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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.
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.
I don’t think the case addresses this and there are arguments that impeachment and conviction could remove the immunity (my theory is that would mean the conduct was ultra vires and therefore not entitled to immunity).
But impeachment isn’t a ruling on authority. It’s a political process for throwing someone out of office. You’d need an article of impeachment which explicitly made it ultra vires; that definitely hasn’t been a feature of previous impeachments.
What statement by Congress could rule that the President’s SotU wasn’t really discharging his Constitutional obligation?
The point is that congress needs to find that there was a high crime or misdemeanor. If the president was exercising his core constitutional powers, the only way it would make sense to me is if the end was ultra vires.
So what part of a rebellious SotU would be ultra vires? II.3 is quite vague.
There are lots of ways to abuse the lawfully granted powers of an office. Nepotistic or corrupt appointments—protected by II.2. Trading state secrets? As long as he does it on an official phone call, it’s protected. Collaborating with an invading army? He’s commander-in-chief, don’t tell him how to do his job.
All of these things would be crimes by anyone else. Some of them would be outright treason, which is one of the unambiguous criteria for removal. But under this ruling, the man with the most power to commit such crimes can’t face normal consequences. He can only lose his office.
Isn’t that excessive?
The protection against nepotistic appointments is consent of the Senate, as RFK could tell you. That's not new. Accepting money or favors in exchange for appointment could be illegal, although the strictures this decision puts on evidence would make prosecution difficult.
The President's position as classification authority makes this already true for all but some technical nuclear secrets.
Congress can "tell him how to do his job", but only through impeachment, not by accusing him of a crime. Dealing with the enemy in wartime is certainly a responsibility of the head of state.
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