SCOTUS rules POTUS has limited immunity
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I can see it becoming the "norm" for Presidents on their last day in office pardoning themself for all crimes past and present.
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@Horace said in SCOTUS rules POTUS has limited immunity:
@jon-nyc how do you feel about this ruling?
It went too far, though there were obvious tradeoffs. The 'core functions' provision is too broad, future prosecutors can't even question motive. I think a president could openly auction off pardons under this, for example.
The second bucket, where there is the presumption of immunity, is also pretty broad. It would make it far more difficult to prosecute an obvious bribery case, in the same way the speech and debate clause is making it harder to prosecute Menedez.
Only non-witches get due process.
- Cotton Mather, Salem Massachusetts, 1692
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@Horace said in SCOTUS rules POTUS has limited immunity:
@jon-nyc how do you feel about this ruling?
It went too far, though there were obvious tradeoffs. The 'core functions' provision is too broad, future prosecutors can't even question motive. I think a president could openly auction off pardons under this, for example.
The second bucket, where there is the presumption of immunity, is also pretty broad. It would make it far more difficult to prosecute an obvious bribery case, in the same way the speech and debate clause is making it harder to prosecute Menedez.
@jon-nyc said in SCOTUS rules POTUS has limited immunity:
@Horace said in SCOTUS rules POTUS has limited immunity:
@jon-nyc how do you feel about this ruling?
It went too far, though there were obvious tradeoffs. The 'core functions' provision is too broad, future prosecutors can't even question motive.
Presidents are now immune from any whistleblower laws, for example.
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@Horace said in SCOTUS rules POTUS has limited immunity:
@jon-nyc how do you feel about this ruling?
It went too far, though there were obvious tradeoffs. The 'core functions' provision is too broad, future prosecutors can't even question motive. I think a president could openly auction off pardons under this, for example.
The second bucket, where there is the presumption of immunity, is also pretty broad. It would make it far more difficult to prosecute an obvious bribery case, in the same way the speech and debate clause is making it harder to prosecute Menedez.
@jon-nyc said in SCOTUS rules POTUS has limited immunity:
@Horace said in SCOTUS rules POTUS has limited immunity:
@jon-nyc how do you feel about this ruling?
It went too far, though there were obvious tradeoffs. The 'core functions' provision is too broad, future prosecutors can't even question motive. I think a president could openly auction off pardons under this, for example.
I know they used this example in Advisory Opinions, but I doubt the courts would allow this. The act of taking money to provide a pardon, could easily be framed as outside the core function. Nothing about giving a pardon requires a president to sell it first. That would be optional, and personal, and private, in the third bucket. I think that that's how this court would view that.
The second bucket, where there is the presumption of immunity, is also pretty broad. It would make it far more difficult to prosecute an obvious bribery case, in the same way the speech and debate clause is making it harder to prosecute Menedez.
Blatant abuses of power would be inhibited by impeachment just as well as they'd be inhibited by criminal prosecution. If a president really wants to do something blatantly illegal and not in the interest of the US (even their own voters), they won't be president for long. It just won't be happening. But what will happen, is less lawfare against the president, which we clearly need.
Education is extremely important.
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@jon-nyc said in SCOTUS rules POTUS has limited immunity:
@Horace said in SCOTUS rules POTUS has limited immunity:
@jon-nyc how do you feel about this ruling?
It went too far, though there were obvious tradeoffs. The 'core functions' provision is too broad, future prosecutors can't even question motive. I think a president could openly auction off pardons under this, for example.
I know they used this example in Advisory Opinions, but I doubt the courts would allow this. The act of taking money to provide a pardon, could easily be framed as outside the core function. Nothing about giving a pardon requires a president to sell it first. That would be optional, and personal, and private, in the third bucket. I think that that's how this court would view that.
The second bucket, where there is the presumption of immunity, is also pretty broad. It would make it far more difficult to prosecute an obvious bribery case, in the same way the speech and debate clause is making it harder to prosecute Menedez.
Blatant abuses of power would be inhibited by impeachment just as well as they'd be inhibited by criminal prosecution. If a president really wants to do something blatantly illegal and not in the interest of the US (even their own voters), they won't be president for long. It just won't be happening. But what will happen, is less lawfare against the president, which we clearly need.
@Horace said in SCOTUS rules POTUS has limited immunity:
Blatant abuses of power would be inhibited by impeachment just as well as they'd be inhibited by criminal prosecution. If a president really wants to do something blatantly illegal and not in the interest of the US (even their own voters), they won't be president for long. It just won't be happening. But what will happen, is less lawfare against the president, which we clearly need.
Criminal prosecutions are a lot more difficult if you can’t introduce evidence.
You have a lot more confidence in impeachment ever properly working again than I do.
Only non-witches get due process.
- Cotton Mather, Salem Massachusetts, 1692
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They specifically said motive can’t be taken into account with core functions. Pardoning is a core function.
@jon-nyc said in SCOTUS rules POTUS has limited immunity:
They specifically said motive can’t be taken into account with core functions. Pardoning is a core function.
I know they said that. Sectioning off the auction as the criminal act question is not criminalizing the pardon per se. An auction where the sale price is funneled to the president's personal accounts could be framed as a private act. One would be hard pressed to view it as an official function, in fact.
Education is extremely important.
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@Horace said in SCOTUS rules POTUS has limited immunity:
Blatant abuses of power would be inhibited by impeachment just as well as they'd be inhibited by criminal prosecution. If a president really wants to do something blatantly illegal and not in the interest of the US (even their own voters), they won't be president for long. It just won't be happening. But what will happen, is less lawfare against the president, which we clearly need.
Criminal prosecutions are a lot more difficult if you can’t introduce evidence.
You have a lot more confidence in impeachment ever properly working again than I do.
@jon-nyc said in SCOTUS rules POTUS has limited immunity:
You have a lot more confidence in impeachment ever properly working again than I do.
Well these thought experiments about the dangers of this immunity are cartoonish to the extent that I do trust that impeachment would happen. Of course we will never find out, because these cartoons will never happen. As Roberts wrote in his rebuttal to Sotomayor. Far fetched and implausible, words to that effect. Much more plausible is the threat of petty lawfare, which is imminent and obvious.
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@jon-nyc said in SCOTUS rules POTUS has limited immunity:
They specifically said motive can’t be taken into account with core functions. Pardoning is a core function.
I know they said that. Sectioning off the auction as the criminal act question is not criminalizing the pardon per se. An auction where the sale price is funneled to the president's personal accounts could be framed as a private act. One would be hard pressed to view it as an official function, in fact.
@Horace said in SCOTUS rules POTUS has limited immunity:
@jon-nyc said in SCOTUS rules POTUS has limited immunity:
They specifically said motive can’t be taken into account with core functions. Pardoning is a core function.
I know they said that. Sectioning off the auction as the criminal act question is not criminalizing the pardon per se. An auction where the sale price is funneled to the president's personal accounts could be framed as a private act. One would be hard pressed to view it as an official function, in fact.
It’s not illegal to give former presidents money. Motives for core presidential functions have absolute immunity- indeed they can’t even be entered as evidence supporting a private-act crime. (That part was only 5-4, Barrett joining the liberals).
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@Horace said in SCOTUS rules POTUS has limited immunity:
@jon-nyc said in SCOTUS rules POTUS has limited immunity:
They specifically said motive can’t be taken into account with core functions. Pardoning is a core function.
I know they said that. Sectioning off the auction as the criminal act question is not criminalizing the pardon per se. An auction where the sale price is funneled to the president's personal accounts could be framed as a private act. One would be hard pressed to view it as an official function, in fact.
It’s not illegal to give former presidents money. Motives for core presidential functions have absolute immunity- indeed they can’t even be entered as evidence supporting a private-act crime. (That part was only 5-4, Barrett joining the liberals).
@jon-nyc said in SCOTUS rules POTUS has limited immunity:
It’s not illegal to give former presidents money.
One can certainly imagine a candidate taking money for their war chest from a special interest that wants some political prisoner released, and I don't think that's ever been illegal. How hard would it be to trace political pardons back to some money somewhere?
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@jon-nyc said in SCOTUS rules POTUS has limited immunity:
What would be the point if it has absolute immunity?
Or if it wasn't illegal even without immunity? The cartoon grifting scenarios actually meld into things that have always been legal without immunity. That's why I gave the example of special interest groups, their donations, and their requests for certain pardons, pardons which may even become part of a candidate's platform. Trump has been talking about pardoning the Silk Road guy Ross Ulbricht. Think that might be traceable to some money from some contributing special interests? Maybe. Does anybody care? It seems fair play.
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@AndyD said in SCOTUS rules POTUS has limited immunity:
So if Joe officially commands a Seal Team to assassinate, say for example, Donald, because he honestly deems him a threat to the Country, does he now have immunity for that assassination?
The question of whether an act is or is not within the core responsibilities of a president would be left to the courts.
If Trump was leading a violent military style insurrection, I guess it would be within the responsibilities of a president to end that insurrection with violence. That would be one end of a continuum. The opposite end would be to assassinate a peaceful political rival. We will leave it to the courts to determine where on that continuum an act lies.
I do understand that the TDS contingent will allow their imaginations to run wild about this ruling, but infants gonna infant.
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So if Joe officially commands a Seal Team to assassinate, say for example, Donald, because he honestly deems him a threat to the Country, does he now have immunity for that assassination?
@AndyD said in SCOTUS rules POTUS has limited immunity:
So if Joe officially commands a Seal Team to assassinate, say for example, Donald, because he honestly deems him a threat to the Country, does he now have immunity for that assassination?
I was reading a analysis on this opinion and the hypothetic about calling for Seal Team 6 to do an assassination.
The analysis was that if the president commanded Seal Team 6 to carry out an assassination, he would be immune from prosecution. Because one of the "core powers" that is given to the President is authority to command the military, as the Commander in Chief. So, it would be difficult to say he was not immune from prosecution, because this is a core function of being president.
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As a thought experiment, I'd guess that an unconstitutional order (which the military has already taken an oath not to follow) would not be considered to be within the constitutionally-granted powers of the president. In any case, an expedited impeachment would be forthcoming, and therefore the act would have no purpose. If a president actually wanted to assassinate a rival, they would probably not use the military, or any official power. They would just try to do it secretly and get away with it, like the Clintons.
Something vaguely similar happened when Obama drone striked some US citizens in the middle east, knowingly killing them as collateral damage to get some other targets. Immunity or not, he was not prosecuted.
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I heard a conversation with Ian Millhiser, dedicated leftist, legal journalist, and author of two books about how evil SCOTUS is. Even he admits that the scenario where a president auctions off pardons is fanciful, in that the auction would be the corrupt act susceptible to prosecution. But not to worry, he's still a catastrophist in many other ways. Not for the first time, I'm disappointed in Sarah and David's ability to think clearly about their area of professional expertise.
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@AndyD said in SCOTUS rules POTUS has limited immunity:
So if Joe officially commands a Seal Team to assassinate, say for example, Donald, because he honestly deems him a threat to the Country, does he now have immunity for that assassination?
I was reading a analysis on this opinion and the hypothetic about calling for Seal Team 6 to do an assassination.
The analysis was that if the president commanded Seal Team 6 to carry out an assassination, he would be immune from prosecution. Because one of the "core powers" that is given to the President is authority to command the military, as the Commander in Chief. So, it would be difficult to say he was not immune from prosecution, because this is a core function of being president.
@taiwan_girl said in SCOTUS rules POTUS has limited immunity:
@AndyD said in SCOTUS rules POTUS has limited immunity:
So if Joe officially commands a Seal Team to assassinate, say for example, Donald, because he honestly deems him a threat to the Country, does he now have immunity for that assassination?
I was reading a analysis on this opinion and the hypothetic about calling for Seal Team 6 to do an assassination.
The analysis was that if the president commanded Seal Team 6 to carry out an assassination, he would be immune from prosecution. Because one of the "core powers" that is given to the President is authority to command the military, as the Commander in Chief. So, it would be difficult to say he was not immune from prosecution, because this is a core function of being president.
Ordering a military action on a civilian target is not a core powers granted by the constitution.
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The idea that you can rope context and motive into ‘core function’ is contrary to the idea of absolute immunity.
That’s how the second category is treated where the immunity is merely presumptive.
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The idea that you can rope context and motive into ‘core function’ is contrary to the idea of absolute immunity.
That’s how the second category is treated where the immunity is merely presumptive.
@jon-nyc said in SCOTUS rules POTUS has limited immunity:
The idea that you can rope context and motive into ‘core function’ is contrary to the idea of absolute immunity.
That’s how the second category is treated where the immunity is merely presumptive.
An act either is or is not a core function, by some definition. That definition is not that a President thinks it's a core function. I'm comfortable with how the court would decide, if it needed to determine whether an ordered assassination of a US citizen without due process was a core function granted to the Commander in Chief by the constitution.
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Well, it could always be tested. Have Biden order Trump’s death. I mean, he is the greatest threat to DEMOCRACY, EVER! So it’s a double win. He’s gone and you can test the limits of the immunity in courts. And since it would be Biden giving the decision, it would make it easier for the Dems to replace him with Whitmer.
The Brad
