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Notes -
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.
I'm not too concerned about the military implications.
On the other hand: Did Trump v. United States legalize bribing the President?
If the President has absolute immunity for discussions and actions relating to his constitutional prerogative, and bribery requires demonstrating a state of mind, typically through evidence that shows intent to bribe or be bribed, how would the Justice system examine such evidence if the President pinky-swears that it's legitimate, and is therefore subject to absolute immunity?
No. The briber would still be prosecutable. And the President could be prosecuted for taking the bribe. Under the majority's decision, the prosecution could not use any official acts that the President took as a result of being bribed as evidence, which would make the quid-pro-quo difficult to prove; this is what Barrett had a problem with. I think she was right on the law but wrong on the stability of the nation; the majority's rationale was that prosecutors would use anything short of such a prohibition as a way to do an indirect prosecution of official acts, and I believe they are correct. At least if the President is someone they particularly want to go after for political reasons.
I realize now that I should have been saying de facto legalize. Yes, bribery is still illegal, and it can still be prosecuted, but it's very hard to go anywhere with that prosecution if the President can declare the initial act of discussing a bribe as part of his authority to seek opinions from his officers, thus rendering it subject to simple absolute immunity, and preclude the court from considering it (including for the briber, for what it's worth). Barrett's objection concerns the quid-pro-quo evidence created by the President after agreeing to a bribe; my concern is with the impossibility of demonstrating the President's (or his briber's) mental state, a necessary prerequisite for a bribery prosecution, when the court is explicitly disallowed to consider it.
The President cannot declare the act of discussing the bribe with the person bribing him as an official act. Unless he's being bribed by one of his officers in the course of seeking opinions from them. President: "Hey, should I pardon this guy? Secretary of Agriculture: "If you do, I'll give you this nice painting of a cow I got on my last trip home".
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