If Trump were to personally shoot someone on Fifth Avenue: Not immune. (Probably. Maybe.)
If he were to order the army to massacre thousands on Fifth Avenue: Immune. (Very clearly, under the decision.)
But from a constitutional perspective, the latter is the grave danger to guard against.
It is *precisely* crimes that involve the abuse of official powers and are committed under color of office that a constitutional system needs to restrain.
The fact that Trump is now trying to get out of his NY conviction by arguing that he committed those crimes *as president* shows the absurdity.
It also goes to the absurdity Sotomayor pointed out about not just immunity but inadmissibility. He could give a speech live from the Oval Office openly and unambiguously confessing his guilt and that couldn't even be used as evidence because a presidential speech is an 'official' act.
She points to an absurd footnote in the majority saying maybe you can use publicity about it but first need to pass a bunch of tests that means, no, you would have already shown it wasn’t an official act anyway and so saying you can is moot.
It blows my mind that this is where we’re at. Presidents have tons of power, they SHOULD be terrified that abusing it will land them in prison. What are laws even for otherwise.
So Trump is trying to say the NY case relied on private records/testimony of his conversations with his advisors, which per the ruling shouldn’t be admitted as evidence. I don’t see how any of those actions qualify as official acts (tho I guess we’ll see)!
In principle yes, that's exactly what impeachment is for, but in practice it's a dead letter of a power (and anyway, per the Constitution, it should be able to coexist with criminal prosecution).
it's very cool that none of the supposed remedies for abuse of power can actually be used:
impeachment? dead letter
disqualification? lol no, scotus decision
prosecution? lol no, scotus decision
get more votes? lol no, senate/gerrymandering+scotus
amend the constitution? dead letter
usa! usa!
The question I have is that even in a hypothetical situation of a successful impeachment how does it get enforced under this decision? Could the President claim it is an illegal coup to to head off such an instance? Not a lawyer, but this reeks of bad law.
OK but what if Trump personally shot someone on Fifth Avenue while he was discussing with his VP the proper scope and limits of his official powers? Checkmate, libs.
What if he is checking his gun and it “accidentally” kills someone.
Manslaughter? Can’t ask for motive?
It’s a government gun? Can’t use it as evidence?
I think he could shoot somebody on Fifth Avenue and get away with it under their ruling.
They decide whether the act was official or not and since they're playing calvinball, anything could be official if you squint.
Similarly, anything could be unofficial if Biden does it.
Genuine question: is deploying troops on US soil kosher as a core constitutional power? Or is that just like, he invokes the insurrection act and that’s no bar?
Professor Levy in your hypothetical the president would first need legal authority to order such a massacre before it would be considered an official act and thus exempt him from criminal prosecution, right? Where would this authority come from?
He is commander in chief of the armed forces. That Article II power isn't subdivided into particular tasks: send them to this place, kill those people. Moreover that's a *core* power, in the language of the decision; immunity is absolute, not just presumptive.
It has traditionally been assumed to be subject to *external* legal constraints, but the constraints don't arise from within the meaning of the power to be commander in chief. And those external constraints have been rendered null and void.
Would these still be considered unlawful orders from a military command perspective that could be disregarded to prevent the massacre or has SCOTUS basically removed that check on power too?
SCOTUS hasn’t touched the Armed Forces Code of Conduct, but now it’s put members of the armed forces in the position of hearing a command from a president who says “don’t worry, it can’t be unlawful if I’m doing it” and trying to square the circle.
I think the ultimate right answer is that they have a duty to disobey, but at that point you’re gambling on what some particular soldiers believe the law will ultimately be found to say.
Any troop carrying out an order known, or would by a reasonable person be known, to be illegal is personally liable under the UCMJ. The President may under the Roberts Doctrine be immune from the workings of justice, but the private pulling the trigger is not.
What’s illegal about declaring a set of protestors a national security risk to the Capitol or to some city.
Why does killing have to be the only end result here?
They are dangerous. Violent. POTUS declares they are armed. Tells military to act accordingly.
I am not even kind of an expert.
Yes. Some orders will be refusable.
But “clear the streets”. Or “I have determined that BLM is a national security threat”. Or just “we need to reopen these roads”.
Even if no one is killed. The military starts detaining people. Or physically forcing them
They would be unlawful orders, just like Trump telling Pence not to certify Biden's victory.
The military could refuse them or not, but either way, the president could not be prosecuted for giving unlawful orders.
And he could pardon troops for following unlawful orders.
There’s a gap between must follow all legal and disobey all illegal that’s typically filled by a presumption of legality that this decision makes dangerously ambiguous
The newly-invented immunity to prosecution for official acts includes immunity to state prosecutions. Unlike with pardons, for this set of problems state/ federal isn't much at stake.
