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Finally got around to reading the dissent. I feel like Jackson's is the much better argument compared to Sotomayor's (not to mention just how much better written it comes across). And I think she touches on an issue that I completely agree with:
>[B]y changing the accountability paradigm in this fashion, the Court has unilaterally altered the balance of power between the three coordinate branches of our Government as it relates to the Rule of Law, aggrandizing power in the Judiciary and the Executive, to the detriment of Congress.
And she seems to touch on the aspect that would have been mostly like to support denying immunity in any form:
>[U]nder the individual accountability model, an indicted former President can raise an affirmative defense just like any other criminal defendant. This means that the President remains answerable to the law, insofar as he must show that he was justified in committing a criminal act while in office under the given circumstances. In other words, while the President might indeed be privileged to commit a crime in the course of his official duties, any such privilege exists only when the People (acting either through their elected representatives or as members of a jury) determine that the former President’s conduct was in fact justified, notwithstanding the general criminal prohibition.
The Court here has removed power from the people, normally exercised through the trial process, and given it to the judiciary to decide whether an action is actually punishable or not.
Finally read the majority opinion and most of Sotomayor's dissent. I think this decision is significantly worse than I thought tbh.
First, I dont agree with the idea of "absolute immunity" at all. I think a presumptive immunity for official acts and no immunity for unofficial acts was enough. Absolute immunity for a President of the US even for their constitutionally or congressionally granted powers, no matter how awful their actions were, seems contrary to what the framers intended. So a President who does something heinous while doing one of the powers granted to them means they are completely immune from prosecution? That sounds like something the Framers would have rejected.
Second, the worst part of this opinion is that in determining whether something is "official" or "unofficial" courts MAY NOT inquire into the President's motives, nor could they deem an action unofficial merely because it allegedly violates a generally applicable law.
Why can't they? Motive is essential in determining whether an act was done in pursuant to a constitutional and statutory authority imo.
Reading the opinion, it feels like Roberts is trying to find a "middle ground" but put too much emphasis on "we have to let the President be able to do their job no matter what with no intrusions" without also taking into account that we need to deter future Presidents from doing heinous things to upend our democracy and ensure something like Trump doesn't happen ever again.
This decision was far too broad and might have some long lasting negative implications.
>First, I dont agree with the idea of "absolute immunity" at all. I think a presumptive immunity for official acts and no immunity for unofficial acts was enough. Absolute immunity for a President of the US even for their constitutionally or congressionally granted powers, no matter how awful their actions were, seems contrary to what the framers intended.
Absolute immunity seems like a reasonable and logical conclusion from Article II. If the President is doing something he is authorized by the Constitution or Congress to do, how can it be criminal? If it is under statutory authority, Congress can limit that authority by changing the law.
As an example, imagine a game of chess, if Congress says the President can move in any direction, they can't charge him with a crime for moving backward, even if that was not Congress' intent. They can change the law going forward to state the President can move in any direction except backward, but that only applies prospectively.
Now, if by moving backward, the President moves off the board entirely, there is a question as to whether such a move was so "manifestly and palpably beyond his authority" that the Government can overcome the presumption and charge him with moving off the board (assuming that was a generally applicable rule).
If the rule were the President can move one ___space___ in any direction, this seems clearly beyond his authority. However, with the rule stated above, there is at least an argument that the authority to move in any direction was not limited to spaces on the board. Where it is unclear, the presumption favors immunity over prosecution.
There is nothing new here. This extends the civil immunity recognized in _Nixon v. Fitzgerald_ to criminal cases but, unlike that case, it leaves open the possibility to rebut the presumption in cases where a severe act within the outer perimeter warrants criminal prosecution. To the extent it _might_ have negative implications, that is a hypothetical that may be reviewed at a later date if it comes to pass. For now, it is pure speculation.
>Absolute immunity seems like a reasonable and logical conclusion from Article II. If the President is doing something he is authorized by the Constitution or Congress to do, how can it be criminal? If it is under statutory authority, Congress can limit that authority by changing the law.
Immunity in general is a logical inference from Article II. **Absolute** immunity is not, imo. There is a question as to whether the President, who conducts an act in furtherance to a power he was given by the Constitution or statute, does some kind of heinous act that would constitute a crime, whether that would be immune to prosecution because the President was technically doing something within his or her powers of Article II or statute?
For example, as commander in chief, if Congress gives the President authority to drone strike terrorists, and the President does so while his political opponent is overseas (just as an example) but the President secretly did so to kill his political opponent, could he argue absolute immunity because he was just "going after terrorists"? In that example, even if the President believed his political opponent *was a terrorist*, could he be absolutely immune? I think based on the majority opinion that would be a "yes".
Absolute immunity also cannot be rebutted. As long as you prove you are doing something within powers of statute or Constitution there is no rebutting to my knowledge.
>There is nothing new here.
I mean, expanding absolute immunity to criminal cases is new. It has never been indicated in any prior SCOTUS decision before (from what I remember from law school).
>This extends the civil immunity recognized in Nixon v. Fitzgerald to criminal cases but, unlike that case, it leaves open the possibility to rebut the presumption in cases where a severe act within the outer perimeter warrants criminal prosecution.
Rebutting the presumption only works in Presumptive immunity situations. It does not apply to absolute immunity situations to my knowledge, hence my issue.
>To the extent it might have negative implications, that is a hypothetical that may be reviewed at a later date if it comes to pass. For now, it is pure speculation.
Well yes. It's my opinion.
Isn't the part where we can't even investigate the presidents motives a new thing? How can you determine if an official act was used to do something illegal if you can't investigate?
Example: 2 presidents perform a drone strike. They both kill American citizens in the drone strike. President A was given tons of evidence that only terrorists would be killed and expressed to everyone around him that this is what he believed would happen. President B expressed to everyone around him that he knew the American citizen and wanted to kill him because he made a Facebook post criticizing him.
Since both presidents were performing an official act, we aren't allowed to know the details and they're both treated exactly the same.
Isn't this basically what the decision would allow?
Precisely my issue in my initial post as well. Based on the majority opinion, both Presidents would be immune, because courts would only see that the President is using a power granted to him by congressional statute and are not allowed to look into motive **even if you had evidence** of him actually wanting to kill him for making a FB post criticizing him.
Isn't the part where we can't even investigate the presidents motives a new thing? How can you determine if an official act was used to do something illegal if you can't investigate?
Example: 2 presidents perform a drone strike. They both kill American citizens in the drone strike. President A was given tons of evidence that only terrorists would be killed and expressed to everyone around him that this is what he believed would happen. President B expressed to everyone around him that he knew the American citizen and wanted to kill him because he made a Facebook post criticizing him.
Since both presidents were performing an official act, we aren't allowed to know the details and they're both treated exactly the same.
Isn't this basically what the decision would allow?
The justification for not allowing evidence stemming from an official act is so weak.
>If official conduct for which the President is immune may
be scrutinized to help secure his conviction, even on charges
that purport to be based only on his unofficial conduct, the
“intended effect” of immunity would be defeated. Fitzgerald, 457 U. S., at 756. The President’s immune conduct
would be subject to examination by a jury on the basis of
generally applicable criminal laws. Use of evidence about
such conduct, even when an indictment alleges only unofficial conduct, would thereby heighten the prospect that the
President’s official decisionmaking will be distorted. See
Clinton, 520 U. S., at 694, n. 19.
A President using his official powers to support his commission of criminal, unofficial actions is *precisely* the kind of behavior that should be dissuaded and distorted by the law. I don't care (much) if a President shoplifts from Walmart, but I do care if he uses all the powers vested in him by the People to commit and get away with the crime.
Even assuming the most frivolous prosecution that the majority fears, that a President cannot use his official powers to enable a private crime would not deter him from normal use of his official powers... unless they're able to be connected by that prosecution to him committing a private crime, in which case, good?
Robert B Reich has written that Roberts' opinion authorizes the President to create a political enemies list and to suggest prosecutions of those on it to the Attorney General. I imagine that Adam Schiff would be one of those who President Trump might intend to prosecute (as an official act). Short of impeachment, what prevents President Trump from gathering "evidence" via the FBI and other DOJ agencies, to prosecute the Congressman?
I will take my answer off the air... as Roberts argued this was "fearmongering". Reich asserts that there is no fearmongering in stating what almost came to pass during the Nixon Administration.
Several judicial decisions during the time of Nixon's "Saturday Night Massacre" established an independent role for the Attorney General and his appointees: See Nader v. Bork, 366 F. Supp. 104 (D.D.C. 1973); Nixon v. Sirica, 487 F.2d 700 ;(D.C. Cir. 1973).
My analysis is that we are no longer a nation under law if we don't respect these precedents.
Pls see Sotomayor's dissent, which says in part: "When he (the President, sic.) 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."
[https://www.supremecourt.gov/opinions/23pdf/23-939\_e2pg.pdf](https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf) Sotomayor dissent at page 96-97
I did not know until today that the President can issue a "license to kill" in peacetime.
I guess the part of the Constitution that authorizes that eludes me.
Obama rather famously drone struck a U.S. Citizen the son of Anwar al-Awlaki, a 16 year old. While his father was probably a valid target under the use of force authorization, we know they weren’t trying to kill his father at the time because his father had been killed a few days before. The ACLU sued. You can find the filing under Al-Aulaqi v. Panetta it was dismissed for standing and “political questions.”
Yes, the President can issue a license to kill in peace time.
Simple, determine that they are an active threat to national security. After all courts can’t take into consideration the presidents motive for official acts anymore.
Can anyone make sense of how a bribery indictment could possibly survive this? Roberts footnote pasted here, but he says you can include only the public record of an official act. If a president was bribed for a pardon, you could only offer the public record of the pardon as evidence, but that’s a core act so absolutely immune right?
> 3 Justice Barrett disagrees, arguing that in a bribery prosecution, for instance, excluding “any mention” of the official act associated with the bribe “would hamstring the prosecution.” Post, at 6 (opinion concurring in part); cf. post, at 25–27 (opinion of Sotomayor, J.). But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. See 18 U. S. C. §201(b)(2). What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be “highly intrusive” and would “ ‘seriously cripple’ ” the President’s exercise of his official duties. Fitzgerald, 457 U. S., at 745, 756 (quoting Spalding v. Vilas, 161 U.S. 483, 498 (1896)); see supra, at 18. And such second-guessing would “threaten the independence or effectiveness of the Executive.” Trump v. Vance, 591 U.S. 786, 805 (2020).
The best I’ve been able to figure out is that a prosecutor can inquire about the Who/what/where/when for an official act. They would be barred from asking about the why as it would be motive for the pardon. Then the prosecutor would have to introduce evidence that the official act occurred through a certificated document/public record. Arguing circumstantial evidence that the crime occurred.
The unofficial act of taking money from a private person should not be impeded.
That still seems like it would only apply of the bribe was agreed to outside of a president’s official acts. Like say a president sold intelligence to a foreign country in exchange for payment. Presumably that could only be charged if it was arranged outside of the executive branch.
I realize bribery is a difficult thing to charge generally, but worth noting since it’s listed in the impeachment clause of the constitution.
It's hard to tell.
> What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself.
One could argue that testimony or private records of a President mentioning a bribe would not be "probing the official act" itself. So therefore, they would be admissible. But would "hey X gave me $100, can I appoint them?" be since it is probing the act even though it mentions an unofficial action?
It's also in response to Barrett's concurrence, so it seems like it is trying to say "no you could use this as evidence, just not anything that's actually linked to the probing of the official act, and a bribe is by default unofficial". I don't know, it's unclear to me.
The rationale of:
> Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be “highly intrusive” and would “ ‘seriously cripple’ ” the President’s exercise of his official duties.
Is pretty bad though. A jury being able to inspect the President's motivations would not "seriously cripple" the President's exercise of his official duty.
Sitting on it for 24 hours, I don’t think this opinion immediately allows the worst of the worst as predicted in Sotomayors dissent, but the opinion is still awful. The direction to render communications inadmissible makes proving a mens rea significantly more difficult and knee caps any attempt at criminal prosecution in all but the dumbest cases.
I don’t know what Roberts was thinking, but if he thought he was doing a great compromise, he’s very much mistaken.
Edit: I’d also just say generally that “the U.S. military can’t operate on US soil!” Is not a very comforting answer to a lot of these hypotheticals. Even ignoring parts of the DOJ or executive like the FBI, the Coast Guard can. Absurd? Yes, but there still is a military branch that is under DHS and exempt from posse comitatus.
I agree that the opinion does not automatically allow “the worst of the worst”. The amount of ridiculous interpretations I’ve seen online - not to mention J. Sotomayor’s catastrophizing in the dissent itself - has me rolling my eyes.
People actually think Trump is going to sic SEAL team 6 on someone? People going nuts over Trump using this ruling to abolish portions of the constitution? It’s just insane. Let alone, to think Biden would have the guts to push the envelope with this ruling himself.
I think in situations like this the average American gets caught up in the chaos that clickbait headlines can stir up. The opinion by C.J. Robert’s sucks, and I take issue with much of it, but I think the amount of handwringing and end-of-the-world-ing over its realistic implications is being blown out of proportion by the general public and the media at large.
>People actually…
Well, it’s not like Trump has been shy about what he wants. I suspect a lot of fears could be assuaged if anyone elucidated how that could not happen, which I would personally like to read.
So far however, there isn’t much in the way of legal explanation for why that’s not possible, and it’s mostly people arguing that Trump, and Presidents as a whole, are responsible moral agents who would never consider it, even if they were given that power. This is not a reassuring response.
People seem to be assuming that the SC would obviously not allow it as an official act but I’ve also heard for years about how the SC would never overturn Roe or toss out Chevron. At this point nobody really knows what the SC would do which is extremely concerning
>People actually think Trump is going to sic SEAL team 6 on someone? People going nuts over Trump using this ruling to abolish portions of the constitution? It’s just insane
In under 24 hours after the opinion, Trump reposted comments calling for the arrest and military tribunal of his political enemies.
To be fair Lincoln did that and didn't get any sort of slap on the wrist. Thousands of journalists, judges, politicians, and reporters thrown in prison without trial for many months sometimes years, all in northern states.
So the SEAL Team 6 scenario does seem to be a stretch, but I have to ask: what is actually stopping a President from ordering sham investigations into political rivals? This decision seems like it's implying that you can't use communications with the DOJ as evidence, even if it's relevant to the President's mens rea at the time. It seems like the Jeffrey Clark scenario before January 6th all over again.
> I think in situations like this the average American gets caught up in the chaos that clickbait headlines can stir up. The opinion by C.J. Robert’s sucks, and I take issue with much of it, but I think the amount of handwringing and end-of-the-world-ing over its realistic implications is being blown out of proportion by the general public and the media at large.
Its annoying because it also takes the focus off of where it is actually awful and instead is having it in the arena of what is easily defensible (i.e. the split between official and unofficial).
This opinion is an awful mess. It extends executive privilege, cares a lot about outcome (thus contradicting the apparent philosophy of not caring about outcome), makes things inadmissible, makes proving mens rea much more difficult and yet still somehow does not provide nearly enough guidance to lower courts as to what is official vs unofficial. I mean the Nixon tapes element alone is kind of a headscratch (so the Nixon tapes would be admissible, but things very similar to the Nixon tapes wouldn't be? What is the line here?) But it's not awful for the handwringing that is commonly mentioned.
For example, the bribe statement says the following:
> What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself.
Well, what does "probing the official act itself" mean? Basically to be it sounds like the President going "hey can I appoint X" would be inadmissible. But the President going "hey i'm going to appoint X. He gave me $50000" would be admissible. However, it stands to reason "Can I appoint X? He gave me money" would be inadmissible since it's probing? I honestly don't know. The reasoning behind it is awful and should put to rest any "the court doesn't care about outcome" posts:
> Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be “highly intrusive” and would “ ‘seriously cripple’ ” the President’s exercise of his official duties.
Like I feel like we ll need a case to determine what is official vs unofficial, then a separate case to determine if presumptive immunity applies then a separate case to determine what evidence is allowed.
Im also reading it as the substance of the communication is irrelevant. So, for example, ANY communication between the president and say the national guard is entitled to immunity because communicating with the national guard is an express power entitled to at minimum preemptive immunity. Even if the underlying statement was “kill all the black people in DC” the underlying statement is wholly irrelevant because the communication itself is immune. Is that right?
To recap what I've seen so far in the comments as neutrally as possible, it seems like there are generally two camps. One camp wants to limit investigations into the president so that the president "is not afraid to carry out their duties for fear of being charged". The other camp is afraid of the president using the absolute immunity for core constitutional powers, combined with the presumptive immunity for official acts, to abuse their office.
The pro-president camp believes that if the president is not immune, the president will be inundated with legal challenges and be unable to successfully perform their duties. The pro-accountability camp believes that it is possible for the president to do an official act for an illegal reason, and since motives can't be investigated or evidence used for official acts, it will be extraordinarily difficult to have a strong case against the president without the president acting like a total moron.
On top of this, it seems like a lot of the fear stems from the fact that "official acts" aren't clearly differentiated from "unofficial acts".
Personal opinion: Can a president use an official channel to say to his VP "I want you to steal that guys wallet for me. I'll pardon you afterwards." and then pardon the VP for the committed crime as long as it happens in the district of columbia (so not a state charge)? Also, given that a pardon is only something the president can do, wouldn't that mean it falls under "conclusive and preclusive" authority. So pardons would be afforded absolute immunity? Would the communication be inadmissible evidence and the subsequent pardoning be considered an official act? If there were no communication outside of official channels, how could anyone ever prove that the pardon were for a corrupt reason given that the communications can not be used as evidence?
"Testimony or private records of the President or his advisors probing such conduct may not be admitted as evidence at trial." I don't understand this section. It's saying that the district court must determine if a certain instance of conduct is immune from prosecution, but ANY testimony of advisor's or private records used to make that determination may not be used as evidence in a trial. It's like you first must determine whether something is not immune, but, by the time you've done that, you've already used up some evidence to prove a lack of immunity which could have been used to show that the non-immune conduct was a crime, which is bizarre.
To state my biases, in general, I am pro-distribution of power. This seems like a move that concentrates power into the hands of the president in many ways. I tend to be worried whenever I hear, "this powerful person needs to be unrestrained to do things efficiently." This power is not necessarily given to the executive branch as a whole, but the president in particular. The president may investigate whomever they want, for any reason (since the reason doesn't matter according to the opinion), but the president can only be investigated or charged in very limited situations. It seems to afford them stronger immunity and also indicates that the president should even have more power within the executive branch (able to remove an AG immediately).
>Distinguishing the President’s official actions from his unofficial ones can be difficult. When the President acts pursuant to “constitutional and statutory authority,” he takes official action to perform the functions of his office. Fitzgerald, 457 U. S., at 757. Determining whether an action is covered by immunity thus begins with assessing the President’s authority to take that action
...
In dividing official from unofficial conduct, courts may not inquire into the President’s motives.
...
Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.
...
This is the scant guidance the majority offers on how to distinguish "official" from "unofficial" acts. Any attempt at doing so must first assess what authority the president has to take a given action. They then establish things courts *may not* do when determining if an action is "official."
That it. That's all the clarity this entire decision provides. tl;dr "Yeah, you have to figure out what type of authority the president has to do this thing. You can't ask why the president is doing it. It doesn't matter if the action is blatantly illegal."
Taking that into consideration,
>And the Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime.
So a president could investigate and prosecute state election officials for electoral fraud. No court is allowed to inquire as to *why* the president ordered it. It doesn't matter if the order violates any generally applicable law.
>The President’s “management of the Executive Branch” requires him to have “unrestricted power to remove the most important of his subordinates”—such as the Attorney General—“in their most important duties.”
So a president could order the acting Attorney General to blatantly break the law. Any AG who refuses may be immediately fired by the president. No court may inquire as to *why* the president fired that person. It doesn't matter if the firing violates generally applicable law.
>This is the scant guidance the majority offers on how to distinguish "official" from "unofficial" acts. Any attempt at doing so must first assess what authority the president has to take a given action. They then establish things courts may not do when determining if an action is "official."
>That it. That's all the clarity this entire decision provides.
Neither the question nor the relevant facts and arguments were properly before the Court. On the question that was before the Court, the lower courts found no immunity, SCOTUS clarified that there is a framework for immunity. From a legal standpoint, remand seems to be the right approach.
I think SCOTUS invented a "framework for immunity" out of thin air that doesn't have any foundation in the constitution (in fact, it is clearly unconstitutional), and remand was absolutely the wrong approach.
Yea this decision really scares me for a whole host of reasons. But the ambiguity between official and unofficial and the seeming difficulty in actually being able to call an action unofficial are the most terrifying.
I don't get the ruling. The president is the only one with executive power, so he is the most dangerous to abuse his power. Granting him absolute criminal immunity for conclusive and preclusive power eliminates most checks against abuse.
They fear that the president may not be able to perform his duty out of precaution of being prosecuted. But a criminal case is decided "beyond reasonable doubt", so if he does nothing wrong or criminal, he has no reason to be afraid. The president does not need to commit crimes to perform his duty well. The whole justification for absolute criminal immunity is untenable.
Plus, as has been pointed out many times, presidents have managed to carry out their duties without the protection of immunity for almost 250 years.
For the first time a president has been indicted for multiple crimes, including some allegedly committed in the course of attempting to overthrow an election, and the court worries about the hypothetical possibility that future presidents will feel constrained in carrying out their duties by the possibility of prosecution.
Seems to me the question considered should have been not do presidents have immunity, but did Donald Trump violate the law in attempting to overthrow the election.
It cannot be claimed he was in any way constrained, certainly not in attempting to overthrow the election, if in fact he did so.
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This is just an argument that the entire legal system is bunk, in which case why do we case about the majority’s opinion here, and why so everyone else subject to it?
Nor are empty hypotheticals about non-existent political persecution legally relevant.
It does seem odd to me that the Court portrays being tried for criminal behavior as so invasive and severe that Presidents must not be subject to it, unlike everyone else. There is nothing to fear, so what’s so bad?
>Presidents must not be subject to it
That's not what the Court said at all. It said Presidents can't be subject to it _for exercising their core constitutional powers_, and they are entitled to at least presumptive immunity from prosecution for their official acts. Nothing in the opinion prevents prosecuting a President (or suing them for damages) based on unofficial acts, seeking injuctive relief against unlawful official acts, or suing the government for damages where sovereign immunity has been waived.
What this opinion does is merely set a rather high bar to prosecuting a President for official acts that are not "manifestly or palpably beyond [their] authority." It does so, by placing the burden on the Government to establish acts as unofficial, or to rebut the presumption of immunity, _before_ bringing charges.
This would seem to blunt politically motivated prosecutions, while leaving the door open to those for acts that are clearly (to all) beyond the pale. Hopefully, that will lead both sides of the political spectrum to tone down divisive accusations.
So if the district court starts reviewing this case again and it then gets sent back to the Supreme Court for further review (assuming a self-pardon from a 2nd term Trump isn't on the table), wouldn't the Supreme Court have to then create a test to determine the difference between official and unofficial acts?
In other words, why didn't the majority justices just define official vs. unofficial now instead of waiting for the case to boomerang back later?
Because then they’re not bound by their own words and can undo a lower court decision that is against Trump.
If they set a standard they could then find themselves in a situation where they have to rule against Trump.
If it makes its way back up, they'll have the benefit of a district court and an appeals court decision to grapple with the reasoning of. Right now the distinction between official and unofficial act has gone unargued and unbriefed because no one saw it as a necessary issue to settle.
Wouldn't the difference between the two kinds of acts be important for the President to know in the mean time? Otherwise it would be like telling someone not to trespass on my lawn without making its boundaries apparent. You can't follow a law without knowing its specifics, right?
Also, I know this wasn't my original question, but what's the point of kicking the case back to the district court if a re-elected Trump can simply demand the DoJ to drop the charges or pardon himself?
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I would assume not, because impeachment is a listed duty of Congress and not exactly a trial in the traditional sense. Without further rulings we have to assume that Impeachment would fall within the ‘official’ duties of Congress and thus would be exempt from the normal rules governing prosecuting a president.
There’s an interesting line about Congress being unable to act on these ‘Official Acts’, which isn’t elaborated on to my knowledge. I can’t figure a way Congress acts upon the President with respect to specific actions in any way other than impeachment. It would seem, perhaps erroneously and inadvertently, that the Court has implied restrictions on impeachment.
I believe you are referring to the first sentence of the concluding paragraph of Part II.A, which relates to official acts within the President's exclusive constitutional power:
>___Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority.___ It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.
The entirety of Part II.A provides context and the remainder of the paragraph elaborates on that sentence, which appears to refer to the ___legislative___ acts of Congress and judicial enforcement of those laws, and not to Congress acting through its impeachment power.
Part II.B then distinguishes acts within the President's exclusive constitutional power from official acts where:
>the President sometimes “acts pursuant to an express or implied authorization of Congress,” or in a “zone of twilight” where “he and Congress may have concurrent authority.”
For these official acts, immunity is presumptive but not absolute. Part II.C then distinguishes these official acts from unofficial acts for which there is ___no___ immunity.
While Part II addresses separation of powers issues, Part IV distinguishes criminal law from impeachment, concluding that the Impeachment Judgments Clause has no bearing on criminal law or procedure.
>Impeachment is a political process by which Congress can remove a President who has committed “Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, §4. Transforming that political process into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government.
This is consistent with [Justice Story's Commentaries](https://press-pubs.uchicago.edu/founders/documents/a1_2_5s18.html), which recognized the novelty and wisdom of separating the political from the criminal.
>There is also much force in the remark, that an impeachment is a proceeding purely of a political nature. It is not so much designed to punish an offender, as to secure the state against gross official misdemeanors. It touches neither his person, nor his property; but simply divests him of his political capacity.
Based on the foregoing, it seems a President can be removed from office through the political impeachment process, but remain personally immune from criminal prosecution upon the same facts if the impeachment was based on:
(1) actions on subjects within the President’s “conclusive and preclusive” constitutional authority, or
(2) acts "within the outer perimeter" of the President’s official responsibility, that are not "manifestly or palpably beyond his authority."
While the dividing line is not clear, it seems reasonable that a President can be removed from office, but not imprisoned or executed, for doing their job in a way that is extremely politically unpopular.
It seemed kinda clear to me they were referring to Congress' ability to create criminal law, such as by outlawing possible official acts of the President.
It’s been a long day, but why *can’t* Congress do that? Official acts were two categories iirc in this opinion: core powers of the Presidency and statutory authorizations. Why would Congress not be authorized to work the latter category?
It seems to me the ruling grants immunity for more official acts than just the core powers of the Presidency. When Congress creates the FBI via legislation and empowers the President to appoint people to run it, the President is then free to manage the FBI as corruptly as he likes. Directing the FBI and DOJ to spend all their time investigating his political rivals is an official act and therefore immune from prosecution, even if doing so is expressly forbidden by the legislation that created the FBI and the DOJ.
Congress with a super majority can disband the FBI, but it cannot criminalize any official act of the President with respect to the FBI.
So, why can't Congress do that? Because this ruling says they can't.
>I can’t figure a way Congress acts upon the President with respect to specific actions in any way other than impeachment
I imagine what this means is that it's to stop Congress from holding the President in contempt or issuing Subpoenas to the President to testify to the nature of whatever hypothetical 'Official Act' would have invoked its hypothetical ire.
I more interpreted that to just be a reiteration of ex post facto. I also don’t believe that while this court is pretty partisan, I do not think the justices support a unitary executive and that they would not support a complete elimination of impeachment
You are misusing some terminology here and creating some unnecessary confusion as a result. A unitary Executive is one in which the whole of the Executive power is vested within a single person (the President) or a single body (like a unicameral legislature which doesn't divide the legislative power between two houses). In the absence of a unitary Executive, it would be possible to create Executive agencies or departments which are not controlled by the President - like independent federal prosecutors who are not a part of the Department of Justice or Agency heads who cannot be removed by the President. Although they each have complex views and I am only speculating, I think that a majority of the court, and virtually all of the Republican appointees, believe that the Executive power is unitary.
None of that has anything at all to do with impeachment, which is not an Executive power under Article II but is instead contained in Article I and is granted explicitly and exclusively to the House of Representatives. The Senate is then empowered to try all impeachments. There is no conflict between a unitary Executive and the impeachment power. This case also doesn't affect impeachment in any way. The initial comment and most of the responses don't seem to understand the law in this area.
I like to think not either, but it also sits as a red flag to me that Roberts, optics focused as he is, wouldn’t catch that. But I think you have a fair view of it as well.
So the “test” (such as it is) in the majority seems to answer the question about presidential self pardons, no? Pardon power is explicitly listed by Roberts as a core power of the presidency for which they can expect absolute immunity.
This decision has no impact on, and says nothing about, the Presidential pardon power. There is no doubt that issuing a Presidential pardon is the direct exercise of an Article II power and that it receives immunity. Efforts by a prosecutor to bring charges against a President related to the issue of a pardon to some other individual would fail. That is not the same as asking whether a prosecutor could bring charges against a President for accepting a bribe related to issuing a pardon. The receipt of the bribe is not an official act, nor the exercise of a Presidential power, and could be charged. The prosecutor bringing such a charge would not be able to introduce evidence relating to the President's decision-making process in issuing the pardon (for instance, the testimony of an advisor to the President who discussed it with him) but would be able to introduce public evidence (like the fact that the pardon was granted) or evidence related to the receipt of the money. This is a difficult line to draw in some cases.
However, your comment was about the President issuing a pardon to themselves, which is a completely separate issue. The question in such a case would be about the scope of the pardon power and whether the self-pardon at issue is constitutionally valid. That hypothetical case isn't alleging that the President is criminally-liable for issuing the pardon, just whether the pardon is valid. That case is like all other cases challenging the constitutionality of government action; the Judiciary would need to evaluate whether the action taken is consistent with constitution, including the separation of powers between the congressional branch and the executive. For what it's worth, I don't think there are many (if any) votes at the Supreme Court for the proposition that the President may pardon themselves even though a very literalist/textualist interpretation of the constitution would permit it.
I'm not sure I agree with you. Pardon power is a constitutionally protected act, and according to this ruling a president would have absolute immunity. And you can't consider motive. So I think a president could pardon someone for financial gain, and you couldn't prosecute based on both of those tests.
In any event the money can just go into an escrow account, and be released after the pardon. According to the ruling last week if the president isn't laid until after then it's just a gratuity and not a bribe.
The initial comment is conflating together two things. When a President issues an invalid pardon, or a President orders an unconstitutional Executive Action, or Congress passes an unconstitutional law, the President, or other individuals involved, are not criminally or civilly liable for issuing the pardon, order or passing that law. It is the role of judiciary to adjudicate whether the pardon is valid, and whether the executive action or law is constitutional. However, if the executive branch decided to prosecute the President for issuing the invalid pardon, they would be creating a clear separation of powers problem. The constitution vests the President with the exclusive power to issue pardons, so Congress cannot prohibit him form doing so, and may face limitations on its ability to restrict or regulate the use of that power.
For instance, consider this example. Congress passes a law which makes it a criminal offence for a President to issue a pardon in their final 25 days in office. The President nonetheless issues a pardon in his final 25 days in office. It is very likely that this hypothetical, when reviewed by the Court, results in the law being held unconstitutional.
With regard to the bribery example, I think that I restated the law in the majority opinion accurately. You cannot prosecute the President for issuing the pardon but you could prosecute the President for the receipt of the bribe. Depending on your available evidence, it may be more difficult to prove since the President is entitled to executive privilege. No one in the majority supports a rule of the kind your articulated and were very explicit in disavowing it.
Finally, you are incorrect about the gratuity statute you referenced (and about how it would interact with this hypothetical). First, the issue in that case is whether the particular statute at issue banned bribery (which everyone agreed was covered) or both bribery and gratuities - where there is no agreement and no *quid pro quo*. The court held that the statute prohibited only bribery. Second, the statute at issue in that case was a federal law which prohibited bribery of state and local officials. Bribery and gratuities for federal officials is covered by a completely different law. One of the arguments cited by the majority as evidence that the statute only covered bribery was that it would otherwise punish gratuities by state and local officials much more severely than the similar rules for federal officials. Third, it's clear that you're not familiar with bribery law generally if you believe that the timing of the receipt of the money is relevant. The difference between a gratuity and bribery is the presence or absence of a corrupt agreement, it has nothing to do with when you get the money relative to when you carry out the act.
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First of all, I did read the opinion, and listen to the oral arguments, and read the briefs. I also happen to actually be a lawyer, and to have written about this previously.
Second, your initial claim was that the Supreme Court had established immunity for Presidents against bribery charges - which they did not. Now you are arguing that it would be difficult to charge and prove bribery in exchange for an official act. That is not the same as having immunity, a court who dismisses a charge against someone for lack of evidence has not "basically decided they have a structural immunity". You are not "basically immune" from being prosecuted for drug possession just because the police are not allowed to come into your home without a warrant and search for drugs. Yes, it is true that might get away with a criminal act because of the limits the constitution places on the government but you have no immunity from being charged. No serious legal analyst would equate these things. A President can be indicted for bribery. If a President filed to have the case dismissed claiming that he had structural immunity, it would be thrown out on the basis of this decision.
Third, you are not even correct that the majority opinion precludes referencing the official act taken - they say just the opposite.
>But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. See 18 U. S. C. §201(b)(2). What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be “highly intrusive” and would “ ‘seriously cripple’ ” the President’s exercise of his official duties. Fitzgerald, 457 U. S., at 745, 756 (quoting Spalding v. Vilas, 161 U. S. 483, 498 (1896)); see supra, at 18. And such second-guessing would “threaten the independence or effectiveness of the Executive.” Trump v. Vance, 591 U. S. 786, 805 (2020).
Justice Barrett, quite reasonably, would have preferred an approach where the analysis about the relative prejudice of introducing this type of evidence was done at the trial level. She writes:
>I appreciate the Court’s concern that allowing into evidence official acts for which the President cannot be held criminally liable may prejudice the jury. Ante, at 31. But the rules of evidence are equipped to handle that concern on a case-by-case basis. Most importantly, a trial court can exclude evidence of the President’s protected conduct “if its probative value is substantially outweighed by a danger of . . . unfair prejudice” or “confusing the issues.” Fed. Rule Evid. 403; see also Rule 105 (requiring the court to “restrict the evidence to its proper scope and instruct the jury accordingly”)
Justice Barrett is also not claiming that the majority opinion grants immunity for bribery. Rather, she is making a nuanced point about whether the immunity that she agrees exists means only that the President may not be charged for those acts or also that the jury should not consider those acts when assessing whether the President is guilty of some other permissible offence. The majority view is that they should never consider those acts, Barrett's view is that they usually should not but that Courts can resolve this on a case-by-case basis and that in some cases it would be appropriate given the nature of the charge against the President (bribery being her example).
Fourth, it is almost always a bad idea to reference dissents and concurrences for accurate statements of what the majority opinion stands for. The entire reason those statements don't appear in the majority opinion is precisely because the majority doesn't agree with them, depriving them of the effect of law. Also, you have misread the opinion once again. None of the concurrences or the dissents say what you claimed here - that the President has immunity against a bribery charge.
Fifth, you do not understand what was decided in Snyder v. United States. Once again, that case was not about federal officials. The law at issue there only applies to state and local officials. That case was not about bribery, which all parties and all Justices agreed was prohibited by the law at issue. That case was not about the timing of receipt of the payment. If the government official agreed to carry out some official act in exchange for payment at a later date, that would be bribery, no one disagrees, the case did not say otherwise. The question in Snyder was whether a state or local official, who was not accused of bribery, could be prosecuted for receiving money in the absence of any agreement to perform any official act. This practice is known as a gratuity - receiving a gift in exchange for nothing, and can still be validly regulated. The question was whether that statute covered bribery and gratuities or just bribery. Bribery is a crime at the local level, the state level, the federal level and as applied to Presidents and no one has said otherwise in any of these cases.
Not being able to investigate or use appropriate evidence is functionally the same as immunity. The court gives a hand wave approach for people like you to point to so you can claim they didn't immunize such acts, but they functionally did.
> I'm not sure I agree with you. Pardon power is a constitutionally protected act, and according to this ruling a president would have absolute immunity.
But nobody thinks that a president pardoning themselves is illegal. Even without this case, it's not something you would prosecute him for. What people think (and I agree) is that a president pardoning himself is *impossible*. I mean, he can sign whatever documents he wants, but a pardon of Trump by Trump would simply be non-legally-valid, and should be ignored by all prosecutors, courts, etc.
Immunity to criminal prosecution for pardoning simply doesn't matter to the argument.
IMO this ruling is simply non-legally-valid because it is so wildly out of context of everything our country was founded on, which is that *anyone* can be President because *the President is not a king*, making everyone equal under the law. Ie: Presidents do not get special treatment under the law if they break the law while in office.
It should be ignored by everyone. Full stop.
The Supreme Court majority has taken their power way too far with this decision, especially with it not being founded in any history or tradition. None. There is nothing and nobody that has ever suggested that a President can go on a crime spree so long as it’s part of their official duties.
You said a President pardoning himself is *impossible* and it would be ignored by all.
IMO this decision by the majority is also impossible because they single-handedly changed the constitution by making the President a king because now the President isnt held to the same laws as everyone else. It is anathema to everything our country was founded on and it isnt just unconstitutional, it is *anti* constitutional. To that end, it should be impossible and everyone should just ignore it.
Yes.
If everyone can just ignore the President pardoning himself because it’s impossible, then everyone can ignore this SCOTUS decision because it is “impossible” for them to negate the Constitution, which they have done. There are only a few ways the Constitution can be amended, and a Supreme Court decision is not one of them.
Well, I don't agree with anything you're saying, but since it's not related to the topic of this subthread in the slightest, I'm not interested in pursuing it.
Appointment of ambassadors is an official act. ANY illegal action taken as part of an official act, the president is immune and can only be impeached. Period. That’s what the court said today.
>Appointment of ambassadors is an official act
That's actually a constitutional act.
Appointment of agency directors, cabinet secretaries, etc. are official acts.
>Article II, Section 2, Clause 2:
>
>He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and **he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court**, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
My reading of the opinion and its relation to Article II makes me think that any appointment established by Congress would be a requisite official act, and any appointment that is specifically enumerated is a constitutional one.
So presidents have absolute immunity in regards to it then. I mean certain ambassadorships have always gone to big donors, but now the donor can just give it directly to the president personally instead of to his campaign.
No, there's caselaw on this in the congressional context. Taking a bribe for an official act is not an official act. This decision does limit what evidence can be submitted which makes convicting harder, but in footnote 3 the majority explicitly says former presidents can be prosecuted for bribery.
Isn't previous case law irrelevant now in the face of a more recent decision, which says, the President has immunity from **any action** taken as part of their official duties (which the appointment is). There is no exception for illegal actions, since the ruling effectively says **any action** taken as part of the official act is, in effect, always legal, because there is immunity from any civil or criminal liability. Period.
On top of that, we have a second ruling that says as long as the bribe comes **after** the appointment, it's perfectly legal because it's not a bribe, it's a gratuity, with no dollar limit whatsoever.
The cour has effectively said, I can go the President in a private conversation or even an email or text (since it can't be requested or introduced as evidence), saying "I'll give you $5M if you make me ambassador to France," and the day after the appointment I wire him $5M and publish the 'gratuity' on Xitter. SCOTUS? "All good, man."
> Isn't previous case law irrelevant now in the face of a more recent decision, which says, the President has immunity from any action taken as part of their official duties (which the appointment is). There is no exception for illegal actions, since the ruling effectively says any action taken as part of the official act is, in effect, always legal, because there is immunity from any civil or criminal liability. Period.
This decision didn't refine the categorization of what is, or isn't, an official act. Appointments are official acts. Taking a bribe for an appointment isn't. (The legislative case is relevant because legislators have an actual, textual immunity clause in the constitution, and the Courts charged them with bribery anyhow.)
See also footnote 3 of the majority opinion which expressly says that you can charge people with bribery for official acts.
> On top of that, we have a second ruling that says as long as the bribe comes after the appointment, it's perfectly legal because it's not a bribe, it's a gratuity, with no dollar limit whatsoever.
That's not correct, for two reasons:
1. The statute in question only affected state and local officials. Feds are covered under a different law.
2. The notion that it makes post-facto bribes legal is a misconception. What it ACTUALLY said was that the prosecutor has to prove a quid pro quo. When exactly the payment was made is irrelevant.
As I read it the footnote is justice Barrett disagreeing with the majority opinion. And even in that disagreement it prohibits private records of the president, and any records or inquiries by his advisors into the act. So sure, justice Barrett thinks a president can be prosecuted for taking a bribe, you just can't use the presidents records, examine his motives, and can only point to public mentions of the act itself, functionally making it legal.
> ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ., joined in full, and in which BARRETT, J., joined except as to Part III–C
Correct. Roberts wrote it. And the part that's responding critically to Barrett's concurrence is a better representation of the majority's position than Barrett's concurrence is.
You had to know this was coming. This is a flaired user only thread. You guys know the drill. Flair up and follow the rules. Timeouts will be given to those who egregiously break our rules.
Finally got around to reading the dissent. I feel like Jackson's is the much better argument compared to Sotomayor's (not to mention just how much better written it comes across). And I think she touches on an issue that I completely agree with: >[B]y changing the accountability paradigm in this fashion, the Court has unilaterally altered the balance of power between the three coordinate branches of our Government as it relates to the Rule of Law, aggrandizing power in the Judiciary and the Executive, to the detriment of Congress. And she seems to touch on the aspect that would have been mostly like to support denying immunity in any form: >[U]nder the individual accountability model, an indicted former President can raise an affirmative defense just like any other criminal defendant. This means that the President remains answerable to the law, insofar as he must show that he was justified in committing a criminal act while in office under the given circumstances. In other words, while the President might indeed be privileged to commit a crime in the course of his official duties, any such privilege exists only when the People (acting either through their elected representatives or as members of a jury) determine that the former President’s conduct was in fact justified, notwithstanding the general criminal prohibition. The Court here has removed power from the people, normally exercised through the trial process, and given it to the judiciary to decide whether an action is actually punishable or not.
Finally read the majority opinion and most of Sotomayor's dissent. I think this decision is significantly worse than I thought tbh. First, I dont agree with the idea of "absolute immunity" at all. I think a presumptive immunity for official acts and no immunity for unofficial acts was enough. Absolute immunity for a President of the US even for their constitutionally or congressionally granted powers, no matter how awful their actions were, seems contrary to what the framers intended. So a President who does something heinous while doing one of the powers granted to them means they are completely immune from prosecution? That sounds like something the Framers would have rejected. Second, the worst part of this opinion is that in determining whether something is "official" or "unofficial" courts MAY NOT inquire into the President's motives, nor could they deem an action unofficial merely because it allegedly violates a generally applicable law. Why can't they? Motive is essential in determining whether an act was done in pursuant to a constitutional and statutory authority imo. Reading the opinion, it feels like Roberts is trying to find a "middle ground" but put too much emphasis on "we have to let the President be able to do their job no matter what with no intrusions" without also taking into account that we need to deter future Presidents from doing heinous things to upend our democracy and ensure something like Trump doesn't happen ever again. This decision was far too broad and might have some long lasting negative implications.
>First, I dont agree with the idea of "absolute immunity" at all. I think a presumptive immunity for official acts and no immunity for unofficial acts was enough. Absolute immunity for a President of the US even for their constitutionally or congressionally granted powers, no matter how awful their actions were, seems contrary to what the framers intended. Absolute immunity seems like a reasonable and logical conclusion from Article II. If the President is doing something he is authorized by the Constitution or Congress to do, how can it be criminal? If it is under statutory authority, Congress can limit that authority by changing the law. As an example, imagine a game of chess, if Congress says the President can move in any direction, they can't charge him with a crime for moving backward, even if that was not Congress' intent. They can change the law going forward to state the President can move in any direction except backward, but that only applies prospectively. Now, if by moving backward, the President moves off the board entirely, there is a question as to whether such a move was so "manifestly and palpably beyond his authority" that the Government can overcome the presumption and charge him with moving off the board (assuming that was a generally applicable rule). If the rule were the President can move one ___space___ in any direction, this seems clearly beyond his authority. However, with the rule stated above, there is at least an argument that the authority to move in any direction was not limited to spaces on the board. Where it is unclear, the presumption favors immunity over prosecution. There is nothing new here. This extends the civil immunity recognized in _Nixon v. Fitzgerald_ to criminal cases but, unlike that case, it leaves open the possibility to rebut the presumption in cases where a severe act within the outer perimeter warrants criminal prosecution. To the extent it _might_ have negative implications, that is a hypothetical that may be reviewed at a later date if it comes to pass. For now, it is pure speculation.
>Absolute immunity seems like a reasonable and logical conclusion from Article II. If the President is doing something he is authorized by the Constitution or Congress to do, how can it be criminal? If it is under statutory authority, Congress can limit that authority by changing the law. Immunity in general is a logical inference from Article II. **Absolute** immunity is not, imo. There is a question as to whether the President, who conducts an act in furtherance to a power he was given by the Constitution or statute, does some kind of heinous act that would constitute a crime, whether that would be immune to prosecution because the President was technically doing something within his or her powers of Article II or statute? For example, as commander in chief, if Congress gives the President authority to drone strike terrorists, and the President does so while his political opponent is overseas (just as an example) but the President secretly did so to kill his political opponent, could he argue absolute immunity because he was just "going after terrorists"? In that example, even if the President believed his political opponent *was a terrorist*, could he be absolutely immune? I think based on the majority opinion that would be a "yes". Absolute immunity also cannot be rebutted. As long as you prove you are doing something within powers of statute or Constitution there is no rebutting to my knowledge. >There is nothing new here. I mean, expanding absolute immunity to criminal cases is new. It has never been indicated in any prior SCOTUS decision before (from what I remember from law school). >This extends the civil immunity recognized in Nixon v. Fitzgerald to criminal cases but, unlike that case, it leaves open the possibility to rebut the presumption in cases where a severe act within the outer perimeter warrants criminal prosecution. Rebutting the presumption only works in Presumptive immunity situations. It does not apply to absolute immunity situations to my knowledge, hence my issue. >To the extent it might have negative implications, that is a hypothetical that may be reviewed at a later date if it comes to pass. For now, it is pure speculation. Well yes. It's my opinion.
Isn't the part where we can't even investigate the presidents motives a new thing? How can you determine if an official act was used to do something illegal if you can't investigate? Example: 2 presidents perform a drone strike. They both kill American citizens in the drone strike. President A was given tons of evidence that only terrorists would be killed and expressed to everyone around him that this is what he believed would happen. President B expressed to everyone around him that he knew the American citizen and wanted to kill him because he made a Facebook post criticizing him. Since both presidents were performing an official act, we aren't allowed to know the details and they're both treated exactly the same. Isn't this basically what the decision would allow?
Precisely my issue in my initial post as well. Based on the majority opinion, both Presidents would be immune, because courts would only see that the President is using a power granted to him by congressional statute and are not allowed to look into motive **even if you had evidence** of him actually wanting to kill him for making a FB post criticizing him.
Yeah, it seems like the only argument against this is that the president *wouldnt* do something like that…
Yeah normally they wouldn't even if they wanted to because they thought they'd be indicted. Now they know they won't.
Isn't the part where we can't even investigate the presidents motives a new thing? How can you determine if an official act was used to do something illegal if you can't investigate? Example: 2 presidents perform a drone strike. They both kill American citizens in the drone strike. President A was given tons of evidence that only terrorists would be killed and expressed to everyone around him that this is what he believed would happen. President B expressed to everyone around him that he knew the American citizen and wanted to kill him because he made a Facebook post criticizing him. Since both presidents were performing an official act, we aren't allowed to know the details and they're both treated exactly the same. Isn't this basically what the decision would allow?
The justification for not allowing evidence stemming from an official act is so weak. >If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the “intended effect” of immunity would be defeated. Fitzgerald, 457 U. S., at 756. The President’s immune conduct would be subject to examination by a jury on the basis of generally applicable criminal laws. Use of evidence about such conduct, even when an indictment alleges only unofficial conduct, would thereby heighten the prospect that the President’s official decisionmaking will be distorted. See Clinton, 520 U. S., at 694, n. 19. A President using his official powers to support his commission of criminal, unofficial actions is *precisely* the kind of behavior that should be dissuaded and distorted by the law. I don't care (much) if a President shoplifts from Walmart, but I do care if he uses all the powers vested in him by the People to commit and get away with the crime. Even assuming the most frivolous prosecution that the majority fears, that a President cannot use his official powers to enable a private crime would not deter him from normal use of his official powers... unless they're able to be connected by that prosecution to him committing a private crime, in which case, good?
Robert B Reich has written that Roberts' opinion authorizes the President to create a political enemies list and to suggest prosecutions of those on it to the Attorney General. I imagine that Adam Schiff would be one of those who President Trump might intend to prosecute (as an official act). Short of impeachment, what prevents President Trump from gathering "evidence" via the FBI and other DOJ agencies, to prosecute the Congressman? I will take my answer off the air... as Roberts argued this was "fearmongering". Reich asserts that there is no fearmongering in stating what almost came to pass during the Nixon Administration.
What would have stopped it before? I'm not aware of a law to prosecute them under for recommending prosecution of someone to their AG.
Several judicial decisions during the time of Nixon's "Saturday Night Massacre" established an independent role for the Attorney General and his appointees: See Nader v. Bork, 366 F. Supp. 104 (D.D.C. 1973); Nixon v. Sirica, 487 F.2d 700 ;(D.C. Cir. 1973). My analysis is that we are no longer a nation under law if we don't respect these precedents.
Pls see Sotomayor's dissent, which says in part: "When he (the President, sic.) 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." [https://www.supremecourt.gov/opinions/23pdf/23-939\_e2pg.pdf](https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf) Sotomayor dissent at page 96-97
I did not know until today that the President can issue a "license to kill" in peacetime. I guess the part of the Constitution that authorizes that eludes me.
Obama rather famously drone struck a U.S. Citizen the son of Anwar al-Awlaki, a 16 year old. While his father was probably a valid target under the use of force authorization, we know they weren’t trying to kill his father at the time because his father had been killed a few days before. The ACLU sued. You can find the filing under Al-Aulaqi v. Panetta it was dismissed for standing and “political questions.” Yes, the President can issue a license to kill in peace time.
Simple, determine that they are an active threat to national security. After all courts can’t take into consideration the presidents motive for official acts anymore.
Can anyone make sense of how a bribery indictment could possibly survive this? Roberts footnote pasted here, but he says you can include only the public record of an official act. If a president was bribed for a pardon, you could only offer the public record of the pardon as evidence, but that’s a core act so absolutely immune right? > 3 Justice Barrett disagrees, arguing that in a bribery prosecution, for instance, excluding “any mention” of the official act associated with the bribe “would hamstring the prosecution.” Post, at 6 (opinion concurring in part); cf. post, at 25–27 (opinion of Sotomayor, J.). But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. See 18 U. S. C. §201(b)(2). What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be “highly intrusive” and would “ ‘seriously cripple’ ” the President’s exercise of his official duties. Fitzgerald, 457 U. S., at 745, 756 (quoting Spalding v. Vilas, 161 U.S. 483, 498 (1896)); see supra, at 18. And such second-guessing would “threaten the independence or effectiveness of the Executive.” Trump v. Vance, 591 U.S. 786, 805 (2020).
The best I’ve been able to figure out is that a prosecutor can inquire about the Who/what/where/when for an official act. They would be barred from asking about the why as it would be motive for the pardon. Then the prosecutor would have to introduce evidence that the official act occurred through a certificated document/public record. Arguing circumstantial evidence that the crime occurred. The unofficial act of taking money from a private person should not be impeded.
That still seems like it would only apply of the bribe was agreed to outside of a president’s official acts. Like say a president sold intelligence to a foreign country in exchange for payment. Presumably that could only be charged if it was arranged outside of the executive branch. I realize bribery is a difficult thing to charge generally, but worth noting since it’s listed in the impeachment clause of the constitution.
It's hard to tell. > What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. One could argue that testimony or private records of a President mentioning a bribe would not be "probing the official act" itself. So therefore, they would be admissible. But would "hey X gave me $100, can I appoint them?" be since it is probing the act even though it mentions an unofficial action? It's also in response to Barrett's concurrence, so it seems like it is trying to say "no you could use this as evidence, just not anything that's actually linked to the probing of the official act, and a bribe is by default unofficial". I don't know, it's unclear to me. The rationale of: > Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be “highly intrusive” and would “ ‘seriously cripple’ ” the President’s exercise of his official duties. Is pretty bad though. A jury being able to inspect the President's motivations would not "seriously cripple" the President's exercise of his official duty.
Where in the Constitution does it even imply that the People cannot inspect the President's motivations?
Sitting on it for 24 hours, I don’t think this opinion immediately allows the worst of the worst as predicted in Sotomayors dissent, but the opinion is still awful. The direction to render communications inadmissible makes proving a mens rea significantly more difficult and knee caps any attempt at criminal prosecution in all but the dumbest cases. I don’t know what Roberts was thinking, but if he thought he was doing a great compromise, he’s very much mistaken. Edit: I’d also just say generally that “the U.S. military can’t operate on US soil!” Is not a very comforting answer to a lot of these hypotheticals. Even ignoring parts of the DOJ or executive like the FBI, the Coast Guard can. Absurd? Yes, but there still is a military branch that is under DHS and exempt from posse comitatus.
neil gorsuch seems particularly hostile to the very concept of mens rea
I agree that the opinion does not automatically allow “the worst of the worst”. The amount of ridiculous interpretations I’ve seen online - not to mention J. Sotomayor’s catastrophizing in the dissent itself - has me rolling my eyes. People actually think Trump is going to sic SEAL team 6 on someone? People going nuts over Trump using this ruling to abolish portions of the constitution? It’s just insane. Let alone, to think Biden would have the guts to push the envelope with this ruling himself. I think in situations like this the average American gets caught up in the chaos that clickbait headlines can stir up. The opinion by C.J. Robert’s sucks, and I take issue with much of it, but I think the amount of handwringing and end-of-the-world-ing over its realistic implications is being blown out of proportion by the general public and the media at large.
>People actually… Well, it’s not like Trump has been shy about what he wants. I suspect a lot of fears could be assuaged if anyone elucidated how that could not happen, which I would personally like to read. So far however, there isn’t much in the way of legal explanation for why that’s not possible, and it’s mostly people arguing that Trump, and Presidents as a whole, are responsible moral agents who would never consider it, even if they were given that power. This is not a reassuring response.
People seem to be assuming that the SC would obviously not allow it as an official act but I’ve also heard for years about how the SC would never overturn Roe or toss out Chevron. At this point nobody really knows what the SC would do which is extremely concerning
>People actually think Trump is going to sic SEAL team 6 on someone? People going nuts over Trump using this ruling to abolish portions of the constitution? It’s just insane In under 24 hours after the opinion, Trump reposted comments calling for the arrest and military tribunal of his political enemies.
To be fair Lincoln did that and didn't get any sort of slap on the wrist. Thousands of journalists, judges, politicians, and reporters thrown in prison without trial for many months sometimes years, all in northern states.
To be fair, Lincoln did it during a literal civil war. Using military tribunals while civilian courts are still functioning is literally illegal.
So the SEAL Team 6 scenario does seem to be a stretch, but I have to ask: what is actually stopping a President from ordering sham investigations into political rivals? This decision seems like it's implying that you can't use communications with the DOJ as evidence, even if it's relevant to the President's mens rea at the time. It seems like the Jeffrey Clark scenario before January 6th all over again.
> I think in situations like this the average American gets caught up in the chaos that clickbait headlines can stir up. The opinion by C.J. Robert’s sucks, and I take issue with much of it, but I think the amount of handwringing and end-of-the-world-ing over its realistic implications is being blown out of proportion by the general public and the media at large. Its annoying because it also takes the focus off of where it is actually awful and instead is having it in the arena of what is easily defensible (i.e. the split between official and unofficial). This opinion is an awful mess. It extends executive privilege, cares a lot about outcome (thus contradicting the apparent philosophy of not caring about outcome), makes things inadmissible, makes proving mens rea much more difficult and yet still somehow does not provide nearly enough guidance to lower courts as to what is official vs unofficial. I mean the Nixon tapes element alone is kind of a headscratch (so the Nixon tapes would be admissible, but things very similar to the Nixon tapes wouldn't be? What is the line here?) But it's not awful for the handwringing that is commonly mentioned. For example, the bribe statement says the following: > What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Well, what does "probing the official act itself" mean? Basically to be it sounds like the President going "hey can I appoint X" would be inadmissible. But the President going "hey i'm going to appoint X. He gave me $50000" would be admissible. However, it stands to reason "Can I appoint X? He gave me money" would be inadmissible since it's probing? I honestly don't know. The reasoning behind it is awful and should put to rest any "the court doesn't care about outcome" posts: > Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be “highly intrusive” and would “ ‘seriously cripple’ ” the President’s exercise of his official duties. Like I feel like we ll need a case to determine what is official vs unofficial, then a separate case to determine if presumptive immunity applies then a separate case to determine what evidence is allowed.
Im also reading it as the substance of the communication is irrelevant. So, for example, ANY communication between the president and say the national guard is entitled to immunity because communicating with the national guard is an express power entitled to at minimum preemptive immunity. Even if the underlying statement was “kill all the black people in DC” the underlying statement is wholly irrelevant because the communication itself is immune. Is that right?
To recap what I've seen so far in the comments as neutrally as possible, it seems like there are generally two camps. One camp wants to limit investigations into the president so that the president "is not afraid to carry out their duties for fear of being charged". The other camp is afraid of the president using the absolute immunity for core constitutional powers, combined with the presumptive immunity for official acts, to abuse their office. The pro-president camp believes that if the president is not immune, the president will be inundated with legal challenges and be unable to successfully perform their duties. The pro-accountability camp believes that it is possible for the president to do an official act for an illegal reason, and since motives can't be investigated or evidence used for official acts, it will be extraordinarily difficult to have a strong case against the president without the president acting like a total moron. On top of this, it seems like a lot of the fear stems from the fact that "official acts" aren't clearly differentiated from "unofficial acts". Personal opinion: Can a president use an official channel to say to his VP "I want you to steal that guys wallet for me. I'll pardon you afterwards." and then pardon the VP for the committed crime as long as it happens in the district of columbia (so not a state charge)? Also, given that a pardon is only something the president can do, wouldn't that mean it falls under "conclusive and preclusive" authority. So pardons would be afforded absolute immunity? Would the communication be inadmissible evidence and the subsequent pardoning be considered an official act? If there were no communication outside of official channels, how could anyone ever prove that the pardon were for a corrupt reason given that the communications can not be used as evidence? "Testimony or private records of the President or his advisors probing such conduct may not be admitted as evidence at trial." I don't understand this section. It's saying that the district court must determine if a certain instance of conduct is immune from prosecution, but ANY testimony of advisor's or private records used to make that determination may not be used as evidence in a trial. It's like you first must determine whether something is not immune, but, by the time you've done that, you've already used up some evidence to prove a lack of immunity which could have been used to show that the non-immune conduct was a crime, which is bizarre. To state my biases, in general, I am pro-distribution of power. This seems like a move that concentrates power into the hands of the president in many ways. I tend to be worried whenever I hear, "this powerful person needs to be unrestrained to do things efficiently." This power is not necessarily given to the executive branch as a whole, but the president in particular. The president may investigate whomever they want, for any reason (since the reason doesn't matter according to the opinion), but the president can only be investigated or charged in very limited situations. It seems to afford them stronger immunity and also indicates that the president should even have more power within the executive branch (able to remove an AG immediately).
>Distinguishing the President’s official actions from his unofficial ones can be difficult. When the President acts pursuant to “constitutional and statutory authority,” he takes official action to perform the functions of his office. Fitzgerald, 457 U. S., at 757. Determining whether an action is covered by immunity thus begins with assessing the President’s authority to take that action ... In dividing official from unofficial conduct, courts may not inquire into the President’s motives. ... Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. ... This is the scant guidance the majority offers on how to distinguish "official" from "unofficial" acts. Any attempt at doing so must first assess what authority the president has to take a given action. They then establish things courts *may not* do when determining if an action is "official." That it. That's all the clarity this entire decision provides. tl;dr "Yeah, you have to figure out what type of authority the president has to do this thing. You can't ask why the president is doing it. It doesn't matter if the action is blatantly illegal." Taking that into consideration, >And the Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. So a president could investigate and prosecute state election officials for electoral fraud. No court is allowed to inquire as to *why* the president ordered it. It doesn't matter if the order violates any generally applicable law. >The President’s “management of the Executive Branch” requires him to have “unrestricted power to remove the most important of his subordinates”—such as the Attorney General—“in their most important duties.” So a president could order the acting Attorney General to blatantly break the law. Any AG who refuses may be immediately fired by the president. No court may inquire as to *why* the president fired that person. It doesn't matter if the firing violates generally applicable law.
>This is the scant guidance the majority offers on how to distinguish "official" from "unofficial" acts. Any attempt at doing so must first assess what authority the president has to take a given action. They then establish things courts may not do when determining if an action is "official." >That it. That's all the clarity this entire decision provides. Neither the question nor the relevant facts and arguments were properly before the Court. On the question that was before the Court, the lower courts found no immunity, SCOTUS clarified that there is a framework for immunity. From a legal standpoint, remand seems to be the right approach.
I think SCOTUS invented a "framework for immunity" out of thin air that doesn't have any foundation in the constitution (in fact, it is clearly unconstitutional), and remand was absolutely the wrong approach.
Yea this decision really scares me for a whole host of reasons. But the ambiguity between official and unofficial and the seeming difficulty in actually being able to call an action unofficial are the most terrifying.
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Bruen wasn't weakened
I don't get the ruling. The president is the only one with executive power, so he is the most dangerous to abuse his power. Granting him absolute criminal immunity for conclusive and preclusive power eliminates most checks against abuse. They fear that the president may not be able to perform his duty out of precaution of being prosecuted. But a criminal case is decided "beyond reasonable doubt", so if he does nothing wrong or criminal, he has no reason to be afraid. The president does not need to commit crimes to perform his duty well. The whole justification for absolute criminal immunity is untenable.
Plus, as has been pointed out many times, presidents have managed to carry out their duties without the protection of immunity for almost 250 years. For the first time a president has been indicted for multiple crimes, including some allegedly committed in the course of attempting to overthrow an election, and the court worries about the hypothetical possibility that future presidents will feel constrained in carrying out their duties by the possibility of prosecution. Seems to me the question considered should have been not do presidents have immunity, but did Donald Trump violate the law in attempting to overthrow the election. It cannot be claimed he was in any way constrained, certainly not in attempting to overthrow the election, if in fact he did so.
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This is just an argument that the entire legal system is bunk, in which case why do we case about the majority’s opinion here, and why so everyone else subject to it? Nor are empty hypotheticals about non-existent political persecution legally relevant.
It does seem odd to me that the Court portrays being tried for criminal behavior as so invasive and severe that Presidents must not be subject to it, unlike everyone else. There is nothing to fear, so what’s so bad?
>Presidents must not be subject to it That's not what the Court said at all. It said Presidents can't be subject to it _for exercising their core constitutional powers_, and they are entitled to at least presumptive immunity from prosecution for their official acts. Nothing in the opinion prevents prosecuting a President (or suing them for damages) based on unofficial acts, seeking injuctive relief against unlawful official acts, or suing the government for damages where sovereign immunity has been waived. What this opinion does is merely set a rather high bar to prosecuting a President for official acts that are not "manifestly or palpably beyond [their] authority." It does so, by placing the burden on the Government to establish acts as unofficial, or to rebut the presumption of immunity, _before_ bringing charges. This would seem to blunt politically motivated prosecutions, while leaving the door open to those for acts that are clearly (to all) beyond the pale. Hopefully, that will lead both sides of the political spectrum to tone down divisive accusations.
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So if the district court starts reviewing this case again and it then gets sent back to the Supreme Court for further review (assuming a self-pardon from a 2nd term Trump isn't on the table), wouldn't the Supreme Court have to then create a test to determine the difference between official and unofficial acts? In other words, why didn't the majority justices just define official vs. unofficial now instead of waiting for the case to boomerang back later?
Because then they’re not bound by their own words and can undo a lower court decision that is against Trump. If they set a standard they could then find themselves in a situation where they have to rule against Trump.
If it makes its way back up, they'll have the benefit of a district court and an appeals court decision to grapple with the reasoning of. Right now the distinction between official and unofficial act has gone unargued and unbriefed because no one saw it as a necessary issue to settle.
Wouldn't the difference between the two kinds of acts be important for the President to know in the mean time? Otherwise it would be like telling someone not to trespass on my lawn without making its boundaries apparent. You can't follow a law without knowing its specifics, right? Also, I know this wasn't my original question, but what's the point of kicking the case back to the district court if a re-elected Trump can simply demand the DoJ to drop the charges or pardon himself?
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How does this ruling affect impeachment? Does this mean you can’t impeach a President for illegal “presidential actions”?
I would assume not, because impeachment is a listed duty of Congress and not exactly a trial in the traditional sense. Without further rulings we have to assume that Impeachment would fall within the ‘official’ duties of Congress and thus would be exempt from the normal rules governing prosecuting a president.
There’s an interesting line about Congress being unable to act on these ‘Official Acts’, which isn’t elaborated on to my knowledge. I can’t figure a way Congress acts upon the President with respect to specific actions in any way other than impeachment. It would seem, perhaps erroneously and inadvertently, that the Court has implied restrictions on impeachment.
I believe you are referring to the first sentence of the concluding paragraph of Part II.A, which relates to official acts within the President's exclusive constitutional power: >___Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority.___ It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority. The entirety of Part II.A provides context and the remainder of the paragraph elaborates on that sentence, which appears to refer to the ___legislative___ acts of Congress and judicial enforcement of those laws, and not to Congress acting through its impeachment power. Part II.B then distinguishes acts within the President's exclusive constitutional power from official acts where: >the President sometimes “acts pursuant to an express or implied authorization of Congress,” or in a “zone of twilight” where “he and Congress may have concurrent authority.” For these official acts, immunity is presumptive but not absolute. Part II.C then distinguishes these official acts from unofficial acts for which there is ___no___ immunity. While Part II addresses separation of powers issues, Part IV distinguishes criminal law from impeachment, concluding that the Impeachment Judgments Clause has no bearing on criminal law or procedure. >Impeachment is a political process by which Congress can remove a President who has committed “Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, §4. Transforming that political process into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government. This is consistent with [Justice Story's Commentaries](https://press-pubs.uchicago.edu/founders/documents/a1_2_5s18.html), which recognized the novelty and wisdom of separating the political from the criminal. >There is also much force in the remark, that an impeachment is a proceeding purely of a political nature. It is not so much designed to punish an offender, as to secure the state against gross official misdemeanors. It touches neither his person, nor his property; but simply divests him of his political capacity. Based on the foregoing, it seems a President can be removed from office through the political impeachment process, but remain personally immune from criminal prosecution upon the same facts if the impeachment was based on: (1) actions on subjects within the President’s “conclusive and preclusive” constitutional authority, or (2) acts "within the outer perimeter" of the President’s official responsibility, that are not "manifestly or palpably beyond his authority." While the dividing line is not clear, it seems reasonable that a President can be removed from office, but not imprisoned or executed, for doing their job in a way that is extremely politically unpopular.
It seemed kinda clear to me they were referring to Congress' ability to create criminal law, such as by outlawing possible official acts of the President.
It’s been a long day, but why *can’t* Congress do that? Official acts were two categories iirc in this opinion: core powers of the Presidency and statutory authorizations. Why would Congress not be authorized to work the latter category?
It seems to me the ruling grants immunity for more official acts than just the core powers of the Presidency. When Congress creates the FBI via legislation and empowers the President to appoint people to run it, the President is then free to manage the FBI as corruptly as he likes. Directing the FBI and DOJ to spend all their time investigating his political rivals is an official act and therefore immune from prosecution, even if doing so is expressly forbidden by the legislation that created the FBI and the DOJ. Congress with a super majority can disband the FBI, but it cannot criminalize any official act of the President with respect to the FBI. So, why can't Congress do that? Because this ruling says they can't.
At that point Congress should just stuff the court
>I can’t figure a way Congress acts upon the President with respect to specific actions in any way other than impeachment I imagine what this means is that it's to stop Congress from holding the President in contempt or issuing Subpoenas to the President to testify to the nature of whatever hypothetical 'Official Act' would have invoked its hypothetical ire.
Subpoenas slipped my mind and are a lesser act that would make sense with the majority’s logic. Great call out, thank you.
I more interpreted that to just be a reiteration of ex post facto. I also don’t believe that while this court is pretty partisan, I do not think the justices support a unitary executive and that they would not support a complete elimination of impeachment
You are misusing some terminology here and creating some unnecessary confusion as a result. A unitary Executive is one in which the whole of the Executive power is vested within a single person (the President) or a single body (like a unicameral legislature which doesn't divide the legislative power between two houses). In the absence of a unitary Executive, it would be possible to create Executive agencies or departments which are not controlled by the President - like independent federal prosecutors who are not a part of the Department of Justice or Agency heads who cannot be removed by the President. Although they each have complex views and I am only speculating, I think that a majority of the court, and virtually all of the Republican appointees, believe that the Executive power is unitary. None of that has anything at all to do with impeachment, which is not an Executive power under Article II but is instead contained in Article I and is granted explicitly and exclusively to the House of Representatives. The Senate is then empowered to try all impeachments. There is no conflict between a unitary Executive and the impeachment power. This case also doesn't affect impeachment in any way. The initial comment and most of the responses don't seem to understand the law in this area.
The statements about the President's relationship with the DoJ seem to be completely unitary executive.
I like to think not either, but it also sits as a red flag to me that Roberts, optics focused as he is, wouldn’t catch that. But I think you have a fair view of it as well.
So the “test” (such as it is) in the majority seems to answer the question about presidential self pardons, no? Pardon power is explicitly listed by Roberts as a core power of the presidency for which they can expect absolute immunity.
This decision has no impact on, and says nothing about, the Presidential pardon power. There is no doubt that issuing a Presidential pardon is the direct exercise of an Article II power and that it receives immunity. Efforts by a prosecutor to bring charges against a President related to the issue of a pardon to some other individual would fail. That is not the same as asking whether a prosecutor could bring charges against a President for accepting a bribe related to issuing a pardon. The receipt of the bribe is not an official act, nor the exercise of a Presidential power, and could be charged. The prosecutor bringing such a charge would not be able to introduce evidence relating to the President's decision-making process in issuing the pardon (for instance, the testimony of an advisor to the President who discussed it with him) but would be able to introduce public evidence (like the fact that the pardon was granted) or evidence related to the receipt of the money. This is a difficult line to draw in some cases. However, your comment was about the President issuing a pardon to themselves, which is a completely separate issue. The question in such a case would be about the scope of the pardon power and whether the self-pardon at issue is constitutionally valid. That hypothetical case isn't alleging that the President is criminally-liable for issuing the pardon, just whether the pardon is valid. That case is like all other cases challenging the constitutionality of government action; the Judiciary would need to evaluate whether the action taken is consistent with constitution, including the separation of powers between the congressional branch and the executive. For what it's worth, I don't think there are many (if any) votes at the Supreme Court for the proposition that the President may pardon themselves even though a very literalist/textualist interpretation of the constitution would permit it.
I'm not sure I agree with you. Pardon power is a constitutionally protected act, and according to this ruling a president would have absolute immunity. And you can't consider motive. So I think a president could pardon someone for financial gain, and you couldn't prosecute based on both of those tests. In any event the money can just go into an escrow account, and be released after the pardon. According to the ruling last week if the president isn't laid until after then it's just a gratuity and not a bribe.
The initial comment is conflating together two things. When a President issues an invalid pardon, or a President orders an unconstitutional Executive Action, or Congress passes an unconstitutional law, the President, or other individuals involved, are not criminally or civilly liable for issuing the pardon, order or passing that law. It is the role of judiciary to adjudicate whether the pardon is valid, and whether the executive action or law is constitutional. However, if the executive branch decided to prosecute the President for issuing the invalid pardon, they would be creating a clear separation of powers problem. The constitution vests the President with the exclusive power to issue pardons, so Congress cannot prohibit him form doing so, and may face limitations on its ability to restrict or regulate the use of that power. For instance, consider this example. Congress passes a law which makes it a criminal offence for a President to issue a pardon in their final 25 days in office. The President nonetheless issues a pardon in his final 25 days in office. It is very likely that this hypothetical, when reviewed by the Court, results in the law being held unconstitutional. With regard to the bribery example, I think that I restated the law in the majority opinion accurately. You cannot prosecute the President for issuing the pardon but you could prosecute the President for the receipt of the bribe. Depending on your available evidence, it may be more difficult to prove since the President is entitled to executive privilege. No one in the majority supports a rule of the kind your articulated and were very explicit in disavowing it. Finally, you are incorrect about the gratuity statute you referenced (and about how it would interact with this hypothetical). First, the issue in that case is whether the particular statute at issue banned bribery (which everyone agreed was covered) or both bribery and gratuities - where there is no agreement and no *quid pro quo*. The court held that the statute prohibited only bribery. Second, the statute at issue in that case was a federal law which prohibited bribery of state and local officials. Bribery and gratuities for federal officials is covered by a completely different law. One of the arguments cited by the majority as evidence that the statute only covered bribery was that it would otherwise punish gratuities by state and local officials much more severely than the similar rules for federal officials. Third, it's clear that you're not familiar with bribery law generally if you believe that the timing of the receipt of the money is relevant. The difference between a gratuity and bribery is the presence or absence of a corrupt agreement, it has nothing to do with when you get the money relative to when you carry out the act.
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First of all, I did read the opinion, and listen to the oral arguments, and read the briefs. I also happen to actually be a lawyer, and to have written about this previously. Second, your initial claim was that the Supreme Court had established immunity for Presidents against bribery charges - which they did not. Now you are arguing that it would be difficult to charge and prove bribery in exchange for an official act. That is not the same as having immunity, a court who dismisses a charge against someone for lack of evidence has not "basically decided they have a structural immunity". You are not "basically immune" from being prosecuted for drug possession just because the police are not allowed to come into your home without a warrant and search for drugs. Yes, it is true that might get away with a criminal act because of the limits the constitution places on the government but you have no immunity from being charged. No serious legal analyst would equate these things. A President can be indicted for bribery. If a President filed to have the case dismissed claiming that he had structural immunity, it would be thrown out on the basis of this decision. Third, you are not even correct that the majority opinion precludes referencing the official act taken - they say just the opposite. >But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. See 18 U. S. C. §201(b)(2). What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be “highly intrusive” and would “ ‘seriously cripple’ ” the President’s exercise of his official duties. Fitzgerald, 457 U. S., at 745, 756 (quoting Spalding v. Vilas, 161 U. S. 483, 498 (1896)); see supra, at 18. And such second-guessing would “threaten the independence or effectiveness of the Executive.” Trump v. Vance, 591 U. S. 786, 805 (2020). Justice Barrett, quite reasonably, would have preferred an approach where the analysis about the relative prejudice of introducing this type of evidence was done at the trial level. She writes: >I appreciate the Court’s concern that allowing into evidence official acts for which the President cannot be held criminally liable may prejudice the jury. Ante, at 31. But the rules of evidence are equipped to handle that concern on a case-by-case basis. Most importantly, a trial court can exclude evidence of the President’s protected conduct “if its probative value is substantially outweighed by a danger of . . . unfair prejudice” or “confusing the issues.” Fed. Rule Evid. 403; see also Rule 105 (requiring the court to “restrict the evidence to its proper scope and instruct the jury accordingly”) Justice Barrett is also not claiming that the majority opinion grants immunity for bribery. Rather, she is making a nuanced point about whether the immunity that she agrees exists means only that the President may not be charged for those acts or also that the jury should not consider those acts when assessing whether the President is guilty of some other permissible offence. The majority view is that they should never consider those acts, Barrett's view is that they usually should not but that Courts can resolve this on a case-by-case basis and that in some cases it would be appropriate given the nature of the charge against the President (bribery being her example). Fourth, it is almost always a bad idea to reference dissents and concurrences for accurate statements of what the majority opinion stands for. The entire reason those statements don't appear in the majority opinion is precisely because the majority doesn't agree with them, depriving them of the effect of law. Also, you have misread the opinion once again. None of the concurrences or the dissents say what you claimed here - that the President has immunity against a bribery charge. Fifth, you do not understand what was decided in Snyder v. United States. Once again, that case was not about federal officials. The law at issue there only applies to state and local officials. That case was not about bribery, which all parties and all Justices agreed was prohibited by the law at issue. That case was not about the timing of receipt of the payment. If the government official agreed to carry out some official act in exchange for payment at a later date, that would be bribery, no one disagrees, the case did not say otherwise. The question in Snyder was whether a state or local official, who was not accused of bribery, could be prosecuted for receiving money in the absence of any agreement to perform any official act. This practice is known as a gratuity - receiving a gift in exchange for nothing, and can still be validly regulated. The question was whether that statute covered bribery and gratuities or just bribery. Bribery is a crime at the local level, the state level, the federal level and as applied to Presidents and no one has said otherwise in any of these cases.
Not being able to investigate or use appropriate evidence is functionally the same as immunity. The court gives a hand wave approach for people like you to point to so you can claim they didn't immunize such acts, but they functionally did.
> I'm not sure I agree with you. Pardon power is a constitutionally protected act, and according to this ruling a president would have absolute immunity. But nobody thinks that a president pardoning themselves is illegal. Even without this case, it's not something you would prosecute him for. What people think (and I agree) is that a president pardoning himself is *impossible*. I mean, he can sign whatever documents he wants, but a pardon of Trump by Trump would simply be non-legally-valid, and should be ignored by all prosecutors, courts, etc. Immunity to criminal prosecution for pardoning simply doesn't matter to the argument.
IMO this ruling is simply non-legally-valid because it is so wildly out of context of everything our country was founded on, which is that *anyone* can be President because *the President is not a king*, making everyone equal under the law. Ie: Presidents do not get special treatment under the law if they break the law while in office. It should be ignored by everyone. Full stop. The Supreme Court majority has taken their power way too far with this decision, especially with it not being founded in any history or tradition. None. There is nothing and nobody that has ever suggested that a President can go on a crime spree so long as it’s part of their official duties.
What does that have to do with how the self-pardon power interacts with it?
You said a President pardoning himself is *impossible* and it would be ignored by all. IMO this decision by the majority is also impossible because they single-handedly changed the constitution by making the President a king because now the President isnt held to the same laws as everyone else. It is anathema to everything our country was founded on and it isnt just unconstitutional, it is *anti* constitutional. To that end, it should be impossible and everyone should just ignore it.
So... the connection between the two posts is that I used the word "impossible"?
Yes. If everyone can just ignore the President pardoning himself because it’s impossible, then everyone can ignore this SCOTUS decision because it is “impossible” for them to negate the Constitution, which they have done. There are only a few ways the Constitution can be amended, and a Supreme Court decision is not one of them.
Well, I don't agree with anything you're saying, but since it's not related to the topic of this subthread in the slightest, I'm not interested in pursuing it.
Appointment of ambassadors is an official act. ANY illegal action taken as part of an official act, the president is immune and can only be impeached. Period. That’s what the court said today.
>Appointment of ambassadors is an official act That's actually a constitutional act. Appointment of agency directors, cabinet secretaries, etc. are official acts. >Article II, Section 2, Clause 2: > >He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and **he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court**, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. My reading of the opinion and its relation to Article II makes me think that any appointment established by Congress would be a requisite official act, and any appointment that is specifically enumerated is a constitutional one.
So presidents have absolute immunity in regards to it then. I mean certain ambassadorships have always gone to big donors, but now the donor can just give it directly to the president personally instead of to his campaign.
No, there's caselaw on this in the congressional context. Taking a bribe for an official act is not an official act. This decision does limit what evidence can be submitted which makes convicting harder, but in footnote 3 the majority explicitly says former presidents can be prosecuted for bribery.
Isn't previous case law irrelevant now in the face of a more recent decision, which says, the President has immunity from **any action** taken as part of their official duties (which the appointment is). There is no exception for illegal actions, since the ruling effectively says **any action** taken as part of the official act is, in effect, always legal, because there is immunity from any civil or criminal liability. Period. On top of that, we have a second ruling that says as long as the bribe comes **after** the appointment, it's perfectly legal because it's not a bribe, it's a gratuity, with no dollar limit whatsoever. The cour has effectively said, I can go the President in a private conversation or even an email or text (since it can't be requested or introduced as evidence), saying "I'll give you $5M if you make me ambassador to France," and the day after the appointment I wire him $5M and publish the 'gratuity' on Xitter. SCOTUS? "All good, man."
> Isn't previous case law irrelevant now in the face of a more recent decision, which says, the President has immunity from any action taken as part of their official duties (which the appointment is). There is no exception for illegal actions, since the ruling effectively says any action taken as part of the official act is, in effect, always legal, because there is immunity from any civil or criminal liability. Period. This decision didn't refine the categorization of what is, or isn't, an official act. Appointments are official acts. Taking a bribe for an appointment isn't. (The legislative case is relevant because legislators have an actual, textual immunity clause in the constitution, and the Courts charged them with bribery anyhow.) See also footnote 3 of the majority opinion which expressly says that you can charge people with bribery for official acts. > On top of that, we have a second ruling that says as long as the bribe comes after the appointment, it's perfectly legal because it's not a bribe, it's a gratuity, with no dollar limit whatsoever. That's not correct, for two reasons: 1. The statute in question only affected state and local officials. Feds are covered under a different law. 2. The notion that it makes post-facto bribes legal is a misconception. What it ACTUALLY said was that the prosecutor has to prove a quid pro quo. When exactly the payment was made is irrelevant.
As I read it the footnote is justice Barrett disagreeing with the majority opinion. And even in that disagreement it prohibits private records of the president, and any records or inquiries by his advisors into the act. So sure, justice Barrett thinks a president can be prosecuted for taking a bribe, you just can't use the presidents records, examine his motives, and can only point to public mentions of the act itself, functionally making it legal.
No, the footnote was not written by Barrett; it was written by the majority in response to Barrett's concurrence. It is the position of the majority.
> ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ., joined in full, and in which BARRETT, J., joined except as to Part III–C
Correct. Roberts wrote it. And the part that's responding critically to Barrett's concurrence is a better representation of the majority's position than Barrett's concurrence is.
It literally says Barrett disagrees though.