55 votes

Read the US Supreme Court’s ruling on immunity (gifted link)

32 comments

  1. [2]
    psi
    (edited )
    Link
    Here's the direct link from SCOTUS: https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf In short, the Court (in a 6-3 decision, liberals dissenting) grants the President "absolute"...
    • Exemplary

    Here's the direct link from SCOTUS:

    In short, the Court (in a 6-3 decision, liberals dissenting) grants the President "absolute" immunity for "core constitutional powers", the presumption of immunity for "official acts", and no immunity for "unofficial acts".

    I put these terms in quotes because the restrictions on prosecution are so onerous as to effectively make a prosecution impossible in all cases, as we will see.

    For background, the majority's opinion is based on the assumption that a threat of prosecution would so greatly burden the President that they would be unable to execute their official duties. This concern is not borne out by the evidence:

    1. No President has ever claimed that they've been unable to carry out their official duties out of fear of prosecution.
    2. Given that the President has a duty to "take Care that the Laws be faithfully executed" (Article II, §3 of the Constitution), it is truly baffling that the majority would consider a requirement to follow the law to be an undue burden on the Presidency.
    3. The President has access to better legal counsel than virtually all citizens (including the Attorney General).
    4. To the extent that the President does violate the law, they have the possibility to raise a defense-of-counsel defense, with that "counsel" being the Attorney General of the United States.
    5. The President has the possibility to rely on public-authority exceptions.
    6. January 6 happened. To the extent that there is evidence as to whether the threat of prosecution is too great or too little, the evidence points the other way.

    Nevertheless, the Court has come to a decision. Let us consider the implications of the case, beginning with the matter of "official acts" immunity. From Sotomayor's dissent:

    Setting aside this evidence, the majority announces that former Presidents are “absolute[ly],” or “at least ... presumptive[ly],” immune from criminal prosecution for all of their official acts. Ante, at 14 (emphasis omitted). The majority purports to keep us in suspense as to whether this immunity is absolute or presumptive, but it quickly gives up the game. It explains that, “[a]t a minimum, the President must . . . be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” Ibid. (emphasis added). No dangers, none at all. It is hard to imagine a criminal prosecution for a President’s official acts that would pose no dangers of intrusion on Presidential authority in the majority’s eyes. [...] According to the majority [...] any incursion on Executive power is too much.

    A criminal prohibition would necessarily intrude on "functions". That is entirely the point of a prohibition. Likewise, it's difficult to fathom how an official act could not necessarily be a function of the Executive Branch. This makes the distinction between "core constitutional powers", whatever those are, and "official acts" essentially meaningless -- already the burden for prosecuting an official act is nearly insurmountable.

    Although the majority opinion permits the prosecution for criminal "unofficial" acts, the dissent notes that this is hardly a concession -- to admit otherwise would be to explicitly elevate the Presidency beyond any oversight. And yet, that is essentially the lawless result that the majority's opinion has endorsed, as the distinction between an "official" and "unofficial" act may as well not exist.

    In fact, the majority’s dividing line between “official” and “unofficial” conduct narrows the conduct considered “unofficial” almost to a nullity. It says that whenever the President acts in a way that is “‘not manifestly or palpably beyond [his] authority,’” he is taking official action. Ante, at 17 (quoting Blassingame v. Trump, 87 F. 4th 1, 13 (CADC 2023)). It then goes a step further: “In dividing official from unofficial conduct, courts may not inquire into the President’s motives.” Ante, at 18. It is one thing to say that motive is irrelevant to questions regarding the scope of civil liability, but it is quite another to make it irrelevant to questions regarding criminal liability. Under that rule, any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune.

    Not only must a court presume that "official acts" are immune from prosecution, that court must also presume that any act by a President is official, and that court cannot consider the President's motives when making that decision.

    Perhaps even worse yet, "official acts" cannot be considered as evidence of criminal "unofficial acts". Sotomayor reconsiders the assassination hypothetical from the DC circuit's oral arguments and finds little assurance from the majority's opinion.

    For instance, the majority struggles with classifying whether a President’s speech is in his capacity as President (official act) or as a candidate (unofficial act). Imagine a President states in an official speech that he intends to stop a political rival from passing legislation that he opposes, no matter what it takes to do so (official act). He then hires a private hitman to murder that political rival (unofficial act). Under the majority’s rule, the murder indictment could include no allegation of the President’s public admission of premeditated intent to support the mens rea of murder. That is a strange result, to say the least.5

    With respect to the Jan 6 case, this means that Trump's discussions with his chief of staff and other aids (e.g., discussions in which they informed him that there could not find evidence of widespread fraud) will be excluded from evidence in the Jan 6 trial.


    In addition to Sotomayor's dissent, Jackson writes a separate dissent (although still joining with Sotomayor). Jackson begins by reminding us of what it means to have immunity:

    In its purest form, the concept of immunity boils down to a maxim— “‘[t]he King can do no wrong’”—a notion that was firmly “rejected at the birth of [our] Republic.”

    To say that someone is immune from criminal prosecution is to say that, like a King, he “is not under the coercive power of the law,” which “will not suppose him capable of committing a folly, much less a crime.” 4 Blackstone *33. Thus, being immune is not like having a defense under the law. Rather, it means that the law does not apply to the immunized person in the first place.

    Granting the President absolute immunity means he now exists in a class of his own:

    [O]ur Government has long functioned under an accountability paradigm in which no one is above the law; an accused person is innocent until proven guilty; and criminal defendants may raise defenses, both legal and factual, tailored to their particular circumstances, whether they be Government officials or ordinary citizens. For over two centuries, our Nation has survived with these principles intact.

    Departing from the traditional model of individual accountability, the majority has concocted something entirely different: a Presidential accountability model that creates immunity—an exemption from criminal law—applicable only to the most powerful official in our Government.

    Jackson considers the implications, again returning to the SEAL Team Six hypothetical: can a President assassinate their political rivals? In any sane universe, the answer would be an unambiguous no.

    Thus, even a hypothetical President who admits to having ordered the assassinations of his political rivals or critics, see, e.g., Tr. of Oral Arg. 9, or one who indisputably instigates an unsuccessful coup, id., at 41–43, has a fair shot at getting immunity under the majority’s new Presidential accountability model. That is because whether a President’s conduct will subject him to criminal liability turns on the court’s evaluation of a variety of factors related to the character of that particular act—specifically, those characteristics that imbue an act with the status of “official” or “unofficial” conduct (minus motive). In the end, then, under the majority’s new paradigm, whether the President will be exempt from legal liability for murder, assault, theft, fraud, or any other reprehensible and outlawed criminal act will turn on whether he committed that act in his official capacity, such that the answer to the immunity question will always and inevitably be: It depends.

    We do not live in a sane universe.


    As a practical matter, for procedural reasons the soonest the Jan 6 case can occur is some eighty days from now, i.e. the end of September. The judge overseeing that case will then need to make a decision on which parts of Trump's treachery stemmed from his "core powers", which parts were merely "official", which parts were "official" but subject to prosecution, etc. Whatever the outcome, that decision will then be appealed to the DC Circuit, and then to the Supreme Court, further delaying the case. In effect, this decision precludes the possibility that a jury trial will conclude before the election unless Jack Smith seriously limits the scope of the prosecution.

    By the way, this Court delayed releasing this opinion until the last day of the term, after refusing to hear it early (despite the fact that the Court always intended on having the final word on this matter). This Court has done everything it can to prevent Trump from facing consequences for his betrayal to his oath.

    70 votes
    1. LetsBeChooms
      Link Parent
      Okay, so if the logic does not compute here, it means that the machine is broken and needs to be fixed. How can we start working on that? Edit: I don't mean to derail your comment at all. Thank...

      Okay, so if the logic does not compute here, it means that the machine is broken and needs to be fixed.

      How can we start working on that?

      Edit: I don't mean to derail your comment at all. Thank you so much for explaining it so well.

      16 votes
  2. [7]
    smiles134
    Link
    I am feeling utterly defeated this past week. Before the debate I would've believed the Biden campaign could use this awful decision to further emphasize the importance of this upcoming election,...

    I am feeling utterly defeated this past week. Before the debate I would've believed the Biden campaign could use this awful decision to further emphasize the importance of this upcoming election, but now I can't muster up any hope that Biden has a shot in the election. I hope I'm just feeling pessimistic and the reality is something else but wow, so many of my friends are expressing the same things as me. What an awful week.

    29 votes
    1. [6]
      DarthYoshiBoy
      Link Parent
      Just to reframe this for anyone who is feeling similarly, we're not yet defeated. The options before us are not the same. The fix for this isn't to give up and let Trump have the Whitehouse in...

      Just to reframe this for anyone who is feeling similarly, we're not yet defeated. The options before us are not the same. The fix for this isn't to give up and let Trump have the Whitehouse in 2025, it's to keep him out so that the legal matters can sort out and see his ass in jail.

      Hopefully we can see some Supreme Court reform along the way that makes it possible to have this terrible ruling nullified or neutered, but it's a hope we can only entertain if we can make that first step which is only this: DON'T ALLOW TRUMP TO REGAIN OFFICE.

      I don't love Biden going for a second term, it stinks, but it's what we've got and that means I'll hold my nose and pull the lever while I encourage anyone else who still has enough of a mind left to do likewise, to do likewise. They're both old and beyond their prime, but at least Biden isn't trying to destroy everything about our system and way of life and sadly that's the best we can expect at this point, there isn't some magical third way. We need to choose the option that allows for improvement in the future, not the option that destroys the future. Don't let perfect be the enemy of good.

      41 votes
      1. [5]
        smiles134
        Link Parent
        Of course. To be clear, I'm voting Biden regardless. The debate didn't change that. I won't feel happy about it but I didn't love voting for him in the first place, or for Hillary in 2016. My fear...

        Of course. To be clear, I'm voting Biden regardless. The debate didn't change that. I won't feel happy about it but I didn't love voting for him in the first place, or for Hillary in 2016. My fear is that on the fence or indifferent voters choose to just stay home, thinking that it's not going to matter.

        29 votes
        1. [4]
          DarthYoshiBoy
          Link Parent
          Which I completely believe is a likely outcome, but it's exactly why people like you and I don't get to shrink back. It falls to us to make certain that those fence sitters see the importance of...

          My fear is that on the fence or indifferent voters choose to just stay home, thinking that it's not going to matter.

          Which I completely believe is a likely outcome, but it's exactly why people like you and I don't get to shrink back. It falls to us to make certain that those fence sitters see the importance of getting out there, no matter what, to vote against Trump. Nothing else matters if a narcissist like that can get the office of president and has only to designate that the repulsive things he will do are "official acts" to get them outside of scrutiny. We have to help the fence sitters see the incredible danger that poses to our democracy and motivate them to support court reform in line equal to the court's complacence in supporting this absurd notion that presidents are kings in an "official act" capacity.

          It's not a great first step we have in front of us, but it's the only step forward now that doesn't cut us down entirely. Sadly my mother and brother-in-law are both in the "Well, I'll find another way because I can't support either" camp and I honestly believe it's only because they hate politics and aren't paying attention enough to see what is unfolding right now. We've got to figure out how to reach those people or we do stand a very real chance of handing our government over to a autocratic dynasty of Trump family rule which will only serve sycophantic republican enablers and the Trump family ...and honestly only the former for as long as the latter suffers them.

          14 votes
          1. [3]
            0x29A
            (edited )
            Link Parent
            I am definitely seeing, in these past few months, any remaining modicum of support among leftists (at least many of the groups/etc I follow on social media) evaporate due to Gaza, and whether or...

            I am definitely seeing, in these past few months, any remaining modicum of support among leftists (at least many of the groups/etc I follow on social media) evaporate due to Gaza, and whether or not I agree with it (and whether or not I will follow suit) that lack of support I think is going to have a sizeable impact on turnout.

            I don't really blame them either, as they see both options as a vote essentially supporting Israel's activities (not to mention capitalism, US hegemony, other US meddling, etc), and I personally struggle with that too.

            That said, I can still understand the idea of pragmatic/strategic voting, since yes, while there is much I dislike about both candidates, including some extremely significant moral problems, I do believe under right-wing/reactionary power, the awfulness only accelerates (as does the rhetoric and its downstream effects) and maybe threatens leftist organizing, activity, etc much more severely. I am okay that a number of leftists say to focus more on local elections, organizing, activities and such, because the national side of things is so screwed- but I think one has ripple effects on the other- they're not isolated silos and I think that's where that thinking maybe can go wrong

            It's just disheartening that it's come to this, and I while I don't blame people for being completely disgusted to the point of not involving themselves in national electoral politics, I do think said disgust could essentially cause everything to be thrown into the hands of the far-right, which is even worse. While both options are the same in some ways they are certainly very different in other ways and those can be significant.

            At the barest of minimums, avoiding far-right power at least would seem to buy time... It just doesn't help that Dems are constantly playing defense instead of offense (whether they have a choice in this or not) and every election just becomes "gotta stop the right" while people aren't even satisfied with the liberal/Dem "left" either. Even if they're correct, I think that wears on people.

            9 votes
            1. [2]
              dr_frahnkunsteen
              Link Parent
              I think ultimately, for those that consider Gaza the biggest factor in how or if they vote then you can only make that decision from a perspective of harm reduction. You have three choices: Trump,...

              I think ultimately, for those that consider Gaza the biggest factor in how or if they vote then you can only make that decision from a perspective of harm reduction. You have three choices: Trump, Biden, no-vote/third party. While “no-vote/third party” might align most with what these voters consider the moral position, it is not the choice that will reduce the most harm, because one of those two guys is gonna be The Guy whether you vote or not. To not vote essentially gives up having a say in the matter at all. It might feel pretty good if Trump ends up losing anyway, but if Trump wins? Because Trump is also, explicitly, not the choice that will reduce the most harm. He has made clear his position on Gaza and Israel and it is much more dire for the Palestinians. Ultimately, if you support the Palestinians then it is imperative that Trump be kept out of office at all costs, and that might mean holding your nose for Biden as it is the best and only way to stop Trump. And believe me I hate that choice. I hate our First Past the Post system guarantees we only have a binary choice. But, I’ve examined the options, and if I want to do the least amount of harm the choice is clear.

              10 votes
              1. DarthYoshiBoy
                Link Parent
                Exactly this.

                Exactly this.

                "Let not any one pacify his conscience by the delusion that he can do no harm if he takes no part, and forms no opinion. Bad men need nothing more to compass their ends, than that good men should look on and do nothing."

                7 votes
  3. [8]
    Evie
    Link
    So I'm no lawyer, but having read the decision and Sotamayor's and Barret's dissents (I could not give less of a shit about whatever drivel Thomas wrote), this is about what we expected, right?...

    So I'm no lawyer, but having read the decision and Sotamayor's and Barret's dissents (I could not give less of a shit about whatever drivel Thomas wrote), this is about what we expected, right? The president being granted partial immunity -- particularly, immunity covering "official acts," whatever that means. The court speculates on which of the Jan 6 indictments address official acts and which might not, and remands to the district court to make that judgement -- a delay tactic, yes, but it also means that the prosecution isn't fully dead in the water on some counts. Barret's partial dissent is pretty interesting, I think. She has a narrower view of presidential immunity than the rest of the conservative justices; In particular, she argues that even if official acts aren't prosecutable, they should be allowed to be introduced as evidence in prosecution for unofficial acts. The liberal dissent is pretty scathing, of course, and worth a read. But it will of course, like all strongly worded opinions from the liberals, do nothing to slow this nation's slide into authoritarianism.

    22 votes
    1. [7]
      NaraVara
      Link Parent
      Based on the immunities granted in this ruling, Biden could get us 6 new Justices overnight if he was willing to get his hands dirty. He could also engineer a permanent solution to the Trump...

      Based on the immunities granted in this ruling, Biden could get us 6 new Justices overnight if he was willing to get his hands dirty.

      He could also engineer a permanent solution to the Trump problem and since it’s an “official act” I guess we can’t do anything about it. Ho hum.

      29 votes
      1. [6]
        vord
        Link Parent
        The over/under on this guy dying inside of 3 years is pretty high, getting his hands dirty should be job #1 approximately 1 hour after election results are confirmed.

        Based on the immunities granted in this ruling, Biden could get us 6 new Justices overnight if he was willing to get his hands dirty.

        The over/under on this guy dying inside of 3 years is pretty high, getting his hands dirty should be job #1 approximately 1 hour after election results are confirmed.

        12 votes
        1. [5]
          NaraVara
          (edited )
          Link Parent
          Actuarially an 82 year old male has an average life expectancy of an additional 7 years. Considering Biden is physically in good health for his age I think 3 years is probably on the low end by a...

          Actuarially an 82 year old male has an average life expectancy of an additional 7 years. Considering Biden is physically in good health for his age I think 3 years is probably on the low end by a decent amount. The likelihood is that he lives out his second term and passes away 3 or more years after, even if you factor in the stress of the job.

          Mental fitness factors in a bit but for that level of wealth probably not much. Ronald Reagan was already senile due to Alzheimer’s in the last year or two of his term in office in 1988, but he didn’t actually die until 2004 at the age of 93. And he was a smoker!

          83 does seem to be around the point where the curve starts to accelerate fast though. So he’s probably not gonna be looking great by the time he gets out of office. But at that point he’ll be a lame duck anyway.

          11 votes
          1. [4]
            bengine
            Link Parent
            How did you factor out the stress of still being full time employed as POTUS from the actuary table linked? What sources do you have supporting the statements about mental fitness, and wealth as...

            How did you factor out the stress of still being full time employed as POTUS from the actuary table linked? What sources do you have supporting the statements about mental fitness, and wealth as not being a factor?

            2 votes
            1. [3]
              NaraVara
              Link Parent
              The actuarial table is an average across ALL 82 year olds, including ones who have chronic health problems. The stress of being POTUS wouldn’t help but it’s probably not going to hurt worse than...

              The actuarial table is an average across ALL 82 year olds, including ones who have chronic health problems. The stress of being POTUS wouldn’t help but it’s probably not going to hurt worse than many of the other issues people start to have at that age.

              I also didn’t say wealth wasn’t a factor. I said wealth seems to heavily mitigate against the downsides of mental fitness because you have people attending to your needs to address the self-maintenance stuff that declining mental acuity compromises your ability to do for yourself.

              2 votes
              1. [2]
                gary
                Link Parent
                Being included in the calculations of the average doesn't mean that those facing stress/complications are conferred the average. Or, if stressed 82 year olds live an average of 2 more years and...

                Being included in the calculations of the average doesn't mean that those facing stress/complications are conferred the average. Or, if stressed 82 year olds live an average of 2 more years and non-stressed individuals live 10 more years, but the average live 7 more years, the stressed individuals would still live on average 2 more years. Numbers pulled out of thin air.

                1. NaraVara
                  (edited )
                  Link Parent
                  If you looked you’ll notice I actually rated him as above average and just treated the average as a conservative estimate. Stress isn’t a binary variable and it most definitely is not going to...

                  If you looked you’ll notice I actually rated him as above average and just treated the average as a conservative estimate. Stress isn’t a binary variable and it most definitely is not going to have as strong of an impact on life expectancy as chronic health conditions do. I do not believe the claim that the stress of being POTUS is going to significantly negatively impact the life expectancy of an otherwise physically health man is well supported.

                  2 votes
  4. [6]
    thearctic
    (edited )
    Link
    I've been trying to internally steelman this, but I just can't. I remember hearing center-right commentators say that the reason the SCOTUS took up this case was to nip this ridiculous question in...

    I've been trying to internally steelman this, but I just can't. I remember hearing center-right commentators say that the reason the SCOTUS took up this case was to nip this ridiculous question in the bud and deliver a 9-0 decision against presidential immunity, and I genuinely thought it would at least be a 6-3 or 7-2 decision against.

    This is really really bad, and all I hope right now is that our legal academia can find a way to somehow theorize this into being less functionally bad. My worry is that there are too many careerist sycophants across our varying institutions for that to happen.

    16 votes
    1. [4]
      NaraVara
      Link Parent
      There is no procedural fix for this. Getting into the SCOTUS was supposed to have a bunch of guard rails in place to ensure this sort of judicial malpractice couldn’t happen. Those guardrails have...

      This is really really bad, and all I hope right now is that our legal academia can find a way to somehow theorize this into being less functionally bad.

      There is no procedural fix for this. Getting into the SCOTUS was supposed to have a bunch of guard rails in place to ensure this sort of judicial malpractice couldn’t happen. Those guardrails have been systematically dismantled over the past 30 years to stack the bench with partisan apparatchiks who have openly been cheerleading a fascist coup attempt.

      Don’t put your faith in legal academia, elite law practice is what got us into this mess. When Kavanaugh and Gorsuch were being nominated they circled the wagons to shield them from real criticism because connections and access and prestige for their Yale and Harvard Law buddies matters more within that sphere than anything else. They want their students and kids to get the SCOTUS clerkships and they’ll write OpEds in the Times to carry water for the most unhinged idiots if it lets them collect a favor to cash in.

      Really our only hope is for Biden in his second term to pull an Andrew Jackson, but for good this time. John Robert’s has made his decision, now let him enforce it.

      10 votes
      1. [3]
        paris
        Link Parent
        What does this mean, 'pull an Andrew Jackson'?

        What does this mean, 'pull an Andrew Jackson'?

        3 votes
        1. [2]
          NaraVara
          Link Parent
          The state of Georgia tried to forcibly relocate the Cherokee nation out of Georgia so settlers could steal their land. The Cherokee nation successfully sued the state and won their case in the...

          The state of Georgia tried to forcibly relocate the Cherokee nation out of Georgia so settlers could steal their land. The Cherokee nation successfully sued the state and won their case in the Supreme Court. Andrew Jackson basically said “John Marshall has made his ruling, now let him enforce it” and sent in the military to relocate the Cherokee anyway. This would go on to be called the Trail of Tears because of how many people died on the journey.

          But the overall lesson of it is that the Supreme Court’s authority rests on the legitimacy granted to it by the other branches. When it steps out of line it has no real power to enforce its dictates and the President can ignore them at will as long as Congress is willing to rubber stamp him.

          11 votes
          1. paris
            Link Parent
            Got it! Thank you for the explanation.

            Got it! Thank you for the explanation.

            3 votes
    2. lel
      (edited )
      Link Parent
      It's really not that bad and doesn't change anything about the law. For 200 years the answer to "can the president go to jail?" was "unknown, probably not, but it'll be the supreme court's job to...

      It's really not that bad and doesn't change anything about the law. For 200 years the answer to "can the president go to jail?" was "unknown, probably not, but it'll be the supreme court's job to decide whenever it comes up." Now the answer is "probably not, but it'll be the supreme court's job to decide whenever it comes up," because they decided that while he has immunity on official acts, they get to decide what those are on a case-by-case basis. In as literal a sense as logically possible, this decision is meaningless. Might they give Trump immunity on his stuff? Sure, but this wasn't them doing it. It was just them saying they can, and we've already known that since judicial review started. The evidentiary part is the only new thing here, not the stuff allowing the court to give the president criminal immunity.

      4 votes
  5. Thomas-C
    (edited )
    Link
    So, "justice delayed, justice denied", basically. I might be reading wrong but that's what I picked up reading through it. The court isn't actually delivering the sort of "absolute immunity" trump...

    So, "justice delayed, justice denied", basically. I might be reading wrong but that's what I picked up reading through it. The court isn't actually delivering the sort of "absolute immunity" trump is asking for, but they are giving him the language so he can use it, which is his function as an instrument. His is a war of information and appearance, so they're giving him all the ammo and (like the cowards they are) declining to be the actual nail in the coffin themselves. He will be that, if anything so the republican party later in time can ditch his ass and fool people with someone more thoughtful and articulate. He is a wildfire, and the party needs to wear gloves so they don't get burned, carrying it into the heart of things. This court, their decision here, is that glove, the next glove after the last ones burned off. Even a very good glove can't last forever, and the justices behind it have their own skin to save. They were never going to declare something like "the president can do whatever he wants", that endangers their own positions long term. So instead, it's "well you have to get all the details straight" and hope that Trump pulls out a win during the interval that creates.

    This means, I think, that the republican play broadly is to set up a situation where, if they don't win the election, the democrats will have to exercise authority on an unprecedented level to actually fix anything, and republicans intend to frame that as the country being seized by despots, a way of trying to make people think the government really is coming for them (this is a thing practically any cultist froths over all the time and is directly stated in the mailing lists, over and over again). If they can't win the election, they'll foment a civil conflict, and that will be something on the list of all those things democrats will have to exercise authority over, a very difficult needle to thread. How do you stop a civil conflict without appearing at least a bit despotic? It's not something I think is worthwhile to think about much, because we aren't there yet, but to me that is what the horizon looks like when I try to be optimistic.

    What Trump represents will not die with him, win or lose. It's not really even about him. The group using him will toss him off the bus just the same as anyone else if it turns out he's too petulant and egotistical to follow through on their aims. He might look like a "god emperor" to a host of morons but he's as fragile and weak as anyone, more so because he's too stupid to outplay his handlers (except, importantly, by force of erratic rage). Weirdly it's like bringing the whole situation back to him in particular, as a sort of main character in a story - it's on him. If he screws up, which is entirely plausible, republicans have to go to a different plan, which is a whole world of different shit we haven't begun to really think about (nor should we; again, we aren't there yet).

    So, perhaps similar to the last thing I wrote, buckle up, we have only begun. This ride is an existential one. We aren't going to ride up to the very edge of everything and come back to anything. We're going to go past it, and become something new. Maybe that means recovering some of what our past did well. Maybe it means a descent into the deepest darkness. We will see. But we aren't there yet. I hate baseball metaphors so I'll make one and tear it up - this isn't bottom of the ninth with two outs. It's like bottom of the third and folks are all trying to make predictions about shit they don't know. And, the teams aren't even playing baseball to begin with, it's a totally different sport that just looks a lot like baseball. The numbers and stats and facts folks are tossing out to justify their predictions are for the wrong game, and only sometimes mean things for this one. Everything I speculated is exactly that, speculation, the best I got with some intuition and whatever else I can cram into my one brain. I think the point is to say, shit is too unpredictable to be looking too far ahead, and that's about all I can be comfortable with right now.

    (A lot of that document was well beyond me so perhaps I'm completely off base, and making a prediction is always fraught with problems, but that's what I've got.)

    Edit: Second reading. It is insulating trump in the way he wants, I think my first bit is incorrect, but the predictions/speculation remain the same. If democrats pull a win and manage to actually outlast what conflict comes after that, they will have to act in ways utterly beyond anything we've seen before. And that means all the same things about what republicans will do with that.

    I'll also add a tiny piece. Consider for a moment, how completely everything is ending. An age of appearances and showmanship comes to a close, with one group making a play for the real, material power underneath after having tried to fool folks into not stopping them. If there is an answer, a response, it is to assert a greater will than theirs. That may mean having to act very much as a despot in order to stop despotism, and to overcome the wave of folks trying to use the Old Ways to fool folks and stop that assertion. The old ways are dead, and that includes our ideas of what the legal system meant. Renewal is not a small thing, destruction and creation happen together. Or to be a bit more down to earth: Biden has absolute immunity for official acts, now. His place in history is something unique, and he in a way faces the hardest challenge for an older person - to accept, the old ways are gone, and set forth something new he will himself not see. Can a person do that? This is as part of the story as Trump's screwups, so we will see.

    11 votes
  6. [6]
    Eric_the_Cerise
    Link
    Serious question. People keep cynically, semi-seriously suggesting this ... but really, truly ... does this ruling now give Biden the option of legally(-ish) assassinating Trump, and/or anything...

    Serious question.

    People keep cynically, semi-seriously suggesting this ... but really, truly ... does this ruling now give Biden the option of legally(-ish) assassinating Trump, and/or anything up to a half-dozen SCOTUS Justices, based on an arument that he is defending the country from a coup (or similar claim)?

    I understand the absolutely horrific precedent it would set, as well as massive ramifications for the coming election and even the potential for instigating a full-scale uprising/revolution from the MAGA world, etc.

    Practically speaking, I think the best solution is for the Dems to focus on winning the election, and then start packing the court immediately after.

    But legally, at least, is assassination now a real option?

    5 votes
    1. psi
      (edited )
      Link Parent
      I honestly think this opinion provides legal cover for assassinating political rivals, and in their dissents, Jackson and Sotomayor both seem to think so, too. Put aside the question of whether a...

      I honestly think this opinion provides legal cover for assassinating political rivals, and in their dissents, Jackson and Sotomayor both seem to think so, too.

      Put aside the question of whether a President could immunize himself by carrying out the assassination using "official acts". There's an even more straightforward approach the President could employ: he 1 could organize a hit and then pardon everyone involved in the plot. According to this opinion, the power to pardon is considered "core" and therefore absolutely immune from prosecution. Moreover, this opinion does nothing to assuage us that a President cannot pardon himself -- if anything, this opinion, in its deference to the Presidency and reluctance to put any limits on his power, could be used to support the position that the power to pardon is unlimited.

      So what about impeachment? Impeachment is not ideal for multiple reasons:

      1. Impeachment is a slow process. Usually murderers are held without bond while awaiting trial, not permitted to helm the most powerful office on Earth.
      2. While the trial is underway, there's nothing stopping the President from continuing to try to murder more of his political rivals, including those who would vote to impeach/convict him.
      3. If the power to pardon is "core", can an abuse of the pardon power be a "high crime" or "misdemeanor"?

      Let me expand on the last point. One way of interpreting the impeachment clause is that it's a political process, so Congress could impeach a President for virtually anything as long as they have the votes. Another way of interpreting the impeachment clause -- as Trump argued during his impeachments and as Republicans seemed willing to endorse -- is that it only applies when there's an underlying crime. And if the power to pardon is absolutely immune from prosecution, then there exist no circumstances in which a President could have acted criminally when abusing his pardons and therefore be subject to impeachment.

      This opinion is truly terrible.


      1 he because the threat is Trump, not Harris, Clinton, or some other imagined threat

      12 votes
    2. [2]
      stu2b50
      Link Parent
      In a way, but also not really. In practice, if a president ever did this, Congress would immediately impeach and convict him, which is a power they solely hold and does not need to adhere to...

      In a way, but also not really. In practice, if a president ever did this, Congress would immediately impeach and convict him, which is a power they solely hold and does not need to adhere to existing law.

      3 votes
      1. MimicSquid
        Link Parent
        ... assuming that president wasn't of the same party as the one that held the Congress. Do you think that a Republican Congress would push back on Trump if he started rounding people up? Really?...

        ... assuming that president wasn't of the same party as the one that held the Congress. Do you think that a Republican Congress would push back on Trump if he started rounding people up? Really? Also, how long would that take, while people were being disappeared by the day? Those congresspeople are just as vulnerable as anyone else, you know. More so, if they're trying to call Trump out while in DC.

        10 votes
    3. lel
      (edited )
      Link Parent
      Legally no, at least not any more than it was before the decision. He would be arrested and convicted and his appeal would establish the precedent that assassinating your political rivals is not...

      Legally no, at least not any more than it was before the decision. He would be arrested and convicted and his appeal would establish the precedent that assassinating your political rivals is not an official act. Nothing in the ruling suggests that something like that would ever be considered an official act. If he appealed and the supreme court decided that it was an official act (as someone very cynical on the court, it wouldn't do this and the people who think it would need to get a grip), then, yes, they could give him criminal immunity, but they already could have done that before this decision. This didn't change anything about that at all.

      3 votes
    4. nrktkt
      Link Parent
      In addition to the other comments, I think a president that tried this would risk an actual (military) coup.

      In addition to the other comments, I think a president that tried this would risk an actual (military) coup.

      2 votes
  7. Surfcasper
    Link
    America is a joke.

    America is a joke.

    4 votes