Post New

In dissent, Sotomayor explains:

“The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. Korematsu v. United States, 323 U. S. 214, 246 (1944) (Jackson, J., dissenting). The President of the United States is the most powerful person in the country, and possibly the world. When he 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.

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law. ”

America now has a King.

Hey, Joe, you can send Seal Team 6 to Mar-a-Lago without fear of consequence; the Supremes said so.


https://www.supremecourt.gov/opinions/23pdf/23-939...

Hey, Joe, you can send Seal Team 6 to Mar-a-Lago without fear of consequence; the Supremes said so.

Team 6 is on President Trumps side and will protect him from dementia Joe.

In dissent, Sotomayor explains: - CO

-----------------

The ruling was pretty clear and for Sotamayor expressing dissent this way is simple fearmongering. Publicly making such an obvious and inflammatory political statement further erodes the credibility of the court.

The ruling was pretty clear and for Sotamayor expressing dissent this way is simple fearmongering. Publicly making such an obvious and inflammatory political statement further erodes the credibility of the court.

You’re not paying attention.

The credibility of the Roberts court has been falling faster than a lead balloon for years before Sotomayor’s dissent.

The Roberts court makes the Taney court look competent.

In dissent, Sotomayor explains:

“The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. Korematsu v. United States, 323 U. S. 214, 246 (1944) (Jackson, J., dissenting). The President of the United States is the most powerful person in the country, and possibly the world. When he 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.

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).

I guess my reading is the reason behind why the Pres did it. If the Pres ordered Wichita, Kansas cut off to quarantine disease with the governor saying no, but the CDC said cut it off now - that's still an official act. An illegal official act - but only a few would want him prosecuted for it. Bit I still like the Jeffersonian view, that most everyone would understand and not prosecute or convict him - even though what he did was illegal. But we do have a narcissistic psychopath headed for the White House - that I understand.

Now, Ill leave it up to Albaby, WTH, and one of my new favorites Pthe, to tell me how I'm reading it incorrectly. :)

Publicly making such an obvious and inflammatory political statement further erodes the credibility of the court.

Making poorly reasoned decisions and refusing to address their ethics issues is why the court’s credibility is suffering. Sotomayor is just speaking the truth, something that is in short supply these days.

—Peter

Lambo: 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.

Sotomayor wrote "official powers," not "official acts". But sure, you go ahead and disagree with her by explaining where the high court defined the difference between the two.

Thanks to the Roberts court we have arrived at the Nixonian definition of legality: "If the President does it, it's not illegal."

And if it is, good luck prosecuting it 'cause it ain't ever gonna' happen.

"Thanks to the Roberts court we have arrived at the Nixonian definition of legality: "If the President does it, it's not illegal."

Pretty much looks that way. It'll take months, if not years, for lower courts to distinguish between official and unofficial acts,
and every attempt to do so will be appealed and then appealed again.
Ultimately the MAGA SCOTUS will have final say. Laughable.

Pretty much looks that way. It'll take months, if not years,

Another ruling sure to throw things in a cocked hat, well, forever:

WASHINGTON (AP) — The Supreme Court opened the door Monday to new, broad challenges to regulations long after they take effect, the third blow in a week to federal agencies.

The justices ruled 6-3 in favor of a truck stop in North Dakota that wants to sue over a regulation on debit card swipe fees that the federal appeals court in Washington upheld 10 years ago.

Federal law sets a six-year deadline for broad challenges to regulations. In this case, the regulation from the Federal Reserve governing the fees merchants must pay banks whenever customers use a debit card took effect in 2011.

The deadline for lawsuits over the regulation was in 2017, the Biden administration argued. A federal appeals court agreed that Corner Post, a truck stop in Watford City in western North Dakota, mounted its challenge too late, even though it didn’t open its doors until 2018.
https://apnews.com/article/supreme-court-regulatio...

So even if there’s a sunset law for filing a claim it’s now meaningless. All you need do is open a “new business”, and you can challenge any regulation you like, no matter how old, no matter how long standing. I see a lot of work for lawyers, and the USSC’s drive to eliminate as much regulation as they can, no matter the problems that may create.

Ultimately the MAGA SCOTUS will have final say.

I sincerely doubt that will ever happen. Due to the current policy of the DoJ not prosecuting a sitting president, the case won't even be filed until Trump is out of office, and that won't happen until the middle of his 4th term when he keels over from a heart attack due to his poor diet and weight.

CO: Sotomayor wrote "official powers," not "official acts". But sure, you go ahead and disagree with her

Me: Yes, I will question what I want and invite well reasoned, no emotional, responses to correct me. Here is what she wrote.

“The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. Korematsu v. United States, 323 U. S. 214, 246 (1944) (Jackson, J., dissenting). The President of the United States is the most powerful person in the country, and possibly the world. When he 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.

She used both. And it isn't clear if she isn't conflating the two, and now claiming that any act will be equated to fall within his powers. I invite all well reasoned factual responses, but not the emotional ones.

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).

---------------------

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?v=jS9zYYM7x40

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.

Albaby has essentially stated the same, but I still don't see the reason. Isn't one of the president's constitutional powers - and in fact a mandatory duty - to protect the U.S. from threats both foreign and domestic? If so, why can't Biden (or any other POTUS) simply claim that as the reason for assassinating (or jailing) anyone, including a former - and potentially future - threat to America?

Publicly making such an obvious and inflammatory political statement further erodes the credibility of the court.

Beer boy, Reverend Alito, Holy Sister Barret, Corrupt Clarence, Bumpstock Roberts, TombstoneGorsuch?

What credibility?

eom.

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.

I was thinking similarly. The USSC has just given the President a decent sized cloak of immunity for lots of things. So how can Biden use that cloak to the country's advantage between now and Jan 20? (And hopefully beyond, but let's focus on the short term.) What can he do? Yeah, there's your idea above - which I'll admit I had thought of, too. But what else?

--Peter

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.

Sounds eerily similar to the conspiracy theory that right-wingers were cooking up when they found out about the boilerplate "use of force" terms for the Mar-a-Lago search, TBH.

But in the above scenario, how on earth would the President be subject to any criminal charges in the first place? If the President did in fact simply order the arrest of X, then he would have done nothing criminal.

If the President gave specific instructions to murder X, then that information wouldn't be protected from any investigators. Trivially, it's both relevant to and admissible in the murder and conspiracy to commit murder charges for everyone else involved in this scheme, since none of them are protected by immunity. More importantly, all of that evidence regarding what the President did and why he did it is still admissible for the determination of whether his actions are entitled to immunity in the first place. Only once the actions are adjudged to be immune is all that stuff off the table. And this evidence would demonstrate that not only were the actions of the President outside of the constitutional authority of the office, but actually prohibited by the Constitution.

So no - a President who did this would be just as likely to be arrested for murder after the ruling as they are today, because it's not an official act of the President to order an assassination of a U.S. citizen on U.S. soil.

Isn't one of the president's constitutional powers - and in fact a mandatory duty - to protect the U.S. from threats both foreign and domestic? If so, why can't Biden (or any other POTUS) simply claim that as the reason for assassinating (or jailing) anyone, including a former - and potentially future - threat to America?

Nope. The President's Constitutional powers are listed in Article II, which is linked below:

https://constitution.congress.gov/constitution/art...

He doesn't have a roving portfolio to kill anyone he claims is a threat to the U.S.

So no - a President who did this would be just as likely to be arrested for murder after the ruling as they are today, because it's not an official act of the President to order an assassination of a U.S. citizen on U.S. soil.

If this is accurate, then why didn’t the SCOTUS simply say “No person is above the law. Period.”

Instead they said a president has immunity for official acts.

One of these statements is different than the other.

3 Supreme Court justices and many Constitutional experts, on both sides of the aisle, have also raised serious concerns with this ruling.

If this is accurate, then why didn’t the SCOTUS simply say “No person is above the law. Period.”

Instead they said a president has immunity for official acts.

One of these statements is different than the other.

Because there are official acts that would be immune from generally applicable criminal laws. Murdering a political opponent isn't one of them. Not every potential crime can be characterized as an official act.

So if President Biden orders a cabinet official not to comply with a Congressional subpoena on the grounds that the material is covered by executive privilege, he's immune from a criminal charge when he leaves office that he obstructed a federal proceeding. That doesn't mean that he would equally be immune from criminal charges if he ordered an assassination of a political rival.

BTW, if immunity means someone is above the law, then the SCOTUS could never simply say "No person is above the law. Period." Because every member of Congress has criminal immunity for most of their official actions. If immunity creates a law-free zone making an officeholder above the law, then we've had that for several centuries now.

If the President gave specific instructions to murder X,

Of course, the president is never going to order anything but the arrest. He'll just comment that it would be too bad if the arrestee resisted. Wink, wink, nudge, nudge.

then that information wouldn't be protected from any investigators.

What about this sentence from the USSC decision? Page 7, first full paragraph, last sentence:

Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.

Sure sounds like testimony from his advisors - including anyone he talked to about the arrest - is protected information and could not be used. I don't see any limits on the prohibition of use. Just a flat out prohibition.

--Peter

Of course, the president is never going to order anything but the arrest. He'll just comment that it would be too bad if the arrestee resisted. Wink, wink, nudge, nudge.

If that actually worked, then he wouldn't be able to be convicted of a crime even if he didn't have immunity. The judge would dismiss the case. Right? I mean, the idea is that a judge would be so naive or stupid or corrupt that he would accept the above state of affairs as absolving the President of complicity in the killing for the purpose of making the official acts determination - so that judge would make the same call on the motion to dismiss the charges.

What about this sentence from the USSC decision? Page 7, first full paragraph, last sentence:

Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.

Sure sounds like testimony from his advisors - including anyone he talked to about the arrest - is protected information and could not be used.

Nope. It doesn't say the evidence can't be used. It says it can't be admitted as evidence at trial.

It's not privileged - that was shot down in U.S. v. Nixon. It's inarguable that it can be used in the criminal prosecution of everyone else involved in the murder conspiracy (none of whom have immunity), which means that it can be obtained by investigators. And nothing in the opinion says it can't be used in the judge's determination of whether or not the underlying acts are immune acts or not. In fact, the opinion specifically allows the government to rebut the presumption that the actions are not within the scope of immunity, which requires that the government be allowed to use the evidence to make that showing. The evidence can't be used at trial to support other charges, because that would erode the protections of immunity - but allowing it to be used to determine whether an action is or is not entitled to immunity doesn't implicate that concern.

Nope. The President's Constitutional powers are listed in Article II, which is linked below:

I'm looking at the last paragraph of Section 1:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:– I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

Why isn't this a "power" as well? You can't expect the president to be able to live up to this oath without the power to do what he feels is necessary to "preserve, protect and defend the Constitution of the United States". Jailing Trump, or even executing him, might be the only option to prevent him from assuming power again and gutting the Constitution.

Why isn't this a "power" as well?

Because it's just a description of his oath. He has to, to the best of his ability, preserve protect and defend the Constitution. That doesn't mean that if he decides protecting the Constitution requires exercising Legislative authority that he can start enacting his own laws....or that defending the Constitution requires him to become judge, jury and executioner that he can start exercising Judicial powers. It's just the oath. He can't just say, "Well, I've decided that we need a mutual defense treaty to defend the Constitution, so I get to enter into that treaty without Senate consent."

There are no generic grants of unlimited authority to the President that give him the right to do whatever he wants just because he thinks it's a good idea - which is why every President ends up having some of their actions struck down by the Courts as being contrary to either the Constitution or statute. There's no broad power to do "anything necessary to accomplish goal X," whether goal X is the security of the country or protecting the Constitution.

There's no broad power to do "anything necessary to accomplish goal X," whether goal X is the security of the country or protecting the Constitution.

Ok. So it must be that you disagree with all the dissenters envisioning such "SEAL Team 6" scenarios. IS there no risk at all of that being judges immune if and when such a case makes its way to the current SCOTUS?

So it must be that you disagree with all the dissenters envisioning such "SEAL Team 6" scenarios. IS there no risk at all of that being judges immune if and when such a case makes its way to the current SCOTUS?

That's my read - there is no risk, under the current holding. Which is why IMHO the dissenters merely stated that a "Seal Team 6" scenario was a possibility, rather than taking the time to actually elaborate how that would play out under the majority's reasoning. Because there's no real way to square that scenario with what the majority actually held. There's no plausible argument that the President doing something that's not only outside his actual powers, but prohibited by the Constitution, would be considered an "official act" under the majority's analysis.

The scenarios involved in this thread all involve a lower court judge acting so completely bonkers (like accepting an argument that Trump assassinating a political rival was necessary to prevent secrets being revealed to the Chinese) that they wouldn't need immunity to let the President get off scot free - they'd just use the same craziness to simply dismiss the charges. Yes, the entire system assumes that federal judges are not going to give the President a free pass for murder just because they're from the same party - but that assumption is necessary with or without this immunity ruling, since judges are always free to grant motions to dismiss criminal charges or enter directed verdicts against the prosecution.

Ok, that isn’t a direct answer to me but it is a well thought out answer.

Synopsis
The ruling goes far beyond the case, and seems to imagine an honest President rather than the one the case is about. It ignores long standing precedent of narrow rulings. All the President has to do is say the magic words “national security” and the invisible Presidential Acts wall springs forth as an impenetrable barrier. What if, what if.
------------
Me. It does go beyond the case, the Supremes aren’t limited, though it will cause havoc. Of concern to me is that Presidential communications to aids/advisors can’t be used as evidence. ⬅️ I don’t see why this was done at all. Only recently we found a note by Halderman(?) that indicated Nixon had tt him about contacting N Vietnam about not doing a deal with LBJ. So what gives here? Can anyone explain?

Official Acts get immunity, but Sotomayor’s example of a Seal Team Assassination doesn’t seem to contemplate that assassination of a political rival isn’t part of Presidential Powers and so isn’t a Presidential Act. While I’m unhappy that a President’s communications with aids and advisors is out of bounds on evidence, it isn’t clear if it ever comes in bounds. This is flawed, perhaps I’m not understanding it correctly.
Presidents have used National Security as a shield before this ruling and will continue. It would have been nice if they’d made exceptions at each level, but they didn’t So are we going to develop them piecemeal? What a country! 😊

I was thinking similarly. The USSC has just given the President a decent sized cloak of immunity for lots of things. So how can Biden use that cloak to the country's advantage between now and Jan 20? (And hopefully beyond, but let's focus on the short term.) What can he do? Yeah, there's your idea above - which I'll admit I had thought of, too. But what else?

--Peter

---------------

Well, if you guys have convictions behind what you assert here, then just have Biden order up Seal team 6 and assassinate Trump, or perhaps a showy drone strike on Mar-a-Lago, your call.

Problem solved, democracy saved, easy peasy. Go for it.

Of concern to me is that Presidential communications to aids/advisors can’t be used as evidence. ⬅️ I don’t see why this was done at all. Only recently we found a note by Halderman(?) that indicated Nixon had tt him about contacting N Vietnam about not doing a deal with LBJ. So what gives here? Can anyone explain?

Sure.

This is direct application of the law that currently applies to other immune acts, such as the immunity granted to Congresspersons for their speeches and votes. When a Congressbeing votes, that action is entirely immune from everything - it can't subject them to civil or criminal liability. The Constitution has allotted to the Congressperson the sole decision on how to cast their votes, and it cannot be controlled or directed or dictated by anyone else, through any means.

Because immunity is intended to give them the complete control over their votes - not the judiciary and not the executive - they are also protected from any efforts to indirectly use their vote against them (outside of normal political processes, natch). So it precludes judicial inquiry into the motives, reasoning, or basis for the Congressfolk's choice to cast their vote. That's discussed in lots of SCOTUS cases, such as US v. Brewster at the below link:

https://supreme.justia.com/cases/federal/us/408/50...

At its heart, the concept of immunity rests on the idea that the Constitution has established a final framework on who decides certain questions - and that this allocation of authority cannot be usurped by either of the other two branches. So the casting of a vote or the giving of a speech in the Congress is "protect[ed] against possible prosecution by an unfriendly executive and conviction by a hostile judiciary" by keeping those other two branches from questioning the motives or justification for such votes. Neither the Executive nor the Judiciary get to subject a Congressbeing's reason or motive for casting a vote to any test to assess whether it was the "wrong" reason or motive.

The majority applies the same thing to decisions that are wholly reserved to the Executive. For example, the Executive decides what cases are prioritized for prosecution. That's part of the executive power that the President and the President alone ultimately wields. Those aren't choices that Congress gets to make, or the Judiciary - they are put solely on the President's plate, just like the decision to cast (or not cast) a vote is solely on a Congresscritter's plate. So, like the decision on how to cast a vote, the decision-making behind those choices - the President's motives and reasoning - is off-limits for the purposes of establishing a sanction or punishment.

Well, if you guys have convictions behind what you assert here, then just have Biden order up Seal team 6 and assassinate Trump, or perhaps a showy drone strike on Mar-a-Lago, your call.

Problem solved, democracy saved, easy peasy. Go for it.

The problem with Sotomayor's and posters on this board fantasies is that...that's not happening.

Let's ask the Army's Delta Force:

https://www.washingtonexaminer.com/opinion/beltway...

Those who make it to the final stage of selection for the Army’s Delta Force special operations unit must pass a commander’s board interview. There, Delta’s commanding officer and other unit personnel barrage the candidate with various questions to test his intellect and character under pressure. I’ve been told by former Delta personnel and have read in at least one memoir that one frequent question is: “How would you respond to an order by the president of the United States to kill a political opponent?”

The obvious answer is That's an illegal order, sir.

Sotomayor was the most overturned circuit judge in the country when Obama put her on the Supreme Court for a reason. Not having a great understanding of the law was one.

Neither the Executive nor the Judiciary get to subject a Congressbeing's reason or motive for casting a vote to any test to assess whether it was the "wrong" reason or motive.

But we're not talking about votes here. We're talking about the motivation for a potentially criminal act. If you can't introduce evidence of mens rea, you can't prove a lot of criminal acts, particularly conspiracy, which often hinges on mens rea. A lot of potentially criminal acts by a president will be crimes of conspiracy.

Let's take a less crazy situation. You've got a presidential act that is clearly outside of the core constitutional duties. How about bestowing some presidential medal in exchange for a payment.** There's a presumption of immunity, but that presumption can be overcome. To overcome it, you probably need to prove there was a high likelihood of a criminal act with criminal intent. If you can't introduce evidence from the cabinet and other advisors, how can you overcome the presumption? There will be very little evidence outside of that group. I agree that once you overcome the assumption you can use the evidence to prove criminality. But you've got to get past the assumption first.

It just seems to me that while this presumption of immunity looks good on paper, once you remove the ability to introduce evidence from the president's advisors, you make overcoming the assumption virtually impossible. And that puts just about everything a president does above the law.

--Peter


**No, not even Trump is dumb enough to have the payment go directly to him, creating a paper trail outside of the White House. Make the payment a campaign donation. Or the rental of a suite in a hotel the president owns. Something like that. And yes, the one making the payment will absolutely stand on the 5th amendment, so you're not getting any information from him. (As well he should, because he's committing a criminal act, too, without the benefit of immunity.)

That makes perfect sense. And I see that the prosecution of bribery is seen as not necessitating inquiry into legislative acts or motivation.


2. The prosecution of appellee is not prohibited by the Speech or Debate Clause. Although that provision protects Members of Congress from inquiry into legislative acts or the motivation for performance of such acts, United States v. Johnson, 383 U. S. 169, 383 U. S. 185, it does not protect all conduct relating to the legislative process. Since, in this case, prosecution of the bribery charges does not necessitate inquiry into legislative acts or motivation, the District Court erred in holding that the Speech or Debate Clause required dismissal of the indictment. Pp. 408 U. S. 507-529.

The bribery itself is the motivation. But would an aid's or advisor's notes and testimony be able to be summoned by the DOJ in the case where a killing did take place, and there is testimony that the order came from the President or one of his aides? I would think at that point the immunity would not function. I realize it's a hypo, but what if that's the link you need to establish?

Let's take a less crazy situation. You've got a presidential act that is clearly outside of the core constitutional duties. How about bestowing some presidential medal in exchange for a payment.** There's a presumption of immunity, but that presumption can be overcome. To overcome it, you probably need to prove there was a high likelihood of a criminal act with criminal intent. If you can't introduce evidence from the cabinet and other advisors, how can you overcome the presumption? There will be very little evidence outside of that group. I agree that once you overcome the assumption you can use the evidence to prove criminality. But you've got to get past the assumption first.

I think that's exactly analogous to trying to convict a Congressbeing for casting a vote in exchange for a payment - at least in terms of the process for establishing the criminal case.

You're not going to introduce evidence to prove the official act is not subject to immunity. It almost certainly is. The President has been assigned the prerogative of bestowing Presidential medals, and that action is going to be immune. But while the official act is almost certainly subject to immunity, the receipt of payment in exchange for that official act is not. So the President can be indicted for accepting a bribe in exchange for an official immune act, just like Congresscritters are indicted (and convicted) for accepting bribes from time to time.

There are evidentiary hoops to bringing such a case, because immunity does limit some of the evidence that can be introduced at trial. This DOJ manual on bringing bribery charges against Congressfolk has a summary of what those are in the "Speech and Debate Clause" section:

https://www.justice.gov/archives/jm/criminal-resou...

But, again, those hurdles are not insurmountable. Congresspeople are indicted and prosecuted and convicted for bribery under these rules. We don't see a rash of classic "money in an envelope"-for-votes type bribery stemming from that immunity, in part because doing that type of overt bribery can land you in prison notwithstanding the S&D Clause.

Wow, this is one of the privileges of having Albaby on this site. I'm not sure I'd ever find this even with my best Goggle Fu. I could be at it for some time and get discouraged. But here it is, and Albaby knew it existed. I'm in awe. I was in awe at the discussion of asylees when the Geneva convention came up too.


When evidence embraced by this privilege is introduced--either in trial or in grand jury proceedings--the effect can be as troubling to the prosecution as introducing the fruits of an illegal search. See United States v. Durenburger, 1993 WL 738477 (D.Minn 1993); Helstoski, supra; compare Johnson.

In addition, both the House and the Senate consider that the Speech and Debate Clause gives them an institutional right to refuse requests for information that originate in the Executive or the Judicial Branches that concern the legislative process. Thus, most requests for information and testimony dealing with the legislative process must be presented to the Chamber affected, and that Chamber permitted to vote on whether or not to produce the information sought. This applies to grand jury subpoenas, and to requests that seek testimony as well as documents The customary practice when seeking information from the Legislative Branch which is not voluntarily forthcoming from a Senator or Member is to route the request through the Clerk of the House or the Secretary of the Senate. This process can be time-consuming. However, bona fide requests for information bearing on ongoing criminal inquiries have been rarely refused

The chamber votes on whether it is a bona fide inquiry and agrees to compel testimony and documents. A political process. And I would assume the DOJ would set up something similar for the President. The President has hiring and firing power over the DOJ, but I would assume that if he fired the person(s) who approved the summons, it would be viewed as a Saturday Night Massacre and impeachment might be in the offing. With the hold Trump has on MAGA +, I doubt if it would go through. It would be a spectacle though. (Please correct any misunderstandings I have.)

What a country! Well, here's hoping when Trump dies that the ability to get past all impeachments dies with him. I don't have faith in it though.

It's not privileged - that was shot down in U.S. v. Nixon. It's inarguable that it can be used in the criminal prosecution of everyone else involved in the murder conspiracy (none of whom have immunity), which means that it can be obtained by investigators. And nothing in the opinion says it can't be used in the judge's determination of whether or not the underlying acts are immune acts or not. In fact, the opinion specifically allows the government to rebut the presumption that the actions are not within the scope of immunity, which requires that the government be allowed to use the evidence to make that showing. The evidence can't be used at trial to support other charges, because that would erode the protections of immunity - but allowing it to be used to determine whether an action is or is not entitled to immunity doesn't implicate that concern.

Aaah, I missed this, this helps quite a bit.

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.

Albaby has essentially stated the same, but I still don't see the reason. Isn't one of the president's constitutional powers - and in fact a mandatory duty - to protect the U.S. from threats both foreign and domestic? If so, why can't Biden (or any other POTUS) simply claim that as the reason for assassinating (or jailing) anyone, including a former - and potentially future - threat to America?

Let me try and clarify. Hypo: The US has information that a suitcase sized large nuclear bomb is being carried by X to Chicago. Pres gives OK, and the person is killed while taking the suitcase, but the suitcase turns out to be a phony mock up. Does that fall within Presidential powers? I think so, and even if not so, I doubt it would be charged, but if it was, acquittal is in order.

Hypo #2: The Pres gives the order to take into custody in any manner a political opponent, with the reason being National Security. So secure even the reason(s) can't be disclose. We establish that the order goes up to a high officer who talked to the President just before giving the order. The opponent ends up comatose in the hospital. We can summons the officer to the President. The President will, using the cover that he's a national security advisor, claim immunity. This will most likely be decided by the DOJ, or by the courts, winding its way up. So it will take time, but if there is a statute it is most likely tolled by the decision making process. Politics can intervene and slow the process, and may kill it. Who knows? Elect Trump and we'll find out for sure. :)

Hypo #2: The Pres gives the order to take into custody in any manner a political opponent, with the reason being National Security. So secure even the reason(s) can't be disclose. We establish that the order goes up to a high officer who talked to the President just before giving the order. The opponent ends up comatose in the hospital.

Again, though, if you actually look at what this involves it's hard to see how there could possibly be both a crime and immunity.

Suppose the President "gives the order" to take someone into custody. The immediate next question is, "How can we get a warrant for their arrest?" Because under the U.S. Constitution, if the government is going to take someone into custody, they have to obtain a warrant to do so. And they can't get a warrant without probable cause. There are loads of specific exceptions (officer witnesses a felony, traffic stops, Terry stops, etc.) - but there isn't a generalized "National Security" exception. The Executive's authority to take into custody someone on U.S. soil is bound by the 4th Amendment.

So, assume the above hypothetical. The President has given the order to take a political opponent into custody.

If that order is given (and followed) through normal channels, then the FBI (or whomever, but it would probably be the FBI) will have obtained a warrant for the arrest - and will thus have needed to disclose sufficient reasons/evidence to the court to establish probable cause. If that's the case, then what crime has the President committed? Because the warrant was issued, we know that the President didn't just make up the National Security reason out of whole cloth, and the determination that the person should be detained was reviewed by the judiciary. It's hard to see how that's the basis for any criminal proceeding against the President.

What if the President orders the FBI to not obtain the warrant and just go ahead with the seizure without it? Then he's clearly engaged in an act that's not only outside his authority, but which he is directly prohibited from doing by the Constitution. He can't then claim immunity for that act, under the majority's reasoning.

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

But, again, those hurdles are not insurmountable. Congresspeople are indicted and prosecuted and convicted for bribery under these rules.

True. But most Members of Congress don't have the resources a President has to filter and hide information inside of their exempt bubble. A President filters the vast majority of his outside communications through his staff. That makes the connections much harder.

In the two recent cases against Menendez and Cuellar, the DOJ was able to get search warrants for their homes to generate admissible evidence. Good luck getting a search warrant for the White House, never mind the fact that the DOJ won't even begin an investigation until the president suspected of a crime is out of office.

Again, I agree that it all looks nice on paper. We'll have to see how it works out in practice as the NY fraud case wends its way through it's various appeals. I suspect we may get lucky, in that there is so much evidence available that is clearly outside of these protections that it won't matter.

But what about the Jan 6 case? That case depends more heavily on testimony from those inside the White House. Could Hatch Act violations pierce the wall of immunity - turning conversations between President and official staff into conversations between a candidate and his campaign staff?

--Peter

If that order is given (and followed) through normal channels, then the FBI (or whomever, but it would probably be the FBI) will have obtained a warrant for the arrest - and will thus have needed to disclose sufficient reasons/evidence to the court to establish probable cause. If that's the case, then what crime has the President committed? Because the warrant was issued, we know that the President didn't just make up the National Security reason out of whole cloth, and the determination that the person should be detained was reviewed by the judiciary. It's hard to see how that's the basis for any criminal proceeding against the President.

Aaah, I see my flaw. I was thinking the military were picking him up, but there is also a military due process that must be followed. That's where I err. I am going to assume that each court has a system where judges that have clearance for such issues review the evidence, and I definitely see your point.


What if the President orders the FBI to not obtain the warrant and just go ahead with the seizure without it? Then he's clearly engaged in an act that's not only outside his authority, but which he is directly prohibited from doing by the Constitution. He can't then claim immunity for that act, under the majority's reasoning.

Thanks for clarifying. It will now be clear for a while. If you ask me next month it will take a while before it pops back into my head, and my memory can be faulty. Age - sigh.

Follow and think the process.

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 prosecution 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).

So as Albaby Tells us, follow the process. For the DOJ or DOD there is a process whereby a judge reviews the warrant and evidence and approves it. This process can be reviewed by others, there is a process for that. But the presumption is going to be the evidence isn't false for the issuance. Later, whether the evidence was false is a good question for the review. (Remember FISA?)

So then you interview those that made the arrest. Were they told to not be nice and rough the fellow up? If you tell 8 people one of them will squeal, then hopefully, dominoes. But most likely no officer will tell them that, so there isn't anything to follow up on. But Epstein didn't commit suicide will go on forever. :)

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 prosecution 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).

Why would it prevent the information from being used in any criminal prosecution?

From the scenario you've described above, the order to undertake action Y (from context, that sounds like the order to take the person into custody) is a lawful exercise of the President's power. So the President is immune from being prosecuted for action Y, and action Y probably isn't a crime.

The crime would presumably be the President's order that the DOJ engage in physical violence against the person. We're right back to the "President orders an assassination" scenario again. And that order is certainly outside the President's lawful authority, and wouldn't be immune. That doesn't change because the President has also ordered action Y so that he can give the assassination order using hints and nudges or a reference to "getting rough" rather than calling out Seal Team 6.

These are all just orders to kill someone. Yes, the President can give that order using oblique or obfuscating language. But any judge who would avoid being fooled by that oblique language on a motion to dismiss the charges is also going to avoid being fooled on the motion to find that the assassination order wasn't an official act. Any judge you can convince that the President's statements are actually a crime is a judge you can convince the President's statements weren't immune, under the majority opinion.

True. But most Members of Congress don't have the resources a President has to filter and hide information inside of their exempt bubble. A President filters the vast majority of his outside communications through his staff. That makes the connections much harder.

Is that first claim true? Certainly they don't have the resources of a President, but all Members of Congress have non-trivial staff, and will conduct most of their outside communications through that staff. No Member is so deficient in staff that they wouldn't have the personnel to have all communications with a potential briber go through a staff person - though that seems to my mind to be the least likely scenario for how a bribe would go down.

In the two recent cases against Menendez and Cuellar, the DOJ was able to get search warrants for their homes to generate admissible evidence. Good luck getting a search warrant for the White House, never mind the fact that the DOJ won't even begin an investigation until the president suspected of a crime is out of office.

You'd never need a search warrant for the White House. As you note, the DOJ will not begin a criminal prosecution against a sitting President - we're only talking about criminal prosecutions against a former President. All documentation/evidence would be removed from the White House and would be in their private residence, just like the situation with Menendez and Cuellar. Or else it would be left behind in government records, in which case the DOJ wouldn't even need a warrant - they'd just ask the current custodian of the records to send them a copy.

But what about the Jan 6 case? That case depends more heavily on testimony from those inside the White House. Could Hatch Act violations pierce the wall of immunity - turning conversations between President and official staff into conversations between a candidate and his campaign staff?

Not sure how that would be necessary. Again, none of this is privilege, but immunity. If the act is immune, then it doesn't matter with whom the President had the conversation about the immune act - the conversation would not be admissible. To use the legislative example again, if Congressdude Jones has a conversation about his thoughts on an upcoming vote with his wife (or his uncle or his golfing buddy or whomever), those conversations can't be used as evidence against him in a criminal trial - because he's utterly immune from any sanction or punishment for casting his vote a certain way, which means that evidence about his motives or reasoning or thoughts about casting that vote is not admissible. It's not contingent on the conversation being an official act, but that his vote was an immune act.

If the act is immune, then it doesn't matter with whom the President had the conversation about the immune act - the conversation would not be admissible.

But I see the real possibility of a catch-22 problem. You suspect an illegal act is hiding as an immune act. Let's get closer to real life.

A president talks to his chief of staff. That is normally going to be about an immune act. But investigators think the conversation was about an illegal act. Perhaps they heard it from a secretary talking off the record. (Remember, conversations themselves can be illegal acts when part of a conspiracy. Yes, it takes more than just a conversation to have an illegal conspiracy, but conversing/colluding is one part of an illegal conspiracy.) If they ask the president or chief of staff to tell them about the conversation, they can say it's immune. Investigators need some proof that it is not immune to pierce that veil of immunity and actually talk to the people involved.

How are they going to get that evidence? So far, all of the discussion seems to be implying that investigators know the act is not immune. But how do they know that in a way the legally pierces the veil of immunity? How do they know that in a way that can be admitted in court?

--Peter

If they ask the president or chief of staff to tell them about the conversation, they can say it's immune. Investigators need some proof that it is not immune to pierce that veil of immunity and actually talk to the people involved.

How are they going to get that evidence? So far, all of the discussion seems to be implying that investigators know the act is not immune. But how do they know that in a way the legally pierces the veil of immunity? How do they know that in a way that can be admitted in court?

The same way they would in any other case. By subpoenaing the parties.

I think you're confusing the question of whether something is admissible with whether it is discoverable. Just because the conversation might be an official act which is immune from prosecution doesn't mean that investigators can't talk to the people involved.

Things that are privileged are exempt from investigation. If the President is speaking with his counsel, they can tell prosecutors to pound sand if they ask for the notes - because that information is privileged from discovery and investigation. But the fact that the conversation might be immune wouldn't allow them to shield the notes. The fact that such notes might be inadmissible as evidence in the criminal trial does not mean that they're privileged from being discovered by the prosecutors.

This is pretty clear from the majority opinion - specifically, their discussion of conversations between Trump and Pence. The Court noted that the VP is a high-ranking official in the Executive Branch, and that engaging in a discussion with the VP is very frequently an official act of the President. But the opinion specifically noted that the VP's role in certifying the election is not an executive function, and involves subject matter that the President has no role in at all - and so the prosecutors could establish that those conversations were not an official act of the President.

I think that a lot of the breathless hypotheticals are committing a category error. As the discussion of the VP makes clear, the level of inquiry for the immunity determination isn't undertaken at the most general level ("Is talking to the VP an official act of the President"), but rather at the specific level ("Is this specific conversation about this specific topic between the VP and President an official act"). So while it is certainly within the President's job description to generally "command the military," the level of review will be whether it is an official act of the President to "command the military to do _______________ specific thing." So the fact that the President's job involves commanding the military won't make it an official act if he commands the military to pick up Tiffany's dry cleaning or murder a political rival. The court is to look at the specific thing that the President is doing, not the general category of "talking to staff" or "commanding the military."

Let me try. :)

How do they even want to know about the conversation? There is a trail that leads to the Chief of Staff for an illegal act. It has to be more than a hunch, etc., and they have to put something on the warrant. I'm not sure they even have to put down a conversation might be with the President - perhaps later after Nation Security or Presidential Immunity is claimed. Then they reissue based on that info (I'm not sure what the process would be. So you nail down as much as you can on that path to the Chief of Staff so that it supports the high likelihood of an illegal act.

Then the Chief of Staff falls on the sword and exits stage left and supported by attorneys paid from the ongoing party grift. Delay, delay, delay.

Lay, lay , lay Oomdialay lay, Ooomdialay, laydelay.....

I think you're confusing the question of whether something is admissible with whether it is discoverable. Just because the conversation might be an official act which is immune from prosecution doesn't mean that investigators can't talk to the people involved.

That's the information I needed. Thank you.

Let me see if I understand, using your next paragraph.

If the President is speaking with his counsel, they can tell prosecutors to pound sand if they ask for the notes - because that information is privileged from discovery and investigation.

Right. Client-attorney privilege.

But the fact that the conversation might be immune wouldn't allow them to shield the notes.

So if Trump and Pence were talking, investigators could subpoena the notes and force their production. Upon examining the notes, the investigators might find evidence of a conspiracy, but because it's just talk about a potential crime and nothing more those notes would not be admissible. The most the investigators could do is use that information to look for other evidence that IS admissible. Is that right?

--Peter

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