Hacker News Reader

Comment by lolinder | Hacker News Reader

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

View on HN

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.

> "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:

> 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.

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.

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...

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

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.

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.

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.

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"

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.

"It's not illegal when the president does it."

Turns out Nixon won the battle for an American dictatorship after all. Well played, Dick.

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.

Reply on news.ycombinator.com