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.
More than that, I am trying to understand how it would be prosecutable for Biden to order Seal Team 6 as commander-in-chief to assassinate the justices voting with the majority in this case?
We're going to have to fight this out bad.
I don't see a way to continue intact and it only takes one announcement from Sacramento to throw the entire US economy into a tailspin and with that, the US loses the ability to issue bonds.
On this point, even Justice Barrett thought that the fascism went too far. She didn't join that part of the opinion, which still is the law of the land because (shamefully) Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Gorsuch and Justice Kavanaugh imposed it without any legal basis.
The best part was how they made the distinction between official and unofficial acts but then also went on to say the Court cannot question the President's motives
so it's basically guaranteed that everything short of a straight-up Bond villain plot will be deemed "official" and there's no check
A new test is coming into focus:
1) When the act is bad for the Justices personally (e.g., one of them who was appointed by a Republican President is bundled into a Border Patrol van and is never seen again), it's not an official act.
2) Otherwise it's bold and decisive action and therefore A-OK.
To someone who thinks everyone is after them, the idea of ‘national security’ is very broad. How many groups has Trump accused of destroying the US? What’s stopping him from locking up and/or executing those he and his fascist lackeys see as enemies of the state?
If Trump puts armed troops on the streets it would be an official act. As citizens we could shoot at those troops that will begin a civil war. It might even be an obligation to defeat an out of control government. I can actually see that happening now. @chrislhayes.bsky.social@gtconway.bsky.social
Chutkin will have an initial say on that. Only to be overruled by a Supreme Court packed with Federalist Society people who know much better what the founders meant by not electing kings.
Also—and I am definitely speaking as a layman—how does the Court’s declaration of Presidential “immunity” square with the Constitution setting forth the possibility of impeachment for “high crimes and misdemeanours”? How can Presidential acts be “crimes” if official acts are immune?
I may be mistaken, but the ruling said it's up to the courts to decide if a President has committed a crime.
So, practically speaking: Trump has full immunity. Biden does not.
This right here was the whole strategy for Trump’s lawyers. It’s like a shell game. You wanna try me for fomenting an insurrection? Well you can’t because it’s now an Official Act! Illegally withholding aid to extort Ukraine? Official Act!
And presidents CAN'T act alone. They require an enabling organization to carry out their acts.
The entire Executive pyramid has to be indemnified; from the SES to the GS-1.
regarding someone so sociopathic he can't comprehend what the Constitution is and means and can't therefore carry out his oath of office...just mind-boggling and a seeming play for power...
Since the current President is a Democrat, no. The court gets to decide which acts are official. If they could, they would make Biden signing laws passed by Congress an unofficial act (for whatever laws will be worth, come January).
Depressing to think that he could basically do this but avoid charges if he just told one of his subordinates officially working in the White House to do this instead of calling directly, since the conversation between them would be excluded from evidence.
I hope the Dems will use this new presidential power to the max now to get Biden reelected. If it's legal, then it's not cheating, it's completely fair play. These are the new rules of the election and not using them would be irresponsible.
So giving an order to the military is giving an order to the military and whether it is raising a flag or killing a civilian, the act is the order in the abstract rather than the concrete, and thereby immunity applies?
As a practical matter, I think you have to treat it as Calvinball and expect an outcome-based decision on any given case. Assuming there's a consistent principle at play here would seem to be folly at this point.
