1a. While true that not every Official Act has absolute immunity, "requesting DOJ investigations for improper ends" or that are a "sham" explicitly is, as "requesting DOJ investigations" falls within the President's core and exclusive sphere of constitutional power and SCOTUS ruled that those are part of the President's absolute immunity.
1b. Certain facts are, when you are discussing presumptive immunity within the "outer periphery" of the President's power. If it's within his core constitutional duties now he would have absolute immunity and the facts are irrelevant. It's true, I cannot say that any possible order or request ever to the DOJ would be found to be immune (who knows how SCOTUS will rule, or if they'll ever even create a test) - but we do know that requesting DOJ Investigations to improper ends carries absolute immunity for the President as they explicitly ruled on that point.
Entirely true, the agents (but not the President, in most instances now -even if you get the President under state law, your evidence will be very hamstrung) could in theory be affected under state law one way or another.
- Also true, the agents acting for an immune President might be open to civil suits. We don't yet know how that will work in relation to Presidential immunity and the exclusion of evidence, as SCOTUS will need to rule on that at some point.
I mean sure. I'm just relaying what they ruled as the constitutional law of the land on Monday. Don't convince me, go convince SCOTUS. What I quoted is their ruling, and why they granted Trump absolute immunity.
"The indictment alleges that as part of their conspiracy to overturn the legitimate results of the 2020 presidential election, Trump and his co-conspirators attempted to leverage the Justice Department’s power and authority to convince certain States to replacetheir legitimate electors with Trump’s fraudulent slates of electors.According to the indictment, Trump met with the Acting Attorney General and other senior Justice Department and White House officials to discuss investigating purported election fraud and sending a letter from the Department to those States regarding such fraud. The indictment further alleges that after the Acting Attorney General resisted Trump’s requests, Trump repeatedly threatened to replace him."
You can say they are not official duties, SCOTUS explicitly ruled they are and that the President has absolute immunity for such acts.
I mean, you would lose unfortunately. SCOTUS already ruled the President has absolute immunity for that, as it relates to the DOJ.
"The Government does not dispute that the indictment’s allegations regarding the Justice Department involve Trump’s use of official power. The allegations in fact plainly implicate Trump’s “conclusive and preclusive” authority. The Executive Branch has “exclusive au- thority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. Nixon, 418 U. S., at 693. And the President’s “management of the Ex- ecutive Branch” requires him to have “unrestricted power to remove the most important of his subordinates”—such as the Attorney Gen- eral—“in their most important duties.” Fitzgerald, 457 U. S., at 750. The indictment’s allegations that the requested investigations were shams or proposed for an improper purpose do not divest the Presidentof exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. Because the President cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials. Pp. 19–21"
there’s already impeachment.
I think the broad concern is that there's now only impeachment - at best. It's true I'm certainly not a constitutional scholar of any shade, I'd be interested to read papers on the scholars arguing that corrupt use of the DOJ is a constitutionally protected and properly immune act of the President.
No the president still has to abide by the powers that the constitution gives him
While this is true, the SCOTUS has determined that, at a minimum, the President requesting DOJ investigations for "improper ends" does, in fact, carry absolute immunity. So SCOTUS' interpretation is that "powers the Constitution gives him" is just "asking DOJ to investigate things" - and that's it, that's his power and he is absolutely immune within it even if it is used for corrupt ends because the only question is "can he do the underlying act regardless of content or intent". Whether they have a different standard for the military we don't know.
On the face of it, the President now has absolute criminal immunity to do the following things:
1) Request the DOJ investigate a political opponent for corrupt ends.
2) Fire any DOJ official who does not want to participate
3) Pardon any who do, pre-emptively. Under this SC decision, this pardon is almost definitely immune from any court or congressional oversight of any kind.
4) Repeat, and open as many corrupt DOJ investigations as desired. If you do end up in a criminal trial, none of your DOJ/advisor conversations can be used as evidence.
5) Continue until Congress impeaches. Maybe.
They are but the Republic should not ever be put into the position of "the President has presumptive immunity for making illegal military orders and it's on the soldiers to refuse," especially when the soliders aren't attorneys and the President also has absolute power to issue pardons.
Without going too deep into it at the moment (check my comment history if you want my more thorough comments on the decision), the actual answer is "maybe". Setting aside that we don't know how to separate official from unofficial at the moment, the Justices said that the President has absolute immunity for anything within his exclusive domain of constitutional authority which would include being Commander in Chief. So in theory, yes, he could. But we don't have any clear guidelines - we DO know that he DOES have absolute immunity with regards to requesting DOJ investigations to pursue "improper ends". And even if he isn't, you'd have to somehow cut through his immunity in getting any of his conversations with officials/the military admitted into the trial.
People are making a mountain out of a flat plain here.
I'm not really sure that's true (or the legal scholars comment -granted maybe extremely conservative ones did). I think the idea that the President has some degree of immunity was probably inevitable and was already an assumption of the system in some ways. But there's a lot of parts of this decision that I don't think are a "Flat plain". This ruling said in the minutiae:
1) The President has absolute immunity against criminal charges that might result from requesting DOJ investigations to "improper ends" or "Shams". He is allowed to request DOJ investigations - and that alone determines constitutionality and provides immunity and nothing about the investigations themselves.
2) That in any criminal proceeding that can be brought, such as bribery, you are not allowed to use Presidential discussions with their "advisors" as evidence.
3) That neither congress nor the courts have any right to guess at the "propriety" of the President's actions within his sole Constitutional domain such as, for example, Pardons (or requesting DOJ investigations). Which is a huge weakening of checks and balances.
Those are all extremely far-reaching decisions and very worrying. If a President tells the Attorney General "I want you to investigate and arrest my political opponent," they have absolute criminal immunity with regards to that request. the only remedy is impeachment. Saying that it's flat out constitutional and impenetrably criminally immune to misuse the DOJ is very concerning. And that, in any situation where maybe it (or some other charge) isn't, those conversations are so immune that neither Congress or the courts are allowed to "Second guess" the PResident so any such conversations cannot be used as evidence in any criminal proceeding.
Pardons are another example. If the President solicits a private hitman to assassinate a political rival, and arranges a pardon ahead of time, you could not enter any of the pardon discussions or conversations with advisors "probing" the act as evidence at the hearing. This was not the status quo 24ish hours ago, as we saw with Trump's criminal proceedings in NY which now have to be re-reviewed to determine if any evidence used was covered by Presidential immunity for state level crimes.
I find the determinations on evidence extremely chilling but even moreso that they ruled the following:
1) The President has absolute authority over the prosecutorial and investigative body functions of the DOJ
2) He cannot be divested of these powers.
3) Therefore, even if an investigation he orders is for "improper ends" or "a farce" it is constitutional and thus absolutely immune
Just... the idea that the President has absolute criminal immunity for ordering any DOJ investigation is extremely terrifying. And you cannot question the President's use of pardons. The minutiae of this decision has some really horrifying reasoning and conclusions.
He can, however, request DOJ investigations that are "Shams" or for "improper reasons", and has absolute and total immunity for the opening of such investigations and his communications with the DOJ about those investigations could not be used in a criminal trial, should one occur.
1) The actual acts of the crimes (signing checks, paying cohen, etc) happened after Jan 20, 2017. I believe in another comment they mention the first check he cut to Cohen was cut Jan 21st, 2017. So he was President at the time of the alleged crimes.
2) Because of this, and because SCOTUS has just said that official acts can't be used as evidence even for Unofficial acts, there must be, at minimum, a determination on what evidence is/is not covered by Presidential immunity. The evidence is the main reason this is happening since SCOTUS plucked that out.
Almost certainly not, unless you can prove that using such evidence poses "no danger" to the President's core authority and functions. SCOTUS ruled that official acts (incl. conversations with advisors and the DOJ) are inadmissible as evidence.
This year's round of trivial prosecutions and lawsuits against a former president is a perfect illustration of why the constitution is written this way.
Are they? Do you think it's a concerning parts of the decision is where they determine that the President has absolute immunity in requesting Justice Department investigations, even if those investigations are a "Sham" or directed for "improper purposes."
He probably wouldn't have before the SCOTUS ruling, and now the answer is almost definitely "never", for any President.
Because the vast majority of people are going off of the headlines of rage bait articles and haven't actually read the ruling.
The ruling has plenty of deeply concerning portions. The majority rules that because the President has "exclusive authority and absolute discretion" in opening DOJ investigations, then the President has absolute immunity to personal liability for such investigations - even if they are shams or proposed for "improper purposes". And, furthermore, that any conversations with the DOJ (or advisors, whatever those are) on such issues are absolutely immune.
OTOH, planning and launching a multi-stage Insurrection, as well stealing and selling an eye-popping number of classified documents is treason, and treason will NEVER be ruled as an Official act.
It's hard to say, because SCOTUS already ruled that proposing the DOJ open investigations for improper purposes is covered by absolute immunity. So I wouldn't be so sure none of those things can be ruled as Unofficial Acts (and, even if they are, you can't use anything that IS an Official Act in prosecuting the Unofficial ones)
the individuals who carry out those orders are not necessarily immune.
But what happens (new SCOTUS decision aside) if or when a President makes an illegal order and pardons all the conspirators, and Congress doesn't impeach? It's clearly an Official Act in the sphere of absolute immunity, and its intent cannot be questioned in the courts or by congress, nor can any conversations about the pardon between the President and his advisors be entered into evidence.
In short, there are two major reasons (at least IMHO, without getting into the weeds).
1) Because SCOTUS has ruled that POTUS has absolute immunity over any conversations with the DOJ because POTUS has the "exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials" even if such functions are used for a "sham" or an "improper" purpose.
and
2) Because the intent behind official acts (which, notably, rather clearly involves Pardons) is beyond the review of any body - congress or the courts. This means that corrupt actions by the POTUS are identical to benign ones, constitutionally.
Which combines to mean that, should the President choose to ignore the law (at least through the DOJ), then the only recourse is impeachment. You have a Constitutional right to a fair trial, but if the President orders the DOJ to imprison you without due process you'll probably get released in time but:
A) The President can't be held personally criminally liable for his orders, even if the orders are illegal or abuse the functions of the DOJ for "improper" purposes.
B) Even if he can, you can't submit any of his DOJ conversations or conversations with his advisors or other official acts as evidence, making a successful prosecution probably impossible.
C) If he pre-emptively pardons all of his criminal co-conspirators then the Federal government can't do much except let you go. And there is now, Constitutionally, no recourse to defend the nation against such acts other than impeachment as SCOTUS said the courts cannot review or second guess Official Acts, nor can Congress interfere.
And if he wasn't impeached, nothing really stops him from doing it again, as many times as it takes until he is impeached or SCOTUS invents a new rule or calls take backsies in Trump v. USA.
Which I just can't believe because they are arguing that is it okay for the president (as an official act) to provide fake evidence that he won the election.
The line in SCOTUS decision that says that "improper orders to the Justice Department" have absolute immunity is extremely alarming.
It's not just that a criminal charge would stop a coup - it's that, if a coup is obviously unlawful, then opponents can legally and morally marshal forces to their cause to stop the coup, and have legal protection in the aftermath. If you say "the President can shoot anyone in the White House he wants," and someone tries to get some federal authority on their side or another to storm inside and stop it that federal authority would say "sorry, he can do that."
Edit: I think one of the dissents points out the definition of "official act" is even more broad than what Trump's team was arguing for since my understanding is that they assumed an impeached president could be prosecuted, which is not the opinion of the majority decision. It's hard to see how they could've done a broader immunity than they did.
I found it eyebrow raising when in the opinion, the majority calls Trump's immunity "Expansive" and theirs "limited", when theirs is much more expansive than what Trump had requested.
This isn't a gotcha - regardless of what one thinks about Obama specifically, the answer isn't "make every President forever criminally unprosecutable for that act".
OPINION TIME
Raw facts above, so you can reach your own conclusion without me if you'd like. Okay, so, that's some of the notable elements of the decision pulled out to answer your question. I highlighted so many elements because I think to understand the "freaking out" you need to understand holistically. First, of course, are the people who think the President should not have any immunity, which this decision clearly - and very broadly - grants to the President. As he has presumptive immunity that must be defeated before any trial begins to the "outer perimeter" of his duties, wherever that might be. Now, nearly anything the President does (if criminal charges are sought) must first have a trial to determine if it is a totally immune "Official Act" or an "unofficial act". If it's an Official Act, he is probably full immune and the prosecution halts there. The standard they appear to be hinting at here is that in determining if you can prosecute the President for something, you will need to prove that charging the President on that issue does not "intrude" on the "authority and functions" of the executive. Intent, impact, etc, are irrelevant.
Can we determine official/unofficial? Well, based on the above, you can absolutely pursue criminal charges on the unofficial acts. However, when trying to determine whether it's official/unofficial intent and potential criminality are irrelevant (and you cannot even review intent, nearly ever). There is no distinction between corrupt Presidential actions, and benign/constiutional. Neither congress nor the courts, in fact, can even question the President's decision making on official acts which will presumably extend to the military as well but that's conjecture.
What happens if those hurdles ARE cleared and we get a criminal trial? Probably looks very similar to the criminal trials we've been seeing. There's not a lot of special new stuff for those. HOWEVER, any "Official Acts" could not be admitted as evidence in that trial. And "Official Acts" includes conversations with advisors and (at least) certain executive branch functions. Remember that SCOTUS ruled that he has absolute immunity for conversations with the Justice Department, even if they are for improper purposes. So you likely could not, in this hypothetical criminal trial, include a transcript of the President and Attorney General conspiring to imprison someone as that conversation has absolute immunity since "talking to the justice department" is an unassailable power of the Presidency, regardless of content or intent.
There are some implications here that Sotomayor brings up, when you combine everything together. Let us say that the President, in the State of the Union, looks at Congress and says, "I have good news, here in the State of the Union. I have accepted bribes. Many bribes. I am a rich man from all the bribes I have taken, and our Republic is gravely wounded for it. I took big bribes. Little bribes. Bribes with stocks and cash and IOUs and everything in between. I arranged these bribes through corrupt investigations with the DOJ, everyone whom I fired that would no cooperate with me. In exchange for each bribe I also provided a complimentary pardon for the bribe and anything else they requested. It's a great day for the Union." What happens here? Well we can't say for sure but:
1) Giving the SOU is a duty of the President, and is probably totally immune under this SCOTUS decision. And, even if it is only presumptively immune, you have to prove that prosecuting the President for his SOU comments poses "no ‘dangers of intrusion on the authority and functions of the Executive Branch.". Given that the SOU is part of the Constitution, it may very well be an Official Act since prosecuting it would pose at least some danger to the "functions" of the executive.
2) If it is an Official, Act, the President would thus be immune to any prosecution for his comments.
3) If it is an Official Act, you also probably cannot start an investigation on the basis of his comments as SCOTUS explains that you cannot "second guess" the "propriety" of the President's comments.
4) If a later bribery charge is separately pursued, you probably could not introduce this speech as evidence, or use it as the basis for any legal proceedings.
5) If this speech itself is found to be an Unofficial Act, you could not use any DOJ conversations hinted as as evidence in the prosecution of these bribes.
6) You also probably could not interview or subpoena any advisors or executive branch staff who are suspected of participating, at least in the President's trial.
7) You could not examine the President's pardons to find any of the bribes, as the Pardons would unquestionably be Official Acts and thus the intention behind any given pardon is beyond the court's ability to review.
So you could still maybe prosecute the President for those alleged bribes, as long as you aren't relying on any "Official Acts", evidence, or testimony from the executive branch. And even in a straight 1:1 clear "President asked for a bribe" you can't subpoena or seek evidence from any advisors or question if there was corrupt intent in <doing bribed thing>. So while he can technically be prosecuted, under this ruling, it's very, very hard to not only find something the President ISN'T immune for that isn't incredibly petty like a DUI, but even if you find one, it's much, much harder to prove your case in court.
Ultimately, the idea that nothing official the President does should ever be subject to oversight from anyone is extremely concerning. Pardons are a major area, as now corrupt pardons are almost definitely 100% immune.
Hopefully that helps illustrate things on why people are freaking out about this on the ruling's face. Time will tell how SCOTUS actually sees things when they propose actual guidelines.
Sort of.
To your first question, the President's immunity is broader than that. You're describing something like fishing expeditions, but the SC's ruling is that those conversations are not, under more or less any circumstances, allowed to be admitted to a court of law even for unofficial acts that the President can be prosecuted for. So if, in planning a pardon for someone he also was planning an private assassination attached to that pardon, he has absolute criminal immunity to that assassination planning and additionally you can't introduce those pardon sessions into the evidence no matter how relevant.
If you've run through the new half dozen hoops, that's more or less true. But as Sotomayor points out, part of the problem with this ruling is that even when you DO find "unofficial acts" he can be prosecuted for, the prosecution is terribly hamstringed. Let's take your example - or the majority's basically layup example, and enter a world where we try to prosecute a sitting President for bribery, in a bribery scheme where the President directly and personally requests a bribe in an incontestably clear way.
Step 1: Assuming he doesn't have absolute immunity somehow, you need to prove that he does not have immunity for the core allegations and/or pierce his presumed immunity.
Step 2: If you achieve step 1, the trial starts.
Step 3: Argue that he doesn't have presumptive immunity and then successfully pierce presumptive immunity for the acts related to your evidence. You can now introduce the evidence that he solicited a bribe.
Step 4: Argue that he doesn't have presumptive immunity and then successfully pierce presumptive immunity for the acts related to your evidence You can now introduce the evidence that money was given.
Step 5: Argue that he doesn't have presumptive immunity and then successfully pierce presumptive immunity for the acts related to your evidence You can now introduce the evidence that this money was for a bribe
Step 6: You ignore anything related to his discussions on actually issuing the pardon.
Step 7: You show that he issued a pardon. There is no discussion or evidence allowed to be discussed how or why he issued this Pardon, nor his notes on issuing it, nor his conversations with "advisors". so in terms of the actual act solicited by the bribe, you can't really establish mens rea unless you can clearly due so with your other evidence that may/may not have been allowed.
Step 8: If you have cleared all of the steps, you might perhaps get your guilty verdict, assuming Presidential immunity did not make any of your evidence inadmissible along the way.
So, technically, you can prosecute a President for issuing a bribe. Actually making that stick and holding the President accountable? Very, very hard.
And this example assumes again, the absolute clearest and most uncontestable bribery charge imaginable, before we even consider the President says "no I issued it for another reason." If the President adds even one degree of separation he's probably de facto immune with the prosecutorial handicaps.
For example: Someone approaches one of the President's advisors and asks him to convey $10,000 to secure a pardon. The advisor meets with the President and they discuss if the President should accept $10,000 for a bribe. They decide he should, the President issues it. Someone finds out and opens a criminal investigation into the President (and it's allowed to go to trial).
Well, the bribe was commissioned and accepted through his advisors, and those conversations are absolutely immune and cannot be used as evidence. So your trial ends up being:
Well, it doesn't legally appear that the Advisor spoke with the President about this bribe, that the President was ever aware of it, that the President knew about the money, and he can make pardons so you can't inquire into why he issued the pardon. I guess he didn't do anything wrong.
The evidentiary rules buried in this ruling are some of the wackiest and go a long way to making the President de facto immune to most conceivable charges, even once you manage to get something declared a prosecutable "unofficial act".
May someone explain the new Supreme Court ruling for me, and what's up with the freaking out?
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