame Kagan or Sotomayor or Brown for persecuting the opposition, they haven't been a part of whatever you're talking about. They're just the ones saying that they don't want the president to be a king.

And this is good no matter what party you like best. There are three branches, they're supposed to be a check against each other so that no one branch one can attain supreme power. Congress has already abdicated so much power[1] [2] to the Executive branch that honestly the Judicial is our last chance to restore those checks. And they're failing.

And if you think political persecution of the opposition will be over once Trump is re-elected I recommend reading some of what he's said about exactly that topic, then think about how it relates to this Supreme Court decision.[3]

[1] https://www.cato.org/commentary/congress-willingly-abdicatin...

[2] https://www.brennancenter.org/our-work/analysis-opinion/emer...

[3] https://www.texastribune.org/2023/03/25/donald-trump-waco-ra...

I agree with this, but just a minor FYI that it's philanderer.

It's funny. You can replace every word to be the other way, and it's even more accurate. E.g:

Many Democrats have shown themselves to be unabashedly evil. What has happened to them? Apart from ballot stuffing to win and using exective power to target political opponents? And what has happened to the principled ones who put country before party? Apart from losing or being pushed to retire? One single indiscutable example: Biden is a racist. How many diversity-supporting, inclusive-praising Democrats support him?

Oh, another one: Biden is a liar and a pedophile. How many Democrats who focus so much on calling out lies voters and officials have refused to vote for him after his perpetual lieing?

> Well, if they don't, it shows how evil they are. Same if it went the other way.

See, the problem is some of us don't want to get to the point where we derive petty satisfaction of definitively knowing how evil someone can be. That's why we have (had) checks and balances: to prevent us from knowing -- in the most real way -- how evil someone can be. A significant check on presidential power was removed yesterday.

Where once the president was bound by law and constitution, now he is bound only by his ambition and personal moral compass.

Yes they (democrats) would, they’ve yet to support a coup or overthrow of the government or criminality by former or current presidents. So yeah I think they would.

Which they can avoid by resigning. So the worst penalty for almost any crime is they might have to step down,

Is anyone really worried about a situation where a president commits a crime and then voluntarily resigns? Authoritarians only do the first half...

That has literally happened in the United States before.

Trump has already proven himself to be more corrupt and sociopathic than Nixon. He was impeached and convicted and didn't resign. He is now a convicted felon and continues to pursue a second term. This is a different world.

Trump was not convicted at the impeachment trials.

https://en.wikipedia.org/wiki/First_impeachment_trial_of_Don...

https://en.wikipedia.org/wiki/Second_impeachment_trial_of_Do...

He was impeached, and every single politician voted on party line, the whole GOP is 100% corrupt (if you agree he clearly did do it) impeachment is not a useful tool in this situation.

From the Wikipedia page linked above:

> Seven Republican senators joined all Democratic and independent senators in voting to convict Trump, the largest bipartisan vote for an impeachment conviction of a U.S. president or former U.S. president. After the vote on the acquittal, Mitch McConnell said, "There's no question that President Trump is practically and morally responsible for provoking the events of the day." but he voted against conviction due to his interpretation of the United States Constitution.

It's worth noting that the Supreme Court ruling here probably disagrees with McConnell's interpretation of the Constitution in a way that should have changed his vote.

Yes, I'm aware, but it's also not what I'm worried about. And I doubt it's what anyone who is alarmed by this ruling is worried about. I dream of a world where the biggest concern we have is a president doing something illegal and then giving up the most powerful office in the land to avoid consequences. Does anyone think that Nixon would have resigned if this happened in 2024?

Nixon resigned because he was going to be impeached, and convicted in the impeachment, and he couldn't stop it. The House committee (whichever one originates such things) had already voted to impeach. It was then going to go to the full House, which would have voted to impeach, but Nixon resigned first.

To show what a different world it was then, the chair of the House committee, a Democrat, called his wife to tell her "we voted to impeach", *and then started crying" because it was horrible that it had come to that, and that the president had done such things. Today they would have been cheering.

The military doesn't let you "resign," and former service members can be charged in civilian federal court.

Not necessarily. SILTs and RILTs are options for case disposition, but the accused does not have the power to execute one unilaterally. It's a form of plea deal, usually for military-specific offenses.

That assumes that it occurs under a demoratic and moral president, all he has to do is blanket pardon them. It’s an easy problem to solve for the President. Circular logic is often just fine in legal circles.

Courts-martial are criminal courts. Ortiz v. United States, 585 U.S. __, 138 S. Ct. 2165 (2018).

This remains a constructive problem though because the U.S. Congress is either variously outright dysfunctional or captured by self-interested parties.

Which we need to fix regardless, but in the interim it’s hard to conclude that the federal government isn’t starting to crumble under the combined weight of that problem and the general, concerning erosion of trust in expertise and institutions, and the rise of populism. The Supreme Court is very efficiently pouring gas on that fire.

I think we need to remember that Presidents have gotten away with a whole lot in the past. Many a blind eye before Trump came on the scene. Now that the seal has been broken, we were on course for a whole lot of these post presidency prosecutions in the future. I think the SC was sensitive to that and wanted to nip it in the bud.

Agreed, the interesting part is that all of Trumps dirty laundry is open to the air. In the past we would have no idea about it.

I think are hedging bets that Trump is likely to win and become a dictator.

If you have to resort to such an extreme scenario then the ruling probably is a good one.

That scenario is from the dissenting opinion of justice sotomayer in the pdf brief. Trump's lawyers argued that immunity extends to assassinating political opponents.

Source?

It makes the president a king. If Trump gets reelected do you think he will ever leave office? If you think that's far fetched then you haven't read Project 2025 where he can replace weather service employees that don't make forecasts he likes.

Short of a civil war, yes, because the text of the 22nd Amendment is unambiguous and requires considerably more process than a supermajority in the House and Senate to overturn.

Did you seriously just argue that "if this decision has the potential for extreme negative consequences, then it must be a good decision"?

I don't think this is the case. All military members of all branches are taught that they must not obey unlawful orders. Killing elected officials is clearly unlawful.

And the president is still subject to impeachment.

It may be unlawful, and it may fail because lower level officers refuse. But it seems like in that case the president cannot be charged. Lower level officers that go along with it could, but the president has the ability to pardon them.

So even if I some case they fail, there are no consequences so people can try again.

Yes there is also political considerations, but if the president feels confident enough to plan assainations of a rival, or for instance a coup with others in the executive branch, then he must feel he has that handled.

Is this not a problem given impeachment votes will follow party lines? A party with the presidency and with >1/3 of the senate would have unchecked power. As long as there are individuals who are willing to execute the orders (who can later be pardoned), the president could delay elections or eliminate political rivals indefinitely. The system of checks and balances were put in place by the founders assuming each party will serve their own interests. Politics aside, if this immunity is given to the president, the current system would provide no checks for the executive branch of a party willing to exercise the full extent of those powers. People would essentially be expecting on good faith each election that the president will not become a dictator; there would be no procedure to actually prevent that.

If that happens then at this point you have other problems that any 2/3rd majority could not solve anyway.

My concern is the immunity allows for perpetual, single party rule with only a 1/3 of senate seats and the presidency. There would be no checks in place at the federal level if the party was willing to exercise power to interfere with elections or opposing candidates.

The president was already immune while in office anyway so this wouldn’t change anything about your scenario.

The Seal Team 6 example keeps getting batted around and that's unfortunate because it would be an extreme and obviously outrageous attack which would attract much unwanted attention.

Part of the ruling was that conversations between DOJ and President constitute the President's official duties and "therefore" (per the three judges appointed by Trump, one who expressed sympathies with Jan 6 rioters, and yet another whose wife was an active endorser and planner of aspects of the coup) those conversations are protected and cannot be entered as evidence in a criminal proceeding against the President.

The more insidious outcome is that the President can now, because these conversations are official, officially order the AG to investigate and prosecute political opponents.

Maybe some court can review it on down the line, years later. Given the number of judges appointed by Trump, maybe not. Either way, the federal government and rule of law was massively, severely crippled yesterday by the Supreme Court

Agree with your sentiment. But overseeing elections is not the official duty of either Trump or Biden, that goes to individual states. And using the military to neutralize political opponents is only extreme if Biden does it. Trump openly wants military tribunals for treason against his opponents, which is his way of grasping for jurisdiction in ordering military intervention in the halls of power.

> order the AG to investigate and prosecute political opponents

So... exactly what they've been doing for the past four years already?

Do you have any evidence to support the claim that Biden has ordered his AG to investigate Trump? Simpler explanation for Trump's legal issues: he committed crimes.

The Seal Team 6 example is batted around because it is specifically cited by Trump's legal counsel as an official act that isn't bound by law -- the conservative Supreme Court has endorsed this.

...and that example was actually used in one of the dissenting opinions.

Yes, I will take Sotomayor’s well voiced dissent as golden over an opinion on HN any day of the week. I might have been less worried it at least one of the conservatives had voted against this attempt to validate Executive assassinations and imprisoning opponents as the law of the land, but it was 6-3

Not even political rivals. What’s stopping Biden from ordering cumbersome investigations on each of the Supreme Court justices? Especially the ones that are ducking ethics issues?

I think Biden won’t do it because he has morals and believes in democracy. There is nothing stopping Trump from doing it, since he doesn’t believe in anything other than power and self advancement.

That's wrong. The President can still be impeached and convicted by Congress. What this prevents is the weaponization of partisan courts anywhere in the Country against a President for actions they took while in office.

Yes the courts are clearly more partisan than Congress

It doesn't take all courts. It takes only one court across the entire country to disrupt the executive branch. In total, there are nearly 1,770 judgeships authorized across the 209 courts in the federal court system alone, and thousands and thousands of state courts. Having any one of these courts being able to disrupt the executive branch of government is not a feature of a stable governmental system. That is why the impeachment process exists. The SCOTUS merely reaffirmed what was already the law.

That was my take. Judging by the media response I was looking for orange Satan to emerge from a portal and subjugate us all.

> Having any one of these courts being able to disrupt the executive branch of government is not a feature of a stable governmental system.

It appears so stable that it actually hasn't cause any of the damage you fear in over 200 years. That the chief executive is not above the law has produced the most stable democracy that's ever been conceived.

The president may now murder anyone in congress who disagrees with him, as long as he writes the order on presidential letterhead, so they aren't much of a real threat are they?

Did they forget that Biden is currently President? What's to stop the sitting President from just rounding up the former President and all of his supporters athen locking them in a cave until after the election?

Couldn't he just make up some BS about a national security threat to make it "official"?

Did we just become a monarchy?

well it's a lot closer to a monarchy than before. All the president has to do is use the official stationary, it seems.

You mean like Obama assassinating a US citizen?

To be honest I'd rather live in a world where Obama¹ assassinating an US citizen would land him and everybody involved in prison than in a world where it does not.

¹ Obama and any other person in the same position

Completely agree :)

Yes.

I assume you are referring to the killing of alleged al-Qaeda operative Anwar al-Awlaki in a drone strike. The major difference between that situation and the situation going forward is that Obama had a legal justification. Assistant Attorney General David Barron justified the action as follows [1]:

---------

To justify the Awlaki killing, Barron relies heavily on the 2001 Authorization for the Use of Military Force (AUMF), the law that Congress passed to permit striking al-Qaeda post-September 11th, and which was used to justify the US-led investigation of Afghanistan.

Awlaki, according to Barron, was a leader in al-Qaeda's Yemen-based branch, which is known as al-Qaeda in the Arabian Peninsula. The intelligence supporting this claim is redacted from the memo. But Barron claims that, because Congress authorized using "necessary and appropriate force" against al-Qaeda, the AUMF would thus give the US legal cover to target Awlaki.

"In consequence," Barron concludes, "the operation should be understood to constitute the lawful conduct of war and thus to be encompassed by the public authority justification." He also writes that the AUMF argument makes the killing justifiable under international law as a defensive use of force.

One possible counter-argument is that this is unconstitutional: the Fourth Amendment generally prohibits the killing of US citizens without due process of law. Barron argues that this case is an exception because capturing Awlaki was impossible — for reasons that are again redacted. If capturing Awlaki was "unfeasible," as Barron says, then killing him to prevent him from threatening the US becomes the only option.

---------

You may disagree with that interpretation of the law, but it seems — given that Obama was not prosecuted for this action — that the legal system does not agree with your disagreement.

Now the point is moot, since any president can order up the killing of anyone they like, because there is no longer a consequence for criminal behaviour. If you think the al-Awlaki killing was unlawful, I hope that you are gravely concerned by the fact that administrations no longer need to even attempt the appearance of complying with the law.

1: https://www.vox.com/2014/6/23/5835602/anwar-al-awlaki-memo

I can’t help but think they should have just revoked his passport first just to sidestep the whole argument.

Revoking a passport does not revoke citizenship.

When that American is fighting in a foreign force and aiding actively against US/alied armed forces as a combatant? Yeah I think that’s okay. You can’t hold off on a military target because some American mercenary is there. Those are the chances you take as a mercenary. We’re discussing a president who can now kill anyone he wants with Seal Team 6 and not face any repercussions ever, unless impeached, well I hate to say it but the current MAGA party will never impeach Trump under any circumstances.

Drone strikes against combatants aren't assassinations, and Obama is hardly the first President to engage armed force against someone the U.S. recognized as a citizen but who felt no personal loyalty to the U.S.

You should probably start widening your reading material. All the court is saying is Obama can't be sued for signing Obamacare into law.

How is Obamacare like assassinating someone? What is your reading material that likens a program meant to bring affordable healthcare to millions to government-sanctioned killing?

> This ruling seems to open the door to a president being immune from, say, commanding SEAL Team 6 to assassinate a political rival.

That is what the media - the same media who until a few days ago told you your current president was in no way diminished in his mental capacity - wants you to believe, they in turn were prompted by a 'progressive' judge - Sotomayor. It was clear from the outset that the media was lying about Biden and it is clear from the outset that this ploy about presidents being able to order hit jobs on their political rivals is a lie.

In short, think for yourself and you have a much better chance avoiding becoming a useful idiot as Lenin called those who blindly followed what the Party told them.

> Out of context this is quite reasonable and level headed.

That's why I'm opposed to making changes to the way the Court is selected and empaneled.

The fact that it's inconvenient for one party right now is irrelevant. It'll be inconvenient for the other party soon enough.

> In context of the hyper partisan landscape US politics are today, doesn’t seem likely without a supermajority opposition to be able to bring charges against a president, for official or unofficial acts that are crimes.

Good. If it were easy to bring charges against a President, then Presidents wouldn't be able to do anything they were elected to do.

The failure of that protection at the end of the term is one of the major reasons for the end of the Roman Republic. If you repeatedly make powerful political figures choose between prosecution and violence, it won't take long for one of them to choose violence.

The fact that we've peacefully transitioned between presidents ~45 times is honestly rather amazing.

> Good. If it were easy to bring charges against a President, then Presidents wouldn't be able to do anything they were elected to do.

Leaving aside the difference between "bringing charges" and "successfully bringing charges," there's a big gap between "easy" and "impossible." Nobody wants presidents to be criminally liable for the things they do in good faith. But this ruling makes good faith irrelevant; it doesn't matter why they do an official act, it's immune.

The fact is that a former president exerted pressure on government officials in a way that would halt a lawful election and coordinated to subvert its true results by presenting fake results. In determining whether that was an official act, we cannot reference his motivations according to the SC's ruling.

Allow the motivation for official acts to be taken into consideration for prosecution, and a lot of the problems go away.

I honestly can’t tell if you’re talking about Hunter Biden’s laptop, which many leaders of the intelligence community claimed was fake Russian disinfo, only to be recently admitted into court evidence as being real and factual. Who exerted pressure on those officials to lie to the public before the last presidential election?

Retired and former intelligence officers have opinions which cannot, in the US, be silenced (unless they are breaking an oath | NDA related to secrets).

~50 (out of how many tens of thousands?) former intelligence officers expressed the opinion that emails on Huneters laptop could not be trusted as absolute sources of truth.

https://www.politico.com/news/2020/10/19/hunter-biden-story-...

     50 former senior intelligence officials have signed on to a letter outlining their belief that the recent disclosure of emails allegedly belonging to Joe Biden’s son “has all the classic earmarks of a Russian information operation.”

    Director of National Intelligence John Ratcliffe said on Monday that the information on Biden’s laptop “is not part of some Russian disinformation campaign,”

These opinions, whether true or false, are insufficient to stop the laptop being admitted as evidence for a jury to consider - and the fact of that admission doesn't make the laptop "fake" or "not fact" ... liars give testimony in trials all the time and juries often hear and see conflicting "evidence", the reason for juries and lengthy jury discussions is for independant people to weigh up evidence and judge what they each believe to be true.

This is a technology forum: the vast majority of these emails contained valid DKIM signatures.

Did Russia snag those keys from Google and retroactively sign forged emails? Were the dozens of clear, repetitive images and videos produced by generative AI?

Cmon, man.

>The fact that it's inconvenient for one party right now is irrelevant. It'll be inconvenient for the other party soon enough.

I hate to dive into conspiratorial thought; but with a ruling so brazen, they might think this, and a few other steps, will bid them enough time to not worry about the other party having a slice of their same cake for the foreseeable future.

>The fact that we've peacefully transitioned between presidents ~45 times is honestly rather amazing.

well last transition got a little exciting lol

> Out of context this is quite reasonable and level headed. In context of the hyper partisan landscape US politics are today, doesn’t seem likely without a supermajority opposition to be able to bring charges against a president,

In context though, it's quite terrifying given how much the US has fallen into tribalism. Half the population wouldn't convict a certain candidate no matter what they did.

And the other half wholeheartedly endorses convicting a certain candidate of something, anything to keep him out of office.

I happen to agree that he should be kept out of office, but I'd rather that be done by putting him up against an electable opponent than by giving his base yet more fodder for their belief that they're being collectively persecuted.

> And the other half wholeheartedly endorses convicting a certain candidate of something, anything to keep him out of office.

There's a strong argument that the candidate in question shouldn't be in the position he was in is because he acted inappropriately. Not just in demeanor and professionalism, but he has several ongoing criminal trials going right now. There is a real possibility that he committed treason.

But even so, no one is really opposed to him gaining office if that's what truly people want. At that point, the concern is what the hell is wrong with the people that voted him in, and what the hell happened to get the population to that point. My guess is Reagan.

> No no no. Enough of this 'both sides' nonsense.

No, not enough. The lack of 'both sides' is what got us here.

You want to know what the hell is wrong with the people who voted him in? They have felt alone, disenfranchised, and cut off by the coastal elite (both sides!) for decades. One party took their vote for granted, the other wished that they didn't have a vote at all. They got sick of being ignored and condescended to, and a freaky sociopath named Donald Trump realized that they were the key to "winning" his perverted game and he finally successfully courted them.

They fell over themselves for Trump because no one else spared them a second thought.

So no, I'm not going to be done with 'both sides'. The Left thinks that if they just prosecute Trump and get him convicted these people will just go away and we can go back to business as usual, but this populist movement has found its voice and it's not going anywhere.

The only thing that's going to stop this from turning tragic is for the Left to figure out that these people exist and have a vote and find a way to speak to them. And the only way I have to help is to cry "both sides". Trump voters are normal people with very real needs, and our only hope to avert catastrophe is to see them and hear them.

> No, not enough. The lack of 'both sides' is what got us here.

lol, why are you going out of your way to reply to this? It's not in my comment, and it wasn't in the comment when you logged in to reply. Did you copy and paste it from your rss feed or whatever specifically to be able to reply to it? That's really weird. Anyway.

> They have felt alone, disenfranchised, and cut off by the coastal elite (both sides!) for decades.

The problem is they have no education and have no idea how to think critically. In society we have made it such a bad thing to be 'stupid', combine that with studies showing being wrong can be similar to being physically hurt [0], well, now we have a population that has no education, is religious and rejects science, doesn't want to be called stupid or be wrong, so they rally around 'alternative facts' and a charlatan who they see as one of them.

The only solution here is mandatory re-education and/or limiting who can vote, or hopefully waiting for the oldest and most stubborn conservatives to die out so alphas and gen-z can vote with a little more heart and brain.

> So no, I'm not going to be done with 'both sides'. The Left thinks that if they just prosecute Trump and get him convicted these people will just go away and we can go back to business as usual,

Trump's an especially bad candidate to be leader, the left just wants the Romney style republicans back. You know, not the science denying nazi wackos obsessed with guns and controlling women's bodies.

The left isn't the problem here, and never has been.

[0] https://www.theguardian.com/lifeandstyle/2016/feb/28/why-bei...

Thank you for laying bare the problem that I was attempting to describe. You've made my point better than I ever could.

Likewise.

Cheers.

> The only solution here is mandatory re-education and/or limiting who can vote.

History tells us that the Narodnik[1] plan failed. The real change in minds came when the rural masses migrated to cities with dense habitation and the calculus of labor doing industrial jobs proved fertile for new ideas.

The only problem we have today is that large-scale rural->urban migration leaves huge swaths of the heartland emptied out which severely exacerbates our present problem because of the way senators are apportioned.

1. https://en.m.wikipedia.org/wiki/Narodniks

> The only solution here is mandatory re-education and/or limiting who can vote

Sounds very authoritarian and not democratic at all. What makes you think they won't try to do the same thing? I certainly don't want any government to have the power to re-educate adults and limit who can vote because they're voting wrong. That's Orwellian.

> Sounds very authoritarian and not democratic at all.

It's what we already have, just extended a little. We already limit voting to citizens, and we have mandatory education for age groups and as a prerequisite to do certain professions.

> I certainly don't want any government to have the power to re-educate adults and limit who can vote because they're voting wrong. That's Orwellian.

Look at the situation we are in now, though. We have an extremely ignorant, outright science denying, not insignificant subset of the population, who due to our system of government can elect in people who share their beliefs, who then go on to be in real positions of power.

What do you do when you have a slight majority of Trumps or MTGs as your representatives? More than likely, freedoms will erode and wars would likely increase.

So, how can you avoid that, or worse problems caused by an ignorant voting block? If you want to keep this form of government (which I would argue we should not), I'm not sure what other solutions there are other than to have some sort of test for voting. Maybe moving the definition of what constitutes a citizen like in Starship Troopers could work.

And this, folks, is why we have a Second Amendment.

That isn't remotely true, and this perpetuation of a distortion of what the Second Amendment is actually meant to be for is part of the problem.

The real reason you have a Second Amendment is to stop those pesky slaves from rising up and trying to obtain their freedom. [0]

Here's the funny bit. If you were even half the patriot you consider yourself to be, you'd more than agree with the issues I outlined above.

[0] https://www.nytimes.com/2018/05/24/opinion/second-amendment-...

Regardless of what you may believe was "meant to be," we live in the reality of today.

Try and remove citizenship from an extremely well-armed populous and see what happens.

(Bring on the "you need F-16s, man!" Guess to which side the overwhelming majority of the military and private arms ownership leans? Hint: it's not yours.)

> Regardless of what you may believe was "meant to be," we live in the reality of today.

It's not a question of what I believe, the fats and argument are outlined in the link previously provided.

And if the last few years in US politics has shown us anything, it's that some people choose to reject reality for one of their own making.

> Try and remove citizenship from an extremely well-armed populous and see what happens.

The only insurrection attempt in recent history came from the right, and the only presidential candidate who threatened to be a dictator also came from the right.

Gun nuts are also on the right and allegedly compare very much about rising up against an authoritarian government. Except if such a government would agree with them, I guess. What traitorous hypocrites.

Those people with guns won't ever do anything because they are all preparing for an imaginary Red Dawn type situation. If legislation sneaks up on them, if it's a 'threat' they can't shoot, they will be helpless to fight it.

That side has also shown how incredibly gullible they are, so the simplest information warfare will likely pacify them. Russia has certainly demonstrated how easy a group they are to control.

> Guess to which side the overwhelming majority of the military and private arms ownership leans? Hint: it's not yours.)

Ooooh scary! lol.

Anyway, I'm done with this convo. I'd rather not enable this kind of fantasizing any further. Cheers.

> fantasizing

> Maybe moving the definition of what constitutes a citizen like in Starship Troopers could work

> Those people with guns won't ever do anything

Only one way to find out.

Nah. Like I said, the changes will sneak up on the gullible while they're waiting for a Red Dawn type scenario. Wasn't ever expecting folks like you to show up on HN to be honest, but everyday you learn something new I guess.

> The only solution here is mandatory re-education and/or limiting who can vote, or hopefully waiting for the oldest and most stubborn conservatives to die out so alphas and gen-z can vote with a little more heart and brain.

Goodness.

You disagree?

What do you do in a situation where half the population won't take a vaccine during a pandemic because they think Bill Gates is going to track you with microchips?

Honestly, what's the solution here other than to wait and hope the voting population normalizes and self-corrects?

You could try changing the toxic two party system

https://en.wikipedia.org/wiki/Duverger%27s_law

I agree that would be a great help, but I don't see that happening when half the population is just going to be contrarian and obstructionist to something like that. Not least because it would mean they would have significantly less power if people had more options.

Are you suggesting the population came up with the idea and conclusion on their own that Gates tracking and microchips were real?

Or did they listen to and trust someone who told them that? And if so why did they listen to and trust that person?

How about the people who have the right, and science backed answers learn how to hear out and build trust with the population, so the population actually wants to listen and trust what they say?

The population doesn't have to be smart, those who have the right answers just need to be caring and compassionate and build trust with the population.

I'm sorry, but democrats seem to have no interest in even attempting to hear the right out and to work towards building any sort of trust with them.

> Or did they listen to and trust someone who told them that? And if so why did they listen to and trust that person?

Who cares? The issue is their gullibility and lac of education and ability to think critically.

> How about the people who have the right, and science backed answers learn how to hear out and build trust with the population, so the population actually wants to listen and trust what they say?

We're past that point. The tribalism is so entrenched that most of those people are never going to give the other side a chance.

You'd have to devote time to sit with each person individually and put in the time to try and educate and better them, and it's impossible since we don't have time or people to do that.

> The population doesn't have to be smart,

They kind of do. Or you end up with people that think Alex Jones is a credible source.

> I'm sorry, but democrats seem to have no interest in even attempting to hear the right out and to work towards building any sort of trust with them.

It's hard to hear out and build trust with a group of willfully ignorant superstitious ultra patriots who all too often behave in ways that could be described as bigoted.

> Trump's an especially bad candidate to be leader, the left just wants the Romney style republicans back.

Pretty much. The left wants people they can debate and negotiate with. Not a bunch of McConnell-style babies that absolutely refuse to negotiate on anything.

actually, I think the issue is that there are only two sides:

https://en.wikipedia.org/wiki/Duverger%27s_law

Man. Nothing is wrong with the voters.

There is just a lot more power invested in republican elites than democrat elites than we realized.

There are organized efforts, decades long to skew courts, remove laws, increase dysfunction to prove the point that government fails.

Medicare was based on Romney’s model, and he was forced to disown it because the party would rather be partisan than give democrats a win.

Partisanship, divisive politics get you here. It gets you Fox News, and infowars. It gets you the idea that everything is a liberal conspiracy, like evolution.

Hell, people heard “build a wall” and were cool with it.

I believe the term that was coined by republicans for people whose feelings are hurt was snowflakes. the

> Nothing is wrong with the voters.

I don't understand how anyone can genuinely believe that.

Half the population has an absolutely astounding and embarrassing level of education, think things like climate change are hoaxes, don't care about the constitution and just want Jesus' word to be law, etc etc etc.

The problem is absolutely the voters. It's also why this model of democracy is actually kind of terrible unless you have an educated population. We're basically watching the fall of the American Empire here.

Yes, Reagan embarrassed the shit out of the Russians and so they have been attacking us from the inside since.

Reagan destroyed the US by cutting funding for schools, cutting mental health social services, and removing regulations from companies.

Most of those ideas came from the Heritage Foundation which is the same org behind Project 2025 which Dump is so fond of.

> Half the population wouldn't convict a certain candidate no matter what they did.

And the other half would convict him no matter what.

That's irrelevant since he's committed a number of serious crimes.

Except he committed those crimes. There's nothing wrong with punishing people for crimes they committed, especially when entrusted with so much.

Nonsense.

The other half wants him tried fairly. We just expect he will be convicted because his guilt is more obvious than OJs was.

It also reflects common practice: https://oxcon.ouplaw.com/display/10.1093/law-mpeccol/law-mpe... (“ 3 Functional immunity applies to both sitting and former heads of state; however, this immunity is available to such individuals solely with respect to acts performed in their official capacity (Fox 667).”)

France, for example, has prosecuted former presidents for things like bribery. But I don’t think you can prosecute a former president of France for something he told the Ministry of Justice to do.

I suspect this distinction between official and unofficial acts is also what most people assumed the law was, until Trump forced the Supreme Court to confront it under a particularly unsympathetic set of facts.

I’m an FBI agent and I kill my wife. Am I immune from prosecution unless Congress appoints a special counsel, simply because I work in the executive branch?

No, because you're not _in charge of_ the executive branch.

Is that a meaningful distinction? If so, why?

FWIW, I think it might be, because the prosecutors work for the executive branch.

No. An FBI agent and president are two different things.

Wow, really? Thanks!

The point is that both wield executive power, yet one person in the executive can be prosecuted only by Congress and the rest not. Illogical.

One is where all executive power is vested and originates, the other is a hired employee.

There's no provision in the constitution for immunity. They made it up there's nothing reasonable about it.

Under this decision the president can commit a crime or order someone else to commit a crime, and as long as the crime is committed using a power of the office, it can't be charged.

For example, if in an official communication the president orders an officer to solicit a bribe for doing their duty, the president can't be charged.

It's ridiculous, horrible, and destructive to the constitution.

Those wouldn’t be crimes. They cannot produce evidence. As of this ruling, it looks like:

- Biden issues a prepardon essentially deputizing anyone who detains Eric Trump or Eric’s laptop.

- We might endure some debate whether it is an official act. That debate actually only matters to Congress or future historians.

- Since the extrajudicial apprehension of Eric and his evidence is defined as not-criminal, there is no need to preserve details. Seal Team 6 and those involved enjoy a prepardon and some assurance that their names are scrubbed.

- This is constitutional if Congress has granted the President (Biden at this point) war powers and is satisfied that some elements of the military identified Eric Trump with the enemy. We’ll debate whether the President is a member of the military, just as we had to debate whether he was an officer of the USA under Amendment 14, section 3.

> and if successfully impeached and convicted can then be charged with said crimes

The opinion explicitly rejects this line of reasoning.

> Transforming that political process [impeachment] into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government

As someone living in Geemany my bar for auch high level laws is: would Adolf Hitler have been able to use it to abolish democracy?

If so it is bad.

IMO the US president was already too powerful since the cold war, but this is crazy.

American has an extremely weak state. The government is incapable of accomplishing basic tasks. Men like Trump want to weaken the state further.

Look at Trumps actions during COVID. Did he use the crisis to grab power? Declare a state of emergency? Declare martial law? Suspend habeas corpus?

No he told the states to handle it.

The real fear Americans have isn't a Hitler situation, but a Hindenburg situation.

You have any polls on that or is that just a guess?

Yes, and the states did handle it. People left NY and CA in droves to FL and TX and still are doing so.

The ruling also doesn't clearly define what is official, and that one must presume everything is "official" unless proven otherwise, and that anything "official" cannot be included as evidence.

Clarence Thomas even wrote openly that the concept of a special counsel is illegal.

I found some time to read the main opinion and Justice Sotomayor’s dissent. I approached them both with a genuinely open mind because I figured that the public discourse lacked nuance.

Well, the opinion is just as awful as everyone has said. For one thing, it is dishonest. The court spends a lot of time distinguishing the different presidential powers and levels of immunity, as if its holding had limitations. It doesn’t. The practical effect of Trump v. U.S. is that it is all but impossible to prosecute even the most heinous abuses of presidential power.

For another thing, the court really couldn’t manage even a semblance of textual or historical support for its decision. Given the court’s recent emphasis on fidelity to those sources, it really is astonishing! (And I say this as someone who is somewhat sympathetic to textualism in principle.)

I think it’s really worthwhile to read at least the syllabus and Sotomayor’s dissent.

The subtlety in this is it makes the Supreme Court King makers. They, ultimately, get to decide what is official.

I think the point is that because there are no limits initially, it makes it extremely easy for the President to murder half the government who disagree with him as an official act. As long as he uses marines instead of his own 9mm hand pistol on the street it would be an official act because the SCOTUS decision assumes everything he does as a precursor is fine. It provides cover for him to act in that manner, and by then there is no one to impeach and convict and then hold him criminally liable. If you have read Project 2025, then you know their first act will be to fire everyone in the executive branch and military and install only loyalists. I think people are seriously underestimating what Trump and his followers are up to.

Nope, this has opened the door to all kinds of malfeasance. It's not wide open and welcoming, but ajar nonetheless.

The ruling does not seem to say that impeachment removes the immunity.

The reality with this ruling is it will embolden future presidents to do things that are to their advantage even if they think those actions may be illegal. Presidents don't need more protection from people. We the people need more protection from them.

This is the best way I've heard it put. The United States was founded to escape rulers who were above the law, and the Constitution was created to protect it. For the justices who claim to be primarily driven by the constitution to make this ruling seems bizarre, and it's hard for me to see it in any other way than partisan bias.

The president does not need this power and protection. The past 2 years are the first time this 'prosecuting a former president' thing has been an issue, and there are lots of unusual circumstances around it. To give the president such power in response to this seems like a very, very, very bad idea.

Presidents do not need protection from the people, the people need protection from presidents.

> Presidents do not need protection from the people, the people need protection from presidents.

I know this sounds good but is it true? I've never needed protection from the president but presidents are occasionally shot at and sometimes killed. Presidents need the secret service because they do, in fact, need protection from the people.

No one is talking about "protection" in the sense of physical defense.

Of course presidents need more physical protection. The "protection" being referred to is protection from the government and legal system.

If there were a pattern of presidents being unjustly punished for their actions, for political gain or retribution, then something like this might make sense. There is not yet a pattern, and I think that to strengthen the power of the president in such an undefined and potentially very broad way, should be done with great caution and only when it is clear that the ability of the government to use the legal system against former presidents is being systemically abused. I don't think that is at all clear, there just isn't enough data yet.

If they wanted to protect Trump from some of the current prosecution against him, they could have done so much more narrowly.

> We the people need more protection from them.

And we have it: 2nd Amendment, isn’t it?

No. You are effectively advocating for violence as an acceptable solution, which it isn't. We need effective checks and balances but this ruling appears to have eroded one of them. If the rule of law doesn't apply to a president then we have lost one of the major checks on them, the judicial system. The judicial system is supposed to be one of the checks that keeps presidents from turning into kings and abusing their power to the detriment of the country and the people that live in it.

Try shooting a government official and see how that works out for you.

I mean, I’m wondering if we will have a civil war 2 at some time in the future, trump supporters and fascists vs normal people, so i wouldn’t be shooting alone.

Trump supporters and fascists are more likely to destroy themselves before it ever gets to that point. If anything worse than covid comes, given their resistance to vaccines, the problem will sort itself out.

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?

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).

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 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.

> i think it was just a "gentleman's agreement" to not prosecute former presidents or rivals.

How many former presidents or rivals tried to prevent the transfer of power?

* https://en.wikipedia.org/wiki/Self-coup

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:

* https://www.theguardian.com/us-news/2022/oct/12/donald-trump...

* https://apnews.com/article/trump-justice-department-indictme...

> 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.

> and he didn't.

Not for lack of trying.

  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.

https://www.nytimes.com/2018/11/20/us/politics/president-tru...

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?

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].

[1] https://mwi.westpoint.edu/ten-years-after-the-al-awlaki-kill...

Yes I'm quite sure Obama is happy with it. Should the rest of us be? Would a court case over the legality of such an action not be a positive thing?

I mean, is that the out for Biden? A drone strike on Mar-a-Lago as an "official act" for which he enjoys absolute immunity?

If he wants a civil war, sure.

Obviously, but we're to believe it'd be entirely legal to do so?

No, because of the use of the military within the borders of the country is separately and explicitly illegal under US law.

But now that doesn't matter. The president is immune as long as there's the defense of it being an official act

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".)

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.

> Why didn't that happen when Obama left office?

What illegal acts did Obama do, while POTUS, yet outside of his 'official duties', what would warrant prosecution?

Remember the context for this decision: Trump's participation in the events of January 6:

* https://en.wikipedia.org/wiki/January_6_United_States_Capito...

You know, the insurrection in which people have been found guilty of seditious action:

* https://en.wikipedia.org/wiki/Criminal_proceedings_in_the_Ja...

Were his January 6 actions part of his official duties?

He droned and killed a US citizen without due process. Literal murder.

Based on other comments, that was unintentional. So manslaughter, at worst.

Obama killed 4 Americans in drone attacks. 3 unintentionally, but Anwar Awlaki was targeted.

Obama didn't prosecute Bush, so the Republicans didn't try to prosecute Obama. Professional courtesy.

If presidents break the law, they should be prosecuted. I don't care who you are or what party you're with.

First, I agree . Second, the first step in that is the impeachment process.

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.

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”.

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.

> 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.

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.

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.

[1] https://constitution.congress.gov/constitution/article-1/#ar...

[2] https://law.justia.com/constitution/us/article-2/49-judgment...

> 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.

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 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.

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.

> 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.

> I can't make up my mind if this is "movie plot threat" or not. Has it happened to other important figures before?

SLAPP-suits do exist, but they're generally against poor folks who can't a long legal process rather than richer individuals.

>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.

> The issue is that presidents can be prosecuted even if they likely didn't break the law.

What issue? That's never been an issue in 200 years.

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.

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.

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.

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.

I guess you need some new parties

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.

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.

This hasn't been a problem for 250 years, and it's still not a problem anyone has.

This ruling serves one specific purpose: to protect one single person from the consequences of their crimes.

We are in agreement.

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.

> 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?

The next sentence addresses that—there are reasonable disagreements to the extent that some actions are legal or not.

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.

If Biden disregarded the court's ruling and went ahead and made it happen anyway, then yes, personal jail time please.

Because the people are stupid?

Why do we even let them vote at all? Hello, slippery slope.

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.

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".

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.

There was, we called them elections.

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.

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?

> 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.

> 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.

Better than the alternative. I would imagine that such a case would be appealed anyway (just as Trump has appealed his cases).

> 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.

Sure. One-off's of loose checks and balances are better than codified law(s) and ruling(s) that we don't have any at all.

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.

It's such a weird timeline.

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.)

I wonder why this was the charge that stuck.

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.

> I wonder why this was the charge that stuck.

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.

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.

> 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.

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.

I can’t defend the ruling based on the actual effects, because it puts someone above the law.

However one could argue that this is the logical extension of qualified immunity for police officers which is precedent the court has already set.

To be clear though, I think qualified immunity of any sort shouldn’t be allowed. It’s a subversion of any kind of fair justice.

Diplomatic Immunity

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.

> then he would be voted out of office in (max) 4 years.

Assuming the abuse of power does not prevent this.

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.

This is like qualified immunity (usually for police), but applied to POTUS.

You want public servants to be able to do their jobs without fear of time-wasting litigation.

But, if you grant blanket immunity, the poilice (or POTUS) are free to do whatever they want.

We're quite clearly tilted way over into "do what they want" territory.

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.

100% agree.

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).

> civil cases for damages would be against the state, not the state representative

Isn’t that the same as QI?

I believe qualified immunity only protects from direct civil litigation but not criminal.

Yep, it's a rough analogy, not a perfect match.

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.

Interesting.

Qualified immunity is already really bad though...

That's not a defense though - because of qualified immunity, cops get to be rampant authoritarians with 0 recourse for most people.

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.

Sure.

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.

> Convictions are in the high 90%. Juries are very weak and at the mercy of powerful prosecutors.

This is a bit misleading. DAs have latitude about what to prosecute and if they don't think they can win, they dont have to bring it to court.

And even if they do think they can probably win, they'll usually leverage that into a plea deal.

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 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.

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?

Generally a good first approach is to recuse oneself when conflicts of interest appear, a significant portion of this court has failed this test.

“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.

https://ravenewworld.substack.com/p/midnight-joyride

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.

I don’t need to assume, we have a lot of insight into why those flags were flown.

https://www.pbs.org/newshour/amp/show/former-neighbor-disput...

Their bogus excuse is very damning. Or at least real event they used as an excuse, but the timeline doesn’t make sense, so they’re lying.

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.

unfortunately I think we have both made up our mind on the subject and it’s not going to be productive to discuss this further. Have a good weekend.

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.

yes that is possible, except we know that’s not what has been happening.

https://www.pbs.org/newshour/amp/show/former-neighbor-disput...

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.

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.

You are attacking straw men. Please stop.

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 repeating emanations from penumbras because it sounds ridiculous - but unnumerated rights is what’s actually being discussed.

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?

Nice distraction.

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?

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.

> 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?

> 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.

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.

I'm guessing you think Thurgood Marshall is a political hack too?

How do you go 10 years without even asking a question (https://www.cnn.com/2016/02/29/politics/supreme-court-claren...) if you're so good you could be an attorney general.

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"?

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).

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?

> How do you go 10 years without even asking a question

Because your fellow jurists ask the questions for you.

He explained this position cogently: he does not want to influence the process or the case being presented to him.

When seniority-based speaking order changed during COVID virtual hearings, he started asking questions again.

When the GOP stole a seat and railroaded their third justice in for a partisan 6-3 SCOTUS he started asking questions again.

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.

> Convictions are in the high 90%. Juries are very weak and at the mercy of powerful prosecutors.

If that were true then defendants would waive their right to a jury trial. They don't.

The conviction rate is high because prosecutors don't bring weak cases.

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.

>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.

Well, no. That's a different situation.

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)

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.

>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.

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... )

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.

I am torn between marveling at the satire of this comment and crying at the truth it reveals

That's utter garbage. Juries acquit people when the cases are weak and defendents have the same rights they always have had probably more.

Prosecutors don't go to trial unless they have a solid case especially against a former pres.

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.

So America needs to re-legalize duels then?

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.

It's worth reading the actual ruling rather than the reporting on it, which is downright awful.

Here's a sample of Sotomayor's dissent:

> 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.

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.

Bad logic.

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.

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.

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?

That's the problem. The ruling provides no guidance whatsoever, so as long as a President can make the case, it's an official act.

No, that's not right. The court will decide, and they do give some thoughts/guidance.

Well no, you’re making an assumption with how a court would rule in this situation.

There is nothing mandating that a court has to put careful consideration between what is and isn’t official business.

No, wrong. The comment says the court will rule, not how they'll rule. How on earth do you read that comment and think it says how they'll rule?

The Courts are dumb and often change their minds on appeal. All of this ends up at the Supreme Court where the clerics now rule.

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.

https://verdict.justia.com/2023/05/03/how-did-six-conservati...

> how is assassination an official act?

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.

> 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.

And she'll be on the minority side. Case decided, six to three, and she gets to write another dissent that will be ignored.

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.)

Different emoluments clause: "he shall not receive within that Period any other Emolument from the United States, or any of them."

My bad. I have now edited my comment accordingly.

> 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.

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.

See, the difference is politically-motivated investigations YIELD NO CRIMES WHEN NO CRIME WAS COMMITTED.

Today's ruling is a solution to a problem that no one has actually had for the last 250 years, and which no one currently has.

Do you mean beyond what's written in the decision itself? Do you have a specific criticism of what was written by the justices themselves?

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.

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.

And after the district court determines, if it's against Trump he'll appeal back to his buddies in the Supreme court again who'll let him off.

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".

Would the court also need to carefully consider and rule on whether arresting or murdering a disagreeing judge is an "official act" by the President?

Probably not. Arresting disagreeing judges would be a violation of due process, as is murdering US citizens without a trial.

At least that was the tentative conclusion last time this was brought up: https://www.theguardian.com/commentisfree/2013/feb/22/obama-...

It might be a violation of the law and clearly illegal, but that does not mean it is not an official act for which the president is immune.

Impeachment is the intended vehicle for presidential punishment.

That's irrelevant since the SCOTUS ruling is all about what happens after a president is no longer president.

Impeachment only applies to a sitting president. Not one who is no longer in office.

Oh yeah, Trump was really severely punished by being impeached twice.

That’s because neither resulted in a conviction by the Senate.

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.

This does put the President above the law.

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.

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.

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.

The courts were explicitly not allowed to take account of presidential motivation when determining whether the act was official or not.

I agree, and motive is not required to understand that murdering a mistress is outside the bounds of the official duties of the president.

> 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?

What about the turncoat operative of a foreign government who just so happens to be a political rival?

> 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.

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.

If you order your military to murder someone, does it become an official act?

Obama droned a US citizen without due process, zero consequences.

Nothing new.

Anything can be made an official act. That's why this is unfathomably bad.

Only if you believe that words have no meaning. If you're already at that place in your mind, anything is possible regardless.

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.

> Not only that, but this same court removed the constitutional right to an abortion because it wasn't enumerated in the Constitution.

I'm as against this court as the next guy, but don't constitutional rights need to be, you know, in the constitution?

Some rights, such as bodily autonomy, are so self-evident the Founders didn’t feel the need to enumerate them.

No, the 9th recognizes that the Constitution doesn't capture every possible right in its enumeration.

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.”

Gotcha. So how do we know what rights we have for sure?

It would have been easy to bring Obama up on murder charges of US citizen Anwar al-Awlaki, but was not, due to this same presumed immunity

Not quite. If you’ve been following federalists you’ll see they’re rewriting and redefining whatever they need to in order to achieve their ends.

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.

Then why do they even mention militias at all?

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.

https://constitution.congress.gov/browse/essay/amdt2-2/ALDE_...

Define “the people”. For works of it’s time, it is broadly used to mean both individuals and an elected government.

You’re utilizing one definition of a term that never had concrete meaning, so your reasoning is both imprecise and potentially erroneous.

I think it is pretty clear.

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.

The document wasn’t for individuals. That’s quite the misunderstanding of basic history here.

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.

There is a criminal statute for that! https://www.law.cornell.edu/uscode/text/18/2383. Appropriately titled "rebellion or insurrection." Trump was not charged under that statute.

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.

> deem opposition party leaders to be terrorists

why is it so easy to just deem some group of people terrorists, without any evidence presented?

And if this is true, why can't biden do it today, and preempt trump from doing it?

Look up McCarthyism.

And Democratic party are known to not want to rock the boat, so to speak.

> What about overthrowing the government? Because that's the "offical" act of the president with today's ruling.

The ruling basically says the only way for the case to move forward is to determine what parts of Trump's conduct can be deemed "unofficial".

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.

> What about overthrowing the government?

Overthrowing....the government he was in charge of?

It was an unsuccessful attempt. Apparently that's enough for you to be cool with it though.

Are you implying the president has complete authority over all branches of government?

No more than the government has complete authority over me.

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]

[1] https://en.wikipedia.org/wiki/Self-coup

Doesn’t the ruling say the lower courts have to go back and determine which acts were and were not official?

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

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.

They also specifically called out any dealings with the justice department as being legal (like what was going on with comey way back when)

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.

The Court said what defines an 'official' act was up to lower courts to decide, which seems eminently reasonable.

sure, until then it again ends up on their docket.

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?

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.

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.

It’s a good thing all you have to do is refer to your bribe as a gratuity and it’s perfectly legal thanks to another ruling last week.

Federal law prohibits gratuities for federal employees. That ruling applied only to state officials.

A President isn't an employee.

Sorry, should have said “public official”. Regardless, the president is covered by 18 § 201

Their definition of official act includes ordering an officer to take an official act.

So if the pres has anyone who can kill someone for legal reasons this decision allows the pres to use that person to kill for illegal reasons.

"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.

I'm not defending anything. I'm just stating the argument of the majority.

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?

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 think it’s consistent with the philosophy that States should curtail the powers of the President through constitutional amendments.

Who's going to hold him to that?

https://www.brennancenter.org/our-work/analysis-opinion/supr...

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?

Here’s the whole clause:

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.

Sure.

* 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.

What would it take to encourage you to vote? Surely sometimes it is worth voting for something that is not perfect, to protect the greater good?

As a Russian they'd first need to become a US citizen.

He didn't say he wasn't voting, he said he wasn't voting for Trump or Biden.

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.

https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

> can someone defend it?

You're in luck! The Supreme Court itself writes down why the decision was made. You can just…read it.

"It is my duty to protect American democracy so I killed my un-democratic challenger".

This opens a can of worms - no one can today imagine what that means, with a willy nilly fluffy definition of official act.

Yup.

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.

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.

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.

So, this is about connecting the dots between different Supreme Court decisions.

Further reading...

https://harvardlawreview.org/forum/vol-136/the-imperial-supr...

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.

[0] https://www.law.cornell.edu/wex/administrative_law

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.

Trump is being prosecuted right now. That's what this case is about.

But he is being prosecuted for fraud not for an official act as president

He was prosecuted for fraud and he is also being prosecuted for things he did as president on January 6th and after 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.

As they should, as that wasn't the issue before them.

The issue is he did many things also in his capacity as president

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.

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.

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.)

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.

The article explains this concern:

> 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.

Defense: What action?

Prosecution: Oops.

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.

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 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.

> (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.

Nixon resigned knowing an impeachment was pending. I cannot imagine that ever happening today.

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.

That started in 1982 with the Federal Society https://en.wikipedia.org/wiki/Federalist_Society

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

I mean even Washington had a SC nominee rejected. It goes back pretty far.

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.

Impeachment is not conviction.

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.

Complete malarkey.

>"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

--------------------

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."

1 - https://news.ycombinator.com/item?id=40847963#40851373

> 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.

Conviction at impeachment can result in removal from office and being barred from holding office again.

It requires the senate to do its job though.

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)

> 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.

If only Congress were a proxy for the citizenry, but gerrymandering has ruined that.

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.

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

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.

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 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 the form of can-do and can't-do.

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.

Can you expand on this comment?

https://news.ycombinator.com/item?id=40848910

- 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.

Interesting and... odd.

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 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.

> 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?

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.

I think it would easily succeed if there was actually a real actual reason to use it and not just a political stunt in the lower house.

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 understand why during their presidency the president needs to be immune (so that they can focus on their executive duties instead of spending their day in the court).

But AFTER the end of their (last) term why not be held accountable for their actions?

Because they will stay in power rather than face accountability (real or imagined) for their actions (legitimate or illegitimate). See Caesar, J and the fall of the Roman Republic.

That logic is so twisted though.

"The President might ignore laws on term limits, so we need to make laws that say he can't be held responsible for his actions".

That's clearly insane.

This would not fall under the official powers that he has?

Who cares? Now we have rulings that say it can't be enforced if it can be convinced that the action of avoiding your term limit can be an "official act" in times of unrest, urgency or doubt.

One must understand that the more safeguards we have to enact retribution in these cases, the better. You're not supposed to point to one after loss of another - you're supposed to point towards as many as possible. Before today, the courts were the one we pointed to the most, and they are no longer nearly as much at our disposal as they were before this morning.

how can the US president remain in power, aren't there checks and balances? Does he have absolute command of the army?

"We have to let you do bad things, because you will do very bad things if we do not" is a hell of an argument.

Framed another way, anyone crazy enough to run for a position in which your opponents will comb through all of your actions with a fine tooth comb to imprison you after the position term is over likely won't plan on their term ever being over.

It is still a valid strategy of risk-aversion, sadly.

Because that adds an incentive for the president to try to hold on to power.

Two reasons. First, it's the office that's immune, not the person. If you prosecute a person for something they did "as president" then you're prosecuting the office. Second, it's not to be fair to the person. It's to protect the government from collapsing. People forget that happens all the time, often due to ineffective executive leadership. Look at Haiti, etc. So, I think it's true that Presidents will get away with a few things here and there that they shouldn't, Congress can still impeach and remove them. If Congress is on-board with what the President is doing, then that's a decent safeguard that "at least whatever the President is doing isn't going to destroy the country."

I strongly recommend reading the actual decision, this is one of the topics that they address inside of this.

The claimed absolute immunity only extends to "official actions" made in discharging the responsibilities of the office, although a presumptive immunity (which is an immunity that a court could overrule based on lawyers' arguments that it doesn't apply) extends all the way towards the "outer perimeter" of the president's official responsibility. If things aren't official actions even in this "outer perimeter" sense, then the President doesn't enjoy any immunity according to Roberts' opinion.

And keep in mind that "official duties" in theory involves enforcing the laws that Congress has passed, so it's not carte blanche (except that Congress has given the White House a lot of carte blanche power to enforce various laws however it sees fit).

As for the "why", Roberts' opinion lays out these major statements:

1. The core matter of "why" should be, to try to make a precise application of the separation of powers doctrine. The powers need to be separated along some concrete lines, what are they. The claim Roberts makes is (in my words), if Congress were to pass a law that says "The Justice Department must be independent of the Oval Office," that would be arrogating some of the executive power which the Congress has exclusively vested into the Presidency, and would immediately fall afoul of the separation of powers doctrine. Similarly if they said "The President must under no circumstances send the lawyers of the Justice Department out to maliciously prosecute his political rivals for all their minor offenses," you know, that's a statement about how the laws are enacted and that's a power that simply wasn't bestowed upon Congress. And if all such laws would be void anyway, then the Court fundamentally can't find the President to be violating any law of that sort. So the determination is fundamentally that this immunity comes from separation-of-powers.

In the Constitution itself, Roberts points to the fact that the Constitution doesn't vest the executive power in "the administration" or some such, the power is vested directly in "a President" and they use that power to appoint their administration. The administration is their oyster.

2. Those concerns can be mitigated, renegotiated, reinterpreted by trying to appeal to what the original purpose of the power-grant was. So Roberts states flat-out what the Court's opinion was on the original purpose of the power-grant, and it's twofold.

2a. The power understood by the Framers, consists of marshaling the President's considerable resources towards enacting the laws passed by Congress. Roberts' decision goes to great effort to say that no man is above the law, that not all actions taken by a President-in-office are official actions, and that even among the official actions only the ones that directly pertain to enforcing laws and Constitution are part of "absolute immunity."

2b. But also, the framers of the Constitution intentionally built the executive branch to be "swift and decisive" after the Articles of Confederation produced an anemic executive branch that was unable to rally the States together to fight off the British. Being "swift and decisive" in this sense is almost just as hampered by after-the-fact prosecution as by in-office prosecution, because you are still having to evaluate "hey, if I try to enforce the laws that Congress passed by doing X-Y-Z, is this going to piss off some prosecutor enough to make my life hell after I leave office?" vs the same statement "...while I am in office?".

Of course, some amount of hesitation is warranted -- the President doesn't want to be impeached and potentially removed; and he would like to win another election. But Roberts is saying that the federal courts system isn't one of these sources of hesitation for those "I have these resources, and those laws to uphold, I am going to enforce these laws with such-and-so resources and those laws with those resources" concerns. Not during or after the Presidency, because it's not about "oh I have to go to court today", but rather about "Man, I have to go to Legal and get their opinion on this."

3. It lays out a foundational principle that the separation of unofficial and official actions should be done without any reference to what the President was thinking at the time, and without any reference to any generally-applicable laws. So if the President is doing something that a President could do as part of normal enforcement of the passed laws under normal circumstances, but is doing it for secret nefarious reasons and in a way that if a midrate businessman did so, they'd be guilty of fraud: Roberts says "that doesn't matter, it is still an official action regardless of his reasons and therefore swiftness applies and he's immune." And he outright states that this is for a "slippery slope" reason; the swiftness desired by reason (1) is not actually created if you then generate a legal loophole which says "well let's still have the courts consider these other parameters and maybe we can get the immunity disqualified."

The decision thus applies the absolute immunity to Trump's attempts to get the Justice Department to prosecute the (highly dubious) election fraud that he claimed had happened, and it applies the same immunity to Trump's threats to fire the Attorney General if he didn't do as Trump wanted. It says "yeah, it doesn't matter if you convincingly argue that Trump knew the election fraud was bullshit, and it doesn't matter if firing the Attorney General would have qualified at any other workplace as illegal retaliation."

4. Roberts makes it clear that as part of (2a) above he is not overturning past precedents which have placed presidents subject to the courts' subpoena power, even though that in theory also endangers some sort of "swiftness" of the job. So the judicial branch is kind of in this strange middle-ground position of "We can still demand our questions be answered, but we can't throw you in jail for doing what appears to be your job."

Kind of a strange ruling, but it's not total executive anarchy like you might expect. If Biden were to, say, tell his military "Go arrest the Justices, put them in overnight lockup, see how they like the world they created" there would probably be a strong case that, due to due process guarantees, Biden never had the power to order that and it qualifies as an "unofficial" act for which he enjoys no immunity.

Sotomayor's dissent [1] is a must-read as well. She's more concerned than you are.

    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 as-
    sassinate a political rival? Immune. Organizes a military
    coup to hold onto power? Immune. Takes a bribe in ex-
    change for a pardon? Immune. Immune, immune, immune.

[1] Search for "SOTOMAYOR, J., dissenting" in this PDF: https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

Immunity for things they do as part of their official duties. I suppose it’s reasonable but the question will now turn to what is actually an official duty.

The opposite holding, where they are liable for everything, would be untenable. Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans? It seems like that world would hamstring the president far too much.

I don’t know if they struck the right balance here (and we not know until the next time it comes up), but at least we have slightly more clarity.

>I suppose it’s reasonable but the question will now turn to what is actually an official duty.

I'm fairly sure there's a full and complete list of these is explicitly in the Constitution.

> I'm fairly sure there's a full and complete list of these is explicitly in the Constitution.

Roberts disagrees in the decision (p. 17):

> Distinguishing the President’s official actions from his unofficial ones can be difficult. When the President acts pursuant to “constitutional and statutory authority,” he takes official action to perform the functions of his office. Fitzgerald, 457 U. S., at 757. Determining whether an ac- tion is covered by immunity thus begins with assessing the President’s authority to take that action.

> But the breadth of the President’s “discretionary respon- sibilities” under the Constitution and laws of the United States “in a broad variety of areas, many of them highly sensitive,” frequently makes it “difficult to determine which of [his] innumerable ‘functions’ encompassed a particular action.” Id., at 756. And some Presidential conduct—for example, speaking to and on behalf of the American people, see Trump v. Hawaii, 585 U. S. 667, 701 (2018)—certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision. For those reasons, the immunity we have recognized extends to the “outer perimeter” of the President’s official responsibilities, covering actions so long as they are “not manifestly or pal- pably beyond [his] authority.” Blassingame v. Trump, 87F. 4th 1, 13 (CADC 2023) (internal quotation marks omit- ted); see Fitzgerald, 457 U. S., at 755–756 (noting that we have “refused to draw functional lines finer than history and reason would support”).

> In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of of- ficial conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II in- terests that immunity seeks to protect. Indeed, “[i]t would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government” if “[i]n exercising the functions of his office,” the President was “under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry.” […]

> Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. For in- stance, when Fitzgerald contended that his dismissal vio- lated various congressional statutes and thus rendered his discharge “outside the outer perimeter of [Nixon’s] duties,” we rejected that contention. 457 U. S., at 756. Otherwise, Presidents would be subject to trial on “every allegation that an action was unlawful,” depriving immunity of its intended effect. Ibid.

* https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

That last point is bothersome, because if you're looking at "color of law" as a defense, when does that end?

A good example is that killer cop in Minneapolis, I don't remember his name or care to fill my brain with it. He was acting officially when George Floyd died under his care; he was responding to a 911 call that Floyd was the subject of.

The cop was convicted of murder, but let's say that POTUS does something abhorrent (and this is likely to occur now that this is case law) under color of law and someone wanted to charge him or her because of it. Does that get somehow pulled back as it did for the cop?

Trump's legal team argued, I think in this case, that a president should be immune from prosecution up to and including calling a hit on a political opponent. Which, given all the consternation about Biden persecuting his political opponent, sounded like a bit of an invitation...

Well, SCOTUS didn't give POTUS license to do that, but they did give license to do something awful and then have their defense team argue that the act was a part of official duties, with a chance that a judge, possibly appointed by the President, agrees.

The thing about Biden, since you brought him up, is he's unlikely to test this in any meaningful way with regards to Trump. Could he theoretically now have the USSS detail in charge of babysitting Trump indefinitely detain him, without consequence? Maybe. But he still has at least some belief in the process and won't do that.

This gives me flashbacks to lessons about von Hindenburg. An old guard who had belief in the process going by it even when dealing with someone who has obvious and sneering contempt for that process.

> An old guard who had belief in the process going by it even when dealing with

To be fair the situation in Germany was multipolar. Hindenburg wasn’t a huge fan of democracy or especially of one run by Catholics, liberals and socialists and just saw the nazis as a lesser evil..

> Could he theoretically now have the USSS detail in charge of babysitting Trump indefinitely detain him, without consequence?

I mean under what idea is that part of his official duties? If it's not it's literally exactly the same as before. Biden can do this at literally any moment. This court case doesn't change his ability to make unlawful moves.

Is it unlawful?

After today, if a federal judge arbitrarily decides "it's not", well... it's not.

I suppose if they really wanted to give a reason they could say he's a flight risk or something, it doesn't need to be valid with today's ruling.

How is that different then any executive action before the ruling? Presidents attempt to do all sorts of shit and then a judge say no. Literally nothing changed the surprise was it wasn't a 9-0 ruling not anything in the ruling.

Very much in the air and down to courts to decide, ordering the military around is certainly within the official acts but doing it on US soil not directly pursuant to external boundaries like the border generally wouldn't be.

Ultimately I think the issue with this is we're trying to address a deep systematic issue through the system it's infected. Often those issues can't be solved that way and have to go around the system itself somehow. You're unlikely to be able to sue your way out of a fascist coup when it's successful for example, and similarly disadvantaged when the avenue is carrying water for a failed coup.

On the other hand, if Trump marches on Washington at the head of an army surely Biden can take him out with an airstrike. Extreme scenarios often lead to bad law.

That's what happens when the unitary Executive and the Commerce Clause expand to devour the entire constitution. If we wanted to reduce the expansiveness of executive power (the Bush Doctrine), Obama was given the mandate to do it, but instead went out of his way to codify the practices which a lot of people thought had been illegal.

To borrow from a similar claim: with the combination of the "Due Process" interpretation that backed the al-Awlaki killing (where Holder explained that due process was simply a term designating whatever process that they do, and could entirely occur in one's own head), and this judgement, Trump could have stood in the middle of 5th Avenue and shot somebody and could not be charged for it. So can Biden.

-----

edit:

Ten Years after the al-Awlaki Killing: A Reckoning for the United States’ Drones Wars Awaits

https://mwi.westpoint.edu/ten-years-after-the-al-awlaki-kill...

> From the Magna Carta to the US Constitution, citizens have sought ways to protect themselves from the arbitrary exercise of sovereign power. The drone strike on al-Awlaki reversed this historical process with an executive process. From the so-called “Terror Tuesday” or “targeting Tuesday” meetings where President Obama personally approved targets for drone strikes to the drafting of the legal logic justifying the extrajudicial killing of an American citizen, the strike on al-Awlaki was the result of decision making within the executive branch. Completely absent from the proceedings was the judiciary, which acts as a crucial buffer and neutral arbiter between the citizen and the executive.

> In its own defense, the Obama administration argued that due process was not the same thing as judicial process and presented the test that it used to justify the targeted killing. While some observers have emphasized the narrowness of the legal standard, it was crafted specifically to target al-Awlaki, therefore reinforcing just how discretionary this exercise of executive power was. Furthermore, it was conceived of and adjudged constitutionally sufficient by attorneys who had previously opposed executive overreach during the Bush administration.

[It's interesting that the al-Awlaki killing was over speech, too. So while the executive branch is not allowed to exercise prior restraint over speech, Presidents are now constitutionally immunized for murdering people to keep them from speaking.]

> the question will now turn to what is actually an official duty

Fortunately, the past rulings of this court have made the jurisprudence abundantly clear:

If Biden orders Trump to be assassinated, that's unofficial, and he can be prosecuted.

If Trump orders Biden to be assassinated, that's official, and he has complete immunity.

Easy, right?

Please don't take HN threads into political flamewar hell, or any other flamewar hell. That's what we're trying to avoid here.

https://news.ycombinator.com/newsguidelines.html

This feels likely highly selected be encorcement.

Either let people vent or nuke the whole thread

That's not how HN works. People don't get to break the site guidelines regardless of the topic, and people are welcome to make their substantive points thoughtfully regardless of their views. Killing the entire thread would be to punish the latter for the former.

https://news.ycombinator.com/newsguidelines.html

It's been this way for a while. Someone once made a post saying "Christianity is a perfectly peaceful religion and has met benefitted historical society" and then someone replying with "They genocided countless people and nations" would then get a "this is against site rules'.

The problem is, the people who make the call of what is or is not an official duty are often in thrall to the President in one way or another.

This is a disaster for rule of law.

Well obviously… otherwise a politician paid by putin could remove the ability for the president to fire the nuclear weapons. You can’t have randos deciding what the leader can do.

The question is, will everyone surrounding a president allow the president to commit mass cullings or nuke California. And the answer is clearly not, outside of delusional fantasy scenarios.

Trump wasn’t even allowed to build a wall, and you think his VP would have let him commit genocide?

> You can’t have randos deciding what the leader can do.

These aren't randos; they're federal prosecutors that are hired by the sitting President of the United States.

Let's say that even if there is a decision that Trump's acts aren't related to his official duties and he somehow gets punished for those charges (I wouldn't hold my breath). How does this not give Biden and future Presidents a way to seriously abuse their power with a hope that they're not held accountable for it? Before it was just a hypothetical. Now we've crossed the Rubicon and established that there are scenarios in which a President can have unlimited power.

It’s also likely that the project 2025 people will have almost every federal employee declared a political appointee which would give any sitting president the power to fire any prosecutor prosecuting him. This was one of the OMB changes Trump made at the end of his last presidency.

There are some already drawing up list of those employees for targeting during a potential second Trump term, using a grant from the Heritage Foundation, IIRC.

It may be a saving grace that little will get done when all the people with institutional knowledge are fired.

That’s the goal though. Eliminate everyone competent and then leave the gutted institutions for the next series of Presidents to deal with. Or in the case of the National Weather Service gut it, replace everyone with climate change deniers, then outsource all the weather and meteorology to someone like The Weather Channel.

I don't think this really matters in this specific case; the DoJ itself has a policy of not prosecuting sitting presidents.

And that's a problem. Are we a nation of laws, or are we not? Justice delayed until someone's out of office is justice denied until someone's out of office.

I mean, this isn't outside the norm. Most government employees and officials either elected, appointed, or hired generally don't have personal liability for discretionary acts of their office under the principle of qualified immunity.

It's really weird to watch all that from the other side of the pond. In my country for example, all politicians have immunity but our parliament can revoke it for anyone using a majority ruling... ( having more than two political parties helps )

> Now we've crossed the Rubicon and established that there are scenarios in which a President can have unlimited power.

Yes, the places where he is explicitly given unlimited power.....

That's a tortuous use of the word unlimited. The president has very limited power that is spelled out by the constitution and proscribed by Congress. Using that limited power in the way it is permitted is not "unlimitedly using limited power."

This absolutely opens the door to that. It gives a scenario where a sympathetic judge can immediately toss a case against a President for abusing power.

Your looking at it from today's perspective, but these kinds of rules need to be looked at from the perspective of worst case scenario - don't limit it to the current candidates, think about what a future president in... Say 30yrs is gonna do.

The weihmaher republik was a pretty good democracy back in the day. It just gave the leader certain rights, and suddenly Hitler became the dictator, creating Nazi Germany.

Everyone needs a limit to their power, otherwise they'll be able to essentially flip the board and declare themselves emperor.

Please don't project what I said here onto trump, Biden or Obama. None of them are on that level. It's just possible that a future president is that morally bankrupt, especially if social issues continue to accrue/inequality keeps growing unchecked.

> The weihmaher republik was a pretty good democracy back in the day.

No it wasn't. It had armed gangs, both right and left-wing, fighting in the streets, completely failed monetary policy and sky-high level of corruption. The republic just started to kind of getting back to normal for a few years at the end of 1920s, and then was wrecked with Great Depression.

> It had armed gangs, both right and left-wing, fighting in the streets

See: 2020 in the US.

> completely failed monetary policy

See printing off a lot of money to deal with an emergency because the US hasn't had a meaningful conversation about revenue since 1993 when George HW Bush went back on "read my lips"

> sky-high level of corruption

You have people on this court accepting vacations and gifts from people who are wishing to push a certain political viewpoint on the court. They just ruled this was okay, too, by neutering a federal anti-bribery statute. Money is considered protected political speech.

There are a lot of parallels between Weimar Germany and the current state of the USA. More than anyone should feel comfortable with.

To be fair there is still a very long way to go if you look at the actual details.

> There are a lot of parallels between Weimar Germany and the current state of the USA

It might be dysfunctional but largely in very different ways (unless you view it extremely superficially).

> It had armed gangs, both right and left-wing, fighting in the streets

And even moderate ones.

> completely failed monetary policy

IIRC during the period between 1923 and the Great Depression (i.e. majority of its existence) it was relatively stable.

> Please don't project what I said here onto trump, Biden or Obama

Technically the US is in this predicament because one of them wanted his vice president to not name a successor, after mentioning several times during his presidency that he wanted a third term.

Just because he's a bad wannabe dictator, it doesn't mean he's not a wannabe dictator. He even said so himself, "just for one day".

> It just gave the leader certain rights, and suddenly Hitler became the dictator, creating Nazi Germany

Not it didn’t give him those rights. The parliament (including moderate parties) explicitly granted him the power to so whatever he wanted after the nazis were already in power.

https://en.m.wikipedia.org/wiki/Enabling_Act_of_1933

Now read up on how he got his people into the Parlament and have your mind blown

Winning elections? There was only so much they could do without cooperation from the other far-right parties and especially Hindenburg.

> otherwise a politician paid by putin could remove the ability for the president to fire the nuclear weapons. You can’t have randos deciding what the leader can do.

No, apparently it’s much easier and safer to just pay off the president directly.

This is really just the formal ruling that qualified immunity is applied to the presidency. Just like with other qualified immunity, it'll be messy to figure out what should be covered an what is not.

> The opposite holding, where they are liable for everything, would be untenable

Only where their actions were already criminal under the law. This is the problem. No-one should be above the law.

Obama ordered drone strikes that intentionally killed at least two Americans. One he copped to, one he denied was intentional.

https://en.wikipedia.org/wiki/Anwar_al-Awlaki

https://en.wikipedia.org/wiki/Killing_of_Abdulrahman_al-Awla...

To my mind, that is exactly the sort of thing I'd like to be hamstrung by a fear of prosecution.

(Trump ordered drone a drone strike that also killed Abdulrahman's eight-year-old American sister.)

Yeah, this pearl-clutching about presidents being tried for criminal acts is loathsome. I think quite a lot of people believe that quite a few past presidents are guilty of war crimes, and that there should be real consequences for those crimes. My knowledge of history in this regard more or less begins with the Vietnam War: since 1955, I am not aware of a single president who hasn't ordered acts that are crimes against humanity. And throughout that time period, our crimes against humanity have brought ruin to much of the world. Perhaps presidents should fear the law.

> Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans?

Unintentionally? American citizens were the intended targets of some of his drone strikes. They weren't in warzones either, it was effectively murder.

  > Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans?

If you're referring to Anwar Al-Awlaki and his son, both US citizens, it was intentional.

If you're not referring to this, Obama's already done this without getting charged.

Being POTUS is an unenviable job.

https://en.wikipedia.org/wiki/Anwar_al-Awlaki

Edit: Since people are assuming my views on this topic, I'll say that they're seriously conflicted and I'm not trying to imply any particular viewpoint, only the facts.

on a tangent, was the drone operator charged? iirc "just following orders" only goes so far.

No. It seems unlikely that the drone pilot would have all of that information beyond where the target was, that would be necessary to make an informed decision about participating in an extrajudicial execution of an American citizen.

From my experience in manned operations, you're basically only given a target, not the details.

Based on that, I would assume the targeter did not know whom they were targeting. Or they did, knew the orders came from the National Command Authority[1] (Eg. POTUS) and did it anyway. I would have.

1. https://en.wikipedia.org/wiki/National_Command_Authority_(Un...

I keep seeing this argument pop up about “should Obama be prosecuted” like it’s some sort of “gotcha liberal!”

And as a liberal I think “hell YES he should be prosecuted!” The government shouldn’t just go around killing citizens without due process. I don’t care what letter is by their name.

I think that is 99% true, with the exception of civilians who take up arms against the US.

Imagine the civil war if the union couldn't kill confederates.

> Imagine the civil war if the union couldn't kill confederates.

A full scale civil war really is an extraordinary case and is a lot more akin to a regular war than what we are talking about here.

I'm more afraid of someone declaring war on an abstract concept (like the "war on terror") and then using broad powers meant to be used in normal wars between states that have declared combatants than I am of a civil war.

I wonder how that would play out in today's Congress. There is technically no country to declare war on, unless you can declare war on yourself, so they would have to first redefine the United States as two parts. After that is passed, they could declare war on the opposing half. I guess I'm kind of seeing how the Chinese governments got themselves tied up in knots with their continuity of state and all.

I'd imagine that you can declare war on a specific group (that does not have to be defined as a state) like the "confederate states of america" without it having to be a nebulous concept like "terror". But I don't know enough to say for certain.

If we have a declared war between the US and the people (US citizens or otherwise) who are taking up arms against the US, then sure, attack away.

But otherwise, the only remedy should be judicial process against these people: arrests, trial, etc. Otherwise we have a term for it: extrajudicial killing.

Of course, Congress has given the executive branch weird war powers over the past few decades, so legally I'm sure they're in the clear, unfortunately.

I hear the same shit a lot. IRL, and in right wing media. “They don’t seem to get that if they can prosecute Trump, we can prosecute Biden and Hillary for [any of several shaky charges]”

No, no: we do get that. We just think that’s a good thing. If you have the evidence (you don’t, or we’d have seen, like, any of it at all) then by all means, prosecute the absolute shit out of them!

That's the appropriate patriotic response that you'd hope all Americans would give, especially those who have sworn to defend the constitution. But what I've come to realize is that a lot of Americans somehow see it as their patriotic duty to destroy the Federal government, and will support anything that will undermine it, including breaking the rule of law and a scorched earth attack on "liberals" that wish to uphold our form of government. This is the legacy of the Confederate grievance that is still very much alive today.

I don't like the killing by a drone (to easy for it to be misused), I am less ok with the killing of his 16-year-old son, and even less so for his daughters killing.

But... It seems he was a member of al-Qaeda, and the "Public Law 107–40 107th Congress Joint Resolution" passed by congress did authorize:

> That the President is authorized to use all necessary and appropriate force > against those nations, organizations, or persons he determines planned, > authorized, committed, or aided the terrorist attacks that occurred on > September 11, 2001, or harbored such organizations or persons, in order to > prevent any future acts of international terrorism against the United States > by such nations, organizations or persons.

That does seem to authorize extra-judical killing in this case. I am not really happy about any of this, but since we are talking legalities, this seems to apply.

https://www.congress.gov/107/plaws/publ40/PLAW-107publ40.pdf

Its more like "immunity for any action within the realm of presidential power, regardless of motive or criminality". Accepting a bribe in exchange for a pardon would be A-ok on the basis that pardoning is a “conclusive and preclusive” authority of the president.

> The opposite holding, where they are liable for everything, would be untenable.

Literally no one was arguing for this and there are much more reasonable interpretations of presidential immunity you could compare this one to.

No, the act undertaken in exchange for the bribe would be under the immunity umbrella but the act of taking the bribe would not.

> The President’s authority to pardon, in other words, is “conclusive and preclusive,” “disabling the Congress from acting upon the subject.”

> Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority. It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.

Further evidence is that Sotomayors makes the claim in no uncertain terms and that the majority makes zero effort to dispute it.

Yes, I agree - the President is immune for the official act they undertake, the existence of which allows for a the charge of bribery.

They are not immune for the non-official act of soliciting or accepting bribes in exchange for an official act, which is the charge of bribery.

So if the President took a bribe in order to make someone ambassador to Sweden, they could not be prosecuted for making that person the ambassador, but they could be prosecuted for taking the bribe.

Note that the majority opinion forbids prosecutors from referencing the official act in court, no matter the charge. So they'd have to prove the President accepted a bribe, but never mention anything about the ambassadorship. How could a jury ever reach a guilty verdict? At most, the evidence would point to a President receiving a lavish monetary gift.

This isn't a misreading of the ruling. Justice Barret dissented from that particular part of the majority opinion, bringing up the hypothetical of bribery.

well that's insane

If you read footnote 3 it says the prosecutor may reference official records of the act. They simply may not reference the president’s personal records. So you are not really correct.

They just decided last week in Snyder v. United States that its only a bribe if you have clear evidence, and a suspicious gift is just fine and perfectly legal.

They essentially decided that with executives years ago with McDonnell v US

SCOTUS has repeatedly hemmed in the scope of bribery charges and expanded executive privilege. The only way to nail the president for a corrupt appointment at this rate would be:

Enter LOBBYIST and POTUS on CONGRESS floor

LOBBYIST: projecting voice I am now rendering payment in exchange my appointment as ambassador to Sweden. What say you?

POTUS: projecting voice Yes, I knowingly accept these improper funds and -

CONGRESS immediately gathers a quorum, impeaches, and removes POTUS mid-sentence

POTUS: - name you ambassador to Sweden.

Discussing the expectations of appointments with potential candidates is an official act as president and would enjoy immunity the same way that conferring to commit crimes with the DOJ does. It is theoretically possible that the dumbest person alive could get convicted but generally the latitude seems to be insanely wide.

How can you determine that the bribe was for an official act if “… courts cannot examine the President’s actions on subjects within his “conclusive and preclusive” constitutional authority”? In other words, if courts cannot even examine the official action, then what is the bribe even for? A bribe needs to be connected to an action to be considered a bribe at all.

You can't and that's the specific reason Justice Barrett concurred only in part.

They can reference the action. They just can’t examine the presidents motivation. But they could present evidence like “President X received $500,000 in cash from Mr Y as recorded on this video. Two days later President X pardoned Mr Y’s brother.”

We just established last week that obviously the bribe would come after the official act, making it a gratuity and thus free and clear of any whiff of wrongdoing.

What do you mean, “unintentionally”? Obama deliberately and knowingly ordered an extrajudicial killing of a US citizen.

Obama ordered Bin Laden killed. Should he be prosecuted for that?

Remember that the President can still be impeached for "high crimes and misdemeanors".

I'm unclear why ordering the death of one of his nation's worst foes, whose network was still at war with the US, could ever be illegal?

He would have been sued with no immunity. Either by Pakistan, or by members of the family, or whomever. The fact that they had no legal basis for it is inevitable, it still would have resulted in years and years of legal pain

He was never convicted of a crime.

I'm trying to point out that it is not at all easy to draw a line between what a President could be prosecuted for and what he should be prosecuted for.

I'm pretty sure one could find abuse of power committed by about every President.

Even Jefferson - he wasn't empowered to make the Louisiana Purchase, but did it anyway.

I think this particular ruling gets it really wrong, though.

For a president to be able to conduct "official acts" in self interest, with no obvious limits, is quite concerning.

I think the president should enjoy a weak presumption that official acts are legitimate. But this goes way too far-- prohibiting consideration of motives, prohibiting using them as context or evidence in any other proceeding, and appearing to classify what would be horrible abuses as official acts.

There's also the Supreme Court ruling that it was illegal for Biden to do mass loan forgiveness, yet Biden did it anyway.

Should Biden be prosecuted for that?

I think it was an impeachable offense, given that Democrats knew from the start that the president didn't have that power, yet he tried it anyway and let the courts strike it down. Pelosi even said once: "People think that the President of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress."

I don't know if that would be prosecutable. Is there a federal law against acting as though you have powers you do not while in office?

I suppose the difference is that having SEAL Team Six kill a political opponent on the President's orders seems like it should be classified as first-degree murder.

The court struck him down, and yet he has continued to do it.

Are you implying that should make me want to change my previous answer?

That is a good point. I would happily let Trump go free if it means that Biden can delete all student debt without fear of prosecution.

I wouldn't. Edu debt is insidious, but it's not worth allowing the president break whatever laws desired as long as the actions can be twisted to be considered "official".

Look-- prosecution and liability of people holding office is tricky.

We neither want a world where every politician faces investigation for misdeeds after leaving office, nor one where apparently the president can act with impunity with no clear limits at all.

We need a middle path, where prosecution is rare and exceptional but true misdeeds can be punished (and deterred).

I feel like we left behind where we were slightly over-investigating and made a massive overcorrection to the other side for blatantly political reasons.

> Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans? It seems like that world would hamstring the president far too much.

I feel like you'd have a different opinion if it were you getting unintentionally killed!

Saying "Obama killed Americans" is really demonstrating a problem with birthright citizenship. Without that, these Americans wouldn't be Americans.

President's can still be impeached as a result of their official acts. It seems that is intended to be the outlet for prosecuting the Executive Branch.

Am I wrong there?

Nope - and this is a key point. The framers intended there to be a mechanism to hold a president accountable - impeachment. But it is badly formed, and has never been used, even though arguably it should have been in every case it was used in.

Also impeachment only removes them from office which is far from a complete punishment. They're still completely free people after impeachment, the only right that's taken away is the ability to be President which is a pretty paltry punishment especially for second term Presidents.

There have been impeachment proceedings started against four presidents, all of which would qualify as it being used, even if the presidents weren't successfully impeached. Impeachment proceedings have been completed against 3 presidents and in all cases the senate vote failed to meet the 2/3 supermajority. An impeachment inquiry was also started against Nixon, but he resigned before the house could vote. One could argue that the impeachment inquiry in that case was successful.

The procedure for impeaching federal judges is similar, in that the vote needs first to pass the house, then a supermajority of the senate. In 2009, federal judge Thomas Porteous Jr, was successfully impeached by congress. Congress then also voted to prohibit him from holding future federal office.

https://guides.loc.gov/federal-impeachment/thomas-porteous

The problem is that impeachment is a political process, not a legal or judicial process. I feel like using the term "prosecuting" to describe an impeachment trial in the Senate is a bit of a misnomer.

Regardless, impeachment is there to remove the president from power. It can't jail or otherwise punish the president. The regular old legal system should be doing that, for everyone, regardless of whether or not they're an elected official.

> Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans?

How about the one which intentionally killed an American child (16)?

Part of me wouldn't mind seeing that, but, I would have to agree that was an official act, regardless of how despicable it was.

> It seems like that world would hamstring the president far too much.

except Obama ordered plenty of drone strikes including on American citizens, so actual data suggests he was not "hamstrung" at all.

Those with the most power should receive the most scrutiny and face the greatest consequences for its misuse.

Agreed. It’s not as if becoming president is forced on anyone.

Judging from history, it is a pretty dangerous role as well and that doesn’t seem to have dissuaded many people. If there are willing to risk their safety, I’d think the risk of prosecution wouldn’t rank too highly either.

> Immunity for things they do as part of their official duties.

How would attempting to overturn the results of a free and fair election be considered an "official duty"? If it is, then the Presidency became a dictatorship, leaving impeachment by Congress -- an extremely difficult bar -- the only recourse.

It's only called an attempt if it fails. If it goes through till some point, it's His Royal Highness General Alladin bring order and justice and acting to grant their people all the freedoms they asked for.

Source: I'm from places that had the Supreme Court (of places, not US) overturn an election result due to fraud

This was my thought too. The ruling doesn't seem crazy; being legally liable for every single official act would actually make it untenable for the president to do many things a president needs to do without the real fear of prosecution if anything goes wrong. (And things go wrong! All the time!)

But what's an "official act"? I would hope that courts consider that definition very narrowly. Also disallowing juries to see discussion of official acts as evidence for related wrongdoing is disastrous.

Ultimately, though, it won't matter. Trump has effectively managed to delay this particular trial, and much of the remainder of its pre-trial process, until after the election and after the inauguration. I assume if he wins and takes office, he can instruct the DoJ to dismiss the case against him.

The Georgia case can still proceed, regardless of the outcome of the election, but Willis completely screwed that one up with her idiotic romantic decisions.

Equating Trump's accusations and drone strikes only makes sense if you're not allowed to look at intent, which historically is very relevant for criminal law. More aptly Nixon would be immune from prosecution for obstructing the Watergate investigation under this ruling. In fact presidents are immune from using the justice department to go after political rivals here since determining prosecutorial priorities is clearly an official act (mentioned in the opinion) and you aren't allowed to inspect intent. If either party used the justice department specifically for personal gain they should be in jail but they are literally immune now.

The disallowing of considering even corrupt intent seems to be the real worry here. There's no distinction between using your power to promote general welfare and using it to line your own pockets or subvert democracy.

It's really impossible to understand and determine before hand how the court would rule on any of these theoretical cases that may result as a consequence of this decision. It is up to further cases to actually establish was constitutes "official" versus "unofficial" capacities as President and we can absolutely not guess before hand what that entails. From the decision, it seems that only those duties constitutionally mandated would fall under the "official" capacity, with quite a lot of leeway for determining how to evaluate individual actions.

Also I think we should all be reminded that there is separation of powers for a reason. The President is ultimately largely beholden to Congress. The government cannot sink into a dictatorship without the explicit approval of the majority of Congress. It is Congress' duty to remove Presidents from office that it feels are a danger to the country.

All these checks and balances still exist and will still be enforced. The President can not unilaterally go off the rails as many of these extreme hypotheticals seem to be implying.

> It's really impossible to understand and determine before hand how the court would rule on any of these theoretical cases that may result as a consequence of this decision.

I've got a pretty good guess, and it will be based on the political party of the defendant.

> The President is ultimately largely beholden to Congress. The government cannot sink into a dictatorship without the explicit approval of the majority of Congress.

This is nonsense. The President can just assassinate all of their political rivals in Congress that would hold them to account. Before this ruling there was an assumption that any such actions would be prosecuted after the President was no longer in office (assuming they didn't have enough power to interfere with a free election). Now that can't realistically happen.

There's a reason why folks are saying this ruling, "paves the way to a dictatorship"!

This is not really true though. Congress is responsible for granting authority to the President regarding valid military targets. This is why drone strikes are only legal against targets recognized by Congress as security threats. It cannot realistically happen for the President to start targeting individuals outside of Congressional authority.

For your hypothetical situation to arise, Congress would have to declare members of Congress themselves as valid military targets.

> For your hypothetical situation to arise, Congress would have to declare members of Congress themselves as valid military targets.

Or just add them to the https://en.wikipedia.org/wiki/Disposition_Matrix.

"As reported previously, United States citizens may be listed as targets for killing in the database. Suspects are not formally charged of any crime nor offered a trial in their defense. Obama administration lawyers have asserted that U.S. citizens alleged to be members of Al Qaeda and said to pose an "imminent threat of violent attack" against the United States may be killed without judicial process. The legal arguments of U.S. officials for this policy were leaked to NBC News in February 2013, in the form of briefing papers summarizing legal memos from October 2011."

A relevant decision by a Federal judge regarding the legality of the disposition matrix, concerning specifically US citizens abroad:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2012cv1...

It's an interesting read, but part of the argument was that there were Congressional checks and balances in place for security threat review and congress authorized force against the group in question which essentially gave the executive branch authority to add the specific targets in question.

The legality of the disposition matrix at large can still be tested and re-tested depending on the specific actions of the executive branch.

>"The legality of the disposition matrix at large can still be tested and re-tested depending on the specific actions of the executive branch."

Ha! So far it's had a pretty good history, and 4 American citizens have been killed from it.

- Anwar al-Awlaki - Abdulrahman al-Awlaki - Samir Khan - Jude Kenan Mohammad

Their due process, as enumerated in the constitution was conclusively violated; and only one (Anwar) was targeted due to involvement in Al-Qaeda.

I encourage you to read the linked decision I referenced which references this exact case:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2012cv1...

The judge ruled there was no violation of their constitutional rights, explicitly because Congress was involved in authorizing military action against the wider threat and specifically in this case Congress was in the approval process for authorizing individual targets.

There was no violation of checks and balances here. That is not to say other uses of the so-called "disposition matrix" might be challenged in the future, but at least in the cases of these individuals, the courts have ruled that no rights were violated.

I've read the source material; and it's why I believe the ruling was wrong, and what congress vested in itself inappropriate powers.

If president has gone rogue and is assassinating members of congress (or rival candidates, why would they need legal immunity? Assassinating opponents is already the action of someone that refuses to relinquish office and has de facto immunity. They don't need the validation of the Supreme Court to do this; nobody is going to charge them in the case that it'll bring a death sentence.

> why would they need legal immunity?

Because there's a gap between here and there, and we don't want to make that gap narrower than it already is. The president can now do a whole lot of illegal shit that falls short of "assassinating anyone at any time," and face no consequences. By allowing one we inch closer to the other.

Would this ruling make Nixon’s actions in Watergate legal too?

> Roberts explained in his 43-page ruling, presidents have absolute immunity for their official acts when those acts relate to the core powers granted to them by the Constitution – for example, the power to issue pardons, veto legislation, recognize ambassadors, and make appointments.

Most likely not. Watergate was a result of an election campaign, not official acts as President.

Yeah, Nixon should've ordered his secretary to do it, as all executive communications are now protected against criminal investigation.

I'm not so sure about that. From this ruling:

> Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.

And the 'smoking gun' implicating Nixon:

> Nixon then released the tapes six days later. On one tape was the so-called "smoking gun," showing that six days after the break-in Nixon had tried to use the CIA to block the FBI investigation of the burglary.

IANAL, but my understanding is under this ruling those tapes would have never been made permissible evidence in court. Giving orders to the CIA is certainly an official act, as much as granting pardons is, and this court has established the examination of said motives is out-of-scope:

> In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such a “highly intrusive” inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose. Fitzgerald, 457 U. S., at 756. Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.

It would make it illegal to use the tapes as evidence against him. So it doesn't matter if it makes it legal or not, because it makes the illegality impossible to prove in a court of law by denying evidence to the prosecution.

Could you explain this a bit further?

From the official ruling on https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf:

> (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 im- mune 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.

E.v.e.r.y.o.n.e should just go read the decision and dissents. It’s not that long or hard to follow. Then probably go read all of the Federalist Papers, if they haven’t already, or one of the Constitutional Debate readers that are readily available and may include much of Federalist.

The primary source here is plenty accessible, and free. And alarming.

> 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.

The argument is not that all recordings are off limits, but if the President asks his lawyer "what is a bribe?" that can't be used as evidence he took a bribe.

All official recordings are off limits. Even in prosecution of "unofficial" actions. Barrett even disagreed with this.

"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."

This is not an accurate reading. In the decision, gathering of evidence is not protected by immunity.

People are jumping on language in the decision that says discussions or probings about the criminal nature of the crime would not be admissible.

So Nixon ordering Watergate would still be admissible - Nixon discussing with his legal team or cabinet after Watergate broke would not be.

How would you prove anything if you can't present any of his actual conversations about Watergate as evidence?

The argument is not that all recordings are off limits, but if the President asks his lawyer "what is a bribe?" that can't be used as evidence he took a bribe.

Hard to read this and conclude that there can be any actual way to produce admissible evidence. Can you give me an example of what conversations you can use as evidence if anything involving him or his advisers is off limits?

The court uses the language "in the first instance". So it sounds like you can use anything generated by the crime itself, but you can't dredge up other conversations about the crime.

Nixon ordering an illegal action is a crime, and Nixon destroying evidence was definitely a crime, so evidence of either would be game.

This is not answering my question at all! How do you generate evidence??

Pressuring an aide, via threats of violence, or whatever, is now blanket immune under this.

You cannot use official communications between a president and his VP for example, as evidence, even in prosecution of an unofficial act that is criminal.

A horrendously stupid, devoid of any logic ruling, so much so that Barrett even disagreed with this part.

> "... The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.

> The question then becomes whether that presumption of immunity is rebutted under the circumstances. It is the Government’s burden to rebut the presumption of immunity. The Court therefore remands to the District Court to assess in the first instance whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch."

As per the ruling, Trump does not get blanket immunity with his interactions with Pence. But it is the prosecution's responsibility to now make a case that it was outside of his discretion.

I'm not arguing that this is a clear or useful legal distinction, but Trump only got true "blanket" immunity for the first indictment regarding the abuse of the Justice Department.

And how, given section III-C of the opinion that Barrett disagreed with, would you present evidence of a threat made during official communications?

SCOTUS didn't need to make a special POTUS-only right to keep that "evidence" out. That would be covered by attorney/client privilege, a right that is available to everyone in the American courts.

I'm actually curious about this as well. Would like to hear some opinion.

Well you can always impeach a president.

Well no, technically the president can use the military to stop impeachment. That would be considered an "official act" and they would be immune.

I think you’re imagining scenarios not supported in any of the written opinions.

I don't see how.

The President has immunity when acting with powers granted from the Constitution. Commanding the military is one of those powers. The majority opinion also specifically says motives can't be considered. So they are legally immune if they order the military to stop impeachment.

Doesn't the Constitution also say that the military cannot operate domestically?

"If the president does it, that makes it legal." -- Richard Nixon

Sounds familiar. Trump thinks taking classified documents without telling anyone means he has officially declassified them.

I couldn't believe Nixon said that, but he actually did! (approximately)

https://teachingamericanhistory.org/document/transcript-of-d...

It's interesting that even in the Roman Republic the immunity ended after the end of your term, and you could be prosecuted for official acts taken during it. And even let to Caesar fighting to keep himself in office at all times to avoid inevitable prosecution. https://theconversation.com/from-caesar-to-trump-immunity-is...

The prosecution of Trump was likely a big reason he's running again, for similar reasons. I'm not sure the prosecutors are even smart enough to realize they're the reason we're at where we're at.

Trump's running again because his first pass in office was wildly profitable, and he thinks he could get another shot at it. And that's just considering the stuff we know about (emoluments violations, government loans/grants to family members, "investments" from Saudis). Who knows what he got for access to those documents stored at Mar-a-Lago or things we don't know anything about.

Prosecutions*. And you say that as if their goal is to prevent Trump from becoming president again, instead of just... doing their job and prosecuting (alleged) criminals.

Awfully bold of you to assume we are better governed than Rome - back when ther was still such a thing as honor.

Stabbing your political rivals, marching armies at one’s own capital, etc are definitely considered less honourable in these fallen times.

It's not bold at all. The last century of the Roman Republic is famous for how unstable it was, which is why it is known as the crisis of the roman republic. In the empire that followed, around 40 emperors were either murdered or executed.

It's not the man who's immune, but the office that he holds... if you intend the office to survive.

This is what has Netanyahu fighting for his political life at the moment.

> And even let to Caesar fighting to keep himself in office at all times to avoid inevitable prosecution

That's exactly what Silvio Berlusconi did in Italy.

Barret mentioned that: If one bribes the president in appointment of an official - like an embassador - since the appointment of the embassador is an official act, under this ruling, one cannot bring this as evidence to the jury in a criminal trial because it was part of an official act.

But the official act is appointing the ambassador. Taking a bribe is not part of the official act of that. That's something else entirely not connected to that act at all, at least in my eyes. I'd hope the eyes of the law as well.

Yes. It does limit theoretically limit the evidence, but it’s the same crime whether they accept the money and follow through with the appointment or reneg and appoint someone else. The crime is in the solicitation.

Nixon confirmed not a Crook! "When a president does it, it's not illegal" - Richard Nixon (1979)

This is certainly the sort of decision I'll have to read for myself. While I certainly share the concerns, the hyperbole is peak right now and everything is emotional and overly editorialized.

ah just laying the foundation for a lovely despotic future.

What is going on in our nation? its frustrating thing after thing.

I honestly, need to unplug from news, and just focus on nature.

Hurry up, not much time left for that either.

Seems like the alternative is equally dystopian though. If ex-presidents don't have immunity for their actions in office, then every ex-president will have to fend off a flurry of lawsuits and prosecution attempts by the opposite party. It would be an absolute circus and turn the office of president into a joke.

That's a false dichotomy, just allow the motivation for official acts to be taken into consideration for prosecution, and a lot of the problems go away.

Shouldn't there be some liability barrier to preventing just any bored old billionaire from fisting his way into presidency?

It's already not easy for billionaires to become president. Ross Perot tried and failed miserably.

Bloomberg too

They were widely understood to not have that immunity prior to either today or 2020, depending on how you track it. Somehow, that didn't happen.

Also, to reduce the hysteria of this, even if a president has immunity, committing an illegal act and using that immunity would still end up with a legal challenge and that would need to work its way through the courts. Would be a huge headache, and the Supreme Court could very obvious rule differently in a particular case, hinging on what is official and what is on official. I doubt the Supreme Court would look kindly on an assassination of arrival as a “official” act

Fitzgerald gives them immunity from civil prosecutions. That was mentioned by Sotomayor. Fitzgerald explicitly does not provide the same immunity from criminal prosecutions; specifically because the protections for a defendant and burden of proof are so much greater than a mere civil case.

"Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity, If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.

With fear for our democracy, I dissent."

and

“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. Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.” “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.”

- Justice Sotomayor

A president can still be impeached and removed, they may not "serve their debt to society" but the harm can be stopped by the states.

Impeachment is fundamentally broken.

> but the harm can be stopped by the states.

If we refuse to recognize that harm under the current Rule of Law, then who is going to identify and prosecute "harm" besides politically motivated ideologues? It sounds like a surefire way to cement the separation of the Executive office from it's respective checks and balances.

It seems like perhaps that power has been considerably weakened if the President is literally allowed to assassinate political rivals (as is mentioned in the dissent). You might vote not to impeach in fear, similar to jury intimidation. Hell, why even wait, what’s to prevent a President from going for it before the vote even happens? I find it hard to believe that this was meant to be a component of the impeachment process by the founders. To make it more exciting, I guess?

Once they are impeached they would presumably be subject to criminal prosecution under the Impeachment Judgements Clause [1] which states:

"but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."

I don't think this ruling is, on the surface, exactly what people are making it out to be. It certainly maintains a high bar for criminally prosecuting the president for something they do in office, but it is not allowing them to commit crimes with impunity.

1: https://constitution.congress.gov/browse/article-1/section-3....

> but it is not allowing them to commit crimes with impunity

Well it kind of does, because the president has the power to stop impeachment from ever happening in the first place, if they're willing to command the military to.

With the speed at which the impeachment and removal can take, with this new interpretation, it seems significant and lasting damage take take place before anything could be done.

The judicial branch is supposed to keep the legislative and executive branch in check. That's how the whole checks and balances thing works.

Maybe this is a good time to finish my dual citizenship application with Norway.

Well, I guess this ruling makes me eat my words, almost exactly a month ago, that Trump's 34 felony counts was "a good day" for the spirit of Montesquieu checks and balances in this country:

https://news.ycombinator.com/item?id=40529062#40529905

Sotomayor has channeled her inner-Scalia in her dissent, and she hit the nail on the head. This is now kingship, this is de-facto sovereign immunity.

This ruling was not constitutionally purposivist, it was not textualist, it was not originalist. It goes against the very founding of America in the contexts of its original conception and revolution. This is BAD.

If there's one thing the constitution seemed to try to prevent it's kings, and here the court is saying the president can do anything, to as maximally permissible as possible an "outer limit" of what might be at all considered official. (No matter what their motive; we are explicitly forbidden from even beginning an inquiry into motive.) It's hard to see even the remotest claims of their so called originalism (which is a stupid shit dumb practice anyhow) written into this very longwinded extensive permission-to-tyrant, permission to sedition.

What a sad shameless age. It's embarrassing as hell having these useless Federalist Society shills tearing down the respectability of this nation. Utterly brazen. How 40%-50% of the population can be so on board with this, be so excited & happy to see such endless Calvinball for their team is beyond imagining. It feels like liberals always are hungry for more or different from our own, will criticize our representatives endlessly, but there's an unmatched purity of boosterism for any win any win at all no matter what that's totally taken half the country, that there's no system of moderation or self assessment left.

Sotomayor's scathing dissent sums up my concerns on the matter. Even for Barrett, a conservative, the majority opinion was a bridge too far: even bribery now enjoys absolute immunity.

This is factually incorrect, the president can be prosecuted for anything, he doesn't even have to commit a crime, but there's a special process for that called impeachment. This isn't new stuff and it has been understood to work this way for a couple hundred or so years, until very recently.

Impeachment is a political process to remove someone from office, it doesn’t send you to prison.

The impeachment clause specifically lays out that impeachment doesn't inhibit criminal prosecution for the same acts. Hell, Trump's impeachment defense was essentially that he should be criminally prosecuted instead of impeachment.

What about after he has left office?

What if he/she assassinates the impeachers as an "official act"? That might be an example of Gödel's Loophole.

https://en.wikipedia.org/wiki/G%C3%B6del%27s_Loophole

Not an American but according to everything I’ve read, impeachment is not the equivalent of prosecution [1]

https://en.m.wikipedia.org/wiki/Impeachment_in_the_United_St...

Even the majority opinion doesn't agree with you. Literally the only people I've heard make this argument are Trump's lawyers in this case and in fact during the impeachment proceedings they said the exact opposite. Impeachment is a separate process and the president doesn't need to be impeached to be charged with a crime.

Assassinating a political rival is not an official act.

Says who? You can't ask me why I did it, according to the ruling. I could have had a good reason. And you can't use my private records, nor those of my assistants, either.

Where in the Enumerated Powers of the Constitution does it give the the President the power to kill political opponents?

The constitution gives me the power to kill people for good reasons (I am the commander in chief of the military, after all), and I assure you, I have good reasons. Which you can't ask about.

And don't tell me I need Congress to authorize my killing people. I haven't needed that since Vietnam or something.

This is a silly response.

The ruling has specifically left the definition of "official acts" for the lower courts to decide on a case-by-case basis; they have not limited official acts to Enumerated Powers of the Constitution. The president likely has modern "official acts" that are not in in the constitution (such as the ability to issue executive orders) so it is not as simple as pointing to it. As things stand, this ruling is a blank cheque of unknown (but undoubtedly large) size.

>"As things stand, this ruling is a blank cheque of unknown (but undoubtedly large) size."

Easily the best way I've seen the impact of this ruling, articulated.

Constitution also doesn't give the President the power to go to the bathroom.

It codifies rules for certain aspects of their role. Not everything.

You need to think about this a bit more carefully. Today's ruling states that the president has immunity for all official acts. Official acts can be literally anything the president does _in his capacity as president_.

Says who? A court.

Assassinating people is my job, I'm the commander in chief of the military. I just happened to do my job on someone who also happened to be my political opponent. How is that not an official act for which I am immune? The court cannot inquire about my motives.

You don't seem to understand how the judicial system in USA works. The ultimate decision capacity is with the people. The way it's realized may differ, and the time may be long to pursue the decision, but not even SC has the last word, only the people. The court cannot inquire about your motives is only until people are ok with that; if they are not, the reason will be found - or not - and pursued - no options here - to insist.

The problem is that 50% of the people are in a camp that advocates for the overthrow of the US government, while consolidating power and ensuring that it is as difficult as possible for people who oppose them to vote.

The Senate allowed legislation that made public lynching a crime to fester in committee without a vote for years. The Supreme Court’s abandonment of any reasonable check on executive power or governmental integrity is absurd. You literally have a justice on the payroll of a billionaire who has paid him millions of dollars who helped redefine bribery to make it a crime impossible to prosecute:

That's unfortunately the practical problem and the reality of the situation. In other words, I agree.

ATTN: The above comment is satirical and making a point. The point is that the majority says intent of an "official act" cannot be questioned.

So kind of how they said bribery is okay as long as it's not explicitly asked for and given as a "gift" after the fact, the majority holds that presidents can kill their political opponents as long as they "say" it was for national security.

Yeah but pardoning the killer is. Why the killer chose to do it, who knows? Frankly, even if the phone call is leaked, motive doesn't matter apparently.

Imagine Biden assassinating Trump under the pretense that Trump likely had other classified documents hidden away, or was too mentally unstable to be trusted with presidential secrets. This is the kind of action this ruling sanctions, entirely.

Which is why Biden must do this and immediately resign the presidency. Though he also needs to fix the Supreme Court so dubious territory even with the recusal.

> Which is why Biden must do this and immediately resign the presidency.

Calling for the murder of specific people is very much against the rules of this site.

Intentionally misinterpreting comments is very much against the rules of this site.

You’re supposed to be charitable in your interpretations.

I’m saying that Biden must act with his newfound unconstitutional powers freshly minted by the unqualified tyrannical theist fascists on the Supreme Court. How he does that is up to Biden, sorry I wasn’t more explicit - I ignorantly assumed the nuance to be as plain as the fascist intentions of trump and the company he keeps.

> This is the kind of action this ruling sanctions, entirely.

Given the extraordinary claim you're making, I'm doubtful that you have the qualifications to support the absolute statement being made pretending to be fact. This is especially true given how little this new ruling has been covered by the very people that are charged with deciding how it will work in practice.

You're not issuing an opinion in what you said. You're claiming it's a matter of fact. Constitutional and executive branch experts with decades of experience will be debating what this means for a very long time to come, with far less certainty than what your comment contains.

Presidents order the deaths of people in the interest of national security all the time. It's entirely within their official duties.

This is a legal thread on a tech forum so I find your credentialism thoroughly disingenuous. If you want to actually discuss I'm game, but your inane appeal to non-authority is tedious.

I guess we can call it bold when you claim to have a better understanding of the decision than a dissenting justice.

Claiming to have the same understanding as the majority of justices seems safe, though, if that's how you decide what opinions to hold.

Did the majority opinions refute the dissent?

All I saw was that they were dismissed as “extreme hypotheticals”. All of that despite the publication of Project 2025 openly calling for the next conservative president to bend and break bureaucracy to carry out their desires.

We’re firmly in the Fuck Around stage of what exactly this ruling will and will not allow, and one way or another, we’re going to Find Out within the next 3-6 months. I know which candidate I hope to Find Out from.

In the majority opinion, this part would disagree with Sotomayor's example: "The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts."

The language isn't as electrifying as Sotomayor's example, but you can still imagine unofficial acts that would not warrant immunity.

High level of snark given that this is the most definitive part of the ~~actual decision~~ syllabus you could find to possibly counter what Sotomayor wrote. Guess you didn't read it first.

(Advanced trick: you are reading the syllabus. The actual decision is below.)

I read it this morning. Which part would you have quoted? I picked that part because it seemed like the clearest summary.

I guess we can call it bold when you claim to have a better understanding of the decision than the justices who wrote it.

As an official act, we determined that my political rival was an enemy of the state and known terrorist, who was threatening our democracy. As such, it was my duty to order her/his assassination, for the safety of our great nation.

It very much is if it's done by commanding the military to do it. Maybe not so much if a President did it themselves.

You just have to drum up some flimsy excuse that sounds official, I guess.

What if the president deems it necessary out of national security interests?

Here is Justice Roberts’s definition of an official act. Since the courts are making it a new executive power, it’s in the eye of the wielder. Long live the king.

> In a unanimous decision written by Chief Justice John Roberts, the Court held that, under Section 201(a)(3):

> [A]n “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an “official act,” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit that definition of “official act.”

There have been instances in the past where the US military has assassinated US citizens that they deemed terrorists. Search for "Anwar al-Awlaki".

Under this ruling, it would be entirely possible for Biden to declare Trump a direct danger to the republic and, as commander in chief, order him to be assassinated. Of course the "officialness" of this would be debated in the courts, but the reason so many find this ruling unconscionable is that it does basically say "the President is above the law - he just needs to do things under the guise of official acts".

Judges and prosecutors also enjoy absolute immunity in their official capacities.

Fact.

False.

Judge ordering something can be brought to court to review if the order was lawful. Judge making judicial decision - that is, not ordering something to support that decision, but actually deciding - is immune, but that is decision of the limited scope - it's not an action. Decision itself can be reviewed, so there's principally less scope for possible intentional or unintentional errors.

Surely you acknowledge what a giant, wide, grey line of a no-man’s-land you just painted.

There are vast problems with federal agency immunity protections as well. Whether as a federal employee or a civilian, trying to sue a federal agency for something it has done wrong can be nearly impossible.

Since last week, bribery is legal anyway.

https://www.latimes.com/world-nation/story/2024-06-26/suprem...

That article is bad. It ignores the ruling specifically pointing out that 18 USC 201 among other laws does cover 'gratuities' as well as bribes, and it misleadingly claims that "[t]he Supreme Court on Wednesday struck down part of a federal anticorruption law" when referring to 18 USC 666 (Federal Program Bribery, AKA "The Beast") which is just not true. You can see it's not true in the holding:

> Held: Section 666 proscribes bribes to state and local officials but does not make it a crime for those officials to accept gratuities for their past acts.

Nowhere in there do they declare any part of 18 USC 666 unconstutional, which is what one usually takes "struck down" to mean.

The LA Times is at least correct in stating that the ruling clarifies bribes come before the act and gratuities come after, with different legal effect, but they seem to leave out any discussion of this bit inexplicably:

> For example, Congress has established comprehensive prohibitions on both bribes and gratuities to federal officials. If a federal official accepts a bribe for an official act, federal bribery law provides for a 15-year maximum prison sentence. See 18 U. S. C. §201(b). By contrast, if a federal official accepts a prohibited gratuity, federal gratuities law sets a 2-year maximum prison sentence. See §201(c).

Point being, no, gratuities aren't really legal either, they're just punished under different statutes. David G. Savage could've just used this line from the ruling as a much more accurate summary:

> Although a gratuity or reward offered and accepted by a state or local official after the official act may be unethical or illegal under other federal, state, or local laws, the gratuity does not violate §666.

And why did they do this? Because technically giving an apple to your teacher would be Federal Program Bribery otherwise:

> The Government’s interpretation seems all the more unbelievable because §666 applies to the gift-givers as well as the state and local officials accepting the gifts. Specifically, §666(a)(2) makes it a crime punishable by 10 years’ imprisonment for someone to “corruptly” offer or give “anything of value” to state and local officials “with intent to influence or reward.” So under the Government’s approach, families, students, constituents, and other members of the public would be forced to guess whether they could even offer (much less actually give) thank-you gift cards, steak dinners, or Fever tickets to their garbage collectors, professors, or school board members, for example.

But the "bribery is legal now" take you seemingly got from here is incorrect under any interpretation of the word "bribery." Using SCOTUS' version of the word, bribes are still punished by 18 USC 666, and gratuities are punished by 18 USC 201 (as well as other laws for both categories).

But don't take my word for it, you can read the ruling directly: https://www.supremecourt.gov/opinions/23pdf/23-108_8n5a.pdf

> So under the Government’s approach, members of the public would be forced to guess whether they could even offer thank-you gift cards, their garbage collectors, professors, or school board members, for example.

That seems bizarre to me, an apple or a low value meal ticket are not "something of value" unless you read things literally for no reason.

"of value": valuable, having a great value

The law actually says "anything of value of $5,000 or more". The majority opinion is just arguing in bad faith there

They seem to be talking about 18 USC (a)(2) in that quote you're reacting to, which reads:

> (2) corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more;

https://www.law.cornell.edu/uscode/text/18/666

The problem here is that the $5,000 here is NOT the value of the bribe!

It's the value of the funds received from a federal program you're bribing someone that's a part of. So if the garbage collectors, schools, etc. receive more than $5k in funds subject to this statute, it doesn't matter what the bribe is.

That's why they call it "Theft or bribery concerning programs receiving Federal funds" after all. You can read the holding in Sabri to see them spell that out a bit more clearly than the statute does:

> For criminal liability to lie, the statute requires that "the organization, government, or agency receiv[e], in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance." § 666(b). In 2001, the City Council of Minneapolis administered about $29 million in federal funds paid to the city, and in the same period, the MCDA received some $23 million of federal money.

[...]

> The Court does a not-wholly-unconvincing job of tying the broad scope of § 666(a)(2) to a federal interest in federal funds and programs. See ante, at 605-606. But simply noting that "[m]oney is fungible," ante, at 606, for instance, does not explain how there could be any federal interest in "prosecut[ing] a bribe paid to a city's meat inspector in connection with a substantial transaction just because the city's parks department had received a federal grant of $10,000," United States v. Santopietro, 166 F. 3d 88, 93 (CA2 1999).

https://www.law.cornell.edu/supremecourt/text/541/600

Incidentally, those examples they used seem to have come from hypothetical scenarios raised during oral argument. You can read a bit more here in the transcript of the oral arguments:

https://www.supremecourt.gov/oral_arguments/argument_transcr...

A lot of laws cover more conduct than people think they do, but I think that part of the point here is that it works on giver and receiver.

This isn’t conservatism. It’s despotism.

We’re probably a decade away from a coup.

Decade? You are optimistic.

Killing an American citizen without due process should be outside the scope of official acts regardless of whether the President has immunity for said acts. Obama proved that it's not [0], which is a major problem that should have been addressed a long time before this ruling.

On the whole the principle of this ruling is sound:

The President shouldn't be in a position where he has to wonder before each choice if he'll later be prosecuted for it or not. The boundaries of official acts should be spelled out clearly in the law, and when acting within those boundaries the President should be confident that he's authorized to make the tough calls.

The ambiguities that this ruling brings to light were already there, this ruling only exposes them. President Obama could theoretically have been personally prosecuted for killing al-Awlaki and now he can't.

Now it's time for us to explicitly identify in the laws what the President can and cannot do. That's a change that's long overdue.

[0] https://en.wikipedia.org/wiki/Anwar_al-Awlaki

This shifts the whole debate to what constitutes "official" versus "unofficial" acts. Presumably the president can't order his subordinates to commit crimes, or unlawful orders.

Rep. Adam Schiff gave the following interpretation: "Effectively giving a president immunity for any crimes committed while in office as long as that president can plausibly claim the action was taken in some form of official capacity. It must now be presumed that the president, as king, is immune from accountability."

https://www.militaryjusticecenter.com/blog/2022/03/can-you-r...

Only the SCOTUS can determine what an official act is. They will decide that anything Trump is prosecuted for is an official act. The point of leaving it undefined is to bounce the case back and forth with the lower court and delay the trial for years.

Can't help but wondering if Joe is contemplating Seal Team Six's summer plans right about now.

Right, the best way to avoid fascism is to become a fascist before your opponent does. In the name of democracy, of course.

Fascism is a political ideology and system (sort of) that requires a whole lot of people to keep it in place. A "lone President" assassinating his political rivals in a single act is just a regular old dictator move. No fascism required.

Assassinating your political opponents using the military in the name of saving the nation fits quite neatly into the definition of fascism. You don't need the system to be fascist to be a fascist.

Since the prevailing view of Trump and MAGA Republicans is that they are fascist, it's not a stretch to point out that the proposal in the parent comment is far closer to "actual" fascism than the actions of an incompetent enabler.

Not endorsing the view, but that's how some people think. It would actually be incredibly interesting if he decided to commit political suicide by having Trump killed and spurring congress into amending the constitution to explicitly revoke the immunity. If presidents start murdering presidential candidates, we might be able to get together and pass a constitutional amendment. :)

How have presidents not been paralyzed by fear of prosecution until now?

Strange that only now, with a super majority of conservatives and a 'conservative' former president facing insurrection charges, that such a ruling should come down.

And all this after McConnell assured us that impeachment wasn't appropriate for a 'criminal' matter like January 6.

This seems like a "there's no way to get a bug in the hypervisor fixed" moment.

BTW, great title.

There have been multiple awful titles of for this ruling, yours was exactly correct.

Hmm. Here in the Czech Republic, the president is immune to prosecution during his tenure, but can be prosecuted afterwards for illegal acts that weren't committed during performance of his duties.

During tenure, he can only be impeached for anti-constitutional acts, and the only punishment if found guilty is removal from office.

All in all, it sounds quite similar to this SCOTUS ruling, but of course, the consequences for the world are mitigated by the fact that globally, our president is a very, very small player.

Does anyone know where I can find a nuanced view on this issue?

I would certainly read the opinions directly. You probably won't find a rational nuanced view from any forum or news outlet today.

https://www.documentcloud.org/documents/24785411-trump-v-uni...

scotusblog is the gold standard for all Supreme Court related news

https://www.scotusblog.com/2024/07/justices-rule-trump-has-s...

Hamilton.

Da da da da-da, da-da-da-da daayyy-ya-da, da-da da da da-dayyy-ya da

People mistake the Constitution as the fabric that holds our Republic together. Sure the articles stipulations set a framework, but it's built primarily around a common set of mores and walls beyond which is the pale. When a sizable proportion of Representatives, voters, etc, conduct themselves in a way that always maximizes short-term wins and power and and aimed at disempowering the opposition, that framework that is the Constitution is powerless to keep the Republic together. Is only the will of the people to stay together they'll keep them together.

In all our legislative executive and judicial war, there seems to be less and less reason for restraint, for avoiding constitutional crisis, and to grab power by whatever means so that the other side does not. This ruling by the Supreme Court, as many people are commenting on social media, creating Powers Biden too, and there seems little reason not for Biden to pack the court, for the Senate to go to majority rule and rid themselves of the filibuster.

If we keep pushing the boundaries we will fall, or we will reconfigure.

The Constitution reads:

  Judgment in Cases of Impeachment shall not extend further than to removal from Office,

  [...]

  The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

How does the comma matter in contracts?

This:

  "Impeachment for, and Conviction of"

Is distinct in meaning from this:

  "Impeachment for and Conviction of"

Furthermore:

  "Judgement in cases of Impeachment"

Is not:

  "Conviction in cases of Impeachment"

Doesn't this then imply that "Judgement in cases of Impeachment" (i.e. by the Senate) is distinct from "Conviction"?

Such would imply that presidents can be Impeached and Judged, and Convicted.

(Furthermore, it clear that the founders' intent was not to create an immune King.)

The Constitution reads:

  Judgment in Cases of Impeachment shall not extend further than to removal from Office,

  [...]

  The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

> Such would imply that presidents can be Impeached and Judged, and Convicted.

Convicted just as other citizens with Limited Privileges and Immunities.

OPINION: In the US Constitution, removal upon "Impeachment for" is distinct from removal for "Conviction of". Thereby there is removal from office for both: a) Impeachment by the Judgement of the House and Senate, and also by b) Conviction by implied existing criminal procedure for non-immune acts including "Treason, Bribery, or other high Crimes and Misdemeanors."

Conviction is not wrought through Impeachment by the House & Senate, who can only remove from office.

Neither is Arrest Removal from Office, nor is Removal from Office Arrest.

Thereby, a President (like all other citizens) can be Convicted and then Impeached.

That the Executive's own DOJ doesn't prosecute a sitting President is simply a courtesy.

Surely the "impeachment exists" arguments are in bad faith. Otherwise, I'm convinced they've abandoned reason.

Impeachment process takes time, and in that window, the president can do whatever. POTUS can even mobilize the army (an official power) to block congress from meeting, since apparently the motive behind the use of official power doesn't matter. If they can't meet, how are they going to impeach.

Of course they're in bad faith. The whole idea is to punt accountability off to something else endlessly. "We can't do X because Y already exists to handle that." Later: "We can't do Y because we already have Z." And thus: "X is the proper way to handle that, not Z."

Precisely. One must understand that the more safeguards we have to enact retribution in these cases, the better. You're not supposed to point to one avenue after loss of another - you're supposed to point towards as many as possible. Before today, the courts were the one we pointed to the most, and they are no longer nearly as much at our disposal as they were before this morning.

If a president is illegally mobilizing an army I'm not sure how this ruling would change anything? Do you think congress would be slower than courts to work this out? If a president was stopping congress from meeting then they could stop courts from meeting as well. Or he could just ignore the courts if it had really gotten that bad...

Impeachments take time because the impeachments we’ve had so far have tended to be political theater. I have no doubt that if there was a bi-partisan super-majority wanting to remove the president, they’d hop on a Zoom call and have it done by the close of business.

Edit: My example was going to be if the President addressed the nation and declared himself to be king… but Biden literally just did that, reluctantly accepting that he was beyond the review of the courts and accountable to no one but himself.

Time for "Will nobody rid me of this troublesome priest?"

No, that's the old way. The new way is for the President to issue an executive order to have their target officially arrested, rendered somewhere overseas, and then follow up with an official order to have them assassinated (just declare them a foreign agent).

Any and all communications outside of the executive order would not be admissible as evidence even if the DOJ did want to prosecute!

This is all because very wealthy and powerful people see a future American demographic that doesn’t support their interests and they want an alternate government that can’t stop them.

The problem is what will democratic presidents do with this fundamental alteration of the three “equal” branches that now leaves Congress as the weakest link.

What will republican presidents do?

And of course, what would Trump do?

I think front and center is Stephen Miller’s desire to reverse that future demographic by either incarcerating or deporting anyone that isn’t white or even sympathetic to a white nationalist movement.

This is real people. And very frightening.

Frankly, this is terrifying. The decision gives complete criminal immunity from any "official acts" as President. It goes on to define that term so broadly as to include any conversation with Justice department officials. Under a plain reading, a President is more than welcome to instruct the Justice department to investigate or charge anyone, or to not investigate certain crimes, and that is completely permissible. Soliciting bribes to not prosecute is now fair game.

I find it particularly concerning regarding the military. The President is Commander in Chief, and thus any orders he gives or attempts to give to the military would be undeniably official acts. This was even brought up in oral arguments, where it was asked of Trump's council "if the President ordered Seal Team 6 to assassinate a political rival, would that be considered an official act?" I find it absolutely terrifying that this possibility was brought up, and any mention of the military is conspicuously absent from the majority decision, even in passing (though Sotomayor explicitly brings it up in her dissent).

The most concerning part is how this decision is being made entirely on constitutional grounds. At least in the case of Rowe v Wade being overturned, we have the possible remedy of Congress passing a law enshrining the right to an abortion. But here, there is no legislation Congress could pass to create criminal liability for the President, no executive action. The only option would be a constitutional amendment.

> Under a plain reading, a President is more than welcome to instruct the Justice department to investigate or charge anyone, or to not investigate certain crimes, and that is completely permissible.

I think we have fundamentally different views of the Executive's role. We have 3 branches of government, and the President is the guy who enforces the law. The Justice department is not a 4th branch of government.

The Executive branch does have the authority to enforce laws, but that authority is not absolute. The President cannot go to the Justice department and say "hey, that guy who committed murder, don't prosecute him, because he promised to pay me a lot of money if I let him off". The President cannot go to the Justice department and say "stop investigating me and my political allies or I'll fire you". That second one is what led to Nixon having to resign.

At least, that's what I think should be the case. The majority in this case disagree. They seem to think that any usage of the powers of President is free from any criminal liability.

> The President cannot go to the Justice department and say "stop investigating me and my political allies or I'll fire you". That second one is what led to Nixon having to resign.

There’s definitely nothing legally stopping the president from doing this. This was the Saturday Night Massacre.

The only thing that can stop this is public perception and the threat of impeachment then removal by the Senate.

> There’s definitely nothing legally stopping the president from doing this.

Ford famously pardoned Nixon, which would imply he believed Nixon would be subject to potential criminal liability. And I believe that should be the case.

> The only thing that can stop this is public perception and the threat of impeachment then removal by the Senate.

That’s certainly what the Supreme Court majority believes. I think that is woefully insufficient. You can abuse the powers of the President all you like, and the worst thing that can happen to you is you don’t get to be President anymore. If that’s the case, on the last day of their term, a President can simply say “selling pardons, $1M each”. The president will walk away rich, those pardons can’t be overturned by a future president, and Congress wouldn’t be able to impeach and remove them in enough time for it to matter.

I'm imaging an index that measures the semantic similarity between reddit and hn threads on a particular topic. I feel like adding that measure to front page to allow users to sort threads would be beneficial in increasing signal-to-noise and help hn maintain a more distinct brand identity.

Comparing HN to reddit is expressly off-topic:

> Please don't post comments saying that HN is turning into Reddit. It's a semi-noob illusion, as old as the hills.

https://news.ycombinator.com/newsguidelines.html

Thanks for the guidance. To try and clarify, I was not saying that hm is turning into reddit. Rather I was saying the opposite, that I value hn for its distinct non-redditness and that I would love it if there were features that optimized that difference. I say that in a thread with many comments that do not imo follow the spirit of the guidelines you posted, which is not to say they were posted by redditors -- saying that would itself violate the guidelines, but many of the comments are probably by people who post a lot on some other forum besides hn. I only post here, and again prefer the here-ness of this place over those other places.

>I only post here, and again prefer the here-ness of this place over those other places.

I think you should get out more. There is nothing exceptional about HN other than there's a lot less eyes on it.

The US killed itself.

IANAL so could someone explain to me - does this ruling apply to the "porn actress hush money" trial or is it a separate issue?

(I'd like to think that there's no way it's an "official act" of a president, but again, IANAL.)

Honestly the decision is written in a fairly accessible style. You could try to read it

https://prod-i.a.dj.com/public/resources/documents/SCOTUSTRU...

No, Trump was a candidate, not President at the time of most (all?) of those crimes. They also yeah probably can't be considered official acts even by _this_ Court.

That can't be concluded yet. It will most likely be decided again by SCOTUS - but by then, Trump may well have assumed office and pardoned himself and anyone else involved.

Even this court would have a hard time concluding that acts taken while running for President are official acts.

But practically they've made the President a dictator, so yeah who's going to stop him if he wins.

This is relating to 4 counts of election interference.

The court is granting him blanket immunity on one count, and the rest the prosecutors need to clarify that the crimes were outside of the duty of his office.

Kind of. From CNN: https://www.cnn.com/politics/live-news/trump-immunity-suprem...

> Donald Trump’s legal team will likely use Monday’s SCOTUS opinion as they challenge the New York hush money criminal verdict itself on appeal, a source familiar with their thinking tells CNN.

> Trump’s team thinks the SCOTUS option could be used to challenge portions of Hope Hicks testimony as well as some of the tweets entered in as evidence, according to the source familiar.

> CNN earlier reported the Trump team sees the opinion as “a major victory” because in addition to using it to try to get charges tossed, they can also use this opinion to get evidence related to official acts tossed in all cases — not just federal — which can hurt prosecutors’ ability to prove what charges are left.

There was no way the Supreme Court was going to make a ruling that didn’t provide a backdoor for former, current, and future presidents. Mainly because it might open the door to some of the decisions a president makes that could be perceived as having criminal fallout. For example, ordering a strike (missile or something else) that results in collateral damage to civilians. Official acts is one of the super broad statements that’s open to interpretation and will take years of case law (if that ever happens) to narrow down to what it actually means.

I hope this ruling does enough to cast recent decisions of the Supreme Court into doubt, such as the end of Chevron deference. It should have become clear to anyone sufficiently observant that it no longer serves the interests of the people nor their country, but rather those of a single political party.

Until the system can be reformed to deter and slow such radical acts, there would be no hope of stability of the United States.

So ... a president can now order an executive branch officer to ignore any Supreme Court decision or law passed by Congress with absolute immunity? Seems like the Supreme Court is going to get what they asked for.

It says: Immunity for official acts. Going after your opponents is rarely an official act. Nixon and Co. don‘t have immunity for un-official acts.

I wish. An official act is not one that is motivated by government business. It's defined as the exercise of official powers. In the decision, the motive behind exercise of official powers can't be examined and the exercise itself (let alone the motivation) cannot be introduced into evidence at trial.

Lifetime appointments for Supreme Court Justices is fucking absurd.

My out-of-my-ass fix is that each Justice is on an 18-year term. Every two years one Justice is replaced. Two per Presidential term.

Makes it legitimately fair. Elect a President, get two Justices. None of this "one corrupt game-show host accidentally gets to appoint half the Court" horseshit.

If it makes you feel better they all agreed the president should have immunity, they just disagreed whether it should be totally absolute or mostly absolute. The dissenting opinions would basically lead to the same result

Federalist 51

  > The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

  > A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. ... But it is not possible to give to each department an equal power of self-defense. ...The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.

This right here is talking about why there is the separation of powers. This is the reason judges are supposed to be without party. But we all know that this is a facade. But of course it is, when we see how these judges are appointed. How could it be any other way? The recognition here is that there are no perfect solutions as to optimize towards one thing results in a worse outcome (see the other parts of the writing).

I think not enough people have read the Federalist papers. They are an important context to why the US was founded and what problems it was trying to solve. Littered throughout them are discussions of how power creeps and how functions couple. How government can do great good but at the same time great harm. They reiterate the notion that liberty is hard work and many of the writers fear things like parties as they are not only concentrations of power but umbrellas to remove thinking. You can see them wrestle with ideas and that they know they aren't getting them right, but instead try to set a framework that can course correct to adapt to the unknown unknowns.

But however you read them, I think you can and will read that such a conclusion is precisely the thing they were trying to stop. There is no ambiguity in this. They were fighting against monarchs who have written into the law that they are above the law. At least as it pertains to others. And so that's what that phrase means "no one is above the law" that not so literally (because making a law that makes special cases for you would not technically make you "above" the law, but part of it), but rather that the laws apply equally to all peoples and entities. That there are no special cases because there are no "to big to fail" and "too important to prosecute". Because the belief is that if it is wrong for one man to commit an act, then it is wrong for any man to commit such an act.

[0] Federalist 51: https://avalon.law.yale.edu/18th_century/fed51.asp

This court is a farce. People appointed by Trump grant him immunity for his crimes. That's some circular Kafkian absurdity that shouldn't be happening.

Now I'm wondering what constitutes an "official act". Is is anything at all done while President or is it things that fall under the normal official duties of President? If it's the former then a President is free to murder anyone, if it's the latter then what is official about a random homicide?

So many people reacting irrationally and misunderstanding what the ruling says. The first few pages are very readable, and I encourage all to read [1]

- Actions within the President's conclusive and preclusive constitutional authority: Absolute immunity, in accordance with constitutional separation of powers.

- Other actions done within an official capacity: Presumptive (though not full) immunity, to "to safe-guard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution."

- Unofficial actions: No immunity.

Who is the arbiter of whether an action is official or unofficial? The courts, according to the ruling: "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." In this case, a very liberal judge appointed by Obama.

One may disagree with the ruling, but it does not, as Sotomayor (who recently has been making more public and political appearances than is appropriate for someone of her position [2]) states, give the president the ability to drone strike his political opponent.

[1] https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

[2] https://www.cnn.com/2024/05/24/politics/sotomayor-crying-sup...

The president already has official authority to drone strike terrorists. All he has to do now is make an official determination that his political opponents are terrorists.

Yeah, we should definitely fix the fact that the President can order hits on US citizens. That's a pretty obvious problem regardless of whether they can technically be prosecuted for it, and doesn't really change the merits of the question at hand.

All this case says is we shouldn't leave a President's legal culpability for any given action up to prosecutorial discretion. If they're using their official powers they're not culpable, if they're acting outside the bounds of their powers they should be prosecuted.

The actual problem is that the President has too much power, not that the next administration should have the right to prosecute them for exercising it.

> If they're using their official powers they're not culpable

So the President's job is to faithfully execute the law, but he is allowed to break the law while he's executing the law? C'mon.

The other problem is that we have no idea what "official acts" are.

>So many people reacting irrationally

The entirety of lawyerdom? I think I'll trust their take on it rather than bland, disingenuous dismissals.

Honestly I just don't think the conservative Justices are that smart. Here's Roberts arguing that because something never happened (criminal prosecution of a former president) no one could have reasonably assumed it would happen:

> Unable to muster any meaningful textual or historical support, the principal dissent suggests that there is an “established understanding” that “former Presidents are answerable to the criminal law for their official acts.” Post, at 9. Conspicuously absent is mention of the fact that since the founding, no President has ever faced criminal charges—let alone for his conduct in office. And accordingly no court has ever been faced with the question of a President’s immunity from prosecution. All that our Nation’s practice establishes on the subject is silence.

Literally on the next page, here's Roberts arguing that though something has never happened (criminal prosecution of a former president) it is very likely to happen:

> The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next. For instance, Section 371—which has been charged in this case—is a broadly worded criminal statute that can cover “ ‘any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.’ ” United States v. Johnson, 383 U. S. 169, 172 (1966) (quoting Haas v. Henkel, 216 U. S. 462, 479 (1910)). Virtually every President is criticized for insufficiently enforcing some aspect of federal law (such as drug, gun, immigration, or environmental laws). An enterprising prosecutor in a new administration may assert that a previous President violated that broad statute. Without immunity, such types of prosecutions of ex-Presidents could quickly become routine. The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid.

Just like, full on embarrassing. These guys need better clerks or something.

So the president can’t kill their opponent over a golf game but can order the military to kill their opponent over a golf game. Got it.

In the worst case they might have to resign before being impeached but at that point they are permanently immune.

Germany 1933.

Unitary Executive Theory

The movie “Vice” explains well what this is about.

It’s was originally imploded by President George W Bush.

https://youtu.be/_UPvTdDB-h0

—-

SCOTUS essentially ruled in favor of this theory.

Unitary executive theory: Something conservatives on the Supreme Court came up with to defend any government action they like.

Major questions doctrine: Something conservatives on the Superme Court came up with to defeat any government action they don't like.

I always wonder about these kinds of power play doctrines: do they really think only people they like will ever be in power?

Same question applies to either party when they push stuff like this.

They control SCOTUS, they can just undo it when the president does something they don't like.

They’re betting that the Democrats won’t have the guts to test the limits of this ruling.

Totally agree. Look at the Supreme Court nominations under Trump. He hit the jackpot. But then there was a bunch of talk by the other side of adding justices. Do we really want to open that can of worms? That's a blade that will cut both ways once the precedent is set.

The opinion is not nearly as broad as certain sources say it is. What it actually says is that immunity as to "core" powers is absolute, but it doesn't define the scope of those powers. It says other official powers have some immunity, but are not immune basically if allowing the prosecution wouldn't impair future presidents. Those are both exceptions that are larger than the rule.

Some are saying it is broader than it is because they want charges to be dismissed. Others are saying it's broader because they want a more powerful executive. Others are saying it try to make the court look bad, or to get votes. Some are saying it because they're mistaken / confused. On 4 out of 5 counts, the court remanded for further proceedings without deciding whether Trump has immunity. All of these voices could have easily come out with a different take, claiming victory and saying he will likely be convicted on most counts.

This has nothing to do with unitary executive. Immunity of the head of state derives from the concept of sovereign immunity, the government’s immunity from suit. In the U.S., it derives from the Crown’s immunity against suit.

The notion that former heads of state have some sort of immunity for official acts is also common in developed countries: https://oxcon.ouplaw.com/display/10.1093/law-mpeccol/law-mpe...

“Functional immunity applies to both sitting and former heads of state; however, this immunity is available to such individuals solely with respect to acts performed in their official capacity (Fox 667).”

This notion is the core of the supreme court’s holding in this case.

Biden need to sign executive order to jail all judges voted for this verdict for high treason of not protecting US constitution. And he will be immune thanks to them.

Hopefully everyone is now motivated to clear up legislation regarding what a President may or may not do as part of their official actions

This was an obvious outcome, the government always protects its own. The government class gets immunity from the bottom, cops and judges, all the way to the top, legislators, and now, the president.

> White House spokesman: "As President Biden has said, nobody is above the law."

Well yes. And since the Supreme Court just clarified the law... Isn't THIS White House the first that might use what was until now a misunderstanding?

if he's immune for "official actions" even after office impeachment after office must be possible as well

I think a big problem here is that all existing laws and the system concerning presidents rests on one very important assumption. That the commander in chief is a decent, rational human being that carefully considers his actions and holds the interest of the United States and the Citizens in high regards.

It all falls apart and gets too complicated to regulate when the assumption is that you can't trust the person in office.

I don't think this is true. The constitution was designed with the idea of preventing a king from coming to power. The whole separation of powers thing presumes that an individual is bad, but groups are less bad.

I kind of (OK totally) need a history lesson / refresher. How was the Judicial Branch supposed to function?

Because I don't believe it was supposed to be able to basically override the Legislative Branch. Just like the Executive Branch wasn't supposed to have unchecked power as long as it's "Official" business.

How were the three Branches intended to keep each of the other in check?

By everyone doing their job and respecting the authority that the other branches had. Something like an executive outright ignoring court orders (e.g. Joe Arpaio [1]) is as unexpected as the legislative refusing to pass laws because it's gridlocked due to malfeasance on the side of the Republicans. There's a reason why the Supreme Court ended up playing such an important rule: Congress hasn't done shit in decades now, and the same goes for the States, the last Constitutional Amendment was passed in 1992 and the one before that in 1971. Something like the right to abortion should have been enshrined into a constitutional amendment loooong ago. EPA rules should have been set by law, not by executive order. The list goes on and on and on.

And the last failsafe the founders intended was the populace. Officials found breaking the law or be otherwise unfit of office were supposed to be at the very least not reelected by the populace - and yet, Arpaio was reelected for 24 years in a row, Biden was elected (he was better than Trump, but that doesn't mean someone of his age should have been president!), and Trump will most likely be reelected. The voters share a huge part of the blame.

[1] https://www.theguardian.com/us-news/2017/jul/31/joe-arpaio-c...

> Something like the right to abortion should have been enshrined into a constitutional amendment loooong ago.

Indeed, and practically, probably initiated as part of the 95th or 96th Congress (under Carter), when the Democrats had substantial majorities in both houses and obviously the presidency.

My feeling is that this was not done because doing it removes the threat/opportunity of it getting rolled back, and removing that threat/opportunity lessens the fundraising ability of both parties.

Everything a king does is an official act by definition.

What do you think is something a president does? Is starting a war an official act? Or appointing your own supreme court? Persecuting insurrectionists?

Who will judge this once the ball gets going? The judges now appointed by you?

> Who will judge this once the ball gets going? The judges now appointed by you?

This is what lifetime appointments were intended to address. There's no incentive to rule in the president's favor. Of course, now there's the prospect of gratuity for services rendered.

Congress, via impeachment.

Look, the president can't do something like start a war without permission from congress. Congress basically delegated that authority to the president. If the president then uses it irresponsibly (as has happened numerous times since congress made this decision) then that's the fault of congress. They can very easily pass legislation requiring a declaration of war and take that power back if they want to.

But each party will protect their president, and you need a two-thirds to impeach. I just don't see the modern senate ever impeaching a President. We've seen today how far they will go to ignore reality and lie to make sure their leader doesn't suffer any consequences.

> individual is bad, but groups are less bad

Bad groups tend to scape goat individuals until their next rodeo.

> The constitution was designed with the idea of preventing a king from coming to power.

And if the Republicans get their way with Project 2025, by all interpretations they'll create a King.

> The whole separation of powers thing presumes that an individual is bad, but groups are less bad.

It assumes at its core that even if individuals may pursue bad goals, that the larger society/organizations like parties or officials like the Electoral College will curtail their attempts.

Unfortunately, neither of these assumptions held true when faced with a demagogue like Trump.

> The whole separation of powers thing presumes that an individual is bad, but groups are less bad.

No. Separation of powers comes down to "never give anybody power that someone else cannot block". That "someone else" needs to be independent, too - that's the "separation" part.

> Separation of powers comes down to "never give anybody power that someone else cannot block". That "someone else" needs to be independent, too - that's the "separation" part.

That's what I said, in different words.

Actually more along the lines of:

An individual can be bad, but where they are, a group can generally be relied upon to rein them in. Groups can also be bad, but generally when individuals are removed from a group context, better sense prevails.

Juries balance the judge, just as the judge balances out the jury.

The Senate balances the House, just as the House balances the Senate.

The President only found balance in the checks of the other two branches, and the good sense and consciences of the electors in the Electoral College, who were empowered to be able to ignore the popular vote if upon vote casting time, their good sense deemed otherwise once they were removed from the influence of group dynamics.

> I think a big problem here is that all existing laws and the system concerning presidents rests on one very important assumption. That the commander in chief is a decent, rational human being that carefully considers his actions and holds the interest of the United States and the Citizens in high regards.

No, that's not what the existing laws or system rests on.

The system rests on the fact that the Commander in Chief is an elected representative, and therefore their actions represent the will of the people. Washington Post might not think he is rational. A random Judge might not think he is rational. You might not personally think he is rational. What is "rational" is determined at the ballot box, or via the impeachment process in the legislature.

A law podcast reacting to the ruling:

- https://www.lawandchaospod.com/p/ep-43-well-so-much-for-the-...

- (non-paywall link) https://podcasts.apple.com/us/podcast/ep-43-well-so-much-for...

Dont get this twisted, this was not enacted in favor of Trump and his misdemeanor charges if they even were real. This is to protect Biden and Obama and maybe Clinton too, there will be mass dump of the reasons why post Trump taking office. As an outsider, I am excited to see bad people getting what they deserve as a message to the world.

How do you hotswap a government?

So you want to be an insurrectionist? That's what replacing an elected government makes you.

You cant seriously be suggesting we should keep gluing new things onto the legacy code base until the end of time without ever considering a full rewrite?

But to somewhat address the sentiment: We can replace the machines and keep the line operators.

edit: Not sure now, should the government be considered the people running the country or the formula?

With lots of marketing to make people want the change as much as a new iOS version.

And they do not have immunity for unofficial acts, which do seem to be many of the things that that Donald Trump is being charged for. The fact that many of the top comments here don't mention this tells me that we are grips of a partisan hysteria. Fortunately, the court is not, and one 'conservative' judge was in the dissent, and one 'liberal' judge concurred with the majority.

Now we know that US presidents are above the law. I always assumed that was the case so this is just confirmation for everyone else who had any doubts.

Guess the calm, not insane US leadership could potentially only last 4 years.

Hoboy, I hope there's not another round of Trump...

> The Seal Team 6 example is batted around because it is specifically cited by Trump's legal counsel as an official act that isn't bound by law

No one and nothing should be above the law, even temporarily, period. That just opens up so many cans of worms.

Now that this has been cleared up by the courts, I want to ask.

Is it even possible for the President to break the law? What would that look like?

Impeach.

Sotomayor laid out some examples in her dissent, such as assassinating political rivals, staging a coup and taking bribes for favours.

Those are examples of the president not breaking the law. She was saying that presidents now have carte blanche to do those things with no fear of prosecution.

Here is a very simplified TL;DR of the decision:

A president's internal planning and discussions with his team are are at least granted "presumed" immunity unless the prosecutor can establish that the act in question fell outside of the office. So for the President pressuring Pence to uncertify the election results, prosecutors would need to make a case that it was outside of his power to do so - the reasoning behind it is largely irrelevant.

When it comes to interactions with external groups - be it local election officials or even the press/media - prosecutors need to establish whether the president was acting on an official basis or an unofficial basis. (And they are clear that the president acting on behalf of his party or his campaign would be unofficial).

> "The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts."

My reading of the decision is that of the four counts against Trump, three can proceed so long as prosecutors can make a case the actions were not official acts.

So, can the president order the army to commit war crimes or genocide and not be prosecuted if it is set as an official act?

It's time to test this ruling. Joe Biden can have let's say oh, about six supreme court justices detained for suspicion some wishy-washy thing or another.

There's no winning if you're on the side that kind of leans towards playing fair.

We can't protect democracy by throwing it out the door, and hoping you still get elected come fall. If Biden would take advantage of this ruling in a way the American public doesn't like, he won't be elected. So he would have to further throw out democracy the way Trump is comfortable doing, by ignoring the election results.

But enough Americans seem to be leaning towards re-electing Trump such that he'll have 4 more years in office to perform official acts to his heart's content and set himself up for whatever he has in mind by the end of his term, January 2029.

Lincoln didn't save the Republic by being a nice guy.

The Supreme Court took what should be a straightforward and elegant decision — the president is immune from prosecution for acts committed in office unless he has been impeached for those acts — and turned it into angels-on-the-head-of-a-pin litigation about what constitutes official and unofficial acts.

Starting on page 44 of the opinion, Thomas makes some very good points.

    I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure. If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President. 
    
    No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country. And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes. If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.
    
    ...
    
    Even if the Special Counsel has a valid office, questions remain as to whether the Attorney General filled that office in compliance with the Appointments Clause. For example, it must be determined whether the Special Counsel is a principal or inferior officer. If the former, his appointment is invalid because the Special Counsel was not nominated by the President and confirmed by the Senate, as principal officers must be. Art. II, §2, cl. 2. Even if he is an inferior officer, the Attorney General could appoint him without Presidential nomination and senatorial confirmation only if “Congress . . . by law vest[ed] the Appointment” in the Attorney General as a “Hea[d] of Department.” Ibid. So, the Special Counsel’s appointment is invalid unless a statute created the Special Counsel’s office and gave the Attorney General the power to fill it “by Law.” 
    
    Whether the Special Counsel’s office was “established by Law” is not a trifling technicality. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office. Given that the Special Counsel purports to wield the Executive Branch’s power to prosecute, the consequences are weighty. Our Constitution’s separation of powers, including its separation of the powers to create and filled offices, is “the absolutely central guarantee of a just Government” and the liberty that it secures for us all. Morrison, 487 U. S., at 697 (Scalia, J., dissenting). There is no prosecution that can justify imperiling it.

These are terrible points! Asserting that a special prosecutor is akin to a private prosecutor is absurd. They are just like other prosecutors, the only reason to use a special prosecutor is to avoid making the case seem political.

Also, the fact that other Presidents did illegal shit and we didn't prosecute them, thus they are above the law is also absurd.

The current ruling whips out the, "there's nothing in the constitution stating we can do things we've always done" when its convenient, then goes on to say, "we've always been doing it this way, implying it's in the constitution" when its convenient.

> These are terrible points! Asserting that a special prosecutor is akin to a private prosecutor is absurd.

what, pray tell, is a "private prosecutor"?

You can bring private prosecution at the state level. edit: in certain states

that's quite literally an oxymoronic statement.

love how you doubled down on spouting nonsense with your edit.

I’m not an expert in this area by any means but it feels like there should be a “motive” angle to this rather just than blanket immunity.

The same actions committed by two different presidents could vary hugely in their motive - one might be legitimately concerned about voter fraud and the other trying to interfere maliciously with election results.

Admittedly the bar would be high to prove malicious intent (eg. acting out of self interest rather than in the interests of the office/country) but that still seems better than just saying that a given action, regardless of motive, is covered by immunity.

The decision actually explicitly bars courts from using motive:

> In dividing official from unofficial conduct, courts may not inquire into the President’s motives

I wonder how long before we get presidents selling pardons.

That assumes that it hasn't happened already.

https://www.washingtonpost.com/politics/2023/05/17/giuliani-...

That's basically what happened when President Clinton pardoned major donor Marc Rich as one of his last official acts. Ultimately the only protection against this is for voters to reject candidates who lack personal integrity.

This court has blown up civil rights, legalized machine guns (bump stocks), blown up any ability to regulate with chevron and now elevates the president to king in order to give the president that appointed them immunity. How long before sotomayor rage quits. I guess this ruling means Biden can send some thugs to forcibly retire them? Let's just have a fully political court that flip flops what the laws mean every four years.

Replacing the court every four years wouldn't be that bad if the courts were more efficient. As it stands, however, cases can take over a decade during which any such SCOTUS rulings could flip flop entirely, resulting in legal chaos (which would be bad).

Change isn't necessarily a bad thing... Imagine if we had a new court every four years and one of them behaved like the current SCOTUS, overturning over a hundred years of precedent basically every chance they get. The damage could be undone just as quickly.

Federal law defines "machine gun", a bump stock clearly doesn't meet it.

No need to be pedantic about it. Bump stocks can do just as much damage as a full auto weapon. SC is fine with that accessory in the hands of millions of citizens. As if we didn't have enough gun violence in this country.

Congrats. SCOTU have just promoted president to dictator. Now wait for Putin to come.

>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.

I would consider this an extreme knee jerk take, but it's Sotomayor saying it.

https://x.com/mikedebonis/status/1807787300375445993

in practice, not really much of a change. Did FDR stand trial for interning Japanese people? Ok, ok he died too soon. Would he have?

FDR did a lot of wrong, including paying farmers to not work.

A lot of presidents did a lot of wrong. The ones who did not would be a shorter list.

The point is there was a check and balance to make sure he did not get away with it

AFAICT nothing changes as far as the remedy of impeachment as a check. The court is saying that the president has broad immunity from criminal charges in the judicial system, not that he can't be removed from power.

Even if he had—he might have been acquitted! Even under a relatively fair trial!

The dissent notes that official acts as a defense is already A Thing. What’s changed is upgrading that to immunity, which means they can’t be tried in the first place, no defense needed. The law is simply held not to apply.

There’s a huge difference between “I think I can get away with this” and “The Supreme Court says I have absolute immunity”.

Except the ruling doesn't say that.

While a president has total immunity for exercising “core constitutional powers,” a sitting or former president also has “presumptive immunity” for all official acts. That immunity, wrote Chief Justice John Roberts in the majority opinion, “extends to the outer perimeter of the President’s official responsibilities, covering actions so long as they are not manifestly or palpably beyond his authority.”

What’s exactly said and what are the practical impacts are two completely different things.

It will take many, many cases to elaborate on what defines an official act and what exactly decides immunity, and in the process we could see a lot of potential what-I’d-say is overreach.

It is far too early to declare that there will be zero side effects from this — as with literally any Supreme Court ruling.

We’ve already seen what qualified immunity gets us, and I’d bet many people didn’t expect it to go that way.

It absolutely says that.

A President, if they act in an "official" capacity, cannot later be charged with a crime for something they did in that official capacity. Not "can offer being an official as a defense", "cannot be charged".

What is an official capacity? Well there's the traditional stuff like vetoes, appointments, and the like, but there's a lot of stuff that is far more nebulous. Does the President act in an official capacity when telling the Vice President what to do with regards to certifying an electoral college result? Well, if that's official, Trump has to be more-or-less let go for what happened on January 6th.

We are now basically saying that it's up to a judge - who may or may not have been appointed by the President in question - to decide whether something was an official act. If it is? Welp, sorry the President's wanton order violated your Constitutional rights, but no trial.

Acts that are unconstitutional probably aren't official, by definition they are outside the scope of official duties, throw every living president into prison?

Charge every act of violence ordered in places war is undeclared as war crimes?

If not, the things they have on Trump seem like really small potatoes to zero in on.

> Acts that are unconstitutional probably aren't official, by definition they are outside the scope of official duties, throw every living president into prison?

You could make a very good case that drone strikes on American citizens in foreign lands that are a part of jihadist groups without due process are unconstitutional. And yet, it happens. According to the standard Roberts puts in place, things that are on the extreme periphery of the duties of the Presidency are exempt from criminal prosecution. Does this mean drone strikes? Almost certainly. The President has an enumerated power to command the armed forces.

I fail to see why throwing all of the living Presidents in prison is a problem, particularly if they receive a day in court before getting thrown in prison. What this ruling does is create a class of American that can do some genuinely awful things and not be subject to legal process at all. There is no process, due or otherwise. The person gets to live their life as before.

Trump's being tried because the things he did weren't small potatoes. Trying to overthrow the electoral process unilaterally is a state fair record-setting potato. It's a far more immediate and widespread risk to American life and liberty than the drone strikes on foreign land that I mentioned earlier. One impacts a few dozen Americans globally at most; the other impacts literally all of them.

> things that are on the extreme periphery of the duties of the Presidency are exempt from criminal prosecution

This is wrong, and your ability to make an argument suggests you know it is. And the most extreme acts being mentioned as risks are the exact ones where "presumptive" matters.

> This is wrong, and your ability to make an argument suggests you know it is.

citationneeded.jpg

> And the most extreme acts being mentioned as risks are the exact ones where "presumptive" matters.

Are they? Can you count on humans to not abuse power? I don't trust the SCOTUS to provide a real counterweight. These are the same people who knew that 12-year-olds would be giving birth with the overturn of Roe v. Wade, and did it anyways. The same institution that ignored votes in 2000 and appointed a President. The same institution who had no power to stop Andrew Jackson from committing genocidal acts against the Cherokee. Either ineffective or complicit in severe violations of constitutional rights.

Ok, i gave too much credit. Here's your citation: https://prod-i.a.dj.com/public/resources/documents/SCOTUSTRU...

Read the ruling itself.

Roe v Wade was an easy overturn from a legal perspective. Pro choice folks with half a brain knew it stood on nonsense. Obama said in 2007 he wanted to codify it because he knew it was standing on shaky logic.

> I fail to see why throwing all of the living Presidents in prison is a problem

Hell IIRC at one point all living governors of Illinois were in prison

Official act isn't defined, so it doesn't say that.

Your last paragraph is closer to accurate, except a president doesn't just "appoint" a judge. They have to be voted in by the senate. So, if the president is a crook and nominates a crook and the senate is full of crooks and vote yes to have said crook become a judge, then yes really bad stuff can happen. But if the president is a crook and the majority of the senate are crooks, it's already all over.

> Official act isn't defined, so it doesn't say that.

It is and isn't, which is the problem.

> Your last paragraph is closer to accurate, except a president doesn't just "appoint" a judge. They have to be voted in by the senate. So, if the president is a crook and nominates a crook and the senate is full of crooks and vote yes to have said crook become a judge, then yes really bad stuff can happen. But if the president is a crook and the majority of the senate are crooks, it's already all over.

They more or less do appoint. There's never going to be a judge voted on that doesn't push a President's viewpoint, particularly not in the last thirty years. If a system doesn't take into consideration this particular contingency, it wasn't a very good system, was it?

Tell that to Merrick Garland.

You are confusing necessary and sufficient.

So, if the president is a crook and nominates a crook and the senate is full of crooks and vote yes to have said crook become a judge, then yes really bad stuff can happen.

That’s essentially what happened with Kavanaugh, Amy, and Neil minus the judge being a crook part. Well, Kavanaugh is a rapist so for him the crook part applies. The really bad stuff is happening. You just are not aware of it.

The point: if those things happen, this decision matters not.

If you think all those things are in place, this really is the least of your worries.

This is part of the foundation that will make doing bad things the new plolitcal norm.

If the president is a crook and the senate is full of crooks, that's the foundation. This is a minor fixture.

Judicial complicity is not a minor thing.

Sure, but this is just a single decision, and who are the judges supposed to be complicit with? The current president? The last one? The next one? A specific party?

Complicit in the sense of helping to set the stage for future abuses. Not complicit in the sense of conspiring. SCOTUS has made quite a few bad decisions which set the foundation that I speak of.

The ruling certainly sets the stage for something. It's almost like they didn't want to actually rule, but rather set up a framework for making future rulings. I can't say I disagree with the approach.

https://en.wikipedia.org/wiki/Korematsu_v._United_States?use...

Note v. United States, not v. FDR

He very likely should have at least been tried (and probably acquitted). I don't understand this modern take so many people have that "Freedom to act" somehow means "act without consequences".

That's the minority opinion. Maybe people should read the majority opinion first?

6 of 9 justices presumably felt they weren't enabling an executive with no limits

Several of those are absolutely corrupt at this point and bought off by the corporatocracy that now rules the country.

Conveniently, buying off SC judges was also made legal this week.

It's extreme to the point of silliness. If a court decides that would fall under "official acts", we are already doomed.

In practice the court will say whatever POTUS tells it to say, lest an 'official act' remove some of the members of the court and their loved ones.

Under the same line of thought, soldiers in the military will always follow what their commander say, least order to comes to remove a soldier and their loved ones.

I think that's rather her point. We are already doomed.

Think about how the Executive handled rival political movements in the past. The Black Panthers. CPUSA circa 1919. Now imagine Fred Hampton had been running for President when he was killed.

The line between "political opponent" and "enemy of the State" can become pretty blurry. This ruling gives the Executive broad power to act in its own interests when it can claim the line is blurry.

What does "Enemies, foreign and domestic" mean, really?

That phrasing is so passé. It has been "enemies, real and imaginary" for over 2 decades now.

It is, frankly, moon logic. The President is commander-in-chief, ergo, they are immune from prosecution when issuing an order to the military, even if the order is illegal? Because the Constitution says the President can issue orders and doesn't say anything about whether those orders need to be legitimate or justifiable in any sort of national context? Repeat for the Justice Department, or Immigration, or any of the many offices that fall under the executive branch. Apparently if the President is insane, or corrupt, or treasonous... that's a problem for all of us, but not necessarily a problem for the President.

Really does a number on the ‘unlawful order’ doctrine for military accountability. Has SCOTUS made ‘just following orders’ a valid legal defense?

They’ve also made much of the fact that the presidential authority to pardon is constitutionally unreviewable, so even if the president orders someone to commit a crime, he can pardon them preemptively. His appointment power is similarly in the constitution, so he can also fire and replace them until he finds someone willing to do it.

Are we really left with ‘if the president were to issue illegal orders to his staff, Congress would definitely impeach him’?

No, the President gets to order it and the little guys fall for doing it.

The president telling any member of his cabinet to do anything is presumptively an official act, and the evidence of him doing so is categorically forbidden from being used as evidence. (Hell, that's more extreme than even Trump's lawyers asked for! This basically overturns US v Nixon in its quest to elevate

This is an opinion that might make sense if we were being asked if a president ordering drone assassinations makes him liable for murder. In the context of the president trying to instigate a coup for not being reelected, to the point that his own government is threatening mass resignation if he carries it out in protest at the sheer unconstitutionality of it... this is the kind of question that almost begs SCOTUS to say "make a narrow ruling as to whether or not this specific instance is permissible" and SCOTUS decides instead to make a grand, sweeping proclamation for all ages and circumstances and neglect to look at the specific facts in this case and leave it unanswered here.

Roberts, let this case be your Dred Scott decision, your Korematsu decision. You've certainly done more to torpedo the credibility of the court in one decision than any other case in the past few decades... and that's saying quite a bit.

And this is coming off of the heels of Chevron being overturned.

Official acts are still official regardless of the underlying reason and according to this case courts aren't even allowed to examine those reasons.

"official acts" have yet to be defined.

They are partially defined, and the example given is part of the partial definition.

No, it's not. Because contradictions exist (is it official when it's unconstitutional? Is it official because it's mentioned in the constitution?) and are not yet resolved.

Anything laid out as a Presidential power in the Constitution is definitely an "official act". What is left for definition is everything else, from my understanding.

IANAL, but those seem like constitutional acts, and have absolute immunity, rather than simply presumptive immunity.

From the article:

> “Under our constitutional structure of separated powers, the nature of presidential power entitles a former president to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority,” Chief Justice John Roberts wrote for the court. “And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.”

There aren't just 2 types of acts. There are 3: constitutional, official, and unofficial.

No, it isn't. It is up for debate and will be debated, in court.

> At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is entitled to at least presumptive immunity.

Article 2, which talks about the president's powers, is vague and has not been stress tested to the same extent it's likely to now be (it seems like there will be a lot of debate around minutiae for years, just based off the trump presidency and charges brought).

As such, the phrase "exercise of his core constitutional power" is significantly less straightforward than it might seem at first glance.

If you read through the ruling, a lot more questions arise than answers. And Sotomayor's dissent only highlights how they don't know themselves. And it's not as though it was clear before this ruling. It was unclear, and this ruling says very little in practice.

> If a court decides that would fall under "official acts", we are already doomed.

Everyone thinks lines don't get crossed, until they do.

And if the last nine years have proven anything, most of the system will say "well, that wasn't technically a line, just something we've always done a certain way that was up for change at any moment's notice should one person decide to do so."

You know the majority can read the dissent right? If they felt it so silly they could have addressed it. Rather than contesting the claim they dismiss it because they feel its not as likely as other (seemingly non-mutually exclusive) concerns:

> The dissents’ positions in the end boil down to ignoring the Constitution’s separation of powers and the Court’s precedent and instead fear mongering on the basis of extreme hypotheticals about a future where the President “feels empowered to violate federal criminal law.” [...] The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself...

Also important to note is that the hypothetical didn't sprout from thin air, Trump's lawyers (whose arguments SCOTUS in large part accepted) acknowledged that extrajudicial assassinations would fall under official acts.

https://thehill.com/regulation/court-battles/4398223-trump-t...

That's not what they say, you cut off their actual response:

> The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next. ... Virtually every President is criticized for insufficiently enforcing some aspect of federal law (such as drug, gun, immigration, or environmental laws). An enterprising prosecutor in a new administration may assert that a previous President violated that broad statute. Without immunity, such types of prosecutions of ex-Presidents could quickly become routine.

Their argument isn't that it's not likely, it's that there's another failure mode that is even more likely.

I wouldn't call that a failure mode.

The US has a long history of relying purely on executive latitude and good faith to get things done. We now have a bad faith actor who wants back in the Oval Office with far fewer restrictions on his power. A lawsuit or criminal charge would absolutely be a good remedy in that situation.

Furthermore, it's the implementation of a system. What the justices of the majority said today is "there is no system". When there is no system to deal with problems, then humans make them up ad-hoc, which usually results in violence, if history is any indicator - and it is.

Deleted

You're misreading the text. It's not saying "if presidents assassinated their rivals they'd cannibalize themselves", it's saying "if executive branches got in the habit of prosecuting past presidents for official acts we'd be in a load of trouble, and that's a more likely scenario than assassinations."

Reasoning that more-or-less overlooks the entire history of the United States' treatment of bad political actors, from the Nixon pardon through the Lincoln pardons of the Confederates all the way to the multiple times Aaron Burr escaped justice for his prior service to the country.

It does make one question why this SCOTUS seems to think the future will break with precedent. Almost as if they're laying the groundwork for some significant changes to past decorum...

I see what you're saying thanks. Deleted to avoid causing confusion.

That's a lot of words to not contest that political assassinations are covered under this framework of immunity.

> Their argument isn't that it's not likely, it's that there's another failure mode that is even more likely.

I know its hard to imagine, but I strongly feel there is some amount of presidential immunity that mitigates what they are worried about without also enabling political assassination.

We were doomed when Republicans decided that impeachment was a partisan tool and could not be used against Trump. They broke the system by abandoning their constitutional duties so we are now looking into the abyss.

A do-over of both impeachment trials in the Senate would seem to be necessary, given that many senators went on record as saying they believed presidents were subject to criminal prosecution and chose not to convict for that reason. This changes that calculus.

It changes the excuse. They will surely find a different one.

That... is a bold misstatement of basic facts. IIRC[1] Democracts introduced a bill to impeach Trump in very partisan fashion, and then cried foul when Republicans made an attempt to impeach Biden. Amusingly, this is partially how we got to see the other part of the Hunter Biden laptop saga.

But to your main point, do you remember why Democrats tried to impeach Trump? I am leaving it as a question, because I am curious how you are intending to defend that record.

[1]https://en.wikipedia.org/wiki/Efforts_to_impeach_Donald_Trum... [2]https://en.wikipedia.org/wiki/Impeachment_inquiry_into_Joe_B...

They impeached Trump twice, members of both parties voted to impeach both times (more in the latter than the former).

The first time Trump used his power as president of a superpower to attempt to force a poor country to make up a fake investigation into his political rival. This is bad, basically unprecedented.

This is a terrible take. The Supreme Court case severely limits even the use of evidence to prosecute a President. The majority ruling says that as long as something is done in "official" capacity the intentions don't matter.

EDIT: This ruling probably retroactively clears Nixon from Watergate. It would make it illegal to use the tapes as evidence against him.

Would it? I am skeptical about this take and I am skeptical of Sotomayer’s take. What official capacity would Nixon have been undertaking? What official capacity would a seal team six assassination of trump be designated as?

I’m also skeptical of her dissent strategy; dissents are key places to limit a ruling. Why not just say what seems crystal clear and say ‘nothing about this ruling should be taken to mean calling something an official act as a fig leaf for criminality is okay; it’s not okay to assassinate a political rival ever.’ Instead she says it might be okay by the ruling. I dislike this approach in the extreme; it feels like grandstanding and complaining about the Roberts court rather than engaging with her own substantial influence.

Thank you for verbalizing something that was really bothering me here. Sotomayor is playing the victim in a way that is bad for America.

>Instead she says it might be okay by the ruling

yeah it seems like a traditional FUD strategy, i would expect Supreme Court justices to be more analytical and sober than that.

>Would it? I am skeptical about this take and I am skeptical of Sotomayer’s take. What official capacity would Nixon have been undertaking?

For the Nixon tapes, today's SCOTUS ruling would require the prosecution to convince a federal judge before trial that the value of the tapes in the criminal case greatly outweighs the general immunity from oversight presidents have when consulting advisors. Difficult, but not impossible. It probably would've given the same result in the Nixon case, because Nixon didn't use presidential powers to carry out the plan (just the cover up in the Saturday Night Massacre stage). If he had used an active FBI agent instead of a former one to place the bugs, then it might have been OK, according to today's ruling (see III.B.1 which grants immunity to Trump for his sham investigations using the DOJ).

>What official capacity would a seal team six assassination of trump be designated as?

The President is the head of the military and can direct them without consulting Congress. Congress is free to impeach him if he does so without authorization, but he'd have absolute immunity because this is a core power of the office.

Maybe you meant, "What reason could there be to justify that killing in the name of the nation or its people?" In which case, the President would never have to say. His motives are not even allowed to be investigated. See III.A from the majority opinion:

I believe that 18 U.S.C. § 1385 specifically bans the US military from acting on US soil, full stop. And, while we are currently in permanent war post 9-11, in general the President needs to wait on an act of Congress to engage in deploying the military. I'm by no means a lawyer, much less a legal or constitutional scholar, but I think my question stands, maybe better written as:

Given that such acts are banned by law, (deployment of troops on US soil, for instance), how would a President who wanted to assassinate his rival be able to claim this occurred within his official capacity?

I would generally agree with the court that putting justices in charge of weighing Presidential motives isn't really a world we've had or would want. But others of course might disagree.

To quote the majority opinion: "Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial." Sounds almost impossible & a pretty definitive statement.

Does it say anything about the person who carries out the order from the President?

If a member of Seal Team 6 did assassinate a political rival of the President, would they also be immune from prosecution? To me it sounds like the kind of order they would refuse.

Indeed. So if Trump himself takes an AR-15 into Congress (ostensibly to stop a 'fraudulent' election process) then he's free and clear.

The would be eligible for a pardon which would be an official act

well if the murder took place in the US then the state would charge them with murder and, as Trump found out, no pardons for state crimes.

Just pardon everyone in the United States that act on your orders every morning after you get up before breakfast.

To give the majority opinion its own voice:

> The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive. The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.

https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

EDIT: OP left a reply to this comment that I think was unfairly flagged, visible here with showdead:

https://news.ycombinator.com/item?id=40848860

Then it sounds like Sotomayor is being extreme by conflating domestic political assassinations as an "official act." Does she not understand the difference?

The ruling is extremely wishy washy about what is official vs unofficial, and keeps saying that it is very hard to determine, and even prohibits prosecutors from using certain legal tactics to determine if something is official or unofficial.

The Supreme Court wasn't even asked to define exactly what is official versus unofficial in this case. It will now return to a lower court to address that point, which is the normal way for the process to work.

That is a scam. The tests given in the opinion mean that they were all official because they involved federal elections. The case is over.

The president now has immunity to corrupt elections as he wishes. I honestly don't understand how any American can be happy about this.

Does she not understand the difference?

Explain the difference.

Depriving someone of their constitutional rights cannot be an official act by definition. Arguing that it can be is just word games in a world where words stop mattering.

Should an official act done in furtherance of a crime be official?

I think the problem is that the section regarding evidence, c3 iirc, says that any evidence implicating a criminal unofficial act must itself be unofficial, and not related to presidential acts.

American citizens have been drone striked without due process so that is in fact the reality we live in

Explain that in Guantanamo

> Depriving someone of their constitutional rights cannot be an official act by definition.

Who said?

The definition of words. It is unconstitutional to infringe on constitutional rights. Official actions are made such by the granted authority. No unconstitutional action is supported by the granted authority of the constitution.

SCOTUS disagrees.

The most recent affirmation: https://www.scotusblog.com/2024/06/supreme-court-upholds-bar...

There are countless other cases.

> The definition of words. It is unconstitutional to infringe on constitutional rights.

So if you belive that the election was stolen, and organize a military uprising to fix that, then what?

You're acting in your official capacity to uphold the constitutional rights. It's all fine and dandy, and you should get full immunity.

> So if you belive that the election was stolen, and organize a military uprising to fix that, then what?

Or if you don't believe the election was stolen. The court said In dividing official from unofficial conduct, courts may not inquire into the President’s motives.

> The definition of words

Ouroboros

'Official act' does not currently have a legal definition. It isn't defined in this majority opinion and it hasn't been given a definition previously.

> 'Official act' does not currently have a legal definition. It isn't defined in this majority opinion and it hasn't been given a definition previously.

It sounds like it does, from the majority opinion:

So it sounds like "official acts" means an act "exercising his core constitutional powers."

Those are two independent clauses which means that neither is a definition of the other.

You're misreading this.

Core constitutional powers: may not be prosecuted. Period. Impossible.

Official acts: presumptive immunity, may possibly be prosecuted.

Clearly "core constitutional powers" != "official acts" because they have two very different standards applied.

The problem is the core of this ruling seems to be just word games.

???

The court opinion literally says pressuring the vice president to try to not certify the election was an official act related to talking about the limits of his roles and responsibilities.

We are already well into stupid word games territory.

What is your counter argument, from the actual opinion?

No it doesn't. The conclusion III(B)(2) of the opinion:

> It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.

????

Yes it does - the part you cite was written because they found it an official act with a presumption of immunity that the government has some chance to rebut. If it had been an unofficial act, there would be no immunity at all.

Here:

"Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct"

> The court opinion literally says pressuring the vice president to try to not certify the election was an official act related to talking about the limits of his roles and responsibilities.

This isn't how Supreme Court cases usually work. Most of the time, as in this case, they clarify some things and send it back to the lower courts.

The Court here ruled that the President is entitled to immunity for official acts and sent the case back to the lower court to determine if Trump was acting in his official capacity as President or in his capacity as a political candidate.

>This isn't how Supreme Court cases usually work. Most of the time, as in this case, they clarify some things and send it back to the lower courts.

I'm actually a member of the Supreme Court bar, and have been involved in a number of supreme court cases, so i'm fairly aware of how Supreme Court cases work :)

They did what I said:

> Depriving someone of their constitutional rights cannot be an official act by definition.

SCOTUS disagrees with you. People can be stripped of their constitutional rights and they are official acts.

For the most recent case: https://www.scotusblog.com/2024/06/supreme-court-upholds-bar...

2nd Amendment versus the executive branch's right to enforce that law.

Read the opinion.

Just call it necessary for national security with some BS reasoning and thin or made up evidence and suddenly it’s an official act. There are so many ways a president could twist pretty much anything into an official act.

This was argued by Trump's defense team, it’s not a hypothetical

https://www.msnbc.com/rachel-maddow-show/maddowblog/pressed-...

Rather, the prosecution asked it as a hypothetical and the defense refused to rule out that it might be an official act.

That's explicitly arguing for the possibility then? Seems like splitting hairs and not a big leap to understand why the dissent might reference a take so wild as - yeah it's okay to murder your political rivals if it's official!

So, for the next election, if Biden decides to pressure several state officials for them to choose him as the state winner instead of the real election result prevailing, there would be no prosecution. So why wouldn't he do it? Oh yes, basic honesty and being faithful to his country (unless that being old and confused, he decides to do just that, so two reasons there for him not to be held responsible).

During the Supreme Court hearings, has anyone asked the hypothetical of a president deciding to send Team 6 to get rid of some members of the Supreme Court? No prosecution for that too?

couldn't be it reasonably construed as an official act if the president believed that person was a member of a terrorist group? the post 9/11 Authorization of Use for Military Force grants the president the use of all "necessary and appropriate force" in prosecuting terrorists.

this act is still in effect.

Could Proud Boys reasonably be considered a terrorist group?

Hellfire on its way now

What if the President ordered the assassination of the head of a terrorist organization that attempted to overthrow Congress with physical force?

Not the exact scenario you described, but a similar scenario occurred in the past:

"... al-Awlaki ... was an American-Yemeni lecturer, and jihadist who was killed in 2011 in Yemen by a U.S. government drone strike ordered by President Barack Obama. Al-Awlaki became the first U.S. citizen to be targeted and killed by a drone strike from the U.S. government."

https://en.m.wikipedia.org/wiki/Anwar_al-Awlaki

If you think it's extreme you haven't been paying attention to how Republicans have been acting with the "get out of jail free" card for years.

See https://en.wikipedia.org/wiki/Iran%E2%80%93Contra_affair#Par...

A president could put a bullet through a political rivals head and say he was "to the best of his ability, preserving, protecting, and defending the Consitution of the United States" if that political rival was calling for the "termination of all rules, regulations, and articles, even those found in the Constitution" and was preparing to do it.

I could see the argument being made that yes, that's an official act. You'd have to argue why it's okay for a President to abandon their oath of office.

The problem is that official vs unofficial designation does not exist. The Supreme Court just invented it out of thin air. Further https://www.thenation.com/article/society/trump-immunity-sup...

> the court has left nearly no sphere in which the president can be said to be acting “unofficially.” And more importantly, the court has left virtually no vector of evidence that can be deployed against a president to prove that their acts were “unofficial.” If trying to overthrow the government is “official,” then what isn’t? And if we can’t use the evidence of what the president says or does, because communications with their advisers, other government officials, and the public is “official,” then how can we ever show that an act was taken “unofficially?”

Doesn't this difference exist de facto?

Trump murdering his business partner at a dinner because they had a fallout is pretty clearly unofficial, while Trump ordering assassination of the Tyrant of Ruritania is official, albeit probably immoral and/or dangerous to boot.

Of course the grey zone between those two poles is going to be pretty wide.

Uh, you're missing the fact that his business partner is a danger to national security. The motives are irrelevant.

The question becomes what if the President then uses their power to jail/execute political rivals? How would you rule that as unofficial? Tons of dictators jail rivals on the “official” business of maintaining order or peace or some other nebulous term. The presidents role to enforce law is so broad that it can be used to justify almost any act.

This, so much this. Nobody ever jails political opponents, obstructs justice and bullies media in their unofficial capacity. If there is immunity, it will be used to do all kinds of shticks.

Indeed. This feels much in line to the German Enabling Act of 1933.

Critically, the former president was posting about how his political enemies should face military tribunals for treason yesterday

> there is also no way to prove it’s “unofficial,” because any conversation the president has with their military advisers (where, for instance, the president tells them why they want a particular person assassinated) is official and cannot be used against them.

You listed two extremes to demonstrate the difference, which is fine, but what about the example of Trump encouraging insurrection? It seems just a teeny bit relevant here, given that it is what prompted the case in the first place. And insurrection is definitely related to governing, so you can't discard it from consideration just because it's nothing like murdering a business partner. He could claim that an illegal decision was about to be made and so he had to use his executive authority to counteract it. That sounds like an official duty to me.

> He could claim that an illegal decision was about to be made

He doesn't even have to provide such a justification because the court has said the President's motives cannot be used to decide if it was official or unofficial.

> Trump murdering his business partner at a dinner because they had a fallout is pretty clearly unofficial

Why? The majority said In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.[1]

[1] https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

It's within the court's purview to invent new tests which lower courts can use to decide cases. That's the entire point of a landmark case.

> while the Supreme Court says “unofficial” acts are still prosecutable, the court has left nearly no sphere in which the president can be said to be acting “unofficially.”

Agreed, this is a key function of interpreting the law.

If the people don't like a landmark case (i.e. the disagree with the interpretation), Congress can pass a new law. If a new law contradicts the court's opinion, the law takes precedence.

> If the people don't like a landmark case (i.e. the disagree with the interpretation), Congress can pass a new law. If a new law contradicts the court's opinion, the law takes precedence.

Maybe.[1]

[1] https://en.wikipedia.org/wiki/Unitary_executive_theory#Judic...

Right - constitutional interpretation is the one area where the court can overrule congressional law.

But even then, with enough agreement from the states, Congress can amend the Constitution.

Exactly, this isn't a gotcha. This is one of the basic checks on Congress.

Congress can also impeach justices, which is one of their checks on the Judicial branch. They also have the authority to confirm the Executive's judicial nominees (one of their checks on the Executive).

But, they didn't invent any new tests here. Baseline, what they want to achieve is to stop the prosecution of Donald Trump in its tracks, and they'd like to use no more and no less overreach to achieve that. If it comes back to them, and they need to hammer harder, they will do that. But, the key goal is to protect Trump.

So, they can invent tests later, after they see how this decision affects the prosecution.

If act = core constitutional power then absolute immunity elseif act = official then presumed immunity else no immunity end

how is that not a test?

Judicial review didn't exist until the Supreme Court invented it out of thin air as well! Since the foundation of the country, we have allowed the SCOTUS a degree of legislation from the bench.

> while the Supreme Court says “unofficial” acts are still prosecutable, the court has left nearly no sphere in which the president can be said to be acting “unofficially.”

<< If trying to overthrow the government is “official,” then what isn’t?

It seems a lot is assumed in that one sentence. Did he give an order that said 'Overthrow!"? If not, what, exactly, did he do? And this may be a part of the issue. Everything is a hyperbole wrapped in performative anger.

In other words, can you name an action that you deem unofficial that would qualify as 'overthrow"?

Elector conspiracy

Failing to execute his office by failing to defend the Capitol

Telling the Proud Boys to stand by rather than stand down

Encouraging a vitriolic crowd to take back their country and transferring blame to Pence, who was going to be in the Capitol performing his Senate duties.

---------------

There comes a time when we have look past the mob-boss-need-for-explicit wording schtick and recognize a space as a space.

<< Encouraging a vitriolic crowd to take back their country and transferring blame to Pence, who was going to be in the Capitol performing his Senate duties.

Yeah, I.. I think you will want to find a better example than what he actually said[1]

<< Failing to execute his office by failing to defend the Capitol

So a lack of an official act is an official act? This does not fall under what I asked for, but good try.

<< Elector conspiracy

You have something there, but you want something more concrete. What was his exact step that was NOT an official act in your view.

<< Telling the Proud Boys to stand by rather than stand down

You have something there, but again not much to go after unless you want to argue actions vs words.

<< There comes a time when we have look past the mob-boss-need-for-explicit wording schtick and recognize a space as a space.

Listen, rules exist for a reason. You break those rules and you deal with consequences of that break. If Trump did not break those rules and you think those rules do not meet the current needs, then you may want to change those rules, but arguing 'well, he is guilty of something' is a little silly and, frankly, against the very foundation of this country.

The funny thing is, you clearly recognize the 'exact wording' issue as an obstacle to put him away.

[1]https://www.wsj.com/video/trump-full-speech-at-dc-rally-on-j...

> "The President is not above the law."

What does that even mean if it's impossible to prosecute the President? What does that even mean?

There is a distinction to be drawn between The President (the office) and the President (the person). The latter is not above the law with respect to all criminal prosecutions. The former is.

Note, the case before the court was whether or not a person could be prosecuted (Donald Trump specifically), the court said no.

No, the Court said that the President could not be prosecuted for actions that the President takes while being The President. If the President is not being The President then they can be prosecuted. If the President beats his/her wife/husband, then they can be prosecuted because that's not something The President is involved in.

So if the President calls another official over the secure line and tasks them to falsify election results and then prevents the transcript from going into the archive, how do you even get em? Practically speaking. That's the problem, that's how it works -- use the office immunity, plausible deniability and procedure rules to your advantage. Making it so is asking for trouble, just waiting to be abused the hell of.

It's the same things cops do, jeez.

idk man, probably the same way that they get mafia bosses who write their plans on little pieces of paper that are given to henchmen who then burn them

I understand your point and I'm not saying it's a great spot to land at, but I don't understand how the country's President can function if it were any other way. It's not just about Donald Trump, it's about 1 through 44 and 46 through whatever number we get to before this whole place burns down.

Then that would be a violation of the Presidential Records Act (1981) and they could be prosecuted.

https://en.wikipedia.org/wiki/Presidential_Records_Act

They could just argue the PRA is impeding their ability to communicate with the people within the executive branch and are thus immune to the punishments of the PRA.

You missed the part where the Supreme Court granted the president immunity.

The court only said that a specific thing (him directing the justice department to look into the election) was an official act. The person is presumptively immune from prosecution for official acts under the constitution.

I mean, it's still really bad, but a few slivers less bad than you say :P

So as long as you use government employees you can do anything?

Like if you want to do a coup, as long as you task the army with removing congress it's an official act?

Nobody is talking about prosecuting the office whatever the hell that would mean.

I think it means that he is liable for anything he does that is illegal if those illegal things aren't powers granted by the legislature.

If the president air strikes people and uses drone strikes using whatever system congress has said that makes that "okay" then he cannot be prosecuted for murder while authorizing and ultimately conducting drone strikes (in most circumstances).

However, if the president is having is own feud with some guy he doesn't like and finds a way to get him drone struck, that would not be covered by immunity because he wasn't acting as president in that capacity in any legally recognized way.

> I think it means that he is liable for anything he does that is illegal if those illegal things aren't powers granted by the legislature.

Many disputes about presidential actions are about what the constitution allows.

The majority said In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.[1]

[1] https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

There's one crucial flaw. What is and is not covered by immunity can only be decided by a court, after the fact.

Intimidating the court into ruling in your favor with guns to their heads is an official act until the court says it isn't official, but the court can't say it isn't offical, because they've got guns to their heads.

That crucial flaw is the fundamental structure of our legal system. It's why case law is a valued and necessary part of our legal doctrine. Humans are bad at predicting the future, and attempts to write prescient laws often end with significant loopholes that must be corrected after the fact.

That this system fails to work when it's axioms are ignored (i.e. in the stated case of a coup) cannot be construed as a failure of common law or an indictment on its 950+ years of success. Such act would be a failure of the Executive solely.

The founder's stated intent for resolving such a situation is why we have the 2nd amendment.

It doesn't matter. In the case where the president is using military force against political opponents it doesn't matter what the law says anyway.

There's one crucial flaw: you could neutralize the president in such a patently extreme situation and be acquitted by the jury

These days I wouldn't expect anyone who makes an attempt to "neutralize the president" to live long enough to see the inside of a courtroom

It aims to be "rules for thee but not for me", and the court's choice of who they hold to the rules. It's a more realistic and relevant flaw.

>However, if the president is having is own feud with some guy he doesn't like and finds a way to get him drone struck, that would not be covered by immunity because he wasn't acting as president in that capacity in any legally recognized way.

When it comes to it, this exact thing will be covered by immunity because of how things work.

> However, if the president is having is own feud with some guy he doesn't like and finds a way to get him drone struck, that would not be covered by immunity because he wasn't acting as president in that capacity in any legally recognized way.

Why not? US presidents have murdered US citizens abroad with drones. All he needs to do is claim he did it under national security. SCOTUS explicitly calls out that the presidents motives are immaterial for determining immunity or not.

And we have a way to deal with that. It's called impeachment and is the process by which one tries a sitting president for things that are part of his/her official powers. Impeachment is not a legal process but a political one. Congress can try a President for anything at any time, if they can muster enough votes for it. That's what the Supreme Court has said before -- Congress's motivations for impeachment are above any judicial oversight.

that sounds not totally crazy until you realize that you've just said that the president can kill all Congress members who think that killing Congress members is an impeachable offense

That was always true.

EDIT: to clarify: Any president up until now, and from now going forward, has the power to command his generals to murder every senator, justice, and governor. Of course, American soldiers take an oath to the constitution, so hopefully this wouldn't happen, but he could. Moreover, anyone can 'just' murder all living politicians and declare themselves king. This is hardly a theoretical scenario to concern oneself over.

I'm sad that we've made it to these kind of specious defenses being offered in a serious response.

Impeachment as currently written has been proven over and over to be a paper tiger. We need real remedies, not theoretical ones.

Then why were lawmakers claiming impeachment was inappropriate for January 6, and rather it should be a criminal matter?

https://www.cbsnews.com/news/mitch-mcconnell-immunity-former...

I would imagine two reasons.

(1) before today, there was no solid answer to what immunity a president may have

(2) it's unclear whether 'January 6' is an 'official' act (or even Trump's act at all, as he was not involved, denounced the rioters immediately, and called for a peaceful assembly)

"Not involved" despite telling the crowd to "fight like hell" and conspiring to have metal detectors removed?

'Immediately' as in many hours after violence started, and his own children begged him to do something?

Fight like hell? Isn't this a phrase that's used for all kinds of things?

Said in an attempt to stop the election process, then followed by hours of suspicious silence in the ensuing assault, I think the intent is pretty clear.

Impeachment doesn't actually deal with it at all. It's basically impossible to impeach anyone with the way politics is polarized these days, plus the only result is that the president is removed. They don't actually face any consequences for their actions as the Supreme Court is saying they can't be prosecuted even after leaving office.

> It's basically impossible to impeach anyone with the way politics is polarized these days

That's because no president has committed any supposed crime of any importance.

Nixon probably did, but resigned anyway, and was then pardoned, so it doesn't really matter.

Clinton was a technicality, and never removed from office, and no one cares really. Lewinsky is a celebrity now.

Trump... well the first one was obviously political (many Presidents deny foreign aid, etc... it's part of foreign policy. Biden is famously on tape as admitting to doing the exact same thing) and the second one was on thin ice as Trump explicitly called for peace

He wasn't impeached for denying foreign aid, he was impeached for making the aid conditional on helping him personally in his campaign for re-election. A fairly obvious case of corruption.

"Using the powers of his high office, President Trump solicited the interference of a foreign government, Ukraine, in the 2020 United States Presidential election. He did so through a scheme or course of conduct that included soliciting the Government of Ukraine to publicly announce investigations that would benefit his reelection, harm the election prospects of a political opponent, and influence the 2020 United States Presidential election to his advantage. President Trump also sought to pressure the Government of Ukraine to take these steps by conditioning official United States Government acts of significant value to Ukraine on its public announcement of the investigations."

I mean, if Biden investigates trump and finds wrong doing and takes action, is that an impeachable offense, for improving his election choices?

Like it or not, the allegations against Biden and his son have only become more substantiated over time.

Trump should not be punished for investigating.

I think that swapping a legal process guaranteeing my rights for a political process guaranteeing* my rights is a poor trade.

I thought the USA was a country of laws, not kings.

* actually guaranteeing that if the president is trampling my rights and a supermajority of congress don't like it, he'll be ejected from office, not anything to do with my protection or restitution.

> I thought the USA was a country of laws, not kings.

It is. The 'official' duties of presidents and the federal government are clearly laid out in the Constitution and subsequent laws. And moreover, the Presidents term expires at the end of four years, whether he believes it does or not. The concern-trolling over Jan 6 is something else. Even supposing the rioters had murderous intent and were going to hang people (they weren't... this was just a protest gone wrong)... trump would still cease to be president on January 20. No action needs to be taken to elect another one. The Presidency would fall to whomever is next in line and duly elected.

There is no way for a President to become a 'king'. The most years a President may serve is eight and at midnight on January 20 (or noon, I forget), no one listens to him anymore

> * actually guaranteeing that if the president is trampling my rights and a supermajority of congress don't like it, he'll be ejected from office, not anything to do with my protection or restitution.

Currently, the recourse you have if you believe the president is violating your rights is to file a civil action in a federal court. No action of congress is needed for you to do this. If your complaint is that SCOTUS, as the court of final appeal, may get your case wrong... indeed that is worrisome and indeed it's happened before, but if that's your complaint, then it has nothing to do with this case.

Wrong. Fitzgerald specifically shields the President from civil suits. The Court will not help you at all.

Your only recourse would be waiting until the President is out of office, then getting DoJ onboard to press criminal charges, with all the due process that entails. Fitzgerald explicitly provides no protection in the case of criminal litigation over and beyond that of an ordinary citizen for a former President.

Until today at least. God save us all.

You can file a civil suit to get an injunction to protect your personal rights. The ACLU does this all the time as do many other orgs

Trump also very publicly ordered the extra-judicial execution of US citizen Michael Reinoehl, after which he murdered by US Marshals in Lacey, Washington. He brags about this all the time, even in the first presidential debate in 2020.

https://en.wikipedia.org/wiki/Killings_of_Aaron_Danielson_an...

No the court was clear that motivation can not be used to divide official and unofficial behavior:

So it's not really immunity they are after, but super-immunity. It's not enough that he should be found not guilty in most or almost all cases, but that he should not even be accused, even have his actions inspected or judged. They have done away with the right to discovery, and covered the executive in an almost impenetrable veil. That is just royalty with extra steps.

I think that's a bit unclear. They have this standard where things that are part of a presidents "core constitutional powers" enjoy absolute immunity and anything else enjoys "at least presumptive immunity". I think this hints that some members of the court wanted to go further, but anyway I'm not quite sure what "presumptive immunity" means in the context of the law, but I think this quote gives the most clarity for me.

> unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457 U. S., at 754. Pp. 12–15.

This seems to be the real boundary. To show something doesn't have immunity you either have to:

1. Show it was an unofficial act

2. Show it wasn't part of the core presidential powers and that prosecuting it wouldn't have any danger of intruding intruding on "the authority and functions of the Executive Branch."

I think that last standard is related to presidential immunity from subpoena which courts have also recently construed quite broadly

The part of the text you quoted that really sent shivers down my spine was:

> Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.

So now the president can clearly break the law, and he cannot be questioned about it if it even remotely looks like maybe it could have been an official act? Surely, the correct ruling wold be that anything illegal is intrinsically not an official act, otherwise we wind up where the institution of the government is not bound by its founding documents. The executive branch of the government is a rogue entity with nothing to restrain it, as long as the president remembers to use a pompous looking stamp. For *certainly you can never show it was an unofficial act if you are not allowed to investigate because it is presumed an official act subject to absolute immunity *.

Mark my words. The next republican president will shut down any and all attempts to even question him or view documents, by preempting the investigation using this as his argument. And shortly later they will, most likely, start disbarring and / or incarcerating anybody who attempts to investigate him for "frivolous" persecutions that impede the executive branch. This ruling is very calculated, since they know Biden will not abuse his powers because of it, but there is an almost unstoppable amount of latent power that will be immediately abused by the next president.

Unfortunately, the majority decision has the sentence > At a minimum, the President must be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.

Since imprisoning the president would obviously intrude on the functions of the Executive branch, it really looks like the majority opinion is that no president may be prosecuted for any "official act".

It means, cynically, that the president may be prosecuted if the courts deem the action "unofficial" and not otherwise. Which is to say that the court has removed checks and balances for the case where the SCOTUS and Executive branch are held by the same party.

Cleary, clearly this was a partisan decision. They can't just say "We Have a King Now", so they dressed up just enough of a reasonable interpretation to be able to kill this particular prosecution, while allowing themselves wiggle room to prosecute the kings they don't like. They aren't really trying to uncork executive abuse, they really hope it doesn't happen. But they want Trump not to be prosecuted, and put their fingers on the scale with what they hope is just enough pressure. We'll see.

Exactly. They needed to come up with a decision which would give them the power to decide this case in the way they preferred, but also to decide future cases completely differently, for example in the case of a Democratic president.

It's not impossible to prosecute a president though. If he commits murder... that's not an official act. It's not part of the duties of his office in any reasonable take.

Or, if the President uses his powers to assassinate a governor -- again, explicitly not an official act, as the president has no authority over state elections.

If anyone bothered to read the constitution, it clearly lays out the sorts of things that could be construed as official, and the sorts of things that are not. The President does not have unlimited authority. His scope of authority is rather small, even if several important things fall under it. Part of the problem is the pervasive idea in American electoral politics that the president has some sort of power to 'promise' various laws and such. It's so silly since no President can possibly do that.

> If he commits murder... that's not an official act.

Not true, it depends on how he does it. If he hacks someone to death with a sword, that's not an official act, and it doesn't matter why he does it. But if he orders Seal Team 6 to assassinate a political rival, that is an official act. This example is specifically stated in the dissenting opinion.

> But if he orders Seal Team 6 to assassinate a political rival, that is an official act. This example is specifically stated in the dissenting opinion.

One of the key things about a dissent, is that it's not the opinion of the court, but just that judge.

In general, one would hope Seal Team 6 would not follow such an act as they owe allegiance to our system of laws before any presidential order.

> One of the key things about a dissent, is that it's not the opinion of the court, but just that judge.

Can you find anything in the opinion of the court that would preclude it? I can't.

> In general, one would hope Seal Team 6 would not follow such an act as they owe allegiance to our system of laws before any presidential order.

It's a strange world we live in where a president can order something illegal but not face any consequences. I suppose you could argue we already lived in such a world, but now the difference is that he can brazenly do it.

> It's a strange world we live in where a president can order something illegal but not face any consequences. I suppose you could argue we already lived in such a world, but now the difference is that he can brazenly do it.

We always lived in such a world. I know you might think the court did this to protect Trump, but realistically, the one who's more protected (since murder is a much worse crime than anything Trump's been accused of) is Obama, who ordered the murder of an American citizen by the American military.

I'm not sure what your standard of brazen is, but since he basically got not even a threat of impeachment for that, I'm going to go with that being much more brazen.

Not that I particularly care. Obama made the right call IMO.

EDIT: Here's an article in which the ACLU raises the same hypothetical concern you do (the president will now be able to kill whomever): https://www.latimes.com/nation/nationnow/la-na-nn-drone-memo...

> I'm not sure what your standard of brazen is

Ordering the assassination of an American citizen not caught in the act of doing something illegal is illegal and Obama should be prosecuted for that. But his justification was that it was for national security, and as you say, some people think that's a fine justification. If his justification were that he didn't like the cut of his jib, then you'd be against it I assume.

As things lie now, rationale and justification don't matter in determining whether something is prosecutable or not, and that's scary, to me at least.

EDIT: Also, did you see my question from an earlier post:

>> One of the key things about a dissent, is that it's not the opinion of the court, but just that judge.

> Can you find anything in the opinion of the court that would preclude it? I can't.

> If his justification were that he didn't like the cut of his jib, then you'd be against it I assume

So this may surprise you but the government of the United States is naturally immune from any case where it kills you or harms you in any way.

Congress has consented to being liable because it thinks that's nice, but it withdraws consent whenever it wants. The entirety of the idea of 'suing' or 'prosecuting' the government is something that only happens with the governments consent and they regularly withdraw it if it's upsetting the them

So the government can violate my rights as long as it kills me too? That doesn’t pass a sniff test.

Your family could not sue the government* and obviously, being dead, you'd have no standing in court.

* You cannot sue because the federal government and all state governments are immune from all civil suits naturally. Congress has consented to be sued because it thinks that that's a nice approach, but it can always choose to not be sued if it wanted to

Yes. Hopefully the military wouldn't coup. But notably, the US President ordering them to perform a coup would be immune from prosecution, because it's an official act.

That's correct.

> If anyone bothered to read the constitution, it clearly lays out the sorts of things that could be construed as official, and the sorts of things that are not.

6 members of the Supreme Court said Distinguishing the President’s official actions from his unofficial ones can be difficult.[1]

[1] https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

If law weren't difficult, there would be no lawyers.

Backwards.

If there weren't lawyers, law would be oh, so much simpler..

Realistically, not being a lawyer myself, it is painfully obvious that the vast majority of people do not have even a modicum of the nuance necessary to fairly judge anything.

Exactly and all the things which he has to just sign also fall under official, even if he was just briefed quickly on it and does not have a clue what’s going on.

Ok, so what happens when the president says something along the lines of 'will no one rid me of this troublesome congressman' and then turns around and pardons the secret service agent that pulls the trigger?

Technically, the murder is illegal, but the pardon is legal because it's 'part of his official duties'.

There are any number of ways this can be abused.

Presidents can already pardon people who murder their political opponents. Famously, the Reconstruction-era presidents pardonned every single confederate so as not to divide the country further and increase tensions.

You are clutching pearls over something that is already allowed. Like I said, Congress can impeach a president who does this if they don't like it.

Moreover, a president can't pardon state level offenses anyway, and I would imagine the murder would have to take place in a state. The state could simply retry the case. States have much more discretion in the sorts of things they can criminalize.

Why do you think it's impossible to prosecute the president?

I believe the best clarificstion there is that you have to consider the person and the office separately. When acting as the president and largely executing his duties as defined by Congress and the Constitution, he can't be charged. If the person does something outside of the office's powers then immunity doesn't hold.

Meaning, if the president shoots a random bystander on the street they can be charged with murder. If the president orders a military strike as part of an official operation and done through proper channels, they can't be charged if it later turns out the intel was bad or the strike went wrong in some way.

What if the President orders the Vice President to shoot someone in the street?

What if the President signs an Executive Order directing himself to shoot someone in the street?

Simply envoking the title of the office doesn't mean the act falls within the lawful powers of the office.

Think of it like the police. An off duty cop is not acting under official powers. Even on duty, a cop is limited in what and how they are supposed to do their job and crossing outside those bounds technically makes them personally liable. I wouldn't begin to say we are any good at actually holding police accountable when they act outside their official duties, but that's a whole separate can of worms.

Sounds reasonable, but that's not what the court decided.

Any specific references in the court decision that jumps out at you?

I read it and what is above is my understanding of how they attempted to parse the law, but I'm happy to be wrong if I missed something.

It means:

On the one hand: if you are president and you authorize the nuclear bombings of Nagasaki and Hiroshima to get Japan to surrender without further loss of American life, you won't later be prosecuted for war crimes when your political rival comes into power.

On the other hand, if you are president and you murder a Japanese person you see on the street when going for a stroll outside the white house, you can be prosecuted for that.

It's worth considering the case of Anwar al-Awlaki, an American citizen, that was killed by Obama outside of a combat zone. (I'm avoiding the word "assassinated" because it seems overly charged.)

In theory, some prosector could have decided to charge Obama with a crime, and maybe even achieved a conviction in a jurisdiction where he's unpopular.

This decision says that shouldn't happen because it was an official act as president.

Of course, if congress doesn't like something a president is doing, they can change the laws and remove his or her legal authority to do something.

https://en.wikipedia.org/wiki/Anwar_al-Awlaki

> if congress doesn't like something a president is doing, they can change the laws and remove his or her legal authority to do something.

Yep. The ruling says that if the President is acting within the legally and constitutionally defined scope of their duties then they shouldn't have to wonder if they'll later be prosecuted for it.

That seems fine on its face, but the problem people keep raising is that we live in a world where the President is legally empowered to do things that are seriously problematic. That's a very real concern, and it's been a concern at the very least since Bush and 9/11.

So the obvious answer to this ruling is to fix that. The President shouldn't have to wonder if they'll end up prosecuted for doing things that are within the scope of their official duties, so what we need to do is more clearly define and limit those official duties so that the President doesn't have to guess what will be seen as crossing an imaginary line when the administration changes.

> That seems fine on its face, but the problem people keep raising is that we live in a world where the President is legally empowered to do things that are seriously problematic. That's a very real concern, and it's been a concern at the very least since Bush and 9/11.

I agree with you - it's not like Bush has been held accountable in any way. Neither has Cheney, and we know Rumsfeld never will. Congress needs to get off its' duff and regulate. That requires people to organize to make them. I'm not seeing it happen.

> Congress needs to get off its' duff and regulate.

Congress granted the Bush administration broad powers. The problem is not inaction.

> and we know Rumsfeld never will

You mean because he has been dead for 3 years?

This is the obvious answer to any supreme court ruling you want to change: congress can simply change the law/constitution.

A giant part of the issue of commonlaw systems is that so much of the "law" is not laws but rulings and those are a lot easier to change/ignore/overrule.

"Change the law" versus "change the constitution" are two very different things.

The US couldn't pass the ERA, which just enshrines women's rights in the Constitution. Anything more controversial like "the President can't do extrajudicial murders" would be an endless partisan battle

I am not saying that they are easy to do, but it is their power to wield.

No. The remedy Congress has is impeachment, not “change the Constitution”. Even if Congress could easily change the Constitution (they can’t), it would not apply to actions taken previous to the change.

Whether laws can be applied retroactively is decided by the constitution :)

But yes, what I meant is that the supreme court has the power to interpret the law and uphold the constitution, but it is on the legislation to draft precise laws.

> The ruling says that if the President is acting within the legally and constitutionally defined scope of their duties then they shouldn't have to wonder if they'll later be prosecuted for it.

The other big problem is how do you resolve a question of whether the president is acting within the legally and constitutionally defined scope of their duties? If there is a presumption of immunity and precluded from examining motive, it may be nearly impossible to establish the facts in cases where the president is acting improperly.

> If there is a presumption of immunity, it may be nearly impossible to establish the facts in cases where the president is acting improperly.

Well yeah that's true. But uh, you are talking lawyer talk with a set of opinions, insincerely held, because they are most concerned with "owning the libs" above everything else.

> Of course, if congress doesn't like something a president is doing, they can change the laws and remove his or her legal authority to do something.

Maybe.[1]

[1] https://en.wikipedia.org/wiki/Unitary_executive_theory#Judic...

I guess this hypothetical scenario is not entirely relevant since the killing happened outside of U.S jurisdiction.

No, US citizens do not lose their rights to a trial because they're not in the US.

I know this is what you're saying but just to head any other knee-jerk responses, US citizens do not lose their rights to a trial in the US, for breaking a US law, because they happen to be outside of the US.

Relatedly, when the question is "is this person protected by the Constitution," imagine a Venn diagram where one circle is "US citizens" and the other circle is "human being physically present within the United States." Debate over the 100-mile "border zone" notwithstanding, the entire thing is filled in. If you are a US citizen anywhere, or a person inside the US, you have all the Constitutional rights.

It does change whoever might have standing to sue the President over it, let alone to put him in jail.

The case of Anwar al-Awlaki is exactly the kind of case where I think the president should face criminal liability for murder. Although, as he was murdered in a foreign country, no court in the US has jurisdiction for the president to be prosecuted; but if he had been murdered on US soil, it would be absolutely appropriate for a jury to decide whether or not it is justifiable for the president to order the death of somebody merely for speaking the wrong words.

Another topic that hasn't come up quite as much is the fact that this is an immunity proposition, not a defense. What SCOTUS is saying is that we aren't permitted to even ask if the president is reasonable in his beliefs; any trial on the merits is completely and totally foreclosed--that's what immunity means. Just a few days ago, SCOTUS decided that it's absolutely important that administrative law procedures need to go through the step of being heard by a jury trial, and now here it's saying that it's absolutely important that the president never be burdened by the prospect of having to have a jury weigh their actions.

It's just... really galling that SCOTUS would decide that the constitution requires that the president be a king above the law, exactly the sort of thing that England fought a few civil wars over before the US even sought its independence.

> as he was murdered in a foreign country, no court in the US has jurisdiction for the president to be prosecuted

You're underestimating the creativity of prosecutors. :)

For example, they could have charged him with conspiracy to commit murder in any location where Obama met with others to discuss killing al-Awlaki.

Or a future president, like Trump, could have pressured a federal prosecutors to bring charges in Federal Court, since they can bring charges for crimes committed against Americans globally.

> no court in the US has jurisdiction for the president to be prosecuted

Nevermind that the order was given by a US official, presumably on US soil.

Wikipedia says he was a higher up in al-Qaeda. All things considered, it doesn't seem like that much of a human rights violation.

> Of course, if congress doesn't like something a president is doing, they can change the laws and remove his or her legal authority to do something.

No, the supreme court just gave the president immunity for exactly this. This exact scenario is quoted upthread:

> Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution.

It's curious because this would also seem to legalize the Watergate scandal and Nixon's famous line "if the president does it, its not illegal".

Nah, watergate happened before Nixon was even president.

That's not true. He was a sitting president, elected in 1968, and a bunch of the scandal was about his re-election campaign in 1972. He was successfully re-elected to a second term but then those events caught up with him over the following two years, causing him to resign in 1974.

I can't tell what your stance is on the al-Awlaki assassination? If the leader of a country orders an extra-judicial killing, especially of one of their own citizens, that seems like it deserves criminal penalties.

People get very judgemental when Putin assassinates defectors, but when Obama does it it's ok?

> This decision says that shouldn't happen because it was an official act as president.

And of course, if it's something that the Supreme Court wants a president to face consequences for for partisan reasons, they can simply use their majority to say that whatever they didn't like was not an official act.

Yeah but isn’t “the president has presumptive immunity for any act done in the service of the executive” and “the president can order military executions with immunity” kinda the same assertion, assuming “presumptive” is allowed to do its work? What’s the difference? I don’t understand how you could possibly argue political violence by the executive is “personal”, when they claim it’s done in the service of their oath…

No because "presumptive" isn't as strong as you think it is. All defendants have the same presumptive innocence and yet are convicted much more often than not at trial.

But presumption of immunity is different from presumption of innocence. You can't face a trial if you are immune. That's the entire reason this is before the court now, before the trial has even started. They are very different things. The presumption of immunity here is way stronger than you realize.

I don't think that's the dispositive part of the opinion for Sotomayor's hypo though. Roberts finds that the President enjoy absolute immunity for acts that can be construed as part of the "conclusive and preclusive authority" of the Presidency, and presumptive immunity for acts within the 'outer perimeter' of their authority. Furthermore:

> In dividing official from unofficial conduct, courts may not inquire into the President’s motives.

So the hypo cannot be trivially resolved by treating the kill order as an unofficial act. Instead, for the president to be _criminally_ liable, I think (as not-a-lawyer) it has to be resolved by piercing 'presumptive immunity' for actions beyond the core powers. While there's a needle to thread, it feels disturbingly narrow.

As noted by nostramo [0], Obama already set the precedent of ordering hits on US citizens. The answer to Sotomayor's concern here seems pretty obvious: if we're concerned that the President can order hits on US citizens for invalid reasons, then we need to be very clear in the laws that ordering hits on US citizens without due process is not within the President's official authority.

[0] https://news.ycombinator.com/item?id=40849378

The President's authority to command the armed forces comes directly from the Constitution, Congress can't pass a law to take that away.

Firther, Obama's AG argued successfully that due process was done; where the definition of due process became what the Executive Branch did.

I wouldn't have bought that; but alas, no one asked me.

I don’t think this is a helpful comparison. A citizen in the service of an enemy engaged in war against his country does not enjoy the protections of an arbitrary citizen. We can rightly argue whether that theory wholly fits the facts of al-Awlaki, but it’s a very, very long bridge from that case to Sotomayor’s hypo

Not really—once you've crossed that bridge it's a short hop to the government arguing that the political rival was a terrorist who needed to be killed.

Due process is about validating the government's claims before allowing it to kill someone.

This is an extra fun opinion because it lets the court selectively interpret which acts are official and which are not. If it's a politician they agree with ideologically all their acts are official. If not, the offending acts are clearly unofficial.

The silence from the people who once decried the 'activist court' now that it's an ally of the slow fascist transformation is deafening.

I also think this is an interesting contrast with the decision to overrule Chevron from just a few days ago. There it was decided that executive agencies have no authority to interpret unclear statutes, under the constitution this was kind of a power grab from the executive to the courts. The conservative movement general sees government agencies deriving all their powers from the president, so it's a bit funny that they would decide this first case to give agencies no wiggle room in their interpretation of the law and this next one to give the president maximum wiggle room. It kind of makes you wonder

"It's not illegal when the president does it."

Turns out Nixon won the battle for an American dictatorship after all. Well played, Dick.

Given how the Republicans treat pardons (see https://en.wikipedia.org/wiki/Iran%E2%80%93Contra_affair#Par...) I think we can all guess how this will be used in reality.

I think and hope that the results of this ruling will be less extreme than the dissent warns. It could potentially be very bad, though. The word “official” is doing a lot of lifting in this ruling. If it is not interpreted too liberally, then perhaps not that much is “official” and thus immune. If it is interpreted the other way, then this could be bad.

That seems like the majority opinion agrees.

It'd be hard to argue that commanding the military wasn't an official act of the president under the Constitution even if that command was to Navy's Seal Team 6 asking them to assassinate a political rival for reasons of "national security"

My naive assumption is that ordering Seal Team 6 to assassinate a political rival is not an official nor constitutionally authorized power, and thus would be prosecutable.

Guess again! Roberts explicitly calls out orders to the military as covered by absolute immunity. EDIT: and motive is explicitly barred from review too.

Do you have a source? I didn’t find this in the article, could you add a quote - or link if it’s from elsewhere?

https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

Page 14 notes that the President's official responsibilities "include, for instance, commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and ap- pointing public ministers and consuls, the Justices of this Court, and Officers of the United States."

Page 17 states "We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority."

Page 26 states "In dividing official from unofficial conduct, courts may not inquire into the President’s motives."

thank you, friend

> Page 14 notes that the President's official responsibilities "include, for instance, commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and ap- pointing public ministers and consuls, the Justices of this Court, and Officers of the United States."

Right below that it clarifies

> If the President claims authority to act but in fact exercises mere “individual will” and “authority without law,” the courts may say so. Youngstown, 343 U. S., at 655 (Jackson, J., concurring). In Youngstown, for instance, we held that President Truman exceeded his constitutional authority when he seized most of the Nation’s steel mills. See id., at 582–589 (majority opinion). But once it is determined that the President acted within the scope of his exclusive authority, his discretion in exercising such authority cannot be subject to further judicial examination.

Seal Team Six is pretty clearly not a privately held steel mill; Truman was fairly clearly not the Commander in Chief of US Steel.

> If the President claims authority to act but in fact exercises mere “individual will” and “authority without law,” the courts may say so.

I suggest that courts might be _reluctant_ to make such a finding with Seal Team 6 visiting their homes at 3 AM.

I pray when Trump is reelected he makes no such moves.

He has already pledged revenge should he win reelection. Political opponents will be jailed and killed for his supporters entertainment.

> I pray when Trump is reelected he makes no such moves.

project 2025

But Truman shouldn't have faced prosecution for that should he? It was after all done to ensure victory in Korea and he stopped after the court said no with apparent authority when he did it. This case goes too far and not far enough.

This demonstrates where the court is drawing the lines. Fascist dictatorships are fine, so long as they keep their mitts away from private industry. Of course, at this point, who is going to stop the President if he starts seizing companies?

This ruling is like telling a hungry leopard, "you can eat anyone except for us." The hubris of this ruling is absurd. American's President Jinping won't be a Federalist.

This court's citation of precedent in one decision is meaningless, since they've shown a lot of enthusiasm for overturning it as soon as it no longer suits their (or their patrons') interests. See also: Dobbs, Loper Bright.

Sounds like “nuke anything you want and walk away free”, hard to believe there would be no catch or failsafe.

Absurd, to the point of being hilarious. Could a president use this (immunity and nukes) to become an absolute ruler?

Edit: a failsafe is there, see sibling comment: https://news.ycombinator.com/item?id=40849357

How does that interact with the Posse Comitatus Act?

In the military chain of command an order is only an order when it is a lawful order. The president does not have any power to issue an unlawful order. That would be outside of his constitutional powers and not an official act.

Who gets to decide the lawfulness of the order, and what physical power does the Executive have at his disposal to bring to bear to tip their judgment?

>Who gets to decide the lawfulness of the order

Congress, through impeachment.

The previous POTUS is accused of using his office to perform a series of actions that culminated in disruption of the function of Congress.

Several Congresspeople then concluded he could not be impeached because by the time they were able to consider the question, he had left office.

This ruling by SCOTUS suggests there is now no avenue to hold such a President accountable for such actions.

... and that's before we broach the question of whether "Removal from the Oval Office" is sufficient punishment for all manner of crime the President could commit from his position of power, because that is the upper limit of the effect of a Congressional impeachment. This seems to give a sitting President carte blanche to throw the Constitution in a wood-chipper if he can interpret it is within his official acts to do so.

>The previous POTUS is accused of using his office to perform a series of actions that culminated in disruption of the function of Congress.

Yes, and was impeached for that.

>Several Congresspeople then concluded he could not be impeached because by the time they were able to consider the question, he had left office.

That's how checks and balances work. They may have made that conclusion, but the impeachment carried on anyway and failed to gain the 2/3rds majority.

>This ruling by SCOTUS suggests there is now no avenue to hold such a President accountable for such actions.

It doesn't suggest that at all.

>whether "Removal from the Oval Office" is sufficient punishment for all manner of crime the President could commit from his position of power, because that is the upper limit of the effect of a Congressional impeachment.

It's removal from office AND "the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.[0]" They can still be found guilty for insurrection after impeachment.

>This seems to give a sitting President carte blanche to throw the Constitution in a wood-chipper if he can interpret it is within his official acts to do so.

That's not how it works because at the end of the day the President doesn't interpret the law, and isn't shielded from impeachment and justice through state/federal courts as I outlined above. This is literally the majority opinion. Similarly, just because a military officer interprets their actions are lawful doesn't make them so.

[0] https://en.m.wikipedia.org/wiki/Impeachment_in_the_United_St...

iirc every US service man/woman is empowered to disobey orders. I think they call it "answering to a higher authority" or something like that, granted there are severe consequences for disobeying an order that turns out to be lawful no matter how much you don't like it.

The courts. Military courts have been handling this for a long time. No reason civilian courts couldn't apply the same standards in the case of a president.

If the president is able to bring physical power to bear, then it matters little what the law says anyway.

The military was happy to systematically seize guns from citizens in NOLA during Katrina. They will follow unlawful orders to keep their dental plans active.

An important point here is that there are both legal and illegal orders. Military personnel are instructed obey every legal order, and disobey every illegal order (at least I was).

In the military, we have the UCMJ that allows us to prosecute those military personnel that issue illegal orders. The President is the Commander-in-Chief, but he is a civilian, so the UCMJ doesn't apply. I always thought he would be charged under criminal law in that case, but it seems that this ruling precludes that.

This is true but I don't think it meaningfully checks the president, because the pardon power is also absolute and unreviewable, and does cover courts martial (as we saw in the Eddie Gallagher case). Military personnel are not required to follow illegal orders from the president, but if they do they won't face legal sanction.

Article II of the constitution specifically gives the POTUS the authority to command the armed forces. The limit is declaring war, which is vested in Congress. So it seems reasonable that commanding Seal Team 6 is specifically a constitutionally authorized power and within an official duty.

commanding seal team 6 to assassinate a sitting head of state is a act of war, and only congress can declare war.

We've made it very clear for decades that the President can commit acts of war without declaring it. Syria, Lybia, Iraq, Afghanistan, and dozens of other hotspots around the world.

so fix that.

Add Ukraine.

What act of war has the US directly committed against Russia within Ukraine?

That hasn't stopped any president in the last 60 years from using the Armed Forces to conduct a war -- or "police action" -- if you prefer.

You picked a bad example, as both Korea and Vietnam had congressional authorization.

Obama drone wars would be the one to look at.

Congress hasn't declared war after WWII. I suppose that's why you used the euphemism "congressional authorization"; instead of what was intended by the folks that wrote the constitution -- a declaration of war.

But assasinating private citizens a ok? So Biden can order the assassination of Trump? Even if you claim as someone else that you can’t violate someone’s constitutional rights within an official act, we have already killed US citizens abroad via drone strikes. So if Trump is in some foreign country we can drop an a-bomb and claim it was to kill some terrorist & that’s a ok?

The minority points out that official acts was already a defense. The majority opinion here claims that it’s an absolute immunity and even motivation is impervious to this immunity claim. This is a serious undermining of the rule of law in a substantial way and paves the way for the US to have a dictatorship at some point in the future.

Please go read the full ruling. That's not what it says.

It's an immunity only for official acts, not unofficial ones.

So first, the distinction between official acts and unofficial acts isn’t actually defined and even Robert’s admits this ambiguity is going to be a problem:

> Determining which acts are official and which are unofficial “can be difficult,” Roberts conceded. He emphasized that the immunity that the court recognizes in its ruling on Monday takes a broad view of what constitutes a president’s “official responsibilities,” “covering actions so long as they are not manifestly or palpably beyond his authority.” In conducting the official/unofficial inquiry, Roberts added, courts cannot consider the president’s motives, nor can they designate an act as unofficial simply because it allegedly violates the law.

https://www.scotusblog.com/2024/07/justices-rule-trump-has-s...

Basically the President has a presumption that his behavior is an official act unless it’s egregiously outside his powers but there’s also no way to really investigate it. Oh and it’s also combined with the unitary executive theory popular on the right which holds that the president basically has absolute power over all executive agencies and a growing interpretation of the powers of the president (under both parties) which is a scary scenario.

And given that the dissenting opinion from SCOTUS justices literally raises the exact scenario you’re assuming is unofficial, so dismissing it out of hand seems overly bold:

https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

You can disagree with the dissents, but even Justice Barrett outlines some very serious problems with the reasoning in the majority opinion while Justice Thomas says they should go further and completely rule Jack Smith’s investigation unconstitutional outright.

Being killed by the government without due process of law (ie: death penalty for convicted criminals) is a clear violation of your constitutional rights though, and violating someone's constitutional rights (read: going against the constitution) can't be an official act by definition.

And you’re are free to sue the government in that case. The DOJ won’t prosecute the president for ordering something like that even after he leaves office..

It happened under Obama and nobody cared. I think it is definitely something that could be considered an "official act".

Some progressives cared, and that was about it.

He also passed an EO afterward which set up a legal framework retroactively justifying it.

This is explicitly about the POTUS being immune from prosecution for official acts like commanding ST6 to assassinate someone. Fortunately in some cases, unfortunately in others, semantic wordplay akin to “could god microwave a burrito so hot even they couldn’t eat it” has little effect in the court system. That is to say, semantic gotchas like “but actually it couldn’t be an official act because the very act is against the constitution” have no sway.

"Official Act" has not been defined, so who knows if going against the the Constitution will count. The way the law is worded it may not matter anyway, it's pretty much left up to the courts to decide.

Haven't we had Presidents order airstrikes on American citizens in the Middle East before without a trial because of their association with jihadist groups?

At a certain point the "constitutionality" doesn't matter; it's hard to make a case have a meaningful outcome when the plaintiff is dead.

This is at least the second time in this thread you've said something like an official act can't violate someone's constitutional rights "by definition". I'm wondering what definition you refer to.

That said, it's obviously a false statement. By your argument, the president ordering flight 93 to be shot down on 9/11 would not be an official act. You might now retort something about extenuating circumstances, but really that would only show you to be entirely wrong about your original assertion.

I recommend you edit your posts to correct your mistake.

You’re creating an “any unconstitutional act cannot be official” rule that does not appear in the ruling and is contrary to tons of statute and case law. Qualified immunity codifies that rights violations can be official acts.

And as bad as today’s ruling is, I think your proposed rule would be worse because it would create tons of liability for good faith government employees.

We can’t have a world where it’s unclear if an act is official until there’s some kind of review of its outcome. The act itself has to be official (or not).

>Qualified immunity

Qualified immunity is unconstitutional

So now we’ve left the land of settled law are are into personal opinions. Which is fair enough, I detest qualified immunity, but it is the law of the land.

And every war since Vietnam has been a police action or military operation.

Maybe, maybe not.

What does the judge who reviews the case think?

That's literally the only thing preventing that scenario from playing out.

The President is the Commander in Chief; issuing orders to the military is very much an official act.

"But not for this! This would be clearly corrupt!" you may say, but the decision addresses that as well; the President's motive for the "official act" cannot be introduced as evidence!

> In dividing official from unofficial conduct, courts may not inquire into the President’s motives.

It can't be used to distinguish between an official act and an unofficial act. That wouldn't make sense anyway.

Motive can be used to defeat the presumptive immunity for an official act.

But the immunity is only presumptive for acts within the outer perimiter of the president's official responsibility. For core constitutional powers, like giving orders to the military, the immunity is absolute.

Not intent, but the location and nature of the order. If it’s not in a war zone, not targeting an enemy combatant, etc. that’s not an order that falls within the scope of the core actions of a commander in chief.

Neither is pressuring the Vice President not to certify the election, but they explicitly state it to be an official act. Page 31 of the ruling:

> Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Pre- siding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a consti- tutional and statutory duty of the Vice President.

> The indictment’s allega- tions that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the cer- tification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.

They're laying out an extremely permissive standard.

My naive assumption would be that giving that order must fall into the realm of official act. How can POTUS command the military, unless acting in the capacity of their Commander in Chief?

This example came up during oral arguments, Trump's lawyer agreed that assassination of a political rival could be a protected official act[0]

[0] https://abcnews.go.com/Politics/seal-team-6-assassination-hy...

I see a lot of people here in the comments claiming that this is still knee-jerk, or silly, or obviously that would not be an "official act".

To the contrary -- this is an explicit example that came up during oral arguments, where a Trump lawyer specifically claimed that indeed, Trump could not be convicted criminally of this (unless he had first been impeached and convicted).

Nowhere in the majority opinion does it try to draw some kind of line against this. And indeed, the President is constitutionally "commander in chief of the Army and Navy of the United States", and the opinion states this authority is "conclusive and preclusive".

Quite simply, according to this decision, anything the president commands the Navy to do, including a Navy Seal, is an official act because it a power explicitly granted by the constitution, and thus immune from prosecution.

To repeat: this specific scenario was brought up during oral arguments, indeed as one of the main arguments that was also widely reported. This is not a far-flung wacko example Sotomayor came up with herself -- it's the very heart of the case. The fact that the opinion does not even attempt to explain why this would still be considered criminal, and the fact the Sotomayor is confirming why it would be allowed, is not a misreading or a mistake. It is clearly intentional and genuinely scary.

> ...is not a misreading or a mistake.

Nice bit of jujitsu by Trump's defense. Make an outrageous claim so out of bounds that any one who quotes you sounds like a lunatic.

Surely the critic is exagerating, lying, offbase, or... ? No one would seriously claim they could murder some rando on Fifth Ave in broad daylight and get away with it. Right?!

Results in opponents discrediting themselves.

Brilliant.

> As for the dissents, they strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today—conclude that immunity extends to official discussions between the President and his Attorney General, and then remand to the lower courts to determine “in the first instance” whether and to what extent Trump’s remaining alleged conduct is entitled to immunity.

FYI, the court is not saying Trump is granting Trump blanket immunity. For three of the counts the court is saying Trump is probably not immune but prosecutors need to clarify that his acts were outside of the duties of his office.

To extend the absurdity further. If the President truly believes that if their rival winning the presidency would endanger democracy, it would be the _duty_ of the President to take that action.

This seems like a path towards civil war.

[edit] Thinking about a way out of this mess. Here's a proposal.

Biden asserts that he has this right, writes up a new amendment taking the right away, gives a date by which he will take action if the amendment has not been passed.

(Then he should probably resign for effectively blackmailing the legislative branch)

The deterrent for such action is that government officials are under the obligation to disobey orders that are unconstitutional. But that loyalty to the constitution doesn't seem to be strong anymore. High positions in the US government are now occupied by the kind of people who would follow those orders without hesitation.

It seems unreasonable to require everyone who follows orders to be an expert on constitutional law. Especially when the highest court in the land can't seem to agree.

Is it permissible to disobey an order that you merely believe is unconstitutional? What happens when your superior asserts that it is constitutional?

Biden can order seal team 6 to clear out scotus, appoint new judges. If congress denies, then send the seal team 6 to congress. Seal team 6 FTW

Impeachment? Wouldn't that also be an unlawful order?

https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

> The immunity the Court has recognized therefore extends to the “outer perimeter” of the President’s official responsibilities, covering actions so long as they are “not manifestly or palpably beyond [his] authority.”

I’m hoping that the assassination of a political rival would be “palpably beyond” the authority of the President.

Well assassination of a political rival might be but what about the killing of the perceived head of a terrorist organization who attempted a coup to overturn a federal US election? Sounds like a national defense concern that the president could decide to handle. I think this is logically in line with the ruling but is completely absurd morally.

SCOTUS explicitly says you cannot question the motive of a presidents actions when making a determination for what is protected and not.

And how, pray tell, is that compatible with them also saying that neither Congress nor Courts can call into question the motivation of the President for doing so? All the president need do is say "they were a national security concern" and they are now absolutely immune from anyone so much as presenting evidence in a trial that says otherwise!

The ultimate Congressional remedy is impeachment, which this ruling doesn't contemplate (except to reject silly arguments presented by the defense). However, the limits on congress and the judiciary are not absolute:

> Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority. It follows that an Act of Congress — either a specific one targeted at the President or a generally applicable one — may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions.

It's only the executives exclusive powers (which are more limited) that cannot be restrained.

>> 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.

> I would consider this an extreme knee jerk take, but it's Sotomayor saying it.

Wouldn't something like that be essentially an illegal order and therefore invalid? And/or something that would be trivial to fix (e.g pass a law saying it's not within the president's official powers to order a domestic assassination)?

How can it be an illegal order when this decision makes all of the Presidents "official actions" legal?

> How can it be an illegal order when this decision makes all of the Presidents "official actions" legal?

Because "official actions" doesn't mean "every action" or "every action attempting to use presidential authority," I think it has to be an action exercising the constitutional powers of the president.

For instance: for the purposes of simplicity, lets assume all legislation authorizing the president to take military action without prior congressional approval has been repealed, and the congress has not declared war on anyone or authorized the use of military force in any circumstances. The president then orders Seal Team 6 to assassinate a waitress who spilled coffee on him, ruining his lucky suit. That would be illegal order since the president does not have constitutional authority to take such action on his own without authorization by congress and that authorization does not exist.

So I guess a hypothetical path forward would be a prosecutor choosing to pursue the charge, and the defense pleading not guilty on the basis of it being an official act. It would then be up to the prosecutor to prove that this was not an unofficial act, without using motive as a piece of evidence. Seems backwards, like proving a negative.

How can you prove beyond a reasonable doubt that there was no official basis for an act? Especially when the response is almost certainly going to be, "the reason for the official action is classified".

> How can you prove beyond a reasonable doubt that there was no official basis for an act? Especially when the response is almost certainly going to be, "the reason for the official action is classified".

In my hypothetical? Because there's no congressional declaration of war or authorization of the use military force against the waitress, which can be determined by reading the journals of the house and senate.

I consider this to be very similar to the Business Judgment Rule that protects CEOs and executives against lawsuits from shareholders for actions they did in their job, even if their actions turned out to be a mistake and lost the shareholders a bunch of money. To proceed with a lawsuit, the plaintiff has to demonstrate that the executive took unreasonable actions which directly resulted in harm to the plaintiff. Basically, their actions were out of the scope of their mandate, and they can be sued.

For example, the CEO hires their clueless spouse to a high paying job and the spouse loses the company a ton of money. That does not sound like the CEO was doing their job, but rather it sounds like they were putting their spouse ahead of the company. Here a lawsuit would certainly be allowed to go forward.

https://www.investopedia.com/terms/b/businessjudgmentrule.as...

There is no such law for criminal acts.

The argument is that the Constitution is the law which applies here. Specifically, the powers given to the executive to execute their role and enforce the acts of Congress.

Which is essentially all encompassing

Haha, prosecute someone who only needs a tiny excuse to kill you with immunity.

To be clear: Sotomayor is interpreting the majority decision, not stating her own opinion. She's opposed to the interpretation in question.

(I can't tell whether the OP was confused by this, but the linked Tweet has enough people being confused by it to make it worth mentioning.)

Obama ordered an American Citizen to be assassinated via a drone attack, without a trial or anything. Should he be charged with murder?

https://www.amnestyusa.org/updates/is-it-legal-for-the-u-s-t...

He should be charged with war crimes, like more or less all US (and many other) presidents. Of course it's not gonna happen.

The fact that George Bush Junior is a free man is downright insulting

There's not much in geopolitics that isn't downright insulting. Different flags, same scumbags.

Comparing the idea of ordering the killing your political opponent with approving an operation with killed of someone related to an Al-Qaeda and even saying it was a mistake is weird, to say the least.

It sounds like you have no concept of the law.

> Obama ordered an American Citizen to be assassinated via a drone attack, without a trial or anything. Should he be charged with murder?

Yes.

A lot of people, myself included, expected some carve out for "official acts". There was never going to be blanket immunity and the Court was going to take the case just to agree with the DC Circuit Court of Appeals [1]. SCOTUS slow walked this case. They could've taken it back when they were asked to in December. They waited until the end of hte term to deliver a verdict. The verdict ensures that any trial court findings of "official court" are going to simply make their way back to this exact same court.

The majority opinion even had the gall to call the prosecutions "hasty" when we're largely talking about things that happened in 2021.

But this decision is so much worse than many (myself included) expected. Not only is there blanket immunity for "official acts" but there is presumptive innocence for anything on the peripherey. Even worse, if something is a statutory or constitutional power of the office of President, the reason does not matter. The reason can't even be considered in deciding if something is an "official act" or not.

So the president has the right to issue pardons with ultimate discretion. If they want to sell pardons, now they can. Why? Because the reason this "official act" happened is irrelevant. That's what the Court decided.

Same for selling judgeships or presidential appointments.

We already have the donor-to-ambassador pipeline [2]. Now we don't even need the ruse of it being a donation. The President can simply sell ambassadorships for personal gain.

That's what this decision did.

[1]: https://www.cadc.uscourts.gov/internet/opinions.nsf/1AC5A0E7...

[2]: https://campaignlegal.org/press-releases/new-campaign-legal-...

I hope when Trump is gone, one day, this fever will break and we can return to something resembling decency and decorum. He truly brings out the worst in everyone, left and right. Politicians used to resign when they were caught in scandal, now they lie, sue and spread misinformation when they get caught.

'Supreme Court Really Hoping Biden Has Morals And Won't Assassinate Them As An Official Act'.

All hail king...reads notes...Biden?

> Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans? It seems like that world would hamstring the president far too much.

The President shouldn't have the legal authority to conduct any drone strikes without a declaration of war from Congress. We've been ignoring the Constitution for a very long time.

There is the 2001 Authorization for Use of Military Force that a lot of the expanded War on Terror activity are nominally authorized under according to the Executive. Challenging that is up to Congress as afaik there's no standing for a random person to sue.

And Congress notably passed the dang thing and has pointedly refused to come back and limit it or curtail the admittedly expansive interpretations subsequent presidents have made of it, so I very much doubt they're going to ding a given president now.

Correct there's been several attempts to revoke or limit the 2001 AUMF and Congress has decided not to each time. It's pretty clear what is being done under the auspices of it too so failing to address the interpretation becomes a tacit endorsement at least at the institutional level. Personally I think it's been stretched to breaking but the fix is pretty simple and up to Congress.

> The President shouldn't have the legal authority to conduct any drone strikes without a declaration of war from Congress. We've been ignoring the Constitution for a very long time.

What part of the Constitution are we ignoring?

According to the Constitution, the President is the Commander in Chief of the armed forces. The Constitution does not say that war must be declared for the armed forces to operate. Thus, ordering a drone strike without Congress' input would seem well within the scope of the President's powers.

> What part of the Constitution are we ignoring?

There are a number of amendments that could be pretty reasonable argued to give citizens the right not to get killed by drone strikes.

Killed or targeted? There's a huge difference between ordering a drone strike on said citizens and ordering strike on legitimate military target that said citizens just happen to be in a vicinity of.

Is there? One is actively killing citizens the other is still a reckless disregard for human life in general.

Why are actions being taken against military targets outside of a declaration of war?

Is there a difference? Legally? Both would be official acts, right?

In the case in question, the former. https://en.wikipedia.org/wiki/Anwar_al-Awlaki

Can you give an example of a time when a "legitimate military target" needed to be killed so immediately that a unilateral presidential decision that also killed nearby citizens was warranted? My presumption is that there are very few circumstances where the threat of a military target is so immediate that killing nearby innocent civilians is justified over waiting to try to find a better time to attack the target. If anything, immediate threats that require action are generally threats to the nearby innocent civilians themselves, which would make such decisive action not particularly useful; I don't think anyone would suggest something like blowing up a bank where people are being held hostage, which seems like the closest hypothetical I can think of.

One might question how that standard applies to what Israel is doing in Gaza.

I would argue that the US law would not allow the president to order strikes like those that have occurred in Gaza on US citizens, but of course IANAL. I don't have any knowledge of what Israeli law allows or doesn't allow though.

It's also worth noting that what someone thinks is legal is not necessarily what someone thinks _should_ be legal; I imagine that almost everyone here has at least some laws that they disagree with, but that's separate from the question of whether the law exists or not.

If the US continues to ship them large amounts of foreign aid, aren’t we at least a little bit complicit?

Enemies are not static they can react to our policies. If our policies are never to kill anyone who is near a civilian, enemies would just always be near civilians.

Citizens, sure. That's a much weaker claim than what the parent said, which is "The President should not be able to conduct drone strikes without an act of Congress".

Drone striking (or otherwise killing) citizens without due process seems unconstitutional. Drone striking foreign targets does not have those constitutional protections.

> The Constitution does not say that war must be declared for the armed forces to operate.

It does. Armed forces killing people is a state of war. If not, it's policing then it's under the judiciary authority, not the president.

Huh? Federal law enforcement falls under the executive branch, not judicial. Have you even read the Constitution?

Federal (and state, and local) law enforcement are not empowered to kill. Their job is to bring defendants to trial, where the judicial system determines innocence or guilt and then determines the sentence.

If they were, the whole cop-killers, BLM, excessive use of force issue would not be an issue. The law would just say "Okay, a cop killed someone, that's their job, get over it." You can argue that the criminal justice system is too light on cops, but the fact that the criminal justice system is even involved means that killing people is not part of a cop's official job duties.

Qualified immunity is used as a defense in a lot of these cases.

Practically speaking, law enforcement does have broad authority to kill people. So long as that death falls under the training guidelines written by the department, then it's unlikely the officer in question will face any punishment.

Now, killing a person might be seen as a violation of their civil rights, entitling their estate to compensation for the death. But that's a punishment for the state, not the individuals involved.

That's muddling nouns a bit.

Law enforcement individuals have extremely limited authority to kill people, exclusively(?) based on self-defense.

The law enforcement system has the right to authorize the killing of people but is subject to judicial review.

Ergo, if a law enforcement individual breaks guidelines and kills someone, they're charged.

If a law enforcement individual follows guidelines and kills someone, then the system is charged. (E.g. state/federal lawsuits, consent decrees, etc)

Art. 1 sec. 8 does not say that and no other part of the U.S. constitution mentions war.

> Armed forces killing people is a state of war.

Real life is rarely this black and white.

Which is why we invented laws and legal systems to codify such things.

Did you commit a crime, yes/no? Let's bring it to trial.

The circumstances are messy in all real world instances, but the outcome is binary.

Refusing to even put a president on trial is more black and white, because it's a clear "no, not illegal" without even discussion.

Courts don't even decide yes/no. Maybe is an outcome. We don't know is also an outcome.

Doubly so since almost everyone stopped bothering to declare war after WW2.

>If not, it's policing then it's under the judiciary authority, not the president.

Wait, what? Executive branch pretty explicitly encompasses enforcement. The Justice Department is part of the Executive branch.

Unless by "Judiciary authority" you meant the Justice Department, and not the Judiciary branch of the federal government, and by "not the president" you were very specifically discussing the semi-independence the Justice department has from the president.

Congress has the power to declare war. But Congress has also passed the War Powers Act which states the President can use the military for short periods of time. Are you claiming the War Powers Act is unconstitutional?

The War Powers Act is exactly the type of law that the Supreme Court has been going after. Bills that give power that was meant for one branch of government to a different branch, or abrogating that power.

The problem with SCOTUS going after these laws is that they are a matter of practicality. If an attack is launched on the USA, the military and the President aren't going to sit back and let it happen, they will act.

When the constitution was drafted, time delays necessitated that the military and the President act autonomously for the most part. Congress couldn't convene rapidly enough to expect them to have much say in all but the largest and most drawn out conflicts.

The War Powers Act is codifying this implicit power. The framers never considered a situation where the President and Congress is watching a conflict play out across the world in real-time and making decisions. So it's literally impossible to say how they wanted this to be handled. That's why they gave Congress the powers to write laws.

And yet, now here we are in the 21st century, where it feels like we're on the opposite side of the time delay problem. Instead of the War Powers Act, what if we allowed congresspeople to use PEKs to vote by proxy in the case of an emergency (definition needed)? Surely that would be better than creating a all-but-in-title king out of the executive branch as concerns conflict?

The security issues around that are similar to the issues with electronic voting and have been covered exhaustively. You're creating the absolutely juiciest target for hacks and espionage. I would say they could meet by remote teleconference but that has issues now too with deep fakes getting better and better.

On a similar note the communication time has vastly narrowed but so has the ability to perform attacks.

Banning bills that transfer powers around government would also hamstring regulatory agencies, wouldn't it? While there are some other rules in place, agencies making law is fundamentally a transfer of power from the Legislative branch to the Executive.

Congress, the presidency, and the judiciary can’t pass to each other their powers. It’s indeed unconstitutional.

The War Powers Act is questionable. The US never declared war in Vietnam. The president simply sent troops to Vietnam knowing that they would end up fighting. But the president said he had that authority as commander-in-chief. The War Powers Act was supposed to address that.

If the president actually has the authority to send troops into combat without a declaration of war, then Congress can’t take it away from him, just like Congress can’t make it illegal to veto bills.

The War Powers Act doesn’t really set any punishment for the president if he ignores it. It effectively says that if the president does certain things (consult with Congress, follow certain timelines, issue reports) then Congress won’t complain. Presidents have generally followed those procedures without admitting that’s what they’re doing (they issue reports “consistent with” the Act, but never admit the report was required by the Act). But if a president completely ignores those requirements, Congress has to figure out what to do about it; which is exactly what would happen if the Act didn’t exist.

> > The Constitution does not say that war must be declared for the armed forces to operate.

> It does.

Since the Constitution is a publicly available document, would you please point me to the spot where it says that? Thanks.

There is a certain amount of deliberate ambiguity to Article I Section 8 -- take a look at e.g. https://avalon.law.yale.edu/18th_century/debates_817.asp and you can see that the wording "The Congress shall have power to [...] declare war" was revised from "make war" in the earlier drafts. Madison clearly felt that Congressional authorization was on some level required to conduct a war, but that the Executive should be free to act quickly in self-defense, e.g. to repel an invasion.

Like a lot of things, this seems to fall under the idea of "convention" and not law. This has been an ongoing problem in recent times. Practically speaking, Congress is a rubber stamp for matters of war.

Theoretically, they can withhold funding from the military. But seeing as the Treasury Department falls under the President, it's unlikely they can actually do that.

Legally though the power of the purse also lies with Congress. If we're throwing in extra constitutional actions all bets are off though because we're no longer bound by the rules of what is allowed and it's down to the old power of might making right.

"Withhold funding from the military" it's actually better (or worse) than that. The US doesn't have a standing army technically speaking, it cannot constitutionally. The post war military has been continuously reauthorized twice yearly since the end of world war 2. Congress can refuse to reauthorize continuation of it and the treasury can't do anything about it.

I don’t think we covered that in my history classes. Congress’s website about the constitution agrees with you and adds additional details ( https://constitution.congress.gov/browse/essay/artI-S8-C11-3... ).

Not quite. This is a great survey of the many issues & opinions on the topic that have been at play since the beginning of the Constitution: https://constitution.congress.gov/browse/essay/artI-S8-C11-3....

> Armed forces killing people is a state of war.

There hasn't been a single year of my life where US armed forces weren't killing someone somewhere in the world. The US military has been involved in armed conflicts around the globe in nearly every year since WWII but it hasn't declared many wars.

https://en.wikipedia.org/wiki/List_of_wars_involving_the_Uni...

https://en.wikipedia.org/wiki/Timeline_of_United_States_mili...

Policing, or law enforcement, at the Federal level is also a part of the executive branch and under control of the President.

The current standing precedent/law is the President only has to notify Congress within 48 hours of an action and must remove troops within 60 days if Congress has not approved an extension. Formal declarations of war are separate from short military actions legally. It's an extremely messy part of constitutional law precisely because of the split between the power to do and the power to authorize.

The Constitution forbade the US even to have a standing army. A standing navy was instituted, however.

The Constitution does not forbid a standing army, it merely mandates that funding be renewed every two years. This is functionally a standing army.

> What part of the Constitution are we ignoring?

Drone strikes on foreign targets are most analogous to the historical practice of issuing “letters of marque and reprisal,” which allowed private actors (privateers) to act on behalf of the state to take out pirates.

Issuing such letters is an enumerated power of Congress, not the Presidency. So if the President does so unilaterally, they are acting outside their Constitutional authority.

The risks of abuse to military power are real and significant, which is why the power was placed in the body closest to the people - so that such actions would be consistent with the public will.

https://constitution.congress.gov/browse/article-1/section-8...

> The Constitution does not say that war must be declared for the armed forces to operate.

Yes it does, by reserving for Congress the right to declare war. Obama's drone strikes were carried out under the 2001 AUMF against al-Qaeda and the Taliban.

The president now has legal authority to do whatever he wants.

At the same time, the president's agencies no longer have the authority to do whatever they want.

So I guess the president can order the military to drone strike the FCC if he wants at this rate. I don't see what influence the Constitution is still going to have at this point.

> We've been ignoring the Constitution for a very long time.

Since Thomas Jefferson sent Navy & Marines after the Barbary Pirates without consulting Congress.

I take your point, but quick action is occasionally necessary. Presidents knowing that their actions could be second guessed are more likely to use the minimum force needed to achieve an objective.

We ask every soldier to put their life on the line. But do we dare ask our President to subject himself to our laws?

I mean, if Obama went to prison for the drone strikes he ordered, his sacrifice would be less than many common soldiers have made.

I want Presidents willing to put their lives on the line and their actions under the law. Is that too much to ask?

Not less than the average sacrifice a soldier made. The average soldier would not sign up if they had a significant chance of going to prison afterwards.

Yes it's too much to ask every president to significantly risk jail time for being president.

yes, because throughout history this has been abused. This was the reason that Caesar crossed the Rubicon - his opponents were all queued up to sue him into oblivious on his term as counsel ended.

Why are we okay asking soldiers to die, but asking the President to risk prosecution and be subject to the law is "too much"?

Because we need governments and can't afford to make it so that anyone who ever wins elections spends the rest of their life fighting off lawsuits. Wars happen, and governments exist, people forget that laws are used as much to impede good governance as they are to enforce good governance.

What would be the consequences if we did allow Presidents to be prosecuted and some of them did spend the rest of the life fighting prosecutions?

It seems to me the consequence would be that we would have Presidents who act carefully to not break the law. Are there any other consequences?

I've heard it said that "democracies are where the people in power lose". We've all seen "democracies" where the party in power never loses; those aren't real democracies. Likewise, I would say nations that are truly governed by law are where those in power face legal prosecution.

(Also, what's so bad about prosecution? If a person is innocent, the legal system will find them to be innocent, right?... Right?)

The consequences would be Lawfare.

And what's the consequence of that? Presidents who are extra careful to obey the law because they know they will be highly scrutinized?

All this seems so rooted in "what do we owe the President?" while my questions here are more assuming the President is a servant of the people and is thus making a sacrifice to serve the nation and is willing to accept the risks that comes from making hard choices while being subject to the law.

Or, to put it another way:

There are good and competent people who say "I'm willing to be President and be subject to the law, I'm willing to do both". Why can't be pick a President from that group?

Because doing so gives the President tons of incentives for bad behavior. It's a fun case where "risk of prosecution" would result in tons more questionable behavior then less.

Great rhetorical question, but do consider these points: 1. we ask everyone to do their individual jobs. In a soldier's case, loss of life is a job hazard. In the President's case, making tough decisions that could kill soldiers and civilians is a job hazard 2. The assassination rate for US Presidents is 8.7% (4/46 Presidents were assassinated). 3. There were 1,922 US combat deaths in Afghanistan (ref 1) and at the peak of the war, there were 100,000 troops there (ref 2). If you ignore all the other years of deployment, a US soldier's death risk in Afghanistan was 1.9%

Numbers are hard when they go against our intuition, but every US President is taking a comparable risk to being a soldier according to these numbers.

Obama took the risk of being a President while Black Trump took the risk of being a President while Orange

Ref 1. https://en.wikipedia.org/wiki/Coalition_casualties_in_Afghan... 2. https://www.militarytimes.com/news/your-military/2016/07/06/...

Then, what are american solidiers doing in Jordan dying out there. The reality is that we are sending troops using loopholes, and that's costing such unnecessary complexity.

So the US shouldn't be able to conduct any kind of military operations against any country they haven't declared war on?

Correct.

So the US has to declare war on Russia and China in order to support Ukraine and Taiwan? Declaring war on those superpowers would be a serious act of aggression and start WW3.

That depends on what you mean by "support". Selling weapons is not in itself an act of war, whereas using weapons is.

Not without timely notification of and authorization by Congress.

So shooting at the Houthi rebels[0] would also require a declaration of war? Would that be against Yemen or the Houthis, who don't have a country?

https://apnews.com/article/yemen-houthis-red-sea-shipping-ce...

While I don't agree with the strikes, such action was generally authorized by Congress (thanks to the "war on terror") which was never since rescinded by Congress. So was not unconstitutional.

The constitution clearly says that a declaration of war is needed, and only short periods of action that are necessary in the interim can be taken by the president absent that. Congress does not have the authority to simply pass a law invalidating that. They did it, but it is most certainly not constitutional.

> Congress does not have the authority to simply pass a law invalidating that. They did it, but it is most certainly not constitutional.

The ones that should judge if it's not constitutional just passed judgment stating that a ex-president is above the law. I think they can invalidate if a president explicitly needs declaration of war, given recent history I'd bet a lot they would find it totally constitutional.

Then the question is whether the law passed by Congress was unconstitutional, which would have nothing to do with Obama. First someone with standing would have to challenge the law and then it would make its way up through the courts. But I'm pretty sure the Supreme Court would uphold it (as much as I would want it struck down along with the Patriot Act and other "war on terror" measures).

https://mwi.westpoint.edu/the-law-of-armed-and-unmanned-conf...

> As the Supreme Court concluded, the United States is in an armed conflict with al-Qaeda, and Congress’s 2001 Authorization for the Use of Military Force—along with the president’s commander-in-chief authority under Article II of the Constitution—provides ample domestic legal authority to conduct military operations against al-Qaeda.

tl;dr: We haven't been ignoring the Constitution for a very long time.

We detached this subthread from https://news.ycombinator.com/item?id=40848146.

> We detached this subthread

What does that mean? I'm not familiar with detached subthreads.

At the point where the thread was "detached", it is as if someone started a new top-level thread.

Interesting, thanks!

I wonder what the reason was, though.

Just that it went on a somewhat offtopic tangent (war declarations and whatnot), and I was trying to prune the top threads.

Curious how an ostensibly "conservative" court can ignore the concept of enumerated powers, the constitution clearly does not grant immunity to the President, so the conservative court invents immunity when none is explicitly granted.

Indeed, the concept of immunity is recognized in the American constitution for legislators in a limited way, so this isn't an oversight by the framers corrected by Robert's conservative majority, rather the lack of immunity for the executive is a feature and not a bug of our constitution, and all republican forms of government.

Ironically the American president now has more power than the King of England, George the III, at the time of the American independence. King George had to follow the laws of Parliament, as did all Kings of England since the passage of Magna Carta some 500+ years prior.

As of today our President no longer has to obey the Constitution or the law so long as the act is deemed "official" by the conservative majority.

Unfortunately presidents on both sides have used executive order as a way to bypass the process.

Combined with Chevron doctrine precedent, agencies could enact what the executive branch wanted if the standard quo process failed

Good thing the the courts just reigned in the powers that federal agencies claimed via the chevron doctrine. https://www.scotusblog.com/2024/06/supreme-court-strikes-dow...

They also cite the Federalist Papers in comically-vague support of their ruling, while the dissent cites the Federalist Papers right back to note that the founders had executive immunity very much on their minds and left it out of the constitution extremely on-purpose because they regarded subjecting the President to the same law as everyone else to be key difference between the system they were setting up, and monarchy.

> Curious how an ostensibly "conservative" court can ignore the concept of enumerated powers, the constitution clearly does not grant immunity to the President, so the conservative court invents immunity when none is explicitly granted.

Roberts' opinion covers this, as do many discussions of textualist interpretations -- not being set out in the text specifically doesn't mean that it doesn't exist, for textualist interpretations. Roberts' example is separation of powers. There's no "separation of powers clause," but the concept is pretty clearly set out in the text anyway. They say the same is true for immunity for public acts, and they provide reasoning. I disagree with some of the reasoning, but there are much more tenuous things read into the Constitution by the Supreme Court than this one.

And if the Constitution includes immunity for public acts, so much the worse for the Constitution!

That's not really a coherent stance though, given how many "protect the constitution" laws they keep overturning in the name of "it's not actually written in the constitution".

Because they're not conservative. They are radical reactionaries, to use the word that Moldbug himself coined. Essentially Republicans got tired of things changing despite their conservatism, got angry, and now it's not enough to slow change - they want to rewind us to the values of the 1980's or even the 1950's. This perspective is why they refer to any post-y2k mainstream social values as "activism".

The Democrats have now become the conservative party. Both in the abstract of wanting slow cautious change, and in the concrete principles that have long been held as conservativism - belief in American institutions, strong foreign policy to spread those institutions, the rule of law, and now even fiscal responsibility with having led the pull up from ZIRP!

This was downvoted at the time of this comment. Shame on the Republicans in this thread that I have my fellow programmers to blame for the fall of american democracy

It's like nobody can take criticism these days, probably because they're overwhelmed by the amount they see.

I went back and forth whether to include a paragraph about how this swapping also explains the dynamics around things like DEI training, but decided against it so I wouldn't be getting it from both sides. Things were more pleasant when most people got this energy out watching football.

As it should be. If someone is going to make a broad claim about an entire political party - be that Republicans or Democrats - they need to show the evidence. You don't get to make sweeping negative statements about large chunks of the country without backing it up.

I don't know what kind of evidence you're thinking. My argument is based on the straightforward policy positions of the parties, and especially how the times have changed yet many positions have not, with some policies even changing in the opposite direction of social changes. Other core policies have been outright rebuked - can you imagine Reagan appeasing Russia by shunning countries desperately wanting to be our allies?!?

If you want to point me at other conservative principles I skipped over but seem overridingly relevant to you, please do. But even for the social issue of religion, which seems to be the defining aspect for many people, the figureheads are churchgoing Biden versus philandering Trump.

To a large extent this immunity is inherent in the enumerated powers. Consider this general case: The Constitution enumerates specific powers to the executive branch, and hence President. Congress passes a law that makes those same actions illegal if performed by a normal citizen. If this law applied to the President, then that would mean that Congress could nullify the enumerated powers granted to the Executive, making those enumerated powers meaningless. So it makes perfect constitutional sense that actions performed by the President as part of his job that that are within his enumerated powers cannot be made illegal by Congress.

That core concept of immunity is pretty solid and essential, it is the details that are problematic, in particular the fact that the courts have interpreted "official" acts so broadly in the past in cases of qualified immunity makes one worried they will do the same here.

Sotomayor's dissent ends:

> Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.

> With fear for our democracy, I dissent.

Chilling words.

I don't understand the personal gain part. How is that official capacity?

The criminal act is in official capacity. The benefit is personal.

The majority specifies some ways this may apply that very much make all kinds of things directly shielded by this ruling, and indirectly shields more by restricting the use of evidence that has to do with official acts.

The way they’ve set this up, the people involved have a lot to do with it. It sure looks like the President can now openly discuss corruption like selling secrets or pardons with e.g. relevant cabinet members, and none of that can be prosecuted, nor can it be evidence presented in a prosecution of crimes.

The immunity granted is insanely broad.

The wording is definitely not clear enough in that section, however I don't think this is the intended reading (and I'm hoping we get clarification on this) -- the pardon would be an official act, but according to footnote 3 the sale of the pardon and discussions about that would not be included in the bar on evidence of the official act, because they're not considered part of that official act. It seems (with the footnotes considered) to be a very narrow interpretation of "official act," which does seem to contradict the plain reading. Very annoying.

Let's imagine that a president decides to, say, stop aiding Ukraine, and in exchange, Putin promises said president a couple billion dollars.

Stopping aid to Ukraine is definitely an official act, which, on its own, is within their powers. Trading said official action for the billion dollars is what is fraudulent, but if I am understanding the Roberts opinion correctly, it cannot be prosecuted, because the motives of the president should not be used as part of the ruling of immunity. So... free bribery, as long as said president pays their taxes.

Because it involves an official act, like a pardon. Sell pardons for dollars? Immune!

It clears the way for Presidents from either party to carry out abuses they wouldn't have dared consider otherwise. All they'll need to do is find or make an angle that qualifies it as an official act.

> All they'll need to do is find or make an angle...

that's not anything new though, Obama's drone strikes weren't ordered until his lawyers felt they had a very good defense for him in case he was charged with assassinating US citizens without due process.

Is she forgetting that impeachment exists?

Why is sottomayor the only justice drawing this conclusion?

I think the saddest thing is how lying under oath during a Senate confirmation hearing doesn’t revoke the confirmation.

Basically Kavanaugh did what everyone said he would and he overturned US v Nixon even though he lied about it during his confirmation even though before he argued repeatedly it was a bad decision. So either he lied or he miraculously changed his beliefs for the duration of the Senate hearing.

https://www.peoplefor.org/press-releases/fact-check-kavanaug...

I think the saddest thing is that judges are expected to answer how they would rule on specific cases to be confirmed. What is even the point of an independent supreme court, if politicians can have guarantees as to how specific cases are decided?

Kavanaugh was not forced to lie under oath, he chose to.

I think the saddest thing is that judges are expected to answer how they would rule on specific cases to be confirmed.

That’s the sad part? We have different perceptions reality.

Appreciate your moral courage in going against the grain on HN. Not as sad, but still deeply sad that a site that prohibits ideological battle in its guidelines has become powerless to stop Twittermobbing on here.

I'm normally one who will defend HN as being a haven for calm, rational disagreement, but these Supreme Court ruling discussions are really bad.

Someone's going to come along and tell me that the vitriol is necessary and good because the Supreme Court is so clearly and unequivocally evil, but that's just the point. Even the threads on the Israel-Hamas war have had better-quality discussions with more nuance than the hot takes and hatred that have been plaguing HN the last few weeks on these threads.

We can do better. I've seen it.

But if one really does believe the rulings are that bad and that they portend very bad things to come then a person should say as much. I can calmly and rationally say that these decisions are terrible. It’s not, in my opinion, hyperbole for me to say so. I could be wrong in my assessment but I don’t think I am.

For the first time in American history a select group of people are immune from the law as long as the acts occur while carrying out their jobs. That’s a big deal. I can see that soon someone will claim immunity because they carried out an order of the President and their immunity extends to those carrying out “official acts” of the President.

I'm genuinely curious--what should the senate be voting for/against when they confirm a supreme court justice, if not how'd they rule on certain topics?

How about their qualifications for the posting? I'm not sure I'd want to appoint anyone to a judgeship who already knows how they'd pass judgement on a case that's not before them. Otherwise what's the point of a hearing or a trial?

Nominees for the supreme court usually have already been judges and written legal opinions. A senator could say "I read the facts of [some past ruling], and I disagree with the ruling, and therefore doubt their competency to be on the supreme court."

Additionally, supreme court nominees are not selected at random--it's no accident that conservative presidents nominate conservative justices and liberal presidents nominate liberal justices. Nominees are selected by the president because the president thinks they'll like the way the nominee would rule in the future.

Qualified judges have a broad spectrum of opinions. When faced with the question, "should _this_ person have a lifetime supreme court appointment," I don't see how a senator could avoid considering how a nominee might rule in the future.

An "independent supreme court" historically means "independent from the executive", as prior to the formation of the United States government under the constitution, judiciaries were part of the executive.

It does not mean that Congress can't have political qualifications for justices, and in fact George Washington had a failed nomination because his nominee was politically unpopular.

> I think the saddest thing is how lying under oath during a Senate confirmation hearing doesn’t revoke the confirmation.

Impeachment is a difficult process. Given that Trump survived (twice), I'm not sure this would work:

https://www.axios.com/2024/06/14/scotus-supreme-court-claren...

> [Kavanaugh] lied about it during his confirmation

Kavanaugh said Roe was "entitled the respect under principles of stare decisis" and similar remarks. But that still leaves it in a category that can and has been overturned by past courts. Here are a few such examples where they overturned settled precedents entitled to deference under the principles of stare decisis: https://constitutioncenter.org/blog/a-short-list-of-overturn...

Once you know that such rulings can and have been overturned before, you can see that he never once said anything at all like "I won't (or can't) overturn Roe" in his comments. You can find his comments in full here:

https://www.factcheck.org/2022/05/what-gorsuch-kavanaugh-and...

You can say that this makes his comments misleading to people who don't realize that stare decisis doesn't mean that SCOTUS can't or won't overturn a past ruling, but the fact that "everyone said he would" overturn Roe really cuts against that his statements actually mislead anyone.

That site said he praised the decision. That's a far cry from lying under oath that he wouldn't repeal it. Is there anything more specific that he said?

Well he previously had said it was a very wrong decision, then praised it to get confirmed & then pretty quickly overturned it. You’d have to squint really hard to see the testimony as honest.

Since that site includes a very very small quote out of context, here's a link to the actual transcript of the hearing [0].

> So I think the first thing that makes a good judge is independence, not being swayed by political or public pressure. That takes some backbone. That takes some judicial fortitude.

> The great moments in American judicial history, the judges had backbone and independence. You think about Youngstown Steel. You think about, for example, Brown v. Board of Education, where the Court came together and knew they were going to face political pressure and still enforced the promise of the Constitution.

> You think about United States v. Nixon, which I have identified as one of the greatest moments in American judicial history, where Chief Justice Burger, who had been appointed by President Nixon, brought the Court together in a unanimous decision to order President Nixon, in response to a criminal trial subpoena, to disclose information. Those great moments of independence and unanimity are important.

[0] https://www.govinfo.gov/content/pkg/CHRG-115shrg32765/pdf/CH...

Kavanaugh "lied" because in 1999, he criticized an aspect of the Nixon ruling but 19 years later, in a response to a softball question from a Republican senator, called it "one of the greatest moments in American judicial history", repeating what he wrote in 2016?

[0] https://transcripts.cnn.com/show/cnr/date/2018-09-05/segment...

[1] https://scholarship.law.edu/cgi/viewcontent.cgi?article=3383...

The essence, from the majority opinion

   https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

> nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority.

> And he is entitled to at least presumptive immunity from prosecution for all his official acts.

> Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial

> The Constitution does not tolerate such impediments to “the effective functioning of government” [as when] the possibility of an extended proceeding alone may render [the President] “unduly cautious in the discharge of his official duties.”

> In dividing official from unofficial conduct, courts may not inquire into the President’s motives.

> Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law

> Enduring separation of powers principles guide our decision in this case

Supreme Court history has no broader grant of immunity based on principles less definitive.

> Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial

Wouldn’t this have made it impossible to prosecute Nixon for Watergate?

This is the big red flag for me. A court can't review whether the conduct was official. This seems like the court wants to remove the checks and balances between the government branches.

Yes, immunity for "official duties" sounds reasonable until you read all the justices own words and realize how purposely broad and far reaching these duties are.

Bit of a stretch to claim that was within his official duties.

Folks, the blueprint for a American dictatorship has been created and you'll be a fool and a idiot to think otherwise.

If Trump gets elected, he will never give away his power easily.

Folks, the blueprint for prosecuting Trump has been created.

If you read the complete ruling, the justices work to clarify how "official" and "unofficial" acts apply to the case at hand. For example, many of the conversations had with Pence and the AG are considered off limits for prosecution as they are "official." Other charges, however, can stick if the lower court decides:

> Trump can point to no plausible source of authority enabling the President to not only organize alternate slates of electors but also cause those electors—unapproved by any state official—to transmit votes to the President of the Senate for counting at the certification proceeding, thus interfering with the votes of States’ properly appointed electors

The damning part starts on page 27 of the ruling[0].

[0]: https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

what a dramatic take. surely you haven't read the actual opinion.

for posterity, this is "the blueprint for a [sic] American dictatorship" to which you refer:

https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

I'm just going to leave this here: https://news.ycombinator.com/item?id=40848935

i'm a little busy cutting through the actual opinion at the moment. maaaybe i'll get to this Vox journalist's own interpretation of it when i'm done. no breath should be held though.

Just to let you know that he (like the rest of us) have already read it.

> Just to let you know that he (like the rest of us) have already read it.

exceedingly doubtful.

> exceedingly doubtful.

I hope you read Justice Sonia Sotomayor’s very important dissent while you're at it.

Nobody who actually read the ruling would link to a media take on it, or make a silly comment like this. The dissent is part of the package, published together. THere is the majoriy opinion, often a dissenting opinion, and sometimes (like here) even more.

Some people actually have a clue what's going on. It takes work, you can't just lazily consume nonsense from journalists.

Perhaps the simple solution is that all presidents should serve 15 years in jail after serving their term.

Then only extremely socially minded people would dare to do the job.

There was a similar sci fi story I read. At the end of a war the rule was that all allied ( not enemy ) generals would be executed. The idea was that war was such a horrible concept that to lead one would require extreme sacrifice and social consciousness on the part of the leaders. War was legal and to be fought without limit however on conclusion all leaders would be put to death. I don't remember the author or the story name.

… so wars, once started, may never end.

If there's no downside you just do your worst.

Look at it from the perspective of the president near the end of their term.

One of the alien species in https://en.wikipedia.org/wiki/The_Garden_of_Rama has this rule. The octospiders.

That was the story. Thankyou

Re: war analogy. Executing all allied generals at the end of the war would enable opponents who elevate winning generals at the end of the war. Guess which side would win?

Maybe we can stop acting like the Founding Fathers were political geniuses. They created a system where the only real recourse against a president is political, and a political system where political recourse is essentially impossible. A two party system is the logical conclusion of a first past the post voting system, which they have created. It is a bug, and fixing it is also effectively impossible.

I mean, they were pretty good. The founding documents addressed many problems that been seen in British political history. I think they may have lacked tools to prevent two party rule, but some were aware it would be a problem.

From George Washington's presidential farewell address: "However [political parties] may now and then answer popular ends, they are likely in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion."

Washington’s farewell address is exactly what I’m referring to. Hoping that people won’t form political parties rather than understanding that they are the logical result of the system that’s been created. No matter how nicely you ask, parties will form.

Just as another example, the Framers forgot to even mention that courts could strike down unconstitutional laws, causing a political crisis that came up only 15 years later. Oops!

This fails to acknowledge that today's decision has a weak/non-existent constitutional basis.

I defy anyone to craft any political system or subset thereof that correctly anticipates societal shifts over the course of two and a half centuries.

You don’t need to anticipate societal shifts, you need to empower the political system to handle them.

As for the longevity of the U.S., there’s a strong argument that it has in fact not lasted 250 or so years, and that the reconstruction era amendments created a qualitatively different, more centralized country. But even if we ignore that, the U.S. has a lot going for it that has nothing to do with politics. Two oceans, peaceful neighbors, and more natural resources than we knew what to do with that we bought for practically nothing.

The US emerged from WW2 as basically the only advanced economy that wasn’t flattened, did essentially zero introspection and assumed our politics were superior. And yet we have open bribery of politicians, and the highest court opened the floodgates for the wealthiest to donate to politicians. The only thing left is to allow politicians to keep donations for personal use.

Europe has surpassed us in life expectancy, and soon China will surpass us in GDP. And no matter how much free speech we have, we can’t have a conversation about it because the media is weaponized to distract us.

Europe's lifestyle is subsidized heavily by the American defense industry and they had better buckle in if Trump wins and starts more seriously winding down America's defense commitments there

There is approximately zero chance Trump would redirect military spending towards healthcare for regular people. His main accomplishment last term was a trillion dollar handout to corporations. He doesn’t represent you and me.

Isn't it a benefit to the US for other countries to have weak militaries and be dependent on the US for defense?

It doesn't quite follow that you highlight the need for a political system to handle shifts, then suggest that amending the constitution is not such a form of flexibility, but a transformation into another country entirely.

Normal amendments are fine. The 13th, 14th and 15th amendments weren’t just any old amendments though. They were passed via a non-political means (or if you take Clausewitz’s opinion, that war is a continuation of politics by other means, it is still a non-constitutional means), effectively without the southern states’ consent.

Almost everyone today thinks the reconstruction amendments were good, but the fact that we had to fight the bloodiest war in our history to get them is not a compliment to our political process.

The 10th amendment was supposed to restrain the federal government to a few enumerated powers. It was gutted via interstate commerce being everything, and you can't give it up because people will start screaming about the civil rights act or the EPA or something.

President, as envisioned by founders, should barely even matter outside of war.

There was also a pretty significant constitutional crisis in the middle of that that involved an actual war between states with the deaths of many Americans to settle it.

Whether we have adequately updated the constitution along the way to cover the new realities is a valid question, but governing by just what the original founders wrote doesn't have a great track record either.

> the civil rights act

How would you square the 14th amendment’s equal protection clause with enumerated powers?

The 14th amendment is a restriction on government. Civil rights acts on private entities involved in intrastate trade.

CRA also expressly allows racism unlike the 14th. For instance the civil rights act allows a business to preferentially treat an Indian in a near reservation (but off res) business while outlawing discriminating say in favor of blacks near a historically black neighborhood.

But the 14th amendment didn't actually work in practice. Nearly 100 years later and many states had explicitly racist laws and policies - in some cases supported by the Supreme Court - and those that the 14th amendment were supposed to protect were disenfranchised.

If the 14th had actually worked then the Civil Rights Act wouldn't have actually been needed, but there is a lot of hard evidence that it, or something like it, was needed.

> A two party system is the logical conclusion of a first past the post voting system, which they have created. It is a bug, and fixing it is also effectively impossible.

AFAIK it only mandates it for the President. We're free to elect representatives and Senators how we please.

There's no federal dictate on how electoral college votes IIRC. Sometimes they go rogue,though it may violate state law.

There is only a mandate for how the electoral votes cast by states determine who becomes president, but now how states cast those votes.

Some states cast them all for the popular winner in that state. Some split them proportionately among the top scoring candidates. Some states have agreed to a pact that, if enacted by enough states, will switch those states to casting their votes for the national popular vote winner.

https://en.wikipedia.org/wiki/National_Popular_Vote_Intersta....

In theory a state could hold ranked choice votes among any number of candidates and cast their electoral votes for the final ranked choice winner.

Even the primary system is something managed at the state level.

So a lot could be done but it requires changing state laws or potentially state constitutions.

They wrote the document defining the currently longest running continuous government in the world.

Is the Constitution perfect? No.

But it's still fair to call them geniuses for what they accomplished.

Also, you are arguing the Founders interpretation of the Constitution is the same as the current Supreme Court. I'm not sure they would agree, but there's no way we can ever know.

> They wrote the document defining the currently longest running continuous government in the world.

This is untrue: https://en.wikipedia.org/wiki/Outline_of_San_Marino

Surely, the UK government predates the US, dating back to at least Cromwell, so 17th century, and tenuously as far as Magna Carta (and even Alfred tbe Great if you like, so deep deep medieval).

It's not even clear what "longest running continuous government" means or how it would be defined.

By that logic we drop everything and adopt the government of ancient rome because its one thats good for at least a thousand years by precedent

> the currently longest running continuous government in the world.

the Isle of Man goes back to 1000 or so

the current UK system is essentially identical to that of 1689 and has legal governmental continuity since 1066

If anything that is more impressive given the tiny size of the UK, few natural resources, and miserable weather.

Hey! The weather is perfect for working all year round and never doing anything nice!

I think you mean that the US has the longest continuous running democracy - not just government [1] I think this true and I agree with you that the while the constitution is not perfect, it is still an incredibly impressive document.

[1] https://www.weforum.org/agenda/2019/08/countries-are-the-wor...

I find that list very questionable. I'm Swedish and while yes, we sorta got general voting rights for men in 1911, we didn't get truly general voting rights for men until 1918 and women 1919.

However, before that you could vote if you had enough captial. Is that democracy? That list says it isn't whilst saying that America, in which minorities and women could not vote, is a democracy. That seems like a line draw specifically to be able to say America is the oldest democracy, very disingenuous.

If you consider minorities and women to be people then America didn't become a true democracy until 1965.

Founding Fathers didn't write the constitution.

They wrote the Articles of Confederation which failed leading to the Framers writing the Constitution.

The Founding Fathers created a government that:

- Led to a bloody civil war that was the most deadly war in human history (until WWI), over 600,000 Americans dead, just ~75 years later;

- Largely wiped out the indigenous people of North America;

- Enshrined chattel slavery;

- Denied the right to vote to women (and in fact all non-white people); and

- Has been involved in, responsible for and/or complicit with many coups in the rest of the world [1].

Maybe it's not the best thing to celebrate.

[1]: https://en.wikipedia.org/wiki/United_States_involvement_in_r...

The Taiping rebellion started before the American civil war and lead to far more deaths. On wikipedia the estimate is 20-30 million. Outside of that, just going to the wikipedia page for deadly wars will find many that dwarf the American civil war.

> - Denied the right to vote to women (and in fact all non-white people); and

It was up to the states to decide who could vote. So depending on the state you had woman voters [1].

[1]: https://www.nps.gov/articles/voting-rights-in-nj-before-the-...

Don't forget that we had a civil war.

It also goes the other way. A recourse against the only elected official of the executive is also political in itself. Without immunity, any of the thousands of prosecutors could charge, blackmail and kidnap any predidents during and after their terms. This would make Presidents effectively answer to the courts and not the people.

Are courts not made up of the people?

kidnap? what are you even are you talking about?

This has to be one of the worse courts in the last 100 years.

For a man who talks so much about wanting to protect the legitimacy of the court, Roberts has done more than anyone in recent history to destroy it. In the best case, Roberts will have brought about the end of SCOTUS in its current form as a reaction to the blatant illegitimacy and corruption he allowed under his watch. If the US survives the next couple decades, the Roberts court will be talked about in the same light as the 3/5ths decision.

Article III of the U.S. Constitution is incredibly brief [1].

I propose the Supreme Court be reconstituted such that for each case a panel of judges from the appellate courts is chosen by lot. They hear that case, write their opinion, and then go back to that work. New case, new lot.

Having a permanent bench of judicial oligarchs made sense before telecommunication. It doesn’t anymore. Every ancient democracy used randomness to control corruption. I think it’s time we took a lesson from them.

(Note: this could be done by statute. How the supreme Court is constituted is entirely left to Congress.)

[1] https://constitution.congress.gov/constitution/article-3/

Prediction: trump wins presidency. Midterms swing hard towards Dems. Next president's Congress reforms supreme court.

How would a president reform the judicial branch? That power is in the legislature's hand.

After today? Easy: the entire court is loaded into a black helicopter in the middle of the night and never seen again. The White House spokesperson says, winking, “The White House officially has no comment.”

This quickly becomes a standard ritual at the changing of each administration, and an accepted job hazard for incoming justices.

Oh, look, the moment decisions don't go the way I agree with, we throw democracy and institutions out of the window. Who's a "threat to democracy" now?

Good on you!

Not a window, a helicopter.

I’m not saying it should be done, but that’s the reductio ad absurdium this decision leaves us with. The aspiring despot’s toolbox has been converted into a full-blown machine shop.

When did the discourse become so childish? Official acts is pretty clear and all of the fascination with the new standard will be derived from the gray area where reasonable adults disagree but the president can’t just order a bombing run on Toronto or murder political opponents now anymore then he could last week.

i think the thrust of the courts opinion today is that it’s not at all clear what’s official and what’s not and even if you can delineate what’s official, prosecutors are unable to use anything that isn’t public record and “unofficial” in their case, which eviscerates any real ability to enforce accountability.

In the dissent, they call out that what Nixon did wouldn't have been prosecutable under this interpretation.

If you can't enter private comms into evidence, all a president need do is privately communicate the disappearance of someone, domestic or foreign, and that evidence would be barred from any possible court cases.

Of course, you could still impeach, but no criminal prosecution could occur. If you're 35, at worst (legally) you'd lose out on your remaining term.

The implications of this ruling are absurd, and rife for abuse, should one decide to go rouge.

I read the ruling, and my takeaway is that either a) "official acts" is so overly broad that virtually any action could be done as an "official act", or b) "official acts" is very, very unclear.

E.g. from the court's opinion:

> Whenever the President and Vice President discuss their official re- sponsibilities, they engage in official conduct.

It's not a huge leap to infer that the President, as Commander in Chief, is engaging in official conduct any time they ask the army (or its many contractors) to do something.

The only thing the Constitution says is:

> The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States

There's nothing in there that says they can't be used domestically, or for what purposes the President can control them. There could be some quibbling about what "actual Service" means, but I suspect it becomes recursive to "whatever the president says actual Service is".

The specific reason that everyone is freaking out is this part of the opinion:

I.e. the president's motive is unquestionable, the only question is whether the action was taken via some power granted to the President. If it is, the President has immunity, and the president has _very_ broad powers.

Whenever the President and Vice President discuss their official re- sponsibilities, they engage in official conduct.

This is a misleading partial quotation. In the context of what they were saying, the president has the presumption of immunity, but it is not guaranteed. They specifically remanded the issue of Trump trying to get Pence to break the law to the lower courts to decide whether there was immunity. They did not say there was blanket immunity.

The question then becomes whether that presumption of immunity is rebutted under the circumstances. It is the Government’s burden to rebut the presumption of immunity. The Court therefore remands to the District Court to assess in the first instance whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of in- trusion on the authority and functions of the Executive Branch.

> This is a misleading partial quotation. In the context of what they were saying, the president has the presumption of immunity, but it is not guaranteed. They specifically remanded the issue of Trump trying to get Pence to break the law to the lower courts to decide whether there was immunity. They did not say there was blanket immunity.

Sure, but take a look at what I posted, and then the proceeding sentences:

> Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification pro- ceeding thus involve official conduct, and Trump is at least presump- tively immune from prosecution for such conduct.

I don't see any reading from that where Trump doesn't have blanket immunity. They stopped just barely short of saying so, with a clear implication of what they believe.

Certifying the vote is an official responsibility of the VP, and Trump was talking about that responsibility. They are not allowed to consider motives, only whether Trump talking to Pence about certification is within his official powers.

I would be very, very surprised if a lower court was able to find that the conduct was not in an official function. There's not a lot of room here once you take out whether the motives align with a presidential function.

I don't see any reading from that where Trump doesn't have blanket immunity. They stopped just barely short of saying so, with a clear implication of what they believe.

I don't understand, just read the next two paragraphs. They say he doesn't have blanket immunity, and his presumptive immunity can be pierced, and explicitly sent the case back to the lower court to gather facts and decide whether he has immunity in this instance. All three of those points are not blanket immunity.

> Official acts is pretty clear

"Distinguishing the President’s official actions from his unofficial ones can be difficult."

-SCOTUS

D'oh! I meant during the next president's term, a friendly Congress does it.

What the other guy said, but also there's court packing.

They have to be confirmed by the legislature.

You think Dems will win elections and get seated if Trump has another term?

I think with as many Dems that are losing faith in their party and seeing the bigger picture by moving to Trump, I doubt they would this time around.

I'm unaware of any disaffected democrats moving to Trump. At most, they're not voting or voting third party.

I'm sure that's there's a handful, but it's not what I'd consider even a miniscule population doing so.

Prediction: Trump wins presidency and there are no more fair elections.

If Trump wins he will be term limited by constitution irrespective of any election that comes after.

I think you're overestimating the impact that will have on whatever he would decide to do, given the events of today.

The only official act that could, in theory, bypass this is a declaration of Martial Law that moves out the next inauguration. This has not been tested and likely wouldn’t work.

Just because a crazy mob attacked congress at the behest of Trump does not mean official institutions would do so even if so ordered.

Him and his supporters have said openly that they want to refill the institutions, including the military [0], with politically aligned appointees.

[0] https://www.foxnews.com/media/trump-vows-fire-generals-push-...

Yes, he has said all kinds of nonsense that had no means to ever materialize. For example I don’t see Mexico paying for a border wall.

“Attempted murder. Now honestly what is that? Can you win a Nobel Prize for attempted chemistry?”

It's fundamentally dishonest - and also somewhat delusional - to discount threats even if they didn't come to pass one time. People doubted Trump would try to hold onto office, until he did.

I don’t doubt Trump will try to do the nonsense he says. I do doubt he has the means to persuade educated persons to do such things.

Again, this is less of a concern for him now that he will have sycophants in his orbit now that he's run out of people that will say no to him.

As an aside, I also have doubts that a chimpanzee would be able to successfully disable the safety an AK47. But it would be idiotic to leave that to chance and give one a loaded AK47 anyway.

By reclassifying all these individuals as Schedule F, he actually has the means to do this and it is a key part of Project 2025. During his first term, he enacted Schedule F and it was repealed by the Biden admin. Trump intends on reintroducing it in a second term. So he has the means to make this one re-materialize and this time he'll actually have the staff to replace people with.

This seems remarkably naive. Who imposes such constitutional limits?

They are imposed by the constitution and enforced by all bodies that descend from the constitution.

And if those bodies choose not to enforce it?

What ifs… The death spiral of non sequiturs.

https://en.m.wikipedia.org/w/index.php?title=Formal_fallacy&...

I don't think it's an unreasonable question to ask in this case as there is a very real chance it happens.

You've entirely missed my point.

Bodies that 'descend from the constitution' are certainly constitutionally intended to uphold checks and balances. However this has manifestly failed to happen.

You have a congress deadlocked for decades, 'unitary executive' legal philosophy centralising power in the presidency in order to temporarily pass this legislative deadlock, a senate readily obeisant to the majority party, and a supreme court stacked by the ultra right rolling back civil rights and checks and balances apace. Leading to decision like Citizens United and now presidential immunity.

You have the most recently defeated president still, four years on refusing to accept the results of the last election. A president with a significant base of religious, anti-state and rural poor devastated by decades of drug war and manufacturing decline. A president who openly called for insurrection. He called too on his vice president to overthrow the decision of the electoral college and defended calls to hang him when he did not - https://www.theguardian.com/us-news/2021/nov/12/trump-capito....

The thing tank behind the dominant wing of one of the two political parties in the duopoly has consistently pushed the line that the country is not in fact a democracy at all - https://www.heritage.org/american-founders/report/america-re...

All this against a background of a small class the most wealthy plutocrats vying for power, apparently beyond the reach of legal censure. Plutocrats who between them own all the social networks, newspapers and television stations.

Lets not forget the immense power of the total surveillance state revealed by Assange and Snowdon.

Finally you have the vast disregarded body of the American underclass, sleeping in their millions on the streets. Invisible in Americas view of itself, but inescapable in the tent cities and skid rows that seem now to populate every large American city. The nearly two million imprisoned. An underclass that can be victimised and stigmatised, mobilised and made a boogyman for middle classes all to aware of their own vulnerability in the absence of a welfare state.

As a non-American it seems incredibly clear that the path has been laid for a seizure of power within one to two election cycles. Further, I no longer see a way this can be avoided. Trump if victorious - as he seems likely to be against a clearly senescent party machine president - will likely use every power afforded him by the supreme court to remain in power. I'd expect this to follow the pattern it has followed in every other democracy which has swung to authoritarianism. The rooting out of non existent 'conspiracies' of journalists and political opponents, stigmatisation of immigrants and other minority groups, mass deportations, voter deregistration and the use of external threats to justify controls on movement in and out of the country. The rapid stacking and delegitimisation of the lower courts. The use of an enormous network of mega churches to lend the leader the imprimatur of God. Ultimately paramilitary violence and provoked insurrections leading to a state of emergency and some kind of declaration of a temporary presidency of national unity or similar.

Doubtless this sounds histrionic - but I see no institution strong enough or even truly motivated to prevent it. The only hope I see is that such regimes are almost inevitably unstable and tend to topple within a couple of generations. Eaten from the inside out by ambition and betrayal.

Trump and his ilk absolutely do not care about the constitution. There's a good chance democracy will be over in the US if he gets re-elected.

Agreed, but every one else does.

Read up on Project 2025 if you haven't already. The plan is to stack the executive with party loyalists. And he would have immunity. Rules and laws only exist in as much as people believe in them and enforce them. That could all just stop.

Stop the insanity. He only has immunity for official acts as determined by lower courts. The Supreme Court decision is largely a punt back to lower courts but affirms that a president cannot be indicted for acts after leaving office if those acts were committed while in office and an official act as determined by a federal judge.

For one, he's possibly going to skate on trying to overturn the election due to this ruling. He's possibly going to skate on stealing classified documents just on Thomas' concordance. Trump has already shown he has no respect for the law. Trump voters don't seem to care at all either. He can and will do the absolute worst possible things he can get away with. This ruling may not be enough to destroy the Republic but it's giving ammunition to someone who is more than willing to do it. This is the closest we've come to destruction since 1860. I don't think freaking out about this is alarmist.

Chief Justice Brett Kavanaugh writing for the 10/3 majority on June 30, 2028 "Well, ack-tually, the framers did not place term limits and congress has unduly restricted his constitutionally protected right to participate in our democracy. The candidate should be on the November ballot (or otherwise selectable by electoral college electors) in all 50 states"

This, plus the opinions should not be signed, and dissenting opinions should not be published at all.

The current system seems like it’s designed to aggravate politics in the very branch that’s intended to be beyond them.

Dissenting opinions are a crucial part of the process. They're frequently cited by lower courts and in future supreme court cases.

The supremes don't always get it right. Dissenting opinions are the mechanism for expressing that reality.

We let them be part of the process by tradition. They’re not constitutional, and they’re irrelevant to the outcome. They’re essentially a participation trophy and they politicize the opinions by offering a glimpse of what could’ve been if the court was packed differently.

As with all reforms in the US it's not gonna happen as the party that benefits will block it. Same with implementing ranked choice, outlawing gerrymandering, campaign finance reform, etc.

Systems always work to justify and perpetuate themselves. It's part of why our jobs can be such BS sometimes.

> it's not gonna happen as the party that benefits will block it

The right and left are both railing against our justice system. At different levels. For different reasons. But that’s political capital on the floor.

> Same with implementing ranked choice

We have multiple jurisdictions with RCV [1]. Your purported impossibility has happened.

> Systems always work to justify and perpetuate themselves

We have reformed our courts before in pursuit of seeking to perpetuate our American form of government. This is no different. Amending governments to make them more fit is not inherently in conflict with institutional prerogatives.

[1] https://en.m.wikipedia.org/wiki/Ranked-choice_voting_in_the_...

> The right and left are both railing against our justice system.

True insofar as it goes… but this elides the detail that the right just won a generational battle for the Supreme Court. There is zero chance that any Republicans back reform here.

Even the minimum viable reform to enact term limits after this lot dies off is dead on arrival.

> this elides the detail that the right just won a generational battle for the Supreme Court

Sure. Until recently, they were losing. De-politicising the courts could be electorally advantageous for both sides.

> the minimum viable reform to enact term limits after this lot dies off is dead on arrival

Because that’s obviously partisan. There are more Republican-appointed judges. Term limiting them obviously favours one side in a way drawing from appellate judges by lot does not. (The Fifth and Ninth are regarded as crazy by half the country.)

> Sure. Until recently, they were losing. De-politicising the courts could be electorally advantageous for both sides.

I think you overestimate how much the political apparatus cares about the long-term. It's hard not to agree that de-politicized courts are good, more or less, for everyone. But the right-wing won a generational battle for the Supreme Court. There is no incentive for any right-wing politician currently alive to propose that kind of change today; if anything, the political machine would call them out for proposing that their party loosen its grip on the reins.

We'll see how the right-wing feels after this next election. It's not a secret that whoever wins in 2024 will likely get to appoint several new justices, though the court as a whole will almost certainly remain right-leaning. If that control does start to erode, though, expect to hear much discussion about making the de-politicization of the courts a priority.

Are we going to overturn all the lawless “emanations from penumbras” from the period when the left dominated the Supreme Court? If not, it would be political malpractice, and an abdication of their duty to their voters, for anyone on the right not to fight Supreme Court reform tooth and nail.

Perhaps some concrete examples would help ground the conversation?

> Until recently, they were losing

How recently are you talking here? It’s been a conservative majority for over 5 decades.

> De-politicising the courts could be electorally advantageous for both sides.

Perhaps in the sense that being more consistently moderate would be advantageous for either party in seeking to win median voters, but I think this is not true in terms of the party base dynamics that actually drive most of policy and candidate selection. The Republican base is _thrilled_ with Trump and Mitchell’s maneuvering to secure a decades-long unshakable majority. Campaigning as a Republican on “I would like to reverse the biggest win in our lifetimes” would be political suicide, and your primary opponents would be the most well-funded in the country.

> Because that’s obviously partisan

The last bill I saw had the change kick in _after_ the existing justices vacated their seats, so as to not be seen to attack the existing majority. Even then it was DoA with zero Republican support. And that should not surprise you.

I like your proposal, but I stand by my claim that it’s politically impossible as a bipartisan policy for this generation. The only way we get Supreme Court reform is if they overreach, moderates get fed up with strong conservative rulings, Dems win a landslide with a mandate, and pass a partisan reform bill.

> Mitchel

Typo, McConnell.

> the right just won a generational battle for the Supreme Court

From someone most Democrats would consider "on the right" - it's more complicated than that, of course - you're right.

The right had _lost_ that battle for generations, though. I don't recall any serious efforts to reorganize the judiciary as a result of that.

The "Hawaii judge" has been a running meme on the right for _years_. Pretty much everything Trump tried to do that was even a little bit controversial was fought in the courts, and the left tended to practice "judge shopping" to place the cases in Hawaii's district. The Ninth Circuit has been known as the "Ninth Circus" for as long as I can recall.

Of course, the right also practices judge shopping. It's just part of how things are set up today. The difference in this discussion is that we're now talking about changing the system itself because the left feels like they lost.

> Even the minimum viable reform to enact term limits after this lot dies off is dead on arrival.

I wouldn't be opposed to reform of some kind, but keeping the current nomination process and enacting term limits doesn't seem viable. The problem here is that Justices are nominated by the President. As long as that's the case, all term limits will do is make the judiciary less consistent. The biggest impact of changing the makeup of the Supreme Court more often would be to have precedent overturned more frequently.

It could be argued that the entire point of the way things are set up is so that the three branches won't be controlled by the same zeitgeist at the same time. Presidents get four to eight years. Congress can serve as long as they're re-elected, in two or six year terms. SCOTUS serves lifetime terms.

The fact that the branches are at odds isn't a bug; it's a feature.

The first point I feel like reinforces my point more than disproves it. Both sides clearly see the issues but won't actually reform while they benefit.

Ranked choice also has only been implemented in a few cases and generally by a ballot initiative (getting around the party structures somewhat).

To be fair systems do change but in general they use their power to resist it tooth and nail until change is inevitable and they collapse.

For RCV, it is small localities no one cares about, and yes, that does include Alaska.

The lifetime appointment of Supreme Court justices is done specifically so that they aren't financially influenced by politics and party.

I.e. their job doesn't depend on them ruling the "right" way.

There are pros and cons to different approaches. There are differences at the state level for judges, being appointed vs elected. Each has problems. In TX, for example, judges are heavily influenced by mob mentality - they're afraid to practice sentencing restraint because next election their rival will run ads saying they love murderers/rapists/whatever because they let someone off lightly in extraordinary circumstances.

That all sounds great in theory but.. waves hands at Clarence Thomas

Approximately half the country loves Thomas, and agrees with him. The fact that the perspective of each member of the Court is effectively frozen in time when they are appointed is intentional.

He's taken a suspicious quantity of "gifts", you can look it up.

My apologies, but I decline to argue this point. Whether Thomas (or any other Justice) is a good person or correct in their rulings isn't germane to the point I'm making.

Of all the currently-service Justices, the only one who has deviated from the perspective of the President who appointed them would probably be Roberts - and that statement is mostly based on a single ruling. It's not like he's well-loved by the left.

I was responding to a comment saying that lifetime appointments prevent bribery. Justice Thomas is proving the theory wrong.

Why should I believe his decisions are about principle when money is changing hands?

Ah, I agree with you there. I see no way lifetime appointments change the incentives around bribery.

That sounds like an impeachment issue to me.

So, Thomas's perspective comes from an era when bribery and collusion with monied interests were accepted and normal?

The recent controversy around Thomas's behavior did not spring up because his opinions on governance date back to his appointment, but because--to the outside observer--it looks like he is perfectly comfortable with selling his opinion to the highest bidder. Lifetime appointments are supposed to keep judges aloof from external influences, but it seems like that logic failed in this case.

I don't know where you get 'half the country loves/agrees with him', other than the (incorrect) assumption that the population of the country is divided 50/50 along party lines (no Republican president has won the popular vote since 2004, and only once since 1992)

Clarence Thomas is notably the least loved justice in a historically hated court

https://thehill.com/homenews/4019788-poll-thomas-has-highest...

That's why I said "approximately".

I'd say Thomas is to the right about what Ginsberg was to the left - the favorite of the core of their respective parties.

What is the “popular vote?” You mean adding up the state-by-state votes which is a number nobody is trying to win?

And if we are talking about numbers that don’t matter, republicans won the Congressional popular vote four of the last seven times (by three million votes in 2022) and are on pace to in it again.

You can also look at the generic congressional ballot polling, where republicans regularly are ahead.

Yeah, that's fair. For most elections 'not voting' would be the plurality, especially in off year elections.

Well, kind of fair, with that caveat that this means even less Americans are likely to agree with Clarence or this ruling.

Don’t make assumptions about what non-voters prefer. Lower propensity voters lean right these days: https://hbstrategies.us/trumps-non-voters/ (“Within this lower propensity segment, the respondents favor Trump over Biden by 12 percentage points, 50-38%. The unit would prefer a Republican Congress by a 50-41% margin, and Republicans would enjoy the five point identification advantage.”).

Indeed. It's already the case Clarence Thomas's way of life may depend on whether or not he rules the way certain friends and acquaintances want.

His job is safe, but much of his salary--no, not quite the right word--much of his overall reward is dependent on what powerful friends want him to do.

Ultimately, people don't care about keeping their job--who the hell likes their job?--people want to keep their compensation, and for the US Supreme Court, their compensation can easily be controlled by powerful third parties.

Federal justices still have lifetime appointments - and what the OP is describing wouldn’t change that.

I’d be okay with that, but only if we have a review process where all Warren Court decisions are re-vetted by the newly constituted Supreme Court. You can’t spend half the 20th century having “judicial oligarchs” rewrite the constitution and then complain when a few court decisions go the other way.

But what would be more fun is for the current Supreme Court to adopt the “emanations from penumbras” philosophy of judging, and do that for a couple of decades.

Why stop there? Why not go back to Lochner?

Lochner made it impossible for the legal pragmatic of our country's ontology to recognize corporations and enterprises as autonomous entities that should have checks and balances for - and against - themselves AND other entities of the government, just as much as citizens do.

With how things shaped up, the innate de jure power struggle should have been "The People <> Legislative <> Judicial <> Executive <> Corporations"

We're still paying the price, as the Lochner era was incredibly myopic.

That’s what I suggested:

> But what would be more fun is for the current Supreme Court to adopt the “emanations from penumbras” philosophy of judging, and do that for a couple of decades.

Let’s see what “emanations from penumbras” we can find in the contract clause, second amendment, tenth amendment, etc. If only conservatives had the sense to use Roe as a template for how to judging should work.

This is the best reform idea I’ve heard. Has it been mentioned elsewhere?

There is a reference in the Constitution in the impeachment clause to the “Chief Justice” - which maybe implies justices with some sort of tenure, but I suppose that could be filled randomly as well, much like a jury foreman.

> Has it been mentioned elsewhere?

Not that I can find. (It’s already been flagged off the thread, granted.)

> a reference in the Constitution in the impeachment clause to the “Chief Justice”

Ministerial. The most-senior jurist on the appellate court.

This is sortition. I would apply it liberally and use it for most legislative offices. Elections and appointments tend to bring out the worst of society -- the kind who actually want power over peoples' lives.

Who decides what cases are heard in this scheme?

> Who decides what cases are heard in this scheme?

Good question. Perhaps a separate bench chosen once per session? Have the other circuits vote on it?

> Article III of the U.S. Constitution is incredibly brief [1].

So is the constitution. But I think what also matters a lot is things like the Federalist papers. Where these aren't explicit laws but are the motivations and philosophy behind them. Ruling by the letter of the law will always be tyrannical because no thing is perfect.

Federalist 78[0]

> The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

It's also worth mentioning here that this same document specifies that the judicial branch and executive branch are to remain distinct. That all the judicial branch can do is issue judgement, but are not capable of executing such judgement. I mention this because there is another question that arises if the one in charge of the executive branch is judged to have committed a crime by the judicial branch. But of course, this is back to the point that there are no global optima. There is no free lunch.

[0] https://avalon.law.yale.edu/18th_century/fed78.asp

Why do you keep using the word “corruption?” This is an incredibly milquetoast opinion that says presidents retain immunity for some official acts while in office. Because that’s obviously true. When Trump wins again, he can’t prosecute Biden for deaths caused by Biden’s border policies. Because obviously. It’s shameful that it wasn’t 9-0.

In software development, one of the biggest smells is being asked to implement a solution to something that isn't a problem that anyone actually has.

In 250 years, for 44 presidents, not one of them has needed immunity from criminal prosecution.

All this does is shield the man who attempted to use violence and a conspiracy to commit election fraud with a fake slate of electors to reverse the result of a legitimate decision.

To call this milquetoast is to continue the gaslighting. This decision has permanently altered the American Experiment.

You think Bush couldn't have been prosecuted for something in connection with the Iraq War? You think Obama couldn't have been prosecuted for something in connection with drone strikes?

> Why do you keep using the word “corruption?”

I used it once. Because that’s why ancient democracies used selection by lot. My criticism isn’t of this ruling per se, but of the institution, which has swung from a stabilising branch of government to a constant source of chaos.

> which has swung from a stabilising branch of government to a constant source of chaos.

What are you talking about? The Supreme Court gutted the constitution in the mid-20th century, and anti-democratically reshaped society down to its foundations.

The supposed "chaos" comes entirely from liberals freaking out at the smallest retrenchment of their destabilizing prior precedents.

One summary:

> In a ruling on the last day before the Supreme Court’s summer recess, and just over two months after the oral argument, a majority of the court rejected the D.C. Circuit’s reasoning. As an initial matter, Roberts explained in his 43-page ruling, presidents have absolute immunity for their official acts when those acts relate to the core powers granted to them by the Constitution – for example, the power to issue pardons, veto legislation, recognize ambassadors, and make appointments.

> That absolute immunity does not extend to the president’s other official acts, however. In those cases, Roberts reasoned, a president cannot be charged unless, at the very least, prosecutors can show that bringing such charges would not threaten the power and functioning of the executive branch. And there is no immunity for a president’s unofficial acts.

[…]

> In her dissent, which (like Jackson’s) notably did not use the traditional “respectfully,” Sotomayor contended that Monday’s ruling “reshapes the institution of the Presidency.” “Whether described as presumptive or absolute,” she wrote, “under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless.” “With fear for our democracy,” she concluded, “I dissent.”

* https://www.scotusblog.com/2024/07/justices-rule-trump-has-s...

This summary sounds much more tolerable than my initial reading, and I think what constitutes the discrepancy is the absence of the statement

which I can't find in the linked article, but which is of course in what you've linked to.

In those enumerated things I think the ruling is quite tolerable, but the decision is much broader than that, and this presumptive immunity, etc. becomes quite burdensome.

It's going to be like the state secrets privilege, and that has already allowed people to get away with torture, even people whose identities are well known, and where there is clear, unambiguous evidence that they were involved.

What Roberts says almost makes it sound alright, but it definitely isn't.

It's remarkable the speed at which the court has discarded any semblance of legitimacy. Perhaps future administrations should simply ignore them and dare them to act.

And based on what the court ruled they probably legally could just ignore the court and congress.

The lifetime appointments clearly aren't working. They should draw from lower circuits on a per term or per case basis and discard the whole lot.

> Perhaps future administrations should simply ignore them and dare them to act.

well.. be careful for what you wish for but i see your point. What's the supreme court going to do? Order your arrest by the FBI? Seems like the FBI would go tell them to pound sand.

That's nonsense. You should read the ruling [1]. The summary is very readable. For a president to ignore the court and "dare to act" is what dictatorships do, and millions of people die in those cases.

[1] https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

Really expected result. How would the US not give their presidents immunity. This counts for all of them not only for Trump and in conjunction anything else would simply be impossible.

They all basically agreed too, the only difference being whether it should be complete immunity or mostly-complete immunity.

Meanwhile there are people in the comments saying this is the end of our democracy lol

totally agree, they need immunity for whatever the hell they are doing these days.

btw - this thread is hilarious, thank you thank you thank you

At least with this one they've rescued us from doing national politics like a banana republic. You can't arrest Presidents for doing things they had the total latitude to do as Presidents. We can't have the courts deciding whether Presidents had good or illegitimate reasons for any arbitrary decision that they made during their presidency. It's madness.

If a president took a bribe for a position, prosecute him for taking a bribe (if it's not a gratuity, because Congress has declared tipping politicians legal.) But if he could have made the same decision because he liked someone's tie - it's nothing but second guessing, by a likely hostile later administration.

These people appoint all their campaign staff and big donors to government jobs. If that's legal, then any reason for anything they do which is left up to their discretion is legal. If it's not legal, have Congress make it not legal.

-----

edit: gaganyaan, you are wrong. If you think that the entire point is that a president cannot be prosecuted for taking a bribe, you should reevaluate your understanding of the entire point.

> 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.

> Justice Amy Coney Barrett, who joined the rest of Roberts’ opinion, parted company on this point. “The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable,” Barrett wrote.

You're missing the entire point. Now the president can't be prosecuted for taking a bribe, even if he publicly declares that's the reason for doing so.

> Now the president can't be prosecuted for taking a bribe

they can still be impeached and removed from office for basically any reason whatsoever. Maybe the won't goto jail but their presidency would be over.

How well did that work previously?

Y'know, the president has very convenient authority for just this kind of thing. Something about drones and strikes? Would be a shame if when people tried to impeach the president he exercised his qualified immunity to convince them that it's a Bad Idea.

Barrett's partial concurrence is nice and all but it's just that. Even where she did not join the majority it carried five votes.

It's telling that even such a minor "to be sure" as hers couldn't carry enough support to actually be in the opinion.

> We can't have the courts deciding whether Presidents had good or illegitimate reasons for any arbitrary decision that they made during their presidency.

Why not. The vice president exists for a reason? Here in Europe, in the entirety of Europe, if a president or prime minister commits a crime, they will be prosecuted. If we can do it, why can't the USA?

After all, no one is above the law.

If anything, the more power you have, the more scrutiny you should be under.

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