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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.
This is the same Court that has been consistently expanding protections for firearm ownership pursuant to the Second Amendment so I expect liberals will, any day now, start finding a strange new appreciation for civilian ownership of 'weapons of war' if the President is free to kill U.S. citizens at will.
More seriously the consequences of not having immunity for 'official acts' would be arguably worse, with any given law enforcement agency that can claim proper jurisdiction able to show up to the White House with a warrant and seek to put the President in custody and/or search for evidence of criminal activity. Obvious failure mode there if we want him to be effective at his job (I, myself, wouldn't mind it! But as a practical matter who would agree to be President under these conditions?).
The line "When the President Does it, that means that it is not illegal" really does mean just that. If the laws carve out an exception for this particular person, then we can say in complete isolation from how immoral, illogical, and ill-advised an action may be, it is not illegal and thus remedies generally lie outside the legal process.
I think there's a middle ground in which such charges are put on hold while the President is actually in office.
Not that I'm actually endorsing that, but one can certainly imagine that consequences for wildly-illegal-official-acts (let's say Nixon ordered the FBI to do Watergate and they acquiesced) could and should come after the President leaves office (and presumably after his successor declines to pardon him).
And it would seem there the court would agree that the president would be liable for that criminally.
I don’t think so.
How would ordering the FBI to break into your opponent’s office to steal information to help your campaign fall within the official duties of the president? It certainly isn’t within the core duties so at best eligible only for a presumption of immunity. The court didn’t rule the president has absolute immunity. They basically stated there are concentric circles of immunity. In the circle where the president is clearly exercising core presidential functions in his capacity as president there is absolute immunity. In the next circle are the areas that the president might be able to claim are functions but are far away from the core function. Here it is a presumption of immunity. The final circle are acts taken while president but not acting qua president. Here there is no immunity. I struggle to see this hypo as in the first circle.
When this happened in 2016, the excuse given was that it was for reasons of national security. You just conjure up a foreign adversary with information you know is fake, use it to get a rubber-stamped warrant from the FISA court on some minor figure in the opponent's campaign and then use that justification to suck up all of your opponent's communications.
Yes. You can lie about it (see Obama admin). But the court need not accept your lie. Also no one faced serious punishment before this ruling so nothing really changed.
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