I'm no great fan of today's Supreme Court ruling on presidential immunity, but I've seen some fairly outlandish responses about how this makes the president a king, or it allows the president to assassinate political opponents, etc. Everyone needs to cool down a bit on this.
First, it's true that this is the first time a president has been granted immunity from criminal prosecution. But that's only because it's never come up before. Most presidents except Richard Nixon haven't engaged in criminal behavior, and Nixon was pardoned before it became a live issue. Trump just happens to be first overtly lawless president.
Second, immunity for official acts isn't uncommon. In addition to the US, you'll find it in India, Italy, Japan, Mexico, Poland, the UK, Germany, and Brazil, among others. The reason is precisely the one the Supreme Court laid out: We want presidents to have a wide scope for decisive action. We don't want them hamstrung by fears that some enterprising prosecutor will someday try to toss them in jail for actions that they simply disagree with.¹
Third, the Court's decision doesn't mean that presidents can willy nilly decide to assassinate someone they don't like. Immunity applies only to official actions, and while that's a broad scope it's not infinite. Bribery is still illegal, even if you're president, and so is murder.
On that score, though, I'm baffled by the Court's opinion that the president's motivations don't matter. It's hard to see how this can stand. If, for example, the president authorizes a military strike that kills a US citizen, it certainly does matter what his motivation was. If it's because the citizen was hanging out with a gang of terrorists, the president would certainly be immune from later prosecution. But if you could provide evidence that the president actually wanted the person killed because he'd had an affair with his wife, that would surely be prosecutable.
Bottom line: it was a very broad decision. However, it doesn't literally make the president above the law, least of all Trump. In fact, it most likely leaves one of the charges against him still standing—though we won't know for sure until the case makes its way back to the Supreme Court for a definitive ruling. In the meantime, don't go to pieces over this.
¹It's an article of faith among conservatives, for example, that Joe Biden's suspension of student debt was the worst kind of plainly lawless behavior. Do we even want to take a chance that someday a few wingnuts will convince a state prosecutor to put this case in front of a friendly judge? Of course not. It's a political act obviously within the president's official duties, and that should be that.
This is all very confusing.
KD says murder is still illegal, but Sotomayor says the president is now immune if he orders the military to kill a political opponent. ("Orders the Navy’s SEAL Team 6 to assassinate a political rival? Immune."... to be specific).
Can someone explain?
Basically, it makes sense that official duties are immune - they're what the person was hired to do.
However, the conservatives made that immunity absolute, which means it cannot be questioned to see if it was corrupt intent.
The conservatives also ruled that all private communications by and about the President was immune from being used to prove that corrupt intent.
So yes, they just ruled that he can make orders and not be prosecuted for them. He just can!t do it himself.
But worse - they also designed no test for 'official' other than 'anything could be'. Which is basically Calvinball for SCOTUS to decide.
Ok that makes sense. So murder is illegal in the sense that Trump couldn't himself strangle Mike Pence. But he could order Jeff Clark to do it because Pence was a threat to the Constitution?
I mean, conservatives ALWAYS claim that what they are doing is constitutional and done so we "have a country", as Trump likes to put it. So, everything they do is "official" and you're not allowed to question that. As I understand it.
You can question whether it is official or not. Once it is determined that it is official, you can't question whether he had corrupt motives. So, under recent bribery rulings, you cannot be prosecuted for bribery unless it ivolves an official act and you can't question if an official act is being done for a corrupt purpose i.e. Kevin is wrong that bribery is still illegal for the president.
Oh, it's still illegal... but only in a Platonic, abstract sense. Is a crime that can't ever be prosecuted still a crime?
The logic of "official duties are immune" has a flaw. The president's duties do not, ever, include committing crimes. Therefore, no criminal act by a president can be an official presidential act. Therefore, the concept of immunity for criminal acts has nothing to attach to.
Nevertheless, the law is what the Supreme Court says it is and they say that anything that can be characterized as "official" enjoys absolute immunity. That means exactly that if the president decides that someone is an "enemy" that person can be prosecuted, imprisoned, or even killed with complete impunity.
The distinction upon which Kevin relies is a meaningless one for, among other reasons, the court has ruled that the evidence to prove a malign, personal intent cannot be gathered or admitted.
Liz Anderson makes the point at Crooked Timber:
"In the hands of the Court majority, this will end up being a distinction without a difference, as Sotomayor points out in dissent. All official acts, the Court says, are entitled to at least presumptive immunity. Who can doubt that, with the thumb so heavily on the scales in favor of Presidential impunity, that the presumption will be in practice irrefutable? Particularly since the Court also bars the kind of evidence that would typically be required to prove otherwise–a President’s discussions with others in the Executive Branch."
Essentially, the court has made Republican presidents immune from the application of all criminal laws.
I'm talking logic, you're talking law. The law in this case, as defined by SCOTUS, is patently illogical.
Logic doesn’t put people in jail or execute them. The law does. Your logic will hold just as long as it takes for the law to force you to surrender it.
Your point is?
"The president's duties do not, ever, include committing crimes." That is patently false.
Could you provide a few examples of situations in which the president has a duty to commit a crime?
If the President murders his neighbor, it's an unofficial act (unless he lives next door to the AG or a political rival, say) and not immune from prosecution. Otherwise, it is, at the very least, presumptively immune with the government/state required to rebut the presumption. (But see below as to what entity would bring such a case.)
And on the subject of bribery, the receipt of $ for a bribe may be an unofficial act and therefore prosecutable, but if the "quo" of the "quid pro quo" is a diplomatic appointment, say, that is a core constitutional official act and therefore absolutely (not just presumptively) immune. In addition, contrary to what Roberts said at oral argument, that appointment cannot be offered as evidence of corrupt motive or intent in the acceptance of $ because of its official act status! This is shocking. A footnote to the majority opinion suggests that public information of the appointment could be admitted but no direct evidence of corrupt motive or intent that might be gleaned from communications between the parties, etc. It would be left to the jury to "infer" corrupt motive or intent from the timing, and to the government prosecutor to make that case in argument.
Frankly, I wonder if such a case would even brought and by what entity. And even if a case were brought, the majority opinion makes clear that communications between the President and DOJ (including "presidential" efforts to ensure such a case goes nowhere) are also immune.
If the president uses the military and claims it was for national defense purposes, he is immune. If he does it himself or stupidly admits it was not for national security reasons, than he can be prosecuted.
Kevin is high on Copium thats what.
Kevin, you are wrong. Professional jurists Sonia Sotomayor and Ketanji Brown Jackson said as much in their opinions.
This ruling means that Nixon committed no crimes.
It also means that President Biden could create an Executive Order that "Kevin Drum is suspected of subversion and is an enemy of the United States. All necessary means to mitigate this threat are authorized." He wouldn't have to further explain or prove anything.
Yep. Kevin's rare weak spot is his understanding of constitutional law, where he consistently overestimates the professionalism and good faith of GOP justices.
His weak spot is that he tends to believe
or give the benefit of the doubt to every Republican talking point. No matter how nuts the point, he always takes the position that things can't possibly be as bad as those crazy leftists say because his center right buddies say so, and then he twists himself in knots trying to split the baby between the two positions.
Sorry to hear about your ongoing medical woes, Kevin.
But respectfully, when I'm reading multiple constitutional scholars and lawyers talking about how bad this is, I'm going to trust their legal judgment over yours. "Surely this doesn't mean" is an expression of hope, not analysis of the actual ruling.
This court has already ruled that gratuities are legal. So this combination of rulings means a president, year 1, can hold lots of meetings with people offering them pardons in exchange for $250,000 gratuities subsequent to the pardon. No doubt you'll ask why someone who already received the pardon will pay up. Because the president can corruptly set the IRS or the Justice Department on that person for the remainder of their term in office; no doubt a president uninterested in following the law in office will have other tools available. "Add these names to the No Fly list" for a start.
But the real truth of the matter is that this massive expansion of executive unaccountability does not--in fact, cannot--do what the chief justice claims it does to protect the office and allow the president to be "bold."
And that is because presidential immunity covers only the president's time in office. Biden has been under Republican and legal scrutiny for acts as VP; Hilary Clinton for acts as SoS. Bill Clinton, while governor of Arkansas, certainly didn't enjoy presidential immunity. Anyone determined, for political reasons to target either a president in office or an ex-president can simply aim for the large portions of their lives when they were not president. Even if a future president orders that the Justice Department refuse to investigate them, individual states could continue to go after sitting presidents. Even a pardon won't protect against that. And a vindictive successor can go after an ex-president for anything they do after leaving office.
The broader principle that the more powerful you are and the more consequential your decisions, the less scrutiny you should be subject to, is I guess left as an exercise to the reader. In the meantime, states continue to monitor elementary school teachers like hawks for any mention of homosexuality while being blithely unconcerned about things like police misconduct or medical malpractice.
In the meantime, maybe Seal Team 6 can be held accountable if they follow a presidential order to kill a rival to the president? Then again, they'll certainly be punished for refusing the order. And all sorts of lesser mischief can now be considered by presidents. Detaining rival members of Congress immediately before a vote (including, potentially, an impeachment vote)? Firing everyone who works at the IRS and refusing to hire anyone to replace them? How is White House Counsel going to stop a future president from flagrant law-breaking when the president has absolute immunity from prosecution?
The real cowardice of this court is perhaps reflected in the likelihood that the worst consequences of their ruling likely won't be felt until many of them have stepped down. In the meantime, they scatter hints before the courts they task to classify Trump's actions while reserving the right to review and then "correct" the decisions they make. Forget "will Trump be prosecuted before the election," is there any chance of any ruling at all for the rest of his lifetime?
I think you're too sanguine, KD. Pardons are a core power of the President. He can hand them out for $1m a throw on 1/19 and he's gone the next day and can't be prosecuted or impeached.
What I wonder is this: Is Roberts naive enough to assume that President Trump (if elected) would follow the Supreme Court's orders if he doesn't like them? Or is his plan to only issue orders that Trump will accept and in this way to avoid being shown up as totally powerless?
Roberts and his minions have certainly not gained any respect from this ruling, conservatives will consider them weak and liberals consider them traitors.
"Or is his plan to only issue orders that Trump will accept...."
Yes, that is his plan (obviously).
"We want presidents to have a wide scope for decisive action. We don't want them hamstrung by fears that some enterprising prosecutor will someday try to toss them in jail for actions that they simply disagree with."
I certainly do want them "hamstrung" with fears, and so should you. Presidents have access to good lawyers. Let them consult them and make sure they're on solid legal ground before doing anything rash.
+1
FFS Kevin, Trump's own lawyer argued that the immunity should include having a political opponent assassinated using Seal Team Six, which is why the example was used in the dissent. You truly can't be this dumb or naive.
Cool down on this??
NO FUCKING WAY.
This is an existential threat to our democracy. And YES, Trump could "still shoot someone on Fifth Ave" and get away scot free.
All he has to do is call anything he wants to do (like shoot someone on Fifth Ave) an "official act". Any indictment or attempt to prosecute would be immediately challenged.
Any court that rules against Trump would be challenged and guess where the final decision comes from after all the appeals?????....yep...the same radical right wing majority of GOP partisans who specifically fashioned this insane decision to PROTECT TRUMP!!!
In any event it would take years to adjudicate literately ANY crime a rouge president desires.
44 other presidents (the exception being Nixon and Trump) would not think of breaking laws to serve his own self interest.
That is ALL TRUMP THINKS ABOUT!!!
But Trump shooting someone on Fifth Ave is not a realistic concern. THIS IS...
Massive protest take pace opposing Trump. He activates the Insurrection Act (he could make up excuse to make it an "official act").
Every order that is given to the troops is an extension of that "official act" and he could order anyone to be SHOT if they disobey any verbal order such as to disperse.
The result is hundreds if not THOUSANDS of dead protesters, Trump has TOTAL IMMUNITY, and today's Republican Party would back him 100%.
This IS not only possible, but probable with Trump's stated lust for vengeance.
The impeachment process has been destroyed by the same GOP.
Kevin is DEAD WRONG about this. If your hair is not on fire, you are living in a fantasy world.
Our democracy was nice while it lasted.
Three days short of 248 years since the Declaration of Independence was signed which propelled the formation on the United States of America, rejecting the Monarchy and specifically the tyranny of King George III.
It took thirteen more years for the Constitution to be written and put into force.
The path to a return to a tyrannical King to replace our democracy has been imposed upon us by six radical right wing partisan despots.
The absolutely insane radical right wing Republican majority Supreme Court on the appropriately named Trump v. United States, these six despots decided that TRUMP wins and the United States LOSE.
Just as the Declaration of Independence led to the formation of the greatest democracy in history, Trump v. United States, is assuredly going to lead to the DESTRUCTION of that democracy and this nation as has been known for 248+ years.
We are witnessing right before our horrified eyes, the death rattle of a once great nation that adhered to the rule of law and the foundational principle expressed by John Adams....
'We are a nation of laws, not of men"
Has been shattered by today's Republican Party and their cult leader Donald Trump.
That thing you're worried about (Donald Trump ruling with impunity)? It's not a big deal to me, Kevin Drum.
(the wiggle room is that as far as DT is concerned, every act is an official act, and he will have the best brains the Federalist Society can provide to support that).
I will take a standing Supreme Court judge's dissenting opinion over your Copium take there, Kevin.
Sure you understand.
A lawyer over at Talking Points had this to say:
" Yesterday’s decision handed Trump an even bigger gift that initial headlines have suggested. SCOTUS has effectively federalized the two state prosecutions against him. (Note: As I type this, news is already breaking that Trump’s sentencing in his New York conviction is likely to be delayed.) Reading yesterday’s opinion, I’d be shocked if Trump ever gets sentenced. More likely, his NY conviction will get overturned before it even gets up to appeal.
Here’s why. Up to this point, the strength of prosecutions in Georgia and New York has been that they were largely, if not entirely, inoculated from intervention by the federal judiciary. Sure, there’s a narrow pathway from state courts to the Supreme Court, but New York and Georgia had lots of tools to prevent that outcome.) Not anymore. The kicker comes in Part III.A of the opinion, which constitutionalizes new rules of evidence for presidential prosecutions. (This section was the only bridge too far for Barrett, but it still got five votes and so is the law of the land.)
The majority’s decision, and Barrett’s concurrence, reads like a transcript of evidentiary hearings that happened throughout Trump’s New York trial. And, in short, the trial court adopted Barrett’s approach to considering evidence from Trump’s time in office—an approach which, as of yesterday, is unconstitutional (agains, see p. 31 of the majority’s opinion). Did any of that evidence actually matter to the outcome in New York? Who knows… and that’s the point. The trial court is going to be hard-pressed to say that any possible error here was harmless; SCOTUS went out of its way to say that admitting basically any such evidence is prejudicial. . . .
First, the Court’s opinion takes a wide view of what counts as “official acts.” Second, the Opinion holds that the parsing of official from unofficial acts is something that has to happen before trial; we can’t rely on traditional rules of evidence to decide these issues in a piecemeal fashion during trial itself.* SCOTUS is pretty strident here, saying that admitting evidence of an official act would “eviscerate” immunity. ..
There’s no way that the NY trial court correctly analyzed evidence drawn from Trump’s time in office—how could it, when the rule didn’t exist then? But still, it seems impossible to say ex ante that all of the evidence let in was merely private. And, if anything let in was plausibly a public act, then SCOTUS’s opinion seems to say that a mistrial would be required."
That's disturbing.
But in point of fact, this ruling has nothing to do with immunity and everything to do with dragging Trump's sorry ass across the finish line. It has been a long time since ANY Republican put country over party. For most of them, country doesn't matter at all. That includes 6 justice on the Supreme Court.
>I'm baffled by the Court's opinion that the president's motivations don't matter.
It seems to me that this is very bad for Trump. His claim has been that his motive was to protect the integrity of the election, but if his motivation is irrelevant, that goes out the window.
Pingback: The Trump immunity ruling is not the end of democracy – Kevin Drum