Subject: Re: On July 1 We Lost the Republic
I know this will be unpopular, but I'm questioning her reading of the ruling. Ordering Navy's Seal Team 6 to assassinate a political rival is not an official act of the President because the purpose is not within Presidential powers. Ditto with organizing a military coup. Taking a bribe is still illegal - just because he can't be prosecuted for giving the pardon, doesn't mean he can't be porosecuted for taking the bribe, but I'd have to look at the elements ( could be a techno reason).
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As I see it, the so-called "parade of horribles" that critics of this decision (like me) are "imagining" reflects a concern that
a) the entirety of this ruling ventured FAR beyond the facts of the case in front of the court,
b) imagined an equally fantastical set of circumstances facing some FUTURE would-be President whose best solution to those circumstances required actions perilously close to actions many might legitimately view as crimes, triggering concerns of "stifling" that would-be President from doing the "right" thing in those extenuating circumstances,
c) then explicitly banned any question about INTENT from being considered about a larger set of actions taken by any President to avoid a "treasure hunt" by over-zealous prosectors against a President for actions in his "protected" sphere of "official acts",
d) then explicitly defined a new rule of procedure that even eliminates evidence about Presidential communications related to "official acts" in the unique provence of the role of President from being used in any potential prosecution of "non-official" acts or "official acts" not in the unique sphere of the Presidency.
Logically, on their own, these rules set out by the Supreme Court erect a much taller barrier around acts for which prosecution remains legitimate even under their new rules. In pure generalities, this extra layer of protection shouldn't be necessary for the single most powerful role within our government. If faced with a choice between a world where a President MIGHT feel constrained in an extremee corner case from certain options for fear of prosecution and a world where a President enjoys a much wider bubble of protection arounds a wide range of powers that could be abused, I'll opt for the world less "fair" to a President who already enjoys the greatest power of any single world actor in government.
In general, this court decision further exaggerates the flawed thinking we already have about the President -- thinking that assumes the President IS and SHOULD BE the single, indispensible actor within the Federal Government driving the solution of every problem we face, simply becuase nuclear war is a thing and we MIGHT all die in the next twenty minutes. We might all die in the next twenty minutes from a nuclear war but we might also die in the next twenty minutes from a meteor. In the mean time, the entire structure of our government was chosen explicitly to NOT infuse all power in the Presidency. Expecting the role to operate that way amid a government designed to PREVENT the Presidency from acting unilaterally in almost ANY situuation is guaranteed to end in conflict and frustration.
More specifically, the court's ruling in THIS particular case for THIS particular President...
...imagined all sorts of FUTURE hypothetical horror situations that could ONLY be solved by an ETHICAL President unfettered by the threat of criminal prosecution...
...WHILE IGNORING the present reality of a (former) President with an entire lifetime track record of lawsuits (***) PRIOR to becoming President who now stands CONVICTED (under current law prior to this decision) of crimes related to his efforts at BECOMING President in 2016 and now appears before the court attempting to avoid prosecution for crimes related to REMAINING President in 2020 and rejecting the 2020 vote by manipulating electoral votes in FIVE STATES. And that defendant is RUNNING for President in 2024.
As Neal Katyal stated in a talking head appearance yesterday, the thesis of one of the most widely read textbooks in Consitutional law used across the country is that the Supreme Court should avoid sweeping generalities and rule as narrowly as possible based on the fcts of the case before them. Wide, sweeping decisions extrapolated from a single case are not only likely to overreach and produce unplanned / undesired consequences, they are likely to diminish the authority of the court in the eyes of the public. The conservatives on this court are literally sharting on that principal and have adopted a YOLO -- you only live once -- model of jurisprudence. A case has come up hinging on Presidential powers they would like to expand, they have the votes to oblige and, by golly, they're going to expand those powers even though the case in front of them involves an actor who has already abused those powers as part of a lifetime of abuse of power and wealth in the public sphere.
Returning to the immediate topic at this part of this thread, those of us making up this "parade of horrible" circumstances in which these new protections would come into play only have to think about "unitary executive" theory and the President's role as Commander-in-Chief to imagine a scenarios where
1) the President speaks to the public in his / her unique role as President
2) the President claims some issue to be in the existential national security interest of the country
3) requiring immediate action that only the President as Commander-in-Chief can instantly respond to
4) the President, acting in his unique role overseeing the DOJ, directs the Attorney General to launches some action X against some individual or group
By claiming national security implications, the President pulls this action into the category of "official acts" solely unique to the President's role. By communicating to the public and his Attorney General as President, those communications cannot be used in any criminal prosecution of the President to prove intent or state of mind (one of the most crucial elements of criminal prosecution).
If action X happens to result in some political enemy getting killed, is it an "assassination"? Cuz that would be, you know, illegal. But what if the President merely ordered the arrest of X? What if in the course of the arrest, a SWAT team was dispatched to the home of X? Instead of quietly completing the arrest without incident, what if a SWAT team member got trigger happy and began shooting and wound up killing X? Well, that's not assassination, that's just an arrest gone bad. Happens every day in 'Murica. Damn citizens should respect the police when they show up to your door.
What if the family and local community where X lives demand an investigation by the DOJ? What if that DOJ investigation seems to go nowhere, triggering more lawsuits to identify why nothing is being done? What if someone subpoenas communication between the President and the Attorney General to see if direction was given on the original arrest to shoot? That communication is unique to the role of the President to hire/fire cabinet officials and now protected from being used in any criminal prosection of the President, even if it proves the President ordered the DOJ and FBI to go in guns blazing, increasing the likelihood of X being shot dead rather than merely arrested.
But, but, but, but the court decision doesn't protect the lower level actors who engaged in the defacto assassination, so justice can still be served to some involved, right? Maybe, but the President has the unique power to fire high level officials as a means of interfering with cases (though the power to hire replacements is checked somewhat by the Senate). The President also has the power to pardon -- even before indictments or trial that could at least create a record of what ACTUALLY happened -- and thus pre-empt any prosecution of underlings.
Is that a legitimate, protected, Presidential perogative or assassination with a USSC-sponsored immunity blanket?
WTH
*** As John Oliver previously summarized in June 2016 before Trump was elected the first time, that's more than the number of episodes of nearly every proecedural crime show in telivision history ADDED TOGETER. Literally, a one-man, multi-decade, made-for-TV crime wave.
https://www.youtube.com/watch?...