SCOTUS rules POTUS has limited immunity
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They don’t really have the wiggle room you imagine, per Roberts. He listed examples of ‘core functions’ outright which neither the courts nor congress can question.
Even between the other two buckets - what makes it official vs unofficial- the decisions limits the kind of context they can take into account. For example, the mere fact that it violates a law applicable to everyone else can’t be the determining factor. Nor can congress or the courts take motive into account.
Only non-witches get due process.
- Cotton Mather, Salem Massachusetts, 1692
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Actually, the courts first get to decide whether the act fits Bucket 1 or Bucket 2. The Seal Team 6 thing, for instance. It is very difficult for the President to order the military into action without Congressional approval and in the cases of emergency, notification and justification within 48 hours. There are still multiple checks and balances.
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Should the President of the US have less prosecutorial immunity than an Ambassador from Zimbabwe?
The Brad
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They don’t really have the wiggle room you imagine, per Roberts. He listed examples of ‘core functions’ outright which neither the courts nor congress can question.
Even between the other two buckets - what makes it official vs unofficial- the decisions limits the kind of context they can take into account. For example, the mere fact that it violates a law applicable to everyone else can’t be the determining factor. Nor can congress or the courts take motive into account.
@jon-nyc said in SCOTUS rules POTUS has limited immunity:
They don’t really have the wiggle room you imagine, per Roberts. He listed examples of ‘core functions’ outright which neither the courts nor congress can question.
Great, then start there with the histrionic hypotheticals. Got any? None of the ones Sotomayor listed in her dissent would conclusively and preclusively fall under what Roberts listed. Which, from memory, is just the discussions with justice officials, and their removal at the president's discretion. Sotomayor actually acknowledges that the majority opinion gives few examples of what is or is not first bucket.
My sense is that Roberts is content to leave specific judgments regarding bucket assignments to specific cases that have actually happened. Law by histrionic hypotheticals is probably not a great idea in general, especially as there are trade-offs when enacting law to prevent histrionic hypotheticals, and those trade-offs involve actual bad things that are actually happening (frivolous lawfare), and becoming unable to stop them.
Education is extremely important.
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Should the President of the US have less prosecutorial immunity than an Ambassador from Zimbabwe?
@LuFins-Dad said in SCOTUS rules POTUS has limited immunity:
Should the President of the US have less prosecutorial immunity than an Ambassador from Zimbabwe?
Actually, the immunity of the Zimbabwean ambassador stems from the government of Zimbabwe. A more accurate question is, "Should the President of the US have less prosecutorial immunity than the Ambassador TO Zimbabwe.?"
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@jon-nyc said in SCOTUS rules POTUS has limited immunity:
They don’t really have the wiggle room you imagine, per Roberts. He listed examples of ‘core functions’ outright which neither the courts nor congress can question.
Great, then start there with the histrionic hypotheticals. Got any? None of the ones Sotomayor listed in her dissent would conclusively and preclusively fall under what Roberts listed. Which, from memory, is just the discussions with justice officials, and their removal at the president's discretion. Sotomayor actually acknowledges that the majority opinion gives few examples of what is or is not first bucket.
My sense is that Roberts is content to leave specific judgments regarding bucket assignments to specific cases that have actually happened. Law by histrionic hypotheticals is probably not a great idea in general, especially as there are trade-offs when enacting law to prevent histrionic hypotheticals, and those trade-offs involve actual bad things that are actually happening (frivolous lawfare), and becoming unable to stop them.
@Horace I’m sorry I can’t be a stand in for Sotomayor, whom I respect as much as you do. I’m on record saying she’s tied with Alito as the most ideological justice.
But if you’re asking me for an example, go back to the one I gave in response to your original request that I opine on this ruling. It comes directly from Roberts’ list.
Only non-witches get due process.
- Cotton Mather, Salem Massachusetts, 1692
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@jon-nyc said in SCOTUS rules POTUS has limited immunity:
They don’t really have the wiggle room you imagine, per Roberts. He listed examples of ‘core functions’ outright which neither the courts nor congress can question.
Great, then start there with the histrionic hypotheticals. Got any? None of the ones Sotomayor listed in her dissent would conclusively and preclusively fall under what Roberts listed. Which, from memory, is just the discussions with justice officials, and their removal at the president's discretion. Sotomayor actually acknowledges that the majority opinion gives few examples of what is or is not first bucket.
My sense is that Roberts is content to leave specific judgments regarding bucket assignments to specific cases that have actually happened. Law by histrionic hypotheticals is probably not a great idea in general, especially as there are trade-offs when enacting law to prevent histrionic hypotheticals, and those trade-offs involve actual bad things that are actually happening (frivolous lawfare), and becoming unable to stop them.
@Horace said in SCOTUS rules POTUS has limited immunity:
@jon-nyc said in SCOTUS rules POTUS has limited immunity:
My sense is that Roberts is content to leave specific judgments regarding bucket assignments to specific cases that have actually happened.
That’s a poor read of the man. He’s very much an institutionalist and knows he’s setting the law of the land. He’s opinion (you read it, right?) is peppered with talk about how this needs to be forward looking and not specific to the case and the man in front of him.
Only non-witches get due process.
- Cotton Mather, Salem Massachusetts, 1692
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Should the President of the US have less prosecutorial immunity than an Ambassador from Zimbabwe?
@LuFins-Dad said in SCOTUS rules POTUS has limited immunity:
Should the President of the US have less prosecutorial immunity than an Ambassador from Zimbabwe?
Yes, because:
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The POTUS has a lot more power than the Ambassador from Zimbabwe, the POTUS should have a lot less prosecutorial immunity as a check against the POTUS' immense power.
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We also want our ambassadors and diplomatic staff in other nations to have a lot of prosecutorial immunity, so as a matter of reciprocity we also give the ambassadors and diplomatic staff of the other nations a lot of prosecutorial immunity here.
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@Horace I’m sorry I can’t be a stand in for Sotomayor, whom I respect as much as you do. I’m on record saying she’s tied with Alito as the most ideological justice.
But if you’re asking me for an example, go back to the one I gave in response to your original request that I opine on this ruling. It comes directly from Roberts’ list.
@jon-nyc said in SCOTUS rules POTUS has limited immunity:
@Horace I’m sorry I can’t be a stand in for Sotomayor, whom I respect as much as you do. I’m on record saying she’s tied with Alito as the most ideological justice.
But if you’re asking me for an example, go back to the one I gave in response to your original request that I opine on this ruling. It comes directly from Roberts’ list.
I've already rebutted the pardons-for-sale scenario. The auction and the pardon are separable acts, with the sale being a private one, and not immune from prosecution. That's what I immediately thought upon hearing the example on Advisory Opinions, and when I read the oral arguments, it is what Roberts thinks. That example was discussed in orals.
Did you have a response to that rebuttal, now that it's been laid out before you multiple times? Or will you just continue on as if it's a clincher of an argument for your side?
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@Horace said in SCOTUS rules POTUS has limited immunity:
@jon-nyc said in SCOTUS rules POTUS has limited immunity:
My sense is that Roberts is content to leave specific judgments regarding bucket assignments to specific cases that have actually happened.
That’s a poor read of the man. He’s very much an institutionalist and knows he’s setting the law of the land. He’s opinion (you read it, right?) is peppered with talk about how this needs to be forward looking and not specific to the case and the man in front of him.
@jon-nyc said in SCOTUS rules POTUS has limited immunity:
@Horace said in SCOTUS rules POTUS has limited immunity:
@jon-nyc said in SCOTUS rules POTUS has limited immunity:
My sense is that Roberts is content to leave specific judgments regarding bucket assignments to specific cases that have actually happened.
That’s a poor read of the man. He’s very much an institutionalist and knows he’s setting the law of the land. He’s opinion (you read it, right?) is peppered with talk about how this needs to be forward looking and not specific to the case and the man in front of him.
Read of the man? I was reading the ruling, not the man. I'll leave it to court afficionados like you to develop character sketches of each of the judges.
The ruling is forward looking in the sense that it allows freedom to judge which bucket an act falls in, depending on the detailed context of the act.
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Can you show me where Robert’s said that? I don’t see how that’s consistent with absolute immunity. The pardon couldn’t even be used as evidence per the ruling.
@jon-nyc said in SCOTUS rules POTUS has limited immunity:
Can you show me where Robert’s said that? I don’t see how that’s consistent with absolute immunity. The pardon couldn’t even be used as evidence per the ruling.
JUSTICE BARRETT disagrees, arguing that in a bribery prosecution, for
instance, excluding “any mention” of the official act associated with the
bribe “would hamstring the prosecution.” Post, at 6 (opinion concurring
in part); cf. post, at 25–27 (opinion of SOTOMAYOR, J.). But of course the
prosecutor may point to the public record to show the fact that the President
performed the official act. And the prosecutor may admit evidence
of what the President allegedly demanded, received, accepted, or agreed
to receive or accept in return for being influenced in the performance of
the act. See 18 U. S. C. §201(b)(2).Education is extremely important.
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Bunch of lawyers talking about this for about 30 minutes.
Link to video@George-K said in SCOTUS rules POTUS has limited immunity:
Bunch of lawyers talking about this for about 30 minutes.
Link to videoThere’s an interesting point about 30 minutes in that an Official (Capital O) act by the President is legal by definition, and by contrast, any blatantly illegal act must be found unofficial by any court… Kind of a twisted logic, but I kind of get it.
The Brad
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Interesting that they defended, on a strictly legal basis, the extrajudicial killing of an American citizen by Obama.
Was it wrong? Probably.
Was it illegal? Probably not.
Also, of note, they commented that much of the noise about Biden's interaction with regards to financial stuff is probably covered. However, if the House decides that this constitutes a "high crime," there is a mechanism to prosecute. It's called impeachment and conviction.
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Some stuff from Roberts' opinion:
The court has wiggle room to place acts in buckets one, two, or three, even if the president thinks something is a bucket-one act:
If the President claims authority to act but in fact exercises
mere “individual will” and “authority without law,”
the courts may say so. Youngstown, 343 U. S., at 655
(Jackson, J., concurring). In Youngstown, for instance, we held
that President Truman exceeded his constitutional authority
when he seized most of the Nation’s steel mills. See id.,
at 582–589 (majority opinion). But once it is determined
that the President acted within the scope of his exclusive
authority, his discretion in exercising such authority cannot
be subject to further judicial examination.Roberts did not want to get super specific about which acts would qualify for absolute immunity, and would prefer to await future specific suits to fill in any gaps in this ruling:
[O]ne case” in more than “two centuries does not
afford enough experience” to definitively and
comprehensively determine the President’s scope of immunity from
criminal prosecution. Mazars, 591 U. S., at 871.Roberts thinks the dissent is histrionic:
As for the dissents, they strike a tone of chilling doom
that is wholly disproportionate to what the Court actually
does today—conclude that immunity extends to official
discussions between the President and his Attorney General,
and then remand to the lower courts to determine “in the
first instance” whether and to what extent Trump’s remaining
alleged conduct is entitled to immunity. Supra, at 24, 28, 30.Sotomayor is a DEI hire. One of her colleagues at the time of her nomination wrote a letter to the president, warning him against promoting that particular dimwit. He was afraid she wouldn't earn the respect of the smarter judges. And now she's the intellectual champion of the TDS rabble. Fitting.
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@George-K said in SCOTUS rules POTUS has limited immunity:
Bunch of lawyers talking about this for about 30 minutes.
Link to videoThere’s an interesting point about 30 minutes in that an Official (Capital O) act by the President is legal by definition, and by contrast, any blatantly illegal act must be found unofficial by any court… Kind of a twisted logic, but I kind of get it.
@LuFins-Dad said in SCOTUS rules POTUS has limited immunity:
@George-K said in SCOTUS rules POTUS has limited immunity:
Bunch of lawyers talking about this for about 30 minutes.
Link to videoThere’s an interesting point about 30 minutes in that an Official (Capital O) act by the President is legal by definition, and by contrast, any blatantly illegal act must be found unofficial by any court… Kind of a twisted logic, but I kind of get it.
Immunity would have no point if it didn’t apply to cases where a law was broken. The ruling actually mentions that an illegal act is not in itself justification for considering the act unofficial.
The circuit courts argued that if a prosecutor brings an indictment, we should all trust it is in good faith, and that it means the act was not an official one. That was funny. Imagine trusting TDS sufferers with the power to prosecute Trump, to always do so in “good faith”. These people have no clue what “good faith” even means in the context of Trump, unless it means bloodthirsty rage at the disgusting orange menace. Donald Trump has personally broken the brains of millions and millions of erstwhile smart people, whose intelligence is now only a distant memory.
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@jon-nyc said in SCOTUS rules POTUS has limited immunity:
Can you show me where Robert’s said that? I don’t see how that’s consistent with absolute immunity. The pardon couldn’t even be used as evidence per the ruling.
JUSTICE BARRETT disagrees, arguing that in a bribery prosecution, for
instance, excluding “any mention” of the official act associated with the
bribe “would hamstring the prosecution.” Post, at 6 (opinion concurring
in part); cf. post, at 25–27 (opinion of SOTOMAYOR, J.). But of course the
prosecutor may point to the public record to show the fact that the President
performed the official act. And the prosecutor may admit evidence
of what the President allegedly demanded, received, accepted, or agreed
to receive or accept in return for being influenced in the performance of
the act. See 18 U. S. C. §201(b)(2).Your post from oral arguments contains no quotes from Chief Justice Roberts. I started to scan the orals transcript and so far what I’ve seen from Roberts he shared my concern about the inadmissibility of evidence from official acts. Obviously he changed his mind along the way and I’m just starting to review this so don’t take that to the bank.
But still, if you really did see Roberts address the sale-of-core-function problem I’d like to see it. But I’ll find any reference there is.
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Your post from oral arguments contains no quotes from Chief Justice Roberts. I started to scan the orals transcript and so far what I’ve seen from Roberts he shared my concern about the inadmissibility of evidence from official acts. Obviously he changed his mind along the way and I’m just starting to review this so don’t take that to the bank.
But still, if you really did see Roberts address the sale-of-core-function problem I’d like to see it. But I’ll find any reference there is.
@jon-nyc said in SCOTUS rules POTUS has limited immunity:
Your post from oral arguments contains no quotes from Chief Justice Roberts. I started to scan the orals transcript and so far what I’ve seen from Roberts he shared my concern about the inadmissibility of evidence from official acts. Obviously he changed his mind along the way and I’m just starting to review this so don’t take that to the bank.
But still, if you really did see Roberts address the sale-of-core-function problem I’d like to see it. But I’ll find any reference there is.
The quote came from the ruling rather than orals. It was from a part of the ruling written by Roberts. In the quote, he imagines a scenario in which a president could be prosecuted for the bribe. Not the pardon. The bribe. That means he does not imagine full immunity from such a prosecution.
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Criminal conspiracy occurs in a murder for hire, for instance, as soon as money changes hands in the agreement. That’s the crime. If a murder then occurs, that would be a separate crime. In this pardon for sale example, there would only be the one crime about selling the official act, with the sale being a private and prosecutable act.
