Ima gonna weigh in on this in tomorrow’s post. Forgive me if I don’t hit any of your comments. As usual David did yeoman’s work on what the ruling did and didn’t say. There’s a lot more to cover, though.
"My instinct here is that the president might have immunity, but the members of the military and other nonpresidential officials would not. The preservation of our constitutional system may one day depend on the military and government officials refusing to follow unlawful orders. That refusal has its own risks and costs."
Given that firing executive staff enjoys absolute immunity, and the pardon power as well, the only thing folks committing illegal orders from Trump have to fear is that he'll forget to pardon them.
Re: post-Chevron, it's largely an afterthought now, given that neither the legislative nor judicial branch have any meaningful checks on executive power in light of this immunity ruling. No need for POTUS to even venture out to the "presumable immunity" bubble, esp. since SCOTUS has made it impossible for anyone to even ask about the President's motives.
Jul 2·edited Jul 2Liked by Chris J. Karr, David Thornton
Before I finish reading I am stuck on your statement that this is being sent back to judge Cannon. Did the court not order this back to Judge Chutkan for further rulings?
I went to sleep and woke sighing the same deep sighs one has following the death of a loved one. The irony of this opinion just days before we celebrate our independence from a
king is not lost on myself and others. For anyone doubting the seriousness of the day I suggest they look at Trump’s pondering of military tribunal to prosecute Liz Cheney and many others in retribution for seeking justice in the wake of January 6th. Decimating the long held wall between the executive office and the DOJ makes this too real a possibility. I read bits of the plan for 2025 daily. It’s scary at best. I believe much of it has been set in motion behind the scenes. I have many problems with Joe Biden and his presidency. I have doubts about his physical capabilities to handle the office for the next four years, but I have no doubt, none whatsoever that reelecting Donald Trump would be the end of our Republic.
You can thank SCOTUS for actually giving a small bit of power back to the US citizens as now presidents are finally able to be held more accountable then ever before. The standing rule since forever has been defacto absolute immunity for US presidents since in fact no president prior to Trump has ever been charged with a crime before. In my opinion the democrats have only themselves to blame. They took a chance when they rolled the dice certainly at least suspecting this case would end up in front of the supreme court who as it happens has never in our history ever had a chance to actually rule on presidential immunity. From where I sit, the ruling was more a win for the American people as now for the first time ever, a three tiered test of when presidential immunity applies has been entered into the equation. I am no legal scholar, but it seems to me this ruling now makes it clear that Presidents can be prosecuted for crimes, even for crimes committed in the past. So perhaps future presidents might want to actually be a little more careful about issuing orders like say the killing of US citizens without due process for example.
"So perhaps future presidents might want to actually be a little more careful about issuing orders like say the killing of US citizens without due process for example."
You are aware that with yesterday's ruling, SCOTUS closed off going after Presidents for stuff like this, since protecting the country falls SQUARELY within the core duties of a President? Congress cannot even pass a law that constrains the President in this matter ("folks getting shot at get SOME due process"), as that would negatively affect the quick and courageous decision making that Roberts and Co. seems to think is at risk.
If SCOTUS were interested in democratic accountability, they would have given Congress more power to constraint the actions of the President, not taken it away. After yesterday, the only accountability a President has is elections, and if you read the ruling, Roberts and Co. went out of their way to water down or outright eliminate shackles on the President to meddle in elections with outcomes he doesn't like.
In addition Mr. Karr, President Obama has already ordered a drone attack that killed 4 American citizens. none of which he evidently thought were entitled to due process. Actually from my understanding of that incident, there was only one intended target, Anwar Al-Awlaki. whose death warrant was signed in secret. His 16-year-old son, Samir Khan, and Jude Mohammed were also killed, as was Abd al-Rahman Anwar al-Aulaqi. You might say that all four were accused/suspected of being terrorists which is probably true, but the fact remains that none of these individuals, every one of which was an American citizen ever got their rightful day in court. Secret assassinations against American citizens that have been ordered by a sitting president sounds like pretty "kingly" behavior to me and a very real danger to democracy and our constitutional rights and could and in fact is considered by many to fall under the heading of a criminal war time act.
I agree with you and this is an argument for why there should be LESS immunity for a President, not more as Roberts has granted. Under the prior scheme, you had more chance holding Obama accountable for those choices. Now, it's completely outside the realm of possibility.
I sincerely appreciate your perspective on this and appreciate your feedback. The Supreme Court doesn't always get it right, but it does appear that in this instance at least, we are standing on oppositive sides of the fence on this issue as I believe the ruling will lead to more not less presidential restraint. I guess we shall just have to see how this all plays out.
My understanding is the new ruling would allow the lower courts to decide if questionable actions taken can pass the 3 tiered test, a new never before standard. In my opinion this ruling adds the opportunity for additional accountability to the American public.
The first test is whether the action can be construed as being part of his core Constitutional duties. If so, the President enjoys absolute immunity. Trump threatening to fire DoJ officials until one would publish a statement doubting the soundness of the election falls within this realm, since staffing the executive branch is a Constitutional function.
The second test is whether the action - not a core part of his duties - falls under the umbrella of him acting as a President. In addition to the criminal standard of presumed innocence that all defendants are entitled to, this second aspect also grants the President the benefit of the doubt (presumptive immunity) that even if he committed a crime, if the crime was somehow related to his duties as President, the prosecutors have to prove that going after the President will not impede his ability to exercise his Constitutional role. This is a high burden to clear, and what SCOTUS is sending back to the lower courts to determine (which if the results don't fall Trump's way, will be appealed BACK to the Supreme Court). Trump pressuring Mike Pence to violate his oath and duties of office by delaying the count of the electoral votes falls under this umbrella.
The final test says that if the President commits a crime outside of those realms - i.e. the President and his staff are insufficiently creative to come up with a reason why the crime ISN'T related to being President, then he can be tried like a normal criminal defendant. NOTE that prosecutors and the court are prohibited from asking about the rationale or motivation for the criminal action, so if the President asserts that the crime was related to holding the office, prosecutors are SEVERELY hobbled in seeking and presenting evidence that would prove otherwise.
Under the old standard, a President could be tried for crimes, and it would be the job of the court and jury to figure out whether he should be convicted, so this so-called three-part test merely takes the one part-test we already had, carves out a massive exemption in the center, and makes what remains prosecutable MUCH more difficult than it was in last Sunday's courts. A big loss for accountability.
In my opinion there never really was an old standard per se as this is the first time as far as I know, that the involvement of the Supreme Court has been called on to interpret presidential immunity. The determination of what constitutes official or unofficial acts is now up to the lower courts to decide.
The sotomayor example seems pretty on point. Based on the Roberts test that you referred to, the consequence of such an order would be zero (he’s issuing a military order which is squarely within his purview, and has absolute immunity).
So when you say “accountability”….your vote every 4 years will in part come down to the hope that whoever gets the big chair won’t abuse his unbridled ability to exercise the sotomayor scenario, pretty please. That seems to be about it as far as accountability goes.
Uh...no. The majority provided a fascia of possibility of accountability, while ultimately making it nigh impossible to do so by making POTUS's discussions and communications with staff/officials off-limits as evidence of criminal intent.
That makes these tiers more or less useless going forward: they'll only apply to Trump as he/his legal team admitted some of those actions were not official acts. A future POTUS will not make that mistake.
Well if that’s the case then you have nothing to worry about since no president prior to Trump has ever been charged with a crime one can only conclude that absolute immunity was pretty much the unspoken rule anyway so from your perspective nothing has really changed.
Something HAS changed. In the past, everyone assumed there was quite a bit of immunity but no one knew exactly how much, as it was not clearly defined. Now it’s black and white for anything covered by Roberts’ first question.
That past uncertainty may have restrained past presidents from acting with deranged impunity. Such restraint is no longer required.
That past uncertainty allowed for secret hits on American citizens so I don’t believe there was too much concern about restraint, but now that it is spelled out as you say in black and white, that uncertainty has been removed so anything proven to be illegal actions will not as now spelled out fall under the purview of presidential immunity. This in my opinion is a win for every American citizen regardless of what party you support.
That’s very debatable as there are many people that believe both Bush and Obama should be held accountable for war crimes. You may not agree, but there’s many people that don’t agree that Trump is guilty either. So once again where you and I are concerned, I am going to have to agree to disagree on how this new ruling plays out. I firmly believe it was a win for the people regardless of what political party you support.
Thanks for the concise summary and kudos for not becoming unhinged (like Sotomayor) when the court opinion was that the President is a special case when it comes to prosecution. The opinion adds an additional layer of rebuttal regarding official capacity necessary to successfully prosecute a current or former President. That's all it does. I find it hilarious that many Trump haters cite legitimacy of court proceedings and jury of peers and due process when Trump loses but pitch a fit when a ruling only slightly favors Trump. Then, the judicial system suddenly becomes totally corrupt.
The reversal of the Chevron doctrine is one I have been hoping to see for years. Thankfully, I no longer have to fight my way through the bureaucracy to get projects permitted and built. It's gotten worse and I feel for those who have to make a living while dealing with it. It is time Congress started doing their job and used some of the 30,000 employees on their payroll to do something besides pay off political debts. Laws passed by a majority of elected congress critters is far more legitimate than rules authored by a Greta Thunberg wannabe or a trans activist in some other useless bureaucracy. On this matter also, Sotomayor had another unhinged moment.
Also, credit to Sotomayor - she wrote a MUCH more conservative opinion that artfully used originalism, textualism, and a theory of limited government than the mess that came out of Roberts' pen.
Conservatives used to mock the "penumbras of emanations" as judges legislating from the bench - yesterday, they put that to shame by inventing entirely new protections for the President that are found nowhere in our law or history.
If Joe Biden hired a hit man to eliminate Trump before the election, citing some vague terrorist justification, how is he held criminally accountable? Protecting the country is one of the core duties that Roberts claims enjoys absolute immunity. Hell, in the ruling, Roberts even closed off the possibility of the judicial or legislative branch even asking the President or anyone in the executive branch that the President discussed the plan with about what was said to determine if Biden had a legitimate belief that Trump was a danger.
Walk me through the process by which the next administration finds a way to put Biden in front of a jury for a criminal prosecution, while this ruling stands.
I'll just stick with what I heard from Bill Barr. The President has a lot of authority, but it must be exercised within the bounds of the constitution. Acts such as the one you suggest are outside of those bounds and are not official. The 6th Amendment is the boundary for establishing and punishing criminal guilt. The President does not have unilateral authority to execute criminals. Sotomayor's foolish whine was a supposition about the President ordering a Seal team to take out a political opponent or to organize a coup. The Posse Comitatus prohibits using the military for law enforcement except where specifically authorized by law. Coups are clearly illegal and are outside the constitutional powers of the President and, therefore, not official acts.
Bill Barr or likeminded AGs would pursue prosecution and likely succeed.
Walk me through HOW a Bill Bar would pursue a prosecution and get to a stage where a jury is empanelled. How would Barr make the case that the killing wasn't necessary, if the entire former executive branch is immune from deposition?
I agree that a President SHOULD NOT have the unilateral authority to execute anyone. Where we part ways is seeing whether the necessary gov't infrastructure and guardrails is in place to prevent that, or whether John Roberts just leveled all of that.
An unconstitutional act is never official. It would be subject prosecution. Your question was how would Barr make the case that the case that the killing was unnecessary. If it were unconstitutional, no proof is necessary. Are you and Steve a tag team?
Exactly. The whole point of immunity is freedom from prosecution. You don’t get prosecuted for allegedly legal acts. So the starting point of any immunity discussion is freedom from prosecution for ILLEGAL acts. What Roberts has given to any president starting yesterday is guaranteed freedom from prosecution for any and all illegal acts involving exercise of a core constitutional power, of which command of the military is a clear and and obvious one.
Not sure how Bill Barr or anyone else would prosecute someone for something for which they have absolute freedom from prosecution.
Kim Wehle writes for The Bulwark and has the unique and innate ability to break legal opinions down to bite size pieces for those of us having no legal training. Rather than wasting my time with my emotional responses to an unhinged sotus, here's her take:
"The Framers rejected an unlimited monarchy in which kings ruled by divine right and could do no legal wrong. That is pretty much out the window now, because overcoming the presumption of immunity and identifying the shred of presidential activities that could conceivably be deemed unofficial will be daunting."
President Putin enjoys greater immunity than this so you can be sure President Trump isn't going to let the court rest until he has absolute immunity as well. Roberts should start refashioning his opinion today, Trump won't wait and Seal Team 6 is just a phone call away.
It's 2026, Don Jr. has announced his intention to succeed his father as president.
Gavin Newsom and Pete Buttigieg are headed to the Davos Conference (or some such) in effort to "work on the international stage" in their competition to be the head of the Democratic ticket.
President Trump acting in his official capacity as commander-in-chief orders a contingent of ___________ [fill in the blank of military ops unit, PMC, CIA, DIA, NSA, etc.] to intercept the plane in international air and stop it due to the "intelligence" that there is a bio weapon on the plane that will explode when it lands.
Dogged reporting by Pete "The Dooc-arino" Doocy uncovers that there was no verified intelligence (aka Trump told him).
Since he was carrying out one of his express (C-n-C) and core (international affairs), what result?
I believe Sotomayor used example of ordering a seal team 6 hit against a political rival. It would be a presidential prerogative. But against a US citizen. Which I don’t believe the US military can legally do. So while trump now seems free and clear to give such an order, it would come down to the military refusing to carry out a presidential order. That would not be a great precedent.
But what if Trump orders the team 6 hit against a rival who trump “says” is an ISIS mole (or whatever, literally)? The military would seemingly be in the clear. And all communication leading up to trump rendering a decision that said political rival was indeed an isis mole is off limits. So is there ANY guardrail against trump doing exactly what sotomayor says, practically speaking? Or are we down to relying on the “decency” of trump (and that of any and all future presidents)?
Any such order would not be within Trump's constitutional authority. And the military cannot enforce domestic laws unless specifically authorized by statute. This is a lot of liberal whining about nothing.
How is ordering the military to do something NOT in his constitutional authority? It is literally enumerated in Roberts section on conclusive immunity: “for instance, commanding the armed forces of the United States”.
We are not talking about the military “enforcing domestic laws”. We are talking about the executive ordering a domestic hit.
You’re using some MAGA motivated reading there, bud.
Now, there are prohibitions against the military carrying out hits on US citizens, I believe. Which is why trump would have to invoke some terrorism angle, as I noted. But that claim could be based on nothing more than a trump fever dream, since it seems how trump came to conclude his rival was a terrorist also appears off limits.
So it appears all we are left with is the faint hope that big orange isn’t a vindictive immoral monster. How solid of a bet is that, ya’figure?
Note also, that the President enjoys full immunity for firing each of the officers that tells him "No" until he gets to one that says "Yes". And should Yes Man be brought up on charges for that killing, the President enjoys full immunity in the exercising of his pardoning powers to get Yes Man off the hook.
I bet he would be removed for unconstitutional activities before he found a Yes Man. Very few people serve in the military (especially as officers) these days and most of the whining comes from those who haven't.
Far-fetched but it all goes back to the Constitution. If the Executive Branch, including the DOD, and the Congress and the Supreme Court all gang up on the citizenry, we are all screwed. I suppose that's what you are suggesting. The founding fathers wrote about the possibility of an unjust government and included the 2nd Amendment as part of the remedy. Of course, in today's world, we would be taken over by hostile nations and have a new national language before any uprising could be completed.
So we have moving from a “system” of checks and balances….to checks and balances based on the individual morality of military servicemembers. I have utmost respect for those who serve. But the point of systems is to remove such individual vagaries.
While this is true that every officer serves at the pleasure of the President, your strawman of an A or B situation of a sycophant officer corps or a rouge coup risks serious credibility damage to any other positions you may have made/will make.
Given your takes on “the military”, you likely haven’t served as a senior enlisted or mid grade officer at length or with any sustained responsibility. Which is fine. It’s basically a family business, anyway. Not for everyone.
Just maybe consider not throwing out asinine insights on such matters. You are very likely quite astute on some topics. Let’s hear about those, instead.
The idea of (only) obeying lawful orders is not novel, limited, nor uncertain.
Again, I’m not suggesting that just because a president orders something illegal or unconstitutional, that it would be carried out as he asks for.
But shouldn’t there be a consequence for a president to even ask for such things? As of yesterday, there won’t be any (when it comes to his use of the military, or any of his other core presidential powers, as designated by Roberts). Is that ok with you? Cuz that’s not a great situation in my book.
Use of force outside of the US Code that gives the legal use of force is inherently “unofficial”.
Deep breath, everyone. Hollywood doesn’t actually depict the military for educational purposes. They are in the entertainment business. In reality , the military is comprised of people from the entire gamut of US culture and has an amazing commitment to faithfully (and lawfully) serve the Constitution and those appointed over them.
You’re still listing the law. And missing the point that, for tier 1 presidential powers, he now enjoys absolute immunity (ie guaranteed freedom from criminal prosecution)…even if he asks for something that is explicitly unlawful. How is the law supposed to restrain someone when SCOTUS explicitly says he is beyond the reach of it?
You’re still conflating the fact of the president asking for something illegal or unconstitutional, with whether it gets carried out or not. Shouldn’t the president merely ASKING for someone to be assassinated get him in some hot water, regardless of whether it happens or not?
The use of military force is Tier 1 under these new legal rulings for Presidential immunity. What constitutes valid use of military force is defined in US Code Title 10, et al.
So, reasonably, logically and legally, assassinations of US citizens via US military operations (except in cases delineated by Title 10) are not valid use of military force by POTUS and are not part of the Tier 1 immunity.
Well, I do prefer your version. Sadly, you’re not the chief justice of SCOTUS. But in Roberts’ version, there is no modifier for “valid use”. Core presidential power? Conclusive immunity, full stop. Think about it - if it’s use is subject to somebody’s assessment of its validity before immunity applies, it’s no longer a conclusive immunity, but a conditional one. And if Roberts intended for it to be conditional, he would’ve used that word instead of the other.
Terrorism "angle" doesn't change citizenship status, bud. The 6th Amendment is still applicable and cannot be ignored by the Executive Branch. I'm pretty sure Bill Barr is not MAGA.
C’mon man. Are we really going to discuss whether the US has ever carried out an extrajudicial hit, even if of a US citizen, and even on US soil?
It may have been clandestine in the past….but may not need to be now.
As for whether the president can now ask the military to explicitly do something that is explicitly “unconstitutional “….seems like the answer is now “yes”….at least insofar as whether he still risks going to jail for merely asking (the answer being “nope”).
Yes. It's the topic at hand. Any extra-judicial hits were unconstitutional and illegal. And, if there were any, they most likely were not done by the military.
“Unconstitutional” and/or “illegal” seems to no longer pierce that immunity shield. He can ask without consequences. It’s true the military may not follow those orders. And as mentioned by Chris above, he can keep asking till he gets a “yes”. Also, the military personnel who do say “yes” can be assured of no lasting consequences, cuz “pardoning” is also covered by conclusive immunity.
Ima gonna weigh in on this in tomorrow’s post. Forgive me if I don’t hit any of your comments. As usual David did yeoman’s work on what the ruling did and didn’t say. There’s a lot more to cover, though.
I'm looking forward to being talked off the ledge. :-)
"My instinct here is that the president might have immunity, but the members of the military and other nonpresidential officials would not. The preservation of our constitutional system may one day depend on the military and government officials refusing to follow unlawful orders. That refusal has its own risks and costs."
Given that firing executive staff enjoys absolute immunity, and the pardon power as well, the only thing folks committing illegal orders from Trump have to fear is that he'll forget to pardon them.
Re: post-Chevron, it's largely an afterthought now, given that neither the legislative nor judicial branch have any meaningful checks on executive power in light of this immunity ruling. No need for POTUS to even venture out to the "presumable immunity" bubble, esp. since SCOTUS has made it impossible for anyone to even ask about the President's motives.
One thing missing above: POTUS's communications and discussions are also off-limits for use as evidence of criminal intent.
Before I finish reading I am stuck on your statement that this is being sent back to judge Cannon. Did the court not order this back to Judge Chutkan for further rulings?
You’re correct. I finished this late last night he didn’t double check the name. Thanks for pointing it out. I’ll make the correction.
I went to sleep and woke sighing the same deep sighs one has following the death of a loved one. The irony of this opinion just days before we celebrate our independence from a
king is not lost on myself and others. For anyone doubting the seriousness of the day I suggest they look at Trump’s pondering of military tribunal to prosecute Liz Cheney and many others in retribution for seeking justice in the wake of January 6th. Decimating the long held wall between the executive office and the DOJ makes this too real a possibility. I read bits of the plan for 2025 daily. It’s scary at best. I believe much of it has been set in motion behind the scenes. I have many problems with Joe Biden and his presidency. I have doubts about his physical capabilities to handle the office for the next four years, but I have no doubt, none whatsoever that reelecting Donald Trump would be the end of our Republic.
I wonder if Biden threatening civilians with F-16s would be an official act, or unofficial?
You can thank SCOTUS for making that covered by absolute immunity, given that all Biden has to do is make some flimsy terrorism excuse.
You can thank SCOTUS for actually giving a small bit of power back to the US citizens as now presidents are finally able to be held more accountable then ever before. The standing rule since forever has been defacto absolute immunity for US presidents since in fact no president prior to Trump has ever been charged with a crime before. In my opinion the democrats have only themselves to blame. They took a chance when they rolled the dice certainly at least suspecting this case would end up in front of the supreme court who as it happens has never in our history ever had a chance to actually rule on presidential immunity. From where I sit, the ruling was more a win for the American people as now for the first time ever, a three tiered test of when presidential immunity applies has been entered into the equation. I am no legal scholar, but it seems to me this ruling now makes it clear that Presidents can be prosecuted for crimes, even for crimes committed in the past. So perhaps future presidents might want to actually be a little more careful about issuing orders like say the killing of US citizens without due process for example.
"So perhaps future presidents might want to actually be a little more careful about issuing orders like say the killing of US citizens without due process for example."
You are aware that with yesterday's ruling, SCOTUS closed off going after Presidents for stuff like this, since protecting the country falls SQUARELY within the core duties of a President? Congress cannot even pass a law that constrains the President in this matter ("folks getting shot at get SOME due process"), as that would negatively affect the quick and courageous decision making that Roberts and Co. seems to think is at risk.
If SCOTUS were interested in democratic accountability, they would have given Congress more power to constraint the actions of the President, not taken it away. After yesterday, the only accountability a President has is elections, and if you read the ruling, Roberts and Co. went out of their way to water down or outright eliminate shackles on the President to meddle in elections with outcomes he doesn't like.
In addition Mr. Karr, President Obama has already ordered a drone attack that killed 4 American citizens. none of which he evidently thought were entitled to due process. Actually from my understanding of that incident, there was only one intended target, Anwar Al-Awlaki. whose death warrant was signed in secret. His 16-year-old son, Samir Khan, and Jude Mohammed were also killed, as was Abd al-Rahman Anwar al-Aulaqi. You might say that all four were accused/suspected of being terrorists which is probably true, but the fact remains that none of these individuals, every one of which was an American citizen ever got their rightful day in court. Secret assassinations against American citizens that have been ordered by a sitting president sounds like pretty "kingly" behavior to me and a very real danger to democracy and our constitutional rights and could and in fact is considered by many to fall under the heading of a criminal war time act.
I agree with you and this is an argument for why there should be LESS immunity for a President, not more as Roberts has granted. Under the prior scheme, you had more chance holding Obama accountable for those choices. Now, it's completely outside the realm of possibility.
I sincerely appreciate your perspective on this and appreciate your feedback. The Supreme Court doesn't always get it right, but it does appear that in this instance at least, we are standing on oppositive sides of the fence on this issue as I believe the ruling will lead to more not less presidential restraint. I guess we shall just have to see how this all plays out.
My understanding is the new ruling would allow the lower courts to decide if questionable actions taken can pass the 3 tiered test, a new never before standard. In my opinion this ruling adds the opportunity for additional accountability to the American public.
There is a three-tiered test.
The first test is whether the action can be construed as being part of his core Constitutional duties. If so, the President enjoys absolute immunity. Trump threatening to fire DoJ officials until one would publish a statement doubting the soundness of the election falls within this realm, since staffing the executive branch is a Constitutional function.
The second test is whether the action - not a core part of his duties - falls under the umbrella of him acting as a President. In addition to the criminal standard of presumed innocence that all defendants are entitled to, this second aspect also grants the President the benefit of the doubt (presumptive immunity) that even if he committed a crime, if the crime was somehow related to his duties as President, the prosecutors have to prove that going after the President will not impede his ability to exercise his Constitutional role. This is a high burden to clear, and what SCOTUS is sending back to the lower courts to determine (which if the results don't fall Trump's way, will be appealed BACK to the Supreme Court). Trump pressuring Mike Pence to violate his oath and duties of office by delaying the count of the electoral votes falls under this umbrella.
The final test says that if the President commits a crime outside of those realms - i.e. the President and his staff are insufficiently creative to come up with a reason why the crime ISN'T related to being President, then he can be tried like a normal criminal defendant. NOTE that prosecutors and the court are prohibited from asking about the rationale or motivation for the criminal action, so if the President asserts that the crime was related to holding the office, prosecutors are SEVERELY hobbled in seeking and presenting evidence that would prove otherwise.
Under the old standard, a President could be tried for crimes, and it would be the job of the court and jury to figure out whether he should be convicted, so this so-called three-part test merely takes the one part-test we already had, carves out a massive exemption in the center, and makes what remains prosecutable MUCH more difficult than it was in last Sunday's courts. A big loss for accountability.
In my opinion there never really was an old standard per se as this is the first time as far as I know, that the involvement of the Supreme Court has been called on to interpret presidential immunity. The determination of what constitutes official or unofficial acts is now up to the lower courts to decide.
The sotomayor example seems pretty on point. Based on the Roberts test that you referred to, the consequence of such an order would be zero (he’s issuing a military order which is squarely within his purview, and has absolute immunity).
So when you say “accountability”….your vote every 4 years will in part come down to the hope that whoever gets the big chair won’t abuse his unbridled ability to exercise the sotomayor scenario, pretty please. That seems to be about it as far as accountability goes.
Isn’t that what we should already be hoping for?
Uh...no. The majority provided a fascia of possibility of accountability, while ultimately making it nigh impossible to do so by making POTUS's discussions and communications with staff/officials off-limits as evidence of criminal intent.
That makes these tiers more or less useless going forward: they'll only apply to Trump as he/his legal team admitted some of those actions were not official acts. A future POTUS will not make that mistake.
Well if that’s the case then you have nothing to worry about since no president prior to Trump has ever been charged with a crime one can only conclude that absolute immunity was pretty much the unspoken rule anyway so from your perspective nothing has really changed.
Something HAS changed. In the past, everyone assumed there was quite a bit of immunity but no one knew exactly how much, as it was not clearly defined. Now it’s black and white for anything covered by Roberts’ first question.
That past uncertainty may have restrained past presidents from acting with deranged impunity. Such restraint is no longer required.
That past uncertainty allowed for secret hits on American citizens so I don’t believe there was too much concern about restraint, but now that it is spelled out as you say in black and white, that uncertainty has been removed so anything proven to be illegal actions will not as now spelled out fall under the purview of presidential immunity. This in my opinion is a win for every American citizen regardless of what party you support.
Or: no POTUS was charged with a crime because they didn't commit any - or at least not enough evidence to prosecute was available.
That’s very debatable as there are many people that believe both Bush and Obama should be held accountable for war crimes. You may not agree, but there’s many people that don’t agree that Trump is guilty either. So once again where you and I are concerned, I am going to have to agree to disagree on how this new ruling plays out. I firmly believe it was a win for the people regardless of what political party you support.
Thanks for the concise summary and kudos for not becoming unhinged (like Sotomayor) when the court opinion was that the President is a special case when it comes to prosecution. The opinion adds an additional layer of rebuttal regarding official capacity necessary to successfully prosecute a current or former President. That's all it does. I find it hilarious that many Trump haters cite legitimacy of court proceedings and jury of peers and due process when Trump loses but pitch a fit when a ruling only slightly favors Trump. Then, the judicial system suddenly becomes totally corrupt.
The reversal of the Chevron doctrine is one I have been hoping to see for years. Thankfully, I no longer have to fight my way through the bureaucracy to get projects permitted and built. It's gotten worse and I feel for those who have to make a living while dealing with it. It is time Congress started doing their job and used some of the 30,000 employees on their payroll to do something besides pay off political debts. Laws passed by a majority of elected congress critters is far more legitimate than rules authored by a Greta Thunberg wannabe or a trans activist in some other useless bureaucracy. On this matter also, Sotomayor had another unhinged moment.
Also, credit to Sotomayor - she wrote a MUCH more conservative opinion that artfully used originalism, textualism, and a theory of limited government than the mess that came out of Roberts' pen.
Conservatives used to mock the "penumbras of emanations" as judges legislating from the bench - yesterday, they put that to shame by inventing entirely new protections for the President that are found nowhere in our law or history.
Where is Sotomayor unhinged?
If Joe Biden hired a hit man to eliminate Trump before the election, citing some vague terrorist justification, how is he held criminally accountable? Protecting the country is one of the core duties that Roberts claims enjoys absolute immunity. Hell, in the ruling, Roberts even closed off the possibility of the judicial or legislative branch even asking the President or anyone in the executive branch that the President discussed the plan with about what was said to determine if Biden had a legitimate belief that Trump was a danger.
Walk me through the process by which the next administration finds a way to put Biden in front of a jury for a criminal prosecution, while this ruling stands.
I'll just stick with what I heard from Bill Barr. The President has a lot of authority, but it must be exercised within the bounds of the constitution. Acts such as the one you suggest are outside of those bounds and are not official. The 6th Amendment is the boundary for establishing and punishing criminal guilt. The President does not have unilateral authority to execute criminals. Sotomayor's foolish whine was a supposition about the President ordering a Seal team to take out a political opponent or to organize a coup. The Posse Comitatus prohibits using the military for law enforcement except where specifically authorized by law. Coups are clearly illegal and are outside the constitutional powers of the President and, therefore, not official acts.
Bill Barr or likeminded AGs would pursue prosecution and likely succeed.
Walk me through HOW a Bill Bar would pursue a prosecution and get to a stage where a jury is empanelled. How would Barr make the case that the killing wasn't necessary, if the entire former executive branch is immune from deposition?
I agree that a President SHOULD NOT have the unilateral authority to execute anyone. Where we part ways is seeing whether the necessary gov't infrastructure and guardrails is in place to prevent that, or whether John Roberts just leveled all of that.
That's where Mr. Barr's knowledge and abilities come into play. An illegal act is never necessary.
If an illegal act is never necessary, then there's no need for ANY immunity, which goes a bit beyond even Sotomayor's dissent.
An unconstitutional act is never official. It would be subject prosecution. Your question was how would Barr make the case that the case that the killing was unnecessary. If it were unconstitutional, no proof is necessary. Are you and Steve a tag team?
Exactly. The whole point of immunity is freedom from prosecution. You don’t get prosecuted for allegedly legal acts. So the starting point of any immunity discussion is freedom from prosecution for ILLEGAL acts. What Roberts has given to any president starting yesterday is guaranteed freedom from prosecution for any and all illegal acts involving exercise of a core constitutional power, of which command of the military is a clear and and obvious one.
Not sure how Bill Barr or anyone else would prosecute someone for something for which they have absolute freedom from prosecution.
Kim Wehle writes for The Bulwark and has the unique and innate ability to break legal opinions down to bite size pieces for those of us having no legal training. Rather than wasting my time with my emotional responses to an unhinged sotus, here's her take:
"The Framers rejected an unlimited monarchy in which kings ruled by divine right and could do no legal wrong. That is pretty much out the window now, because overcoming the presumption of immunity and identifying the shred of presidential activities that could conceivably be deemed unofficial will be daunting."
Happy 4th of July; God save the monarchy.
President Putin enjoys greater immunity than this so you can be sure President Trump isn't going to let the court rest until he has absolute immunity as well. Roberts should start refashioning his opinion today, Trump won't wait and Seal Team 6 is just a phone call away.
Haha. “I want the best immunity….the biggest immunity….you’ve never seen immunity so good until you’ve seen my immunity!”
Team 6 aren’t picking up the phone for him just yet. But after Nov 5, potentially different story.
a now more likely scenario:
It's 2026, Don Jr. has announced his intention to succeed his father as president.
Gavin Newsom and Pete Buttigieg are headed to the Davos Conference (or some such) in effort to "work on the international stage" in their competition to be the head of the Democratic ticket.
President Trump acting in his official capacity as commander-in-chief orders a contingent of ___________ [fill in the blank of military ops unit, PMC, CIA, DIA, NSA, etc.] to intercept the plane in international air and stop it due to the "intelligence" that there is a bio weapon on the plane that will explode when it lands.
Dogged reporting by Pete "The Dooc-arino" Doocy uncovers that there was no verified intelligence (aka Trump told him).
Since he was carrying out one of his express (C-n-C) and core (international affairs), what result?
I believe Sotomayor used example of ordering a seal team 6 hit against a political rival. It would be a presidential prerogative. But against a US citizen. Which I don’t believe the US military can legally do. So while trump now seems free and clear to give such an order, it would come down to the military refusing to carry out a presidential order. That would not be a great precedent.
But what if Trump orders the team 6 hit against a rival who trump “says” is an ISIS mole (or whatever, literally)? The military would seemingly be in the clear. And all communication leading up to trump rendering a decision that said political rival was indeed an isis mole is off limits. So is there ANY guardrail against trump doing exactly what sotomayor says, practically speaking? Or are we down to relying on the “decency” of trump (and that of any and all future presidents)?
Any such order would not be within Trump's constitutional authority. And the military cannot enforce domestic laws unless specifically authorized by statute. This is a lot of liberal whining about nothing.
How is ordering the military to do something NOT in his constitutional authority? It is literally enumerated in Roberts section on conclusive immunity: “for instance, commanding the armed forces of the United States”.
We are not talking about the military “enforcing domestic laws”. We are talking about the executive ordering a domestic hit.
You’re using some MAGA motivated reading there, bud.
Now, there are prohibitions against the military carrying out hits on US citizens, I believe. Which is why trump would have to invoke some terrorism angle, as I noted. But that claim could be based on nothing more than a trump fever dream, since it seems how trump came to conclude his rival was a terrorist also appears off limits.
So it appears all we are left with is the faint hope that big orange isn’t a vindictive immoral monster. How solid of a bet is that, ya’figure?
Note also, that the President enjoys full immunity for firing each of the officers that tells him "No" until he gets to one that says "Yes". And should Yes Man be brought up on charges for that killing, the President enjoys full immunity in the exercising of his pardoning powers to get Yes Man off the hook.
I bet he would be removed for unconstitutional activities before he found a Yes Man. Very few people serve in the military (especially as officers) these days and most of the whining comes from those who haven't.
Who would remove him? Not the Senate. Not the military, unless some officers went rogue and we had a proper military coup.
Far-fetched but it all goes back to the Constitution. If the Executive Branch, including the DOD, and the Congress and the Supreme Court all gang up on the citizenry, we are all screwed. I suppose that's what you are suggesting. The founding fathers wrote about the possibility of an unjust government and included the 2nd Amendment as part of the remedy. Of course, in today's world, we would be taken over by hostile nations and have a new national language before any uprising could be completed.
So we have moving from a “system” of checks and balances….to checks and balances based on the individual morality of military servicemembers. I have utmost respect for those who serve. But the point of systems is to remove such individual vagaries.
While this is true that every officer serves at the pleasure of the President, your strawman of an A or B situation of a sycophant officer corps or a rouge coup risks serious credibility damage to any other positions you may have made/will make.
Given your takes on “the military”, you likely haven’t served as a senior enlisted or mid grade officer at length or with any sustained responsibility. Which is fine. It’s basically a family business, anyway. Not for everyone.
Just maybe consider not throwing out asinine insights on such matters. You are very likely quite astute on some topics. Let’s hear about those, instead.
The idea of (only) obeying lawful orders is not novel, limited, nor uncertain.
Again, I’m not suggesting that just because a president orders something illegal or unconstitutional, that it would be carried out as he asks for.
But shouldn’t there be a consequence for a president to even ask for such things? As of yesterday, there won’t be any (when it comes to his use of the military, or any of his other core presidential powers, as designated by Roberts). Is that ok with you? Cuz that’s not a great situation in my book.
US Code Title 10, Posse Comitatus Act, et al.
Fever dreams are not enumerated as exceptions.
Use of force outside of the US Code that gives the legal use of force is inherently “unofficial”.
Deep breath, everyone. Hollywood doesn’t actually depict the military for educational purposes. They are in the entertainment business. In reality , the military is comprised of people from the entire gamut of US culture and has an amazing commitment to faithfully (and lawfully) serve the Constitution and those appointed over them.
You’re still listing the law. And missing the point that, for tier 1 presidential powers, he now enjoys absolute immunity (ie guaranteed freedom from criminal prosecution)…even if he asks for something that is explicitly unlawful. How is the law supposed to restrain someone when SCOTUS explicitly says he is beyond the reach of it?
You’re still conflating the fact of the president asking for something illegal or unconstitutional, with whether it gets carried out or not. Shouldn’t the president merely ASKING for someone to be assassinated get him in some hot water, regardless of whether it happens or not?
No sir. I do not believe I am missing the point.
The use of military force is Tier 1 under these new legal rulings for Presidential immunity. What constitutes valid use of military force is defined in US Code Title 10, et al.
So, reasonably, logically and legally, assassinations of US citizens via US military operations (except in cases delineated by Title 10) are not valid use of military force by POTUS and are not part of the Tier 1 immunity.
Well, I do prefer your version. Sadly, you’re not the chief justice of SCOTUS. But in Roberts’ version, there is no modifier for “valid use”. Core presidential power? Conclusive immunity, full stop. Think about it - if it’s use is subject to somebody’s assessment of its validity before immunity applies, it’s no longer a conclusive immunity, but a conditional one. And if Roberts intended for it to be conditional, he would’ve used that word instead of the other.
Terrorism "angle" doesn't change citizenship status, bud. The 6th Amendment is still applicable and cannot be ignored by the Executive Branch. I'm pretty sure Bill Barr is not MAGA.
C’mon man. Are we really going to discuss whether the US has ever carried out an extrajudicial hit, even if of a US citizen, and even on US soil?
It may have been clandestine in the past….but may not need to be now.
As for whether the president can now ask the military to explicitly do something that is explicitly “unconstitutional “….seems like the answer is now “yes”….at least insofar as whether he still risks going to jail for merely asking (the answer being “nope”).
Yes. It's the topic at hand. Any extra-judicial hits were unconstitutional and illegal. And, if there were any, they most likely were not done by the military.
“Unconstitutional” and/or “illegal” seems to no longer pierce that immunity shield. He can ask without consequences. It’s true the military may not follow those orders. And as mentioned by Chris above, he can keep asking till he gets a “yes”. Also, the military personnel who do say “yes” can be assured of no lasting consequences, cuz “pardoning” is also covered by conclusive immunity.