Subject: What the Parade of Horribles Gets Wrong
Rather than piecemeal respond to scenarios, I thought it might be helpful to lay out what U.S. v. Trump holds, and why I think most of the the scenarios that are being spun about are not affected by the ruling.

At core, the ruling holds that the President cannot face criminal liability for things that are actually part of his job. Steps that he is lawfully allowed to take, either under the Constitution or because they're part of the laws that he's supposed to execute, cannot expose him to criminal prosecution. Any step that he can lawfully take in order to execute the office of the President cannot be the basis, in whole or in part, of a criminal proceeding.

"But wait," I hear you say. "Why on earth would the President need protection for things that are a lawful part of his job?" The answer, my friend, is that there are lots of circumstances in which otherwise lawful behavior can (and is) subject to criminal punishment.

The main category of this are inchoate offenses (link at the bottom of the post). These are the crimes that are committed by taking a punishable step towards the commission of another crime. The most common ones are attempt, solicitation, and conspiracy. The key to those crimes is that the "punishable step" can (and often is) be a completely legal act.

We see that most obviously with conspiracy. Suppose you and I download blueprints of the local bank, buy a beat up old car for cash, purchase some balaclavas and big burlap sacks, and make a schedule of the comings and goings of the guards. None of those things are illegal. But they can all be punishable steps if they're done in furtherance of robbing the bank. Even if we don't actually commit the crime of robbing the bank, we've still committed crime of conspiracy to rob the bank. It's the purpose of the otherwise-legal acts that makes them subject to criminal sanction.

The majority opinion prevents Congress from doing this to any aspect of the President's lawful job. If the President is doing something that's part of the actual job of being President, it can't be made punishable as an element of an inchoate crime.

That gets him out from under a lot of inchoate criminal liability (which is why it's bad for Jack Smith's prosecution of Trump, because three of the four charges are conspiracy charges). A conspiracy charge allows the government to punish someone for otherwise legal acts, when those otherwise legal acts are committed in furtherance of the conspiracy. The US v. Trump decision prohibits that. But what it doesn't do is provide him immunity for things that aren't lawfully part of his job.

And yet all the parade of horribles we've been discussing are discussing things that are illegal for the President to do. The President can't legally assassinate a political rival. He can't legally take a bribe. Those aren't the underlying actions that the opinion holds are immune. Where the opinion protects the President is when otherwise legal parts of his job are alleged to have been undertaken for a corrupt motive or in furtherance of another crime (ie. conspiracy) - not when the actions he's taking are in and of themselves illegal. The President is allowed to do the lawful parts of his job (says the majority) regardless of whether Congress or the courts think that he's doing that lawful thing with an unlawful motivation, because the Constitution assigns all of the choice to the President and not the Congress or the Courts.

There are criticisms that can be lodged against that reasoning. But it does not immunize actions by the President that aren't a legal part of his job, which is why so many of these scenarios are silly.


https://www.law.cornell.edu/we...