Jackson (page 98) lays out why this is such a dangerous thing.
Essentially, the court has said that the president is immune if the crimes are carried out as "official" acts. Only "unofficial" acts can be prosecuted.
The trouble is, what constitutes "official" vs "unofficial" has been left extremely vague (and by their own admission probably unsolvable), and so only the Supreme Court can decide which is which on a case-by-case basis.
Therefore, the Supreme Court now decides when and if the president is accountable for any criminal actions, and the judiciary and congress can do nothing about it. This is in stark contrast to how the law applies to everyone else.
Not necessarily, the majority opinion says that the prosecution can lay out an argument for whether the acts are official or not, then a grand jury can decide.
But to their point, will this probably come to the Supreme Court again? Very likely.
This is not accurate. The ruling summed up: immunity for core constitutional acts, presumed immunity for official acts, and no immunity for unofficial acts.
I don't see how we can have an effective executive without this.
Also worth pointing out, this doesn't prevent a President from being impeached for his official actions!
The alternative is the president could be charged with murder, fraud, theft, etc anytime anyone in the country doesn't like something the President did. If the president was criminally and civilly liable for everything the office did, the executive would grind to a halt in tort lawsuits.
Except that impeachment requires acts of Congress. The SC opinion was explicitly clear that the president is immune from prosecution for ever issuing a pardon. So the president could order the military to capture or kill any representative or senator likely to vote for impeachment, and pardon everyone involved. There would be no remedy through the courts, because those who carried it out were pardoned, and the ruling also makes it explicitly clear that ordering the military to do something illegal is also an official act, so the president is immune from prosecution.
So a president determined enough to prevent impeachment could avoid it as long as he or she were able to find a large enough group within the military willing to go along with it.
> and the ruling also makes it explicitly clear that ordering the military to do something illegal is also an official act
Can you point to this in the ruling? They made it clear that hypothetical discussions with military personal are not evidence of lack of immunity, but the actual acts performed as president are not automatically granted such immunity.
> So a president determined enough to prevent impeachment could avoid it as long as he or she were able to find a large enough group within the military willing to go along with it.
The problem I have with this logic - if the president can get a large enough group of the military to go along with a Junta takeover, it doesn't really matter at all what the court or prosecutors think anyway.
> Can you point to this in the ruling? They made it clear that hypothetical discussions with military personal are not evidence of lack of immunity, but the actual acts performed as president are not automatically granted such immunity.
So it's a bit less explicit than I remember from my first scan-through. What I was remembering was from one of the dissents, which reads:
> 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.
Barrett's concurring opinion touches on the idea that the president is immune from prosecution when ordering the military or police to kill, but only to show that the bar to presidential prosecution has historically been high.
As for the opinion itself, I believe the most relevant line is
> At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute.
As far as core constitutional powers go, it doesn't get much more core than
> The President shall be Commander in Chief of the Army and Navy of the United States
It's even in the same section as the president's power to pardon.
Combined with the opinion, the president cannot be prosecuted for ordering the army or navy, no matter what those orders are.
> The problem I have with this logic - if the president can get a large enough group of the military to go along with a Junta takeover, it doesn't really matter at all what the court or prosecutors think anyway.
This is a practical matter rather than a legal one, and I should have kept to legal matters in my other reply. After all, a strong nation requires a strong legal system. What I was replying to was the idea that the only check remaining on the president's core constitutional power is impeachment. However, this ruling makes it legal for the president to bypass impeachment through the military. So as a legal, not practical matter, impeachment is now severely weakened.
By as a practical matter, I don't think you need a very large group within the military at all to take out 6 (or 9, if you want to go that far) supreme court justices, and threaten one or two senators so you can railroad your preferred replacements in.
FWIW, I'm getting a different read on the decision.
> 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.
Military actions against US citizens probably doesn't get the protection as a responsibility of the Executive Branch because it would neither be a national defense action nor a criminal justice one (in which case you would violate due process).
> 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.
Yes, this is true. However, the ruling very explicitly separates "core constitutional powers" from the rest of the president's constitutional responsibilities. There's basically 3 categories of action here.
OK, so I separated it out to 3 categories where the Court recognizes 2: official and unofficial. But I did so to point out that the Court ruled that "core constitutional powers" are always official acts, and it's up to the prosecution to prove that the act was unofficial, which thus means proving it wasn't a "core constitutional power."
And commanding the army to do something is a core constitutional power. The constitution is silent on what the president may not order the army to do.
This is how I read it, and I could be mistaken, but it's also how Sotomayor reads it, and she's a much sharper legal mind than I. Even if I'm wrong, it's frightening to be in a situation where top legal minds can interpret it this way. It means it's far from explicit, or safe.
As for the Guardian article, I'm not seeing where this has been tested in court. The article even mentions that the SC doesn't consider killing non-US citizens by the government to be forbidden by the constitution. Fair enough. Couldn't fight wars otherwise. But even if we assume they would rule extra-judicial killings of US citizens illegal, we're left with.
1. It's illegal for the president to kill a US citizen
2. But it's not illegal for them to order the military to do it (core constitutional power)
3. It's illegal for the military to carry it out
4. But the president can pardon them
5. And it's not illegal for the president to pardon them (core constitutional power)
6. Only federal laws apply if it's done in D.C.
As I read it, simply ordering the military to do something makes it an official act. But should it come to trial, Biden could argue that he was doing it to defend the constitution from those trying to undermine it. That he wasn't merely justified, but required to do so, and thus, it was a legitimate order to give, and thus a core constitutional power. Trump could claim the same: He was doing it to protect the constitution from the deep state which is illegally changing the vote totals.
A wildly-rogue president executing a military coup has always been in the cards. Do you honestly think that such a thing was not possible until just now when this decision was issued?
Possible? It's always absolutely been possible, but I've considered it much less likely than I do after this ruling.
As we saw during the first trump administration, the army was unwilling to go along with his every desire. A general even apologized for getting pulled into a photo op.
The US military is large and geographically diverse. I suspect that most would not carry out such an order. But you don't need most. You only need enough.
The problem for a theoretical coup group has always been what happens afterwards. Even if they were carrying out official orders from the president, you still potentially had to face the judiciary. The rest of the military might not come after you if the president orders them to stand down, but that still left the police open as an option.
The SC has now ruled that's not an issue.
I do understand a lot of the logic that the executive couldn't function if every action was litigated. But I look at other countries, such as the UK, where the prime minister in fact can be jailed for crimes, and I don't see it really being an issue. Seems better to me if no one is strictly above the law. Post WW2, we recognize that the military can issue and carry out illegal orders. We should extend that to the presidency.
The SC has essentially handed Biden a loaded gun. If I were him, I'd point it at the SC and fire, then point it at congress and appoint a new court that will take the loaded gun away from him. Because if Trump wins in November, you can be sure he will attempt to fire it.
While this is a well-organized and clearly-communicated comment, I believe the actual content is just hysterical fear-mongering.
A president has always had the "military coup" option. In fact, Putin also has the "violent overthrow of the US government" option (though he would probably use his own military).
While I freely admit I am frightened by the possible impacts of this ruling, I do not believe that it has, in this case, impaired my ability to look at the situation logically.
That said, as I mentioned in a different reply, I should have stuck to the legal implications around impeachment, rather than the practical. This decision states that the only remedy for a president breaking some laws is impeachment. At the same time, it says the president now has a legal, if not entirely reliable, means to avoid impeachment: Order the military to kill those who would impeach them.
Yes, that was always a theoretically practical option, but now it's also a legal option, and that's bad. A strong nation requires a strong legal system.
For the downvoters, I'm stealing this from AnimalMuppet who commented elsewhere:
>If the president has the constitutional authority to do X, how can he be criminally liable for doing X? It seems rather obvious that he can't. [1]
We cannot have an effective executive without some absolute immunity. Limiting that to core constitutional acts seems like the bare minimum. Giving presumed immunity for other official acts seems reasonable too.
Can you imagine Biden being prosecuted for fraud for his student loan forgiveness? He doesn't have the constitutional authority to do this but it is an official act, so the courts should have a very high bar for a prosecutor to overcome in order to bring criminal charges against Biden.
> If the president has the constitutional authority to do X, how can he be criminally liable for doing X?
The president has constitutional authority to issue orders to the military, so can he be prosecuted for ordering the military to, for example, drop a cluster bomb on a political opponent from a predator drone?
Well, if anyone in the military received such an order, the correct thing to do is to refuse to follow it, as it is an unlawful order. And why is it unlawful? Because it exceeds the bounds of what the president can legitimately order the military to do. Any service member who carried out such an order could be prosecuted for doing so.
So, if the president doesn't have the legitimate authority to order the military to do such a thing, could the president be prosecuted for giving such an order? As I read the decision, yes, he could.
Great question that exceeds my skill to answer. I think we should try a recent, similar case where a US president ordered the military to assassinate a US citizen/political activist[1].
I believe this case is very close to the "seal team 6" hypothetical that seems to be top of mind for critics of this SCOTUS decision.
“US citizen/political activist” is a pretty charitable description of this person. Testing the legality of “president issues order to kill terrorist” wouldn’t test much.
One citizen at a time would have gained President Clinton wider acceptance if the intelligence would have been there to intercept the Oklahoma City bomber before he could act.
Until now I don't think a President would have ever been expected to proceed to such a terminal conclusion, or be chastised for failing to, but it is only that very end point that is so well defined.
OTOH, the former police chief in Uvalde was just charged with failure to shoot first and ask questions later.
Anything less and you have to draw the line somewhere but there is no clear guidance or precedent any more.
Well, maybe with Trump having already been elected then attempting violent insurrection instead of stepping down when his term was up, that's the precedent that's needed. Plus Trump has recently confirmed that he would like to murder more than one of the people he currently hates, and expects citizens to handle it jokingly. Also has confirmed he will do all he can to investigate anyone who he dislikes on a whim.
Biden doesn't have to completely skip due process and proceed all the way to murder, he can now stay in the gray area and merely compromise due process and intimidate suspect individuals, however many Trump supporters it takes to root out any extremists that have any chance whatsoever of acting in an insurrection ever again. Like nothing ever seen in a free country. Trump would surely be doing the same to his suspected adversaries and then some if he got back in office.
When the highest court in the land makes you dictator, your supporters expect you to step up to the plate, and hit it out of the park for the home team.
> When the highest court in the land makes you dictator
Obama was unchecked, never charged with a crime. Which I think makes him a dictator by your definition. The court never had the opportunity to rule on the matter.
I don't follow his antics very closely, but there's some accounting/tax shenanigans and there's the matter of an election in one of the states. Let me try to consider both.
If those tax things were official, then wouldn't that mean that the owner would be his employer? You can do your employer's or customer's tax paperwork during office hours, so if he did that during office hours the owner of the that ugly buidling is the federal state. Which doesn't make sense, right? So therefore he didn't do that in his official capacity.
If you work with the Georgian elections in an official capacity, then you're either an official of the State of Georgia. Is a federal official such as the president empowered to act on behalf of states? If not, then time spent calling a Georgian official about Georgian elections cannot reasonably be called official.
In the decision, the Supreme Court says that 3 of the 4 indictments can proceed with the caveat that the prosecution needs to include a legal argument that the acts were unofficial.
I think what it means is that the President decides what he thinks are official duties, and if anybody questions that they will have to take it to court.
And that there are now much fewer restrictions on Presidential power than there were yesterday, nothing like the narrow band experienced since the time of Geo Washington.
Any restriction is now in question if it ties the Presidents' hands as much as in the past.
Unprecedented extreme actions are moved from black & white to a grey area.
Whatever might be brought to court is made more difficult to decide, and more likely to end up in the highest courts.
Decided by the same unelected officials who ceded more of the citizens' balance of power to an Executive who is already difficult to hold accountable, while gaining a greater portion of power for Judiciary also, as collateral damage.
Another remarkably dumb ruling. As I mentioned before with the Chevron ruling (though people seem incredibly blind about the real intent behind that ruling), the court is making a ton of naked power grabs both for itself and the power of the executive branch.
Saying that the president has absolute immunity for 'official' acts is insanity and making it so only the supreme court can decide whether or not they're accountable is also clearly saying 'the only thing that matters is our decision'.
Let's start with this: If the president has the constitutional authority to do X, how can he be criminally liable for doing X? It seems rather obvious that he can't.
But if it's outside his constitutional authority, yes, he can be charged. That's what all the pearl-clutchers seem to be ignoring. Yes, Trump can be charged. He doesn't have immunity for election interference (outside the scope of his office). He doesn't have immunity for keeping and mishandling classified documents, and especially for trying to hide them (outside the scope of his role once out of office).
And what do you want? The Supreme Court laid down some general principles. Do you want them to judge how those principles apply to all the cases, when the lower courts haven't judged what the facts are yet? Why do you want that?
Look, I get as impatient as the next person at this slow-motion case, and I worry about November coming. But the Supreme Court isn't supposed to be a fact-finding court. Don't expect them to be.
If you need to understand why this is bad, then you need to read the dissent. The dissent makes it very clear why this decision is a bad one and what presidents can do while still being considered immune.
"Looking beyond the fate of this particular prosecution,
the long-term consequences of today’s decision are stark.
The Court effectively creates a law-free zone around the
President, upsetting the status quo that has existed since
the Founding. This new official-acts immunity now “lies
about like a loaded weapon” for any President that wishes
to place his own interests, his own political survival, or his
own financial gain, above the interests of the Nation. Korematsu v. United States, 323 U. S. 214, 246 (1944) (Jackson,
J., dissenting). 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."
You forced me to not actually read the dissent but to CTRL+F "immune,", because I couldn't believe a person/demigod serving in such an incredibly honorable and powerful position would ever write a rant with the same word 4 times in a row.
Why should we extend a ruling from a state court from 1905 to the entire US? By any stretch this seems like cherry-picking and goes to show how baseless the argument for mandates is.
There have been many other rulings in support for vaccine mandates since that landmark decision. Reducing such measures to nothing more than 'a gross violation of bodily autonomy' and having 'no legal basis' is just ignorant and inane.
My workplace was enforcing a vaccine mandate through an unconstitutional authoritarian justification jammed through a federal regulatory agency. The vaccine does not prevent transmission and offers little benefit to someone who's already survived the disease and is otherwise healthy and especially young. And it was the same sort of ultimatum that Harvey Weinstein would use "I'm not forcing you but if you don't have sex with me you don't get the job."
OSHA already requires workers who come in contact with potentially infectious diseases to be vaccinated (ie. hep, HIV), not to mention other drug testing and whatever else that entails. So yeah you can see the logic trying things this way.
Harvey Weinstein himself sexually assaulted women and lied about it, so no they're not similar at all.
Despite how you feel and in retrospect, we now know that the vaccine was effective[1](regardless of how it was spun) and it would've been more effective if more people took it.
Clearly SCOTUS saw this as overreach so sure, there was a constitutional violation the way things were handled and things are working out okay. However, your OC comes off as ignorant and disingenuous when you look into things a bit.
People on r/scotus have pointed out that this would have simply made much of Watergate fall under official actions, and would have blocked the admission of the Oval Office tapes, being "private records" of the president.
Firstly, gathering evidence is not protected by absolute immunity, per the decision:
> By contrast, when prosecutors have sought evidence from the President, we have consistently rejected Presidential claims of absolute immunity.
Watergate would not have necessarily fallen under an "official" action if the prosecutors can successfully argue that it was done in personal interest or towards the political campaign. And congress is still free to impeach a president for the official acts.
> 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
Emphasis mine. There's quite a lot in Watergate that would be changed by this decision, it seems.
The argument they are making in the full context is that you can use the Nixon tapes admitting to the crimes in question, but you cannot use tape of Nixon discussing with his advisors the legality of such crimes.
A counter example is that we have recordings of JFK planning and discussing the legality of Operation Northwoods, but simply discussing or planning a potential crime is not a crime in itself.
That's one reading of "probing." There's quite a lot of latitude for interpretation – but note that it does not say probing the legality. Just "probing such conduct," wherein "such conduct" is conduct for which they are immune.
Elsewhere language the court uses is "in the first instance" - so you can use evidence from when the crime occurred, but it sounds like looking for subsequent conversations about it would be "probing".
He's revised his opinion, and is stunned. He concurs with my original assessment:
> Virtually all of his Watergate-related conduct and virtually all that evidence falls in what could easily be described as official conduct.
> “I’m not even sure you could get to the Nixon tapes under this ruling,” Dean speculated. “What its implications are with the existing Supreme Court ruling, in U.S. v. Nixon, is a question I haven’t unraveled yet.”
Typically for the same amount of time Republicans spend whinging about personal freedoms when a populist democrat is elected. The years are inversely proportional to the number of terms the US voters choose to elect them for, much to the outspoken chagrin of whoever's unpopular at the time.
Except personal freedoms are actually continuously encroached by the federal govt and bureaucrats across the board. Whereas democrats whine when they don’t have absolute unchecked authority, it’s not enough that they control media, regulatory agencies, schools, universities and corporations. If you complain well “reality has a liberal bias” don’t ya know.
Personal freedoms aren't all-encompassing. One of the best lessons you can take away from America's free market is that a laissez-faire government would destroy everything we take for granted today. Without base regulation, how would the United States protect it's markets from blatantly evident abuse? Without rudimentary law, how do you ensure someone's personal freedoms aren't being encroached by another person?
This is always how it ends up. The point is that your complaints are almost parallel to the outraged liberals that demand sweeping social justice in response to minor political slights. Unless you're willing to adopt a holistic view of democracy then you're bound to be disappointed when change doesn't revolve around your personal demands. In the words of Republicans from a decade ago, sorry snowflake.
So when the same Courts and legal system act in his favor, it's all hunky and dory. But, when they act in opposition - I'm a victim of a political prosecution, witch hunt, revenge, and blah blah.
> Trump's motion takes that to the extreme by claiming that anything he does is protected by presidential immunity.
> The case came from the Washington, D.C. Court of Appeals, where Trump's lawyers were asked whether their argument was that the president could go so far as to order Seal Team Six to assassinate a political rival. Trump's lawyers agreed.
The seal team 6 example is a bit extreme, but you don't have to look back very far and you see both political parties leveraging the justice department or the IRS or other agencies to make life difficult for their rivals.
This is a really interesting ruling for American politics. On one hand, Trump appears to have considerable immunity from his actions as president. On the other hand, Biden also appears to have considerable immunity from his actions as president.
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.
If you view this as a Trump only specific ruling I would agree it's politics. The supreme Court was hearing a case in regards to Trump but the ruling is about the broader power of immunity for all presidents.
Essentially, the court has said that the president is immune if the crimes are carried out as "official" acts. Only "unofficial" acts can be prosecuted.
The trouble is, what constitutes "official" vs "unofficial" has been left extremely vague (and by their own admission probably unsolvable), and so only the Supreme Court can decide which is which on a case-by-case basis.
Therefore, the Supreme Court now decides when and if the president is accountable for any criminal actions, and the judiciary and congress can do nothing about it. This is in stark contrast to how the law applies to everyone else.