Right on impeachment, but the latter requires a determination of what constitutes an official duty.
And who gets to decide that? How objective are they? What happens if the president commits such acts in rapid succession? How long will it take to address all of them? Will it overwhelm the system?
In theory there is a check on the abuse of the outcome of this ruling. In reality, however, there really isn’t. And the Republicans know it.
You are confusing “Official Duties” with “Official Acts”.
Oh, FFS, we’re still disagreeing on fundamental consequences? Basic information? This is exactly why I’m so confused!
So can active President Trump order the military to sell all its aircraft carriers and give the proceeds to him? Stand menacingly in front of all blue area polling stations? Fire nukes at California?
And none of this was possible before the ruling? Trump could have done none of it in 2019?
I mean, it certainly seems that way as of now, and I’d prefer not having to find out.
Fine, if you’re that sure, I invite you to say so on my Factual Questions thread and contradict Velocity, so I can demonstrate the source of my confusion and maybe get a goddamn straight answer.
I like the site, JustSecurity.org, a lot.
And – while this flowchart doesn’t (because it can’t. Nothing can) tell us which way the wind would blow in specific cases – it does give a sense of a few possibilities in light of the ruling.
But we all know that it’s nigh unto impossible to predict what a given SCOTUS will do in reference to a particular case on a given day.
Especially now.
It all reminds me of something I said a thousand times in my career in commercial real estate: a Lease doesn’t keep you out of Court. What it seeks to do is codify and establish the intent of the parties for if and when you do end up in Court.
Same, same. The particular facts of each case and how they relate to the newly-established law are basically infinitely variable.
ETA: here’s Asha Rangappa’s version of the same concept:
Watch the LegalEagle video. He spells out, as best as is currently possible, all of this basic information. He does this mostly using lines directly from the dissenting opinions to show that, for how awful this is, it’s not an exaggeration. This isn’t the internet over reacting. The actual supreme court justices used, amongst others, the Seal Team Six scenario as an example to explain to the American people what can happen now.
Seems like Velocity was saying that there isn’t an easy way to distinguish official from unofficial.
I think the hypotheticals involving ordering the military to do this and that are the most cut and dry that they are official.
A whole host of other stuff I think would wind up being unofficial but it would take a whole lot of time to clear a the hurdles shown in the above flowcharts in a prosecution.
BTW I think @DavidNRockies flowchart is more accurate – it’s (unfortunately) simpler to declare something official then unofficial. If you can’t easily pull out where the president is allowed to do something based on a constitutional power, then you go into the complicated part of the flowchart. There’s no way AIUI that at the start you can say “this is conclusively not official so we can simply try the president as a random citizen”. The start is “is this conclusively official”. If yes, you can’t do anything. If no, the prosecution has to make the case it’s not authorized by congress, it’s not somewhere close to something you might think is authorized by congress, it won’t impede the president’s ability to do anything else that is authorized by congress and it doesn’t rely on evidence taken from something authorized by congress. (The “complicated part” is a bit more complicated than this but that’s the simplest summary I can come up with.)
Not just simpler, but consider the litmus test they created for the middle column. Any attempted prosecution that would impede on the functioning of the executive branch is not permitted. It is hard to imagine any prosecution managing to overcome that hurdle since a prosecution by its very nature will cause a future president to be concerned over a possible prosecution. SCOTUS has managed to give the president immunity with enough weaseling that they can say “No, we didn’t… see he can be prosecuted for unofficial acts”. It just so happens that almost nothing is an unofficial act.
It is going to be interesting seeing Trump test these waters to see where this SCOTUS is going to draw the line. I think J6 get tossed almost for sure. Papers … probably. Hush money … unlikely but possible (they might find some BS reason like “he signed the checks while in office”). If the hush money gets thrown out, then I think it is safe to say that former presidents are immune from prosecution.
And a big part of this is you cannot question the president’s motives. A future president can come onto national TV and say “I’m going to kill anybody that runs against me solely for my own desire to stay in power.” He can then kill his political rivals. Perfectly fine according to SCOTUS.
If they had allowed the motives to be examined, then the ruling would still be awful but not nearly as bad.
This is the part that really kills me - if you can’t even begin to question motives, how can you make a case about anything? The election interference case is probably the best example, because it really happened. Trump says he was “defending the integrity of the election”, while everyone else says he was a sore loser. If we’re not even allowed to examine his claim of defending the integrity of the election, how could you ever stop him from just stealing an election?
I think if the methods Trump uses to overturn an election are found to be unofficial acts, then motive can be used. It’s just that motive can’t be used to figure out if the methods are official acts or not.
So it’d essentially be on the prosecution to separately prove that the acts aren’t presidential powers and were just things Trump was doing, and then prove (including using motive) that they were an illegal power grab.
Presumably (and I am not a lawyer) all a Trump lawyer needs to do is say “Your honor, imagine a scenario where some future election is being stolen and executive branch needs to work to defend the integrity of the election. If you prosecute my client, then the ability of the future executive branch will be impeded. The SCOTUS ruling says that any prosecution leading to any danger to impeding the function of the executive must be denied. The former president must be given presumptive immunity.”
That presumptive immunity is going to almost impossible to overcome because almost any BS reason can be provided, and since you cannot use the actual motive (Trump just wanted to illegally stay in power), then … what can you do?
Yes, we would have to hope that there are some reasonable limits on what could be argued to be intruding on presidential authority. Currently I don’t think there is a standard but if it’s that extreme then the president effectively has immunity for anything.
You would think so, but this ruling did not specify any and seems to state there are none. They base it on a single line from The Federalist 70 that states an enfeebled executive is bad for the nation. And that’s probably true, but this SCOTUS has determined this means that any enfeeblement of the executive is bad for the nation, and that’s certainly not true.
I predict that in time this ruling gets overturned. I agree with Legal Eagle that it is one of the worst rulings by any SCOTUS ever. But that’s probably 10-30 years away. In the meantime, Americans need to hope that no corrupt president gets elected to office. I have my doubts that any president will outright murder anybody (even though it seems they could), as there is still the risk that SCOTUS decides “Nyah, that’s too far, bruh” but the amount of corruption that would probably still pass is potentially catastrophic.
This ruling is so bad, that if the Democrats get to the point of controlling the levers of power sufficiently, they should immediately expand the court, put in some more sensible justices, and have the president bring a case before them asking “Do I really have this level of immunity?” And they can reverse the decision: “No, are you out of your mind! What kind of idiot would give the president that level of immunity?”
The first part is true, but the second part is not.
Why do you think this? Commanding the military is part of the “core official acts” for which the president now enjoys absolute immunity from prosecution. Indeed, a prosecutor may now not even inquire into the president’s motives to investigate these acts.
A hypothetical president could say (not that they would be obligated to say anything in the first place) that their political opponent was a terrorist and needed to be eliminated. Who in the legal system can now rebut that?
Justice Sotomayor disagrees.
True in that the decision said it is reviewable by the courts, but with all of the other caveats in the decision, good luck actually getting it reviewed in any kind of reasonable way.
Isn’t assassinating people without trial an explicit power the president has from all the War-on-Terror legislation? Seems like one of the more cut-and-dry cases where the president would be immune.
We of course should never have given the president that power or normalized it for decades but legally it seems like there could basically be no challenge.