> 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.
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.