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.
I think you've got it wrong, and I'll try to illustrate with an analogy. Remember back when Dershowitz [who is definitely not rapist, nono, he definitely isn't] argued that the US should write "torture warrants" ? They would allow an officer to torture a suspect or detainee in order to elicit information in a "ticking time bomb" scenario. There were two responses to this: the first was "that scenario never happens, you idiot!" But the second was more interesting. It was:
If such an officer were actually confronted with a suspect who had such information, and they got it out of them and managed to defuse the bomb, they'd be a fucking national hero! And a grateful nation would demand that they be pardoned instanter!
In an analogous way, if we're actually in a situation where a President is prosecuted for the usual fulfillment of his usual duties, then FFS, we have bigger problems, don't we? Whereas, what SCOTUS is doing, is basically writing the equivalent of "torture warrants" -- here, President Trump, have a Get-Out-Of-Jail-Free card, and now go along and do anything you damn well please! [B/c we know full well that he and his innumerable lawyers will invent reasons why any act, howsoever corrupt or bloodthirsty or treasonous, is actually in fulfillment of his official duties]
I mean, for God's sake, the Dubya cabal got us into an illegal war! And none of them ever were (and ever will be) prosecuted for it. None of them.
Bush has to be careful traveling overseas now...
https://truthout.org/articles/for-20-years-team-bush-has-escaped-prosecution-for-war-crimes-in-iraq/
As a lawyer, I think Kevin is being, at best, naive about this ruling. For one thing, it excludes evidence that is perfectly admissable in any other criminal proceeding, which makes any prosecution far more difficult. It is a decision designed by a right-wing court to protect Trump in the short term. In the end, like Dredd Scot, it focuses the problem on blue vs red, urban vs rural and autocratic vs democratic. This is not going to end well, and indulging in academic discussion about the application of this decision will not impact the result. Kevin is seriously Panglossian about the decision. It's not the first time.
Naivete is the kindest possible interpretation for both this ruling and many of the oh-don't-worry reactions to it (which, probably not surprisingly, tend to come from people in communities that have never experienced regular abuse of authority).
>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.
This is not true. Anyone who thinks about this knows SCOTUS would not allow Trump to be prosecuted for this.
>It is a decision designed by a right-wing court to protect Trump in the short term.
This. Not just the ruling, but them dragging it out.
Not you, but a lot of people seem to confuse the word conservative with the name Republican. It is just like the name of the Nazi party includes the word Socialist.
Bribery is still illegal, even if you're president, and so is murder.
Are you quite sure Trump couldn't make a fortune selling pardons over the next four years? Presidential pardons are a core constitutional prerogative, after all.
AJ Sotomayor and I read it that way too: the decision seems to grant ‘absolute immunity’ for core Constitutional acts — but bribery is exactly performing an official act for corrupt purpose. Selling pardons, or Cabinet or ambassadorial appointments — lots of opportunity! Spoils system legalized.
Yeah, I'm pretty sure the way the justices wrote this means bribery cannot attach. That's what absolute means.
Okay, bribery. How about extortion?
And, for that matter, how does one distinguish the normal legislative give and take from bribery and extortion? (Not a lawyer, so if this is too naive to even address, I understand.)
I think that, realistically, if Trump wins in November, 2025 is going to be America's "year of living dangerously".
and if they pay him afterward, it's not bribery, it's a perfectly legal gratuity. like when i drop a billion or two in the starbucks tip jar for an above average latte.
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 try to toss them in jail for actions that they simply disagree with.
Yes, US presidents have been so "hamstrung by fears" in the long years prior to this new ruling. Why, their state of being hamstrung by fear all these decades practically screamed for constitutional relief by the six conservatives. Indeed, it's a wonder our Republic has survived all this time without having a president who is actually a king.
Nicely done.
+1
It is NOT correct that "Trump just happens to be first overtly lawless president." Bush Jr. had people tortured. Bush Jr. and Obama had people murdered with drones. Reagan and Bush Sr. had Iran/Contra, among other things. Clinton committed perjury. The last law-abiding president the US has had was probably Carter, and I'm not sure whether he was law abiding or just didn't get caught.
Breaking the law is not a presidential duty, so illegal acts CANNOT be official presidential acts. Therefore, immunity for official acts should not cover any illegal act, and so should be meaningless.
I’m with you. Text of the Presidential oath …
If you're counting drones, all presidents ordered attacks that involved shooting or bombarding people to their deaths.
Nonsense. "Breaking the law" is what the courts SAY is "breaking the law," and the SC has just said that NOTHING within the "core" duties of the presidency CAN BE breaking the law, and btw there is a strong presumption that nothing within the "outer perimeter" of "official duties" can be breaking the law either.
The weird faith that people have about respect for "the law" absent some enforcement mechanism is ... breathtaking. And dangerous.
SCOTUS did not say that "NOTHING within the "core" duties of the presidency CAN BE breaking the law". They said that law breaking within the core duties of the president can't be prosecuted.
I like your both siderism. "Committing perjury" by shading the truth about a totally personal (S*E*X!!!) act is now the equivalent of having thousands of people tortured in secret facilities around the world. Consider a gig in journalism!
i think the better (hypothetical) for clinton, especially given drinksy kavanaugh's rightwing lawyering origin story, is if bill had come out & said in 1995, "yes, i ordered the murder of my lifelong friend vincent j. foster, & i'd do it again".
brett would have obviously wanted to prosecute bill for this, as would have ken starr, but given the decision brett just signedon to as an associate supreme, i really don't think one could prosecute it. if clinton's representation greg craig explained the homicide as an official act of the clinton presidency, easy-peasy lemon-squeezy, the rehnquist court would have to accept it as something then that happens in the white house. sometimes the president will break the law, but that's the cost of being president & securing our nation.
Please find your shift keys or learn how to do caps on your phone.
Who said that torture and perjury are equivalent? They're both crimes; one is an extremely major crime and the other is a quite minor crime, so they're not equivalent, but they're still both crimes.
You are equating the two in your example as if both cases are similar. by your logic pretty much every person has broken the law at some point, since things like speeding or jaywalking is something that everyone has done at some point in their live.
Yet no sane person would put someone who broke the law by spending in the same situation as someone who broke the law by going on a mass murder spree.
A law-abiding person is a person who at least tries to abide by the law. A person who intentionally commits a minor crime is not a law-abiding person. A person who intentionally commits a major crime is also not a law-abiding person. A shoplifter is a criminal; so is a murderer. That does not make the two crimes, or the two criminals, equivalent.
No president since Carter (and very few presidents before Carter) has been a law-abiding person. That does not mean that the various law-breaking presidents have all committed equivalent crimes; it just means they have all committed crimes while in office.
I think most people are law-abiding, in that they try their best to abide the law, yet pretty much everyone who has ever sped knows they are breaking the law and they just don't care. By your standard no one is really law-abiding, and since in your mind a crime is a crime is a crime, why now all of a sudden you put the major crime qualification?
The discussion is about presidents. Kevin asserted that, other than Nixon, the presidents before Trump were law abiding. I say he's wrong about that. No president from Reagan to Obama, inclusive, was law abiding, and I'm not sure about the presidents before Reagan.
Clinton lied under oath, and was justifiably stripped of his law license, but he did not commit perjury. Perjury involves more than just lying under oath. It also has to be material to an ongoing investigation or case. The judge later ruled that the entire Monica Lewinsky affair was not admissible in Paula Jones's lawsuit. So, Clinton's lie wasn't material, and wasn't perjury.
I think Kevin is broadly correct, but understates the importance of the prohibition on evidence about intent. Many/most crimes, especially the kind a president might commit, hinge on mens rea, the presence of a deliberate intent to break the law or at least an understanding that an action would do so. This is going to be very hard to prove if a court is absolutely barred from hearing evidence about it! The example I've used elsewhere is Obama hypothetically admitting to reporters that yes, he had US citizens Anwar Al-Aulaqi, Samir Khan, and 16-year-old Abdulrahman Al-Aulaqi killed in Yemen because of a longstanding family feud - nothing to do with national security! According to John Roberts, the criminal justice system could do nothing in response. It's noteworthy that Barrett dissented from that part of the majority decision, and I expect that another justice might change their position if the outcome of Trump's trial depends upon it. Especially if they think evidence about Trump's state of mind would lead to his acquittal.
The principles the court has enunciated will no doubt lead to some strange and undesirable (hopefully purely hypothetical) outcomes. But I've yet to read a coherent alternative, apart from some dogmatic views that presidents should face exactly the same risk of criminal prosecution as anyone else. Once you begin to propose partial immunity, it seems to me you run immediately into insoluble definitional and conceptual problems.
The deeper lesson from the decision is that when Congress fails to act as the constitution envisages it should - in this case, by refusing to convict Trump after his second impeachment and bar him from office - there are no really satisfactory work-arounds by resorting to the judicial branch of government. America's institutions continue to stumble, democratic governance is under increasing stress, and it's impossible to see how that trend is going to be reversed.
Well, congress didn't convict because it was a case for the criminal courts....(maybe I should rephrase that)
Longstanding feud wtf?
Did you miss the "hypothetically" bit?
But as I note below, if a president's actions while president are a priori shielded from any criminal liability, how can Congress then say he committed a high crime or misdemeanor? Technically, the president cannot now do that, except in the narrowest, nearly unimaginable way.
That's a misreading of the decision. Roberts made it clear the president can still commit crimes. S/he just can't be prosecuted for them.
"presidents should face exactly the same risk of criminal prosecution as anyone else" is not dogmatic, it's just common sense.
It still feels like the court has handed future presidents a bottomless can of kerosene and a flare.
Agree.
You're wrong here, and you even point it out yourself. It's like you can't believe they said what they said, when you say that they're going to have to change it. No, they said what they said, and they're not changing it. They don't care what the president's motivation is, they ruled a lot of things are automatically official and thus out-of-bounds for prosecution.
It's worse than that. They haven't fully said yet what they mean, which is presidential immunity is nearly total when they feel like it. The referral back to lower courts is a mere fig-leaf since there's no practical way for the lower courts to rule against Trump without getting overturned.
Exactly. The 'all acts we deem official but we aren't going to give a test' basically means heads they win, tails we lose.
all acts of a republican president are official. but as no democrat president is legitimate, their acts cannot ever be official.
so putative president alexandria ocasio cortez in 2039 could easily be prosecuted for (un)official corruption. a putative president jimmy Vance in 2031 could not be.
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.
The question is, how do you define an official act? In this case, if the official act is to order an assassination, then, no, it's not an official act. However, if the act is defined as "issuing orders to the U.S. military," then it becomes covered by absolute immunity, and prosecutors cannot even investigate.
Why is it not an official act? If he orders the military to kill someone, is that not an official act, clearly within his "core" duties as CinC? Or the Secret Service, which is part of the Treasury Department? Or the FBI, which is part of DoJ? Or someone within the EoP (the White House)?
Or, ok, he doesn't order them killed, he just orders them held indefinitely for interrogation on suspicion of something something National Security something. Or he orders the campaign offices of his opponents ransacked for possible National Security something something.
Breathtaking naïveté...
If he orders the military to kill someone, is that not an official act, clearly within his "core" duties as CinC?
That's exactly what I said. If the official act is construed to be issuing orders to the miliary, then he cannot be prosecuted.
Given this ruling, I can not see any way to hold a president accountable for simply ordering others in private meetings to commit any crime he pleases and then issuing pardons.
Or how about an executive order for whatever the fuck he wants. An EO is unquestionably an official act.
https://www.dictionary.com/e/wp-content/uploads/2018/03/this-is-fine.png
The US just entered panel 5
Any action by POTUS can be ostensibly identified by POTUS as an official act. The Roberts court says you can't look into motivation to make the determination whether or not it was official/personal. Ergo, POTUS is above the law and all one needs to do is stake a claim to have done said action in support of one's duties. Let's take your example.
Ostensibly, he can claim that the affair created a potential national security threat, by way of bribery, and therefore the individual had to be eliminated.
I give you the Immunity Paradox: With one of the core functions of POTUS being to "preserve, protect and defend the Constitution", can Biden have select SCOTUS justices detained indefinitely under the obvious claim that their actions in Trump v US go against the founding principle that no one person is above the law?
If you engage with your lawyers in a criminal act, then you'll lose attorney-client privilege. If the President conspires with his Attorney General to commit a crime--well, that's privileged.
But the court has also forbade the collection and use of exactly such evidence of motive.
Liz Anderson makes the point extremely well:
"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."
hell, the presidential two term limit is a law. the law, as it's enshrined in the constitution. but if it's necessary as president, for thr good of the nation, to abrogate the 22nd, cam a president remain in office beyond two terms.
already, that amendment allows some presidents to serve up to 10 years, which is greater than the value of two terms, if a president assumes the office from the vice presidency with fewer than 730 days remaining in the previous president's term.
why not allow trump to become an american porfirio diaz & serve beyond 1159am on january 20, 2029?
At the end of his second term, the president stops being president and therefore loses presidential immunity. An attempt to remain in office after the end of the term would be a crime committed by a former president, not a sitting president.
Short of the President actually shooting the person in question himself, it would be extraordinarily difficult to actually convict a President for ordering an assassination of a political rival or dissident under the new standard, since the "official action" immunity excludes vast swathes of communication from being used as evidence.
For example, as the main opinion points out, Trump communicating to Pence that he wants the latter to illegally refuse to certify the election would actually be protected as "official communication", and thus not usable as evidence in a trial. Similarly, if the President relays to an officer of the government that he "wants X person dead now", that would be protected as official communication unless it was a federal judge or congressman. The person who actually carries out the assassination could be prosecuted, but then the President could pardon him.
As defense attorney Ken White pointed out over at BlueSky, the immunity/exclusions on evidence are a pretty big deal: https://bsky.app/profile/kenwhite.bsky.social/post/3kwasxgqsgm2a
Exactly.
but if it will stop woke & embiggen the free speech absolutism of his bois at the fireorg, ken white will no doubt come around on it.
"They" have learned well from Jan6.
>> It's hard to see how this can stand.<<
I’m not sure what Kevin means by this. Who or what agency is going to reverse it?
Agree. The court that just did this is *exactly where* the legal system decides whether this stands.
How, exactly, do we overrule the supreme court on a constitutional interpretation?
Congress can write, and the president can sign, laws, if the court's interpretation of a law is off base. Not so with its interpretations of the constitution. Which also are binding on all inferior courts-- except lately, when even district court judges feel like they can offer interesting new constitutional readings on the off-chance that they're reactionary enough for the majority to throw out existing case law and install something shiny and new and 15th-century enough that they'll like it-- but I digress. This ruling will bind the circuits and the districts, and according to the supremacy clause, the state courts too.
Josh Marshall has been saying for several years now that this court is completely lawless. I came around to this view late, but he's right.
This is certainly a very Pollyana'ish take on the matter.
Stating that the ruling doesnt literally make the President above the law doesn't address the biggest impact of the ruling. Kevin even admits that the inability to consider motivation or the fact that official acts can now be used to hide motivation, evidence and reasoning for technically prosecutable unofficial acts seems 'unworkable'....but seems to breeze past the impact of this 'unworkability'. His statement that this just 'wont stand' is meaningless garbage.
This is a free pass for Presidents. Kevins assurance that this will all work just fine even though the Court just gave Trump instructions on how to commit unprosecutable crimes is not very reassuring.
Dont worry, everything is fine. Nothing to see here, move along.
The US is screwed.
Kevin’s default attitude of “Don’t worry, it isn’t a big deal” fails him when it is.
We will probably e living under a fascist government in January, either because Trump wins or Trump steals the election. If Democrats do manage to retain power, it just delays the problem four years. Within a few cycles we will fall into the abyss regardless.
Prepare now.
"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."
Maybe you should resign, Kev, your brain is going. What statute would said politically motivated prosecutor apply here? The Supremos would have no trouble voiding such a conviction without resorting to immunity.
Likewise, they'd have no trouble declaring this outside his duties if they felt like it.
In many of those other jurisdictions you mention - certainly here in the UK - we have Cabinet government. The prime minister is merely first amongst equals in the cabinet, and he/she has almost no official powers as an individual.
Malfescence - as you identify, which may be deeply tied up with motivations (which are a matter-of-fact-of-state-of-mind for a jury)- explicitly isn't covered.
IF a jury ever gets to see any relevant evidence. Which, the ruling makes clear, they won't.
has given never heard of the arkansas project?
Drum or Sotomayor... Who should I believe?
I'm with Sotomayor on this. Trump is clearly immune from prosecution if he orders his secret service agents to shoot someone on Fifth Avenue.
“ 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.”
But the court ruled that if the murder is an official act, i.e. the prez ordered a subordinate to do it, the prosecutor cannot get such evidence.
I guess we really should’ve made government small enough to drown in a bathtub.
Guess you are already prepping to not be arrested next January
I saw something to the effect that this decision establishes that any communication between the President and any other public official is necessarily 'an official act', regardless of whatever that communication may be about.
Is this correct?
It is if the Supreme Court says it is. Laws, precedence or prior history doesn't make a difference.
I haven't looked at the decision (and IANAL). However, exactly how broadly that protection for communication with "public officials" might extend would seem to matter a lot for the status of the famous phone conversation with the governor of GA. Is calling up a state official -- so someone who doesn't even work for you -- and asking him to rig the election results now automatically a privileged act?
Kevin mentions that a president’s motivation would be instrumental in determining the legality of a president’s actions, but the Supremes ruled that any internal evidence would not be allowed.
They sure did.
Who is this "we?" Is there a frog in your pocket?
The rest of us live with the fear that some enterprising prosecutor will someday try to toss us in jail for actions they simply disagree with. Why do Presidents get to be special?
How not? "I used my authority in Commander-in-Chief to have a dangerous criminal killed. That's an official act; you can't touch me."
The Supreme Court literally ruled last week that as long as the payment comes after the fact and not before, bribery is super legal.
Why on earth are you baffled by this? The Court decided this because it was necessary to immunize Trump. It was necessary that his motivations not be questioned to wriggle out from the Jan 6th prosecutions.
Do you even hear yourself? "If the President decides somebody needs to die because of their associations, that's it. No trial, no nothing; he can just shove a missile into them and go 'immune from prosecution, bitches.'"
This attitude that our rulers must be above the law is not a fit mindset for a free people. If anything, our rulers should be MORE scared of the law, not LESS scared of it. Presidents should be scared that they're going to use their vast powers to do something illegal and get called on it, the same as the rest of us do. I don't have the power to shove a missile into someone, and I go in fear of the law all the time.
How so? "I used my authority as Commander in Chief, so it was an official act."
Again, do you even hear yourself? "This ruling maybe,; leaves one of the charges against Trump still standing." Trump tried to do a violent coup, and this ruling maybe leaves a single charge on that score intact, perhaps?
This would go to federal courts. It DID go to federal courts.
This is your argument? Really? "Bad actors might weaponize the judiciary, so our rulers should just be straight-up immune?"
Why do Presidents get to not worry about breaking the law, but the rest of us have to?
It's deeply rich that the man who is telling us "we need to put a Republican on our presidential ticket, NOW" is telling us "don't go to pieces."
And what will be construed as "high crimes and misdemeanors"? The "Roberts" court is in the bag for the right wing.
We all saw what threats of violence did to the cowards on the right wing when Trump was impeached.
The NYT still doesn't understand that they are enemies of the people, and therefore is subject to scrutiny by the IRS, among others. If the hand picked stooges of our judicial system can slow walk the prosecution now, so much for the "justice delayed is justice denied" motto.
Pftt! "I've got your guardrails right here."
"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
"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." - Kevin Drum
Who ya gonna believe? To me, Sonia found a way to describe, and Kevin found a way to ignore, what happened.
What baffles me is where in the Constitution these so-call "textualists" find any words to support the notion that a President can't be prosecuted. (Presumably they have actually read the Constitution, unlike Trump.) The Warren Court took a lot of criticism from conservatives -- some of it possibly deserved -- for drawing inferences from the general character and tone and spirit of the Constitution. Now this allegedly conservative Court is making up principles out of whole cloth about how the nature of the job of President is so unique and special and whatever that they can't possibly be subject to the same rules that all the rest of us live by. The Constitution *doesn't* say that, or anything like it.
Well, supposedly impeachment is the only remedy, but it's not clear where that even stands now. If the president is essentially immunnized from any legal accountability for anything he does while in office, then charging him with a "high crime or misdemeanor" is a moot point.
I note that the phrase "separation of powers" appears nowhere in the Constitution, nor, as far as I can tell, does any equivalent phrase.
And "coequal branches" is very clearly, at least to readers of standard English, completely contrary to the Constitution, which makes Congress the paramount authority.
You're absolutely right that the framers would have *never* imagined a reading of the Constitution that gave the Executive branch this kind of sovereign immunity. It's insane. I don't know what these justices are, but conservative, originalist, or textualist they are *not*.
I'd be willing to start the bidding with something like "reactionary monarchists"
This ruling effectively makes it close to impossible to impeach a president for anything, ever. Trump definitely couldn't have been impeached for his Ukraine extortion scheme. Definitely not for 1/6. Taking bribes or emouluments? SCOTUS has said as long as you receive the payoff *after* you've done the favor, it's no biggie. What about Congressional oversight? What's the point? The president and his cabinet have virtually free reign to do whateve they want without consequences, ever. Having your political rivals arrested? Hey, gotta protect...I dunno...something, duty, yada yada...
I'm not as sanguine as Kevin about this.
Criminal immunity is not impeachment immunity. Reading between the lines a bit, I see this decision as a judicial attempt to get Congress to exercise its proper function of checking the president rather than leaving it to the judiciary. In other words, the court wants to see criminal presidents impeached and then possibly prosecuted rather than being prosecuted without being impeached.
Which is a great idea in theory perhaps, but then what happens when one party in Congress, especially if it is in the majority, is complicit in shielding said president from impeachment and, hence, prosecution? As we saw with Trump. The implications of this decision are that if the same party controls the presidency and the Senate, at least, (and are a bunch of shameless, party-over-country sons of bitches) the president is, effectively, omnipotent.
It's a probably futile judicial attempt to get Congress to behave responsibly.
What will they impeach for if the court just made all President's acts in office legal by virtue of being committed by the President?
What "crimes and misdemeanors" are there left to impeach now? Have your opponent murdered by a government agency? That's now an official act, and the court said that all communications or surrounding evidence that could show the intent of the order was not an official act is protected and can't be reviewed, so what's there to contradict the President's word that it was an official act?
Note that the Constitution is quite specific that a president who has been impeached and removed from office CAN be prosecuted for the acts leading to his impeachment. Congressional determination that an act was a high crime or misdemeanor is logically prior to a determination that the same act was criminal.
How can Congress determine that a crime was committed if the SC just ruled that the Presient can't commit a crime if done as an official act?
SCOTUS didn't say the president can't COMMIT a crime; SCOTUS said the president can't be prosecuted.
Further, for impeachment purposes a high crime or misdemeanor is whatever Congress says it is; it's not dependent on criminal law in any way.
"Bribery is still illegal, even if you're president, and so is murder."
Erm.
If you are immune to prosecution for something, it's a moot point whether it's illegal or not, isn't it?
All a President needs to do in order to commit bribery or murder and be immune to prosecution for it is to shoehorn the action into an "official act." Sure, it can be challenged in court whether something is an official act or not ... but how long will that likely take, and what are the odds of such a challenge succeeding when it is directed at a person who, with plenty of advice, devised the act to fit the definition of being "official" -- ?
In American legal philosophy, "Governments are instituted among Men" in order to secure "unalienable Rights."
How secure are your rights when one individual -- never mind whether he has Presidential powers or not -- has been given free rein to violate the laws that have been created in order to secure those rights -- ?
The entire focus of every conservative person in public life is to legalize corruption.
One way or another everything they do is to legalize corruption.
You'd think Democrats could run on this.
Kevin, I think you got this wrong.
No one is above the law.
I always enjoy reading your blog, Kevin, but you are, on occasion, a bit overly inclined to think being a bright guy is all it takes to read a legal opinion and instantly appreciate its ramifications.
Anyway, to anyone who's interested in a "long view," I commend the following from Talking Points Memo's Executive Editor, David Kurtz:
https://talkingpointsmemo.com/morning-memo/the-supreme-court-took-a-sledgehammer-to-american-democracy
"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."
Isn't that the whole problem with this ruling? If the court cannot scrutinize the President's motivations, then all the rest of your logic falls apart. The President need only show that he *could* have had a legit reason for what he did, and that's a trivial exercise for almost any action no matter how abominable.
I might add that this ruling would be a lot less scary if the President's powers had not been growing steadily for decades. Each Administration pushes the boundaries a little further. Sometimes the courts push back, sometimes they don't, but the overall trend has been toward greater and greater Presidential authority.