I would consider this an extreme knee jerk take, but it's Sotomayor saying it.
> 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:
The president now has immunity to corrupt elections as he wishes. I honestly don't understand how any American can be happy about this.
Explain the difference.
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.
Who said?
The most recent affirmation: https://www.scotusblog.com/2024/06/supreme-court-upholds-bar...
There are countless other cases.
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.
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.
Ouroboros
It sounds like it does, from the majority opinion:
> 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.
So it sounds like "official acts" means an act "exercising his core constitutional powers."
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 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?
> 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"
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.
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:
"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"
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.
https://www.msnbc.com/rachel-maddow-show/maddowblog/pressed-...
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?
this act is still in effect.
"... 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."
See https://en.wikipedia.org/wiki/Iran%E2%80%93Contra_affair#Par...
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 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?”
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.
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.
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
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...
But even then, with enough agreement from the states, Congress can amend the Constitution.
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).
So, they can invent tests later, after they see how this decision affects the prosecution.
how is that not a test?
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"?
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.
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...
What does that even mean if it's impossible to prosecute the President? What does that even mean?
It's the same things cops do, jeez.
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.
I mean, it's still really bad, but a few slivers less bad than you say :P
Like if you want to do a coup, as long as you task the army with removing congress it's an official act?
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.
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
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 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.
When it comes to it, this exact thing will be covered by immunity because of how things work.
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.
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.
https://www.cbsnews.com/news/mitch-mcconnell-immunity-former...
(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)
'Immediately' as in many hours after violence started, and his own children begged him to do something?
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
"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."
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 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.
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.
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.
https://en.wikipedia.org/wiki/Killings_of_Aaron_Danielson_an...
> 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. Otherwise, Presidents would be subject to trial on “every allegation that an action was unlawful,” depriving immunity of its intended effect.
> 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
> 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.
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".
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.
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.
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.
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.
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.
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...
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.
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
* 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
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 there weren't lawyers, law would be oh, so much simpler..
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.
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.
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 signs an Executive Order directing himself to shoot someone in the street?
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.
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.
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.
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.
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.
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 granted the Bush administration broad powers. The problem is not inaction.
You mean because he has been dead for 3 years?
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.
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
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 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.
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.
Maybe.[1]
[1] https://en.wikipedia.org/wiki/Unitary_executive_theory#Judic...
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.
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.
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.
Nevermind that the order was given by a US official, presumably on US soil.
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".
People get very judgemental when Putin assassinates defectors, but when Obama does it it's ok?
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.
> 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.
I wouldn't have bought that; but alas, no one asked me.
Due process is about validating the government's claims before allowing it to kill someone.
The silence from the people who once decried the 'activist court' now that it's an ally of the slow fascist transformation is deafening.
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"
EDIT: This ruling probably retroactively clears Nixon from Watergate. It would make it illegal to use the tapes as evidence against him.
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.
yeah it seems like a traditional FUD strategy, i would expect Supreme Court justices to be more analytical and sober than that.
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:
>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.
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.
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.
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.
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’?
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.
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.
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.
Everyone thinks lines don't get crossed, until they do.
> 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...
> 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.
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.
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...
> 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.
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...
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.
(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.)
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-...
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."
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.
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.
project 2025
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.
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
Congress, through impeachment.
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.
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...
If the president is able to bring physical power to bear, then it matters little what the law says anyway.
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.
Obama drone wars would be the one to look at.
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.
It's an immunity only for official acts, not unofficial ones.
> 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:
> 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.
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.
He also passed an EO afterward which set up a legal framework retroactively justifying it.
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.
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.
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 is unconstitutional
What does the judge who reviews the case think?
That's literally the only thing preventing that scenario from playing out.
"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.
Motive can be used to defeat the presumptive immunity for an official act.
> 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.
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.
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.
> 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.
SCOTUS explicitly says you cannot question the motive of a presidents actions when making a determination for what is protected and not.
> 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.
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)
Is it permissible to disobey an order that you merely believe is unconstitutional? What happens when your superior asserts that it is constitutional?
> 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)?
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.
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.
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...
[0] https://abcnews.go.com/Politics/seal-team-6-assassination-hy...
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.
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.
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.
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.
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.
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.
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.
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.
Hell IIRC at one point all living governors of Illinois were in prison
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.
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?
You are confusing necessary and sufficient.
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.
If you think all those things are in place, this really is the least of your worries.
https://www.amnestyusa.org/updates/is-it-legal-for-the-u-s-t...
Yes.
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.
> 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.