Scrutable

dyqik wrote: Mon Jul 01, 2024 2:59 pm And it also gives Biden immunity to assassinate or arrest Trump. Or the Supreme Court.

Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.
...
The question then becomes whether that presumption of immunity is rebutted under the circumstances. It is the Government’s burden to rebut the presumption of immunity. The Court therefore remands to the District Court to assess in the first instance whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch.

IvanV wrote: Mon Jul 01, 2024 3:42 pm

dyqik wrote: Mon Jul 01, 2024 2:59 pm And it also gives Biden immunity to assassinate or arrest Trump. Or the Supreme Court.

The judgment says

Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.
...
The question then becomes whether that presumption of immunity is rebutted under the circumstances. It is the Government’s burden to rebut the presumption of immunity. The Court therefore remands to the District Court to assess in the first instance whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch.

The first sentence is, I believe, reasonably uncontroversial. The stretching it is in the second sentence. Because, as they say, shortly after, not all his official acts are within his "conclusive and preclusive constitutional authority."

But they say quite clearly, there is no immunity for unofficial acts. He doesn't have immunity for shoplifting. I think assassination of a political rival would usually be an unofficial act.

As the second para I quote makes clear, this does not on its own throw out the election interference case, but it makes it harder. They have sent it back to the district court for further fact-finding.

dyqik wrote: Mon Jul 01, 2024 3:47 pm

IvanV wrote: Mon Jul 01, 2024 3:42 pm

dyqik wrote: Mon Jul 01, 2024 2:59 pm And it also gives Biden immunity to assassinate or arrest Trump. Or the Supreme Court.

The judgment says

Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.
...
The question then becomes whether that presumption of immunity is rebutted under the circumstances. It is the Government’s burden to rebut the presumption of immunity. The Court therefore remands to the District Court to assess in the first instance whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch.

The first sentence is, I believe, reasonably uncontroversial. The stretching it is in the second sentence. Because, as they say, shortly after, not all his official acts are within his "conclusive and preclusive constitutional authority."

But they say quite clearly, there is no immunity for unofficial acts. He doesn't have immunity for shoplifting. I think assassination of a political rival would usually be an unofficial act.

As the second para I quote makes clear, this does not on its own throw out the election interference case, but it makes it harder. They have sent it back to the district court for further fact-finding.

Three Supreme Court Justices disagree with you.

Commanding the military is an official act. And the reasons for those official acts can no longer be examined in court to determine if they are legal or not.

Gfamily wrote: Mon Jul 01, 2024 5:01 pm Is there time to expand SCOTUS to 15 justices?

Gfamily wrote: Mon Jul 01, 2024 5:01 pm Is there time to expand SCOTUS to 15 justices?

monkey wrote: Mon Jul 01, 2024 5:31 pm

Gfamily wrote: Mon Jul 01, 2024 5:01 pm Is there time to expand SCOTUS to 15 justices?

That's set by Congress, it wouldn't get past the House of Representatives. Evidence for this is that it hasn't happened yet, despite at least one bill being introduced (last year, irc, think it was to 13 members).

So it's not a matter of time, it's just not going to happen before the election.

ETA If it does pass, there's a massive risk of Trump getting to pick the new judges too, if the republicans can delay proceedings long enough and he wins the presidential election.

IvanV wrote: Tue Jul 02, 2024 12:11 pm Biden has given a speech on how terrible this is.

I wonder if he could arrange a stunt to demonstrate it, send in the army to arrest some prominent conservatives for a bit, and then release them after a while. Make them understand what they have done, and that they have to cooperate in stopping it.

Btw my apology for misgendering Justice Sotomayor.

IvanV wrote: Tue Jul 02, 2024 12:11 pm Biden has given a speech on how terrible this is.

I wonder if he could arrange a stunt to demonstrate it, send in the army to arrest some prominent conservatives for a bit, and then release them after a while. Make them understand what they have done, and that they have to cooperate in stopping it.

Btw my apology for misgendering Justice Sotomayor.

Woodchopper wrote: Tue Jul 02, 2024 1:16 pm I'd like to see some legal commentary on this. The President could issue such an order (presumably with immunity so long as it counted as an official act) but I doubt that soldiers could lawfully carry it out. As far as I know the US armed forces codes of justice state that they are supposed to refuse to follow illegal orders.

Gfamily wrote: Tue Jul 02, 2024 1:25 pm

Woodchopper wrote: Tue Jul 02, 2024 1:16 pm I'd like to see some legal commentary on this. The President could issue such an order (presumably with immunity so long as it counted as an official act) but I doubt that soldiers could lawfully carry it out. As far as I know the US armed forces codes of justice state that they are supposed to refuse to follow illegal orders.

I'm not sure how immunity (from trial in the Courts) impacts the rules of impeachment - which is prosecuted and trialled by Congress

Woodchopper wrote: Tue Jul 02, 2024 1:29 pm

Gfamily wrote: Tue Jul 02, 2024 1:25 pm

Woodchopper wrote: Tue Jul 02, 2024 1:16 pm I'd like to see some legal commentary on this. The President could issue such an order (presumably with immunity so long as it counted as an official act) but I doubt that soldiers could lawfully carry it out. As far as I know the US armed forces codes of justice state that they are supposed to refuse to follow illegal orders.

I'm not sure how immunity (from trial in the Courts) impacts the rules of impeachment - which is prosecuted and trialled by Congress

As far as I know the President can still be impeached by Congress (and presumably punished). The problem for democracy is if an autocratic party with enough seats in congress were to be able to block an impeachment. If the courts don't have a role then a check on executive abuse of power has been removed.

Woodchopper wrote: Tue Jul 02, 2024 1:16 pm

IvanV wrote: Tue Jul 02, 2024 12:11 pm Biden has given a speech on how terrible this is.

I wonder if he could arrange a stunt to demonstrate it, send in the army to arrest some prominent conservatives for a bit, and then release them after a while. Make them understand what they have done, and that they have to cooperate in stopping it.

Btw my apology for misgendering Justice Sotomayor.

I'd like to see some legal commentary on this. The President could issue such an order (presumably with immunity so long as it counted as an official act) but I doubt that soldiers could lawfully carry it out. As far as I know the US armed forces codes of justice state that they are supposed to refuse to follow illegal orders.

Woodchopper wrote: Tue Jul 02, 2024 1:16 pm

IvanV wrote: Tue Jul 02, 2024 12:11 pm Biden has given a speech on how terrible this is.

I wonder if he could arrange a stunt to demonstrate it, send in the army to arrest some prominent conservatives for a bit, and then release them after a while. Make them understand what they have done, and that they have to cooperate in stopping it.

Btw my apology for misgendering Justice Sotomayor.

I'd like to see some legal commentary on this. The President could issue such an order (presumably with immunity so long as it counted as an official act) but I doubt that soldiers could lawfully carry it out. As far as I know the US armed forces codes of justice state that they are supposed to refuse to follow illegal orders.

dyqik wrote: Tue Jul 02, 2024 1:33 pm

Woodchopper wrote: Tue Jul 02, 2024 1:16 pm

IvanV wrote: Tue Jul 02, 2024 12:11 pm Biden has given a speech on how terrible this is.

I wonder if he could arrange a stunt to demonstrate it, send in the army to arrest some prominent conservatives for a bit, and then release them after a while. Make them understand what they have done, and that they have to cooperate in stopping it.

Btw my apology for misgendering Justice Sotomayor.

I'd like to see some legal commentary on this. The President could issue such an order (presumably with immunity so long as it counted as an official act) but I doubt that soldiers could lawfully carry it out. As far as I know the US armed forces codes of justice state that they are supposed to refuse to follow illegal orders.

The president can also fire military commanders until he gets one that will carry it out, and offer preemptive pardons to those that do. Under this ruling, there is absolute immunity for both of those actions as well, so the reasons cannot be examined in court for legality.

monkey wrote: Tue Jul 02, 2024 1:50 pm

Woodchopper wrote: Tue Jul 02, 2024 1:16 pm

IvanV wrote: Tue Jul 02, 2024 12:11 pm Biden has given a speech on how terrible this is.

I wonder if he could arrange a stunt to demonstrate it, send in the army to arrest some prominent conservatives for a bit, and then release them after a while. Make them understand what they have done, and that they have to cooperate in stopping it.

Btw my apology for misgendering Justice Sotomayor.

I'd like to see some legal commentary on this. The President could issue such an order (presumably with immunity so long as it counted as an official act) but I doubt that soldiers could lawfully carry it out. As far as I know the US armed forces codes of justice state that they are supposed to refuse to follow illegal orders.

It seems pretty simple to me, bit I'm not a expert or owt.

It's immunity from prosecution for the president. That doesn't mean the illegal stuff done isn't suddenly legal and it doesn't give protection to people who aren't president who might be involved*.


*You have pardons for them.

Woodchopper wrote: Tue Jul 02, 2024 2:04 pm

dyqik wrote: Tue Jul 02, 2024 1:33 pm

Woodchopper wrote: Tue Jul 02, 2024 1:16 pm

I'd like to see some legal commentary on this. The President could issue such an order (presumably with immunity so long as it counted as an official act) but I doubt that soldiers could lawfully carry it out. As far as I know the US armed forces codes of justice state that they are supposed to refuse to follow illegal orders.

The president can also fire military commanders until he gets one that will carry it out, and offer preemptive pardons to those that do. Under this ruling, there is absolute immunity for both of those actions as well, so the reasons cannot be examined in court for legality.

Certainly, and a Secretary of Defense could presumably change the military codes of justice to allow soldiers to follow orders which would have been illegal. But but this would be when democracy would be being dismantled. I don't think that Biden could just detain some republicans in order to make a point (without doing a lot more).