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> "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 ago
There 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 ago
  Note, the case before the court was whether or not a person could be prosecuted (Donald Trump specifically), the court said no.
  - abduhl 2y ago
    No, 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 ago
      So 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.
      - abduhl 2y ago
        idk man, probably the same way that they get mafia bosses who write their plans on little pieces of paper that are given to henchmen who then burn them I understand your point and I'm not saying it's a great spot to land at, but I don't understand how the country's President can function if it were any other way. It's not just about Donald Trump, it's about 1 through 44 and 46 through whatever number we get to before this whole place burns down.
      - FuriouslyAdrift 2y ago
        Then that would be a violation of the Presidential Records Act (1981) and they could be prosecuted. https://en.wikipedia.org/wiki/Presidential_Records_Act https://en.wikipedia.org/wiki/Presidential_Records_Act
        vel0city 2y ago
        They could just argue the PRA is impeding their ability to communicate with the people within the executive branch and are thus immune to the punishments of the PRA.
        metabagel 2y ago
        You missed the part where the Supreme Court granted the president immunity.
  - mlyle 2y ago
    The court only said that a specific thing (him directing the justice department to look into the election) was an official act. The person is presumptively immune from prosecution for official acts under the constitution. I mean, it's still really bad, but a few slivers less bad than you say :P
    - lesuorac 2y ago
      So as long as you use government employees you can do anything? Like if you want to do a coup, as long as you task the army with removing congress it's an official act?
- pc86 2y ago
  Nobody is talking about prosecuting the office whatever the hell that would mean.
deleted 2y ago
[deleted]
ddtaylor 2y ago
I think it means that he is liable for anything he does that is illegal if those illegal things aren't powers granted by the legislature. If the president air strikes people and uses drone strikes using whatever system congress has said that makes that "okay" then he cannot be prosecuted for murder while authorizing and ultimately conducting drone strikes (in most circumstances). However, if the president is having is own feud with some guy he doesn't like and finds a way to get him drone struck, that would not be covered by immunity because he wasn't acting as president in that capacity in any legally recognized way.
- pseudalopex 2y ago
  > I think it means that he is liable for anything he does that is illegal if those illegal things aren't powers granted by the legislature. Many disputes about presidential actions are about what the constitution allows. 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
- OgsyedIE 2y ago
  There's one crucial flaw. What is and is not covered by immunity can only be decided by a court, after the fact. Intimidating the court into ruling in your favor with guns to their heads is an official act until the court says it isn't official, but the court can't say it isn't offical, because they've got guns to their heads.
  - argiopetech 2y ago
    That crucial flaw is the fundamental structure of our legal system. It's why case law is a valued and necessary part of our legal doctrine. Humans are bad at predicting the future, and attempts to write prescient laws often end with significant loopholes that must be corrected after the fact. That this system fails to work when it's axioms are ignored (i.e. in the stated case of a coup) cannot be construed as a failure of common law or an indictment on its 950+ years of success. Such act would be a failure of the Executive solely. The founder's stated intent for resolving such a situation is why we have the 2nd amendment.
ajross 2y ago
It means, cynically, that the president may be prosecuted if the courts deem the action "unofficial" and not otherwise. Which is to say that the court has removed checks and balances for the case where the SCOTUS and Executive branch are held by the same party. Cleary, clearly this was a partisan decision. They can't just say "We Have a King Now", so they dressed up just enough of a reasonable interpretation to be able to kill this particular prosecution, while allowing themselves wiggle room to prosecute the kings they don't like. They aren't really trying to uncork executive abuse, they really hope it doesn't happen. But they want Trump not to be prosecuted, and put their fingers on the scale with what they hope is just enough pressure. We'll see.
- metabagel 2y ago
  Exactly. They needed to come up with a decision which would give them the power to decide this case in the way they preferred, but also to decide future cases completely differently, for example in the case of a Democratic president.
anon291 2y ago
It's not impossible to prosecute a president though. If he commits murder... that's not an official act. It's not part of the duties of his office in any reasonable take. Or, if the President uses his powers to assassinate a governor -- again, explicitly not an official act, as the president has no authority over state elections. If anyone bothered to read the constitution, it clearly lays out the sorts of things that could be construed as official, and the sorts of things that are not. The President does not have unlimited authority. His scope of authority is rather small, even if several important things fall under it. Part of the problem is the pervasive idea in American electoral politics that the president has some sort of power to 'promise' various laws and such. It's so silly since no President can possibly do that.
- tines 2y ago
  > If he commits murder... that's not an official act. Not true, it depends on how he does it. If he hacks someone to death with a sword, that's not an official act, and it doesn't matter why he does it. But if he orders Seal Team 6 to assassinate a political rival, that is an official act. This example is specifically stated in the dissenting opinion.
  - anon291 2y ago
    > But if he orders Seal Team 6 to assassinate a political rival, that is an official act. This example is specifically stated in the dissenting opinion. One of the key things about a dissent, is that it's not the opinion of the court, but just that judge. In general, one would hope Seal Team 6 would not follow such an act as they owe allegiance to our system of laws before any presidential order.
    - tines 2y ago
      > One of the key things about a dissent, is that it's not the opinion of the court, but just that judge. Can you find anything in the opinion of the court that would preclude it? I can't. > In general, one would hope Seal Team 6 would not follow such an act as they owe allegiance to our system of laws before any presidential order. It's a strange world we live in where a president can order something illegal but not face any consequences. I suppose you could argue we already lived in such a world, but now the difference is that he can brazenly do it.
WheatMillington 2y ago
Why do you think it's impossible to prosecute the president?
_heimdall 2y ago
I believe the best clarificstion there is that you have to consider the person and the office separately. When acting as the president and largely executing his duties as defined by Congress and the Constitution, he can't be charged. If the person does something outside of the office's powers then immunity doesn't hold. Meaning, if the president shoots a random bystander on the street they can be charged with murder. If the president orders a military strike as part of an official operation and done through proper channels, they can't be charged if it later turns out the intel was bad or the strike went wrong in some way.
- burutthrow1234 2y ago
  What if the President orders the Vice President to shoot someone in the street? What if the President signs an Executive Order directing himself to shoot someone in the street?
  - _heimdall 2y ago
    Simply envoking the title of the office doesn't mean the act falls within the lawful powers of the office. Think of it like the police. An off duty cop is not acting under official powers. Even on duty, a cop is limited in what and how they are supposed to do their job and crossing outside those bounds technically makes them personally liable. I wouldn't begin to say we are any good at actually holding police accountable when they act outside their official duties, but that's a whole separate can of worms.
- metabagel 2y ago
  Sounds reasonable, but that's not what the court decided.
  - _heimdall 2y ago
    Any specific references in the court decision that jumps out at you? I read it and what is above is my understanding of how they attempted to parse the law, but I'm happy to be wrong if I missed something.
umvi 2y ago
It means: On the one hand: if you are president and you authorize the nuclear bombings of Nagasaki and Hiroshima to get Japan to surrender without further loss of American life, you won't later be prosecuted for war crimes when your political rival comes into power. On the other hand, if you are president and you murder a Japanese person you see on the street when going for a stroll outside the white house, you can be prosecuted for that.

abduhl 2y ago

There 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 ago
Note, the case before the court was whether or not a person could be prosecuted (Donald Trump specifically), the court said no.
- abduhl 2y ago
  No, 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 ago
    So 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.
    - abduhl 2y ago
      idk man, probably the same way that they get mafia bosses who write their plans on little pieces of paper that are given to henchmen who then burn them I understand your point and I'm not saying it's a great spot to land at, but I don't understand how the country's President can function if it were any other way. It's not just about Donald Trump, it's about 1 through 44 and 46 through whatever number we get to before this whole place burns down.
    - FuriouslyAdrift 2y ago
      Then that would be a violation of the Presidential Records Act (1981) and they could be prosecuted. https://en.wikipedia.org/wiki/Presidential_Records_Act https://en.wikipedia.org/wiki/Presidential_Records_Act
      - vel0city 2y ago
        They could just argue the PRA is impeding their ability to communicate with the people within the executive branch and are thus immune to the punishments of the PRA.
      - metabagel 2y ago
        You missed the part where the Supreme Court granted the president immunity.
- mlyle 2y ago
  The court only said that a specific thing (him directing the justice department to look into the election) was an official act. The person is presumptively immune from prosecution for official acts under the constitution. I mean, it's still really bad, but a few slivers less bad than you say :P
  - lesuorac 2y ago
    So as long as you use government employees you can do anything? Like if you want to do a coup, as long as you task the army with removing congress it's an official act?
pc86 2y ago
Nobody is talking about prosecuting the office whatever the hell that would mean.

deleted 2y ago

[deleted]

ddtaylor 2y ago

I think it means that he is liable for anything he does that is illegal if those illegal things aren't powers granted by the legislature. If the president air strikes people and uses drone strikes using whatever system congress has said that makes that "okay" then he cannot be prosecuted for murder while authorizing and ultimately conducting drone strikes (in most circumstances). However, if the president is having is own feud with some guy he doesn't like and finds a way to get him drone struck, that would not be covered by immunity because he wasn't acting as president in that capacity in any legally recognized way.

pseudalopex 2y ago
> I think it means that he is liable for anything he does that is illegal if those illegal things aren't powers granted by the legislature. Many disputes about presidential actions are about what the constitution allows. 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
OgsyedIE 2y ago
There's one crucial flaw. What is and is not covered by immunity can only be decided by a court, after the fact. Intimidating the court into ruling in your favor with guns to their heads is an official act until the court says it isn't official, but the court can't say it isn't offical, because they've got guns to their heads.
- argiopetech 2y ago
  That crucial flaw is the fundamental structure of our legal system. It's why case law is a valued and necessary part of our legal doctrine. Humans are bad at predicting the future, and attempts to write prescient laws often end with significant loopholes that must be corrected after the fact. That this system fails to work when it's axioms are ignored (i.e. in the stated case of a coup) cannot be construed as a failure of common law or an indictment on its 950+ years of success. Such act would be a failure of the Executive solely. The founder's stated intent for resolving such a situation is why we have the 2nd amendment.

ajross 2y ago

It means, cynically, that the president may be prosecuted if the courts deem the action "unofficial" and not otherwise. Which is to say that the court has removed checks and balances for the case where the SCOTUS and Executive branch are held by the same party. Cleary, clearly this was a partisan decision. They can't just say "We Have a King Now", so they dressed up just enough of a reasonable interpretation to be able to kill this particular prosecution, while allowing themselves wiggle room to prosecute the kings they don't like. They aren't really trying to uncork executive abuse, they really hope it doesn't happen. But they want Trump not to be prosecuted, and put their fingers on the scale with what they hope is just enough pressure. We'll see.

metabagel 2y ago
Exactly. They needed to come up with a decision which would give them the power to decide this case in the way they preferred, but also to decide future cases completely differently, for example in the case of a Democratic president.

anon291 2y ago

It's not impossible to prosecute a president though. If he commits murder... that's not an official act. It's not part of the duties of his office in any reasonable take. Or, if the President uses his powers to assassinate a governor -- again, explicitly not an official act, as the president has no authority over state elections. If anyone bothered to read the constitution, it clearly lays out the sorts of things that could be construed as official, and the sorts of things that are not. The President does not have unlimited authority. His scope of authority is rather small, even if several important things fall under it. Part of the problem is the pervasive idea in American electoral politics that the president has some sort of power to 'promise' various laws and such. It's so silly since no President can possibly do that.

tines 2y ago
> If he commits murder... that's not an official act. Not true, it depends on how he does it. If he hacks someone to death with a sword, that's not an official act, and it doesn't matter why he does it. But if he orders Seal Team 6 to assassinate a political rival, that is an official act. This example is specifically stated in the dissenting opinion.
- anon291 2y ago
  > But if he orders Seal Team 6 to assassinate a political rival, that is an official act. This example is specifically stated in the dissenting opinion. One of the key things about a dissent, is that it's not the opinion of the court, but just that judge. In general, one would hope Seal Team 6 would not follow such an act as they owe allegiance to our system of laws before any presidential order.
  - tines 2y ago
    > One of the key things about a dissent, is that it's not the opinion of the court, but just that judge. Can you find anything in the opinion of the court that would preclude it? I can't. > In general, one would hope Seal Team 6 would not follow such an act as they owe allegiance to our system of laws before any presidential order. It's a strange world we live in where a president can order something illegal but not face any consequences. I suppose you could argue we already lived in such a world, but now the difference is that he can brazenly do it.

WheatMillington 2y ago

Why do you think it's impossible to prosecute the president?

_heimdall 2y ago

I believe the best clarificstion there is that you have to consider the person and the office separately. When acting as the president and largely executing his duties as defined by Congress and the Constitution, he can't be charged. If the person does something outside of the office's powers then immunity doesn't hold. Meaning, if the president shoots a random bystander on the street they can be charged with murder. If the president orders a military strike as part of an official operation and done through proper channels, they can't be charged if it later turns out the intel was bad or the strike went wrong in some way.

burutthrow1234 2y ago
What if the President orders the Vice President to shoot someone in the street? What if the President signs an Executive Order directing himself to shoot someone in the street?
- _heimdall 2y ago
  Simply envoking the title of the office doesn't mean the act falls within the lawful powers of the office. Think of it like the police. An off duty cop is not acting under official powers. Even on duty, a cop is limited in what and how they are supposed to do their job and crossing outside those bounds technically makes them personally liable. I wouldn't begin to say we are any good at actually holding police accountable when they act outside their official duties, but that's a whole separate can of worms.
metabagel 2y ago
Sounds reasonable, but that's not what the court decided.
- _heimdall 2y ago
  Any specific references in the court decision that jumps out at you? I read it and what is above is my understanding of how they attempted to parse the law, but I'm happy to be wrong if I missed something.

umvi 2y ago

It means: On the one hand: if you are president and you authorize the nuclear bombings of Nagasaki and Hiroshima to get Japan to surrender without further loss of American life, you won't later be prosecuted for war crimes when your political rival comes into power. On the other hand, if you are president and you murder a Japanese person you see on the street when going for a stroll outside the white house, you can be prosecuted for that.