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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.
What happened yesterday if the President ordered a hit? The local deputy sheriff straddles up to the White House and places the President under arrest? District attorneys all over the country and New York and Hawaii bring suit?
Come on, if the President ordered a hit today, it would not result in everything shrugging and throwing up their hands and saying, sorry, he's the President, whattaya-gonna-do-eyyyy?
The process is the same: Congress either opens an impeachment inquiry or appoints a special council grand jury to investigate and charge the president, and everything works its way through the courts.
The precedent set with Ford pardoning Nixon certainly implies that in previous decades, a former President could be charged with crimes arising from conduct while they were in office.
The pardon, of course, mooted the question, but the answer from the 1970s was (seemingly) "you impeach him, and after he's out of office he can be prosecuted like anyone else".
Importantly, Nixon was never charged with anything, so we don't know exactly what the pardon was intended to subvert -- but the underlying crime of the Watergate break-in was related to Nixon's reelection campaign, and reelection campaigns are not official duties of the president but are separated by statutes (isn't that correct?) that draw a clear-ish line between presidential duties and campaign activities. So isn't it likely that if Nixon had been charged, it would've been related to his political campaign -- using presidential powers in the service of his campaign? -- which would be categorically outside of his enumerated presidential duties.
I'm not sure this works. The opinion doesn't make a distinction based on duties, it makes a distinction based on the function. That is to say "using presidential powers" is squarely inside what is protected.
Somewhat counterintuitive in a way -- if a President breaks the law in his capacity a regular citizen, he is not immune. But he is immune if he not only breaks the law but does so via the exercise of any of his core presidential powers.
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Nixon's actions were not really those of a candidate for office. By all accounts he did not know about and was not involved in the actual break in. Any actions he would have been charged for were squarely within the court's grant of immunity today. Most likely obstruction of justice for attempting to interfere in the DoJ's investigation of the break-in, including by firing several high level officials.
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