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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.
Others have done an exhaustive job of responding to your vibrant hypothetical. I'll just add that yes, you're right in general (regarding other fact patterns that aren't quite so dramatic) that there is some increased risk of presidents misbehaving if they are above the law, and there is a cost associated with that.
But there is also a cost associated with presidents facing criminal charges after they step down. Peaceful transfer of power is a remarkable thing that we shouldn't take for granted. You really don't ever want a president nearing the end of his term to have to decide between sacrificing himself to the criminal justice system or attempting an auto-coup. That is a much bigger risk, and cost, and the law should focus on mitigating that second risk over the first.
I am not, in principle, opposed to some level of presidential immunity but the court's decision today is insane. The President is a public servant and if they abuse their office to benefit themselves at the expense of the public, that conduct should not be immune to criminal prosecution. Instead the court today says intent is irrelevant for any official act and a whole bunch of official acts are just unreviewable as such. Some tin pot dictator drops a cool billion dollars in the President's bank account to get the US military to help him out? No bribery charges there! Maybe you get impeached but whatever, you got your billion dollars!
Given the fact of the way Presidents have historically acted and the absolute lack of criminal prosecutions until the latest one I am inclined to think the problem is that Presidents do not have enough culpability for their acts in office, not that they have too much.
It kind of seems like you're just making your rhetoric more aggressive without really responding to my comment.
I think my last paragraph is responsive? To be clear: I do not think Presidents having this level of immunity to criminal prosecution in office is necessary or desirable. I especially do not think it is necessary in order to have a peaceful transfer of power, given the ~200 years or so of peaceful transfers of power America has had without anything like this. I think the risk is much greater that Presidents abuse their office than that they face superfluous criminal charges.
Nobody tried charging an ex-President before. An ex-vice-president, yes, but not for acts in office. The last time it looked likely, Gerald Ford took care of the problem. I am sure the Supreme Court would rather have not taken this case -- you can put that squarely on the Biden Administration.
Just because someone charged one ex-President doesn't mean we can reliably predict what future practice will look like. To me, this looks like a legitimate slippery-slope fallacy. We have a clear and demonstrated history of Presidential abuse of authority, and up to n=1 history of legal harassment.
As mentioned in part of the oral arguments in the case, would you like to look up impeachment through history and how quickly political parties will play tit for tat?
Ok.
The first Presidential impeachment was of Andrew Johnson, a Democrat, in 1868. There was no subsequent retaliatory impeachment of his Republican successor, Ulysses S Grant.
The second Presidential impeachment was of Bill Clinton, a Democrat, in 1998. There was no subsequent retaliatory impeachment of his Republican successor, George W Bush.
The third and fourth Presidential impeachments were of Donald Trump, a Republican, in 2019 and 2021. There has so far been no subsequent retaliatory impeachment of his Democratic successor Joe Biden, and it does not appear that there will be.
What's your point again?
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