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Immunity for things they do as part of their official duties. I suppose it’s reasonable but the question will now turn to what is actually an official duty. Th

Immunity for things they do as part of their official duties. I suppose it’s reasonable but the question will now turn to what is actually an official duty. The opposite holding, where they are liable for everything, would be untenable. Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans? It seems like that world would hamstring the president far too much. I don’t know if they struck the right balance here (and we not know until the next time it comes up), but at least we have slightly more clarity.

IIAOPSW 2y ago
>I suppose it’s reasonable but the question will now turn to what is actually an official duty. I'm fairly sure there's a full and complete list of these is explicitly in the Constitution.
- throw0101b 2y ago
  > I'm fairly sure there's a full and complete list of these is explicitly in the Constitution. Roberts disagrees in the decision (p. 17): > Distinguishing the President’s official actions from his unofficial ones can be difficult. When the President acts pursuant to “constitutional and statutory authority,” he takes official action to perform the functions of his office. Fitzgerald, 457 U. S., at 757. Determining whether an ac- tion is covered by immunity thus begins with assessing the President’s authority to take that action. > But the breadth of the President’s “discretionary respon- sibilities” under the Constitution and laws of the United States “in a broad variety of areas, many of them highly sensitive,” frequently makes it “difficult to determine which of [his] innumerable ‘functions’ encompassed a particular action.” Id., at 756. And some Presidential conduct—for example, speaking to and on behalf of the American people, see Trump v. Hawaii, 585 U. S. 667, 701 (2018)—certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision. For those reasons, the immunity we have recognized extends to the “outer perimeter” of the President’s official responsibilities, covering actions so long as they are “not manifestly or pal- pably beyond [his] authority.” Blassingame v. Trump, 87F. 4th 1, 13 (CADC 2023) (internal quotation marks omit- ted); see Fitzgerald, 457 U. S., at 755–756 (noting that we have “refused to draw functional lines finer than history and reason would support”). > In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of of- ficial conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II in- terests that immunity seeks to protect. Indeed, “[i]t would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government” if “[i]n exercising the functions of his office,” the President was “under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry.” […] > Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. For in- stance, when Fitzgerald contended that his dismissal vio- lated various congressional statutes and thus rendered his discharge “outside the outer perimeter of [Nixon’s] duties,” we rejected that contention. 457 U. S., at 756. Otherwise, Presidents would be subject to trial on “every allegation that an action was unlawful,” depriving immunity of its intended effect. Ibid. * https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
  - lenerdenator 2y ago
    That last point is bothersome, because if you're looking at "color of law" as a defense, when does that end? A good example is that killer cop in Minneapolis, I don't remember his name or care to fill my brain with it. He was acting officially when George Floyd died under his care; he was responding to a 911 call that Floyd was the subject of. The cop was convicted of murder, but let's say that POTUS does something abhorrent (and this is likely to occur now that this is case law) under color of law and someone wanted to charge him or her because of it. Does that get somehow pulled back as it did for the cop?
    - klyrs 2y ago
      Trump's legal team argued, I think in this case, that a president should be immune from prosecution up to and including calling a hit on a political opponent. Which, given all the consternation about Biden persecuting his political opponent, sounded like a bit of an invitation...
      - lenerdenator 2y ago
        Well, SCOTUS didn't give POTUS license to do that, but they did give license to do something awful and then have their defense team argue that the act was a part of official duties, with a chance that a judge, possibly appointed by the President, agrees. The thing about Biden, since you brought him up, is he's unlikely to test this in any meaningful way with regards to Trump. Could he theoretically now have the USSS detail in charge of babysitting Trump indefinitely detain him, without consequence? Maybe. But he still has at least some belief in the process and won't do that. This gives me flashbacks to lessons about von Hindenburg. An old guard who had belief in the process going by it even when dealing with someone who has obvious and sneering contempt for that process.
        ffgjgf1 2y ago
        > An old guard who had belief in the process going by it even when dealing with To be fair the situation in Germany was multipolar. Hindenburg wasn’t a huge fan of democracy or especially of one run by Catholics, liberals and socialists and just saw the nazis as a lesser evil..
- readthenotes1 2y ago
  [flagged]
kibwen 2y ago
> the question will now turn to what is actually an official duty Fortunately, the past rulings of this court have made the jurisprudence abundantly clear: If Biden orders Trump to be assassinated, that's unofficial, and he can be prosecuted. If Trump orders Biden to be assassinated, that's official, and he has complete immunity. Easy, right?
- dang 2y ago
  Please don't take HN threads into political flamewar hell, or any other flamewar hell. That's what we're trying to avoid here. https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html
  - TylerE 2y ago
    This feels likely highly selected be encorcement. Either let people vent or nuke the whole thread
    - dang 2y ago
      That's not how HN works. People don't get to break the site guidelines regardless of the topic, and people are welcome to make their substantive points thoughtfully regardless of their views. Killing the entire thread would be to punish the latter for the former. https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html
    - Tadpole9181 2y ago
      It's been this way for a while. Someone once made a post saying "Christianity is a perfectly peaceful religion and has met benefitted historical society" and then someone replying with "They genocided countless people and nations" would then get a "this is against site rules'.
lenerdenator 2y ago
The problem is, the people who make the call of what is or is not an official duty are often in thrall to the President in one way or another. This is a disaster for rule of law.
- MagicMoonlight 2y ago
  Well obviously… otherwise a politician paid by putin could remove the ability for the president to fire the nuclear weapons. You can’t have randos deciding what the leader can do. The question is, will everyone surrounding a president allow the president to commit mass cullings or nuke California. And the answer is clearly not, outside of delusional fantasy scenarios. Trump wasn’t even allowed to build a wall, and you think his VP would have let him commit genocide?
  - lenerdenator 2y ago
    > You can’t have randos deciding what the leader can do. These aren't randos; they're federal prosecutors that are hired by the sitting President of the United States. Let's say that even if there is a decision that Trump's acts aren't related to his official duties and he somehow gets punished for those charges (I wouldn't hold my breath). How does this not give Biden and future Presidents a way to seriously abuse their power with a hope that they're not held accountable for it? Before it was just a hypothetical. Now we've crossed the Rubicon and established that there are scenarios in which a President can have unlimited power.
    - throwaway173738 2y ago
      It’s also likely that the project 2025 people will have almost every federal employee declared a political appointee which would give any sitting president the power to fire any prosecutor prosecuting him. This was one of the OMB changes Trump made at the end of his last presidency.
      - lenerdenator 2y ago
        There are some already drawing up list of those employees for targeting during a potential second Trump term, using a grant from the Heritage Foundation, IIRC.
giantg2 2y ago
This is really just the formal ruling that qualified immunity is applied to the presidency. Just like with other qualified immunity, it'll be messy to figure out what should be covered an what is not.
squidbeak 2y ago
> The opposite holding, where they are liable for everything, would be untenable Only where their actions were already criminal under the law. This is the problem. No-one should be above the law.
haroldp 2y ago
Obama ordered drone strikes that intentionally killed at least two Americans. One he copped to, one he denied was intentional. https://en.wikipedia.org/wiki/Anwar_al-Awlaki https://en.wikipedia.org/wiki/Anwar_al-Awlaki https://en.wikipedia.org/wiki/Killing_of_Abdulrahman_al-Awlaki https://en.wikipedia.org/wiki/Killing_of_Abdulrahman_al-Awla... To my mind, that is exactly the sort of thing I'd like to be hamstrung by a fear of prosecution. (Trump ordered drone a drone strike that also killed Abdulrahman's eight-year-old American sister.)
- klyrs 2y ago
  Yeah, this pearl-clutching about presidents being tried for criminal acts is loathsome. I think quite a lot of people believe that quite a few past presidents are guilty of war crimes, and that there should be real consequences for those crimes. My knowledge of history in this regard more or less begins with the Vietnam War: since 1955, I am not aware of a single president who hasn't ordered acts that are crimes against humanity. And throughout that time period, our crimes against humanity have brought ruin to much of the world. Perhaps presidents should fear the law.
lupusreal 2y ago
> Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans? Unintentionally? American citizens were the intended targets of some of his drone strikes. They weren't in warzones either, it was effectively murder.
runjake 2y ago
> Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans? If you're referring to Anwar Al-Awlaki and his son, both US citizens, it was intentional. If you're not referring to this, Obama's already done this without getting charged. Being POTUS is an unenviable job. https://en.wikipedia.org/wiki/Anwar_al-Awlaki https://en.wikipedia.org/wiki/Anwar_al-Awlaki Edit: Since people are assuming my views on this topic, I'll say that they're seriously conflicted and I'm not trying to imply any particular viewpoint, only the facts.
- chasd00 2y ago
  on a tangent, was the drone operator charged? iirc "just following orders" only goes so far.
  - deleted 2y ago
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  - haroldp 2y ago
    No. It seems unlikely that the drone pilot would have all of that information beyond where the target was, that would be necessary to make an informed decision about participating in an extrajudicial execution of an American citizen.
    - runjake 2y ago
      From my experience in manned operations, you're basically only given a target, not the details. Based on that, I would assume the targeter did not know whom they were targeting. Or they did, knew the orders came from the National Command Authority[1] (Eg. POTUS) and did it anyway. I would have. 1. https://en.wikipedia.org/wiki/National_Command_Authority_(United_States) https://en.wikipedia.org/wiki/National_Command_Authority_(Un...
- itsdavesanders 2y ago
  I keep seeing this argument pop up about “should Obama be prosecuted” like it’s some sort of “gotcha liberal!” And as a liberal I think “hell YES he should be prosecuted!” The government shouldn’t just go around killing citizens without due process. I don’t care what letter is by their name.
enragedcacti 2y ago
Its more like "immunity for any action within the realm of presidential power, regardless of motive or criminality". Accepting a bribe in exchange for a pardon would be A-ok on the basis that pardoning is a “conclusive and preclusive” authority of the president. > The opposite holding, where they are liable for everything, would be untenable. Literally no one was arguing for this and there are much more reasonable interpretations of presidential immunity you could compare this one to.
- ameister14 2y ago
  No, the act undertaken in exchange for the bribe would be under the immunity umbrella but the act of taking the bribe would not.
  - enragedcacti 2y ago
    > The President’s authority to pardon, in other words, is “conclusive and preclusive,” “disabling the Congress from acting upon the subject.” > Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority. It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority. Further evidence is that Sotomayors makes the claim in no uncertain terms and that the majority makes zero effort to dispute it.
    - ameister14 2y ago
      Yes, I agree - the President is immune for the official act they undertake, the existence of which allows for a the charge of bribery. They are not immune for the non-official act of soliciting or accepting bribes in exchange for an official act, which is the charge of bribery. So if the President took a bribe in order to make someone ambassador to Sweden, they could not be prosecuted for making that person the ambassador, but they could be prosecuted for taking the bribe.
ein0p 2y ago
What do you mean, “unintentionally”? Obama deliberately and knowingly ordered an extrajudicial killing of a US citizen.
WalterBright 2y ago
Obama ordered Bin Laden killed. Should he be prosecuted for that? Remember that the President can still be impeached for "high crimes and misdemeanors".
- squidbeak 2y ago
  I'm unclear why ordering the death of one of his nation's worst foes, whose network was still at war with the US, could ever be illegal?
  - InTheArena 2y ago
    He would have been sued with no immunity. Either by Pakistan, or by members of the family, or whomever. The fact that they had no legal basis for it is inevitable, it still would have resulted in years and years of legal pain
  - WalterBright 2y ago
    He was never convicted of a crime. I'm trying to point out that it is not at all easy to draw a line between what a President could be prosecuted for and what he should be prosecuted for. I'm pretty sure one could find abuse of power committed by about every President. Even Jefferson - he wasn't empowered to make the Louisiana Purchase, but did it anyway.
    - mlyle 2y ago
      I think this particular ruling gets it really wrong, though. For a president to be able to conduct "official acts" in self interest, with no obvious limits, is quite concerning. I think the president should enjoy a weak presumption that official acts are legitimate. But this goes way too far-- prohibiting consideration of motives, prohibiting using them as context or evidence in any other proceeding, and appearing to classify what would be horrible abuses as official acts.
      - WalterBright 2y ago
        There's also the Supreme Court ruling that it was illegal for Biden to do mass loan forgiveness, yet Biden did it anyway. Should Biden be prosecuted for that?
doctorpangloss 2y ago
> Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans? It seems like that world would hamstring the president far too much. I feel like you'd have a different opinion if it were you getting unintentionally killed!
- Jiro 2y ago
  Saying "Obama killed Americans" is really demonstrating a problem with birthright citizenship. Without that, these Americans wouldn't be Americans.
brightball 2y ago
President's can still be impeached as a result of their official acts. It seems that is intended to be the outlet for prosecuting the Executive Branch. Am I wrong there?
- InTheArena 2y ago
  Nope - and this is a key point. The framers intended there to be a mechanism to hold a president accountable - impeachment. But it is badly formed, and has never been used, even though arguably it should have been in every case it was used in.
  - rtkwe 2y ago
    Also impeachment only removes them from office which is far from a complete punishment. They're still completely free people after impeachment, the only right that's taken away is the ability to be President which is a pretty paltry punishment especially for second term Presidents.
  - TeaBrain 2y ago
    There have been impeachment proceedings started against four presidents, all of which would qualify as it being used, even if the presidents weren't successfully impeached. Impeachment proceedings have been completed against 3 presidents and in all cases the senate vote failed to meet the 2/3 supermajority. An impeachment inquiry was also started against Nixon, but he resigned before the house could vote. One could argue that the impeachment inquiry in that case was successful. The procedure for impeaching federal judges is similar, in that the vote needs first to pass the house, then a supermajority of the senate. In 2009, federal judge Thomas Porteous Jr, was successfully impeached by congress. Congress then also voted to prohibit him from holding future federal office. https://guides.loc.gov/federal-impeachment/thomas-porteous https://guides.loc.gov/federal-impeachment/thomas-porteous
    - deleted 2y ago
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- 2y ago
AdamJacobMuller 2y ago
> Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans? How about the one which intentionally killed an American child (16)? Part of me wouldn't mind seeing that, but, I would have to agree that was an official act, regardless of how despicable it was.
zzzeek 2y ago
> It seems like that world would hamstring the president far too much. except Obama ordered plenty of drone strikes including on American citizens, so actual data suggests he was not "hamstrung" at all.
standardUser 2y ago
Those with the most power should receive the most scrutiny and face the greatest consequences for its misuse.
- 3D30497420 2y ago
  Agreed. It’s not as if becoming president is forced on anyone. Judging from history, it is a pretty dangerous role as well and that doesn’t seem to have dissuaded many people. If there are willing to risk their safety, I’d think the risk of prosecution wouldn’t rank too highly either.
insane_dreamer 2y ago
> Immunity for things they do as part of their official duties. How would attempting to overturn the results of a free and fair election be considered an "official duty"? If it is, then the Presidency became a dictatorship, leaving impeachment by Congress -- an extremely difficult bar -- the only recourse.
- deleted 2y ago
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- Muromec 2y ago
  It's only called an attempt if it fails. If it goes through till some point, it's His Royal Highness General Alladin bring order and justice and acting to grant their people all the freedoms they asked for. Source: I'm from places that had the Supreme Court (of places, not US) overturn an election result due to fraud
kelnos 2y ago
This was my thought too. The ruling doesn't seem crazy; being legally liable for every single official act would actually make it untenable for the president to do many things a president needs to do without the real fear of prosecution if anything goes wrong. (And things go wrong! All the time!) But what's an "official act"? I would hope that courts consider that definition very narrowly. Also disallowing juries to see discussion of official acts as evidence for related wrongdoing is disastrous. Ultimately, though, it won't matter. Trump has effectively managed to delay this particular trial, and much of the remainder of its pre-trial process, until after the election and after the inauguration. I assume if he wins and takes office, he can instruct the DoJ to dismiss the case against him. The Georgia case can still proceed, regardless of the outcome of the election, but Willis completely screwed that one up with her idiotic romantic decisions.
tdb7893 2y ago
Equating Trump's accusations and drone strikes only makes sense if you're not allowed to look at intent, which historically is very relevant for criminal law. More aptly Nixon would be immune from prosecution for obstructing the Watergate investigation under this ruling. In fact presidents are immune from using the justice department to go after political rivals here since determining prosecutorial priorities is clearly an official act (mentioned in the opinion) and you aren't allowed to inspect intent. If either party used the justice department specifically for personal gain they should be in jail but they are literally immune now. The disallowing of considering even corrupt intent seems to be the real worry here. There's no distinction between using your power to promote general welfare and using it to line your own pockets or subvert democracy.

IIAOPSW 2y ago

>I suppose it’s reasonable but the question will now turn to what is actually an official duty. I'm fairly sure there's a full and complete list of these is explicitly in the Constitution.

throw0101b 2y ago
> I'm fairly sure there's a full and complete list of these is explicitly in the Constitution. Roberts disagrees in the decision (p. 17): > Distinguishing the President’s official actions from his unofficial ones can be difficult. When the President acts pursuant to “constitutional and statutory authority,” he takes official action to perform the functions of his office. Fitzgerald, 457 U. S., at 757. Determining whether an ac- tion is covered by immunity thus begins with assessing the President’s authority to take that action. > But the breadth of the President’s “discretionary respon- sibilities” under the Constitution and laws of the United States “in a broad variety of areas, many of them highly sensitive,” frequently makes it “difficult to determine which of [his] innumerable ‘functions’ encompassed a particular action.” Id., at 756. And some Presidential conduct—for example, speaking to and on behalf of the American people, see Trump v. Hawaii, 585 U. S. 667, 701 (2018)—certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision. For those reasons, the immunity we have recognized extends to the “outer perimeter” of the President’s official responsibilities, covering actions so long as they are “not manifestly or pal- pably beyond [his] authority.” Blassingame v. Trump, 87F. 4th 1, 13 (CADC 2023) (internal quotation marks omit- ted); see Fitzgerald, 457 U. S., at 755–756 (noting that we have “refused to draw functional lines finer than history and reason would support”). > In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of of- ficial conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II in- terests that immunity seeks to protect. Indeed, “[i]t would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government” if “[i]n exercising the functions of his office,” the President was “under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry.” […] > Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. For in- stance, when Fitzgerald contended that his dismissal vio- lated various congressional statutes and thus rendered his discharge “outside the outer perimeter of [Nixon’s] duties,” we rejected that contention. 457 U. S., at 756. Otherwise, Presidents would be subject to trial on “every allegation that an action was unlawful,” depriving immunity of its intended effect. Ibid. * https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
- lenerdenator 2y ago
  That last point is bothersome, because if you're looking at "color of law" as a defense, when does that end? A good example is that killer cop in Minneapolis, I don't remember his name or care to fill my brain with it. He was acting officially when George Floyd died under his care; he was responding to a 911 call that Floyd was the subject of. The cop was convicted of murder, but let's say that POTUS does something abhorrent (and this is likely to occur now that this is case law) under color of law and someone wanted to charge him or her because of it. Does that get somehow pulled back as it did for the cop?
  - klyrs 2y ago
    Trump's legal team argued, I think in this case, that a president should be immune from prosecution up to and including calling a hit on a political opponent. Which, given all the consternation about Biden persecuting his political opponent, sounded like a bit of an invitation...
    - lenerdenator 2y ago
      Well, SCOTUS didn't give POTUS license to do that, but they did give license to do something awful and then have their defense team argue that the act was a part of official duties, with a chance that a judge, possibly appointed by the President, agrees. The thing about Biden, since you brought him up, is he's unlikely to test this in any meaningful way with regards to Trump. Could he theoretically now have the USSS detail in charge of babysitting Trump indefinitely detain him, without consequence? Maybe. But he still has at least some belief in the process and won't do that. This gives me flashbacks to lessons about von Hindenburg. An old guard who had belief in the process going by it even when dealing with someone who has obvious and sneering contempt for that process.
      - ffgjgf1 2y ago
        > An old guard who had belief in the process going by it even when dealing with To be fair the situation in Germany was multipolar. Hindenburg wasn’t a huge fan of democracy or especially of one run by Catholics, liberals and socialists and just saw the nazis as a lesser evil..
readthenotes1 2y ago
[flagged]

kibwen 2y ago

> the question will now turn to what is actually an official duty Fortunately, the past rulings of this court have made the jurisprudence abundantly clear: If Biden orders Trump to be assassinated, that's unofficial, and he can be prosecuted. If Trump orders Biden to be assassinated, that's official, and he has complete immunity. Easy, right?

dang 2y ago
Please don't take HN threads into political flamewar hell, or any other flamewar hell. That's what we're trying to avoid here. https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html
- TylerE 2y ago
  This feels likely highly selected be encorcement. Either let people vent or nuke the whole thread
  - dang 2y ago
    That's not how HN works. People don't get to break the site guidelines regardless of the topic, and people are welcome to make their substantive points thoughtfully regardless of their views. Killing the entire thread would be to punish the latter for the former. https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html
  - Tadpole9181 2y ago
    It's been this way for a while. Someone once made a post saying "Christianity is a perfectly peaceful religion and has met benefitted historical society" and then someone replying with "They genocided countless people and nations" would then get a "this is against site rules'.

lenerdenator 2y ago

The problem is, the people who make the call of what is or is not an official duty are often in thrall to the President in one way or another. This is a disaster for rule of law.

MagicMoonlight 2y ago
Well obviously… otherwise a politician paid by putin could remove the ability for the president to fire the nuclear weapons. You can’t have randos deciding what the leader can do. The question is, will everyone surrounding a president allow the president to commit mass cullings or nuke California. And the answer is clearly not, outside of delusional fantasy scenarios. Trump wasn’t even allowed to build a wall, and you think his VP would have let him commit genocide?
- lenerdenator 2y ago
  > You can’t have randos deciding what the leader can do. These aren't randos; they're federal prosecutors that are hired by the sitting President of the United States. Let's say that even if there is a decision that Trump's acts aren't related to his official duties and he somehow gets punished for those charges (I wouldn't hold my breath). How does this not give Biden and future Presidents a way to seriously abuse their power with a hope that they're not held accountable for it? Before it was just a hypothetical. Now we've crossed the Rubicon and established that there are scenarios in which a President can have unlimited power.
  - throwaway173738 2y ago
    It’s also likely that the project 2025 people will have almost every federal employee declared a political appointee which would give any sitting president the power to fire any prosecutor prosecuting him. This was one of the OMB changes Trump made at the end of his last presidency.
    - lenerdenator 2y ago
      There are some already drawing up list of those employees for targeting during a potential second Trump term, using a grant from the Heritage Foundation, IIRC.

giantg2 2y ago

This is really just the formal ruling that qualified immunity is applied to the presidency. Just like with other qualified immunity, it'll be messy to figure out what should be covered an what is not.

squidbeak 2y ago

> The opposite holding, where they are liable for everything, would be untenable Only where their actions were already criminal under the law. This is the problem. No-one should be above the law.

haroldp 2y ago

Obama ordered drone strikes that intentionally killed at least two Americans. One he copped to, one he denied was intentional. https://en.wikipedia.org/wiki/Anwar_al-Awlaki https://en.wikipedia.org/wiki/Anwar_al-Awlaki https://en.wikipedia.org/wiki/Killing_of_Abdulrahman_al-Awlaki https://en.wikipedia.org/wiki/Killing_of_Abdulrahman_al-Awla... To my mind, that is exactly the sort of thing I'd like to be hamstrung by a fear of prosecution. (Trump ordered drone a drone strike that also killed Abdulrahman's eight-year-old American sister.)

klyrs 2y ago
Yeah, this pearl-clutching about presidents being tried for criminal acts is loathsome. I think quite a lot of people believe that quite a few past presidents are guilty of war crimes, and that there should be real consequences for those crimes. My knowledge of history in this regard more or less begins with the Vietnam War: since 1955, I am not aware of a single president who hasn't ordered acts that are crimes against humanity. And throughout that time period, our crimes against humanity have brought ruin to much of the world. Perhaps presidents should fear the law.

lupusreal 2y ago

> Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans? Unintentionally? American citizens were the intended targets of some of his drone strikes. They weren't in warzones either, it was effectively murder.

runjake 2y ago

> Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans? If you're referring to Anwar Al-Awlaki and his son, both US citizens, it was intentional. If you're not referring to this, Obama's already done this without getting charged. Being POTUS is an unenviable job. https://en.wikipedia.org/wiki/Anwar_al-Awlaki https://en.wikipedia.org/wiki/Anwar_al-Awlaki Edit: Since people are assuming my views on this topic, I'll say that they're seriously conflicted and I'm not trying to imply any particular viewpoint, only the facts.

chasd00 2y ago
on a tangent, was the drone operator charged? iirc "just following orders" only goes so far.
- deleted 2y ago
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- haroldp 2y ago
  No. It seems unlikely that the drone pilot would have all of that information beyond where the target was, that would be necessary to make an informed decision about participating in an extrajudicial execution of an American citizen.
  - runjake 2y ago
    From my experience in manned operations, you're basically only given a target, not the details. Based on that, I would assume the targeter did not know whom they were targeting. Or they did, knew the orders came from the National Command Authority[1] (Eg. POTUS) and did it anyway. I would have. 1. https://en.wikipedia.org/wiki/National_Command_Authority_(United_States) https://en.wikipedia.org/wiki/National_Command_Authority_(Un...
itsdavesanders 2y ago
I keep seeing this argument pop up about “should Obama be prosecuted” like it’s some sort of “gotcha liberal!” And as a liberal I think “hell YES he should be prosecuted!” The government shouldn’t just go around killing citizens without due process. I don’t care what letter is by their name.

enragedcacti 2y ago

Its more like "immunity for any action within the realm of presidential power, regardless of motive or criminality". Accepting a bribe in exchange for a pardon would be A-ok on the basis that pardoning is a “conclusive and preclusive” authority of the president. > The opposite holding, where they are liable for everything, would be untenable. Literally no one was arguing for this and there are much more reasonable interpretations of presidential immunity you could compare this one to.

ameister14 2y ago
No, the act undertaken in exchange for the bribe would be under the immunity umbrella but the act of taking the bribe would not.
- enragedcacti 2y ago
  > The President’s authority to pardon, in other words, is “conclusive and preclusive,” “disabling the Congress from acting upon the subject.” > Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority. It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority. Further evidence is that Sotomayors makes the claim in no uncertain terms and that the majority makes zero effort to dispute it.
  - ameister14 2y ago
    Yes, I agree - the President is immune for the official act they undertake, the existence of which allows for a the charge of bribery. They are not immune for the non-official act of soliciting or accepting bribes in exchange for an official act, which is the charge of bribery. So if the President took a bribe in order to make someone ambassador to Sweden, they could not be prosecuted for making that person the ambassador, but they could be prosecuted for taking the bribe.

ein0p 2y ago

What do you mean, “unintentionally”? Obama deliberately and knowingly ordered an extrajudicial killing of a US citizen.

WalterBright 2y ago

Obama ordered Bin Laden killed. Should he be prosecuted for that? Remember that the President can still be impeached for "high crimes and misdemeanors".

squidbeak 2y ago
I'm unclear why ordering the death of one of his nation's worst foes, whose network was still at war with the US, could ever be illegal?
- InTheArena 2y ago
  He would have been sued with no immunity. Either by Pakistan, or by members of the family, or whomever. The fact that they had no legal basis for it is inevitable, it still would have resulted in years and years of legal pain
- WalterBright 2y ago
  He was never convicted of a crime. I'm trying to point out that it is not at all easy to draw a line between what a President could be prosecuted for and what he should be prosecuted for. I'm pretty sure one could find abuse of power committed by about every President. Even Jefferson - he wasn't empowered to make the Louisiana Purchase, but did it anyway.
  - mlyle 2y ago
    I think this particular ruling gets it really wrong, though. For a president to be able to conduct "official acts" in self interest, with no obvious limits, is quite concerning. I think the president should enjoy a weak presumption that official acts are legitimate. But this goes way too far-- prohibiting consideration of motives, prohibiting using them as context or evidence in any other proceeding, and appearing to classify what would be horrible abuses as official acts.
    - WalterBright 2y ago
      There's also the Supreme Court ruling that it was illegal for Biden to do mass loan forgiveness, yet Biden did it anyway. Should Biden be prosecuted for that?

doctorpangloss 2y ago

> Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans? It seems like that world would hamstring the president far too much. I feel like you'd have a different opinion if it were you getting unintentionally killed!

Jiro 2y ago
Saying "Obama killed Americans" is really demonstrating a problem with birthright citizenship. Without that, these Americans wouldn't be Americans.

brightball 2y ago

President's can still be impeached as a result of their official acts. It seems that is intended to be the outlet for prosecuting the Executive Branch. Am I wrong there?

InTheArena 2y ago
Nope - and this is a key point. The framers intended there to be a mechanism to hold a president accountable - impeachment. But it is badly formed, and has never been used, even though arguably it should have been in every case it was used in.
- rtkwe 2y ago
  Also impeachment only removes them from office which is far from a complete punishment. They're still completely free people after impeachment, the only right that's taken away is the ability to be President which is a pretty paltry punishment especially for second term Presidents.
- TeaBrain 2y ago
  There have been impeachment proceedings started against four presidents, all of which would qualify as it being used, even if the presidents weren't successfully impeached. Impeachment proceedings have been completed against 3 presidents and in all cases the senate vote failed to meet the 2/3 supermajority. An impeachment inquiry was also started against Nixon, but he resigned before the house could vote. One could argue that the impeachment inquiry in that case was successful. The procedure for impeaching federal judges is similar, in that the vote needs first to pass the house, then a supermajority of the senate. In 2009, federal judge Thomas Porteous Jr, was successfully impeached by congress. Congress then also voted to prohibit him from holding future federal office. https://guides.loc.gov/federal-impeachment/thomas-porteous https://guides.loc.gov/federal-impeachment/thomas-porteous
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AdamJacobMuller 2y ago

> Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans? How about the one which intentionally killed an American child (16)? Part of me wouldn't mind seeing that, but, I would have to agree that was an official act, regardless of how despicable it was.

zzzeek 2y ago

> It seems like that world would hamstring the president far too much. except Obama ordered plenty of drone strikes including on American citizens, so actual data suggests he was not "hamstrung" at all.

standardUser 2y ago

Those with the most power should receive the most scrutiny and face the greatest consequences for its misuse.

3D30497420 2y ago
Agreed. It’s not as if becoming president is forced on anyone. Judging from history, it is a pretty dangerous role as well and that doesn’t seem to have dissuaded many people. If there are willing to risk their safety, I’d think the risk of prosecution wouldn’t rank too highly either.

insane_dreamer 2y ago

> Immunity for things they do as part of their official duties. How would attempting to overturn the results of a free and fair election be considered an "official duty"? If it is, then the Presidency became a dictatorship, leaving impeachment by Congress -- an extremely difficult bar -- the only recourse.

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Muromec 2y ago
It's only called an attempt if it fails. If it goes through till some point, it's His Royal Highness General Alladin bring order and justice and acting to grant their people all the freedoms they asked for. Source: I'm from places that had the Supreme Court (of places, not US) overturn an election result due to fraud

kelnos 2y ago

This was my thought too. The ruling doesn't seem crazy; being legally liable for every single official act would actually make it untenable for the president to do many things a president needs to do without the real fear of prosecution if anything goes wrong. (And things go wrong! All the time!) But what's an "official act"? I would hope that courts consider that definition very narrowly. Also disallowing juries to see discussion of official acts as evidence for related wrongdoing is disastrous. Ultimately, though, it won't matter. Trump has effectively managed to delay this particular trial, and much of the remainder of its pre-trial process, until after the election and after the inauguration. I assume if he wins and takes office, he can instruct the DoJ to dismiss the case against him. The Georgia case can still proceed, regardless of the outcome of the election, but Willis completely screwed that one up with her idiotic romantic decisions.

tdb7893 2y ago

Equating Trump's accusations and drone strikes only makes sense if you're not allowed to look at intent, which historically is very relevant for criminal law. More aptly Nixon would be immune from prosecution for obstructing the Watergate investigation under this ruling. In fact presidents are immune from using the justice department to go after political rivals here since determining prosecutorial priorities is clearly an official act (mentioned in the opinion) and you aren't allowed to inspect intent. If either party used the justice department specifically for personal gain they should be in jail but they are literally immune now. The disallowing of considering even corrupt intent seems to be the real worry here. There's no distinction between using your power to promote general welfare and using it to line your own pockets or subvert democracy.