btw - this thread is hilarious, thank you thank you thank you

If a president took a bribe for a position, prosecute him for taking a bribe (if it's not a gratuity, because Congress has declared tipping politicians legal.) But if he could have made the same decision because he liked someone's tie - it's nothing but second guessing, by a likely hostile later administration.

These people appoint all their campaign staff and big donors to government jobs. If that's legal, then any reason for anything they do which is left up to their discretion is legal. If it's not legal, have Congress make it not legal.

-----

edit: gaganyaan, you are wrong. If you think that the entire point is that a president cannot be prosecuted for taking a bribe, you should reevaluate your understanding of the entire point.

> Under Monday’s decision, a former president could be prosecuted for accepting a bribe, but prosecutors could not mention the official act, the appointment, in their case.

> Justice Amy Coney Barrett, who joined the rest of Roberts’ opinion, parted company on this point. “The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable,” Barrett wrote.

There have been multiple awful titles of for this ruling, yours was exactly correct.

During tenure, he can only be impeached for anti-constitutional acts, and the only punishment if found guilty is removal from office.

All in all, it sounds quite similar to this SCOTUS ruling, but of course, the consequences for the world are mitigated by the fact that globally, our president is a very, very small player.

In all our legislative executive and judicial war, there seems to be less and less reason for restraint, for avoiding constitutional crisis, and to grab power by whatever means so that the other side does not. This ruling by the Supreme Court, as many people are commenting on social media, creating Powers Biden too, and there seems little reason not for Biden to pack the court, for the Senate to go to majority rule and rid themselves of the filibuster.

If we keep pushing the boundaries we will fall, or we will reconfigure.

  Judgment in Cases of Impeachment shall not extend further than to removal from Office,

  [...]

  The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

This:

  "Impeachment for, and Conviction of"

  "Impeachment for and Conviction of"

  "Judgement in cases of Impeachment"

  "Conviction in cases of Impeachment"

Such would imply that presidents can be Impeached and Judged, and Convicted.

(Furthermore, it clear that the founders' intent was not to create an immune King.)

Impeachment process takes time, and in that window, the president can do whatever. POTUS can even mobilize the army (an official power) to block congress from meeting, since apparently the motive behind the use of official power doesn't matter. If they can't meet, how are they going to impeach.

The problem is what will democratic presidents do with this fundamental alteration of the three “equal” branches that now leaves Congress as the weakest link.

What will republican presidents do?

And of course, what would Trump do?

I think front and center is Stephen Miller’s desire to reverse that future demographic by either incarcerating or deporting anyone that isn’t white or even sympathetic to a white nationalist movement.

This is real people. And very frightening.

I find it particularly concerning regarding the military. The President is Commander in Chief, and thus any orders he gives or attempts to give to the military would be undeniably official acts. This was even brought up in oral arguments, where it was asked of Trump's council "if the President ordered Seal Team 6 to assassinate a political rival, would that be considered an official act?" I find it absolutely terrifying that this possibility was brought up, and any mention of the military is conspicuously absent from the majority decision, even in passing (though Sotomayor explicitly brings it up in her dissent).

The most concerning part is how this decision is being made entirely on constitutional grounds. At least in the case of Rowe v Wade being overturned, we have the possible remedy of Congress passing a law enshrining the right to an abortion. But here, there is no legislation Congress could pass to create criminal liability for the President, no executive action. The only option would be a constitutional amendment.

(I'd like to think that there's no way it's an "official act" of a president, but again, IANAL.)

Until the system can be reformed to deter and slow such radical acts, there would be no hope of stability of the United States.

My out-of-my-ass fix is that each Justice is on an 18-year term. Every two years one Justice is replaced. Two per Presidential term.

Makes it legitimately fair. Elect a President, get two Justices. None of this "one corrupt game-show host accidentally gets to appoint half the Court" horseshit.

  > The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

  > A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. ... But it is not possible to give to each department an equal power of self-defense. ...The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. 

I think not enough people have read the Federalist papers. They are an important context to why the US was founded and what problems it was trying to solve. Littered throughout them are discussions of how power creeps and how functions couple. How government can do great good but at the same time great harm. They reiterate the notion that liberty is hard work and many of the writers fear things like parties as they are not only concentrations of power but umbrellas to remove thinking. You can see them wrestle with ideas and that they know they aren't getting them right, but instead try to set a framework that can course correct to adapt to the unknown unknowns.

But however you read them, I think you can and will read that such a conclusion is precisely the thing they were trying to stop. There is no ambiguity in this. They were fighting against monarchs who have written into the law that they are above the law. At least as it pertains to others. And so that's what that phrase means "no one is above the law" that not so literally (because making a law that makes special cases for you would not technically make you "above" the law, but part of it), but rather that the laws apply equally to all peoples and entities. That there are no special cases because there are no "to big to fail" and "too important to prosecute". Because the belief is that if it is wrong for one man to commit an act, then it is wrong for any man to commit such an act.

[0] Federalist 51: https://avalon.law.yale.edu/18th_century/fed51.asp

- Actions within the President's conclusive and preclusive constitutional authority: Absolute immunity, in accordance with constitutional separation of powers.

- Other actions done within an official capacity: Presumptive (though not full) immunity, to "to safe-guard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution."

- Unofficial actions: No immunity.

Who is the arbiter of whether an action is official or unofficial? The courts, according to the ruling: "The Court accordingly remands to the District Court to determine in the first instance whether Trump’s conduct in this area qualifies as official or unofficial." In this case, a very liberal judge appointed by Obama.

One may disagree with the ruling, but it does not, as Sotomayor (who recently has been making more public and political appearances than is appropriate for someone of her position [2]) states, give the president the ability to drone strike his political opponent.

[1] https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

[2] https://www.cnn.com/2024/05/24/politics/sotomayor-crying-sup...

> Unable to muster any meaningful textual or historical support, the principal dissent suggests that there is an “established understanding” that “former Presidents are answerable to the criminal law for their official acts.” Post, at 9. Conspicuously absent is mention of the fact that since the founding, no President has ever faced criminal charges—let alone for his conduct in office. And accordingly no court has ever been faced with the question of a President’s immunity from prosecution. All that our Nation’s practice establishes on the subject is silence.

Literally on the next page, here's Roberts arguing that though something has never happened (criminal prosecution of a former president) it is very likely to happen:

> The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next. For instance, Section 371—which has been charged in this case—is a broadly worded criminal statute that can cover “ ‘any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.’ ” United States v. Johnson, 383 U. S. 169, 172 (1966) (quoting Haas v. Henkel, 216 U. S. 462, 479 (1910)). Virtually every President is criticized for insufficiently enforcing some aspect of federal law (such as drug, gun, immigration, or environmental laws). An enterprising prosecutor in a new administration may assert that a previous President violated that broad statute. Without immunity, such types of prosecutions of ex-Presidents could quickly become routine. The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid.

Just like, full on embarrassing. These guys need better clerks or something.

In the worst case they might have to resign before being impeached but at that point they are permanently immune.

Germany 1933.

I think you should get out more. There is nothing exceptional about HN other than there's a lot less eyes on it.

So the President's job is to faithfully execute the law, but he is allowed to break the law while he's executing the law? C'mon.

But practically they've made the President a dictator, so yeah who's going to stop him if he wins.

There’s definitely nothing legally stopping the president from doing this. This was the Saturday Night Massacre.

The only thing that can stop this is public perception and the threat of impeachment then removal by the Senate.

The movie “Vice” explains well what this is about.

It’s was originally imploded by President George W Bush.

https://youtu.be/_UPvTdDB-h0

—-

SCOTUS essentially ruled in favor of this theory.

Well yes. And since the Supreme Court just clarified the law... Isn't THIS White House the first that might use what was until now a misunderstanding?

It all falls apart and gets too complicated to regulate when the assumption is that you can't trust the person in office.

- https://www.lawandchaospod.com/p/ep-43-well-so-much-for-the-...

- (non-paywall link) https://podcasts.apple.com/us/podcast/ep-43-well-so-much-for...

Hoboy, I hope there's not another round of Trump...

No one and nothing should be above the law, even temporarily, period. That just opens up so many cans of worms.

Is it even possible for the President to break the law? What would that look like?

A president's internal planning and discussions with his team are are at least granted "presumed" immunity unless the prosecutor can establish that the act in question fell outside of the office. So for the President pressuring Pence to uncertify the election results, prosecutors would need to make a case that it was outside of his power to do so - the reasoning behind it is largely irrelevant.

When it comes to interactions with external groups - be it local election officials or even the press/media - prosecutors need to establish whether the president was acting on an official basis or an unofficial basis. (And they are clear that the president acting on behalf of his party or his campaign would be unofficial).

> "The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts."

My reading of the decision is that of the four counts against Trump, three can proceed so long as prosecutors can make a case the actions were not official acts.

Starting on page 44 of the opinion, Thomas makes some very good points.

    I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure. If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President. 
    
    No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country. And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes. If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.
    
    ...
    
    Even if the Special Counsel has a valid office, questions remain as to whether the Attorney General filled that office in compliance with the Appointments Clause. For example, it must be determined whether the Special Counsel is a principal or inferior officer. If the former, his appointment is invalid because the Special Counsel was not nominated by the President and confirmed by the Senate, as principal officers must be. Art. II, §2, cl. 2. Even if he is an inferior officer, the Attorney General could appoint him without Presidential nomination and senatorial confirmation only if “Congress . . . by law vest[ed] the Appointment” in the Attorney General as a “Hea[d] of Department.” Ibid. So, the Special Counsel’s appointment is invalid unless a statute created the Special Counsel’s office and gave the Attorney General the power to fill it “by Law.” 
    
    Whether the Special Counsel’s office was “established by Law” is not a trifling technicality. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office. Given that the Special Counsel purports to wield the Executive Branch’s power to prosecute, the consequences are weighty. Our Constitution’s separation of powers, including its separation of the powers to create and filled offices, is “the absolutely central guarantee of a just Government” and the liberty that it secures for us all. Morrison, 487 U. S., at 697 (Scalia, J., dissenting). There is no prosecution that can justify imperiling it.

The same actions committed by two different presidents could vary hugely in their motive - one might be legitimately concerned about voter fraud and the other trying to interfere maliciously with election results.

Admittedly the bar would be high to prove malicious intent (eg. acting out of self interest rather than in the interests of the office/country) but that still seems better than just saying that a given action, regardless of motive, is covered by immunity.

I would consider this an extreme knee jerk take, but it's Sotomayor saying it.

https://x.com/mikedebonis/status/1807787300375445993

https://www.washingtonpost.com/politics/2023/05/17/giuliani-...

That's what I said, in different words.

And the last failsafe the founders intended was the populace. Officials found breaking the law or be otherwise unfit of office were supposed to be at the very least not reelected by the populace - and yet, Arpaio was reelected for 24 years in a row, Biden was elected (he was better than Trump, but that doesn't mean someone of his age should have been president!), and Trump will most likely be reelected. The voters share a huge part of the blame.

[1] https://www.theguardian.com/us-news/2017/jul/31/joe-arpaio-c...

This is what lifetime appointments were intended to address. There's no incentive to rule in the president's favor. Of course, now there's the prospect of gratuity for services rendered.

Look, the president can't do something like start a war without permission from congress. Congress basically delegated that authority to the president. If the president then uses it irresponsibly (as has happened numerous times since congress made this decision) then that's the fault of congress. They can very easily pass legislation requiring a declaration of war and take that power back if they want to.

Is it permissible to disobey an order that you merely believe is unconstitutional? What happens when your superior asserts that it is constitutional?

They’ve also made much of the fact that the presidential authority to pardon is constitutionally unreviewable, so even if the president orders someone to commit a crime, he can pardon them preemptively. His appointment power is similarly in the constitution, so he can also fire and replace them until he finds someone willing to do it.

Are we really left with ‘if the president were to issue illegal orders to his staff, Congress would definitely impeach him’?

For the Nixon tapes, today's SCOTUS ruling would require the prosecution to convince a federal judge before trial that the value of the tapes in the criminal case greatly outweighs the general immunity from oversight presidents have when consulting advisors. Difficult, but not impossible. It probably would've given the same result in the Nixon case, because Nixon didn't use presidential powers to carry out the plan (just the cover up in the Saturday Night Massacre stage). If he had used an active FBI agent instead of a former one to place the bugs, then it might have been OK, according to today's ruling (see III.B.1 which grants immunity to Trump for his sham investigations using the DOJ).

>What official capacity would a seal team six assassination of trump be designated as?

The President is the head of the military and can direct them without consulting Congress. Congress is free to impeach him if he does so without authorization, but he'd have absolute immunity because this is a core power of the office.

Maybe you meant, "What reason could there be to justify that killing in the name of the nation or its people?" In which case, the President would never have to say. His motives are not even allowed to be investigated. See III.A from the majority opinion:

>In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of of- ficial conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II in- terests that immunity seeks to protect.

yeah it seems like a traditional FUD strategy, i would expect Supreme Court justices to be more analytical and sober than that.

Motive can be used to defeat the presumptive immunity for an official act.

[0] https://news.ycombinator.com/item?id=40849378

> The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next. ... Virtually every President is criticized for insufficiently enforcing some aspect of federal law (such as drug, gun, immigration, or environmental laws). An enterprising prosecutor in a new administration may assert that a previous President violated that broad statute. Without immunity, such types of prosecutions of ex-Presidents could quickly become routine.

Their argument isn't that it's not likely, it's that there's another failure mode that is even more likely.

Because "official actions" doesn't mean "every action" or "every action attempting to use presidential authority," I think it has to be an action exercising the constitutional powers of the president.

For instance: for the purposes of simplicity, lets assume all legislation authorizing the president to take military action without prior congressional approval has been repealed, and the congress has not declared war on anyone or authorized the use of military force in any circumstances. The president then orders Seal Team 6 to assassinate a waitress who spilled coffee on him, ruining his lucky suit. That would be illegal order since the president does not have constitutional authority to take such action on his own without authorization by congress and that authorization does not exist.

But to your main point, do you remember why Democrats tried to impeach Trump? I am leaving it as a question, because I am curious how you are intending to defend that record.

[1]https://en.wikipedia.org/wiki/Efforts_to_impeach_Donald_Trum... [2]https://en.wikipedia.org/wiki/Impeachment_inquiry_into_Joe_B...

It does make one question why this SCOTUS seems to think the future will break with precedent. Almost as if they're laying the groundwork for some significant changes to past decorum...

In the military, we have the UCMJ that allows us to prosecute those military personnel that issue illegal orders. The President is the Commander-in-Chief, but he is a civilian, so the UCMJ doesn't apply. I always thought he would be charged under criminal law in that case, but it seems that this ruling precludes that.

As such, the phrase "exercise of his core constitutional power" is significantly less straightforward than it might seem at first glance.

If you read through the ruling, a lot more questions arise than answers. And Sotomayor's dissent only highlights how they don't know themselves. And it's not as though it was clear before this ruling. It was unclear, and this ruling says very little in practice.

You could make a very good case that drone strikes on American citizens in foreign lands that are a part of jihadist groups without due process are unconstitutional. And yet, it happens. According to the standard Roberts puts in place, things that are on the extreme periphery of the duties of the Presidency are exempt from criminal prosecution. Does this mean drone strikes? Almost certainly. The President has an enumerated power to command the armed forces.

I fail to see why throwing all of the living Presidents in prison is a problem, particularly if they receive a day in court before getting thrown in prison. What this ruling does is create a class of American that can do some genuinely awful things and not be subject to legal process at all. There is no process, due or otherwise. The person gets to live their life as before.

Trump's being tried because the things he did weren't small potatoes. Trying to overthrow the electoral process unilaterally is a state fair record-setting potato. It's a far more immediate and widespread risk to American life and liberty than the drone strikes on foreign land that I mentioned earlier. One impacts a few dozen Americans globally at most; the other impacts literally all of them.

Yep. The ruling says that if the President is acting within the legally and constitutionally defined scope of their duties then they shouldn't have to wonder if they'll later be prosecuted for it.

That seems fine on its face, but the problem people keep raising is that we live in a world where the President is legally empowered to do things that are seriously problematic. That's a very real concern, and it's been a concern at the very least since Bush and 9/11.

So the obvious answer to this ruling is to fix that. The President shouldn't have to wonder if they'll end up prosecuted for doing things that are within the scope of their official duties, so what we need to do is more clearly define and limit those official duties so that the President doesn't have to guess what will be seen as crossing an imaginary line when the administration changes.

Another topic that hasn't come up quite as much is the fact that this is an immunity proposition, not a defense. What SCOTUS is saying is that we aren't permitted to even ask if the president is reasonable in his beliefs; any trial on the merits is completely and totally foreclosed--that's what immunity means. Just a few days ago, SCOTUS decided that it's absolutely important that administrative law procedures need to go through the step of being heard by a jury trial, and now here it's saying that it's absolutely important that the president never be burdened by the prospect of having to have a jury weigh their actions.

It's just... really galling that SCOTUS would decide that the constitution requires that the president be a king above the law, exactly the sort of thing that England fought a few civil wars over before the US even sought its independence.

No, the supreme court just gave the president immunity for exactly this. This exact scenario is quoted upthread:

> Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution.

It's curious because this would also seem to legalize the Watergate scandal and Nixon's famous line "if the president does it, its not illegal".

Maybe.[1]

[1] https://en.wikipedia.org/wiki/Unitary_executive_theory#Judic...

And of course, if it's something that the Supreme Court wants a president to face consequences for for partisan reasons, they can simply use their majority to say that whatever they didn't like was not an official act.

People get very judgemental when Putin assassinates defectors, but when Obama does it it's ok?

Several Congresspeople then concluded he could not be impeached because by the time they were able to consider the question, he had left office.

This ruling by SCOTUS suggests there is now no avenue to hold such a President accountable for such actions.

... and that's before we broach the question of whether "Removal from the Oval Office" is sufficient punishment for all manner of crime the President could commit from his position of power, because that is the upper limit of the effect of a Congressional impeachment. This seems to give a sitting President carte blanche to throw the Constitution in a wood-chipper if he can interpret it is within his official acts to do so.

That’s essentially what happened with Kavanaugh, Amy, and Neil minus the judge being a crook part. Well, Kavanaugh is a rapist so for him the crook part applies. The really bad stuff is happening. You just are not aware of it.

It is and isn't, which is the problem.

> Your last paragraph is closer to accurate, except a president doesn't just "appoint" a judge. They have to be voted in by the senate. So, if the president is a crook and nominates a crook and the senate is full of crooks and vote yes to have said crook become a judge, then yes really bad stuff can happen. But if the president is a crook and the majority of the senate are crooks, it's already all over.

They more or less do appoint. There's never going to be a judge voted on that doesn't push a President's viewpoint, particularly not in the last thirty years. If a system doesn't take into consideration this particular contingency, it wasn't a very good system, was it?

This ruling is like telling a hungry leopard, "you can eat anyone except for us." The hubris of this ruling is absurd. American's President Jinping won't be a Federalist.

I suggest that courts might be _reluctant_ to make such a finding with Seal Team 6 visiting their homes at 3 AM.

I pray when Trump is reelected he makes no such moves.

Read the ruling itself.

Roe v Wade was an easy overturn from a legal perspective. Pro choice folks with half a brain knew it stood on nonsense. Obama said in 2007 he wanted to codify it because he knew it was standing on shaky logic.

But yes, what I meant is that the supreme court has the power to interpret the law and uphold the constitution, but it is on the legislation to draft precise laws.

this act is still in effect.

Explain the difference.

I could see the argument being made that yes, that's an official act. You'd have to argue why it's okay for a President to abandon their oath of office.

See https://en.wikipedia.org/wiki/Iran%E2%80%93Contra_affair#Par...

https://www.msnbc.com/rachel-maddow-show/maddowblog/pressed-...

Trump murdering his business partner at a dinner because they had a fallout is pretty clearly unofficial, while Trump ordering assassination of the Tyrant of Ruritania is official, albeit probably immoral and/or dangerous to boot.

Of course the grey zone between those two poles is going to be pretty wide.

It seems a lot is assumed in that one sentence. Did he give an order that said 'Overthrow!"? If not, what, exactly, did he do? And this may be a part of the issue. Everything is a hyperbole wrapped in performative anger.

In other words, can you name an action that you deem unofficial that would qualify as 'overthrow"?

> Determining which acts are official and which are unofficial “can be difficult,” Roberts conceded. He emphasized that the immunity that the court recognizes in its ruling on Monday takes a broad view of what constitutes a president’s “official responsibilities,” “covering actions so long as they are not manifestly or palpably beyond his authority.” In conducting the official/unofficial inquiry, Roberts added, courts cannot consider the president’s motives, nor can they designate an act as unofficial simply because it allegedly violates the law.

https://www.scotusblog.com/2024/07/justices-rule-trump-has-s...

Basically the President has a presumption that his behavior is an official act unless it’s egregiously outside his powers but there’s also no way to really investigate it. Oh and it’s also combined with the unitary executive theory popular on the right which holds that the president basically has absolute power over all executive agencies and a growing interpretation of the powers of the president (under both parties) which is a scary scenario.

And given that the dissenting opinion from SCOTUS justices literally raises the exact scenario you’re assuming is unofficial, so dismissing it out of hand seems overly bold:

> 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.

https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

You can disagree with the dissents, but even Justice Barrett outlines some very serious problems with the reasoning in the majority opinion while Justice Thomas says they should go further and completely rule Jack Smith’s investigation unconstitutional outright.

The President shouldn't have the legal authority to conduct any drone strikes without a declaration of war from Congress. We've been ignoring the Constitution for a very long time.

Indeed, the concept of immunity is recognized in the American constitution for legislators in a limited way, so this isn't an oversight by the framers corrected by Robert's conservative majority, rather the lack of immunity for the executive is a feature and not a bug of our constitution, and all republican forms of government.

Ironically the American president now has more power than the King of England, George the III, at the time of the American independence. King George had to follow the laws of Parliament, as did all Kings of England since the passage of Magna Carta some 500+ years prior.

As of today our President no longer has to obey the Constitution or the law so long as the act is deemed "official" by the conservative majority.

> Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.

> With fear for our democracy, I dissent.

Chilling words.

Basically Kavanaugh did what everyone said he would and he overturned US v Nixon even though he lied about it during his confirmation even though before he argued repeatedly it was a bad decision. So either he lied or he miraculously changed his beliefs for the duration of the Senate hearing.

https://www.peoplefor.org/press-releases/fact-check-kavanaug...

   https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

> And he is entitled to at least presumptive immunity from prosecution for all his official acts.

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

> The Constitution does not tolerate such impediments to “the effective functioning of government” [as when] the possibility of an extended proceeding alone may render [the President] “unduly cautious in the discharge of his official duties.”

> The immunity the Court has recognized therefore extends to the “outer perimeter” of the President’s official responsibilities, covering actions so long as they are “not manifestly or palpably beyond [his] authority.”

> In dividing official from unofficial conduct, courts may not inquire into the President’s motives.

> Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law

> Enduring separation of powers principles guide our decision in this case

Supreme Court history has no broader grant of immunity based on principles less definitive.

Then only extremely socially minded people would dare to do the job.

There was a similar sci fi story I read. At the end of a war the rule was that all allied ( not enemy ) generals would be executed. The idea was that war was such a horrible concept that to lead one would require extreme sacrifice and social consciousness on the part of the leaders. War was legal and to be fought without limit however on conclusion all leaders would be put to death. I don't remember the author or the story name.

I propose the Supreme Court be reconstituted such that for each case a panel of judges from the appellate courts is chosen by lot. They hear that case, write their opinion, and then go back to that work. New case, new lot.

Having a permanent bench of judicial oligarchs made sense before telecommunication. It doesn’t anymore. Every ancient democracy used randomness to control corruption. I think it’s time we took a lesson from them.

(Note: this could be done by statute. How the supreme Court is constituted is entirely left to Congress.)

[1] https://constitution.congress.gov/constitution/article-3/

> In a ruling on the last day before the Supreme Court’s summer recess, and just over two months after the oral argument, a majority of the court rejected the D.C. Circuit’s reasoning. As an initial matter, Roberts explained in his 43-page ruling, presidents have absolute immunity for their official acts when those acts relate to the core powers granted to them by the Constitution – for example, the power to issue pardons, veto legislation, recognize ambassadors, and make appointments.

> That absolute immunity does not extend to the president’s other official acts, however. In those cases, Roberts reasoned, a president cannot be charged unless, at the very least, prosecutors can show that bringing such charges would not threaten the power and functioning of the executive branch. And there is no immunity for a president’s unofficial acts.

[…]

> In her dissent, which (like Jackson’s) notably did not use the traditional “respectfully,” Sotomayor contended that Monday’s ruling “reshapes the institution of the Presidency.” “Whether described as presumptive or absolute,” she wrote, “under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless.” “With fear for our democracy,” she concluded, “I dissent.”

* https://www.scotusblog.com/2024/07/justices-rule-trump-has-s...

During the Supreme Court hearings, has anyone asked the hypothetical of a president deciding to send Team 6 to get rid of some members of the Supreme Court? No prosecution for that too?

Stopping aid to Ukraine is definitely an official act, which, on its own, is within their powers. Trading said official action for the billion dollars is what is fraudulent, but if I am understanding the Roberts opinion correctly, it cannot be prosecuted, because the motives of the president should not be used as part of the ruling of immunity. So... free bribery, as long as said president pays their taxes.

Why is sottomayor the only justice drawing this conclusion?

It sounds like it does, from the majority opinion:

> The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive. The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.

So it sounds like "official acts" means an act "exercising his core constitutional powers."

But even then, with enough agreement from the states, Congress can amend the Constitution.

The ones that should judge if it's not constitutional just passed judgment stating that a ex-president is above the law. I think they can invalidate if a president explicitly needs declaration of war, given recent history I'd bet a lot they would find it totally constitutional.

https://apnews.com/article/yemen-houthis-red-sea-shipping-ce...

It was up to the states to decide who could vote. So depending on the state you had woman voters [1].

[1]: https://www.nps.gov/articles/voting-rights-in-nj-before-the-...

What are you talking about? The Supreme Court gutted the constitution in the mid-20th century, and anti-democratically reshaped society down to its foundations.

The supposed "chaos" comes entirely from liberals freaking out at the smallest retrenchment of their destabilizing prior precedents.

With how things shaped up, the innate de jure power struggle should have been "The People <> Legislative <> Judicial <> Executive <> Corporations"

We're still paying the price, as the Lochner era was incredibly myopic.

> But what would be more fun is for the current Supreme Court to adopt the “emanations from penumbras” philosophy of judging, and do that for a couple of decades.

Let’s see what “emanations from penumbras” we can find in the contract clause, second amendment, tenth amendment, etc. If only conservatives had the sense to use Roe as a template for how to judging should work.

However, before that you could vote if you had enough captial. Is that democracy? That list says it isn't whilst saying that America, in which minorities and women could not vote, is a democracy. That seems like a line draw specifically to be able to say America is the oldest democracy, very disingenuous.

If you consider minorities and women to be people then America didn't become a true democracy until 1965.

This isn't how Supreme Court cases usually work. Most of the time, as in this case, they clarify some things and send it back to the lower courts.

The Court here ruled that the President is entitled to immunity for official acts and sent the case back to the lower court to determine if Trump was acting in his official capacity as President or in his capacity as a political candidate.

> It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.

CRA also expressly allows racism unlike the 14th. For instance the civil rights act allows a business to preferentially treat an Indian in a near reservation (but off res) business while outlawing discriminating say in favor of blacks near a historically black neighborhood.

I went back and forth whether to include a paragraph about how this swapping also explains the dynamics around things like DEI training, but decided against it so I wouldn't be getting it from both sides. Things were more pleasant when most people got this energy out watching football.

If the president air strikes people and uses drone strikes using whatever system congress has said that makes that "okay" then he cannot be prosecuted for murder while authorizing and ultimately conducting drone strikes (in most circumstances).

However, if the president is having is own feud with some guy he doesn't like and finds a way to get him drone struck, that would not be covered by immunity because he wasn't acting as president in that capacity in any legally recognized way.

Meaning, if the president shoots a random bystander on the street they can be charged with murder. If the president orders a military strike as part of an official operation and done through proper channels, they can't be charged if it later turns out the intel was bad or the strike went wrong in some way.

Or, if the President uses his powers to assassinate a governor -- again, explicitly not an official act, as the president has no authority over state elections.

If anyone bothered to read the constitution, it clearly lays out the sorts of things that could be construed as official, and the sorts of things that are not. The President does not have unlimited authority. His scope of authority is rather small, even if several important things fall under it. Part of the problem is the pervasive idea in American electoral politics that the president has some sort of power to 'promise' various laws and such. It's so silly since no President can possibly do that.

Cleary, clearly this was a partisan decision. They can't just say "We Have a King Now", so they dressed up just enough of a reasonable interpretation to be able to kill this particular prosecution, while allowing themselves wiggle room to prosecute the kings they don't like. They aren't really trying to uncork executive abuse, they really hope it doesn't happen. But they want Trump not to be prosecuted, and put their fingers on the scale with what they hope is just enough pressure. We'll see.

On the one hand: if you are president and you authorize the nuclear bombings of Nagasaki and Hiroshima to get Japan to surrender without further loss of American life, you won't later be prosecuted for war crimes when your political rival comes into power.

On the other hand, if you are president and you murder a Japanese person you see on the street when going for a stroll outside the white house, you can be prosecuted for that.

Drone striking (or otherwise killing) citizens without due process seems unconstitutional. Drone striking foreign targets does not have those constitutional protections.

Numbers are hard when they go against our intuition, but every US President is taking a comparable risk to being a soldier according to these numbers.

Obama took the risk of being a President while Black Trump took the risk of being a President while Orange

Ref 1. https://en.wikipedia.org/wiki/Coalition_casualties_in_Afghan... 2. https://www.militarytimes.com/news/your-military/2016/07/06/...

Yes it's too much to ask every president to significantly risk jail time for being president.

Someone's going to come along and tell me that the vitriol is necessary and good because the Supreme Court is so clearly and unequivocally evil, but that's just the point. Even the threads on the Israel-Hamas war have had better-quality discussions with more nuance than the hot takes and hatred that have been plaguing HN the last few weeks on these threads.

We can do better. I've seen it.

Like if you want to do a coup, as long as you task the army with removing congress it's an official act?

True insofar as it goes… but this elides the detail that the right just won a generational battle for the Supreme Court. There is zero chance that any Republicans back reform here.

Even the minimum viable reform to enact term limits after this lot dies off is dead on arrival.

Ranked choice also has only been implemented in a few cases and generally by a ballot initiative (getting around the party structures somewhat).

To be fair systems do change but in general they use their power to resist it tooth and nail until change is inevitable and they collapse.

His job is safe, but much of his salary--no, not quite the right word--much of his overall reward is dependent on what powerful friends want him to do.

Ultimately, people don't care about keeping their job--who the hell likes their job?--people want to keep their compensation, and for the US Supreme Court, their compensation can easily be controlled by powerful third parties.

> unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457 U. S., at 754. Pp. 12–15.

This seems to be the real boundary. To show something doesn't have immunity you either have to:

1. Show it was an unofficial act

2. Show it wasn't part of the core presidential powers and that prosecuting it wouldn't have any danger of intruding intruding on "the authority and functions of the Executive Branch."

I think that last standard is related to presidential immunity from subpoena which courts have also recently construed quite broadly

Typo, McConnell.

If there weren't lawyers, law would be oh, so much simpler..

This quickly becomes a standard ritual at the changing of each administration, and an accepted job hazard for incoming justices.

I hope you read Justice Sonia Sotomayor’s very important dissent while you're at it.

It's also worth noting that what someone thinks is legal is not necessarily what someone thinks _should_ be legal; I imagine that almost everyone here has at least some laws that they disagree with, but that's separate from the question of whether the law exists or not.

It's the same things cops do, jeez.

It seems to me the consequence would be that we would have Presidents who act carefully to not break the law. Are there any other consequences?

I've heard it said that "democracies are where the people in power lose". We've all seen "democracies" where the party in power never loses; those aren't real democracies. Likewise, I would say nations that are truly governed by law are where those in power face legal prosecution.

(Also, what's so bad about prosecution? If a person is innocent, the legal system will find them to be innocent, right?... Right?)

Why should I believe his decisions are about principle when money is changing hands?

Well, kind of fair, with that caveat that this means even less Americans are likely to agree with Clarence or this ruling.

There are good and competent people who say "I'm willing to be President and be subject to the law, I'm willing to do both". Why can't be pick a President from that group?

Can you find anything in the opinion of the court that would preclude it? I can't.

> In general, one would hope Seal Team 6 would not follow such an act as they owe allegiance to our system of laws before any presidential order.

It's a strange world we live in where a president can order something illegal but not face any consequences. I suppose you could argue we already lived in such a world, but now the difference is that he can brazenly do it.

This is a misleading partial quotation. In the context of what they were saying, the president has the presumption of immunity, but it is not guaranteed. They specifically remanded the issue of Trump trying to get Pence to break the law to the lower courts to decide whether there was immunity. They did not say there was blanket immunity.

The question then becomes whether that presumption of immunity is rebutted under the circumstances. It is the Government’s burden to rebut the presumption of immunity. The Court therefore remands to the District Court to assess in the first instance whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of in- trusion on the authority and functions of the Executive Branch.

> It does.

Since the Constitution is a publicly available document, would you please point me to the spot where it says that? Thanks.

Real life is rarely this black and white.

There hasn't been a single year of my life where US armed forces weren't killing someone somewhere in the world. The US military has been involved in armed conflicts around the globe in nearly every year since WWII but it hasn't declared many wars.

https://en.wikipedia.org/wiki/List_of_wars_involving_the_Uni...

https://en.wikipedia.org/wiki/Timeline_of_United_States_mili...

Wait, what? Executive branch pretty explicitly encompasses enforcement. The Justice Department is part of the Executive branch.

Unless by "Judiciary authority" you meant the Justice Department, and not the Judiciary branch of the federal government, and by "not the president" you were very specifically discussing the semi-independence the Justice department has from the president.

[0] https://www.foxnews.com/media/trump-vows-fire-generals-push-...

Bodies that 'descend from the constitution' are certainly constitutionally intended to uphold checks and balances. However this has manifestly failed to happen.

You have a congress deadlocked for decades, 'unitary executive' legal philosophy centralising power in the presidency in order to temporarily pass this legislative deadlock, a senate readily obeisant to the majority party, and a supreme court stacked by the ultra right rolling back civil rights and checks and balances apace. Leading to decision like Citizens United and now presidential immunity.

You have the most recently defeated president still, four years on refusing to accept the results of the last election. A president with a significant base of religious, anti-state and rural poor devastated by decades of drug war and manufacturing decline. A president who openly called for insurrection. He called too on his vice president to overthrow the decision of the electoral college and defended calls to hang him when he did not - https://www.theguardian.com/us-news/2021/nov/12/trump-capito....

The thing tank behind the dominant wing of one of the two political parties in the duopoly has consistently pushed the line that the country is not in fact a democracy at all - https://www.heritage.org/american-founders/report/america-re...

All this against a background of a small class the most wealthy plutocrats vying for power, apparently beyond the reach of legal censure. Plutocrats who between them own all the social networks, newspapers and television stations.

Lets not forget the immense power of the total surveillance state revealed by Assange and Snowdon.

Finally you have the vast disregarded body of the American underclass, sleeping in their millions on the streets. Invisible in Americas view of itself, but inescapable in the tent cities and skid rows that seem now to populate every large American city. The nearly two million imprisoned. An underclass that can be victimised and stigmatised, mobilised and made a boogyman for middle classes all to aware of their own vulnerability in the absence of a welfare state.

As a non-American it seems incredibly clear that the path has been laid for a seizure of power within one to two election cycles. Further, I no longer see a way this can be avoided. Trump if victorious - as he seems likely to be against a clearly senescent party machine president - will likely use every power afforded him by the supreme court to remain in power. I'd expect this to follow the pattern it has followed in every other democracy which has swung to authoritarianism. The rooting out of non existent 'conspiracies' of journalists and political opponents, stigmatisation of immigrants and other minority groups, mass deportations, voter deregistration and the use of external threats to justify controls on movement in and out of the country. The rapid stacking and delegitimisation of the lower courts. The use of an enormous network of mega churches to lend the leader the imprimatur of God. Ultimately paramilitary violence and provoked insurrections leading to a state of emergency and some kind of declaration of a temporary presidency of national unity or similar.

Doubtless this sounds histrionic - but I see no institution strong enough or even truly motivated to prevent it. The only hope I see is that such regimes are almost inevitably unstable and tend to topple within a couple of generations. Eaten from the inside out by ambition and betrayal.

Law enforcement individuals have extremely limited authority to kill people, exclusively(?) based on self-defense.

The law enforcement system has the right to authorize the killing of people but is subject to judicial review.

Ergo, if a law enforcement individual breaks guidelines and kills someone, they're charged.

If a law enforcement individual follows guidelines and kills someone, then the system is charged. (E.g. state/federal lawsuits, consent decrees, etc)

So this may surprise you but the government of the United States is naturally immune from any case where it kills you or harms you in any way.

Congress has consented to being liable because it thinks that's nice, but it withdraws consent whenever it wants. The entirety of the idea of 'suing' or 'prosecuting' the government is something that only happens with the governments consent and they regularly withdraw it if it's upsetting the them

https://www.cbsnews.com/news/mitch-mcconnell-immunity-former...

I thought the USA was a country of laws, not kings.

* actually guaranteeing that if the president is trampling my rights and a supermajority of congress don't like it, he'll be ejected from office, not anything to do with my protection or restitution.