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To give the majority opinion its own voice: > The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The
by lolinder 2y ago
To give the majority opinion its own voice:
> The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive. The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.
https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
EDIT: OP left a reply to this comment that I think was unfairly flagged, visible here with showdead:
https://news.ycombinator.com/item?id=40848860 https://news.ycombinator.com/item?id=40848860
- jampekka 2y ago"It's not illegal when the president does it."
- moshun 2y agoTurns out Nixon won the battle for an American dictatorship after all. Well played, Dick.
- treeFall 2y agoThen it sounds like Sotomayor is being extreme by conflating domestic political assassinations as an "official act." Does she not understand the difference?
- downWidOutaFite 2y agoThe ruling is extremely wishy washy about what is official vs unofficial, and keeps saying that it is very hard to determine, and even prohibits prosecutors from using certain legal tactics to determine if something is official or unofficial.
- nradov 2y agoThe Supreme Court wasn't even asked to define exactly what is official versus unofficial in this case. It will now return to a lower court to address that point, which is the normal way for the process to work.
- downWidOutaFite 2y agoThat is a scam. The tests given in the opinion mean that they were all official because they involved federal elections. The case is over. The president now has immunity to corrupt elections as he wishes. I honestly don't understand how any American can be happy about this.
- Goronmon 2y agoDoes she not understand the difference? Explain the difference.
- jandrese 2y ago[flagged]
- treeFall 2y agoMore like: if my guy does it that is official Evidence: Obama supporters treating the assassination of that American citizen as an official action.
- treeFall 2y agoDepriving someone of their constitutional rights cannot be an official act by definition. Arguing that it can be is just word games in a world where words stop mattering.
- monetus 2y agoShould an official act done in furtherance of a crime be official? I think the problem is that the section regarding evidence, c3 iirc, says that any evidence implicating a criminal unofficial act must itself be unofficial, and not related to presidential acts.
- whamlastxmas 2y agoAmerican citizens have been drone striked without due process so that is in fact the reality we live in
- Zardoz89 2y agoExplain that in Guantanamo
- pseudalopex 2y ago> Depriving someone of their constitutional rights cannot be an official act by definition. Who said?
- brokencode 2y agoJust call it necessary for national security with some BS reasoning and thin or made up evidence and suddenly it’s an official act. There are so many ways a president could twist pretty much anything into an official act.
- buildbot 2y agoThis was argued by Trump's defense team, it’s not a hypothetical https://www.msnbc.com/rachel-maddow-show/maddowblog/pressed-assassination-question-team-trump-doubles-rcna149494 https://www.msnbc.com/rachel-maddow-show/maddowblog/pressed-...
- lolinder 2y agoRather, the prosecution asked it as a hypothetical and the defense refused to rule out that it might be an official act.
- buildbot 2y agoThat's explicitly arguing for the possibility then? Seems like splitting hairs and not a big leap to understand why the dissent might reference a take so wild as - yeah it's okay to murder your political rivals if it's official!
- GlobalFrog 2y agoSo, for the next election, if Biden decides to pressure several state officials for them to choose him as the state winner instead of the real election result prevailing, there would be no prosecution. So why wouldn't he do it? Oh yes, basic honesty and being faithful to his country (unless that being old and confused, he decides to do just that, so two reasons there for him not to be held responsible). During the Supreme Court hearings, has anyone asked the hypothetical of a president deciding to send Team 6 to get rid of some members of the Supreme Court? No prosecution for that too?
- deleted 2y ago[deleted]
- jwithington 2y agocouldn't be it reasonably construed as an official act if the president believed that person was a member of a terrorist group? the post 9/11 Authorization of Use for Military Force grants the president the use of all "necessary and appropriate force" in prosecuting terrorists. this act is still in effect.
- breadwinner 2y agoCould Proud Boys reasonably be considered a terrorist group?
- jwithington 2y agoHellfire on its way now
- jandrese 2y agoWhat if the President ordered the assassination of the head of a terrorist organization that attempted to overthrow Congress with physical force?
- anonfordays 2y agoNot the exact scenario you described, but a similar scenario occurred in the past: "... al-Awlaki ... was an American-Yemeni lecturer, and jihadist who was killed in 2011 in Yemen by a U.S. government drone strike ordered by President Barack Obama. Al-Awlaki became the first U.S. citizen to be targeted and killed by a drone strike from the U.S. government." https://en.m.wikipedia.org/wiki/Anwar_al-Awlaki https://en.m.wikipedia.org/wiki/Anwar_al-Awlaki
- diob 2y agoIf you think it's extreme you haven't been paying attention to how Republicans have been acting with the "get out of jail free" card for years. See https://en.wikipedia.org/wiki/Iran%E2%80%93Contra_affair#Pardons https://en.wikipedia.org/wiki/Iran%E2%80%93Contra_affair#Par...
- jasonlotito 2y agoA president could put a bullet through a political rivals head and say he was "to the best of his ability, preserving, protecting, and defending the Consitution of the United States" if that political rival was calling for the "termination of all rules, regulations, and articles, even those found in the Constitution" and was preparing to do it. I could see the argument being made that yes, that's an official act. You'd have to argue why it's okay for a President to abandon their oath of office.
- sowut 2y ago[flagged]
- ffgjgf1 2y agoBecause there isn’t? Just frame the assassination as fighting domestic terrorists or some other nonsense.
- sowut 2y agoThere literally is. You can't just frame things however you want. That's not how this works. Words mean things.
- ceejayoz 2y ago> You can't just frame things however you want. The decision literally states "In dividing official from unofficial conduct, courts may not inquire into the President’s motives." He can claim the assassination was an official act in defense of national security, and no amount of "but he owed the guy money!" matters.
- sowut 2y agoAnyone can claim anything they want. That's why we have courts.
- ceejayoz 2y agoHelp me understand how you read "courts may not inquire into the President’s motives", then. That's a ruling, by the Supreme Court, that they can not do so in this specific case.
- ffgjgf1 2y agoWhich is not particularly helpful when you can openly bribe Supreme Court justices with not repercussions..
- 2y ago
- chx 2y agoThe problem is that official vs unofficial designation does not exist. The Supreme Court just invented it out of thin air. Further https://www.thenation.com/article/society/trump-immunity-supreme-court/ https://www.thenation.com/article/society/trump-immunity-sup... > 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?”
- inglor_cz 2y agoDoesn't this difference exist de facto? Trump murdering his business partner at a dinner because they had a fallout is pretty clearly unofficial, while Trump ordering assassination of the Tyrant of Ruritania is official, albeit probably immoral and/or dangerous to boot. Of course the grey zone between those two poles is going to be pretty wide.
- robertoandred 2y agoUh, you're missing the fact that his business partner is a danger to national security. The motives are irrelevant.
- impalallama 2y agoThe question becomes what if the President then uses their power to jail/execute political rivals? How would you rule that as unofficial? Tons of dictators jail rivals on the “official” business of maintaining order or peace or some other nebulous term. The presidents role to enforce law is so broad that it can be used to justify almost any act.
- Muromec 2y agoThis, so much this. Nobody ever jails political opponents, obstructs justice and bullies media in their unofficial capacity. If there is immunity, it will be used to do all kinds of shticks.
- Buttons840 2y ago> "The President is not above the law." What does that even mean if it's impossible to prosecute the President? What does that even mean?
- abduhl 2y agoThere is a distinction to be drawn between The President (the office) and the President (the person). The latter is not above the law with respect to all criminal prosecutions. The former is.
- deleted 2y ago[deleted]
- Buttons840 2y agoNote, the case before the court was whether or not a person could be prosecuted (Donald Trump specifically), the court said no.
- abduhl 2y agoNo, the Court said that the President could not be prosecuted for actions that the President takes while being The President. If the President is not being The President then they can be prosecuted. If the President beats his/her wife/husband, then they can be prosecuted because that's not something The President is involved in.
- Muromec 2y agoSo if the President calls another official over the secure line and tasks them to falsify election results and then prevents the transcript from going into the archive, how do you even get em? Practically speaking. That's the problem, that's how it works -- use the office immunity, plausible deniability and procedure rules to your advantage. Making it so is asking for trouble, just waiting to be abused the hell of. It's the same things cops do, jeez.
- nostromo 2y agoIt's worth considering the case of Anwar al-Awlaki, an American citizen, that was killed by Obama outside of a combat zone. (I'm avoiding the word "assassinated" because it seems overly charged.) In theory, some prosector could have decided to charge Obama with a crime, and maybe even achieved a conviction in a jurisdiction where he's unpopular. This decision says that shouldn't happen because it was an official act as president. Of course, if congress doesn't like something a president is doing, they can change the laws and remove his or her legal authority to do something. https://en.wikipedia.org/wiki/Anwar_al-Awlaki https://en.wikipedia.org/wiki/Anwar_al-Awlaki
- demosthanos 2y ago> if congress doesn't like something a president is doing, they can change the laws and remove his or her legal authority to do something. Yep. The ruling says that if the President is acting within the legally and constitutionally defined scope of their duties then they shouldn't have to wonder if they'll later be prosecuted for it. That seems fine on its face, but the problem people keep raising is that we live in a world where the President is legally empowered to do things that are seriously problematic. That's a very real concern, and it's been a concern at the very least since Bush and 9/11. So the obvious answer to this ruling is to fix that. The President shouldn't have to wonder if they'll end up prosecuted for doing things that are within the scope of their official duties, so what we need to do is more clearly define and limit those official duties so that the President doesn't have to guess what will be seen as crossing an imaginary line when the administration changes.
- arrosenberg 2y ago> That seems fine on its face, but the problem people keep raising is that we live in a world where the President is legally empowered to do things that are seriously problematic. That's a very real concern, and it's been a concern at the very least since Bush and 9/11. I agree with you - it's not like Bush has been held accountable in any way. Neither has Cheney, and we know Rumsfeld never will. Congress needs to get off its' duff and regulate. That requires people to organize to make them. I'm not seeing it happen.
- bbor 2y agoYeah but isn’t “the president has presumptive immunity for any act done in the service of the executive” and “the president can order military executions with immunity” kinda the same assertion, assuming “presumptive” is allowed to do its work? What’s the difference? I don’t understand how you could possibly argue political violence by the executive is “personal”, when they claim it’s done in the service of their oath…
- fallingknife 2y agoNo because "presumptive" isn't as strong as you think it is. All defendants have the same presumptive innocence and yet are convicted much more often than not at trial.
- harywilke 2y agoBut presumption of immunity is different from presumption of innocence. You can't face a trial if you are immune. That's the entire reason this is before the court now, before the trial has even started. They are very different things. The presumption of immunity here is way stronger than you realize.
- kristjansson 2y agoI don't think that's the dispositive part of the opinion for Sotomayor's hypo though. Roberts finds that the President enjoy absolute immunity for acts that can be construed as part of the "conclusive and preclusive authority" of the Presidency, and presumptive immunity for acts within the 'outer perimeter' of their authority. Furthermore: > In dividing official from unofficial conduct, courts may not inquire into the President’s motives. So the hypo cannot be trivially resolved by treating the kill order as an unofficial act. Instead, for the president to be _criminally_ liable, I think (as not-a-lawyer) it has to be resolved by piercing 'presumptive immunity' for actions beyond the core powers. While there's a needle to thread, it feels disturbingly narrow.
- demosthanos 2y agoAs noted by nostramo [0], Obama already set the precedent of ordering hits on US citizens. The answer to Sotomayor's concern here seems pretty obvious: if we're concerned that the President can order hits on US citizens for invalid reasons, then we need to be very clear in the laws that ordering hits on US citizens without due process is not within the President's official authority. [0] https://news.ycombinator.com/item?id=40849378 https://news.ycombinator.com/item?id=40849378
- jhp123 2y agoThe President's authority to command the armed forces comes directly from the Constitution, Congress can't pass a law to take that away.
- salawat 2y agoFirther, Obama's AG argued successfully that due process was done; where the definition of due process became what the Executive Branch did. I wouldn't have bought that; but alas, no one asked me.
- kristjansson 2y agoI don’t think this is a helpful comparison. A citizen in the service of an enemy engaged in war against his country does not enjoy the protections of an arbitrary citizen. We can rightly argue whether that theory wholly fits the facts of al-Awlaki, but it’s a very, very long bridge from that case to Sotomayor’s hypo
- idiotsecant 2y agoThis is an extra fun opinion because it lets the court selectively interpret which acts are official and which are not. If it's a politician they agree with ideologically all their acts are official. If not, the offending acts are clearly unofficial. The silence from the people who once decried the 'activist court' now that it's an ally of the slow fascist transformation is deafening.
- space_fountain 2y agoI also think this is an interesting contrast with the decision to overrule Chevron from just a few days ago. There it was decided that executive agencies have no authority to interpret unclear statutes, under the constitution this was kind of a power grab from the executive to the courts. The conservative movement general sees government agencies deriving all their powers from the president, so it's a bit funny that they would decide this first case to give agencies no wiggle room in their interpretation of the law and this next one to give the president maximum wiggle room. It kind of makes you wonder
- diob 2y agoGiven how the Republicans treat pardons (see https://en.wikipedia.org/wiki/Iran%E2%80%93Contra_affair#Pardons https://en.wikipedia.org/wiki/Iran%E2%80%93Contra_affair#Par...) I think we can all guess how this will be used in reality.
- lumb63 2y agoI think and hope that the results of this ruling will be less extreme than the dissent warns. It could potentially be very bad, though. The word “official” is doing a lot of lifting in this ruling. If it is not interpreted too liberally, then perhaps not that much is “official” and thus immune. If it is interpreted the other way, then this could be bad.
- autoexec 2y ago> The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. That seems like the majority opinion agrees. It'd be hard to argue that commanding the military wasn't an official act of the president under the Constitution even if that command was to Navy's Seal Team 6 asking them to assassinate a political rival for reasons of "national security"