DAILY TRIFECTA: Everything You Always Wanted to Know About Presidential Immunity*
(*But Were Afraid to Ask)
TITLE: Justices rule Trump has some immunity from prosecution
https://www.scotusblog.com/2024/07/justices-rule-trump-has-some-immunity-from-prosecution/
EXCERPT: As an initial matter, Roberts explained in his 43-page ruling, presidents have absolute immunity for their official acts when those acts relate to the core powers granted to them by the Constitution – for example, the power to issue pardons, veto legislation, recognize ambassadors, and make appointments.
That absolute immunity does not extend to the president’s other official acts, however. In those cases, Roberts reasoned, a president cannot be charged unless, at the very least, prosecutors can show that bringing such charges would not threaten the power and functioning of the executive branch. And there is no immunity for a president’s unofficial acts.
Determining which acts are official and which are unofficial “can be difficult,” Roberts conceded. He emphasized that the immunity that the court recognizes in its ruling on Monday takes a broad view of what constitutes a president’s “official responsibilities,” “covering actions so long as they are not manifestly or palpably beyond his authority.” In conducting the official/unofficial inquiry, Roberts added, courts cannot consider the president’s motives, nor can they designate an act as unofficial simply because it allegedly violates the law.
Turning to some of the specific allegations against Trump, the majority ruled that Trump cannot be prosecuted for his alleged efforts to “leverage the Justice Department’s power and authority to convince certain States to replace their legitimate electors with Trump’s fraudulent slates of electors.”
With regard to the allegation that Trump attempted to pressure his former vice president, Mike Pence, in his role as president of the senate, to reject the states’ electoral votes or send them back to state legislatures, the court deemed Trump “presumptively immune” from prosecution on the theory that the president and vice president are acting officially when they discuss their official responsibilities. On the other hand, Roberts observed, the vice president’s role as president of the senate is not an executive branch role. The court therefore left it for the district court to decide whether prosecuting Trump for this conduct would intrude on the power and operation of the executive branch.
The court did the same for the allegations in the indictment regarding Trump’s interactions with private individuals and state officials, attempting to convince them to change electoral votes in his favor, as well as Trump’s tweets leading up to the Jan. 6 attacks and his speech on the Ellipse that day. Making this determination, Roberts wrote, will require “a close analysis of the indictment’s extensive and interrelated allegations.”
Roberts pushed back against the dissent by Sotomayor and a separate one by Justice Ketanji Brown Jackson, describing them as striking “a chilling tone of doom that is wholly disproportionate to what the Court actually does today.” He portrayed the ruling as a relative narrow one that decides only “that immunity extends to official discussions between the President and his Attorney General, and then remand to the lower courts” for them to determine whether the other acts alleged in the indictment are entitled to immunity.
TITLE: The President Can Now Assassinate You, Officially
https://www.thenation.com/article/society/trump-immunity-supreme-court/
EXCERPT: Legally, there are two critical things to understand about the totality of the court’s ruling here:
· The immunity is absolute
· There is no legislative way to get rid of what the court has given
On the first point, the immunity granted to Trump in this case far exceeds the immunity granted to, say, police officers or other government officials, when they act in their official capacities. Those officials are granted “qualified” immunity from civil penalties. Because the immunity is “qualified” it can be taken away (“pierced” is the legal jargon for taking away an official’s qualified immunity). People can bring evidence against officials and argue that they shouldn’t be given immunity because of the gravity or depravity of their acts.
Not so with Trump. Presidents are now entitled to “absolute” immunity, which means that no matter what they do, the immunity cannot be lost. They are always and forever immune, no matter what evidence is brought to bear.
Moreover, unlike other officials, presidents are now entitled to absolute immunity from criminal charges. Even a cop can be charged with, say, murder, even if they argue that killing people is part of their jobs. But not presidents. Presidents can murder, rape, steal, and pretty much do whatever they want, so long as they argue that murdering, raping, and stealing is part of the official job of the president of the United States. There is no crime that pierces the veil of absolute immunity.
And there is essentially nothing we can do to change it. The courts created qualified immunity for public officials, but it can be undone by state or federal legislatures if they pass a law removing that protection. Not so with absolute presidential immunity. The court here says that absolute immunity is required by the separation of powers inherent in the Constitution, meaning that Congress cannot take it away. Congress, according to the Supreme Court, does not have the power to pass legislation saying “the president can be prosecuted for crimes.” Impeachment, and only impeachment, is the only way to punish presidents, and, somewhat obviously, impeachment does nothing to a president who is already no longer in office.
Under this new standard, a president can go on a four-to-eight year crime spree, steal all the money, and murder all the people they can get their hands on, all under guise of presumptive “official” behavior, and then retire from public life, never to be held accountable for their crimes while in office. That, according to the court, is what the Constitution requires.
There will be Republicans and legal academics and whatever the hell job Jonathan Turley has who will go into overdrive arguing that the decision isn’t as bad as all that. These bad-faith actors will be quoted or even published in The Washington Post and The New York Times. They will argue that presidents can still be prosecuted for “unofficial acts,” and so they will say that everything is fine.
But they will be wrong, because while the Supreme Court says “unofficial” acts are still prosecutable, the court has left nearly no sphere in which the president can be said to be acting “unofficially.” And more importantly, the court has left virtually no vector of evidence that can be deployed against a president to prove that their acts were “unofficial.” If trying to overthrow the government is “official,” then what isn’t? And if we can’t use the evidence of what the president says or does, because communications with their advisers, other government officials, and the public is “official,” then how can we ever show that an act was taken “unofficially?”
Take the now classic example of a president ordering Seal Team Six to assassinate a political rival. According to the logic of the Republicans on the Supreme Court, that would likely be an official act. According to their logic, there is also no way to prove it’s “unofficial,” because any conversation the president has with their military advisers (where, for instance, the president tells them why they want a particular person assassinated) is official and cannot be used against them.
There will doubtless be people still wondering if Trump can somehow be prosecuted: The answer is “no.” Special counsel Jack Smith will surely argue that presenting fake electors in connection with his cadre of campaign sycophants was not an “official act.” Lower court judges may well agree. But when that appeal gets back to the Supreme Court next year, the same justices who just ruled that Trump is entitled to absolute immunity will surely rule that submitting fake electors was also part of Trump’s “official” responsibilities.
TITLE: Supreme Court Immunity Ruling Creates Law-Free Zone Around the President | Opinion
https://www.newsweek.com/supreme-court-immunity-ruling-creates-law-free-zone-around-president-opinion-1919674
EXCERPT: The evolution of this decision could mean that presidential candidates will face greater scrutiny regarding their personal conduct. Knowing that personal actions are not protected by immunity could lead to more thorough vetting and transparency during campaigns. Candidates will need to demonstrate their qualifications, policies, personal integrity, and lawfulness.
The ruling could also empower Congress in its oversight functions. Lawmakers may feel more confident investigating personal misconduct by the president, knowing that such actions are not shielded by immunity. This could lead to stronger checks and balances between the branches of government, promoting greater accountability.
But where this all leaves us is in the aforementioned stew, the depth of which we find on pages 29 and 30 of Justice Sotomayor's dissent
Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority's message today.
Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.
I have never seen language like this in a Supreme Court and that's what I'm left with once we peel back the requisite dispassionate layers of a first reading through a case such as this. The long-term consequences from this decision do potentially, as Sotomayor explains, insulate a president from liability and create a sort of "law-free zone" around said president. That an actual Supreme Court justice used such powerful and arguably incendiary language while the majority of the court takes the position that the allegations against former president Trump really weren't that big of a deal is literally shocking—and is evidence enough that you should all read this decision.
Some legal experts will surely argue that the decision doesn't clearly define what counts as official versus personal acts, which could lead to confusion and disputes in future cases. Other legal experts will wring their collective hands that the ruling could be used politically to harass a sitting president. Anyone closely observing all of this in today's political climate will question the possibility that legal action against a president based on personal conduct could be exploited by political opponents to distract or undermine the president.
Ultimately, what today's decision means is that there will not be an actual trial against former President Trump on the immunity issue before the November election—this you can take to the bank. There could and should be hearings but getting to an actual trial before November just isn't going to happen.
SEE ALSO:
TRUMP v. UNITED STATES
https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
Trump immunity ruling: Liberal justices warn of 'nightmare scenarios'
https://www.bbc.com/news/articles/c035zqe7lgro
Democrats warn of ‘dangerous precedent’ set by Trump ruling; Republican House speaker calls decision ‘common sense’
https://www.theguardian.com/us-news/live/2024/jul/01/supreme-court-trump-immunity-claim-decision-updates
Justice Roberts' Drone Strike on George Washington's Legacy
https://www.emptywheel.net/2024/07/01/justice-roberts-drone-strike-on-george-washingtons-legacy/