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The 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/art

by chx 2y ago

The 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 ago
Doesn'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 ago
  Uh, you're missing the fact that his business partner is a danger to national security. The motives are irrelevant.
- impalallama 2y ago
  The 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 ago
    This, 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.
    - tomrod 2y ago
      Indeed. This feels much in line to the German Enabling Act of 1933.
      - laidoffamazon 2y ago
        Critically, the former president was posting about how his political enemies should face military tribunals for treason yesterday
- sfink 2y ago
  You listed two extremes to demonstrate the difference, which is fine, but what about the example of Trump encouraging insurrection? It seems just a teeny bit relevant here, given that it is what prompted the case in the first place. And insurrection is definitely related to governing, so you can't discard it from consideration just because it's nothing like murdering a business partner. He could claim that an illegal decision was about to be made and so he had to use his executive authority to counteract it. That sounds like an official duty to me.
  - breadwinner 2y ago
    > He could claim that an illegal decision was about to be made He doesn't even have to provide such a justification because the court has said the President's motives cannot be used to decide if it was official or unofficial.
- pseudalopex 2y ago
  > Trump murdering his business partner at a dinner because they had a fallout is pretty clearly unofficial Why? The majority said In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.[1] [1] https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
- chx 2y ago
  > 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.
ahmeneeroe-v2 2y ago
It's within the court's purview to invent new tests which lower courts can use to decide cases. That's the entire point of a landmark case.
- chx 2y ago
  > 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.”
- TimTheTinker 2y ago
  Agreed, this is a key function of interpreting the law. If the people don't like a landmark case (i.e. the disagree with the interpretation), Congress can pass a new law. If a new law contradicts the court's opinion, the law takes precedence.
  - pseudalopex 2y ago
    > If the people don't like a landmark case (i.e. the disagree with the interpretation), Congress can pass a new law. If a new law contradicts the court's opinion, the law takes precedence. Maybe.[1] [1] https://en.wikipedia.org/wiki/Unitary_executive_theory#Judicial_decisions https://en.wikipedia.org/wiki/Unitary_executive_theory#Judic...
    - TimTheTinker 2y ago
      Right - constitutional interpretation is the one area where the court can overrule congressional law. But even then, with enough agreement from the states, Congress can amend the Constitution.
      - ahmeneeroe-v2 2y ago
        Exactly, this isn't a gotcha. This is one of the basic checks on Congress. Congress can also impeach justices, which is one of their checks on the Judicial branch. They also have the authority to confirm the Executive's judicial nominees (one of their checks on the Executive).
deleted 2y ago
[deleted]
sickofparadox 2y ago
Judicial review didn't exist until the Supreme Court invented it out of thin air as well! Since the foundation of the country, we have allowed the SCOTUS a degree of legislation from the bench.
- chx 2y ago
  > 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.”
A4ET8a8uTh0 2y ago
<< If trying to overthrow the government is “official,” then what isn’t? It seems a lot is assumed in that one sentence. Did he give an order that said 'Overthrow!"? If not, what, exactly, did he do? And this may be a part of the issue. Everything is a hyperbole wrapped in performative anger. In other words, can you name an action that you deem unofficial that would qualify as 'overthrow"?
- tomrod 2y ago
  Elector conspiracy Failing to execute his office by failing to defend the Capitol Telling the Proud Boys to stand by rather than stand down Encouraging a vitriolic crowd to take back their country and transferring blame to Pence, who was going to be in the Capitol performing his Senate duties. --------------- There comes a time when we have look past the mob-boss-need-for-explicit wording schtick and recognize a space as a space.
  - A4ET8a8uTh0 2y ago
    << Encouraging a vitriolic crowd to take back their country and transferring blame to Pence, who was going to be in the Capitol performing his Senate duties. Yeah, I.. I think you will want to find a better example than what he actually said[1] << Failing to execute his office by failing to defend the Capitol So a lack of an official act is an official act? This does not fall under what I asked for, but good try. << Elector conspiracy You have something there, but you want something more concrete. What was his exact step that was NOT an official act in your view. << Telling the Proud Boys to stand by rather than stand down You have something there, but again not much to go after unless you want to argue actions vs words. << There comes a time when we have look past the mob-boss-need-for-explicit wording schtick and recognize a space as a space. Listen, rules exist for a reason. You break those rules and you deal with consequences of that break. If Trump did not break those rules and you think those rules do not meet the current needs, then you may want to change those rules, but arguing 'well, he is guilty of something' is a little silly and, frankly, against the very foundation of this country. The funny thing is, you clearly recognize the 'exact wording' issue as an obstacle to put him away. [1]https://www.wsj.com/video/trump-full-speech-at-dc-rally-on-jan-6/E4E7BBBF-23B1-4401-ADCE-7D4432D07030 https://www.wsj.com/video/trump-full-speech-at-dc-rally-on-j...

by chx 2y ago

inglor_cz 2y ago

Doesn'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 ago
Uh, you're missing the fact that his business partner is a danger to national security. The motives are irrelevant.
impalallama 2y ago
The 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 ago
  This, 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.
  - tomrod 2y ago
    Indeed. This feels much in line to the German Enabling Act of 1933.
    - laidoffamazon 2y ago
      Critically, the former president was posting about how his political enemies should face military tribunals for treason yesterday
sfink 2y ago
You listed two extremes to demonstrate the difference, which is fine, but what about the example of Trump encouraging insurrection? It seems just a teeny bit relevant here, given that it is what prompted the case in the first place. And insurrection is definitely related to governing, so you can't discard it from consideration just because it's nothing like murdering a business partner. He could claim that an illegal decision was about to be made and so he had to use his executive authority to counteract it. That sounds like an official duty to me.
- breadwinner 2y ago
  > He could claim that an illegal decision was about to be made He doesn't even have to provide such a justification because the court has said the President's motives cannot be used to decide if it was official or unofficial.
pseudalopex 2y ago
> Trump murdering his business partner at a dinner because they had a fallout is pretty clearly unofficial Why? The majority said In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.[1] [1] https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
chx 2y ago
> 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.

ahmeneeroe-v2 2y ago

It's within the court's purview to invent new tests which lower courts can use to decide cases. That's the entire point of a landmark case.

chx 2y ago
> 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.”
TimTheTinker 2y ago
Agreed, this is a key function of interpreting the law. If the people don't like a landmark case (i.e. the disagree with the interpretation), Congress can pass a new law. If a new law contradicts the court's opinion, the law takes precedence.
- pseudalopex 2y ago
  > If the people don't like a landmark case (i.e. the disagree with the interpretation), Congress can pass a new law. If a new law contradicts the court's opinion, the law takes precedence. Maybe.[1] [1] https://en.wikipedia.org/wiki/Unitary_executive_theory#Judicial_decisions https://en.wikipedia.org/wiki/Unitary_executive_theory#Judic...
  - TimTheTinker 2y ago
    Right - constitutional interpretation is the one area where the court can overrule congressional law. But even then, with enough agreement from the states, Congress can amend the Constitution.
    - ahmeneeroe-v2 2y ago
      Exactly, this isn't a gotcha. This is one of the basic checks on Congress. Congress can also impeach justices, which is one of their checks on the Judicial branch. They also have the authority to confirm the Executive's judicial nominees (one of their checks on the Executive).

deleted 2y ago

[deleted]

sickofparadox 2y ago

Judicial review didn't exist until the Supreme Court invented it out of thin air as well! Since the foundation of the country, we have allowed the SCOTUS a degree of legislation from the bench.

chx 2y ago
> 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.”

A4ET8a8uTh0 2y ago

<< If trying to overthrow the government is “official,” then what isn’t? It seems a lot is assumed in that one sentence. Did he give an order that said 'Overthrow!"? If not, what, exactly, did he do? And this may be a part of the issue. Everything is a hyperbole wrapped in performative anger. In other words, can you name an action that you deem unofficial that would qualify as 'overthrow"?

tomrod 2y ago
Elector conspiracy Failing to execute his office by failing to defend the Capitol Telling the Proud Boys to stand by rather than stand down Encouraging a vitriolic crowd to take back their country and transferring blame to Pence, who was going to be in the Capitol performing his Senate duties. --------------- There comes a time when we have look past the mob-boss-need-for-explicit wording schtick and recognize a space as a space.
- A4ET8a8uTh0 2y ago
  << Encouraging a vitriolic crowd to take back their country and transferring blame to Pence, who was going to be in the Capitol performing his Senate duties. Yeah, I.. I think you will want to find a better example than what he actually said[1] << Failing to execute his office by failing to defend the Capitol So a lack of an official act is an official act? This does not fall under what I asked for, but good try. << Elector conspiracy You have something there, but you want something more concrete. What was his exact step that was NOT an official act in your view. << Telling the Proud Boys to stand by rather than stand down You have something there, but again not much to go after unless you want to argue actions vs words. << There comes a time when we have look past the mob-boss-need-for-explicit wording schtick and recognize a space as a space. Listen, rules exist for a reason. You break those rules and you deal with consequences of that break. If Trump did not break those rules and you think those rules do not meet the current needs, then you may want to change those rules, but arguing 'well, he is guilty of something' is a little silly and, frankly, against the very foundation of this country. The funny thing is, you clearly recognize the 'exact wording' issue as an obstacle to put him away. [1]https://www.wsj.com/video/trump-full-speech-at-dc-rally-on-jan-6/E4E7BBBF-23B1-4401-ADCE-7D4432D07030 https://www.wsj.com/video/trump-full-speech-at-dc-rally-on-j...