Held: Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.
The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law.
I mean, that's what this comes to, right? If he ordered Seal Team Six to storm Mar-A-Lago to recover classified materials with deadly force, then he's operating in order to maintain national security via his authority as Commander in Chief. That would be legal under this ruling, correct?
I get that would lead to an actual civil war, and I get that their argument is important to shield the office from neverending frivolous lawsuits, but in being forced to rule so explicitly on this it seems like they've opened the door to political assassinations. All a President would need is a willing wing of the military and a superficial rationalization and there'd be nothing a court in this country could do about it.
You're missing that the Supreme Court is taking the piss and the District Court they're kicking this back to has already done their homework and defined the official acts versus unofficial acts. They're ret-2-go but the Supreme's did their job of punting this until at least October, since that's when they come back from vacation. So when the District Court punts it back up the chain to the Supreme Court, they have to wait for the Supreme Court to reconvene. It's fucking stupid, but it accomplished getting Trump nothing but a legal time-out.
Oh, ALSO:
Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.
They literally fucked us out of a ton of evidence with this part of the ruling.
But national security is. All they would need is a flimsy justification that the person was stealing state secrets (like Trump) or organizing a terrorist attack, which could include any contact with an armed or paramilitary group that's planning a protest. They could use state influence to coerce that group to take action, and the records of that planning process would be inadmissible per this ruling. It's not hard to come up with superficial reasons that do align with Constitutional obligations.
Edit to add: Hell, just look at the McCarthy era, or the Iraq war. It's not hard at all for a sufficiently shameless group of politicians to gin up a moral panic about national security. They don't even need evidence, they just need motive. We're real fucking close to the government being able to legally assassinate purported communists for subversion.
Just because national security is the domain of the Executive doesn't mean they can use lethal force on anyone they wish in any scenario they wish in lieu of effecting arrests for alleged crimes.
I mean, they have to sign some paperwork to make it an official act, but otherwise what's the difference? They don't have to arrest anyone according to this ruling, if I'm reading this correctly. Sure, us normal citizens probably do, but according to the court, presidents don't have to follow the law if it's an official act. That's kind of the basis of the dissent. It separates the rules we follow and our leaders have to follow.
You might want to reread the syllabus of the opinion. They differentiate between actions that may be official and ones that can't. About halfway down pg 4.
The Constitution is the highest law of the land. If it explicitly says the president can do something any law stopping him from doing that would be unconditional and voided, at least as applied.
Otherwise it would be like they amended the Constitution without going through the correct process.
The syllabus only says that SCOTUS can't decide the line between official and unofficial acts because it's a court of final review, and they offered a list of guidance to lower courts who they charged with making the distinction. They point to pp 16-32 for more detail on that guidance.
The guidance says:
Courts cannot consider motive
An act is not unofficial simply because it violates a law
Courts cannot consider negotiations with DoJ
Courts cannot consider negotiations with or influence of the VP if the VP is serving an executive branch function, but may consider influence of the VP if the VP is serving a legislative branch function (i.e. supervising the Senate)
Engagement with private parties is not an official act
Public communication of the person serving in the role of President is official, but public communication of the President serving in another role is not
Prosecutors cannot use a jury to indirectly infringe on immunity unless a judge has already ruled that immunity does not exist
So again, if a President sends a branch of the military to a) assassinate a terrorist or b) recover national security secrets, none of the allowable court considerations above come into play. Nor do they if the assassinated individual is a SCOTUS justice or a political rival. The executive branch and military are the only entities involved, no public communication happens, murder is OK if it's done in an official capacity, and planning records are inadmissible. A prosecutor would have no authority to bring a case, and a court would have no precedent to allow consideration of the charge even if they were brought.
The ruling says that INTENT cannot be questioned. The President can say whatever he/she wants after the assassination, and it cannot be questioned by courts. The Pres can say that the killing stopped an imminent terror attack. They can say the person was in the middle of committing a crime and had a (totally not planted) gun on them.
I get what you are saying, that extrajudicial execution is not a faculty given to the executive branch. In the US, the judicial system is supposed to have the power over adjudicating crimes. And US citizens have the right to trial by their peers. But the government has shown repeatedly in the past that when it comes to terror that they are more than happy to waive rights. See: Guantanamo, drone kills of US citizens, cops killing people who are only suspected of being a threat, etc.
"When the president does it, that means that it is not illegal."
Of course that's only for Republican presidents. The Supreme Court has already shown that they don't care about precedent, so if Biden does something, it'll come back up and they'll find it was not an official act and can be prosecuted, no matter what it was.
The main thing you're missing is that the words of the court are meaningless. They'll always be able to use the next ruling to bend the outcome to the conservatives' whims.
This is a government of men, not laws. Always has been.
“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,” Sotomayor wrote.
One justice put that out there during oral arguments, but I've read the majority ruling and it doesn't mention assassinations. The dissenting opinion does mention the question of what acts fall within official duties, including political assassinations.
He didn’t want to pack the court so I’m not holding out hope that he’d empty the court either. Obviously assassinating justices would completely fuck the country up, but one could argue that the current justices are slow playing us into a fascist dictatorship.
Honestly, the quickest way out is to officially order the summary executions of the judges who established this new immunity - then pass a second law ordering that SCOTUS must always evenly represent all major parties, one out, one in.
Then get new judges in that will reverse the immunity ruling. That way this sort of problem won't come up again.
Sometimes the tree of liberty needs to be watered with blood. This is may be one of those times.
From the Sotomayor dissent, which is joined by both Kagan and Jackson: Today's ruling "reshapes the institution of the Presidency" and "makes a mockery of the principle . . . that no man is above the law." The decision "gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former president from answering for criminal and treasonous acts, I dissent."
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.
Sotomayor does not use "respectfully" with "dissent" here or at the end of her dissent, which concludes: "With fear for our democracy, I dissent."
The people who need to read this are either the psychopaths who implemented the strategy to get these conservative hacks on the court, or the grossly gullible base too illiterate to find let alone comprehend this dissent.
“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.”
He's not being prosecuted for exercising core constitutional powers or official acts. He's being prosecuted for election fraud, inciting an insurrectionist mob and mishandling classified documents. None of those are core constitutional powers and they clearly can't be official acts.
Edit: I just love this part-
Without immunity, Trump's lawyer said, sitting presidents would face "blackmail and extortion" by political rivals due to the threat of future prosecution.
Trump just faces blackmail and extortion from his political allies. Like Vladimir Putin.
They sent it back down to the lower courts because they need to determine if he was acting officially. If he was acting outside of an official constitutional capacity he is criminally responsible. If he was doing his official duties with in the constitution he's alright.
It'll probably end up with him hit with some charges and avoiding others.
That's just due process of law. The lower court can't just wax seal issues of constitutionality with out looking at them. Doing so would be a fantastic grounds for appeal.
Devil's Advocate: It's been needing to be determined since fucking Nixon left office, and our entire government has been waffling about it for 70 years, because it's a question they don't actually want answered. It's only convenient to them now as a reason to give Trump a legal time-out so he can make it to the election without more indictments.
The District Court in question has already defined official versus unofficial acts, which is part of why the SC released this so late on fucking purpose. Because even though the DC is ready to go with their findings, they'll have to wait until October to kick it back up the chain to the Supreme Court when Trump inevitably appeals.
That's the plan, yes. I think it goes a little farther than "hope" with these guys. They think they can manifest reality.
We're an empire now, and when we act, we create our own reality. And while you're studying that reality—judiciously, as you will—we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors...and you, all of you, will be left to just study what we do'.
In some ways, you can almost see why trying to "erase" bad ideas is intoxicating, since humans seem endlessly drawn to them.
It's like in tech circles, the joke goes that some Sci-Fi writer creates a horrible invention and includes a warning "DO NOT BUILD THE TORMENT NEXUS" and that warning, repeatedly, goes ignored. People are like "but we could make good profit from the Torment Nexus!"
AI is a good example. "If we don't make the terrible AI, someone else will, so we have to make the Torment Nexus, errr, I mean AI."
But trying to stop all these bad ideas is just Fahrenheit 451 with extra steps.
I think the Soviets and the space race with the USA would prove that the "We have to build it faster, first!" isn't just a capitalist thing.
Capitalism incentivizes it, absolutely. To be clear, I'm not making some "it's human nature" argument, culture plays a huge role. Capitalist culture influences it greatly, but I think humans "racing" to achieve something before another does is outside the scope of just capitalism.
Some of the evidence that Jack Smith has put together involve some form of Trump's official capacity. for instance, the Times notes that one of the points of the prosecution was that Trump tried to get Jeffrey Clark installed as acting AG in the days before Jan 6, presumably because he would go along with the coup. One of the findings of the Court is that appointments like that are within the President's direct duties, and can't be used as evidence against him, even if it can be proven that the appointment was made to directly piss on the Constitution Trump swore to protect.
The Times also notes that Trump's pressure campaign on Pence is similarly protected now.
Because presiding over the counting of the votes is one of the very few duties the Constitution allocates to the VP, so is covered under this new doctrine. He has the absolute right to conduct that how he sees fit, without regard to whether he is upholding his oath to the Constitution or not, and any conversations he had with the President are part of that duty, and similarly protected. If it turns out he is not upholding that oath, the only remedy is impeachment. (And finding 67 Senators to agree to convict.)
because they need to determine if he was acting officially.
this was already ruled on, reelection campaign is NOT an official capacity thing PERIOD. This move is nothing but another delay to ensure this shit falls on a date post-election
Delaying until after the election was the main point yeah. He did get a couple other goodies from it though to my understanding. Presumption of immunity and not being able to admit testimony or communications of the president and his staff being the big ones from what I'm reading.
But absolutely Remand is the big prize for Trump here. Having the case remanded back to the lower courts all but guarantees that it won't be concluded before the election. Hopefully it doesn't entirely gut the other prosecutions as well but I don't have a lot of faith that it isn't going to basically kill the other cases.
As for a President’s unofficial acts, there is no immunity. Although Presidential immunity is required for official actions to ensure that the President’s decisionmaking is not distorted by the threat of future litigation stemming from those actions, that concern does not support immunity for unofficial conduct. Clinton, 520 U. S., at 694, and n. 19. The separation of powers does not bar a prosecution predicated on the President’s unofficial acts.
Right, and why do the questions "can a president officially commit election fraud" and "can a president officially incite a violent mob" and "can a president officially mishandle classified documents?" need to be determined? The answers have already been determined. They are all no.
Constitutionally defined roles have absolute immunity (e.g., pardons). Other "official acts" are presumed to have immunity, but what acts are official is not well defined and as written can be very expansive. Since the Court gets to decide each one on a case by case basis, it will presumably apply more expansively to fascist allies and more narrowly to opponents. All Trump needs to do is present a flimsy excuse for how he was "protecting the election" or "making a political speech as president". The liberal judges are correctly ringing alarm bells. "Official acts" isn't a guardrail.
(3) Presidents cannot be indicted based on conduct for which they are immune from prosecution. On remand, the District Court must carefully analyze the indictment’s remaining allegations to determine whether they too involve conduct for which a President must be immune from prosecution. And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct. Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial. Pp. 30–32
This is how fucked we are. Right here.
Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.
So nevermind all that evidence you have of them planning it out in the open. Inadmissible in trial!
New York Times: “The bottom line practical effect of the court ruling appears to be that the trial judge in Washington, Tanya Chutkan, is going to have to hold an evidentiary hearing on many, if not most, of the allegations in the special counsel’s indictment of Trump. That hearing will delve into the question of whether the allegations were based on official acts Trump took as president or unofficial ones.”
“That process is going to take time. How much time remains unclear at this point.”
And that, right there, was the goal. This decision, rather than clarifying anything, intentionally muddied the waters - and treads awfully close to turning the presidency into a monarchy - in order to allow Trump to drag things out even more. They really, truly do not want him to face any sort of justice for January 6th before the election, and they hope the election will result in him never having to face justice at all.
I don't care if you fucking hate Biden, people... Vote for him like democracy depends on it, because it fucking does. This is not a dress rehearsal. There will be no do-overs. If you let Trump become president again, America is done.
Literal last minute decision on this one. SCOTUS is definitely running interference for Trump, without a doubt.
Biden should declare Trump a national security threat and have him assassinated. That's an "official act", is it not? Sure, it helps Biden immensely, but now who is to determine where an official act ends and a private self-serving one begins? Are those two necessarily mutually exclusive?
“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,” Sotomayor wrote.
Yep the dems wouldn't dare try to use this ruling to their advantage and then they blame everyone else when they lose and Republicans use every ruling to their every advantage.
Disclaimer: I have no idea what the right move here is. It's a shitty situation. "How Democracies Die" talks about it in quite a bit of detail, but basically, in the unfolding collapse of a democracy, there's a terrible temptation to start eroding democratic norms "in kind" in response to their eroding from the fascist side, but this is a mistake. You have to keep fighting on the tilted table without trying to tilt it back, because eroding the norms of behavior plays right into the fascists' hands and those democratic standards are horrifyingly hard to get back once you've broken the seal.
But, that being said, keeping in mind that this is satire to make a point: I don't think Biden should have Trump assassinated, or anybody. I do think that it would be a little more directly on the nose if he, as an official act, had Seal Team 6 ambush all the justices that voted for this (as an official act of course), take them with hoods over their heads and in ziptie cuffs to an undisclosed location, and then put up on YouTube the video of someone asking them a few questions in a bare concrete room in that undisclosed location, requesting that they clarify that this is really what they meant. Sort of bring some reality to what is the door they are trying to open, on a personal level, to them. Because I am 100% serious when I say that that is 100% very literally the door they have chosen to open. Sort of a "Let's close this door back up tight, right brother? Unless you are sure you want to open it? Really, like really for real sure with no backsies?"
If only. That would be amazing and thank you for the dream, but they've all got private security, I don't see how this could be done without someone being shot, which changes the whole context and would make it something that could be spun to easily.
But it brings up the whole issue doesn't it? The court feels they will never have to deal with the consequences of any of this. Surely a trump-style president would never come after them.
This is something I think about a lot. The best way to defeat fascism is within the process with democracy -- because if we start playing by their rules to stop fascism, we prove them right in a sense. It's preferable to actually letting fascism happen, but it would severely weaken our democracy.
If voting is not enough, then the next best option would be for Biden to pull his own Jan 6 and refuse to certify the results and call in Seal Team 6. And then after doing so, order his own arrest for violating our laws and norms. The only way to preserve democracy after taking steps outside of democracy is to fall on your own sword.
It's like an alternate universe within the DC universe -- the Joker goes too far and Batman snaps his neck. When he arrives at the police, he carries the Joker's body and tells them to arrest him. Batman knew it was necessary to kill Joker, but he also knew he had to be held accountable for doing that. Any group which uses violence to end the fascist threat needs to turn themselves in afterwards to preserve peaceful democracy. It would be incredibly unfair to them, but it's necessary to prevent a new normal of violent anarchy.
SCOTUS cleverly ruled that bribery was legal before granting immunity. Otherwise, Biden could just officially order the DOJ to investigate SCOTUS for corruption.
I think they are relying on the scruples that most normal, adjusted people have to prevent him from doing just that. But from a completely outcome-based perspective, I kind of think it might be the best move to try to buy time to try to start fixing this compromised court and the damage they’re wreaking
“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,” Sotomayor wrote.
I need to start looking at plane tickets and foreign visas, don't I? I don't know if I want to stick around and fight fascists in a civil war. I've got a life and a family. But I also don't want to stick around if we do nothing and let the country fall into fascism with a few feeble protests. I hate this timeline.
The sense of unease loomed over the Pride parade in Paris on Saturday, hinted at by the banner reading: “The far right is the mortal enemy of LGBTI people.”
Only if he replaces them quickly with friends, otherwise they'll decide certain acts aren't "official". This is designed so that the fascist court can whitewash fascist presidents, but opposing presidents still need to worry.
Whatever he does he needs to put this into effect now. The only way we'll get this Congress to reign in Presidential power is if they think it will hinder Biden.
Presidential act that states the supreme Court has been infiltrated by corrupt officials, remove them all from office, and replace them with uncorrupt officials with oversight. Don't worry supreme court, you said he could fucking do it if he wants to.
I hope he declares the supreme court corrupt and a threat to our democracy and removes them all from the office to replace them with not shitty people. Because they are currently a large threat to our democracy. They said he could do it.
The court analyzed four categories of conduct contained in Trump's indictment: his discussions with Justice Department officials following the 2020 election, his alleged pressure on then-Vice President Mike Pence to block certification of Biden's election win, his alleged role in assembling fake pro-Trump electors and his conduct related to the Jan. 6, 2021, attack on the U.S. Capitol.
The court found Trump was absolutely immune for conversations with Justice Department officials but returned the case to lower courts to determine whether Trump has immunity for the other three categories.
The ruling marked the first time since the nation's 18th century founding that the Supreme Court has declared that former presidents may be shielded from criminal charges in any instance.
reuters.com
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