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.
But that's only one thing. There's tons of options available that won't be publicized. Have Biden order the CIA (official act) to do something covert about Trump/Thomas/Alito. It MIGHT come out before the election, but regardless is basically unprosecutable.
He could something immensely popular like sanctioning US citizens Alito and Thomas. He can take their vacation homes, reassign their official residents, change their SS protection to regular DOJ
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
The other guy already *did* violate all democratic norms and at least skirted the edge of violating the Constitution. And he has repeatedly stated his intention to do so again.
I doubt that Biden will violate norms or the Constitution, but he wouldn't be the "first" one if he did.
I’ve been voting my entire life, and it clearly hasn’t mattered for shit has it? If we’ve come to this, “Keep doing that thing you’ve been doing that hasn’t done fuckall to prevent any of this fascist bullshit from happening,” isn’t an overwhelmingly rousing battle cry.
True…and I admit I’m guilty of saying some things. I’m just convinced that the Right thinks these arcane policies are only going to affect the Left. (Biting my tongue & not howling at the wolves😰)
The structural reason it doesn't matter is because SCOTUS would write some fancy language and invent new rules to block him.
SCOTUS is an active participant in national politics now.
That's the "sad" truth... because he has integrity and honor. Unlike TFG who will gladly use this decision to F*ck everyone who is not loyal to his wishes and bows to servitude.
It's not MAGA... It's MagaTalabanism! We are shaping ourselves in the world view of Iran and Afghanistan.
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.
I'll point out that Napoleon staged the military outside of the General Assembly at one point and prevented political opponents from entering in order to pass legislation. Under the SCOTUS ruling, it seems like a president could do the same and be immune due to being the C-in-C.
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.
THIS. Everyone saying Biden should go 'all out, use his immunity, be imperial " missed that part. Vague, presumptive immunity is to be adjudicated in the courts with appeal on up to them. They decide. Pres should follow the law. Congress Amend Constitution; no kings. Voters elect pple of character
The courts could only overrule it if they are sitting, which is something any good fascist would prevent. No staff, no premises, and a guard outside their homes. I suppose heroic judges might surmount those obstacles to convene a court ad hoc, but the SC judges are elderly and not apparently heroic.
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
