Quick Reactions to the Immunity Case

Too much deference to the president, but the trial will continue.

Photo by SLT

The basics from the ruling in Trump v. United States:

Held: Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.

The short summary is that I think the Court is too deferential to the executive, that the whole thing has given Trump what he wanted in terms of delay, but the trial can continue. As I think about it, this is largely what was expected.

Some thoughts from reading the text of Robert’s majority opinion.

When the President exercises such authority, Congress cannot act on, and courts cannot examine, the President’s actions. It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that
examines such Presidential actions. The Court thus concludes that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.

So this sounds like Roberts is endorsing full and total separation of powers and forgetting the whole checks and balances part. The notion that nothing the president does within his consitutional powers can be prosecuted is, quite frankly, a scary proposition that invites dictatorial behaviors.

To be fair, the next paragraph seems to acquiese to some checks and balances.

Not all of the President’s official acts fall within his “conclusive
and preclusive” authority. The reasons that justify the President’s ab-
solute immunity from criminal prosecution for acts within the scope of
his exclusive constitutional authority do not extend to conduct in areas
where his authority is shared with Congress. To determine the Presi-
dent’s immunity in this context, the Court looks primarily to the Fram-
ers’ design of the Presidency within the separation of powers, prece-
dent on Presidential immunity in the civil context, and criminal cases
where a President resisted prosecutorial demands for documents.

I would strindently note that the notion that the best way to understand presidential power in 2024 is to simply try and divine the Framer’s design (which seems to means reading the Federalist Paper) more than elides the realities of the president’s power in the now. I increasingly think that the Court analyzes our consitutional order and historical development with the acumen and knowledge of a precocious college sophmore who just discovered the Federlaist Papers and thinks they have found the Rosetta Stone of consitutional interpretation.

“the threat of trial, judgment, and imprisonment is a far greater deterrent and plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages.”

Call me crazy, but I want a president to have to consider consequences, including personal ones, for actions.

The good news, such as it is, is that “As for a President’s unofficial acts, there is no immunity.”

So, the argument is going to be which acts were official and which were not. This means, in practical terms I think, that there will be more delays in this trial.

The bad news, however, is that the Court is, in my mind, giving the president immunity from any abuse of power if it can be linked to his “conclusive and preclusive” authority.

Because the President 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 officials.

Again, at first reading, this suggests that an awful lot of corrupt uses of power are immune from prosecution.

The ruling does allow the case to proceed in regard to Trump’s attempt to manipulate Pence into interfering with the EV count as well as his actions to influence state officials.

The ruling also rejects the Trump team’s argument that a president has to be impeached and removed before he can be prosecuted. In general, and again at a first read, it looks to me as if the Court has created some long-term problems in terms of allowing presidents king-like authorities that will have long-term negative consequences. I continue to reject the notion that presidents should not have to consider the consequences of their actions. Personal stakes should function as an internal check on abuse.

In terms of the trial, there is a way forward on a number of counts, but I fear that all of this delay means that there will be nothing conclusive before the election.

More, I suspect, once I have had time to digest all of this.

Update: A useful summary via NPR, Supreme Court says Trump has absolute immunity for core acts only.

FILED UNDER: Law and the Courts, Supreme Court, US Politics, , , ,
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. drj says:

    From Sotomayor’s dissent:

    Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. […]

    The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

    Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

    Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.

    IMO, it’s officially time to panic.

    ETA: “When the president does it, that means that it is not illegal,” is now the official position of the Court.

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  2. Michael Reynolds says:

    A President Trump could decide that transgender activists are harming America’s children, and order their arrest. And he would be absolutely immune from any consequences. That’s what just happened.

    He could order a round-up of Muslims for aiding and abetting enemies. He can machine gun asylum seekers at the border. He can sell US weapons technology to Russia, take a bribe from the Chinese to abandon Taiwan.

    We are now a banana republic.

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  3. Kathy says:

    We know how Wannabehitler’s going to take it, because he’s already done it with the tons of documents he stole.

    No reading of the presidential records act would lead any reasonable person to conclude the president can take any document that crosses their desk and designate it a personal record. But that’s precisely what Wannabehitler says he did. Therefore now he will claim anything he does while titular president is an official act, even when it’s clearly not. Roberts was even obsequious enough to give him cover, saying that pressuring the vice president to break the law is an official act immune from prosecution.

    We’re all so screwed.

    This may just solve the immigration problem. Few people immigrate, formally or otherwise, into a totalitarian dictatorship, unless they live in a worse one (ie North Koreans crossing into China).

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  4. CSK says:

    So does this mean that Biden can order the arrest of Trump? Or assassination?

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  5. Just nutha ignint cracker says:

    While I will agree with the idea that regarding the particular President the ruling is about the short summary is too deferential*, it’s probably pretty close as a general legal principle for everyday use. I whole heartedly agree that the Chief Justice’s clarification and expansion is really over the top. Still, you can’t build insurrections without plausible deniability, and Robert’s has opened the door for considerable future (and present for that matter) litigation about what constitutes “official duties.”

    * There are myriad “solutions” in lots of places, including the “Deep State,” that nations whose citizens will elect Donald Trumps to office may well need as time goes on (and the number of such nations seems to be on the rise). I’ve watched enough Harry Callaghan movies and variations on dystopic films as Salt and La Femme Nikita to realize the inherent peril in needing such systems, so I’m not advocating for any particular course of action here. Also, I’m refraining from elaborating about them in hopes that our hosts can avoid needing to address subpoenas demanding Cracker’s identity. Should this ruse of mine fail at some point, please feel free to rat me out, as it were. I’m a firm believer that when the truth don’t make you free, it’s because you don’t got no freedom comin’.

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  6. PT says:

    This is fine /meme

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  7. Just nutha ignint cracker says:

    @Michael Reynolds: 47% of us have been either supportive of or willing to trade becoming a banana republic for tax relief, bigotry, the right to bash gays and transes, and other bennies for as long as I’ve been an adult. This decision surprises me in no way whatsoever. Some famous guy decades ago said that people get the governments they deserve. The system the Founders set up has finally reached its unintended (???) consequence. Laissez les bons temps roullez.

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  8. Kathy says:

    @CSK:

    I’m willing to take small bets on Wannabehitler’s lifespan. I think he will be killed after the second debate, especially if Biden delivers a good performance.

    Biden meantime might consider pulling a Sulla. Not take dictatorial power after executing his enemies, but take action, legal or not, to reform the republic. That was Sulla’s intent, after all, and what he did once had taken directorial powers and executed his enemies.

    This would take longer than a few months, and I’m sure Biden didn’t plan for such an unhinged decision, but said decision already says a coup is an official act, so carry on.

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  9. Moosebreath says:

    The decision creates a distinction between non-core official acts, where the President is entitled to a presumption of immunity, and unofficial acts where there is no immunity. This means that if and when the DC Circuit makes a determination that January 6 was not an official act, Trump will appeal it to the Supreme Court, and we will be here again next year at the same time.

    I guess this means we don’t get to keep our Republic.

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  10. drj says:

    I already quoted Sotomayor on the President’s newly-discovered power to assassinate a political rival.

    Professor of law at Georgetown University, Steve Vladeck adds:

    The majority opinion in Trump says that (1) official acts can’t be evidence; and (2) motive is irrelevant.

    If that’s the case, how could a president ever actually *be* prosecuted for ordering the military, in his capacity as commander in chief, to kill his chief political rival?

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  11. Gustopher says:

    @Kathy:

    No reading of the presidential records act would lead any reasonable person to conclude the president can take any document that crosses their desk and designate it a personal record. But that’s precisely what Wannabehitler says he did. Therefore now he will claim anything he does while titular president is an official act, even when it’s clearly not.

    It is worth noting that no one is claiming that Trump broke the law in the document case by bringing documents to Mara Lago while president, but rather that he held onto documents when he was no longer president.

    It rests on whether Trump declassified the documents in his mind, with no process.

    (I’m a little surprised we don’t have a news organization suing to get access to all “declassified” documents that crossed Trump’s desk)

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  12. Hal_10000 says:

    The ruling does allow the case to proceed in regard to Trump’s attempt to manipulate Pence into interfering with the EV count as well as his actions to influence state officials.

    I don’t think so. it specifically says that discussion with Pence are intrinsically an official act.

    Nice to see that a strict constructionist originalist reading of the Constitution, with careful consideration of the Federalist Papers, has concluded that the Founders wanted the President to be a divine right king.

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  13. gVOR10 says:

    @Moosebreath:

    Trump will appeal it to the Supreme Court, and we will be here again next year at the same time.

    Only if Trump loses. If he wins the federal prosecutions will have been dropped and any state prosecutions either dropped under pressure or severely impeded. Which has been Trump’s only plan all along. Except for raping Carroll, has he, or any of his supporters, denied actually doing any of the acts charged?

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  14. Just Another Ex-Republican says:

    @Kathy: And within a couple decades, Sulla’s actions to save the Roman Republic ended it. Something our founders, though apparently not the sophomore debating society currently masquerading as Supreme Court justices, would have been well aware of.

    “But Congress may not criminalize the president’s conduct in carrying out the responsibilities of the executive branch under the Constitution.” –from the decision. How can the Posse Comitatus Act survive this? It is a direct limitation imposed by Congress that restricts the President as Commander in Chief from deploying the military to enforce domestic policies. No such limitation exists in the Constitution and the only real restriction (that it applies when militia are called into service) is no longer relevant in an age with a standing military. The army is always in service now. Can a President deploy it in the face of protests against police brutality? What about to monitor polling places?

    While in some ways, yes, this decision simply affirms that whether some behavior is immune to prosecution or not is to be determined by the trial court is not as scary as fear mongers like me are freaking out about. But in other ways, in the PRESUMPTION of immunity and the license it provides to keep pushing past boundaries, it’s every bit as bad as it seems.

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  15. Kathy says:

    @CSK:
    @drj:

    I’m sure the immunity does not extend to the poor schmoes stuck with carrying it out. Since no one wants to expend staff gratuitously, a pardon can be issued with the orders.

    @Gustopher:

    The thing is he doesn’t have to return personal records . Judge Orange Ass-kisser in Florida already asked for proposed jury instructions for this eventuality.

    BTW, as separation of powers go, there’s a very thin line between “if the president does it it’s not illegal,” to “the president decides what the law is.” That’s banana republic 101.

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  16. Paine says:

    I have a sinking feeling in the pit of my stomach that we are seeing the final pieces of the puzzle falling into place for permanent minoritarian, GOP rule in this country.

    SCOTUS is thoroughly corrupt and hell-bent on partisan outcomes. They own that. Thanks, RBG.

    The Senate will continue to become more and more anti-democratic, giving the GOP an eventual strangehold on judicial appointments. If Trump wins in November I suspect Jackson will be the last SCOTUS judge appointed by a democrat.

    The Electoral COllege will continue to favor the GOP.

    THe democrats might be able maintain some leverage in the house but even then the Senate and SCOTUS will be a backstop to any progressive legislation.

    The Chevron ruling curtails the administrative state and allows Heritage hacks to insert their partisan preferences into important policy decisions.

    Today’s ruling will empower Republican presidents to do whatever they want while democratic presidents will still be restrained by norms.

    A soon as the GOP gets a trifecta they will blow up the filibuster and after banning abortion will come up with some sort of federal election integrity bill that will skew the voters in their direction. Say goodbye to the convenience of ballot drop boxes.

    I’m turning 53 next month and will have my mortgage paid off soon. I’m straight, single, with no kids, and live in a very blue state. SO I expect i will manage to avoid the worst of what is coming. But I see nothing but bad, bad news until I am gone from this world.

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  17. Grumpy realist says:

    And if you go back into legal history, even the “divine right of kings” had checks and balances.

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  18. DK says:

    According to John Roberts and his majority of stupid rightwing nutjobs, Nixon was immune.

    Biden should order the conservative justices to be drawn, hung, and quartered. According to them, Biden doing so to protect the Constitution from them would surely be an official act for which he is absolutely immune.

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  19. DK says:

    @Paine:

    Thanks, RBG.

    “I am the last thing standing between you and the apocalypse.”
    – Hillary Rodham Clinton, Oct 2016. But she was likeable and didn’t buy everyone in Wisconsin a cheesehead or something.

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  20. Modulo Myself says:

    The Constitution was never more than a buzzword for the right. They tried to dress it up as wisdom but it’s more like the family of Wisdom brands. Imagine the Roman Republic collapsing, and with everybody talking about new synergies and stakeholders.

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  21. Gavin says:

    Good to see the American Revolution and country creation was in reality just one group of elites battling for control of some acreage vs another … and absolutely zip to do with any sort of higher ideal or concept.
    It wasn’t religious freedom… it was the freedom to be the ones in control.

    Golly gosh, I wonder why the US armed forces aren’t able to meet recruitment goals.

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  22. gVOR10 says:

    @Paine:

    I’m turning 53 next month and will have my mortgage paid off soon. I’m straight, single, with no kids, and live in a very blue state. SO I expect i will manage to avoid the worst of what is coming.

    I’m in a red state, but cis, white, married, one married kid, one grandkid. But I’m six weeks older than Trump, so my planning horizon is short. The wife and I will be OK, until we go into effectively unregulated nursing homes, and won’t be able to get the roof repaired if we lose it to a hurricane again, but I fear greatly for the kids and grandkids.

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  23. Rick DeMent says:

    So does this mean if Biden is really, really, convinced that Trump is an existential threat to the country he can shot him at the next Debate?

    ???

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  24. Kathy says:

    @Just Another Ex-Republican:

    I’ve never been certain whether Sulla’s actions accelerated or delayed the end of the Roman republic.

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  25. @Hal_10000: My reading of this suggests some adjuication of the issue is possible:

    Whenever the President and Vice President discuss their official re-
    sponsibilities, they engage in official conduct. Presiding over the Jan-
    uary 6 certification proceeding at which Members of Congress count
    the electoral votes is a constitutional and statutory duty of the Vice
    President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s
    allegations that Trump attempted to pressure the Vice President to
    take particular acts in connection with his role at the certification pro-
    ceeding thus involve official conduct, and Trump is at least presump-
    tively immune from prosecution for such conduct.
    The question then becomes whether that presumption of immunity
    is rebutted under the circumstances. It is the Government’s burden to
    rebut the presumption of immunity. The Court therefore remands to
    the District Court to assess in the first instance whether a prosecution
    involving Trump’s alleged attempts to influence the Vice President’s
    oversight of the certification proceeding would pose any dangers of in-
    trusion on the authority and functions of the Executive Branch.

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  26. Kathy says:

    Judge Merchan has a golden opportunity now.

    In theory he can give Wannabehitler 4 years for each of the 34 counts.

    That would be excessive*, but 34 concurrent sentences of 3-4 years each, wouldn’t be. Especially if he can order the convict to begin his sentence pending appeal.

    But I’m sure the good judge will pass.

    *Well, it would look excessive,

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  27. Neil Hudelson says:

    All this talk about the President assassinating a political rival as an official act is really glossing over the fact that Biden could order seal team six to assassinate Thomas, Alito, Kavanaugh and Roberts too. (Gorsuch gets a pass because I want to see him continuing to champion Indigenous rights; ACB seems to be going down the Souter path, and that’s kind of delicious.)

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  28. wr says:

    So to recap the week…

    Presidents can do anything they want and are completely immune to consequence, as long as they claim it was an official act.

    Government officials are free to take as much money as they can from people doing business with the government, as long as the check comes after the favor is granted.

    No regulations will be allowed to be drawn up by subject experts in the government, instead they will be issued by appointed judges who know nothing about the topic in question, including whether a pollutant like Nitrogen Oxide is the same as laughing gas.

    And the law now forbids the rich, as well as the poor, from sleeping under bridges.

    Apparently six members of the Supreme Court learned everything they needed to know about government from watchin Duck Soup.

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  29. Hal_10000 says:

    @Steven L. Taylor:

    At best this suggest that, like with the Chevron decision, everything is going to end up with years of litigation.

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  30. Kathy says:

    @Neil Hudelson:

    It should be sufficient to merely rub one out. That would be done, as the French expression has it, to encourage the others to behave.

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  31. Gustopher says:

    @Neil Hudelson: But would Seal Team 6 obey such an order from Biden?

    Biden might need to create Seal Team 7. The loyal Seal Team.

    Where are Seal Teams 1-5? I want to believe that one is accountants, one is HR, etc.

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  32. drj says:

    @Steven L. Taylor:

    The question then becomes whether that presumption of immunity is rebutted under the circumstances. It is the Government’s burden to rebut the presumption of immunity.

    If neither official acts nor motive can be used to rebut said presumption of immunity, how exactly?

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  33. steve says:

    I guess I need the lawyers to help me on this bit then. As I read it if you are going to investigate whether or not a presidents actions are official or personal you cant use anything said by the president or by his aides. That seems like de facto immunity to me. Quote is from Roberts opinion.

    ““On remand, the District Court must carefully analyze the indictment’s remaining allegations to determine whether they too involve conduct for which a President must be immune from prosecution. And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct. Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.”

    Steve

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  34. SJP NPC says:

    @CSK:
    To protect our Democracy, Biden must order the assassination of this political opponent convicted felon Trump and sent all J6 insurrectionists including all protesters outside the US Capitol but not undercover Federal agents to a special reeducation camp.
    Because Justice Matters.

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  35. Modulu Myself says:

    Someone on twitter made a great point: the Court’s idea here of an ‘official’ act is like a sleazy accountant’s idea of what can be a business expense.

    Trump’s the master of dodgy business expenses. This Supreme Court is made for guys like him. They’ve opened the door for anything.

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  36. Kingdaddy says:

    Nothing in the Constitution and its amendments speak about immunity. You’d think that the Framers would have been explicit about that, given the examples from Classical history that were on their minds, such asthe Roman dictatorship, the very kind of executive license that they wanted to avoid. In other words, this is making stuff up from the bench which conservative legal minds used to say was taboo.

    Nor has anyone made a convincing argument that the President must be able to commit crimes to do the functions of the executive branch. And why is there a White House counsel, if not to tell the President how to avoid breaking the law?

    In other words, this is dangerous, unjustifiable mummery.

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  37. Gustopher says:

    @wr:

    No regulations will be allowed to be drawn up by subject experts in the government, instead they will be issued by appointed judges who know nothing about the topic in question, including whether a pollutant like Nitrogen Oxide is the same as laughing gas.

    Chevron was decided in 1984, if I recall correctly. What happened before 1984?

    This isn’t meant as a big gotcha question where you should remember the GE/Ford co-branded toxic waste kaiju crushing Miami or something, just that the panic over Chevron being overturned might be overblown. And that’s a genuine might.

    I haven’t heard any reasonable analysis, of how things would work post-Chevron. It’s been all panic, all-the-time, about the sky simultaneously being on fire and falling. Very little discussion of what happens next, as we sweep up the flaming bits of sky from our lawns and get on with it.

    The EPA was created in the early 70s, by Nixon? OSHA was before that, and we’ve had food safety laws and regulations since the 40s or so. There was a pre-Chevron world that sort-of functioned.

    ——

    I think the panicked interpretations of the immunity ruling are the right interpretations, as there’s a good chance that our next president will be a bloated and decaying orange who feels emboldened and will surround himself with the brown shirts that will act for him.

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  38. @Kingdaddy: Agreed on all counts.

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  39. SJP NPC says:

    @Kingdaddy:

    Nothing in the Constitution and its amendments speak about immunity.

    Try that with Judicial, Prosecutorial and Qualified Immunity.
    Harlow v. Fitzgerald
    Kisela v. Hughes
    CASTLE ROCK v. GONZALES
    Because people should not be able to sue the Government.

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  40. DK says:

    @Gustopher:

    just that the panic over Chevron being overturned might be overblown.

    Maybe. But some said fears of a Trump presidency were overblown. We got record job loss, bodies being stacked in freezer trucks, lockdowns, riots, and a terror attack on Congress.

    We were routinely told fears Roe v. Wade would be overturned were overblown: “settled law” and Republicans were bluffing to pander to evangelicals. Remember the ridicule heaped upon Sen. Mark “Uterus” (D-Colorado) when he ran against Cory Gardner? Recall the most hardcore Never Hillary leftists dismissing her Roe talk as fearmongering? Welp.

    Then Susan Collins types said, oh well, Roe would just be thrown back to states. Disappointing, but how bad could it be? Pretty bad: some child rape victims are scrambling for abortion care, alongside women facing fatal pregnancy complications. How many have died or been rendered infertile?

    Just speaking for myself, but from now on I’ll side with the panickers initially, pending further developments and passage of time that warrants calm.

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  41. Daryl says:

    248 years ago we tossed off King George.
    Today SCOTUS, in their wisdom, gave us back a King.
    All this other talk is so much blah, blah, blah.
    They have made the President above the law; far more “equal” than you or I.
    The United States of America, b. 7/4/1776 – d. 7/1/2024.

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  42. Daryl says:

    @DK:

    But some said fears of a Trump presidency were overblown. We got record job loss, bodies being stacked in freezer trucks, lockdowns, riots, and a terror attack on Congress.

    Just speaking for myself, but from now on I’ll side with the panickers initially, pending further developments and passage of time that warrants calm.

    But her emails…

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  43. SenyorDave says:

    @Kathy: Maybe he could get creative. How about chemical castration? It may have been a civil trial, but trump has been found guilty of sexual assault. CC would make him a little more docile and unlikely to be a reoffender. Plus it would definitely benefit society, trump is the sort of cockroach who would be able to reproduce at 77.

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  44. Kathy says:

    Scotus Blog has early analysis up

    Biden campaign take note:

    Turning to some of the specific allegations against Trump (sic), the majority ruled that Trump cannot be prosecuted for his alleged efforts to “leverage the Justice Department’s power and authority to convince certain States to replace their legitimate electors with Trump’s (sic) fraudulent slates of electors.”

    There you have it: it is within the president’s official duties to overthrow the government.

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  45. gVOR10 says:

    @Gustopher:

    There was a pre-Chevron world that sort-of functioned.
    ——
    I think the panicked interpretations of the immunity ruling are the right interpretations

    I favor panicked interpretations of overturning Chevron also. The ruling is a tool, the effect depends on who’s wielding the tool. The “regulatory state” pretty much goes back, as you note, to OSHA and EPA in the early 70s. It took awhile for the situation to evolve. In the mid 80s Chevron was seen as a way for the Reagan agencies to overcome the supposed liberal courts. The victor in Chevron was Chevron. Now it’s a way for the courts to oppose the supposed deep state agencies. Overturning Chevron has been a goal of the Fed Soc for years. That alone should tell us it’s a bad thing. It goes hand in hand with their confidence their takeover of the federal judiciary will continue. In the Roberts Court’s hands it will be a destructive tool.

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  46. SenyorDave says:

    If bribery is no longer illegal can Trump just take a couple percent off the top after the fact from every government contract? Actually, even if the SCOTUS hadn’t made the bribery ruling couldn’t Trump just take his tribute and say he was trying to run the federal government more efficiently. It wouldn’t be a crime if he did it as president.

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  47. Beth says:

    @Gustopher:

    The whole point of overturning Chevron was to ensure that no rules can be made and it’s unlikely that any can be enforced. Any person or corporation that has enough money can probably find a judge that will agree with them that any proposed or actual rule isn’t authorized by the relevant statute. Between this case and the case that says that corps get jury rights in administrative actions the government can’t govern. Honestly, these two cases have me freaked out as much, if not more than the immunity one.

    What amuses me so much are all the people who bitch about “job killing regulations” are going to find out fast what happens when the rules and regulations that help protect the environment, workplace safety, or financial transactions go away. There is no way to run a modern contemporary country, especially, world straddling hegemon, without some sort of administrative state. Those two cases basically say that it’s unconstitutional. We are about to blow up our country so that rich white men never pay taxes or get told what to do.

    We are screaming our way into a massive crisis. It’s going to be bad.

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  48. SKI says:

    @Rick DeMent:

    So does this mean if Biden is really, really, convinced that Trump is an existential threat to the country he can shot him at the next Debate?

    Only if they hold the debate in DC or on federal property. Otherwise he would theoretically* be subject to state laws.

    And in fact, he could do it even if he just wanted to watch him die as the Ciourt said that prosecutors can’t even look to motive!!!

    *This Court might take the position that state laws can’t apply if the President is a Republican.

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  49. Gustopher says:

    @Beth: That certainly doesn’t sound ideal. In fact, it sounds awful.

    But, you’re also not old enough to have been practicing in the late 70s, so I’m not sure how much weight to put on the panic. And that’s the voice that is missing — the near retirees who know the old system from working with it, and how it worked in practice.

    I remain cautiously pessimistic rather than alarmed on this one.

    If I just have my head buried in the sand, it’s nice warm sand — well, no, it’s cold and damp, but at least it’s not freezing and there are no crabs or anything in it eating the flesh off my face.

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  50. Gustopher says:

    One thing I am sure we can all agree on is that if Biden were sleeping on a public street, it would (after much litigation) not be an official act, and he could be fined or arrested for it.

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  51. Mikey says:

    40 years of service to this country all comes to waste in one week. The democracy I have defended for over half my life is done for. I have never felt so futile. I have never wanted to just quit until now.

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  52. restless says:

    “A Republic, if you can keep it”

    Looks we couldn’t.

    If we’re no longer a constitutional republic, what are we now – a constitutional monarchy?

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  53. The q says:

    “Just speaking for myself, but from now on I’ll side with the panickers initially, pending further developments and passage of time that warrants calm.”

    So you were in agreement with the “panickers” Bill Maher, Carville, Axelrod et al who last year were calling for Joe to not run? No one took them seriously either. Now look at where we are.

    Sometimes panic is warranted.

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  54. DK says:

    @The q:

    So you were in agreement with the “panickers” Bill Maher, Carville, Axelrod et al who last year were calling for Joe to not run?

    If it were up to me, Biden would not be president, because I didn’t want Joe Biden in 2020. I also want everyone should get their own puppy, rainbow, and unicorn. I’m in agreement that Putin and Netanyahu should step down.

    So what? And?

    Some of y’all can’t accept is that once Joe Biden won the 2020 election, the only person able to stop him from being the 2024 Democratic nominee was Joe Biden. Y’all are fixated on idea that if people on OTB just said loudly “We don’t want Joe Biden!” he wouldn’t be the nominee.

    Well, people with actual power and clout in the Democratic Party had no way of stopping Joe Biden from being the 2024 Democratic nominee. So asking me personally what I wanted is moot to a farcical degree.

    My real preference is that white Americans and in particular white men American weren’t so politically stupid in 2016, and had instead followed the lead of us black voters in voting for Hillary Clinton at a 90% clip. But that’s as much water under the bridge as the fact Joe Biden was always going to be the Democratic nominee if he chose to be — no matter what you, I, or some dudes on TV thought about it.

    Once Joe Biden became the Democratic standard-bearer in 2020, I buried my “wants” and got behind the Democratic nominee. If the one person able to stop Joe Biden from being the 2024 nominee (Joe Biden) had done that, I would’ve supported the next Democratic nominee. But he didn’t.

    So I supported and will continue to support the Democratic nominee.

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  55. Dave Munger says:

    IANAL, let alone a constitutional scholar, so I REALLY need someone to explain to me whether the distinction between official and unofficial acts has an already existing definition, or is it just a classic Roberts ass-pull?

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  56. Jax says:

    It’s almost like SCOTUS wants us to vote hard and expand their members. Because this shit is untenable.

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  57. I have a few thoughts on this.

    Core presidential powers (signing, vetoing, pardoning, commutating, nominating, firing) are absolutely outside the control of Congress.

    As such, arguing that a President’s pardon is obstruction of justice, or signing legislation later found unconstitutional is conspiracy against rights, is foreclosed by Trump v. United States. And this is right.

    But what about other official acts, which are presumptively covered by immunity. What sort of test should courts use to determine if the alleged act overcomes this presumption?

    I believe the proper test is the one enumerated in Harlow v. Fitzgerald, 457 U.S. 800 (1982). In Harlow, immunity applies unless the alleged conduct violates “clearly established” law id. at 818. The lower courts did not decide what kind of test to use, and it was proper for SCOTUS to vacate and remand so the lower courts will have a chance to decide what test is appropriate.

    As such, to quote an example posted by a commenter on another blog (verbatim, including misspellings) , an argument that the President ordering “the Army to round up Gazan girls and confine them in rape camps like the ones that existed in the Yugoslave Civil War” violates the law of war would pass the Harlow test, because setting up rape camps does violate clearly established laws of war.

    However, an argument that arming an allied state makes the President complicit in any war crimes committed by that allied state is in no way clearly established, and fails the Harlow test. And this is important. I am sure there is a Hamasshole fanboi serving as a prosecutor somewhere who would charge FJB for complicity in genocide.

    Ordering a law enforcement investigation does not violate clearly established law, while ordering perjury or forgery most certainly does.

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