Trump Arrest Watch

[Maphistos_Sidekick]

We accordingly remand to the District Court to determine in the first instance—with the benefit of briefing we lack—whether Trump’s conduct in this area qualifies as official or unofficial.

[twig93]

Ah, you edited your post after I responded. But yeah, that’s about what I expected. His claim of blanket immunity was ridiculous. Seems closer to the qualified immunity enjoyed by police. Which is abused but in some form is probably appropriate (more of a reasonable person standard should be applied).

[Maphistos_Sidekick]

SCOTUS blog junkies are making particular note that the dissents remark (e.g.) “I dissent” rather than the traditional “I respectfully dissent.”

[SredniVashtar]

I think you mean:

With fear for our democracy, I dissent.

/mic drop.

[Maphistos_Sidekick]

Thomas’ concurring opinion also wants the lower courts to address the question of whether the use of the Special Counsel mechanic is kosher.

[Maphistos_Sidekick]

Barrett’s partial concurrence points out that the majority opinion appears to say that evidence associated with a President’s official acts may not be introduced in a prosecution of a President for non-official acts.

[Maphistos_Sidekick]

The majority opinion also says that immunity for official acts “extends to the outer perimeter of the President’s official responsibilities, so long as they are not manifestly or palpably beyond his authority” and that courts may not inquire about the President’s motives when establishing what is or isn’t official conduct.

The majority opinion also has a footnote strongly suggesting the lower court consider whether the federal January 6th case can proceed in light of last week’s January 6th ruling.

[Maphistos_Sidekick]

From Sotomayor’s dissent:

The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.

Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.

With fear for our democracy, I dissent.

In an ivory tower environment, you could argue that her logic is flawed, as Congress has the power to prosecute for criminal official acts. However, that would presume that impeachment is a viable mechanic. It overlooks the possibility of a politically paralyzed Congress, or the possibility that a material portion of Congress might be complicit in the crime.

[Maphistos_Sidekick]

Jackson’s dissent is worth reading, as it does a good job of summarizing both the majority opinion and Sotomayor’s dissent and translating them into potential real-world implications.

Her dissent concludes:

In short, America has traditionally relied on the law to keep its Presidents in line. Starting today, however, Americans must rely on the courts to determine when (if at all) the criminal laws that their representatives have enacted to promote individual and collective security will operate as speedbumps to Presidential action or reaction. Once self-regulating, the Rule of Law now becomes the rule of judges, with courts pronouncing which crimes committed by a President have to be let go and which can be redressed as impermissible. So, ultimately, this Court itself will decide whether the law will be any barrier to whatever course of criminality emanates from the Oval Office in the future. The potential for great harm to American institutions and Americans themselves is obvious.

---

The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm. I fear that they are wrong. But, for all our sakes, I hope that they are right.

In the meantime, because the risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms, I dissent.

[Maphistos_Sidekick]

tl;dr of the past few days SCOTUS-wise:

• The President can do what they damned well please while in office, as long as they can reasonably argue that it’s part of their official duties.
• The rest of the Executive branch is neutered.
• Congress has to be perfect when writing laws.
• More power has been reserved for the courts.

[Maphistos_Sidekick]

I suppose the “good” news is that Darth Biden is now free to assassinate Trump under the premise that doing so is necessary to protect the Constitution, and that is one of the official duties of President.

[dr_t_non-fan]

Probably needs to declare martial law, dissolve Congress and the Supreme Court.
Because that is what Trump will do (imo).

[PatientZombie]

@Maphistos_Sidekick

and they don’t go into whether running for reelection is an official act

Running for re-election is not an official act, as you don’t have to be a president to do it.

Call a state to unofficially challenge the result (find me votes, as opposed to make sure it is accurate) is not an official act

Speeches whipping people into a frenzy, due to "unproven voter fraud: is not an official act

The only official act, was the non-act, was declining to “call off” the rioters.

[now_samantha]

Ruling specifically eliminates independence of the DOJ, says President is immune for ordering DOJ to make specific investigations. So it is now explicitly legal to sick the FBI on your political enemies.

Ruling also exempts a bunch of potential evidence even for acts that themselves do not have immunity. Would apparently have made Nixon’s tapes inadmissible as evidence in a criminal trial.

[Maphistos_Sidekick]

@PatientZombie

Call a state to unofficially challenge the result (find me votes, as opposed to make sure it is accurate) is not an official act

I agree. However:

• One of the defenses raised by Team Trump is that Trump’s actions in the run-up to the insurrection were his acting to ensure the proper execution of the November elections, something that is plausibly in-scope for the use of Executive authority.

• The prosecution had been arguing that that claim was moot because Trump’s primary motivation was seeking re-election. Seeking re-election is NOT an official act.

• SCOTUS has just said that immunity must be granted for a broad interpretation of official duties of the President, and that questioning the President’s motivations would be a breach of the Separation of Powers under the Constitution.

• Therefore, Team Trump has an easier time making the case that Trump has immunity for January 6, by virtue of the prosecution being unable to point out that his motivations undermine that defense.

And, of course, all that is probably moot for the Federal January 6 case because one of the rulings last week already mostly-mooted that case.

[Indy]

I noticed that, too. They just told Trump that he can “weaponize” the DOJ as much and as often as he wants.

[EimonGnome]

So I guess Biden could remove the secret service protection for the Trump family. Cost cutting in order to comply with spending limits laid down by Congress. And we aren’t allowed to infer a motive, cuz…separation of powers.

Way cool.

[Maphistos_Sidekick]

@dr_t_non-fan

Probably needs to declare martial law, dissolve Congress and the Supreme Court.
Because that is what Trump will do (imo).

Might as well change the flag while he’s at it:

Meanwhile, as I look at Canadian real estate…it seems odd for there to be a house in my price range on PEI that has an in-ground pool. I wonder what’s wrong with it (besides my suspicion that broadband internet would require Starlink).

[The_President]

Does the POTUS have official jurisdiction in state run elections for president?

[Maphistos_Sidekick]

I can see Team Trump arguing that POTUS has that authority, as it’s an election for a federal office.