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Trump v. United States, the presidential immunity opinion, dropped this morning. In broad strokes it goes like this:
1. For those acts that are pursuant to the President's "conclusive and preclusive" authority there is absolute immunity.
2. For those acts which are official acts by the President but not covered by (1) there is a presumption of immunity that can only be overcome by showing the prosecution would pose no "dangers of intrusion on the authority and functions of the Executive Branch."
3. For those acts which are unofficial there is no immunity.
4. Those acts for which the President has immunity cannot be used as evidence to demonstrate any element of a crime for which the President would not have immunity.
I think it's just incredible that the six justices in the majority looked at the Navy-SEALs-assassinate-a-rival hypothetical and went "yep, sounds right, no liability." Roberts' majority opinion even mentions the President's orders to the armed forces as one of the things that falls under (1).
I think the way is clear. Biden orders Trump, the six justices in the majority, and let's say the next 2-3 top Republican candidates whacked (just for safety). He probably gets impeached and removed but can't go to jail (thanks SCOTUS!) Harris takes over as President and I think it's unlikely she would also get impeached. Dems don't want to hand the presidency to Mike Johnson. That gives Harris plenty of time to stack the court. Republican convention in disarray due to the deaths of their prominent candidates. Biden obviously out, he'd be ineligible anyway if impeached and removed. Dems probably dump Harris to create a clean break with Biden admin, clearing the way for Whitmer/Newsom/Pritzker/whoever.
The above is fan fiction, of course.
Tell me you are unfamiliar with American military law without telling me you are unfamiliar with American military law.
This is not new, and not the incredibility you think this is, because distinction between lawful and unlawful orders has already litigated and legislated at length, while your incredibility relies on conflating lawful and unlawful actions as both being under the scope of the President's immunity as described by the Supreme Court. The basic Supreme Court rejoinder to your incredibility could simply be 'the President does not have conclusive or preclusive authority to issue illegal orders, duh,' and then point at the Constitutional chain under which the President can give orders.
The American Constitution provides the power "To make Rules for the Government and Regulation of the land and naval Forces" is allocated to Congress, not the President. The President and Executive Branch works through these parameters, in part, through the Uniform Code of American Military Justice (UCMJ), which is Congressional legislation. The UCMJ in, in turn, sets the requirements of obeying lawful orders, and the contrasting limitation on illegal orders. Lawful orders in turn derive from, well, laws and regulations allowing their issuance/execution/funding, while unlawful orders violate the laws.
There is no authority to the military (or the President) to give illegal orders, because the President's constitutional role is to give orders within the Congressionally-defined rules and regulations for giving lawful orders. Orders contrary to those- the unlawful orders- are outside the scope of the President's constitutional role. If they are outside the scope of office or duties, there is no immunity.
This is the very old 'where does 'following orders' apply as a legal defense?', and the established answer is mundane. Soldiers are obligated to follow lawful orders, and thus legally protected even when those orders result in negative consequences, and are not obligated to follow, and thus not protected if they do follow, unlawful orders. Now take this distinction all the way to the top.
By eliminating the category of unlawful orders outside of the broader category of lawful and unlawful orders the President could give, what you have left (by definition) is the scope of lawful orders within the scope of authorities...
...which is the context of the only reference to the Armed Forces in the opinion, on page 14, in a paragraph listing constitutional authorities.
There are reasons the Opinion Dissents don't appeal to the Armed Forces angle, and among them is that the SEAL Team 6 assassination argument is one only protected under this ruling if SEAL Team 6 assassinations are already legal orders to give.
You might as re-express your incredibility at the shock that the none of the Democratic justices thought to argue that the President should be prosecutable for giving legal orders.
Although I agree with you, an alternate “bad end” had the potential to happen during the armed FBI raid on Mar A Lago. If President Trump had been shot, President Biden would not be prosecutable as the raid ostensibly fell under item one. An impeachment for a high crime would have been the only recourse other than Civil War II, and there’s little doubt its fate in the Senate would have been short.
That is not a bad-end of the court opinion. That's what can already, and could already, occur.
Arguing against a Supreme Court opinion on the grounds that a tyrannical person will ignore it with sufficient congressional support is an infinitely generalizable argument- it's no longer a failure state of the actual opinion in question, but a failure of the broader system in who two branches of Government are colluding against the third.
Note that if you remove the presumption of capitulation, Congressional investigation by the opposition can still choose to dig in and find illegalities in the basis of action, which re-reverts item one to 'nope, outside of official scope,' or find evidence of resistance to oversight (such as, say, actual resistance to oversight), which is itself outside of the bounds of item one, or the other ways for additional information to be raised for public awareness. Will it un-assassinate a political rival? No. But would item one provide immunity? Also no, not unless there is sufficient coordination/agreement between the Branches of government such that the offense wouldn't have been prosecuted/pursued regardless.
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