Hacker News Reader

Comment by kibwen | Hacker News Reader

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.

View on HN

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?

> 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.

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.

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.

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."

Reply on news.ycombinator.com