let's do the seal team six hypo. president orders st6 to assassinate a political rival bc rival is a threat to national security. possible this is absolutely immune under pres's commander in chief power. if it's not, then it gets presumptive immunity (which may be absolute anyway)
Presidents will be restrained by the long settled norm of not deploying death squads that have sworn an oath of personal fealty to the president! And if they do violate that norm, why we can make our displeasure known at the ballot box!
Roberts even acknowledges the possibility of "Congress [] unable to muster the political will to impeach" and he fails to elaborate on whether impeachment & conviction would waive the court-invented presidential immunity
And despite Roberts' scolding that impeachment would not be a "necessary first step in the enforcement of criminal law," what impeachable act would NOT be covered by Roberts' invented immunity? Is the president going to be impeached for jaywalking? (Is jaywalking an official act?)
president goes to olc, which has now been stacked with "yes this is official act" lawyers such as john yoo types. "please stamp this order to assassinate my political rival an official act." "official act boss!"
president: "i was told this was an official act before i did it."
Presumably you'd need to collect evidence that the presumption shouldn't be granted, and that evidence would probably be in the conversations with officials which themselves are at least presumptively immune and therefore need their own presumption overcome before they can be used as evidence.
There's also the possibility that Der Orangenführer just spouts his illicit motivations at a rally in public, but there's not a lot to stop SCOTUS from closing the "public-statements loophole" next session.
Serious q: Do you think there should be a public authority exception to relevant statutes (e.g., federal murder statute) in case of targeted killing of US citizens? The DoJ has already signed off on that. Because then the main difference in your hypo is who counts as a political rival?
Additionally, isn’t there a significant distinction between absolute or presumptive immunity for conduct and whether the conduct is legal/whether an advice of counsel defense is available?
I have no problem with the president facing criminal charges for ordering the extrajudicial execution of US citizens. Is it really that hard to fathom that the Rule of Law applies to the president, too?
Oh, yes, beyond for sure, but partly by revealing the foreign affairs exceptionalism of prior debate—no rule of law long treated as completely normal tolerable for presidents there, even when it came to killing fellow citizens (not just fellow humans).
If you want to say that there has long existed a state of exception in confined circumstances, along the lines of Mbembe’s necropolitics, I have no disagreement with that. I would argue that this opinion is the motion of the exception swallowing the rule.
Me too, but there is a range of bad things, which are not at all speculative (as you “hypo” is so far), many of which have been treated as normal. That doesn’t make this less bad. It just raises the familiar problems of distinguishing and limiting as well as selecting what to care about when.
to me this is like the practical status quo ante of immunity, which was substantial. context is everything. shooting folks on 5th ave is just not a drone strike in a war zone.
Most of the evidence you'd need to overcome the presumption of immunity would probably itself be presumptively (or absolutely) immune, right? Like just the discussions with DoJ officials are specified to be absolutely immune in the opinion.
Biden would have such a demonstrably well justified claim on this ground as to Trump. Though he wouldn’t even have to present the rationale in court. Then there’s Ginni and Clarence, the Alitos, a bunch of Members of Congress. That’s just at the top levels of the federal government.
Does the Commander-in-Chief authority encompass targeting non-combatants? War crimes? IHL violations?
Does it make sense that the contours of the C-n-C authority exceeds what is legal for the military to do? Is the Constitutional nonsensical if it does?
I'm sure impeachment will be an effective remedy against a President who {checks notes} is known to kill someone who identifies themselves as his political opponent. I'm sure lots of people will vote to remove him, among the surviving Senators.
