No. of Recommendations: 11
Your hypothetical #2 is the scenario of concern.
As albaby1 explains his position on the protections that remain after this ruling, his explanation seems to start from a point where the President's intent is somehow already established and cleaar and that intent is already accurately understood by others, including those that might originate prosecution.
EXAMPLE: The President INTENDED to assassinate X, gave an order to a department to do action Y which itself didn't explicitly state "assassinate X" but directed actions which led to the death of X when death should not have normally been a consequency of action Y. After that happens, other prosecutors determine the President directed an assassination of X which is outside his Constitutional powers and prosecution begins (rightly so).
Thtat's not the scenario of concern.
The scenario of concern is the President internally decides to assassinate X but engages in actions which appear to direct action Y. The President may even announce action Y in an Oval Office address to the American public, one of his unique Constitutional powers of communication, thus establishing a presumption that X merited action Y and Y did not involve killing X. However, the President also has a direct conversation with the head of a department (DOJ or DOD) instructing that action Y get "rough" and skip any normal protections that might better ensure a safe capture of X. "I NEVER SAID KILL ANYONE. JUST DON'T WORRY ABOUT PROTECTING THEIR HEAD WHEN YOU SHOVE THEM INTO THE SQUAD CAR." (That's nearly a direct quuote from Trump campaigning in 2016 by the way...).
If party X winds up dead from action Y, the President's preparation for the Oval Office address and his communications with department heads are now subject to this new evidentiary rule that prevents information about those communications from being used in any criminal prosecutiion of the President because they would require inferring INTENT from conversations the President had engaged in or preparing for duties unique to his Constitutional powers (speaking to the public, directing cabinet / department officials regarding duties).
By some means, if SOMETHING comes to light via other sources of information not "tainted" by this new over-reaching evidentiary rule, sure it might become apparent that the President's INTENT and ACTION was outside the scope of his Constitutional authority, illegal in its own right, and NOT protected by the Court's newly invented Constitutional defense. However, all of these new rules made it VASTLY more difficult for anyone outside the President's bubble and anyone with information outside this protected realm of evidence to actually DETERMINE the President broke the law, drastically reducing the chance of a President getting caught and punished for abusing his power.
THAT'S the concern. The concern is NOT that this decision makes it literally IMPOSSIBLE for a President to be convicted of illegal acts outside their Constitutional authority. The concern is that it makes it VASTLY more DIFFICULT for any such prosecution to take place and creates an OVERWHELMING benefit of the doubt for the role of President which already has overwhelming power to protect itself against frivolous abuse of any such prosecutorial efforts. Even if these new rules do not literally eliminate the possibility of legitimate prosecution, they add MONTHS of delay as a President cites these rules to force the prosecution to overcome the presumptions defined in this case. As we know, when a President is accused of serious crimes, DELAY is the enemy of justice, especially for a President who has access to hundreds of millions of dollars to buy delay in the form of frivolous motions.
The argument being made by those appalled by this ruling is that
* the President shouldn't be above the law and immune from prosecution
* the Presisent shouldn't be below the law and at risk for abusive prosecution for official acts
* but when the mechanics of legal processes are in conflict between the rights of a President and the interest of the public in avoiding abuse of Presidential power, the ties have to go with the public's interest
And the final concern with this case is that this Court chose to fabricate this new Constitutional protection not in the case of a GOOD President found to be inhibited from doing the right thing for fear of being prosecuted but in response to a case where a President explicitly abused his power not merely for personal enrichment but to reject the outcome of a Presidential election, manipulate official votes of FIVE STATES and illegally remain in power. The stakes could not be more existential for the country and yet this Court crafted NEW protections not only for the Presidency but for a specific President who already demonstrated he has abused existing Presidential power.
WTH
