Post New

Since February 12, 2024, the United States Supreme Court has had its finger in the pie of the effort to prosecute Donald Trump for actions prior to and on January 6 to subvert the 2020 election and retain power. On February 12, Trump's attorneys bypassed the normal appeals court flow and filed a motion directly with the USSC to halt his prosecutiion. Sixteen days later, on February 28, the USSC announced its decision to hear Trump's appeal. On April 25, the USSC heard oral arguments from the Trump team and from federal prosecutors regarding Trump's immunity claims. Finally, on July 1, 2024 --- TWENTY WEEKS -- ONE HUNDRED AND FORTY DAYS LATER -- the USSC announced its decision in the case.

What on earth could the members of the USSC have been doing for ONE HUNDRED AND FORTY DAYS in a case that should have been so easy to decide? Now we know.

The 6-3 conservative majority on the court was spending that time carefully crafting an opinion to further promote a ultra-conservative Unitary Executive theory of Presidential power, pretend to retain some semblance of prosecutorial threat to Presidents committing "private" crimes while explicitly stating a new principle of "presumptive criminal immunity" for "official" acts as President which appears NOWHERE in America's history nor in 250 years of legal precedent.

Here is the core of the decision, the entire second paragraph of the ruling.

==================
Held: Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.
==================

Everything else after that paragraph in the forty three page ruling is frankly a smoke screen aimed at making this radical ruling appear reasoned and cautious.

How intellectually, historically and morally flawed is this ruling?

The majority opinion explicitly ignores 250 years of history and legal precedent to invent a concept of presidential immunity for official acts which has no basis in ANY of writings of the founders who crafted the Constitution, much less the ACTUAL CONSTITUTION itself.

The majority opinion explicitly ignores concessions made in oral arguments by Trump's counsel about acts which were PRIVATE acts and instead, attempts to reference those amid other distracting language conveying "we're not trying to decide everything for all scenarios now, those issues can be litigated in the future." As a result, even conduct Trump's own lawyer conceded had NO claim to immunity has been taken out of the settled column and placed back into jeopardy, requiring more litigation and delay that benefits Trump and delays the point at which the American public will see facts laid out in a trial. This approach also doesn't rule out having THOSE determinations appealed all the way back to the Supreme Court to trigger a future decision further cementing immunity protections of a President.

The majority opinion defines a completely new evidentiary shield that prevents any communication of a President in his official capacity (speaking with Administration officials or speaking publicly) from being used to prove the President's state of mind or thinking, even in prosecution for "private" acts not protected by the Court's new "official act" immunity. This eliminates VAST amounts of evidence involved with current charges for "private" acts regarding Trump -- possibly crippling the remaining "private" act cases against Trump. It also provides ANY future President a clear rule to follow to attach further safeguards against criminal prosecution. Just announce your crime and intent publicly speaking as President. Per this court decision, any such communication is excluded from use in prosecution.

The majority opinion attempts to appear to make a distinction between official acts where the President is performing unique Constitutional functions such as providing direction to the military and more mundane acts as if to say their ruling is not nearly as slanted to executive power as it sounds. Yet, the ruling says this:

==================
But the breadth of the President’s “discretionary responsibilities” under the Constitution and laws of the United
States frequently makes it “difficult to determine which of [his] innumerable ‘functions’ encompassed a particular action.” Id., at 756. The
immunity the Court has recognized therefore extends to the “outer perimeter” of the President’s official responsibilities, covering actions so
long as they are “not manifestly or palpably beyond [his] authority.”
Blassingame v. Trump, 87 F. 4th 1, 13 (CADC).
==================

That reference to "discretionary responsibilities" seems to cast a very ambiguous net around nearly any action a President might take while justifying it as vital to national security. And any leeway in such determinations that lean TOWARDS whatever the President claims to be "official" acts and those unique to the Constitutional powers of the President then attach that evidentiary cloak, limiting the ability and likelihood of turning up other information to prosecute acts still exempt from such sweeping immunity protections.

This ruling spends considerable time attempting to provide a big picture view avoiding hypotheticals about the potential abuses of some future theoretical President. At the same time, the ruling discounts all of the facts regarding an actual President who led multiple criminal efforts to manipulate events completely outside his role as President by filing knowingly false documents in sixty one state courts as CANDIDATE Trump and leading a conspiracy to alter electoral vote slates from five different states to reverse a loss and retain power.

So again... How intellectually, historically and morally flawed is this ruling?

Congratulations John Roberts. Your signature now appears on the single most destructive Supreme Court ruling in the history of the United States of America. Ahead of Plessy vs Ferguson, the "separate but equal" case of 1896. Ahead of Dred Scott vs. Sanford, the "slaves aren't citizens and have no standing to sue" case of 1857 that cemented the eventual moral grounding of the Civil War. You were already in the running for worst court decision for Citizens United vs. FEC that held that "money is speech" and billion dollar corporations have an "equal" right to speak as individuals with their billions of dollars but Trump vs. United States is now at the top of the list with everything else a distant second.

This decision is worse than than Dred Scott vs Sandford because it cannot be argued to merely reflect the unevolved morals of a society still selling slaves. This decision is worse than Plessy vs Ferguson which publicly reiterated a racist bias still held by a majority of citizens at the time. This decision is WORSE because it ignores 250 years of legal and moral evolution, rejects that entire realm of progress and lays out a roadmap for any current or future President to completely circumvent every check and balanced devised by the founding fathers these conservatives claim to worship in a naked exercise of power in the present. Because they have the votes to do it and "their guy" and "their party" benefits.


WTH

Goddamn the six right wing nut jobs on the Supreme Court.

The 6-3 conservative majority on the court was spending that time carefully crafting an opinion to further promote a ultra-conservative Unitary Executive theory of Presidential power, pretend to retain some semblance of prosecutorial threat to Presidents committing "private" crimes while explicitly stating a new principle of "presumptive criminal immunity" for "official" acts as President which appears NOWHERE in America's history nor in 250 years of legal precedent.

What on earth could the members of the USSC have been doing for ONE HUNDRED AND FORTY DAYS in a case that should have been so easy to decide?

Reaching a decision on a contested point of law that was already handled on an expedited basis. One hundred and forty days is fast - in nearly all other circumstances, this case would have been heard as part of their next term, since it was filed so late. Normally it takes several years for a case to get from lower court to a SCOTUS decision. This was fast for the Court.

Nor is this an easy case, because it's pretty well established that there are separation of powers limits to the scope of Legislative authority over the Executive. To use a trivial example, we know Congress can't make it a crime for the President to grant a pardon - because the Pardon power is given by the Constitution to the Executive, and it is generally understood to be unlimited. Congress lacks the power to pass laws restricting or limiting the Pardon power of the President, and that includes criminal laws as well. The President is given the power to decide how and when to exercise the Pardon power, and Congress doesn't get a say in that - regardless of whether they try to have their say using a civil or criminal statute.

Again, that's the trivial example. Things get much less clear when we're talking about criminal laws of general applicability which purport to criminalize actions that are often legal, but are crimes when done for corrupt purposes or prohibited intent. But since both of the lower court rulings were categorical denials that any immunity could exist in any situation, they were probably wrong. I'm not even sure that the dissent would disagree that there might exist some scenario in which Congress tries to criminalize something that they're forbidden from criminalizing (like the Pardon power), and that immunity might be appropriate in that context. Which makes the decision to take up the case, and to take the short time to decide it that they spent, probably correct - no matter what you think of the final opinion.

To use a trivial example, we know Congress can't make it a crime for the President to grant a pardon - because the Pardon power is given by the Constitution to the Executive, and it is generally understood to be unlimited. Congress lacks the power to pass laws restricting or limiting the Pardon power of the President, and that includes criminal laws as well.

Let’s say a president accepts a bribe to give someone a pardon. Or something even more sinister. The president says if you arrange to murder person X, I’ll give you a pardon.

The crime isn’t the president giving a pardon. That’s not the illegality. The crime is taking a bribe or conspiracy to commit murder.

It appears you are saying that the court must waive the criminal component, as long as it’s part of an official act.

Let’s say a president accepts a bribe to give someone a pardon. Or something even more sinister. The president says if you arrange to murder person X, I’ll give you a pardon.

The crime isn’t the president giving a pardon. That’s not the illegality. The crime is taking a bribe or conspiracy to commit murder.

It appears you are saying that the court must waive the criminal component, as long as it’s part of an official act.

Not at all. To the contrary, I'm pretty sure that the current decision would support a criminal prosecution of the President in both those cases.

What I'm saying is that the "Seal Team 6" hypothetical doesn't even get that far, because it lacks an "official act" altogether. You don't even get to the question. There is no official act involved if the President orders an assassination of a US citizen on US soil, because that's not something the President has any legal authority to do in the first place.

Not at all. To the contrary, I'm pretty sure that the current decision would support a criminal prosecution of the President in both those cases.

OK, would you please give me a scenario or two where an official act of the president would be criminal?

The SCOTUS specifically said official acts of the president are immune from criminal prosecution, so there must be some that could include a crime.

It appears you are saying that the court must waive the criminal component, as long as it’s part of an official act.

That's the part that concerns me. Thank you for spelling it out more clearly than I have been able to.

Let’s say a president accepts a bribe to give someone a pardon. Or something even more sinister. The president says if you arrange to murder person X, I’ll give you a pardon.

The crime isn’t the president giving a pardon. That’s not the illegality. The crime is taking a bribe or conspiracy to commit murder.

That could lead to an interesting result. Very interesting, particularly in the murder case.

So a president agrees to a "murder for pardon" scheme. They have to be careful that this can't be charged under state laws, only federal. Not sure how that works in detail, but I'll assume its possible. The murderer does his job and the president immediately issues a pardon. (Gotta do that quickly while he's still president, so can't wait for a trial and conviction.) Because the pardon power is absolute, the murderer gets off. The president could be charged with conspiracy, though.

Maybe his successor would pardon him if it were politically expedient to do so.

--Peter

OK, would you please give me a scenario or two where an official act of the president would be criminal?

Again, it's the distinction you provided. If the President offered to grant a pardon in exchange for the murdering of a political rival, the actus rea of the crime would be the conspiracy to commit murder. The President is immune from being prosecuted for granting a pardon, but he isn't immune from entering into an agreement for a murder to be committed. Because arranging for someone to be murdered isn't an official act of the President - it's not something he's legally allowed to do.

This isn't some far out, crazy, completely novel concept. U.S. Congressmen enjoy absolute immunity - civil and criminal - for their votes and speech in their respective Congressional chambers. That's not under dispute, because unlike the Presidential case the Constitution explicitly grants them that immunity in the Speech and Debate Clause. So as you might expect, the courts have had to deal with the scope of that immunity in the context of allegations that Congressmen were bribed to vote or speak in a certain way:

https://supreme.justia.com/cases/federal/us/383/16...

It doesn't shield them from criminal charges absolutely. If a Congresscritter agreed to give a speech or take a vote in exchange for a hit on a political rival, they'd still be prosecutable for conspiracy to commit murder. It's just that the speech or vote cannot on its own be the "actus rea" (the unlawful act) that supports the crime. The elements of the crime have to be met with things other than the vote or speech.

Again, many countries have this sort of criminal immunity for legislators - either for when they're doing the legislative things (like in the U.S., and in virtually every Westminster parliamentary system), and sometimes more broadly (as in France or Germany, where legislators enjoy not just immunity in their legislative functions but in other conduct as well). These countries have not been wracked by crime waves of legislators assassinating their election rivals in exchange for votes...

Because arranging for someone to be murdered isn't an official act of the President - it's not something he's legally allowed to do.

I’m remembering this guy named Bin Laden.

Who was murdered when the Congress had not explicitly authorized war.

So …

I’m remembering this guy named Bin Laden.

Who was murdered when the Congress had not explicitly authorized war.

So …

Yeah, OBL wasn't a U.S. citizen on U.S. soil (which is what the above hypothetical involved). The U.S. kills people in military conflicts without going through a judicial process, and that is consistent with law (the WPA notwithstanding). Murdering a political rival in the U.S. is a different scenario.

Again, it's the distinction you provided. If the President offered to grant a pardon in exchange for the murdering of a political rival, the actus rea of the crime would be the conspiracy to commit murder. The President is immune from being prosecuted for granting a pardon, but he isn't immune from entering into an agreement for a murder to be committed. Because arranging for someone to be murdered isn't an official act of the President - it's not something he's legally allowed to do.

So, pray tell, if criminal activity is illegal, why didn’t the SCOTUS just say that? Instead, they went out of their way to say there is immunity for official acts.

Three of the Supreme Court Justices, and many Constitutional experts, think this ruling allows criminal activity to occur with immunity, which will threaten our republic.

Apparently, there are some people above the law, including the SCOTUS.

albaby1: If the President offered to grant a pardon in exchange for the murdering of a political rival, the actus rea of the crime would be the conspiracy to commit murder.

This discussion is silly. First, as Orange Jesus has repeatedly demonstrated, he does not tell people to "do something" or enter into obvious conspiracies. Rather, he says, "we need a little favor" or "Russia, if you're listening," or maybe now "that democratic candidate is a problem".

Second, why are you assuming that someone wouldn't be delighted to murder a political enemy for Orange Jesus? And having committed murder, completely absolve Orange Jesus: "It was my idea not the president's."

Afterward, Orange Jesus would tell his followers, "He was framed and the only way to right this wrong is by presidential pardon."

Third, the USSC just gave future presidential attorneys a roadmap of the ways in which to commit crimes that would shield a president from prosecution.

Finally, in another thread you wrote "Motion Denied" but we're now in the territory of Trump's favorite president, Andrew Jackson, who when the Supreme Court ruled against the government declined to take any action to enforce the Court’s decision in Worcester v. Georgia.

Orange Jesus would certainly tell his cult that the Executive Branch usurps the Judicial branch and that whatever their ruling, they could go pound sand and almost no republicans in Congress would protest.

Who was murdered when the Congress had not explicitly authorized war.

If you go there, we probably need to talk about that whole Iraq thing. I don't recall a declaration of war against Iraq.

At least Bin Laden can be said to have engaged in acts of war against the US for the 9/11 attack.

--Peter

So, pray tell, if criminal activity is illegal, why didn’t the SCOTUS just say that?

They did say that. The majority opinion explicitly states that there is no immunity for unofficial acts.

Ordering an assassination of a US citizen on US soil would clearly be an unofficial act. It’s outside the powers of the President to do that.

They did say that. The majority opinion explicitly states that there is no immunity for unofficial acts.

So ‘no immunity for unofficial acts’ is synonymous with ‘no immunity from illegal acts’?

I don’t think so.

So, once again, why didn’t the SCOTUS just say there is no immunity for illegal acts instead there is immunity for official acts?

And who determines what an official act is?

Oh, the Supreme Court.

How convenient.

albaby1: The majority opinion explicitly states that there is no immunity for unofficial acts.

C'mon now. Simple plan for a simple populace: "We had information that indicated to us that the democratic candidate for president had top secret information he was in the process of handing over to China for their assistance in rigging the election in his favor. Immediate action was required to safeguard the security of United States and during his armed resistance, he died after an exchange of gun fire."

Official act, complete immunity, testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial, pardons all around.

Impeachment you say? Impeachment no longer exists.

Hey, y'all, quite piling on Albaby. He isn't the Supreme court and didn't write the case up, the six judges did.

Give him a chance to explain it without jumping all over him.

So ‘no immunity for unofficial acts’ is synonymous with ‘no immunity from illegal acts’?

Not synonymous, no. For example, Congressmen are immune for anything they say on the Congress floor - even though it's illegal to say slanderous or libelous things. Some of their "official acts" are immune, even though they are ostensibly illegal. I say ostensibly, because if pressed the courts would certainly rule that those laws would be unconstitutional, as applied, to Congressional floor speech.

But none of the parade of horribles that folks have been discussing are official acts, because they are outside the powers of the Presidency. The President doesn't within his powers the ability to assassinate a U.S. citizen on U.S. soil. You can make up a fanciful scenario where the President successfully lies to a court about some crazy set of circumstances that would ostensibly bring it within his powers - but if you do that, you're just constructing a scenario where the President would have the charges dismissed even if he weren't immune. Which would mean the President has always had the power to assassinate political opponents with impunity, because the courts will just believe his lies....

....which is just silly. I mean, the President tried to argue that all of his acts were official in this case, and this Supreme Court rejected that argument. They refused to accept that everything the POTUS does is official, and instead sent it back down to the lower court to make a determination.

Legislative acts have been immune from prosecution for centuries, and that hasn't stopped Congressbeings from being tried and convicted for crimes like bribery and conspiracy regarding their legislative acts. Nor has it resulted in an overwhelming wave of Congressional lawbreaking. Regardless of the merits of the ruling, the effect of the ruling is not to authorize Seal Team 6 assassinations, as intimated by the dissent.

albaby1: ....which is just silly. I mean, the President tried to argue that all of his acts were official in this case, and this Supreme Court rejected that argument. They refused to accept that everything the POTUS does is official, and instead sent it back down to the lower court to make a determination.

All this Supreme Court did was needlessly sit on this for months and then delay any meaningful resolution months more by sending it back to the lower court for further determination until it winds up before the high court again next year. Unless Trump is elected, then it goes away.

Also, with respect to this court, please 1.) Share with me where in the Constitution the justices find "Presidential" immunity (as you note, the Constitution addresses speech and debate clause immunity, so it's not like they weren't aware of the concept); and 2.) Define for me what this court means by presumption of immunity.

Oh, and you're acting as though as though in a second term, Orange Jesus would play by the rules.

That's cute.

All this Supreme Court did was needlessly sit on this for months and then delay any meaningful resolution months more by sending it back to the lower court for further determination until it winds up before the high court again next year.

Again, I think this reflects a distorted view of how the SCOTUS operates. Cases always take months to go through the process - with very few exceptions that always involve a hard deadline (like election cases or capital punishment appeals). This was fast for SCOTUS review.

Also, with respect to this court, please 1.) Share with me where in the Constitution the justices find "Presidential" immunity (as you note, the Constitution addresses speech and debate clause immunity, so it's not like they weren't aware of the concept); and 2.) Define for me what this court means by presumption of immunity.

Presidential criminal immunity is right next to presidential civil immunity, which has been the law of the land for half a century now:

https://www.law.cornell.edu/supremecourt/text/457/...

It's grounded on separation of powers. Each of the three branches of government has a sphere of authority that is not subject to the encroachment, regulation, or control of either of the others. For an explanation, see:

Finally, with respect to civil liability, the Court has held that the President is absolutely immune in actions for civil damages for all acts within the "outer perimeter "of his official duties.20 The Court's close decision was premised on the President's "unique position in the constitutional scheme," that is, it was derived from the Court's inquiry of "a kind of 'public policy' analysis" of the "policies and principles that may be considered implicit in the nature of the President's office in a system structured to achieve effective government under a constitutionally mandated separation of powers."21 Although the Constitution expressly afforded Members of Congress immunity in matters arising from "speech or debate," and although it was silent with respect to presidential immunity, the Court nonetheless considered such immunity a "functionally mandated incident of the President's unique office, rooted in the constitutional tradition of the separation of powers and supported by our history."22 Although the Court relied in part upon its previous practice of finding immunity for officers, such as judges, as to whom the Constitution is silent, although a long common-law history exists, and in part upon historical evidence, which it admitted was fragmentary and ambiguous,23 the Court's principal focus was upon the fact that the President was distinguishable from all other executive officials. He is charged with a long list of "supervisory and policy responsibilities of utmost discretion and sensitivity,"24 and diversion of his energies by concerns with private lawsuits would "raise unique risks to the effective functioning of government."25 Moreover, the presidential privilege is rooted in the separation-of-powers doctrine, counseling courts to tread carefully before intruding. Some interests are important enough to require judicial action; "merely private suit[s] for damages based on a President's official acts" do not serve this "broad public interest" necessitating the courts to act.26 Finally, qualified immunity would not adequately protect the President, because judicial inquiry into a functional analysis of his actions would bring with it the evil immunity was to prevent; absolute immunity was required.27

https://constitution.findlaw.com/article2/article-...

As for the presumption of immunity, it means what it says. When there is a dispute about whether Congressional regulation of the President's conduct poses "dangers of intrusion on the authority and functions of the Executive Branch" (which is the standard in Fitzgerald), the burden starts with the prosecutors to prove that it doesn't, rather than on the President to prove that it does. It's a presumption. So if the President is doing something that's part of the job of President, and Congress passes a law that makes doing that thing a crime, the inquiry starts with a presumption that Congress' regulation of a part of the President's job is intruding on the separation of powers, but not a conclusive finding.

" The majority opinion explicitly states that there is no immunity for unofficial acts.

Ordering an assassination of a US citizen on US soil would clearly be an unofficial act. It’s outside the powers of the President to do that."

Under what authority did Obama use to justify drone strikes on U.S. citizens abroad fighting for the enemy? Or Bush's infamous deck of cards with various Iraqi leaders on it?

So how would it be different if Trump gets the White House Counsel to write up on official letterhead that Gavin Newsom (or whomever) is deemed to be a terrorist and enemy of the U.S. due to acts that are not in the interest of the U.S. and that he is to be captured or killed immediately? Sure Newsom can fight that order in court, but that takes months and would ultimately be decided by the Supreme court while Newsom disappears from the political scene fighting for his freedom. Even if the Supreme Court rules Trump's order illegitimate, it is already a year or two later. There is no punishment for Trump for harassing his political enemy for two years. It was an official act.

Heck, Trump can send out hundreds of these orders, even against SCOTUS justices who MIGHT oppose the legality of the orders. Sure, in the end they MIGHT get overturned, but there is no downside to him doing it. He is immune since they were official acts.

It doesn't even have to be political. Trump can write up an executive order requiring the government to pay him rent on his properties. Sure it will eventually get overturned and he won't get any benefit, but there is literally no downside for him. He can flood the field with all sorts of crap, almost all will eventually get overturned, but it will cause problems for everyone else and there is absolutely no downside for him. It was all official acts even if they were illegal.

Under what authority did Obama use to justify drone strikes on U.S. citizens abroad fighting for the enemy? Or Bush's infamous deck of cards with various Iraqi leaders on it?

So how would it be different if Trump gets the White House Counsel to write up on official letterhead that Gavin Newsom (or whomever) is deemed to be a terrorist and enemy of the U.S. due to acts that are not in the interest of the U.S. and that he is to be captured or killed immediately?

Under his authority as Commander in Chief. The President is authorized to use military force against non-citizens abroad, when they pose a military threat to the U.S. There are some very narrow precedents for using military force against U.S. citizens abroad fighting for the enemy.

None of that would apply to Gavin Newsom. If he is a terrorist and an enemy of the U.S., and is located within the U.S., then he is subject to the protections of the Constitution and cannot be the subject of an extrajudicial killing. The President has no authority to do that under his authority as Commander in Chief. The apprehension or neutralization of a U.S. citizen on U.S. soil is a law enforcement matter, not a military matter - you can't just kill them.

I've sort of changed your hypothetical to be a straight up assassination, because I think the scenario you described is one that Trump was probably already immune from. It's not entirely clear that what you're describing is a crime. If Trump orders that Gavin Newsome is to be arrested and taken into custody, it would violate a number of civil statutes (wrongful arrest, malicious prosecution)....but the President is already completely immune from any civil liability for the exercise of his office. And I'm not sure that getting the White House counsel to write up something about Newsom on official letterhead is even that.

Post New

US Policy FAQ

---

Contact Shrewd'm
Contact the developer of these message boards.