this post was submitted on 02 Jul 2024
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Yea I dunno ... why not just have no immunity? It's not like the whole idea of the separation of powers is to ensure power is freely exercised ... it's the opposite.
If a president has to pause for a moment before doing something to ask their lawyer if it would be a crime ... maybe that's the point of having fucking legal system and constitution?
Sotomayer's dissent provided pretty good evidence (AFAICT) that the framers would have put criminal immunity into the constitution if they thought it wise ... because it was a known idea at the time that had been done by some states regarding their governors. They didn't. Cuz that's the whole point ... "no man is above the law".
And as for Congressional impeachment being paramount ... I'm not sure that's either necessary or even consistent with the Constitution (again, as Sotomayer's dissent addresses).
For example ... Article 1, section 3 (emphasis mine):
In short (AFAICT) ... impeachment and general legal liability are not the same thing ... and the latter totally still applies.
Beyond all of that, the general law probably achieves everything that the majority's decision was worried about (while they were conspicuously not worried about all of the other things that one should be when crowning a king). Civil immunity is a well established doctrine (government's just too big and complex a thing for civil responsibility to make sense). And while I don't know anything about it, there are similar-ish ideas around criminal responsibilities that just don't make sense for the very nature of a governmental responsibility, war, I think, being a classic example. Sotomayer again speaks about these things.
Overall, once you start to squint at it, the whole decision is kinda weird. To elevate the separation of powers to the point of creating literal lawlessness seems like plain "not seeing the forest for the trees".
The bit I wonder about, without knowing US Constitutional law/theory well at all ... is whether a democratic factor has any bearing. A criminal law is created by the legislature, a democratic body. And also caries requirements for judgment by jury. So couldn't an argument be made that the centrality of democratic power in the constitution cuts through any concerns about the separation of powers that the SCOTUS had, and enables democratically ordained law to quash concerns about whatever interference the judiciary (or legislature?) might exercise with the executive.
I know there's the whole "it's not a democracy, it's a republic" thing ... but the constitution dedicates so much text to establishing the mechanisms of democracy (including the means by which the constitution itself can be altered) that it seems ridiculous to conclude that democratic power is anything but central.
Those are all great points.
To be clear, I don't agree with the notion that the president requires immunity in order to be "undistracted" while being president.
I think that immunity for explicitly delineated powers makes sense purely from a logical point of view: the constitution says the president can do a thing, therefore a law saying they can't do that thing is either unconstitutional, or doesn't apply to the president.
If they're impeached it wasn't a valid use of their powers and they are potentially personally criminally liable.
I feel like it's less traditional immunity and more an acknowledgement that the legislature can't criminalize things in the constitution, and someone can't be guilty of a crime under an unconstitutional law.
It's the not-enumerated official acts bit that's wonky to me.
I don't think anything that trump did would even remotely fit under an enumerated power of the president, which are pretty clearly and narrowly defined. Nowhere does the constitution empower the president to futz about with elections. If Congress delegated that power to the president, then the president is acting in the bounds of a law they can break.
You are effectively implying this, but I will say it explicitly - you don’t need immunity to reconcile the logical conflict. The courts can simply find that that law is unconstitutional facially (if it is specifically directed at an enumerated executive power) or as-applied (if it is a general law that sweeps in executive conduct that falls under an enumerated power). In other words, it’s not that the President is immune from criminal prosecution for violating a criminal statute, but instead Congress violated the separation of powers when passing the law and it therefore can’t be enforced because it is unconstitutional. In that situation, this would be a defense to the prosecution, with the burden being on the President to raise and prove the unconstitutionality of the law just like any other defendant. We don’t need to invent a new immunity to protect the President against Legislative excesses.
I'd agree that that would also be a valid way of accomplishing the same thing. Given the history of how we've handled things like civil immunity for the presidency before, it's at least consistent to call it an extension or clarification of existing practices, rather than something new.
Yeah, that’s fair - ‘new’ is probably not wholly accurate.
Yea, it's an interesting one. AFAIU, the delineated powers are basically command of the military and the power to pardon. I really don't see how a Crime can generally be applicable to either of those. It's not like "commanding the army" can just become a crime.
But regulating what the army can legally do ... seems like a very natural thing. I don't know if individuals of the military in the US can be responsible under ordinary law for anything. If so, then I don't see why that would extend to the president should they order something that's obviously a crime. If not, then that's that. And again, there are probably natural exceptions to carve out regarding the very nature of military action that would lead to preposterous inconsistencies if they could possible be made generally criminal ... where again, it seems to me that you don't need immunity ... it's just the nature of the power that is amenable to falling within the meaning of legislative regulation.
Beyond all of that though ... there's the opening line of Article II:
WTF is "the executive power"?! I'm sure there have been attempts in the US to give it some shape ... but I'd also wager it's been left somewhat nebulous too, involving elements quite distinct from whatever powers Congress/Law can confer. Does that count as an enumerated power?
Otherwise ... yea I'm with you. The "official acts" thing seems more than wonky to me ... seems downright expansive. Excluding military action and whatever "fuzzy" powers may be considered intrinsic ... I'd imagine most of the executive's powers come from legislative laws. So the body conferring power can't constrain it to "not doing something criminal"??!!
I've wondered since having a brief look at the decision that the SCOTUS is playing a game here ... where they do not want Trump's trials to affect the election and are hoping to clarify this decision and what "official" means at a later date after the election.
For the military thing, I think there's coverage for that. The constitution gives Congress the authority to govern the conduct of the military, as well as when it may be used. The president's "just" the commander, but they're bound by the same rules for the military that Congress made. I think the best case a rogue president could make there would be that they should be court martialed rather that tried in a civilian court, and I'm unsure if that's better.
Since Congress has authority over the conduct of the military, I can't actually think of a situation where "being commander" was the defining thing, and not their conduct as commander. Closest I got was some sort of negligence resulting in death, but that's derilection of duty and part of conduct.
I believe the executive power thing is essentially "control of the executive branch". I think that one is actually fairly well fleshed out since it's the leading source of disputes, since it's all about what the president can tell a part of the executive branch to do.
It would essentially be "the president is not criminally liable for firing the attorney general".
So yeah, I think the sane conclusion would be that the president is de facto immune to laws that currently don't exist, and likely never will that are insanely narrow in scope.
I unfortunately don't think the court is playing a game.
I think their slow handling of the case was partly avoiding claims of the courts influencing the election, and partly it just being complicated and unprecedented.
I think they were very clear that the other acts are basically anything the president does "as president", particularly since they ruled that it's okay for the president to ask the justice department about options for replacing electors, because the president gets to talk to the justice department.
I think it's also worth reiterating that this doesn't prevent the courts from preventing an action, or other checks against presidential actions, only the consequences the individual may face afterwards.
The president has the same authority to order the military to disband Congress as they did before, I just might be harder to sue them for it.
Cheers!