Absolute Immunity

I was able to listen to some of the proceedings yesterday at work.

Trump’s lawyer sure seemed to be arguing for absolute and total immunity.

The court itself, though seemed to be discussing whether or not the PotUS should have some shielding for position-related decisions, which is a lot different. Also whether there were some very, very limited types of decisions (such as power to pardon) that entirely the President’s for which he or she would have some sort of immunity and the constitutional justifications for that. There some of the arguments were definitely out of my league reading knowledge of law, which I suppose is hardly a shock since I’m not a lawyer and they’re the Supreme Court.

I gather they took the case in part to make it absolutely clear going forward what the limits of power are on the President so we don’t have to deal with some of the crap we’ve been dealing with for a few years now.

Also:

Keep in mind there are 9 justices - different justices could have different motives for wanting to hear this case.

Yep, most of what I heard from the Supremes seemed to be arguing that the events of Jan 6 were related to campaigning (Trump as a candidate) rather than any sort of Presidential duty.

^ This.

Yes, yes it was. Granted Kagan engaged in a series of questions to put Trump’s lawyer into a position where he had to answer that question and thus lay his cards on the table.

That is the elephant in the room.

If the President has full criminal immunity then democracy ends with the first despot elected to that office.

This is how a democracy can end and a dictator/president for life comes to power.

No, it’s not “asinine” if your end goal is for your party/your side/your boss/your friends to get into a position of power and stay there forever. There are actual people in this world who think that the Republican party should be in power forever, anyone else is a traitor, and they’d gladly follow the party leader into a fascist totalitarian state thinking that, being part of the “correct” party, they’d gain from such a thing.

The flaw in the ointment, of course, is that that only a very, very few people will ever be near any sort of power and anyone not toeing the line will be smacked down hard.

At this point that’s sort of what I’m hoping for because I don’t think we’ll get a 9-0 decision on any of this and I’m not sure where the final verdict will land, just that it won’t be at either extreme of “no immunity” or “full immunity”.

Promises to provide yet another opportunity to marvel at the intellectual rigor of the originalists/strict constructionists! :roll_eyes:

My takeaway was Alito wailing and gnashing his teeth over some hypothetical future president prosecuting a former president. I wish the prosecutor’s lawyer would have said “the solution is quite simple. The president appoints an independent counsel to take politics out of the equation, just as Biden has done in this case.”

Second takeaway- has Sauer been smoking ten packs of cigarettes a day since he was 3 years old?

It seems to me that what will happen is that presidential immunity for official acts will remain while there is no immunity for private acts and the lower courts will have to determine whether the acts in question are official or private.

I read in a WaPo article this morning that one of trump’s lawyers actually put forth the notion that there was a question

…whether the criminal laws under which Trump has been charged can constitutionally be used to prosecute a president if the statutes don’t state explicitly that they apply to the president.

Huh? Now laws don’t apply to people unless they specifically mention the person’s name, or job, or something? It’s all ridiculous, but this is next level ridiculous.

I agree.

I’m not arguing for immunity. I’m trying to understand on what basis does Trump’s lawyers think the president has criminal immunity?

Why just the president? Why not the vice president or cabinet?

Sorry I’m not sure I follow.

Yes, I think the justice questioning that lawyer said something along the lines of “wait, you’re saying that every law would have to be rewritten to say that the president is included?” I missed most of that exchange, so I could have that wrong.

The basis is, “If he doesn’t have it, he’s fucked”. That’s about it. You won’t find a legal basis. If there was a legal basis, we’d have heard about it by now. There’s a reason all they’re talking about are hypothetical, “Oh, but what if someone were corrupt enough to weaponize criminal charges?!?” It’s because they have nothing else.

The reason we have to answer the simple questions like “Why civil immunity and not criminal?” is that some of these SC justices have shown that they’ll ignore such simple answers in order to make the partisan rulings they want to make. Remember this bit?:

In a three-page dissent joined by Thomas and Gorsuch, Kavanaugh argued that the restrictions on attendance imposed on the church do violate the Constitution. In his view, the businesses that are not subject to the restrictions – which, he noted, include malls, pet groomers, hair salons and marijuana dispensaries – are comparable to gatherings at houses of worship, and California has not shown a good reason for treating houses of worship differently.

They wanted to rule in favor of the churches, and they completely punted on the question of, “Are the churches the same or different from the other businesses that were open?”

The state has limited the size of similar, non-religious gatherings like plays, concerts and sporting events. Although the state treats activities like grocery stores and banks differently, Roberts continued, those activities are in fact different, because they do not involve large groups of people coming together in close proximity for extended periods of time.

People like that have to have their feet held to the fire.

The government didn’t press hard enough from the beginning to characterize this case as speculative. There’s no basis for absolute presidential immunity from criminal activity outside his powers as president. The possibility of a president violating the law as a result of use of legitimate presidential power are handled through the impeachment clause of the constitution, that’s what high crimes and misdemeanors are. The former president hasn’t been charged with any such acts. The question before the court was simple, is the president immune from criminal prosecution for an action any citizen could have taken. It doesn’t matter if it’s threats and violence are involved, any citizen can commit election fraud or shoot someone in the head on 5th avenue. SCOTUS has no basis to even consider this based on hypothetical circumstances which have not arisen.

Of course some of them clearly have something else in mind. Federal prosecution is now no longer going to occur before the election. Thanks Merrick Garland.

I am wondering why Biden could not weigh in with the Supreme Court on this issue since he has standing due to the implications of their decision.

Folk in the Scalia mold like to proclaim all about their intellectual purity and how they are simply following the words of the founders when they are deciding against certain interests, yet they make up whatever they want when they desire to reach a certain outcome.

So, women want control over their bodies? Sorry, the white male landowners/slaveholders 250 years ago did not specifically provide for that and Congress has not specifically protected it (in a manner that withstood judicial review). But if we want to decide our buddy has carte blanche to act illegally without repercussions, we won’t be troubled with worrying about specific intent.

Because it’s pretty much lose-lose for him, as well as actually being kind of a huge conflict of interest.

If he comes out against immunity, he’ll be accused of wanting to continue persecuting Trump. If he comes out for immunity, he’ll be accused of wanting to become a tyrant, and cover his own ass for all his “crimes”.

And really, he wouldn’t have that much of an impact, I would think. The current SC doesn’t seem to give a crap what Biden thinks about anything, so he’d be putting himself in the line of fire for nothing. Better to let them rule as they will, and then campaign on that ruling.

Campaigning? For an election that took place two months previously?

Once again, all I can muster is What the actual fuck?

I think the notion is that because it was connected to an election it could be called “campaign” related rather than “official presidential duty”.

As I am no legal expert and the discussion was getting pretty deep into legal minutiae I am probably not expressing it well.

The idea ( and I sort of do agree with it ) is not that the election didn’t already happen , or that he hadn’t lost but that whatever Trump did as on Jan 6 was as the losing candidate rather than as the president. IOW, he should be treated the same as Hilary Clinton would have been if she done the same things on Jan 6, 2017

That make sense, basically it keeps him out of mud wrestling with the pigs.

Thanks. The argument is so specious I thought there had to be more to it than that. I would have liked to see more questions from SCOTUS on merits of the argument rather than the implementation of it, but maybe those quotes weren’t interesting enough to make it to the news articles.

Agreed, but at least they dug up a quote from Benjamin Franklin at the constitutional convention.

Both these thoughts get at what I said upthread about fairness. In a perfect world, the two presidential candidates get the exact same advantages and disadvantages, even if one of them happens to be the sitting POTUS. In reality, the current POTUS has the obvious advantages of being the POTUS – the bully pulpit, the ability to shape policy, etc. And it can be hard to separate their actions into “official duties” and “campaign activities.”

But two ideas seem damn clear to me:

  1. Anything the POTUS does as a campaigner should enjoy no greater legal protections than what the challenger does as campaign activity.
  2. If the challenger would have been prosecuted for crimes committed as a campaigner, the POTUS should be vulnerable to the same prosecution for the same crimes.

If Trump had won the election and Biden had conspired to submit false elector slates and raise a mob to storm the capital, he’d already be in prison. Trump shouldn’t have immunity from being prosecuted for doing the same just because he happened to be POTUS.

As has been pointed out already, even if SCOTUS rules that the president has absolute immunity, it almost certainly won’t rule that the people underneath the president, who are carrying out the president’s orders, will have immunity - which will pretty much neutralize the president’s power and make it more theoretical than practical.

The president can order a rival assassinated, but if the assassins know they will face prosecution and have no immunity, they would be reluctant to do so.

As someone cracked up thread, “I beg your pardon.”