No. of Recommendations: 1
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.
