Presidential Immunity and the Catch-22 of American Politics

All of the legal remedies are impossible.

Yesterday’s ruling in the presidential immunity case is generating the predictable hyperbolic reaction from the usual suspects. See, for example, Elie Mystal (“The President Can Now Assassinate You, Officially“) and, of course, Mark Joseph Stern (“Don’t Believe John Roberts. The Supreme Court Just Made the President a King.“). But even more sober analysts are concerned about slippery slopes. Two essays in the Atantic, by Quinta Jurecic (“Trump Secures His Get-Out-of-Jail-Free Card“) and Adam Serwer (“The Supreme Court Puts Trump Above the Law“) are worth the time.

Rather than extensively quoting from the above, though, I’m going to focus on two pieces that get to the core of the problem: a Constitutional system that provides solutions that, in practice, aren’t solutions are all.

Daniel Drezner (“The Rant of an Institutionalist“) devotes several paragraphs recounting recent blows to the American system of checks and balances before getting to the

stunning 6-3 decision in Trump v. United States. Writing for the majority, Chief Justice John Roberts declared that all Trump (as well as other presidents) “may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.” The ruling goes on to stipulate that examples of core constitutional powers include Trump’s efforts to persuade Mike Pence to not accept the Electoral College results in his capacity as Vice President. The ruling further stated that, “Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.” This means that Trump’s efforts to pressure DOJ officials into claiming election fraud where none existed are considered to be part of his core constitutional powers.

There is no way to sugarcoat the dangerous implications of this decision. It continues the agglomeration of presidential power at the expense of other countervailing institutions.

[…]

What worries me about these latest SCOTUS rulings, however, is that if Trump is re-elected he could just choose to stay in power and the Supreme Court would reject any legal means to remove him from power because they would determine that no one had standing to do so.

That is insane pretzel logic, and yet I would not put it past this Supreme Court to make that decision. Earlier this year they rejected a plain-text reading of the 14th Amendment that would have disallowed Trump from running for the presidency for supporting an insurrection. The 22nd Amendment limits presidents to being elected to more than two terms, but it says nothing about a president serving more than two terms. This Supreme Court is revisionist enough to exploit that loophole.

I had always assumed that U.S, institutions ensured that American democracy would wind up with minmax outcome or better. In other words, even if horrible people are elected to high office, democratic structures imposed hard limits on the damage that they could do. Even during Trump’s first term, there was just enough juice in those countervailing institutions to prevent the worst of the worst from happening.

Those guardrails are gone now. If Trump wins in November, if Republicans win both houses of Congress, I have zero faith in any countervailing institution protecting civil liberties, the rule of law, or any of a hundred ontological givens that I had taken for granted all my life. In that outcome, the U.S. would shift to being a competitive authoritarian state.

Slate’s Richard L. Hasen (“Trump Immunity Ruling Will Be John Roberts’ Legacy to American Democracy“):

Is the Supreme Court obtuse or disingenuous? In its awful immunity ruling on Monday benefiting Donald Trump, the court seems so worried about future threats to democracy that could come from the possibility of bogus future criminal prosecutions of former presidents that it is willing to let a legitimate election subversion prosecution over a current threat against democracy go by the wayside.

[…]

These justices were always thinking about an abstract problem that could occur in 2072 or 2114 with presidential power and not about the problems the United States faces today with the attempt at election subversion undertaken by Donald Trump and his allies in 2020.

[…]

oberts plays the role of the faux minimalist, as he often likes to do, pretending that when he is making major changes in the law he is really doing very little. He did this, for example, in the 2013 Shelby County v. Holder case killing off a key part of the Voting Rights Act. There he told us that Congress could tinker and fix the formula used to figure out which states need federal supervision of their voting rules, and that there were other voting rights protections under the law. He wrote that knowing Congress would not act. The Roberts Court would then whittle away those other protections in subsequent years.

[…]

Even putting aside the risks for future presidential authoritarianism, Roberts offers no acknowledgement that the court’s fact-intensive, slow-moving process has let Donald Trump run out the clock on claims of election subversion in 2020. Roberts surely was aware that this was an implication of the decision and surely the risks to democracy from this decision had to have crossed his mind.

Roberts’ failure to even acknowledge those risks, even if he thought the risks were worth taking because of larger principles at stake of protecting the presidency from bogus prosecutions in the future, is going to be Roberts’ legacy for American democracy. That is, if our democracy survives.

For the sake of argument, let’s begin with the increasingly credulous assumption that the Republican appointees on the Court are simply interpreting the law as they see it rather than manufacturing their desired political outcomes. Through that lens, there is indeed an obtuseness to their rulings.

If you believe, as I do, that the Constitution as written by the Framers in 1787 and amended only a handful of times* since, is woefully inadequate for a 21st-century continental superpower and yet binding unless replaced or amended, we’re left with a hell of a Catch-22. The Framers created the Presidency with George Washington and and entirely different concept of Executive power in mind. And, as has been noted often here over the years, completely oblivious to the notion of party politics.

Their presumption was that the President, who would be selected by the gentry of the several states through the device of the Electoral College, would be an honorable man.** And, were that presumption to fail, the honorable men of the House would impeach him forthwith and the honorable men of the Senate would band together to banish him from office.

Thankfully, our Presidents have indeed mostly been honorable men. But partisan politics has all but guaranteed that, in the instances where that was not true, the Senate would not muster the necessary two-thirds vote for removal. There have thus far been four presidential impeachments (with Trump accounting for two of those) and zero removals. Indeed, prior to Trump, not a single Senator from the President’s party voted to convict and remove.

This fact caused a lot of consternation in the comments of my post, “SCOTUS on Presidential Immunity: It Depends.” It does no good to say that the remedy to a President committing crimes is impeachment if impeachment is effectively a dead letter. It is, alas, the only tool the Constitution provides for punishing a sitting President who commits high crimes and misdemeanors. It is, again, a Catch-22.

Similarly, the Constitutionally-correct response to so many Supreme Court rulings is that Congress has the power to remedy the issue through legislation. The fact that the Congress is largely dysfunctional and therefore will not in fact enact the remedying legislation is, in a theoretical world of a Supreme Court that merely interprets the Constitution without consideration of the political implications, a political problem solvable by political means. In reality, though, it won’t be.

In describing a system wherein “ambition is made to counteract ambition,” Drezner obliquely references Federalist 51. It is instructive.

[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.

The very presumptions on which the entire edifice relies have been stood on their head.

First, partisanship, especially in the nationalized, sorted manner in which it has evolved in recent decades, means that members of the legislature are more beholden to a President of the same party (or organized in opposition to a President of the opposite party) than they are to the prerogatives of their own institution. Second, going back to at least the Great Depression, the Executive has been far and away the most powerful branch. Indeed, Congress simply can’t manage a modern state through the Constitutional design and has been forced to delegate much of its responsibility to Executive branch agencies.

I do disagree with Drezner on one point: the recent spate of Supreme Court have not all been in the direction of bolstering the Executive. Striking down Chevron deference, for example, clearly weakens the Executive at the expense of the Judiciary, the Article III courts in particular. And there’s good reason to fear that the next shoe to drop is the end of the administrative state altogether, which would radically limit the President’s ability to govern through executive orders.

At the theoretical level, I continue to think the broad outlines of yesterday’s decision are reasonable. Presidents ought to be able to exercise core Constitutional functions without fear of criminal sanction, either while in office or afterward. Presidents make weighty decision, often pushing the envelope on legality,*** and shouldn’t have the prospect of their political opponents weaponizing the justice system after they leave office.

Alas, the institutional safeguards are broken. Impeachment is essentially a dead letter because of partisanship. And, as recent events have made clear, the people themselves are not the answer. Trump’s attempts to steal the election, including inciting a riot in the Capitol, seem to have had no impact on his electability. Ditto findings by two separate juries that he committed sexual assault and dozens of counts of criminal fraud. Of course, the bastardized version of the Electoral College we use, filtering the popular vote through an institution designed for a completely different purpose, exacerbates the problem.


*That there are 27 amendments actually overstates how often it has happened. Numbers 1-10 and 27 were all part of the Bill of Rights proposed by the first Congress and can reasonably considered part of the main document, given that the measures were part of the grand bargain for ratification. Numbers 13-15 were the direct result of the Civil War and possible only because of Reconstruction and the former Confederate states being essentially bypassed. Numbers 18 and 21 institute and repeal Prohibition; together, they are a nullity. That leaves only 11, most of which were relatively minor tinkering or overreactions to short-term crises.

**The notion that the President could be a woman would have been laughable.

***Just the exercise of the War Powers alone elicits at least half a dozen examples.

FILED UNDER: *FEATURED, Law and the Courts, Supreme Court, US Constitution, US Politics, , , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Modulo Myself says:

    The thing is, they should have to worry about criminal justice due to their actions in the same way that they should be worrying about dragged to the Hague.

    The idea that the office of the president requires insulation from the law because it exists in a permanent state of exception is a product of empire and war. I have no practical idea how to unwind these powers, but they are counterproductive to democracy and not at all required. The guy who really believed all of this about power–Richard Nixon–was a guy who was the ultimate creation of Cold War imperial politics. In no way should he be the model for the future.

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  2. At the theoretical level, I continue to think the broad outlines of yesterday’s decision are reasonable.

    I understand where you are coming from, but I have to stridently disagree that the notion that a president can conspire to overturn an election (or broadly do anything that abuses DOJ) because it is broadly defined as his “core powers” is grotesque and absurd and will surely come back to harm us all if Trump is re-elected or when a Trumplike person wins in the future.

    The potential for gross abuses of power is immense. I cringe at Trump engaging in “core powers
    with Stephen Miller about immigration.

    Poor Nixon, if only he had had this SCOTUS he would not have had to resign.

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  3. James Joyner says:

    @Modulo Myself: In theory, I agree. In reality, though, the President is the Commander-in-Chief of the armed forces and the broader national security apparatus, charged with making life and death decisions, including, potentially, the launch of our nuclear arsenal. That’s almost certainly too much power for human being to wield and yet there’s no obvious workable alternative.

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  4. Presidents make weighty decision, often pushing the envelope on legality,*** and shouldn’t have the prospect of their political opponents weaponizing the justice system after they leave office.

    Recognizing the problem of such weaponization, it is not at all unreasonable for there to be some amount of qualified immunity rather than absolute immunity.

    It isn’t as if it isn’t already very, very, very, very, very, very hard to prosecute a former president.

    We are protecting against a reality that does not exist while allowing, as noted in the OP, a true dire reality of abuse of power.

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  5. Chip Daniels says:

    Impeachment is essentially a dead letter because of partisanship.

    Could we please not do this?

    No, it is NOT “partisanship” it is the Republicans. When a Democrat is found to be corrupt, Democrats have no qualms about expelling him.

    There is a battle for democracy, and Republicans are on one side, Democrats on the other.
    I don’t know why pundits have such a hard time stating an objective reality.

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  6. Chip Daniels says:

    @Steven L. Taylor:
    E.G., Trump’s immediate response to the ruling was to demand that Liz Cheney be tried in a military tribunal.

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  7. Modulo Myself says:

    @James Joyner:

    I agree that the president has too much power. But legally that doesn’t mean you throw your hands up. Practically, presidents aren’t even impeachable for anything related to war. Obama assassinated American citizens, Bush set up torture camps and neither seem particularly worried about being prosecuted. The Court larps its way into pretending they are debating important legal issues, but all they were doing is trying to use the unfortunate power of every ‘normal’ president to cover up for a guy who was trying to overturn an election.

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  8. @Chip Daniels:

    When a Democrat is found to be corrupt, Democrats have no qualms about expelling him.

    Bill Clinton?

    (And yes, we can debate the charges, but let’s not pretend like there wasn’t partisanship influencing views, or that it doesn’t still cloud them).

    As a general matter, however, it is quite clear to me that impeachment and removal is almost certainly dead because of the general nature of parties, which the original design does not take into account. Period. Full stop.

    None of that, BTW, obviates the GOP’s guilt in these matters.

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  9. Erik says:

    Systems give the outputs they are designed to give. If the outputs are consistently not what is desirable (or even once if the output is bad enough), the solution is to change the system, not to defend the system

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  10. James Joyner says:

    @Steven L. Taylor:

    I have to stridently disagree that the notion that a president can conspire to overturn an election (or broadly do anything that abuses DOJ) because it is broadly defined as his “core powers” is grotesque and absurd and will surely come back to harm us all if Trump is re-elected or when a Trumplike person wins in the future.

    I don’t think we disagree on that point. And, for the most part, neither does Roberts—he clearly signaled that most of Trump’s actions were in his role as a candidate for office, which is outside the absolute protections of the “core” powers.

    The Constitutionally-envisioned protection against a President ordering a cabinet official to do something illegal is 1) for the official to refuse said order and/or 2) for Congress to impeach and remove him from office. That this failed in this instance and likely always would is the core problem at the heart of the post.

    Obama ordered the assassination of a US citizen in service of the war on terrorism. For a host of reasons I outlined here and elsewhere at the time, I largely agreed with that decision despite having some serious qualms. I certainly don’t think Trump should have been able to sic the Justice Department on him in the aftermath.

    Trump’s case is of course more narrowly self-interested, with no national security implications. But it’s a hell of a slippery slope to allow the parsing of Presidential orders post hoc in criminal proceedings.

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  11. DK says:

    Yesterday’s ruling in the presidential immunity case is generating the predictable hyperbolic reaction…

    Yeah we were told the reactions to Trump’s election was hyberpolic, that fears of the fall of Roe were overstated.

    The whole “you’re just being hysterical bit” doesn’t work anymore. Not after Trump’s Russis collusion, terror attack on Congress, tiki torch Nazis, bodies stacked in freezers, riots, and lockdowns — with Texas and Oklahoma forcing the Christian Bible into grade school curricula, and females including child rape victims facing death and injury from lack of abortion care.

    It’s the predictably sanguine reactions from establishmentarians that are problematic. Not the justified alarmism from we who refuse to participate in Project Normalize Fascism.

    I continue to think the broad outlines of yesterday’s decision are reasonable. Presidents ought to be able to exercise core Constitutional functions without fear of criminal sanction

    Rightwing bullshit. We’ve had 46 presidents. In order to believe this evidence-free bullshit, you’d have to believe Nixon should have been immune for Watergate, that the rest of them have been unduly constrained and crippled in the execution of their official duties. Because until yesterday, all 46 knew they could maybe possibly face prosecution for crimes committed in their official capacity.

    Conspiracy to commit murder is a crime. Nothing in the Constitution says it’s legal for the American president to so conspire if he does so with his vice-president and attorney general. Further, there’s not a shred of evidence — in 235 years of presidenting — that our commanders-in-chief were hurt by that lawful and reasonable status quo.

    Roberts and company made it up, there’s no catch-22 dilemma: the Constitution does not allow, and the president has never before nedeed, criminal immunity for official acts to do the job of leading the executive branch. This is dangerous horseshit, crafted by a corrupt and radical majority under a failed Chief Justice to cater to the thuggery of one failed president.

    (And this irrational, unreasonable, and unconstitutional ruling will be overturned eventually, btw, taught alongside Dred Scott, Korematsu, and Plessy.)

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  12. Chip Daniels says:

    @Steven L. Taylor:
    Why not a more recent example of Bob Menendez?
    Or for that matter, the home of the mayor of Oakland was raided by the FBI recently and got nothing more than a shrug from the Democratic party.

    Even if you want to use Clinton, the reaction from Democrats was nothing remotely similar to what we are seeing now with the Republicans.

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  13. James Joyner says:

    @DK:

    We’ve had 46 presidents. In order to believe this evidence-free bullshit, you’d have to believe that all of them have been unduly constrained and crippled in the execution of their official duties. Because until yesterday, all 46 knew that they could maybe possibly face prosecution for criminal behavior.

    It’s just not so. Here, for example, is a law review article from 1997, more than a quarter century ago now, that begins with a quote from Justice Joseph Story dating to 1833:

    “There are … incidental powers, belonging to the executive department, which are necessarily implied from the nature of the functions, which are confided to it. Among these, must necessarily be included the power to perform them, without any obstruction or impediment whatsoever. The President cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office.”

    Or this from Cornell’s LII:

    The Constitution gives no immunities to former government officials after office, and most of the arguments for giving immunities to presidents or any official no longer exist once they leave office. The fact that the Constitution allows courts to try a president after being removed from office by the Senate brings many to assume courts must be able to do so at least for actions by a former president after office. Many have supported the indictment of a former president, including both the Department of Justice and President Ford–at least implicitly–when he pardoned former-President Nixon.

    Most arguments against indicting a former president revolve around whether former presidents can be indicted for conduct that occurred while in office, and if so, what conduct. It is widely understood that presidents must receive some protection given the unique nature of the office regarding suits related to official conduct, and many argue that the lines between official and unofficial conduct can be blurry. In order to protect presidents for official conduct, only actions by a president clearly in a personal capacity should be indictable after leaving office, if at all. Many holding this position find that the role of punishing presidents for official acts remains with the Senate.

    It was always a hotly debated, purely theoretical question until Trump.

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  14. DK says:

    @James Joyner:

    It’s just not so.

    It is, unless you can name which of our 46 president were constrained by fear of criminal prosecution and how.

    You cannot. Because they weren’t. They’ve all beem able to do their duty without serial criming or needing the Supreme Court invent nonsense about “absolute vs presumptive immunity.” It’s only one man who has a problem.

    There are lots of fringe theories floating around the millions upon millions of law review pages compiled ober decades. They ought to stay there, but the right cannot leave well enough alone.

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  15. Moosebreath says:

    @James Joyner:

    From the Story quote above, “The President cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office.” (emphasis added)

    ETA — The same is explicitly stated in the Cornell piece: “The Constitution gives no immunities to former government officials after office, and most of the arguments for giving immunities to presidents or any official no longer exist once they leave office. The fact that the Constitution allows courts to try a president after being removed from office by the Senate brings many to assume courts must be able to do so at least for actions by a former president after office.”

    You seem to be conflating prosecution while the President is in office with prosecution after he has left office.

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  16. Kathy says:

    At the theoretical level, I continue to think the broad outlines of yesterday’s decision are reasonable.

    Sorry, no. They’re not reasonable at all by any stretch of the term reasonable.

    Why is there an office of White House counsel? Why do all cabinet departments have an in-house legal department?

    One can argue, reasonably, that in some emergency situations that require urgent action, a president might overstep their legal boundaries to deal with the problem.

    The abominable decision issued by Roberts explicitly says a coup is within the president’s core powers. It will be a cold day in hell when that can be taken as reasonable.

    I repeat my suggestion that Biden ought to start testing this new stupid legal theory.

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  17. Kathy says:

    Another thing, if the Democrats take Congress this year, their very first action should be a presidential accountability act, stating in no uncertain terms that the president is subject to all applicable local, state, and federal laws, and that they may be investigated, indicted, prosecuted, tried, and convicted while in office.

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  18. DrDaveT says:

    I do disagree with Drezner on one point: the recent spate of Supreme Court have not all been in the direction of bolstering the Executive. Striking down Chevron deference, for example, clearly weakens the Executive at the expense of the Judiciary

    It’s not “the Executive” that SCOTUS is enabling; it’s the President. Striking down Chevron weakens the bureaucracy, but doesn’t affect executive orders at all. That’s a relative increase in Presidential power.

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  19. DK says:

    @Modulo Myself:

    The idea that the office of the president requires insulation from the law because it exists in a permanent state of exception is a product of empire and war.

    Yes, and don’t forget a product of alternate reality.

    We’re to believe that until yesterday the president was in handcuffs, that it took 235 years and 46 different men for presidential power to be brought into its proper balance. Whew! Now we can rest easy, they can finally do their jobs.

    Sure Jan. Some people will fall for anything.

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  20. steve says:

    “I don’t think we disagree on that point. And, for the most part, neither does Roberts—he clearly signaled that most of Trump’s actions were in his role as a candidate for office, which is outside the absolute protections of the “core” powers.”

    The court has already ruled that Trump is immune to prosecution for trying to place false electors. How does that square with what you believe?

    Steve

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  21. reid says:

    @Modulo Myself: Hear, hear! This need to protect the president from any prosecution is bizarre. It’s never really been an issue, but we’re supposed to believe it’s so important that we have to invest the office with such dangerous amounts of power? Especially everything happening with *Trump*?! Given how obviously partisan (if not radical) at least two of the Justices are, it’s hard to believe this is a good faith decision.

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  22. Kazzy says:

    “…for Congress to impeach and remove him from office. That this failed in this instance and likely always would is the core problem at the heart of the post.”

    It failed in part because the GOP powers-that-be insisted that these were questions for a court, not Congress. And the courts have now said it is a question for Congress.

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  23. DK says:

    @steve:

    The court has already ruled that Trump is immune to prosecution for trying to place false electors.

    Not totally I think. Just regarding the relevant conversations with Barr and Pence.

    Presumably, Trump had such conversations with state officials and private parties — those might be unofficial acts subject to criminal prosecution. Maybe. Possibly. Pending years of litigation.

    A president conspiring to coup is only legal if he conspires with executive branch actors. Or something? I don’t even think Roberts understands his own made-up bullshit. Fringe conspiracy theories only get more odd and convoluted the more one looks at them.

    Everyone should read the ruling. It’s delulu but digestible.

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  24. @James Joyner:

    I don’t think we disagree on that point. And, for the most part, neither does Roberts—he clearly signaled that most of Trump’s actions were in his role as a candidate for office, which is outside the absolute protections of the “core” powers.

    Not the part where he was able to direct DOJ. From the ruling:

    Because the Presi-
    dent cannot be prosecuted for conduct within his exclusive constitu-
    tional authority, Trump is absolutely immune from prosecution for the
    alleged conduct involving his discussions with Justice Department of-
    ficials.

    You are, in my view, giving Roberts too much credit.

    Quite clearly, Trump’s corrupt (in my view) actions in regards to DOJ and the elections are now absolutely immune from prosecution.

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  25. Scott F. says:

    @Steven L. Taylor:

    We are protecting against a reality that does not exist while allowing, as noted in the OP, a true dire reality of abuse of power.

    I would say it’s not so much an abuse of power, but a securing of power.

    I believe we are losing sight of what is truly dire about our situation if too much focus is given to Trump’s unique corruption in this moment in time. Rather this latest ruling is another data point along of trajectory of Republicans moving to cement minority rule. With one exception, the Republican Party has’t won the popular vote for President since 1988. The GOP simply couldn’t hold the House without partisan gerrymandering and we all know how the Senate favors the minority. The GOP simply hasn’t represented the will of The People for some time. So it is necessary to secure power by other means, as they’ve convinced themselves that “saving the country” is unachievable through the compromise and moderation necessary in a democracy or a even a republic.

    I’ve been reflecting on Hasen’s reference to Justice Roberts’s legacy. I can’t imagine that Roberts sees this decision as cementing his place in history as Trump’s whore. I believe instead, that he is comfortable, if not pleased, to be going down in history as the man who enabled the imperial presidency model embraced by Bill Barr and his ilk. Certainly, Alito, Gorsuch, and Thomas all believe they know better than their lessers in The People.

    A conservative Judiciary and overly empowered Executive are means to end for our rightful rulers. A dysfunctional Legislative branch is a feature not a bug. Everything is going to plan.

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  26. @James Joyner:

    for the official to refuse said order

    If men were angels, no government would be necessary.

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  27. @James Joyner:

    I certainly don’t think Trump should have been able to sic the Justice Department on him in the aftermath.

    If there is evidence of criminality, yes he should. Like any other person and any other crime.

    Hell, Trump clearly broke the law in the documents case, and look how hard that has been to even bring to trial, and that is before this ruling.

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  28. @Steven L. Taylor: My point being that frivolous attacks should be dismissed by courts but real evidence should be adjudicated.

    Like everyone other American citizen.

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  29. @James Joyner:

    Trump’s case is of course more narrowly self-interested, with no national security implications. But it’s a hell of a slippery slope to allow the parsing of Presidential orders post hoc in criminal proceedings.

    (Sorry about the individual responses).

    There is one slippery slope wherein a lot of frivolous attempts to prosecute would take place. Agreed, but I am willing to weather that slope rather than the one we are on now where someone like Trump can conspire to do a lot of awful things under the color of law because they are part of his “core” powers.

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  30. @Chip Daniels:

    Why not a more recent example of Bob Menendez?

    Because the issue was impeachment and partisan reactions.

    To be fair, Menendez has not been expelled from the party nor the Senate. And let’s face facts: Dems know that that seat will stay with the party.

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  31. @James Joyner:

    purely theoretical question until Trump

    Indeed, but the problem is that, to me at least, what Trump proves is that the debate should therefore fall on the side of less immunity, not more.

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  32. @Kathy:

    Why is there an office of White House counsel? Why do all cabinet departments have an in-house legal department?

    Indeed.

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  33. James Joyner says:

    @steve:

    The court has already ruled that Trump is immune to prosecution for trying to place false electors.

    Where are you seeing that? I see them as remanding the question to the lower courts:

    There may, however, be contexts in
    which the President speaks in an unofficial capacity—perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of “content, form, and context” will necessarily inform the inquiry. Snyder v. Phelps, 562 U. S. 443, 453. Whether the communications alleged in the indictment involve official conduct may depend on the content and context of each. This necessarily factbound analysis is best performed initially by the District Court. The Court therefore remands to the District Court to determine in the first instance whether this alleged conduct is official or unofficial.

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  34. @James Joyner:

    Where are you seeing that?

    See my quote above.

    He is immune from the part linked to what he told the DOJ, including any evidnece linked to those discussions.

    He can, I think, ppssibly be prosecuted for calling GA officials, etc. Maybe.

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  35. James Joyner says:

    @Kathy: @Steven L. Taylor:

    Why is there an office of White House counsel? Why do all cabinet departments have an in-house legal department?

    I don’t think it’s because Presidents are subject to criminal prosecution but rather that they have a Constitutional responsibility to take care that the laws are faithfully executed. But it’s long been understood that it’s the job of the President’s legal advisors to interpret the law in such as way as to maximize the President’s ability to execute his preferred policies.

    I just think very little, if any, of our system is designed around the possibility of a President so wildly indifferent to the rule of law, much less norms, as Trump.

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  36. @James Joyner:

    I don’t think it’s because Presidents are subject to criminal prosecution but rather that they have a Constitutional responsibility to take care that the laws are faithfully executed.

    It is my understanding that a major role for the White House Counsel is for the president to be advised as to the legality of his actions. I see less reason for presidents to care about such frivolities after the ruling yesterday.

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  37. Kathy says:

    @James Joyner:

    What @Steven said

    Because the only other possible reason I can see, is to get John Larroquette a recurring guest role in The West Wing.

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  38. James Joyner says:

    @Steven L. Taylor:

    It is my understanding that a major role for the White House Counsel is for the president to be advised as to the legality of his actions. I see less reason for presidents to care about such frivolities after the ruling yesterday.

    @Kathy:

    Because the only other possible reason I can see, is to get John Larroquette a recurring guest role in The West Wing.

    We didn’t create all these offices to keep the President out of jail but because the laws are complicated. As we saw repeatedly with Trump, failure to follow, say, the Administrative Procedures Act doesn’t land officials in jail; it results in the President’s agenda being thrown out by the courts.

    The OLA decision that allowed killing Awlaki wasn’t predicated on whether Obama would be prosecuted but whether and under what circumstances the President had the authority to order the killing of a US citizen residing outside the reach of the US criminal justice system.

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  39. gVOR10 says:

    IANAL but it seems to me Roberts changed the definition of official duties. Last week whether a meeting dealt with official duties depended on the purpose of the conversation, say whether to send fraudulent letter claiming DOJ was investigating a state’s election. Now it apparently it falls under official duties if the other party is an executive branch subordinate, even if they’re discussing how to cheat on golf scores.

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  40. @James Joyner:

    We didn’t create all these offices to keep the President out of jail but because the laws are complicated.

    Agreed, but I think you are splitting hairs a bit here.

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  41. Perhaps more to the point (or my point) is that there are not fewer reasons for the president to be concerned with the legality of his actions.

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  42. James Joyner says:

    @Steven L. Taylor: Honestly, this seems almost purely a Trump thing and, of course, he didn’t seem the least bit constrained. Other than maybe Nixon, I’m not sure any previous President was worried about going to jail even though many of them (Clinton, Bush Jr, and Obama in recent years) quite probably broke US law.

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  43. Kathy says:

    @James Joyner:

    We didn’t create all these offices to keep the President out of jail

    Not exclusively, no.

    I’m sure Beth and other lawyers here will back me up on this one, a lawyer who fails to point out criminal liability involved in a client’s proposed actions or plans, would be committing malpractice.

    The al-Awlaki matter is a good example. The problem wasn’t that he was beyond the reach of the reach of the US criminal justice system, but that he was beyond said reach while and aiding enemies of the US at a time of war.

    This also exemplifies my point above about exigent circumstances where a president may overstep legal boundaries, criminal liability or not.

    There are other people wanted for criminal matters who are beyond the reach of the US criminal justice system. For example, Roman Polanski. Had Obama ordered an airstrike to take him out, he should have been arrested, indicted, tried, convicted, and given life without parole.

    I’m sure Obama’s advisors would have told him this, had he wanted to kill Polanski, or had he wanted to meddle with the voter slates in Michigan, Pennsylvania, and Wisconsin in 2016, or had he tried to talk Joe Biden into rejecting some elector slates. I’m fairly confident the Orange Ass received such warnings.

    The point is most presidents won’t engage in criminal activity, and when they sometimes do or come close to it, it’s due to major policy matters, not their self-benefit. Think of Reagan quite illegally selling arms to Iran and taking the proceeds to finance the Contras. The reason why the Republicans of the time turned on Nixon, was that his crimes were committed for his benefit (and that at the time they did not think Democrats were evil incarnate).

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  44. SenyorDave says:

    @gVOR10: For Trump, cheating on his golf scores is a core portion of his official duties.

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  45. @James Joyner:

    Honestly, this seems almost purely a Trump thing and, of course, he didn’t seem the least bit constrained. Other than maybe Nixon, I’m not sure any previous President was worried about going to jail even though many of them (Clinton, Bush Jr, and Obama in recent years) quite probably broke US law.

    Either we are seeing this in a diametrically opposed way, or we are misunderstanding each other.

    Part of my point is that Trump is illustrating the weakness in absolute immunity and therefore the Court should have acted to address the threat, as I simply do not think there is any textual evidence for absolute immunity for executive action. So, we have here a Court that is short-circuiting current legal proceedings and paving the way for a potential Trump administration that will feel utterly unrestrained.

    I think it is an unmitigated disaster and you know I try not to be hyperbolic.

    If normal presidents don’t normally have to worry about such thing, then I would submit there is not reason to grant absolute immunity.

    I simply don’t think anybody ought to have absolute immunity, especially someone as powerful as POTUS.

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  46. tl;dr we need protection from the Trump thing and future versions thereof. Instead, we got the opposite.

    We are saying that it is okay for presidents to play with fire because most of them aren’t pyromaniacs despite the fact the one pyromaniac is not going to now be held accountable for the fires he started and will, if re-elected, simply surround himself with fireworks suppliers without any worry that the fire department will intervene as long he is setting fires via his core powers.

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  47. dazedandconfused says:

    IMO a POTUS must be protected from prosecution while in office but nobody unwilling to face up to their actions in a court of law afterwards should be POTUS.
    Not that my opinion is worth much, or anything. Lincoln faced a lot of questions about this and I recall some quote about him saying “I will accept any punishment after this war, but I must do this.”

    An essay which delves into the legal issues of that time which on page 17 delves into that issue pretty well. Interesting reading.

    I would guess the only remedy is a constitutional amendment. I would like to see how a simple statement like “No one is above the law” would fare in a national debate. I suspect we need some threat hanging over the head of our kings to check wanton behavior in this era of populist kings.

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  48. wr says:

    @James Joyner: ” failure to follow, say, the Administrative Procedures Act doesn’t land officials in jail; it results in the President’s agenda being thrown out by the courts.”

    Of course, so does the President having an agenda that Samuel Alito personally dislikes.

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  49. DrDaveT says:

    @James Joyner:

    As we saw repeatedly with Trump, failure to follow, say, the Administrative Procedures Act doesn’t land officials in jail; it results in the President’s agenda being thrown out by the courts.

    They just fixed that glitch. It no longer matters what the APA says; it only matters what 5 justices are willing to pretend it says.

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  50. steve says:

    Something I missed earlier, but during the hearing Trump’s lawyer had conceded that calling GA to try to arrange for false electors was a private act and not official. However, in his ruling Roberts ignored that and decided that such a call could be official. Then Roberts ruled you couldn’t question motives and couldn’t talk with aids or look at documents.

    https://www.nationalreview.com/corner/my-immunity-case-prediction-right-and-wrong/

    Steve

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  51. Tony W says:

    @Kathy: There is no reason to wait to introduce a presidential accountability act. Force the Republicans to vote against bringing it to a floor vote.

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