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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 missing something here.
Can impeachment impose any penalties other than removal and barring from office? Because it looks like the President can’t be normally prosecuted even if he gets impeached.
Say the President uses his Constitutionally-required State of the Union to advocate rebellion. Nothing as innocent as Trump’s 1/6 remarks—I mean explicitly telling Americans to take up arms against the rightful government. Congress, understandably annoyed, impeaches and convicts. Then what?
Under this decision, the ex-President keeps absolute immunity for the speech, which was discharging his official duty.
Then nothing. The President's State of the Union remarks are protected absolutely. But note if he pulled out a Tommy gun and started mowing down the legislature, this would not be an official act, even though it occurred in the course of one.
Isn’t that perverse?
Anti-corruption laws add penalties because merely losing trust doesn’t outweigh the benefits of abusing an office. The Presidency is more powerful than any other office. Why should the penalties for abusing it be more limited?
I’ve got nothing against requiring impeachment as a hedge against misguided or malicious prosecution. The Court is correct to defend the President from such chilling effects. But getting impeached and convicted ought to strip those protections.
I would guess the Roberts court went as far as it did because they have in front of them what they see as a misguided and malicious prosecution. Presidents who abuse their office for personal benefit have not historically been considered a problem (they may have done it, but they haven't been prosecuted for it), and a President literally calling for armed revolution in the State of the Union address likely wasn't even on the radar.
But as for impeachment, I think the majority of the court considers impeachment to be a political process and wants a nice solid separation between it and judicial processes. Thus, they rule that impeachment simply has no bearing on immunity. Ruling that impeachment and conviction would strip immunity for the acts impeached for would break down that separation, and furthermore would have no bearing on the case in front of them (since Trump was not convicted)
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