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.

> 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.

Why not? US presidents have murdered US citizens abroad with drones. All he needs to do is claim he did it under national security. SCOTUS explicitly calls out that the presidents motives are immaterial for determining immunity or not.

And we have a way to deal with that. It's called impeachment and is the process by which one tries a sitting president for things that are part of his/her official powers. Impeachment is not a legal process but a political one. Congress can try a President for anything at any time, if they can muster enough votes for it. That's what the Supreme Court has said before -- Congress's motivations for impeachment are above any judicial oversight.

Then why were lawmakers claiming impeachment was inappropriate for January 6, and rather it should be a criminal matter?

https://www.cbsnews.com/news/mitch-mcconnell-immunity-former...

"Not involved" despite telling the crowd to "fight like hell" and conspiring to have metal detectors removed?

'Immediately' as in many hours after violence started, and his own children begged him to do something?

Fight like hell? Isn't this a phrase that's used for all kinds of things?

Said in an attempt to stop the election process, then followed by hours of suspicious silence in the ensuing assault, I think the intent is pretty clear.

Impeachment doesn't actually deal with it at all. It's basically impossible to impeach anyone with the way politics is polarized these days, plus the only result is that the president is removed. They don't actually face any consequences for their actions as the Supreme Court is saying they can't be prosecuted even after leaving office.

> It's basically impossible to impeach anyone with the way politics is polarized these days

That's because no president has committed any supposed crime of any importance.

Nixon probably did, but resigned anyway, and was then pardoned, so it doesn't really matter.

Clinton was a technicality, and never removed from office, and no one cares really. Lewinsky is a celebrity now.

Trump... well the first one was obviously political (many Presidents deny foreign aid, etc... it's part of foreign policy. Biden is famously on tape as admitting to doing the exact same thing) and the second one was on thin ice as Trump explicitly called for peace

I think that swapping a legal process guaranteeing my rights for a political process guaranteeing* my rights is a poor trade.

I thought the USA was a country of laws, not kings.

* actually guaranteeing that if the president is trampling my rights and a supermajority of congress don't like it, he'll be ejected from office, not anything to do with my protection or restitution.

Wrong. Fitzgerald specifically shields the President from civil suits. The Court will not help you at all.

Your only recourse would be waiting until the President is out of office, then getting DoJ onboard to press criminal charges, with all the due process that entails. Fitzgerald explicitly provides no protection in the case of criminal litigation over and beyond that of an ordinary citizen for a former President.

Until today at least. God save us all.

You can file a civil suit to get an injunction to protect your personal rights. The ACLU does this all the time as do many other orgs

Impeachment as currently written has been proven over and over to be a paper tiger. We need real remedies, not theoretical ones.

that sounds not totally crazy until you realize that you've just said that the president can kill all Congress members who think that killing Congress members is an impeachable offense

That was always true.

EDIT: to clarify: Any president up until now, and from now going forward, has the power to command his generals to murder every senator, justice, and governor. Of course, American soldiers take an oath to the constitution, so hopefully this wouldn't happen, but he could. Moreover, anyone can 'just' murder all living politicians and declare themselves king. This is hardly a theoretical scenario to concern oneself over.

I'm sad that we've made it to these kind of specious defenses being offered in a serious response.

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.

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.

It doesn't matter. In the case where the president is using military force against political opponents it doesn't matter what the law says anyway.

It aims to be "rules for thee but not for me", and the court's choice of who they hold to the rules. It's a more realistic and relevant flaw.

There's one crucial flaw: you could neutralize the president in such a patently extreme situation and be acquitted by the jury

These days I wouldn't expect anyone who makes an attempt to "neutralize the president" to live long enough to see the inside of a courtroom

> 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

Unfortunately, the majority decision has the sentence > At a minimum, the President must be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.

Since imprisoning the president would obviously intrude on the functions of the Executive branch, it really looks like the majority opinion is that no president may be prosecuted for any "official act".

No the court was clear that motivation can not be used to divide official and unofficial behavior:

> In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such a “highly intrusive” inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose. Fitzgerald, 457 U. S., at 756. Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. Otherwise, Presidents would be subject to trial on “every allegation that an action was unlawful,” depriving immunity of its intended effect.

So it's not really immunity they are after, but super-immunity. It's not enough that he should be found not guilty in most or almost all cases, but that he should not even be accused, even have his actions inspected or judged. They have done away with the right to discovery, and covered the executive in an almost impenetrable veil. That is just royalty with extra steps.

I think that's a bit unclear. They have this standard where things that are part of a presidents "core constitutional powers" enjoy absolute immunity and anything else enjoys "at least presumptive immunity". I think this hints that some members of the court wanted to go further, but anyway I'm not quite sure what "presumptive immunity" means in the context of the law, but I think this quote gives the most clarity for me.

> unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457 U. S., at 754. Pp. 12–15.

This seems to be the real boundary. To show something doesn't have immunity you either have to:

1. Show it was an unofficial act

2. Show it wasn't part of the core presidential powers and that prosecuting it wouldn't have any danger of intruding intruding on "the authority and functions of the Executive Branch."

I think that last standard is related to presidential immunity from subpoena which courts have also recently construed quite broadly

The part of the text you quoted that really sent shivers down my spine was:

> Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.

So now the president can clearly break the law, and he cannot be questioned about it if it even remotely looks like maybe it could have been an official act? Surely, the correct ruling wold be that anything illegal is intrinsically not an official act, otherwise we wind up where the institution of the government is not bound by its founding documents. The executive branch of the government is a rogue entity with nothing to restrain it, as long as the president remembers to use a pompous looking stamp. For *certainly you can never show it was an unofficial act if you are not allowed to investigate because it is presumed an official act subject to absolute immunity *.

Mark my words. The next republican president will shut down any and all attempts to even question him or view documents, by preempting the investigation using this as his argument. And shortly later they will, most likely, start disbarring and / or incarcerating anybody who attempts to investigate him for "frivolous" persecutions that impede the executive branch. This ruling is very calculated, since they know Biden will not abuse his powers because of it, but there is an almost unstoppable amount of latent power that will be immediately abused by the next president.

>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.

When it comes to it, this exact thing will be covered by immunity because of how things work.

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.

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?

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.

Sounds reasonable, but that's not what the court decided.

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.

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.

> 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.

> 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.

> 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.

> 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.

We always lived in such a world. I know you might think the court did this to protect Trump, but realistically, the one who's more protected (since murder is a much worse crime than anything Trump's been accused of) is Obama, who ordered the murder of an American citizen by the American military.

I'm not sure what your standard of brazen is, but since he basically got not even a threat of impeachment for that, I'm going to go with that being much more brazen.

Not that I particularly care. Obama made the right call IMO.

EDIT: Here's an article in which the ACLU raises the same hypothetical concern you do (the president will now be able to kill whomever): https://www.latimes.com/nation/nationnow/la-na-nn-drone-memo...

> I'm not sure what your standard of brazen is

Ordering the assassination of an American citizen not caught in the act of doing something illegal is illegal and Obama should be prosecuted for that. But his justification was that it was for national security, and as you say, some people think that's a fine justification. If his justification were that he didn't like the cut of his jib, then you'd be against it I assume.

As things lie now, rationale and justification don't matter in determining whether something is prosecutable or not, and that's scary, to me at least.

EDIT: Also, did you see my question from an earlier post:

>> 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.

> If his justification were that he didn't like the cut of his jib, then you'd be against it I assume

So this may surprise you but the government of the United States is naturally immune from any case where it kills you or harms you in any way.

Congress has consented to being liable because it thinks that's nice, but it withdraws consent whenever it wants. The entirety of the idea of 'suing' or 'prosecuting' the government is something that only happens with the governments consent and they regularly withdraw it if it's upsetting the them

So the government can violate my rights as long as it kills me too? That doesn’t pass a sniff test.

Your family could not sue the government* and obviously, being dead, you'd have no standing in court.

* You cannot sue because the federal government and all state governments are immune from all civil suits naturally. Congress has consented to be sued because it thinks that that's a nice approach, but it can always choose to not be sued if it wanted to

Yes. Hopefully the military wouldn't coup. But notably, the US President ordering them to perform a coup would be immune from prosecution, because it's an official act.

That's correct.

> 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.

6 members of the Supreme Court said Distinguishing the President’s official actions from his unofficial ones can be difficult.[1]

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

If law weren't difficult, there would be no lawyers.

Backwards.

If there weren't lawyers, law would be oh, so much simpler..

Realistically, not being a lawyer myself, it is painfully obvious that the vast majority of people do not have even a modicum of the nuance necessary to fairly judge anything.

Ok, so what happens when the president says something along the lines of 'will no one rid me of this troublesome congressman' and then turns around and pardons the secret service agent that pulls the trigger?

Technically, the murder is illegal, but the pardon is legal because it's 'part of his official duties'.

There are any number of ways this can be abused.

Presidents can already pardon people who murder their political opponents. Famously, the Reconstruction-era presidents pardonned every single confederate so as not to divide the country further and increase tensions.

You are clutching pearls over something that is already allowed. Like I said, Congress can impeach a president who does this if they don't like it.

Moreover, a president can't pardon state level offenses anyway, and I would imagine the murder would have to take place in a state. The state could simply retry the case. States have much more discretion in the sorts of things they can criminalize.

Exactly and all the things which he has to just sign also fall under official, even if he was just briefed quickly on it and does not have a clue what’s going on.

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.

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.

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.

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

Nobody is talking about prosecuting the office whatever the hell that would mean.

Note, the case before the court was whether or not a person could be prosecuted (Donald Trump specifically), the court said no.

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.

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

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.

You missed the part where the Supreme Court granted the president immunity.

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.

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

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?