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Comment by sterlind | Hacker News Reader

> 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.

Sotomayor's scathing dissent sums up my concerns on the matter. Even for Barrett, a conservative, the majority opinion was a bridge too far: even bribery now enjoys absolute immunity.

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Since last week, bribery is legal anyway.

https://www.latimes.com/world-nation/story/2024-06-26/suprem...

That article is bad. It ignores the ruling specifically pointing out that 18 USC 201 among other laws does cover 'gratuities' as well as bribes, and it misleadingly claims that "[t]he Supreme Court on Wednesday struck down part of a federal anticorruption law" when referring to 18 USC 666 (Federal Program Bribery, AKA "The Beast") which is just not true. You can see it's not true in the holding:

> Held: Section 666 proscribes bribes to state and local officials but does not make it a crime for those officials to accept gratuities for their past acts.

Nowhere in there do they declare any part of 18 USC 666 unconstutional, which is what one usually takes "struck down" to mean.

The LA Times is at least correct in stating that the ruling clarifies bribes come before the act and gratuities come after, with different legal effect, but they seem to leave out any discussion of this bit inexplicably:

> For example, Congress has established comprehensive prohibitions on both bribes and gratuities to federal officials. If a federal official accepts a bribe for an official act, federal bribery law provides for a 15-year maximum prison sentence. See 18 U. S. C. §201(b). By contrast, if a federal official accepts a prohibited gratuity, federal gratuities law sets a 2-year maximum prison sentence. See §201(c).

Point being, no, gratuities aren't really legal either, they're just punished under different statutes. David G. Savage could've just used this line from the ruling as a much more accurate summary:

> Although a gratuity or reward offered and accepted by a state or local official after the official act may be unethical or illegal under other federal, state, or local laws, the gratuity does not violate §666.

And why did they do this? Because technically giving an apple to your teacher would be Federal Program Bribery otherwise:

> The Government’s interpretation seems all the more unbelievable because §666 applies to the gift-givers as well as the state and local officials accepting the gifts. Specifically, §666(a)(2) makes it a crime punishable by 10 years’ imprisonment for someone to “corruptly” offer or give “anything of value” to state and local officials “with intent to influence or reward.” So under the Government’s approach, families, students, constituents, and other members of the public would be forced to guess whether they could even offer (much less actually give) thank-you gift cards, steak dinners, or Fever tickets to their garbage collectors, professors, or school board members, for example.

But the "bribery is legal now" take you seemingly got from here is incorrect under any interpretation of the word "bribery." Using SCOTUS' version of the word, bribes are still punished by 18 USC 666, and gratuities are punished by 18 USC 201 (as well as other laws for both categories).

But don't take my word for it, you can read the ruling directly: https://www.supremecourt.gov/opinions/23pdf/23-108_8n5a.pdf

> So under the Government’s approach, members of the public would be forced to guess whether they could even offer thank-you gift cards, their garbage collectors, professors, or school board members, for example.

That seems bizarre to me, an apple or a low value meal ticket are not "something of value" unless you read things literally for no reason.

"of value": valuable, having a great value

The law actually says "anything of value of $5,000 or more". The majority opinion is just arguing in bad faith there

They seem to be talking about 18 USC (a)(2) in that quote you're reacting to, which reads:

> (2) corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more;

https://www.law.cornell.edu/uscode/text/18/666

The problem here is that the $5,000 here is NOT the value of the bribe!

It's the value of the funds received from a federal program you're bribing someone that's a part of. So if the garbage collectors, schools, etc. receive more than $5k in funds subject to this statute, it doesn't matter what the bribe is.

That's why they call it "Theft or bribery concerning programs receiving Federal funds" after all. You can read the holding in Sabri to see them spell that out a bit more clearly than the statute does:

> For criminal liability to lie, the statute requires that "the organization, government, or agency receiv[e], in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance." § 666(b). In 2001, the City Council of Minneapolis administered about $29 million in federal funds paid to the city, and in the same period, the MCDA received some $23 million of federal money.

[...]

> The Court does a not-wholly-unconvincing job of tying the broad scope of § 666(a)(2) to a federal interest in federal funds and programs. See ante, at 605-606. But simply noting that "[m]oney is fungible," ante, at 606, for instance, does not explain how there could be any federal interest in "prosecut[ing] a bribe paid to a city's meat inspector in connection with a substantial transaction just because the city's parks department had received a federal grant of $10,000," United States v. Santopietro, 166 F. 3d 88, 93 (CA2 1999).

https://www.law.cornell.edu/supremecourt/text/541/600

Incidentally, those examples they used seem to have come from hypothetical scenarios raised during oral argument. You can read a bit more here in the transcript of the oral arguments:

https://www.supremecourt.gov/oral_arguments/argument_transcr...

A lot of laws cover more conduct than people think they do, but I think that part of the point here is that it works on giver and receiver.

Assassinating a political rival is not an official act.

Says who? You can't ask me why I did it, according to the ruling. I could have had a good reason. And you can't use my private records, nor those of my assistants, either.

Where in the Enumerated Powers of the Constitution does it give the the President the power to kill political opponents?

The constitution gives me the power to kill people for good reasons (I am the commander in chief of the military, after all), and I assure you, I have good reasons. Which you can't ask about.

And don't tell me I need Congress to authorize my killing people. I haven't needed that since Vietnam or something.

This is a silly response.

The ruling has specifically left the definition of "official acts" for the lower courts to decide on a case-by-case basis; they have not limited official acts to Enumerated Powers of the Constitution. The president likely has modern "official acts" that are not in in the constitution (such as the ability to issue executive orders) so it is not as simple as pointing to it. As things stand, this ruling is a blank cheque of unknown (but undoubtedly large) size.

>"As things stand, this ruling is a blank cheque of unknown (but undoubtedly large) size."

Easily the best way I've seen the impact of this ruling, articulated.

Constitution also doesn't give the President the power to go to the bathroom.

It codifies rules for certain aspects of their role. Not everything.

You need to think about this a bit more carefully. Today's ruling states that the president has immunity for all official acts. Official acts can be literally anything the president does _in his capacity as president_.

Says who? A court.

Assassinating people is my job, I'm the commander in chief of the military. I just happened to do my job on someone who also happened to be my political opponent. How is that not an official act for which I am immune? The court cannot inquire about my motives.

You don't seem to understand how the judicial system in USA works. The ultimate decision capacity is with the people. The way it's realized may differ, and the time may be long to pursue the decision, but not even SC has the last word, only the people. The court cannot inquire about your motives is only until people are ok with that; if they are not, the reason will be found - or not - and pursued - no options here - to insist.

The problem is that 50% of the people are in a camp that advocates for the overthrow of the US government, while consolidating power and ensuring that it is as difficult as possible for people who oppose them to vote.

The Senate allowed legislation that made public lynching a crime to fester in committee without a vote for years. The Supreme Court’s abandonment of any reasonable check on executive power or governmental integrity is absurd. You literally have a justice on the payroll of a billionaire who has paid him millions of dollars who helped redefine bribery to make it a crime impossible to prosecute:

That's unfortunately the practical problem and the reality of the situation. In other words, I agree.

ATTN: The above comment is satirical and making a point. The point is that the majority says intent of an "official act" cannot be questioned.

So kind of how they said bribery is okay as long as it's not explicitly asked for and given as a "gift" after the fact, the majority holds that presidents can kill their political opponents as long as they "say" it was for national security.

Yeah but pardoning the killer is. Why the killer chose to do it, who knows? Frankly, even if the phone call is leaked, motive doesn't matter apparently.

Imagine Biden assassinating Trump under the pretense that Trump likely had other classified documents hidden away, or was too mentally unstable to be trusted with presidential secrets. This is the kind of action this ruling sanctions, entirely.

Which is why Biden must do this and immediately resign the presidency. Though he also needs to fix the Supreme Court so dubious territory even with the recusal.

> Which is why Biden must do this and immediately resign the presidency.

Calling for the murder of specific people is very much against the rules of this site.

Intentionally misinterpreting comments is very much against the rules of this site.

You’re supposed to be charitable in your interpretations.

I’m saying that Biden must act with his newfound unconstitutional powers freshly minted by the unqualified tyrannical theist fascists on the Supreme Court. How he does that is up to Biden, sorry I wasn’t more explicit - I ignorantly assumed the nuance to be as plain as the fascist intentions of trump and the company he keeps.

> This is the kind of action this ruling sanctions, entirely.

Given the extraordinary claim you're making, I'm doubtful that you have the qualifications to support the absolute statement being made pretending to be fact. This is especially true given how little this new ruling has been covered by the very people that are charged with deciding how it will work in practice.

You're not issuing an opinion in what you said. You're claiming it's a matter of fact. Constitutional and executive branch experts with decades of experience will be debating what this means for a very long time to come, with far less certainty than what your comment contains.

Presidents order the deaths of people in the interest of national security all the time. It's entirely within their official duties.

This is a legal thread on a tech forum so I find your credentialism thoroughly disingenuous. If you want to actually discuss I'm game, but your inane appeal to non-authority is tedious.

I guess we can call it bold when you claim to have a better understanding of the decision than a dissenting justice.

Claiming to have the same understanding as the majority of justices seems safe, though, if that's how you decide what opinions to hold.

Did the majority opinions refute the dissent?

All I saw was that they were dismissed as “extreme hypotheticals”. All of that despite the publication of Project 2025 openly calling for the next conservative president to bend and break bureaucracy to carry out their desires.

We’re firmly in the Fuck Around stage of what exactly this ruling will and will not allow, and one way or another, we’re going to Find Out within the next 3-6 months. I know which candidate I hope to Find Out from.

In the majority opinion, this part would disagree with Sotomayor's example: "The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts."

The language isn't as electrifying as Sotomayor's example, but you can still imagine unofficial acts that would not warrant immunity.

High level of snark given that this is the most definitive part of the ~~actual decision~~ syllabus you could find to possibly counter what Sotomayor wrote. Guess you didn't read it first.

(Advanced trick: you are reading the syllabus. The actual decision is below.)

I read it this morning. Which part would you have quoted? I picked that part because it seemed like the clearest summary.

I guess we can call it bold when you claim to have a better understanding of the decision than the justices who wrote it.

As an official act, we determined that my political rival was an enemy of the state and known terrorist, who was threatening our democracy. As such, it was my duty to order her/his assassination, for the safety of our great nation.

It very much is if it's done by commanding the military to do it. Maybe not so much if a President did it themselves.

You just have to drum up some flimsy excuse that sounds official, I guess.

What if the president deems it necessary out of national security interests?

Here is Justice Roberts’s definition of an official act. Since the courts are making it a new executive power, it’s in the eye of the wielder. Long live the king.

> In a unanimous decision written by Chief Justice John Roberts, the Court held that, under Section 201(a)(3):

> [A]n “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an “official act,” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit that definition of “official act.”

There have been instances in the past where the US military has assassinated US citizens that they deemed terrorists. Search for "Anwar al-Awlaki".

Under this ruling, it would be entirely possible for Biden to declare Trump a direct danger to the republic and, as commander in chief, order him to be assassinated. Of course the "officialness" of this would be debated in the courts, but the reason so many find this ruling unconscionable is that it does basically say "the President is above the law - he just needs to do things under the guise of official acts".

Judges and prosecutors also enjoy absolute immunity in their official capacities.

Fact.

False.

Judge ordering something can be brought to court to review if the order was lawful. Judge making judicial decision - that is, not ordering something to support that decision, but actually deciding - is immune, but that is decision of the limited scope - it's not an action. Decision itself can be reviewed, so there's principally less scope for possible intentional or unintentional errors.

Surely you acknowledge what a giant, wide, grey line of a no-man’s-land you just painted.

There are vast problems with federal agency immunity protections as well. Whether as a federal employee or a civilian, trying to sue a federal agency for something it has done wrong can be nearly impossible.

Killing an American citizen without due process should be outside the scope of official acts regardless of whether the President has immunity for said acts. Obama proved that it's not [0], which is a major problem that should have been addressed a long time before this ruling.

On the whole the principle of this ruling is sound:

The President shouldn't be in a position where he has to wonder before each choice if he'll later be prosecuted for it or not. The boundaries of official acts should be spelled out clearly in the law, and when acting within those boundaries the President should be confident that he's authorized to make the tough calls.

The ambiguities that this ruling brings to light were already there, this ruling only exposes them. President Obama could theoretically have been personally prosecuted for killing al-Awlaki and now he can't.

Now it's time for us to explicitly identify in the laws what the President can and cannot do. That's a change that's long overdue.

[0] https://en.wikipedia.org/wiki/Anwar_al-Awlaki

This isn’t conservatism. It’s despotism.

We’re probably a decade away from a coup.

Decade? You are optimistic.

This is factually incorrect, the president can be prosecuted for anything, he doesn't even have to commit a crime, but there's a special process for that called impeachment. This isn't new stuff and it has been understood to work this way for a couple hundred or so years, until very recently.

Impeachment is a political process to remove someone from office, it doesn’t send you to prison.

The impeachment clause specifically lays out that impeachment doesn't inhibit criminal prosecution for the same acts. Hell, Trump's impeachment defense was essentially that he should be criminally prosecuted instead of impeachment.

What about after he has left office?

What if he/she assassinates the impeachers as an "official act"? That might be an example of Gödel's Loophole.

https://en.wikipedia.org/wiki/G%C3%B6del%27s_Loophole

Not an American but according to everything I’ve read, impeachment is not the equivalent of prosecution [1]

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

Even the majority opinion doesn't agree with you. Literally the only people I've heard make this argument are Trump's lawyers in this case and in fact during the impeachment proceedings they said the exact opposite. Impeachment is a separate process and the president doesn't need to be impeached to be charged with a crime.

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