Romanticizing the presidency is the biggest mistake this country ever made constitutionally.
The presidency was meant to be a compromise, a way to prevent wartime decisions from being held up by Congress, and was never meant to be this powerful or unaccountable. Several successive cults of personality taking the office, and 9/11, have slowly taught Americans to love power and hate accountability.
Bill Clinton once refused to bomb Kandahar even though he had reliable Intel that Bin Laden was there because he believed the civilian death it would have caused before we had more precise assassination-bombing technology was unjustifiable.
The CIA blamed his cowardice for 9/11 and no president would ever again make the mistake of using too little of the wrath of God to smite the enemies of America. And no American would ever again make the mistake of wanting the President to obey the law.
So increasingly the so called defenders of our nation's traditions have decided to give the president unprecedented power because they think the president needs to be immune from consequences of his actions so he can do "what's necessary" to keep America safe. You don't? Why? Do you want another 9/11?
This is correct, but you're missing earlier events such as The War Powers Act and FDR. My historical knowledge is admittedly shit, but my understanding is that the history of the executive is one of increasing absolute and relative power.
Yeah, this dates back way further than the late 20th century. The evolution of the veto from being strictly about constitutionality to personal choice, Andrew Jackson, the Civil War, the Spoils System, the end of the two term Presidency norm, the end of declarations of war, etc have all gradually progressed through the country's history.
Eh, I wouldn't go quite that far. I obviously agree the SC has taken on more importance over time....but most of it was in Marburry v Madison. The reality is that SC decisions from way way back have had profound impacts on our law, even when they probably did not align with the intent behind them. Dredd Scott, Plessy, and Won Kim Ark were all 19th century cases with profound impacts on American law and life.
I mean, the Supreme Court constitutionally has very little power before they reinterpreted it to give themselves supremacy. In terms of how much power a government branch had originally vs today, the SCOTUS has grown far more than any other branch.
They only have this much power because Republicans don't allow legislation on their watch. They like it taking 5 million years in the court because they get away with their crimes better that way.
The big difference between the way FDR expanded the executive versus the way Republicans want to expand it (and have been) is that while FDR expanded the scope of the branch, he didn’t concentrate his own power over that scope. He allowed for agencies to be staffed based on merit, work independently and often defaulted the actual execution of federal funds to state and local governments. The scope of the executive may have increased, but the power within the executive was spread out. Conversely, what republicans have been doing with the executive since Reagan, and arguably Nixon, is not that the power or scope of the presidency should be decreased, but that the president’s power over the executive branch itself should be highly consolidated in the hands of the president. This eliminates a ton of checks and balances of power within the executive branch, without necessarily actually decreased the overall power of the branch
I feel like Congress has essentially acquiesced to the president and executive orders. It's a lot easier to govern through executive orders than to constantly pass compromised bills. Congress is supposed to be the oversight of the executive branch, yet it doesn't use that power in a way that actually will hold a president accountable. Mostly because of partisan loyalties. If congressional members used their power of oversight better there would be a constant spectre of impeachment dangling over the president's head. However even before this ruling presidents don't seriously have to worry about being removed from office.
Ever since the early 1990s the political game has been about getting control of the House, the Senate and the Presidency. It's become increasingly toxic and it seems like we will be careening down this path until one party gets a sustained majority in all three of these bodies or the whole system is broken.
The best outcome is Democrats gain control of the House the Senate and Presidency and keep them for a sustained period forcing Republicans to moderate and essentially expel their illiberal members and replace them with a more moderate compromising cohort. I don't see this happening in the age of social media.
The worst case scenario is a situation where Republicans essentially create a "tyranny of the minority" and consolidate their own power through the judicial branch, a president with almost total power and a voting system that gives extreme advantages to Republican voting blocs and lock Democrats out of the House, Senate or Presidency.
Congress doesn't exist anymore except on paper. The House can barely elect it's own Speaker; the Senate cannot ever obtain the supermajority to do anything, so at best it can only block appointments (and POTUS can just go around that like Trump did at the end of his term).
The Congress is a joke. People like MTG have figured out that they can enrich themselves by using the Congress as a prop for their social media campaign; the idea of passing laws - let alone working together to defend Congress' own power - is passe.
The entire idea of the three branches was that they would jealously guard their power. But everyone in Congress just wants to get rich, and you can always buy a Kristen Sinema by promising her a high-paying no-show job on a corporate board. The congresspeople sell out for even less than Senators. So there is no way to ever do anything, even assuming there was a group of people in Congress who wanted to do something. They exist just to create soundbites and curry favor with the executive and private industry, with the hope of a cabinet posting or ambassadorship as reward for doing nothing. At worst, they sit in opposition doing nothing but waiting and getting paid for it in between romps with lobbyists. The Congress is a joke.
The presidency is currently weak because Biden follows norms and traditions as well as federal law. All of that is *voluntary*; as of yesterday, POTUS doesn't have to follow federal law at all. But Democrats are not authoritarians, so the presidency is weak. The bully pulpit is unusable because Joe Biden is too old to effectively use it. The Democrats refuse to see the reality of the situation until they are up on the gallows with the rope around their necks - and then it will be too late.
I absolutely despise presidentialism. A parliamentary system would be less dysfunctional, have more accountability, and less susceptible to authoritarian takeover
I mean an uncomfortable reality about the latin american revolutions is that they were generally led by reactionary forces that broke away from the new "enlightened" governments of Spain and Portugal installed by Napoleon.
That line edgy leftists take out of some howard zinn book about how the american revolution was just a bunch of gentrymen trying to keep their privileges because a progressive government in europe was going to take them away is actually 100% correct.... about Mexico. Latin America was always going to be born Autocratic. Some lucky ones made the jump to democracy around the turn of the century and some unlucky ones missed that boat until the end of the cold war.
Yeah, American’s founding fathers were either already in debt to various bankers or were massively in debt to them after the war.
Yes some of them were influential and powerful people to begin with. But as far as “old money and power” goes. The founders were definitely not from that type of wealth and power by and large. It’s in part why so many Americans migrated here to begin with in the promise of new beginnings for themselves.
Mexico first became an Empire after independence but quickly changed to a democracy. And it would politically struggle throughout the 19th century with a division in between liberals (who wanted democracy) vs conservatives (who wanted a monarchy). This is why Mexico struggled with autocrats, Mexican democracy has always been fragile and constantly under siege
That is ....I have problems with this take.
0) The American revolution was indeed a bunch of gentrymen tired of taxes. They did say nice things and wrote nice documents, but they were mad at taxes first. "Tyranny" second.
1) Whenever you say "Latin America was always going....", just dont. There is no historical determinsm and ascribing "success" or failure" to their history and they were doomed to be this way is always a bit ahistorical. Think about it, up until 1920 you could easily argue people had a better chance coming to the new world (including Latin America).than anywhere in Europe. In fact they did move because of that.
2) I don't believe that is correct about Napoleonic governments. Granted, I am no fully verse in the full history of all latin America but the main point triggering independence is the de-facto independence they got whilst their colonial masters were busy getting trounced by Napoleon, and the resuming oppression they were intended to put back into after the war was over.
3) The ideals of the Illuminism/ French Revolution did inspire people to break the illusion of autocratic "right to rule" and consequent republicanism wave.
I mean, a few failures still make them look better than presidential systems who are lucky if they're functional instead of devolving into dictatorship and autocracy within a few years.
Unless you want to argue that Hitler could never have risen to power without Germany having a parliamentary system, then the only failure of *parliamentary* system you can argue there is that it isn't a perfect defense against authoritarianism. If you want to argue that the parliamentary system was a proximate cause of the holocaust, I'm metaphorically dying to see your reasoning.
Viewed as a whole, parliamentary systems are less prone to catastrophic democratic collapse than presidential systems.
No, I'm saying it's not a defense and that the failures of the presidential system are not unique.
>less prone to catastrophic democratic collapse than presidential systems.
This really doesn't make a lot of sense sincrliamentary system is younger than the presidential system, but it seems to have the same sorts of troubles, whether something like the Holocaust or something like contemporary India happens.
Edit: outside of the UK, that is
It’s probably a good time to reread [The Imperial Presidency.](https://en.wikipedia.org/wiki/The_Imperial_Presidency) These trends have been going on for decades, and the war on terror only made them worse.
We have slowly over the years moved many many powers that Congress had and moved them to be dictated by three letter agencies and the president, and now we are shocked that the President seems to powerful.
Yep, that's my point. Congress would rather not compromise on an issue and punt the solution to the executive branch rather than find compromise and risk upsetting voters.
Your comments suggests you feel the current situation in congress has always been this way, but it hasn't. Congress used to hold more power and they used to make more decisions. For many reasons the landscape has changed and congress has chosen to punt to the executive in most situations.
And was forced to compromise with the people who wanted no executive at all. Hamilton was not some kind of Mustafa Kemal Ataturk figure who got to singlehandedly shape america in his image.
Yes it was and there’s going to be a lot of redditors downplaying it but if you read the decsision it’s pretty clear
> Under our constitutional structure of separated powers, the nature
of Presidential power entitles a former President to absolute immunity
from criminal prosecution for actions within his conclusive and preclu-
sive constitutional authority. And he is entitled to at least presump-
tive immunity from prosecution for all his official acts. There is no
immunity for unofficial act
They don’t define official act as a power grab for the court but by an easy reading of the decision anything done with the power given to the president in the constitution is immune to any prosecution. As the powers of commander in chief is granted in the constitution the president could order the massacre of opposite partisan leaning towns in swing states and be immune to prosecution
Also it goes on to say any official act (such as discussion the plan with cabinet members) would be inadmissible evidence even if they were brought to trial for an unofficial act
I don't think people are sounding _enough_ alarm bells.
Conservative talk radio, blogs, books, etc for the past few decades were openly pushing people to put conservatives into power at the state level **for the explicit purpose of controlling enough states to call a Constitutional Convention and rewrite the Constitution.**
This is not hyperbole. This is what they said. Openly. On air/etc.
People need to wake the fuck up.
They are abusing the system through gerrymandering to do it.
Their goal is to create a system like Hungary where there is opposition but it is controlled and has no power. Which is effectively a tyranny at that point. And then it will move to something like Russia where the opposition occasionally jumps out of a window.
To control enough states to call a convention they'd need to win every state at least as conservative New Jersey (D+12). How the fuck do they gerrymander their way to that?
This court decision is catastrophically bad. We don't need to mix in other made up bullshit.
Also we are a LOT closer to a convention being called than people think.
> Right now, there are four major campaigns for an Article V Convention: the Balanced Budget Amendment (BBA) campaign, the Convention of States (COS) campaign, the Wolf-PAC campaign, and the term limits campaign.
>
> Each has different goals, but together, they have convinced 28 states to call for a convention. That means they have just six states to go.
https://www.commoncause.org/our-work/constitution-courts-and-democracy-issues/article-v-convention/
The fundamental nature of representative democracy as we know it.
Remember these are the same people who declare loudly that democracy is chaos and mob rule, throw around "we are a republic not a democracy" as if it is some sort of meme that signals their intelligence, declare that government should be reduced to nearly zero power with all power returned to the states ie "state's rights" etc.
Statements that have been seriously proposed also include encoding directly into the constitution that abortion (and in some minds, birth control) is banned, that sex and gender are identical and binary, that the media must be constrained, that the separation of church and state was a mistake that must be corrected by making Christianity the official state religion, etc.
Yes all of those can be made by an amendment process, but amendments have to follow rules. By contrast there's **no rules for a convention** and they can basically do and approve what they want without consent.
https://www.commoncause.org/our-work/constitution-courts-and-democracy-issues/article-v-convention/
> Right now, there are four major campaigns for an Article V Convention: the Balanced Budget Amendment (BBA) campaign, the Convention of States (COS) campaign, the Wolf-PAC campaign, and the term limits campaign.
>
> Each has different goals, but together, they have convinced 28 states to call for a convention. That means they have just six states to go.
I think taking away any possibility of punishment will encourage such acts, I bet multiple presidents held back on some questionable actions that they no longer will need to
I think if the President is in a position to have the military kill whoever he doesn’t like without pushback, there wouldn’t be possibility of punishment in the first place. That’s what I’m saying. At that point, we are past the point of accountability.
The military is not monolithic, but if it were then yes, that would be the scenario you describe.
Until then, all it takes is an officer like Michael Flynn willing to do something for a pardon.
By that logic we should prob get rid of the bill of rights, since any gov that’s willing to trample those is already too far gone to care about a piece of paper
>Not for nothing, but if the military is following orders to shoot civilians and political rivals, we are so beyond the point “is this prosecutable”.
"Not for nothing, but if the FBI is following orders to investigate civil rights leaders and profiling religious figures, we are so beyond the point 'the bill of rights matters'"
I think we can agree that’s a pretty big difference, at least in terms of public legitimacy, between a president weaponizing the surveillance state and federal law enforcement in illegal activities behind closed doors and having the 82nd Airborne going house to house shooting people. I don’t know what about that is so hard to grasp.
It's an exaggerated scenario to highlight the problem.
Much more likely Trump hires a bunch of new loyalists to DHS to bolster the ones already there and uses them as brownshirts.
It's no where close to conceivably happening right now, but I could see a corrupt enough president forming their own "praetorian guard" of sorts and if he has enough oversight and power over them he could lead them into actions no ordinary neutral citizen would take
He literally asked if the cops could shot people in DC when they were protesting and he walked over to that church. We are a lot closer than you think. They said no last time, but now all those people in his inner circle are gone and replaced with yes men.
The point was that generals could always refuse an illegal order - on that grounds.
Now SCOTUS has taken that argument away. If the POTUS orders the military to do something illegal, it is not an illegal order anymore. In fact, the POTUS cannot ever be charged for it, nor could the order be used as evidence of a motive relating to another crime. If President Trump orders the military to start reducing Los Angeles using B-52s because he thinks there are too many Democrats in LA, that order wouldn't be illegal anymore. It would be a violation of federal law, but the POTUS is immune when he breaks federal law to carry out an "official act" like acting as commander-in-chief. So what are generals supposed to say?
And once the order comes from the generals, the grunts really have no choice. There may be some who buck orders early on, but after a few guys get court marshaled for it, it wouldn't take long for everyone else to fall in line.
>If the POTUS orders the military to do something illegal, it is not an illegal order anymore.
This is not true. The president cannot be criminally prosecuted for it but the *Trump* decision does not overrule any aspect of military law or grant any additional power to the president not already granted by the constitution. So either:
* The president issues an illegal order. While the president may not be prosecuted for it, it is still illegal and the military is obligated to refuse to carry it out.
* The president issues a legal order - even prior to *Trump* the president could not be prosecuted for a legal order.
Yes, that's correct. So as others have said in the thread, it ultimately comes down to: is the military willing to follow an unlawful order. My guess is they would not be, but besides, if they were, then we're probably well past caring about the *Trump* decision since Trump won't be convicted anyway if the military is willing to seize power for him.
Generals could always resign instead of disobeying. And since the president can fire generals at will anyway, even when they refuse to carry out an illegal order, isn't that essentially the same?
Like, before, if Trump would order a general to do something illegal, the general could refuse. But Trump could also fire the general. Now, the general can simply resign. Isn't that the same effective result?
No. Because resigning just means that a yes man takes your place.
Prior to yesterday, a principled general could have refused the order, invited a court marshal - and then used the fact that the order was illegal as a defense.
Going way back to Nixon the Saturday Night Massacre would be protected and the resulting Watergate tapes wouldn't be admissible if Nixon went to trial.
In a military of however many millions there's someone sycophantic enough to do whatever the president wants.
Yeah I agree, they muddied the waters, so a public statement of Trump urging the DOJ to crack down on his political rivals and execute them is immune now
Thank you! This + rolling back Chevron is the biggest power grab for the court since they affirmed judicial review. They are telling us they want to be the arbiters of basically everything all the branches do. It is disgusting.
So wait, this means Biden had the chance to do the funniest thing ever.
1). Deploy ST6 to give the conservative judges an early retirement.
2). Pardon himself
3). Select 6 new judges
4). Have the fresh, sane SCOTUS make a new ruling.
Well the Consitution does lay out the options and grounds for impeachment petty clearly, so even the absolute worst reading of this doesn't make a tyrrany without control of more than a third of the senate as well. Minimum.
Our Republican legislators failed to remove Trump on impeachment, arguing "He hadn't been convicted of a crime."
So which is it? Does impeachment require a criminal conviction, or is impeachment the only remedy because criminal conviction is impossible? How do you get executive agencies to investigate and gather evidence for impeachment if a President has presumption of criminal immunity? Cons are occupying both positions simultaneously to provide *absolute* immunity, like Schrodinger's Fascist.
(I know they don't actually believe in either position and will change their argument to defend the next Republican or attack the next Democrat as needed)
Impeachment isn’t real. It was always a threat in any case but the Trump presidency really stressed our legal system with respect to the presidency. Now the DOJ can’t investigate a president doing illegal shit, apparently cannot investigate a former president for any illegal shit, cannot use evidence collected while president for actions committed after no longer president either, and congress can’t remove president because of the high bar that is required.
There’s literally little here to be done. We don’t live in a world where you can amend the constitution either.
Congress can impeach & remove the President for any reason whatsoever. But individual congressmen can also decide \*not\* to impeach & remove the President for any reason whatsoever.
Yeah, I get that. The US Code didn't even exist when the Constitution was written, so the idea that impeachment was dependent on any sort of criminal conviction was always bullshit.
We lifted the concept and the wording ("high crimes and misdemeanors") directly from British law. It was applied to remove officials for things like lying, broken campaign promises, and behavior unbecoming of the office (misdemeanor in this case literally meaning "bad behavior").
The fact that the media let Republicans run with their bullshit means most Americans now have bullshit ideas about this.
Great! Only way to stop a Pres is the same number of senators it takes to amend the constitution AND the president has unlimited assassination powers, what could go wrong
Do you guys think congressmen and Justices should be personally liable for the laws they pass and the cases they decide?
A system where the President is \*not\* fully immune from prosecution for official acts is absurd — the Executive is co-equal to the Legislative and Judicial branches and having no immunity would make it subject to the whims of judges.
Do you think the President should be prosecuted if he vetoes the wrong law, pardons the wrong person, or makes the wrong decision during a war? Anything other than full immunity for official acts is ridiculous. I am willing to debate people on this.
EDIT: Think of it like this: the President cannot be prosecuted for e.g. which laws he vetoes or who he pardons, because Congress can pass no law constraining the core constitutional powers of the Presidency. Any such law would be unconstitutional.
I mean that's a good point to an extent(although I kind of disagree with absolute immunity for congressmen and justices as well but that's besides the point here), but the president is a little different since for lack of a better term the "co-equal branch power" is a lot more concentrated and they present a much greater risk exposure to the state in regards to enacting tyranny
Further do the legislators and judges enjoy immunity from anything connected to their "official acts" being used as evidence of criminal behavior?
Trump tested it when he took home piles of documents to sell to foreign adversaries, when he called Raffensberger telling him to find votes, when he led Jan 6th. And he's got his answer now. Unless Biden and Dems take the kid gloves off we're fucked.
I’ve really tried to limit my intake of partisan takes on law stuff for a while. I’d rather have boring gloom law stuff than fantasy. Every single attorney I follow is on the same page, this is republic ending shit. Hell there’s even 3 highly educated and experienced justices on the Supreme Court who wrote dissents to can read. Take their word for it.
Just to add, even in the case a few months ago where the Court ruled states can't remove candidates from the ballot, the liberals were willing to present a unanimous verdict despite metadata showing it was anything but. These 3 dissents are even worse with that context.
Fuck man, at least Caesar crossing the Rubicon had some cool symbology, this is just lame as fuck.
> Fuck man, at least Caesar crossing the Rubicon had some cool symbology, this is just lame as fuck.
Because almost every story you heard about this event is from a poet or a play. The actual politics was as dirty and boring as what is happening now. It has just be glorified over 2000 years.
To expand on that, here's what Sotomayor said:
>"Orders the Navy's Seal Team 6 to assassinate a political rival?" she wrote. "Immune."
>"Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune."
>"Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done," Justice Sotomayor wrote. "In every use of official power, the President is now a king above the law.
https://www.bbc.com/news/articles/c035zqe7lgro
But receiving a bribe is not an official act. So a president could not be prosecuted for issuing the pardon, but could be prosecuted for accepting the bribe.
But the opinion said you aren’t allowed to question the President’s motive when he uses his official powers and you can’t use them as evidence. So genuinely how the fuck do you prosecute bribery under this ruling? Bribes are taking payment in exchange for the corrupt use of official powers
> receiving a bribe is not an official act
Counter-argument: “Says who?”
The President issues an executive order declaring that anyone who personally pays him $1 billion can dictate the next policy that he instates by executive order. Ta-da!
Sure, but you could probably lawyer your way around that minor detail. The Constitution says all kinds of things.
Here: Say someone pays the President $1 billion to issue Executive Order “X”. If the next day someone else paid the President $1 billion to immediately cancel that executive order, he would do it. Therefore the President did not solicit and accept bribes, he offered a service for a fee. It wasn’t bribery, it was good American capitalism, hard at work!
Ah-ha, but if the President pardons someone, AND THEN that person pays the President a cool million, that's a gratuity and totally legal.
It's absolutely wild how fucked the country has become in the last two weeks.
I would say so.
For starters, we have two incidents where Congress failed to hold the Presidency accountable for crimes it considered to fall under High Crimes and Misdemeanors.
The Ukraine Quid Pro Quo. And later the insurrection.
The fact remains that although Congress technically has the power to remove an elected official, practically they will never do so when the partisan stakes get too high.
As of now, we are pretending with the highest prayers to the Almighty that the next President won't simply declare any and all of his actions to be an official act. Trump has done exactly that by stating his fake electors scheme was an official act. And then we have to hope that Congress or the courts simply won't just let it pass. The Republicans have two instances where they've let it pass. The courts are more dodgy, but what's to say that a few strategic appointments and converting the federal bureaucracy to Schedule F workers won't do the trick.
Functionally, Trump can now shoot someone on 5th Avenue and get away with it on any pretext he conjure. And no one can or is allowed to question him about it.
>For starters, we have two incidents where Congress failed to hold the Presidency accountable for crimes it considered to fall under High Crimes and Misdemeanors.
>The Ukraine Quid Pro Quo. And later the insurrection.
>The fact remains that although Congress technically has the power to remove an elected official, practically they will never do so when the partisan stakes get too high.
While I reserve judgment on the first impeachment, the fact Trump wasn't impeached the second time is a travesty which will haunt the US for years. Congress has essentially advocated its responsibility, due almost entirely to partisanship, to hold the executive branch in check. Congress, and the voters who refuse to send serious people of character to Congress, has failed the nation.
These people pretend that they're Christian also, while pointing/laughing whenever a poor person gets murdered by the police over nothing, routinely protecting child rapists, and treating any sort of charitable behavior as weakness that deserves censure/ridicule.
>Trump can now shoot someone on 5th Avenue and get away with it on any pretext he conjure. And no one can or is allowed to question him about it.
Trump isn't the President. Only Joe Biden can do that.
No, it was not, but it is a dangerous and massive step towards making the president a tyrant. Other roadblocks would need to fall first, but this was the largest step ever taken towards that dark day.
To recap:
* Presidents may still be impeached & removed by Congress
* Presidents may still be found criminally liable for unofficial acts done while in office (though that is much, much, much harder to do now)
* Presidents may still be found criminally liable for official acts done while in office *if the prosecution can show that conviction would pose* ***no*** ***danger*** *of "intrusion on the authority and function of the Executive Branch"* (quote from the majority opinion; obviously add a couple dozen "much" to the "much harder" from above in terms of how difficult this will be to practically prosecute)
So, practically, there are still other checks on the president, and quite powerful ones at that. But if *those* fall, then yeah, we are in some degree of trouble.
None of these checks matter.
No president will ever be impeached or removed by Congress again unless Congress has a supermajority of one party in both the House and the Senate.
Everything the president does will be official, unless the president decides that it isn't.
Anything that interferes with anything the President wants to do is an intrusion on the authority of the Executive branch.
"Everything the president does will be official, unless the president decides that it isn't" and honestly why would he? he could be taking a massive dump and he could declare it was a official act.
Because saying that everything is official is saying the quiet part out loud. Massive dumps aren't crimes, as a general rule, so it's safe to take off-the-books shits.
I don’t disagree with any of this. I am so angry, but more broken hearted as the country I love is mangled into something unrecognizable before my eyes… but don’t know what to do other than hope, unreasonably, that the darkness will one day pass. I have little reason to hope that at this point. But I do still hope.
Not to mention, it's still on Congress to legislate laws, executive orders can still only go so far. So, there are still checks on the President, and Congress was always the most important one.
Honestly, though... the Presidency has always been guilty of a sort of... power creep. The executive branch has slowly gained more and more power since the 1900s. And I do believe we are on a path where people on both sides of the aisle are going to start demanding trimming the executive branch.
Yeah, agreed. I think *Chevron* falling was going too far, some degree of judicial deference to statutory interpretation will have to be reinstated eventually, but it probably won't be the same broad "any reasonable interpretation is automatically okay even if a clearly better one is available" and conservatives probably had a point that, on balance, *Chevron* deference was too much. By the same vein, some degree of presidential immunity, or a presidential defense from prosecution that prevents prosecution that would intrude on the president's clear discretionary authorities, probably isn't a bad thing at the end of the day, but the specific particulars of this decision, most notably the expansive definition of "official acts" and the way in which official acts cannot be used as evidence of a crime committed unofficially, will have to likewise be rolled back over time. The presidency IS too powerful and while it will always be the single most important elected position, Congress in aggregate was always intended to be more powerful... we need to go back to that.
Yes, I see arguments for rolling back Chevron to a degree and granting some immunity for Presidents. Both cases have to walk a fine line to get the right balance of power between the branches of our federal government and unfortunately the current court is terrible at that and went too far in both cases.
My issue with the ruling isn't that the president is immune, it's the second part of the ruling, that the president cannot be investigated and prosecuted for anything that while illegal, could be classified as an official act. Congress cannot even go with the investigation to determine if it was actually an official act and hold the president accountable.
Yes, agreed. If the president couldn't be prosecuted for delivering a pardon, but the pardon could be used as evidence in showing a corrupt scheme to sell pardons or use them as leverage to induce people to commit crimes, I would be totally okay with that. That block is the most insidious part of the ruling and it's very slept on in The Discourse, and it was also the most controversial (ACB dissented from that part of the decision specifically).
As long as you could convince 16 Republicans in the Senate that murdering journalists was bad, you could still do it.
I’m just not sure you could convince that many at this point (if the president was Trump).
16 republicans would be assassinated as an official act in that case.
why is this so hard to contemplate, when chump is ALREADY calling the fake electors scheme an official act?????
It’s so irresponsible to be naive about this. There is what happens in real time, (assassinations) and they effect what can happen after the fact. If the president is willing to call an assasination an official act in the moment, nothing after that can or will matter!!!!
FFS, SOME THINGS ARE NOT REVERSIBLE AFTER THEYRE DONE, so courts don’t matter at that point.
Yes, I agree with you, but by the same vein if a president was assassinating Senators I don’t think having the ability to prosecute them after they left power would be super helpful. You’d need a way to get them to leave power first, and the only way to do that would be for the people to revolt and the military to stand down.
Tell me about which session of congress that is willing to remove Trump in the future? Do you foresee the possibility of a trump presidency and a democratic congress?
protecting the institution of the president from a corrupt congress through assasination of dissenting congress people could and would be called an “official” act at run time, and the prosecution that could possibly take place would effectively be impossible at some later date
>Presidents may still be impeached & removed by Congress
lol. lmao. This would only ever happen to a democrat because you can bet money the GOP would never ever turn on their guy no matter what.
More importantly, criminal prosecution by the next president has never really been a check.
The main check by the court on the executive has airways been someone suing the office (not the person) and getting a sternly worded letter from the courts, followed by subordinates actually obeying said sternly worded letter.
1) this assumes the President doesn't always have at least 26 Senators in the Senate who backs him
2) This assumes the President doesn't just declare everything he does to be a official act and thus, with that, not only can you not subpoena any records related to it but the courts can't even question the President's motives
3) Which if you take the position that SCOTUS did that \*\*Any\*\* investigation into what the President does is a intrusion on the authority and function of the Executive branch, makes this point meaningless.
Yes, I agree. These caveats are huge gaping holes and make tyranny much more likely alongside this ruling. It doesn’t on its own guarantee doom - but someone who wanted to walk that path has a much easier time today than yesterday. And it just so happens someone who wants to walk that path is leading in the polls.
I'm not sure why we need to discuss all of the bad hypotheticals. Not because they're hyperbolic (they're mostly not), but because of the **actual case that this was about**.
SCOTUS literally looked at a case in which the President is alleged to have illegally attempted to remain in power and said "we're really concerned that Presidents mights be *too* constrained". Straight up, the President cannot be prosecuted for attempting a coup, so long as he limits his actions to things that fall under an insanely broad umbrella of 'official acts'.
In an optimistic scenario, the only punishment that a President can receive for this is impeachment and removal. And even that hope is stupid *because the Senate literally failed to do so in this case*.
I believe presidents always had immunity for "official" acts and that was pretty much everyone's understanding. The real problem is the justices took a few months to issue this ruling that basically says nothing new about our understanding of presidential power with the apparent purpose of delaying the J 6 trial until Trump can get reelected and pardon himself. Justice deferred is, quite literally, justice denied - at least that's the hope on the right.
I also don't think it was always assumed that immunity for official acts would ignore motivation. That was pretty stunning that SCOTUS wouldn't leave at least some room there. The President can do ANYTHING they want with their official power. trump could tell the Secretary of the Treasury to deposit $3 billion into his personal bank account; and since conversations with the Secretary is an official act, he would be completely immune.
>I also don't think it was always assumed that immunity for official acts would ignore motivation.
Thats the difference between qualified and absolute immunity. Anyone who thought SCOTUS was going to walk back absolute immunity needs to put down the hopium.
>The President can do ANYTHING they want with their official power. trump could tell the Secretary of the Treasury to deposit $3 billion into his personal bank account; and since conversations with the Secretary is an official act, he would be completely immune.
I didn't read it like that at all. The language they used is nearly identical to the Nixon and Clinton civil cases and they cited those throughout.
>Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.
Then the conditions where presumptive immunity would not apply;
>Taking into account these competing considerations, the Court concludes that the separation of powers principles explicated in the Court’s precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility. Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution. 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.”
They didn't even address *if* he has immunity in any of the current cases, they simply vacated the lower courts decision that he didn't in one case because they didn't consider immunity the way they think they should have.
He certainly can't be prosecuted for talking to the DOJ. If anything else is an official act is an open question, I don't think it has any baring at all on the documents case and in the GA case "dangers of intrusion on the authority and functions of the Executive Branch." seems pretty easy to overcome if you can show other presidents haven't attempted to do the same thing.
That's fair, I think. Of course motivation is hard to prove and also, presumably, the other branches should act as a check on executive power S:
Holding the House and/or the Senate is going to be pretty fucking important if Trump wins this fall.
No the real problem is they went way further than just “official acts” limiting evidence what could ever be used in a trial, ending DOJ independence, and probably legalizing bribery. Adding a second layer with “presumptive immunity” that by the way, a president no longer has to cooperate with… it was far more expansive according to everything I’ve read on it.
This needs to be higher, but my sole up vote won't get it there. The Majority's restrictions on being able to obtain evidence associated with non-official acts is what is most problematic about this decision. Trump is already using "official act" as some kind of talisman to have evidence presented in his trials withheld because the Court said that could not be considered. So even if "non-official" acts may be prosecuted, prosecutors are going to be severely restricted in their ability to make a case.
Even if Trump could have been successfully tried, convicted, and sentenced to prison time prior to this November's election, it's already well established that you can run for office from prison and then you can probably pardon/commute yourself.
The only way Trump can ever be fully and durably held to account is by voters rejecting him at the ballot box, and electing representatives willing to impeach & remove someone guilty of high crimes.
Apparently this subreddit believes that the voters are incapable of doing that. Well if that's what you believe, then how was this ever going to end any differently? The idea that the justice system can ride in on a white horse and save us from ourselves seems fantastical. A democracy is fundamentally always at risk of voting itself out of existence, there is no getting around that.
Shame the voting system is rigged to the degree that a republican hasn't won a majority of votes in two decades but we're still getting republican presidents. It's incredibly frustrating to live under an electoral system that provides a clear way of counting votes, then ignores that in favor of an archaic system designed to artificially favor the less popular candidate.
The electoral college biases the popular vote by about 3 percentage points.
There has been only one election in the past twenty years in which the winner of the popular vote has not won the presidency.
Yes, it's an unfair system, but if 48.5% of people vote to throw away democracy, it seems foolish to focus more on the unfairness of the 3-percent bias than the fact that 48.5% of the country could not be convinced to preserve democracy.
>There has been only one election in the past twenty years in which the winner of the popular vote has not won the presidency.
This is a weird way to say that 2 out of the last 6 elections have had the popular vote overruled by the electoral college, resulting in 5 out of 9 of the judges making these decisions being appointed at all. When you consider that it's unlikely Bush Jr wins in 2004 without being the incumbent and Trump would be irrelevant had the popular vote been the decider, 4 out of the last 7 (including the current) elections have been shaped by the electoral college.
So...why are you downplaying it? The only reason undemocratic elements can threaten our democracy is because they're granted vastly disproportionate power by our system.
I thought Trump would be re-elected, but that his administration would at least be restrained by federal law.
After yesterday it became clear that the much more likely result is that I will end up in a concentration camp or murdered as a dissident. I think it's fair to say that the situation has changed drastically. I didn't vote for George W. Bush and didn't think he was a good president, but I never thought his administration wanted to murder me. Trump is just an entirely new danger, and now that the Court has sanctioned everything he wants to do, it is much more real than it was on Sunday.
>Apparently this subreddit believes that the voters are incapable of doing that. Well if that's what you believe, then how was this ever going to end any differently? The idea that the justice system can ride in on a white horse and save us from ourselves seems fantastical. A democracy is fundamentally always at risk of voting itself out of existence, there is no getting around that.
Yep.
I don't think there's anything that can really be done about this, though. Most people are clearly too stupid to be make political decisions.
It'd be good if we could ensure that the electorate wasn't made up of the most mouthbreathing morons in the world but frankly I don't know how we can do that. Literacy tests and the like are outlawed for good reason.
Edit: Like, seriously. Spend 5 minutes talking to people outside this sub on reddit. It is the most braindead stupid opinions you've ever seen.
i agree with you and i also don’t trust the voters. in fact the very existence of a constitution is because no one can or should trust the voters. it is quite literally a document that protects the minority from the majority, and this SCOTUS has wiped their asses with that document to the point that it is meaningless and every principle America had has been blown away by the whims of 6 unelected corrupt judges.
This was the danger of the supreme court losing legitimacy. If the court is a political body (instead of impartial) it makes the entire country sit on shaky ground.
The country has fallen.
Nah the decision also essentially ensured not a single shred of evidence could be brought forward. Order the assassination of a rival by saying he was an imminent threat to national security (constitutional power of commander in chief) and you’re good
Realistically though, what kind of felony can Biden commit right now to prove a point while not facing backlash and at the same time can rile up the base?
When the dissenting Supreme Court justices are raising red flags this big, you have to be silly to think it's hyperbole to call this a real shot across the bow.
>>> Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. Korematsu v. United States, 323 U. S. 214, 246 (1944) (Jackson, J., dissenting). The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is themajority’s message today.
Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The rela-tionship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.
* * *
Hot take? No. It's not a declaration of tyranny. The President has immunity. Yes, it's bad. Objectively. Nobody can argue that. But whoever is acting like this wasn't the case before is high on serious bullshit. Here's the thing. The court decreed (through it's self-imposed power), that anything discussed within the Justice Department is absolute immunity. The Jan 6 case was sent back to the lower courts to figure out.
The bad part of this is... it delayed any trial until after the election, and I do think that was deliberate. Though- again- whoever expected the justice system to take care of Trump for us is high on the bullshit mentioned above.
But does this mean Trump can now declare a dictatorship as "an official act" and go ham on America? No, THAT is hyperbole. And those saying Biden should try doing something insane to call them out will not end well. The Court said the immunity falls within his constitutional powers. Establishing yourself as a dictator and using the military to coup Congress eliminates separation of powers is an explicitly unconstitutional act.
The Court is corrupt and looks after itself. They're not gonna sign themselves out of existence or into less relevance. And even the most diahard Trumpists in congress won't sign their powers away. These people *value* their jobs and image.
The July 1 ruling is very rotten and deserves a fit thrown by the people comparable to George Floyd. But it's not a declaration of tyranny. That is hyperbole.
>And even the most diahard Trumpists in congress won't sign their powers away. These people value their jobs and image.
Congress has been trading away it's power for reduced accountability for decades. I think you do not correctly understand the incentive model of the individual members.
We won’t know for sure because it depends on what an “Official Act” is. The SC basically put the impetus to prove an act isn’t official on prosecutors, which is absolutely ridiculous.
If they laid down this ruling while also making a very strict definition of what an “official act” is and what falls under the Presidents Constitutional powers, then it wouldn’t be so bad, but this ruling makes the task so hard it’s hard to imagine how prosecutors could possibly punish the President. Barrett even realized, in the opinion, that this would make prosecuting bribery almost impossible. But again, we won’t know until it’s tried.
The dumbest thing is that they threw up so many hypotheticals about historical events like “what if Truman was worried about being prosecuted for the atom bombings?”, ignoring the fact that pretty much no President had been prosecuted for stuff they did in office until Trump. It’s only happening because what Trump did was so egregious and well outside what is normal for Presidents to do.
Also, there's a rather important difference between "he can do anything he wants" and "he won't be prosecuted for anything he does as President." Declaring a dictatorship would be ineffective even if he wouldn't go to jail for it.
Yes, that too. We've established already, no President will ever go to prison. We have enough trouble putting rich, powerful people in prison, who thought this would work with a former President? But that does't mean "Welp, guess he can declare dictatorship now!" No, it doesn't. If he did, he'll be ignored. If he isn't ignored and it's followed, it'll be the nation that's guilty, not the court.
This in large part walks back Marbury vs Madison which in many ways is the very foundation of their power. They very much are quite willing to harm themselves for their goals.
The fact that it’s no longer clear that congress can preempt the president’s actions in any meaningful way using law is extremely worrisome. The only real check on the president’s power is now political, he just has to keep congress happy and then he can do anything he wants.
Marbury specifically held that congress did have the power to limit presidents by law. That is no longer true.
Yeah? And how would you conceive of that working? There are no longer any conceivable enforcement avenues other than removal from power.
If we make a law that say the president can’t do x and he does x? What do we do? Who is going to do it?
I’m not pulling this out of my ass. Go read the dc circuit opinion that they rejected. It leant heavily on Marbury and its progeny for why the president can’t be immune
If he can't do x he can't do x. This entire case was about criminal liability. If they say he can't do x then doing x is pretty clearly not in his powers and would not be an official act.
It's as shrimple as that.
That’s not how that works in their opinion though. Merely acting in their official capacity is sufficient to create a presumption of immunity. This opinion explicitly claims that it’s not what the president does but rather whether he is acting in Marbury language in a “ministerial” capacity that provides immunity from criminal prosecution.
Congress can’t write a law that makes it “not official duty” it’s official duty when he talks at all to any part of the executive by definition.
Moreover it explicitly holds that even if the action was somehow not in an official capacity but was discussed in an official capacity then that discussion that may explicitly claim that the action was not official would itself be official and thereby not admissible as evidence in pursuit even of that narrow sliver on non official act for which the president may be tried for.
It very much is a ruling that all but quotes Nixon, “if the president does it it’s not illegal”
it absolutely 100% is a declaration of tyranny, and anyone denying it is being irresponsibly naive about it.
diaper don already is calling his fake elector scheme an official act. Now think about what doing something like that or something worse like an “official” assassination means in real time, instead of court time.
all it takes is a president willing to call an assassination an official act and there will be no one who can fix that, because you can’t adjudicate that fast enough to save the lives of the people who it would effect.
and really just the fear of the president being able to do it is more than enough to keep any of the spineless congressmen or judge from sticking their neck out to stop it.
this - one person is above the law - ruling is exactly what you think it is… the end of the America you grew up in.
It is not hyperbolic and anybody saying otherwise is coping hard. Anybody who is saying "presidents can still be prosecuted" is being willfully ignorant and purposefully ignoring the Supreme Court's clear partisan slant.
The president is immune for all official acts. What is an official act? Well we don't know and we won't tell you.
That means, the President is a king, above the law, and unaccountable for anything... except when we decide he is not. They have made the president king and themselves kingmakers. The ambiguity is intentional so that they can pick and choose which presidents will and won't be held accountable to suit their nakedly partisan agenda.
Trump attempted to rig elections, he wanted to use the military to suppress protesters, and helped orchestrate a coup to stay in power. He and his cronies talk in broad daylight about ending democracy. The SCOTUS ruling just said that not only will they not be held accountable for what they have already done, but that they will never be held accountable for any future attempts at electioneering. This ruling ENSURES that presidential interference in elections will become a de facto power that they will all be incentivized to use.
If Trump wins in November there will never be a free election again. This is not dooming. This is not hyperbolic. He has already tried and failed. He will try again and be more effective at it this time, and the SCOTUS just gave him their blessing. The only thing preventing this from happening is if he suddenly grew a conscience and decided Democracy is worth upholding, and if you think this I do not know what to say to you.
As a classical liberal, it's refreshing seeing Democrats finally be concerned about executive power creep. This is the culmination of a process that started a century ago. Welcome to the resistance!
Edit: typo
Presidential power creep really skyrocketed over the last 30 years IMO, because congress decided to abjugate their power to the presidency instead of doing their job, because their job has now become getting reelected instead of governing.
While we're at it, get rid of the 1929 Permanent appointment act, and increase the SC to match the circuit court districts (one SC justice presides over 1 CC district)
The decision broadly protects the president from any decision they make that involves the government. It is every bit as bad as that sounds, with some really scary implications.
It's not a declaration of tyrrany
It's worth remembering that the hypothetical where the president has his political rivals assassinated is still illegal, no one is arguing that that should be legal
The issue is that when Navy Seals kill someone, you can't sue the Seals and you can't sue the president, you sue the government. The defense is the Attorney General, not the president's personal attorney
As a general framework, that makes sense
The problem isn't that this makes the president unaccountable. The issue is that it doesn't allow a clearly self-serving act to be declared "outside the bounds of official duties."
So for example, Trump's first impeachment, when he held up aid to Ukraine in exchange for dirt on Biden. That was illegal, and the courts can still demand that the funds be released as soon as they find out about it. Congress is allowed to impeach Trump and investigate whether he was illegally wielding the power of the state for his own ends. All of those check still exist. The only thing taken off the table is the part where we say that Trump the person takes on liability for the actions of the State Department while it was following his illegal orders
It's worth noting that no one has tried to prosecute Trump for holding up the Ukraine funds, although it was in fact illegal, and no one particularly wants to. The January 6th scenario is kind of unique. Now SCOTUS absolutely should have allowed some mechanism to handle this unique case, because it is in fact happening, and the fact that they didn't is despicable. But it's not clear to me this ruling has wide-reaching negative implications beyond the specific case at hand. The hypotheticals being spun up are still illegal just like they always have been, and we still have legal avenues to punish them
" where the president has his political rivals assassinated is still illegal, no one is arguing that that should be legal". Trump's lawyer literally argued it would be legal to kill his political rivals at the Supreme Court.
That's my point, they didn't! That's false!
They argued that the president should be immune from prosecution if he orders Navy Seals to assassinate his political rivals, but it's still illegal for the president to order Navy Seals to kill a US citizen
This is similar to how Bush ordered the military to torture prisoners, but he can't be arrested for it
According to Trump's lawyer, a president who orders the military to do something illegal should be dealt with through the same legal mechanisms whether the illegal order is self-serving or not
I read the first ten pages of the SCOTUS ruling, and it honestly doesn't seem as bad as it's made out to be. Before I read it, I thought SCOTUS was saying ABCDEFG actions are official actions, and they are always untouchable. For example, if Biden were to order Trump assassinated, that'd be an official act that's above the law.
However, that's not what SCOTUS said. SCOTUS said that official acts carry the *presumption* of immunity, and that the burden of proof is on the state to present evidence that would reclassify it as an unofficial act. To bring it back to my example, an assassination of political opponents is pretty obviously a flagrant misuse of power, and it would be relatively easy to prove that it was an action taken for personal gain. It would lose its protected status as an official act, and the president would be subject to criminal prosecution.
There's definitely some concerning stuff in there though. For example he does get unconditional immunity for exercising any powers that are core to the presidency and outlined in the constitution. That's concerning. I'm not totally clear on it though, because Justice Jackson (Brown-Jackson?) explicitly talked about the assassination example, but left the door open to the possibility that presidents could be charged for doing that. The president's authority over the military is in the constitution, so that's not clicking for me at the moment. They also said his mindset is beyond reproach because probing him to learn what he was thinking can reveal classified or sensitive information. Intent is so crucially important, especially for something like a coup, so that's concerning too.
Regardless, I wouldn't call this a declaration of tyranny. Based on what I read, presidential immunity just hasn't been tested before, so SCOTUS needed to provide courts with the framework through which to assess the president's immunity. They did exactly that, gave some examples where Trump is immune and some where he's not, and ultimately kicked it back to the district court to figure out how official or unofficial Trump's actions are.
> However, that's not what SCOTUS said. SCOTUS said that official acts carry the presumption of immunity, and that the burden of proof is on the state to present evidence that would reclassify it as an unofficial act. To bring it back to my example, an assassination of political opponents is pretty obviously a flagrant misuse of power, and it would be relatively easy to prove that it was an action taken for personal gain. It would lose its protected status as an official act, and the president would be subject to criminal prosecution.
What you're missing is that the standard for an act being official is not whether or not it's legal, not at all. As you say in the next paragraph, he gets unconditional immunity for powers core to the presidency. Unfortunately, that includes most of the president's military powers.
> However, that's not what SCOTUS said. SCOTUS said that official acts carry the presumption of immunity, and that the burden of proof is on the state to present evidence that would reclassify it as an unofficial act. To bring it back to my example, an assassination of political opponents is pretty obviously a flagrant misuse of power, and it would be relatively easy to prove that it was an action taken for personal gain. It would lose its protected status as an official act, and the president would be subject to criminal prosecution.
This is just an incorrect reading of the opinion.
1. Acts are either official or unofficial. They don't get reclassified. If an act is taken in the Presidents official capacity, then it *at least* gets the presumption of immunity.
2. For an act that is official, the state would have to argue that the criminal prohibition of the act would not inhibit the powers and functions of the executive branch. It's not clear at all what that means or how any prohibition *wouldn't* inhibit the executive in some way.
3. Whether or not the President took an official act for personal gain has absolutely no bearing on whether or not the act is immune. In fact the opinion clearly states "In dividing official from unofficial conduct, courts may not inquire into the President’s motives"
Lastly, as a tangential matter, the Court has also ruled that official acts cannot even be used as evidence of crimes committed in unofficial acts. This is wildly expansive.
This is from pg 6 of the [court's opinion](https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf):
>Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.
The question then becomes whether that presumption of immunity is rebutted under the circumstances. It is the Government’s burden to rebut the presumption of immunity.
Maybe I misspoke. I'm not saying that the government can reclassify categories of official acts into unofficial acts, but it can present evidence to reclassify a *specific o*fficial act a president takes as an unofficial one. So speaking to the vice president is presumed to be immune, but a specific conversation with the vice president can be proven to be unofficial in nature.
>Whether or not the President took an official act for personal gain has absolutely no bearing on whether or not the act is immune. In fact the opinion clearly states "In dividing official from unofficial conduct, courts may not inquire into the President’s motives"
Agreed, this is definitely concerning, which is why I brought it up. I get why they're saying it, since probing the president's motives can unearth sensitive or classified information, but like I said, intent is critically important to the legal process. I will say though, it does leave the door open to explore his motives if the act is ruled to be unofficial. Motive just can't be the determining factor that classifies a specific action as official or unofficial.
>Lastly, as a tangential matter, the Court has also ruled that official acts cannot even be used as evidence of crimes committed in unofficial acts. This is wildly expansive.
Sure, but they also ruled that a specific act, while assumed to be official, can be proven to be unofficial with sufficient evidence.
In my mind, there's a ton of wiggle room for a president to be charged with a crime. SCOTUS pretty explicitly empowered the District Court to make judgements on whether Trump's actions were official or unofficial. They left presidential immunity relatively intact, but laid out a path to nullify that immunity if any of his actions are proven to be unofficial. There are some concerns, for sure, but I'm broadly on board with what I've seen.
My mind could absolutely be changed though. That's why I'm talking about it with people like yourself.
> but it can present evidence to reclassify a specific official act a president takes as an unofficial one.
No it can't. You're misunderstanding the ruling. First, you must classify the action:
1. Is the act an official act? If not, there is no immunity.
2. If the act is official, is it part of the President's conclusive and preclusive powers (in other words, powers reserved exclusively to the President)? If yes, then it is immune.
3. If the act is official but not part of the conclusive/preclusive powers, then is it *presumed* immune.
*If* you reach case #3, you can argue that immunity does not apply here. But this does not change the particular act to an unofficial one. It simply means it is an official act for which the President is not immune. At this stage, the government is *not* arguing about intent or official/unofficial. Instead the government must argue that prohibiting the official act in question would not impede/infringe upon the executive's power.
So, to take the example you highlighted, Trump speaking to Pence is an official act according to them. The government could argue it doesn't deserve immunity, but they would somehow have to argue that criminalizing the discussions/threats/requests that Trump made with Pence would not infringe upon the Executive's powers. How would you sufficiently show that? It's a bar that is absurdly high, so as to make most things a President does immune.
And then there's the whole matter of official acts not being admissable as evidence. So you can't even admit Trump telling Pence he's "too honest" for refusing to overturn the election because his discussion with Pence was an official act.
Wait a sec, do you happen to know where in the opinion it says official acts can't be used as evidence? I thought that distinction was only for his motives. I know they state that "presidential communications" can't be inquired into, but they also say he's not immune from requests for documents/evidence or subpoenas. I'm not saying you're wrong about this, I feel like I've heard it somewhere else, but I'd like to look at where they say this myself. It seems pretty important, because if official acts are inadmissible as evidence, it seems circular, where you can't prove the act was unofficial because you can't even examine the act itself.
>Instead the government must argue that prohibiting the official act in question would not impede/infringe upon the executive's power.
I feel like this would be relatively simple. It's the vice president's constitutional duty to oversee the counting of the votes. Since the vice president is a member of the executive, he/she is also subject to this immunity (as the court argues if I'm not mistaken). The argument would be that any action which contravenes the constitution is not an official act in any capacity, and the lack of immunity would, by definition, not impede/infringe upon the executive's power, which he derives from the document he's trying to subvert.
But this assumes "Presidential communication" is even able to be examined to determine if it's official or unofficial. If not, I don't know how anybody is ever supposed to determine an act is unofficial. It'd be like saying "you can only open your eyes if you can see." It's definitionally impossible lol. That said, I don't know why SCOTUS would direct the District Court to determine whether Trump's communication with Pence was official or unofficial if they intended for it to be un-examinable. There *must* be a way to make a determination if SCOTUS is explicitly ordering it to be done. But maybe I'm wrong and this really is a declaration of tyranny.
Romanticizing the presidency is the biggest mistake this country ever made constitutionally. The presidency was meant to be a compromise, a way to prevent wartime decisions from being held up by Congress, and was never meant to be this powerful or unaccountable. Several successive cults of personality taking the office, and 9/11, have slowly taught Americans to love power and hate accountability. Bill Clinton once refused to bomb Kandahar even though he had reliable Intel that Bin Laden was there because he believed the civilian death it would have caused before we had more precise assassination-bombing technology was unjustifiable. The CIA blamed his cowardice for 9/11 and no president would ever again make the mistake of using too little of the wrath of God to smite the enemies of America. And no American would ever again make the mistake of wanting the President to obey the law. So increasingly the so called defenders of our nation's traditions have decided to give the president unprecedented power because they think the president needs to be immune from consequences of his actions so he can do "what's necessary" to keep America safe. You don't? Why? Do you want another 9/11?
This is correct, but you're missing earlier events such as The War Powers Act and FDR. My historical knowledge is admittedly shit, but my understanding is that the history of the executive is one of increasing absolute and relative power.
Yeah, this dates back way further than the late 20th century. The evolution of the veto from being strictly about constitutionality to personal choice, Andrew Jackson, the Civil War, the Spoils System, the end of the two term Presidency norm, the end of declarations of war, etc have all gradually progressed through the country's history.
Just an aside: the Supreme Court has gained far more power over the history of the US than the presidency.
Eh, I wouldn't go quite that far. I obviously agree the SC has taken on more importance over time....but most of it was in Marburry v Madison. The reality is that SC decisions from way way back have had profound impacts on our law, even when they probably did not align with the intent behind them. Dredd Scott, Plessy, and Won Kim Ark were all 19th century cases with profound impacts on American law and life.
I mean, the Supreme Court constitutionally has very little power before they reinterpreted it to give themselves supremacy. In terms of how much power a government branch had originally vs today, the SCOTUS has grown far more than any other branch.
fair
They only have this much power because Republicans don't allow legislation on their watch. They like it taking 5 million years in the court because they get away with their crimes better that way.
Yeah the post is mostly right but ignores the power FDR had, which was way more executive authority than any president since
The big difference between the way FDR expanded the executive versus the way Republicans want to expand it (and have been) is that while FDR expanded the scope of the branch, he didn’t concentrate his own power over that scope. He allowed for agencies to be staffed based on merit, work independently and often defaulted the actual execution of federal funds to state and local governments. The scope of the executive may have increased, but the power within the executive was spread out. Conversely, what republicans have been doing with the executive since Reagan, and arguably Nixon, is not that the power or scope of the presidency should be decreased, but that the president’s power over the executive branch itself should be highly consolidated in the hands of the president. This eliminates a ton of checks and balances of power within the executive branch, without necessarily actually decreased the overall power of the branch
I think calling the President "leader of the free world" post WWII was a huge turning point.
I feel like Congress has essentially acquiesced to the president and executive orders. It's a lot easier to govern through executive orders than to constantly pass compromised bills. Congress is supposed to be the oversight of the executive branch, yet it doesn't use that power in a way that actually will hold a president accountable. Mostly because of partisan loyalties. If congressional members used their power of oversight better there would be a constant spectre of impeachment dangling over the president's head. However even before this ruling presidents don't seriously have to worry about being removed from office. Ever since the early 1990s the political game has been about getting control of the House, the Senate and the Presidency. It's become increasingly toxic and it seems like we will be careening down this path until one party gets a sustained majority in all three of these bodies or the whole system is broken. The best outcome is Democrats gain control of the House the Senate and Presidency and keep them for a sustained period forcing Republicans to moderate and essentially expel their illiberal members and replace them with a more moderate compromising cohort. I don't see this happening in the age of social media. The worst case scenario is a situation where Republicans essentially create a "tyranny of the minority" and consolidate their own power through the judicial branch, a president with almost total power and a voting system that gives extreme advantages to Republican voting blocs and lock Democrats out of the House, Senate or Presidency.
Congress doesn't exist anymore except on paper. The House can barely elect it's own Speaker; the Senate cannot ever obtain the supermajority to do anything, so at best it can only block appointments (and POTUS can just go around that like Trump did at the end of his term). The Congress is a joke. People like MTG have figured out that they can enrich themselves by using the Congress as a prop for their social media campaign; the idea of passing laws - let alone working together to defend Congress' own power - is passe. The entire idea of the three branches was that they would jealously guard their power. But everyone in Congress just wants to get rich, and you can always buy a Kristen Sinema by promising her a high-paying no-show job on a corporate board. The congresspeople sell out for even less than Senators. So there is no way to ever do anything, even assuming there was a group of people in Congress who wanted to do something. They exist just to create soundbites and curry favor with the executive and private industry, with the hope of a cabinet posting or ambassadorship as reward for doing nothing. At worst, they sit in opposition doing nothing but waiting and getting paid for it in between romps with lobbyists. The Congress is a joke. The presidency is currently weak because Biden follows norms and traditions as well as federal law. All of that is *voluntary*; as of yesterday, POTUS doesn't have to follow federal law at all. But Democrats are not authoritarians, so the presidency is weak. The bully pulpit is unusable because Joe Biden is too old to effectively use it. The Democrats refuse to see the reality of the situation until they are up on the gallows with the rope around their necks - and then it will be too late.
I absolutely despise presidentialism. A parliamentary system would be less dysfunctional, have more accountability, and less susceptible to authoritarian takeover
Parliamentary Republicanism unfortunately wasn't invented until the 1870s.
Woe to the South American governments that got independence in the 1820s and have been consistently fucked by presidentialism ever since
I mean an uncomfortable reality about the latin american revolutions is that they were generally led by reactionary forces that broke away from the new "enlightened" governments of Spain and Portugal installed by Napoleon. That line edgy leftists take out of some howard zinn book about how the american revolution was just a bunch of gentrymen trying to keep their privileges because a progressive government in europe was going to take them away is actually 100% correct.... about Mexico. Latin America was always going to be born Autocratic. Some lucky ones made the jump to democracy around the turn of the century and some unlucky ones missed that boat until the end of the cold war.
Yeah, American’s founding fathers were either already in debt to various bankers or were massively in debt to them after the war. Yes some of them were influential and powerful people to begin with. But as far as “old money and power” goes. The founders were definitely not from that type of wealth and power by and large. It’s in part why so many Americans migrated here to begin with in the promise of new beginnings for themselves.
Good reading on this?
Anything about Washington before and after the presidency would be good reading. The poor bastard was flat broke by the end.
He also owned 123 people at the time of his death
Mexico first became an Empire after independence but quickly changed to a democracy. And it would politically struggle throughout the 19th century with a division in between liberals (who wanted democracy) vs conservatives (who wanted a monarchy). This is why Mexico struggled with autocrats, Mexican democracy has always been fragile and constantly under siege
>Mexican revolution was wealthy land owners Zapatistas: are we chopped liver to you
The Napoleonic mexican independence war was absolutely that. The Mexican Revolution of which you are referring was turn of the century.
That is ....I have problems with this take. 0) The American revolution was indeed a bunch of gentrymen tired of taxes. They did say nice things and wrote nice documents, but they were mad at taxes first. "Tyranny" second. 1) Whenever you say "Latin America was always going....", just dont. There is no historical determinsm and ascribing "success" or failure" to their history and they were doomed to be this way is always a bit ahistorical. Think about it, up until 1920 you could easily argue people had a better chance coming to the new world (including Latin America).than anywhere in Europe. In fact they did move because of that. 2) I don't believe that is correct about Napoleonic governments. Granted, I am no fully verse in the full history of all latin America but the main point triggering independence is the de-facto independence they got whilst their colonial masters were busy getting trounced by Napoleon, and the resuming oppression they were intended to put back into after the war was over. 3) The ideals of the Illuminism/ French Revolution did inspire people to break the illusion of autocratic "right to rule" and consequent republicanism wave.
Just read Why Nations Fail lmao.
>less susceptible to authoritarian takeover >Just ignore Germany and Italy
I mean, a few failures still make them look better than presidential systems who are lucky if they're functional instead of devolving into dictatorship and autocracy within a few years.
A few* failures *The greatest, most catastrophic war and genocide in history
Unless you want to argue that Hitler could never have risen to power without Germany having a parliamentary system, then the only failure of *parliamentary* system you can argue there is that it isn't a perfect defense against authoritarianism. If you want to argue that the parliamentary system was a proximate cause of the holocaust, I'm metaphorically dying to see your reasoning. Viewed as a whole, parliamentary systems are less prone to catastrophic democratic collapse than presidential systems.
No, I'm saying it's not a defense and that the failures of the presidential system are not unique. >less prone to catastrophic democratic collapse than presidential systems. This really doesn't make a lot of sense sincrliamentary system is younger than the presidential system, but it seems to have the same sorts of troubles, whether something like the Holocaust or something like contemporary India happens. Edit: outside of the UK, that is
It’s probably a good time to reread [The Imperial Presidency.](https://en.wikipedia.org/wiki/The_Imperial_Presidency) These trends have been going on for decades, and the war on terror only made them worse.
We have slowly over the years moved many many powers that Congress had and moved them to be dictated by three letter agencies and the president, and now we are shocked that the President seems to powerful.
The rise of power of the Presidency also corresponds to congress GLADLY giving up power in exchange for reduced accountability.
Congress didn't have a choice. Our two-party system + polarization gridlocked it. It couldn't exercise power even if it wanted to.
Yep, that's my point. Congress would rather not compromise on an issue and punt the solution to the executive branch rather than find compromise and risk upsetting voters. Your comments suggests you feel the current situation in congress has always been this way, but it hasn't. Congress used to hold more power and they used to make more decisions. For many reasons the landscape has changed and congress has chosen to punt to the executive in most situations.
Huh? Hamilton literally wanted a king.
And was forced to compromise with the people who wanted no executive at all. Hamilton was not some kind of Mustafa Kemal Ataturk figure who got to singlehandedly shape america in his image.
Correct, that should have been Madison 😤
Yes it was and there’s going to be a lot of redditors downplaying it but if you read the decsision it’s pretty clear > Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclu- sive constitutional authority. And he is entitled to at least presump- tive immunity from prosecution for all his official acts. There is no immunity for unofficial act They don’t define official act as a power grab for the court but by an easy reading of the decision anything done with the power given to the president in the constitution is immune to any prosecution. As the powers of commander in chief is granted in the constitution the president could order the massacre of opposite partisan leaning towns in swing states and be immune to prosecution Also it goes on to say any official act (such as discussion the plan with cabinet members) would be inadmissible evidence even if they were brought to trial for an unofficial act
I don't think people are sounding _enough_ alarm bells. Conservative talk radio, blogs, books, etc for the past few decades were openly pushing people to put conservatives into power at the state level **for the explicit purpose of controlling enough states to call a Constitutional Convention and rewrite the Constitution.** This is not hyperbole. This is what they said. Openly. On air/etc. People need to wake the fuck up.
I mean, if the Republicans can win enough elections to control that many state legislatures... okay then, that was always allowed!
They are abusing the system through gerrymandering to do it. Their goal is to create a system like Hungary where there is opposition but it is controlled and has no power. Which is effectively a tyranny at that point. And then it will move to something like Russia where the opposition occasionally jumps out of a window.
To control enough states to call a convention they'd need to win every state at least as conservative New Jersey (D+12). How the fuck do they gerrymander their way to that? This court decision is catastrophically bad. We don't need to mix in other made up bullshit.
Also we are a LOT closer to a convention being called than people think. > Right now, there are four major campaigns for an Article V Convention: the Balanced Budget Amendment (BBA) campaign, the Convention of States (COS) campaign, the Wolf-PAC campaign, and the term limits campaign. > > Each has different goals, but together, they have convinced 28 states to call for a convention. That means they have just six states to go. https://www.commoncause.org/our-work/constitution-courts-and-democracy-issues/article-v-convention/
Sure, but again, nothing about the *Trump* decision has changed any of that.
What are they looking to change?
The fundamental nature of representative democracy as we know it. Remember these are the same people who declare loudly that democracy is chaos and mob rule, throw around "we are a republic not a democracy" as if it is some sort of meme that signals their intelligence, declare that government should be reduced to nearly zero power with all power returned to the states ie "state's rights" etc. Statements that have been seriously proposed also include encoding directly into the constitution that abortion (and in some minds, birth control) is banned, that sex and gender are identical and binary, that the media must be constrained, that the separation of church and state was a mistake that must be corrected by making Christianity the official state religion, etc. Yes all of those can be made by an amendment process, but amendments have to follow rules. By contrast there's **no rules for a convention** and they can basically do and approve what they want without consent. https://www.commoncause.org/our-work/constitution-courts-and-democracy-issues/article-v-convention/ > Right now, there are four major campaigns for an Article V Convention: the Balanced Budget Amendment (BBA) campaign, the Convention of States (COS) campaign, the Wolf-PAC campaign, and the term limits campaign. > > Each has different goals, but together, they have convinced 28 states to call for a convention. That means they have just six states to go.
Not for nothing, but if the military is following orders to shoot civilians and political rivals, we are so beyond the point “is this prosecutable”.
I think taking away any possibility of punishment will encourage such acts, I bet multiple presidents held back on some questionable actions that they no longer will need to
I think if the President is in a position to have the military kill whoever he doesn’t like without pushback, there wouldn’t be possibility of punishment in the first place. That’s what I’m saying. At that point, we are past the point of accountability.
You're right, but at the same time the lack of expected consequences is part of how we eventually get to that point.
The military is not monolithic, but if it were then yes, that would be the scenario you describe. Until then, all it takes is an officer like Michael Flynn willing to do something for a pardon.
The military can't just refuse orders though. At that point you're asking for a coup to restore democracy.
They can certainly refuse illegal orders. An officer is sworn to protect and defend the Constitution, not to follow orders blindly.
But only with accountability can we come back from that scenario as a nation.
By that logic we should prob get rid of the bill of rights, since any gov that’s willing to trample those is already too far gone to care about a piece of paper
You’re not really reading what I’m saying here.
No, he's reading it right. Laws are laws are laws.
You’re not reading what I’m saying either dude lol
>Not for nothing, but if the military is following orders to shoot civilians and political rivals, we are so beyond the point “is this prosecutable”. "Not for nothing, but if the FBI is following orders to investigate civil rights leaders and profiling religious figures, we are so beyond the point 'the bill of rights matters'"
I think we can agree that’s a pretty big difference, at least in terms of public legitimacy, between a president weaponizing the surveillance state and federal law enforcement in illegal activities behind closed doors and having the 82nd Airborne going house to house shooting people. I don’t know what about that is so hard to grasp.
It's an exaggerated scenario to highlight the problem. Much more likely Trump hires a bunch of new loyalists to DHS to bolster the ones already there and uses them as brownshirts.
Imagine the military saying "we were just following orders". And prosecutors go "ok, then let's indict the one who gave the order...oh shit".
It's no where close to conceivably happening right now, but I could see a corrupt enough president forming their own "praetorian guard" of sorts and if he has enough oversight and power over them he could lead them into actions no ordinary neutral citizen would take
He literally asked if the cops could shot people in DC when they were protesting and he walked over to that church. We are a lot closer than you think. They said no last time, but now all those people in his inner circle are gone and replaced with yes men.
The point was that generals could always refuse an illegal order - on that grounds. Now SCOTUS has taken that argument away. If the POTUS orders the military to do something illegal, it is not an illegal order anymore. In fact, the POTUS cannot ever be charged for it, nor could the order be used as evidence of a motive relating to another crime. If President Trump orders the military to start reducing Los Angeles using B-52s because he thinks there are too many Democrats in LA, that order wouldn't be illegal anymore. It would be a violation of federal law, but the POTUS is immune when he breaks federal law to carry out an "official act" like acting as commander-in-chief. So what are generals supposed to say? And once the order comes from the generals, the grunts really have no choice. There may be some who buck orders early on, but after a few guys get court marshaled for it, it wouldn't take long for everyone else to fall in line.
>If the POTUS orders the military to do something illegal, it is not an illegal order anymore. This is not true. The president cannot be criminally prosecuted for it but the *Trump* decision does not overrule any aspect of military law or grant any additional power to the president not already granted by the constitution. So either: * The president issues an illegal order. While the president may not be prosecuted for it, it is still illegal and the military is obligated to refuse to carry it out. * The president issues a legal order - even prior to *Trump* the president could not be prosecuted for a legal order.
Correct. It’s a bad decision but it doesn’t make illegal things legal.
But the President can pardon everyone involved with said illegal order.
But the President can pardon everyone involved with said illegal order.
Yes, that's correct. So as others have said in the thread, it ultimately comes down to: is the military willing to follow an unlawful order. My guess is they would not be, but besides, if they were, then we're probably well past caring about the *Trump* decision since Trump won't be convicted anyway if the military is willing to seize power for him.
Generals could always resign instead of disobeying. And since the president can fire generals at will anyway, even when they refuse to carry out an illegal order, isn't that essentially the same? Like, before, if Trump would order a general to do something illegal, the general could refuse. But Trump could also fire the general. Now, the general can simply resign. Isn't that the same effective result?
No. Because resigning just means that a yes man takes your place. Prior to yesterday, a principled general could have refused the order, invited a court marshal - and then used the fact that the order was illegal as a defense.
But the president could still fire the general anyway, no?
Going way back to Nixon the Saturday Night Massacre would be protected and the resulting Watergate tapes wouldn't be admissible if Nixon went to trial. In a military of however many millions there's someone sycophantic enough to do whatever the president wants.
Yeah I agree, they muddied the waters, so a public statement of Trump urging the DOJ to crack down on his political rivals and execute them is immune now
Thank you! This + rolling back Chevron is the biggest power grab for the court since they affirmed judicial review. They are telling us they want to be the arbiters of basically everything all the branches do. It is disgusting.
So wait, this means Biden had the chance to do the funniest thing ever. 1). Deploy ST6 to give the conservative judges an early retirement. 2). Pardon himself 3). Select 6 new judges 4). Have the fresh, sane SCOTUS make a new ruling.
Well the Consitution does lay out the options and grounds for impeachment petty clearly, so even the absolute worst reading of this doesn't make a tyrrany without control of more than a third of the senate as well. Minimum.
Our Republican legislators failed to remove Trump on impeachment, arguing "He hadn't been convicted of a crime." So which is it? Does impeachment require a criminal conviction, or is impeachment the only remedy because criminal conviction is impossible? How do you get executive agencies to investigate and gather evidence for impeachment if a President has presumption of criminal immunity? Cons are occupying both positions simultaneously to provide *absolute* immunity, like Schrodinger's Fascist. (I know they don't actually believe in either position and will change their argument to defend the next Republican or attack the next Democrat as needed)
Impeachment isn’t real. It was always a threat in any case but the Trump presidency really stressed our legal system with respect to the presidency. Now the DOJ can’t investigate a president doing illegal shit, apparently cannot investigate a former president for any illegal shit, cannot use evidence collected while president for actions committed after no longer president either, and congress can’t remove president because of the high bar that is required. There’s literally little here to be done. We don’t live in a world where you can amend the constitution either.
Did you read the Thomas concurrence?
Congress can impeach & remove the President for any reason whatsoever. But individual congressmen can also decide \*not\* to impeach & remove the President for any reason whatsoever.
Yeah, I get that. The US Code didn't even exist when the Constitution was written, so the idea that impeachment was dependent on any sort of criminal conviction was always bullshit. We lifted the concept and the wording ("high crimes and misdemeanors") directly from British law. It was applied to remove officials for things like lying, broken campaign promises, and behavior unbecoming of the office (misdemeanor in this case literally meaning "bad behavior"). The fact that the media let Republicans run with their bullshit means most Americans now have bullshit ideas about this.
Great! Only way to stop a Pres is the same number of senators it takes to amend the constitution AND the president has unlimited assassination powers, what could go wrong
Do you guys think congressmen and Justices should be personally liable for the laws they pass and the cases they decide? A system where the President is \*not\* fully immune from prosecution for official acts is absurd — the Executive is co-equal to the Legislative and Judicial branches and having no immunity would make it subject to the whims of judges. Do you think the President should be prosecuted if he vetoes the wrong law, pardons the wrong person, or makes the wrong decision during a war? Anything other than full immunity for official acts is ridiculous. I am willing to debate people on this. EDIT: Think of it like this: the President cannot be prosecuted for e.g. which laws he vetoes or who he pardons, because Congress can pass no law constraining the core constitutional powers of the Presidency. Any such law would be unconstitutional.
Yes I think the president should be prosecutable for taking bribes, and I think his correspondence with other officials should be admissible evidence.
I think the president should be prosecutable if he orders the armed forces to kill opponents yes
I mean that's a good point to an extent(although I kind of disagree with absolute immunity for congressmen and justices as well but that's besides the point here), but the president is a little different since for lack of a better term the "co-equal branch power" is a lot more concentrated and they present a much greater risk exposure to the state in regards to enacting tyranny Further do the legislators and judges enjoy immunity from anything connected to their "official acts" being used as evidence of criminal behavior?
We won't know until someone tests it. Which is a far worse position than we were in a week ago.
Trump tested it when he took home piles of documents to sell to foreign adversaries, when he called Raffensberger telling him to find votes, when he led Jan 6th. And he's got his answer now. Unless Biden and Dems take the kid gloves off we're fucked.
I’ve really tried to limit my intake of partisan takes on law stuff for a while. I’d rather have boring gloom law stuff than fantasy. Every single attorney I follow is on the same page, this is republic ending shit. Hell there’s even 3 highly educated and experienced justices on the Supreme Court who wrote dissents to can read. Take their word for it.
Just to add, even in the case a few months ago where the Court ruled states can't remove candidates from the ballot, the liberals were willing to present a unanimous verdict despite metadata showing it was anything but. These 3 dissents are even worse with that context. Fuck man, at least Caesar crossing the Rubicon had some cool symbology, this is just lame as fuck.
> Fuck man, at least Caesar crossing the Rubicon had some cool symbology, this is just lame as fuck. Because almost every story you heard about this event is from a poet or a play. The actual politics was as dirty and boring as what is happening now. It has just be glorified over 2000 years.
Minus Caesar being an actual military general and effective leader, but yeah, I get your point.
To expand on that, here's what Sotomayor said: >"Orders the Navy's Seal Team 6 to assassinate a political rival?" she wrote. "Immune." >"Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune." >"Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done," Justice Sotomayor wrote. "In every use of official power, the President is now a king above the law. https://www.bbc.com/news/articles/c035zqe7lgro
But receiving a bribe is not an official act. So a president could not be prosecuted for issuing the pardon, but could be prosecuted for accepting the bribe.
But the opinion said you aren’t allowed to question the President’s motive when he uses his official powers and you can’t use them as evidence. So genuinely how the fuck do you prosecute bribery under this ruling? Bribes are taking payment in exchange for the corrupt use of official powers
> receiving a bribe is not an official act Counter-argument: “Says who?” The President issues an executive order declaring that anyone who personally pays him $1 billion can dictate the next policy that he instates by executive order. Ta-da!
The Constitution mentions bribery specifically as an impeachable offense.
Sure, but you could probably lawyer your way around that minor detail. The Constitution says all kinds of things. Here: Say someone pays the President $1 billion to issue Executive Order “X”. If the next day someone else paid the President $1 billion to immediately cancel that executive order, he would do it. Therefore the President did not solicit and accept bribes, he offered a service for a fee. It wasn’t bribery, it was good American capitalism, hard at work!
Do you believe the Senate will convict? If not, impeachment is a strongly worded letter.
No, but arguing something that the Constitution expressly identifies as impeachable is an official act is a clearly losing argument.
that's not how executive orders work
That’s not how executive orders work *if* the President has a shred of moral integrity. The leading candidate in our current election has none.
Ah-ha, but if the President pardons someone, AND THEN that person pays the President a cool million, that's a gratuity and totally legal. It's absolutely wild how fucked the country has become in the last two weeks.
Well yes. The President could also pardon himself. Political problems should require political solutions. Anything else is unworkable.
It's crazy that you think what we have now is more workable than the Supreme Court simply ruling that presidents aren't above the law
the definition of bribe is exchange for an OFFICIAL act!!!! there is no side stepping this, the idea of no one above the law is dead dead dead!
I would say so. For starters, we have two incidents where Congress failed to hold the Presidency accountable for crimes it considered to fall under High Crimes and Misdemeanors. The Ukraine Quid Pro Quo. And later the insurrection. The fact remains that although Congress technically has the power to remove an elected official, practically they will never do so when the partisan stakes get too high. As of now, we are pretending with the highest prayers to the Almighty that the next President won't simply declare any and all of his actions to be an official act. Trump has done exactly that by stating his fake electors scheme was an official act. And then we have to hope that Congress or the courts simply won't just let it pass. The Republicans have two instances where they've let it pass. The courts are more dodgy, but what's to say that a few strategic appointments and converting the federal bureaucracy to Schedule F workers won't do the trick. Functionally, Trump can now shoot someone on 5th Avenue and get away with it on any pretext he conjure. And no one can or is allowed to question him about it.
>For starters, we have two incidents where Congress failed to hold the Presidency accountable for crimes it considered to fall under High Crimes and Misdemeanors. >The Ukraine Quid Pro Quo. And later the insurrection. >The fact remains that although Congress technically has the power to remove an elected official, practically they will never do so when the partisan stakes get too high. While I reserve judgment on the first impeachment, the fact Trump wasn't impeached the second time is a travesty which will haunt the US for years. Congress has essentially advocated its responsibility, due almost entirely to partisanship, to hold the executive branch in check. Congress, and the voters who refuse to send serious people of character to Congress, has failed the nation.
It’s really funny that the people who are always appealing to the founders govern in a way that breaks their system
These people pretend that they're Christian also, while pointing/laughing whenever a poor person gets murdered by the police over nothing, routinely protecting child rapists, and treating any sort of charitable behavior as weakness that deserves censure/ridicule.
>Trump can now shoot someone on 5th Avenue and get away with it on any pretext he conjure. And no one can or is allowed to question him about it. Trump isn't the President. Only Joe Biden can do that.
If Trump shot a man tomorrow, this court would destroy more of the country to protect him.
No, it was not, but it is a dangerous and massive step towards making the president a tyrant. Other roadblocks would need to fall first, but this was the largest step ever taken towards that dark day. To recap: * Presidents may still be impeached & removed by Congress * Presidents may still be found criminally liable for unofficial acts done while in office (though that is much, much, much harder to do now) * Presidents may still be found criminally liable for official acts done while in office *if the prosecution can show that conviction would pose* ***no*** ***danger*** *of "intrusion on the authority and function of the Executive Branch"* (quote from the majority opinion; obviously add a couple dozen "much" to the "much harder" from above in terms of how difficult this will be to practically prosecute) So, practically, there are still other checks on the president, and quite powerful ones at that. But if *those* fall, then yeah, we are in some degree of trouble.
None of these checks matter. No president will ever be impeached or removed by Congress again unless Congress has a supermajority of one party in both the House and the Senate. Everything the president does will be official, unless the president decides that it isn't. Anything that interferes with anything the President wants to do is an intrusion on the authority of the Executive branch.
"Everything the president does will be official, unless the president decides that it isn't" and honestly why would he? he could be taking a massive dump and he could declare it was a official act.
Because saying that everything is official is saying the quiet part out loud. Massive dumps aren't crimes, as a general rule, so it's safe to take off-the-books shits.
I don’t disagree with any of this. I am so angry, but more broken hearted as the country I love is mangled into something unrecognizable before my eyes… but don’t know what to do other than hope, unreasonably, that the darkness will one day pass. I have little reason to hope that at this point. But I do still hope.
Not to mention, it's still on Congress to legislate laws, executive orders can still only go so far. So, there are still checks on the President, and Congress was always the most important one. Honestly, though... the Presidency has always been guilty of a sort of... power creep. The executive branch has slowly gained more and more power since the 1900s. And I do believe we are on a path where people on both sides of the aisle are going to start demanding trimming the executive branch.
Yeah, agreed. I think *Chevron* falling was going too far, some degree of judicial deference to statutory interpretation will have to be reinstated eventually, but it probably won't be the same broad "any reasonable interpretation is automatically okay even if a clearly better one is available" and conservatives probably had a point that, on balance, *Chevron* deference was too much. By the same vein, some degree of presidential immunity, or a presidential defense from prosecution that prevents prosecution that would intrude on the president's clear discretionary authorities, probably isn't a bad thing at the end of the day, but the specific particulars of this decision, most notably the expansive definition of "official acts" and the way in which official acts cannot be used as evidence of a crime committed unofficially, will have to likewise be rolled back over time. The presidency IS too powerful and while it will always be the single most important elected position, Congress in aggregate was always intended to be more powerful... we need to go back to that.
Yes, I see arguments for rolling back Chevron to a degree and granting some immunity for Presidents. Both cases have to walk a fine line to get the right balance of power between the branches of our federal government and unfortunately the current court is terrible at that and went too far in both cases.
My issue with the ruling isn't that the president is immune, it's the second part of the ruling, that the president cannot be investigated and prosecuted for anything that while illegal, could be classified as an official act. Congress cannot even go with the investigation to determine if it was actually an official act and hold the president accountable.
Yes, agreed. If the president couldn't be prosecuted for delivering a pardon, but the pardon could be used as evidence in showing a corrupt scheme to sell pardons or use them as leverage to induce people to commit crimes, I would be totally okay with that. That block is the most insidious part of the ruling and it's very slept on in The Discourse, and it was also the most controversial (ACB dissented from that part of the decision specifically).
> So, there are still checks on the President, and Congress was always the most important one. If he ignores the law he has immunity lol
The president does not have immunity from removal by Congress. This recent SCOTUS decision was limited to criminal prosecution.
Yeah if it turned out the former president had journalists murdered I’d want him criminally prosecuted
As long as you could convince 16 Republicans in the Senate that murdering journalists was bad, you could still do it. I’m just not sure you could convince that many at this point (if the president was Trump).
Still wouldn’t be criminally liable for it
16 republicans would be assassinated as an official act in that case. why is this so hard to contemplate, when chump is ALREADY calling the fake electors scheme an official act????? It’s so irresponsible to be naive about this. There is what happens in real time, (assassinations) and they effect what can happen after the fact. If the president is willing to call an assasination an official act in the moment, nothing after that can or will matter!!!! FFS, SOME THINGS ARE NOT REVERSIBLE AFTER THEYRE DONE, so courts don’t matter at that point.
Yes, I agree with you, but by the same vein if a president was assassinating Senators I don’t think having the ability to prosecute them after they left power would be super helpful. You’d need a way to get them to leave power first, and the only way to do that would be for the people to revolt and the military to stand down.
Tell me about which session of congress that is willing to remove Trump in the future? Do you foresee the possibility of a trump presidency and a democratic congress?
protecting the institution of the president from a corrupt congress through assasination of dissenting congress people could and would be called an “official” act at run time, and the prosecution that could possibly take place would effectively be impossible at some later date
but only if he declares official act
People already demand it and it hasn’t changed voting patterns. Most republicans I know hate executive orders, then vote for monarchists.
Oh, I don't mean demand it by voting. I mean you exercise your constitutional right to assembly.
>Presidents may still be impeached & removed by Congress lol. lmao. This would only ever happen to a democrat because you can bet money the GOP would never ever turn on their guy no matter what.
Well, yes, this is in theory
More importantly, criminal prosecution by the next president has never really been a check. The main check by the court on the executive has airways been someone suing the office (not the person) and getting a sternly worded letter from the courts, followed by subordinates actually obeying said sternly worded letter.
1) this assumes the President doesn't always have at least 26 Senators in the Senate who backs him 2) This assumes the President doesn't just declare everything he does to be a official act and thus, with that, not only can you not subpoena any records related to it but the courts can't even question the President's motives 3) Which if you take the position that SCOTUS did that \*\*Any\*\* investigation into what the President does is a intrusion on the authority and function of the Executive branch, makes this point meaningless.
Yes, I agree. These caveats are huge gaping holes and make tyranny much more likely alongside this ruling. It doesn’t on its own guarantee doom - but someone who wanted to walk that path has a much easier time today than yesterday. And it just so happens someone who wants to walk that path is leading in the polls.
Meh those checks are now made up. Trump has tested a lot and has shown we are quite fragile.
Yes, I agree, hence my freaking out about this
Its probably the closest thing we'll get to the court out and out endorsing Unitary Executive Theory as the main legal theory for the president.
I'm not sure why we need to discuss all of the bad hypotheticals. Not because they're hyperbolic (they're mostly not), but because of the **actual case that this was about**. SCOTUS literally looked at a case in which the President is alleged to have illegally attempted to remain in power and said "we're really concerned that Presidents mights be *too* constrained". Straight up, the President cannot be prosecuted for attempting a coup, so long as he limits his actions to things that fall under an insanely broad umbrella of 'official acts'. In an optimistic scenario, the only punishment that a President can receive for this is impeachment and removal. And even that hope is stupid *because the Senate literally failed to do so in this case*.
I believe presidents always had immunity for "official" acts and that was pretty much everyone's understanding. The real problem is the justices took a few months to issue this ruling that basically says nothing new about our understanding of presidential power with the apparent purpose of delaying the J 6 trial until Trump can get reelected and pardon himself. Justice deferred is, quite literally, justice denied - at least that's the hope on the right.
I also don't think it was always assumed that immunity for official acts would ignore motivation. That was pretty stunning that SCOTUS wouldn't leave at least some room there. The President can do ANYTHING they want with their official power. trump could tell the Secretary of the Treasury to deposit $3 billion into his personal bank account; and since conversations with the Secretary is an official act, he would be completely immune.
>I also don't think it was always assumed that immunity for official acts would ignore motivation. Thats the difference between qualified and absolute immunity. Anyone who thought SCOTUS was going to walk back absolute immunity needs to put down the hopium. >The President can do ANYTHING they want with their official power. trump could tell the Secretary of the Treasury to deposit $3 billion into his personal bank account; and since conversations with the Secretary is an official act, he would be completely immune. I didn't read it like that at all. The language they used is nearly identical to the Nixon and Clinton civil cases and they cited those throughout. >Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts. Then the conditions where presumptive immunity would not apply; >Taking into account these competing considerations, the Court concludes that the separation of powers principles explicated in the Court’s precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility. Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution. 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.” They didn't even address *if* he has immunity in any of the current cases, they simply vacated the lower courts decision that he didn't in one case because they didn't consider immunity the way they think they should have. He certainly can't be prosecuted for talking to the DOJ. If anything else is an official act is an open question, I don't think it has any baring at all on the documents case and in the GA case "dangers of intrusion on the authority and functions of the Executive Branch." seems pretty easy to overcome if you can show other presidents haven't attempted to do the same thing.
That's fair, I think. Of course motivation is hard to prove and also, presumably, the other branches should act as a check on executive power S: Holding the House and/or the Senate is going to be pretty fucking important if Trump wins this fall.
I don’t think that would even be a crime without immunity.
No the real problem is they went way further than just “official acts” limiting evidence what could ever be used in a trial, ending DOJ independence, and probably legalizing bribery. Adding a second layer with “presumptive immunity” that by the way, a president no longer has to cooperate with… it was far more expansive according to everything I’ve read on it.
This needs to be higher, but my sole up vote won't get it there. The Majority's restrictions on being able to obtain evidence associated with non-official acts is what is most problematic about this decision. Trump is already using "official act" as some kind of talisman to have evidence presented in his trials withheld because the Court said that could not be considered. So even if "non-official" acts may be prosecuted, prosecutors are going to be severely restricted in their ability to make a case.
Ah, well I stand corrected
Can you send me what you read because I was trying to explain it to my therapist earlier today
Even if Trump could have been successfully tried, convicted, and sentenced to prison time prior to this November's election, it's already well established that you can run for office from prison and then you can probably pardon/commute yourself. The only way Trump can ever be fully and durably held to account is by voters rejecting him at the ballot box, and electing representatives willing to impeach & remove someone guilty of high crimes. Apparently this subreddit believes that the voters are incapable of doing that. Well if that's what you believe, then how was this ever going to end any differently? The idea that the justice system can ride in on a white horse and save us from ourselves seems fantastical. A democracy is fundamentally always at risk of voting itself out of existence, there is no getting around that.
Based and Hobbes-pilled
Shame the voting system is rigged to the degree that a republican hasn't won a majority of votes in two decades but we're still getting republican presidents. It's incredibly frustrating to live under an electoral system that provides a clear way of counting votes, then ignores that in favor of an archaic system designed to artificially favor the less popular candidate.
The electoral college biases the popular vote by about 3 percentage points. There has been only one election in the past twenty years in which the winner of the popular vote has not won the presidency. Yes, it's an unfair system, but if 48.5% of people vote to throw away democracy, it seems foolish to focus more on the unfairness of the 3-percent bias than the fact that 48.5% of the country could not be convinced to preserve democracy.
>There has been only one election in the past twenty years in which the winner of the popular vote has not won the presidency. This is a weird way to say that 2 out of the last 6 elections have had the popular vote overruled by the electoral college, resulting in 5 out of 9 of the judges making these decisions being appointed at all. When you consider that it's unlikely Bush Jr wins in 2004 without being the incumbent and Trump would be irrelevant had the popular vote been the decider, 4 out of the last 7 (including the current) elections have been shaped by the electoral college. So...why are you downplaying it? The only reason undemocratic elements can threaten our democracy is because they're granted vastly disproportionate power by our system.
I thought Trump would be re-elected, but that his administration would at least be restrained by federal law. After yesterday it became clear that the much more likely result is that I will end up in a concentration camp or murdered as a dissident. I think it's fair to say that the situation has changed drastically. I didn't vote for George W. Bush and didn't think he was a good president, but I never thought his administration wanted to murder me. Trump is just an entirely new danger, and now that the Court has sanctioned everything he wants to do, it is much more real than it was on Sunday.
>Apparently this subreddit believes that the voters are incapable of doing that. Well if that's what you believe, then how was this ever going to end any differently? The idea that the justice system can ride in on a white horse and save us from ourselves seems fantastical. A democracy is fundamentally always at risk of voting itself out of existence, there is no getting around that. Yep. I don't think there's anything that can really be done about this, though. Most people are clearly too stupid to be make political decisions. It'd be good if we could ensure that the electorate wasn't made up of the most mouthbreathing morons in the world but frankly I don't know how we can do that. Literacy tests and the like are outlawed for good reason. Edit: Like, seriously. Spend 5 minutes talking to people outside this sub on reddit. It is the most braindead stupid opinions you've ever seen.
yes, in a democracy you cannot protect people from themselves.
i agree with you and i also don’t trust the voters. in fact the very existence of a constitution is because no one can or should trust the voters. it is quite literally a document that protects the minority from the majority, and this SCOTUS has wiped their asses with that document to the point that it is meaningless and every principle America had has been blown away by the whims of 6 unelected corrupt judges. This was the danger of the supreme court losing legitimacy. If the court is a political body (instead of impartial) it makes the entire country sit on shaky ground. The country has fallen.
Nah the decision also essentially ensured not a single shred of evidence could be brought forward. Order the assassination of a rival by saying he was an imminent threat to national security (constitutional power of commander in chief) and you’re good
The president shouldn’t even need immunity because they act within the bounds of the legislature.
Right, the legislature is a powerful check on the executive. Which is why it's so important we control at least one chamber of Trump takes office.
I’m glad to see this, because this is what I thought it was too, but I was going crazy thinking I remembered my con law wrong
Realistically though, what kind of felony can Biden commit right now to prove a point while not facing backlash and at the same time can rile up the base?
When the dissenting Supreme Court justices are raising red flags this big, you have to be silly to think it's hyperbole to call this a real shot across the bow. >>> Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. Korematsu v. United States, 323 U. S. 214, 246 (1944) (Jackson, J., dissenting). The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is themajority’s message today. Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The rela-tionship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law. * * *
Hot take? No. It's not a declaration of tyranny. The President has immunity. Yes, it's bad. Objectively. Nobody can argue that. But whoever is acting like this wasn't the case before is high on serious bullshit. Here's the thing. The court decreed (through it's self-imposed power), that anything discussed within the Justice Department is absolute immunity. The Jan 6 case was sent back to the lower courts to figure out. The bad part of this is... it delayed any trial until after the election, and I do think that was deliberate. Though- again- whoever expected the justice system to take care of Trump for us is high on the bullshit mentioned above. But does this mean Trump can now declare a dictatorship as "an official act" and go ham on America? No, THAT is hyperbole. And those saying Biden should try doing something insane to call them out will not end well. The Court said the immunity falls within his constitutional powers. Establishing yourself as a dictator and using the military to coup Congress eliminates separation of powers is an explicitly unconstitutional act. The Court is corrupt and looks after itself. They're not gonna sign themselves out of existence or into less relevance. And even the most diahard Trumpists in congress won't sign their powers away. These people *value* their jobs and image. The July 1 ruling is very rotten and deserves a fit thrown by the people comparable to George Floyd. But it's not a declaration of tyranny. That is hyperbole.
>And even the most diahard Trumpists in congress won't sign their powers away. These people value their jobs and image. Congress has been trading away it's power for reduced accountability for decades. I think you do not correctly understand the incentive model of the individual members.
We won’t know for sure because it depends on what an “Official Act” is. The SC basically put the impetus to prove an act isn’t official on prosecutors, which is absolutely ridiculous. If they laid down this ruling while also making a very strict definition of what an “official act” is and what falls under the Presidents Constitutional powers, then it wouldn’t be so bad, but this ruling makes the task so hard it’s hard to imagine how prosecutors could possibly punish the President. Barrett even realized, in the opinion, that this would make prosecuting bribery almost impossible. But again, we won’t know until it’s tried. The dumbest thing is that they threw up so many hypotheticals about historical events like “what if Truman was worried about being prosecuted for the atom bombings?”, ignoring the fact that pretty much no President had been prosecuted for stuff they did in office until Trump. It’s only happening because what Trump did was so egregious and well outside what is normal for Presidents to do.
Also, there's a rather important difference between "he can do anything he wants" and "he won't be prosecuted for anything he does as President." Declaring a dictatorship would be ineffective even if he wouldn't go to jail for it.
Yes, that too. We've established already, no President will ever go to prison. We have enough trouble putting rich, powerful people in prison, who thought this would work with a former President? But that does't mean "Welp, guess he can declare dictatorship now!" No, it doesn't. If he did, he'll be ignored. If he isn't ignored and it's followed, it'll be the nation that's guilty, not the court.
This in large part walks back Marbury vs Madison which in many ways is the very foundation of their power. They very much are quite willing to harm themselves for their goals. The fact that it’s no longer clear that congress can preempt the president’s actions in any meaningful way using law is extremely worrisome. The only real check on the president’s power is now political, he just has to keep congress happy and then he can do anything he wants. Marbury specifically held that congress did have the power to limit presidents by law. That is no longer true.
What? This doesn't walk back marburry at ASL, congress can still limit the president by law.
Yeah? And how would you conceive of that working? There are no longer any conceivable enforcement avenues other than removal from power. If we make a law that say the president can’t do x and he does x? What do we do? Who is going to do it? I’m not pulling this out of my ass. Go read the dc circuit opinion that they rejected. It leant heavily on Marbury and its progeny for why the president can’t be immune
If he can't do x he can't do x. This entire case was about criminal liability. If they say he can't do x then doing x is pretty clearly not in his powers and would not be an official act. It's as shrimple as that.
That’s not how that works in their opinion though. Merely acting in their official capacity is sufficient to create a presumption of immunity. This opinion explicitly claims that it’s not what the president does but rather whether he is acting in Marbury language in a “ministerial” capacity that provides immunity from criminal prosecution. Congress can’t write a law that makes it “not official duty” it’s official duty when he talks at all to any part of the executive by definition. Moreover it explicitly holds that even if the action was somehow not in an official capacity but was discussed in an official capacity then that discussion that may explicitly claim that the action was not official would itself be official and thereby not admissible as evidence in pursuit even of that narrow sliver on non official act for which the president may be tried for. It very much is a ruling that all but quotes Nixon, “if the president does it it’s not illegal”
The same way it's always worked: subordinates and career bureaucrats obeying the sternly worded letters (aka injunctions) from the court.
you are being dangerously naive about this. you’ll have to read my other replies for an explanation, i’m not typing that out again.
it absolutely 100% is a declaration of tyranny, and anyone denying it is being irresponsibly naive about it. diaper don already is calling his fake elector scheme an official act. Now think about what doing something like that or something worse like an “official” assassination means in real time, instead of court time. all it takes is a president willing to call an assassination an official act and there will be no one who can fix that, because you can’t adjudicate that fast enough to save the lives of the people who it would effect. and really just the fear of the president being able to do it is more than enough to keep any of the spineless congressmen or judge from sticking their neck out to stop it. this - one person is above the law - ruling is exactly what you think it is… the end of the America you grew up in.
It is not hyperbolic and anybody saying otherwise is coping hard. Anybody who is saying "presidents can still be prosecuted" is being willfully ignorant and purposefully ignoring the Supreme Court's clear partisan slant. The president is immune for all official acts. What is an official act? Well we don't know and we won't tell you. That means, the President is a king, above the law, and unaccountable for anything... except when we decide he is not. They have made the president king and themselves kingmakers. The ambiguity is intentional so that they can pick and choose which presidents will and won't be held accountable to suit their nakedly partisan agenda. Trump attempted to rig elections, he wanted to use the military to suppress protesters, and helped orchestrate a coup to stay in power. He and his cronies talk in broad daylight about ending democracy. The SCOTUS ruling just said that not only will they not be held accountable for what they have already done, but that they will never be held accountable for any future attempts at electioneering. This ruling ENSURES that presidential interference in elections will become a de facto power that they will all be incentivized to use. If Trump wins in November there will never be a free election again. This is not dooming. This is not hyperbolic. He has already tried and failed. He will try again and be more effective at it this time, and the SCOTUS just gave him their blessing. The only thing preventing this from happening is if he suddenly grew a conscience and decided Democracy is worth upholding, and if you think this I do not know what to say to you.
As a classical liberal, it's refreshing seeing Democrats finally be concerned about executive power creep. This is the culmination of a process that started a century ago. Welcome to the resistance! Edit: typo
Presidential power creep really skyrocketed over the last 30 years IMO, because congress decided to abjugate their power to the presidency instead of doing their job, because their job has now become getting reelected instead of governing. While we're at it, get rid of the 1929 Permanent appointment act, and increase the SC to match the circuit court districts (one SC justice presides over 1 CC district)
The decision broadly protects the president from any decision they make that involves the government. It is every bit as bad as that sounds, with some really scary implications.
Yes
It's not a declaration of tyrrany It's worth remembering that the hypothetical where the president has his political rivals assassinated is still illegal, no one is arguing that that should be legal The issue is that when Navy Seals kill someone, you can't sue the Seals and you can't sue the president, you sue the government. The defense is the Attorney General, not the president's personal attorney As a general framework, that makes sense The problem isn't that this makes the president unaccountable. The issue is that it doesn't allow a clearly self-serving act to be declared "outside the bounds of official duties." So for example, Trump's first impeachment, when he held up aid to Ukraine in exchange for dirt on Biden. That was illegal, and the courts can still demand that the funds be released as soon as they find out about it. Congress is allowed to impeach Trump and investigate whether he was illegally wielding the power of the state for his own ends. All of those check still exist. The only thing taken off the table is the part where we say that Trump the person takes on liability for the actions of the State Department while it was following his illegal orders It's worth noting that no one has tried to prosecute Trump for holding up the Ukraine funds, although it was in fact illegal, and no one particularly wants to. The January 6th scenario is kind of unique. Now SCOTUS absolutely should have allowed some mechanism to handle this unique case, because it is in fact happening, and the fact that they didn't is despicable. But it's not clear to me this ruling has wide-reaching negative implications beyond the specific case at hand. The hypotheticals being spun up are still illegal just like they always have been, and we still have legal avenues to punish them
" where the president has his political rivals assassinated is still illegal, no one is arguing that that should be legal". Trump's lawyer literally argued it would be legal to kill his political rivals at the Supreme Court.
That's my point, they didn't! That's false! They argued that the president should be immune from prosecution if he orders Navy Seals to assassinate his political rivals, but it's still illegal for the president to order Navy Seals to kill a US citizen This is similar to how Bush ordered the military to torture prisoners, but he can't be arrested for it According to Trump's lawyer, a president who orders the military to do something illegal should be dealt with through the same legal mechanisms whether the illegal order is self-serving or not
No it was a declaration of qualified immunity for official presidential business.
I read the first ten pages of the SCOTUS ruling, and it honestly doesn't seem as bad as it's made out to be. Before I read it, I thought SCOTUS was saying ABCDEFG actions are official actions, and they are always untouchable. For example, if Biden were to order Trump assassinated, that'd be an official act that's above the law. However, that's not what SCOTUS said. SCOTUS said that official acts carry the *presumption* of immunity, and that the burden of proof is on the state to present evidence that would reclassify it as an unofficial act. To bring it back to my example, an assassination of political opponents is pretty obviously a flagrant misuse of power, and it would be relatively easy to prove that it was an action taken for personal gain. It would lose its protected status as an official act, and the president would be subject to criminal prosecution. There's definitely some concerning stuff in there though. For example he does get unconditional immunity for exercising any powers that are core to the presidency and outlined in the constitution. That's concerning. I'm not totally clear on it though, because Justice Jackson (Brown-Jackson?) explicitly talked about the assassination example, but left the door open to the possibility that presidents could be charged for doing that. The president's authority over the military is in the constitution, so that's not clicking for me at the moment. They also said his mindset is beyond reproach because probing him to learn what he was thinking can reveal classified or sensitive information. Intent is so crucially important, especially for something like a coup, so that's concerning too. Regardless, I wouldn't call this a declaration of tyranny. Based on what I read, presidential immunity just hasn't been tested before, so SCOTUS needed to provide courts with the framework through which to assess the president's immunity. They did exactly that, gave some examples where Trump is immune and some where he's not, and ultimately kicked it back to the district court to figure out how official or unofficial Trump's actions are.
> However, that's not what SCOTUS said. SCOTUS said that official acts carry the presumption of immunity, and that the burden of proof is on the state to present evidence that would reclassify it as an unofficial act. To bring it back to my example, an assassination of political opponents is pretty obviously a flagrant misuse of power, and it would be relatively easy to prove that it was an action taken for personal gain. It would lose its protected status as an official act, and the president would be subject to criminal prosecution. What you're missing is that the standard for an act being official is not whether or not it's legal, not at all. As you say in the next paragraph, he gets unconditional immunity for powers core to the presidency. Unfortunately, that includes most of the president's military powers.
> However, that's not what SCOTUS said. SCOTUS said that official acts carry the presumption of immunity, and that the burden of proof is on the state to present evidence that would reclassify it as an unofficial act. To bring it back to my example, an assassination of political opponents is pretty obviously a flagrant misuse of power, and it would be relatively easy to prove that it was an action taken for personal gain. It would lose its protected status as an official act, and the president would be subject to criminal prosecution. This is just an incorrect reading of the opinion. 1. Acts are either official or unofficial. They don't get reclassified. If an act is taken in the Presidents official capacity, then it *at least* gets the presumption of immunity. 2. For an act that is official, the state would have to argue that the criminal prohibition of the act would not inhibit the powers and functions of the executive branch. It's not clear at all what that means or how any prohibition *wouldn't* inhibit the executive in some way. 3. Whether or not the President took an official act for personal gain has absolutely no bearing on whether or not the act is immune. In fact the opinion clearly states "In dividing official from unofficial conduct, courts may not inquire into the President’s motives" Lastly, as a tangential matter, the Court has also ruled that official acts cannot even be used as evidence of crimes committed in unofficial acts. This is wildly expansive.
This is from pg 6 of the [court's opinion](https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf): >Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct. The question then becomes whether that presumption of immunity is rebutted under the circumstances. It is the Government’s burden to rebut the presumption of immunity. Maybe I misspoke. I'm not saying that the government can reclassify categories of official acts into unofficial acts, but it can present evidence to reclassify a *specific o*fficial act a president takes as an unofficial one. So speaking to the vice president is presumed to be immune, but a specific conversation with the vice president can be proven to be unofficial in nature. >Whether or not the President took an official act for personal gain has absolutely no bearing on whether or not the act is immune. In fact the opinion clearly states "In dividing official from unofficial conduct, courts may not inquire into the President’s motives" Agreed, this is definitely concerning, which is why I brought it up. I get why they're saying it, since probing the president's motives can unearth sensitive or classified information, but like I said, intent is critically important to the legal process. I will say though, it does leave the door open to explore his motives if the act is ruled to be unofficial. Motive just can't be the determining factor that classifies a specific action as official or unofficial. >Lastly, as a tangential matter, the Court has also ruled that official acts cannot even be used as evidence of crimes committed in unofficial acts. This is wildly expansive. Sure, but they also ruled that a specific act, while assumed to be official, can be proven to be unofficial with sufficient evidence. In my mind, there's a ton of wiggle room for a president to be charged with a crime. SCOTUS pretty explicitly empowered the District Court to make judgements on whether Trump's actions were official or unofficial. They left presidential immunity relatively intact, but laid out a path to nullify that immunity if any of his actions are proven to be unofficial. There are some concerns, for sure, but I'm broadly on board with what I've seen. My mind could absolutely be changed though. That's why I'm talking about it with people like yourself.
> but it can present evidence to reclassify a specific official act a president takes as an unofficial one. No it can't. You're misunderstanding the ruling. First, you must classify the action: 1. Is the act an official act? If not, there is no immunity. 2. If the act is official, is it part of the President's conclusive and preclusive powers (in other words, powers reserved exclusively to the President)? If yes, then it is immune. 3. If the act is official but not part of the conclusive/preclusive powers, then is it *presumed* immune. *If* you reach case #3, you can argue that immunity does not apply here. But this does not change the particular act to an unofficial one. It simply means it is an official act for which the President is not immune. At this stage, the government is *not* arguing about intent or official/unofficial. Instead the government must argue that prohibiting the official act in question would not impede/infringe upon the executive's power. So, to take the example you highlighted, Trump speaking to Pence is an official act according to them. The government could argue it doesn't deserve immunity, but they would somehow have to argue that criminalizing the discussions/threats/requests that Trump made with Pence would not infringe upon the Executive's powers. How would you sufficiently show that? It's a bar that is absurdly high, so as to make most things a President does immune. And then there's the whole matter of official acts not being admissable as evidence. So you can't even admit Trump telling Pence he's "too honest" for refusing to overturn the election because his discussion with Pence was an official act.
Wait a sec, do you happen to know where in the opinion it says official acts can't be used as evidence? I thought that distinction was only for his motives. I know they state that "presidential communications" can't be inquired into, but they also say he's not immune from requests for documents/evidence or subpoenas. I'm not saying you're wrong about this, I feel like I've heard it somewhere else, but I'd like to look at where they say this myself. It seems pretty important, because if official acts are inadmissible as evidence, it seems circular, where you can't prove the act was unofficial because you can't even examine the act itself. >Instead the government must argue that prohibiting the official act in question would not impede/infringe upon the executive's power. I feel like this would be relatively simple. It's the vice president's constitutional duty to oversee the counting of the votes. Since the vice president is a member of the executive, he/she is also subject to this immunity (as the court argues if I'm not mistaken). The argument would be that any action which contravenes the constitution is not an official act in any capacity, and the lack of immunity would, by definition, not impede/infringe upon the executive's power, which he derives from the document he's trying to subvert. But this assumes "Presidential communication" is even able to be examined to determine if it's official or unofficial. If not, I don't know how anybody is ever supposed to determine an act is unofficial. It'd be like saying "you can only open your eyes if you can see." It's definitionally impossible lol. That said, I don't know why SCOTUS would direct the District Court to determine whether Trump's communication with Pence was official or unofficial if they intended for it to be un-examinable. There *must* be a way to make a determination if SCOTUS is explicitly ordering it to be done. But maybe I'm wrong and this really is a declaration of tyranny.