SCOTUS rules POTUS has limited immunity

[Horace]

@jon-nyc said in SCOTUS rules POTUS has limited immunity:

Some people’s reasoning in this thread, including by some of the pundits quoted, seems to be something like the following:

“The majority is reasonable, ergo the decision would allow reasonable things and disallow unreasonable things.”

I think it would take a tortured reading of the constitution to find the authority for a president to carry out assassinations with the military. I don't need to rely on any extra-constitutional "reasonableness" to be confident about their ruling. I need to rely on the constitution, and a lack of "conclusive and preclusive" authority for the president to carry out these fanciful acts the TDS rabble are allegedly concerned about, as they score their political points about how existentially dangerous conservatives are.

Can I ask Horace and LD to answer the following question?

In your reading, what is the difference (in the way the courts should act according to this ruling) between the cases where the president has absolute immunity and the cases where he has only presumptive immunity?

Why is this a question? SCOTUS gave guidance about what the lower courts should do with the remanded parts of Smith's indictment.

[jon-nyc]

Avoiding the question without LD’s excuse.

[jon-nyc]

Your post basically says “to interpret the ruling otherwise is unreasonable”. Which is still an argument from reasonableness.

Can you argue your interpretation from the ruling? Or not?

[Horace]

@jon-nyc said in SCOTUS rules POTUS has limited immunity:

Avoiding the question without LD’s excuse.

The court literally gave guidance, and my reading can be assumed to be the literal one from the ruling. It's not an avoidance of the question, it's an avoidance of a cut and paste that you could just look up, being the court-watcher and deep thinker about SCOTUS that you are.

[Horace]

@jon-nyc said in SCOTUS rules POTUS has limited immunity:

Your post basically says “to interpret the ruling otherwise is unreasonable”. Which is still an argument from reasonableness.

Can you argue your interpretation from the ruling? Or not?

I don't live in any fantasy where laws don't have verbal wiggle room, so I fail to see where you think you have anybody in a logical vice grip here. Every time we see the court divided about anything, we see the fact that humans interpret words in law differently, including words in the constitution. I predict that all nine justices would find no textual support in the constitution for a conclusive / preclusive authority for the commander in chief to order an assassination with the military without any due process. In oral arguments, Roberts responded to the hypothetical about the auctioning of pardons. He said the auction itself would be a private act, and therefore prosecutable. (I heard this after I had the same notion, as I waded through all the stupidity of the TDS reactions to this ruling.)

[Horace]

One interesting thing came up in oral arguments. What's to stop a president from pardoning himself from everything, even if he doesn't have immunity? The counter argument is that it hasn't been tried, but without a doubt the president could at least try to pardon himself, and then it would come before the court whether a president has that power of self-pardon. Can anybody argue from the constitution that the power of the pardon does NOT apply to self-pardons? So, we see that we've been living with these "terrifying" issues forever, including during Trump's first four years. The backstop then, as now, would be a supreme court that would find that no, the president can't just do any given high crime and misdemeanor while nominally carrying out his duties, then pardon himself and expect to be free from any criminal prosecution.

The more important backstop is actually impeachment, not criminal proceedings. And impeachment is unaltered by this ruling. We actually do trust a great deal in the reasonableness of other elected human beings in that process, and again I'm comfortable with that, as I am not inflicted by histrionic derangements around any given political party or candidate.

[LuFins Dad]

In your reading, what is the difference (in the way the courts should act according to this ruling) between the cases where the president has absolute immunity and the cases where he has only presumptive immunity?

As @Horace has stated, it’s pretty obvious in the ruling. In cases where the President has presumptive immunity, the judiciary has the power to review and decide on a case by case basis.

I’ve given examples of this earlier in the thread.

[jon-nyc]

@Horace “absolute immunity” provides no wiggle room. Yes they remanded to the district for some specifics from this case but they also set law of the land which would anpply to future scenarios, and that is the subject of the criticisms so far unanswered here.

[Horace]

@jon-nyc said in SCOTUS rules POTUS has limited immunity:

@Horace “absolute immunity” provides no wiggle room. Yes they remanded to the district for some specifics from this case but they also set law of the land which would anpply to future scenarios, and that is the subject of the criticisms so far unanswered here.

I’ve said many times that official duty vs unofficial as described by the constitution, provides some wiggle room. You don’t accept that answer because you’re choosing an absolutist interpretation to suit the histrionic hypotheticals. But given absolutist interpretations of words in the constitution, we have always been living with the specter of a President doing whatever and pardoning himself. We rely on various people being reasonable to some low bar, to provide a backstop to that.

[George K]

Bunch of lawyers talking about this for about 30 minutes.

Link to video

[jon-nyc]

@Horace

You misunderstood the ruling. SCOTUS did not create two buckets (official acts, unofficial acts), they created three (core constitutional functions, other official acts, unofficial acts).

There is no wiggle room in the first bucket - there, immunity is absolute. That’s where the dragons lie.

[Horace]

@jon-nyc said in SCOTUS rules POTUS has limited immunity:

@Horace

You misunderstood the ruling. SCOTUS did not create two buckets (official acts, unofficial acts), they created three (core constitutional functions, other official acts, unofficial acts).

There is no wiggle room in the first bucket - there, immunity is absolute. That’s where the dragons lie.

I am aware that there are three buckets. I have mentioned those three buckets previously. I know I can't short-hand anything in a conversation with you, so my mistake for attempting to do so. The wiggle room lies in which of the three buckets an act belongs in. You continue to believe there is a fundamentalist, unambiguous interpretation of which acts fall into the first bucket where absolute immunity lies. You believe that if Seal Team Six is ordered to assassinate a political rival, the president would be immune, unless this ruling is revisited. But this is not as cut and dried as you claim, due to the wiggle room of whether unconstitutional assassination orders (no due process) given to the military are in fact a core duty conclusively and preclusively defined by the constitution.

These arguments might even track back to original intent, relying on the reasonableness of dead people, who can't get any crazier than they ever were. I feel safe that the first bucket won't contain any of these histrionic hypotheticals.

[jon-nyc]

You are conceding the first two buckets while seemingly waving away the difference between them.

If you disagree with that assessment then please answer my original question:

What is the difference (in the way the courts should act according to this ruling) between the cases where the president has absolute immunity and the cases where he has only presumptive immunity?

[Horace]

@jon-nyc said in SCOTUS rules POTUS has limited immunity:

You are conceding the first two buckets while seemingly waving away the difference between them.

If you disagree with that assessment then please answer my original question:

What is the difference (in the way the courts should act according to this ruling) between the cases where the president has absolute immunity and the cases where he has only presumptive immunity?

Here is an example of its guidance for the lower courts to establish something that only needs to be established for bucket 2, the one with a "presumption of immunity": (Have you read the whole ruling, or are you just going by what you heard in podcasts?)

It is ultimately the Government’s burden to rebut the
presumption of immunity. We therefore remand to the
District Court to assess in the first instance, with appropriate
input from the parties, whether a prosecution involving
Trump’s alleged attempts to influence the Vice President’s
oversight of the certification proceeding in his capacity as
President of the Senate would pose any dangers of intrusion
on the authority and functions of the Executive Branch.

[jon-nyc]

You sidestepped the question completely.

[LuFins Dad]

I like the video George posted with the guys referencing Diplomatic Immunity.

[Horace]

@jon-nyc said in SCOTUS rules POTUS has limited immunity:

You sidestepped the question completely.

I did my best to answer it. I told you what the lower courts are supposed to do with a bucket 2 case. They need to rebut presumptive immunity, according to this ruling.

Just curious, what is your fantasy answer that you have laid a logical trap for? I am wondering what card you think you have here.

[jon-nyc]

The first bucket outlines core functions and gives the president absolute immunity. You and others keep pretending that the courts will have wiggle room there, like they do in the second bucket.

Since you (plural) believe that there is judicial wiggle room in both buckets (which I think is straight up wrong), then I’m wondering what you think the difference, if any, might be between them.

[Horace]

@jon-nyc said in SCOTUS rules POTUS has limited immunity:

The first bucket outlines core functions and gives the president absolute immunity. You and others keep pretending that the courts will have wiggle room there, like they do in the second bucket.

Since you (plural) believe that there is judicial wiggle room in both buckets (which I think is straight up wrong), then I’m wondering what you think the difference, if any, might be between them.

I guess you've misunderstood my point from the jump. The wiggle room is in which bucket an act falls in. Not in whether the first bucket has absolute immunity. All the context and details of a given case will allow the judges to exercise their judgment about bucket assignment. That’s how the seal team six scenario would be prosecutable.

[jon-nyc]

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.