The Supreme Court weighed in this week. This might affect future Presidents and their unlikely hypotheticals.
But whatever they decided, that wasn’t the law on January 6, 2020.
Under what conditions are courts permitted to modify laws which apply to a past action but were not in force at that time? I thought that was generally unconstitutional?
A Supreme Court ruling is retroactive. It means whatever happened in the past also is under the umbrella of that ruling. It’s not the same as ex post facto justice.
For instance, if the Supreme Court rules that the government never had authority to ban drugs at all, then everyone who was ever convicted of a drug offense is now retroactively innocent, in a sense.
But that’s not the same as if a law was passed in 2020 banning psilocybin (say it was legal up until then) and now everyone who had legally used psilocybin before 2020 is now able to be prosecuted.
What’s generally unconstitutional is passing a law criminalizing conduct that was legal when it was done. This is sort of the reverse , but not exactly.
Trump v. United States, 603 U.S. ______ (2024).
~Max
Best. Case Name. Ever.
If you are referring to the ex post facto doctrine, strictly speaking the prohibitions in Article I ss. 9-10 apply to Congress and the States respectively, not the Supreme Court. But generally speaking (i.e. due process) the doctrine only prohibits retroactive laws that operate against a criminal defendant. See Calder v. Bull, 3 U.S. 386 (1798) (state law requiring retrial of probate case not violative of Art. I s. 10). In the facts of the Trump case, holding that the defendant may be entitled to immunity operates to the defendant’s advantage, therefore ex post facto doctrine is not implicated. Compare, amnesties.
~Max
Am I understanding you correctly? You say that the Supreme Court can do what they want in this regard because the prohibitions probably don’t apply to them. But if the Supremes decide to let lower courts determine a matter, the prohibition applies, but only if the prosecution benefits from the retroactivity and the defendant does not. Is that right, at least most of the time?
(not a lawyer)
Well, not exactly. The courts are required by the 5th Amendment to provide due process of law which is generally interpreted as a catch-all for having a fair legal process, and I think the prohibition of ex post facto laws falls under that category. So even though the text explicitly prohibits Congress and the States, and not the Supreme Court, really it applies to everyone.
I can’t think of a relevant distinction between Supreme Court and lower courts for ex post facto purposes.
This part, in isolation, is my understanding. I recommend reading that Calder v. Bull case, the justices really explain it better than I ever could.
ETA:
The prohibition against its making any ex post facto laws was introduced for greater caution, and very probably arose from the knowledge that the Parliament of Great Britain claimed and exercised a power to pass such laws under the denomination of bills of attainder or bills of pains and penalties, the first inflicting capital and the other less punishment. These acts were legislative judgments and an exercise of judicial power. Sometimes they respected the crime by declaring acts to be treason which were not treason when committed; at other times they violated the rules of evidence (to supply a deficiency of legal proof) by admitting one witness when the existing law required two, by receiving evidence without oath or the oath of the wife against the husband, or other testimony which the courts of justice would not admit; at other times they inflicted punishments where the party was not by law liable to any punishment, and in other cases they inflicted greater punishment than the law annexed to the offense. The ground for the exercise of such legislative power was this, that the safety of the kingdom depended on the death or other punishment of the offender, as if traitors, when discovered, could be so formidable or the government so insecure! With very few exceptions, the advocates of such laws were stimulated by ambition or personal resentment and vindictive malice. To prevent such and similar, acts of violence and injustice, I believe, the federal and state legislatures were prohibited from passing any bill of attainder or any ex post facto law.
[…]
I shall endeavor to show what law is to be considered an ex post facto law within the words and meaning of the prohibition in the federal Constitution. The prohibition “that no state shall pass any ex post facto law” necessarily requires some explanation, for naked and without explanation it is unintelligible and means nothing. Literally, it is only that a law shall not be passed concerning and after the fact or thing done or action committed. I would ask, what fact, of what nature, or kind, and by whom done? That Charles I, King of England, was beheaded, that Oliver Cromwell was Protector of England, that Louis XVI, late King of France, was guillotined, are all facts that have happened, but it would be nonsense to suppose that the states were prohibited from making any law after either of these events and with reference thereto. The prohibition in the letter is not to pass any law concerning and after the fact, but the plain and obvious meaning and intention of the prohibition is this – that the legislatures of the several states shall not pass laws after a fact done by a subject or citizen which shall have relation to such fact and shall punish him for having done it. The prohibition, considered in this light, is an additional bulwark in favor of the personal security of the subject, to protect his person from punishment by legislative acts having a retrospective operation. I do not think it was inserted to secure the citizen in his private rights of either property or contracts. The prohibitions not to make anything but gold and silver coin a tender in payment of debts and not to pass any law impairing the obligation of contracts were inserted to secure private rights, but the restriction not to pass any ex post facto law was to secure the person of the subject from injury or punishment in consequence of such law. If the prohibition against making ex post facto laws was intended to secure personal rights from being affected, or injured by such laws, and the prohibition is sufficiently extensive for that object, the other restraints I have enumerated were unnecessary, and therefore improper, for both of them are retrospective.I will state what laws I consider ex post facto laws within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law and which was innocent when done, criminal and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the offender.Page 3 U. S. 391All these and similar laws are manifestly unjust and oppressive. In my opinion, the true distinction is between ex post facto laws and retrospective laws. Every ex post facto law must necessarily be retrospective, but every retrospective law is not an ex post facto law. The former only are prohibited. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive, and it is a good general rule that a law should have no retrospect; but there are cases in which laws may justly, and for the benefit of the community and also of individuals, relate to a time antecedent to their commencement, as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigor of the criminal law, but only those that create or aggravate the crime or increase the punishment or change the rules of evidence for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time or to save time from the statute of limitations or to excuse acts which were unlawful, and before committed, and the like, is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime. The expressions “ex post facto laws” are technical; they had been in use long before the Revolution, and had acquired an appropriate meaning, by legislators, lawyers, and authors.The celebrated and judicious Sir William Blackstone, in his commentaries, considers an ex post facto law precisely in the same light I have done. His opinion is confirmed by his successor, Mr. Wooddeson, and by the author of the Federalist, who I esteem superior to both for his extensive and accurate knowledge of the true principles of government.I also rely greatly on the definition, or explanation of ex post facto laws as given by the Conventions of Massachusetts, Maryland, and North Carolina in their several constitutions or forms of government.
~Max
Thanks, that clarifies things. With regard to Trump, however, maybe the difference is smaller than it appears. No doubt the media and constitutional scholars they quote have their own worldview. But perhaps the Supreme Court has lost their way. They sometimes seem so eager to spitball how the Founding Fathers might have felt about an issue. Yet in this case when their words and spirit seem fairly clear they take a different route.
Well, I haven’t had a chance to read the entire decision yet but it may not be as clear-cut as it seems. The lower courts did not rule on whether or not the indictment charges defendant for official acts of office, so I’m thinking that question wasn’t before the court. This is before the trial phase so the case record isn’t developed.
It’s like they’re laying down the general rules before they start playing the game. The general rule has to cover Trump’s actions but it also has to cover a future President who orders a drone strike that ends up killing a U.S. citizen. What is the general rule that tells us whether Trump may be prosecuted for interfering in an election, and whether future President may be prosecuted for manslaughter?
~Max
Intent.
(If you go chasing rabbits, just ask add mAlice.)
I would prefer United States v. Trump
Hypothetical future president admits to intentionally ordering a drone strike with knowledge that victims were within the target area and would be killed, however he argues he is immune from prosecution for manslaughter because he was acting in official capacity as commander in chief during a military operation.
Mr. Trump admits to intentionally directing subordinates to take certain actions with knowledge that such actions affected the electoral process, however he argues he is immune from prosecution for election interference because he was acting in official capacity as chief executive in upholding federal election law.
In both cases, the presidents fail the intent test. Do you suggest an alternative?
~Max
War is hell. This passes. Bystanders get killed all the time.
This does not pass as Trump was trying to overturn a free and fair election for his own gain.
Can you reduce that to a general rule?
~Max