There are two elements to the immunity decision that are particularly extreme in a way that many will miss: (1) motive is irrelevant and (2) immune acts are not just excluded from prosecution, they’re excluded from evidence.
/1
/2 Motive being irrelevant means that the President can do a thing for expressly lawless reasons so long as the thing is within the extremely broad range of official acts. So question isn’t “can the President conspire to defraud,” it’s “can the President call a state official about an election.”
/3 The problem is that almost anything can be shoehorned into an official act depending on how you characterize it or the level of generality you use. The Court’s “well of course a President has to use due care that election laws are enforced” hints at this.
/4 More powerful, to a trial lawyer, is the prohibition on the use of immune acts as evidence. In almost every other context (save Speech & Debate), you can use things as evidence when you can’t prosecute for them. If I say “this man must die,” that’s usually protected by the First Amendment ….
/5 …but it’s obvious that my statement can be introduced as evidence if I’m accused of murder.
Contrast this type of Presidential immunity. Say Donald Trump, days into his second term, meets with the Department of Justice and demands a way to deport all Muslims, reviling them as subhuman.
/6 Later Trump orders a staff member at Mar-A-Lago to kill a Muslim employee, possibly by serving him the food. Under the Court’s rule, even assuming that ordering Mar-A-Lago to kill people is unofficial conduct (not 100% clear), Trump’s anti-Muslim tirade to the AG would be inadmissible at trial.
/7 Justice Roberts smug and superior dismissal of the dissents’ concerns seems to come to us via time warp from some time that never knew Trump. The danger of lawlessness he poses are manifest — he and his followers brag of them. Only a liar or fool would dismiss them.
/8 At any rate, congratulations to the Federalist Society for an achievement beyond the reach of the British, outside the grasp of bloody civil war, impossible to Nazis and Soviets and terrorists: defeating the American idea.
So can’t Biden now, as an official act, render Trump ineligible to run? Strip him of citizenship? Do anything that will force Republicans, for a change, to waste time in court fighting the very powers they just ‘won’?
Yes, but at the risk of losing huge swaths of voters who are backing Biden because he would never do unlawful acts in the first place. It's the paradox of tolerance but with democracy.
Biden being goaded into being the first one to violate the Constitution and all democratic norms before the other guy can do so is not exactly going to inspire the country to believe that Democrats are the party of legitimate democracy
The secret solution is, as ever, to fucking vote in November
Drone strikes. Biden is the commander in chief and now anything he orders the military to do is immune to prosecution, and he can pardon anyone who carries out his order. Impeachment is the only option and it's obvious that's a broken option.
It is naive to think that the principles described by Roberts, writing for the majority in Trump v. United States, would be applied equally by the current Court to a Democratic and a Republican president.
No. The president isn’t given those powers. So Biden wouldn’t get arrested it would just be null. Like if Biden tried to declare that America owns the sun, or if I declared Trump ineligible to run for office. Those are just verbal declarations.
There is no mechanism for Biden to make Trump ineligible to be President by stripping him of his U.S. citizenship.
However, Biden COULD make him ineligible for the office by writing an executive order declaring that at the federal level, Trump is perpetually 34 years of old.
The SCOTUS left it vague enough about what constitutes "official acts" that they will ultimately be the ones who get to decide what that even means.
So if Biden or some other non-reactionary president does it, they can say that the acts don't constitute official acts.
SCOTUS gets to protect theirs.
No, because it has to be something that arguably falls within the powers of the presidency. Drone strikes (as CinC) would be a different matter.
Now, a military officer could and actually should refuse that order, but Biden couldn’t be prosecuted for it or for firing people until someone agrees.
He can commit any crime he likes that won't get him impeached. Those things aren't crimes. But he can order someone at the White House to kill Trump, that would work.
Remember tRumps lawyers argument? If theres an impeachment then you can be held criminally accountable
If Biden does anything- the MAGATs will impeach him then he can be tried
There are more subtle but immediate powers that Biden, or Trump, could use. Freeze or seize assets. Endless subpoenas to produce produce evidence. These work over time and there’s no time for Biden to do this. Then there’s election denying, court cases, pressuring officials, rallying at Capital….
Lol.
SCOTUS isn't going to let Biden get away with anything.
Do people think this is still a nation ruled buy laws alone? We're well into Calvinball now. Republicans do what they want and SCOTUS backs them up. That's the current reality.
No. SCOTUS didn't rule that President's have power to do these things: Courts would step in and stop them. SCOTUS rather said if the president did that, and it was an official act, you couldn't prosecute them once they left office.
You know perfectly well that these people are deeply opposed to the rule of law, and would immediately stop him even if he had the guts to make the attempt.
Can we just please not with the idea that the Federalist Society specifically or fascists generally are *for* rules applied fairly to all?
That’s the cruel paradox. If Biden uses the powers that SCOTUS gave him, then he will be the one who killed American democracy. He would never do that. SCOTUS knows it, which is why they gave the power while he’s still in office.
Assuming you're asking hypothetically, the court ruled that Biden couldn't be criminally prosecuted for doing that. That doesn't mean the court couldn't rule his order to be unconstitutional.
The nebulousness around "official" acts also allows the SC to set themselves up as the ultimate arbiters of what is or isn't official. Meaning that anything Trump does can be stamped "official" and anything Biden does won't enjoy the same protection.
SCOTUS never thinks of the collateral damage. Imagine being an American lawyer living in England & interacting with English lawyers & having to explain this. It's going to be hell for me. But does John Roberts think about that? Selfish bastard.
Fortunately, I've been brushing up on my 17th century English history, which is when the key changes in the legal relationship between the head of state and the state itself occurred—Civil War, execution of Chuck I, Glorious Revolution, & Bill of Rights, for instance. But, to be fair to SCOTUS…
