The ruling states that the President is immune from prosecution while exercising official duties of the office of President but can be investigated by a special counsel that is appointed by an act of Congress, and if successfully impeached and convicted can then be charged with said crimes. “Unofficial” acts are not protected by this immunity but a special counsel is still required to be appointed by an act of Congress to investigate and then bring forward charges.
Out of context this is quite reasonable and level headed. In context of the hyper partisan landscape US politics are today, doesn’t seem likely without a supermajority opposition to be able to bring charges against a president, for official or unofficial acts that are crimes.
“In its ruling, the Supreme Court decided there was no question that Mr. Trump enjoyed immunity from being prosecuted for one of those methods: his efforts to strong-arm the Justice Department into validating his false claims that the election had been marred by widespread fraud. That was because the justices determined that Mr. Trump’s interactions with top officials in the department were clearly part of his official duties as president.” [1]
One of the president’s official duties is to direct the military to take actions that protect the country. Biden can reasonably claim Trump is a threat to democracy, and can officially request him to be killed. Right? If not why not?
1: https://www.nytimes.com/2024/07/01/us/politics/supreme-court...
Under this decision the president can commit a crime or order someone else to commit a crime, and as long as the crime is committed using a power of the office, it can't be charged.
For example, if in an official communication the president orders an officer to solicit a bribe for doing their duty, the president can't be charged.
It's ridiculous, horrible, and destructive to the constitution.
In reality, power can be consolidated to the point where these checks and balances no longer work properly.
Clarence Thomas even wrote openly that the concept of a special counsel is illegal.
The opinion explicitly rejects this line of reasoning.
> Transforming that political process [impeachment] into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government
- Trump's lawyers argued in this case that an ex-president can only be charged with a crime if he was impeached and convicted for that same act. But all of the justices rejected this view today. The newly granted immunity is orthogonal to whether or not the president is impeached.
- Though, the president does have to leave office somehow before he can be prosecuted. He can't be prosecuted while still sitting. This wasn't technically decided in this case, but the parties mostly agreed as much beforehand, and the majority opinion has a footnote approvingly citing an Office of Legal Counsel memo to that effect.
- Separately, Trump's lawyers argued that the special counsel that prosecuted him was not properly appointed by an act of Congress. But the Supreme Court did not grant certiorari on that issue and the majority opinion today did not address it. Justice Thomas's solo concurring opinion, however, did address it and agreed with Trump (but a concurring opinion has no legal effect). In any case, this is a different question from whether prosecutions of ex-presidents must go through a special counsel. As far as I know, there is no formal rule that would require it, but it's highly desirable as a way to avoid political bias. That question didn't come up in this case, though.
If so it is bad.
IMO the US president was already too powerful since the cold war, but this is crazy.
Well, the opinion is just as awful as everyone has said. For one thing, it is dishonest. The court spends a lot of time distinguishing the different presidential powers and levels of immunity, as if its holding had limitations. It doesn’t. The practical effect of Trump v. U.S. is that it is all but impossible to prosecute even the most heinous abuses of presidential power.
For another thing, the court really couldn’t manage even a semblance of textual or historical support for its decision. Given the court’s recent emphasis on fidelity to those sources, it really is astonishing! (And I say this as someone who is somewhat sympathetic to textualism in principle.)
I think it’s really worthwhile to read at least the syllabus and Sotomayor’s dissent.
France, for example, has prosecuted former presidents for things like bribery. But I don’t think you can prosecute a former president of France for something he told the Ministry of Justice to do.
I suspect this distinction between official and unofficial acts is also what most people assumed the law was, until Trump forced the Supreme Court to confront it under a particularly unsympathetic set of facts.
In context though, it's quite terrifying given how much the US has fallen into tribalism. Half the population wouldn't convict a certain candidate no matter what they did.
That's why I'm opposed to making changes to the way the Court is selected and empaneled.
The fact that it's inconvenient for one party right now is irrelevant. It'll be inconvenient for the other party soon enough.
> In context of the hyper partisan landscape US politics are today, doesn’t seem likely without a supermajority opposition to be able to bring charges against a president, for official or unofficial acts that are crimes.
Good. If it were easy to bring charges against a President, then Presidents wouldn't be able to do anything they were elected to do.
The failure of that protection at the end of the term is one of the major reasons for the end of the Roman Republic. If you repeatedly make powerful political figures choose between prosecution and violence, it won't take long for one of them to choose violence.
The fact that we've peacefully transitioned between presidents ~45 times is honestly rather amazing.
The president does not need this power and protection. The past 2 years are the first time this 'prosecuting a former president' thing has been an issue, and there are lots of unusual circumstances around it. To give the president such power in response to this seems like a very, very, very bad idea.
Presidents do not need protection from the people, the people need protection from presidents.
And we have it: 2nd Amendment, isn’t it?
The Founders envisioned an extremely weak criminal justice system, especially for "their class of people." Defendants were given extremely strong protections, and convictions were the exception, not the rule.
The Founders were more concerned about facing a duel than a criminal conviction.
So they added other mechanisms for presidential accountability: impeachment, elections, and the weakness of the office.
These other mechanisms have become weaker and weaker, while the criminal justice system has become stronger and stronger.
Impeachment's happen, but not Senate convictions. The political parties have created a duopoloy on power which allow them to run weak candidates. Congress is less and less willing to hold presidents of their own party accountable. Dueling is prohibited not just criminally, but constitionally in most states.
At the same time the criminal justice system is becoming more and more powerful. Convictions are in the high 90%. Juries are very weak and at the mercy of powerful prosecutors.
The Constitution simply didn't envision a situation where the criminal justice system is more likley to hold someone accountable than an election or Congress.
Impeachment, elections, and duels no longer deter bad conduct. Convictions do.
So we have an edge case: a system that can only hold an ex-President accountable via a criminal charge.
Edge cases are weird. They create "sometimes it works and sometimes it doesn't" situations. And that's where we are now.
This is because "their class of people" were an honor-based society, in which reputation was the currency of power, and people with honor were expected to prioritize the national interests above their own. That is no longer the case.
In other words, there hasn't been a duel. So there should be another enforcement mechanism for making Presidents prioritize the nation above themselves that actually works.
This is a bit misleading. DAs have latitude about what to prosecute and if they don't think they can win, they dont have to bring it to court.
The DOJ has a high conviction rate, at 93%, but Federal cases are the minority of cases in the USA. Most cases are state-level, and the conviction rates vary pretty significantly (E.g., California has a conviction rate of ~65% for property crime: Table 6 of https://www.courts.ca.gov/documents/lr-2019-JC-disposition-o... )
If that were true then defendants would waive their right to a jury trial. They don't.
The conviction rate is high because prosecutors don't bring weak cases.
The constitution didn’t envision a sprawling legal services market to secure the freedom of criminals despite overwhelming evidence while poor people are enslaved like cattle in a nakedly classist and racist exercise of state power to maintain class divisions that afford the empowered unearned wealth power and privilege by virtue of birth.
Speaking of trends here-exceptions occur and get held up as some gotcha that only further betrays ignorance of the system and actually represents the calculated tokenization of the oppressed to act as a shield to scrutiny.
Prosecutors don't go to trial unless they have a solid case especially against a former pres.
You want public servants to be able to do their jobs without fear of time-wasting litigation.
But, if you grant blanket immunity, the poilice (or POTUS) are free to do whatever they want.
We're quite clearly tilted way over into "do what they want" territory.
This doesn't mean that the president cannot be tried for some illegal act that was not their official duty. Murdering someone, for example.
However one could argue that this is the logical extension of qualified immunity for police officers which is precedent the court has already set.
To be clear though, I think qualified immunity of any sort shouldn’t be allowed. It’s a subversion of any kind of fair justice.
It is also worth nothing that qualified immunity provides no protection for criminal actions, the enforcement of which are an entirely separate challenge.
The redress has been assumed to be federal elections.
If the President were to abuse the law (to the extent he could with the power of the executive branch), then he would be voted out of office in (max) 4 years.
This does not mean, including from the majority opinion, that anything the President does is immune from challenges. If the President directs a cover-up for his campaign (Nixon) or directs a Governor to find enough ballots for him to win or directs "alternate electors" via fraud (Trump), this is not an official action. Trump's lawyers admitted as much in the oral arguments.
Presidents are effectively kings now, won’t be long until one declares himself one for good.
No, we do not. That's the whole point of the checks and balances. If his political opponents are able to prove their case before the courts, showing that the president broke the law, then they should be able to.
Hrm. Surely the implication you're outlining here is that the President will be breaking the law while carrying out "the roles of the office"? Is that not a concern?
Why?
In the UK we of course have no president; all government actions can be subjected to judicial review, whichever minister was in charge. Judicial review is a civil procedure, not a criminal one. All the court can do is order the government to reverse the unlawful decision, and make good its consequences.
Trump's counsel did admit this, but the opinion contains no such carve out. It says "he is entitled to at least presumptive immunity from prosecution for all his official acts" and declines to define what separates an official from an unofficial act, leaving it up to courts on a case-by-case basis. The dissent--rightly--points out that this is way more than Trump asked for:
> Inherent in Trump’s Impeachment Judgment Clause argument is the idea that a former President who was impeached in the House and convicted in the Senate for crimes involving his official acts could then be prosecuted in court for those acts. See Brief for Petitioner 22 (“The Founders thus adopted a carefully balanced approach that permits the criminal prosecution of a former President for his official acts, but only if that President is first impeached by the House and convicted by the Senate”). By extinguishing that path to overcoming immunity, however nonsensical it might be, the majority arrives at an official- acts immunity even more expansive than the one Trump argued for. On the majority’s view (but not Trump’s), a former President whose abuse of power was so egregious and so offensive even to members of his own party that he was impeached in the House and convicted in the Senate still would be entitled to “at least presumptive” criminal immunity for those acts.
It’s a strict constructionist interpretation, where the judiciary shouldn’t fix problems that the people, congress and States have the power to fix.
In the example of the President (Commander in Chief) directing the military to thwart political enemies, I think a strict constructionist might say, the people freely elected that President, 2/3 of States failed to pass an amendment curtailing the President’s unilateral command of the military and the Congress failed to impeach and convict the President, so the judiciary is hardly to blame when the people, congress and States all could have intervened if there was a concern.
There are obviously counter arguments to this strict constructionist view, which the minority documented. The counter-argument is basically, yes there are those other options, but we have to use a liberal interpretation in this moment instead of a strict interpretation in order to prevent some potential disastrous consequences. And if the people, states and congress don’t like our liberal interpretation, then they can overrule us using the same methods of voting, laws, constitutional amendments, etc. that the strict constructionists advocate.
Out of the US, US presidents have always had effective immunity from any consequences, committing war crimes, disrespecting local laws and eschewing even the UN. Kinda like an expected consequence of everything else.
"there are probably 10s of 1000s of them" also feels a little lacking to me. Do we have concrete examples?
No one (that I know of) seriously thought he should go to prison for those acts, but honestly the argument seems pretty easy to be made without some sort of immunity.
We have monarchy after monarchy to show that sovereign immunity builds toxic ontological relationships between participants of a political system, and often invites tyranny. Your suspicions, for 238 years straight, have been amiss.
This has always been presumed to be the case yet it has never resulted in what you say. It's a nonsense theoretical as cover for what is otherwise utterly indefensible as making the president king.
* Bush fabricated evidence to start a war and never got prosecuted.
* Obama's administration literally sold guns to a Mexican drug cartel for no apparent reason.
* Reagan had iran/contra
* various different "collateral damage" fuckups under every administration during my lifetime where dozens of civilians are killed but nobody cared because they're poor, brown, and not American
* Kennedy authorized the CIA to raise a private army and launch an invasion of a country we weren't at war with.
And many more, this is but a small sample of the crimes presidents have committed.
But nobody ever gets held personally accountable for anything until Doritos Hitler comes along and commits a series of crimes which, while unconscionable, are comparatively minor next to the above listed. This ruling hasn't actually changed anything. It just codified something that has obviously been true for at least 80 years, and it prevented one party from selectively applying the law to a political opponent in a way which it almost never gets applied.
So my defense isn't that the president should be above the law (he shouldn't), but that he obviously already has been above the law for a very long time and pretending otherwise is just lying to yourself and the american people.
Without immunity you’ll get the kind of shit they’ve done with trump, but against sitting presidents. Imagine if Obama had been arrested every time he entered Texas because the locals just feel like prosecuting him to send a message.
Okay, but now that hypothetical problem is solved, we have the opposite hypothetical problem. Let's see if it turns out to be more of an actual problem compared to your imaginary one, which never materialized in 250 years of the presidency.
My guess is it's going to be an actual problem almost immediately, as soon as someone with low moral character is elected. Wonder how long that will take.
> The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.
> Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.
Without protection the executive would be at the mercy of the judicial branch. This is clearly an inversion of power.
Perhaps the solution is clean out our legal system wholesale so that it is obvious to all involved whether an action or set of actions could not result in prosecution in the future. Such an action was not within the power of the supreme court.
Under this ruling, the court system is generally not a way to keep him accountable.
So it’s not that there is no accountability or way to “punish”, a rogue president, it’s just a different method of accountability than what applies to you and me.
So basically you have the right scared of former presidents being unjustly targeted in a way that threatens the democratic process, and then you have the left scared that the immunity will itself threaten the democratic process/enable dictators and corruption. Unjust use of prosecution as a political weapon vs just plain corruption being shielded.
It sure seems to me like it would be better if these matters could be handled on a case by case basis rather than in some black and white "former presidents can" vs "former presidents can't" be prosecuted way, but perhaps that is what will end up happening, not a legal expert.
That's largely what's happening here. The President _can_ be prosecuted for things that fall outside of the official role as President. This is not a blanket immunity.
You're in luck! The Supreme Court itself writes down why the decision was made. You can just…read it.
This is ridiculous! It's blatantly political and both parties are guilty of this. The justice system is meant to hold people accountable for breaking the law, not as an additional political mechanism for checks and balances. I haven't looked into the case and don't know the legal precedent SCOTUS used for this decision, but from a consequentialist standpoint this seems to me an obviously good outcome.
Today's ruling is a solution to a problem that no one has actually had for the last 250 years, and which no one currently has.
Can we prosecute Obama for ordering drone strikes on U.S. citizens? Can we prosecute Bush for the Iraq war? Can we prosecute Biden in a few months for deaths caused by his border policies?
Also, this is just how immunity works! Judges have immunity for their judicial conduct in office, and don’t lose it when they retire. When the GOP wins a trifecta next year, can they prosecute retired liberal justices for homicide for abortion rulings?
A president being incompetent or immoral in his line of duty is an issue for voters or congress to decide on. But a White House bogged down in lawsuits or petty criminal charges would cease to function.
Trump can now continually appeal his actions were official, delaying charges until after November when, if he wins the election, he can instruct the DoJ to drop the case.
This opens a can of worms - no one can today imagine what that means, with a willy nilly fluffy definition of official act.
> One example not relevant to this case but which came up in arguments was the hypothetical payment of a bribe in return for an ambassadorial appointment.
Under Monday’s decision, a former president could be prosecuted for accepting a bribe, but prosecutors could not mention the official act, the appointment, in their case.
So, imagine:
Prosecution: You took a bribe!
Defense: Bribe? No! It was just a gift.
Prosecution: It preceded the intended action, so it WAS a bribe.
Defense: What action?
Prosecution: Oops.
Nixon was never prosecuted because he was pardoned so the official acts stuff is moot. Crimes committed in war/putting down rebellion/etc are bad but more clearly within the scope of official acts than anything Trump is accused of.
Reagan, to the extent that he did/didn't coordinate with Iran to delay the hostage release, would be the closest parallel since it would have been a crime (Hatch act violation) in the direct pursuit of winning an election. But that was before he was president so this also wouldn't be relevant for today's ruling.
We don't prosecute ex presidents often because most of them either don't commit crimes or the ones they do are arguably part of the job. Trying to prevent the legitimate transfer of power is not close to a part of the job. The opposite in fact. Nixon only gets pardoned because he agrees to fuck off and spare the country the shitshow we currently have.
> The Constitution, of course, does not authorize a President to seek or accept bribes, so the Government may prosecute him if he does so. [... citations ...] Yet excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability.
(I wanted to quote Barrett since she's a Trump-appointed justice.)
I think you are looking at this backwards. There was an unwritten agreement between the people and the Executive, namely, that we understand there are things that you might have done or had to do while President that to the ordinary person would be a crime and we will let you ride off into the sunset unbothered after you leave office, but in exchange for this, we expect there to be a peaceful transfer of power. We have entrusted this experiment in democracy to you, and when its time to go, you make sure it is passed on. Even Nixon did this.
There have always been contentious elections - some have ended up in the courts - but at the end of the day, a process was observed and followed. Donald Trump was the first President to not respect this unwritten agreement between the Office and the people. And now conservatives are doing what they always do: They are saying that we the people are not protected when the Executive doesn't hold up their end of the bargain, but that we are bound to uphold ours.
For example, from my understanding this means that Nixon's tapes could never have been used in any form in a criminal trial regarding Nixon's actions.
In today's political environment I don't see an impeachment ever succeeding unless the opposing party has a super-majority in the US Senate.
But, yes, an impeachment or senate trial is likely unthinkable without a super majority. Driving conformity/uniformity is the goal of party politics.
It's supposed to be hard to do. Impeachment is intended to be reserved for egregious violations or actions that most of congress (and by proxy, the citizenry) agree on.
So Nixon tapes discussing his campaign probably would be admissible.
But AFTER the end of their (last) term why not be held accountable for their actions?
"The President might ignore laws on term limits, so we need to make laws that say he can't be held responsible for his actions".
That's clearly insane.
The claimed absolute immunity only extends to "official actions" made in discharging the responsibilities of the office, although a presumptive immunity (which is an immunity that a court could overrule based on lawyers' arguments that it doesn't apply) extends all the way towards the "outer perimeter" of the president's official responsibility. If things aren't official actions even in this "outer perimeter" sense, then the President doesn't enjoy any immunity according to Roberts' opinion.
And keep in mind that "official duties" in theory involves enforcing the laws that Congress has passed, so it's not carte blanche (except that Congress has given the White House a lot of carte blanche power to enforce various laws however it sees fit).
As for the "why", Roberts' opinion lays out these major statements:
1. The core matter of "why" should be, to try to make a precise application of the separation of powers doctrine. The powers need to be separated along some concrete lines, what are they. The claim Roberts makes is (in my words), if Congress were to pass a law that says "The Justice Department must be independent of the Oval Office," that would be arrogating some of the executive power which the Congress has exclusively vested into the Presidency, and would immediately fall afoul of the separation of powers doctrine. Similarly if they said "The President must under no circumstances send the lawyers of the Justice Department out to maliciously prosecute his political rivals for all their minor offenses," you know, that's a statement about how the laws are enacted and that's a power that simply wasn't bestowed upon Congress. And if all such laws would be void anyway, then the Court fundamentally can't find the President to be violating any law of that sort. So the determination is fundamentally that this immunity comes from separation-of-powers.
In the Constitution itself, Roberts points to the fact that the Constitution doesn't vest the executive power in "the administration" or some such, the power is vested directly in "a President" and they use that power to appoint their administration. The administration is their oyster.
2. Those concerns can be mitigated, renegotiated, reinterpreted by trying to appeal to what the original purpose of the power-grant was. So Roberts states flat-out what the Court's opinion was on the original purpose of the power-grant, and it's twofold.
2a. The power understood by the Framers, consists of marshaling the President's considerable resources towards enacting the laws passed by Congress. Roberts' decision goes to great effort to say that no man is above the law, that not all actions taken by a President-in-office are official actions, and that even among the official actions only the ones that directly pertain to enforcing laws and Constitution are part of "absolute immunity."
2b. But also, the framers of the Constitution intentionally built the executive branch to be "swift and decisive" after the Articles of Confederation produced an anemic executive branch that was unable to rally the States together to fight off the British. Being "swift and decisive" in this sense is almost just as hampered by after-the-fact prosecution as by in-office prosecution, because you are still having to evaluate "hey, if I try to enforce the laws that Congress passed by doing X-Y-Z, is this going to piss off some prosecutor enough to make my life hell after I leave office?" vs the same statement "...while I am in office?".
Of course, some amount of hesitation is warranted -- the President doesn't want to be impeached and potentially removed; and he would like to win another election. But Roberts is saying that the federal courts system isn't one of these sources of hesitation for those "I have these resources, and those laws to uphold, I am going to enforce these laws with such-and-so resources and those laws with those resources" concerns. Not during or after the Presidency, because it's not about "oh I have to go to court today", but rather about "Man, I have to go to Legal and get their opinion on this."
3. It lays out a foundational principle that the separation of unofficial and official actions should be done without any reference to what the President was thinking at the time, and without any reference to any generally-applicable laws. So if the President is doing something that a President could do as part of normal enforcement of the passed laws under normal circumstances, but is doing it for secret nefarious reasons and in a way that if a midrate businessman did so, they'd be guilty of fraud: Roberts says "that doesn't matter, it is still an official action regardless of his reasons and therefore swiftness applies and he's immune." And he outright states that this is for a "slippery slope" reason; the swiftness desired by reason (1) is not actually created if you then generate a legal loophole which says "well let's still have the courts consider these other parameters and maybe we can get the immunity disqualified."
The decision thus applies the absolute immunity to Trump's attempts to get the Justice Department to prosecute the (highly dubious) election fraud that he claimed had happened, and it applies the same immunity to Trump's threats to fire the Attorney General if he didn't do as Trump wanted. It says "yeah, it doesn't matter if you convincingly argue that Trump knew the election fraud was bullshit, and it doesn't matter if firing the Attorney General would have qualified at any other workplace as illegal retaliation."
4. Roberts makes it clear that as part of (2a) above he is not overturning past precedents which have placed presidents subject to the courts' subpoena power, even though that in theory also endangers some sort of "swiftness" of the job. So the judicial branch is kind of in this strange middle-ground position of "We can still demand our questions be answered, but we can't throw you in jail for doing what appears to be your job."
Kind of a strange ruling, but it's not total executive anarchy like you might expect. If Biden were to, say, tell his military "Go arrest the Justices, put them in overnight lockup, see how they like the world they created" there would probably be a strong case that, due to due process guarantees, Biden never had the power to order that and it qualifies as an "unofficial" act for which he enjoys no immunity.
The opposite holding, where they are liable for everything, would be untenable. Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans? It seems like that world would hamstring the president far too much.
I don’t know if they struck the right balance here (and we not know until the next time it comes up), but at least we have slightly more clarity.
> The opposite holding, where they are liable for everything, would be untenable.
Literally no one was arguing for this and there are much more reasonable interpretations of presidential immunity you could compare this one to.
This is a disaster for rule of law.
The question is, will everyone surrounding a president allow the president to commit mass cullings or nuke California. And the answer is clearly not, outside of delusional fantasy scenarios.
Trump wasn’t even allowed to build a wall, and you think his VP would have let him commit genocide?
Only where their actions were already criminal under the law. This is the problem. No-one should be above the law.
Unintentionally? American citizens were the intended targets of some of his drone strikes. They weren't in warzones either, it was effectively murder.
I feel like you'd have a different opinion if it were you getting unintentionally killed!
How would attempting to overturn the results of a free and fair election be considered an "official duty"? If it is, then the Presidency became a dictatorship, leaving impeachment by Congress -- an extremely difficult bar -- the only recourse.
I'm fairly sure there's a full and complete list of these is explicitly in the Constitution.
Roberts disagrees in the decision (p. 17):
> Distinguishing the President’s official actions from his unofficial ones can be difficult. When the President acts pursuant to “constitutional and statutory authority,” he takes official action to perform the functions of his office. Fitzgerald, 457 U. S., at 757. Determining whether an ac- tion is covered by immunity thus begins with assessing the President’s authority to take that action.
> But the breadth of the President’s “discretionary respon- sibilities” under the Constitution and laws of the United States “in a broad variety of areas, many of them highly sensitive,” frequently makes it “difficult to determine which of [his] innumerable ‘functions’ encompassed a particular action.” Id., at 756. And some Presidential conduct—for example, speaking to and on behalf of the American people, see Trump v. Hawaii, 585 U. S. 667, 701 (2018)—certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision. For those reasons, the immunity we have recognized extends to the “outer perimeter” of the President’s official responsibilities, covering actions so long as they are “not manifestly or pal- pably beyond [his] authority.” Blassingame v. Trump, 87F. 4th 1, 13 (CADC 2023) (internal quotation marks omit- ted); see Fitzgerald, 457 U. S., at 755–756 (noting that we have “refused to draw functional lines finer than history and reason would support”).
> In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of of- ficial conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II in- terests that immunity seeks to protect. Indeed, “[i]t would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government” if “[i]n exercising the functions of his office,” the President was “under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry.” […]
> Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. For in- stance, when Fitzgerald contended that his dismissal vio- lated various congressional statutes and thus rendered his discharge “outside the outer perimeter of [Nixon’s] duties,” we rejected that contention. 457 U. S., at 756. Otherwise, Presidents would be subject to trial on “every allegation that an action was unlawful,” depriving immunity of its intended effect. Ibid.
* https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
The disallowing of considering even corrupt intent seems to be the real worry here. There's no distinction between using your power to promote general welfare and using it to line your own pockets or subvert democracy.
https://en.wikipedia.org/wiki/Anwar_al-Awlaki
https://en.wikipedia.org/wiki/Killing_of_Abdulrahman_al-Awla...
To my mind, that is exactly the sort of thing I'd like to be hamstrung by a fear of prosecution.
(Trump ordered drone a drone strike that also killed Abdulrahman's eight-year-old American sister.)
except Obama ordered plenty of drone strikes including on American citizens, so actual data suggests he was not "hamstrung" at all.
How about the one which intentionally killed an American child (16)?
Part of me wouldn't mind seeing that, but, I would have to agree that was an official act, regardless of how despicable it was.
But what's an "official act"? I would hope that courts consider that definition very narrowly. Also disallowing juries to see discussion of official acts as evidence for related wrongdoing is disastrous.
Ultimately, though, it won't matter. Trump has effectively managed to delay this particular trial, and much of the remainder of its pre-trial process, until after the election and after the inauguration. I assume if he wins and takes office, he can instruct the DoJ to dismiss the case against him.
The Georgia case can still proceed, regardless of the outcome of the election, but Willis completely screwed that one up with her idiotic romantic decisions.
> Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans?
If you're not referring to this, Obama's already done this without getting charged.
Being POTUS is an unenviable job.
https://en.wikipedia.org/wiki/Anwar_al-Awlaki
Edit: Since people are assuming my views on this topic, I'll say that they're seriously conflicted and I'm not trying to imply any particular viewpoint, only the facts.
And as a liberal I think “hell YES he should be prosecuted!” The government shouldn’t just go around killing citizens without due process. I don’t care what letter is by their name.
But... It seems he was a member of al-Qaeda, and the "Public Law 107–40 107th Congress Joint Resolution" passed by congress did authorize:
> That the President is authorized to use all necessary and appropriate force > against those nations, organizations, or persons he determines planned, > authorized, committed, or aided the terrorist attacks that occurred on > September 11, 2001, or harbored such organizations or persons, in order to > prevent any future acts of international terrorism against the United States > by such nations, organizations or persons.
That does seem to authorize extra-judical killing in this case. I am not really happy about any of this, but since we are talking legalities, this seems to apply.
https://www.congress.gov/107/plaws/publ40/PLAW-107publ40.pdf
Remember that the President can still be impeached for "high crimes and misdemeanors".
Am I wrong there?
Regardless, impeachment is there to remove the president from power. It can't jail or otherwise punish the president. The regular old legal system should be doing that, for everyone, regardless of whether or not they're an elected official.
Fortunately, the past rulings of this court have made the jurisprudence abundantly clear:
If Biden orders Trump to be assassinated, that's unofficial, and he can be prosecuted.
If Trump orders Biden to be assassinated, that's official, and he has complete immunity.
Easy, right?
Also I think we should all be reminded that there is separation of powers for a reason. The President is ultimately largely beholden to Congress. The government cannot sink into a dictatorship without the explicit approval of the majority of Congress. It is Congress' duty to remove Presidents from office that it feels are a danger to the country.
All these checks and balances still exist and will still be enforced. The President can not unilaterally go off the rails as many of these extreme hypotheticals seem to be implying.
I've got a pretty good guess, and it will be based on the political party of the defendant.
This is nonsense. The President can just assassinate all of their political rivals in Congress that would hold them to account. Before this ruling there was an assumption that any such actions would be prosecuted after the President was no longer in office (assuming they didn't have enough power to interfere with a free election). Now that can't realistically happen.
There's a reason why folks are saying this ruling, "paves the way to a dictatorship"!
People are jumping on language in the decision that says discussions or probings about the criminal nature of the crime would not be admissible.
So Nixon ordering Watergate would still be admissible - Nixon discussing with his legal team or cabinet after Watergate broke would not be.
Most likely not. Watergate was a result of an election campaign, not official acts as President.
> Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.
And the 'smoking gun' implicating Nixon:
> Nixon then released the tapes six days later. On one tape was the so-called "smoking gun," showing that six days after the break-in Nixon had tried to use the CIA to block the FBI investigation of the burglary.
IANAL, but my understanding is under this ruling those tapes would have never been made permissible evidence in court. Giving orders to the CIA is certainly an official act, as much as granting pardons is, and this court has established the examination of said motives is out-of-scope:
> In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such a “highly intrusive” inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose. Fitzgerald, 457 U. S., at 756. Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.
https://teachingamericanhistory.org/document/transcript-of-d...
That's exactly what Silvio Berlusconi did in Italy.
I honestly, need to unplug from news, and just focus on nature.
With fear for our democracy, I dissent."
and
“Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today. Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.” “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
- Justice Sotomayor
"but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."
I don't think this ruling is, on the surface, exactly what people are making it out to be. It certainly maintains a high bar for criminally prosecuting the president for something they do in office, but it is not allowing them to commit crimes with impunity.
1: https://constitution.congress.gov/browse/article-1/section-3....
If we refuse to recognize that harm under the current Rule of Law, then who is going to identify and prosecute "harm" besides politically motivated ideologues? It sounds like a surefire way to cement the separation of the Executive office from it's respective checks and balances.
https://news.ycombinator.com/item?id=40529062#40529905
Sotomayor has channeled her inner-Scalia in her dissent, and she hit the nail on the head. This is now kingship, this is de-facto sovereign immunity.
This ruling was not constitutionally purposivist, it was not textualist, it was not originalist. It goes against the very founding of America in the contexts of its original conception and revolution. This is BAD.
What a sad shameless age. It's embarrassing as hell having these useless Federalist Society shills tearing down the respectability of this nation. Utterly brazen. How 40%-50% of the population can be so on board with this, be so excited & happy to see such endless Calvinball for their team is beyond imagining. It feels like liberals always are hungry for more or different from our own, will criticize our representatives endlessly, but there's an unmatched purity of boosterism for any win any win at all no matter what that's totally taken half the country, that there's no system of moderation or self assessment left.
Sotomayor's scathing dissent sums up my concerns on the matter. Even for Barrett, a conservative, the majority opinion was a bridge too far: even bribery now enjoys absolute immunity.
https://www.latimes.com/world-nation/story/2024-06-26/suprem...
On the whole the principle of this ruling is sound:
The President shouldn't be in a position where he has to wonder before each choice if he'll later be prosecuted for it or not. The boundaries of official acts should be spelled out clearly in the law, and when acting within those boundaries the President should be confident that he's authorized to make the tough calls.
The ambiguities that this ruling brings to light were already there, this ruling only exposes them. President Obama could theoretically have been personally prosecuted for killing al-Awlaki and now he can't.
Now it's time for us to explicitly identify in the laws what the President can and cannot do. That's a change that's long overdue.
We’re probably a decade away from a coup.
Rep. Adam Schiff gave the following interpretation: "Effectively giving a president immunity for any crimes committed while in office as long as that president can plausibly claim the action was taken in some form of official capacity. It must now be presumed that the president, as king, is immune from accountability."
https://www.militaryjusticecenter.com/blog/2022/03/can-you-r...
Strange that only now, with a super majority of conservatives and a 'conservative' former president facing insurrection charges, that such a ruling should come down.
And all this after McConnell assured us that impeachment wasn't appropriate for a 'criminal' matter like January 6.
There have been multiple awful titles of for this ruling, yours was exactly correct.
During tenure, he can only be impeached for anti-constitutional acts, and the only punishment if found guilty is removal from office.
All in all, it sounds quite similar to this SCOTUS ruling, but of course, the consequences for the world are mitigated by the fact that globally, our president is a very, very small player.
https://www.documentcloud.org/documents/24785411-trump-v-uni...
https://www.scotusblog.com/2024/07/justices-rule-trump-has-s...
Da da da da-da, da-da-da-da daayyy-ya-da, da-da da da da-dayyy-ya da
In all our legislative executive and judicial war, there seems to be less and less reason for restraint, for avoiding constitutional crisis, and to grab power by whatever means so that the other side does not. This ruling by the Supreme Court, as many people are commenting on social media, creating Powers Biden too, and there seems little reason not for Biden to pack the court, for the Senate to go to majority rule and rid themselves of the filibuster.
If we keep pushing the boundaries we will fall, or we will reconfigure.
Judgment in Cases of Impeachment shall not extend further than to removal from Office,
[...]
The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
This:
"Impeachment for, and Conviction of"
"Impeachment for and Conviction of"
"Judgement in cases of Impeachment"
"Conviction in cases of Impeachment"
Such would imply that presidents can be Impeached and Judged, and Convicted.
(Furthermore, it clear that the founders' intent was not to create an immune King.)
Impeachment process takes time, and in that window, the president can do whatever. POTUS can even mobilize the army (an official power) to block congress from meeting, since apparently the motive behind the use of official power doesn't matter. If they can't meet, how are they going to impeach.
Edit: My example was going to be if the President addressed the nation and declared himself to be king… but Biden literally just did that, reluctantly accepting that he was beyond the review of the courts and accountable to no one but himself.
Any and all communications outside of the executive order would not be admissible as evidence even if the DOJ did want to prosecute!
The problem is what will democratic presidents do with this fundamental alteration of the three “equal” branches that now leaves Congress as the weakest link.
What will republican presidents do?
And of course, what would Trump do?
I think front and center is Stephen Miller’s desire to reverse that future demographic by either incarcerating or deporting anyone that isn’t white or even sympathetic to a white nationalist movement.
This is real people. And very frightening.
I find it particularly concerning regarding the military. The President is Commander in Chief, and thus any orders he gives or attempts to give to the military would be undeniably official acts. This was even brought up in oral arguments, where it was asked of Trump's council "if the President ordered Seal Team 6 to assassinate a political rival, would that be considered an official act?" I find it absolutely terrifying that this possibility was brought up, and any mention of the military is conspicuously absent from the majority decision, even in passing (though Sotomayor explicitly brings it up in her dissent).
The most concerning part is how this decision is being made entirely on constitutional grounds. At least in the case of Rowe v Wade being overturned, we have the possible remedy of Congress passing a law enshrining the right to an abortion. But here, there is no legislation Congress could pass to create criminal liability for the President, no executive action. The only option would be a constitutional amendment.
I think we have fundamentally different views of the Executive's role. We have 3 branches of government, and the President is the guy who enforces the law. The Justice department is not a 4th branch of government.
> Please don't post comments saying that HN is turning into Reddit. It's a semi-noob illusion, as old as the hills.
(I'd like to think that there's no way it's an "official act" of a president, but again, IANAL.)
The court is granting him blanket immunity on one count, and the rest the prosecutors need to clarify that the crimes were outside of the duty of his office.
> Donald Trump’s legal team will likely use Monday’s SCOTUS opinion as they challenge the New York hush money criminal verdict itself on appeal, a source familiar with their thinking tells CNN.
> Trump’s team thinks the SCOTUS option could be used to challenge portions of Hope Hicks testimony as well as some of the tweets entered in as evidence, according to the source familiar.
> CNN earlier reported the Trump team sees the opinion as “a major victory” because in addition to using it to try to get charges tossed, they can also use this opinion to get evidence related to official acts tossed in all cases — not just federal — which can hurt prosecutors’ ability to prove what charges are left.
Until the system can be reformed to deter and slow such radical acts, there would be no hope of stability of the United States.
My out-of-my-ass fix is that each Justice is on an 18-year term. Every two years one Justice is replaced. Two per Presidential term.
Makes it legitimately fair. Elect a President, get two Justices. None of this "one corrupt game-show host accidentally gets to appoint half the Court" horseshit.
> The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
> A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. ... But it is not possible to give to each department an equal power of self-defense. ...The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.
I think not enough people have read the Federalist papers. They are an important context to why the US was founded and what problems it was trying to solve. Littered throughout them are discussions of how power creeps and how functions couple. How government can do great good but at the same time great harm. They reiterate the notion that liberty is hard work and many of the writers fear things like parties as they are not only concentrations of power but umbrellas to remove thinking. You can see them wrestle with ideas and that they know they aren't getting them right, but instead try to set a framework that can course correct to adapt to the unknown unknowns.
But however you read them, I think you can and will read that such a conclusion is precisely the thing they were trying to stop. There is no ambiguity in this. They were fighting against monarchs who have written into the law that they are above the law. At least as it pertains to others. And so that's what that phrase means "no one is above the law" that not so literally (because making a law that makes special cases for you would not technically make you "above" the law, but part of it), but rather that the laws apply equally to all peoples and entities. That there are no special cases because there are no "to big to fail" and "too important to prosecute". Because the belief is that if it is wrong for one man to commit an act, then it is wrong for any man to commit such an act.
[0] Federalist 51: https://avalon.law.yale.edu/18th_century/fed51.asp
- Actions within the President's conclusive and preclusive constitutional authority: Absolute immunity, in accordance with constitutional separation of powers.
- Other actions done within an official capacity: Presumptive (though not full) immunity, to "to safe-guard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution."
- Unofficial actions: No immunity.
Who is the arbiter of whether an action is official or unofficial? The courts, according to the ruling: "The Court accordingly remands to the District Court to determine in the first instance whether Trump’s conduct in this area qualifies as official or unofficial." In this case, a very liberal judge appointed by Obama.
One may disagree with the ruling, but it does not, as Sotomayor (who recently has been making more public and political appearances than is appropriate for someone of her position [2]) states, give the president the ability to drone strike his political opponent.
[1] https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
[2] https://www.cnn.com/2024/05/24/politics/sotomayor-crying-sup...
> Unable to muster any meaningful textual or historical support, the principal dissent suggests that there is an “established understanding” that “former Presidents are answerable to the criminal law for their official acts.” Post, at 9. Conspicuously absent is mention of the fact that since the founding, no President has ever faced criminal charges—let alone for his conduct in office. And accordingly no court has ever been faced with the question of a President’s immunity from prosecution. All that our Nation’s practice establishes on the subject is silence.
Literally on the next page, here's Roberts arguing that though something has never happened (criminal prosecution of a former president) it is very likely to happen:
> The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next. For instance, Section 371—which has been charged in this case—is a broadly worded criminal statute that can cover “ ‘any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.’ ” United States v. Johnson, 383 U. S. 169, 172 (1966) (quoting Haas v. Henkel, 216 U. S. 462, 479 (1910)). Virtually every President is criticized for insufficiently enforcing some aspect of federal law (such as drug, gun, immigration, or environmental laws). An enterprising prosecutor in a new administration may assert that a previous President violated that broad statute. Without immunity, such types of prosecutions of ex-Presidents could quickly become routine. The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid.
Just like, full on embarrassing. These guys need better clerks or something.
In the worst case they might have to resign before being impeached but at that point they are permanently immune.
Germany 1933.
The movie “Vice” explains well what this is about.
It’s was originally imploded by President George W Bush.
—-
SCOTUS essentially ruled in favor of this theory.
Well yes. And since the Supreme Court just clarified the law... Isn't THIS White House the first that might use what was until now a misunderstanding?
It all falls apart and gets too complicated to regulate when the assumption is that you can't trust the person in office.
No, that's not what the existing laws or system rests on.
The system rests on the fact that the Commander in Chief is an elected representative, and therefore their actions represent the will of the people. Washington Post might not think he is rational. A random Judge might not think he is rational. You might not personally think he is rational. What is "rational" is determined at the ballot box, or via the impeachment process in the legislature.
- https://www.lawandchaospod.com/p/ep-43-well-so-much-for-the-...
- (non-paywall link) https://podcasts.apple.com/us/podcast/ep-43-well-so-much-for...
But to somewhat address the sentiment: We can replace the machines and keep the line operators.
edit: Not sure now, should the government be considered the people running the country or the formula?
Hoboy, I hope there's not another round of Trump...
No one and nothing should be above the law, even temporarily, period. That just opens up so many cans of worms.
Is it even possible for the President to break the law? What would that look like?
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.
We can't protect democracy by throwing it out the door, and hoping you still get elected come fall. If Biden would take advantage of this ruling in a way the American public doesn't like, he won't be elected. So he would have to further throw out democracy the way Trump is comfortable doing, by ignoring the election results.
But enough Americans seem to be leaning towards re-electing Trump such that he'll have 4 more years in office to perform official acts to his heart's content and set himself up for whatever he has in mind by the end of his term, January 2029.
Starting on page 44 of the opinion, Thomas makes some very good points.
I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure. If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President.
No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country. And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes. If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.
...
Even if the Special Counsel has a valid office, questions remain as to whether the Attorney General filled that office in compliance with the Appointments Clause. For example, it must be determined whether the Special Counsel is a principal or inferior officer. If the former, his appointment is invalid because the Special Counsel was not nominated by the President and confirmed by the Senate, as principal officers must be. Art. II, §2, cl. 2. Even if he is an inferior officer, the Attorney General could appoint him without Presidential nomination and senatorial confirmation only if “Congress . . . by law vest[ed] the Appointment” in the Attorney General as a “Hea[d] of Department.” Ibid. So, the Special Counsel’s appointment is invalid unless a statute created the Special Counsel’s office and gave the Attorney General the power to fill it “by Law.”
Whether the Special Counsel’s office was “established by Law” is not a trifling technicality. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office. Given that the Special Counsel purports to wield the Executive Branch’s power to prosecute, the consequences are weighty. Our Constitution’s separation of powers, including its separation of the powers to create and filled offices, is “the absolutely central guarantee of a just Government” and the liberty that it secures for us all. Morrison, 487 U. S., at 697 (Scalia, J., dissenting). There is no prosecution that can justify imperiling it.Also, the fact that other Presidents did illegal shit and we didn't prosecute them, thus they are above the law is also absurd.
The current ruling whips out the, "there's nothing in the constitution stating we can do things we've always done" when its convenient, then goes on to say, "we've always been doing it this way, implying it's in the constitution" when its convenient.
The same actions committed by two different presidents could vary hugely in their motive - one might be legitimately concerned about voter fraud and the other trying to interfere maliciously with election results.
Admittedly the bar would be high to prove malicious intent (eg. acting out of self interest rather than in the interests of the office/country) but that still seems better than just saying that a given action, regardless of motive, is covered by immunity.
> In dividing official from unofficial conduct, courts may not inquire into the President’s motives
Change isn't necessarily a bad thing... Imagine if we had a new court every four years and one of them behaved like the current SCOTUS, overturning over a hundred years of precedent basically every chance they get. The damage could be undone just as quickly.
I would consider this an extreme knee jerk take, but it's Sotomayor saying it.
> The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive. The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.
https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
EDIT: OP left a reply to this comment that I think was unfairly flagged, visible here with showdead:
In theory, some prosector could have decided to charge Obama with a crime, and maybe even achieved a conviction in a jurisdiction where he's unpopular.
This decision says that shouldn't happen because it was an official act as president.
Of course, if congress doesn't like something a president is doing, they can change the laws and remove his or her legal authority to do something.
What does that even mean if it's impossible to prosecute the President? What does that even mean?
> the court has left nearly no sphere in which the president can be said to be acting “unofficially.” And more importantly, the court has left virtually no vector of evidence that can be deployed against a president to prove that their acts were “unofficial.” If trying to overthrow the government is “official,” then what isn’t? And if we can’t use the evidence of what the president says or does, because communications with their advisers, other government officials, and the public is “official,” then how can we ever show that an act was taken “unofficially?”
The silence from the people who once decried the 'activist court' now that it's an ally of the slow fascist transformation is deafening.
> In dividing official from unofficial conduct, courts may not inquire into the President’s motives.
So the hypo cannot be trivially resolved by treating the kill order as an unofficial act. Instead, for the president to be _criminally_ liable, I think (as not-a-lawyer) it has to be resolved by piercing 'presumptive immunity' for actions beyond the core powers. While there's a needle to thread, it feels disturbingly narrow.
That seems like the majority opinion agrees.
It'd be hard to argue that commanding the military wasn't an official act of the president under the Constitution even if that command was to Navy's Seal Team 6 asking them to assassinate a political rival for reasons of "national security"
EDIT: This ruling probably retroactively clears Nixon from Watergate. It would make it illegal to use the tapes as evidence against him.
I’m also skeptical of her dissent strategy; dissents are key places to limit a ruling. Why not just say what seems crystal clear and say ‘nothing about this ruling should be taken to mean calling something an official act as a fig leaf for criminality is okay; it’s not okay to assassinate a political rival ever.’ Instead she says it might be okay by the ruling. I dislike this approach in the extreme; it feels like grandstanding and complaining about the Roberts court rather than engaging with her own substantial influence.
If a member of Seal Team 6 did assassinate a political rival of the President, would they also be immune from prosecution? To me it sounds like the kind of order they would refuse.
Think about how the Executive handled rival political movements in the past. The Black Panthers. CPUSA circa 1919. Now imagine Fred Hampton had been running for President when he was killed.
The line between "political opponent" and "enemy of the State" can become pretty blurry. This ruling gives the Executive broad power to act in its own interests when it can claim the line is blurry.
Everyone thinks lines don't get crossed, until they do.
This is an opinion that might make sense if we were being asked if a president ordering drone assassinations makes him liable for murder. In the context of the president trying to instigate a coup for not being reelected, to the point that his own government is threatening mass resignation if he carries it out in protest at the sheer unconstitutionality of it... this is the kind of question that almost begs SCOTUS to say "make a narrow ruling as to whether or not this specific instance is permissible" and SCOTUS decides instead to make a grand, sweeping proclamation for all ages and circumstances and neglect to look at the specific facts in this case and leave it unanswered here.
Roberts, let this case be your Dred Scott decision, your Korematsu decision. You've certainly done more to torpedo the credibility of the court in one decision than any other case in the past few decades... and that's saying quite a bit.
> The dissents’ positions in the end boil down to ignoring the Constitution’s separation of powers and the Court’s precedent and instead fear mongering on the basis of extreme hypotheticals about a future where the President “feels empowered to violate federal criminal law.” [...] The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself...
Also important to note is that the hypothetical didn't sprout from thin air, Trump's lawyers (whose arguments SCOTUS in large part accepted) acknowledged that extrajudicial assassinations would fall under official acts.
https://thehill.com/regulation/court-battles/4398223-trump-t...
(I can't tell whether the OP was confused by this, but the linked Tweet has enough people being confused by it to make it worth mentioning.)
The majority opinion even had the gall to call the prosecutions "hasty" when we're largely talking about things that happened in 2021.
But this decision is so much worse than many (myself included) expected. Not only is there blanket immunity for "official acts" but there is presumptive innocence for anything on the peripherey. Even worse, if something is a statutory or constitutional power of the office of President, the reason does not matter. The reason can't even be considered in deciding if something is an "official act" or not.
So the president has the right to issue pardons with ultimate discretion. If they want to sell pardons, now they can. Why? Because the reason this "official act" happened is irrelevant. That's what the Court decided.
Same for selling judgeships or presidential appointments.
We already have the donor-to-ambassador pipeline [2]. Now we don't even need the ruse of it being a donation. The President can simply sell ambassadorships for personal gain.
That's what this decision did.
[1]: https://www.cadc.uscourts.gov/internet/opinions.nsf/1AC5A0E7...
[2]: https://campaignlegal.org/press-releases/new-campaign-legal-...
"But not for this! This would be clearly corrupt!" you may say, but the decision addresses that as well; the President's motive for the "official act" cannot be introduced as evidence!
> In dividing official from unofficial conduct, courts may not inquire into the President’s motives.
What does the judge who reviews the case think?
That's literally the only thing preventing that scenario from playing out.
To the contrary -- this is an explicit example that came up during oral arguments, where a Trump lawyer specifically claimed that indeed, Trump could not be convicted criminally of this (unless he had first been impeached and convicted).
Nowhere in the majority opinion does it try to draw some kind of line against this. And indeed, the President is constitutionally "commander in chief of the Army and Navy of the United States", and the opinion states this authority is "conclusive and preclusive".
Quite simply, according to this decision, anything the president commands the Navy to do, including a Navy Seal, is an official act because it a power explicitly granted by the constitution, and thus immune from prosecution.
To repeat: this specific scenario was brought up during oral arguments, indeed as one of the main arguments that was also widely reported. This is not a far-flung wacko example Sotomayor came up with herself -- it's the very heart of the case. The fact that the opinion does not even attempt to explain why this would still be considered criminal, and the fact the Sotomayor is confirming why it would be allowed, is not a misreading or a mistake. It is clearly intentional and genuinely scary.
Nice bit of jujitsu by Trump's defense. Make an outrageous claim so out of bounds that any one who quotes you sounds like a lunatic.
Surely the critic is exagerating, lying, offbase, or... ? No one would seriously claim they could murder some rando on Fifth Ave in broad daylight and get away with it. Right?!
Results in opponents discrediting themselves.
Brilliant.
> The immunity the Court has recognized therefore extends to the “outer perimeter” of the President’s official responsibilities, covering actions so long as they are “not manifestly or palpably beyond [his] authority.”
I’m hoping that the assassination of a political rival would be “palpably beyond” the authority of the President.
This seems like a path towards civil war.
[edit] Thinking about a way out of this mess. Here's a proposal.
Biden asserts that he has this right, writes up a new amendment taking the right away, gives a date by which he will take action if the amendment has not been passed.
(Then he should probably resign for effectively blackmailing the legislative branch)
> I would consider this an extreme knee jerk take, but it's Sotomayor saying it.
Wouldn't something like that be essentially an illegal order and therefore invalid? And/or something that would be trivial to fix (e.g pass a law saying it's not within the president's official powers to order a domestic assassination)?
[0] https://abcnews.go.com/Politics/seal-team-6-assassination-hy...
The dissent notes that official acts as a defense is already A Thing. What’s changed is upgrading that to immunity, which means they can’t be tried in the first place, no defense needed. The law is simply held not to apply.
https://www.amnestyusa.org/updates/is-it-legal-for-the-u-s-t...
FYI, the court is not saying Trump is granting Trump blanket immunity. For three of the counts the court is saying Trump is probably not immune but prosecutors need to clarify that his acts were outside of the duties of his office.
> Unlike Trump’s alleged interactions with the Justice Department, this alleged conduct cannot be neatly categorized as falling within a particular Presidential function. The necessary analysis is instead fact specific, requiring assessment of numerous alleged interactions with a wide variety of state officials and private persons. And the parties’ brief comments at oral argument indicate that they starkly disagree on the characterization of these allegations. The concerns we noted at the outset—the expedition of this case, the lack of factual analysis by the lower courts, and the absence of pertinent briefing by the parties—thus become more prominent. We accordingly remand to the District Court to determine in the first instance—with the benefit of briefing we lack—whether Trump’s conduct in this area qualifies as official or unofficial.
The President shouldn't have the legal authority to conduct any drone strikes without a declaration of war from Congress. We've been ignoring the Constitution for a very long time.
What part of the Constitution are we ignoring?
According to the Constitution, the President is the Commander in Chief of the armed forces. The Constitution does not say that war must be declared for the armed forces to operate. Thus, ordering a drone strike without Congress' input would seem well within the scope of the President's powers.
It does. Armed forces killing people is a state of war. If not, it's policing then it's under the judiciary authority, not the president.
There are a number of amendments that could be pretty reasonable argued to give citizens the right not to get killed by drone strikes.
Drone strikes on foreign targets are most analogous to the historical practice of issuing “letters of marque and reprisal,” which allowed private actors (privateers) to act on behalf of the state to take out pirates.
Issuing such letters is an enumerated power of Congress, not the Presidency. So if the President does so unilaterally, they are acting outside their Constitutional authority.
The risks of abuse to military power are real and significant, which is why the power was placed in the body closest to the people - so that such actions would be consistent with the public will.
https://constitution.congress.gov/browse/article-1/section-8...
Yes it does, by reserving for Congress the right to declare war. Obama's drone strikes were carried out under the 2001 AUMF against al-Qaeda and the Taliban.
At the same time, the president's agencies no longer have the authority to do whatever they want.
So I guess the president can order the military to drone strike the FCC if he wants at this rate. I don't see what influence the Constitution is still going to have at this point.
Since Thomas Jefferson sent Navy & Marines after the Barbary Pirates without consulting Congress.
I mean, if Obama went to prison for the drone strikes he ordered, his sacrifice would be less than many common soldiers have made.
I want Presidents willing to put their lives on the line and their actions under the law. Is that too much to ask?
> As the Supreme Court concluded, the United States is in an armed conflict with al-Qaeda, and Congress’s 2001 Authorization for the Use of Military Force—along with the president’s commander-in-chief authority under Article II of the Constitution—provides ample domestic legal authority to conduct military operations against al-Qaeda.
tl;dr: We haven't been ignoring the Constitution for a very long time.
Indeed, the concept of immunity is recognized in the American constitution for legislators in a limited way, so this isn't an oversight by the framers corrected by Robert's conservative majority, rather the lack of immunity for the executive is a feature and not a bug of our constitution, and all republican forms of government.
Ironically the American president now has more power than the King of England, George the III, at the time of the American independence. King George had to follow the laws of Parliament, as did all Kings of England since the passage of Magna Carta some 500+ years prior.
As of today our President no longer has to obey the Constitution or the law so long as the act is deemed "official" by the conservative majority.
That core concept of immunity is pretty solid and essential, it is the details that are problematic, in particular the fact that the courts have interpreted "official" acts so broadly in the past in cases of qualified immunity makes one worried they will do the same here.
The Democrats have now become the conservative party. Both in the abstract of wanting slow cautious change, and in the concrete principles that have long been held as conservativism - belief in American institutions, strong foreign policy to spread those institutions, the rule of law, and now even fiscal responsibility with having led the pull up from ZIRP!
Combined with Chevron doctrine precedent, agencies could enact what the executive branch wanted if the standard quo process failed
Roberts' opinion covers this, as do many discussions of textualist interpretations -- not being set out in the text specifically doesn't mean that it doesn't exist, for textualist interpretations. Roberts' example is separation of powers. There's no "separation of powers clause," but the concept is pretty clearly set out in the text anyway. They say the same is true for immunity for public acts, and they provide reasoning. I disagree with some of the reasoning, but there are much more tenuous things read into the Constitution by the Supreme Court than this one.
And if the Constitution includes immunity for public acts, so much the worse for the Constitution!
> Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.
> With fear for our democracy, I dissent.
Chilling words.
that's not anything new though, Obama's drone strikes weren't ordered until his lawyers felt they had a very good defense for him in case he was charged with assassinating US citizens without due process.
The way they’ve set this up, the people involved have a lot to do with it. It sure looks like the President can now openly discuss corruption like selling secrets or pardons with e.g. relevant cabinet members, and none of that can be prosecuted, nor can it be evidence presented in a prosecution of crimes.
The immunity granted is insanely broad.
Stopping aid to Ukraine is definitely an official act, which, on its own, is within their powers. Trading said official action for the billion dollars is what is fraudulent, but if I am understanding the Roberts opinion correctly, it cannot be prosecuted, because the motives of the president should not be used as part of the ruling of immunity. So... free bribery, as long as said president pays their taxes.
Why is sottomayor the only justice drawing this conclusion?
Basically Kavanaugh did what everyone said he would and he overturned US v Nixon even though he lied about it during his confirmation even though before he argued repeatedly it was a bad decision. So either he lied or he miraculously changed his beliefs for the duration of the Senate hearing.
https://www.peoplefor.org/press-releases/fact-check-kavanaug...
> So I think the first thing that makes a good judge is independence, not being swayed by political or public pressure. That takes some backbone. That takes some judicial fortitude.
> The great moments in American judicial history, the judges had backbone and independence. You think about Youngstown Steel. You think about, for example, Brown v. Board of Education, where the Court came together and knew they were going to face political pressure and still enforced the promise of the Constitution.
> You think about United States v. Nixon, which I have identified as one of the greatest moments in American judicial history, where Chief Justice Burger, who had been appointed by President Nixon, brought the Court together in a unanimous decision to order President Nixon, in response to a criminal trial subpoena, to disclose information. Those great moments of independence and unanimity are important.
[0] https://www.govinfo.gov/content/pkg/CHRG-115shrg32765/pdf/CH...
[0] https://transcripts.cnn.com/show/cnr/date/2018-09-05/segment...
[1] https://scholarship.law.edu/cgi/viewcontent.cgi?article=3383...
Impeachment is a difficult process. Given that Trump survived (twice), I'm not sure this would work:
https://www.axios.com/2024/06/14/scotus-supreme-court-claren...
> [Kavanaugh] lied about it during his confirmation
Kavanaugh said Roe was "entitled the respect under principles of stare decisis" and similar remarks. But that still leaves it in a category that can and has been overturned by past courts. Here are a few such examples where they overturned settled precedents entitled to deference under the principles of stare decisis: https://constitutioncenter.org/blog/a-short-list-of-overturn...
Once you know that such rulings can and have been overturned before, you can see that he never once said anything at all like "I won't (or can't) overturn Roe" in his comments. You can find his comments in full here:
https://www.factcheck.org/2022/05/what-gorsuch-kavanaugh-and...
You can say that this makes his comments misleading to people who don't realize that stare decisis doesn't mean that SCOTUS can't or won't overturn a past ruling, but the fact that "everyone said he would" overturn Roe really cuts against that his statements actually mislead anyone.
https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
> And he is entitled to at least presumptive immunity from prosecution for all his official acts.
> Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial
> The Constitution does not tolerate such impediments to “the effective functioning of government” [as when] the possibility of an extended proceeding alone may render [the President] “unduly cautious in the discharge of his official duties.”
> The immunity the Court has recognized therefore extends to the “outer perimeter” of the President’s official responsibilities, covering actions so long as they are “not manifestly or palpably beyond [his] authority.”
> In dividing official from unofficial conduct, courts may not inquire into the President’s motives.
> Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law
> Enduring separation of powers principles guide our decision in this case
Supreme Court history has no broader grant of immunity based on principles less definitive.
Wouldn’t this have made it impossible to prosecute Nixon for Watergate?
If you read the complete ruling, the justices work to clarify how "official" and "unofficial" acts apply to the case at hand. For example, many of the conversations had with Pence and the AG are considered off limits for prosecution as they are "official." Other charges, however, can stick if the lower court decides:
> Trump can point to no plausible source of authority enabling the President to not only organize alternate slates of electors but also cause those electors—unapproved by any state official—to transmit votes to the President of the Senate for counting at the certification proceeding, thus interfering with the votes of States’ properly appointed electors
The damning part starts on page 27 of the ruling[0].
[0]: https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
for posterity, this is "the blueprint for a [sic] American dictatorship" to which you refer:
Then only extremely socially minded people would dare to do the job.
There was a similar sci fi story I read. At the end of a war the rule was that all allied ( not enemy ) generals would be executed. The idea was that war was such a horrible concept that to lead one would require extreme sacrifice and social consciousness on the part of the leaders. War was legal and to be fought without limit however on conclusion all leaders would be put to death. I don't remember the author or the story name.
Look at it from the perspective of the president near the end of their term.
I defy anyone to craft any political system or subset thereof that correctly anticipates societal shifts over the course of two and a half centuries.
From George Washington's presidential farewell address: "However [political parties] may now and then answer popular ends, they are likely in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion."
Just as another example, the Framers forgot to even mention that courts could strike down unconstitutional laws, causing a political crisis that came up only 15 years later. Oops!
AFAIK it only mandates it for the President. We're free to elect representatives and Senators how we please.
President, as envisioned by founders, should barely even matter outside of war.
Is the Constitution perfect? No.
But it's still fair to call them geniuses for what they accomplished.
Also, you are arguing the Founders interpretation of the Constitution is the same as the current Supreme Court. I'm not sure they would agree, but there's no way we can ever know.
I propose the Supreme Court be reconstituted such that for each case a panel of judges from the appellate courts is chosen by lot. They hear that case, write their opinion, and then go back to that work. New case, new lot.
Having a permanent bench of judicial oligarchs made sense before telecommunication. It doesn’t anymore. Every ancient democracy used randomness to control corruption. I think it’s time we took a lesson from them.
(Note: this could be done by statute. How the supreme Court is constituted is entirely left to Congress.)
[1] https://constitution.congress.gov/constitution/article-3/
Systems always work to justify and perpetuate themselves. It's part of why our jobs can be such BS sometimes.
So is the constitution. But I think what also matters a lot is things like the Federalist papers. Where these aren't explicit laws but are the motivations and philosophy behind them. Ruling by the letter of the law will always be tyrannical because no thing is perfect.
Federalist 78[0]
> The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
It's also worth mentioning here that this same document specifies that the judicial branch and executive branch are to remain distinct. That all the judicial branch can do is issue judgement, but are not capable of executing such judgement. I mention this because there is another question that arises if the one in charge of the executive branch is judged to have committed a crime by the judicial branch. But of course, this is back to the point that there are no global optima. There is no free lunch.
I.e. their job doesn't depend on them ruling the "right" way.
There are pros and cons to different approaches. There are differences at the state level for judges, being appointed vs elected. Each has problems. In TX, for example, judges are heavily influenced by mob mentality - they're afraid to practice sentencing restraint because next election their rival will run ads saying they love murderers/rapists/whatever because they let someone off lightly in extraordinary circumstances.
But what would be more fun is for the current Supreme Court to adopt the “emanations from penumbras” philosophy of judging, and do that for a couple of decades.
There is a reference in the Constitution in the impeachment clause to the “Chief Justice” - which maybe implies justices with some sort of tenure, but I suppose that could be filled randomly as well, much like a jury foreman.
The current system seems like it’s designed to aggravate politics in the very branch that’s intended to be beyond them.
> In a ruling on the last day before the Supreme Court’s summer recess, and just over two months after the oral argument, a majority of the court rejected the D.C. Circuit’s reasoning. As an initial matter, Roberts explained in his 43-page ruling, presidents have absolute immunity for their official acts when those acts relate to the core powers granted to them by the Constitution – for example, the power to issue pardons, veto legislation, recognize ambassadors, and make appointments.
> That absolute immunity does not extend to the president’s other official acts, however. In those cases, Roberts reasoned, a president cannot be charged unless, at the very least, prosecutors can show that bringing such charges would not threaten the power and functioning of the executive branch. And there is no immunity for a president’s unofficial acts.
[…]
> In her dissent, which (like Jackson’s) notably did not use the traditional “respectfully,” Sotomayor contended that Monday’s ruling “reshapes the institution of the Presidency.” “Whether described as presumptive or absolute,” she wrote, “under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless.” “With fear for our democracy,” she concluded, “I dissent.”
* https://www.scotusblog.com/2024/07/justices-rule-trump-has-s...
> In a ruling on the last day before the Supreme Court’s summer recess, and just over two months after the oral argument, a majority of the court rejected the D.C. Circuit’s reasoning. As an initial matter, Roberts explained in his 43-page ruling, presidents have absolute immunity for their official acts when those acts relate to the core powers granted to them by the Constitution – for example, the power to issue pardons, veto legislation, recognize ambassadors, and make appointments
which I can't find in the linked article, but which is of course in what you've linked to.
In those enumerated things I think the ruling is quite tolerable, but the decision is much broader than that, and this presumptive immunity, etc. becomes quite burdensome.
It's going to be like the state secrets privilege, and that has already allowed people to get away with torture, even people whose identities are well known, and where there is clear, unambiguous evidence that they were involved.
What Roberts says almost makes it sound alright, but it definitely isn't.
[1] https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
well.. be careful for what you wish for but i see your point. What's the supreme court going to do? Order your arrest by the FBI? Seems like the FBI would go tell them to pound sand.
Meanwhile there are people in the comments saying this is the end of our democracy lol
btw - this thread is hilarious, thank you thank you thank you
If a president took a bribe for a position, prosecute him for taking a bribe (if it's not a gratuity, because Congress has declared tipping politicians legal.) But if he could have made the same decision because he liked someone's tie - it's nothing but second guessing, by a likely hostile later administration.
These people appoint all their campaign staff and big donors to government jobs. If that's legal, then any reason for anything they do which is left up to their discretion is legal. If it's not legal, have Congress make it not legal.
-----
edit: gaganyaan, you are wrong. If you think that the entire point is that a president cannot be prosecuted for taking a bribe, you should reevaluate your understanding of the entire point.
> Under Monday’s decision, a former president could be prosecuted for accepting a bribe, but prosecutors could not mention the official act, the appointment, in their case.
> Justice Amy Coney Barrett, who joined the rest of Roberts’ opinion, parted company on this point. “The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable,” Barrett wrote.
Why not. The vice president exists for a reason? Here in Europe, in the entirety of Europe, if a president or prime minister commits a crime, they will be prosecuted. If we can do it, why can't the USA?
After all, no one is above the law.
If anything, the more power you have, the more scrutiny you should be under.
It's telling that even such a minor "to be sure" as hers couldn't carry enough support to actually be in the opinion.
they can still be impeached and removed from office for basically any reason whatsoever. Maybe the won't goto jail but their presidency would be over.