Supreme Court rules ex-presidents have broad immunity

The ruling states that the President is immune from prosecution while exercising official duties of the office of President but can be investigated by a special counsel that is appointed by an act of Congress, and if successfully impeached and convicted can then be charged with said crimes. “Unofficial” acts are not protected by this immunity but a special counsel is still required to be appointed by an act of Congress to investigate and then bring forward charges.

Out of context this is quite reasonable and level headed. In context of the hyper partisan landscape US politics are today, doesn’t seem likely without a supermajority opposition to be able to bring charges against a president, for official or unofficial acts that are crimes.

This opens a can of worms - no one can today imagine what that means, with a willy nilly fluffy definition of official act.

For example, from my understanding this means that Nixon's tapes could never have been used in any form in a criminal trial regarding Nixon's actions.

In today's political environment I don't see an impeachment ever succeeding unless the opposing party has a super-majority in the US Senate.

But AFTER the end of their (last) term why not be held accountable for their actions?

The opposite holding, where they are liable for everything, would be untenable. Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans? It seems like that world would hamstring the president far too much.

I don’t know if they struck the right balance here (and we not know until the next time it comes up), but at least we have slightly more clarity.

Also I think we should all be reminded that there is separation of powers for a reason. The President is ultimately largely beholden to Congress. The government cannot sink into a dictatorship without the explicit approval of the majority of Congress. It is Congress' duty to remove Presidents from office that it feels are a danger to the country.

All these checks and balances still exist and will still be enforced. The President can not unilaterally go off the rails as many of these extreme hypotheticals seem to be implying.

With fear for our democracy, I dissent."

and

“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.” “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.”

- Justice Sotomayor

https://news.ycombinator.com/item?id=40529062#40529905

Sotomayor has channeled her inner-Scalia in her dissent, and she hit the nail on the head. This is now kingship, this is de-facto sovereign immunity.

This ruling was not constitutionally purposivist, it was not textualist, it was not originalist. It goes against the very founding of America in the contexts of its original conception and revolution. This is BAD.

What a sad shameless age. It's embarrassing as hell having these useless Federalist Society shills tearing down the respectability of this nation. Utterly brazen. How 40%-50% of the population can be so on board with this, be so excited & happy to see such endless Calvinball for their team is beyond imagining. It feels like liberals always are hungry for more or different from our own, will criticize our representatives endlessly, but there's an unmatched purity of boosterism for any win any win at all no matter what that's totally taken half the country, that there's no system of moderation or self assessment left.

Sotomayor's scathing dissent sums up my concerns on the matter. Even for Barrett, a conservative, the majority opinion was a bridge too far: even bribery now enjoys absolute immunity.

Rep. Adam Schiff gave the following interpretation: "Effectively giving a president immunity for any crimes committed while in office as long as that president can plausibly claim the action was taken in some form of official capacity. It must now be presumed that the president, as king, is immune from accountability."

https://www.militaryjusticecenter.com/blog/2022/03/can-you-r...

Strange that only now, with a super majority of conservatives and a 'conservative' former president facing insurrection charges, that such a ruling should come down.

And all this after McConnell assured us that impeachment wasn't appropriate for a 'criminal' matter like January 6.

There have been multiple awful titles of for this ruling, yours was exactly correct.

During tenure, he can only be impeached for anti-constitutional acts, and the only punishment if found guilty is removal from office.

All in all, it sounds quite similar to this SCOTUS ruling, but of course, the consequences for the world are mitigated by the fact that globally, our president is a very, very small player.

In all our legislative executive and judicial war, there seems to be less and less reason for restraint, for avoiding constitutional crisis, and to grab power by whatever means so that the other side does not. This ruling by the Supreme Court, as many people are commenting on social media, creating Powers Biden too, and there seems little reason not for Biden to pack the court, for the Senate to go to majority rule and rid themselves of the filibuster.

If we keep pushing the boundaries we will fall, or we will reconfigure.

  Judgment in Cases of Impeachment shall not extend further than to removal from Office,

  [...]

  The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

This:

  "Impeachment for, and Conviction of"

  "Impeachment for and Conviction of"

  "Judgement in cases of Impeachment"

  "Conviction in cases of Impeachment"

Such would imply that presidents can be Impeached and Judged, and Convicted.

(Furthermore, it clear that the founders' intent was not to create an immune King.)

Impeachment process takes time, and in that window, the president can do whatever. POTUS can even mobilize the army (an official power) to block congress from meeting, since apparently the motive behind the use of official power doesn't matter. If they can't meet, how are they going to impeach.

The problem is what will democratic presidents do with this fundamental alteration of the three “equal” branches that now leaves Congress as the weakest link.

What will republican presidents do?

And of course, what would Trump do?

I think front and center is Stephen Miller’s desire to reverse that future demographic by either incarcerating or deporting anyone that isn’t white or even sympathetic to a white nationalist movement.

This is real people. And very frightening.

I find it particularly concerning regarding the military. The President is Commander in Chief, and thus any orders he gives or attempts to give to the military would be undeniably official acts. This was even brought up in oral arguments, where it was asked of Trump's council "if the President ordered Seal Team 6 to assassinate a political rival, would that be considered an official act?" I find it absolutely terrifying that this possibility was brought up, and any mention of the military is conspicuously absent from the majority decision, even in passing (though Sotomayor explicitly brings it up in her dissent).

The most concerning part is how this decision is being made entirely on constitutional grounds. At least in the case of Rowe v Wade being overturned, we have the possible remedy of Congress passing a law enshrining the right to an abortion. But here, there is no legislation Congress could pass to create criminal liability for the President, no executive action. The only option would be a constitutional amendment.

(I'd like to think that there's no way it's an "official act" of a president, but again, IANAL.)

Until the system can be reformed to deter and slow such radical acts, there would be no hope of stability of the United States.

My out-of-my-ass fix is that each Justice is on an 18-year term. Every two years one Justice is replaced. Two per Presidential term.

Makes it legitimately fair. Elect a President, get two Justices. None of this "one corrupt game-show host accidentally gets to appoint half the Court" horseshit.

  > The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

  > A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. ... But it is not possible to give to each department an equal power of self-defense. ...The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. 

I think not enough people have read the Federalist papers. They are an important context to why the US was founded and what problems it was trying to solve. Littered throughout them are discussions of how power creeps and how functions couple. How government can do great good but at the same time great harm. They reiterate the notion that liberty is hard work and many of the writers fear things like parties as they are not only concentrations of power but umbrellas to remove thinking. You can see them wrestle with ideas and that they know they aren't getting them right, but instead try to set a framework that can course correct to adapt to the unknown unknowns.

But however you read them, I think you can and will read that such a conclusion is precisely the thing they were trying to stop. There is no ambiguity in this. They were fighting against monarchs who have written into the law that they are above the law. At least as it pertains to others. And so that's what that phrase means "no one is above the law" that not so literally (because making a law that makes special cases for you would not technically make you "above" the law, but part of it), but rather that the laws apply equally to all peoples and entities. That there are no special cases because there are no "to big to fail" and "too important to prosecute". Because the belief is that if it is wrong for one man to commit an act, then it is wrong for any man to commit such an act.

[0] Federalist 51: https://avalon.law.yale.edu/18th_century/fed51.asp

- Actions within the President's conclusive and preclusive constitutional authority: Absolute immunity, in accordance with constitutional separation of powers.

- Other actions done within an official capacity: Presumptive (though not full) immunity, to "to safe-guard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution."

- Unofficial actions: No immunity.

Who is the arbiter of whether an action is official or unofficial? The courts, according to the ruling: "The Court accordingly remands to the District Court to determine in the first instance whether Trump’s conduct in this area qualifies as official or unofficial." In this case, a very liberal judge appointed by Obama.

One may disagree with the ruling, but it does not, as Sotomayor (who recently has been making more public and political appearances than is appropriate for someone of her position [2]) states, give the president the ability to drone strike his political opponent.

[1] https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

[2] https://www.cnn.com/2024/05/24/politics/sotomayor-crying-sup...

> Unable to muster any meaningful textual or historical support, the principal dissent suggests that there is an “established understanding” that “former Presidents are answerable to the criminal law for their official acts.” Post, at 9. Conspicuously absent is mention of the fact that since the founding, no President has ever faced criminal charges—let alone for his conduct in office. And accordingly no court has ever been faced with the question of a President’s immunity from prosecution. All that our Nation’s practice establishes on the subject is silence.

Literally on the next page, here's Roberts arguing that though something has never happened (criminal prosecution of a former president) it is very likely to happen:

> The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next. For instance, Section 371—which has been charged in this case—is a broadly worded criminal statute that can cover “ ‘any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.’ ” United States v. Johnson, 383 U. S. 169, 172 (1966) (quoting Haas v. Henkel, 216 U. S. 462, 479 (1910)). Virtually every President is criticized for insufficiently enforcing some aspect of federal law (such as drug, gun, immigration, or environmental laws). An enterprising prosecutor in a new administration may assert that a previous President violated that broad statute. Without immunity, such types of prosecutions of ex-Presidents could quickly become routine. The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid.

Just like, full on embarrassing. These guys need better clerks or something.

In the worst case they might have to resign before being impeached but at that point they are permanently immune.

Germany 1933.

The movie “Vice” explains well what this is about.

It’s was originally imploded by President George W Bush.

https://youtu.be/_UPvTdDB-h0

—-

SCOTUS essentially ruled in favor of this theory.

Well yes. And since the Supreme Court just clarified the law... Isn't THIS White House the first that might use what was until now a misunderstanding?

It all falls apart and gets too complicated to regulate when the assumption is that you can't trust the person in office.

- https://www.lawandchaospod.com/p/ep-43-well-so-much-for-the-...

- (non-paywall link) https://podcasts.apple.com/us/podcast/ep-43-well-so-much-for...

Hoboy, I hope there's not another round of Trump...

No one and nothing should be above the law, even temporarily, period. That just opens up so many cans of worms.

Is it even possible for the President to break the law? What would that look like?

A president's internal planning and discussions with his team are are at least granted "presumed" immunity unless the prosecutor can establish that the act in question fell outside of the office. So for the President pressuring Pence to uncertify the election results, prosecutors would need to make a case that it was outside of his power to do so - the reasoning behind it is largely irrelevant.

When it comes to interactions with external groups - be it local election officials or even the press/media - prosecutors need to establish whether the president was acting on an official basis or an unofficial basis. (And they are clear that the president acting on behalf of his party or his campaign would be unofficial).

> "The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts."

My reading of the decision is that of the four counts against Trump, three can proceed so long as prosecutors can make a case the actions were not official acts.

Starting on page 44 of the opinion, Thomas makes some very good points.

    I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure. If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President. 
    
    No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country. And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes. If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.
    
    ...
    
    Even if the Special Counsel has a valid office, questions remain as to whether the Attorney General filled that office in compliance with the Appointments Clause. For example, it must be determined whether the Special Counsel is a principal or inferior officer. If the former, his appointment is invalid because the Special Counsel was not nominated by the President and confirmed by the Senate, as principal officers must be. Art. II, §2, cl. 2. Even if he is an inferior officer, the Attorney General could appoint him without Presidential nomination and senatorial confirmation only if “Congress . . . by law vest[ed] the Appointment” in the Attorney General as a “Hea[d] of Department.” Ibid. So, the Special Counsel’s appointment is invalid unless a statute created the Special Counsel’s office and gave the Attorney General the power to fill it “by Law.” 
    
    Whether the Special Counsel’s office was “established by Law” is not a trifling technicality. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office. Given that the Special Counsel purports to wield the Executive Branch’s power to prosecute, the consequences are weighty. Our Constitution’s separation of powers, including its separation of the powers to create and filled offices, is “the absolutely central guarantee of a just Government” and the liberty that it secures for us all. Morrison, 487 U. S., at 697 (Scalia, J., dissenting). There is no prosecution that can justify imperiling it.

The same actions committed by two different presidents could vary hugely in their motive - one might be legitimately concerned about voter fraud and the other trying to interfere maliciously with election results.

Admittedly the bar would be high to prove malicious intent (eg. acting out of self interest rather than in the interests of the office/country) but that still seems better than just saying that a given action, regardless of motive, is covered by immunity.

I would consider this an extreme knee jerk take, but it's Sotomayor saying it.

https://x.com/mikedebonis/status/1807787300375445993

The President shouldn't have the legal authority to conduct any drone strikes without a declaration of war from Congress. We've been ignoring the Constitution for a very long time.

Indeed, the concept of immunity is recognized in the American constitution for legislators in a limited way, so this isn't an oversight by the framers corrected by Robert's conservative majority, rather the lack of immunity for the executive is a feature and not a bug of our constitution, and all republican forms of government.

Ironically the American president now has more power than the King of England, George the III, at the time of the American independence. King George had to follow the laws of Parliament, as did all Kings of England since the passage of Magna Carta some 500+ years prior.

As of today our President no longer has to obey the Constitution or the law so long as the act is deemed "official" by the conservative majority.

> 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.

Chilling words.

Basically Kavanaugh did what everyone said he would and he overturned US v Nixon even though he lied about it during his confirmation even though before he argued repeatedly it was a bad decision. So either he lied or he miraculously changed his beliefs for the duration of the Senate hearing.

https://www.peoplefor.org/press-releases/fact-check-kavanaug...

   https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

> And he is entitled to at least presumptive immunity from prosecution for all his official acts.

> Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial

> The Constitution does not tolerate such impediments to “the effective functioning of government” [as when] the possibility of an extended proceeding alone may render [the President] “unduly cautious in the discharge of his official duties.”

> The immunity the Court has recognized therefore extends to the “outer perimeter” of the President’s official responsibilities, covering actions so long as they are “not manifestly or palpably beyond [his] authority.”

> 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

> Enduring separation of powers principles guide our decision in this case

Supreme Court history has no broader grant of immunity based on principles less definitive.

Then only extremely socially minded people would dare to do the job.

There was a similar sci fi story I read. At the end of a war the rule was that all allied ( not enemy ) generals would be executed. The idea was that war was such a horrible concept that to lead one would require extreme sacrifice and social consciousness on the part of the leaders. War was legal and to be fought without limit however on conclusion all leaders would be put to death. I don't remember the author or the story name.

I propose the Supreme Court be reconstituted such that for each case a panel of judges from the appellate courts is chosen by lot. They hear that case, write their opinion, and then go back to that work. New case, new lot.

Having a permanent bench of judicial oligarchs made sense before telecommunication. It doesn’t anymore. Every ancient democracy used randomness to control corruption. I think it’s time we took a lesson from them.

(Note: this could be done by statute. How the supreme Court is constituted is entirely left to Congress.)

[1] https://constitution.congress.gov/constitution/article-3/

> In a ruling on the last day before the Supreme Court’s summer recess, and just over two months after the oral argument, a majority of the court rejected the D.C. Circuit’s reasoning. As an initial matter, Roberts explained in his 43-page ruling, presidents have absolute immunity for their official acts when those acts relate to the core powers granted to them by the Constitution – for example, the power to issue pardons, veto legislation, recognize ambassadors, and make appointments.

> That absolute immunity does not extend to the president’s other official acts, however. In those cases, Roberts reasoned, a president cannot be charged unless, at the very least, prosecutors can show that bringing such charges would not threaten the power and functioning of the executive branch. And there is no immunity for a president’s unofficial acts.

[…]

> In her dissent, which (like Jackson’s) notably did not use the traditional “respectfully,” Sotomayor contended that Monday’s ruling “reshapes the institution of the Presidency.” “Whether described as presumptive or absolute,” she wrote, “under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless.” “With fear for our democracy,” she concluded, “I dissent.”

* https://www.scotusblog.com/2024/07/justices-rule-trump-has-s...

btw - this thread is hilarious, thank you thank you thank you

If a president took a bribe for a position, prosecute him for taking a bribe (if it's not a gratuity, because Congress has declared tipping politicians legal.) But if he could have made the same decision because he liked someone's tie - it's nothing but second guessing, by a likely hostile later administration.

These people appoint all their campaign staff and big donors to government jobs. If that's legal, then any reason for anything they do which is left up to their discretion is legal. If it's not legal, have Congress make it not legal.

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edit: gaganyaan, you are wrong. If you think that the entire point is that a president cannot be prosecuted for taking a bribe, you should reevaluate your understanding of the entire point.

> Under Monday’s decision, a former president could be prosecuted for accepting a bribe, but prosecutors could not mention the official act, the appointment, in their case.

> Justice Amy Coney Barrett, who joined the rest of Roberts’ opinion, parted company on this point. “The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable,” Barrett wrote.