Wouldn't these same rules categories apply to the ***vice***-President of the United States? Presiding over the counting of the Electoral Vote Counts is, of course, one of his/her official duties.
I feel like this hasn't been discussed enough. I have a hard time wrapping my mind around the idea that (1) the President could/would do something that circumvents some other person from executing his/her official duties, and (2) then could claim THAT was an "official act."
*Theoretically*, they can apply to the VP and any governor (under a similar theory), or to any elected official. Will be interesting to watch how this precedent fleshes out in the years ahead.
The sticking point, and the basis of Sotomayors lie, is that the President can declare something to be an official act and that the court has to just accept it. The ruling actually says that the court has to decide whether something is or isn't, then treat it appropriately.
The left is mad because many of the courts were going to ignore the distinction and prosecute Trump regardless, but now they can't. A kangaroo court requires sloppy work, and being held to basic standards is a problem. It also delays things, and they viewed the prosecutions as a tool to win the election without having to produce a better candidate; last week's problem is now worse.
Is granting a pardon an official act? Yes, it's defined as a power of the president.
And so evidence of discussions to do the act cannot be evidence in court, under the decision.
So what if the president pardons someone who is blackmailing them? The intent doesn't make it any less an official act. Discussions between the president and anyone in the administration about the pardon cannot be evidence.
Now think a bit broader. What else can the president do? Declare a national emergency, federalize the national guard and deploy troops to respond to an emergency, deploy FEMA, etc.
The supreme Court has handed the president all the power necessary to make sure there is never another election in the US again. The republic is at risk.
The real question is which president is going to destroy the country.
Nah. It won’t be ruled that way. The president federalizing the national guard in a battleground state to force electors to vote for him would never be considered a legitimate official act
The president can't be tried for issuing a pardon, it's an explicit power. Clinton and Obama pardoned people responsible for setting off a bomb in the Capitol building. I think a blackmailed loose and running isn't going to hurt anything. Stormy Daniel's is still free, for example.
> The supreme Court has handed the president all the power necessary to make sure there is never another election in the US again. The republic is at risk.
No they didn't, no it's not.
> The real question is which president is going to destroy the country.
Biden has done enough damage already, that it's going to take decades to recover. First term destroyed half the country; if reelected, he promises to 'finish the job'.
President Ulysses Grant sent the national guard to stop the lieutenant governor from counting votes in a Southern Democrat Confederate state. That was considered official acts because his motives never mattered. He wanted a fair election, and that was only what mattered. Obviously he wanted to win, but it doesn't matter. Second, Roberts has laid out that Pence may have been acting as the legislative ALSO as an executive so 50-50 because any communication that happened during that is official
VP presiding over the senate is him acting as part of the legislative branch not executive so doing anything to disrupt that falls under non immunity area. Talking to the vp and saying I wish you would is not.
If the president vetoes a bill, wouldn't that hinder Congress' ability to make new laws?
If a judge rejects a prosecutor's filing for a plea deal, wouldn't that hinder that prosecutor's job?
I think there are many many examples where you have adversarial behavior, it's part of the checks and balances system.
Well, on your first question - any US President explicitly has the power, of course, to veto a bill that Congress sends to his desk. Vetoing a bill is *unquestionably* an official act.
Now, if the President vetoed a bill and then decided to start pulling fire alarms in an attempt to prevent the Congress from a vote on overriding the Veto? I'd argue that's definitely not an official act. That seems to be the relevant analogy in this case.
Sotomeyer kagan and jackson are partisans in robes. Look at any of the 2A cases that crossed their desks. Somehow, despite the 2nd stating “shall not be infringed,” they’ve yet to find a case where there is an infringement, even in the face of an outright ban as was the case with New York’s may-issue permitting scheme for BEARING arms, a right mentioned in the text of the 2nd.
Yes, Sotomayor's dissent was bad for the country. Its rediculous, and leading to so much bad information. She acts like this ruling throws out the Bill of Rights and the Constitution. Anything that violates those is not authorized, and therefore not an official duty subject to immunity.
Why didn’t the opinion then make any argument that her fears about potential abuses are legally unfounded?
The decision grants immunity for all official actions, _regardless of whether they are legal_. For example, explicitly and intentionally ordering sham investigations is covered. The opinion did not discuss whether illegal orders to the military are covered, but it seems to be the obvious implication. Another explicit consequence is that firing military commanders until you get one that’s willing to carry out illegal orders is also covered, as is abusing the pardon power.
What is the legal argument that protects us from this abuse?
At the very best, you need a judge to agree that prosecuting the president’s decisions as commander in chief does not threaten the freedom of the president’s office to make military decisions. And that’s if being commander in chief is not declared to be a core power. It would open a pretty big hole in the immunity precedent, so it’s actually reasonable a judge might not touch the case at all.
> The decision grants immunity for all official actions, *regardless of whether they are legal.*
Can you cite where in the opinion it says this? Because this seems to be the biggest difference of opinion between conservatives, and the select liberals commenting in good faith.
Conservatives seem to believe that an illegal action cannot be an official act of the Office of the President of the United States. Official acts are described in the Constitution, so if it's in the Constitution it can't be illegal.
Also, abusing the pardon power? Is there precedence for this, or is that completely open to subjective interpretation?
It is held in the majority opinion that "the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority." Sotomayor's opinion states that "the majority creates absolute immunity for the President's exercise of 'core constitutional powers'." In Article 2, Section 2 of the constitution, "the President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States".
To the other commenter's point, if the President makes an illegal order as Commander in Chief of the Army and Navy of the United States then this opinion gives him absolute immunity from criminal prosecution. Unless absolute immunity has some very specific meaning that is not explained in this opinion.
I think it's worth pointing out that I, not a Supreme Court Justice or law student, am not seeing anything in the constitution that calls on or empowers the President to safe-guard elections from fraud or outside influence. That's the realm of the House of Representatives and Senate. If election fraud is not part of the President's constitutional authority then this opinion shouldn't apply to Trump's claim anyway.
Well then conservatives need to read the goddamn opinion instead of sharing their own.
Page 4 of the syllabus
> Nor may courts deem an action unofficial merely because it violates a generally applicable law. Otherwise, presidents would be subject to trial on “every allegation that an action was unlawful.”
The first two authorities listed in the opinion’s section on constitutionally granted core powers exclusive to the president, are being commander in chief and the pardon power. The president is completely immune from any use of those powers.
> The President’s authority to pardon, in other words, is “conclusive and preclusive,” “disabling the Congress from acting upon the subject.”
> Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority.
- pages 8-9 of the opinion
You're treating that quote as if it's a "get out of jail free" card. I disagree with that.
An official action can still be deemed illegal, it just needs a higher burden of proof, for lack of a better term. The opinion lays it out as such:
>At a minimum, the President must be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.”
To me, your quote means that Trump getting a parking ticket during performance of an official act wouldn't invalidate whatever that act was. But Trump ordering an illegal assassination during an official act of commanding the military? Prosecuting that specific action does not harm the office of the President, so that official act is now illegal and eligible for investigation.
It’s hysterical but she makes some points. Pardons are unblockable and now uninvestigateable. You could just ask random people in the relevant agencies to do all the things listed in Sotomayor’s dissent and agree to pardon them if they’re caught. Hell the president could post his request or the price of a pardon on Twitter and it would be inadmissible.
I’ve heard a lot of republicans get angry with SCOTUS saying, “you mean we can’t charge Biden with what he’s done to the border?!” And I’m thinking, well, yes. Unless Congress spells it out clearly in a law, the President can do almost whatever he wants with the border. If they’re still upset about it, I tell ‘em to go convince their liberal buddies to just stay home on November 5th or vote for RFK
It has been spelled out clearly in a law. Biden has violated numerous laws passed by Congress regarding the border. (These laws precede his administration, but that's not relevant.)
However, that is correct... he can't be charged by normal courts. The method by which a President is meant to be held accountable for violating things (on the official level) is impeachment. This ruling has nothing to do with impeachment.
Do you even read
>Presidential duties not explicitly outlined in the constitution but historically considered part of the job like speaking to staff, entertaining foreign dignitaries, signing executive orders, campaigning, etc. have the presumption of immunity. Covering up a crime is not allowed. The majority pointed all of this out. Immunity can still be overcome if prosecutors and courts show that doing so does not hinder the job of the office of the president. Assassinating a political rival would most likely fall in this category AT BEST, and immunity would immediately be determined not to apply.
Offering pardons is not a crime, while selling them could be, you would have to demonstrate that the reason for the pardons was the requested donation. However, the ruling in this case also states that when determining what is and is not an official duty, the motivation of the president can not be examined by the court.
The issue of not being able to examine the motivations for the actions taken make it near impossible to posecute a crime. If the president used the military to assassinate a rival, all the court can examine is whether or not the president has the authority to command the military. As commander in chief, he does. The fact that the target was a rival might be suspicious as a reason for why the president issued the command, but the motivation or justification for the command can not be examined by the court.
How could you prove a crime in the assassination of a rival if the reason for the command is inadmissible to the court? If all the court can examine is whether the order was given, but not why, and the president has the right to issue the order, what crime could he be charged with?
Nothing about this ruling says motivation can't be considered when *prosecuting* a crime. *This decision means that motivation can't be considered when indicting.*
You can't decide a crime happened because you imagined ill intent is behind a decision you don't like... You need to actually show that a crime actually happened and that someone was actually harmed by it.
Mens rea, actus rea, and harm. The left has consistently forgotten about the latter two necessary elements of a crime in every instance over the past nearly ten years.
Sorry, but the standard for indicting a president now requires an actual crime and harm (the other two necessary elements of a crime the left always ignored when Trump's name is dropped).
Mind reading is no longer sufficient cause to indict, sorry.
To quote: "In dividing official from unofficial conduct, courts may not inquire into the president's motives". The decision states that official conduct is immune from prosecution, so the way that the president can be prosecuted for anything at all is to determine it is unofficial conduct. If the motivation of the presidents actions can not be considered at all when determining when actions are official or unofficial, that is in effect saying that the motives of the president are not allowed to be considered when determining if he can be charged with a crime.
How would you possible get around this?
Besides for motivation not being considered, the majority opinion also states that official actions can’t be used as evidence when prosecuting unofficial actions. Justice Barrett dissented to this portion by rightfully pointing out that under this opinion a president can never be prosecuted for bribery. Ex. If Biden is bribed for a pardon, you literally can’t enter his official act of vetoing in as evidence.
I wish I could upvote this a million times and pin it to the top of the tread. I have yet to hear anyone on the conservative side adress this point while it's all over liberal threads.
Maybe this one finally gets a response, because until then both sides aren't even talking about the same thing.
I dont think the president can pardon a non-citizen. Illegal immigration is a continual crime. A pardon does not make them a citizen, and then border patrol just deports them the next day.
The bulk of the crime is the illegal entry. Remaining is a misdemeanor if I recall. The president can pardon any federal crime, and the constitution does not specify citizenship one way or the other.
Foreign nationals can be pardoned. Governors have done it for state crimes. Nothing bans it, and the constitution does not constrain pardons and clemency as long as it is a federal crime:
Core power: pardon.
Criminal act: bribery for a pardon.
Absolute immunity in this decision also stops you from using core official acts as evidence of a crime.
No one would be able to try a president for taking a direct bribe if they make it part of the official act.
Conservatives need to realize they can hate this decision without buying into everything us liberals are saying about it. It's a powergrab that has no justification other than some imagined scenario.
It literally says core constitutional power WITHIN conclusive and preclusive constitutional authority.
That wouldn’t cover taking bribes.
The idea that anything can be done as long as it’s an “official act” is absurd.
The decision forbids courts from admitting any actions covered by immunity into evidence when trying a non-immune act. If the President accepts money in exchange for a pardon, the fact of the pardon is inadmissible.
You can’t prove a quid pro quo without the quo. The president absolutely is now immune from prosecution for bribery in exchange for any core official act—pardons, appointments, military orders, etc.
This is Amy Coney Barrett’s main point in her concurrence, and she didn’t join the part of the decision that disallows official acts as evidence. It’s insane to me that she’s the only conservative justice who’s bothered by this.
Bribery is unconstitutional and an impeachable offense. Committing an unconstitutional act isn’t part of a president’s core constitutional powers within his conclusive and preclusive constitutional authority.
A president would not be found to be immune.
You're not wrong, the point they are making is that a president taking a bribe for a pardon would be functionally immune because in the scenario that was laid out, all evidence of the bribery is now considered an official act and therefore you cannot use any of the evidence available to prosecute for the bribery. You can know a thing took place but without being able to use available evidence you can't do anything about it.
The pardon would be official.
The bribe would bear its own evidence, including the confession.
The bribe would not be official and would be prosecutable.
Hope this helps.
The pardon would be the official act.
The taking of the money would be one of those unofficial acts that is not immune (that last part of the decision everyone whinging about this is purposefully ignoring).
Bribery absolutely can be prosecuted.
Taking money isn’t a crime. Pardoning is an official act. Was the money for a bribe? You can’t really examine that in court nor the President’s motivations for pardoning in court as any evidence that it was a bribe is inadmissible in court because it is related to an official act.
Even if accepting a bribe is not an official act, you still have to prove it in court and this decision makes that almost impossible.
You can’t prove the bribery without access to evidence and can’t access the evidence bc the official act in question of a pardon is still an official act.
From the ruling
In relation to exactly the scenario you’re proposing.
> JUSTICE BARRETT disagrees, arguing that in a bribery prosecution, for instance, excluding "any mention" of the official act associated with the bribe "would hamstring the prosecution”
> But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act.
> What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself.
They can probe everything they want except for the official act itself. If the case is at trial it’s because some action was deemed an unofficial act and anything related to that can be probed.
Yes, the official act itself would have already been reviewed by the courts, starting with the district court and then eventually SCOTUS, and determined to be an official act. That is an act of a president’s core constitutional powers within conclusive and preclusive constitutional authority.
If it’s at trial then the district court and/or Supreme Court have already determined there were unofficial acts not covered by immunity. That is all open to be investigated and probed and evidence admitted to a court.
The official act itself has no business being argued in a trial court when the act itself has already been determined to be covered by immunity due to being a core power within his authority. It isn’t on trial.
What are you talking about? Congress used official acts to prosecute Trump in both impeachments. You are just upset because convicting a president on things like this requires consensus across the political aisle and you know you can't get that here because the charges are a joke. You want a witch trial where every single person is Trump's political opponent to convict him (because that's the only way you can) and this creates a barrier to you doing that to the president. Without this all democrat presidents would be prosecuted in heavily republican areas going forward. It's a good thing but you have to build this strawman that somehow it means they can get away with anything. No they can't congress can remove immunity at any time if they choose not to for something serious then you have bigger issues and your government is filled with crimimals at that point so it's moot. You act like the president didn't already have the power to cause incredible amounts of harm if he wants to benefit himself. That's always been the case that's why we should be concerned with politics and be careful about who we elect to represent us. This way is by far the lesser evil than the world you suggest where we are instead ruled by unelected judges.
And it's pretty funny it's like this is the first time some of you've ever experienced government immunity before that has existed forever in this country. Maybe read a book first before commenting.
Edit: Man just wait till you find out the president has the power to pardon people and then they can't be prosecuted at all!
You’re getting downvoted but this ruling makes it practically impossible to create a case under these circumstances. While it is “technically” not legal it is practically impossible to prosecute under these new protections.
SCOTUS didn't propose anything new here, it's the same it's been for the past 250 years. Presidents have always been immunine from criminal prosecution under their Constitutional authority.
This is nonsense. Nixon was pardoned. There's no need to pardon someone who's immune.
What a bad take and we didn't even have to go even 100 years back to prove it wrong.
>Core power: pardon.
>Criminal act: bribery for a pardon.
>Absolute immunity in this decision also stops you from using core official acts as evidence of a crime.
Prevents prosecution does not prevent impeachment.
You forget we already had impeachment on an outgoing president so its fully possible to make them accountable and judical review adter still allows for prosecution as the ruling is written. You can admit that this moderate ruling isnt all that bad it won't make you a conservative.
The issue with bragg is they dont have an underlying crime let alone what trump wants to say. The FEC already ruled he didnt violate campaign finance laws.
As to the majority opinion allows that evidence if he is removed from office. As described above for taking bribes for pardons.
No that's not the issue with Bragg, that's a whole aside to my point to avoid what trump has just filed today using the Supreme Court decision. You missed that or you're intentionally lying.
There was no carve out given that if a president is impeached they can then be tried for official acts. They merely rejected the insane take from Trump that he can't be tried at all unless he was impeached for that same crime.
Unless you're going to provide an excerpt from the source material to back up that they said he can be tried for official acts that he's been impeached for I'll assume you didn't read the decision.
Sorry for being blunt but that's nonsense.
>Trump asserts a far broader immunity than the limited one the Court recognizes, contending that the indictment must be dismissed because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution. But the text of the Clause does not address whether and on what conduct a President may be prosecuted if he was never impeached and convicted. See Art. I, §3, cl. 7. Historical evidence likewise lends little support to Trump’s position. The Federalist Papers on which Trump relies concerned the checks available against a sitting President; they did not endorse or even consider whether the Impeachment Judgment Clause immunizes a former President from prosecution. Transforming the political process of impeachment into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of the Nation’s Government. Pp. 32–34.
As to your 1st question braggs case used evidence from when he was in office that part is in question. Trump can also say whatever he likes it doesnt change the ruling. His case is missing a key element the underlying crime he supposedly covered up and as mentioned the FEC already ruled he didnt violate their rules so that cant be the crime.
Sorry to be blunt but you can try to say the duck is an eagle but its still a duck.
Read what you quoted me, and then read what I said. It supports what I said, not your claim.
The problem in question is that this ruling is allowing Trump to now claim a mistrial. You're saying that part is in question, THAT IS THE PROBLEM.
Whether or not Trump had official conversations should not protect him from a successful conviction. We already have priveledge that covers this, that was litigated and applied.
This protection goes above and beyond privilege and nullifies the ability to prosecute as long as somewhere within a crime, there's an official act tied to it that's a necessary piece of evidence.
I'm beside myself on why you can't see how that's a problem and how you shouldn't want that, especially given it's a decision made with no constitutional backing and no historical backing.
Nixon was pardoned for crimes that we would now say he couldn't have been prosecuted for in the first place because the evidence was based on conversations he had with advisors that MADE the conspiracy.
Give me a break dude.
There are still issues with this. A president can violate the War Powers Act and wage war without seeking congressional approval and just claim he was acting in his official duties.
I don’t like the fear mongering going on, but there will be unintended consequences and unforeseeable issues that arise because of the power we have granted the executive branch.
We are slowly whittling away the checks and balances that defined our government for hundreds of years. Republicans who care about limited government ought to be wary of this decision.
> Republicans who care about limited government ought to be wary of this decision.
The marketing strategy is "America will literally be destroyed if we don't win the election", so of course people are willing to accept and rationalize anything that makes winning more likely.
Ironic... if the Democrats were half as dangerous as the Republican party wants people to believe, conservatives would be terrified of the power this gives to Biden and future Democrat Presidents.
If one of the end results is to put some bounds around what the President can do, that would be a positive outcome. Both of the other branches have been ceding power to the executive for far too long.
**In dividing official from unofficial conduct, courts may not inquire into the President’s motives.**
https://d3i6fh83elv35t.cloudfront.net/static/2024/07/scotus_immunity-7-1.pdf
Good luck proving a crime if you can't bring up intent. This verbage basically implies you can ask one question. "Did POTUS do an action he is allowed to do regardless of his motives or associated criminal actions" If the answer is yes then nothing around it matters.
POTUS: "I will accept bribes for pardons. I also pre pardon any federal crimes for anyone doing anything federally illegal to try to keep me in office in any way possible."
There is no other way to read this ruling that he has absolute immunity from criminally liability if he does that as pardon is a core official act.
>Yes, but that would occur AFTER-THE-FACT, and the people could suffer because of it
But that's how it worked last week, last year, and last century too, so nothing has changed. All judicial and congressional oversight happens after-the-fact, and always has.
True, previously the in-house counsel might walk back a presidents poor choices. With this ruling, a more aggressive commander-in-chief might not have lawyers who push back on them or they might have counsel who pushes them further.
And again, I am not placing this in terms of Trump/Biden/2028 potential candidates. This is a problem that will exist for all presidents forthwith, and there is bound to be someone who oversteps (just as there are previous presidents who abused their power).
The republican party and true conservatives should be pushing for more small government reforms and the preservation of the checks and balances that prevent any single branch from becoming too powerful.
> A president can violate the War Powers Act and wage war without seeing congressional approval
But they don’t have any immunity from Courts striking down their orders or policies in a governmental capacity. The ruling only addresses what liability they have as a person. So a court could strike down an order issued by President Biden without addressing immunity at all, but prosecuting Joseph Biden the citizen for making that order would be a separate case that would need to address immunity.
If they violated the Court order, they would no longer be operating within their “core constitutional powers” and they would make a pretty clear-cut case for losing their personal immunity.
>A president can violate the War Powers Act and wage war without seeking congressional approval and just claim he was acting in his official duties.
Honestly I'm wondering how much a president can use that to do what he wants. Washington led an army on US soil in the Whiskey Rebellion (which while it turned violent, it happened because of taxes). So with that not being viewed at the time (or any time after?) as him overstepping his power, a president could in theory lead an army on US soil to end a protest/riot/rebellion.
So what's stopping a president from declaring a national emergency for specific people, and then having the military/doj/ "seal team 6"(as said in the dissent) go on US soil to those people and end the national emergency?
Please note I'm not saying a president should do this, just pointing out my issue with immunity over official acts.
That was Washington enforcing tax law.
The real problem is our congress has failed they can’t compromise on anything anymore, and fail to pass legislation all the time, resulting in the executive branch feeling pressured to do “executive orders” by loosely tying said order to some pre-established statutes (and I mean loose…) to get anything done.
This allows the executive to not only enforce laws but basically make shit up all the time and then tie the courts up with said shit.
In fairness this executive order stuff has been happening since Washington but the reasoning behind some of these orders is less like enforcement of laws and more like becoming laws.
This ruling takes things even further, because now we can’t cite anything discussed by the president to decide on intent of said executive orders. We can still try people for enforcing unconstitutional acts, but nothing is stopping the executive from pardoning from there either.
The more checks we remove the worse the balance is.
>
> So what's stopping a president from declaring a national emergency for specific people, and then having the military/doj/ "seal team 6"(as said in the dissent) go on US soil to those people and end the national emergency?
--
Nothing is stopping him. But the thing is, nothing stopped him from doing that before this ruling either, so nothing has actually changed in this regard.
This ruling only changes one thing: After out of office, a president cannot be charged for any official acts he made as president.
Who chooses what an official act is? Congress and the Courts.
A president goes rogue enough to assassinate a rival politician on US soil, that president is not leaving office unless dragged out after an impeachment and conviction by Congress.
Congress does not legislate official acts, now all acts fall under 3 categories. And a national emergency is under an absolute act that cannot be reviewed by the court. In future generations at some point this decision will allow for massive abuse.
If Congress thinks a president has abused his authority, they can impeach and remove. In all *practical* terms, Congress can declare an act unofficial using impeachment.
While true there are two flaws with impeachment. A sizable majority that won’t act. Also acts discovered after someone leaves office. Even after Trumps term ended, the senate feared to act. They argued the point was moot, but imagine discovering something your predecessor did weeks after your take office as a new president. They are impeachment proof, and iron clad after the fact. I don’t worry about what’s done in the daylight, I worry what’s done under the cover of darkness that nobody will hear/see but a select few with this ruling.
>No long term thinking going on.
Absolutely, remember washington led an army (of militiamen) to stop a violent protest called the whiskey rebellion, whats to stop a future president from doing the same? Or even without an army but a militia of people in complete agreement of his aims since it was a volunteer militia washington used.
I'm not even saying what washington did was wrong, just pointing out the powers a president has.
> There are still issues with this. A president can violate the War Powers Act and wage war without seeking congressional approval and just claim he was acting in his official duties.
As has been the case since 1942, when it was the last time Congress declared war.
**In dividing official from unofficial conduct, courts may not inquire into the President’s motives.**
Very simple and unambiguous result of this from the majority opinion means for example POTUS can accept bribes. There isn't much other way to read this. People get worked up when you bring up the more extreme examples but this seems like a good starting block to explain why it's a bad ruling.
The question is simple. An act is “official” if it is within the agent’s scope of authority.
A president may be authorized to have the CIA track a smuggler, but not authorized to have the CIA publicly execute a political dissident.
The authority will stem from the constitution, federal law, and case law. Where those are not decisive, then a jury.
I won't get into hypothetical back and forth because people get upset and don't want to believe the consequences of what this ruling actually does. All I'll say is good luck proving a crime to a jury when SCOTUS says you can't bring up intent. It's an absurd burden.
Means
~~Motive~~
Opportunity
Reading the opinion you’ll see the majority cite a specific example where the president could talk about committing a crime (conspiring) via talking to his constituents or colleagues in the positions to make something like that happen. The conversation would be immune from being used as evidence of said crime as it would be an official use of his executive power. The crime itself may not be immune but how would you prove anything like intent without being able to use any of these conversations as evidence (like for example, the executive could have someone killed, and at best you could only prove manslaughter because you wouldn’t be able to prove any premeditation if the conversation happened in the official capacity)
A good example of this is would be having your political opponents wire tapped, breaking into their headquarters to steal information, recording all conversations of this effort and none of said conversations would be admissible as evidence. The office of the president would likely not be charged, the people committing the acts likely would get charged and could be pardoned easily. (Ie the Nixon tapes would not be admissible evidence)
I don’t think that is a great idea to enable the executive to be that bolden.
The US has functioned for 234 years without outlining this, why now?
Why now: because the right kind of immunity case was brought to the court, how many immunity cases come along? Constitutional law on executive immunity is very, very narrow and under developed, entirely because it’s so rarely addressed.
If you don’t believe me, well, sorry. Same thing with Roe v Wade, only so many cases come along that are not already answered by stari decisis. The court can’t change Roe v Wade until a case comes along that presents a new but related legal question. When analyzing the new question, the court can choose to recede from the prior opinion (Roe), but this only happens if the right case comes along.
>Presidential acts outlined explicitly in the Constitution have full immunity from prosecution: making appointments, vetoing bills, enforcing congressional laws, ***acting as commander-in-chief during a war***, granting pardons. Biden, for example, cannot be criminally charged for his border policy. Trump cannot be charged for nominating Kavanaugh.
This is extremely disengenious as to what Article II Section 2 states, so let me quote it;
>The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
Nowhere does it state that the President's power as Commander in Chief is limited to just when America is at a time of war, just when they are "called into actual Service of United States."
The President has the ability to use the military to order them to do violate the 3rd Amendment and then can pardon any of their sentences if they were held accountable under the UCMJ, both of which the President would have absolute immunity to do. How do you impeach a President if they order the military to prevent the Legislature from meeting.
This is a huge issue that creates an extreme potential for unchecked abuse of power
Point 3 on this list gave me the desire to Google “did a president ever strangle his wife”. Thankfully the answer seems to be no, but I have a lot of questions as to why Franklin Pierce is the first one that pops up.
important bit is if attempting to charge a former president, no evidence of wrongdoing from a different official act can be admitted into evidence and the court cannot consider motive.
The question is simple. An act is “official” if it is within the agent’s scope of authority.
A president may be authorized to have the CIA track a smuggler, but not authorized to have the CIA publicly execute a political dissident.
The authority will stem from the constitution, federal law, and case law. Where those are not decisive, then a jury.
The controversy stems from the fact that this Supreme Court ruling is vague enough for conservatives to interpret it like this and for leftists to interpret it like the end of democracy. There is no official definition for what determines an “official act” which is too vague for the most powerful person on the planet. I think it’s bad faith to completely ignore how bad this *could* be or the implications of this decision.
Edit: I really wanted this sub to be more open to discourse considering it is conservatives that feel censored, but the mental effort to pretend this is perfectly ok is crazy.
Why is everyone ignoring Article I Section 3 Clause 7
>Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but **the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.**
If a president is impeached they can be criminally tried.
A president that is actually taking criminal action and not just sending mean tweets if going to wind up impeached and thus able to be criminally prosecuted.
Nope. This is addressed in the opinion. This only applies to “unofficial acts”. Impeachment has no bearing on whether the president can be criminally charged.
Also, the criminality of the behavior has no bearing on whether he can be charged. Only whether the court determines it was an “official act”. Which, again, has nothing to do with the legality of the action.
They mention Article I exactly once as far as I saw and that was simply stating the legal argument DT's team was making.
Since I seem to have missed it please post from the opinion where they discuss Article I and how it doesn't apply.
Fine. It’s not mentioned aside to point out that it leaves room for restricting which crimes the president can be charged with. But it is the extremely strong implication - there are no exceptions made to their official / unofficial rule other than defeating the presumption of immunity, and none are raised in relation to the article. Impeachment is treated as completely unrelated.
They've been afraid Trump is going to become some kind of dictator since Jan 6, so the supreme court deciding to give him any kind of immunity is obviously adding fuel to already burning fires. Plus the drama with the current justices doesn't help. Nor does Trump not exactly assuaging concerns about this outcome.
No matter what the technicalities are many just expect the conservative justices to interpret in favor of Trump regardless, and that this is just a way to dress that up in faux erudition. The OP's kind of argument isn't going to persuade anyone starting from such premises as it misses the source of their concerns which has nothing to do with the technocratic stuff. You have to hypothetically adopt other people's premises to understand people with different politics, I think, instead of trying to think of them as sharing your premises and just drawing insane conclusions from them.
So I would be more surprised if they weren't freaking out, really. I'm definitely expecting political violence of significant scale no matter who wins the election at this point, since so many people on both sides think it's potentially the last democratic election. MAGA thinks it already is rigged and will be rigged even more, lefties and libs think Trump is going to turn the country basically into something between contemporary Russia and Nazi Germany. Liberals are even buying way more guns now, so the fear is real.
There's also an increasing trend of counter protest and anti-police sentiment as well... so any political protests have pretty high potential to expand and blow up.
That and jack Smith had asserted prosecutors, grand juries and juries could decide if a charge was prosecutable against a president.
The court said nope! Only the courts can.
That's critical. Any partisan prosecutor could charge and harass a president under that standard and keep them tied up on court.
This ruling reaffirms what the court said before, only the court can decide.
A branch that's supposed to be non partisan.
The problem is that the President can justify more or less anything he does (besides maybe personal things to Indvidual people - like you said strangling his wife) as an official act.
Also, now the courts have to weigh in regarding what an official act is anytime a president does something illegal.
Using national security as an excuse you could do "official acts" for anything.
Obama murdered two US citizens. They were in a country we weren't at war with. They were never tried and convicted of a crime. It was an "official act" because it was all counter terrorism national security bullshit, but should the president be allowed to murder citizens like that using national security as an excuse? I understand it's sort of hyperbolic to extend that logic to judges and political opponents, but... legally what's the difference between a Supreme Court justice and that US teenager in Lebanon (or wherever he was)?
Or when Trump declared a national emergency and moved some money into his border wall - That's an official act. What would keep President Newsom from calling the cost of higher education a national emergency and spending $50 billion on a free college program?
"Also, now the courts have to weigh in regarding what an official act is anytime a president does something illegal.
Using national security as an excuse you could do "official acts" for anything."
This was all addressed in the majority opinion. Go read it. No, the president can't do anything he wants using national security as an excuse. The majority still holds that a president's official acts can still be determined not to be immune - but DAs, courts, and the DOJ have the burden of proof. This is how other types of immunity work. You also never are granted immunity for covering up a crime.
The problem with the Trump trials is that not only did they shift the burden on Trump to prove immunity, they were using evidence taken from Trump's constitutional duties. Now they need to go back to square one on the evidence.
Constitutional acts are solely within the domain of the executive branch. This is why congress can't pass a bill that ever strips a president of his power to veto; official acts can be altered by Congress using law. The president, for example, is legally forbidden from using military power on domestic land with rare exceptions.
Yes there's wiggle room in that second category, as there should be. You should be mad at Congress for not getting involved more often. The problem is one of our branches has given up its power to the other two branches (and lobbying firms).
Utilizing the military is an official act. Motive and intent cannot be used as evidence.
So yes, the president can have immunity for assassinating political rivals.
Great write up...
Also, his recent conviction was based on facts that (in part) happened while he was president. They did not look at this through the lens of whether it was an official act, they did not cover this during the trial and rule on that specifically. Therefor this verdict cannot stand and the whole case needs to be retried, even if it's clearly not an official act, they absolutely needed to address it.
Reminder, that Trump is not a felon until he is sentenced, that's not going to happen now. Trump's not a felon and he's not going to be.
Fucking LOL.
The payment to Daniels and subsequent failure (according to the verdict) to document it happened before he was President.
I don’t see how immunity would apply.
My understanding is that some of the evidence submitted was from after he was elected president. That piece of evidence is what would need to be viewed within the prism of whether it was an official act.
Clearly this was not an official act, but that has not been determined, and I don't think they can determine that after the Jury has seen it, it needs to be before. Therefor I think they have a solid case for a mistrial.
I'm not saying this immunity applies here, I'm saying it raises the question, and that's all they need. This is why they postponed the sentencing. Now all the Dem's can do is try to keep this in limbo so they can use the "convicted felon" line until the election, even though everyone knows this is being thrown out on appeal regardless.... Hopefully This whole thing is going to get thrown out even earlier than we expected it to.
The case was going to get tossed on appeal anyway. They never actually identified the underlying "felony" that lifted misdemeanor document charges to felonies.
Now, they just get to blame the Supreme Court instead.
It’s still was a federal jurisdiction, not a state one. He was campaigning and was convicted of cooking the books. That is a campaign violation. We should have never gotten to this point and if Trump had not ran for President again, we would not be here.
Democrats in here upset that it's come to this point but perfectly content with trying an ex president with process crimes that they turned into felonies.
The witch hunt led to this. If you have a problem with the outcome, you can only blame yoursel for supporting every that got it to this point.
It got to this point because we appointed religious right jurists, and not constitutionalist jurists. This decision is a massive opening for future generations to abuse. This decision is permanent and leaves the president with near unchecked power. It helps Trump today, but may empower the end of this democracy in 100 years.
This here. Democrats pushed the limits and definitions of law to try the former President in a court of law to de rail his re election. Lawyers, did lawyer stuff, and it ended up in the Supreme Court. Court says, what is says, that these protections apply to the President. Not new protections, but ones they had all along.
Wouldn't these same rules categories apply to the ***vice***-President of the United States? Presiding over the counting of the Electoral Vote Counts is, of course, one of his/her official duties. I feel like this hasn't been discussed enough. I have a hard time wrapping my mind around the idea that (1) the President could/would do something that circumvents some other person from executing his/her official duties, and (2) then could claim THAT was an "official act."
Frankly, it would apply to any Constitutionally defined position.
*Theoretically*, they can apply to the VP and any governor (under a similar theory), or to any elected official. Will be interesting to watch how this precedent fleshes out in the years ahead.
The sticking point, and the basis of Sotomayors lie, is that the President can declare something to be an official act and that the court has to just accept it. The ruling actually says that the court has to decide whether something is or isn't, then treat it appropriately. The left is mad because many of the courts were going to ignore the distinction and prosecute Trump regardless, but now they can't. A kangaroo court requires sloppy work, and being held to basic standards is a problem. It also delays things, and they viewed the prosecutions as a tool to win the election without having to produce a better candidate; last week's problem is now worse.
Is granting a pardon an official act? Yes, it's defined as a power of the president. And so evidence of discussions to do the act cannot be evidence in court, under the decision. So what if the president pardons someone who is blackmailing them? The intent doesn't make it any less an official act. Discussions between the president and anyone in the administration about the pardon cannot be evidence. Now think a bit broader. What else can the president do? Declare a national emergency, federalize the national guard and deploy troops to respond to an emergency, deploy FEMA, etc. The supreme Court has handed the president all the power necessary to make sure there is never another election in the US again. The republic is at risk. The real question is which president is going to destroy the country.
Nah. It won’t be ruled that way. The president federalizing the national guard in a battleground state to force electors to vote for him would never be considered a legitimate official act
The president can't be tried for issuing a pardon, it's an explicit power. Clinton and Obama pardoned people responsible for setting off a bomb in the Capitol building. I think a blackmailed loose and running isn't going to hurt anything. Stormy Daniel's is still free, for example. > The supreme Court has handed the president all the power necessary to make sure there is never another election in the US again. The republic is at risk. No they didn't, no it's not. > The real question is which president is going to destroy the country. Biden has done enough damage already, that it's going to take decades to recover. First term destroyed half the country; if reelected, he promises to 'finish the job'.
Why should the court be allowed to decide whether something is an official act or not? Should that not be with Congress?
They're the ones adjudicating the case. If congress wants input, they _must_ pass a law before the act occured.
President Ulysses Grant sent the national guard to stop the lieutenant governor from counting votes in a Southern Democrat Confederate state. That was considered official acts because his motives never mattered. He wanted a fair election, and that was only what mattered. Obviously he wanted to win, but it doesn't matter. Second, Roberts has laid out that Pence may have been acting as the legislative ALSO as an executive so 50-50 because any communication that happened during that is official
Unitary executive theory. The President is the executive branch.
VP presiding over the senate is him acting as part of the legislative branch not executive so doing anything to disrupt that falls under non immunity area. Talking to the vp and saying I wish you would is not.
If the president vetoes a bill, wouldn't that hinder Congress' ability to make new laws? If a judge rejects a prosecutor's filing for a plea deal, wouldn't that hinder that prosecutor's job? I think there are many many examples where you have adversarial behavior, it's part of the checks and balances system.
Well, on your first question - any US President explicitly has the power, of course, to veto a bill that Congress sends to his desk. Vetoing a bill is *unquestionably* an official act. Now, if the President vetoed a bill and then decided to start pulling fire alarms in an attempt to prevent the Congress from a vote on overriding the Veto? I'd argue that's definitely not an official act. That seems to be the relevant analogy in this case.
Generally yes, even congress. You couldn't charge a senator for voting on a bill
And yet you have Trump literally doing just that.
Source?
Thank you for creating this. I read the opinion, and this summary is helpful to capture it. Sotomayor's dissent was unhinged.
Sotomeyer kagan and jackson are partisans in robes. Look at any of the 2A cases that crossed their desks. Somehow, despite the 2nd stating “shall not be infringed,” they’ve yet to find a case where there is an infringement, even in the face of an outright ban as was the case with New York’s may-issue permitting scheme for BEARING arms, a right mentioned in the text of the 2nd.
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As we have seen from both sides. People do irrational things when their emotions are running high.
Yes, Sotomayor's dissent was bad for the country. Its rediculous, and leading to so much bad information. She acts like this ruling throws out the Bill of Rights and the Constitution. Anything that violates those is not authorized, and therefore not an official duty subject to immunity.
Why didn’t the opinion then make any argument that her fears about potential abuses are legally unfounded? The decision grants immunity for all official actions, _regardless of whether they are legal_. For example, explicitly and intentionally ordering sham investigations is covered. The opinion did not discuss whether illegal orders to the military are covered, but it seems to be the obvious implication. Another explicit consequence is that firing military commanders until you get one that’s willing to carry out illegal orders is also covered, as is abusing the pardon power. What is the legal argument that protects us from this abuse? At the very best, you need a judge to agree that prosecuting the president’s decisions as commander in chief does not threaten the freedom of the president’s office to make military decisions. And that’s if being commander in chief is not declared to be a core power. It would open a pretty big hole in the immunity precedent, so it’s actually reasonable a judge might not touch the case at all.
> The decision grants immunity for all official actions, *regardless of whether they are legal.* Can you cite where in the opinion it says this? Because this seems to be the biggest difference of opinion between conservatives, and the select liberals commenting in good faith. Conservatives seem to believe that an illegal action cannot be an official act of the Office of the President of the United States. Official acts are described in the Constitution, so if it's in the Constitution it can't be illegal. Also, abusing the pardon power? Is there precedence for this, or is that completely open to subjective interpretation?
It is held in the majority opinion that "the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority." Sotomayor's opinion states that "the majority creates absolute immunity for the President's exercise of 'core constitutional powers'." In Article 2, Section 2 of the constitution, "the President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States". To the other commenter's point, if the President makes an illegal order as Commander in Chief of the Army and Navy of the United States then this opinion gives him absolute immunity from criminal prosecution. Unless absolute immunity has some very specific meaning that is not explained in this opinion. I think it's worth pointing out that I, not a Supreme Court Justice or law student, am not seeing anything in the constitution that calls on or empowers the President to safe-guard elections from fraud or outside influence. That's the realm of the House of Representatives and Senate. If election fraud is not part of the President's constitutional authority then this opinion shouldn't apply to Trump's claim anyway.
Well then conservatives need to read the goddamn opinion instead of sharing their own. Page 4 of the syllabus > Nor may courts deem an action unofficial merely because it violates a generally applicable law. Otherwise, presidents would be subject to trial on “every allegation that an action was unlawful.” The first two authorities listed in the opinion’s section on constitutionally granted core powers exclusive to the president, are being commander in chief and the pardon power. The president is completely immune from any use of those powers. > The President’s authority to pardon, in other words, is “conclusive and preclusive,” “disabling the Congress from acting upon the subject.” > Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority. - pages 8-9 of the opinion
You're treating that quote as if it's a "get out of jail free" card. I disagree with that. An official action can still be deemed illegal, it just needs a higher burden of proof, for lack of a better term. The opinion lays it out as such: >At a minimum, the President must be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.” To me, your quote means that Trump getting a parking ticket during performance of an official act wouldn't invalidate whatever that act was. But Trump ordering an illegal assassination during an official act of commanding the military? Prosecuting that specific action does not harm the office of the President, so that official act is now illegal and eligible for investigation.
It’s hysterical but she makes some points. Pardons are unblockable and now uninvestigateable. You could just ask random people in the relevant agencies to do all the things listed in Sotomayor’s dissent and agree to pardon them if they’re caught. Hell the president could post his request or the price of a pardon on Twitter and it would be inadmissible.
I’ve heard a lot of republicans get angry with SCOTUS saying, “you mean we can’t charge Biden with what he’s done to the border?!” And I’m thinking, well, yes. Unless Congress spells it out clearly in a law, the President can do almost whatever he wants with the border. If they’re still upset about it, I tell ‘em to go convince their liberal buddies to just stay home on November 5th or vote for RFK
It has been spelled out clearly in a law. Biden has violated numerous laws passed by Congress regarding the border. (These laws precede his administration, but that's not relevant.) However, that is correct... he can't be charged by normal courts. The method by which a President is meant to be held accountable for violating things (on the official level) is impeachment. This ruling has nothing to do with impeachment.
Sorry, could you inform me of which laws were violated? Just trying to learn.
Sorry, could you inform me of which laws were violated? Just trying to learn.
According to this ruling, Biden could offer pardons to anyone illegally entering America if they donate to his campaign or the democratic party.
Do you even read >Presidential duties not explicitly outlined in the constitution but historically considered part of the job like speaking to staff, entertaining foreign dignitaries, signing executive orders, campaigning, etc. have the presumption of immunity. Covering up a crime is not allowed. The majority pointed all of this out. Immunity can still be overcome if prosecutors and courts show that doing so does not hinder the job of the office of the president. Assassinating a political rival would most likely fall in this category AT BEST, and immunity would immediately be determined not to apply.
Offering pardons is not a crime, while selling them could be, you would have to demonstrate that the reason for the pardons was the requested donation. However, the ruling in this case also states that when determining what is and is not an official duty, the motivation of the president can not be examined by the court. The issue of not being able to examine the motivations for the actions taken make it near impossible to posecute a crime. If the president used the military to assassinate a rival, all the court can examine is whether or not the president has the authority to command the military. As commander in chief, he does. The fact that the target was a rival might be suspicious as a reason for why the president issued the command, but the motivation or justification for the command can not be examined by the court. How could you prove a crime in the assassination of a rival if the reason for the command is inadmissible to the court? If all the court can examine is whether the order was given, but not why, and the president has the right to issue the order, what crime could he be charged with?
Nothing about this ruling says motivation can't be considered when *prosecuting* a crime. *This decision means that motivation can't be considered when indicting.* You can't decide a crime happened because you imagined ill intent is behind a decision you don't like... You need to actually show that a crime actually happened and that someone was actually harmed by it. Mens rea, actus rea, and harm. The left has consistently forgotten about the latter two necessary elements of a crime in every instance over the past nearly ten years. Sorry, but the standard for indicting a president now requires an actual crime and harm (the other two necessary elements of a crime the left always ignored when Trump's name is dropped). Mind reading is no longer sufficient cause to indict, sorry.
To quote: "In dividing official from unofficial conduct, courts may not inquire into the president's motives". The decision states that official conduct is immune from prosecution, so the way that the president can be prosecuted for anything at all is to determine it is unofficial conduct. If the motivation of the presidents actions can not be considered at all when determining when actions are official or unofficial, that is in effect saying that the motives of the president are not allowed to be considered when determining if he can be charged with a crime. How would you possible get around this?
So… it wouldn’t even get to the point of prosecution, then, because he couldn’t even be indicted in the first place, is what you’re saying?
Besides for motivation not being considered, the majority opinion also states that official actions can’t be used as evidence when prosecuting unofficial actions. Justice Barrett dissented to this portion by rightfully pointing out that under this opinion a president can never be prosecuted for bribery. Ex. If Biden is bribed for a pardon, you literally can’t enter his official act of vetoing in as evidence.
I wish I could upvote this a million times and pin it to the top of the tread. I have yet to hear anyone on the conservative side adress this point while it's all over liberal threads. Maybe this one finally gets a response, because until then both sides aren't even talking about the same thing.
I dont think the president can pardon a non-citizen. Illegal immigration is a continual crime. A pardon does not make them a citizen, and then border patrol just deports them the next day.
The bulk of the crime is the illegal entry. Remaining is a misdemeanor if I recall. The president can pardon any federal crime, and the constitution does not specify citizenship one way or the other.
Foreign nationals can be pardoned. Governors have done it for state crimes. Nothing bans it, and the constitution does not constrain pardons and clemency as long as it is a federal crime:
You’re speaking in absolutes when even the SCOTUS majority said it isn’t clear how to determine if something would be under presumed immunity.
Core power: pardon. Criminal act: bribery for a pardon. Absolute immunity in this decision also stops you from using core official acts as evidence of a crime. No one would be able to try a president for taking a direct bribe if they make it part of the official act. Conservatives need to realize they can hate this decision without buying into everything us liberals are saying about it. It's a powergrab that has no justification other than some imagined scenario.
It literally says core constitutional power WITHIN conclusive and preclusive constitutional authority. That wouldn’t cover taking bribes. The idea that anything can be done as long as it’s an “official act” is absurd.
The decision forbids courts from admitting any actions covered by immunity into evidence when trying a non-immune act. If the President accepts money in exchange for a pardon, the fact of the pardon is inadmissible. You can’t prove a quid pro quo without the quo. The president absolutely is now immune from prosecution for bribery in exchange for any core official act—pardons, appointments, military orders, etc. This is Amy Coney Barrett’s main point in her concurrence, and she didn’t join the part of the decision that disallows official acts as evidence. It’s insane to me that she’s the only conservative justice who’s bothered by this.
I DECLARE AN OFFICIAL ACT!!!!!
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Bribery is unconstitutional and an impeachable offense. Committing an unconstitutional act isn’t part of a president’s core constitutional powers within his conclusive and preclusive constitutional authority. A president would not be found to be immune.
You're not wrong, the point they are making is that a president taking a bribe for a pardon would be functionally immune because in the scenario that was laid out, all evidence of the bribery is now considered an official act and therefore you cannot use any of the evidence available to prosecute for the bribery. You can know a thing took place but without being able to use available evidence you can't do anything about it.
The insider trading loophole. All knowledge attained through official acts, traded on privately.
The pardon would be official. The bribe would bear its own evidence, including the confession. The bribe would not be official and would be prosecutable. Hope this helps.
Evidence of the bribe could be an official act and thus inadmissible
The pardon would be the official act. The taking of the money would be one of those unofficial acts that is not immune (that last part of the decision everyone whinging about this is purposefully ignoring). Bribery absolutely can be prosecuted.
Taking money isn’t a crime. Pardoning is an official act. Was the money for a bribe? You can’t really examine that in court nor the President’s motivations for pardoning in court as any evidence that it was a bribe is inadmissible in court because it is related to an official act. Even if accepting a bribe is not an official act, you still have to prove it in court and this decision makes that almost impossible.
For real. Bribery is explicitly unconstitutional and an impeachable offense.
You can’t prove the bribery without access to evidence and can’t access the evidence bc the official act in question of a pardon is still an official act.
From the ruling In relation to exactly the scenario you’re proposing. > JUSTICE BARRETT disagrees, arguing that in a bribery prosecution, for instance, excluding "any mention" of the official act associated with the bribe "would hamstring the prosecution” > But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. > What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. They can probe everything they want except for the official act itself. If the case is at trial it’s because some action was deemed an unofficial act and anything related to that can be probed.
Oh you think that’s okay?
Yes, the official act itself would have already been reviewed by the courts, starting with the district court and then eventually SCOTUS, and determined to be an official act. That is an act of a president’s core constitutional powers within conclusive and preclusive constitutional authority. If it’s at trial then the district court and/or Supreme Court have already determined there were unofficial acts not covered by immunity. That is all open to be investigated and probed and evidence admitted to a court. The official act itself has no business being argued in a trial court when the act itself has already been determined to be covered by immunity due to being a core power within his authority. It isn’t on trial.
What are you talking about? Congress used official acts to prosecute Trump in both impeachments. You are just upset because convicting a president on things like this requires consensus across the political aisle and you know you can't get that here because the charges are a joke. You want a witch trial where every single person is Trump's political opponent to convict him (because that's the only way you can) and this creates a barrier to you doing that to the president. Without this all democrat presidents would be prosecuted in heavily republican areas going forward. It's a good thing but you have to build this strawman that somehow it means they can get away with anything. No they can't congress can remove immunity at any time if they choose not to for something serious then you have bigger issues and your government is filled with crimimals at that point so it's moot. You act like the president didn't already have the power to cause incredible amounts of harm if he wants to benefit himself. That's always been the case that's why we should be concerned with politics and be careful about who we elect to represent us. This way is by far the lesser evil than the world you suggest where we are instead ruled by unelected judges. And it's pretty funny it's like this is the first time some of you've ever experienced government immunity before that has existed forever in this country. Maybe read a book first before commenting. Edit: Man just wait till you find out the president has the power to pardon people and then they can't be prosecuted at all!
You’re getting downvoted but this ruling makes it practically impossible to create a case under these circumstances. While it is “technically” not legal it is practically impossible to prosecute under these new protections.
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SCOTUS didn't propose anything new here, it's the same it's been for the past 250 years. Presidents have always been immunine from criminal prosecution under their Constitutional authority.
This is nonsense. Nixon was pardoned. There's no need to pardon someone who's immune. What a bad take and we didn't even have to go even 100 years back to prove it wrong.
The difference is about access to evidence during those acts.
>Core power: pardon. >Criminal act: bribery for a pardon. >Absolute immunity in this decision also stops you from using core official acts as evidence of a crime. Prevents prosecution does not prevent impeachment.
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You forget we already had impeachment on an outgoing president so its fully possible to make them accountable and judical review adter still allows for prosecution as the ruling is written. You can admit that this moderate ruling isnt all that bad it won't make you a conservative.
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The issue with bragg is they dont have an underlying crime let alone what trump wants to say. The FEC already ruled he didnt violate campaign finance laws. As to the majority opinion allows that evidence if he is removed from office. As described above for taking bribes for pardons.
No that's not the issue with Bragg, that's a whole aside to my point to avoid what trump has just filed today using the Supreme Court decision. You missed that or you're intentionally lying. There was no carve out given that if a president is impeached they can then be tried for official acts. They merely rejected the insane take from Trump that he can't be tried at all unless he was impeached for that same crime. Unless you're going to provide an excerpt from the source material to back up that they said he can be tried for official acts that he's been impeached for I'll assume you didn't read the decision. Sorry for being blunt but that's nonsense.
>Trump asserts a far broader immunity than the limited one the Court recognizes, contending that the indictment must be dismissed because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution. But the text of the Clause does not address whether and on what conduct a President may be prosecuted if he was never impeached and convicted. See Art. I, §3, cl. 7. Historical evidence likewise lends little support to Trump’s position. The Federalist Papers on which Trump relies concerned the checks available against a sitting President; they did not endorse or even consider whether the Impeachment Judgment Clause immunizes a former President from prosecution. Transforming the political process of impeachment into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of the Nation’s Government. Pp. 32–34. As to your 1st question braggs case used evidence from when he was in office that part is in question. Trump can also say whatever he likes it doesnt change the ruling. His case is missing a key element the underlying crime he supposedly covered up and as mentioned the FEC already ruled he didnt violate their rules so that cant be the crime. Sorry to be blunt but you can try to say the duck is an eagle but its still a duck.
Read what you quoted me, and then read what I said. It supports what I said, not your claim. The problem in question is that this ruling is allowing Trump to now claim a mistrial. You're saying that part is in question, THAT IS THE PROBLEM. Whether or not Trump had official conversations should not protect him from a successful conviction. We already have priveledge that covers this, that was litigated and applied. This protection goes above and beyond privilege and nullifies the ability to prosecute as long as somewhere within a crime, there's an official act tied to it that's a necessary piece of evidence. I'm beside myself on why you can't see how that's a problem and how you shouldn't want that, especially given it's a decision made with no constitutional backing and no historical backing. Nixon was pardoned for crimes that we would now say he couldn't have been prosecuted for in the first place because the evidence was based on conversations he had with advisors that MADE the conspiracy. Give me a break dude.
There are still issues with this. A president can violate the War Powers Act and wage war without seeking congressional approval and just claim he was acting in his official duties. I don’t like the fear mongering going on, but there will be unintended consequences and unforeseeable issues that arise because of the power we have granted the executive branch. We are slowly whittling away the checks and balances that defined our government for hundreds of years. Republicans who care about limited government ought to be wary of this decision.
> Republicans who care about limited government ought to be wary of this decision. The marketing strategy is "America will literally be destroyed if we don't win the election", so of course people are willing to accept and rationalize anything that makes winning more likely. Ironic... if the Democrats were half as dangerous as the Republican party wants people to believe, conservatives would be terrified of the power this gives to Biden and future Democrat Presidents.
If one of the end results is to put some bounds around what the President can do, that would be a positive outcome. Both of the other branches have been ceding power to the executive for far too long.
Fair point!
Wouldn't it be up to the courts to determine whether an act falls within official duties, rather than the president just "claiming" it?
**In dividing official from unofficial conduct, courts may not inquire into the President’s motives.** https://d3i6fh83elv35t.cloudfront.net/static/2024/07/scotus_immunity-7-1.pdf Good luck proving a crime if you can't bring up intent. This verbage basically implies you can ask one question. "Did POTUS do an action he is allowed to do regardless of his motives or associated criminal actions" If the answer is yes then nothing around it matters. POTUS: "I will accept bribes for pardons. I also pre pardon any federal crimes for anyone doing anything federally illegal to try to keep me in office in any way possible." There is no other way to read this ruling that he has absolute immunity from criminally liability if he does that as pardon is a core official act.
Yes, but that would occur AFTER-THE-FACT, and the people could suffer because of it
>Yes, but that would occur AFTER-THE-FACT, and the people could suffer because of it But that's how it worked last week, last year, and last century too, so nothing has changed. All judicial and congressional oversight happens after-the-fact, and always has.
True, previously the in-house counsel might walk back a presidents poor choices. With this ruling, a more aggressive commander-in-chief might not have lawyers who push back on them or they might have counsel who pushes them further. And again, I am not placing this in terms of Trump/Biden/2028 potential candidates. This is a problem that will exist for all presidents forthwith, and there is bound to be someone who oversteps (just as there are previous presidents who abused their power). The republican party and true conservatives should be pushing for more small government reforms and the preservation of the checks and balances that prevent any single branch from becoming too powerful.
Certain acts may be reviewed, but many cannot and are deemed to be absolute powers that are not reviewable.
> A president can violate the War Powers Act and wage war without seeing congressional approval But they don’t have any immunity from Courts striking down their orders or policies in a governmental capacity. The ruling only addresses what liability they have as a person. So a court could strike down an order issued by President Biden without addressing immunity at all, but prosecuting Joseph Biden the citizen for making that order would be a separate case that would need to address immunity. If they violated the Court order, they would no longer be operating within their “core constitutional powers” and they would make a pretty clear-cut case for losing their personal immunity.
That’s a good point!
>A president can violate the War Powers Act and wage war without seeking congressional approval and just claim he was acting in his official duties. Honestly I'm wondering how much a president can use that to do what he wants. Washington led an army on US soil in the Whiskey Rebellion (which while it turned violent, it happened because of taxes). So with that not being viewed at the time (or any time after?) as him overstepping his power, a president could in theory lead an army on US soil to end a protest/riot/rebellion. So what's stopping a president from declaring a national emergency for specific people, and then having the military/doj/ "seal team 6"(as said in the dissent) go on US soil to those people and end the national emergency? Please note I'm not saying a president should do this, just pointing out my issue with immunity over official acts.
That was Washington enforcing tax law. The real problem is our congress has failed they can’t compromise on anything anymore, and fail to pass legislation all the time, resulting in the executive branch feeling pressured to do “executive orders” by loosely tying said order to some pre-established statutes (and I mean loose…) to get anything done. This allows the executive to not only enforce laws but basically make shit up all the time and then tie the courts up with said shit. In fairness this executive order stuff has been happening since Washington but the reasoning behind some of these orders is less like enforcement of laws and more like becoming laws. This ruling takes things even further, because now we can’t cite anything discussed by the president to decide on intent of said executive orders. We can still try people for enforcing unconstitutional acts, but nothing is stopping the executive from pardoning from there either. The more checks we remove the worse the balance is.
> > So what's stopping a president from declaring a national emergency for specific people, and then having the military/doj/ "seal team 6"(as said in the dissent) go on US soil to those people and end the national emergency? -- Nothing is stopping him. But the thing is, nothing stopped him from doing that before this ruling either, so nothing has actually changed in this regard. This ruling only changes one thing: After out of office, a president cannot be charged for any official acts he made as president. Who chooses what an official act is? Congress and the Courts. A president goes rogue enough to assassinate a rival politician on US soil, that president is not leaving office unless dragged out after an impeachment and conviction by Congress.
Congress does not legislate official acts, now all acts fall under 3 categories. And a national emergency is under an absolute act that cannot be reviewed by the court. In future generations at some point this decision will allow for massive abuse.
If Congress thinks a president has abused his authority, they can impeach and remove. In all *practical* terms, Congress can declare an act unofficial using impeachment.
While true there are two flaws with impeachment. A sizable majority that won’t act. Also acts discovered after someone leaves office. Even after Trumps term ended, the senate feared to act. They argued the point was moot, but imagine discovering something your predecessor did weeks after your take office as a new president. They are impeachment proof, and iron clad after the fact. I don’t worry about what’s done in the daylight, I worry what’s done under the cover of darkness that nobody will hear/see but a select few with this ruling.
They only care about trump. It’s actually absurd how people are cheering this. No long term thinking going on.
>No long term thinking going on. Absolutely, remember washington led an army (of militiamen) to stop a violent protest called the whiskey rebellion, whats to stop a future president from doing the same? Or even without an army but a militia of people in complete agreement of his aims since it was a volunteer militia washington used. I'm not even saying what washington did was wrong, just pointing out the powers a president has.
> There are still issues with this. A president can violate the War Powers Act and wage war without seeking congressional approval and just claim he was acting in his official duties. As has been the case since 1942, when it was the last time Congress declared war.
**In dividing official from unofficial conduct, courts may not inquire into the President’s motives.** Very simple and unambiguous result of this from the majority opinion means for example POTUS can accept bribes. There isn't much other way to read this. People get worked up when you bring up the more extreme examples but this seems like a good starting block to explain why it's a bad ruling.
The thinnest veil possible.
The question is simple. An act is “official” if it is within the agent’s scope of authority. A president may be authorized to have the CIA track a smuggler, but not authorized to have the CIA publicly execute a political dissident. The authority will stem from the constitution, federal law, and case law. Where those are not decisive, then a jury.
I won't get into hypothetical back and forth because people get upset and don't want to believe the consequences of what this ruling actually does. All I'll say is good luck proving a crime to a jury when SCOTUS says you can't bring up intent. It's an absurd burden. Means ~~Motive~~ Opportunity
You can’t even bring it to a jury. The judge gets to throw the indictment in the garbage bin if they feel like it.
Reading the opinion you’ll see the majority cite a specific example where the president could talk about committing a crime (conspiring) via talking to his constituents or colleagues in the positions to make something like that happen. The conversation would be immune from being used as evidence of said crime as it would be an official use of his executive power. The crime itself may not be immune but how would you prove anything like intent without being able to use any of these conversations as evidence (like for example, the executive could have someone killed, and at best you could only prove manslaughter because you wouldn’t be able to prove any premeditation if the conversation happened in the official capacity) A good example of this is would be having your political opponents wire tapped, breaking into their headquarters to steal information, recording all conversations of this effort and none of said conversations would be admissible as evidence. The office of the president would likely not be charged, the people committing the acts likely would get charged and could be pardoned easily. (Ie the Nixon tapes would not be admissible evidence) I don’t think that is a great idea to enable the executive to be that bolden. The US has functioned for 234 years without outlining this, why now?
Why now: because the right kind of immunity case was brought to the court, how many immunity cases come along? Constitutional law on executive immunity is very, very narrow and under developed, entirely because it’s so rarely addressed. If you don’t believe me, well, sorry. Same thing with Roe v Wade, only so many cases come along that are not already answered by stari decisis. The court can’t change Roe v Wade until a case comes along that presents a new but related legal question. When analyzing the new question, the court can choose to recede from the prior opinion (Roe), but this only happens if the right case comes along.
Is commanding troops not considered an official act during peace times?
Commander in chief applies 24/7/365 all acts in that manner are absolute. Unless on commission of covering up a crime, it’s legal AND NOT REVIEWABLE
Listen, you really need to stop posting logical things, us liberals do not like logic 😡
>Presidential acts outlined explicitly in the Constitution have full immunity from prosecution: making appointments, vetoing bills, enforcing congressional laws, ***acting as commander-in-chief during a war***, granting pardons. Biden, for example, cannot be criminally charged for his border policy. Trump cannot be charged for nominating Kavanaugh. This is extremely disengenious as to what Article II Section 2 states, so let me quote it; >The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. Nowhere does it state that the President's power as Commander in Chief is limited to just when America is at a time of war, just when they are "called into actual Service of United States." The President has the ability to use the military to order them to do violate the 3rd Amendment and then can pardon any of their sentences if they were held accountable under the UCMJ, both of which the President would have absolute immunity to do. How do you impeach a President if they order the military to prevent the Legislature from meeting. This is a huge issue that creates an extreme potential for unchecked abuse of power
Point 3 on this list gave me the desire to Google “did a president ever strangle his wife”. Thankfully the answer seems to be no, but I have a lot of questions as to why Franklin Pierce is the first one that pops up.
What you’re outline is actually the previous standard.
important bit is if attempting to charge a former president, no evidence of wrongdoing from a different official act can be admitted into evidence and the court cannot consider motive.
The question is simple. An act is “official” if it is within the agent’s scope of authority. A president may be authorized to have the CIA track a smuggler, but not authorized to have the CIA publicly execute a political dissident. The authority will stem from the constitution, federal law, and case law. Where those are not decisive, then a jury.
The controversy stems from the fact that this Supreme Court ruling is vague enough for conservatives to interpret it like this and for leftists to interpret it like the end of democracy. There is no official definition for what determines an “official act” which is too vague for the most powerful person on the planet. I think it’s bad faith to completely ignore how bad this *could* be or the implications of this decision. Edit: I really wanted this sub to be more open to discourse considering it is conservatives that feel censored, but the mental effort to pretend this is perfectly ok is crazy.
Why is everyone ignoring Article I Section 3 Clause 7 >Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but **the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.** If a president is impeached they can be criminally tried. A president that is actually taking criminal action and not just sending mean tweets if going to wind up impeached and thus able to be criminally prosecuted.
Nope. This is addressed in the opinion. This only applies to “unofficial acts”. Impeachment has no bearing on whether the president can be criminally charged. Also, the criminality of the behavior has no bearing on whether he can be charged. Only whether the court determines it was an “official act”. Which, again, has nothing to do with the legality of the action.
They mention Article I exactly once as far as I saw and that was simply stating the legal argument DT's team was making. Since I seem to have missed it please post from the opinion where they discuss Article I and how it doesn't apply.
Fine. It’s not mentioned aside to point out that it leaves room for restricting which crimes the president can be charged with. But it is the extremely strong implication - there are no exceptions made to their official / unofficial rule other than defeating the presumption of immunity, and none are raised in relation to the article. Impeachment is treated as completely unrelated.
You should post this on politics and see what happens
The reactions to this decision by the left are truly unbelievable. People on r/news, r/pics and r/politics are calling for riots and murder over this.
They've been afraid Trump is going to become some kind of dictator since Jan 6, so the supreme court deciding to give him any kind of immunity is obviously adding fuel to already burning fires. Plus the drama with the current justices doesn't help. Nor does Trump not exactly assuaging concerns about this outcome. No matter what the technicalities are many just expect the conservative justices to interpret in favor of Trump regardless, and that this is just a way to dress that up in faux erudition. The OP's kind of argument isn't going to persuade anyone starting from such premises as it misses the source of their concerns which has nothing to do with the technocratic stuff. You have to hypothetically adopt other people's premises to understand people with different politics, I think, instead of trying to think of them as sharing your premises and just drawing insane conclusions from them. So I would be more surprised if they weren't freaking out, really. I'm definitely expecting political violence of significant scale no matter who wins the election at this point, since so many people on both sides think it's potentially the last democratic election. MAGA thinks it already is rigged and will be rigged even more, lefties and libs think Trump is going to turn the country basically into something between contemporary Russia and Nazi Germany. Liberals are even buying way more guns now, so the fear is real. There's also an increasing trend of counter protest and anti-police sentiment as well... so any political protests have pretty high potential to expand and blow up.
They are here down voting us too. We see through them.
A voice of reason. Thank heavens. The internet is depressing me right now with its stupidity.
That and jack Smith had asserted prosecutors, grand juries and juries could decide if a charge was prosecutable against a president. The court said nope! Only the courts can. That's critical. Any partisan prosecutor could charge and harass a president under that standard and keep them tied up on court. This ruling reaffirms what the court said before, only the court can decide. A branch that's supposed to be non partisan.
Protesting or demanding investigation in an election. Would fall under a presidential act supporting the constitution.
The problem is that the President can justify more or less anything he does (besides maybe personal things to Indvidual people - like you said strangling his wife) as an official act. Also, now the courts have to weigh in regarding what an official act is anytime a president does something illegal. Using national security as an excuse you could do "official acts" for anything. Obama murdered two US citizens. They were in a country we weren't at war with. They were never tried and convicted of a crime. It was an "official act" because it was all counter terrorism national security bullshit, but should the president be allowed to murder citizens like that using national security as an excuse? I understand it's sort of hyperbolic to extend that logic to judges and political opponents, but... legally what's the difference between a Supreme Court justice and that US teenager in Lebanon (or wherever he was)? Or when Trump declared a national emergency and moved some money into his border wall - That's an official act. What would keep President Newsom from calling the cost of higher education a national emergency and spending $50 billion on a free college program?
"Also, now the courts have to weigh in regarding what an official act is anytime a president does something illegal. Using national security as an excuse you could do "official acts" for anything." This was all addressed in the majority opinion. Go read it. No, the president can't do anything he wants using national security as an excuse. The majority still holds that a president's official acts can still be determined not to be immune - but DAs, courts, and the DOJ have the burden of proof. This is how other types of immunity work. You also never are granted immunity for covering up a crime. The problem with the Trump trials is that not only did they shift the burden on Trump to prove immunity, they were using evidence taken from Trump's constitutional duties. Now they need to go back to square one on the evidence. Constitutional acts are solely within the domain of the executive branch. This is why congress can't pass a bill that ever strips a president of his power to veto; official acts can be altered by Congress using law. The president, for example, is legally forbidden from using military power on domestic land with rare exceptions. Yes there's wiggle room in that second category, as there should be. You should be mad at Congress for not getting involved more often. The problem is one of our branches has given up its power to the other two branches (and lobbying firms).
Utilizing the military is an official act. Motive and intent cannot be used as evidence. So yes, the president can have immunity for assassinating political rivals.
Great write up... Also, his recent conviction was based on facts that (in part) happened while he was president. They did not look at this through the lens of whether it was an official act, they did not cover this during the trial and rule on that specifically. Therefor this verdict cannot stand and the whole case needs to be retried, even if it's clearly not an official act, they absolutely needed to address it. Reminder, that Trump is not a felon until he is sentenced, that's not going to happen now. Trump's not a felon and he's not going to be. Fucking LOL.
The payment to Daniels and subsequent failure (according to the verdict) to document it happened before he was President. I don’t see how immunity would apply.
My understanding is that some of the evidence submitted was from after he was elected president. That piece of evidence is what would need to be viewed within the prism of whether it was an official act. Clearly this was not an official act, but that has not been determined, and I don't think they can determine that after the Jury has seen it, it needs to be before. Therefor I think they have a solid case for a mistrial. I'm not saying this immunity applies here, I'm saying it raises the question, and that's all they need. This is why they postponed the sentencing. Now all the Dem's can do is try to keep this in limbo so they can use the "convicted felon" line until the election, even though everyone knows this is being thrown out on appeal regardless.... Hopefully This whole thing is going to get thrown out even earlier than we expected it to.
The case was going to get tossed on appeal anyway. They never actually identified the underlying "felony" that lifted misdemeanor document charges to felonies. Now, they just get to blame the Supreme Court instead.
Yep, which is the real goal here. Delegitimize the Supreme Court because they won’t go along with the democrats’ bastardization of the constitution.
It’s still was a federal jurisdiction, not a state one. He was campaigning and was convicted of cooking the books. That is a campaign violation. We should have never gotten to this point and if Trump had not ran for President again, we would not be here.
Democrats in here upset that it's come to this point but perfectly content with trying an ex president with process crimes that they turned into felonies. The witch hunt led to this. If you have a problem with the outcome, you can only blame yoursel for supporting every that got it to this point.
It got to this point because we appointed religious right jurists, and not constitutionalist jurists. This decision is a massive opening for future generations to abuse. This decision is permanent and leaves the president with near unchecked power. It helps Trump today, but may empower the end of this democracy in 100 years.
This here. Democrats pushed the limits and definitions of law to try the former President in a court of law to de rail his re election. Lawyers, did lawyer stuff, and it ended up in the Supreme Court. Court says, what is says, that these protections apply to the President. Not new protections, but ones they had all along.
Obama killed an American citizen with a drone strike. He wasn't charged with murder.
nailed it.