[HN Gopher] Supreme Court rules ex-presidents have immunity for ...
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Supreme Court rules ex-presidents have immunity for official acts
Author : _rend
Score : 618 points
Date : 2024-07-01 17:19 UTC (5 hours ago)
(HTM) web link (apnews.com)
(TXT) w3m dump (apnews.com)
| soloist11 wrote:
| Now we know that US presidents are above the law. I always
| assumed that was the case so this is just confirmation for
| everyone else who had any doubts.
| zeroonetwothree wrote:
| Immunity for things they do as part of their official duties. I
| suppose it's reasonable but the question will now turn to what is
| actually an official duty.
|
| The opposite holding, where they are liable for everything, would
| be untenable. Could Obama be prosecuted for ordering drone
| strikes that unintentionally killed two Americans? It seems like
| that world would hamstring the president far too much.
|
| I don't know if they struck the right balance here (and we not
| know until the next time it comes up), but at least we have
| slightly more clarity.
| IIAOPSW wrote:
| >I suppose it's reasonable but the question will now turn to
| what is actually an official duty.
|
| I'm fairly sure there's a full and complete list of these is
| explicitly in the Constitution.
| throw0101b wrote:
| > _I 'm fairly sure there's a full and complete list of these
| is explicitly in the Constitution._
|
| Roberts disagrees in the decision (p. 17):
|
| > _Distinguishing the President's official actions from his
| unofficial ones can be difficult. When the President acts
| pursuant to "constitutional and statutory authority," he
| takes official action to perform the functions of his office.
| Fitzgerald, 457 U. S., at 757. Determining whether an ac-
| tion is covered by immunity thus begins with assessing the
| President's authority to take that action._
|
| > _But the breadth of the President's "discretionary respon-
| sibilities" under the Constitution and laws of the United
| States "in a broad variety of areas, many of them highly
| sensitive," frequently makes it "difficult to determine which
| of [his] innumerable 'functions' encompassed a particular
| action." Id., at 756. And some Presidential conduct--for
| example, speaking to and on behalf of the American people,
| see Trump v. Hawaii, 585 U. S. 667, 701 (2018)--certainly can
| qualify as official even when not obviously connected to a
| particular constitutional or statutory provision. For those
| reasons, the immunity we have recognized extends to the
| "outer perimeter" of the President's official
| responsibilities, covering actions so long as they are "not
| manifestly or pal- pably beyond [his] authority." Blassingame
| v. Trump, 87F. 4th 1, 13 (CADC 2023) (internal quotation
| marks omit- ted); see Fitzgerald, 457 U. S., at 755-756
| (noting that we have "refused to draw functional lines finer
| than history and reason would support")._
|
| > _In dividing official from unofficial conduct, courts may
| not inquire into the President's motives. Such an inquiry
| would risk exposing even the most obvious instances of of-
| ficial conduct to judicial examination on the mere allegation
| of improper purpose, thereby intruding on the Article II in-
| terests that immunity seeks to protect. Indeed, "[i]t would
| seriously cripple the proper and effective administration of
| public affairs as entrusted to the executive branch of the
| government" if "[i]n exercising the functions of his office,"
| the President was "under an apprehension that the motives
| that control his official conduct may, at any time, become
| the subject of inquiry."_ [...]
|
| > _Nor may courts deem an action unofficial merely because it
| allegedly violates a generally applicable law. For in-
| stance, when Fitzgerald contended that his dismissal vio-
| lated various congressional statutes and thus rendered his
| discharge "outside the outer perimeter of [Nixon's] duties,"
| we rejected that contention. 457 U. S., at 756. Otherwise,
| Presidents would be subject to trial on "every allegation
| that an action was unlawful," depriving immunity of its
| intended effect. Ibid._
|
| * https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
| lenerdenator wrote:
| That last point is bothersome, because if you're looking at
| "color of law" as a defense, when does that end?
|
| A good example is that killer cop in Minneapolis, I don't
| remember his name or care to fill my brain with it. He was
| acting officially when George Floyd died under his care; he
| was responding to a 911 call that Floyd was the subject of.
|
| The cop was convicted of murder, but let's say that POTUS
| does something abhorrent (and this is likely to occur now
| that this is case law) under color of law and someone
| wanted to charge him or her because of it. Does that get
| somehow pulled back as it did for the cop?
| klyrs wrote:
| Trump's legal team argued, I think in this case, that a
| president should be immune from prosecution up to and
| including calling a hit on a political opponent. Which,
| given all the consternation about Biden persecuting his
| political opponent, sounded like a bit of an
| invitation...
| lenerdenator wrote:
| Well, SCOTUS didn't give POTUS license to do that, but
| they did give license to do something awful and then have
| their defense team argue that the act was a part of
| official duties, with a chance that a judge, possibly
| appointed by the President, agrees.
|
| The thing about Biden, since you brought him up, is he's
| unlikely to test this in any meaningful way with regards
| to Trump. Could he theoretically now have the USSS detail
| in charge of babysitting Trump indefinitely detain him,
| without consequence? Maybe. But he still has at least
| some belief in the process and won't do that.
|
| This gives me flashbacks to lessons about von Hindenburg.
| An old guard who had belief in the process going by it
| even when dealing with someone who has obvious and
| sneering contempt for that process.
| ffgjgf1 wrote:
| > An old guard who had belief in the process going by it
| even when dealing with
|
| To be fair the situation in Germany was multipolar.
| Hindenburg wasn't a huge fan of democracy or especially
| of one run by Catholics, liberals and socialists and just
| saw the nazis as a lesser evil..
| tick_tock_tick wrote:
| > Could he theoretically now have the USSS detail in
| charge of babysitting Trump indefinitely detain him,
| without consequence?
|
| I mean under what idea is that part of his official
| duties? If it's not it's literally exactly the same as
| before. Biden can do this at literally any moment. This
| court case doesn't change his ability to make unlawful
| moves.
| rtkwe wrote:
| Very much in the air and down to courts to decide,
| ordering the military around is certainly within the
| official acts but doing it on US soil not directly
| pursuant to external boundaries like the border generally
| wouldn't be.
|
| Ultimately I think the issue with this is we're trying to
| address a deep systematic issue through the system it's
| infected. Often those issues can't be solved that way and
| have to go around the system itself somehow. You're
| unlikely to be able to sue your way out of a fascist coup
| when it's successful for example, and similarly
| disadvantaged when the avenue is carrying water for a
| failed coup.
| treis wrote:
| On the other hand, if Trump marches on Washington at the
| head of an army surely Biden can take him out with an
| airstrike. Extreme scenarios often lead to bad law.
| pessimizer wrote:
| That's what happens when the unitary Executive and the
| Commerce Clause expand to devour the entire constitution.
| If we wanted to reduce the expansiveness of executive power
| (the Bush Doctrine), Obama was given the mandate to do it,
| but instead went out of his way to codify the practices
| which a lot of people thought had been illegal.
|
| To borrow from a similar claim: with the combination of the
| "Due Process" interpretation that backed the al-Awlaki
| killing (where Holder explained that due process was simply
| a term designating whatever process that they do, and could
| entirely occur in one's own head), and this judgement,
| _Trump could have stood in the middle of 5th Avenue and
| shot somebody and could not be charged for it._ So can
| Biden.
|
| -----
|
| edit:
|
| _Ten Years after the al-Awlaki Killing: A Reckoning for
| the United States' Drones Wars Awaits_
|
| https://mwi.westpoint.edu/ten-years-after-the-al-awlaki-
| kill...
|
| > From the Magna Carta to the US Constitution, citizens
| have sought ways to protect themselves from the arbitrary
| exercise of sovereign power. The drone strike on al-Awlaki
| reversed this historical process with an executive process.
| From the so-called "Terror Tuesday" or "targeting Tuesday"
| meetings where President Obama personally approved targets
| for drone strikes to the drafting of the legal logic
| justifying the extrajudicial killing of an American
| citizen, the strike on al-Awlaki was the result of decision
| making within the executive branch. Completely absent from
| the proceedings was the judiciary, which acts as a crucial
| buffer and neutral arbiter between the citizen and the
| executive.
|
| > In its own defense, the Obama administration argued that
| due process was not the same thing as judicial process and
| presented the test that it used to justify the targeted
| killing. While some observers have emphasized the
| narrowness of the legal standard, it was crafted
| specifically to target al-Awlaki, therefore reinforcing
| just how discretionary this exercise of executive power
| was. Furthermore, it was conceived of and adjudged
| constitutionally sufficient by attorneys who had previously
| opposed executive overreach during the Bush administration.
|
| [It's interesting that the al-Awlaki killing was over
| speech, too. So while the executive branch is not allowed
| to exercise prior restraint over speech, Presidents are now
| constitutionally immunized for murdering people to keep
| them from speaking.]
| kibwen wrote:
| _> the question will now turn to what is actually an official
| duty_
|
| Fortunately, the past rulings of this court have made the
| jurisprudence abundantly clear:
|
| If Biden orders Trump to be assassinated, that's unofficial,
| and he can be prosecuted.
|
| If Trump orders Biden to be assassinated, that's official, and
| he has complete immunity.
|
| Easy, right?
| dang wrote:
| Please don't take HN threads into political flamewar hell, or
| any other flamewar hell. That's what we're trying to avoid
| here.
|
| https://news.ycombinator.com/newsguidelines.html
| TylerE wrote:
| This feels likely highly selected be encorcement.
|
| Either let people vent or nuke the whole thread
| lenerdenator wrote:
| The problem is, the people who make the call of what is or is
| not an official duty are often in thrall to the President in
| one way or another.
|
| This is a disaster for rule of law.
| MagicMoonlight wrote:
| Well obviously... otherwise a politician paid by putin could
| remove the ability for the president to fire the nuclear
| weapons. You can't have randos deciding what the leader can
| do.
|
| The question is, will everyone surrounding a president allow
| the president to commit mass cullings or nuke California. And
| the answer is clearly not, outside of delusional fantasy
| scenarios.
|
| Trump wasn't even allowed to build a wall, and you think his
| VP would have let him commit genocide?
| lenerdenator wrote:
| > You can't have randos deciding what the leader can do.
|
| These aren't randos; they're federal prosecutors that are
| hired by the sitting President of the United States.
|
| Let's say that even if there is a decision that Trump's
| acts aren't related to his official duties and he somehow
| gets punished for those charges (I wouldn't hold my
| breath). How does this not give Biden and future Presidents
| a way to seriously abuse their power with a hope that
| they're not held accountable for it? Before it was just a
| hypothetical. Now we've crossed the Rubicon and established
| that there are scenarios in which a President can have
| unlimited power.
| throwaway173738 wrote:
| It's also likely that the project 2025 people will have
| almost every federal employee declared a political
| appointee which would give any sitting president the
| power to fire any prosecutor prosecuting him. This was
| one of the OMB changes Trump made at the end of his last
| presidency.
| lenerdenator wrote:
| There are some already drawing up list of those employees
| for targeting during a potential second Trump term, using
| a grant from the Heritage Foundation, IIRC.
| jkestner wrote:
| It may be a saving grace that little will get done when
| all the people with institutional knowledge are fired.
| kelnos wrote:
| I don't think this really matters in this specific case;
| the DoJ itself has a policy of not prosecuting sitting
| presidents.
| toast0 wrote:
| I mean, this isn't outside the norm. Most government
| employees and officials either elected, appointed, or
| hired generally don't have personal liability for
| discretionary acts of their office under the principle of
| qualified immunity.
| Gluber wrote:
| It's really weird to watch all that from the other side
| of the pond. In my country for example, all politicians
| have immunity but our parliament can revoke it for anyone
| using a majority ruling... ( having more than two
| political parties helps )
| tick_tock_tick wrote:
| > Now we've crossed the Rubicon and established that
| there are scenarios in which a President can have
| unlimited power.
|
| Yes, the places where he is explicitly given unlimited
| power.....
| tines wrote:
| That's a tortuous use of the word unlimited. The
| president has very limited power that is spelled out by
| the constitution and proscribed by Congress. Using that
| limited power in the way it is permitted is not
| "unlimitedly using limited power."
| ffsm8 wrote:
| Your looking at it from today's perspective, but these
| kinds of rules need to be looked at from the perspective of
| worst case scenario - don't limit it to the current
| candidates, think about what a future president in... Say
| 30yrs is gonna do.
|
| The weihmaher republik was a pretty good democracy back in
| the day. It just gave the leader certain rights, and
| suddenly Hitler became the dictator, creating Nazi Germany.
|
| Everyone needs a limit to their power, otherwise they'll be
| able to essentially flip the board and declare themselves
| emperor.
|
| Please don't project what I said here onto trump, Biden or
| Obama. None of them are on that level. It's just possible
| that a future president is that morally bankrupt,
| especially if social issues continue to accrue/inequality
| keeps growing unchecked.
| golergka wrote:
| > The weihmaher republik was a pretty good democracy back
| in the day.
|
| No it wasn't. It had armed gangs, both right and left-
| wing, fighting in the streets, completely failed monetary
| policy and sky-high level of corruption. The republic
| just started to kind of getting back to normal for a few
| years at the end of 1920s, and then was wrecked with
| Great Depression.
| lenerdenator wrote:
| > It had armed gangs, both right and left-wing, fighting
| in the streets
|
| See: 2020 in the US.
|
| > completely failed monetary policy
|
| See printing off a lot of money to deal with an emergency
| because the US hasn't had a meaningful conversation about
| revenue since 1993 when George HW Bush went back on "read
| my lips"
|
| > sky-high level of corruption
|
| You have people on this court accepting vacations and
| gifts from people who are wishing to push a certain
| political viewpoint on the court. They just ruled this
| was okay, too, by neutering a federal anti-bribery
| statute. Money is considered protected political speech.
|
| There are a _lot_ of parallels between Weimar Germany and
| the current state of the USA. More than anyone should
| feel comfortable with.
| ffgjgf1 wrote:
| To be fair there is still a very long way to go if you
| look at the actual details.
|
| > There are a lot of parallels between Weimar Germany and
| the current state of the USA
|
| It might be dysfunctional but largely in very different
| ways (unless you view it extremely superficially).
| ffgjgf1 wrote:
| > It had armed gangs, both right and left-wing, fighting
| in the streets
|
| And even moderate ones.
|
| > completely failed monetary policy
|
| IIRC during the period between 1923 and the Great
| Depression (i.e. majority of its existence) it was
| relatively stable.
| bonzini wrote:
| > Please don't project what I said here onto trump, Biden
| or Obama
|
| Technically the US is in this predicament because one of
| them wanted his vice president to not name a successor,
| after mentioning several times during his presidency that
| he wanted a third term.
|
| Just because he's a bad wannabe dictator, it doesn't mean
| he's not a wannabe dictator. He even said so himself,
| "just for one day".
| ffgjgf1 wrote:
| > It just gave the leader certain rights, and suddenly
| Hitler became the dictator, creating Nazi Germany
|
| Not it didn't give him those rights. The parliament
| (including moderate parties) explicitly granted him the
| power to so whatever he wanted after the nazis were
| already in power.
|
| https://en.m.wikipedia.org/wiki/Enabling_Act_of_1933
| ffsm8 wrote:
| Now read up on how he got his people into the Parlament
| and have your mind blown
| ffgjgf1 wrote:
| Winning elections? There was only so much they could do
| without cooperation from the other far-right parties and
| especially Hindenburg.
| ffgjgf1 wrote:
| > otherwise a politician paid by putin could remove the
| ability for the president to fire the nuclear weapons. You
| can't have randos deciding what the leader can do.
|
| No, apparently it's much easier and safer to just pay off
| the president directly.
| giantg2 wrote:
| This is really just the formal ruling that qualified immunity
| is applied to the presidency. Just like with other qualified
| immunity, it'll be messy to figure out what should be covered
| an what is not.
| squidbeak wrote:
| > The opposite holding, where they are liable for everything,
| would be untenable
|
| Only where their actions were already criminal under the law.
| This is the problem. No-one should be above the law.
| haroldp wrote:
| Obama ordered drone strikes that _intentionally_ killed at
| least two Americans. One he copped to, one he denied was
| intentional.
|
| https://en.wikipedia.org/wiki/Anwar_al-Awlaki
|
| https://en.wikipedia.org/wiki/Killing_of_Abdulrahman_al-Awla...
|
| To my mind, that is exactly the sort of thing I'd like to be
| hamstrung by a fear of prosecution.
|
| (Trump ordered drone a drone strike that also killed
| Abdulrahman's eight-year-old American sister.)
| klyrs wrote:
| Yeah, this pearl-clutching about presidents being tried for
| criminal acts is loathsome. I think quite a lot of people
| believe that quite a few past presidents are guilty of war
| crimes, and that there should be real consequences for those
| crimes. My knowledge of history in this regard more or less
| begins with the Vietnam War: since 1955, I am not aware of a
| single president who hasn't ordered acts that are crimes
| against humanity. And throughout that time period, our crimes
| against humanity have brought ruin to much of the world.
| Perhaps presidents _should_ fear the law.
| lupusreal wrote:
| > _Could Obama be prosecuted for ordering drone strikes that
| unintentionally killed two Americans?_
|
| Unintentionally? American citizens were the _intended targets_
| of some of his drone strikes. They weren 't in warzones either,
| it was effectively murder.
| runjake wrote:
| > Could Obama be prosecuted for ordering drone strikes that
| unintentionally killed two Americans?
|
| If you're referring to Anwar Al-Awlaki and his son, both US
| citizens, it was _intentional_.
|
| If you're _not_ referring to this, Obama 's already done this
| without getting charged.
|
| Being POTUS is an unenviable job.
|
| https://en.wikipedia.org/wiki/Anwar_al-Awlaki
|
| Edit: Since people are assuming my views on this topic, I'll
| say that they're seriously conflicted and I'm not trying to
| imply any particular viewpoint, only the facts.
| chasd00 wrote:
| on a tangent, was the drone operator charged? iirc "just
| following orders" only goes so far.
| haroldp wrote:
| No. It seems unlikely that the drone pilot would have all
| of that information beyond where the target was, that would
| be necessary to make an informed decision about
| participating in an extrajudicial execution of an American
| citizen.
| runjake wrote:
| From my experience in manned operations, you're basically
| only given a target, not the details.
|
| Based on that, I would assume the targeter did not know
| whom they were targeting. Or they did, knew the orders
| came from the National Command Authority[1] (Eg. POTUS)
| and did it anyway. I would have.
|
| 1. https://en.wikipedia.org/wiki/National_Command_Authori
| ty_(Un...
| itsdavesanders wrote:
| I keep seeing this argument pop up about "should Obama be
| prosecuted" like it's some sort of "gotcha liberal!"
|
| And as a liberal I think "hell YES he should be prosecuted!"
| The government shouldn't just go around killing citizens
| without due process. I don't care what letter is by their
| name.
| JamesBarney wrote:
| I think that is 99% true, with the exception of civilians
| who take up arms against the US.
|
| Imagine the civil war if the union couldn't kill
| confederates.
| SahAssar wrote:
| > Imagine the civil war if the union couldn't kill
| confederates.
|
| A full scale civil war really is an extraordinary case
| and is a lot more akin to a regular war than what we are
| talking about here.
|
| I'm more afraid of someone declaring war on an abstract
| concept (like the "war on terror") and then using broad
| powers meant to be used in normal wars between states
| that have declared combatants than I am of a civil war.
| foobarian wrote:
| I wonder how that would play out in today's Congress.
| There is technically no country to declare war on, unless
| you can declare war on yourself, so they would have to
| first redefine the United States as two parts. After that
| is passed, they could declare war on the opposing half. I
| guess I'm kind of seeing how the Chinese governments got
| themselves tied up in knots with their continuity of
| state and all.
| SahAssar wrote:
| I'd imagine that you can declare war on a specific group
| (that does not have to be defined as a state) like the
| "confederate states of america" without it having to be a
| nebulous concept like "terror". But I don't know enough
| to say for certain.
| kelnos wrote:
| If we have a declared war between the US and the people
| (US citizens or otherwise) who are taking up arms against
| the US, then sure, attack away.
|
| But otherwise, the only remedy should be judicial process
| against these people: arrests, trial, etc. Otherwise we
| have a term for it: extrajudicial killing.
|
| Of course, Congress has given the executive branch weird
| war powers over the past few decades, so legally I'm sure
| they're in the clear, unfortunately.
| vundercind wrote:
| I hear the same shit a lot. IRL, and in right wing media.
| "They don't seem to get that if they can prosecute Trump,
| we can prosecute Biden and Hillary for [any of several
| shaky charges]"
|
| No, no: we do get that. We just think that's a _good
| thing_. If you have the evidence (you don't, or we'd have
| seen, like, any of it at all) then by all means, prosecute
| the absolute shit out of them!
| downWidOutaFite wrote:
| That's the appropriate patriotic response that you'd hope
| all Americans would give, especially those who have sworn
| to defend the constitution. But what I've come to realize
| is that a lot of Americans somehow see it as their
| patriotic duty to destroy the Federal government, and will
| support anything that will undermine it, including breaking
| the rule of law and a scorched earth attack on "liberals"
| that wish to uphold our form of government. This is the
| legacy of the Confederate grievance that is still very much
| alive today.
| enragedcacti wrote:
| Its more like "immunity for any action within the realm of
| presidential power, regardless of motive or criminality".
| Accepting a bribe in exchange for a pardon would be A-ok on the
| basis that pardoning is a "conclusive and preclusive" authority
| of the president.
|
| > The opposite holding, where they are liable for everything,
| would be untenable.
|
| Literally no one was arguing for this and there are much more
| reasonable interpretations of presidential immunity you could
| compare this one to.
| ameister14 wrote:
| No, the act undertaken in exchange for the bribe would be
| under the immunity umbrella but the act of taking the bribe
| would not.
| enragedcacti wrote:
| > The President's authority to pardon, in other words, is
| "conclusive and preclusive," "disabling the Congress from
| acting upon the subject."
|
| > Congress cannot act on, and courts cannot examine, the
| President's actions on subjects within his "conclusive and
| preclusive" constitutional authority. It follows that an
| Act of Congress--either a specific one targeted at the
| President or a generally applicable one--may not
| criminalize the President's actions within his exclusive
| constitutional power. Neither may the courts adjudicate a
| criminal prosecution that examines such Presidential
| actions. We thus conclude that the President is absolutely
| immune from criminal prosecution for conduct within his
| exclusive sphere of constitutional authority.
|
| Further evidence is that Sotomayors makes the claim in no
| uncertain terms and that the majority makes zero effort to
| dispute it.
| ameister14 wrote:
| Yes, I agree - the President is immune for the official
| act they undertake, the existence of which allows for a
| the charge of bribery.
|
| They are not immune for the non-official act of
| soliciting or accepting bribes in exchange for an
| official act, which is the charge of bribery.
|
| So if the President took a bribe in order to make someone
| ambassador to Sweden, they could not be prosecuted for
| making that person the ambassador, but they _could_ be
| prosecuted for taking the bribe.
| vharuck wrote:
| Note that the majority opinion forbids prosecutors from
| referencing the official act in court, no matter the
| charge. So they'd have to prove the President accepted a
| bribe, but never mention anything about the
| ambassadorship. How could a jury ever reach a guilty
| verdict? At most, the evidence would point to a President
| receiving a lavish monetary gift.
|
| This isn't a misreading of the ruling. Justice Barret
| dissented from that particular part of the majority
| opinion, bringing up the hypothetical of bribery.
| ameister14 wrote:
| well that's insane
| tapoxi wrote:
| They just decided last week in Snyder v. United States
| that its only a bribe if you have clear evidence, and a
| suspicious gift is just fine and perfectly legal.
| ameister14 wrote:
| They essentially decided that with executives years ago
| with McDonnell v US
| sobellian wrote:
| SCOTUS has repeatedly hemmed in the scope of bribery
| charges and expanded executive privilege. The only way to
| nail the president for a corrupt appointment at this rate
| would be:
|
| _Enter LOBBYIST and POTUS on CONGRESS floor_
|
| LOBBYIST: _projecting voice_ I am now rendering payment
| in exchange my appointment as ambassador to Sweden. What
| say you?
|
| POTUS: _projecting voice_ Yes, I knowingly accept these
| improper funds and -
|
| _CONGRESS immediately gathers a quorum, impeaches, and
| removes POTUS mid-sentence_
|
| POTUS: - name you ambassador to Sweden.
| enragedcacti wrote:
| Discussing the expectations of appointments with
| potential candidates is an official act as president and
| would enjoy immunity the same way that conferring to
| commit crimes with the DOJ does. It is theoretically
| possible that the dumbest person alive could get
| convicted but generally the latitude seems to be insanely
| wide.
| mahogany wrote:
| How can you determine that the bribe was for an official
| act if "... courts cannot examine the President's actions
| on subjects within his "conclusive and preclusive"
| constitutional authority"? In other words, if courts
| cannot even examine the official action, then what is the
| bribe even for? A bribe needs to be connected to an
| action to be considered a bribe at all.
| mullingitover wrote:
| We just established last week that obviously the bribe
| would come after the official act, making it a gratuity and
| thus free and clear of any whiff of wrongdoing.
| ein0p wrote:
| What do you mean, "unintentionally"? Obama deliberately and
| knowingly ordered an extrajudicial killing of a US citizen.
| WalterBright wrote:
| Obama ordered Bin Laden killed. Should he be prosecuted for
| that?
|
| Remember that the President can still be impeached for "high
| crimes and misdemeanors".
| squidbeak wrote:
| I'm unclear why ordering the death of one of his nation's
| worst foes, whose network was still at war with the US, could
| ever be illegal?
| InTheArena wrote:
| He would have been sued with no immunity. Either by
| Pakistan, or by members of the family, or whomever. The
| fact that they had no legal basis for it is inevitable, it
| still would have resulted in years and years of legal pain
| WalterBright wrote:
| He was never convicted of a crime.
|
| I'm trying to point out that it is not at all easy to draw
| a line between what a President _could_ be prosecuted for
| and what he _should_ be prosecuted for.
|
| I'm pretty sure one could find abuse of power committed by
| about every President.
|
| Even Jefferson - he wasn't empowered to make the Louisiana
| Purchase, but did it anyway.
| mlyle wrote:
| I think this particular ruling gets it really wrong,
| though.
|
| For a president to be able to conduct "official acts" in
| self interest, with no obvious limits, is quite
| concerning.
|
| I think the president should enjoy a _weak presumption_
| that official acts are legitimate. But this goes way too
| far-- prohibiting consideration of motives, prohibiting
| using them as context or evidence in any other
| proceeding, and appearing to classify what would be
| horrible abuses as official acts.
| WalterBright wrote:
| There's also the Supreme Court ruling that it was illegal
| for Biden to do mass loan forgiveness, yet Biden did it
| anyway.
|
| Should Biden be prosecuted for that?
| trealira wrote:
| I think it was an impeachable offense, given that
| Democrats knew from the start that the president didn't
| have that power, yet he tried it anyway and let the
| courts strike it down. Pelosi even said once: "People
| think that the President of the United States has the
| power for debt forgiveness. He does not. He can postpone.
| He can delay. But he does not have that power. That has
| to be an act of Congress."
|
| I don't know if that would be prosecutable. Is there a
| federal law against acting as though you have powers you
| do not while in office?
|
| I suppose the difference is that having SEAL Team Six
| kill a political opponent on the President's orders seems
| like it should be classified as first-degree murder.
| WalterBright wrote:
| The court struck him down, and yet he has _continued_ to
| do it.
| trealira wrote:
| Are you implying that should make me want to change my
| previous answer?
| kweingar wrote:
| That is a good point. I would happily let Trump go free
| if it means that Biden can delete all student debt
| without fear of prosecution.
| kelnos wrote:
| I wouldn't. Edu debt is insidious, but it's not worth
| allowing the president break whatever laws desired as
| long as the actions can be twisted to be considered
| "official".
| doctorpangloss wrote:
| > Could Obama be prosecuted for ordering drone strikes that
| unintentionally killed two Americans? It seems like that world
| would hamstring the president far too much.
|
| I feel like you'd have a different opinion if it were you
| getting unintentionally killed!
| Jiro wrote:
| Saying "Obama killed Americans" is really demonstrating a
| problem with birthright citizenship. Without that, these
| Americans wouldn't be Americans.
| brightball wrote:
| President's can still be impeached as a result of their
| official acts. It seems that is intended to be the outlet for
| prosecuting the Executive Branch.
|
| Am I wrong there?
| InTheArena wrote:
| Nope - and this is a key point. The framers intended there to
| be a mechanism to hold a president accountable - impeachment.
| But it is badly formed, and has never been used, even though
| arguably it should have been in every case it was used in.
| rtkwe wrote:
| Also impeachment only removes them from office which is far
| from a complete punishment. They're still completely free
| people after impeachment, the only right that's taken away
| is the ability to be President which is a pretty paltry
| punishment especially for second term Presidents.
| TeaBrain wrote:
| There have been impeachment proceedings started against
| four presidents, all of which would qualify as it being
| used, even if the presidents weren't successfully
| impeached. Impeachment proceedings have been completed
| against 3 presidents and in all cases the senate vote
| failed to meet the 2/3 supermajority. An impeachment
| inquiry was also started against Nixon, but he resigned
| before the house could vote. One could argue that the
| impeachment inquiry in that case was successful.
|
| The procedure for impeaching federal judges is similar, in
| that the vote needs first to pass the house, then a
| supermajority of the senate. In 2009, federal judge Thomas
| Porteous Jr, was successfully impeached by congress.
| Congress then also voted to prohibit him from holding
| future federal office.
| kelnos wrote:
| The problem is that impeachment is a political process, not a
| legal or judicial process. I feel like using the term
| "prosecuting" to describe an impeachment trial in the Senate
| is a bit of a misnomer.
|
| Regardless, impeachment is there to remove the president from
| power. It can't jail or otherwise punish the president. The
| regular old legal system should be doing that, for everyone,
| regardless of whether or not they're an elected official.
| AdamJacobMuller wrote:
| > Could Obama be prosecuted for ordering drone strikes that
| unintentionally killed two Americans?
|
| How about the one which intentionally killed an American child
| (16)?
|
| Part of me wouldn't mind seeing that, but, I would have to
| agree that was an official act, regardless of how despicable it
| was.
| zzzeek wrote:
| > It seems like that world would hamstring the president far
| too much.
|
| except Obama ordered plenty of drone strikes including on
| American citizens, so actual data suggests he was not
| "hamstrung" _at all_.
| standardUser wrote:
| Those with the most power should receive the most scrutiny and
| face the greatest consequences for its misuse.
| 3D30497420 wrote:
| Agreed. It's not as if becoming president is forced on
| anyone.
|
| Judging from history, it is a pretty dangerous role as well
| and that doesn't seem to have dissuaded many people. If there
| are willing to risk their safety, I'd think the risk of
| prosecution wouldn't rank too highly either.
| insane_dreamer wrote:
| > Immunity for things they do as part of their official duties.
|
| How would attempting to overturn the results of a free and fair
| election be considered an "official duty"? If it is, then the
| Presidency became a dictatorship, leaving impeachment by
| Congress -- an extremely difficult bar -- the only recourse.
| Muromec wrote:
| It's only called an attempt if it fails. If it goes through
| till some point, it's His Royal Highness General Alladin
| bring order and justice and acting to grant their people all
| the freedoms they asked for.
|
| Source: I'm from places that had the Supreme Court (of
| places, not US) overturn an election result due to fraud
| kelnos wrote:
| This was my thought too. The ruling doesn't seem crazy; being
| legally liable for every single official act would actually
| make it untenable for the president to do many things a
| president needs to do without the real fear of prosecution if
| anything goes wrong. (And things go wrong! All the time!)
|
| But what's an "official act"? I would hope that courts consider
| that definition very narrowly. Also disallowing juries to see
| discussion of official acts as evidence for related wrongdoing
| is disastrous.
|
| Ultimately, though, it won't matter. Trump has effectively
| managed to delay this particular trial, and much of the
| remainder of its pre-trial process, until after the election
| and after the inauguration. I assume if he wins and takes
| office, he can instruct the DoJ to dismiss the case against
| him.
|
| The Georgia case can still proceed, regardless of the outcome
| of the election, but Willis completely screwed that one up with
| her idiotic romantic decisions.
| tdb7893 wrote:
| Equating Trump's accusations and drone strikes only makes sense
| if you're not allowed to look at intent, which historically is
| _very_ relevant for criminal law. More aptly Nixon would be
| immune from prosecution for obstructing the Watergate
| investigation under this ruling. In fact presidents are immune
| from using the justice department to go after political rivals
| here since determining prosecutorial priorities is clearly an
| official act (mentioned in the opinion) and you aren 't allowed
| to inspect intent. If either party used the justice department
| specifically for personal gain they should be in jail but they
| are literally immune now.
|
| The disallowing of considering even corrupt intent seems to be
| the real worry here. There's no distinction between using your
| power to promote general welfare and using it to line your own
| pockets or subvert democracy.
| throw0101b wrote:
| One summary:
|
| > _In a ruling on the last day before the Supreme Court's summer
| recess, and just over two months after the oral argument, a
| majority of the court rejected the D.C. Circuit's reasoning. As
| an initial matter, Roberts explained in his 43-page ruling,
| presidents have absolute immunity for their official acts when
| those acts relate to the core powers granted to them by the
| Constitution - for example, the power to issue pardons, veto
| legislation, recognize ambassadors, and make appointments._
|
| > _That absolute immunity does not extend to the president's
| other official acts, however. In those cases, Roberts reasoned, a
| president cannot be charged unless, at the very least,
| prosecutors can show that bringing such charges would not
| threaten the power and functioning of the executive branch. And
| there is no immunity for a president's unofficial acts._
|
| [...]
|
| > _In her dissent, which (like Jackson's) notably did not use the
| traditional "respectfully," Sotomayor contended that Monday's
| ruling "reshapes the institution of the Presidency." "Whether
| described as presumptive or absolute," she wrote, "under the
| majority's rule, a President's use of any official power for any
| purpose, even the most corrupt, is immune from prosecution. That
| is just as bad as it sounds, and it is baseless." "With fear for
| our democracy," she concluded, "I dissent."_
|
| * https://www.scotusblog.com/2024/07/justices-rule-trump-has-s...
| impossiblefork wrote:
| This summary sounds much more tolerable than my initial
| reading, and I think what constitutes the discrepancy is the
| absence of the statement
|
| > In a ruling on the last day before the Supreme Court's summer
| recess, and just over two months after the oral argument, a
| majority of the court rejected the D.C. Circuit's reasoning. As
| an initial matter, Roberts explained in his 43-page ruling,
| presidents have absolute immunity for their official acts when
| those acts relate to the core powers granted to them by the
| Constitution - for example, the power to issue pardons, veto
| legislation, recognize ambassadors, and make appointments
|
| which I can't find in the linked article, but which is of
| course in what you've linked to.
|
| In those enumerated things I think the ruling is quite
| tolerable, but the decision is much broader than that, and this
| presumptive immunity, etc. becomes quite burdensome.
|
| It's going to be like the state secrets privilege, and that has
| already allowed people to get away with torture, even people
| whose identities are well known, and where there is clear,
| unambiguous evidence that they were involved.
|
| What Roberts says almost makes it sound alright, but it
| definitely isn't.
| mperham wrote:
| Would this ruling make Nixon's actions in Watergate legal too?
| dustincoates wrote:
| > Roberts explained in his 43-page ruling, presidents have
| absolute immunity for their official acts when those acts
| relate to the core powers granted to them by the Constitution -
| for example, the power to issue pardons, veto legislation,
| recognize ambassadors, and make appointments.
|
| Most likely not. Watergate was a result of an election
| campaign, not official acts as President.
| jshier wrote:
| Yeah, Nixon should've ordered his secretary to do it, as all
| executive communications are now protected against criminal
| investigation.
| camel_Snake wrote:
| I'm not so sure about that. From this ruling:
|
| > Testimony or private records of the President or his
| advisers probing such conduct may not be admitted as evidence
| at trial.
|
| And the 'smoking gun' implicating Nixon:
|
| > Nixon then released the tapes six days later. On one tape
| was the so-called "smoking gun," showing that six days after
| the break-in Nixon had tried to use the CIA to block the FBI
| investigation of the burglary.
|
| IANAL, but my understanding is under this ruling those tapes
| would have never been made permissible evidence in court.
| Giving orders to the CIA is certainly an official act, as
| much as granting pardons is, and this court has established
| the examination of said motives is out-of-scope:
|
| > In dividing official from unofficial conduct, courts may
| not inquire into the President's motives. Such a "highly
| intrusive" inquiry would risk exposing even the most obvious
| instances of official conduct to judicial examination on the
| mere allegation of improper purpose. Fitzgerald, 457 U. S.,
| at 756. Nor may courts deem an action unofficial merely
| because it allegedly violates a generally applicable law.
| kibwen wrote:
| It would make it illegal to use the tapes as evidence against
| him. So it doesn't matter if it makes it legal or not, because
| it makes the illegality impossible to prove in a court of law
| by denying evidence to the prosecution.
| tuna74 wrote:
| Could you explain this a bit further?
| DeRock wrote:
| From the official ruling on https://www.supremecourt.gov/op
| inions/23pdf/23-939_e2pg.pdf:
|
| > (3) Presidents cannot be indicted based on conduct for
| which they are immune from prosecution. On remand, the
| District Court must carefully analyze the indictment's
| remaining allegations to determine whether they too involve
| conduct for which a President must be im- mune from
| prosecution. And the parties and the District Court must
| ensure that sufficient allegations support the indictment's
| charges without such conduct. Testimony or private records
| of the President or his advisers probing such conduct may
| not be admitted as evidence at trial.
| vundercind wrote:
| E.v.e.r.y.o.n.e should just go read the decision and
| dissents. It's not that long or hard to follow. Then
| probably go read all of the Federalist Papers, if they
| haven't already, or one of the Constitutional Debate
| readers that are readily available and may include much
| of Federalist.
|
| The primary source here is plenty accessible, and free.
| And alarming.
| legitster wrote:
| > And the prosecutor may admit evidence of what the
| President allegedly demanded, received, accepted, or
| agreed to receive or accept in return for being
| influenced in the performance of the act. See 18 U. S. C.
| SS201(b)(2). What the prosecutor may not do, however, is
| admit testimony or private records of the President or
| his advisers probing the official act itself.
|
| The argument is not that all recordings are off limits,
| but if the President asks his lawyer "what is a bribe?"
| that can't be used as evidence he took a bribe.
| gmd63 wrote:
| All official recordings are off limits. Even in
| prosecution of "unofficial" actions. Barrett even
| disagreed with this.
| stefan_ wrote:
| "If official conduct for which the President is immune may
| be scrutinized to help secure his conviction, even on
| charges that purport to be based only on his unofficial
| conduct, the "intended effect" of immunity would be
| defeated."
| legitster wrote:
| This is not an accurate reading. In the decision, gathering
| of evidence is not protected by immunity.
|
| People are jumping on language in the decision that says
| discussions or probings about the criminal nature of the
| crime would not be admissible.
|
| So Nixon ordering Watergate would still be admissible - Nixon
| discussing with his legal team or cabinet after Watergate
| broke would not be.
| tacomonstrous wrote:
| How would you prove anything if you can't present any of
| his actual conversations about Watergate as evidence?
| legitster wrote:
| > And the prosecutor may admit evidence of what the
| President allegedly demanded, received, accepted, or
| agreed to receive or accept in return for being
| influenced in the performance of the act. See 18 U. S. C.
| SS201(b)(2). What the prosecutor may not do, however, is
| admit testimony or private records of the President or
| his advisers probing the official act itself.
|
| The argument is not that all recordings are off limits,
| but if the President asks his lawyer "what is a bribe?"
| that can't be used as evidence he took a bribe.
| tacomonstrous wrote:
| Hard to read this and conclude that there can be any
| actual way to produce admissible evidence. Can you give
| me an example of what conversations you can use as
| evidence if anything involving him or his advisers is off
| limits?
| legitster wrote:
| The court uses the language "in the first instance". So
| it sounds like you can use anything generated by the
| crime itself, but you can't dredge up other conversations
| about the crime.
|
| Nixon ordering an illegal action is a crime, and Nixon
| destroying evidence was definitely a crime, so evidence
| of either would be game.
| gmd63 wrote:
| Pressuring an aide, via threats of violence, or whatever,
| is now blanket immune under this.
|
| You cannot use official communications between a
| president and his VP for example, as evidence, even in
| prosecution of an unofficial act that is criminal.
|
| A horrendously stupid, devoid of any logic ruling, so
| much so that Barrett even disagreed with this part.
| legitster wrote:
| > "... The indictment's allegations that Trump attempted
| to pressure the Vice President to take particular acts in
| connection with his role at the certification proceeding
| thus involve official conduct, and Trump is at least
| presumptively immune from prosecution for such conduct.
|
| > The question then becomes whether that presumption of
| immunity is rebutted under the circumstances. It is the
| Government's burden to rebut the presumption of immunity.
| The Court therefore remands to the District Court to
| assess in the first instance whether a prosecution
| involving Trump's alleged attempts to influence the Vice
| President's oversight of the certification proceeding
| would pose any dangers of intrusion on the authority and
| functions of the Executive Branch."
|
| As per the ruling, Trump does not get blanket immunity
| with his interactions with Pence. But it is the
| prosecution's responsibility to now make a case that it
| was outside of his discretion.
|
| I'm not arguing that this is a clear or useful legal
| distinction, but Trump only got true "blanket" immunity
| for the first indictment regarding the abuse of the
| Justice Department.
| gmd63 wrote:
| And how, given section III-C of the opinion that Barrett
| disagreed with, would you present evidence of a threat
| made during official communications?
| newprint wrote:
| I'm actually curious about this as well. Would like to hear
| some opinion.
| citizen_friend wrote:
| Well you can always impeach a president.
| Miner49er wrote:
| Well no, technically the president can use the military to
| stop impeachment. That would be considered an "official act"
| and they would be immune.
| citizen_friend wrote:
| I think you're imagining scenarios not supported in any of
| the written opinions.
| Miner49er wrote:
| I don't see how.
|
| The President has immunity when acting with powers
| granted from the Constitution. Commanding the military is
| one of those powers. The majority opinion also
| specifically says motives can't be considered. So they
| are legally immune if they order the military to stop
| impeachment.
| afavour wrote:
| I'm dismayed by this ruling but I'm curious: can someone defend
| it? I'm able to understand the counter-perspectives to my own on
| many hot-button issues (2nd amendment, abortion bans) but this
| one seems very nakedly bad. But maybe I'm just not seeing the
| counterpoint?
| zeroonetwothree wrote:
| If presidents could be prosecuted for their official acts then
| the next time the other party takes over they will just
| immediately find various crimes their predecessor "committed"
| (there are probably 10s of 1000s of them).
| afavour wrote:
| But isn't that the status quo? Why didn't that happen when
| Obama left office? It's not like the Republicans were lacking
| a desire for retribution against him.
|
| "there are probably 10s of 1000s of them" also feels a little
| lacking to me. Do we have concrete examples?
| chasd00 wrote:
| i think it was just a "gentleman's agreement" to not
| prosecute former presidents or rivals. I remember in the
| 2016 debates when Trump said he would appoint a special
| prosecutor to look into Hillary her eyes got real big about
| how ignorant Trump was to the way things are and have been.
| That's one of the downsides to a political outsider a lot
| of formally unasked questions start needing answers.
| throw0101b wrote:
| > _i think it was just a "gentleman's agreement" to not
| prosecute former presidents or rivals._
|
| How many former presidents or rivals tried to prevent the
| transfer of power?
|
| * https://en.wikipedia.org/wiki/Self-coup
|
| There's a _specific reason_ why Trump is being
| investigated. We 're not talking about jay-walking here.
|
| And there's also _intent_ with action, using _yet
| another_ case: Biden had classified documents in his home
| residence, but he handed them back to the government with
| minimal fuss. Trump had classified documents and moved
| them around _even after being subpoenaed_ to return them:
|
| * https://www.theguardian.com/us-news/2022/oct/12/donald-
| trump...
|
| * https://apnews.com/article/trump-justice-department-
| indictme...
| Ancapistani wrote:
| > when Trump said he would appoint a special prosecutor
| to look into Hillary
|
| As best I can tell, most who voted for him didn't
| actually believe he would do that - and he didn't. The
| whole "because you'd be in jail" was Trump being Trump,
| not a campaign promise.
|
| When Trump says something like that, knowing whether he's
| in earnest or being bombastic is like knowing what parts
| of the Bible are literal and what parts are figurative -
| it's very much open to individual interpretation.
| sickofparadox wrote:
| I would imagine that Obama is quite happy with his
| presidential immunity for ordering the extrajudicial
| killing of an American citizen via drone strike[1].
|
| [1] https://mwi.westpoint.edu/ten-years-after-the-al-
| awlaki-kill...
| afavour wrote:
| Yes I'm quite sure Obama is happy with it. Should the
| rest of us be? Would a court case over the legality of
| such an action not be a positive thing?
| ceejayoz wrote:
| I mean, is that the out for Biden? A drone strike on Mar-
| a-Lago as an "official act" for which he enjoys absolute
| immunity?
| newfriend wrote:
| If he wants a civil war, sure.
| ceejayoz wrote:
| Obviously, but we're to believe it'd be entirely legal to
| do so?
| Ancapistani wrote:
| No, because of the use of the military within the borders
| of the country is separately and explicitly illegal under
| US law.
| gaganyaan wrote:
| But now that doesn't matter. The president is immune as
| long as there's the defense of it being an official act
| friend_and_foe wrote:
| 3. 3 american citizens. He ordered operations that killed
| both that guys kids also, the latter of which was carried
| out in the first month of Trump's presidency. They were
| 12 and 8. Both were supposedly accidents.
| throw0101b wrote:
| > _Why didn 't that happen when Obama left office?_
|
| What illegal acts did Obama do, while POTUS, yet outside of
| his 'official duties', what would warrant prosecution?
|
| Remember the context for this decision: Trump's
| participation in the events of January 6:
|
| * https://en.wikipedia.org/wiki/January_6_United_States_Cap
| ito...
|
| You know, the insurrection in which people have been found
| guilty of seditious action:
|
| * https://en.wikipedia.org/wiki/Criminal_proceedings_in_the
| _Ja...
|
| Were his January 6 actions part of his official duties?
| shadowtree wrote:
| He droned and killed a US citizen without due process.
| Literal murder.
| oblio wrote:
| Based on other comments, that was unintentional. So
| manslaughter, at worst.
| WillPostForFood wrote:
| Obama killed 4 Americans in drone attacks. 3
| unintentionally, but Anwar Awlaki was targeted.
| lupusreal wrote:
| Obama didn't prosecute Bush, so the Republicans didn't try
| to prosecute Obama. Professional courtesy.
| kibwen wrote:
| If presidents break the law, they _should_ be prosecuted. I
| don 't care who you are or what party you're with.
| readthenotes1 wrote:
| First, I agree . Second, the first step in that is the
| impeachment process.
| jkaplowitz wrote:
| Impeachment is not required in order to allow prosecuting
| a president, and even Chief Justice's majority opinion
| which granted presidents significant immunity explicitly
| rejected the idea that impeachment is such a
| prerequisite.
|
| Impeachment is only a prerequisite to the Senate possibly
| convicting in the political rather than criminal trial
| and removing the person from office, and then possibly
| disqualifying them from future federal office. It has no
| bearing on whatever criminal procedures are not blocked
| by immunity.
| vundercind wrote:
| It is super-duper clear that's not intended by the
| authors of the constitution, judging from their writings
| and the records of the debate over the constitution, and
| from the very limited relevant text in the constitution
| itself.
|
| This is laid out clearly in the dissent, complete with
| references for further reading. Meanwhile the majority's
| argument is "lack of immunity (which has, so far, not
| existed!!!) would make the president too timid, so we're
| adding immunity".
| cogman10 wrote:
| Yup, all the originalists and textualists on the court
| running and hiding when the outcome benefits their
| person. Instead it's just "Well, we like trump so let's
| benefit him".
|
| What a horrible corrupt court.
|
| I'm 1000% sure that if trump wins and starts prosecuting
| his political rivals the court will give it the nod as
| being AOK.
| WillPostForFood wrote:
| The supreme court ruled against Trump many times during
| his first term. Census rules, immigration, 2020 election
| lawsuits. Reality doesn't match your perception.
| claytongulick wrote:
| > Meanwhile the majority's argument is "lack of immunity
| (which has, so far, not existed!!!) would make the
| president too timid, so we're adding immunity".
|
| It has existed, it just hasn't been tested. The supreme
| court didn't "grant" immunity, they interpreted the
| Constitution to come to the conclusion that immunity
| _already exists_.
|
| And the reason that it's happening _now_ is because no
| political party has been willing to escalate political
| differences with presidential candidates to the point of
| criminal charges before.
|
| That's changed recently, hence the need for the ruling.
| vundercind wrote:
| Prosecuting attempts to overturn an election isn't
| prosecution over "political differences".
|
| > they interpreted the Constitution to come to the
| conclusion that immunity already exists.
|
| The constitution saying nothing about immunity except
| that it _is not_ conferred to someone who has been
| impeached, no, they did not interpret the constitution.
|
| [edit] specifically, it's this bit:
|
| > Judgment in Cases of Impeachment shall not extend
| further than to removal from Office, and disqualification
| to hold and enjoy any Office of honor, Trust or Profit
| under the United States: but the Party convicted shall
| nevertheless be liable and subject to Indictment, Trial,
| Judgment and Punishment, according to Law.
|
| That is: impeachment can't impose punishments aside from
| removal & disqualification, but that ought not be taken
| to mean that _further_ prosecution for the same acts may
| not be undertaken. That's all it says on the matter. They
| relied on the Federalists stating in the Federalist
| Papers and elsewhere that they wanted a fairly active
| President to conclude the President needs immunity.
| Meanwhile the Federalists also wrote that the President
| ought not be above the law, as that's what separates our
| system from monarchy, but that's inconvenient so you have
| to keep reading to the dissent to see that presented.
| zarzavat wrote:
| Indeed. The US constitution envisages impeachment by
| Congress as the first step to a criminal conviction.
|
| Trump was acquitted by the Senate for his conduct on Jan
| 6. It's OK to disagree with the acquittal but it did in
| fact happen.
|
| Ultimately it's really hard to design a constitution that
| is effective in opposing half of the population. You
| can't solve mass social issues with laws.
| falcolas wrote:
| The impeachment process only applies to a sitting
| president. Once they're out of office, the threat
| provided by an impeachment is gone.
|
| More specifically, the role of the house impeachment and
| senate hearing is removal someone from office. That's it.
| There's no potential for punitive action (fines, jail,
| etc).
| toast0 wrote:
| > The impeachment process only applies to a sitting
| president. Once they're out of office, the threat
| provided by an impeachment is gone.
|
| > More specifically, the role of the house impeachment
| and senate hearing is removal someone from office. That's
| it. There's no potential for punitive action (fines,
| jail, etc).
|
| Judgement in impeachment can extend to "disqualification
| to hold and enjoy any Office of honor, Trust or Profit
| under the United States" [1]
|
| But, judgement in impeachment is political, and if you
| could get enough votes to impeach a former President in
| order to disqualify them from running again, it seems
| pretty unlikely that they'd be able to get nominated and
| elected in a future election; so it's not a big threat
| IMHO; at least assuming a two-thirds majority is required
| to remove, then a majority to disqualify.
|
| The constitution is not clear that removal from office
| and disqualification are linked, although in practice,
| disqualification has happened only after a removal, and
| the Senate has determined simple majority for removal is
| sufficient. [2] So, it might be possible to do a
| disqualification as a simple majority, without a removal.
|
| [1] https://constitution.congress.gov/constitution/articl
| e-1/#ar...
|
| [2] https://law.justia.com/constitution/us/article-2/49-j
| udgment...
| klyrs wrote:
| > the first step in that is the impeachment process
|
| Only, the requirement of a supermajority means that a
| minority can prevent a president from being convicted of
| blatantly criminal acts. This system is demonstrably weak
| against corruption, to which the USSC has given its full-
| throated approval.
| mrkeen wrote:
| I think this was tried somewhat recently. The counter-
| argument was "actually let's not impeach. Let's just wait
| for the next election and see what the voters think.
| Voting is the real impeachment."
| trealira wrote:
| Impeachment is a means for the elected officials of
| Congress to remove a sitting president from office. It
| doesn't begin a prosecution, and it doesn't have to be
| for anything illegal. Suggesting impeachment is there to
| sidestep the president's immunity is not reassuring. It's
| like if CEOs were under presumptive immunity, and the
| first step to prosecution were to vote to remove the
| sitting CEO.
| jjk166 wrote:
| The issue is that presidents can be prosecuted even if they
| likely didn't break the law. It would be possible to just
| keep throwing bullshit charges at a former president either
| until one sticks or until their resources to fight off an
| unending string of legal battles is exhausted. It does make
| sense that the bar to prosecute someone should be higher
| when they are particularly likely to be the subject of
| malicious prosecution and the fear of such would interfere
| with them carrying out their duties.
|
| The issue is that blanket immunity for official acts is not
| just raising the bar, it's launching it into orbit. Not
| only can a president not be prosecuted for questionable
| decisions or on scant evidence, they can not be prosecuted
| when their crimes are heinous and obvious so long as it is
| plausibly within their domain.
| mminer237 wrote:
| You can still prosecute someone for whatever the
| prosecutor wants. This doesn't change that. If someone is
| acting in bad faith, they can do so regardless of the
| law.
| jjk166 wrote:
| The prosecutor can still begin a prosecution, but now it
| will be dismissed pretty much immediately unless there is
| good reason to believe that the action was not an
| official act.
| mrkeen wrote:
| > It would be possible to just keep throwing bullshit
| charges at a former president either until one sticks or
| until their resources to fight off an unending string of
| legal battles is exhausted.
|
| I can't make up my mind if this is "movie plot threat" or
| not. Has it happened to other important figures before?
|
| And can the prosecution be punished for this kind of
| behaviour?
|
| Then again, I guess if you can shop around for
| (politically-appointed) judges, it wouldn't be too hard
| to find a judge to indulge some bullshit prosecution.
| user_7832 wrote:
| > I can't make up my mind if this is "movie plot threat"
| or not. Has it happened to other important figures
| before?
|
| SLAPP-suits do exist, but they're generally against poor
| folks who can't a long legal process rather than richer
| individuals.
| vharuck wrote:
| >The issue is that presidents can be prosecuted even if
| they likely didn't break the law. It would be possible to
| just keep throwing bullshit charges at a former president
| either until one sticks or until their resources to fight
| off an unending string of legal battles is exhausted.
|
| I have no problem choosing between the chance there will
| be a President who abuses immense power over everyone in
| the nation with no real accountability, and the chance a
| slew of people (prosecutors, investigators, judges) will
| act maliciously and repeatedly to persecute a single
| person. Does SCOTUS really fear that federal Judges like
| them can't recognize malicious and baseless indictments?
| jshier wrote:
| Corrupt admins will already do that, so giving blanket
| immunity doesn't actually help anyone. All they need to then
| corruptly prosecute anyone is a court to agree that some act
| was "unofficial".
| pessimizer wrote:
| It has never happened before now. It isn't because past
| presidents have never been criminals, it was convention.
| It's a way for your country not to turn into Haiti or
| Zimbabwe.
| jkaplowitz wrote:
| Nixon was very probably criminal, but Ford's pardon
| prevented a prosecution without having to settle the
| question of whether Nixon would have been immune in the
| absence of a pardon.
| ApolloFortyNine wrote:
| People forget that Obama actually did some questionable
| things too. He greenlit drone strikes that killed at least 2
| Americans, not to mention civilian casualties. And he was the
| president that the 'holding camps' at the border (not sure
| what to call them) were started.
|
| No one (that I know of) seriously thought he should go to
| prison for those acts, but honestly the argument seems pretty
| easy to be made without some sort of immunity.
| vlovich123 wrote:
| They could be prosecuted, but prosecutors generally don't
| like to bring losing cases. And the actions being official
| acts was already a defense. The distinction was that you
| could still get prosecuted, but you just had to show a non
| corrupt intent in doing the action and get the case easily
| dismissed. Now you don't even need to show that you had non
| corrupt intent - just claim official acts and no lawsuit is
| possible in the first place.
| pacifika wrote:
| I guess you need some new parties
| digging wrote:
| Not if there was a grace period before prosecution could be
| brought, or literally any other mechanism that exists between
| the binary "impossible to prosecute" and "guaranteed to
| prosecute"
| inpdx wrote:
| "If presidents could be prosecuted for their official acts"
|
| This has always been presumed to be the case yet it has never
| resulted in what you say. It's a nonsense theoretical as
| cover for what is otherwise utterly indefensible as making
| the president king.
| HaZeust wrote:
| This wasn't even a problem before the last 4 years, and the
| only times it were - was when the suspecting president agreed
| they broke the law and stepped down, or got impeached.
|
| We have monarchy after monarchy to show that sovereign
| immunity builds toxic ontological relationships between
| participants of a political system, and often invites
| tyranny. Your suspicions, for 238 years straight, have been
| amiss.
| electrondood wrote:
| This hasn't been a problem for 250 years, and it's still
| not a problem anyone has.
|
| This ruling serves one specific purpose: to protect one
| single person from the consequences of their crimes.
| HaZeust wrote:
| We are in agreement.
| dustincoates wrote:
| Sure. You want a President to be able to carry out the roles of
| the office without concern that his or her political opponents
| will use the courts to try to punish those actions. There are
| reasonable disagreements on where Presidential authority begins
| or ends on many topics, and you want the limits to be either
| through separation of powers (e.g., the Judicial Branch can
| bring an end to actions, the Legislative can impeach and remove
| the President) or through the ballot box.
|
| This does not mean, including from the majority opinion, that
| anything the President does is immune from challenges. If the
| President directs a cover-up for his campaign (Nixon) or
| directs a Governor to find enough ballots for him to win or
| directs "alternate electors" via fraud (Trump), this is not an
| official action. Trump's lawyers admitted as much in the oral
| arguments.
| afavour wrote:
| > Sure. You want a President to be able to carry out the
| roles of the office without concern that his or her political
| opponents will use the courts to try to punish those actions.
|
| Hrm. Surely the implication you're outlining here is that the
| President will be breaking the law while carrying out "the
| roles of the office"? Is that not a concern?
| dustincoates wrote:
| The next sentence addresses that--there are reasonable
| disagreements to the extent that some actions are legal or
| not.
| afavour wrote:
| Why is a court the wrong place to settle those
| disagreements? That is to say, why is it preferable for a
| President to face the possibility of impeachment by
| Congress over a jury of everyday citizens? Seems
| considerably easier to rig the former than the latter.
| dustincoates wrote:
| Let's take Biden's student loan forgiveness as an
| example. Some say that he overstepped his authority.
|
| The courts should decide if that act is legally
| permitted, but it would be a tough pull to think that he
| should be personally responsible for that, including
| potential jail time.
|
| Now egregious cases that fall outside of the reasonable
| expectations of the role of the President. Sure, those
| should go to the courts. But I don't think this case
| prevents that. Most of what Trump did after the election,
| IMO, was clearly as a candidate, not a President.
| steadfastbeef wrote:
| Because the people are stupid?
| afavour wrote:
| Why do we even let them vote at all? Hello, slippery
| slope.
| camgunz wrote:
| Yeah but your argument ignores the fact that this all has
| to be hashed out after the fact. Before this ruling,
| presidents could ask counsel if something was legal or
| not (ex: there are tapes of Trump doing this during his
| attempt to steal the election) and they could answer
| based on statutes and case law. Now the answer always has
| to be "depends on what judge we get, there are no
| precedents". Jackson makes this argument in her dissent,
| and I think she's right that this is a sea change in the
| relationship between the US and its president.
| mlinhares wrote:
| The court never defined what are or aren't official acts and
| it should be straight forward for the president to say that
| spying on his enemies, that are also the enemies of the
| state/government, is an official act, as they are protecting
| the constitution from those that would do it harm.
|
| Presidents are effectively kings now, won't be long until one
| declares himself one for good.
| blue_dragon wrote:
| > it should be straight forward for the president to say
| that spying on his enemies, that are also the enemies of
| the state/government, is an official act
|
| This would be challenged in court by the victims of the
| President's spying, and the court would ultimately decide
| whether or not the spying constituted an "official act".
| CapcomGo wrote:
| So now the process is to wait years to see if something a
| president does is technically an 'official act' or not.
| Seems like there should have been a better way to solve
| this.
| lesuorac wrote:
| W.r.t. SCOTUS's ruling, you'd claim the main problem is that
| "Both the District Court and the D. C. Circuit declined to
| decide whether the indicted conduct involved official acts.".
| If the lower courts had claimed the conduct wasn't official
| when they denied the motion to dismiss then SCOTUS wouldn't
| have vacated the lower rulings?
| denton-scratch wrote:
| > You want a President to be able to carry out the roles of
| the office without concern that his or her political
| opponents will use the courts to try to punish those actions.
|
| Why?
|
| In the UK we of course have no president; all government
| actions can be subjected to judicial review, whichever
| minister was in charge. Judicial review is a civil procedure,
| not a criminal one. All the court can do is order the
| government to reverse the unlawful decision, and make good
| its consequences.
| Maxatar wrote:
| The UK parliament is not subject to judicial review.
| Judicial review in the UK only applies to crown
| corporations or specific public institutions. Such a
| position would be considered repulsive to the vast majority
| of Americans.
| insane_dreamer wrote:
| > You want a President to be able to carry out the roles of
| the office without concern that his or her political
| opponents will use the courts to try to punish those actions.
|
| No, we do not. That's the whole point of the checks and
| balances. If his political opponents are able to prove their
| case before the courts, showing that the president broke the
| law, then they should be able to.
| claytongulick wrote:
| Are you willing to see Biden go to jail because an activist
| DA in TX used an obscure law that no one had ever been
| prosecuted under, in a 90+% "red" venue, with a complicit
| judge and jury?
|
| This ruling is meant to protect the office from precisely
| these types of politically motivated attacks.
| insane_dreamer wrote:
| Better than the alternative. I would imagine that such a
| case would be appealed anyway (just as Trump has appealed
| his cases).
| camgunz wrote:
| > Are you willing to see Biden go to jail because an
| activist DA in TX used an obscure law that no one had
| ever been prosecuted under, in a 90+% "red" venue, with a
| complicit judge and jury?
|
| This has always been possible ( _Nixon v. Fitzgerald_ )
| but has never happened. Choose whatever reason you want:
| any amount of decency, any sense of shame, low odds of
| winning, likelihood of terrible retribution from
| generally good people.
| HaZeust wrote:
| Sure. One-off's of loose checks and balances are better
| than codified law(s) and ruling(s) that we don't have any
| at all.
| Hikikomori wrote:
| Bribing a porn star to keep quiet about your extramarital
| sex and breaking accounting/campaign financing laws by
| trying to disguise the payments before you are president
| should be considered an official act by the president?
| Weird argument to make.
| philjohn wrote:
| Except doesn't the "can't enter things into evidence" clause
| of the ruling mean that bringing the prosecution against
| Nixon would never have had a snowball's hell in chance of
| being argued and won?
| ethbr1 wrote:
| I'm curious how that one gets interpreted in subsequent
| lower court (and Supreme Court) opinions.
|
| It feels like once an act is to be classified as
| unofficial, then evidence of same cannot be covered,
| regardless of whether it's personal or not.
|
| So maybe whittled down to "You can't go on an investigation
| of the President's personal/private documents because you
| have a _suspicion_ of an unofficial act. " Which feels more
| like the Supreme Court's intent.
| camgunz wrote:
| > Trump's lawyers admitted as much in the oral arguments.
|
| Trump's counsel did admit this, but the opinion contains no
| such carve out. It says "he is entitled to at least
| presumptive immunity from prosecution for all his official
| acts" and declines to define what separates an official from
| an unofficial act, leaving it up to courts on a case-by-case
| basis. The dissent--rightly--points out that this is way more
| than Trump asked for:
|
| > Inherent in Trump's Impeachment Judgment Clause argument is
| the idea that a former President who was impeached in the
| House and convicted in the Senate for crimes involving his
| official acts could then be prosecuted in court for those
| acts. See Brief for Petitioner 22 ("The Founders thus adopted
| a carefully balanced approach that permits the criminal
| prosecution of a former President for his official acts, but
| only if that President is first impeached by the House and
| convicted by the Senate"). By extinguishing that path to
| overcoming immunity, however nonsensical it might be, the
| majority arrives at an official- acts immunity even more
| expansive than the one Trump argued for. On the majority's
| view (but not Trump's), a former President whose abuse of
| power was so egregious and so offensive even to members of
| his own party that he was impeached in the House and
| convicted in the Senate still would be entitled to "at least
| presumptive" criminal immunity for those acts.
| ninininino wrote:
| I believe the argument conservatives have been trying to make
| that aligns with the court's ruling is mostly about some very
| specific fear that an incoming or current president could
| prosecute former presidents and therefore crush dissent.
|
| So basically you have the right scared of former presidents
| being unjustly targeted in a way that threatens the democratic
| process, and then you have the left scared that the immunity
| will itself threaten the democratic process/enable dictators
| and corruption. Unjust use of prosecution as a political weapon
| vs just plain corruption being shielded.
|
| It sure seems to me like it would be better if these matters
| could be handled on a case by case basis rather than in some
| black and white "former presidents can" vs "former presidents
| can't" be prosecuted way, but perhaps that is what will end up
| happening, not a legal expert.
| dustincoates wrote:
| > if these matters could be handled on a case by case basis
| rather than in some black and white "former presidents can"
| vs "former presidents can't" be prosecuted way
|
| That's largely what's happening here. The President _can_ be
| prosecuted for things that fall outside of the official role
| as President. This is not a blanket immunity.
| haswell wrote:
| Defining what is considered "official" and more
| importantly, what is absolutely _not_ official is now at
| issue and where things get sticky.
|
| Certainly a president carrying out actions that call for
| prosecution would make the claim that those actions were
| either official or required to carry out the official
| duties of the office.
|
| Any hope of justice now depends entirely on being able to
| draw that line and agree about where it's drawn.
| mywittyname wrote:
| This is the same loophole applied to qualified immunity in
| general. On the surface, it appears like there's criteria
| to consider, but such criteria cannot possibly exist.
|
| It's like saying, "Bribery is only illegal if it is called
| bribery during the commission of the crime. But also, The
| State cannot investigate what was discussed during such
| events without evidence that a crime was committed." They
| are basically establishing legal paradoxes.
| dagmx wrote:
| I can't defend the ruling based on the actual effects, because
| it puts someone above the law.
|
| However one could argue that this is the logical extension of
| qualified immunity for police officers which is precedent the
| court has already set.
|
| To be clear though, I think qualified immunity of any sort
| shouldn't be allowed. It's a subversion of any kind of fair
| justice.
| cushpush wrote:
| Diplomatic Immunity
| ethbr1 wrote:
| The office of the President has always been above many laws.
|
| The redress has been assumed to be federal elections.
|
| If the President were to abuse the law (to the extent he
| could with the power of the executive branch), then he would
| be voted out of office in (max) 4 years.
| czl wrote:
| > then he would be voted out of office in (max) 4 years.
|
| Assuming the abuse of power does not prevent this.
| alistairSH wrote:
| This is like qualified immunity (usually for police), but
| applied to POTUS.
|
| You want public servants to be able to do their jobs without
| fear of time-wasting litigation.
|
| But, if you grant blanket immunity, the poilice (or POTUS) are
| free to do whatever they want.
|
| We're quite clearly tilted way over into "do what they want"
| territory.
| Waterluvian wrote:
| I think that's the argument, yes. I think it's facially a bad
| one when you consider all the examples of functional police
| that lack QI. Makes me skeptical that it's a good faith
| argument.
| alistairSH wrote:
| 100% agree.
|
| AFAIK, QI no longer exists in England (not sure about
| Scotland or N.I.). And Germany never had it (civil cases
| for damages would be against the state, not the state
| representative).
| ffgjgf1 wrote:
| > civil cases for damages would be against the state, not
| the state representative
|
| Isn't that the same as QI?
| Clubber wrote:
| I believe qualified immunity only protects from direct civil
| litigation but not criminal.
| alistairSH wrote:
| Yep, it's a rough analogy, not a perfect match.
|
| And, given the state of policing and justice in the US,
| civil litigation is often the only way to get any relief
| for over-zealous policing. And QI makes that bar even
| higher than it should be.
| Red_Leaves_Flyy wrote:
| Find me a DA that will routinely prosecute crooked cops.
| They don't exist because the gangs close ranks and protest
| by refusing to their job. When other state employees
| protest they get beaten and forced back to work.
|
| Interesting.
| mlinhares wrote:
| A common thing in empires is that the behavior that was
| perpetrated in the colonies eventually comes back to the
| mainland to be applied to the, previously, sheltered
| population.
|
| Out of the US, US presidents have always had effective immunity
| from any consequences, committing war crimes, disrespecting
| local laws and eschewing even the UN. Kinda like an expected
| consequence of everything else.
| pyuser583 wrote:
| Sure.
|
| The Founders envisioned an extremely weak criminal justice
| system, especially for "their class of people." Defendants were
| given extremely strong protections, and convictions were the
| exception, not the rule.
|
| The Founders were more concerned about facing a duel than a
| criminal conviction.
|
| So they added other mechanisms for presidential accountability:
| impeachment, elections, and the weakness of the office.
|
| These other mechanisms have become weaker and weaker, while the
| criminal justice system has become stronger and stronger.
|
| Impeachment's happen, but not Senate convictions. The political
| parties have created a duopoloy on power which allow them to
| run weak candidates. Congress is less and less willing to hold
| presidents of their own party accountable. Dueling is
| prohibited not just criminally, but constitionally in most
| states.
|
| At the same time the criminal justice system is becoming more
| and more powerful. Convictions are in the high 90%. Juries are
| very weak and at the mercy of powerful prosecutors.
|
| The Constitution simply didn't envision a situation where the
| criminal justice system is more likley to hold someone
| accountable than an election or Congress.
|
| Impeachment, elections, and duels no longer deter bad conduct.
| Convictions do.
|
| So we have an edge case: a system that can only hold an ex-
| President accountable via a criminal charge.
|
| Edge cases are weird. They create "sometimes it works and
| sometimes it doesn't" situations. And that's where we are now.
| chadash wrote:
| _> Convictions are in the high 90%. Juries are very weak and
| at the mercy of powerful prosecutors._
|
| This is a bit misleading. DAs have latitude about what to
| prosecute and if they don't think they can win, they dont
| have to bring it to court.
| BobaFloutist wrote:
| And even if they do think they can _probably_ win, they 'll
| usually leverage that into a plea deal.
| glial wrote:
| > The Founders were more concerned about facing a duel than a
| criminal conviction.
|
| This is because "their class of people" were an honor-based
| society, in which reputation was the currency of power, and
| people with honor were expected to prioritize the national
| interests above their own. That is no longer the case.
|
| In other words, there _hasn 't_ been a duel. So there should
| be another enforcement mechanism for making Presidents
| prioritize the nation above themselves that actually works.
| Red_Leaves_Flyy wrote:
| A combination of meaningful threat to life, assets, family
| or freedom is what the duel accomplished. With the courts
| packed by unqualified partisan hacks it seems we're facing
| an unprecedented danger to democracy and the American
| experiment.
| jameshart wrote:
| This is an excellent point. Under the current 'history and
| tradition' doctrine of the Supreme Court the moment in the
| debate last week where Biden challenged Trump to a round of
| golf on condition he carry his own bag should be treated as a
| challenge to a duel. That is after all how the founders would
| have settled this sort of matter.
| qarl wrote:
| > Convictions are in the high 90%. Juries are very weak and
| at the mercy of powerful prosecutors.
|
| If that were true then defendants would waive their right to
| a jury trial. They don't.
|
| The conviction rate is high because prosecutors don't bring
| weak cases.
| czl wrote:
| That and juries are not informed they have a right to judge
| not just the defendant but also the fairness of the laws
| involved. Indeed anyone that mentions or admits this is
| removed from juries.
| Red_Leaves_Flyy wrote:
| >The Constitution simply didn't envision a situation where
| the criminal justice system is more likley to hold someone
| accountable than an election or Congress
|
| The constitution didn't envision a sprawling legal services
| market to secure the freedom of criminals despite
| overwhelming evidence while poor people are enslaved like
| cattle in a nakedly classist and racist exercise of state
| power to maintain class divisions that afford the empowered
| unearned wealth power and privilege by virtue of birth.
|
| Speaking of trends here-exceptions occur and get held up as
| some gotcha that only further betrays ignorance of the system
| and actually represents the calculated tokenization of the
| oppressed to act as a shield to scrutiny.
| slongfield wrote:
| For what it's worth, conviction rates are not in the high
| 90%s.
|
| The DOJ has a high conviction rate, at 93%, but Federal cases
| are the minority of cases in the USA. Most cases are state-
| level, and the conviction rates vary pretty significantly
| (E.g., California has a conviction rate of ~65% for property
| crime Table 6 of
| https://www.courts.ca.gov/documents/lr-2019-JC-
| disposition-o... )
| MagicMoonlight wrote:
| You have a whole congress and senate to hold them accountable.
| If they haven't, then why should a random prosecutor in a city
| court be able to issue an arrest warrant and prosecute the
| leader of the country?
|
| Without immunity you'll get the kind of shit they've done with
| trump, but against sitting presidents. Imagine if Obama had
| been arrested every time he entered Texas because the locals
| just feel like prosecuting him to send a message.
| danielmarkbruce wrote:
| It's worth reading the actual ruling rather than the reporting
| on it, which is downright awful.
| squidbeak wrote:
| Here's a sample of Sotomayor's dissent:
|
| > The President of the United States is the most powerful
| person in the country, and possibly the world. When he uses
| his official powers in any way, under the majority's
| reasoning, he now will be insulated from criminal
| prosecution. Orders the Navy's Seal Team 6 to assassinate a
| political rival? Immune. Organizes a military coup to hold
| onto power? Immune. Takes a bribe in exchange for a pardon?
| Immune. Immune, immune, immune.
|
| > Let the President violate the law, let him exploit the
| trappings of his office for personal gain, let him use his
| official power for evil ends. Because if he knew that he may
| one day face liability for breaking the law, he might not be
| as bold and fearless as we would like him to be. That is the
| majority's message today.
| danielmarkbruce wrote:
| Yep, and it's speculation at best. She's making statements
| she knows to be nonsense - like, those assume the court
| will find _anything_ to be an official act, which is
| nonsensical.
|
| Read the whole thing rather than the hot takes.
|
| https://prod-i.a.dj.com/public/resources/documents/SCOTUSTR
| U...
| fzeroracer wrote:
| Do you really want this kind of thing to be _speculated_
| to be possible? The court should be putting the squash on
| this kind of thing full stop, not giving any wriggle room
| at all. The fact that you have to argue that a supreme
| court justice is speculating on the downstream effects of
| a monstrous decision should tell you something is _very_
| wrong. Step back and think for one second.
| danielmarkbruce wrote:
| It's been speculated on for ages. Humans tend to deal
| with things as they come up. The entire system is built
| that way. We don't write legislation that deals with
| every single possibility, we deal with it in the courts
| as it happens. It seems to basically work.
| ameister14 wrote:
| Well, to be fair, the first two examples she uses are
| very likely official acts and the third requires an
| official act to be bribery in the first place.
| bobsomers wrote:
| I don't think it is, to be honest. All three of those
| examples are clearly official acts. The President is
| commander-in-chief of the military, and is also
| responsible for granting pardons. The key piece of the
| ruling which lends credibility to her examples is that
| any motive or details behind the official acts are immune
| from scrutiny.
|
| The only real difference is whether the acts are official
| or not. So the President is allowed to order the military
| to assassinate a political rival, but not to pay a
| private hitman to do so.
|
| It's a pretty ridiculous and indefensible stance from the
| majority opinion.
| danielmarkbruce wrote:
| They are not clearly official acts. It's going to be
| years of decisions and debate to define official acts.
|
| As an example, the fact he's in charge of the military
| doesn't make everything he asks them to do official
| because he is obliged to follow the constitution. There
| are arguments to make against what I just said. It's as
| clear as mud once you start going through concrete
| scenarios.
| metabagel wrote:
| This is as the Imperial Supreme Court wants it, so that
| it will come back to them every time an important
| decision needs to be made. This enhances their power and
| ability to shape events. Murkier is better.
| sangnoir wrote:
| It also makes it easier for partisan rulings on a case-
| by-case basis. If defendant is on your team: allow it, if
| not, issue a self-contained ruling (or don't pick up the
| case at all if lower courts ruled against them).
|
| We have front-row seats to how empires decline and fade
| away. I guess those who missed the 20th century decline
| of the British Empire (culminating in Brexit) can study
| this one.
| denton-scratch wrote:
| > like, those assume the court will find anything to be
| an official act, which is nonsensical.
|
| But the Supremes haven't said what they think an official
| act is; that's a matter for the court of first instance,
| according to the Supremes.
|
| To me, in the UK, it looks like vandalism. There's no
| clear law on what constitutes an official presidential
| act, and until there is, the Pres is beyond the reach of
| the law.
|
| I don't think these very senior lawyers are fools, I
| don't think they made a mistake. They've deliberately
| fucked-up the US legal system (even more than it's
| already a mess).
| bbddg wrote:
| A president who is willing to do those things, and has a
| military willing to carry those orders out, isn't likely to
| be stopped by the court telling them it's illegal.
| mandmandam wrote:
| Bad logic.
|
| Is someone more or less likely to perform such an act if
| there's a possibility of legal consequences? If not, then
| we don't really need courts at all, do we?
| kibwen wrote:
| The fact that the courts have explicitly legalized these
| blatantly criminal acts is what gives the military the
| cover and the imperative to dutifully carry them out.
| mrcwinn wrote:
| Serious question: how is assassination an official act?
| Asked another way, under what constitutional authority is
| the president charged with assassinating political leaders
| inside the United States?
|
| I'm not saying a president couldn't try. I can imagine
| that. I cannot understand how it would be an official act.
| If the president runs out of Kleenex and opts for toilet
| paper instead, that is not an official act merely because
| he is president.
| ensignavenger wrote:
| If Lincoln had a Seal Team Six, and ordered said team to
| take out Jefferson Davis, would Lincoln have been open to
| prosecution, or immune as he had been undertaking an
| official act as commander in chief?
| electrondood wrote:
| That's the problem. The ruling provides no guidance
| whatsoever, so as long as a President can make the case,
| it's an official act.
| coffeemug wrote:
| Yes. Ever since Bill Clinton (and probably before that, I was
| too young) the President and a non-trivial number of
| presidential candidates were either under an investigation of
| some sort, or a threat of such an investigation. Obviously
| Bill, Hillary, constant threats of investigation of George W
| Bush and Obama, special counsel investigating Biden, and all
| the Trump cases. Notably nothing ever comes out of these.
|
| This is ridiculous! It's blatantly political and both parties
| are guilty of this. The justice system is meant to hold people
| accountable for breaking the law, not as an additional
| political mechanism for checks and balances. I haven't looked
| into the case and don't know the legal precedent SCOTUS used
| for this decision, but from a consequentialist standpoint this
| seems to me an obviously good outcome.
| jauntywundrkind wrote:
| Yeah but the Republicans keep doing war crimes & the
| Democrats... Got a blow job? Passed Romneycare/Obamacare? One
| of these sets of prosecution is not like the others.
| mywittyname wrote:
| Clinton was charged with lying under oath, obstruction of
| justice, and abuse of power. The first and second charges
| were approved while the third was rejected. He was only
| found guilty of the obstruction charge.
|
| The behavior of Ken Starr in this case was abhorrent. In my
| eyes, there was a degree of witness intimidation going on
| in this case.
|
| Ironically, this SCOTUS ruling would have blocked Clinton's
| impeachment because Ken Starr was an Independent Counsel,
| which SCOTUS ruled cannot be used in such matters.
| ImJamal wrote:
| Are you seriously suggesting that Democrats don't commit
| war crimes?
|
| You should probably look up Obama's track record on this.
| Killing Americans without due process, torture, killing
| civilians, etc. Not to mention other crimes like the
| massive amount of spying on Americans. Don't forget Snowden
| revealed all his stuff during Obama's reign and those
| crimes were still ongoing.
| electrondood wrote:
| See, the difference is politically-motivated investigations
| YIELD NO CRIMES WHEN NO CRIME WAS COMMITTED.
|
| Today's ruling is a solution to a problem that no one has
| actually had for the last 250 years, and which no one
| currently has.
| ahmeneeroe-v2 wrote:
| Do you mean beyond what's written in the decision itself? Do
| you have a specific criticism of what was written by the
| justices themselves?
| legitster wrote:
| The ruling says that 3 of the 4 indictments against Trump can
| proceed so long as prosecutors make a case that the President
| was acting outside of his duties.
|
| A president being incompetent or immoral in his line of duty is
| an issue for voters or congress to decide on. But a White House
| bogged down in lawsuits or petty criminal charges would cease
| to function.
| nprateem wrote:
| Which they can't because official duties haven't been
| defined.
|
| Trump can now continually appeal his actions were official,
| delaying charges until after November when, if he wins the
| election, he can instruct the DoJ to drop the case.
| legitster wrote:
| > Unlike Trump's alleged interactions with the Justice
| Department, this alleged conduct cannot be neatly
| categorized as falling within a particular Presidential
| function. The necessary analysis is instead fact specific,
| requiring assessment of numerous alleged interactions with
| a wide variety of state officials and private persons. And
| the parties' brief comments at oral argument indicate that
| they starkly disagree on the characterization of these
| allegations. The concerns we noted at the outset--the
| expedition of this case, the lack of factual analysis by
| the lower courts, and the absence of pertinent briefing by
| the parties--thus become more prominent. We accordingly
| remand to the District Court to determine in the first
| instance--with the benefit of briefing we lack--whether
| Trump's conduct in this area qualifies as official or
| unofficial.
|
| The majority opinion is pretty clear that of the
| indictments, 3 have pretty good grounds to proceed.
| riskable wrote:
| If a president assassinates his political rivals I don't
| think you can say it's, "an issue for voters or congress to
| decide on." That would be impossible, since anyone the voters
| wanted to replace the sitting executive or his allies would
| just be arrested or murdered outright (as an official act, no
| less!).
| legitster wrote:
| I don't think anyone in the ruling outside of Sotomayor
| implies that murdering political rivals would fall under an
| official duty of the president as outlined in the
| constitution.
| insane_dreamer wrote:
| I disagree, since a good many people seem ready to accept
| that Trump trying to overturn the results of a free and
| fair election (which in my book is pretty much on par
| with murdering political rivals since the point of
| murdering a rival is so that they don't get elected), is
| an "official duty".
| alluro2 wrote:
| Would the court also need to carefully consider and rule
| on whether arresting or murdering a disagreeing judge is
| an "official act" by the President?
| legitster wrote:
| Probably not. Arresting disagreeing judges would be a
| violation of due process, as is murdering US citizens
| without a trial.
|
| At least that was the tentative conclusion last time this
| was brought up: https://www.theguardian.com/commentisfree
| /2013/feb/22/obama-...
| jimbob45 wrote:
| Impeachment is the intended vehicle for presidential
| punishment.
| riskable wrote:
| That's irrelevant since the SCOTUS ruling is all about what
| happens _after_ a president is no longer president.
|
| Impeachment only applies to a sitting president. Not one who
| is no longer in office.
| alluro2 wrote:
| Oh yeah, Trump was really severely punished by being
| impeached twice.
| GreedIsGood wrote:
| Prosecutors have wide ranging discretion, our laws are complex
| and subject to a tremendous amount of interpretation.
|
| Without protection the executive would be at the mercy of the
| judicial branch. This is clearly an inversion of power.
|
| Perhaps the solution is clean out our legal system wholesale so
| that it is obvious to all involved whether an action or set of
| actions could not result in prosecution in the future. Such an
| action was not within the power of the supreme court.
| marcell wrote:
| Generally the way to hold a president accountable is to impeach
| him and remove him from office.
|
| Under this ruling, the court system is generally _not_ a way to
| keep him accountable.
|
| So it's not that there is no accountability or way to "punish",
| a rogue president, it's just a different method of
| accountability than what applies to you and me.
| insane_dreamer wrote:
| This does put the President above the law.
|
| Congress can choose to impeach, but they are not doing so
| based on the laws of the land, but based on their own
| determination (whether it is in their best interest for that
| President to be gone or not), which (unsurprisingly) is split
| along political lines (which is why it's so hard to actually
| impeach the president).
|
| Therefore impeachment is not a means to hold a President
| accountable for illegal or anti-democratic actions, but
| rather it is a means for a united Congress to have some power
| over the President in the event he managed to piss off enough
| people from both parties.
| kristjansson wrote:
| > Generally the way to hold a president accountable is to
| impeach him and remove him from office.
|
| Impeachment is a political solution to political
| disagreements. This opinion makes most disagreements with
| 'official acts' a political question, to be settled by
| election or impeachment.
|
| Critically (and thankfully) it rejects outright the idea that
| impeachment is the _only_ mechanism restraining a president.
| Criminal liability is still a viable mechanism for holding a
| president responsible for all unofficial acts, and
| potentially for some official acts.
| throwadobe wrote:
| Everyone seems to be calling this "blanket immunity" but that's
| not right. It's immunity for official acts which are the
| prerogative of the president. Basically the president is
| allowed to do all presidential things without having to worry
| about whether it will be deemed illegal.
|
| This doesn't mean that the president cannot be tried for some
| illegal act that was not their official duty. Murdering
| someone, for example.
| autoexec wrote:
| Ordering the murder of someone is their official duty as
| commander in chief of the military. The only thing they have
| to do is say they feel that a person was a threat to national
| security.
| WillPostForFood wrote:
| Given your example, under this decision, the President
| could be charged, and the courts would have to decide
| whether it was an official act. Was it the murder of their
| mistress? Then obviously not official. Was it the murder of
| a terrorist planning an attack? Probably official. Is there
| some grey area in the middle that will really hard to
| decide? Probably. This was a moderate decision that defers
| making broad rules and lets courts decide on a case by case
| basis.
| jnsquire wrote:
| The courts were explicitly _not_ allowed to take account
| of presidential motivation when determining whether the
| act was official or not.
| czl wrote:
| > Was it the murder of their mistress? Then obviously not
| official.
|
| Why obviously? If mistress is causing "harm" to other
| official actions would it not be official duty to prevent
| this harm? You and I may not buy such a defence but a
| sympathetic audience of allies?
| Red_Leaves_Flyy wrote:
| What about the turncoat operative of a foreign government
| who just so happens to be a political rival?
| jmcgough wrote:
| If you order your military to murder someone, does it become
| an official act?
| shadowtree wrote:
| Obama droned a US citizen without due process, zero
| consequences.
|
| Nothing new.
| inpdx wrote:
| Anything can be made an official act. That's why this is
| unfathomably bad.
| treeFall wrote:
| Only if you believe that words have no meaning. If you're
| already at that place in your mind, anything is possible
| regardless.
| tcmart14 wrote:
| The problem isn't them. We just not too long ago have a
| court case that questioned whether the President is
| considered an "officer of the United States." The
| unfortunate part of law is, half of law is arguing about
| what 'is' is.
|
| So its not necessarily that words don't have meaning. Its
| more of, the words can change meaning.
| electrondood wrote:
| Not only that, but this same court removed the
| constitutional right to an abortion because it wasn't
| enumerated in the Constitution. Now, they completely
| invent criminal immunity out of thin air (which btw was
| never necessary in the last 250 years until we had a
| criminal president), when the intent of the drafters to
| never elevate any person above the law was crystal clear.
|
| The Roberts court is just arbitrarily choosing whatever
| justification they happen to like for any given case to
| push an extremist agenda.
| Red_Leaves_Flyy wrote:
| Not quite. If you've been following federalists you'll
| see they're rewriting and redefining whatever they need
| to in order to achieve their ends.
| paulryanrogers wrote:
| A majority on the supreme court seem willing to bend
| reasonable definitions backward to get whatever they
| want. Second amendment 'right' to (non-militia) personal
| firearms for example.
| cogman10 wrote:
| What about overthrowing the government? Because that's the
| "offical" act of the president with today's ruling.
|
| Further, it should be noted that the lower court already did
| exactly what the supreme court remanded back to them. They
| said "we don't know what sorts of immunity are granted to a
| president, but if there is any they are not granted, it's
| overturning an election as is accused in this specific case".
|
| The supreme court took up this case specifically to help
| donald trump and because they couldn't challenge the ruling
| given they made up their own facts to give the ruling they
| wanted to give.
| mixologic wrote:
| If by "Everyone" you mean at least one of the sitting supreme
| court justices. What is considered "official duty" is not
| clearly defined, and will certainly be twisted to include
| things that seem like they obviously shouldnt be considered
| "official".
|
| But if a president claims that a surgical strike to eliminate
| an "enemy of the country" was within their prerogative, then
| yes, a president can murder somebody without fear of
| consequences.
| hughesjj wrote:
| They also specifically called out any dealings with the
| justice department as being legal (like what was going on
| with comey way back when)
| kristjansson wrote:
| This is the biggest impact of this opinion IMO. The
| president can do basically any supervisory action within
| the executive branch for any reason without risk of
| criminal liability. His ability to direct federal
| agencies is only limited by the supply of palatable
| lackeys.
| ethbr1 wrote:
| With regards to (b)(ii)(3), i.e. Trump's attempt to
| influence non-federal officials to select fake electors...
|
| >> _On Trump's view, the alleged conduct qualifies as
| official because it was undertaken to ensure the integrity
| and proper administration of the federal election. As the
| Government sees it, however, Trump can point to no
| plausible source of authority enabling the President to
| take such actions. Determining whose characterization may
| be correct, and with respect to which conduct, requires a
| fact-specific analysis of the indictment's extensive and
| interrelated allegations. The Court accordingly remands to
| the District Court to determine in the first instance
| whether Trump's conduct in this area qualifies as official
| or unofficial. Pp. 24-28._
|
| Which seems a key window for the lower court to send the
| case back up. Trump attempted to influence
| non-federal election officials. Trump had no
| Presidential authority to do so. (Elections being run by
| the states) Ergo, that was not an official act.
|
| Granted, the special counsel would have to prove that
| without using the Presidential personal notes... but it's
| still a pretty clear path given the non-Presidential
| documentation all the conspirators kept.
|
| And it does make sense by the Supreme Court's reasoning:
| you can't restrict the President from running the executive
| branch, but you can hold him accountable for the things he
| does outside of the executive branch, which critically
| includes elections themselves.
| weaksauce wrote:
| > but it's still a pretty clear path given the non-
| Presidential documentation all the conspirators kept.
|
| it's my understanding that they can't use testimony or
| notes from advisors et. al. which is troubling since they
| are or can be the co-conspirators.
|
| > Presidents cannot be indicted based on conduct for
| which they are immune from prosecution. On remand, the
| District Court must carefully analyze the indictment's
| remaining allegations to determine whether they too
| involve conduct for which a President must be immune from
| prosecution. And the parties and the District Court must
| ensure that sufficient allegations support the
| indictment's charges without such conduct. *Testimony or
| private records of the President or his advisers probing
| such conduct may not be admitted as evidence at trial.*
| tcmart14 wrote:
| Which seems reasonable on its face, but it faces another
| issue. Now, what defines an 'official' act as president. And
| how loose do we want to play with those terms. If we want to
| play slippery slope, which is what the court seems to like to
| do, then something that should be illegal but can be deemed
| an official act is a President ordering the military to keep
| voters out of voting locations because they have a 'tip off'
| from someone in national security that a potential terrorist
| attack may or may not happen at voting locations. Right, we
| can end up in a situation where the president can find any
| loose way to justify anything they do.
|
| That is where probably the blanket immunity comes into play.
| Its not definitionally blanket immunity, but it might as well
| functionally be blanket immunity.
| gunapologist99 wrote:
| The Court said what defines an 'official' act was up to
| lower courts to decide, which seems eminently reasonable.
| HaZeust wrote:
| It is not de jure blanket immunity, but when terminologies
| like "official acts" aren't clearly defined, and have an
| innate bias for slippery-sloping - given the nature of the
| President's office - it becomes de-facto blanket immunity.
|
| It doesn't invoke sovereign immunity through a loud roar, but
| from an understood nod.
| kristjansson wrote:
| That's not quite it. There's absolute ('blanket') immunity
| for acts that exclusively reserved for the president (vetos,
| pardons, etc.). There's presumptive immunity for other
| 'official acts', but that doesn't preclude the possibility
| that some official acts could be deemed or made illegal.
| There's no immunity for unofficial acts, but there's a pretty
| fine needle to thread in to determine an action is unofficial
| (if it's not 'palpably' so).
| czl wrote:
| Say a president builds up an "official" retirement fund for
| himself (and friends) by holding a "pardon auction" with
| top bidding few dozen criminals being released each year
| during a presidential term. Is this an "official" action
| covered by this immunity ruling? Their justification could
| be it keeps taxes lower, etc.
| rayiner wrote:
| The counterpoint is both obvious and obviously correct. Assume
| we accept that the President has immunity for whatever
| constitutes official conduct (which this decision does not get
| into). Presidents have fixed terms, so unless ex-presidents
| have immunity, they can be prosecuted for anything they do in
| office, including their official duties. That would make it
| difficult for the president to take action while in office.
|
| Can we prosecute Obama for ordering drone strikes on U.S.
| citizens? Can we prosecute Bush for the Iraq war? Can we
| prosecute Biden in a few months for deaths caused by his border
| policies?
|
| Also, this is just how immunity works! Judges have immunity for
| their judicial conduct in office, and don't lose it when they
| retire. When the GOP wins a trifecta next year, can they
| prosecute retired liberal justices for homicide for abortion
| rulings?
| throwup238 wrote:
| Sotomayor's dissent ends:
|
| _> Never in the history of our Republic has a President had
| reason to believe that he would be immune from criminal
| prosecution if he used the trappings of his office to violate the
| criminal law. Moving forward, however, all former Presidents will
| be cloaked in such immunity. If the occupant of that office
| misuses official power for personal gain, the criminal law that
| the rest of us must abide will not provide a backstop._
|
| _> With fear for our democracy, I dissent._
|
| Chilling words.
| windows2020 wrote:
| I don't understand the personal gain part. How is that official
| capacity?
| tgma wrote:
| The criminal act is in official capacity. The benefit is
| personal.
| vundercind wrote:
| The majority specifies some ways this may apply that very
| much make all kinds of things directly shielded by this
| ruling, and indirectly shields more by restricting the use of
| evidence that has to do with official acts.
|
| The way they've set this up, the _people_ involved have a lot
| to do with it. It sure looks like the President can now
| openly discuss corruption like selling secrets or pardons
| with e.g. relevant cabinet members, and none of that can be
| prosecuted, nor can it be _evidence presented in_ a
| prosecution of crimes.
|
| The immunity granted is insanely broad.
| Matticus_Rex wrote:
| The wording is definitely not clear enough in that section,
| however I don't think this is the intended reading (and I'm
| hoping we get clarification on this) -- the pardon would be
| an official act, but according to footnote 3 the sale of
| the pardon and discussions about that would not be included
| in the bar on evidence of the official act, because they're
| not considered part of that official act. It seems (with
| the footnotes considered) to be a very narrow
| interpretation of "official act," which does seem to
| contradict the plain reading. Very annoying.
| ta_1138 wrote:
| Let's imagine that a president decides to, say, stop aiding
| Ukraine, and in exchange, Putin promises said president a
| couple billion dollars.
|
| Stopping aid to Ukraine is definitely an official act, which,
| on its own, is within their powers. Trading said official
| action for the billion dollars is what is fraudulent, but if
| I am understanding the Roberts opinion correctly, it cannot
| be prosecuted, because the motives of the president should
| not be used as part of the ruling of immunity. So... free
| bribery, as long as said president pays their taxes.
| stefan_ wrote:
| Because it involves an official act, like a pardon. Sell
| pardons for dollars? Immune!
| squidbeak wrote:
| It clears the way for Presidents from either party to carry out
| abuses they wouldn't have dared consider otherwise. All they'll
| need to do is find or make an angle that qualifies it as an
| official act.
| chasd00 wrote:
| > All they'll need to do is find or make an angle...
|
| that's not anything new though, Obama's drone strikes weren't
| ordered until his lawyers felt they had a very good defense
| for him in case he was charged with assassinating US citizens
| without due process.
| citizen_friend wrote:
| Is she forgetting that impeachment exists?
|
| Why is sottomayor the only justice drawing this conclusion?
| grecy wrote:
| "Never in the history of our Republic has a President had reason
| to believe that he would be immune from criminal prosecution if
| he used the trappings of his office to violate the criminal law.
| Moving forward, however, all former Presidents will be cloaked in
| such immunity, If the occupant of that office misuses official
| power for personal gain, the criminal law that the rest of us
| must abide will not provide a backstop.
|
| With fear for our democracy, I dissent."
|
| and
|
| "Let the President violate the law, let him exploit the trappings
| of his office for personal gain, let him use his official power
| for evil ends. Because if he knew that he may one day face
| liability for breaking the law, he might not be as bold and
| fearless as we would like him to be. That is the majority's
| message today. Even if these nightmare scenarios never play out,
| and I pray they never do, the damage has been done. The
| relationship between the President and the people he serves has
| shifted irrevocably. In every use of official power, the
| President is now a king above the law." "Orders the Navy's Seal
| Team 6 to assassinate a political rival? Immune. Organizes a
| military coup to hold onto power? Immune. Takes a bribe in
| exchange for a pardon? Immune. Immune, immune, immune."
|
| - Justice Sotomayor
| chasd00 wrote:
| A president can still be impeached and removed, they may not
| "serve their debt to society" but the harm can be stopped by
| the states.
| TylerE wrote:
| Impeachment is fundamentally broken.
| talldayo wrote:
| > but the harm can be stopped by the states.
|
| If we refuse to recognize that harm under the current Rule of
| Law, then who is going to identify and prosecute "harm"
| besides politically motivated ideologues? It sounds like a
| surefire way to cement the separation of the Executive office
| from it's respective checks and balances.
| tolmasky wrote:
| It seems like perhaps that power has been considerably
| weakened if the President is literally allowed to assassinate
| political rivals (as is mentioned in the dissent). You might
| vote not to impeach in fear, similar to jury intimidation.
| Hell, why even wait, what's to prevent a President from going
| for it before the vote even happens? I find it hard to
| believe that this was meant to be a component of the
| impeachment process by the founders. To make it more
| exciting, I guess?
| incogitomode wrote:
| Once they are impeached they would presumably be subject to
| criminal prosecution under the Impeachment Judgements Clause
| [1] which states:
|
| "but the Party convicted shall nevertheless be liable and
| subject to Indictment, Trial, Judgment and Punishment,
| according to Law."
|
| I don't think this ruling is, on the surface, exactly what
| people are making it out to be. It certainly maintains a high
| bar for criminally prosecuting the president for something
| they do in office, but it is not allowing them to commit
| crimes with impunity.
|
| 1: https://constitution.congress.gov/browse/article-1/section
| -3....
| Miner49er wrote:
| > but it is not allowing them to commit crimes with
| impunity
|
| Well it kind of does, because the president has the power
| to stop impeachment from ever happening in the first place,
| if they're willing to command the military to.
| jasonjayr wrote:
| With the speed at which the impeachment and removal can take,
| with this new interpretation, it seems significant and
| lasting damage take take place before anything could be done.
| tailspin2019 wrote:
| I'm not an expert in this area by any means but it feels like
| there should be a "motive" angle to this rather just than blanket
| immunity.
|
| The same actions committed by two different presidents could vary
| hugely in their motive - one might be legitimately concerned
| about voter fraud and the other trying to interfere maliciously
| with election results.
|
| Admittedly the bar would be high to prove malicious intent (eg.
| acting out of self interest rather than in the interests of the
| office/country) but that still seems better than just saying that
| a given action, regardless of motive, is covered by immunity.
| enragedcacti wrote:
| The decision actually explicitly bars courts from using motive:
|
| > In dividing official from unofficial conduct, courts may not
| inquire into the President's motives
| atmavatar wrote:
| I wonder how long before we get presidents selling pardons.
| bonzini wrote:
| That assumes that it hasn't happened already.
|
| https://www.washingtonpost.com/politics/2023/05/17/giuliani
| -...
| nradov wrote:
| That's basically what happened when President Clinton
| pardoned major donor Marc Rich as one of his last official
| acts. Ultimately the only protection against this is for
| voters to reject candidates who lack personal integrity.
| pessimizer wrote:
| At least with this one they've rescued us from doing national
| politics like a banana republic. You can't arrest Presidents for
| doing things they had the total latitude to do as Presidents. We
| can't have the courts deciding whether Presidents had good or
| illegitimate reasons for any arbitrary decision that they made
| during their presidency. It's madness.
|
| If a president took a bribe for a position, prosecute him for
| taking a bribe (if it's not a _gratuity_ , because Congress has
| declared tipping politicians legal.) But if he could have made
| the same decision because he liked someone's tie - it's nothing
| but second guessing, by a likely hostile later administration.
|
| These people appoint all their campaign staff and big donors to
| government jobs. If that's legal, then any reason for anything
| they do which is left up to their discretion is legal. If it's
| not legal, have Congress make it not legal.
|
| -----
|
| edit: gaganyaan, you are wrong. If you think that the entire
| point is that a president cannot be prosecuted for taking a
| bribe, you should reevaluate your understanding of the entire
| point.
|
| > Under Monday's decision, a former president could be prosecuted
| for accepting a bribe, but prosecutors could not mention the
| official act, the appointment, in their case.
|
| > Justice Amy Coney Barrett, who joined the rest of Roberts'
| opinion, parted company on this point. "The Constitution does not
| require blinding juries to the circumstances surrounding conduct
| for which Presidents can be held liable," Barrett wrote.
| gaganyaan wrote:
| You're missing the entire point. Now the president can't be
| prosecuted for taking a bribe, even if he publicly declares
| that's the reason for doing so.
| chasd00 wrote:
| > Now the president can't be prosecuted for taking a bribe
|
| they can still be impeached and removed from office for
| basically any reason whatsoever. Maybe the won't goto jail
| but their presidency would be over.
| Xelynega wrote:
| How well did that work previously?
| fzeroracer wrote:
| Y'know, the president has very convenient authority for
| just this kind of thing. Something about drones and
| strikes? Would be a shame if when people tried to impeach
| the president he exercised his qualified immunity to
| convince them that it's a Bad Idea.
| zerocrates wrote:
| Barrett's partial concurrence is nice and all but it's just
| that. Even where she did not join the majority it carried five
| votes.
|
| It's telling that even such a minor "to be sure" as hers
| couldn't carry enough support to actually be in the opinion.
| pelorat wrote:
| > We can't have the courts deciding whether Presidents had good
| or illegitimate reasons for any arbitrary decision that they
| made during their presidency.
|
| Why not. The vice president exists for a reason? Here in
| Europe, in the entirety of Europe, if a president or prime
| minister commits a crime, they will be prosecuted. If we can do
| it, why can't the USA?
|
| After all, no one is above the law.
|
| If anything, the more power you have, the more scrutiny you
| should be under.
| alsaaro wrote:
| Curious how an ostensibly "conservative" court can ignore the
| concept of enumerated powers, the constitution clearly does not
| grant immunity to the President, so the conservative court
| invents immunity when none is explicitly granted.
|
| Indeed, the concept of immunity is recognized in the American
| constitution for legislators in a limited way, so this isn't an
| oversight by the framers corrected by Robert's conservative
| majority, rather the lack of immunity for the executive is a
| feature and not a bug of our constitution, and all republican
| forms of government.
|
| Ironically the American president now has more power than the
| King of England, George the III, at the time of the American
| independence. King George had to follow the laws of Parliament,
| as did all Kings of England since the passage of Magna Carta some
| 500+ years prior.
|
| As of today our President no longer has to obey the Constitution
| or the law so long as the act is deemed "official" by the
| conservative majority.
| spacephysics wrote:
| Unfortunately presidents on both sides have used executive
| order as a way to bypass the process.
|
| Combined with Chevron doctrine precedent, agencies could enact
| what the executive branch wanted if the standard quo process
| failed
| mmcgaha wrote:
| Good thing the the courts just reigned in the powers that
| federal agencies claimed via the chevron doctrine.
| https://www.scotusblog.com/2024/06/supreme-court-strikes-
| dow...
| vundercind wrote:
| They also cite the Federalist Papers in comically-vague support
| of their ruling, while the dissent cites the Federalist Papers
| right back to note that the founders had executive immunity
| _very much_ on their minds and left it out of the constitution
| _extremely on-purpose_ because they regarded subjecting the
| President to the same law as everyone else to be key difference
| between the system they were setting up, and monarchy.
| Matticus_Rex wrote:
| > Curious how an ostensibly "conservative" court can ignore the
| concept of enumerated powers, the constitution clearly does not
| grant immunity to the President, so the conservative court
| invents immunity when none is explicitly granted.
|
| Roberts' opinion covers this, as do many discussions of
| textualist interpretations -- not being set out in the text
| specifically doesn't mean that it doesn't exist, for textualist
| interpretations. Roberts' example is separation of powers.
| There's no "separation of powers clause," but the concept is
| pretty clearly set out in the text anyway. They say the same is
| true for immunity for public acts, and they provide reasoning.
| I disagree with some of the reasoning, but there are much more
| tenuous things read into the Constitution by the Supreme Court
| than this one.
|
| And if the Constitution includes immunity for public acts, so
| much the worse for the Constitution!
| o11c wrote:
| That's not really a coherent stance though, given how many
| "protect the constitution" laws they keep overturning in the
| name of "it's not actually written in the constitution".
| mindslight wrote:
| Because _they 're not conservative_. They are radical
| reactionaries, to use the word that Moldbug himself coined.
| Essentially Republicans got tired of things changing despite
| their conservatism, got angry, and now it's not enough to slow
| change - they want to _rewind us_ to the values of the 1980 's
| or even the 1950's. This perspective is why they refer to any
| post-y2k mainstream social values as "activism".
|
| The Democrats have now become the conservative party. Both in
| the abstract of wanting slow cautious change, and in the
| concrete principles that have long been held as conservativism
| - belief in American institutions, strong foreign policy to
| spread those institutions, the rule of law, and now even
| _fiscal responsibility_ with having led the pull up from ZIRP!
| spencerflem wrote:
| This was downvoted at the time of this comment. Shame on the
| Republicans in this thread that I have my fellow programmers
| to blame for the fall of american democracy
| mindslight wrote:
| It's like nobody can take criticism these days, probably
| because they're overwhelmed by the amount they see.
|
| I went back and forth whether to include a paragraph about
| how this swapping also explains the dynamics around things
| like DEI training, but decided against it so I wouldn't be
| getting it from both sides. Things were more pleasant when
| most people got this energy out watching football.
| bigstrat2003 wrote:
| As it should be. If someone is going to make a broad claim
| about an entire political party - be that Republicans or
| Democrats - they need to show the evidence. You don't get
| to make sweeping negative statements about large chunks of
| the country without backing it up.
| pavon wrote:
| To a large extent this immunity is inherent in the enumerated
| powers. Consider this general case: The Constitution enumerates
| specific powers to the executive branch, and hence President.
| Congress passes a law that makes those same actions illegal if
| performed by a normal citizen. If this law applied to the
| President, then that would mean that Congress could nullify the
| enumerated powers granted to the Executive, making those
| enumerated powers meaningless. So it makes perfect
| constitutional sense that actions performed by the President as
| part of his job that that are within his enumerated powers
| cannot be made illegal by Congress.
|
| That core concept of immunity is pretty solid and essential, it
| is the details that are problematic, in particular the fact
| that the courts have interpreted "official" acts so broadly in
| the past in cases of qualified immunity makes one worried they
| will do the same here.
| lapcat wrote:
| > Could Obama be prosecuted for ordering drone strikes that
| unintentionally killed two Americans? It seems like that world
| would hamstring the president far too much.
|
| The President shouldn't have the legal authority to conduct any
| drone strikes without a declaration of war from Congress. We've
| been ignoring the Constitution for a very long time.
| rtkwe wrote:
| There is the 2001 Authorization for Use of Military Force that
| a lot of the expanded War on Terror activity are nominally
| authorized under according to the Executive. Challenging that
| is up to Congress as afaik there's no standing for a random
| person to sue.
| BobaFloutist wrote:
| And Congress notably passed the dang thing and has pointedly
| refused to come back and limit it or curtail the admittedly
| expansive interpretations subsequent presidents have made of
| it, so I very much doubt they're going to ding a given
| president _now_.
| rtkwe wrote:
| Correct there's been several attempts to revoke or limit
| the 2001 AUMF and Congress has decided not to each time.
| It's pretty clear what is being done under the auspices of
| it too so failing to address the interpretation becomes a
| tacit endorsement at least at the institutional level.
| Personally I think it's been stretched to breaking but the
| fix is pretty simple and up to Congress.
| margalabargala wrote:
| > The President shouldn't have the legal authority to conduct
| any drone strikes without a declaration of war from Congress.
| We've been ignoring the Constitution for a very long time.
|
| What part of the Constitution are we ignoring?
|
| According to the Constitution, the President is the Commander
| in Chief of the armed forces. The Constitution does not say
| that war must be declared for the armed forces to operate.
| Thus, ordering a drone strike without Congress' input would
| seem well within the scope of the President's powers.
| saghm wrote:
| > What part of the Constitution are we ignoring?
|
| There are a number of amendments that could be pretty
| reasonable argued to give citizens the right not to get
| killed by drone strikes.
| golergka wrote:
| Killed or targeted? There's a huge difference between
| ordering a drone strike on said citizens and ordering
| strike on legitimate military target that said citizens
| just happen to be in a vicinity of.
| bergen wrote:
| Is there? One is actively killing citizens the other is
| still a reckless disregard for human life in general.
| jachee wrote:
| Why are actions being taken against military targets
| outside of a declaration of war?
| Buttons840 wrote:
| Is there a difference? Legally? Both would be official
| acts, right?
| InitialLastName wrote:
| In the case in question, the former.
| https://en.wikipedia.org/wiki/Anwar_al-Awlaki
| saghm wrote:
| Can you give an example of a time when a "legitimate
| military target" needed to be killed so immediately that
| a unilateral presidential decision that also killed
| nearby citizens was warranted? My presumption is that
| there are very few circumstances where the threat of a
| military target is so immediate that killing nearby
| innocent civilians is justified over waiting to try to
| find a better time to attack the target. If anything,
| immediate threats that require action are generally
| threats to the nearby innocent civilians themselves,
| which would make such decisive action not particularly
| useful; I don't think anyone would suggest something like
| blowing up a bank where people are being held hostage,
| which seems like the closest hypothetical I can think of.
| TylerE wrote:
| One might question how that standard applies to what
| Israel is doing in Gaza.
| saghm wrote:
| I would argue that the US law would not allow the
| president to order strikes like those that have occurred
| in Gaza on US citizens, but of course IANAL. I don't have
| any knowledge of what Israeli law allows or doesn't allow
| though.
|
| It's also worth noting that what someone thinks is legal
| is not necessarily what someone thinks _should_ be legal;
| I imagine that almost everyone here has at least some
| laws that they disagree with, but that's separate from
| the question of whether the law exists or not.
| TylerE wrote:
| If the US continues to ship them large amounts of foreign
| aid, aren't we at least a little bit complicit?
| golergka wrote:
| A typical modern conflict has ratio of 9 civilian
| casualties to 1 combatant (per UN), whereas current war
| in Gaza has them 1 to 1.
| JamesBarney wrote:
| Enemies are not static they can react to our policies. If
| our policies are never to kill anyone who is near a
| civilian, enemies would just always be near civilians.
| margalabargala wrote:
| Citizens, sure. That's a much weaker claim than what the
| parent said, which is "The President should not be able to
| conduct drone strikes without an act of Congress".
|
| Drone striking (or otherwise killing) citizens without due
| process seems unconstitutional. Drone striking foreign
| targets does not have those constitutional protections.
| hartator wrote:
| > The Constitution does not say that war must be declared for
| the armed forces to operate.
|
| It does. Armed forces killing people is a state of war. If
| not, it's policing then it's under the judiciary authority,
| not the president.
| nradov wrote:
| Huh? Federal law enforcement falls under the executive
| branch, not judicial. Have you even read the Constitution?
| nostrademons wrote:
| Federal (and state, and local) law enforcement are not
| empowered to kill. Their job is to bring defendants to
| trial, where the judicial system determines innocence or
| guilt and then determines the sentence.
|
| If they were, the whole cop-killers, BLM, excessive use
| of force issue would not be an issue. The law would just
| say "Okay, a cop killed someone, that's their job, get
| over it." You can argue that the criminal justice system
| is too light on cops, but the fact that the criminal
| justice system is even involved means that killing people
| is not part of a cop's official job duties.
| mywittyname wrote:
| Qualified immunity is used as a defense in a lot of these
| cases.
|
| Practically speaking, law enforcement does have broad
| authority to kill people. So long as that death falls
| under the training guidelines written by the department,
| then it's unlikely the officer in question will face any
| punishment.
|
| Now, killing a person might be seen as a violation of
| their civil rights, entitling their estate to
| compensation for the death. But that's a punishment for
| the state, not the individuals involved.
| ethbr1 wrote:
| That's muddling nouns a bit.
|
| Law enforcement _individuals_ have extremely limited
| authority to kill people, exclusively(?) based on self-
| defense.
|
| The law enforcement _system_ has the right to authorize
| the killing of people but is subject to judicial review.
|
| Ergo, if a law enforcement individual breaks guidelines
| and kills someone, they're charged.
|
| If a law enforcement individual follows guidelines and
| kills someone, then the system is charged. (E.g.
| state/federal lawsuits, consent decrees, etc)
| OgsyedIE wrote:
| Art. 1 sec. 8 does not say that and no other part of the
| U.S. constitution mentions war.
| psunavy03 wrote:
| > Armed forces killing people is a state of war.
|
| Real life is rarely this black and white.
| clob wrote:
| Which is why we invented laws and legal systems to codify
| such things.
|
| Did you commit a crime, yes/no? Let's bring it to trial.
|
| The circumstances are messy in all real world instances,
| but the outcome is binary.
|
| Refusing to even put a president on trial is _more_ black
| and white, because it 's a clear "no, not illegal"
| without even discussion.
| davidmurdoch wrote:
| Courts don't even decide yes/no. Maybe is an outcome. We
| don't know is also an outcome.
| grotorea wrote:
| Doubly so since almost everyone stopped bothering to
| declare war after WW2.
| BobaFloutist wrote:
| >If not, it's policing then it's under the judiciary
| authority, not the president.
|
| Wait, what? Executive branch pretty explicitly encompasses
| enforcement. The Justice Department is part of the
| Executive branch.
|
| Unless by "Judiciary authority" you meant the Justice
| Department, and not the Judiciary branch of the federal
| government, and by "not the president" you were very
| specifically discussing the semi-independence the Justice
| department has from the president.
| janalsncm wrote:
| Congress has the power to declare war. But Congress has
| also passed the War Powers Act which states the President
| can use the military for short periods of time. Are you
| claiming the War Powers Act is unconstitutional?
| InTheArena wrote:
| The War Powers Act is exactly the type of law that the
| Supreme Court has been going after. Bills that give power
| that was meant for one branch of government to a
| different branch, or abrogating that power.
| mywittyname wrote:
| The problem with SCOTUS going after these laws is that
| they are a matter of practicality. If an attack is
| launched on the USA, the military and the President
| aren't going to sit back and let it happen, they will
| act.
|
| When the constitution was drafted, time delays
| necessitated that the military and the President act
| autonomously for the most part. Congress couldn't convene
| rapidly enough to expect them to have much say in all but
| the largest and most drawn out conflicts.
|
| The War Powers Act is codifying this implicit power. The
| framers never considered a situation where the President
| and Congress is watching a conflict play out across the
| world in real-time and making decisions. So it's
| literally impossible to say how they wanted this to be
| handled. _That 's why they gave Congress the powers to
| write laws_.
| secstate wrote:
| And yet, now here we are in the 21st century, where it
| feels like we're on the opposite side of the time delay
| problem. Instead of the War Powers Act, what if we
| allowed congresspeople to use PEKs to vote by proxy in
| the case of an emergency (definition needed)? Surely that
| would be better than creating a all-but-in-title king out
| of the executive branch as concerns conflict?
| rtkwe wrote:
| The security issues around that are similar to the issues
| with electronic voting and have been covered
| exhaustively. You're creating the absolutely juiciest
| target for hacks and espionage. I would say they could
| meet by remote teleconference but that has issues now too
| with deep fakes getting better and better.
|
| On a similar note the communication time has vastly
| narrowed but so has the ability to perform attacks.
| mmcdermott wrote:
| Banning bills that transfer powers around government
| would also hamstring regulatory agencies, wouldn't it?
| While there are some other rules in place, agencies
| making law is fundamentally a transfer of power from the
| Legislative branch to the Executive.
| hartator wrote:
| Congress, the presidency, and the judiciary can't pass to
| each other their powers. It's indeed unconstitutional.
| margalabargala wrote:
| > > The Constitution does not say that war must be declared
| for the armed forces to operate.
|
| > It does.
|
| Since the Constitution is a publicly available document,
| would you please point me to the spot where it says that?
| Thanks.
| thurn wrote:
| There is a certain amount of deliberate ambiguity to
| Article I Section 8 -- take a look at e.g.
| https://avalon.law.yale.edu/18th_century/debates_817.asp
| and you can see that the wording "The Congress shall have
| power to [...] declare war" was revised from "make war"
| in the earlier drafts. Madison clearly felt that
| Congressional authorization was on _some level_ required
| to conduct a war, but that the Executive should be free
| to act quickly in self-defense, e.g. to repel an
| invasion.
| mywittyname wrote:
| Like a lot of things, this seems to fall under the idea
| of "convention" and not law. This has been an ongoing
| problem in recent times. Practically speaking, Congress
| is a rubber stamp for matters of war.
|
| Theoretically, they can withhold funding from the
| military. But seeing as the Treasury Department falls
| under the President, it's unlikely they can actually do
| that.
| rtkwe wrote:
| Legally though the power of the purse also lies with
| Congress. If we're throwing in extra constitutional
| actions all bets are off though because we're no longer
| bound by the rules of what is allowed and it's down to
| the old power of might making right.
| friend_and_foe wrote:
| "Withhold funding from the military" it's actually better
| (or worse) than that. The US doesn't have a standing army
| technically speaking, it cannot constitutionally. The
| post war military has been continuously reauthorized
| twice yearly since the end of world war 2. Congress can
| refuse to reauthorize continuation of it and the treasury
| can't do anything about it.
| maxlybbert wrote:
| I don't think we covered that in my history classes.
| Congress's website about the constitution agrees with you
| and adds additional details ( https://constitution.congre
| ss.gov/browse/essay/artI-S8-C11-3... ).
| sirspacey wrote:
| Not quite. This is a great survey of the many issues &
| opinions on the topic that have been at play since the
| beginning of the Constitution: https://constitution.congres
| s.gov/browse/essay/artI-S8-C11-3....
| autoexec wrote:
| > Armed forces killing people is a state of war.
|
| There hasn't been a single year of my life where US armed
| forces weren't killing someone somewhere in the world. The
| US military has been involved in armed conflicts around the
| globe in nearly every year since WWII but it hasn't
| declared many wars.
|
| https://en.wikipedia.org/wiki/List_of_wars_involving_the_Un
| i...
|
| https://en.wikipedia.org/wiki/Timeline_of_United_States_mil
| i...
| imgabe wrote:
| Policing, or law enforcement, at the Federal level is also
| a part of the executive branch and under control of the
| President.
| rtkwe wrote:
| The current standing precedent/law is the President only
| has to notify Congress within 48 hours of an action and
| must remove troops within 60 days if Congress has not
| approved an extension. Formal declarations of war are
| separate from short military actions legally. It's an
| extremely messy part of constitutional law precisely
| because of the split between the power to do and the power
| to authorize.
| Exoristos wrote:
| The Constitution forbade the US even to have a standing army.
| A standing navy was instituted, however.
| margalabargala wrote:
| The Constitution does not forbid a standing army, it merely
| mandates that funding be renewed every two years. This is
| functionally a standing army.
| Empact wrote:
| > What part of the Constitution are we ignoring?
|
| Drone strikes on foreign targets are most analogous to the
| historical practice of issuing "letters of marque and
| reprisal," which allowed private actors (privateers) to act
| on behalf of the state to take out pirates.
|
| Issuing such letters is an enumerated power of Congress, not
| the Presidency. So if the President does so unilaterally,
| they are acting outside their Constitutional authority.
|
| The risks of abuse to military power are real and
| significant, which is why the power was placed in the body
| closest to the people - so that such actions would be
| consistent with the public will.
|
| https://constitution.congress.gov/browse/article-1/section-8.
| ..
| kristjansson wrote:
| > The Constitution does not say that war must be declared for
| the armed forces to operate.
|
| Yes it does, by reserving for Congress the right to declare
| war. Obama's drone strikes were carried out under the 2001
| AUMF against al-Qaeda and the Taliban.
| jmbwell wrote:
| The president now has legal authority to do whatever he
| wants.
|
| At the same time, the president's agencies no longer have the
| authority to do whatever they want.
|
| So I guess the president can order the military to drone
| strike the FCC if he wants at this rate. I don't see what
| influence the Constitution is still going to have at this
| point.
| haroldp wrote:
| > We've been ignoring the Constitution for a very long time.
|
| Since Thomas Jefferson sent Navy & Marines after the Barbary
| Pirates without consulting Congress.
| jkic47 wrote:
| I take your point, but quick action is occasionally necessary.
| Presidents knowing that their actions could be second guessed
| are more likely to use the minimum force needed to achieve an
| objective.
| Buttons840 wrote:
| We ask every soldier to put their life on the line. But do we
| dare ask our President to subject himself to our laws?
|
| I mean, if Obama went to prison for the drone strikes he
| ordered, his sacrifice would be less than many common
| soldiers have made.
|
| I want Presidents willing to put their lives on the line and
| their actions under the law. Is that too much to ask?
| JamesBarney wrote:
| Not less than the average sacrifice a soldier made. The
| average soldier would not sign up if they had a significant
| chance of going to prison afterwards.
|
| Yes it's too much to ask every president to significantly
| risk jail time for being president.
| InTheArena wrote:
| yes, because throughout history this has been abused. This
| was the reason that Caesar crossed the Rubicon - his
| opponents were all queued up to sue him into oblivious on
| his term as counsel ended.
| Buttons840 wrote:
| Why are we okay asking soldiers to die, but asking the
| President to risk prosecution and be subject to the law
| is "too much"?
| InTheArena wrote:
| Because we need governments and can't afford to make it
| so that anyone who ever wins elections spends the rest of
| their life fighting off lawsuits. Wars happen, and
| governments exist, people forget that laws are used as
| much to impede good governance as they are to enforce
| good governance.
| Buttons840 wrote:
| What would be the consequences if we did allow Presidents
| to be prosecuted and some of them did spend the rest of
| the life fighting prosecutions?
|
| It seems to me the consequence would be that we would
| have Presidents who act carefully to not break the law.
| Are there any other consequences?
|
| I've heard it said that "democracies are where the people
| in power lose". We've all seen "democracies" where the
| party in power never loses; those aren't real
| democracies. Likewise, I would say nations that are truly
| governed by law are where those in power face legal
| prosecution.
|
| (Also, what's so bad about prosecution? If a person is
| innocent, the legal system will find them to be innocent,
| right?... Right?)
| jkic47 wrote:
| The consequences would be Lawfare.
| tick_tock_tick wrote:
| Because doing so gives the President tons of incentives
| for bad behavior. It's a fun case where "risk of
| prosecution" would result in tons more questionable
| behavior then less.
| jkic47 wrote:
| Great rhetorical question, but do consider these points: 1.
| we ask everyone to do their individual jobs. In a soldier's
| case, loss of life is a job hazard. In the President's
| case, making tough decisions that could kill soldiers and
| civilians is a job hazard 2. The assassination rate for US
| Presidents is 8.7% (4/46 Presidents were assassinated). 3.
| There were 1,922 US combat deaths in Afghanistan (ref 1)
| and at the peak of the war, there were 100,000 troops there
| (ref 2). If you ignore all the other years of deployment, a
| US soldier's death risk in Afghanistan was 1.9%
|
| Numbers are hard when they go against our intuition, but
| every US President is taking a comparable risk to being a
| soldier according to these numbers.
|
| Obama took the risk of being a President while Black Trump
| took the risk of being a President while Orange
|
| Ref 1. https://en.wikipedia.org/wiki/Coalition_casualties_i
| n_Afghan... 2. https://www.militarytimes.com/news/your-
| military/2016/07/06/...
| IamLoading wrote:
| Then, what are american solidiers doing in Jordan dying out
| there. The reality is that we are sending troops using
| loopholes, and that's costing such unnecessary complexity.
| theshrike79 wrote:
| So the US shouldn't be able to conduct any kind of military
| operations against any country they haven't declared war on?
| lapcat wrote:
| Correct.
| umvi wrote:
| So the US has to declare war on Russia and China in order
| to support Ukraine and Taiwan? Declaring war on those
| superpowers would be a serious act of aggression and start
| WW3.
| lapcat wrote:
| That depends on what you mean by "support". Selling
| weapons is not in itself an act of war, whereas using
| weapons is.
| kristjansson wrote:
| Not without timely notification of and authorization by
| Congress.
| insane_dreamer wrote:
| While I don't agree with the strikes, such action was generally
| authorized by Congress (thanks to the "war on terror") which
| was never since rescinded by Congress. So was not
| unconstitutional.
| friend_and_foe wrote:
| The constitution clearly says that a _declaration of war_ is
| needed, and only short periods of action that are necessary
| in the interim can be taken by the president absent that.
| Congress does not have the authority to simply pass a law
| invalidating that. They did it, but it is most certainly not
| constitutional.
| piva00 wrote:
| > Congress does not have the authority to simply pass a law
| invalidating that. They did it, but it is most certainly
| not constitutional.
|
| The ones that should judge if it's not constitutional just
| passed judgment stating that a ex-president is above the
| law. I think they can invalidate if a president explicitly
| needs declaration of war, given recent history I'd bet a
| lot they would find it totally constitutional.
| insane_dreamer wrote:
| Then the question is whether the law passed by Congress was
| unconstitutional, which would have nothing to do with
| Obama. First someone with standing would have to challenge
| the law and then it would make its way up through the
| courts. But I'm pretty sure the Supreme Court would uphold
| it (as much as I would want it struck down along with the
| Patriot Act and other "war on terror" measures).
| jasonlotito wrote:
| https://mwi.westpoint.edu/the-law-of-armed-and-unmanned-conf...
|
| > As the Supreme Court concluded, the United States is in an
| armed conflict with al-Qaeda, and Congress's 2001 Authorization
| for the Use of Military Force--along with the president's
| commander-in-chief authority under Article II of the
| Constitution--provides ample domestic legal authority to
| conduct military operations against al-Qaeda.
|
| tl;dr: We haven't been ignoring the Constitution for a very
| long time.
| dang wrote:
| We detached this subthread from
| https://news.ycombinator.com/item?id=40848146.
| lapcat wrote:
| > We detached this subthread
|
| What does that mean? I'm not familiar with detached
| subthreads.
| tptacek wrote:
| At the point where the thread was "detached", it is as if
| someone started a new top-level thread.
| wnevets wrote:
| This has to be one of the worse courts in the last 100 years.
| coldpie wrote:
| For a man who talks so much about wanting to protect the
| legitimacy of the court, Roberts has done more than anyone in
| recent history to destroy it. In the best case, Roberts will
| have brought about the end of SCOTUS in its current form as a
| reaction to the blatant illegitimacy and corruption he allowed
| under his watch. If the US survives the next couple decades,
| the Roberts court will be talked about in the same light as the
| 3/5ths decision.
| 6510 wrote:
| How do you hotswap a government?
| treeFall wrote:
| So you want to be an insurrectionist? That's what replacing an
| elected government makes you.
| 6510 wrote:
| You cant seriously be suggesting we should keep gluing new
| things onto the legacy code base until the end of time
| without ever considering a full rewrite?
|
| But to somewhat address the sentiment: We can replace the
| machines and keep the line operators.
|
| edit: Not sure now, should the government be considered the
| people running the country or the formula?
| treeFall wrote:
| >The President of the United States is the most powerful person
| in the country, and possibly the world. When he uses his official
| powers in any way, under the majority's reasoning, he now will be
| insulated from criminal prosecution. Orders the Navy's Seal Team
| 6 to assassinate a political rival? Immune.
|
| I would consider this an extreme knee jerk take, but it's
| Sotomayor saying it.
|
| https://x.com/mikedebonis/status/1807787300375445993
| throwawaymaths wrote:
| in practice, not really much of a change. Did FDR stand trial
| for interning Japanese people? Ok, ok he died too soon. _Would
| he have_?
| nashashmi wrote:
| FDR did a lot of wrong, including paying farmers to not work.
| SoftTalker wrote:
| A lot of presidents did a lot of wrong. The ones who did
| not would be a shorter list.
| vundercind wrote:
| Even if he had--he might have been acquitted! Even under a
| relatively fair trial!
|
| The dissent notes that official acts _as a defense_ is
| already A Thing. What's changed is upgrading that to
| immunity, which means they can't be tried in the first place,
| no defense needed. The law is simply held not to apply.
| skhunted wrote:
| There's a huge difference between "I think I can get away
| with this" and "The Supreme Court says I have absolute
| immunity".
| danielmarkbruce wrote:
| Except the ruling doesn't say that.
| skhunted wrote:
| _While a president has total immunity for exercising
| "core constitutional powers," a sitting or former
| president also has "presumptive immunity" for all
| official acts. That immunity, wrote Chief Justice John
| Roberts in the majority opinion, "extends to the outer
| perimeter of the President's official responsibilities,
| covering actions so long as they are not manifestly or
| palpably beyond his authority."_
| redserk wrote:
| What's exactly said and what are the practical impacts
| are two completely different things.
|
| It will take many, many cases to elaborate on what
| defines an official act and what exactly decides
| immunity, and in the process we could see a lot of
| potential what-I'd-say is overreach.
|
| It is far too early to declare that there will be zero
| side effects from this -- as with literally any Supreme
| Court ruling.
|
| We've already seen what qualified immunity gets us, and
| I'd bet many people didn't expect it to go that way.
| lenerdenator wrote:
| It absolutely says that.
|
| A President, if they act in an "official" capacity,
| cannot later be charged with a crime for something they
| did in that official capacity. Not "can offer being an
| official as a defense", "cannot be charged".
|
| What is an official capacity? Well there's the
| traditional stuff like vetoes, appointments, and the
| like, but there's a lot of stuff that is far more
| nebulous. Does the President act in an official capacity
| when telling the Vice President what to do with regards
| to certifying an electoral college result? Well, if
| that's official, Trump has to be more-or-less let go for
| what happened on January 6th.
|
| We are now basically saying that it's up to a judge - who
| may or may not have been appointed by the President in
| question - to decide whether something was an official
| act. If it is? Welp, sorry the President's wanton order
| violated your Constitutional rights, but no trial.
| willcipriano wrote:
| Acts that are unconstitutional probably aren't official,
| by definition they are outside the scope of official
| duties, throw every living president into prison?
|
| Charge every act of violence ordered in places war is
| undeclared as war crimes?
|
| If not, the things they have on Trump seem like really
| small potatoes to zero in on.
| lenerdenator wrote:
| > Acts that are unconstitutional probably aren't
| official, by definition they are outside the scope of
| official duties, throw every living president into
| prison?
|
| You could make a very good case that drone strikes on
| American citizens in foreign lands that are a part of
| jihadist groups without due process are unconstitutional.
| And yet, it happens. According to the standard Roberts
| puts in place, things that are on the extreme periphery
| of the duties of the Presidency are exempt from criminal
| prosecution. Does this mean drone strikes? Almost
| certainly. The President has an enumerated power to
| command the armed forces.
|
| I fail to see _why_ throwing all of the living Presidents
| in prison is a problem, particularly if they receive a
| day in court before getting thrown in prison. What this
| ruling does is create a class of American that can do
| some genuinely awful things and not be subject to legal
| process _at all_. There is no process, due or otherwise.
| The person gets to live their life as before.
|
| Trump's being tried because the things he did weren't
| small potatoes. Trying to overthrow the electoral process
| unilaterally is a state fair record-setting potato. It's
| a far more immediate and widespread risk to American life
| and liberty than the drone strikes on foreign land that I
| mentioned earlier. One impacts a few dozen Americans
| globally at most; the other impacts literally all of
| them.
| danielmarkbruce wrote:
| > things that are on the extreme periphery of the duties
| of the Presidency are exempt from criminal prosecution
|
| This is wrong, and your ability to make an argument
| suggests you know it is. And the most extreme acts being
| mentioned as risks are the exact ones where "presumptive"
| matters.
| throwawaymaths wrote:
| > I fail to see why throwing all of the living Presidents
| in prison is a problem
|
| Hell IIRC at one point all living governors of Illinois
| were in prison
| danielmarkbruce wrote:
| Official act isn't defined, so it doesn't say that.
|
| Your last paragraph is closer to accurate, except a
| president doesn't just "appoint" a judge. They have to be
| voted in by the senate. So, if the president is a crook
| and nominates a crook and the senate is full of crooks
| and vote yes to have said crook become a judge, then yes
| really bad stuff can happen. But if the president is a
| crook and the majority of the senate are crooks, it's
| already all over.
| lenerdenator wrote:
| > Official act isn't defined, so it doesn't say that.
|
| It is and isn't, which is the problem.
|
| > Your last paragraph is closer to accurate, except a
| president doesn't just "appoint" a judge. They have to be
| voted in by the senate. So, if the president is a crook
| and nominates a crook and the senate is full of crooks
| and vote yes to have said crook become a judge, then yes
| really bad stuff can happen. But if the president is a
| crook and the majority of the senate are crooks, it's
| already all over.
|
| They more or less do appoint. There's never going to be a
| judge voted on that doesn't push a President's viewpoint,
| particularly not in the last thirty years. If a system
| doesn't take into consideration this particular
| contingency, it wasn't a very good system, was it?
| danielmarkbruce wrote:
| Tell that to Merrick Garland.
|
| You are confusing necessary and sufficient.
| skhunted wrote:
| _So, if the president is a crook and nominates a crook
| and the senate is full of crooks and vote yes to have
| said crook become a judge, then yes really bad stuff can
| happen._
|
| That's essentially what happened with Kavanaugh, Amy, and
| Neil minus the judge being a crook part. Well, Kavanaugh
| is a rapist so for him the crook part applies. The really
| bad stuff is happening. You just are not aware of it.
| danielmarkbruce wrote:
| The point: if those things happen, this decision matters
| not.
|
| If you think all those things are in place, this really
| is the least of your worries.
| dooglius wrote:
| https://en.wikipedia.org/wiki/Korematsu_v._United_States?use.
| ..
| throwawaymaths wrote:
| Note v. United States, not v. FDR
| flyingpenguin wrote:
| He very likely should have at least been tried (and probably
| acquitted). I don't understand this modern take so many
| people have that "Freedom to act" somehow means "act without
| consequences".
| kardianos wrote:
| That's the minority opinion. Maybe people should read the
| majority opinion first?
| ahmeneeroe-v2 wrote:
| 6 of 9 justices presumably felt they weren't enabling an
| executive with no limits
| 7thaccount wrote:
| Several of those are absolutely corrupt at this point and
| bought off by the corporatocracy that now rules the
| country.
| mandmandam wrote:
| Conveniently, buying off SC judges was also made legal
| this week.
| danielmarkbruce wrote:
| It's extreme to the point of silliness. If a court decides that
| would fall under "official acts", we are already doomed.
| OgsyedIE wrote:
| In practice the court will say whatever POTUS tells it to
| say, lest an 'official act' remove some of the members of the
| court and their loved ones.
| TylerE wrote:
| Only if the potus has an -R. This court has been a
| caricature of siding with evil whenever given the
| opportunity.
|
| It's composed of the three honest judges and six partisan
| Federalist Society hacks who will make up whatever terrible
| "justification" to rule for the powerful and rich.
| mandmandam wrote:
| I'll say it again, because that flag was completely
| unfair and people really need this context:
|
| 2 of those hacks were gifted on silver platters by
| establishment Dems.
|
| 1. They could have fought harder (or at all) to get
| Merrick Garland confirmed.
|
| 2. RBG needed to step down.
|
| Many, many people warned of the dire consequences of
| these decisions. Now here we are.
|
| _Edit_ : I'm rate limited, but in response to Tyler
| below:
|
| > What were the Dems supposed to do exactly?
|
| _Anything_. "We tried nothing, and we're all out of
| ideas". Some ideas:
|
| 1. A public pressure campaign. Mobilise public opinion
| and leverage media. _Try_.
|
| 2. Procedural tactics in the Senate. Delay bills, force
| debate, etc. Dems can be highly cunning & competent when
| fighting against progressives, so I know they had the
| ability.
|
| 3. Explore legal avenues to hold Republicans responsible
| for fucking with Democracy like that. Accountability;
| what a concept.
| A4ET8a8uTh0 wrote:
| The funny thing is.. we are in a similar spot now too --
| what with gerontocracy unwilling to let go of power --
| and, it will likely surprise no one, amazingly long lived
| consequences.
| TylerE wrote:
| The Rs refused to given Garland his day in Congress, and
| they had the majority. What were the Dems supposed to do
| exactly?
| danielmarkbruce wrote:
| Get control of the senate. It wouldn't have mattered if
| they gave him his day, he wasn't going to get nominated.
| The republicans nominated Robert Bork back in the day,
| and the dems (then in control of the senate) voted it
| down. It's basically the same thing - the system working
| as intended.
| TylerE wrote:
| No, it bloody well isn't.
|
| Republicans _refused to hold the vote_ on Garland,
| spouting off nonsense about "No new justices in an
| election year". The same people rammed judges through in
| Trumps last year. Typical right wing hypocrisy.
| danielmarkbruce wrote:
| And if they'd had the vote? The result would have been
| no. Same result.
| TylerE wrote:
| It would have put a lot of prominent Republicans -
| including Senate Majority Leader Mitch McConnell - in an
| awkward position because a number of them had previously
| said he was a great candidate.
|
| So, they either make a liar out of themselves, or become
| a rank hypocrite.
| belorn wrote:
| Under the same line of thought, soldiers in the military
| will always follow what their commander say, least order to
| comes to remove a soldier and their loved ones.
| shadowgovt wrote:
| I think that's rather her point. We _are_ already doomed.
|
| Think about how the Executive handled rival political
| movements in the past. The Black Panthers. CPUSA circa 1919.
| Now imagine Fred Hampton had been running for President when
| he was killed.
|
| The line between "political opponent" and "enemy of the
| State" can become pretty blurry. This ruling gives the
| Executive _broad_ power to act in its own interests when it
| can claim the line is blurry.
| MPSimmons wrote:
| What does "Enemies, foreign and domestic" mean, really?
| o11c wrote:
| That phrasing is so passe. It has been "enemies, real and
| imaginary" for over 2 decades now.
| brendoelfrendo wrote:
| It is, frankly, moon logic. The President is commander-in-
| chief, ergo, they are immune from prosecution when issuing an
| order to the military, even if the order is illegal? Because
| the Constitution says the President can issue orders and
| doesn't say anything about whether those orders need to be
| legitimate or justifiable in any sort of national context?
| Repeat for the Justice Department, or Immigration, or any of
| the many offices that fall under the executive branch.
| Apparently if the President is insane, or corrupt, or
| treasonous... that's a problem for all of us, but not
| necessarily a problem for the President.
| jameshart wrote:
| Really does a number on the 'unlawful order' doctrine for
| military accountability. Has SCOTUS made 'just following
| orders' a valid legal defense?
|
| They've also made much of the fact that the presidential
| authority to pardon is constitutionally unreviewable, so
| even if the president orders someone to commit a crime, he
| can pardon them preemptively. His appointment power is
| similarly in the constitution, so he can also fire and
| replace them until he finds someone willing to do it.
|
| Are we really left with 'if the president were to issue
| illegal orders to his staff, Congress would definitely
| impeach him'?
| wbl wrote:
| No, the President gets to order it and the little guys
| fall for doing it.
| jcranmer wrote:
| The president telling any member of his cabinet to do
| anything is presumptively an official act, and the evidence
| of him doing so is categorically forbidden from being used as
| evidence. (Hell, that's more extreme than even Trump's
| lawyers asked for! This basically overturns US v Nixon in its
| quest to elevate
|
| This is an opinion that might make sense if we were being
| asked if a president ordering drone assassinations makes him
| liable for murder. In the context of the president trying to
| instigate a coup for not being reelected, to the point that
| his own government is threatening mass resignation if he
| carries it out in protest at the sheer unconstitutionality of
| it... this is the kind of question that almost begs SCOTUS to
| say "make a narrow ruling as to whether or not this specific
| instance is permissible" and SCOTUS decides instead to make a
| grand, sweeping proclamation for all ages and circumstances
| and neglect to look at the _specific facts in this case_ and
| leave it unanswered here.
|
| Roberts, let this case be your Dred Scott decision, your
| Korematsu decision. You've certainly done more to torpedo the
| credibility of the court in one decision than any other case
| in the past few decades... and that's saying quite a bit.
| monetus wrote:
| And this is coming off of the heels of Chevron being
| overturned.
| bcrosby95 wrote:
| Official acts are still official regardless of the underlying
| reason and according to this case courts aren't even allowed
| to examine those reasons.
| danielmarkbruce wrote:
| "official acts" have yet to be defined.
| Miner49er wrote:
| They are partially defined, and the example given is part
| of the partial definition.
| danielmarkbruce wrote:
| No, it's not. Because contradictions exist (is it
| official when it's unconstitutional? Is it official
| because it's mentioned in the constitution?) and are not
| yet resolved.
| Miner49er wrote:
| Anything laid out as a Presidential power in the
| Constitution is definitely an "official act". What is
| left for definition is everything else, from my
| understanding.
| bcrosby95 wrote:
| IANAL, but those seem like constitutional acts, and have
| absolute immunity, rather than simply presumptive
| immunity.
|
| From the article:
|
| > "Under our constitutional structure of separated
| powers, the nature of presidential power entitles a
| former president to absolute immunity from criminal
| prosecution for actions within his conclusive and
| preclusive constitutional authority," Chief Justice John
| Roberts wrote for the court. "And he is entitled to at
| least presumptive immunity from prosecution for all his
| official acts. There is no immunity for unofficial acts."
|
| There aren't just 2 types of acts. There are 3:
| constitutional, official, and unofficial.
| danielmarkbruce wrote:
| No, it isn't. It is up for debate and will be debated, in
| court.
| Miner49er wrote:
| > At least with respect to the President's exercise of
| his core constitutional powers, this immunity must be
| absolute. As for his remaining official actions, he is
| entitled to at least presumptive immunity.
| doctorpangloss wrote:
| > If a court decides that would fall under "official acts",
| we are already doomed.
|
| Everyone thinks lines don't get crossed, until they do.
| lenerdenator wrote:
| And if the last nine years have proven anything, most of
| the system will say "well, that wasn't _technically_ a
| line, just something we 've always done a certain way that
| was up for change at any moment's notice should one person
| decide to do so."
| enragedcacti wrote:
| You know the majority can read the dissent right? If they
| felt it so silly they could have addressed it. Rather than
| contesting the claim they dismiss it because they feel its
| not as likely as other (seemingly non-mutually exclusive)
| concerns:
|
| > The dissents' positions in the end boil down to ignoring
| the Constitution's separation of powers and the Court's
| precedent and instead fear mongering on the basis of extreme
| hypotheticals about a future where the President "feels
| empowered to violate federal criminal law." [...] The
| dissents overlook the more likely prospect of an Executive
| Branch that cannibalizes itself...
|
| Also important to note is that the hypothetical didn't sprout
| from thin air, Trump's lawyers (whose arguments SCOTUS in
| large part accepted) acknowledged that extrajudicial
| assassinations would fall under official acts.
|
| https://thehill.com/regulation/court-
| battles/4398223-trump-t...
| lolinder wrote:
| That's not what they say, you cut off their actual
| response:
|
| > The dissents overlook the more likely prospect of an
| Executive Branch that cannibalizes itself, with each
| successive President free to prosecute his predecessors,
| yet unable to boldly and fearlessly carry out his duties
| for fear that he may be next. ... Virtually every President
| is criticized for insufficiently enforcing some aspect of
| federal law (such as drug, gun, immigration, or
| environmental laws). An enterprising prosecutor in a new
| administration may assert that a previous President
| violated that broad statute. Without immunity, such types
| of prosecutions of ex-Presidents could quickly become
| routine.
|
| Their argument isn't that it's not likely, it's that
| there's another failure mode that is even more likely.
| lenerdenator wrote:
| I wouldn't call that a failure mode.
|
| The US has a long history of relying purely on executive
| latitude and good faith to get things done. We now have a
| bad faith actor who wants back in the Oval Office with
| _far_ fewer restrictions on his power. A lawsuit or
| criminal charge would absolutely be a good remedy in that
| situation.
|
| Furthermore, it's the implementation of a system. What
| the justices of the majority said today is "there is no
| system". When there is no system to deal with problems,
| then humans make them up ad-hoc, which usually results in
| violence, if history is any indicator - and it is.
| KoolKat23 wrote:
| Deleted
| lolinder wrote:
| You're misreading the text. It's not saying "if
| presidents assassinated their rivals they'd cannibalize
| themselves", it's saying "if executive branches got in
| the habit of prosecuting past presidents for official
| acts we'd be in a load of trouble, and that's a more
| likely scenario than assassinations."
| shadowgovt wrote:
| Reasoning that more-or-less overlooks the entire history
| of the United States' treatment of bad political actors,
| from the Nixon pardon through the Lincoln pardons of the
| Confederates all the way to the multiple times Aaron Burr
| escaped justice for his prior service to the country.
|
| It does make one question why this SCOTUS seems to think
| the future will break with precedent. Almost as if
| they're laying the groundwork for some significant
| changes to past decorum...
| KoolKat23 wrote:
| I see what you're saying thanks. Deleted to avoid causing
| confusion.
| enragedcacti wrote:
| That's a lot of words to not contest that political
| assassinations are covered under this framework of
| immunity.
|
| > Their argument isn't that it's not likely, it's that
| there's another failure mode that is even more likely.
|
| I know its hard to imagine, but I strongly feel there is
| some amount of presidential immunity that mitigates what
| they are worried about without also enabling political
| assassination.
| downWidOutaFite wrote:
| We were doomed when Republicans decided that impeachment was
| a partisan tool and could not be used against Trump. They
| broke the system by abandoning their constitutional duties so
| we are now looking into the abyss.
| jameshart wrote:
| A do-over of both impeachment trials in the Senate would
| seem to be necessary, given that many senators went on
| record as saying they believed presidents were subject to
| criminal prosecution and chose not to convict for that
| reason. This changes that calculus.
| jfengel wrote:
| It changes the excuse. They will surely find a different
| one.
| A4ET8a8uTh0 wrote:
| That... is a bold misstatement of basic facts. IIRC[1]
| Democracts introduced a bill to impeach Trump in very
| partisan fashion, and then cried foul when Republicans made
| an attempt to impeach Biden. Amusingly, this is partially
| how we got to see the other part of the Hunter Biden laptop
| saga.
|
| But to your main point, do you remember why Democrats tried
| to impeach Trump? I am leaving it as a question, because I
| am curious how you are intending to defend that record.
|
| [1]https://en.wikipedia.org/wiki/Efforts_to_impeach_Donald_
| Trum... [2]https://en.wikipedia.org/wiki/Impeachment_inquir
| y_into_Joe_B...
| laidoffamazon wrote:
| They impeached Trump twice, members of both parties voted
| to impeach both times (more in the latter than the
| former).
|
| The first time Trump used his power as president of a
| superpower to attempt to force a poor country to make up
| a fake investigation into his political rival. This is
| bad, basically unprecedented.
| A4ET8a8uTh0 wrote:
| << This is bad, basically unprecedented.
|
| Is it bad? Sure. Unprecedented? Hardly[1]. Note that this
| precedented action was taken by Biden( same country too
| ). The only difference appears to be 'he is the wrong
| side'. But hey, Biden can attempt to have superpower
| force a poor country to do what he wants it to do ( and
| we can go into the details of the names in that article
| if you think it is worthwhile, because to a casual
| observer 'Biden, allies pushed out Ukrainian prosecutor
| because he didn't pursue corruption cases' is mildly
| laughable ).
|
| edit:
|
| << members of both parties voted to impeach both times
|
| Ah, yes, the ever-present siren song of
| bipartisanship[2]. House had 10 defectors:
|
| Party Yeas Nays Present Not Voting Democratic 222 0 0 0
| Republican 10 197 0 4 Independent 0 0 0 0 Total 232 197 0
| 4
|
| And note how the more recognizable defectors are either
| being pushed out of their seats ( Kinziger ) or reviled
| by their constituency and then pushed out ( Cheney ).
|
| [1]https://www.congress.gov/116/meeting/house/110331/docu
| ments/... edit[2]https://clerk.house.gov/Votes/202117
| laidoffamazon wrote:
| > Unprecedented? Hardly[1].
|
| This is literally because the individual in question
| _was_ notably corrupt and not for political gain.
|
| >> It wasn't because Shokin was investigating a natural
| gas company tied to Biden's son; it was because Shokin
| wasn't pursuing corruption among the country's
| politicians, according to a Ukrainian official and four
| former American officials who specialized in Ukraine and
| Europe.
|
| > Ah, yes, the ever-present siren song of
| bipartisanship[2]. House had 10 defectors
|
| That is indeed bipartisanship
| A4ET8a8uTh0 wrote:
| << That is indeed bipartisanship
|
| Just a point of reference for me though. Would one count
| the impeachment as bipartisan or are we just playing with
| words? I mean, we can, but it gets silly fast.
|
| << because the individual in question was notably corrupt
| and not for political gain.
|
| I did not you ask why. You used qualifier unprecedented,
| which was inaccurate ( I am giving you the benefit of the
| doubt ). And this is before we get to the part that
| finding a non-corrupt official there is kinda hard (
| edit: which makes the distinction irrelevant ).
| bitlax wrote:
| > I would consider this an extreme knee jerk take, but it's
| Sotomayor saying it.
|
| Sotomayor is prone to extreme knee-jerk takes.
|
| https://apnews.com/article/fact-checking-052172757066
| rafram wrote:
| An incorrect off-the-cuff comment during oral arguments != an
| incorrect assertion in a published decision.
| squidbeak wrote:
| She's a Supreme Court Justice so her cautions shouldn't be
| lightly dismissed.
| alphabetatheta wrote:
| This is a terrible take. The Supreme Court case severely limits
| even the use of evidence to prosecute a President. The majority
| ruling says that as long as something is done in "official"
| capacity the intentions don't matter.
|
| EDIT: This ruling probably retroactively clears Nixon from
| Watergate. It would make it illegal to use the tapes as
| evidence against him.
| vessenes wrote:
| Would it? I am skeptical about this take and I am skeptical
| of Sotomayer's take. What official capacity would Nixon have
| been undertaking? What official capacity would a seal team
| six assassination of trump be designated as?
|
| I'm also skeptical of her dissent strategy; dissents are key
| places to limit a ruling. Why not just say what seems crystal
| clear and say 'nothing about this ruling should be taken to
| mean calling something an official act as a fig leaf for
| criminality is okay; it's not okay to assassinate a political
| rival ever.' Instead she says it might be okay by the ruling.
| I dislike this approach in the extreme; it feels like
| grandstanding and complaining about the Roberts court rather
| than engaging with her own substantial influence.
| darkerside wrote:
| Thank you for verbalizing something that was really
| bothering me here. Sotomayor is playing the victim in a way
| that is bad for America.
| chasd00 wrote:
| >Instead she says it might be okay by the ruling
|
| yeah it seems like a traditional FUD strategy, i would
| expect Supreme Court justices to be more analytical and
| sober than that.
| vharuck wrote:
| >Would it? I am skeptical about this take and I am
| skeptical of Sotomayer's take. What official capacity would
| Nixon have been undertaking?
|
| For the Nixon tapes, today's SCOTUS ruling would require
| the prosecution to convince a federal judge before trial
| that the value of the tapes in the criminal case greatly
| outweighs the general immunity from oversight presidents
| have when consulting advisors. Difficult, but not
| impossible. It probably would've given the same result in
| the Nixon case, because Nixon didn't use presidential
| powers to carry out the plan (just the cover up in the
| Saturday Night Massacre stage). If he had used an active
| FBI agent instead of a former one to place the bugs, then
| it might have been OK, according to today's ruling (see
| III.B.1 which grants immunity to Trump for his sham
| investigations using the DOJ).
|
| >What official capacity would a seal team six assassination
| of trump be designated as?
|
| The President is the head of the military and can direct
| them without consulting Congress. Congress is free to
| impeach him if he does so without authorization, but he'd
| have absolute immunity because this is a core power of the
| office.
|
| Maybe you meant, "What reason could there be to justify
| that killing in the name of the nation or its people?" In
| which case, the President would never have to say. His
| motives are not even allowed to be investigated. See III.A
| from the majority opinion:
|
| >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.
| criddell wrote:
| Does it say anything about the person who carries out the
| order from the President?
|
| If a member of Seal Team 6 _did_ assassinate a political
| rival of the President, would they also be immune from
| prosecution? To me it sounds like the kind of order they
| would refuse.
| paulryanrogers wrote:
| Indeed. So if Trump himself takes an AR-15 into Congress
| (ostensibly to stop a 'fraudulent' election process) then
| he's free and clear.
| wing-_-nuts wrote:
| The would be eligible for a pardon which _would_ be an
| official act
| chasd00 wrote:
| well if the murder took place in the US then the state
| would charge them with murder and, as Trump found out, no
| pardons for state crimes.
| KingOfCoders wrote:
| Just pardon everyone in the United States that act on your
| orders every morning after you get up before breakfast.
| lolinder wrote:
| 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
| treeFall wrote:
| Then it sounds like Sotomayor is being extreme by conflating
| domestic political assassinations as an "official act." Does
| she not understand the difference?
| downWidOutaFite wrote:
| 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.
| nradov wrote:
| 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.
| downWidOutaFite wrote:
| 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.
| Goronmon wrote:
| _Does she not understand the difference?_
|
| Explain the difference.
| treeFall wrote:
| 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.
| monetus wrote:
| 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.
| whamlastxmas wrote:
| American citizens have been drone striked without due
| process so that is in fact the reality we live in
| Zardoz89 wrote:
| Explain that in Guantanamo
| pseudalopex wrote:
| > Depriving someone of their constitutional rights cannot
| be an official act by definition.
|
| Who said?
| treeFall wrote:
| 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.
| jasonlotito wrote:
| SCOTUS disagrees.
|
| The most recent affirmation:
| https://www.scotusblog.com/2024/06/supreme-court-upholds-
| bar...
|
| There are countless other cases.
| cyberax wrote:
| > 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.
| pseudalopex wrote:
| > 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.
| freejazz wrote:
| > The definition of words
|
| Ouroboros
| OgsyedIE wrote:
| '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.
| tivert wrote:
| > '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:
|
| > 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."
| OgsyedIE wrote:
| Those are two independent clauses which means that
| neither is a definition of the other.
| vel0city wrote:
| 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.
| jimbokun wrote:
| The problem is the core of this ruling seems to be just
| word games.
| DannyBee wrote:
| ???
|
| 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?
| kristjansson wrote:
| 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.
| lolinder wrote:
| > 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.
| jasonlotito wrote:
| > 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.
| sjtgraham wrote:
| Read the opinion.
| brokencode wrote:
| 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.
| buildbot wrote:
| This was argued by Trump's defense team, it's not a
| hypothetical
|
| https://www.msnbc.com/rachel-maddow-
| show/maddowblog/pressed-...
| lolinder wrote:
| Rather, the prosecution asked it as a hypothetical and
| the defense refused to rule out that it might be an
| official act.
| buildbot wrote:
| 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!
| GlobalFrog wrote:
| 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?
| jwithington wrote:
| 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.
| breadwinner wrote:
| Could Proud Boys reasonably be considered a terrorist
| group?
| jwithington wrote:
| Hellfire on its way now
| jandrese wrote:
| What if the President ordered the assassination of the head
| of a terrorist organization that attempted to overthrow
| Congress with physical force?
| anonfordays wrote:
| 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
| diob wrote:
| 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_affai
| r#Par...
| jasonlotito wrote:
| 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.
| chx wrote:
| 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?"
| inglor_cz wrote:
| 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.
| robertoandred wrote:
| Uh, you're missing the fact that his business partner is
| a danger to national security. The motives are
| irrelevant.
| impalallama wrote:
| 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.
| Muromec wrote:
| 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.
| tomrod wrote:
| Indeed. This feels much in line to the German Enabling
| Act of 1933.
| laidoffamazon wrote:
| Critically, the former president was posting about how
| his political enemies should face military tribunals for
| treason _yesterday_
| chx wrote:
| > 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.
| sfink wrote:
| 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.
| breadwinner wrote:
| > _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.
| pseudalopex wrote:
| > 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_e2
| pg.pdf
| ahmeneeroe-v2 wrote:
| 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.
| chx wrote:
| > 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."
| TimTheTinker wrote:
| 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.
| pseudalopex wrote:
| > 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_theor
| y#Judic...
| TimTheTinker wrote:
| 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.
| metabagel wrote:
| 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.
| ahmeneeroe-v2 wrote:
| If act = core constitutional power then absolute immunity
| elseif act = official then presumed immunity else no
| immunity end
|
| how is that not a test?
| sickofparadox wrote:
| 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.
| chx wrote:
| > 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."
| A4ET8a8uTh0 wrote:
| << 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"?
| tomrod wrote:
| 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.
| A4ET8a8uTh0 wrote:
| << 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...
| Buttons840 wrote:
| > "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?
| abduhl wrote:
| 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.
| Buttons840 wrote:
| Note, the case before the court was whether or not a
| _person_ could be prosecuted (Donald Trump specifically),
| the court said no.
| abduhl wrote:
| 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.
| Muromec wrote:
| 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.
| abduhl wrote:
| 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.
| FuriouslyAdrift wrote:
| 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
| vel0city wrote:
| 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.
| metabagel wrote:
| You missed the part where the Supreme Court granted the
| president immunity.
| mlyle wrote:
| 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
| lesuorac wrote:
| 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?
| pc86 wrote:
| Nobody is talking about prosecuting _the office_ whatever
| the hell that would mean.
| ddtaylor wrote:
| 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.
| pseudalopex wrote:
| > 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_e2
| pg.pdf
| OgsyedIE wrote:
| 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.
| argiopetech wrote:
| 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.
| fallingknife wrote:
| 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.
| Almondsetat wrote:
| There's one crucial flaw: you could neutralize the
| president in such a patently extreme situation and be
| acquitted by the jury
| autoexec wrote:
| 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
| SideburnsOfDoom wrote:
| 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.
| Muromec wrote:
| >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.
| plandis wrote:
| > 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.
| anon291 wrote:
| 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.
| adgjlsfhk1 wrote:
| 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
| anon291 wrote:
| 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.
| freejazz wrote:
| I'm sad that we've made it to these kind of specious
| defenses being offered in a serious response.
| stvltvs wrote:
| Impeachment as currently written has been proven over and
| over to be a paper tiger. We need real remedies, not
| theoretical ones.
| paulryanrogers wrote:
| 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...
| anon291 wrote:
| 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)
| paulryanrogers wrote:
| "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?
| CydeWeys wrote:
| 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.
| anon291 wrote:
| > 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
| kybernetikos wrote:
| 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."
| kybernetikos wrote:
| 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.
| anon291 wrote:
| > 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.
| px43 wrote:
| 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...
| space_fountain wrote:
| 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.
| sgc wrote:
| 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.
| space_fountain wrote:
| 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
| sgc wrote:
| 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.
| adgjlsfhk1 wrote:
| 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".
| ajross wrote:
| 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.
| metabagel wrote:
| 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.
| anon291 wrote:
| 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.
| tines wrote:
| > 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.
| anon291 wrote:
| > 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.
| tines wrote:
| > 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.
| anon291 wrote:
| > 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...
| tines wrote:
| > 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.
| pseudalopex wrote:
| > 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_e2
| pg.pdf
| anon291 wrote:
| If law weren't difficult, there would be no lawyers.
| sharpshadow wrote:
| 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.
| wing-_-nuts wrote:
| 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.
| anon291 wrote:
| 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.
| WheatMillington wrote:
| Why do you think it's impossible to prosecute the
| president?
| _heimdall wrote:
| 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.
| burutthrow1234 wrote:
| 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?
| metabagel wrote:
| Sounds reasonable, but that's not what the court decided.
| umvi wrote:
| 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.
| nostromo wrote:
| 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
| demosthanos wrote:
| > 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.
| arrosenberg wrote:
| > 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.
| pseudalopex wrote:
| > Congress needs to get off its' duff and regulate.
|
| Congress granted the Bush administration broad powers.
| The problem is not inaction.
| doctorpangloss wrote:
| > and we know Rumsfeld never will
|
| You mean because he has been dead for 3 years?
| afiori wrote:
| 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.
| burutthrow1234 wrote:
| "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
| afiori wrote:
| I am not saying that they are easy to do, but it is their
| power to wield.
| randombits0 wrote:
| 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.
| afiori wrote:
| 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.
| kybernetikos wrote:
| > 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.
| doctorpangloss wrote:
| > 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.
| pseudalopex wrote:
| > 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...
| so_delphi wrote:
| I guess this hypothetical scenario is not entirely relevant
| since the killing happened outside of U.S jurisdiction.
| nostromo wrote:
| No, US citizens do not lose their rights to a trial
| because they're not in the US.
| pc86 wrote:
| 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.
| freejazz wrote:
| It does change whoever might have standing to sue the
| President over it, let alone to put him in jail.
| jcranmer wrote:
| 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.
| nostromo wrote:
| > 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.
| BeFlatXIII wrote:
| > 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.
| overboard2 wrote:
| 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.
| asveikau wrote:
| > 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".
| imzadi wrote:
| Nah, watergate happened before Nixon was even president.
| asveikau wrote:
| 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.
| burutthrow1234 wrote:
| 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?
| CydeWeys wrote:
| > 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.
| bbor wrote:
| 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...
| fallingknife wrote:
| 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.
| harywilke wrote:
| 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.
| kristjansson wrote:
| 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.
| demosthanos wrote:
| 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
| jhp123 wrote:
| The President's authority to command the armed forces
| comes directly from the Constitution, Congress can't pass
| a law to take that away.
| idiotsecant wrote:
| 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.
| space_fountain wrote:
| 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
| jampekka wrote:
| "It's not illegal when the president does it."
| moshun wrote:
| Turns out Nixon won the battle for an American dictatorship
| after all. Well played, Dick.
| diob wrote:
| Given how the Republicans treat pardons (see https://en.wikip
| edia.org/wiki/Iran%E2%80%93Contra_affair#Par...) I think we
| can all guess how this will be used in reality.
| lumb63 wrote:
| 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.
| autoexec wrote:
| > 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.
|
| 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"
| blue_dragon wrote:
| My naive assumption is that ordering Seal Team 6 to assassinate
| a political rival is not an official nor constitutionally
| authorized power, and thus would be prosecutable.
| saucetenuto wrote:
| Guess again! Roberts explicitly calls out orders to the
| military as covered by absolute immunity. EDIT: and motive is
| explicitly barred from review too.
| thih9 wrote:
| Do you have a source? I didn't find this in the article,
| could you add a quote - or link if it's from elsewhere?
| ceejayoz wrote:
| https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.p
| df
|
| 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."
| saucetenuto wrote:
| thank you, friend
| Aunche wrote:
| > Page 14 notes that the President's official
| responsibilities "include, for instance, commanding the
| Armed Forces of the United States; granting reprieves and
| pardons for offenses against the United States; and ap-
| pointing public ministers and consuls, the Justices of
| this Court, and Officers of the United States."
|
| Right below that it clarifies
|
| > If the President claims authority to act but in fact
| exercises mere "individual will" and "authority without
| law," the courts may say so. Youngstown, 343 U. S., at
| 655 (Jackson, J., concurring). In Youngstown, for
| instance, we held that President Truman exceeded his
| constitutional authority when he seized most of the
| Nation's steel mills. See id., at 582-589 (majority
| opinion). But once it is determined that the President
| acted within the scope of his exclusive authority, his
| discretion in exercising such authority cannot be subject
| to further judicial examination.
| ceejayoz wrote:
| Seal Team Six is pretty clearly not a privately held
| steel mill; Truman was fairly clearly not the Commander
| in Chief of US Steel.
| beej71 wrote:
| > If the President claims authority to act but in fact
| exercises mere "individual will" and "authority without
| law," the courts may say so.
|
| I suggest that courts might be _reluctant_ to make such a
| finding with Seal Team 6 visiting their homes at 3 AM.
|
| I pray when Trump is reelected he makes no such moves.
| BadHumans wrote:
| He has already pledged revenge should he win reelection.
| Political opponents will be jailed and killed for his
| supporters entertainment.
| hanniabu wrote:
| > I pray when Trump is reelected he makes no such moves.
|
| project 2025
| wbl wrote:
| But Truman shouldn't have faced prosecution for that
| should he? It was after all done to ensure victory in
| Korea and he stopped after the court said no with
| apparent authority when he did it. This case goes too far
| and not far enough.
| mywittyname wrote:
| This demonstrates where the court is drawing the lines.
| Fascist dictatorships are fine, so long as they keep
| their mitts away from private industry. Of course, at
| this point, who is going to stop the President if he
| starts seizing companies?
|
| This ruling is like telling a hungry leopard, "you can
| eat anyone except for us." The hubris of this ruling is
| absurd. American's President Jinping won't be a
| Federalist.
| thih9 wrote:
| Sounds like "nuke anything you want and walk away free",
| hard to believe there would be no catch or failsafe.
|
| Absurd, to the point of being hilarious. Could a
| president use this (immunity and nukes) to become an
| absolute ruler?
|
| Edit: a failsafe is there, see sibling comment:
| https://news.ycombinator.com/item?id=40849357
| fragmede wrote:
| How does that interact with the Posse Comitatus Act?
| fallingknife wrote:
| In the military chain of command an order is only an order
| when it is a lawful order. The president does not have any
| power to issue an unlawful order. That would be outside of
| his constitutional powers and not an official act.
| shadowgovt wrote:
| Who gets to decide the lawfulness of the order, and what
| physical power does the Executive have at his disposal to
| bring to bear to tip their judgment?
| anonfordays wrote:
| >Who gets to decide the lawfulness of the order
|
| Congress, through impeachment.
| shadowgovt wrote:
| The previous POTUS is accused of using his office to
| perform a series of actions that culminated in disruption
| of the function of Congress.
|
| Several Congresspeople then concluded he could not be
| impeached because by the time they were able to consider
| the question, he had left office.
|
| This ruling by SCOTUS suggests there is now no avenue to
| hold such a President accountable for such actions.
|
| ... and that's before we broach the question of whether
| "Removal from the Oval Office" is sufficient punishment
| for all manner of crime the President could commit from
| his position of power, because that is the upper limit of
| the effect of a Congressional impeachment. This seems to
| give a sitting President carte blanche to throw the
| Constitution in a wood-chipper if he can interpret it is
| within his official acts to do so.
| anonfordays wrote:
| >The previous POTUS is accused of using his office to
| perform a series of actions that culminated in disruption
| of the function of Congress.
|
| Yes, and was impeached for that.
|
| >Several Congresspeople then concluded he could not be
| impeached because by the time they were able to consider
| the question, he had left office.
|
| That's how checks and balances work. They may have made
| that conclusion, but the impeachment carried on anyway
| and failed to gain the 2/3rds majority.
|
| >This ruling by SCOTUS suggests there is now no avenue to
| hold such a President accountable for such actions.
|
| It doesn't suggest that at all.
|
| >whether "Removal from the Oval Office" is sufficient
| punishment for all manner of crime the President could
| commit from his position of power, because that is the
| upper limit of the effect of a Congressional impeachment.
|
| It's removal from office AND "the Party convicted shall
| nevertheless be liable and subject to Indictment, Trial,
| Judgment and Punishment, according to Law.[0]" They can
| still be found guilty for insurrection after impeachment.
|
| >This seems to give a sitting President carte blanche to
| throw the Constitution in a wood-chipper if he can
| interpret it is within his official acts to do so.
|
| That's not how it works because at the end of the day the
| President doesn't interpret the law, and isn't shielded
| from impeachment and justice through state/federal courts
| as I outlined above. This is literally the majority
| opinion. Similarly, just because a military officer
| interprets their actions are lawful doesn't make them so.
|
| [0] https://en.m.wikipedia.org/wiki/Impeachment_in_the_Un
| ited_St...
| chasd00 wrote:
| iirc every US service man/woman is empowered to disobey
| orders. I think they call it "answering to a higher
| authority" or something like that, granted there are
| severe consequences for disobeying an order that turns
| out to be lawful no matter how much you don't like it.
| fallingknife wrote:
| The courts. Military courts have been handling this for a
| long time. No reason civilian courts couldn't apply the
| same standards in the case of a president.
|
| If the president is able to bring physical power to bear,
| then it matters little what the law says anyway.
| beaeglebeachedd wrote:
| The military was happy to systematically seize guns from
| citizens in NOLA during Katrina. They will follow
| unlawful orders to keep their dental plans active.
| rpdillon wrote:
| An important point here is that there are both legal and
| illegal orders. Military personnel are instructed obey
| every legal order, and disobey every illegal order (at
| least I was).
|
| In the military, we have the UCMJ that allows us to
| prosecute those military personnel that issue illegal
| orders. The President is the Commander-in-Chief, but he is
| a civilian, so the UCMJ doesn't apply. I always thought he
| would be charged under criminal law in that case, but it
| seems that this ruling precludes that.
| MOARDONGZPLZ wrote:
| Article II of the constitution specifically gives the POTUS
| the authority to command the armed forces. The limit is
| declaring war, which is vested in Congress. So it seems
| reasonable that commanding Seal Team 6 is specifically a
| constitutionally authorized power and within an official
| duty.
| InTheArena wrote:
| commanding seal team 6 to assassinate a sitting head of
| state is a act of war, and only congress can declare war.
| ceejayoz wrote:
| We've made it very clear for decades that the President
| can commit acts of war without declaring it. Syria,
| Lybia, Iraq, Afghanistan, and dozens of other hotspots
| around the world.
| InTheArena wrote:
| so fix that.
| Jsebast24 wrote:
| Add Ukraine.
| ceejayoz wrote:
| What act of war has the US _directly_ committed against
| Russia within Ukraine?
| gortok wrote:
| That hasn't stopped any president in the last 60 years
| from using the Armed Forces to conduct a war -- or
| "police action" -- if you prefer.
| InTheArena wrote:
| You picked a bad example, as both Korea and Vietnam had
| congressional authorization.
|
| Obama drone wars would be the one to look at.
| vlovich123 wrote:
| But assasinating private citizens a ok? So Biden can
| order the assassination of Trump? Even if you claim as
| someone else that you can't violate someone's
| constitutional rights within an official act, we have
| already killed US citizens abroad via drone strikes. So
| if Trump is in some foreign country we can drop an a-bomb
| and claim it was to kill some terrorist & that's a ok?
|
| The minority points out that official acts was already a
| defense. The majority opinion here claims that it's an
| absolute immunity and even motivation is impervious to
| this immunity claim. This is a serious undermining of the
| rule of law in a substantial way and paves the way for
| the US to have a dictatorship at some point in the
| future.
| InTheArena wrote:
| Please go read the full ruling. That's not what it says.
|
| It's an immunity only for official acts, not unofficial
| ones.
| vlovich123 wrote:
| So first, the distinction between official acts and
| unofficial acts isn't actually defined and even Robert's
| admits this ambiguity is going to be a problem:
|
| > Determining which acts are official and which are
| unofficial "can be difficult," Roberts conceded. He
| emphasized that the immunity that the court recognizes in
| its ruling on Monday takes a broad view of what
| constitutes a president's "official responsibilities,"
| "covering actions so long as they are not manifestly or
| palpably beyond his authority." In conducting the
| official/unofficial inquiry, Roberts added, courts cannot
| consider the president's motives, nor can they designate
| an act as unofficial simply because it allegedly violates
| the law.
|
| https://www.scotusblog.com/2024/07/justices-rule-trump-
| has-s...
|
| Basically the President has a presumption that his
| behavior is an official act unless it's egregiously
| outside his powers but there's also no way to really
| investigate it. Oh and it's also combined with the
| unitary executive theory popular on the right which holds
| that the president basically has absolute power over all
| executive agencies and a growing interpretation of the
| powers of the president (under both parties) which is a
| scary scenario.
|
| And given that the dissenting opinion from SCOTUS
| justices literally raises the exact scenario you're
| assuming is unofficial, so dismissing it out of hand
| seems overly bold:
|
| > 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.p
| df
|
| 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.
| treeFall wrote:
| Being killed by the government without due process of law
| (ie: death penalty for convicted criminals) is a clear
| violation of your constitutional rights though, and
| violating someone's constitutional rights (read: going
| against the constitution) can't be an official act by
| definition.
| ffgjgf1 wrote:
| And you're are free to sue the government in that case.
| The DOJ won't prosecute the president for ordering
| something like that even after he leaves office..
| Miner49er wrote:
| It happened under Obama and nobody cared. I think it is
| definitely something that could be considered an
| "official act".
| RajT88 wrote:
| Some progressives cared, and that was about it.
|
| He also passed an EO afterward which set up a legal
| framework retroactively justifying it.
| MOARDONGZPLZ wrote:
| This is explicitly about the POTUS being immune from
| prosecution for official acts like commanding ST6 to
| assassinate someone. Fortunately in some cases,
| unfortunately in others, semantic wordplay akin to "could
| god microwave a burrito so hot even they couldn't eat it"
| has little effect in the court system. That is to say,
| semantic gotchas like "but actually it couldn't be an
| official act because the very act is against the
| constitution" have no sway.
| jandrese wrote:
| "Official Act" has not been defined, so who knows if
| going against the the Constitution will count. The way
| the law is worded it may not matter anyway, it's pretty
| much left up to the courts to decide.
| lenerdenator wrote:
| Haven't we had Presidents order airstrikes on American
| citizens in the Middle East before without a trial
| because of their association with jihadist groups?
|
| At a certain point the "constitutionality" doesn't
| matter; it's hard to make a case have a meaningful
| outcome when the plaintiff is dead.
| CogitoCogito wrote:
| This is at least the second time in this thread you've
| said something like an official act can't violate
| someone's constitutional rights "by definition". I'm
| wondering what definition you refer to.
|
| That said, it's obviously a false statement. By your
| argument, the president ordering flight 93 to be shot
| down on 9/11 would not be an official act. You might now
| retort something about extenuating circumstances, but
| really that would only show you to be entirely wrong
| about your original assertion.
|
| I recommend you edit your posts to correct your mistake.
| brookst wrote:
| You're creating an "any unconstitutional act cannot be
| official" rule that does not appear in the ruling and is
| contrary to tons of statute and case law. Qualified
| immunity codifies that rights violations can be official
| acts.
|
| And as bad as today's ruling is, I think your proposed
| rule would be worse because it would create tons of
| liability for good faith government employees.
|
| We can't have a world where it's unclear if an act is
| official until there's some kind of review of its
| outcome. The act itself has to be official (or not).
| treeFall wrote:
| >Qualified immunity
|
| Qualified immunity is unconstitutional
| brookst wrote:
| So now we've left the land of settled law are are into
| personal opinions. Which is fair enough, I detest
| qualified immunity, but it is the law of the land.
| sf_rob wrote:
| And every war since Vietnam has been a police action or
| military operation.
| lenerdenator wrote:
| Maybe, maybe not.
|
| What does the judge who reviews the case think?
|
| That's literally the only thing preventing that scenario from
| playing out.
| ceejayoz wrote:
| The President is the Commander in Chief; issuing orders to
| the military is very much an official act.
|
| "But not for this! This would be clearly corrupt!" you may
| say, but the decision addresses that as well; the President's
| _motive_ for the "official act" cannot be introduced as
| evidence!
|
| > In dividing official from unofficial conduct, courts may
| not inquire into the President's motives.
| fallingknife wrote:
| It can't be used to distinguish between an official act and
| an unofficial act. That wouldn't make sense anyway.
|
| Motive can be used to defeat the presumptive immunity for
| an official act.
| ruds wrote:
| But the immunity is only presumptive for acts within the
| outer perimiter of the president's official
| responsibility. For core constitutional powers, like
| giving orders to the military, the immunity is absolute.
| powersnail wrote:
| My naive assumption would be that giving that order must fall
| into the realm of official act. How can POTUS command the
| military, unless acting in the capacity of their Commander in
| Chief?
| Aunche wrote:
| I'll believe it when Sotomayor actually authors an opinion that
| defends the assassination of a political rival as an official
| act. Sotomayor is the most bad faith Justice after Thomas.
| jhp123 wrote:
| This example came up during oral arguments, Trump's lawyer
| agreed that assassination of a political rival could be a
| protected official act[0]
|
| [0] https://abcnews.go.com/Politics/seal-team-6-assassination-
| hy...
| crazygringo wrote:
| I see a lot of people here in the comments claiming that this
| is still knee-jerk, or silly, or obviously that would not be an
| "official act".
|
| To the contrary -- this is an explicit example that came up
| during oral arguments, where a Trump lawyer specifically
| claimed that indeed, Trump _could not be convicted criminally_
| of this (unless he had first been impeached and convicted).
|
| Nowhere in the majority opinion does it try to draw some kind
| of line against this. And indeed, the President is
| constitutionally "commander in chief of the Army and Navy of
| the United States", and the opinion states this authority is
| "conclusive and preclusive".
|
| Quite simply, according to this decision, anything the
| president commands the Navy to do, including a Navy Seal, is an
| official act because it a power explicitly granted by the
| constitution, and thus immune from prosecution.
|
| To repeat: this specific scenario was _brought up during oral
| arguments_ , indeed as one of the main arguments that was also
| widely reported. This is not a far-flung wacko example
| Sotomayor came up with herself -- it's the very heart of the
| case. The fact that the opinion does not even attempt to
| explain why this would still be considered criminal, and the
| fact the Sotomayor is confirming why it would be allowed, is
| not a misreading or a mistake. It is clearly intentional and
| genuinely scary.
| legitster wrote:
| > As for the dissents, they strike a tone of chilling doom that
| is wholly disproportionate to what the Court actually does
| today--conclude that immunity extends to official discussions
| between the President and his Attorney General, and then remand
| to the lower courts to determine "in the first instance"
| whether and to what extent Trump's remaining alleged conduct is
| entitled to immunity.
|
| FYI, the court is not saying Trump is granting Trump blanket
| immunity. For three of the counts the court is saying Trump is
| _probably_ not immune but prosecutors need to clarify that his
| acts were outside of the duties of his office.
|
| > 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.
| Lerc wrote:
| To extend the absurdity further. If the President truly
| believes that if their rival winning the presidency would
| endanger democracy, it would be the _duty_ of the President to
| take that action.
|
| This seems like a path towards civil war.
|
| [edit] Thinking about a way out of this mess. Here's a
| proposal.
|
| Biden asserts that he has this right, writes up a new amendment
| taking the right away, gives a date by which he will take
| action if the amendment has not been passed.
|
| (Then he should probably resign for effectively blackmailing
| the legislative branch)
| Jsebast24 wrote:
| The deterrent for such action is that government officials
| are under the obligation to disobey orders that are
| unconstitutional. But that loyalty to the constitution
| doesn't seem to be strong anymore. High positions in the US
| government are now occupied by the kind of people who would
| follow those orders without hesitation.
| Lerc wrote:
| It seems unreasonable to require everyone who follows
| orders to be an expert on constitutional law. Especially
| when the highest court in the land can't seem to agree.
|
| Is it permissible to disobey an order that you merely
| believe is unconstitutional? What happens when your
| superior asserts that it is constitutional?
| Qahlel wrote:
| Biden can order seal team 6 to clear out scotus, appoint new
| judges. If congress denies, then send the seal team 6 to
| congress. Seal team 6 FTW
| 2OEH8eoCRo0 wrote:
| Impeachment? Wouldn't that also be an unlawful order?
| awb wrote:
| https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
|
| > The immunity the Court has recognized therefore extends to
| the "outer perimeter" of the President's official
| responsibilities, covering actions so long as they are "not
| manifestly or palpably beyond [his] authority."
|
| I'm hoping that the assassination of a political rival would be
| "palpably beyond" the authority of the President.
| plandis wrote:
| Well assassination of a political rival might be but what
| about the killing of the perceived head of a terrorist
| organization who attempted a coup to overturn a federal US
| election? Sounds like a national defense concern that the
| president could decide to handle. I think this is logically
| in line with the ruling but is completely absurd morally.
|
| SCOTUS explicitly says you cannot question the motive of a
| presidents actions when making a determination for what is
| protected and not.
| Tadpole9181 wrote:
| And how, pray tell, is that compatible with them _also_
| saying that neither Congress nor Courts can call into
| question the motivation of the President for doing so? All
| the president need do is say "they were a national
| security concern" and they are now absolutely immune from
| anyone so much as presenting evidence in a trial that says
| otherwise!
| kristjansson wrote:
| The ultimate Congressional remedy is impeachment, which
| this ruling doesn't contemplate (except to reject silly
| arguments presented by the defense). However, the limits
| on congress and the judiciary are not absolute:
|
| > Congress cannot act on, and courts cannot examine, the
| President's actions on subjects within his "conclusive
| and preclusive" constitutional authority. It follows that
| an Act of Congress -- either a specific one targeted at
| the President or a generally applicable one -- may not
| criminalize the President's actions within his exclusive
| constitutional power. Neither may the courts adjudicate a
| criminal prosecution that examines such Presidential
| actions.
|
| It's only the executives exclusive powers (which are more
| limited) that cannot be restrained.
| tivert wrote:
| >> When he uses his official powers in any way, under the
| majority's reasoning, he now will be insulated from criminal
| prosecution. Orders the Navy's Seal Team 6 to assassinate a
| political rival? Immune.
|
| > I would consider this an extreme knee jerk take, but it's
| Sotomayor saying it.
|
| Wouldn't something like that be essentially an illegal order
| and therefore invalid? And/or something that would be trivial
| to fix (e.g pass a law saying it's not within the president's
| official powers to order a domestic assassination)?
| Miner49er wrote:
| How can it be an illegal order when this decision makes all
| of the Presidents "official actions" legal?
| tivert wrote:
| > How can it be an illegal order when this decision makes
| all of the Presidents "official actions" legal?
|
| Because "official actions" doesn't mean "every action" or
| "every action attempting to use presidential authority," I
| think it has to be an action exercising the constitutional
| powers of the president.
|
| For instance: for the purposes of simplicity, lets assume
| all legislation authorizing the president to take military
| action without prior congressional approval has been
| repealed, and the congress has not declared war on anyone
| or authorized the use of military force in any
| circumstances. The president then orders Seal Team 6 to
| assassinate a waitress who spilled coffee on him, ruining
| his lucky suit. That would be illegal order since the
| president does not have constitutional authority to take
| such action on his own without authorization by congress
| and that authorization does not exist.
| darkerside wrote:
| So I guess a hypothetical path forward would be a
| prosecutor choosing to pursue the charge, and the defense
| pleading not guilty on the basis of it being an official
| act. It would then be up to the prosecutor to prove that
| this was not an unofficial act, without using motive as a
| piece of evidence. Seems backwards, like proving a
| negative.
|
| How can you prove beyond a reasonable doubt that there
| was no official basis for an act? Especially when the
| response is almost certainly going to be, "the reason for
| the official action is classified".
| tivert wrote:
| > 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.
| eschulz wrote:
| I consider this to be very similar to the Business
| Judgment Rule that protects CEOs and executives against
| lawsuits from shareholders for actions they did in their
| job, even if their actions turned out to be a mistake and
| lost the shareholders a bunch of money. To proceed with a
| lawsuit, the plaintiff has to demonstrate that the
| executive took unreasonable actions which directly
| resulted in harm to the plaintiff. Basically, their
| actions were out of the scope of their mandate, and they
| can be sued.
|
| For example, the CEO hires their clueless spouse to a
| high paying job and the spouse loses the company a ton of
| money. That does not sound like the CEO was doing their
| job, but rather it sounds like they were putting their
| spouse ahead of the company. Here a lawsuit would
| certainly be allowed to go forward.
|
| https://www.investopedia.com/terms/b/businessjudgmentrule
| .as...
| KingOfCoders wrote:
| There is no such law for criminal acts.
| eschulz wrote:
| The argument is that the Constitution is the law which
| applies here. Specifically, the powers given to the
| executive to execute their role and enforce the acts of
| Congress.
| KingOfCoders wrote:
| Haha, prosecute someone who only needs a tiny excuse to
| kill you with immunity.
| woodruffw wrote:
| To be clear: Sotomayor is interpreting the majority decision,
| not stating her own opinion. She's opposed to the
| interpretation in question.
|
| (I can't tell whether the OP was confused by this, but the
| linked Tweet has enough people being confused by it to make it
| worth mentioning.)
| blindriver wrote:
| Obama ordered an American Citizen to be assassinated via a
| drone attack, without a trial or anything. Should he be charged
| with murder?
|
| https://www.amnestyusa.org/updates/is-it-legal-for-the-u-s-t...
| jampekka wrote:
| He should be charged with war crimes, like more or less all
| US (and many other) presidents. Of course it's not gonna
| happen.
| blashyrk wrote:
| The fact that George Bush Junior is a free man is downright
| insulting
| jampekka wrote:
| There's not much in geopolitics that isn't downright
| insulting. Different flags, same scumbags.
| yoavm wrote:
| Comparing the idea of ordering the killing your political
| opponent with approving an operation with killed of someone
| related to an Al-Qaeda and even saying it was a mistake is
| weird, to say the least.
| blindriver wrote:
| It sounds like you have no concept of the law.
| pseudalopex wrote:
| > Obama ordered an American Citizen to be assassinated via a
| drone attack, without a trial or anything. Should he be
| charged with murder?
|
| Yes.
| jmyeet wrote:
| A lot of people, myself included, expected some carve out for
| "official acts". There was never going to be blanket immunity
| and the Court was going to take the case just to agree with the
| DC Circuit Court of Appeals [1]. SCOTUS slow walked this case.
| They could've taken it back when they were asked to in
| December. They waited until the end of hte term to deliver a
| verdict. The verdict ensures that any trial court findings of
| "official court" are going to simply make their way back to
| this exact same court.
|
| The majority opinion even had the gall to call the prosecutions
| "hasty" when we're largely talking about things that happened
| in 2021.
|
| But this decision is so much worse than many (myself included)
| expected. Not only is there blanket immunity for "official
| acts" but there is presumptive innocence for anything on the
| peripherey. Even worse, if something is a statutory or
| constitutional power of the office of President, the _reason
| does not matter_. The reason can 't even be considered in
| deciding if something is an "official act" or not.
|
| So the president has the right to issue pardons with ultimate
| discretion. If they want to sell pardons, now they can. Why?
| Because the reason this "official act" happened is
| _irrelevant_. That 's what the Court decided.
|
| Same for selling judgeships or presidential appointments.
|
| We already have the donor-to-ambassador pipeline [2]. Now we
| don't even need the ruse of it being a donation. The President
| can simply sell ambassadorships for personal gain.
|
| That's what this decision did.
|
| [1]:
| https://www.cadc.uscourts.gov/internet/opinions.nsf/1AC5A0E7...
|
| [2]: https://campaignlegal.org/press-releases/new-campaign-
| legal-...
| riffic wrote:
| ah just laying the foundation for a lovely despotic future.
| IamLoading wrote:
| What is going on in our nation? its frustrating thing after
| thing.
|
| I honestly, need to unplug from news, and just focus on nature.
| umvi wrote:
| Seems like the alternative is equally dystopian though. If ex-
| presidents don't have immunity for their actions in office,
| then every ex-president will have to fend off a flurry of
| lawsuits and prosecution attempts by the opposite party. It
| would be an absolute circus and turn the office of president
| into a joke.
| tines wrote:
| That's a false dichotomy, just allow the motivation for
| official acts to be taken into consideration for prosecution,
| and a lot of the problems go away.
| beefnugs wrote:
| Shouldn't there be some liability barrier to preventing just
| any bored old billionaire from fisting his way into
| presidency?
| umvi wrote:
| It's already not easy for billionaires to become president.
| Ross Perot tried and failed miserably.
| yongjik wrote:
| IANAL so could someone explain to me - does this ruling apply to
| the "porn actress hush money" trial or is it a separate issue?
|
| (I'd like to think that there's no way it's an "official act" of
| a president, but again, IANAL.)
| ahmeneeroe-v2 wrote:
| Honestly the decision is written in a fairly accessible style.
| You could try to read it
| danielmarkbruce wrote:
| https://prod-i.a.dj.com/public/resources/documents/SCOTUSTRU.
| ..
| kadoban wrote:
| No, Trump was a candidate, not President at the time of most
| (all?) of those crimes. They also yeah probably can't be
| considered official acts even by _this_ Court.
| laidoffamazon wrote:
| That can't be concluded yet. It will most likely be decided
| again by SCOTUS - but by then, Trump may well have assumed
| office and pardoned himself and anyone else involved.
| kadoban wrote:
| Even this court would have a hard time concluding that acts
| taken while running for President are official acts.
|
| But practically they've made the President a dictator, so
| yeah who's going to stop him if he wins.
| legitster wrote:
| This is relating to 4 counts of election interference.
|
| The court is granting him blanket immunity on one count, and
| the rest the prosecutors need to clarify that the crimes were
| outside of the duty of his office.
| sjs382 wrote:
| Kind of. From CNN: https://www.cnn.com/politics/live-
| news/trump-immunity-suprem...
|
| > Donald Trump's legal team will likely use Monday's SCOTUS
| opinion as they challenge the New York hush money criminal
| verdict itself on appeal, a source familiar with their thinking
| tells CNN.
|
| > Trump's team thinks the SCOTUS option could be used to
| challenge portions of Hope Hicks testimony as well as some of
| the tweets entered in as evidence, according to the source
| familiar.
|
| > CNN earlier reported the Trump team sees the opinion as "a
| major victory" because in addition to using it to try to get
| charges tossed, they can also use this opinion to get evidence
| related to official acts tossed in all cases -- not just
| federal -- which can hurt prosecutors' ability to prove what
| charges are left.
| leotravis10 wrote:
| Folks, the blueprint for a American dictatorship has been created
| and you'll be a fool and a idiot to think otherwise.
| danielmarkbruce wrote:
| Read the actual ruling. You'd be a fool and an idiot not to.
| leotravis10 wrote:
| I'm leaving this here for you to read:
| https://news.ycombinator.com/item?id=40848935
| danielmarkbruce wrote:
| Awesome. Media coverage.
|
| The actual ruling: https://prod-i.a.dj.com/public/resources
| /documents/SCOTUSTRU...
|
| We are in an age where the media cannot be trusted. Gotta
| read the source documents.
| koonsolo wrote:
| If Trump gets elected, he will never give away his power
| easily.
| citizen_friend wrote:
| Ridiculous alarmism. Try reading the majority opinion first.
| leotravis10 wrote:
| Read this and get back to me:
| https://www.vox.com/scotus/358292/supreme-court-trump-
| immuni...
| nickburns wrote:
| how about read the opinion and get back to us (or don't).
| leotravis10 wrote:
| I have already read the opinion and came into the same
| conclusion, much like Ian and many others have.
| nickburns wrote:
| > I have already read the opinion and came into the same
| conclusion
|
| i sincerely doubt that.
| vundercind wrote:
| We had an attempted coup already. That this case was directly
| related to. I don't even mean the very public storming of
| Congress during the certification of electors, but multiple
| attempts by the then-President to subvert the election
| process.
|
| The guy who did it's probably about to be President again and
| just got a lot more legal cover.
|
| Folks need to read up on how democracies fail. Shit's getting
| _real_ iffy here.
| citizen_friend wrote:
| And yet he left office on the appointed day and lost an
| election.
|
| > democracies fail
|
| Is this the democracy where we need to stop voters from
| voting or give them incomplete information to avoid making
| bad choices?
| MOARDONGZPLZ wrote:
| > And yet he left office on the appointed day and lost an
| election.
|
| Very narrowly, and not but for the uncharacteristic acts
| of a small number of others like Mike Pence. It could
| have gone very differently very easily.
| remus wrote:
| > And yet he left office on the appointed day and lost an
| election.
|
| Trump would argue he didn't lose the election, and would
| still be in power if he had his way. I think we should be
| making it harder, not easier, for the democratic process
| to be subverted.
| vundercind wrote:
| Yes. I wrote "attempted".
| riskable wrote:
| > And yet he left office on the appointed day and lost an
| election.
|
| Only because his coup failed. That's a _very_ important
| fact.
| citizen_friend wrote:
| > his coup
|
| I remember events differently.
| vundercind wrote:
| Don't remember the "find votes" request or attempts to
| find a legal-enough-to-muck-things-up way to replace real
| electors with fake ones, or similar to throw the election
| to the House to decide, then?
| citizen_friend wrote:
| If those really happened in the way you think. Why did
| they take him to court for other reasons?
| vundercind wrote:
| Those have been charged. He's in court for a bunch of
| other stuff, too, some of which was brewing before 2017
| but his DOJ ruled they had to pause (including
| investigations, because you need to e.g. issue subpoenas
| for those to do their work) until he was out of office,
| and nobody tried to fight that, so it's just now finally
| happening.
| ipython wrote:
| I'm not sure what you're arguing here? If someone is
| accused of committing three crimes, but only one is
| "serious", then the person should only be prosecuted on
| the one, but not the other two?
|
| What is your view of the events that transpired?
| ipython wrote:
| Which word do you take objection to? Considering he
| begins each rally with the January 6 "patriot" anthem, I
| stand by the "his" word. He clearly aligns with the folks
| who he considers "political prisoners" (his words not
| mine).
|
| As far as "coup" - I'd say summoning thousands of folks
| to the Capitol, then not calling for dispersal once they
| have physically breached the perimeter of the building
| where the Congress and Vice President are assembled to
| certify the election results (where he lost), plus
| (arguably, more importantly) engaging in a campaign to
| establish networks of alternative electors in key swing
| states that do not match the popular votes in those
| states, then I'd say "coup" (granted, with a "attempted"
| modifier would be more accurate) would be a reasonable
| word to use for the events that transpired.
| bsimpson wrote:
| I have a difficult time reasoning about Trump in the age of
| constant hysteria. Trying to keep a clear head and an even
| keel has me discounting a lot of the "sky is falling"
| alarmism. It has me afraid that there are actual pieces of
| the sky falling that I'm filtering out.
|
| All the "will you peacefully cede power" talk before the
| election sounded like alarmist clickbait, but he was
| weirdly resistive to admitting he lost, and there are a lot
| of batshit crazy people who seem to follow whatever he says
| (see also, Jan 6).
|
| [edit] the score on this post proves its own point. Its
| vacillated between +4 and 0 since I posted it an hour ago,
| and there are plenty of hyperbolic people in the replies.
| Being "OMG THE WORLD IS ENDING" about everything just adds
| noise that makes it hard to identify truly bad things.
|
| On a site that ostensibly has an ethos of "be curious, not
| ideological," it's sad to see so many people peering only
| through the lenses of ideology and panic.
| vundercind wrote:
| He still says he _didn't_ lose and always qualifies his
| intent to accept the results of the next election with
| language that, given his not accepting the last one,
| amounts to "I'll accept it if I win".
|
| Whatever else he did was fairly normal bad-president
| stuff. Like, _pretty_ bad, but not the end of the
| Republic or anything. The attempts to overturn the
| election, _and_ the utter failure of the state to swiftly
| punish same, are some real "this may not be the end, but
| you can see it from here" stuff.
|
| Democratic states tend to vote in the person who ends
| them. It's clear now that that's a thing we're very much
| at risk of doing. I don't even necessarily mean a second
| Trump term, just anyone who follows his blueprint. The
| voters evidently don't see that as disqualifying, and the
| system's displayed an inability to respond to such
| attempts.
|
| The sharks may or may not be circling yet, but there's
| blood in the water.
| frob wrote:
| If you want to know what Trump and his ilk are planning,
| just read it from their own website:
| https://www.project2025.org/
|
| Highlights: - The DoJ reports directly to the President -
| No term limits for FBI head - Arrest and prosecute DAs he
| doesn't agree with - Use the military to enforce domestic
| laws on citizens
| vundercind wrote:
| Worth noting that we're 3-for-3 on recent-ish major
| Republican plans to do bad things being implemented at
| least in large part--the PNAC plan for Iraq and other
| issues from the '90s (W's big contribution was carrying
| this out); the plan to execute a strategic focus of
| resources and follow-up with laws to attain practically
| unassailable dominance in states where Republicans should
| be losing pretty often, through gerrymandering and
| targeted vote suppression (enormous success, there,
| largely achieved during the '00s); and the Federalist
| Society plan to groom jurists and then get them placed to
| reshape the courts (Trump's crowning achievement for the
| right in his first term--and not just the Supreme Court).
|
| So I would take this one seriously.
| JohnMakin wrote:
| There's trying to keep a clear head, and then there's
| being completely willingly ignorant of major, major
| events in the news cycle the last few years, including
| direct statements from the Trump administration and Trump
| himself which you seem to have very successfully
| achieved.
| nickburns wrote:
| > major, major events
|
| okay, buddy. we get it. you're excited and it's making
| you sound Trumpian.
| JohnMakin wrote:
| Not sure where you're reading into that, but good for you
| for figuring out something nonsensical.
|
| as to what I actually feel, I am stating that the parent
| comment (as sibling comments have pointed out as well)
| seems completely oblivious to Jan 6 and the subsequent
| criminal events/statements since then.
|
| Hope that helps your reading/rage issue, have a good day.
| Capricorn2481 wrote:
| > but he was weirdly resistive to admitting he lost
|
| That is an understatement. His entire platform is that he
| won every state including Minnesota and New York. This is
| a personal revenge campaign made up around a lie.
| ChildOfEru wrote:
| It has been 3 years and 6 months since Trumps election
| interference with essentially no progress being made in the
| courts.
|
| If and when Trump gets elected how long do you think it will
| take the Supreme Court to differentiate between an 'official'
| act and a 'non-official' act when Trump acts illegally in
| 2025?
|
| Throw in the recent ruling increasing the difficulty of
| proving bribery and things are looking grim ( IMHO ).
| citizen_friend wrote:
| If you're hoping trump is jailed before election, I agree
| that is unlikely to happen.
| kitsune_ wrote:
| My grandmother fled Nazism (and Stalinism), she would turn in
| her grave seeing how blind half of your electorate is.
| citizen_friend wrote:
| Your grandmother is not the arbiter of politics, and we can
| find 2 other grandmothers with the opposite view and
| similar experiences.
| davidw wrote:
| Yeah, we've been hearing the "alarmist" thing for 8 years
| now. "Roe is settled law, stop being hysterical".
| bsimpson wrote:
| Part of this is abdication and dysfunction of the
| government overall. As I remember it, the argument was that
| Roe was based on faulty caselaw. If so, I have no problem
| with it being overruled, but I then expect Congress to pass
| the correct law to take its place.
|
| The problem isn't that Roe was overturned - it's that our
| legislative system is so dysfunctional that law is being
| settled in the other branches of government.
| davidw wrote:
| The ruling was based on what we call "calvinball", where
| they just make shit up that suits their own views.
| citizen_friend wrote:
| If that's your level of argumentative empathy I can see
| why you're mad.
| davidw wrote:
| I'm mad because authoritarianism and its supporters are
| bad, full stop.
| nickburns wrote:
| clearly you have a hard time distinguishing between who
| supports what.
| davidw wrote:
| I believe in freedom and democracy. I don't believe in
| mobs attacking the Capitol or "find me some votes" or
| minority rule or massive roundups and detention camps or
| any of that.
| nickburns wrote:
| can you find any comments anywhere here which seem to
| support " mobs attacking the Capitol or "find me some
| votes" or minority rule or massive roundups and detention
| camps or any of that"?
| davidw wrote:
| That is what you are defending when you defend this
| decision, which along with everything else was drawn out
| to the last possible moment so as to kick the can until
| after the election.
| nickburns wrote:
| my question being rhetorical and all, i already knew you
| couldn't.
| bsimpson wrote:
| It might be time to take a break from the internet.
| citizen_friend wrote:
| Authoritarianism is when the appointed judges vote 6-4
| for an interpretation which at worst is an extension of
| existing principle.
| davidw wrote:
| > Authoritarianism is when the appointed judges vote 6-4
| for an interpretation which at worst is an extension of
| existing principle.
|
| Comrade, in the United States, we have 9 supreme court
| justices.
| AnimalMuppet wrote:
| _Roe_ itself was far more of a "calvinball" ruling than
| overturning it was.
| fny wrote:
| Folks, the blueprint for prosecuting Trump has been created.
|
| If you read the complete ruling, the justices work to clarify
| how "official" and "unofficial" acts apply to the case at hand.
| For example, many of the conversations had with Pence and the
| AG are considered off limits for prosecution as they are
| "official." Other charges, however, can stick if the lower
| court decides:
|
| > Trump can point to no plausible source of authority enabling
| the President to not only organize alternate slates of electors
| but also cause those electors--unapproved by any state official
| --to transmit votes to the President of the Senate for counting
| at the certification proceeding, thus interfering with the
| votes of States' properly appointed electors
|
| The damning part starts on page 27 of the ruling[0].
|
| [0]:
| https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
| nickburns wrote:
| what a dramatic take. surely you haven't read the actual
| opinion.
|
| for posterity, this is "the blueprint for a [sic] American
| dictatorship" to which you refer:
|
| https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
| leotravis10 wrote:
| I'm just going to leave this here:
| https://news.ycombinator.com/item?id=40848935
| nickburns wrote:
| i'm a little busy cutting through the actual opinion at the
| moment. _maaaybe_ i 'll get to this Vox journalist's own
| interpretation of it when i'm done. no breath should be
| held though.
| leotravis10 wrote:
| Just to let you know that he (like the rest of us) have
| already read it.
| nickburns wrote:
| > Just to let you know that he (like the rest of us) have
| already read it.
|
| exceedingly doubtful.
| jauntywundrkind wrote:
| If there's one thing the constitution seemed to try to prevent
| it's kings, and here the court is saying the president can do
| anything, to as maximally permissible as possible an "outer
| limit" of what might be at all considered official. (No matter
| what their motive; we are explicitly forbidden from even
| beginning an inquiry into motive.) It's hard to see even the
| remotest claims of their so called originalism (which is a stupid
| shit dumb practice anyhow) written into this very longwinded
| extensive permission-to-tyrant, permission to sedition.
|
| What a sad shameless age. It's embarrassing as hell having these
| useless Federalist Society shills tearing down the respectability
| of this nation. Utterly brazen. How 40%-50% of the population can
| be so on board with this, be so excited & happy to see such
| endless Calvinball for their team is beyond imagining. It feels
| like liberals always are hungry for more or different from our
| own, will criticize our representatives endlessly, but there's an
| unmatched purity of boosterism for any win any win at all no
| matter what that's totally taken half the country, that there's
| no system of moderation or self assessment left.
| shmerl wrote:
| This court is a farce. People appointed by Trump grant him
| immunity for his crimes. That's some circular Kafkian absurdity
| that shouldn't be happening.
| w10-1 wrote:
| The essence, from the majority opinion
| https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
|
| > nature of Presidential power entitles a former President to
| absolute immunity from criminal prosecution for actions within
| his conclusive and preclusive constitutional authority.
|
| > And he is entitled to at least presumptive immunity from
| prosecution for all his official acts.
|
| > Testimony or private records of the President or his advisers
| probing such conduct may not be admitted as evidence at trial
|
| > The Constitution does not tolerate such impediments to "the
| effective functioning of government" [as when] the possibility of
| an extended proceeding alone may render [the President] "unduly
| cautious in the discharge of his official duties."
|
| > 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."
|
| > In dividing official from unofficial conduct, courts may not
| inquire into the President's motives.
|
| > Nor may courts deem an action unofficial merely because it
| allegedly violates a generally applicable law
|
| > Enduring separation of powers principles guide our decision in
| this case
|
| Supreme Court history has no broader grant of immunity based on
| principles less definitive.
| impalallama wrote:
| > Testimony or private records of the President or his advisers
| probing such conduct may not be admitted as evidence at trial
|
| Wouldn't this have made it impossible to prosecute Nixon for
| Watergate?
| venusenvy47 wrote:
| This is the big red flag for me. A court can't review whether
| the conduct was official. This seems like the court wants to
| remove the checks and balances between the government
| branches.
| impalallama wrote:
| Yes, immunity for "official duties" sounds reasonable until
| you read all the justices own words and realize how
| purposely broad and far reaching these duties are.
| thereddaikon wrote:
| Bit of a stretch to claim that was within his official
| duties.
| legitster wrote:
| Here is a very simplified TL;DR of the decision:
|
| A president's internal planning and discussions with his team are
| are at least granted "presumed" immunity unless the prosecutor
| can establish that the act in question fell outside of the
| office. So for the President pressuring Pence to uncertify the
| election results, prosecutors would need to make a case that it
| was outside of his power to do so - the reasoning behind it is
| largely irrelevant.
|
| When it comes to interactions with external groups - be it local
| election officials or even the press/media - prosecutors need to
| establish whether the president was acting on an official basis
| or an unofficial basis. (And they are clear that the president
| acting on behalf of his party or his campaign would be
| unofficial).
|
| > "The President enjoys no immunity for his unofficial acts, and
| not everything the President does is official. The President is
| not above the law. But under our system of separated powers, the
| President may not be prosecuted for exercising his core
| constitutional powers, and he is entitled to at least presumptive
| immunity from prosecution for his official acts."
|
| My reading of the decision is that of the four counts against
| Trump, three can proceed so long as prosecutors can make a case
| the actions were not official acts.
| whatever1 wrote:
| I understand why during their presidency the president needs to
| be immune (so that they can focus on their executive duties
| instead of spending their day in the court).
|
| But AFTER the end of their (last) term why not be held
| accountable for their actions?
| InTheArena wrote:
| Because they will stay in power rather than face accountability
| (real or imagined) for their actions (legitimate or
| illegitimate). See Caesar, J and the fall of the Roman
| Republic.
| mandmandam wrote:
| That logic is so twisted though.
|
| "The President might ignore laws on term limits, so we need
| to make laws that say he can't be held responsible for his
| actions".
|
| That's _clearly_ insane.
| InTheArena wrote:
| This would not fall under the official powers that he has?
| HaZeust wrote:
| Who cares? Now we have rulings that say it can't be
| enforced if it can be convinced that the action of
| avoiding your term limit can be an "official act" in
| times of unrest, urgency or doubt.
|
| One must understand that the more safeguards we have to
| enact retribution in these cases, the better. The courts
| are one of them, and they are no longer nearly as much at
| our disposal as they were before this morning.
| seydor wrote:
| how can the US president remain in power, aren't there checks
| and balances? Does he have absolute command of the army?
| ceejayoz wrote:
| "We have to let you do bad things, because you will do very
| bad things if we do not" is a hell of an argument.
| umvi wrote:
| Framed another way, anyone crazy enough to run for a
| position in which your opponents will comb through all of
| your actions with a fine tooth comb to imprison you after
| the position term is over likely won't plan on their term
| ever being over.
| HaZeust wrote:
| It is still a valid strategy of risk-aversion, sadly.
| someuser2345 wrote:
| Because that adds an incentive for the president to try to hold
| on to power.
| ClarityJones wrote:
| Two reasons. First, it's the office that's immune, not the
| person. If you prosecute a person for something they did "as
| president" then you're prosecuting the office. Second, it's not
| to be fair to the person. It's to protect the government from
| collapsing. People forget that happens all the time, often due
| to ineffective executive leadership. Look at Haiti, etc. So, I
| think it's true that Presidents will get away with a few things
| here and there that they shouldn't, Congress can still impeach
| and remove them. If Congress is on-board with what the
| President is doing, then that's a decent safeguard that "at
| least whatever the President is doing isn't going to destroy
| the country."
| wolfi1 wrote:
| if he's immune for "official actions" even after office
| impeachment after office must be possible as well
| injidup wrote:
| Perhaps the simple solution is that _all_ presidents should serve
| 15 years in jail after serving their term.
|
| Then only extremely socially minded people would dare to do the
| job.
|
| There was a similar sci fi story I read. At the end of a war the
| rule was that all allied ( not enemy ) generals would be
| executed. The idea was that war was such a horrible concept that
| to lead one would require extreme sacrifice and social
| consciousness on the part of the leaders. War was legal and to be
| fought without limit however on conclusion all leaders would be
| put to death. I don't remember the author or the story name.
| imoverclocked wrote:
| ... so wars, once started, may never end.
| ajuc wrote:
| If there's no downside you just do your worst.
|
| Look at it from the perspective of the president near the end
| of their term.
| lucianbr wrote:
| One of the alien species in
| https://en.wikipedia.org/wiki/The_Garden_of_Rama has this rule.
| The octospiders.
| dh2022 wrote:
| Re: war analogy. Executing all allied generals at the end of
| the war would enable opponents who elevate winning generals at
| the end of the war. Guess which side would win?
| Buttons840 wrote:
| Now that this has been cleared up by the courts, I want to ask.
|
| Is it even possible for the President to break the law? What
| would that look like?
| citizen_friend wrote:
| Impeach.
| squidbeak wrote:
| Sotomayor laid out some examples in her dissent, such as
| assassinating political rivals, staging a coup and taking
| bribes for favours.
| tines wrote:
| Those are examples of the president not breaking the law. She
| was saying that presidents now have carte blanche to do those
| things with no fear of prosecution.
| muaytimbo wrote:
| This was an obvious outcome, the government always protects its
| own. The government class gets immunity from the bottom, cops and
| judges, all the way to the top, legislators, and now, the
| president.
| brendanyounger wrote:
| So ... a president can now order an executive branch officer to
| ignore any Supreme Court decision or law passed by Congress with
| absolute immunity? Seems like the Supreme Court is going to get
| what they asked for.
| janalsncm wrote:
| Maybe we can stop acting like the Founding Fathers were political
| geniuses. They created a system where the only real recourse
| against a president is political, and a political system where
| political recourse is essentially impossible. A two party system
| is the logical conclusion of a first past the post voting system,
| which they have created. It is a bug, and fixing it is also
| effectively impossible.
| code_biologist wrote:
| I mean, they were pretty good. The founding documents addressed
| many problems that been seen in British political history. I
| think they may have lacked tools to prevent two party rule, but
| some were aware it would be a problem.
|
| From George Washington's presidential farewell address:
| "However [political parties] may now and then answer popular
| ends, they are likely in the course of time and things, to
| become potent engines, by which cunning, ambitious, and
| unprincipled men will be enabled to subvert the power of the
| people and to usurp for themselves the reins of government,
| destroying afterwards the very engines which have lifted them
| to unjust dominion."
| janalsncm wrote:
| Washington's farewell address is exactly what I'm referring
| to. Hoping that people won't form political parties rather
| than understanding that they are the logical result of the
| system that's been created. No matter how nicely you ask,
| parties will form.
|
| Just as another example, the Framers forgot to even mention
| that courts could strike down unconstitutional laws, causing
| a political crisis that came up only 15 years later. Oops!
| mpalmer wrote:
| This fails to acknowledge that today's decision has a weak/non-
| existent constitutional basis.
|
| I defy anyone to craft any political system or subset thereof
| that correctly anticipates societal shifts over the course of
| two and a half centuries.
| janalsncm wrote:
| You don't need to anticipate societal shifts, you need to
| empower the political system to handle them.
|
| As for the longevity of the U.S., there's a strong argument
| that it has in fact not lasted 250 or so years, and that the
| reconstruction era amendments created a qualitatively
| different, more centralized country. But even if we ignore
| that, the U.S. has a lot going for it that has nothing to do
| with politics. Two oceans, peaceful neighbors, and more
| natural resources than we knew what to do with that we bought
| for practically nothing.
|
| The US emerged from WW2 as basically the only advanced
| economy that wasn't flattened, did essentially zero
| introspection and assumed our politics were superior. And yet
| we have open bribery of politicians, and the highest court
| opened the floodgates for the wealthiest to donate to
| politicians. The only thing left is to allow politicians to
| keep donations for personal use.
|
| Europe has surpassed us in life expectancy, and soon China
| will surpass us in GDP. And no matter how much free speech we
| have, we can't have a conversation about it because the media
| is weaponized to distract us.
| dingnuts wrote:
| Europe's lifestyle is subsidized heavily by the American
| defense industry and they had better buckle in if Trump
| wins and starts more seriously winding down America's
| defense commitments there
| beaeglebeachedd wrote:
| The 10th amendment was supposed to restrain the federal
| government to a few enumerated powers. It was gutted via
| interstate commerce being everything, and you can't give it up
| because people will start screaming about the civil rights act
| or the EPA or something.
|
| President, as envisioned by founders, should barely even matter
| outside of war.
| stetrain wrote:
| There was also a pretty significant constitutional crisis in
| the middle of that that involved an actual war between states
| with the deaths of many Americans to settle it.
|
| Whether we have adequately updated the constitution along the
| way to cover the new realities is a valid question, but
| governing by just what the original founders wrote doesn't
| have a great track record either.
| janalsncm wrote:
| > the civil rights act
|
| How would you square the 14th amendment's equal protection
| clause with enumerated powers?
| beaeglebeachedd wrote:
| The 14th amendment is a restriction on government. Civil
| rights acts on private entities involved in intrastate
| trade.
|
| CRA also expressly allows racism unlike the 14th. For
| instance the civil rights act allows a business to
| preferentially treat an Indian in a near reservation (but
| off res) business while outlawing discriminating say in
| favor of blacks near a historically black neighborhood.
| cma256 wrote:
| > A two party system is the logical conclusion of a first past
| the post voting system, which they have created. It is a bug,
| and fixing it is also effectively impossible.
|
| AFAIK it only mandates it for the President. We're free to
| elect representatives and Senators how we please.
| beaeglebeachedd wrote:
| There's no federal dictate on how electoral college votes
| IIRC. Sometimes they go rogue,though it may violate state
| law.
| stetrain wrote:
| There is only a mandate for how the electoral votes cast by
| states determine who becomes president, but now how states
| cast those votes.
|
| Some states cast them all for the popular winner in that
| state. Some split them proportionately among the top scoring
| candidates. Some states have agreed to a pact that, if
| enacted by enough states, will switch those states to casting
| their votes for the national popular vote winner.
|
| https://en.wikipedia.org/wiki/National_Popular_Vote_Intersta.
| ...
|
| In theory a state could hold ranked choice votes among any
| number of candidates and cast their electoral votes for the
| final ranked choice winner.
|
| Even the primary system is something managed at the state
| level.
|
| So a lot could be done but it requires changing state laws or
| potentially state constitutions.
| jimbokun wrote:
| They wrote the document defining the currently longest running
| continuous government in the world.
|
| Is the Constitution perfect? No.
|
| But it's still fair to call them geniuses for what they
| accomplished.
|
| Also, you are arguing the Founders interpretation of the
| Constitution is the same as the current Supreme Court. I'm not
| sure they would agree, but there's no way we can ever know.
| buildbot wrote:
| > They wrote the document defining the currently longest
| running continuous government in the world.
|
| This is untrue:
| https://en.wikipedia.org/wiki/Outline_of_San_Marino
| rich_sasha wrote:
| Surely, the UK government predates the US, dating back to at
| least Cromwell, so 17th century, and tenuously as far as
| Magna Carta (and even Alfred tbe Great if you like, so deep
| deep medieval).
| almostdeadguy wrote:
| It's not even clear what "longest running continuous
| government" means or how it would be defined.
| asdff wrote:
| By that logic we drop everything and adopt the government of
| ancient rome because its one thats good for at least a
| thousand years by precedent
| blibble wrote:
| > the currently longest running continuous government in the
| world.
|
| the Isle of Man goes back to 1000 or so
|
| the current UK system is essentially identical to that of
| 1689 and has legal governmental continuity since 1066
| janalsncm wrote:
| If anything that is more impressive given the tiny size of
| the UK, few natural resources, and miserable weather.
| mrcartmeneses wrote:
| Hey! The weather is perfect for working all year round
| and never doing anything nice!
| skadamou wrote:
| I think you mean that the US has the longest continuous
| running democracy - not just government [1] I think this true
| and I agree with you that the while the constitution is not
| perfect, it is still an incredibly impressive document.
|
| [1] https://www.weforum.org/agenda/2019/08/countries-are-the-
| wor...
| Novosell wrote:
| I find that list very questionable. I'm Swedish and while
| yes, we sorta got general voting rights for men in 1911, we
| didn't get truly general voting rights for men until 1918
| and women 1919.
|
| However, before that you could vote if you had enough
| captial. Is that democracy? That list says it isn't whilst
| saying that America, in which minorities and women could
| not vote, is a democracy. That seems like a line draw
| specifically to be able to say America is the oldest
| democracy, very disingenuous.
|
| If you consider minorities and women to be people then
| America didn't become a true democracy until 1965.
| lesuorac wrote:
| Founding Fathers didn't write the constitution.
|
| They wrote the Articles of Confederation which failed leading
| to the Framers writing the Constitution.
| jmyeet wrote:
| The Founding Fathers created a government that:
|
| - Led to a bloody civil war that was the most deadly war in
| human history (until WWI), over 600,000 Americans dead, just
| ~75 years later;
|
| - Largely wiped out the indigenous people of North America;
|
| - Enshrined chattel slavery;
|
| - Denied the right to vote to women (and in fact all non-
| white people); and
|
| - Has been involved in, responsible for and/or complicit with
| many coups in the rest of the world [1].
|
| Maybe it's not the best thing to celebrate.
|
| [1]: https://en.wikipedia.org/wiki/United_States_involvement_
| in_r...
| Novosell wrote:
| The Taiping rebellion started before the American civil war
| and lead to far more deaths. On wikipedia the estimate is
| 20-30 million. Outside of that, just going to the wikipedia
| page for deadly wars will find many that dwarf the American
| civil war.
| metabagel wrote:
| Don't forget that we had a civil war.
| TeeMassive wrote:
| It also goes the other way. A recourse against the only elected
| official of the executive is also political in itself. Without
| immunity, any of the thousands of prosecutors could charge,
| blackmail and kidnap any predidents during and after their
| terms. This would make Presidents effectively answer to the
| courts and not the people.
| iAMkenough wrote:
| Are courts not made up of the people?
| teg4n_ wrote:
| kidnap? what are you even are you talking about?
| inglor_cz wrote:
| Hmm. Here in the Czech Republic, the president is immune to
| prosecution _during his tenure_ , but can be prosecuted
| afterwards _for illegal acts that weren 't committed during
| performance of his duties_.
|
| During tenure, he can only be impeached for anti-constitutional
| acts, and the only punishment if found guilty is removal from
| office.
|
| All in all, it sounds quite similar to this SCOTUS ruling, but of
| course, the consequences for the world are mitigated by the fact
| that globally, our president is a very, very small player.
| cbxyp wrote:
| Nixon confirmed not a Crook! "When a president does it, it's not
| illegal" - Richard Nixon (1979)
| grotorea wrote:
| It's interesting that even in the Roman Republic the immunity
| ended after the end of your term, and you could be prosecuted for
| official acts taken during it. And even let to Caesar fighting to
| keep himself in office at all times to avoid inevitable
| prosecution. https://theconversation.com/from-caesar-to-trump-
| immunity-is...
| nostromo wrote:
| The prosecution of Trump was likely a big reason he's running
| again, for similar reasons. I'm not sure the prosecutors are
| even smart enough to realize they're the reason we're at where
| we're at.
| mywittyname wrote:
| Trump's running again because his first pass in office was
| wildly profitable, and he thinks he could get another shot at
| it. And that's just considering the stuff we know about
| (emoluments violations, government loans/grants to family
| members, "investments" from Saudis). Who knows what he got
| for access to those documents stored at Mar-a-Lago or things
| we don't know anything about.
| onlyrealcuzzo wrote:
| Awfully bold of you to assume we are better governed than Rome
| - back when ther was still such a thing as honor.
| pvg wrote:
| Stabbing your political rivals, marching armies at one's own
| capital, etc are definitely considered less honourable in
| these fallen times.
| ClarityJones wrote:
| It's not the man who's immune, but the office that he holds...
| if you intend the office to survive.
| lizardking wrote:
| This is what has Netanyahu fighting for his political life at
| the moment.
| suid wrote:
| Time for "Will nobody rid me of this troublesome priest?"
| riskable wrote:
| No, that's the _old way_. The new way is for the President to
| issue an executive order to have their target officially
| arrested, rendered somewhere overseas, and then follow up with
| an official order to have them assassinated (just declare them
| a foreign agent).
|
| Any and all communications outside of the executive order would
| not be admissible as evidence even if the DOJ _did_ want to
| prosecute!
| heleninboodler wrote:
| Can't help but wondering if Joe is contemplating Seal Team Six's
| summer plans right about now.
| dinglestepup wrote:
| Right, the best way to avoid fascism is to become a fascist
| before your opponent does. In the name of democracy, of course.
| riskable wrote:
| Fascism is a _political ideology_ and system (sort of) that
| requires a whole lot of people to keep it in place. A "lone
| President" assassinating his political rivals in a single act
| is just a regular old dictator move. No fascism required.
| dinglestepup wrote:
| Assassinating your political opponents using the military
| in the name of saving the nation fits quite neatly into the
| definition of fascism. You don't need the system to be
| fascist to be a fascist.
|
| Since the prevailing view of Trump and MAGA Republicans is
| that they are fascist, it's not a stretch to point out that
| the proposal in the parent comment is far closer to
| "actual" fascism than the actions of an incompetent
| enabler.
| kemotep wrote:
| My limited understanding of the ruling:
|
| The ruling states that the President is immune from prosecution
| while exercising official duties of the office of President but
| can be investigated by a special counsel that is appointed by an
| act of Congress, and if successfully impeached and convicted can
| then be charged with said crimes. "Unofficial" acts are not
| protected by this immunity but a special counsel is still
| required to be appointed by an act of Congress to investigate and
| then bring forward charges.
|
| Out of context this is quite reasonable and level headed. In
| context of the hyper partisan landscape US politics are today,
| doesn't seem likely without a supermajority opposition to be able
| to bring charges against a president, for official or unofficial
| acts that are crimes.
| awb wrote:
| On paper it makes sense. The people elect a congress charged
| with checking the powers of the President. States can also pass
| constitutional amendments to further limit or define the powers
| of the President.
|
| In reality, power can be consolidated to the point where these
| checks and balances no longer work properly.
| comex wrote:
| You're mixing together a few different things.
|
| - Trump's lawyers argued in this case that an ex-president can
| only be charged with a crime if he was impeached and convicted
| for that same act. But all of the justices rejected this view
| today. The newly granted immunity is orthogonal to whether or
| not the president is impeached.
|
| - Though, the president does have to leave office somehow
| before he can be prosecuted. He can't be prosecuted while still
| sitting. This wasn't technically decided in this case, but the
| parties mostly agreed as much beforehand, and the majority
| opinion has a footnote approvingly citing an Office of Legal
| Counsel memo to that effect.
|
| - Separately, Trump's lawyers argued that the special counsel
| that prosecuted him was not properly appointed by an act of
| Congress. But the Supreme Court did not grant certiorari on
| that issue and the majority opinion today did not address it.
| Justice Thomas's solo concurring opinion, however, did address
| it and agreed with Trump (but a concurring opinion has no legal
| effect). In any case, this is a different question from whether
| prosecutions of ex-presidents _must_ go through a special
| counsel. As far as I know, there is no formal rule that would
| require it, but it 's highly desirable as a way to avoid
| political bias. That question didn't come up in this case,
| though.
| adriand wrote:
| This ruling seems to open the door to a president being immune
| from, say, commanding SEAL Team 6 to assassinate a political
| rival.
|
| "In its ruling, the Supreme Court decided there was no question
| that Mr. Trump enjoyed immunity from being prosecuted for one
| of those methods: his efforts to strong-arm the Justice
| Department into validating his false claims that the election
| had been marred by widespread fraud. That was because the
| justices determined that Mr. Trump's interactions with top
| officials in the department were clearly part of his official
| duties as president." [1]
|
| One of the president's official duties is to direct the
| military to take actions that protect the country. Biden can
| reasonably claim Trump is a threat to democracy, and can
| officially request him to be killed. Right? If not why not?
|
| 1: https://www.nytimes.com/2024/07/01/us/politics/supreme-
| court...
| Ancapistani wrote:
| > Out of context this is quite reasonable and level headed.
|
| That's why I'm opposed to making changes to the way the Court
| is selected and empaneled.
|
| The fact that it's inconvenient for one party right now is
| irrelevant. It'll be inconvenient for the other party soon
| enough.
|
| > In context of the hyper partisan landscape US politics are
| today, doesn't seem likely without a supermajority opposition
| to be able to bring charges against a president, for official
| or unofficial acts that are crimes.
|
| Good. If it were easy to bring charges against a President,
| then Presidents wouldn't be able to do anything they were
| elected to do.
|
| The failure of that protection at the end of the term is one of
| the major reasons for the end of the Roman Republic. If you
| repeatedly make powerful political figures choose between
| prosecution and violence, it won't take long for one of them to
| choose violence.
|
| The fact that we've peacefully transitioned between presidents
| ~45 times is honestly rather amazing.
| tines wrote:
| > Good. If it were easy to bring charges against a President,
| then Presidents wouldn't be able to do anything they were
| elected to do.
|
| Leaving aside the difference between "bringing charges" and
| "successfully bringing charges," there's a big gap between
| "easy" and "impossible." Nobody wants presidents to be
| criminally liable for the things they do in good faith. But
| this ruling makes good faith irrelevant; it doesn't matter
| why they do an official act, it's immune.
|
| The fact is that a former president exerted pressure on
| government officials in a way that would halt a lawful
| election and coordinated to subvert its true results by
| presenting fake results. In determining whether that was an
| official act, we cannot reference his motivations or his
| private records according to the SC's ruling.
|
| Allow the motivation for official acts to be taken into
| consideration for prosecution, and a lot of the problems go
| away.
| HaZeust wrote:
| >The fact that it's inconvenient for one party right now is
| irrelevant. It'll be inconvenient for the other party soon
| enough.
|
| I _hate_ to dive into conspiratorial thought; but with a
| ruling so brazen, they might think this, and a few other
| steps, will bid them enough time to not worry about the other
| party having a slice of their same cake for the foreseeable
| future.
| siliconc0w wrote:
| This court has blown up civil rights, legalized machine guns
| (bump stocks), blown up any ability to regulate with chevron and
| now elevates the president to king in order to give the president
| that appointed them immunity. How long before sotomayor rage
| quits. I guess this ruling means Biden can send some thugs to
| forcibly retire them? Let's just have a fully political court
| that flip flops what the laws mean every four years.
| riskable wrote:
| Replacing the court every four years wouldn't be that bad if
| the courts were more efficient. As it stands, however, cases
| can take _over a decade_ during which any such SCOTUS rulings
| could flip flop entirely, resulting in legal chaos (which would
| be bad).
|
| Change isn't necessarily a bad thing... Imagine if we had a new
| court every four years and one of them behaved like the current
| SCOTUS, overturning over a hundred years of precedent basically
| every chance they get. The damage could be undone just as
| quickly.
| agensaequivocum wrote:
| Federal law defines "machine gun", a bump stock clearly doesn't
| meet it.
| sirbutters wrote:
| No need to be pedantic about it. Bump stocks can do just as
| much damage as a full auto weapon. SC is fine with that
| accessory in the hands of millions of citizens. As if we
| didn't have enough gun violence in this country.
| qqtt wrote:
| It's really impossible to understand and determine before hand
| how the court would rule on any of these theoretical cases that
| may result as a consequence of this decision. It is up to further
| cases to actually establish was constitutes "official" versus
| "unofficial" capacities as President and we can absolutely not
| guess before hand what that entails. From the decision, it seems
| that only those duties constitutionally mandated would fall under
| the "official" capacity, with quite a lot of leeway for
| determining how to evaluate individual actions.
|
| Also I think we should all be reminded that there is separation
| of powers for a reason. The President is ultimately largely
| beholden to Congress. The government cannot sink into a
| dictatorship without the explicit approval of the majority of
| Congress. It is Congress' duty to remove Presidents from office
| that it feels are a danger to the country.
|
| All these checks and balances still exist and will still be
| enforced. The President can not unilaterally go off the rails as
| many of these extreme hypotheticals seem to be implying.
| suzzer99 wrote:
| > It's really impossible to understand and determine before
| hand how the court would rule on any of these theoretical cases
| that may result as a consequence of this decision.
|
| I've got a pretty good guess, and it will be based on the
| political party of the defendant.
| riskable wrote:
| > The President is ultimately largely beholden to Congress. The
| government cannot sink into a dictatorship without the explicit
| approval of the majority of Congress.
|
| This is nonsense. The President can just assassinate all of
| their political rivals in Congress that would hold them to
| account. Before this ruling there was an assumption that any
| such actions would be prosecuted after the President was no
| longer in office (assuming they didn't have enough power to
| interfere with a free election). Now that can't realistically
| happen.
|
| There's a reason why folks are saying this ruling, "paves the
| way to a dictatorship"!
| qqtt wrote:
| This is not really true though. Congress is responsible for
| granting authority to the President regarding valid military
| targets. This is why drone strikes are only legal against
| targets recognized by Congress as security threats. It cannot
| realistically happen for the President to start targeting
| individuals outside of Congressional authority.
|
| For your hypothetical situation to arise, Congress would have
| to declare members of Congress themselves as valid military
| targets.
| ceejayoz wrote:
| > For your hypothetical situation to arise, Congress would
| have to declare members of Congress themselves as valid
| military targets.
|
| Or just add them to the
| https://en.wikipedia.org/wiki/Disposition_Matrix.
|
| "As reported previously, United States citizens may be
| listed as targets for killing in the database. Suspects are
| not formally charged of any crime nor offered a trial in
| their defense. Obama administration lawyers have asserted
| that U.S. citizens alleged to be members of Al Qaeda and
| said to pose an "imminent threat of violent attack" against
| the United States may be killed without judicial process.
| The legal arguments of U.S. officials for this policy were
| leaked to NBC News in February 2013, in the form of
| briefing papers summarizing legal memos from October 2011."
| qqtt wrote:
| A relevant decision by a Federal judge regarding the
| legality of the disposition matrix, concerning
| specifically US citizens abroad:
|
| https://ecf.dcd.uscourts.gov/cgi-
| bin/show_public_doc?2012cv1...
|
| It's an interesting read, but part of the argument was
| that there were Congressional checks and balances in
| place for security threat review and congress authorized
| force against the group in question which essentially
| gave the executive branch authority to add the specific
| targets in question.
|
| The legality of the disposition matrix at large can still
| be tested and re-tested depending on the specific actions
| of the executive branch.
| nataliste wrote:
| If president has gone rogue and is assassinating members of
| congress (or rival candidates, _why would they need legal
| immunity_? Assassinating opponents is _already_ the action of
| someone that refuses to relinquish office and has _de facto_
| immunity. They don 't need the validation of the Supreme
| Court to do this; nobody is going to charge them in the case
| that it'll bring a death sentence.
| tines wrote:
| > why would they need legal immunity?
|
| Because there's a gap between here and there, and we don't
| want to make that gap narrower than it already is. The
| president can now do a whole lot of illegal shit that falls
| short of "assassinating anyone at any time," and face no
| consequences. By allowing one we inch closer to the other.
| dboreham wrote:
| This seems like a "there's no way to get a bug in the hypervisor
| fixed" moment.
| gaoshan wrote:
| Now I'm wondering what constitutes an "official act". Is is
| anything at all done while President or is it things that fall
| under the normal official duties of President? If it's the former
| then a President is free to murder anyone, if it's the latter
| then what is official about a random homicide?
| stevefeinstein wrote:
| It's time to test this ruling. Joe Biden can have let's say oh,
| about six supreme court justices detained for suspicion some
| wishy-washy thing or another.
| neogodless wrote:
| There's no winning if you're on the side that _kind of_ leans
| towards playing fair.
|
| We can't protect democracy by throwing it out the door, and
| hoping you still get elected come fall. If Biden would _take
| advantage_ of this ruling in a way the American public doesn 't
| like, he won't be elected. So he would have to further throw
| out democracy the way Trump is comfortable doing, by ignoring
| the election results.
|
| But enough Americans seem to be leaning towards re-electing
| Trump such that he'll have 4 more years in office to _perform
| official acts_ to his heart 's content and set himself up for
| whatever he has in mind by the end of his term, January 2029.
| mywittyname wrote:
| Lincoln didn't save the Republic by being a nice guy.
| tomohawk wrote:
| The Supreme Court took what should be a straightforward and
| elegant decision -- the president is immune from prosecution for
| acts committed in office unless he has been impeached for those
| acts -- and turned it into angels-on-the-head-of-a-pin litigation
| about what constitutes official and unofficial acts.
|
| Starting on page 44 of the opinion, Thomas makes some very good
| points. I write separately to highlight another
| way in which this prosecution may violate our constitutional
| structure. In this case, the Attorney General purported to
| appoint a private citizen as Special Counsel to prosecute a
| former President on behalf of the United States. But, I am not
| sure that any office for the Special Counsel has been
| "established by Law," as the Constitution requires. Art. II, SS2,
| cl. 2. By requiring that Congress create federal offices "by
| Law," the Constitution imposes an important check against the
| President--he cannot create offices at his pleasure. If there is
| no law establishing the office that the Special Counsel occupies,
| then he cannot proceed with this prosecution. A private citizen
| cannot criminally prosecute anyone, let alone a former President.
| No former President has faced criminal prosecution for his acts
| while in office in the more than 200 years since the founding of
| our country. And, that is so despite numerous past Presidents
| taking actions that many would argue constitute crimes. If this
| unprecedented prosecution is to proceed, it must be conducted by
| someone duly authorized to do so by the American people. The
| lower courts should thus answer these essential questions
| concerning the Special Counsel's appointment before proceeding.
| ... Even if the Special Counsel has a valid
| office, questions remain as to whether the Attorney General
| filled that office in compliance with the Appointments Clause.
| For example, it must be determined whether the Special Counsel is
| a principal or inferior officer. If the former, his appointment
| is invalid because the Special Counsel was not nominated by the
| President and confirmed by the Senate, as principal officers must
| be. Art. II, SS2, cl. 2. Even if he is an inferior officer, the
| Attorney General could appoint him without Presidential
| nomination and senatorial confirmation only if "Congress . . . by
| law vest[ed] the Appointment" in the Attorney General as a
| "Hea[d] of Department." Ibid. So, the Special Counsel's
| appointment is invalid unless a statute created the Special
| Counsel's office and gave the Attorney General the power to fill
| it "by Law." Whether the Special Counsel's
| office was "established by Law" is not a trifling technicality.
| If Congress has not reached a consensus that a particular office
| should exist, the Executive lacks the power to unilaterally
| create and then fill that office. Given that the Special Counsel
| purports to wield the Executive Branch's power to prosecute, the
| consequences are weighty. Our Constitution's separation of
| powers, including its separation of the powers to create and
| filled offices, is "the absolutely central guarantee of a just
| Government" and the liberty that it secures for us all. Morrison,
| 487 U. S., at 697 (Scalia, J., dissenting). There is no
| prosecution that can justify imperiling it.
| mywittyname wrote:
| These are terrible points! Asserting that a special prosecutor
| is akin to a private prosecutor is absurd. They are just like
| other prosecutors, the only reason to use a special prosecutor
| is to avoid making the case seem political.
|
| Also, the fact that other Presidents did illegal shit and we
| didn't prosecute them, thus they are above the law is also
| absurd.
|
| The current ruling whips out the, "there's nothing in the
| constitution stating we can do things we've always done" when
| its convenient, then goes on to say, "we've always been doing
| it this way, implying it's in the constitution" when its
| convenient.
| nickburns wrote:
| > These are terrible points! Asserting that a special
| prosecutor is akin to a private prosecutor is absurd.
|
| what, pray tell, is a "private prosecutor"?
| selimthegrim wrote:
| You can bring private prosecution at the state level. edit:
| in certain states
| nickburns wrote:
| that's quite literally an oxymoronic statement.
| GreedIsGood wrote:
| BTW, great title.
|
| There have been multiple awful titles of for this ruling, yours
| was exactly correct.
| ChildOfEru wrote:
| > (3) Presidents cannot be indicted based on conduct for which
| they are immune from prosecution. On remand, the District Court
| must carefully analyze the indictment's remaining allegations to
| determine whether they too involve conduct for which a President
| must be immune from prosecution. And the parties and the District
| Court must ensure that sufficient allegations support the
| indictment's charges without such conduct. Testimony or private
| records of the President or his advisers probing such conduct may
| not be admitted as evidence at trial. Pp. 30-32
|
| For example, from my understanding this means that Nixon's tapes
| could never have been used in any form in a criminal trial
| regarding Nixon's actions.
|
| In today's political environment I don't see an impeachment ever
| succeeding unless the opposing party has a super-majority in the
| US Senate.
| throwaway4220 wrote:
| Nixon resigned knowing an impeachment was pending. I cannot
| imagine that ever happening today.
| tstrimple wrote:
| Conservatives since Nixon have been working to ensure none of
| them could be taken down like he was. This is just the final
| chapter in them successfully implementing their plan that
| began with Fox News.
| dgellow wrote:
| That started in 1982 with the Federal Society
| https://en.wikipedia.org/wiki/Federalist_Society
| tootie wrote:
| We are still paying the price for Watergate. The Saturday
| Night Massacre was Nixon's attempt to use his executive
| authority to prevent his investigation. The loyalist who
| ended up being his third AG of the day was Robert Bork. First
| Ford declined to prosecute, then Reagan nominates Bork to the
| SC and suddenly SC appointments become combative partisan
| affairs
| alluro2 wrote:
| I don't understand what weight impeachment still holds in
| today's world. Trump was impeached twice - and? If Trump, in
| his second term, is supposed to be held liable through fear of
| impeachment for his actions, I'm afraid it won't be the
| counter-weight the Founding Fathers envisioned.
| SubiculumCode wrote:
| Impeachment is not conviction.
| HaZeust wrote:
| Might as well have been. It's easier to indict a conviction
| of a high ranking figure 4 times over than it is playing
| the political game of a successful impeachment.
| efitz wrote:
| An impeachment (by the House of Representatives) is
| analagous to an indictment.
|
| The trial is held in the Senate, and the Senators serve
| as a judge-less jury.
|
| Partisan impeachment is rightfully difficult, by design.
| Juries either have to be unanimous or a super-majority,
| depending on venue. If you can't get a small fraction of
| the opposition party to agree with the charges, the
| charges are defective.
|
| If the charges are "here's some crap we scraped together,
| let's throw it at the wall and see if it sticks", then it
| deserves to fail. It failed under Clinton and under
| Trump, partly for partisan reasons but mostly because
| senators didn't think the charges rose to the level of
| "high crimes and misdemeanors". Dershowitz has some
| really good analysis on this.
|
| The founders weren't all convinced that impeachment was
| even necessary; the president's term is only 4 years.
| Many were rightfully concerned that impeachment would
| become a spectacle used by a opposition House to damage
| the sitting president. And that's what it has become,
| since the 90's.
|
| No one can preside over a country when any ambitious DA
| anywhere can drag you into court afterwards. I think the
| decision today was a good one.
|
| But also think about it this way: no matter how you feel
| about Trump, imagine how you'd feel if
| $YOUR_PREFERRED_CANDIDATE was president and lawfare was
| being conducted against that person by $OPPOSITION_PARTY.
|
| The majority in the court was wise today and closed the
| door firmly on lawfare as an alternative to campaigning,
| for all presidents moving forward.
| HaZeust wrote:
| Complete malarkey.
|
| >"An impeachment (by the House of Representatives) is
| analogous to an indictment. The trial is held in the
| Senate, and the Senators serve as a judge-less jury."
|
| Impeachment may be analogous to an indictment, but it has
| become a political tool, not a true check on presidential
| power.
|
| >"Partisan impeachment is rightfully difficult, by
| design. Juries either have to be unanimous or a super-
| majority, depending on venue. If you can't get a small
| fraction of the opposition party to agree with the
| charges, the charges are defective."
|
| The difficulty of impeachment due to partisan bias
| undermines its purpose. Historical impeachments show the
| Senate often votes along party lines, ignoring the
| evidence. There's reason for that.
|
| >"The founders weren't all convinced that impeachment was
| even necessary; the president's term is only 4 years.
| Many were rightfully concerned that impeachment would
| become a spectacle used by an opposition House to damage
| the sitting president."
|
| Impeachment was included _exactly_ because the president
| can cause immense harm, even in four years - and you are
| undermining the importance the Founders saw in it,
| especially enough to include it.
|
| >"No one can preside over a country when any ambitious DA
| anywhere can drag you into court afterwards. I think the
| decision today was a good one."
|
| _No one_ should be above the law, lest we flirt with
| Kingship, which is especially unappealing given our
| history.
|
| >"The majority in the court was wise today and closed the
| door firmly on lawfare as an alternative to campaigning,
| for all presidents moving forward."
|
| This ruling is a very, VERY dangerous precedent,
| suggesting presidents are untouchable. Clinton v. Jones
| showed legal accountability can coexist with presidential
| duties
|
| --------------------
|
| Like I said here [1], "[Lawfare in the executive] wasn't
| even a problem before the last 4 years, and the only
| times it were - was when the suspecting president agreed
| they broke the law and stepped down, or got impeached.
|
| We have monarchy after monarchy to show that sovereign
| immunity within leaders builds toxic ontological
| relationships between participants of a political system,
| and often invites tyranny. Your suspicions, for 238 years
| straight, have been amiss."
|
| 1 -
| https://news.ycombinator.com/item?id=40847963#40851373
| jameshart wrote:
| Conviction at impeachment can result in removal from office
| and being barred from holding office again.
|
| It requires the senate to do its job though.
| claytongulick wrote:
| > In today's political environment I don't see an impeachment
| ever succeeding unless the opposing party has a super-majority
| in the US Senate.
|
| It's supposed to be hard to do. Impeachment is intended to be
| reserved for egregious violations or actions that most of
| congress (and by proxy, the citizenry) agree on.
| goda90 wrote:
| If only Congress were a proxy for the citizenry, but
| gerrymandering has ruined that.
| karmajunkie wrote:
| it's supposed to be hard. not impossible. and it's pretty
| clear at least to me that the authors of the constitution
| very clearly intended presidents like trump to be thrown out
| of office.
| luxuryballs wrote:
| the constitution loves presidents like Trump, because he
| actually acted as a constitutional president while in
| office instead of being a figurehead for manufacturing
| consent on behalf of the global hegemony
| austin-cheney wrote:
| Impeachment is not considered a criminal proceeding, but a
| political one. It just serves to authorize a criminal
| proceeding by the senate. If Nixon's tapes could not be used
| during a criminal proceeding they could still be used in a push
| for an impeachment.
|
| But, yes, an impeachment or senate trial is likely unthinkable
| without a super majority. Driving conformity/uniformity is the
| goal of party politics.
| ensignavenger wrote:
| How do you conclude that? It is my understanding that the Nixon
| tapes were recordings of conversations Nixon had with campaign
| staff as a candidate, and as the Supreme Court held, actions
| taken as a candidate are not official actions and are therefore
| not subject to immunity.
| ethbr1 wrote:
| If it gets interpreted more clearly this way in subsequent
| Supreme Court decisions (because there will definitely be
| 1+), then I like the ruling.
|
| To me, it's clear that there's {President-the-President} and
| {President-the-candidate}. Furthermore, campaign staff are
| explicitly not federal employees nor members of the executive
| branch.
|
| What really needs to happen, and I believe what the Court was
| promoting the legislative branch to do, is for Congress to
| pass laws circumscribing Presidential authority specifically
| around elections.
|
| In the form of can-do and can't-do.
| monetus wrote:
| Nixon still had the presidency as he ran for reelection,
| allowing for the argument that tapes of anyone under the
| Whitehouse's employ were inadmissible official acts.
| torstenvl wrote:
| Immunity is not admissibility. They are orthogonal.
|
| Law enforcement has qualified immunity for the vast
| majority of what they do in an official capacity. That
| doesn't mean their testimony about what they do in an
| official capacity is inadmissible, including if they
| testify about what other law enforcement officers did.
| monetus wrote:
| The problem is that official conduct is inadmissible as
| evidence for even an unofficial crime, from what I
| understand. On that point, Barrett and the other women
| justices dissented from the majority, with "official
| acts" being a nebulous term.
| csb6 wrote:
| If this ruling would have been in force back then, Nixon
| could have argued that the conversations were done in his
| official role as president. For example, a conversation with
| his chief of staff about ordering the CIA perform a coverup
| could be considered "official business" since he was talking
| to a top executive branch official and directing an executive
| branch agency to take an action.
|
| The distinction between "official" and "unofficial" becomes
| meaningless when a president can use their official powers to
| do illegal things that benefit themselves in an unofficial
| capacity. Hence the absurd conclusion that, apparently, a
| president cannot be prosecuted for assassinating their
| opponent using Seal Team 6.
| luxuryballs wrote:
| I think it would easily succeed if there was actually a real
| actual reason to use it and not just a political stunt in the
| lower house.
| rayiner wrote:
| The phrase "probing such conduct" refers back to the "conduct
| for which a president must be immune from prosecution." So what
| it's saying is that you can't use tapes relating to protected
| official acts.
|
| So Nixon tapes discussing his campaign probably would be
| admissible.
| greentxt wrote:
| I'm imaging an index that measures the semantic similarity
| between reddit and hn threads on a particular topic. I feel like
| adding that measure to front page to allow users to sort threads
| would be beneficial in increasing signal-to-noise and help hn
| maintain a more distinct brand identity.
| TimTheTinker wrote:
| Comparing HN to reddit is expressly off-topic:
|
| > Please don't post comments saying that HN is turning into
| Reddit. It's a semi-noob illusion, as old as the hills.
|
| https://news.ycombinator.com/newsguidelines.html
| itissid wrote:
| Barret mentioned that: If one bribes the president in appointment
| of an official - like an embassador - since the appointment of
| the embassador is an official act, under this ruling, one cannot
| bring this as evidence to the jury in a criminal trial because it
| was part of an official act.
| WheatMillington wrote:
| Does anyone know where I can find a nuanced view on this issue?
| Clubber wrote:
| I would certainly read the opinions directly. You probably
| won't find a rational nuanced view from any forum or news
| outlet today.
|
| https://www.documentcloud.org/documents/24785411-trump-v-uni...
| paulryanrogers wrote:
| How have presidents _not_ been paralyzed by fear of prosecution
| until now?
|
| Strange that only now, with a super majority of conservatives and
| a 'conservative' former president facing insurrection charges,
| that such a ruling should come down.
|
| And all this after McConnell assured us that impeachment wasn't
| appropriate for a 'criminal' matter like January 6.
| KingOfCoders wrote:
| "It is my duty to protect American democracy so I killed my un-
| democratic challenger".
|
| This opens a can of worms - no one can today imagine what that
| means, with a willy nilly fluffy definition of official act.
| autoexecbat wrote:
| Hopefully everyone is now motivated to clear up legislation
| regarding what a President may or may not do as part of their
| official actions
| sharpshadow wrote:
| Really expected result. How would the US not give their
| presidents immunity. This counts for all of them not only for
| Trump and in conjunction anything else would simply be
| impossible.
| jmward01 wrote:
| The reality with this ruling is it will embolden future
| presidents to do things that are to their advantage even if they
| think those actions may be illegal. Presidents don't need more
| protection from people. We the people need more protection from
| them.
| Vegenoid wrote:
| This is the best way I've heard it put. The United States was
| founded to escape rulers who were above the law, and the
| Constitution was created to protect it. For the justices who
| claim to be primarily driven by the constitution to make this
| ruling seems bizarre, and it's hard for me to see it in any
| other way than partisan bias.
|
| The president does not need this power and protection. The past
| 2 years are the first time this 'prosecuting a former
| president' thing has been an issue, and there are lots of
| unusual circumstances around it. To give the president such
| power in response to this seems like a very, very, very bad
| idea.
|
| Presidents do not need protection from the people, the people
| need protection from presidents.
| KingOfCoders wrote:
| The US killed itself.
| xyst wrote:
| Maybe this is a good time to finish my dual citizenship
| application with Norway.
| asdff wrote:
| Can anyone pencil out the real danger of this position?
| Sotomayors opinion seems to posit that a president can receive a
| bribe and pardon someone for that and this is an official, immune
| act. However, I don't think soliciting a bribe would be
| considered an official act of the POTUS, and by what I have been
| able to understand from this opinion would still be subject to
| prosecution. I also think that this opinion seems to be exactly
| in line with existing legal precedent. Truman was never
| prosecuted for the massacres he presided on. Nixon was never
| prosecuted. Reagen was never prosecuted. We just don't seem to
| ever prosecute ex presidents at all whether we had this opinion
| to spell it out for us or not.
| BadHumans wrote:
| With the Court killing the Chevron Deference, they have given
| themselves all the power to decide what is an official act and
| what isn't. Anything not spelled out in plain terms will be
| interpreted by them and nothing is spelled in plain terms.
| asdff wrote:
| I though the chevron deference related to how federal orgs
| like e.g. the epa pen their own policy and trying to put that
| policy writing power back into the legislative branch vs
| through the executive who appoints these orgs? I am not
| educated in law and would like to clear up some of my
| misunderstanding.
| metabagel wrote:
| So, this is about connecting the dots between different
| Supreme Court decisions.
|
| Further reading...
|
| https://harvardlawreview.org/forum/vol-136/the-imperial-
| supr...
| lolinder wrote:
| This comment is a classic example of the ridiculous state of
| discourse around the Supreme Court right now on HN. So many
| people are trying to process legal theories through the
| amygdala and the result is a legal word soup that doesn't
| actually have any meaning.
|
| Chevron deference has absolutely zero to do with this and
| never would have. I'd go deeper, but Brandolini's Law is real
| and I simply don't have the energy any more.
| BadHumans wrote:
| I'm certainly not law trained and open to being wrong so if
| you could find the energy I'm happy to listen. My reading
| of the situation is that the main confusion here is what
| constitutes an official act and a non-official act. With
| the removal of the Chevron Deference, all of the
| interpretation of ambiguous law now rest with the courts.
| lolinder wrote:
| It's nothing about you personally, it's that this thread
| is filled with _hundreds_ of bad takes and I actually can
| 't keep up. The bullshit asymmetry principle is working
| hard today because actually doing the work of
| understanding the law takes time.
|
| The short version is that _Chevron_ was not a doctrine
| used in any and all cases where the law was ambiguous, it
| was always about whether an _administrative_ agency 's
| interpretation of the law was permissible. The subjects
| under consideration here do not fall under administrative
| law [0] and so _Chevron_ would never have been relevant.
|
| [0] https://www.law.cornell.edu/wex/administrative_law
| metabagel wrote:
| Trump is being prosecuted right now. That's what this case is
| about.
| asdff wrote:
| But he is being prosecuted for fraud not for an official act
| as president
| laidoffamazon wrote:
| He was prosecuted for fraud and he is also being prosecuted
| for things he did as president on January 6th and after his
| presidency.
| lolinder wrote:
| And the court very specifically leaves open the
| possibility that he's guilty for his actions on January
| 6th if he was acting in his capacity as a candidate for
| office.
| Ancapistani wrote:
| As they should, as that wasn't the issue before them.
| laidoffamazon wrote:
| The issue is he did many things _also_ in his capacity as
| president
| BWStearns wrote:
| The issue is that this could prevent even opening up the
| discussion of whether a transaction was a bribe if the former
| president can claim it was an official act.
|
| Nixon was never prosecuted because he was pardoned so the
| official acts stuff is moot. Crimes committed in war/putting
| down rebellion/etc are bad but more clearly within the scope of
| official acts than anything Trump is accused of.
|
| Reagan, to the extent that he did/didn't coordinate with Iran
| to delay the hostage release, would be the closest parallel
| since it would have been a crime (Hatch act violation) in the
| direct pursuit of winning an election. But that was before he
| was president so this also wouldn't be relevant for today's
| ruling.
|
| We don't prosecute ex presidents often because most of them
| either don't commit crimes or the ones they do are arguably
| part of the job. Trying to prevent the legitimate transfer of
| power is not close to a part of the job. The opposite in fact.
| Nixon only gets pardoned because he agrees to fuck off and
| spare the country the shitshow we currently have.
| 1668911361 wrote:
| One danger, to quote Barrett's in-part concurrence (p.66 of the
| ruling) is:
|
| > The Constitution, of course, does not authorize a President
| to seek or accept bribes, so the Government may prosecute him
| if he does so. [... citations ...] Yet excluding from trial any
| mention of the official act connected to the bribe would
| hamstring the prosecution. To make sense of charges alleging a
| quid pro quo, the jury must be allowed to hear about both the
| quid and the quo, even if the quo, standing alone, could not be
| a basis for the President's criminal liability.
|
| (I wanted to quote Barrett since she's a Trump-appointed
| justice.)
| vlovich123 wrote:
| I think the saddest thing is how lying under oath during a Senate
| confirmation hearing doesn't revoke the confirmation.
|
| Basically Kavanaugh did what everyone said he would and he
| overturned US v Nixon even though he lied about it during his
| confirmation even though before he argued repeatedly it was a bad
| decision. So either he lied or he miraculously changed his
| beliefs for the duration of the Senate hearing.
|
| https://www.peoplefor.org/press-releases/fact-check-kavanaug...
| amadeuspagel wrote:
| I think the saddest thing is that judges are expected to answer
| how they would rule on specific cases to be confirmed. What is
| even the point of an independent supreme court, if politicians
| can have guarantees as to how specific cases are decided?
| standardUser wrote:
| Kavanaugh was not _forced_ to lie under oath, he chose to.
| skhunted wrote:
| _I think the saddest thing is that judges are expected to
| answer how they would rule on specific cases to be
| confirmed._
|
| That's the sad part? We have different perceptions reality.
| torstenvl wrote:
| Appreciate your moral courage in going against the grain on
| HN. Not _as_ sad, but still deeply sad that a site that
| prohibits ideological battle in its guidelines has become
| powerless to stop Twittermobbing on here.
| lolinder wrote:
| I'm normally one who will defend HN as being a haven for
| calm, rational disagreement, but these Supreme Court ruling
| discussions are _really_ bad.
|
| Someone's going to come along and tell me that the vitriol
| is necessary and good because the Supreme Court is so
| clearly and unequivocally evil, but that's just the point.
| Even the threads on the Israel-Hamas war have had better-
| quality discussions with more nuance than the hot takes and
| hatred that have been plaguing HN the last few weeks on
| these threads.
|
| We can do better. I've seen it.
| skhunted wrote:
| But if one really does believe the rulings are that bad
| and that they portend very bad things to come then a
| person should say as much. I can calmly and rationally
| say that these decisions are terrible. It's not, in my
| opinion, hyperbole for me to say so. I could be wrong in
| my assessment but I don't think I am.
|
| For the first time in American history a select group of
| people are immune from the law as long as the acts occur
| while carrying out their jobs. That's a big deal. I can
| see that soon someone will claim immunity because they
| carried out an order of the President and their immunity
| extends to those carrying out "official acts" of the
| President.
| 1668911361 wrote:
| I'm genuinely curious--what should the senate be voting
| for/against when they confirm a supreme court justice, if not
| how'd they rule on certain topics?
| ajcp wrote:
| How about their qualifications for the posting? I'm not
| sure I'd want to appoint anyone to a judgeship who already
| knows how they'd pass judgement on a case that's not before
| them. Otherwise what's the point of a hearing or a trial?
| 1668911361 wrote:
| Nominees for the supreme court usually have already been
| judges and written legal opinions. A senator could say "I
| read the facts of [some past ruling], and I disagree with
| the ruling, and therefore doubt their competency to be on
| the supreme court."
|
| Additionally, supreme court nominees are not selected at
| random--it's no accident that conservative presidents
| nominate conservative justices and liberal presidents
| nominate liberal justices. Nominees are selected by the
| president because the president thinks they'll like the
| way the nominee would rule in the future.
|
| Qualified judges have a broad spectrum of opinions. When
| faced with the question, "should _this_ person have a
| lifetime supreme court appointment," I don't see how a
| senator could avoid considering how a nominee might rule
| in the future.
| Hasu wrote:
| An "independent supreme court" historically means
| "independent from the executive", as prior to the formation
| of the United States government under the constitution,
| judiciaries were part of the executive.
|
| It does not mean that Congress can't have political
| qualifications for justices, and in fact _George Washington_
| had a failed nomination because his nominee was politically
| unpopular.
| Natsu wrote:
| > I think the saddest thing is how lying under oath during a
| Senate confirmation hearing doesn't revoke the confirmation.
|
| Impeachment is a difficult process. Given that Trump survived
| (twice), I'm not sure this would work:
|
| https://www.axios.com/2024/06/14/scotus-supreme-court-claren...
|
| > [Kavanaugh] lied about it during his confirmation
|
| Kavanaugh said Roe was "entitled the respect under principles
| of stare decisis" and similar remarks. But that still leaves it
| in a category that can and has been overturned by past courts.
| Here are a few such examples where they overturned settled
| precedents entitled to deference under the principles of stare
| decisis: https://constitutioncenter.org/blog/a-short-list-of-
| overturn...
|
| Once you know that such rulings can and have been overturned
| before, you can see that he never once said anything at all
| like "I won't (or can't) overturn Roe" in his comments. You can
| find his comments in full here:
|
| https://www.factcheck.org/2022/05/what-gorsuch-kavanaugh-and...
|
| You can say that this makes his comments misleading to people
| who don't realize that stare decisis doesn't mean that SCOTUS
| can't or won't overturn a past ruling, but the fact that
| "everyone said he would" overturn Roe really cuts against that
| his statements actually mislead anyone.
| generalizations wrote:
| That site said he praised the decision. That's a far cry from
| lying under oath that he wouldn't repeal it. Is there anything
| more specific that he said?
| vlovich123 wrote:
| Well he previously had said it was a very wrong decision,
| then praised it to get confirmed & then pretty quickly
| overturned it. You'd have to squint really hard to see the
| testimony as honest.
| lolinder wrote:
| Since that site includes a very very small quote out of
| context, here's a link to the actual transcript of the hearing
| [0].
|
| > So I think the first thing that makes a good judge is
| independence, not being swayed by political or public pressure.
| That takes some backbone. That takes some judicial fortitude.
|
| > The great moments in American judicial history, the judges
| had backbone and independence. You think about _Youngstown
| Steel_. You think about, for example, _Brown v. Board of
| Education_ , where the Court came together and knew they were
| going to face political pressure and still enforced the promise
| of the Constitution.
|
| > You think about _United States v. Nixon_ , which I have
| identified as one of the greatest moments in American judicial
| history, where Chief Justice Burger, who had been appointed by
| President Nixon, brought the Court together in a unanimous
| decision to order President Nixon, in response to a criminal
| trial subpoena, to disclose information. Those great moments of
| independence and unanimity are important.
|
| [0]
| https://www.govinfo.gov/content/pkg/CHRG-115shrg32765/pdf/CH...
| Aunche wrote:
| Kavanaugh "lied" because in 1999, he criticized an aspect of
| the Nixon ruling but 19 years later, in a response to a
| softball question from a Republican senator, called it "one of
| the greatest moments in American judicial history", repeating
| what he wrote in 2016?
|
| [0]
| https://transcripts.cnn.com/show/cnr/date/2018-09-05/segment...
|
| [1]
| https://scholarship.law.edu/cgi/viewcontent.cgi?article=3383...
| jordanb wrote:
| "If the president does it, that makes it legal." -- Richard Nixon
| openasocket wrote:
| Frankly, this is terrifying. The decision gives complete criminal
| immunity from any "official acts" as President. It goes on to
| define that term so broadly as to include any conversation with
| Justice department officials. Under a plain reading, a President
| is more than welcome to instruct the Justice department to
| investigate or charge anyone, or to not investigate certain
| crimes, and that is completely permissible. Soliciting bribes to
| not prosecute is now fair game.
|
| I find it particularly concerning regarding the military. The
| President is Commander in Chief, and thus any orders he gives or
| attempts to give to the military would be undeniably official
| acts. This was even brought up in oral arguments, where it was
| asked of Trump's council "if the President ordered Seal Team 6 to
| assassinate a political rival, would that be considered an
| official act?" I find it absolutely terrifying that this
| possibility was brought up, and any mention of the military is
| conspicuously absent from the majority decision, even in passing
| (though Sotomayor explicitly brings it up in her dissent).
|
| The most concerning part is how this decision is being made
| entirely on constitutional grounds. At least in the case of Rowe
| v Wade being overturned, we have the possible remedy of Congress
| passing a law enshrining the right to an abortion. But here,
| there is no legislation Congress could pass to create criminal
| liability for the President, no executive action. The only option
| would be a constitutional amendment.
| ClarityJones wrote:
| > Under a plain reading, a President is more than welcome to
| instruct the Justice department to investigate or charge
| anyone, or to not investigate certain crimes, and that is
| completely permissible.
|
| I think we have fundamentally different views of the
| Executive's role. We have 3 branches of government, and the
| President is the guy who enforces the law. The Justice
| department is not a 4th branch of government.
| openasocket wrote:
| The Executive branch does have the authority to enforce laws,
| but that authority is not absolute. The President cannot go
| to the Justice department and say "hey, that guy who
| committed murder, don't prosecute him, because he promised to
| pay me a lot of money if I let him off". The President cannot
| go to the Justice department and say "stop investigating me
| and my political allies or I'll fire you". That second one is
| what led to Nixon having to resign.
|
| At least, that's what I think should be the case. The
| majority in this case disagree. They seem to think that any
| usage of the powers of President is free from any criminal
| liability.
| tacticalturtle wrote:
| > The President cannot go to the Justice department and say
| "stop investigating me and my political allies or I'll fire
| you". That second one is what led to Nixon having to
| resign.
|
| There's definitely nothing legally stopping the president
| from doing this. This was the Saturday Night Massacre.
|
| The only thing that can stop this is public perception and
| the threat of impeachment then removal by the Senate.
| mediumsmart wrote:
| totally agree, they need immunity for whatever the hell they are
| doing these days.
|
| _btw - this thread is hilarious, thank you thank you thank you_
| cdme wrote:
| It's remarkable the speed at which the court has discarded any
| semblance of legitimacy. Perhaps future administrations should
| simply ignore them and dare them to act.
| dawnerd wrote:
| And based on what the court ruled they probably legally could
| just ignore the court and congress.
| cdme wrote:
| The lifetime appointments clearly aren't working. They should
| draw from lower circuits on a per term or per case basis and
| discard the whole lot.
| chasd00 wrote:
| > Perhaps future administrations should simply ignore them and
| dare them to act.
|
| well.. be careful for what you wish for but i see your point.
| What's the supreme court going to do? Order your arrest by the
| FBI? Seems like the FBI would go tell them to pound sand.
| paulvnickerson wrote:
| That's nonsense. You should read the ruling [1]. The summary is
| very readable. For a president to ignore the court and "dare to
| act" is what dictatorships do, and millions of people die in
| those cases.
|
| [1] https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
| locococo wrote:
| I think a big problem here is that all existing laws and the
| system concerning presidents rests on one very important
| assumption. That the commander in chief is a decent, rational
| human being that carefully considers his actions and holds the
| interest of the United States and the Citizens in high regards.
|
| It all falls apart and gets too complicated to regulate when the
| assumption is that you can't trust the person in office.
| tines wrote:
| I don't think this is true. The constitution was designed with
| the idea of preventing a king from coming to power. The whole
| separation of powers thing presumes that an individual is bad,
| but groups are less bad.
| neogodless wrote:
| I kind of (OK totally) need a history lesson / refresher. How
| _was_ the Judicial Branch supposed to function?
|
| Because I don't believe it was supposed to be able to
| basically override the Legislative Branch. Just like the
| Executive Branch wasn't _supposed_ to have unchecked power as
| long as it 's "Official" business.
|
| How were the three Branches _intended_ to keep each of the
| other in check?
| mschuster91 wrote:
| By everyone doing their job and respecting the authority
| that the other branches had. Something like an executive
| outright ignoring court orders (e.g. Joe Arpaio [1]) is as
| unexpected as the legislative _refusing to pass laws_
| because it 's gridlocked due to malfeasance on the side of
| the Republicans. There's a reason why the Supreme Court
| ended up playing such an important rule: Congress hasn't
| done shit in _decades_ now, and the same goes for the
| States, the last Constitutional Amendment was passed in
| 1992 and the one before that in 1971. Something like the
| right to abortion should have been enshrined into a
| constitutional amendment loooong ago. EPA rules should have
| been set by law, not by executive order. The list goes on
| and on and on.
|
| And the last failsafe the founders intended was the
| populace. Officials found breaking the law or be otherwise
| unfit of office were supposed to be at the very least not
| reelected by the populace - and yet, Arpaio was reelected
| for 24 years in a row, Biden was elected (he was better
| than Trump, but that _doesn 't_ mean someone of his age
| should have been president!), and Trump will most likely be
| reelected. The voters share a huge part of the blame.
|
| [1] https://www.theguardian.com/us-news/2017/jul/31/joe-
| arpaio-c...
| sokoloff wrote:
| > Something like the right to abortion should have been
| enshrined into a constitutional amendment loooong ago.
|
| Indeed, and practically, probably initiated as part of
| the 95th or 96th Congress (under Carter), when the
| Democrats had substantial majorities in both houses and
| obviously the presidency.
|
| My feeling is that this was not done because doing it
| removes the threat/opportunity of it getting rolled back,
| and removing that threat/opportunity lessens the
| fundraising ability of both parties.
| notTooFarGone wrote:
| Everything a king does is an official act by definition.
|
| What do you think is something a president does? Is starting
| a war an official act? Or appointing your own supreme court?
| Persecuting insurrectionists?
|
| Who will judge this once the ball gets going? The judges now
| appointed by you?
| chrsig wrote:
| > Who will judge this once the ball gets going? The judges
| now appointed by you?
|
| This is what lifetime appointments were intended to
| address. There's no incentive to rule in the president's
| favor. Of course, now there's the prospect of gratuity for
| services rendered.
| friend_and_foe wrote:
| Congress, via impeachment.
|
| Look, the president can't do something like start a war
| without permission from congress. Congress basically
| delegated that authority to the president. If the president
| then uses it irresponsibly (as has happened numerous times
| since congress made this decision) then that's the fault of
| congress. They can very easily pass legislation requiring a
| declaration of war and take that power back if they want
| to.
| anderber wrote:
| But each party will protect their president, and you need
| a two-thirds to impeach. I just don't see the modern
| senate ever impeaching a President. We've seen today how
| far they will go to ignore reality and lie to make sure
| their leader doesn't suffer any consequences.
| ignoramous wrote:
| > _individual is bad, but groups are less bad_
|
| Bad groups tend to scape goat individuals until their next
| rodeo.
| mschuster91 wrote:
| > The constitution was designed with the idea of preventing a
| king from coming to power.
|
| And if the Republicans get their way with Project 2025, by
| all interpretations they'll create a King.
|
| > The whole separation of powers thing presumes that an
| individual is bad, but groups are less bad.
|
| It assumes at its core that even if individuals may pursue
| bad goals, that the larger society/organizations like parties
| or officials like the Electoral College will curtail their
| attempts.
|
| Unfortunately, neither of these assumptions held true when
| faced with a demagogue like Trump.
| AnimalMuppet wrote:
| > The whole separation of powers thing presumes that an
| individual is bad, but groups are less bad.
|
| No. Separation of powers comes down to "never give anybody
| power that someone else cannot block". That "someone else"
| needs to be independent, too - that's the "separation" part.
| tines wrote:
| > Separation of powers comes down to "never give anybody
| power that someone else cannot block". That "someone else"
| needs to be independent, too - that's the "separation"
| part.
|
| That's what I said, in different words.
| oceanplexian wrote:
| > I think a big problem here is that all existing laws and the
| system concerning presidents rests on one very important
| assumption. That the commander in chief is a decent, rational
| human being that carefully considers his actions and holds the
| interest of the United States and the Citizens in high regards.
|
| No, that's not what the existing laws or system rests on.
|
| The system rests on the fact that the Commander in Chief is an
| elected representative, and therefore their actions represent
| the will of the people. Washington Post might not think he is
| rational. A random Judge might not think he is rational. You
| might not personally think he is rational. What is "rational"
| is determined at the ballot box, or via the impeachment process
| in the legislature.
| creer wrote:
| > White House spokesman: "As President Biden has said, nobody is
| above the law."
|
| Well yes. And since the Supreme Court just clarified the law...
| Isn't THIS White House the first that might use what was until
| now a misunderstanding?
| JumpCrisscross wrote:
| Article III of the U.S. Constitution is incredibly brief [1].
|
| I propose the Supreme Court be reconstituted such that for each
| case a panel of judges from the appellate courts is chosen by
| lot. They hear that case, write their opinion, and then go back
| to that work. New case, new lot.
|
| Having a permanent bench of judicial oligarchs made sense before
| telecommunication. It doesn't anymore. Every ancient democracy
| used randomness to control corruption. I think it's time we took
| a lesson from them.
|
| (Note: this could be done by statute. How the supreme Court is
| constituted is entirely left to Congress.)
|
| [1] https://constitution.congress.gov/constitution/article-3/
| bloopernova wrote:
| Prediction: trump wins presidency. Midterms swing hard towards
| Dems. Next president's Congress reforms supreme court.
| lotsofpulp wrote:
| How would a president reform the judicial branch? That power
| is in the legislature's hand.
| mullingitover wrote:
| After today? Easy: the entire court is loaded into a black
| helicopter in the middle of the night and never seen again.
| The White House spokesperson says, winking, "The White
| House _officially_ has no comment."
|
| This quickly becomes a standard ritual at the changing of
| each administration, and an accepted job hazard for
| incoming justices.
| sergiogjr wrote:
| Oh, look, the moment decisions don't go the way I agree
| with, we throw democracy and institutions out of the
| window. Who's a "threat to democracy" now?
|
| Good on you!
| mullingitover wrote:
| Not a window, a _helicopter_.
|
| I'm not saying it should be done, but that's the
| _reductio ad absurdium_ this decision leaves us with. The
| aspiring despot's toolbox has been converted into a full-
| blown machine shop.
| the_lonely_road wrote:
| When did the discourse become so childish? Official acts
| is pretty clear and all of the fascination with the new
| standard will be derived from the gray area where
| reasonable adults disagree but the president can't just
| order a bombing run on Toronto or murder political
| opponents now anymore then he could last week.
| karmajunkie wrote:
| i think the thrust of the courts opinion today is that
| it's not at all clear what's official and what's not and
| even if you can delineate what's official, prosecutors
| are unable to use anything that isn't public record and
| "unofficial" in their case, which eviscerates any real
| ability to enforce accountability.
| hughesjj wrote:
| In the dissent, they call out that what Nixon did
| wouldn't have been prosecutable under this
| interpretation.
|
| If you can't enter private comms into evidence, all a
| president need do is privately communicate the
| disappearance of someone, domestic or foreign, and that
| evidence would be barred from any possible court cases.
|
| Of course, you could still impeach, but no _criminal_
| prosecution could occur. If you 're 35, at worst
| (legally) you'd lose out on your remaining term.
|
| The implications of this ruling are absurd, and rife for
| abuse, should one decide to go rouge.
| everforward wrote:
| I read the ruling, and my takeaway is that either a)
| "official acts" is so overly broad that virtually any
| action could be done as an "official act", or b)
| "official acts" is very, very unclear.
|
| E.g. from the court's opinion:
|
| > Whenever the President and Vice President discuss their
| official re- sponsibilities, they engage in official
| conduct.
|
| It's not a huge leap to infer that the President, as
| Commander in Chief, is engaging in official conduct any
| time they ask the army (or its many contractors) to do
| something.
|
| The only thing the Constitution says is:
|
| > The President shall be Commander in Chief of the Army
| and Navy of the United States, and of the Militia of the
| several States, when called into the actual Service of
| the United States
|
| There's nothing in there that says they can't be used
| domestically, or for what purposes the President can
| control them. There could be some quibbling about what
| "actual Service" means, but I suspect it becomes
| recursive to "whatever the president says actual Service
| is".
|
| The specific reason that everyone is freaking out is this
| part of the opinion:
|
| > 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 ju- dicial
| examination on the mere allegation of improper purpose.
|
| I.e. the president's motive is unquestionable, the only
| question is whether the action was taken via some power
| granted to the President. If it is, the President has
| immunity, and the president has _very_ broad powers.
| WillPostForFood wrote:
| _Whenever the President and Vice President discuss their
| official re- sponsibilities, they engage in official
| conduct._
|
| This is a misleading partial quotation. In the context of
| what they were saying, the president has the presumption
| of immunity, but it is not guaranteed. They specifically
| remanded the issue of Trump trying to get Pence to break
| the law to the lower courts to decide whether there was
| immunity. They did not say there was blanket immunity.
|
| _The question then becomes whether that presumption of
| immunity is rebutted under the circumstances. It is the
| Government's burden to rebut the presumption of immunity.
| The Court therefore remands to the District Court to
| assess in the first instance whether a prosecution
| involving Trump's alleged attempts to influence the Vice
| President's oversight of the certification proceeding
| would pose any dangers of in- trusion on the authority
| and functions of the Executive Branch._
| enragedcacti wrote:
| > Official acts is pretty clear
|
| "Distinguishing the President's official actions from his
| unofficial ones can be difficult."
|
| -SCOTUS
| bloopernova wrote:
| D'oh! I meant during the next president's term, a friendly
| Congress does it.
| SubiculumCode wrote:
| What the other guy said, but also there's court packing.
| lotsofpulp wrote:
| They have to be confirmed by the legislature.
| aklemm wrote:
| You think Dems will win elections and get seated if Trump has
| another term?
| docmars wrote:
| I think with as many Dems that are losing faith in their
| party and seeing the bigger picture by moving to Trump, I
| doubt they would this time around.
| hughesjj wrote:
| I'm unaware of any disaffected democrats moving to Trump.
| At most, they're not voting or voting third party.
|
| I'm sure that's there's a handful, but it's not what I'd
| consider even a miniscule population doing so.
| BadHumans wrote:
| Prediction: Trump wins presidency and there are no more fair
| elections.
| austin-cheney wrote:
| If Trump wins he will be term limited by constitution
| irrespective of any election that comes after.
| laidoffamazon wrote:
| I think you're overestimating the impact that will have
| on whatever he would decide to do, given the events of
| today.
| austin-cheney wrote:
| The only official act that could, in theory, bypass this
| is a declaration of Martial Law that moves out the next
| inauguration. This has not been tested and likely
| wouldn't work.
|
| Just because a crazy mob attacked congress at the behest
| of Trump does not mean official institutions would do so
| even if so ordered.
| laidoffamazon wrote:
| Him and his supporters have said openly that they want to
| refill the institutions, including the military [0], with
| politically aligned appointees.
|
| [0] https://www.foxnews.com/media/trump-vows-fire-
| generals-push-...
| dbspin wrote:
| This seems remarkably naive. Who imposes such
| constitutional limits?
| austin-cheney wrote:
| They are imposed by the constitution and enforced by all
| bodies that descend from the constitution.
| BadHumans wrote:
| And if those bodies choose not to enforce it?
| austin-cheney wrote:
| What ifs... The death spiral of non sequiturs.
|
| https://en.m.wikipedia.org/w/index.php?title=Formal_falla
| cy&...
| BadHumans wrote:
| I don't think it's an unreasonable question to ask in
| this case as there is a very real chance it happens.
| hughesjj wrote:
| Trump and his ilk absolutely do not care about the
| constitution. There's a good chance democracy will be
| over in the US if he gets re-elected.
| austin-cheney wrote:
| Agreed, but every one else does.
| tootie wrote:
| Read up on Project 2025 if you haven't already. The plan
| is to stack the executive with party loyalists. And he
| would have immunity. Rules and laws only exist in as much
| as people believe in them and enforce them. That could
| all just stop.
| sangnoir wrote:
| Chief Justice Brett Kavanaugh writing for the 10/3
| majority on June 30, 2028 "Well, ack-tually, the framers
| did not place term limits and congress has unduly
| restricted his constitutionally protected right to
| participate in our democracy. The candidate should be on
| the November ballot (or otherwise selectable by electoral
| college electors) in all 50 states"
| mullingitover wrote:
| This, plus the opinions should not be signed, and dissenting
| opinions should not be published at all.
|
| The current system seems like it's designed to aggravate
| politics in the very branch that's intended to be beyond them.
| claytongulick wrote:
| Dissenting opinions are a crucial part of the process.
| They're frequently cited by lower courts and in future
| supreme court cases.
|
| The supremes don't always get it right. Dissenting opinions
| are the mechanism for expressing that reality.
| tdb7893 wrote:
| As with all reforms in the US it's not gonna happen as the
| party that benefits will block it. Same with implementing
| ranked choice, outlawing gerrymandering, campaign finance
| reform, etc.
|
| Systems always work to justify and perpetuate themselves. It's
| part of why our jobs can be such BS sometimes.
| JumpCrisscross wrote:
| > _it 's not gonna happen as the party that benefits will
| block it_
|
| The right and left are both railing against our justice
| system. At different levels. For different reasons. But
| that's political capital on the floor.
|
| > _Same with implementing ranked choice_
|
| We have multiple jurisdictions with RCV [1]. Your purported
| impossibility has happened.
|
| > _Systems always work to justify and perpetuate themselves_
|
| We have reformed our courts before in pursuit of seeking to
| perpetuate our American form of government. This is no
| different. Amending governments to make them more fit is not
| inherently in conflict with institutional prerogatives.
|
| [1] https://en.m.wikipedia.org/wiki/Ranked-
| choice_voting_in_the_...
| theptip wrote:
| > The right and left are both railing against our justice
| system.
|
| True insofar as it goes... but this elides the detail that
| the right just won a generational battle for the Supreme
| Court. There is zero chance that any Republicans back
| reform here.
|
| Even the minimum viable reform to enact term limits after
| this lot dies off is dead on arrival.
| JumpCrisscross wrote:
| > _this elides the detail that the right just won a
| generational battle for the Supreme Court_
|
| Sure. Until recently, they were losing. De-politicising
| the courts could be electorally advantageous for both
| sides.
|
| > _the minimum viable reform to enact term limits after
| this lot dies off is dead on arrival_
|
| Because that's obviously partisan. There are more
| Republican-appointed judges. Term limiting them obviously
| favours one side in a way drawing from appellate judges
| by lot does not. (The Fifth and Ninth are regarded as
| crazy by half the country.)
| brendoelfrendo wrote:
| > Sure. Until recently, they were losing. De-politicising
| the courts could be electorally advantageous for both
| sides.
|
| I think you overestimate how much the political apparatus
| cares about the long-term. It's hard not to agree that
| de-politicized courts are good, more or less, for
| everyone. But the right-wing won a _generational_ battle
| for the Supreme Court. There is no incentive for any
| right-wing politician currently alive to propose that
| kind of change today; if anything, the political machine
| would call them out for proposing that their party loosen
| its grip on the reins.
|
| We'll see how the right-wing feels after this next
| election. It's not a secret that whoever wins in 2024
| will likely get to appoint several new justices, though
| the court as a whole will almost certainly remain right-
| leaning. If that control does start to erode, though,
| expect to hear much discussion about making the de-
| politicization of the courts a priority.
| rayiner wrote:
| Are we going to overturn all the lawless "emanations from
| penumbras" from the period when the left dominated the
| Supreme Court? If not, it would be political malpractice,
| and an abdication of their duty to their voters, for
| anyone on the right not to fight Supreme Court reform
| tooth and nail.
| Ancapistani wrote:
| > the right just won a generational battle for the
| Supreme Court
|
| From someone most Democrats would consider "on the right"
| - it's more complicated than that, of course - you're
| right.
|
| The right had _lost_ that battle for generations, though.
| I don't recall any serious efforts to reorganize the
| judiciary as a result of that.
|
| The "Hawaii judge" has been a running meme on the right
| for _years_. Pretty much everything Trump tried to do
| that was even a little bit controversial was fought in
| the courts, and the left tended to practice "judge
| shopping" to place the cases in Hawaii's district. The
| Ninth Circuit has been known as the "Ninth Circus" for as
| long as I can recall.
|
| Of course, the right also practices judge shopping. It's
| just part of how things are set up today. The difference
| in this discussion is that we're now talking about
| changing the system itself because the left feels like
| they lost.
|
| > Even the minimum viable reform to enact term limits
| after this lot dies off is dead on arrival.
|
| I wouldn't be opposed to reform of some kind, but keeping
| the current nomination process and enacting term limits
| doesn't seem viable. The problem here is that Justices
| are nominated by the President. As long as that's the
| case, all term limits will do is make the judiciary less
| consistent. The biggest impact of changing the makeup of
| the Supreme Court more often would be to have precedent
| overturned more frequently.
|
| It could be argued that the entire point of the way
| things are set up is so that the three branches won't be
| controlled by the same zeitgeist at the same time.
| Presidents get four to eight years. Congress can serve as
| long as they're re-elected, in two or six year terms.
| SCOTUS serves lifetime terms.
|
| The fact that the branches are at odds isn't a bug; it's
| a feature.
| tdb7893 wrote:
| The first point I feel like reinforces my point more than
| disproves it. Both sides clearly see the issues but won't
| actually reform while they benefit.
|
| Ranked choice also has only been implemented in a few cases
| and generally by a ballot initiative (getting around the
| party structures somewhat).
|
| To be fair systems do change but in general they use their
| power to resist it tooth and nail until change is
| inevitable and they collapse.
| Der_Einzige wrote:
| For RCV, it is small localities no one cares about, and
| yes, that does include Alaska.
| claytongulick wrote:
| The lifetime appointment of Supreme Court justices is done
| specifically so that they aren't financially influenced by
| politics and party.
|
| I.e. their job doesn't depend on them ruling the "right" way.
|
| There are pros and cons to different approaches. There are
| differences at the state level for judges, being appointed vs
| elected. Each has problems. In TX, for example, judges are
| heavily influenced by mob mentality - they're afraid to
| practice sentencing restraint because next election their rival
| will run ads saying they love murderers/rapists/whatever
| because they let someone off lightly in extraordinary
| circumstances.
| woooooo wrote:
| That all sounds great in theory but.. _waves hands at
| Clarence Thomas_
| Ancapistani wrote:
| Approximately half the country loves Thomas, and agrees
| with him. The fact that the perspective of each member of
| the Court is effectively frozen in time when they are
| appointed is intentional.
| woooooo wrote:
| He's taken a suspicious quantity of "gifts", you can look
| it up.
| Ancapistani wrote:
| My apologies, but I decline to argue this point. Whether
| Thomas (or any other Justice) is a good person or correct
| in their rulings isn't germane to the point I'm making.
|
| Of all the currently-service Justices, the only one who
| has deviated from the perspective of the President who
| appointed them would probably be Roberts - and that
| statement is mostly based on a single ruling. It's not
| like he's well-loved by the left.
| woooooo wrote:
| I was responding to a comment saying that lifetime
| appointments prevent bribery. Justice Thomas is proving
| the theory wrong.
|
| Why should I believe his decisions are about principle
| when money is changing hands?
| Ancapistani wrote:
| Ah, I agree with you there. I see no way lifetime
| appointments change the incentives around bribery.
|
| That sounds like an impeachment issue to me.
| brendoelfrendo wrote:
| So, Thomas's perspective comes from an era when bribery
| and collusion with monied interests were accepted and
| normal?
|
| The recent controversy around Thomas's behavior did not
| spring up because his opinions on governance date back to
| his appointment, but because--to the outside observer--it
| looks like he is perfectly comfortable with selling his
| opinion to the highest bidder. Lifetime appointments are
| supposed to keep judges aloof from external influences,
| but it seems like that logic failed in this case.
| hughesjj wrote:
| I don't know where you get 'half the country loves/agrees
| with him', other than the (incorrect) assumption that the
| population of the country is divided 50/50 along party
| lines (no Republican president has won the popular vote
| since 2004, and only once since 1992)
|
| Clarence Thomas is notably the least loved justice in a
| historically hated court
|
| https://thehill.com/homenews/4019788-poll-thomas-has-
| highest...
| Ancapistani wrote:
| That's why I said "approximately".
|
| I'd say Thomas is to the right about what Ginsberg was to
| the left - the favorite of the core of their respective
| parties.
| rayiner wrote:
| What is the "popular vote?" You mean adding up the state-
| by-state votes which is a number nobody is trying to win?
|
| And if we are talking about numbers that don't matter,
| republicans won the Congressional popular vote four of
| the last seven times (by three million votes in 2022) and
| are on pace to in it again.
|
| You can also look at the generic congressional ballot
| polling, where republicans regularly are ahead.
| Buttons840 wrote:
| Indeed. It's already the case Clarence Thomas's way of life
| may depend on whether or not he rules the way certain
| friends and acquaintances want.
|
| His _job_ is safe, but much of his _salary_ --no, not quite
| the right word--much of his _overall reward_ is dependent
| on what powerful friends want him to do.
|
| Ultimately, people don't care about keeping their _job_
| --who the hell likes their _job_?--people want to keep
| their _compensation_ , and for the US Supreme Court, their
| _compensation_ can easily be controlled by powerful third
| parties.
| tacticalturtle wrote:
| Federal justices still have lifetime appointments - and what
| the OP is describing wouldn't change that.
| rayiner wrote:
| I'd be okay with that, but only if we have a review process
| where all Warren Court decisions are re-vetted by the newly
| constituted Supreme Court. You can't spend half the 20th
| century having "judicial oligarchs" rewrite the constitution
| and then complain when a few court decisions go the other way.
|
| But what would be more fun is for the current Supreme Court to
| adopt the "emanations from penumbras" philosophy of judging,
| and do that for a couple of decades.
| selimthegrim wrote:
| Why stop there? Why not go back to Lochner?
| HaZeust wrote:
| Lochner made it impossible for the legal pragmatic of our
| country's ontology to recognize corporations and
| enterprises as autonomous entities that should have checks
| and balances for - and against - themselves AND other
| entities of the government, just as much as citizens do.
|
| With how things shaped up, the innate de jure power
| struggle should have been "The People <> Legislative <>
| Judicial <> Executive <> Corporations"
|
| We're still paying the price, as the Lochner era was
| incredibly myopic.
| rayiner wrote:
| That's what I suggested:
|
| > But what would be more fun is for the current Supreme
| Court to adopt the "emanations from penumbras" philosophy
| of judging, and do that for a couple of decades.
|
| Let's see what "emanations from penumbras" we can find in
| the contract clause, second amendment, tenth amendment,
| etc. If only conservatives had the sense to use _Roe_ as a
| template for how to judging should work.
| tacticalturtle wrote:
| This is the best reform idea I've heard. Has it been mentioned
| elsewhere?
|
| There is a reference in the Constitution in the impeachment
| clause to the "Chief Justice" - which maybe implies justices
| with some sort of tenure, but I suppose that could be filled
| randomly as well, much like a jury foreman.
| JumpCrisscross wrote:
| > _Has it been mentioned elsewhere?_
|
| Not that I can find. (It's already been flagged off the
| thread, granted.)
|
| > _a reference in the Constitution in the impeachment clause
| to the "Chief Justice"_
|
| Ministerial. The most-senior jurist on the appellate court.
| beaeglebeachedd wrote:
| This is sortition. I would apply it liberally and use it for
| most legislative offices. Elections and appointments tend to
| bring out the worst of society -- the kind who actually want
| power over peoples' lives.
| garaetjjte wrote:
| Who decides what cases are heard in this scheme?
| JumpCrisscross wrote:
| > _Who decides what cases are heard in this scheme?_
|
| Good question. Perhaps a separate bench chosen once per
| session? Have the other circuits vote on it?
| godelski wrote:
| > Article III of the U.S. Constitution is incredibly brief [1].
|
| So is the constitution. But I think what also matters a lot is
| things like the Federalist papers. Where these aren't explicit
| laws but are the motivations and philosophy behind them. Ruling
| by the letter of the law will always be tyrannical because no
| thing is perfect.
|
| Federalist 78[0]
|
| > The interpretation of the laws is the proper and peculiar
| province of the courts. A constitution is, in fact, and must be
| regarded by the judges, as a fundamental law. It therefore
| belongs to them to ascertain its meaning, as well as the
| meaning of any particular act proceeding from the legislative
| body. If there should happen to be an irreconcilable variance
| between the two, that which has the superior obligation and
| validity ought, of course, to be preferred; or, in other words,
| the Constitution ought to be preferred to the statute, the
| intention of the people to the intention of their agents.
|
| It's also worth mentioning here that this same document
| specifies that the judicial branch and executive branch are to
| remain distinct. That all the judicial branch can do is issue
| judgement, but are not capable of executing such judgement. I
| mention this because there is another question that arises if
| the one in charge of the executive branch is judged to have
| committed a crime by the judicial branch. But of course, this
| is back to the point that there are no global optima. There is
| no free lunch.
|
| [0] https://avalon.law.yale.edu/18th_century/fed78.asp
| rayiner wrote:
| Why do you keep using the word "corruption?" This is an
| incredibly milquetoast opinion that says presidents retain
| immunity for some official acts while in office. Because that's
| obviously true. When Trump wins again, he can't prosecute Biden
| for deaths caused by Biden's border policies. Because
| obviously. It's shameful that it wasn't 9-0.
| electrondood wrote:
| In software development, one of the biggest smells is being
| asked to implement a solution to something that isn't a
| problem that anyone actually has.
|
| In 250 years, for 44 presidents, not one of them has needed
| immunity from criminal prosecution.
|
| All this does is shield the man who attempted to use violence
| and a conspiracy to commit election fraud with a fake slate
| of electors to reverse the result of a legitimate decision.
|
| To call this milquetoast is to continue the gaslighting. This
| decision has permanently altered the American Experiment.
| JumpCrisscross wrote:
| > _Why do you keep using the word "corruption?"_
|
| I used it once. Because that's why ancient democracies used
| selection by lot. My criticism isn't of this ruling _per se_
| , but of the institution, which has swung from a stabilising
| branch of government to a constant source of chaos.
| sterlind wrote:
| _> 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.
| friend_and_foe wrote:
| 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.
| gazook89 wrote:
| Impeachment is a political process to remove someone from
| office, it doesn't send you to prison.
| jcranmer wrote:
| 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.
| tines wrote:
| What about after he has left office?
| science4sail wrote:
| What if he/she assassinates the impeachers as an "official
| act"? That might be an example of Godel's Loophole.
|
| https://en.wikipedia.org/wiki/G%C3%B6del%27s_Loophole
| Karupan wrote:
| 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.
| ..
| tdb7893 wrote:
| 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.
| joshuaheard wrote:
| Assassinating a political rival is not an official act.
| tines wrote:
| 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.
| joshuaheard wrote:
| Where in the Enumerated Powers of the Constitution does it
| give the the President the power to kill political
| opponents?
| tines wrote:
| 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.
| moreofthis wrote:
| 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.
| threeseed wrote:
| 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.
| enraged_camel wrote:
| 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_.
| thallium205 wrote:
| Says who? A court.
| tines wrote:
| 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.
| avmich wrote:
| 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.
| Spooky23 wrote:
| 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:
| avmich wrote:
| That's unfortunately the practical problem and the
| reality of the situation. In other words, I agree.
| unethical_ban wrote:
| 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.
| lunarboy wrote:
| 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.
| camgunz wrote:
| 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.
| Red_Leaves_Flyy wrote:
| 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.
| adventured wrote:
| > 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.
| Red_Leaves_Flyy wrote:
| 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.
| adventured wrote:
| > 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.
| camgunz wrote:
| 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.
| stefan_ wrote:
| I guess we can call it _bold_ when you claim to have a better
| understanding of the decision than a dissenting justice.
| 1123581321 wrote:
| Claiming to have the same understanding as the majority of
| justices seems safe, though, if that's how you decide what
| opinions to hold.
| brayhite wrote:
| 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.
| 1123581321 wrote:
| 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.
| stefan_ wrote:
| 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.)
| 1123581321 wrote:
| I read it this morning. Which part would you have quoted?
| I picked that part because it seemed like the clearest
| summary.
| amadeuspagel wrote:
| I guess we can call it _bold_ when you claim to have a
| better understanding of the decision than the justices who
| wrote it.
| neogodless wrote:
| 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.
| treeFall wrote:
| Obama assassinated an American citizen without this
| "official act" ruling, and nobody did shit. So you're only
| now just worried about it?
| ImJamal wrote:
| Obama killed multiple American citizens, not just one.
| neogodless wrote:
| Which political rival of Obama's are you referring to?
| treeFall wrote:
| So you're only worried about rich and influential people
| being killed, not the rest of us lowly American plebs?
| dzhiurgis wrote:
| Not worried. Happy. Biden can now do anything to Trump
| with immunity. Trump is DONE.
| tines wrote:
| I don't agree with the outcome, but at least the motive
| mattered there. The target was ostensibly leading a
| military operation against the US or something. Motive
| doesn't matter any more.
|
| EDIT: And yes, what Obama did was illegal and he should
| have been impeached and prosecuted for that.
| dgfitz wrote:
| Of course people only care about "their" party. It is
| everything about what is broken in the US.
|
| It blows my fucking mind that the left is about to
| nominate the only qualified person, of many qualified
| people, that can lose to trump. We saw this movie in 2016
| with clinton.
|
| How does this happen?
| AnimalMuppet wrote:
| Well, he actually beat Trump, which Hillary failed to do.
| But I agree - other than nominating Hillary, there was
| probably nobody else who could lose to Trump.
|
| But it's equally stupid on the other side. Trump is
| probably the only Republican candidate who could lose to
| Biden, either.
|
| How did we get this way? Not much of a real primary on
| either side. Trump as the leading candidate refused to
| debate anybody else, and the Republican Party refused to
| block his nomination purely on that ground. Trump's
| daughter-in-law is also the chair of the Republican
| Party.
|
| On the Democratic side, nobody real challenged Biden
| because he's the incumbent, despite his horrible approval
| ratings.
|
| The US election dynamics produce a two-party system.
| Every so often, one of the major parties implodes, and a
| new party takes its place. Both parties are making a good
| case for it...
| dgfitz wrote:
| Sure is a giant disaster at the moment. I saw a "2020
| comet" bumper sticker today, almost seems like a good
| idea.
|
| IANAL: in no way shape or form am I encouraging
| destruction.
| nielsbot wrote:
| You're implying the parent poster isn't concerned about
| the illegal Obama drone killing. Which is making this
| about teams when there are none.
|
| For myself, I personally think it crossed a dangerous
| line when Obama killed that citizen without a trial. I
| also think this SCOTUS is corrupt and this ruling is
| dangerous.
| treeFall wrote:
| >a dangerous line
|
| That's the same lukewarm sentiment that he's always
| received. It was an impeachable, criminal act.
|
| My point is that he got away with it anyways, even
| without this "official act" clarification. Which just
| goes to show you that people whipping themselves into a
| frenzy about this have not been paying attention. They're
| using the most extreme language ("Seal Team 6
| assassinations!!!") to describe some hypothetical that
| has already occurred without this ruling. It's silly.
| Spooky23 wrote:
| There's a difference between an American citizen
| combatant aiding the enemy abroad, and say an
| uncooperative Vice President refusing to participate in a
| coup.
| Miner49er wrote:
| 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.
| davidw wrote:
| You just have to drum up some flimsy excuse that sounds
| official, I guess.
| spamizbad wrote:
| What if the president deems it necessary out of national
| security interests?
| Spooky23 wrote:
| 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."
| hn_throwaway_99 wrote:
| 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".
| thallium205 wrote:
| Judges and prosecutors also enjoy absolute immunity in their
| official capacities.
| dgfitz wrote:
| Fact.
| avmich wrote:
| 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.
| adventured wrote:
| 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.
| _trampeltier wrote:
| Since last week, bribery is legal anyway.
|
| https://www.latimes.com/world-nation/story/2024-06-26/suprem...
| Natsu wrote:
| 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. SS201(b). By
| contrast, if a federal official accepts a prohibited
| gratuity, federal gratuities law sets a 2-year maximum prison
| sentence. See SS201(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 SS666.
|
| 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 SS666 applies to the gift-givers as well
| as the state and local officials accepting the gifts.
| Specifically, SS666(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
| waciki wrote:
| > 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."
|
| 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
| Spooky23 wrote:
| This isn't conservatism. It's despotism.
|
| We're probably a decade away from a coup.
| failuser wrote:
| Decade? You are optimistic.
| demosthanos wrote:
| 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
| ChicagoDave wrote:
| This is all because very wealthy and powerful people see a future
| American demographic that doesn't support their interests and
| they want an alternate government that can't stop them.
|
| The problem is what will democratic presidents do with this
| fundamental alteration of the three "equal" branches that now
| leaves Congress as the weakest link.
|
| What will republican presidents do?
|
| And of course, what would Trump do?
|
| I think front and center is Stephen Miller's desire to reverse
| that future demographic by either incarcerating or deporting
| anyone that isn't white or even sympathetic to a white
| nationalist movement.
|
| This is real people. And very frightening.
| chasing wrote:
| Lifetime appointments for Supreme Court Justices is fucking
| absurd.
|
| My out-of-my-ass fix is that each Justice is on an 18-year term.
| Every two years one Justice is replaced. Two per Presidential
| term.
|
| Makes it legitimately fair. Elect a President, get two Justices.
| None of this "one corrupt game-show host accidentally gets to
| appoint half the Court" horseshit.
| lunarboy wrote:
| Surely the "impeachment exists" arguments are in bad faith.
| Otherwise, I'm convinced they've abandoned reason.
|
| Impeachment process takes time, and in that window, the president
| can do whatever. POTUS can even mobilize the army (an official
| power) to block congress from meeting, since apparently the
| motive behind the use of official power doesn't matter. If they
| can't meet, how are they going to impeach.
| chasing wrote:
| Of course they're in bad faith. The whole idea is to punt
| accountability off to something else endlessly. "We can't do X
| because Y already exists to handle that." Later: "We can't do Y
| because we already have Z." And thus: "X is the proper way to
| handle that, not Z."
| ImJamal wrote:
| If a president is illegally mobilizing an army I'm not sure how
| this ruling would change anything? Do you think congress would
| be slower than courts to work this out? If a president was
| stopping congress from meeting then they could stop courts from
| meeting as well. Or he could just ignore the courts if it had
| really gotten that bad...
| paulvnickerson wrote:
| So many people reacting irrationally and misunderstanding what
| the ruling says. The first few pages are very readable, and I
| encourage all to read [1]
|
| - Actions within the President's conclusive and preclusive
| constitutional authority: Absolute immunity, in accordance with
| constitutional separation of powers.
|
| - Other actions done within an official capacity: Presumptive
| (though not full) immunity, to "to safe-guard the independence
| and effective functioning of the Executive Branch, and to enable
| the President to carry out his constitutional duties without
| undue caution."
|
| - Unofficial actions: No immunity.
|
| Who is the arbiter of whether an action is official or
| unofficial? The courts, according to the ruling: "The Court
| accordingly remands to the District Court to determine in the
| first instance whether Trump's conduct in this area qualifies as
| official or unofficial." In this case, a very liberal judge
| appointed by Obama.
|
| One may disagree with the ruling, but it does not, as Sotomayor
| (who recently has been making more public and political
| appearances than is appropriate for someone of her position [2])
| states, give the president the ability to drone strike his
| political opponent.
|
| [1] https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
|
| [2] https://www.cnn.com/2024/05/24/politics/sotomayor-crying-
| sup...
| munchler wrote:
| The president already has official authority to drone strike
| terrorists. All he has to do now is make an official
| determination that his political opponents are terrorists.
| demosthanos wrote:
| Yeah, we should definitely fix the fact that the President
| can order hits on US citizens. That's a pretty obvious
| problem regardless of whether they can technically be
| prosecuted for it, and doesn't really change the merits of
| the question at hand.
|
| All this case says is we shouldn't leave a President's legal
| culpability for any given action up to prosecutorial
| discretion. If they're using their official powers they're
| not culpable, if they're acting outside the bounds of their
| powers they _should_ be prosecuted.
|
| The actual problem is that the President has too much power,
| not that the next administration should have the right to
| prosecute them for exercising it.
| munchler wrote:
| > If they're using their official powers they're not
| culpable
|
| So the President's job is to faithfully execute the law,
| but he is allowed to break the law while he's executing the
| law? C'mon.
| tines wrote:
| The other problem is that we have no idea what "official
| acts" are.
| godelski wrote:
| Federalist 51 > The interest of the man must be
| connected with the constitutional rights of the place. It may be
| a reflection on human nature, that such devices should be
| necessary to control the abuses of government. But what is
| government itself, but the greatest of all reflections on human
| nature? If men were angels, no government would be necessary. If
| angels were to govern men, neither external nor internal controls
| on government would be necessary. In framing a government which
| is to be administered by men over men, the great difficulty lies
| in this: you must first enable the government to control the
| governed; and in the next place oblige it to control itself.
| > A dependence on the people is, no doubt, the primary control on
| the government; but experience has taught mankind the necessity
| of auxiliary precautions. This policy of supplying, by opposite
| and rival interests, the defect of better motives, might be
| traced through the whole system of human affairs, private as well
| as public. ... But it is not possible to give to each department
| an equal power of self-defense. ...The remedy for this
| inconveniency is to divide the legislature into different
| branches; and to render them, by different modes of election and
| different principles of action, as little connected with each
| other as the nature of their common functions and their common
| dependence on the society will admit. It may even be necessary to
| guard against dangerous encroachments by still further
| precautions. As the weight of the legislative authority requires
| that it should be thus divided, the weakness of the executive may
| require, on the other hand, that it should be fortified.
|
| This right here is talking about why there is the separation of
| powers. This is the reason judges are supposed to be without
| party. But we all know that this is a facade. But of course it
| is, when we see how these judges are appointed. How could it be
| any other way? The recognition here is that there are no perfect
| solutions as to optimize towards one thing results in a worse
| outcome (see the other parts of the writing).
|
| I think not enough people have read the Federalist papers. They
| are an important context to why the US was founded and what
| problems it was trying to solve. Littered throughout them are
| discussions of how power creeps and how functions couple. How
| government can do great good but at the same time great harm.
| They reiterate the notion that liberty is hard work and many of
| the writers fear things like parties as they are not only
| concentrations of power but umbrellas to remove thinking. You can
| see them wrestle with ideas and that they know they aren't
| getting them right, but instead try to set a framework that can
| course correct to adapt to the unknown unknowns.
|
| But however you read them, I think you can and will read that
| such a conclusion is precisely the thing they were trying to
| stop. There is no ambiguity in this. They were fighting against
| monarchs who have written into the law that they are above the
| law. At least as it pertains to others. And so that's what that
| phrase means "no one is above the law" that not so literally
| (because making a law that makes special cases for you would not
| technically make you "above" the law, but part of it), but rather
| that the laws apply equally to all peoples and entities. That
| there are no special cases because there are no "to big to fail"
| and "too important to prosecute". Because the belief is that if
| it is wrong for one man to commit an act, then it is wrong for
| any man to commit such an act.
|
| [0] Federalist 51:
| https://avalon.law.yale.edu/18th_century/fed51.asp
| PHGamer wrote:
| going after him with j6 is stupid. it was a protest that got out
| of hand. it didnt have to go this far to the supreme court if
| they didnt over play their hand.
|
| granted at this point it probably helps biden and his son this
| ruling as well as the Ukrainian stuff was also sketch in the
| beginning.
| vadiml wrote:
| Biden need to sign executive order to jail all judges voted for
| this verdict for high treason of not protecting US constitution.
| And he will be immune thanks to them.
| Rapzid wrote:
| This is certainly the sort of decision I'll have to read for
| myself. While I certainly share the concerns, the hyperbole is
| peak right now and everything is emotional and overly
| editorialized.
| FpUser wrote:
| Congrats. SCOTU have just promoted president to dictator. Now
| wait for Putin to come.
| SubiculumCode wrote:
| People mistake the Constitution as the fabric that holds our
| Republic together. Sure the articles stipulations set a
| framework, but it's built primarily around a common set of mores
| and walls beyond which is the pale. When a sizable proportion of
| Representatives, voters, etc, conduct themselves in a way that
| always maximizes short-term wins and power and and aimed at
| disempowering the opposition, that framework that is the
| Constitution is powerless to keep the Republic together. Is only
| the will of the people to stay together they'll keep them
| together.
|
| In all our legislative executive and judicial war, there seems to
| be less and less reason for restraint, for avoiding
| constitutional crisis, and to grab power by whatever means so
| that the other side does not. This ruling by the Supreme Court,
| as many people are commenting on social media, creating Powers
| Biden too, and there seems little reason not for Biden to pack
| the court, for the Senate to go to majority rule and rid
| themselves of the filibuster.
|
| If we keep pushing the boundaries we will fall, or we will
| reconfigure.
| camgunz wrote:
| Honestly I just don't think the conservative Justices are that
| smart. Here's Roberts arguing that because something never
| happened (criminal prosecution of a former president) no one
| could have reasonably assumed it would happen:
|
| > Unable to muster any meaningful textual or historical support,
| the principal dissent suggests that there is an "established
| understanding" that "former Presidents are answerable to the
| criminal law for their official acts." Post, at 9. Conspicuously
| absent is mention of the fact that since the founding, no
| President has ever faced criminal charges--let alone for his
| conduct in office. And accordingly no court has ever been faced
| with the question of a President's immunity from prosecution. All
| that our Nation's practice establishes on the subject is silence.
|
| Literally on the next page, here's Roberts arguing that though
| something has never happened (criminal prosecution of a former
| president) it is very likely to happen:
|
| > The dissents overlook the more likely prospect of an Executive
| Branch that cannibalizes itself, with each successive President
| free to prosecute his predecessors, yet unable to boldly and
| fearlessly carry out his duties for fear that he may be next. For
| instance, Section 371--which has been charged in this case--is a
| broadly worded criminal statute that can cover " 'any conspiracy
| for the purpose of impairing, obstructing or defeating the lawful
| function of any department of Government.' " United States v.
| Johnson, 383 U. S. 169, 172 (1966) (quoting Haas v. Henkel, 216
| U. S. 462, 479 (1910)). Virtually every President is criticized
| for insufficiently enforcing some aspect of federal law (such as
| drug, gun, immigration, or environmental laws). An enterprising
| prosecutor in a new administration may assert that a previous
| President violated that broad statute. Without immunity, such
| types of prosecutions of ex-Presidents could quickly become
| routine. The enfeebling of the Presidency and our Government that
| would result from such a cycle of factional strife is exactly
| what the Framers intended to avoid.
|
| Just like, full on embarrassing. These guys need better clerks or
| something.
| HaZeust wrote:
| Well, I guess this ruling makes me eat my words, almost exactly a
| month ago, that Trump's 34 felony counts was "a good day" for the
| spirit of Montesquieu checks and balances in this country:
|
| https://news.ycombinator.com/item?id=40529062#40529905
|
| Sotomayor has channeled her inner-Scalia in her dissent, and she
| hit the nail on the head. This is now kingship, this is de-facto
| sovereign immunity.
|
| This ruling was not constitutionally purposivist, it was not
| textualist, it was not originalist. It goes against the very
| founding of America in the contexts of its original conception
| and revolution. This is BAD.
| mjfl wrote:
| And they do not have immunity for unofficial acts, which do seem
| to be many of the things that that Donald Trump is being charged
| for. The fact that many of the top comments here don't mention
| this tells me that we are grips of a partisan hysteria.
| Fortunately, the court is not, and one 'conservative' judge was
| in the dissent, and one 'liberal' judge concurred with the
| majority.
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