Jacob T. Levy: Barrett's concurrence at least leaves a trial imaginable, but Roberts' controlling majority opinion ends up defining everything one might impeach a president for as either immune from criminal prosecution or impossible to prove because of the new limits on evidence and ban on considering motive.

The Constitution says that in cases of impeachment, "the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law." It does not except the president. But what impeachable offenses aren't covered by the new doctrine of immunity?

Barrett's concurrence at least leaves a trial imaginable, but Roberts' controlling majority opinion ends up defining everything one might impeach a president for as either immune from criminal prosecution or impossible to prove because of the new limits on evidence and ban on considering motive.

I'm not saying that the opinion limits impeachment. It doesn't do that. I'm saying that it renders impossible what the Constitution explicitly contemplates, which is that the same offense would be grounds for impeachment and, subsequently, for a criminal trial.

Yes. Barrett definitely leaves a trial open and gives clear tests to use. The dissents hit home on a major tell—Roberts could think of all the things that were immune but couldn’t for anything that wasn’t immune.

Impeachment is already impossible because a majority of republicans have made it clear that they will absolutely never break with trump and it doesn’t matter what he does.

I believe that presidential impeachment is a dead letter power in the US system anyway. My point is about the Court opinion's contradiction of a possibility the Constitution explicitly contemplates.

This Court -- these six -- just make things up. It's not originalism. It's not textualism. It's not even emanations and penumbras. It's right wing Calvinball, and it's a pure, political power play. We (citizens, not spec. law profs) have to stop responding to political power with legal issues.

Only an organized, mass political response -- elect a ton of Dems, ram thru Court reforms -- can respond to this political threat.

I think Jacob already agrees w you (I certainly do).

So bonkers

In 2011, President Obama assassinated US citizen Anwar Al-Awlaki and his 16-year-old son Abdulrahman (also a US citizen) with no due process. He has never been held accountable.

Also, the Court will interpret anything a Democratic president does that they dislike as an "unofficial act" and therefore subject to criminal prosecution.

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